UNITED STATES OF AMERICA, et al., Plaintiffs, v. BANK OF AMERICA CORPORATION, et al., Defendants. | ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) | Civil Action No. ________ |
For the United States: | ||
/s/ Tony West | ||
TONY WEST | ||
Acting Associate Attorney General | ||
U.S. Department of Justice | ||
950 Pennsylvania Ave., N.W. | ||
Washington, DC 20530 | ||
Tel.: 202-514-9500 | ||
Fax: 202-514-0238 | ||
For the Department of the Treasury: | For the Department of Housing and Urban Development: | |
/s/ George W. Madison | /s/ Helen R. Kanovsky | |
GEORGE W. MADISON | HELEN R. KANOVSKY | |
General Counsel | General Counsel | |
U.S. Department of the Treasury 1500 Pennsylvania Avenue, NW | U.S. Department of Housing and Urban Development | |
Washington, D.C. 20220 | 451 7th Street, S.W. | |
Tel.: 202-622-0283 | Washington, DC 20410 | |
Fax: 202-622-2882 | Tel.: 202-402-5023 | |
Fax: 202-708-3389 | ||
For the Federal Trade Commission | For the Consumer Financial Protection Bureau | |
(as to Exhibit F only): | (as to Exhibit F only): | |
/s/ Amanda Basta | /s/ Lucy Morris | |
Amanda Basta | Lucy Morris | |
Attorney | Deputy Enforcement Director | |
Federal Trade Commission | Consumer Financial Protection Bureau | |
600 Pennsylvania Ave., NW | 1500 Pennsylvania Avenue, NW | |
Washington, DC 20058 | (Attn: 1801 L Street) | |
Tel: 202-326-2340 | Washington, DC 20220 | |
Fax: 202-326-2558 | Tel: 202-435-7154 |
For the State of Alabama: | For the Alabama State Banking Department: |
/s/ Luther Strange | /s/ John D. Harrison |
LUTHER STRANGE | JOHN D. HARRISON |
Attorney General | Superintendent of Banks |
State of Alabama | Alabama State Banking Department |
501 Washington Avenue | 401 Adams Avenue, Suite 680 |
Montgomery, AL 36130 | P.O. Box 4600 |
Tel.: 334-242-7335 | Montgomery, AL 36103-4600 |
Fax: 334-242-2433 | Tel.: 334-242-3452 |
Fax: 334-242-3500 |
For the State of Alaska: | For the Alaska Division of Banking and Securities: |
/s/ Cynthia C. Drinkwater | /s/ Lorie L. Hovanec |
CYNTHIA C. DRINKWATER | Lorie L. Hovanec |
Assistant Attorney General | Director |
Alaska Attorney General's Office | Alaska Division of Banking and Securities |
1031 W. 4th Avenue, Ste. 200 Anchorage, AK 99501 | Department of Commerce, Community and Economic Development |
Tel.: 907-269-5200 | 550 W. 7th Ave., Ste. 1940 |
Fax: 907-264-8554 | Anchorage, AK 99501 |
Tel.: 907-269-8140 | |
Fax: 907-465-1231 |
For the State of Arizona: | For the Arizona Department of Financial Institutions: |
/s/ Carolyn Matthews | /s/ Lauren W. Kingry |
THOMAS C. HORNE | LAUREN W. KINGRY |
Arizona Attorney General | Superintendent |
by Carolyn R. Matthews | Arizona Department of Financial Institutions |
Assistant Attorney General | 2910 N. 44th Street, suite #310 |
1275 W. Washington | Phoenix, AZ 85018 |
Phoenix, AZ 85007 | Tel.: 602-771-2772 |
Tel.: 602-542-7731 | Fax: 602-381-1225 |
Fax: 602-542-4377 |
For the State of Arkansas: | For the Arkansas Securities Department: |
By: /s/ James B. DePriest | /s/ A. Heath Abshure |
James B. DePriest, Ark. Bar No. 80038 | A. HEATH ABSHURE |
Deputy Attorney General | Securities Commissioner |
Office of the Attorney General | 201 East Markham, Suite 300 |
323 Center Street, Suite 200 | Little Rock, AR 72201 |
Little Rock, Arkansas 72201 | Tel: 501-324-9260 |
Tel.: 501-682-5028 | Fax: 501-324-9268 |
Fax: 501-682-8118 | |
For the State of California: | For the California Department of Corporations: |
/s/ Michael A. Troncoso | /s/ Jan Lyn Owen |
MICHAEL A. TRONCOSO | JAN LYNN OWEN |
Senior Counsel to the Attorney General | Commissioner |
455 Golden Gate Avenue, Ste. 14500 | 1515 K Street, Suite 200 |
San Francisco, CA 94102-7007 | Sacramento, CA 95814-4052 |
Tel.: 415-703-1008 | Tel.: 916-445-7205 |
Fax: 415-703-1016 | Fax: 916-322-1559 |
For the State of Colorado, ex. rel. John W. Suthers, Attorney General, and On behalf of the Administrator of the Colorado Uniform Consumer Credit Code, Laura E. Udis: | |
/s/ Andrew P. McCallin | |
ANDREW P. MCCALLIN | |
First Assistant Attorney General | |
Consumer Protection Section | |
Colorado Attorney General's Office | |
1525 Sherman Street - 7th Floor | |
Denver, Colorado 80203 | |
Tel.: 303- 866-5134 | |
Fax: 303- 866-4916 |
For the State of Connecticut and the Connecticut Department of Banking: | For the Connecticut Department of Banking: |
/s/ Matthew Budzik | /s/ Howard F. Pitkin |
MATTHEW J. BUDZIK | HOWARD F. PITKIN |
JOSEPH J. CHAMBERS | Banking Commissioner |
Assistant Attorneys General | Connecticut Department of Banking |
Office of the Connecticut Attorney General | 260 Constitution Plaza |
55 Elm Street, P.O. Box 120 | Hartford, CT 06103-1800 |
Hartford, CT 06141-0120 | Tel: 860-240-8100 |
Tel: 860-808-5270 | Fax: 860-240-8178 |
Fax: 860-808-5385 |
For the State of Delaware: | For the Office of the State Bank Commissioner: |
IAN R. MCCONNEL | ROBERT A. GLEN |
/s/ Ian R. McConnel | /s/ Robert A. Glen |
Deputy Attorney General | State Bank Commissioner |
Delaware Department of Justice | Suite 210 |
Attorney General's Office | 555 East Lookerman Street |
820 N. French Street | Dover, DE 19901 |
Wilmington, DE 19801 | Tel: 302-739-4235 |
Tel.: 302-577-8533 | Fax: 302-739-3609 |
Fax: 302-577-8426 |
For the District of Columbia and the District of Columbia Department of Insurance, Securities and Banking: IRVIN B. NATHAN Attorney General for the District of Columbia ELLEN A. EFROS Deputy Attorney General Public Interest Division |
/s/ Bennett Rushkoff |
BENNETT RUSHKOFF (Bar #386925) |
Chief, Public Advocacy Section |
Office of the Attorney General |
441 Fourth Street, N.W., Suite 600-S |
Washington, DC 20001 |
(202) 727-5173 phone |
(202) 730-1469 fax |
bennett.rushkoff@dc.gov |
For the State of Florida: | For the Florida Office of Financial Regulations: |
/s/ Pamela Jo Bondi | /s/ Gregory J. Hila |
Pamela Jo Bondi | for Tom Grady |
Attorney General | Commissioner |
The Capitol PL-01 | Florida Office of Financial Regulations |
Tallahassee, FL 32399-1050 | 200 E. Gaines Street |
Tel:850-245-0140 | The Fletcher Building, Suite 118 |
Fax:850-413-0632 | Tallahassee, FL 32399-0370 |
Tel:850-410-9601 | |
Patricia A. Conners | Fax:850-410-9914 |
Associate Deputy Attorney General | |
/s/ Victoria A. Butler | |
Victoria A. Butler | |
Assistant Attorney General | |
Bureau Chief, Economic Crimes Division | |
3507 E. Frontage Road | |
Suite 325 | |
Tampa, FL 33607 | |
Tel: 813-287-7950 | |
Fax: 813-281-5515 |
For the State of Georgia and the Georgia Department of Banking and Finance: |
/s/ Jeffrey W. Stump |
Assistant Attorney General |
Georgia Department of Law |
40 Capitol Square, S.W. |
Atlanta, Georgia 30334 |
Tel.: 404-656-3337 |
Fax: 404-656-0677 |
For the State of Hawaii and the State of Hawaii Commissioner of Financial Institutions: |
/s/ David M. Louie |
DAVID M. LOUIE |
Attorney General, State of Hawaii |
Department of the Attorney General |
425 Queen Street |
Honolulu, Hawaii 96813 |
Tel: 808-586-1500 |
Fax: 808-586-1239 |
For the State of Idaho LAWRENCE WASDEN, Attorney General: | For the Idaho Department of Finance: |
/s/ Brett T. DeLange | /s/ Gavin M. Gee |
BRETT T. DELANGE | GAVIN M. GEE |
Deputy Attorney General | Director of Finance |
Office of the Idaho Attorney General | Idaho Department of Finance |
700 W. Jefferson St. | 800 Park Blvd., Suite 200 |
P.O. Box 83720 | P.O. Box 83720 |
Boise, ID 83720-0010 | Boise, ID 83720-0031 |
Tel.: 208-334-2400 | Tel.: 208-332-8000 |
Fax: 208-854-8071 | Fax: 208-332-8097 |
For the State of Illinois: | For the Illinois Department of Financial and Professional Regulation: |
/s/ Deborah Hagan | /s/ Brent E. Adams |
DEBORAH HAGAN | BRENT E. ADAMS |
Chief, Consumer Protection Division | Secretary |
Illinois Attorney General's Office | Illinois Department of Financial and Professional Regulation |
500 South Second Street | 100 W. Randolph St., 9th Floor |
Springfield, IL 62706 | Chicago, IL 60601 |
Tel.: 217-782-9021 | Tel.: 312-814-2837 |
Fax: 217-782-1097 | Fax:312-814-2238 |
For the State of Indiana: | For the Indiana Department of Financial Institutions: |
/s/ Abigail Lawlis Kuzma | /s/ David H. Mills |
ABIGAIL LAWLIS KUZMA | DAVID H. MILLS |
Director and Chief Counsel | Director |
Consumer Protection Division | Indiana Department of Financial Institutions |
Indiana Office of Attorney General | 30 South Meridian Street |
302 West Washington St. | Suite 300 |
IGCS 5th Fl. | Indianapolis, Indiana 46204 |
Indianapolis, Indiana 46204 | Tel.: 317-233-9460 |
Tel.: 317-234-6843 | Fax: 317-232-7655 |
Fax: 317-233-4393 |
For the State of Iowa: | For the Iowa Division of Banking: |
/s/ Thomas J. Miller | /s/ James M. Schipper |
THOMAS J. MILLER | JAMES M. SCHIPPER |
Attorney General | Superintendent of Banking |
1305 E. Walnut St. | Iowa Division of Banking |
Des Moines, IA 50319 | 200 E. Grand Ave., Ste. 300 |
Tel: 515-281-5164 | Des Moines, IA 50309-1827 |
Fax: 515- 281-4209 | Tel: 515- 242-0350 |
Fax: 515-281-4862 |
For the State of Kansas: | For the Kansas Office of the State Bank Commissioner: |
/s/ Meghan E. Stoppel | /s/ Edwin G. Splichal |
MEGHAN E. STOPPEL | EDWIN G. SPLICHAL |
Assistant Attorney General | Commissioner |
Office of the Kansas Attorney General | Kansas Office of the State Bank Commissioner |
120 SW 10th Avenue, 2nd Floor | 700 SW Jackson, Suite 300 |
Topeka, KS 66612 | Topeka, KS 66603-3796 |
Tel.: 785-296-3751 | Tel.: 785-296-2266 |
Fax: 785-291-3699 | Fax: 785-296-0168 |
For the Office of the Attorney General of Kentucky: | For the Kentucky Department of Financial Institutions: |
/s/ Jack Conway | /s/ Charles A. Vice |
JACK CONWAY | CHARLES A. VICE |
Attorney General | Commissioner |
Commonwealth of Kentucky | Kentucky Department of Financial Institutions |
State Capitol, Suite 118 | 1025 Capital Center Drive |
700 Capital Avenue | Suite 200 |
Frankfort, Kentucky 40601-3449 | Frankfort, KY 40601 |
Tel.: 502-696-5300 | Tel.: 502-573-3390 |
Fax: 502-564-2894 | Fax: 502-573-8787 |
For the State of Louisiana: | For the Louisiana Office of Financial Institutions: |
JAMES D. “BUDDY” CALDWELL | /s/ Darin Domingue |
Attorney General | DARIN DOMINGUE |
Deputy Chief Examiner | |
Louisiana Office of Financial Institutions | |
8660 United Plaza Blvd - Floor | |
Baton Rouge, LA 70809 | |
/s/ Sanettria Glasper Pleasant | Tel.: 225-922-2596 |
SANETTRIA GLASPER PLEASANT | Fax: 225-925-4548 |
Louisiana State Bar # 25396 | |
Assistant Attorney General | |
Director of Public Protection Division | |
1885 North Third Street, 4th Floor | |
Baton Rouge, LA 70802 | |
Tel: 225-326-6452 | |
Fax: 225-326-6498 |
For the State of Maine and the Maine Bureaus of Consumer Credit Protection and Financial Institutions: |
/s/ William J. Schneider |
WILLIAM J. SCHNEIDER |
Attorney General |
Burton Cross Office Building, 6th Floor |
111 Sewall Street |
Augusta, Maine 04330 |
Tel.: 207-626-8800 |
Fax: 207-624-7730 |
For the State of Maryland: | For the Office of the Commissioner of Financial Regulation: |
/s/ Katherine Winfree | /s/ Mark Kaufman |
KATHERINE WINFREE | MARK KAUFMAN |
Chief Deputy Attorney General | Commissioner of Financial Regulation |
Office of the Attorney General of Maryland | Maryland Department of Labor, Licensing and Regulation |
200 Saint Paul Place | 500 North Calvert Street |
Baltimore, MD 21202 | Suite 402 |
Tel: 410-576-6311 | Baltimore, MD 21202 |
Fax: 410-576-7036 | Tel.: 410-230-6100 |
Bar Number 306662 | Fax: 410-333-0475 |
For The Commonwealth Of Massachusetts: | For the Massachusetts Division of Banks: |
MARTHA COAKLEY | |
Attorney General | |
/s/ Amber Anderson Villa | /s/ David J. Cotney |
AMBER ANDERSON VILLA | DAVID J. COTNEY |
Mass. BBO #647566 | Commissioner |
Assistant Attorney General | Massachusetts Division of Banks |
Public Protection and Advocacy Bureau | 1000 Washington St., 10th Floor |
Consumer Protection Division | Boston, MA 02118 |
One Ashburton Place | Tel: 617-956-1510 |
Boston, MA 02108 | Fax: 617-956-1599 |
Tel: 617-727-2200 | |
For the State of Michigan: | |
/s/ D.J. Pascoe | |
BILL SCHUETTE | |
Attorney General | |
D.J. Pascoe | |
Assistant Attorney General | |
525 W. Ottawa Street | |
PO Box 30755 | |
Lansing, MI 48909 | |
Tel.: 517-373-1160 | |
Fax: 517-335-3755 |
For the Michigan Office of Financial and Insurance Regulation: | |
/s/ Stephen R. Hilker for | |
R. Kevin Clinton | |
Commissioner | |
State of Michigan Office of Financial and Insurance Regulation | |
611 W. Ottawa Street, PO Box 30220 | |
Lansing, MI 48909-7720 | |
Tel.:517-335-3167 | |
Fax:517-335-0908 |
For the State of Minnesota: Lori Swanson Attorney General, State of Minnesota /s/ Nathan Brennaman NATHAN BRENNAMAN Deputy Attorney General Minnesota Attorney General's Office 445 Minnesota Street, Suite 1200 St. Paul, MN 55101-2130 Tel.: 651-757-1415 Fax: 651-296-7438 | For the Minnesota Department of Commerce: /s/ Mike Rothman MIKE ROTHMAN Commissioner Minnesota Department of Commerce 85 7th Place East, Suite 500 St. Paul, MN 55101 Tel.: 651-296-6025 Fax: 651-297-1959 |
For the State of Mississippi: /s/ Bridgette W. Wiggins BRIDGETTE W. WIGGINS Special Assistant Attorney General Mississippi Attorney General's Office Post Office Box 22947 Jackson, MS 39225-2947 Tel.: 601-359-4279 Fax: 601-359-4231 | For the Mississippi Department of Banking & Consumer Finance: /s/ Theresa L. Brady THERESA L. BRADY Commissioner Mississippi Department of Banking & Consumer Finance 901 Woolfolk Building, Suite A 501 North West Street Jackson, MS 39201 Tel.: 601-359-1031 Fax: 601-359-3557 |
For the State of Missouri: CHRIS KOSTER Attorney General /s/ Douglas M. Ommen DOUGLAS M. OMMEN Chief Counsel Consumer Protection Division PO Box 899 Jefferson City, MO 65102 Tel.: 573-751-7007 Fax: 573-751-2041 | For the Missouri Division of Finance: /s/ Richard Weaver RICHARD WEAVER Commissioner Missouri Division of Finance 301 West High Street, Room 630 Jefferson City, MO 65101 Tel.: 573-751-2545 Fax: 573-751-9192 |
For the State of Montana: /s/ Steve Bullock STEVE BULLOCK Attorney General JAMES P. MOLLOY Assistant Attorney General Montana Department of Justice 215 N. Sanders Helena MT 59624 Tel.: 406-444-2026 Fax: 406-444-3549 | For the Montana Division of Banking and Financial Institutions: /s/ Melanie S. Griggs MELANIE S. GRIGGS Commissioner Division of Banking and Financial Institutions 301 South Park Ave, Suite 316 Helena, MT 59620 Tel.: 406-841-2920 Fax: 406-841-2930 |
For the State of Nebraska: JON BRUNING, Attorney General /s/ Abigail M. Stempson ABIGAIL M. STEMPSON Assistant Attorney General Office of the Attorney General 2115 State Capitol Lincoln, NE 68509-8920 Tel.: 402-471-2811 Fax: 402-471-4725 | For the Nebraska Department of Banking and Finance: /s/ John Munn JOHN MUNN Director Nebraska Department of Banking and Finance 1230 “O” Street, Suite 400 PO Box 95006 Lincoln, NE 68509 Tel.: 402-471-2171 Fax: 402-471-3062 |
For the State of Nevada: CATHERINE CORTEZ MASTO Attorney General /s/ C. Wayne Howle C. WAYNE HOWLE Solicitor General Nevada State Bar #3443 100 North Carson Street Carson City, Nevada 89701 Tel: 775-684-1232 Fax: 775-684-1108 | For the Nevada Division of Mortgage Lending: /s/ James Westrin JAMES WESTRIN Commissioner, Division of Mortgage Lending Nevada Department of Business & Industry 7220 Bermuda Road, Suite A Las Vegas, NV 89119 Tel.: 702-486-0780 Fax: 708-486-0785 |
For the State of NEW HAMPSHIRE: /s/ Michael A. Delaney MICHAEL A. DELANEY Attorney General N.H. Department of Justice 33 Capitol Street Concord, New Hampshire 03301 Tel.: 603-271-3658 Fax: 603-271-2110 | For the NEW HAMPSHIRE BANKING COMMISSIONER /s/ Ronald A. Wilbur RONALD A. WILBUR Banking Commissioner N.H. Banking Department 53 Regional Drive, Suite 200 Concord, New Hampshire 03101 Tel.: 603-271-3561 Fax: 603-271-1090 |
For the State of New Jersey: JEFFREY S. CHIESA ATTORNEY GENERAL OF NEW JERSEY By: /s/ Lorraine K. Rak LORRAINE K. RAK Deputy Attorney General Chief, Consumer Fraud Prosecution Section Division of Law 124 Halsey Street - 5th Floor P.O. Box 45029 Newark, New Jersey 07101 Tel.: 973-877-1280 Fax: 973-648-4887 | For the New Jersey Department of Banking & Insurance: By: /s/ Kenneth E. Kobylowski KENNETH E. KOBYLOWSKY Acting Commissioner New Jersey Department of Banking & Insurance Office of Consumer Finance, Division of Banking 20 West State Street - 5th Floor P.O. Box 040 Trenton, New Jersey 08625-0040 Tel.: 609-633-7667 Fax: 609-292-3144 |
For the State of New Mexico: /s/ Karen J. Meyers GARY K. KING, Attorney General KAREN J. MEYERS, Assistant Attorney General Office of New Mexico Attorney General PO Drawer 1508 Santa Fe, NM 87504-1508 Tel: 505-222-9100 Fax: 505-222-9033 | For the New Mexico Financial Institutions Division: /s/ Cynthia Richards CYNTHIA RICHARDS Director New Mexico Financial Institutions Division 2550 Cerrillos Road, 3rd Floor Santa Fe, NM 87505 Tel: 505-476-4560 Fax: 505-476-4670 |
For the State of North Dakota WAYNE STENEHJEM Attorney General /s/ Parrell D. Grossman PARRELL D. GROSSMAN (ID No. 04684) Assistant Attorney General Director, Consumer Protection and Antitrust Division Office of Attorney General Gateway Professional Center 1050 E Interstate Ave, Ste 200 Bismarck, ND 58503-5574 Tel: 701-328-5570 Fax: 701-328-5568 | For the North Dakota Department of Financial Institutions /s/ Robert J. Entringer ROBERT J. ENTRINGER Commissioner ND Department of Financial Institutions 2000 Schafer Street, Suite G Bismarck, ND 58501-1204 Tel: 701-328-9933 Fax: 701-328-0290 |
For the Ohio Attorney General MIKE DEWINE: /s/ Susan A. Choe MATTHEW J. LAMPKE JEFFREY R. LOESER SUSAN A. CHOE Assistant Attorneys General Ohio Attorney General 30 E. Broad St., 14th Floor Columbus, OH 43215 Tel.: 614-466-1305 Fax: 614-466-8898 | For the Ohio Department of Commerce, Division of Financial Institutions: /s/ Jennifer S. M. Croskey JENNIFER S. M. CROSKEY Assistant Attorney General Ohio Attorney General, Executive Agencies 30 E. Broad St., 26th Floor Columbus, OH 43215 Tel: 614-466-2980 Fax: 614-728-9470 |
For the State of Oregon, | For Department of Consumer and |
Attorney General JOHN R. KROGER: | Business Services, PATRICK |
ALLEN, Director: | |
/s/ Simon Whang | /s/ David C. Tatman |
SIMON WHANG | DAVID C. TATMAN, |
Assistant Attorney General | Administrator |
Oregon Department of Justice | Division of Finance and |
Financial Fraud/Consumer Protection | Corporate Securities |
1515 SW 5th Avenue, Ste. 410 | 350 Winter Street NE, Rm. 410 |
Portland, OR 97201 | Salem, OR 97301-3881 |
Tel.:971-673-1880 | Tel.:503-378-4140 |
Fax:971-673-1902 | Fax:503-947-7862 |
For the Commonwealth of Pennsylvania | For the Commonwealth of Pennsylvania |
Office of Attorney General: | Department of Banking: |
/s/ Linda L. Kelly | /s/ Glenn E. Moyer |
LINDA L. KELLY | GLENN E. MOYER |
Attorney General | Secretary of Banking |
Commonwealth of Pennsylvania | Commonwealth of Pennsylvania |
Office of Attorney General | Department of Banking |
16th Floor, Strawberry Square | 17 N. Second St., Suite 1300 |
Harrisburg, PA 17120 | Harrisburg, PA 17101 |
Tel.:717.787.3391 | Tel.:717-783-7151 |
Fax:717.783.1107 | Fax:717-214-0808 |
For the Rhode Island Department of Attorney General: |
/s/ Gerald Coyne |
Gerald Coyne |
Rhode Island Department of Attorney General |
Deputy Attorney General |
150 South Main Street |
Providence, RI 02903 |
Tel:401-274-4400 Extension 2257 |
Fax:401-222-1302 |
For the Rhode Island Department of Business Regulation: |
/s/ Paul McGreevy |
Paul McGreevy |
Director |
Rhode Island Department of Business Regulation |
Division of Banking |
1511 Pontiac Avenue, Bldg. 68-2 |
Cranston, RI 02920 |
Tel.:401-462-9553 |
Fax:401-462-9532 |
For the State of South Carolina: | For the South Carolina Department of Consumer Affairs and South Carolina Board of Financial Institutions: |
/s/ Alan Wilson | /s/ Carri Grube Lybarker |
ALAN WILSON | CARRI GRUBE LYBARKER |
Attorney General | Administrator |
JOHN W. MCINTOSH | SC Department of Consumer Affairs |
Chief Deputy Attorney General | 2221 Devine Street, Suite 200 |
PO Box 5757 | |
C. HAVIRD JONES, JR. | Columbia, SC 29250 |
Assistant Deputy Attorney General | Tel.:803-734-4233 |
Fax:803-734-4229 | |
MARY FRANCES JOWERS | |
Assistant Attorney General | |
South Carolina Attorney General's | |
Office | |
1000 Assembly Street, Room 519 | |
Columbia, SC 29201 | |
Tel.:803-734-3970 | |
Fax:803-734-3677 |
For the State of South Dakota: | For the South Dakota Division |
of Banking: | |
/s/ Marty J. Jackley | /s/ Bret Afdahl |
MARTY J. JACKLEY | BRET AFDAHL |
Attorney General | Director |
1302 E. Highway 14, Suite 1 | South Dakota Division of |
Pierre, SD 57501 | Banking |
Tel.:605-773-3215 | 217 ½ West Missouri Ave. |
Fax:605-773-4106 | Pierre, SD 57501 |
Tel.:605-773-3421 | |
Fax:605-773-5367 |
For the State of Tennessee: | For the Tennessee Department of Financial |
Institutions: | |
/s/ Robert E. Cooper, Jr. | /s/ Greg Gonzales |
ROBERT E. COOPER, JR. | GREG GONZALES |
Attorney General and Reporter | Commissioner |
Office of the Tennessee Attorney General | Tennessee Department of Financial Institutions |
425 Fifth Avenue North | 414 Union Street |
Nashville, TN 37243-3400 | Suite 1000 |
Tel.:615-741-3491 | Nashville, TN 37219 |
Fax:615-741-2009 | Tel.:615-741-5603 |
Fax:615-741-2883 |
For the State of Texas: |
/s/ James A. Daross |
JAMES A. DAROSS |
State Bar No. 05391500 |
Assistant Attorney General |
Consumer Protection Division |
401 E. Franklin Avenue, Suite 530 |
El Paso, Texas 79901 |
(915) 834-5800 |
FAX (915) 542-1546 |
For the Texas Office of Consumer Credit Commissioner: |
/s/ Leslie L. Pettijohn |
LESLIE L. PETTIJOHN |
Commissioner |
Texas Office of Consumer Credit Commissioner |
2601 N Lamar Blvd |
Austin, TX 78705-4207 |
Tel.:512-936-7600 |
Fax:512-936-7610 |
For the Texas Department of Savings and Mortgage Lending: |
/s/ Douglas B. Foster |
DOUGLAS B. FOSTER |
Commissioner |
Texas Department of Savings and Mortgage Lending |
2601 N Lamar Blvd, Suite 201 |
Austin, TX 78644 |
Tel.:512-475-1350 |
Fax:512-475-1360 |
For the State of Utah: | For the Utah Department of Financial |
Institutions: | |
/s/ Mark L. Shurtleff | /s/ G. Edward Leary |
MARK L. SHURTLEFF | G. EDWARD LEARY |
Utah Attorney General | Commissioner |
350 North State Street, #230 | Utah Department of Financial |
Salt Lake City, UT 84114-2320 | Institutions |
Tel.:801-538-1191 | PO Box 146800 |
Fax:801-538-1121 | Salt Lake City, UT 84114-6800 |
Tel.:801-538-8761 | |
Fax:801-538-8894 |
For the State of Vermont: | |
/s/ Elliot Burg | |
Elliot Burg | |
Assistant Attorney General | |
Office of the Attorney General | |
109 State Street | |
Montpelier, VT 05609 | |
Tel:802-828-2153 | |
Fax:802-828-2154 | |
For the Vermont Department of Banking, Insurance, Securities and Health Care Administration: | |
/s/ Stephen W. Kimbell | |
Stephen W. Kimbell | |
Commissioner | |
Vermont Department of Banking, Insurance, Securities and Health Care Administration | |
89 Main Street | |
Montpelier, VT 05620 | |
Tel.:802-828-2380 | |
Fax:802-828-1477 |
For The Commonwealth of Virginia, | For the Virginia Bureau of |
ex rel. KENNETH T. CUCCINELLI, II, | Financial Institutions: |
Attorney General: | |
/s/ David B. Irvin | /s/ E. Joseph Face, Jr. |
DAVID B. IRVIN (VSB #23927) | E. JOSEPH FACE, JR. |
Senior Assistant Attorney General | Commissioner |
MARK S. KUBIAK (VSB #73119) | Virginia Bureau of Financial |
Assistant Attorney General | Institutions |
Office of Virginia Attorney General | 1300 East Main Street |
900 East Main Street | Richmond, Virginia 23219 |
Richmond, Virginia 23219 | Tel.:804-371-9659 |
Tel.:804-786-4047 | Fax:804-371-0163 |
Fax:804-786-0122 |
For the State of Washington: | For the Washington State |
Department of Financial | |
Institutions: | |
/s/ Robert M. McKenna | /s/ Scott Jarvis |
ROBERT M. MCKENNA | SCOTT JARVIS |
WSBA# 18327 | Director |
Attorney General | Department of Financial |
1125 Washington Street SE | Institutions |
Olympia, WA 98504-0100 | State of Washington |
Tel: 360-753-6200 | PO Box 41200 |
Olympia, WA 98504-1200 | |
Tel: 877-746-4334 | |
/s/ David W. Huey | |
DAVID W. HUEY | |
WSBA #31380 | |
Assistant Attorney General | |
Consumer Protection Division | |
Washington Attorney | |
General's Office | |
1250 Pacific Avenue, | |
Suite 105 PO Box 2317 | |
Tacoma, WA 98402-4411 | |
Tel: (253) 593-5243 |
For the State of West Virginia: | For the West Virginia Division of Banking: |
/s/ Jill L. Miles | /s/ Sara M. Cline |
JILL L. MILES | SARA M. CLINE |
Deputy Attorney General | Commissioner of Banking |
State Capitol, Room 26E | One Players Club, Suite 300 |
Charleston, WV 25305-0220 | Charleston, WV 25311 |
Tel.:304-558-2021 | Tel.:304-558-2294 |
Fax:304-558-0140 | Fax:304-558-0442 |
For the State of Wisconsin: | For the Wisconsin Department of |
Financial Institutions: | |
J.B. VAN HOLLEN | |
Attorney General | |
/s/ Holly C. Pomraning | /s/ Peter Bildsten |
HOLLY C. POMRANING | PETER BILDSTEN |
Assistant Attorney General | Secretary |
Wisconsin Department of Justice | Wisconsin Department of Financial |
Post Office Box 7857 | Institutions |
Madison, Wisconsin 53707-7857 | 345 W. Washington Ave 5th Floor |
Tel.:608-266-5410 | PO Box 8861 |
Fax:608-267-8906 | Madison, WI 53708-8861 |
Tel.:608-267-1710 | |
Fax:608-261-4334 |
For the State of Wyoming: | For the Wyoming Division of |
Banking: | |
/s/ Gregory A. Phillips | /s/ Albert L. Forkner |
GREGORY A. PHILLIPS | ALBERT L. FORKNER |
Wyoming Attorney General | Acting Commissioner |
Wyoming Attorney General's Office | Wyoming Division of Banking |
123 State Capitol Bldg | Herschler Building, 3rd Floor East |
200 W. 24th | 122 West 25th |
Cheyenne, WY 82002 | Cheyenne, WY 82002 |
Tel.:307-777-7847 | Tel.:307-777-6998 |
Fax:307-777-3435 | Fax:307-777-3555 |
BANK OF AMERICA CORPORATION /s/ Neil A. Cotty NEIL A. COTTY Chief Accounting Officer Bank of America Corporation 100 North Tryon Street Charlotte, NC 28202 | BANK OF AMERICA, N.A. /s/ Neil A. Cotty NEIL A. COTTY Chief Accounting Officer Bank of America, N.A. 100 North Tryon Street Charlotte, NC 28202 |
BAC HOME LOANS SERVICING, L.P. (f/k/a COUNTRYWIDE HOME LOANS SERVICING, L.P.) (through its successor-in-interest by de jure merger, BANK OF AMERICA, N.A.) /s/ Neil A. Cotty NEIL A. COTTY Chief Accounting Officer Bank of America, N.A. 100 North Tryon Street Charlotte, NC 28202 | COUNTRYWIDE FINANCIAL CORPORATION /s/ Michael Schloessman Michael Schloessman President and Chief Executive Officer Countrywide Financial Corporation 4500 Park Grenada Calabasas, CA 91302 |
COUNTRYWIDE HOME LOANS, INC. /s/ Michael Schloessman Michael Schloessman President and Chief Executive Officer Countrywide Home Loans, Inc. 4500 Park Grenada Calabasas, CA 91302 | COUNTRYWIDE MORTGAGE VENTURES, L.L.C. /s/ Louis Colatriano LOUIS COLATRIANO President |
I. | Foreclosure and Bankruptcy Information and Documentation. |
A. | Standards for Documents Used in Foreclosure and Bankruptcy Proceedings. |
1. | Servicer shall ensure that factual assertions made in pleadings (complaint, counterclaim, cross-claim, answer or similar pleadings), bankruptcy proofs of claim (including any facts provided by Servicer or based on information provided by the Servicer that are included in any attachment and submitted to establish the truth of such facts) (“POC”), Declarations, affidavits, and sworn statements filed by or on behalf of Servicer in judicial foreclosures or bankruptcy proceedings and notices of default, notices of sale and similar notices submitted by or on behalf of Servicer in non-judicial foreclosures are accurate and complete and are supported by competent and reliable evidence. Before a loan is referred to non-judicial foreclosure, Servicer shall ensure that it has reviewed competent and reliable evidence to substantiate the borrower's default and the right to foreclose, including the borrower's loan status and loan information. |
2. | Servicer shall ensure that affidavits, sworn statements, and Declarations are based on personal knowledge, which may be based on the affiant's review of Servicer's books and records, in accordance with the evidentiary requirements of applicable state or federal law. |
3. | Servicer shall ensure that affidavits, sworn statements and Declarations executed by Servicer's affiants are based on the affiant's review and personal knowledge of the accuracy and completeness of the assertions in the affidavit, sworn statement or Declaration, set out facts that Servicer reasonably believes would be admissible in evidence, and show that the affiant is competent to testify on the matters stated. Affiants shall confirm that they have reviewed competent and reliable evidence to substantiate the borrower's default and the right to foreclose, including the borrower's loan status and required loan ownership information. If an affiant relies on a review of business records for the basis of its affidavit, the referenced business record shall be attached if required by applicable state or federal law or court rule. This provision does not apply to affidavits, sworn statements and Declarations signed by counsel based solely on counsel's personal knowledge (such as affidavits of counsel relating to service of process, extensions of time, or fee petitions) that are not based on a review of Servicer's books and records. Separate affidavits, sworn statements or Declarations shall be used when one affiant does not have requisite personal knowledge of all required information. |
4. | Servicer shall have standards for qualifications, training and supervision of employees. Servicer shall train and supervise employees who regularly prepare or execute affidavits, sworn statements or Declarations. Each such employee shall sign a certification that he or she has received the training. Servicer shall oversee the training completion to ensure each required employee properly and timely completes such training. Servicer shall maintain written records confirming that each such employee has completed the training and the subjects covered by the training. |
5. | Servicer shall review and approve standardized forms of affidavits, standardized forms of sworn statements, and standardized forms of Declarations prepared by or signed by an employee or officer of Servicer, or executed by a third party using a power of attorney on behalf of Servicer, to ensure compliance with applicable law, rules, court procedure, and the terms of this Agreement (“the Agreement”). |
6. | Affidavits, sworn statements and Declarations shall accurately identify the name of the affiant, the entity of which the affiant is an employee, and the affiant's title. |
7. | Affidavits, sworn statements and Declarations, including their notarization, shall fully comply with all applicable state law requirements. |
8. | Affidavits, sworn statements and Declarations shall not contain information that is false or unsubstantiated. This requirement shall not preclude Declarations based on information and belief where so stated. |
9. | Servicer shall assess and ensure that it has an adequate number of employees and that employees have reasonable time to prepare, verify, and execute pleadings, POCs, motions for relief from stay (“MRS”), affidavits, sworn statements and Declarations. |
10. | Servicer shall not pay volume-based or other incentives to employees or third-party providers or trustees that encourage undue haste or lack of due diligence over quality. |
11. | Affiants shall be individuals, not entities, and affidavits, sworn statements and Declarations shall be signed by hand signature of the affiant (except for permitted electronic filings). For such documents, except for permitted electronic filings, signature stamps and any other means of electronic or mechanical signature are prohibited. |
12. | At the time of execution, all information required by a form affidavit, sworn statement or Declaration shall be complete. |
13. | Affiants shall date their signatures on affidavits, sworn statements or Declarations. |
14. | Servicer shall maintain records that identify all notarizations of Servicer documents executed by each notary employed by Servicer. |
15. | Servicer shall not file a POC in a bankruptcy proceeding which, when filed, contained materially inaccurate information. In cases in which such a POC may have been filed, Servicer shall not rely on such POC and shall (a) in active cases, at Servicer's expense, take appropriate action, consistent with state and federal law and court procedure, to substitute such POC with an amended POC as promptly as reasonably practicable (and, in any event, not more than 30 days) after acquiring actual knowledge of such material inaccuracy and provide appropriate written notice to the borrower or borrower's counsel; and (b) in other cases, at Servicer's expense, take appropriate action after acquiring actual knowledge of such material inaccuracy. |
16. | Servicer shall not rely on an affidavit of indebtedness or similar affidavit, sworn statement or Declaration filed in a pending pre-judgment judicial foreclosure or |
17. | In pending post-judgment, pre-sale cases in judicial foreclosure proceedings in which an affidavit or sworn statement was filed which was required to be based on the affiant's review and personal knowledge of its accuracy but may not have been, or that may not have, when so required, been properly notarized, and such affidavit or sworn statement has not been re-filed, Servicer, unless prohibited by state or local law or court rule, will provide written notice to borrower at borrower's address of record or borrower's counsel prior to proceeding with a foreclosure sale or eviction proceeding. |
18. | In all states, Servicer shall send borrowers a statement setting forth facts supporting Servicer's or holder's right to foreclose and containing the information required in paragraphs I.B.6 (items available upon borrower request), I.B.10 (account statement), I.C.2 and I.C.3 (ownership statement), and IV.B.13 (loss mitigation statement) herein. Servicer shall send this statement to the borrower in one or more communications no later than 14 days prior to referral to foreclosure attorney or foreclosure trustee. Servicer shall provide the Monitoring Committee with copies of proposed form statements for review before implementation. |
B. | Requirements for Accuracy and Verification of Borrower's Account Information. |
1. | Servicer shall maintain procedures to ensure accuracy and timely updating of borrower's account information, including posting of payments and imposition of fees. Servicer shall also maintain adequate documentation of borrower account information, which may be in either electronic or paper format. |
2. | For any loan on which interest is calculated based on a daily accrual or daily interest method and as to which any obligor is not a debtor in a bankruptcy proceeding without reaffirmation, Servicer shall promptly accept and apply all borrower payments, including cure payments (where authorized by law or contract), trial modification payments, as well as non-conforming payments, unless such application conflicts with contract provisions or prevailing law. Servicer shall ensure that properly identified payments shall be posted no more than two business days after receipt at the address specified by Servicer and credited as of the date received to borrower's account. Each monthly payment shall be applied in the order specified in the loan documents. |
3. | For any loan on which interest is not calculated based on a daily accrual or daily interest method and as to which any obligor is not a debtor in a bankruptcy proceeding without reaffirmation, Servicer shall promptly accept and apply all borrower conforming payments, including cure payments (where authorized by law or contract), unless such application conflicts with contract provisions or prevailing law. Servicer shall continue to accept trial modification payments consistent with existing payment application practices. Servicer shall ensure that properly identified payments shall be posted no more than two business days after receipt at the address specified by Servicer. Each monthly payment shall be applied in the |
a. | Servicer shall accept and apply at least two non-conforming payments from the borrower, in accordance with this subparagraph, when the payment, whether on its own or when combined with a payment made by another source, comes within $50.00 of the scheduled payment, including principal and interest and, where applicable, taxes and insurance. |
b. | Except for payments described in paragraph I.B.3.a, Servicer may post partial payments to a suspense or unapplied funds account, provided that Servicer (1) discloses to the borrower the existence of and any activity in the suspense or unapplied funds account; (2) credits the borrower's account with a full payment as of the date that the funds in the suspense or unapplied funds account are sufficient to cover such full payment; and (3) applies payments as required by the terms of the loan documents. Servicer shall not take funds from suspense or unapplied funds accounts to pay fees until all unpaid contractual interest, principal, and escrow amounts are paid and brought current or other final disposition of the loan. |
4. | Notwithstanding the provisions above, Servicer shall not be required to accept payments which are insufficient to pay the full balance due after the borrower has been provided written notice that the contract has been declared in default and the remaining payments due under the contract have been accelerated. |
5. | Servicer shall provide to borrowers (other than borrowers in bankruptcy or borrowers who have been referred to or are going through foreclosure) adequate information on monthly billing or other account statements to show in clear and conspicuous language: |
a. | total amount due; |
b. | allocation of payments, including a notation if any payment has been posted to a “suspense or unapplied funds account”; |
c. | unpaid principal; |
d. | fees and charges for the relevant time period; |
e. | current escrow balance; and |
f. | reasons for any payment changes, including an interest rate or escrow account adjustment, no later than 21 days before the new amount is due (except in the case of loans as to which interest accrues daily or the rate changes more frequently than once every 30 days); |
6. | In the statements described in paragraphs I.A.18 and III.B.1.a, Servicer shall notify borrowers that they may receive, upon written request: |
a. | A copy of the borrower's payment history since the borrower was last less than 60 days past due; |
b. | A copy of the borrower's note; |
c. | If Servicer has commenced foreclosure or filed a POC, copies of any assignments of mortgage or deed of trust required to demonstrate the right to foreclose on the borrower's note under applicable state law; and |
d. | The name of the investor that holds the borrower's loan. |
7. | Servicer shall adopt enhanced billing dispute procedures, including for disputes regarding fees. These procedures will include: |
a. | Establishing readily available methods for customers to lodge complaints and pose questions, such as by providing toll-free numbers and accepting disputes by email; |
b. | Assessing and ensuring adequate and competent staff to answer and respond to consumer disputes promptly; |
c. | Establishing a process for dispute escalation; |
d. | Tracking the resolution of complaints; and |
e. | Providing a toll-free number on monthly billing statements. |
8. | Servicer shall take appropriate action to promptly remediate any inaccuracies in borrowers' account information, including: |
a. | Correcting the account information; |
b. | Providing cash refunds or account credits; and |
c. | Correcting inaccurate reports to consumer credit reporting agencies. |
9. | Servicer's systems to record account information shall be periodically independently reviewed for accuracy and completeness by an independent reviewer. |
10. | As indicated in paragraph I.A.18, Servicer shall send the borrower an itemized plain language account summary setting forth each of the following items, to the extent applicable: |
a. | The total amount needed to reinstate or bring the account current, and the amount of the principal obligation under the mortgage; |
b. | The date through which the borrower's obligation is paid; |
c. | The date of the last full payment; |
d. | The current interest rate in effect for the loan (if the rate is effective for at least 30 days); |
e. | The date on which the interest rate may next reset or adjust (unless the rate changes more frequently than once every 30 days); |
f. | The amount of any prepayment fee to be charged, if any; |
g. | A description of any late payment fees; |
h. | A telephone number or electronic mail address that may be used by the obligor to obtain information regarding the mortgage; and |
i. | The names, addresses, telephone numbers, and Internet addresses of one or more counseling agencies or programs approved by HUD (http://www.hud.gov/offices/hsg/sfh/hcc/hcs.cfm). |
11. | In active chapter 13 cases, Servicer shall ensure that: |
a. | prompt and proper application of payments is made on account of (a) pre-petition arrearage amounts and (b) post-petition payment amounts and posting thereof as of the successful consummation of the effective confirmed plan; |
b. | the debtor is treated as being current so long as the debtor is making payments in accordance with the terms of the then-effective confirmed plan and any later effective payment change notices; and |
c. | as of the date of dismissal of a debtor's bankruptcy case, entry of an order granting Servicer relief from the stay, or entry of an order granting the debtor a discharge, there is a reconciliation of payments received with respect to the debtor's obligations during the case and appropriately update the Servicer's systems of record. In connection with such reconciliation, Servicer shall reflect the waiver of any fee, expense or charge pursuant to paragraphs III.B.1.c.i or III.B.1.d. |
C. | Documentation of Note, Holder Status and Chain of Assignment. |
1. | Servicer shall implement processes to ensure that Servicer or the foreclosing entity has a documented enforceable interest in the promissory note and mortgage (or deed of trust) under applicable state law, or is otherwise a proper party to the foreclosure action. |
2. | Servicer shall include a statement in a pleading, affidavit of indebtedness or similar affidavits in court foreclosure proceedings setting forth the basis for asserting that the foreclosing party has the right to foreclose. |
3. | Servicer shall set forth the information establishing the party's right to foreclose as set forth in I.C.2 in a communication to be sent to the borrower as indicated in I.A.18. |
4. | If the original note is lost or otherwise unavailable, Servicer shall comply with applicable law in an attempt to establish ownership of the note and the right to enforcement. Servicer shall ensure good faith efforts to obtain or locate a note lost while in the possession of Servicer or Servicer's agent and shall ensure that Servicer and Servicer's agents who are expected to have possession of notes or assignments of mortgage on behalf of Servicer adopt procedures that are designed to provide assurance that the Servicer or Servicer's agent would locate a note or assignment of mortgage if it is in the possession or control of the Servicer or Servicer's agent, as the case may be. In the event that Servicer prepares or causes to be prepared a lost note or lost assignment affidavit with respect to an original note or assignment lost while in Servicer's control, Servicer shall use good faith efforts to obtain or locate the note or assignment in accordance with its procedures. In the affidavit, sworn statement or other filing documenting the lost note or assignment, Servicer shall recite that Servicer has made a good faith effort in accordance with its procedures for locating the lost note or assignment. |
5. | Servicer shall not intentionally destroy or dispose of original notes that are still in force. |
6. | Servicer shall ensure that mortgage assignments executed by or on behalf of Servicer are executed with appropriate legal authority, accurately reflective of the completed transaction and properly acknowledged. |
D. | Bankruptcy Documents. |
1. | Proofs of Claim (“POC”). Servicer shall ensure that POCs filed on behalf of Servicer are documented in accordance with the United States Bankruptcy Code, the Federal Rules of Bankruptcy Procedure, and any applicable local rule or order (“bankruptcy law”). Unless not permitted by statute or rule, Servicer shall ensure that each POC is documented by attaching: |
a. | The original or a duplicate of the note, including all indorsements; a copy of any mortgage or deed of trust securing the notes (including, if applicable, evidence of recordation in the applicable land records); and copies of any assignments of mortgage or deed of trust required to demonstrate the right to foreclose on the borrower's note under applicable state law (collectively, “Loan Documents”). If the note has been lost or destroyed, a lost note affidavit shall be submitted. |
b. | If, in addition to its principal amount, a claim includes interest, fees, expenses, or other charges incurred before the petition was filed, an itemized statement of the interest, fees, expenses, or charges shall be filed with the proof of claim (including any expenses or charges based on an escrow analysis as of the date of filing) at least in the detail specified in the |
c. | A statement of the amount necessary to cure any default as of the date of the petition shall be filed with the proof of claim. |
d. | If a security interest is claimed in property that is the debtor's principal residence, the attachment prescribed by the appropriate Official Form shall be filed with the proof of claim. |
e. | Servicer shall include a statement in a POC setting forth the basis for asserting that the applicable party has the right to foreclose. |
f. | The POC shall be signed (either by hand or by appropriate electronic signature) by the responsible person under penalty of perjury after reasonable investigation, stating that the information set forth in the POC is true and correct to the best of such responsible person's knowledge, information, and reasonable belief, and clearly identify the responsible person's employer and position or title with the employer. |
2. | Motions for Relief from Stay (“MRS”). Unless not permitted by bankruptcy law, Servicer shall ensure that each MRS in a chapter 13 proceeding is documented by attaching: |
a. | To the extent not previously submitted with a POC, a copy of the Loan Documents; if such documents were previously submitted with a POC, a statement to that effect. If the promissory note has been lost or destroyed, a lost note affidavit shall be submitted; |
b. | To the extent not previously submitted with a POC, Servicer shall include a statement in an MRS setting forth the basis for asserting that the applicable party has the right to foreclose. |
c. | An affidavit, sworn statement or Declaration made by Servicer or based on information provided by Servicer (“MRS affidavit” (which term includes, without limitation, any facts provided by Servicer that are included in any attachment and submitted to establish the truth of such facts) setting forth: |
i. | whether there has been a default in paying pre-petition arrearage or post-petition amounts (an “MRS delinquency”); |
ii. | if there has been such a default, (a) the unpaid principal balance, (b) a description of any default with respect to the pre-petition arrearage, (c) a description of any default with respect to the post-petition amount (including, if applicable, any escrow shortage), (d) the amount of the pre-petition arrearage (if applicable), (e) the post-petition payment amount , (f) for the period since the date of the first post-petition or pre-petition default that is continuing and has not been cured, the date and amount of each payment made (including escrow payments) and the application of each such payment, and (g) the amount, date and description of each fee or charge applied to such pre-petition amount or post-petition amount since the later of the date of the petition or the preceding statement pursuant to paragraph III.B.1.a; and |
iii. | all amounts claimed, including a statement of the amount necessary to cure any default on or about the date of the MRS. |
d. | All other attachments prescribed by statute, rule, or law. |
e. | Servicer shall ensure that any MRS discloses the terms of any trial period or permanent loan modification plan pending at the time of filing of a MRS or |
E. | Quality Assurance Systems Review. |
1. | Servicer shall conduct regular reviews, not less than quarterly, of a statistically valid sample of affidavits, sworn statements, Declarations filed by or on behalf of Servicer in judicial foreclosures or bankruptcy proceedings and notices of default, notices of sale and similar notices submitted in non-judicial foreclosures to ensure that the documents are accurate and comply with prevailing law and this Agreement. |
a. | The reviews shall also verify the accuracy of the statements in affidavits, sworn statements, Declarations and documents used to foreclose in non-judicial foreclosures, the account summary described in paragraph I.B.10, the ownership statement described in paragraph I.C.2, and the loss mitigation statement described in paragraph IV.B.13 by reviewing the underlying information. Servicer shall take appropriate remedial steps if deficiencies are identified, including appropriate remediation in individual cases. |
b. | The reviews shall also verify the accuracy of the statements in affidavits, sworn statements and Declarations submitted in bankruptcy proceedings. Servicer shall take appropriate remedial steps if deficiencies are identified, including appropriate remediation in individual cases. |
2. | The quality assurance steps set forth above shall be conducted by Servicer employees who are separate and independent of employees who prepare foreclosure or bankruptcy affidavits, sworn statements, or other foreclosure or bankruptcy documents. |
3. | Servicer shall conduct regular pre-filing reviews of a statistically valid sample of POCs to ensure that the POCs are accurate and comply with prevailing law and this Agreement. The reviews shall also verify the accuracy of the statements in POCs. Servicer shall take appropriate remedial steps if deficiencies are identified, including appropriate remediation in individual cases. The pre-filing review shall be conducted by Servicer employees who are separate and independent of the persons who prepared the applicable POCs. |
4. | Servicer shall regularly review and assess the adequacy of its internal controls and procedures with respect to its obligations under this Agreement, and implement appropriate procedures to address deficiencies. |
II. | Third-Party Provider Oversight. |
A. | Oversight Duties Applicable to All Third-Party Providers. |
1. | Servicer shall perform appropriate due diligence of Third-Party Providers' qualifications, expertise, capacity, reputation, complaints, information security, document custody practices, business continuity, and financial viability. |
2. | Servicer shall amend agreements, engagement letters, or oversight policies, or enter into new agreements or engagement letters, with Third-Party Providers to require them to comply with Servicer's applicable policies and procedures (which will |
3. | Servicer shall ensure that agreements, contracts or oversight policies provide for adequate oversight, including measures to enforce Third-Party Provider contractual obligations, and to ensure timely action with respect to Third-Party Provider performance failures. |
4. | Servicer shall ensure that foreclosure and bankruptcy counsel and foreclosure trustees have appropriate access to information from Servicer's books and records necessary to perform their duties in preparing pleadings and other documents submitted in foreclosure and bankruptcy proceedings. |
5. | Servicer shall ensure that all information provided by or on behalf of Servicer to Third-Party Providers in connection with providing Servicing Activities is accurate and complete. |
6. | Servicer shall conduct periodic reviews of Third-Party Providers. These reviews shall include: |
a. | A review of a sample of the foreclosure and bankruptcy documents prepared by the Third-Party Provider, to provide for compliance with applicable state and federal law and this Agreement in connection with the preparation of the documents, and the accuracy of the facts contained therein; |
b. | A review of the fees and costs assessed by the Third-Party Provider to provide that only fees and costs that are lawful, reasonable and actually incurred are charged to borrowers and that no portion of any fees or charges incurred by any Third-Party Provider for technology usage, connectivity, or electronic invoice submission is charged as a cost to the borrower; |
c. | A review of the Third-Party Provider's processes to provide for compliance with the Servicer's policies and procedures concerning Servicing Activities; |
d. | A review of the security of original loan documents maintained by the Third-Party Provider; |
e. | A requirement that the Third-Party Provider disclose to the Servicer any imposition of sanctions or professional disciplinary action taken against them for misconduct related to performance of Servicing Activities; and |
f. | An assessment of whether bankruptcy attorneys comply with the best practice of determining whether a borrower has made a payment curing any MRS delinquency within two business days of the scheduled hearing date of the related MRS. |
7. | Servicer shall take appropriate remedial steps if problems are identified through this review or otherwise, including, when appropriate, terminating its relationship with the Third-Party Provider. |
8. | Servicer shall adopt processes for reviewing and appropriately addressing customer complaints it receives about Third-Party Provider services. |
9. | Servicer shall regularly review and assess the adequacy of its internal controls and procedures with respect to its obligations under this Section, and take appropriate remedial steps if deficiencies are identified, including appropriate remediation in individual cases. |
B. | Additional Oversight of Activities by Third-Party Providers. |
1. | Servicer shall require a certification process for law firms (and recertification of existing law firm providers) that provide residential mortgage foreclosure and bankruptcy services for Servicer, on a periodic basis, as qualified to serve as a Third-Party Provider to Servicer, including that attorneys have the experience and competence necessary to perform the services requested. |
2. | Servicer shall ensure that attorneys are licensed to practice in the relevant jurisdiction, have the experience and competence necessary to perform the services requested, and that their services comply with applicable rules, regulations and applicable law (including state law prohibitions on fee splitting). |
3. | Servicer shall ensure that foreclosure and bankruptcy counsel and foreclosure trustees have an appropriate Servicer contact to assist in legal proceedings and to facilitate loss mitigation questions on behalf of the borrower. |
4. | Servicer shall adopt policies requiring Third-Party Providers to maintain records that identify all notarizations of Servicer documents executed by each notary employed by the Third-Party Provider. |
III. | Bankruptcy. |
A. | General. |
1. | The provisions, conditions and obligations imposed herein are intended to be interpreted in accordance with applicable federal, state and local laws, rules and regulations. Nothing herein shall require a Servicer to do anything inconsistent with applicable state or federal law, including the applicable bankruptcy law or a court order in a bankruptcy case. |
2. | Servicer shall ensure that employees who are regularly engaged in servicing mortgage loans as to which the borrower or mortgagor is in bankruptcy receive training specifically addressing bankruptcy issues. |
B. | Chapter 13 Cases. |
1. | In any chapter 13 case, Servicer shall ensure that: |
a. | So long as the debtor is in a chapter 13 case, within 180 days after the date on which the fees, expenses, or charges are incurred, file and serve on the debtor, debtor's counsel, and the trustee a notice in a form consistent with Official Form B10 (Supplement 2) itemizing fees, expenses, or charges (1) that were incurred in connection with the claim after the bankruptcy case was filed, (2) that the holder asserts are recoverable against the debtor or against the debtor's principal residence, and (3) that the holder intends to collect from the debtor. |
b. | Servicer replies within time periods established under bankruptcy law to any notice that the debtor has completed all payments under the plan or otherwise paid in full the amount required to cure any pre-petition default. |
c. | If the Servicer fails to provide information as required by paragraph III.B.1.a with respect to a fee, expense or charge within 180 days of the incurrence of such fee, expense, or charge, then, |
i. | Except for independent charges (“Independent charge”) paid by the Servicer that is either (A) specifically authorized by the borrower or (B) consists of amounts advanced by Servicer in respect of taxes, homeowners association fees, liens or insurance, such fee, expense or charge shall be deemed waived and may not be collected from the borrower. |
ii. | In the case of an Independent charge, the court may, after notice and hearing, take either or both of the following actions: |
(a) | preclude the holder from presenting the omitted information, in any form, as evidence in any contested matter or adversary proceeding in the case, unless the court determines that the failure was substantially justified or is harmless; or |
(b) | award other appropriate relief, including reasonable expenses and attorney's fees caused by the failure. |
d. | If the Servicer fails to provide information as required by paragraphs III.B.1.a or III.B.1.b and bankruptcy law with respect to a fee, expense or charge (other than an Independent Charge) incurred more than 45 days before the date of the reply referred to in paragraph III.B.1.b, then such fee, expense or charge shall be deemed waived and may not be collected from the borrower. |
e. | Servicer shall file and serve on the debtor, debtor's counsel, and the trustee a notice in a form consistent with the current draft of Official Form B10 (Supplement 1) (effective December 2011) of any change in the payment amount, including any change that results from an interest rate or escrow account adjustment, no later than 21 days before a payment in the new amount is due. Servicer shall waive and not collect any late charge or other fees imposed solely as a result of the failure of the borrower timely to make a payment attributable to the failure of Servicer to give such notice timely. |
IV. | Loss Mitigation. |
A. | Loss Mitigation Requirements. |
1. | Servicer shall be required to notify potentially eligible borrowers of currently available loss mitigation options prior to foreclosure referral. Upon the timely receipt of a complete loan modification application, Servicer shall evaluate borrowers for all available loan modification options for which they are eligible prior to referring a borrower to foreclosure and shall facilitate the submission and review of loss mitigation applications. The foregoing notwithstanding, Servicer shall have no obligation to solicit borrowers who are in bankruptcy. |
2. | Servicer shall offer and facilitate loan modifications for borrowers rather than initiate foreclosure when such loan modifications for which they are eligible are net present value (NPV) positive and meet other investor, guarantor, insurer and program requirements. |
3. | Servicer shall allow borrowers enrolled in a trial period plan under prior HAMP guidelines (where borrowers were not pre-qualified) and who made all required trial period payments, but were later denied a permanent modification, the opportunity to reapply for a HAMP or proprietary loan modification using current financial information. |
4. | Servicer shall promptly send a final modification agreement to borrowers who have enrolled in a trial period plan under current HAMP guidelines (or fully underwritten proprietary modification programs with a trial payment period) and who have made the required number of timely trial period payments, where the modification is underwritten prior to the trial period and has received any necessary investor, guarantor or insurer approvals. The borrower shall then be converted by Servicer to a permanent modification upon execution of the final modification documents, |
B. | Dual Track Restricted. |
1. | If a borrower has not already been referred to foreclosure, Servicer shall not refer an eligible borrower's account to foreclosure while the borrower's complete application for any loan modification program is pending if Servicer received (a) a complete loan modification application no later than day 120 of delinquency, or (b) a substantially complete loan modification application (missing only any required documentation of hardship) no later than day 120 of delinquency and Servicer receives any required hardship documentation no later than day 130 of delinquency. Servicer shall not make a referral to foreclosure of an eligible borrower who so provided an application until: |
a. | Servicer determines (after the automatic review in paragraph IV.G.1) that the borrower is not eligible for a loan modification, or |
b. | If borrower does not accept an offered foreclosure prevention alternative within 14 days of the evaluation notice, the earlier of (i) such 14 days, and (ii) borrower's decline of the foreclosure prevention offer. |
2. | If borrower accepts the loan modification resulting from Servicer's evaluation of the complete loan modification application referred to in paragraph IV.B.1 (verbally, in writing (including e-mail responses) or by submitting the first trial modification payment) within 14 days of Servicer's offer of a loan modification, then the Servicer shall delay referral to foreclosure until (a) if the Servicer fails timely to receive the first trial period payment, the last day for timely receiving the first trial period payment, and (b) if the Servicer timely receives the first trial period payment, after the borrower breaches the trial plan. |
3. | If the loan modification requested by a borrower as described in paragraph IV.B.1 is denied, except when otherwise required by federal or state law or investor directives, if borrower is entitled to an appeal under paragraph IV.G.3, Servicer will not proceed to a foreclosure sale until the later of (if applicable): |
a. | expiration of the 30-day appeal period; and |
b. | if the borrower appeals the denial, until the later of (if applicable) (i) if Servicer denies borrower's appeal, 15 days after the letter denying the appeal, (ii) if the Servicer sends borrower a letter granting his or her appeal and offering a loan modification, 14 days after the date of such offer, (iii) if the borrower timely accepts the loan modification offer (verbally, in writing (including e-mail responses), or by making the first trial period payment), after the Servicer fails timely to receive the first trial period payment, and (iv) if the Servicer timely receives the first trial period payment, after the borrower breaches the trial plan. |
4. | If, after an eligible borrower has been referred to foreclosure, the Servicer receives a complete application from the borrower within 30 days after the Post Referral to Foreclosure Solicitation Letter, then while such loan modification application is pending, Servicer shall not move for foreclosure judgment or order of sale (or, if a motion has already been filed, shall take reasonable steps to avoid a ruling on such motion), or seek a foreclosure sale. If Servicer offers the borrower a loan modification, Servicer shall not move for judgment or order of sale, (or, if a motion has already been filed, shall take reasonable steps to avoid a ruling on such motion), or seek a foreclosure sale until the earlier of (a) 14 days after the date of the related offer of a loan modification, and (b) the date the borrower declines the loan modification offer. If the borrower accepts the loan modification offer (verbally, in |
5. | If the loan modification requested by a borrower described in paragraph IV.B.4 is denied, then, except when otherwise required by federal or state law or investor directives, if borrower is entitled to an appeal under paragraph IV.G.3, Servicer will not proceed to a foreclosure sale until the later of (if applicable): |
a. | expiration of the 30-day appeal period; and |
b. | if the borrower appeals the denial, until the later of (if applicable) (i) if Servicer denies borrower's appeal, 15 days after the letter denying the appeal, (ii) if the Servicer sends borrower a letter granting his or her appeal and offering a loan modification, 14 days after the date of such offer, (iii) if the borrower timely accepts the loan modification offer (verbally, in writing (including e-mail responses), or by making the first trial period payment), after the failure of the Servicer timely to receive the first trial period payment, and (iv) if the Servicer timely receives the first trial period payment, after the borrower breaches the trial plan. |
6. | If, after an eligible borrower has been referred to foreclosure, Servicer receives a complete loan modification application more than 30 days after the Post Referral to Foreclosure Solicitation Letter, but more than 37 days before a foreclosure sale is scheduled, then while such loan modification application is pending, Servicer shall not proceed with the foreclosure sale. If Servicer offers a loan modification, then Servicer shall delay the foreclosure sale until the earlier of (i) 14 days after the date of the related offer of loan modification, and (ii) the date the borrower declines the loan modification offer. If the borrower accepts the loan modification offer (verbally, in writing (including e-mail responses) or by submitting the first trial modification payment) within 14 days, Servicer shall delay the foreclosure sale until the later of (if applicable) (A) the failure by the Servicer timely to receive the first trial period payment, and (B) if the Servicer timely receives the first trial period payment, after the borrower breaches the trial plan. |
7. | If the loan modification requested by a borrower described in paragraph IV.B.6 is denied and it is reasonable to believe that more than 90 days remains until a scheduled foreclosure date or the first date on which a sale could reasonably be expected to be scheduled and occur, then, except when otherwise required by federal or state law or investor directives, if borrower is entitled to an appeal under paragraph IV.G.3.a, Servicer will not proceed to a foreclosure sale until the later of (if applicable): |
a. | expiration of the 30-day appeal period; and |
b. | if the borrower appeals the denial, until the later of (if applicable) (i) if Servicer denies borrower's appeal, 15 days after the letter denying the appeal, (ii) if the Servicer sends borrower a letter granting his or her appeal and offering a loan modification, 14 days after the date of such offer, (iii) if the borrower timely accepts the loan modification offer (verbally, in writing (including e-mail responses), or by making the first trial period payment), after the Servicer fails timely to receive the first trial period payment, and (iv) if the Servicer timely receives the first trial period payment, after the |
8. | If, after an eligible borrower has been referred to foreclosure, Servicer receives a complete loan modification application more than 30 days after the Post Referral to Foreclosure Solicitation Letter, but within 37 to 15 days before a foreclosure sale is scheduled, then Servicer shall conduct an expedited review of the borrower and, if the borrower is extended a loan modification offer, Servicer shall postpone any foreclosure sale until the earlier of (a) 14 days after the date of the related evaluation notice, and (b) the date the borrower declines the loan modification offer. If the borrower timely accepts the loan modification offer (either in writing or by submitting the first trial modification payment), Servicer shall delay the foreclosure sale until the later of (if applicable) (A) the failure by the Servicer timely to receive the first trial period payment, and (B) if the Servicer timely receives the first trial period payment, after the borrower breaches the trial plan. |
9. | If, after an eligible borrower has been referred to foreclosure, the Servicer receives a complete loan modification application more than 30 days after the Post Referral to Foreclosure Solicitation Letter and less than 15 days before a scheduled foreclosure sale, Servicer must notify the borrower before the foreclosure sale date as to Servicer's determination (if its review was completed) or inability to complete its review of the loan modification application. If Servicer makes a loan modification offer to the borrower, then Servicer shall postpone any sale until the earlier of (a) 14 days after the date of the related evaluation notice, and (b) the date the borrower declines the loan modification offer. If the borrower timely accepts a loan modification offer (either in writing or by submitting the first trial modification payment), Servicer shall delay the foreclosure sale until the later of (if applicable) (A) the failure by the Servicer timely to receive the first trial period payment, and (B) if the Servicer timely receives the first trial period payment, after the borrower breaches the trial plan. |
10. | For purposes of this section IV.B, Servicer shall not be responsible for failing to obtain a delay in a ruling on a judgment or failing to delay a foreclosure sale if Servicer made a request for such delay, pursuant to any state or local law, court rule or customary practice, and such request was not approved. |
11. | Servicer shall not move to judgment or order of sale or proceed with a foreclosure sale under any of the following circumstances: |
a. | The borrower is in compliance with the terms of a trial loan modification, forbearance, or repayment plan; or |
b. | A short sale or deed-in-lieu of foreclosure has been approved by all parties (including, for example, first lien investor, junior lien holder and mortgage insurer, as applicable), and proof of funds or financing has been provided to Servicer. |
12. | If a foreclosure or trustee's sale is continued (rather than cancelled) to provide time to evaluate loss mitigation options, Servicer shall promptly notify borrower in writing of the new date of sale (without delaying any related foreclosure sale). |
13. | As indicated in paragraph I.A.18, Servicer shall send a statement to the borrower outlining loss mitigation efforts undertaken with respect to the borrower prior to foreclosure referral. If no loss mitigation efforts were offered or undertaken, Servicer shall state whether it contacted or attempted to contact the borrower and, if applicable, why the borrower was ineligible for a loan modification or other loss mitigation options. |
14. | Servicer shall ensure timely and accurate communication of or access to relevant |
C. | Single Point of Contact. |
1. | Servicer shall establish an easily accessible and reliable single point of contact (“SPOC”) for each potentially-eligible first lien mortgage borrower so that the borrower has access to an employee of Servicer to obtain information throughout the loss mitigation, loan modification and foreclosure processes. |
2. | Servicer shall initially identify the SPOC to the borrower promptly after a potentially-eligible borrower requests loss mitigation assistance. Servicer shall provide one or more direct means of communication with the SPOC on loss mitigation-related correspondence with the borrower. Servicer shall promptly provide updated contact information to the borrower if the designated SPOC is reassigned, no longer employed by Servicer, or otherwise not able to act as the primary point of contact. |
a. | Servicer shall ensure that debtors in bankruptcy are assigned to a SPOC specially trained in bankruptcy issues. |
3. | The SPOC shall have primary responsibility for: |
a. | Communicating the options available to the borrower, the actions the borrower must take to be considered for these options and the status of Servicer's evaluation of the borrower for these options; |
b. | Coordinating receipt of all documents associated with loan modification or loss mitigation activities; |
c. | Being knowledgeable about the borrower's situation and current status in the delinquency/imminent default resolution process; and |
d. | Ensuring that a borrower who is not eligible for MHA programs is considered for proprietary or other investor loss mitigation options. |
4. | The SPOC shall, at a minimum, provide the following services to borrowers: |
a. | Contact borrower and introduce himself/herself as the borrower's SPOC; |
b. | Explain programs for which the borrower is eligible; |
c. | Explain the requirements of the programs for which the borrower is eligible; |
d. | Explain program documentation requirements; |
e. | Provide basic information about the status of borrower's account, including pending loan modification applications, other loss mitigation alternatives, and foreclosure activity; |
f. | Notify borrower of missing documents and provide an address or electronic means for submission of documents by borrower in order to complete the loan modification application; |
g. | Communicate Servicer's decision regarding loan modification applications and other loss mitigation alternatives to borrower in writing; |
h. | Assist the borrower in pursuing alternative non-foreclosure options upon denial of a loan modification; |
i. | If a loan modification is approved, call borrower to explain the program; |
j. | Provide information regarding credit counseling where necessary; |
k. | Help to clear for borrower any internal processing requirements; and |
l. | Have access to individuals with the ability to stop foreclosure proceedings when necessary to comply with the MHA Program or this Agreement. |
5. | The SPOC shall remain assigned to borrower's account and available to borrower until such time as Servicer determines in good faith that all loss mitigation options |
6. | Servicer shall ensure that a SPOC can refer and transfer a borrower to an appropriate supervisor upon request of the borrower. |
7. | Servicer shall ensure that relevant records relating to borrower's account are promptly available to the borrower's SPOC, so that the SPOC can timely, adequately and accurately inform the borrower of the current status of loss mitigation, loan modification, and foreclosure activities. |
8. | Servicer shall designate one or more management level employees to be the primary contact for the Attorneys General, state financial regulators, the Executive Office of U.S. Trustee, each regional office of the U.S. Trustee, and federal regulators for communication regarding complaints and inquiries from individual borrowers who are in default and/or have applied for loan modifications. Servicer shall provide a written acknowledgment to all such inquiries within 10 business days. Servicer shall provide a substantive written response to all such inquiries within 30 days. Servicer shall provide relevant loan information to borrower and to Attorneys General, state financial regulators, federal regulators, the Executive Office of the U.S. Trustee, and each U.S. Trustee upon written request and if properly authorized. A written complaint filed by a borrower and forwarded by a state attorney general or financial regulatory agency to Servicer shall be deemed to have proper authorization. |
9. | Servicer shall establish and make available to Chapter 13 trustees a toll-free number staffed by persons trained in bankruptcy to respond to inquiries from Chapter 13 trustees. |
D. | Loss Mitigation Communications with Borrowers. |
1. | Servicer shall commence outreach efforts to communicate loss mitigation options for first lien mortgage loans to all potentially eligible delinquent borrowers (other than those in bankruptcy) beginning on timelines that are in accordance with HAMP borrower solicitation guidelines set forth in the MHA Handbook version 3.2, Chapter II, Section 2.2, regardless of whether the borrower is eligible for a HAMP modification. Servicer shall provide borrowers with notices that include contact information for national or state foreclosure assistance hotlines and state housing counseling resources, as appropriate. The use by Servicer of nothing more than prerecorded automatic messages in loss mitigation communications with borrowers shall not be sufficient in those instances in which it fails to result in contact between the borrower and one of Servicer's loss mitigation specialists. Servicer shall conduct affirmative outreach efforts to inform delinquent second lien borrowers (other than those in bankruptcy) about the availability of payment reduction options. The foregoing notwithstanding, Servicer shall have no obligation to solicit borrowers who are in bankruptcy. |
2. | Servicer shall disclose and provide accurate information to borrowers relating to the qualification process and eligibility factors for loss mitigation programs. |
3. | Servicer shall communicate, at the written request of the borrower, with the borrower's authorized representatives, including housing counselors. Servicer shall communicate with representatives from state attorneys general and financial regulatory agencies acting upon a written complaint filed by the borrower and forwarded by the state attorney general or financial regulatory agency to Servicer. When responding to the borrower regarding such complaint, Servicer shall include |
4. | Servicer shall cease all collection efforts while the borrower (i) is making timely payments under a trial loan modification or (ii) has submitted a complete loan modification application, and a modification decision is pending. Notwithstanding the above, Servicer reserves the right to contact a borrower to gather required loss mitigation documentation or to assist a borrower with performance under a trial loan modification plan. |
5. | Servicer shall consider partnering with third parties, including national chain retailers, and shall consider the use of select bank branches affiliated with Servicer, to set up programs to allow borrowers to copy, fax, scan, transmit by overnight delivery, or mail or email documents to Servicer free of charge. |
6. | Within five business days after referral to foreclosure, the Servicer (including any attorney (or trustee) conducting foreclosure proceedings at the direction of the Servicer) shall send a written communication (“Post Referral to Foreclosure Solicitation Letter”) to the borrower that includes clear language that: |
a. | The Servicer may have sent to the borrower one or more borrower solicitation communications; |
b. | The borrower can still be evaluated for alternatives to foreclosure even if he or she had previously shown no interest; |
c. | The borrower should contact the Servicer to obtain a loss mitigation application package; |
d. | The borrower must submit a loan modification application to the Servicer to request consideration for available foreclosure prevention alternatives; |
e. | Provides the Servicer's contact information for submitting a complete loan modification application, including the Servicer's toll-free number; and |
f. | Unless the form of letter is otherwise specified by investor directive or state law or the borrower is not eligible for an appeal under paragraph IV.G.3.a, states that if the borrower is contemplating or has pending an appeal of an earlier denial of a loan modification application, that he or she may submit a loan modification application in lieu of his or her appeal within 30 days after the Post Referral to Foreclosure Solicitation Letter. |
E. | Development of Loan Portals. |
1. | Servicer shall develop or contract with a third-party vendor to develop an online portal linked to Servicer's primary servicing system where borrowers can check, at no cost, the status of their first lien loan modifications. |
2. | Servicer shall design portals that may, among other things: |
a. | Enable borrowers to submit documents electronically; |
b. | Provide an electronic receipt for any documents submitted; |
c. | Provide information and eligibility factors for proprietary loan modification and other loss mitigation programs; and |
d. | Permit Servicer to communicate with borrowers to satisfy any written communications required to be provided by Servicer, if borrowers submit documents electronically. |
3. | Servicer shall participate in the development and implementation of a neutral, nationwide loan portal system linked to Servicer's primary servicing system, such as Hope LoanPort to enhance communications with housing counselors, including using the technology used for the Borrower Portal, and containing similar features to the Borrower Portal. |
4. | Servicer shall update the status of each pending loan modification on these portals at least every 10 business days and ensure that each portal is updated on such a schedule as to maintain consistency. |
F. | Loan Modification Timelines. |
1. | Servicer shall provide written acknowledgement of the receipt of documentation submitted by the borrower in connection with a first lien loan modification application within 3 business days. In its initial acknowledgment, Servicer shall briefly describe the loan modification process and identify deadlines and expiration dates for submitted documents. |
2. | Servicer shall notify borrower of any known deficiency in borrower's initial submission of information, no later than 5 business days after receipt, including any missing information or documentation required for the loan modification to be considered complete. |
3. | Subject to section IV.B, Servicer shall afford borrower 30 days from the date of Servicer's notification of any missing information or documentation to supplement borrower's submission of information prior to making a determination on whether or not to grant an initial loan modification. |
4. | Servicer shall review the complete first lien loan modification application submitted by borrower and shall determine the disposition of borrower's trial or preliminary loan modification request no later than 30 days after receipt of the complete loan modification application, absent compelling circumstances beyond Servicer's control. |
5. | Servicer shall implement processes to ensure that second lien loan modification requests are evaluated on a timely basis. When a borrower qualifies for a second lien loan modification after a first lien loan modification in accordance with Section 2.c.i of the General Framework for Consumer Relief Provisions, the Servicer of the second lien loan shall (absent compelling circumstances beyond Servicer's control) send loan modification documents to borrower no later than 45 days after the Servicer receives official notification of the successful completion of the related first lien loan modification and the essential terms. |
6. | For all proprietary first lien loan modification programs, Servicer shall allow properly submitted borrower financials to be used for 90 days from the date the documents are received, unless Servicer learns that there has been a material change in circumstances or unless investor requirements mandate a shorter time frame. |
7. | Servicer shall notify borrowers of the final denial of any first lien loan modification request within 10 business days of the denial decision. The notification shall be in the form of the non-approval notice required in paragraph IV.G.1 below. |
G. | Independent Evaluation of First Lien Loan Modification Denials. |
1. | Except when evaluated as provided in paragraphs IV.B.8 or IV.B.9, Servicer's initial denial of an eligible borrower's request for first lien loan modification following the submission of a complete loan modification application shall be subject to an independent evaluation. Such evaluation shall be performed by an independent entity or a different employee who has not been involved with the particular loan modification. |
2. | Denial Notice. |
a. | When a first lien loan modification is denied after independent review, Servicer shall send a written non-approval notice to the borrower identifying the reasons for denial and the factual information considered. The notice |
b. | If the first lien modification is denied because disallowed by investor, Servicer shall disclose in the written non-approval notice the name of the investor and summarize the reasons for investor denial. |
c. | For those cases where a first lien loan modification denial is the result of an NPV calculation, Servicer shall provide in the written non-approval notice the monthly gross income and property value used in the calculation. |
3. | Appeal Process. |
a. | After the automatic review in paragraph IV.G.1 has been completed and Servicer has issued the written non-approval notice, in the circumstances described in the first sentences of paragraphs IV.B.3, IV.B.5 or IV.B.7,except when otherwise required by federal or state law or investor directives, borrowers shall have 30 days to request an appeal and obtain an independent review of the first lien loan modification denial in accordance with the terms of this Agreement. Servicer shall ensure that the borrower has 30 days from the date of the written non-approval notice to provide information as to why Servicer's determination of eligibility for a loan modification was in error, unless the reason for non-approval is (1) ineligible mortgage, (2) ineligible property, (3) offer not accepted by borrower or request withdrawn, or (4) the loan was previously modified. |
b. | For those cases in which the first lien loan modification denial is the result of an NPV calculation, if a borrower disagrees with the property value used by Servicer in the NPV test, the borrower can request that a full appraisal be conducted of the property by an independent licensed appraiser (at borrower expense) consistent with HAMP directive 10-15. Servicer shall comply with the process set forth in HAMP directive 10-15, including using such value in the NPV calculation. |
c. | Servicer shall review the information submitted by borrower and use its best efforts to communicate the disposition of borrower's appeal to borrower no later than 30 days after receipt of the information. |
d. | If Servicer denies borrower's appeal, Servicer's appeal denial letter shall include a description of other available loss mitigation, including short sales and deeds in lieu of foreclosure. |
H. | General Loss Mitigation Requirements. |
1. | Servicer shall maintain adequate staffing and systems for tracking borrower documents and information that are relevant to foreclosure, loss mitigation, and other Servicer operations. Servicer shall make periodic assessments to ensure that its staffing and systems are adequate. |
2. | Servicer shall maintain adequate staffing and caseload limits for SPOCs and employees responsible for handling foreclosure, loss mitigation and related communications with borrowers and housing counselors. Servicer shall make periodic assessments to ensure that its staffing and systems are adequate. |
3. | Servicer shall establish reasonable minimum experience, educational and training requirements for loss mitigation staff. |
4. | Servicer shall document electronically key actions taken on a foreclosure, loan modification, bankruptcy, or other servicing file, including communications with the borrower. |
5. | Servicer shall not adopt compensation arrangements for its employees that encourage foreclosure over loss mitigation alternatives. |
6. | Servicer shall not make inaccurate payment delinquency reports to credit reporting agencies when the borrower is making timely reduced payments pursuant to a trial or other loan modification agreement. Servicer shall provide the borrower, prior to entering into a trial loan modification, with clear and conspicuous written information that adverse credit reporting consequences may result from the borrower making reduced payments during the trial period. |
7. | Where Servicer grants a loan modification, Servicer shall provide borrower with a copy of the fully executed loan modification agreement within 45 days of receipt of the executed copy from the borrower. If the modification is not in writing, Servicer shall provide the borrower with a written summary of its terms, as promptly as possible, within 45 days of the approval of the modification. |
8. | Servicer shall not instruct, advise or recommend that borrowers go into default in order to qualify for loss mitigation relief. |
9. | Servicer shall not discourage borrowers from working or communicating with legitimate non-profit housing counseling services. |
10. | Servicer shall not, in the ordinary course, require a borrower to waive or release claims and defenses as a condition of approval for a loan modification program or other loss mitigation relief. However, nothing herein shall preclude Servicer from requiring a waiver or release of claims and defenses with respect to a loan modification offered in connection with the resolution of a contested claim, when the borrower would not otherwise be qualified for the loan modification under existing Servicer programs. |
11. | Servicer shall not charge borrower an application fee in connection with a request for a loan modification. Servicer shall provide borrower with a pre-paid overnight envelope or pre-paid address label for return of a loan modification application. |
12. | Notwithstanding any other provision of this Agreement, and to minimize the risk of borrowers submitting multiple loss mitigation requests for the purpose of delay, Servicer shall not be obligated to evaluate requests for loss mitigation options from (a) borrowers who have already been evaluated or afforded a fair opportunity to be evaluated consistent with the requirements of HAMP or proprietary modification programs, or (b) borrowers who were evaluated after the date of implementation of this Agreement, consistent with this Agreement, unless there has been a material change in the borrower's financial circumstances that is documented by borrower and submitted to Servicer. |
I. | Proprietary First Lien Loan Modifications. |
1. | Servicer shall make publicly available information on its qualification processes, all required documentation and information necessary for a complete first lien loan modification application, and key eligibility factors for all proprietary loan modifications. |
2. | Servicer shall design proprietary first lien loan modification programs that are intended to produce sustainable modifications according to investor guidelines and previous results. Servicer shall design these programs with the intent of providing affordable payments for borrowers needing longer term or permanent assistance. |
3. | Servicer shall track outcomes and maintain records regarding characteristics and performance of proprietary first lien loan modifications. Servicer shall provide a description of modification waterfalls, eligibility criteria, and modification terms, on a publicly-available website. |
4. | Servicer shall not charge any application or processing fees for proprietary first lien loan modifications. |
J. | Proprietary Second Lien Loan Modifications. |
1. | Servicer shall make publicly available information on its qualification processes, all required documentation and information necessary for a complete second lien modification application. |
2. | Servicer shall design second lien modification programs with the intent of providing affordable payments for borrowers needing longer term or permanent assistance. |
3. | Servicer shall not charge any application or processing fees for second lien modifications. |
4. | When an eligible borrower with a second lien submits all required information for a second lien loan modification and the modification request is denied, Servicer shall promptly send a written non-approval notice to the borrower. |
K. | Short Sales. |
1. | Servicer shall make publicly available information on general requirements for the short sale process. |
2. | Servicer shall consider appropriate monetary incentives to underwater borrowers to facilitate short sale options. |
3. | Servicer shall develop a cooperative short sale process which allows the borrower the opportunity to engage with Servicer to pursue a short sale evaluation prior to putting home on the market. |
4. | Servicer shall send written confirmation of the borrower's first request for a short sale to the borrower or his or her agent within 10 business days of receipt of the request and proper written authorization from the borrower allowing Servicer to communicate with the borrower's agent. The confirmation shall include basic information about the short sale process and Servicer's requirements, and will state clearly and conspicuously that the Servicer may demand a deficiency payment if such deficiency claim is permitted by applicable law. |
5. | Servicer shall send borrower at borrower's address of record or to borrower's agent timely written notice of any missing required documents for consideration of short sale within 30 days of receiving borrower's request for a short sale. |
6. | Servicer shall review the short sale request submitted by borrower and communicate the disposition of borrower's request no later than 30 days after receipt of all required information and third-party consents. |
7. | If the short sale request is accepted, Servicer shall contemporaneously notify the borrower whether Servicer or investor will demand a deficiency payment or related cash contribution and the approximate amount of that deficiency, if such deficiency obligation is permitted by applicable law. If the short sale request is denied, Servicer shall provide reasons for the denial in the written notice. If Servicer waives a deficiency claim, it shall not sell or transfer such claim to a third-party debt collector or debt buyer for collection. |
L. | Loss Mitigation During Bankruptcy. |
1. | Servicer may not deny any loss mitigation option to eligible borrowers on the basis that the borrower is a debtor in bankruptcy so long as borrower and any trustee cooperates in obtaining any appropriate approvals or consents. |
2. | Servicer shall, to the extent reasonable, extend trial period loan modification plans as necessary to accommodate delays in obtaining bankruptcy court approvals or receiving full remittance of debtor's trial period payments that have been made to a |
3. | When the debtor is in compliance with a trial period or permanent loan modification plan, Servicer will not object to confirmation of the debtor's chapter 13 plan, move to dismiss the pending bankruptcy case, or file a MRS solely on the basis that the debtor paid only the amounts due under the trial period or permanent loan modification plan, as opposed to the non-modified mortgage payments. |
M. | Transfer of Servicing of Loans Pending for Permanent Loan Modification. |
1. | Ordinary Transfer of Servicing from Servicer to Successor Servicer or Subservicer. |
a. | At time of transfer or sale, Servicer shall inform successor servicer (including a subservicer) whether a loan modification is pending. |
b. | Any contract for the transfer or sale of servicing rights shall obligate the successor servicer to accept and continue processing pending loan modification requests. |
c. | Any contract for the transfer or sale of servicing rights shall obligate the successor servicer to honor trial and permanent loan modification agreements entered into by prior servicer. |
d. | Any contract for transfer or sale of servicing rights shall designate that borrowers are third party beneficiaries under paragraphs IV.M.1.b and IV.M.1.c, above. |
2. | Transfer of Servicing to Servicer. When Servicer acquires servicing rights from another servicer, Servicer shall ensure that it will accept and continue to process pending loan modification requests from the prior servicer, and that it will honor trial and permanent loan modification agreements entered into by the prior servicer. |
V. | Protections for Military Personnel. |
A. | Servicer shall comply with all applicable provisions of the Servicemembers Civil Relief Act (SCRA), 50 U.S.C. Appx. § 501 et seq., and any applicable state law offering protections to servicemembers, and shall engage an independent consultant whose duties shall include a review of (a) all foreclosures in which an SCRA-eligible servicemember is known to have been an obligor or mortgagor, and (b) a sample of foreclosure actions (which sample will be appropriately enlarged to the extent Servicer identifies material exceptions), from January 1, 2009 to December 31, 2010 to determine whether the foreclosures were in compliance with the SCRA. Servicer shall remediate all monetary damages in compliance with the banking regulator Consent Orders. |
B. | When a borrower states that he or she is or was within the preceding 9 months (or the then applicable statutory period under the SCRA) in active military service or has received and is subject to military orders requiring him or her to commence active military service, Lender shall determine whether the borrower may be eligible for the protections of the SCRA or for the protections of the provisions of paragraph V.F. If Servicer determines the borrower is so eligible, Servicer shall, until Servicer determines that such customer is no longer protected by the SCRA, |
1. | if such borrower is not entitled to a SPOC, route such customers to employees who have been specially trained about the protections of the SCRA to respond to such borrower's questions, or |
2. | if such borrower is entitled to a SPOC, designate as a SPOC for such borrower a person who has been specially trained about the protections of the SCRA (Servicemember SPOC). |
C. | Servicer shall, in addition to any other reviews it may perform to assess eligibility under |
D. | When a servicemember provides written notice requesting protection under the SCRA relating to interest rate relief, but does not provide the documentation required by Section 207(b)(1) of the SCRA (50 USC Appx. § 527(b)(1)), Servicer shall accept, in lieu of the documentation required by Section 207(b)(1) of the SCRA, a letter on official letterhead from the servicemember's commanding officer including a contact telephone number for confirmation: |
1. | Addressed in such a way as to signify that the commanding officer recognizes that the letter will be relied on by creditors of the servicemember (a statement that the letter is intended to be relied upon by the Servicemember's creditors would satisfy this requirement); |
2. | Setting forth the full name (including middle initial, if any), Social Security number and date of birth of the servicemember; |
3. | Setting forth the home address of the servicemember; and |
4. | Setting forth the date of the military orders marking the beginning of the period of military service of the servicemember and, as may be applicable, that the military service of the servicemember is continuing or the date on which the military service of the servicemember ended. |
E. | Servicer shall notify customers who are 45 days delinquent that, if they are a servicemember, (a) they may be entitled to certain protections under the SCRA regarding the servicemember's interest rate and the risk of foreclosure, and (b) counseling for covered servicemembers is available at agencies such as Military OneSource, Armed Forces Legal Assistance, and a HUD-certified housing counselor. Such notice shall include a toll-free number that servicemembers may call to be connected to a person who has been specially trained about the protections of the SCRA to respond to such borrower's questions. Such telephone number shall either connect directly to such a person or afford a caller the ability to identify him- or herself as an eligible servicemember and be routed to such persons. Servicers hereby confirm that they intend to take reasonable steps to ensure the dissemination of such toll-free number to customers who may be eligible servicemembers. |
F. | Irrespective of whether a mortgage obligation was originated before or during the period of a servicemember's military service, if, based on the determination described in the last sentence and subject to Applicable Requirements, a servicemember's military orders (or any letter complying with paragraph V.D), together with any other documentation satisfactory to the Servicer, reflects that the servicemember is (a) eligible for Hostile Fire/Imminent Danger Pay and (b) serving at a location (i) more than 750 miles from the location of the secured property or (ii) outside of the United States, then to the extent consistent with Applicable Requirements, the Servicer shall not sell, foreclose, or seize a property for a breach of an obligation on real property owned by a servicemember that is secured by mortgage, deed of trust, or other security in the nature of a mortgage, during, or within 9 months after, the period in which the servicemember is eligible for Hostile Fire/Imminent Danger Pay, unless either (i) Servicer has obtained a court order granted before such sale, foreclosure, or seizure with a return made and approved by the court, or (ii) if made pursuant to an agreement as provided in section 107 of the SCRA (50 U.S.C. Appx. § 517). Unless a servicemember's eligibility for the protection under this paragraph can be |
G. | Servicer shall not require a servicemember to be delinquent to qualify for a short sale, loan modification, or other loss mitigation relief if the servicemember is suffering financial hardship and is otherwise eligible for such loss mitigation. Subject to Applicable Requirements, for purposes of assessing financial hardship in relation to (i) a short sale or deed in lieu transaction, Servicer will take into account whether the servicemember is, as a result of a permanent change of station order, required to relocate even if such servicemember's income has not been decreased, so long as the servicemember does not have sufficient liquid assets to make his or her monthly mortgage payments, or (ii) a loan modification, Servicer will take into account whether the servicemember is, as a result of his or her under military orders required to relocate to a new duty station at least seventy five mile from his or her residence/secured property or to reside at a location other than the residence/secured property, and accordingly is unable personally to occupy the residence and (a) the residence will continue to be occupied by his or her dependents, or (b) the residence is the only residential property owned by the servicemember. |
H. | Servicer shall not make inaccurate reports to credit reporting agencies when a servicemember, who has not defaulted before relocating under military orders to a new duty station, obtains a short sale, loan modification, or other loss mitigation relief. |
VI. | Restrictions on Servicing Fees. |
A. | General Requirements. |
1. | All default, foreclosure and bankruptcy-related service fees, including third-party fees, collected from the borrower by Servicer shall be bona fide, reasonable in amount, and disclosed in detail to the borrower as provided in paragraphs I.B.10 and VI.B.1. |
B. | Specific Fee Provisions. |
1. | Schedule of Fees. Servicer shall maintain and keep current a schedule of common non-state specific fees or ranges of fees that may be charged to borrowers by or on behalf of Servicer. Servicer shall make this schedule available on its website and to the borrower or borrower's authorized representative upon request. The schedule shall identify each fee, provide a plain language explanation of the fee, and state the maximum amount of the fee or how the fee is calculated or determined. |
2. | Servicer may collect a default-related fee only if the fee is for reasonable and appropriate services actually rendered and one of the following conditions is met: |
a. | the fee is expressly or generally authorized by the loan instruments and not prohibited by law or this Agreement; |
b. | the fee is permitted by law and not prohibited by the loan instruments or this Agreement; or |
c. | the fee is not prohibited by law, this Agreement or the loan instruments and is a reasonable fee for a specific service requested by the borrower that is collected only after clear and conspicuous disclosure of the fee is made available to the borrower. |
3. | Attorneys' Fees. In addition to the limitations in paragraph VI.B.2 above, attorneys' fees charged in connection with a foreclosure action or bankruptcy proceeding shall |
4. | Late Fees. |
a. | Servicer shall not collect any late fee or delinquency charge when the only delinquency is attributable to late fees or delinquency charges assessed on an earlier payment, and the payment is otherwise a full payment for the applicable period and is paid on or before its due date or within any applicable grace period. |
b. | Servicer shall not collect late fees (i) based on an amount greater than the past due amount; (ii) collected from the escrow account or from escrow surplus without the approval of the borrower; or (iii) deducted from any regular payment. |
c. | Servicer shall not collect any late fees for periods during which (i) a complete loan modification application is under consideration; (ii) the borrower is making timely trial modification payments; or (iii) a short sale offer is being evaluated by Servicer. |
C. | Third-Party Fees. |
1. | Servicer shall not impose unnecessary or duplicative property inspection, property preservation or valuation fees on the borrower, including, but not limited to, the following: |
a. | No property preservation fees shall be imposed on eligible borrowers who have a pending application with Servicer for loss mitigation relief or are performing under a loss mitigation program, unless Servicer has a reasonable basis to believe that property preservation is necessary for the maintenance of the property, such as when the property is vacant or listed on a violation notice from a local jurisdiction; |
b. | No property inspection fee shall be imposed on a borrower any more frequently than the timeframes allowed under GSE or HUD guidelines unless Servicer has identified specific circumstances supporting the need for further property inspections; and |
c. | Servicer shall be limited to imposing property valuation fees (e.g., BPO) to once every 12 months, unless other valuations are requested by the borrower to facilitate a short sale or to support a loan modification as outlined in paragraph IV.G.3.a, or required as part of the default or foreclosure valuation process. |
2. | Default, foreclosure and bankruptcy-related services performed by third parties shall be at reasonable market value. |
3. | Servicer shall not collect any fee for default, foreclosure or bankruptcy-related services by an affiliate unless the amount of the fee does not exceed the lesser of (a) any fee limitation or allowable amount for the service under applicable state law, and (b) the market rate for the service. To determine the market rate, Servicer shall obtain annual market reviews of its affiliates' pricing for such default and foreclosure-related services; such market reviews shall be performed by a qualified, objective, independent third-party professional using procedures and standards generally accepted in the industry to yield accurate and reliable results. The independent third-party professional shall determine in its market survey the price |
4. | Servicer shall be prohibited from collecting any unearned fee, or giving or accepting referral fees in relation to third-party default or foreclosure-related services. |
5. | Servicer shall not impose its own mark-ups on Servicer initiated third-party default or foreclosure-related services. |
D. | Certain Bankruptcy Related Fees. |
1. | Servicer must not collect any attorney's fees or other charges with respect to the preparation or submission of a POC or MRS document that is withdrawn or denied, or any amendment thereto that is required, as a result of a substantial misstatement by Servicer of the amount due. |
2. | Servicer shall not collect late fees due to delays in receiving full remittance of debtor's payments, including trial period or permanent modification payments as well as post-petition conduit payments in accordance with 11 U.S.C. § 1322(b)(5), that debtor has timely (as defined by the underlying Chapter 13 plan) made to a chapter 13 trustee. |
VII. | Force-Placed Insurance. |
A. | General Requirements for Force-Placed Insurance. |
1. | Servicer shall not obtain force-placed insurance unless there is a reasonable basis to believe the borrower has failed to comply with the loan contract's requirements to maintain property insurance. For escrowed accounts, Servicer shall continue to advance payments for the homeowner's existing policy, unless the borrower or insurance company cancels the existing policy. |
2. | Servicer shall not be construed as having a reasonable basis for obtaining force-placed insurance unless the requirements of this section VII have been met. |
3. | Servicer shall not impose any charge on any borrower for force-placed insurance with respect to any property securing a federally related mortgage unless: |
a. | Servicer has sent, by first-class mail, a written notice to the borrower containing: |
i. | A reminder of the borrower's obligation to maintain hazard insurance on the property securing the federally related mortgage; |
ii. | A statement that Servicer does not have evidence of insurance coverage of such property; |
iii. | A clear and conspicuous statement of the procedures by which the borrower may demonstrate that the borrower already has insurance coverage; |
iv. | A statement that Servicer may obtain such coverage at the borrower's expense if the borrower does not provide such demonstration of the borrower's existing coverage in a timely manner; |
v. | A statement that the cost of such coverage may be significantly higher than the cost of the homeowner's current coverage; |
vi. | For first lien loans on Servicer's primary servicing system, a statement that, if the borrower desires to maintain his or her |
vii. | A statement, in the case of single interest coverage, that the coverage may only protect the mortgage holder's interest and not the homeowner's interest. |
b. | Servicer has sent, by first-class mail, a second written notice, at least 30 days after the mailing of the notice under paragraph VII.A.3.a that contains all the information described in each clause of such paragraph. |
c. | Servicer has not received from the borrower written confirmation of hazard insurance coverage for the property securing the mortgage by the end of the 15-day period beginning on the date the notice under paragraph VII.A.3.b was sent by Servicer. |
4. | Servicer shall accept any reasonable form of written confirmation from a borrower or the borrower's insurance agent of existing insurance coverage, which shall include the existing insurance policy number along with the identity of, and contact information for, the insurance company or agent. |
5. | Servicer shall not place hazard or wind insurance on a mortgaged property, or require a borrower to obtain or maintain such insurance, in excess of the greater of replacement value, last-known amount of coverage or the outstanding loan balance, unless required by Applicable Requirements, or requested by borrower in writing. |
6. | Within 15 days of the receipt by Servicer of evidence of a borrower's existing insurance coverage, Servicer shall: |
a. | Terminate the force-placed insurance; and |
b. | Refund to the consumer all force-placed insurance premiums paid by the borrower during any period during which the borrower's insurance coverage and the force placed insurance coverage were each in effect, and any related fees charged to the consumer's account with respect to the force-placed insurance during such period. |
7. | Servicer shall make reasonable efforts to work with the borrower to continue or reestablish the existing homeowner's policy if there is a lapse in payment and the borrower's payments are escrowed. |
8. | Any force-placed insurance policy must be purchased for a commercially reasonable price. |
9. | No provision of this section VII shall be construed as prohibiting Servicer from providing simultaneous or concurrent notice of a lack of flood insurance pursuant to section 102(e) of the Flood Disaster Protection Act of 1973. |
VIII. | General Servicer Duties and Prohibitions. |
A. | Measures to Deter Community Blight. |
1. | Servicer shall develop and implement policies and procedures to ensure that REO properties do not become blighted. |
2. | Servicer shall develop and implement policies and procedures to enhance participation and coordination with state and local land bank programs, |
3. | As indicated in I.A.18, Servicer shall (a) inform borrower that if the borrower continues to occupy the property, he or she has responsibility to maintain the property, and an obligation to continue to pay taxes owed, until a sale or other title transfer action occurs; and (b) request that if the borrower wishes to abandon the property, he or she contact Servicer to discuss alternatives to foreclosure under which borrower can surrender the property to Servicer in exchange for compensation. |
4. | When the Servicer makes a determination not to pursue foreclosure action on a property with respect to a first lien mortgage loan, Servicer shall: |
a. | Notify the borrower of Servicer's decision to release the lien and not pursue foreclosure, and inform borrower about his or her right to occupy the property until a sale or other title transfer action occurs; and |
b. | Notify local authorities, such as tax authorities, courts, or code enforcement departments, when Servicer decides to release the lien and not pursue foreclosure. |
B. | Tenants' Rights. |
1. | Servicer shall comply with all applicable state and federal laws governing the rights of tenants living in foreclosed residential properties. |
2. | Servicer shall develop and implement written policies and procedures to ensure compliance with such laws. |
IX. | General Provisions, Definitions, and Implementation. |
A. | Applicable Requirements. |
1. | The servicing standards and any modifications or other actions taken in accordance with the servicing standards are expressly subject to, and shall be interpreted in accordance with, (a) applicable federal, state and local laws, rules and regulations, including, but not limited to, any requirements of the federal banking regulators, (b) the terms of the applicable mortgage loan documents, (c) Section 201 of the Helping Families Save Their Homes Act of 2009, and (d) the terms and provisions of the Servicer Participation Agreement with the Department of Treasury, any servicing agreement, subservicing agreement under which Servicer services for others, special servicing agreement, mortgage or bond insurance policy or related agreement or requirements to which Servicer is a party and by which it or its servicing is bound pertaining to the servicing or ownership of the mortgage loans, including without limitation the requirements, binding directions, or investor guidelines of the applicable investor (such as Fannie Mae or Freddie Mac), mortgage or bond insurer, or credit enhancer (collectively, the “Applicable Requirements”). |
2. | In the event of a conflict between the requirements of the Agreement and the Applicable Requirements with respect to any provision of this Agreement such that the Servicer cannot comply without violating Applicable Requirements or being subject to adverse action, including fines and penalties, Servicer shall document such conflicts and notify the Monitor and the Monitoring Committee that it intends to comply with the Applicable Requirements to the extent necessary to eliminate the conflict. Any associated Metric provided for in the Enforcement Terms will be adjusted accordingly. |
B. | Definitions. |
1. | In each instance in this Agreement in which Servicer is required to ensure adherence to, or undertake to perform certain obligations, it is intended to mean that Servicer shall: (a) authorize and adopt such actions on behalf of Servicer as may be necessary for Servicer to perform such obligations and undertakings; (b) follow up on any material non-compliance with such actions in a timely and appropriate manner; and (c) require corrective action be taken in a timely manner of any material non-compliance with such obligations. |
2. | References to Servicer shall mean Bank of America, N.A. and shall include Servicer's successors and assignees in the event of a sale of all or substantially all of the assets of Servicer or of Servicer's division(s) or major business unit(s) that are engaged as a primary business in customer-facing servicing of residential mortgages on owner-occupied properties. The provisions of this Agreement shall not apply to those divisions or major business units of Servicer that are not engaged as a primary business in customer-facing servicing of residential mortgages on owner-occupied one-to-four family properties on its own behalf or on behalf of investors. |
a. | Federal Payment Settlement Amount. The Escrow Agent shall distribute $911,777,917.00 (the “Federal Payment Settlement Amount”) to the United States in accordance with instructions to be provided by the United States. |
i. | Of the Federal Payment Settlement Amount, $684,090,417.00 shall, following payment of any amounts owed as a result of resolutions pursuant to 31 U.S.C. § 3730(d), and subject to 28 U.S.C. § 527 (Note), be deposited for losses incurred into FHA's Capital Reserve Account, the Veterans Housing Benefit Program Fund (pursuant to 38 U.S.C. § 3722(c)(3), as being incident to housing loan operations) or as otherwise directed by the Department of Veterans Affairs, and as directed by Rural Housing Service, Department of Agriculture, in accordance with instructions from the United States. The United States intends that such deposits conform with the Miscellaneous Receipts Act and other law. |
ii. | The Federal Payment Settlement Amount includes resolution of the following qui tam actions: (i) $75,000,000 from the claims in United States ex rel. Lagow v. Countrywide Financial Corp., et al., Civil Action No. CV-09-2040 (E.D.N.Y.); (ii) $45,000,000 from those claims in United States ex rel. Bibby et al. v. JPMorgan Chase et al., No. 2:11-cv-00535-RHL-RJJ (N.D. Ga.) that are expressly released by the United States in this litigation; (iii) $95,000,000 from those claims in United States ex rel. Szymoniak v. [SEALED], Civ No. 0:10-cv-01465 (D.S.C.) and in United States ex rel. Szymoniak v. [SEALED], Civ No. 3:10-cv-575 (W.D.N.C.) that are expressly released by the United States in this litigation; (iv) $6,500,000 from the claims in United States ex rel. Mackler v. Bank of America, N.A., et al., |
b. | State Payment Settlement Amounts. In accordance with written instructions from each State Attorney General, the Escrow Agent shall distribute cash payments in the total amounts set forth in the attached Exhibit B-1. |
i. | Each State Attorney General shall designate the uses of the funds set forth in the attached Exhibit B-1. To the extent practicable, such funds shall be used for purposes intended to avoid preventable foreclosures, to ameliorate the effects of the foreclosure crisis, to enhance law enforcement efforts to prevent and prosecute financial fraud, or unfair or deceptive acts or practices and to compensate the States for costs resulting from the alleged unlawful conduct of the Defendants. Such permissible purposes for allocation of the funds include, but are not limited to, supplementing the amounts paid to state homeowners under the Borrower Payment Fund, funding for housing counselors, state and local foreclosure assistance hotlines, state and local foreclosure mediation programs, legal assistance, housing remediation and anti-blight projects, funding for training and staffing of financial fraud or consumer protection enforcement efforts, and civil penalties. Accordingly, each Attorney General has set forth general instructions for the funds in the |
ii. | No more than ten percent of the aggregate amount paid to the State Parties under this paragraph 1(b) may be designated as a civil penalty, fine, or similar payment. The remainder of the payments is intended to remediate the harms to the States and their communities resulting from the alleged unlawful conduct of the Defendant and to facilitate the implementation of the Borrower Payment Fund and consumer relief. |
a. | In accordance with written instructions from the State members of the Monitoring Committee, the Escrow Agent shall make available $1,489,813,925.00 to the Administrator to provide cash payments to borrowers whose homes were finally sold or taken in foreclosure between and including January 1, 2008 and December 31, 2011; who submit claims arising from the Covered Conduct; and who otherwise meet criteria set forth by the State members of the Monitoring Committee. Any amounts made available hereunder remain a part of the Qualified Settlement Fund until distributed to borrowers and shall be administered in accordance with the terms set forth in Exhibit C. |
b. | In accordance with written instructions from the State members of the Monitoring Committee, the Escrow Agent shall distribute $15,000,000.00 to the National Association of Attorneys General (NAAG) to create and administer the “Financial Services and Consumer Protection Enforcement, Education and Training Fund.” Such Fund shall be used to pay for expenses and training relating to the investigation and prosecution of cases involving fraud, unfair and deceptive acts and practices, and other illegal conduct related to financial services or state consumer protection laws. |
c. | In accordance with written instructions from the State members of the Monitoring Committee, the Escrow Agent shall distribute a total of $10,000,000.00 to the members of the Executive Committee and the Ameriquest Financial Services Fund (“AMFSF”) for reimbursement of costs and attorneys fees incurred during the investigation of this case and the settlement negotiations and for subsequent expenditures as authorized by each Attorney General. Such payments shall be made as designated by the Iowa Attorney General as the Chairman of the Executive Committee, and shall be made to the State Attorneys General of Arizona, California, Colorado, Connecticut, Delaware, Florida, Illinois, Iowa, Massachusetts, North Carolina, Ohio, Tennessee, Texas, and Washington and the Maryland Department of Labor, Licensing and Regulation and the Ameriquest Financial Services Fund. The authorized representatives of each state attorney general, the Maryland Department of Labor, Licensing and Regulation and the AMFSF will provide a letter to the Escrow Agent directing how each separate payment should be made. |
d. | In accordance with written instructions from the State members of the Monitoring Committee, the Escrow Agent shall distribute $65,000,000.00 to the Conference of State Bank Supervisors (CSBS). CSBS shall use $15,000,000 to establish the “State |
3. | Any interest earned on funds held by the Escrow Agent may be used, at the discretion of the State members of the Monitoring Committee, to pay the costs and expenses of the escrow or the costs and expenses of administration, including taxes, or for any other housing related purpose. |
4. | Notwithstanding any implication to the contrary in any of the provisions of Exhibit B-2, all instructions therein shall be subject to the provisions of paragraph 1.b(i) and 1.b(ii) of this Exhibit B. If and to the extent any amounts are paid into a fund or escrow account established by a State Party that is not an integral part of the government of such State, it is intended that such fund or account be deemed a Qualified Settlement Fund within the meaning of Treasury Regulation Section 1.468B-1 of the U.S. Internal Revenue Code of 1986, as amended. To the extent that any state designates any payments hereunder as a civil penalty, such state shall provide the Defendant(s), upon request, such information as is reasonably necessary for tax reporting purposes with respect to such civil penalty. |
STATE | DOLLAR ALLOCATION | STATE | DOLLAR ALLOCATION | |
AK | $3,286,839 | MS | $13,580,374 | |
AL | $25,305,692 | MT | $4,858,276 | |
AR | $12,830,241 | NC | $60,852,159 | |
AZ | $97,784,204 | ND | $1,947,666 | |
CA | $410,576,996 | NE | $8,422,528 | |
CO | $50,170,188 | NH | $9,575,447 | |
CT | $26,102,142 | NJ | $72,110,727 | |
DC | $4,433,081 | NM | $11,174,579 | |
DE | $7,913,923 | NV | $57,368,430 | |
FL | $334,073,974 | NY | $107,642,490 | |
GA | $99,365,105 | OH | $92,783,033 | |
HI | $7,911,883 | OR | $29,253,190 | |
IA | $14,651,922 | PA | $66,527,978 | |
ID | $13,305,209 | RI | $8,500,755 | |
IL | $105,806,405 | SC | $31,344,349 | |
IN | $43,803,419 | SD | $2,886,824 | |
KS | $13,778,401 | TN | $41,207,810 | |
KY | $19,198,220 | TX | $134,628,489 | |
LA | $21,741,560 | UT | $21,951,641 | |
MA | $44,450,668 | VA | $66,525,233 | |
MD | $59,697,470 | VT | $2,552,240 | |
ME | $6,907,023 | WA | $54,242,749 | |
MI | $97,209,465 | WI | $30,191,806 | |
MN | $41,536,169 | WV | $5,748,915 | |
MO | $39,583,212 | WY | $2,614,515 |
1. | To the Arkansas Development Finance Authority to fund programs that provide to Arkansas residents down payment assistance, financial literacy and mortgage and foreclosure counseling ,tax credit assistance, rental assistance, low-interest financing, land acquisition, new construction, rehabilitation construction, and reconstruction, the sum of Nine Million dollars ($9,000,000.00); |
2. | To the Arkansas Access to Justice Commission to provide equal access to justice to Arkansas residents affected by the mortgage and foreclosure crisis, the sum of Two Million dollars ($2,000,000.00); |
3. | To the University of Arkansas School of Law to support its legal aid clinic, which provides legal representation to low-income Arkansans, the sum of Five Hundred Thousand dollars ($500,000.00); |
4. | To the University of Arkansas at Little Rock School of Law to support its legal aid clinic, which provides legal representation to low-income Arkansans, the sum of Five Hundred Thousand dollars ($500,000.00); |
a) | Ten percent of the payment shall be paid as a civil penalty and deposited in the Unfair Competition Law Fund; |
b) | The remainder shall be paid and deposited into a Special Deposit Fund created for the following purposes: for the administration of the terms of this Consent Judgment; monitoring compliance with the terms of this Consent Judgment and enforcing the terms of this Consent Judgment; assisting in the implementation of the relief programs and servicing standards as described in this |
a. | Consumer protection services and unfair and deceptive acts and practices investigations, enforcement, litigation, training, outreach, education, and related purposes. |
b. | Homeowner protection services, investigations, enforcement, litigation, training, outreach, education, and related purposes regarding mortgage lending and foreclosures. |
c. | Financial fraud protection services, investigations, enforcement, litigation, training, outreach, education, and related purposes. |
d. | Education and training of counselors, facilitators, attorneys, investigators, and other stakeholders |
a. | Homeowner Protection Unit Fund |
b. | Consumer Fees and Settlements Fund |
c. | Identity Theft Unit Fund |
d. | Real Estate Appraiser Licensing Fund |
e. | Telephone Solicitation Fund |
f. | Consumer Assistance Program Fund |
a. | Housing counseling, foreclosure prevention, legal assistance, foreclosure mediation, victim assistance, and related purposes. |
b. | Settlement conferences, court facilitator services, and related purposes. |
c. | Land banks and related purposes. |
d. | Homeowner and renter energy assistance programs such as the Lower Income Hoosier Energy Assistance Program, with priority given to homeowners. |
e. | Workforce and job training programs to assist unemployed and underemployed state residents in increasing income to avoid foreclosure and obtain affordable housing. |
f. | Neighborhood stabilization programs and community blight remediation programs. |
g. | Law enforcement efforts and programs to prevent and address financial, consumer, mortgage lending, and mortgage foreclosure fraud. |
h. | Foreclosure prevention and assistance programs for military service members and veterans. |
1) | Purposes intended to avoid preventable foreclosures, to ameliorate the effects of the foreclosure crisis, to enhance law enforcement efforts to prevent and prosecute financial fraud and unfair or deceptive acts or practices, and to compensate the State of Iowa for costs resulting from the alleged unlawful conduct of the Defendant. Such permissible purposes for allocation of the funds further include, but are not limited to, supplementing the amounts paid to homeowners under the Borrower Payment Fund, funding for housing counselors, state and local foreclosure assistance hotlines, state and local foreclosure mediation programs, legal assistance, housing remediation and anti-blight projects, funding for training and staffing of financial fraud or consumer protection enforcement efforts, and civil penalties. |
2) | Investigative and administrative costs in connection with the matters addressed herein, including costs incurred before and after the signing of this Consent Judgment. |
3) | Public education relating to consumer fraud, mortgage, housing and financial issues and for enforcement of Iowa Code section 714.16, as referenced in Iowa Code section 714.16A. |
4) | Any other lawful purpose. |
i) | $5,048,220 in agency restricted funds to directly compensate the Office of the Attorney General for the reasonable costs of investigation and litigation of the alleged unlawful conduct of the |
ii) | $14,150,000 to be distributed at the express direction of the Attorney General to agencies, organizations or entities to avoid preventable foreclosures, to ameliorate the effects of the foreclosure crisis, to enhance law enforcement efforts to prevent and prosecute financial fraud or unfair or deceptive acts or practices, to address the collateral consequences of such conduct, and to compensate the Commonwealth for costs resulting from the alleged unlawful conduct of the Defendants, including, but not limited to, the following: |
a. | The Kentucky Housing Corporation, for purposes including, but not limited to, mortgage assistance to Kentucky homeowners, down payments and/or closing costs assistance for qualifying homebuyers, state and local foreclosure prevention and mediation programs, housing rehabilitation and anti-blight projects; |
b. | The Kentucky Homeownership Protection Center, to provide homeownership and mortgage-related credit counseling to Kentucky consumers; |
c. | The four federally-funded civil legal aid service organizations within the Commonwealth, to provide housing-related legal assistance to low income consumers; |
d. | The Commonwealth's Unified Prosecutorial System (“UPS”), to support and sustain new and ongoing investigations and prosecutions relating to the foreclosure crisis and consequential criminal conduct plaguing local communities throughout the Commonwealth; |
e. | The Commonwealth's Department of Financial Institutions ("DFI"), to assist in regulatory and educational efforts targeting financial services institutions subject to DFI's jurisdictional oversight, and consumers purchasing products and services from such institutions; |
f. | The Commonwealth's Department of Public Health, to support and maintain consumer safety and injury prevention programs, including but not limited to, lead abatement programs affecting low income individuals or communities; and |
g. | Within the discretion of the Attorney General, any other organization or entity substantially able to implement, manage, develop or support any program consistent with the aims of this settlement. |
a) | $4.4 million shall be paid as a civil penalty pursuant to G.L. c. 93A, § 4; |
b) | $1.0 million shall be paid as costs and attorneys fees pursuant to G.L. c. 93A, § 4; |
c) | $1.5 million shall be used for the administration of the terms of this Consent Judgment, monitoring compliance with the terms of this Consent Judgment and enforcing the terms of this Consent Judgment, assisting in the implementation of the relief programs and servicing standards as described in this Consent Judgment, and supporting the Attorney General's continuing investigation into misconduct in the origination, servicing, and securitization of residential mortgage loans; and |
d) | the remainder of the Payment shall be used to establish the Consumer and Community Foreclosure Relief Fund (“the Fund”) which shall be used, in the sole discretion of the Attorney General, to fund or assist in funding programs intended to avoid preventable foreclosures, mitigate the effects of foreclosures on borrowers and communities, provide compensation to borrowers, other persons and communities arising out of alleged unfair or deceptive acts or practices that gave rise to the Consent Decree, and/or enhance law enforcement efforts to prevent and prosecute financial fraud or unfair or deceptive acts or practices. The Fund may further be used to provide consumer education, outreach, local consumer aid funds, consumer protection enforcement funds, and public protection funds or for other uses permitted by state law. |
a. | $38,583,212 to the State of Missouri Office of the Attorney General and |
b. | $1,000,000 to the state of Missouri Office of the Attorney General to the credit of the Merchandising Practices Revolving Fund for advocacy of consumers impacted by the practices addressed in this Consent Judgment, for the investigation and prosecution of persons involved in unfair, deceptive and fraudulent practices related to financial services, and for such other purposes as authorized by law. |
• | $5.74 million to be allocated as civil penalties payable to the Civil Penalty and Forfeiture Fund pursuant to N.C. Gen. Stat. § 115C-457.2 and Article 9, Section 7 of the North Carolina Constitution; |
• | $30.60 million to the North Carolina Housing Finance Agency for distribution as follows: (a) $19.12 million to be allocated to housing counseling providers to ensure that North Carolina homeowners receive the benefits due under this Consent Judgment, and to ensure the availability of homeownership and foreclosure prevention counseling services in North Carolina; (b) $11.47 million to be allocated to legal services providers in North Carolina for legal representation and assistance to North Carolinians in foreclosure or other housing or lending-related matters; |
• | $6.69 million to the Conference of District Attorneys of the North Carolina Administrative Office of the Courts to administer a program of grants among the prosecutorial districts in North Carolina for the purpose of expanding prosecution of lending and financial crimes, and expanding prosecution and investigative abilities in those areas, and obtaining training relating to lending and financial crimes; |
• | $2.87 million to the North Carolina State Bureau of Investigation to expand its accounting and financial investigative ability and its expertise to investigate financial and lending crimes; |
• | $4.78 million to the North Carolina Department of Justice to enable its Consumer Protection Division to hire attorneys, investigators, financial accountants and other specialists and staff as needed in order to increase its efforts to investigate and pursue cases related to financial fraud and unfair or deceptive trade practices in mortgage lending and financial services, and to assure public awareness of consumers' eligibility for relief under the Consent Judgment and address consumer need for information; |
• | $8.6 million to the general fund of the State of North Carolina as compensation for costs and economic losses sustained by the State due to mortgage fraud and foreclosure misconduct. (It is anticipated that an additional $1 million will be paid to the general fund of the State of North Carolina in the form of attorneys fees.) |
1. | $90,783,033.00 in the Attorney General Court Order Fund pursuant to section 109.111 of the Ohio Revised Code. The funds shall be transferred, distributed, disbursed, or allocated for the purposes described in Paragraph 1(b)(i) of Exhibit B of the Consent Judgment, including the costs of the Ohio Attorney General in administering this settlement and fund. Interest or other income earned on this account shall also be transferred, distributed, disbursed, or allocated for the purposes described in Paragraph 1(b)(i) of Exhibit B of the Consent Judgment and for the costs of the Ohio Attorney General in administering this settlement and fund. |
2. | $2,000,000.00 shall be placed in the Consumer Protection Enforcement Fund created pursuant to section 1345.51 of the Ohio Revised Code. The funds shall be used for the purposes described in section 1345.51. |
(a) | Four Million Dollars ($4,000,000) shall be deposited into the Oregon Department of Justice Operating Account established pursuant to ORS 180.180. |
(b) | Twenty-Five Million Two Hundred Fifty-Three Thousand One Hundred Ninety Dollars ($25,253,190) shall be deposited into the General Fund with a recommendation to the Oregon Legislative Assembly that such funds be used for housing and foreclosure relief and mitigation as set forth in this Consent Judgment. |
A. | Ten Million Dollars ($10,000,000.00) for civil penalties pursuant to Tex. Bus. & Com. Code §17.47(c) paid to the State of Texas for deposit to the judicial fund pursuant to Texas Government Code §402.007; |
1. | Ten percent will be designated as a civil penalty. |
2. | No more than $5 million will be used to compensate the State for its costs and fees to date, for costs of monitoring and enforcing the terms of the settlement, and for enforcing RCW 19.86, the Consumer Protection Act. |
3. | The remaining amount will be used for purposes intended to avoid preventable foreclosures or ameliorate the effects of the foreclosure crisis. As permitted by the Consent Judgment, such uses may include |
a. | supplementing the amounts paid to state homeowners under the Borrower Payment Fund; |
b. | funding for housing counselors; |
c. | funding for state and local foreclosure assistance hotlines; |
d. | funding for state and local foreclosure mediation programs; |
e. | funding for civil legal assistance; or |
f. | funding for housing remediation and anti-blight projects. |
1. | First Lien Mortgage Modifications |
a. | Servicer will receive credit under Table 1, Section 1, for first-lien mortgage loan modifications made in accordance with the guidelines set forth in this Section 1. |
b. | First liens on occupied1 Properties with an unpaid principal balance (“UPB”) prior to capitalization at or below the highest GSE conforming loan limit cap as of January 1, 2010 shall constitute at least 85% of the eligible credits for first liens (the “Applicable Limits”). |
c. | Eligible borrowers must be at least 30 days delinquent or otherwise qualify as being at imminent risk of default due to borrower's financial situation. |
d. | Eligible borrowers' pre-modification loan-to-value ratio (“LTV”) is greater than 100%. |
e. | Post-modification payment should target a debt-to-income ratio (“DTI”)2 of 31% (or an affordability measurement consistent with HAMP guidelines) and a modified LTV3 of no greater than 120%, provided that eligible borrowers receive a modification that meets the following terms: |
i. | Payment of principal and interest must be reduced by at least 10%. |
ii. | Where LTV exceeds 120% at a DTI of 31%, principal shall be reduced to a LTV of 120%, subject to a minimum DTI of 25% (which minimum may be waived by Servicer at Servicer's sole |
* | If a Servicer holds a mortgage loan but does not service or control the servicing rights for such loan (either through its own servicing operations or a subservicer), then no credit shall be granted to that Servicer for consumer relief and refinancing activities related to that loan. |
1. | Servicer may rely on a borrower's statement, at the time of the modification evaluation, that a Property is occupied or that the borrower intends to rent or re-occupy the property. |
2. | Consistent with HAMP, DTI is based on first-lien mortgage debt only. For non-owner-occupied properties, Servicer shall consider other appropriate measures of affordability. |
3. | For the purposes of these guidelines, LTV may be determined in accordance with HAMP PRA. |
f. | DTI requirements may be waived for first lien mortgages that are 180 days or more delinquent as long as payment of principal and interest is reduced by at least 20% and LTV is reduced to at least 120%. |
g. | Servicer shall also be entitled to credit for any amounts of principal reduction which lower LTV below 120%. |
h. | When Servicer reduces principal on a first lien mortgage via its proprietary modification process, and a Participating Servicer owns the second lien mortgage, the second lien shall be modified by the second lien owning Participating Servicer in accordance with Section 2.c.i below, provided that any Participating Servicer other than the five largest servicers shall be given a reasonable amount of time, as determined by the Monitor, after that Participating Servicer's Start Date to make system changes necessary to participate in and implement this requirement. Credit for such second lien mortgage write-downs shall be credited in accordance with the second lien percentages and cap described in Table 1, Section 2. |
i. | In the event that, in the first 6 months after Servicer's Start Date (as defined below), Servicer temporarily provides forbearance or conditional forgiveness to an eligible borrower as the Servicer ramps up use of principal reduction, Servicer shall receive credit for principal reduction on such modifications provided that (i) Servicer may not receive credit for both the forbearance and the subsequent principal reduction and (ii) Servicer will only receive the credit for the principal reduction once the principal is actually forgiven in accordance with these Consumer Relief Requirements and Table 1. |
j. | Eligible modifications include any modification that is made on or after Servicer's Start Date, including: |
i. | Write-offs made to allow for refinancing under the FHA Short Refinance Program; |
ii. | Modifications under the Making Home Affordable Program (including the Home Affordable Modification Program (“HAMP”) Tier 1 or Tier 2) or the Housing Finance Agency Hardest Hit Fund (“HFA Hardest Hit Fund”) (or any other federal program) where principal is forgiven, except to the extent that state or federal funds paid to Servicer in its capacity as an investor are the source of a Servicer's credit claim. |
iii. | Modifications under other proprietary or other government modification programs, provided that such modifications meet the guidelines set forth herein.4 |
2. | Second Lien Portfolio Modifications |
a. | Servicer is required to adhere to these guidelines in order to receive credit under Table 1, Section 2. |
b. | A write-down of a second lien mortgage will be creditable where such write-down facilitates either (a) a first lien modification that involves an occupied Property for which the borrower is 30 days delinquent or otherwise at imminent risk of default due to the borrower's financial situation; or (b) a second lien modification that involves an occupied Property with a second lien which is at least 30 days delinquent or otherwise at imminent risk of default due to the borrower's financial situation. |
4. | Two examples are hereby provided. Example 1: on a mortgage loan at 175% LTV, when a Servicer (in its capacity as an investor) extinguishes $75 of principal through the HAMP Principal Reduction Alternative (“PRA”) modification in order to bring the LTV down to 100%, if the Servicer receives $28.10 in PRA principal reduction incentive payments from the U.S. Department of the Treasury for that extinguishment, then the Servicer may claim $46.90 of principal reduction for credit under these Consumer Relief Requirements: |
LTV Reduction Band: | HAMP-PRA Incentive Amount Received: | Allowable Settlement Credit: |
175% LTV to 140% LTV | $10.50 (35% LTV * $0.30) | $24.50 ((35% LTV-$10.50) * $1.00) |
140% LTV to 115% LTV | $11.30 (25% LTV * $0.45) | $13.70 ((25% LTV-$11.30) * $1.00) |
115% LTV to 105% LTV | $6.30 (10% LTV * $0.63) | $3.70 ((10% LTV-$6.30) * $1.00) |
105% LTV to 100% LTV | None (no credit below 105% LTV) | $5.00 (5% LTV * $1.00) |
Total: | $28.10 | $46.90 |
LTV Reduction Band: | HAMP-PRA Incentive Amount Received: | Allowable Settlement Credit: |
200% LTV to 175% LTV | $7.50 (25% LTV * $0.30) | $8.80 ((25% LTV-$7.50) * $0.50) |
175% LTV to 140% LTV | $10.50 (35% LTV * $0.30) | $24.50 ((35% LTV-$10.50) * $1.00) |
140% LTV to 115% LTV | $11.30 (25% LTV * $0.45) | $13.70 ((25% LTV-$11.30) * $1.00) |
115% LTV to 105% LTV | $6.30 (10% LTV * $0.63) | $3.70 ((10% LTV-$6.30) * $1.00) |
105% LTV to 100% LTV | None (no credit below 105% LTV) | $5.00 (5% LTV * $1.00) |
Total: | $35.60 | $55.70 |
c. | Required Second Lien Modifications: |
i. | Servicer agrees that it must write down second liens consistent with the following program until its Consumer Relief Requirement credits are fulfilled: |
1. | A write-down of a second lien mortgage will be creditable where a successful first lien modification is completed by a Participating Servicer via a servicer's proprietary, non-HAMP modification process, in accordance with Section 1, with the first lien modification meeting the following criteria: |
a. | Minimum 10% payment reduction (principal and interest); |
b. | Income verified; |
c. | A UPB at or below the Applicable Limits; and |
d. | Post-modification DTI5 between 25% and 31%. |
2. | If a Participating Servicer has completed a successful proprietary first lien modification and the second lien loan amount is greater than $5,000 UPB and the current monthly payment is greater than $100, then: |
a. | Servicer shall extinguish and receive credit in accordance with Table 1, Section 2.iii on any second lien that is greater than 180 days delinquent. |
b. | Otherwise, Servicer shall solve for a second lien payment utilizing the HAMP Second Lien Modification Program (“2MP”) logic used as of January 26, 2012. |
c. | Servicer shall use the following payment waterfall: |
i. | Forgiveness equal to the lesser of (a) achieving 115% combined loan-to-value ratio (“CLTV”) or (b) 30% UPB (subject to minimum forgiveness level); then |
ii. | Reduce rate until the 2MP payment required by 2MP logic as of January 26, 2012; then |
5. | Consistent with HAMP, DTI is based on first-lien mortgage debt only. For non-owner-occupied properties, Servicer shall consider other appropriate measures of affordability. |
iii. | Extend term to “2MP Term” (greater of modified first or remaining second). |
d. | Servicer shall maintain an I/O product option consistent with 2MP protocols. |
d. | Eligible second lien modifications include any modification that is made on or after Servicer's Start Date, including: |
i. | Principal reduction or extinguishments through the Making Home Affordable Program (including 2MP), the FHA Short Refinance Second Lien (“FHA2LP”) Program or the HFA Hardest Hit Fund (or any other federal program), except (to the extent) that state or federal funds are the source of a Servicer's credit claim. |
ii. | Second lien write-downs or extinguishments completed under proprietary modification programs, are eligible, provided that such write-downs or extinguishments meet the guidelines as set forth herein. |
e. | Extinguishing balances of second liens to support the future ability of individuals to become homeowners will be credited based on applicable credits in Table 1. |
3. | Enhanced Borrower Transitional Funds |
4. | Short Sales |
a. | As described in the preceding paragraph, Servicer may receive credit for providing incentive payments for borrowers on or after Servicer's Start Date who are eligible and amenable to accepting such payments in return for a dignified exit from a Property via short sale or similar program. Credit shall be provided in accordance with Table 1, Section 3.i. |
b. | To facilitate such short sales, Servicer may receive credit for extinguishing second liens on or after Servicer's Start Date under Table 1, Section 4. |
c. | Short sales through the Home Affordable Foreclosure Alternatives (HAFA) Program or any HFA Hardest Hit Fund program or proprietary programs closed on or after Servicer's Start Date are eligible. |
d. | Servicer shall be required to extinguish a second lien owned by Servicer behind a successful short sale/deed-in-lieu conducted by a Participating Servicer (provided that any Participating Servicer other than the five largest servicers shall be given a reasonable amount of time, as determined by the Monitor, after their Start Date to make system changes necessary to participate in and implement this requirement) where the first lien is greater than 100% LTV and has a UPB at or below the Applicable Limits, until Servicer's Consumer Relief Requirement credits are fulfilled. The first lien holder would pay to the second lien holder 8% of UPB, subject to a $2,000 floor and an $8,500 ceiling. The second lien holder would then release the note or lien and waive the balance. |
5. | Deficiency Waivers |
a. | Servicer may receive credit for waiving deficiency balances if not eligible for credit under some other provision, subject to the cap provided in the Table 1, Section 5.i. |
b. | Credit for such waivers of any deficiency is only available where Servicer has a valid deficiency claim, meaning where Servicer can evidence to the Monitor that it had the ability to pursue a deficiency against the borrower but waived its right to do so after completion of the foreclosure sale. |
6. | Forbearance for Unemployed Borrowers |
a. | Servicer may receive credit for forgiveness of payment of arrearages on behalf of an unemployed borrower in accordance with Table 1, Section 6.i. |
b. | Servicer may receive credit under Table 1, Section 6.ii., for funds expended to finance principal forbearance solutions for unemployed borrowers as a means of keeping them in their homes until such time as the borrower can resume payments. Credit will only be provided beginning in the 7th month of the forbearance under Table 1, Section 6.ii. |
7. | Anti-Blight Provisions |
a. | Servicer may receive credit for certain anti-blight activities in accordance with and subject to caps contained in Table 1, Section 7. |
b. | Any Property value used to calculate credits for this provision shall have a property evaluation meeting the standards acceptable under the Making Home Affordable programs received within 3 months of the transaction. |
8. | Benefits for Servicemembers |
a. | Short Sales |
i. | Servicer shall, with respect to owned portfolio first liens, provide servicemembers who qualify for SCRA benefits (“Eligible Servicemembers”) a short sale agreement containing a predetermined minimum net proceeds amount (“Minimum Net Proceeds”) that Servicer will accept for short sale transaction upon receipt of the listing agreement and all required third-party approvals. The Minimum Net Proceeds may be expressed as a fixed dollar amount, as a percentage of the current market value of the property, or as a percentage of the list price as approved by Servicer. After providing the Minimum Net Proceeds, Servicer may not increase the minimum net requirements above the Minimum Net Proceeds amount until the initial short sale agreement termination date is reached (not less than 120 calendar days from the date of the initial short sale agreement). Servicer must document subsequent changes to the Minimum Net Proceeds when the short sale agreement is extended. |
ii. | Eligible Servicemembers shall be eligible for this short sale program if: (a) they are an active duty full-time status Eligible Servicemember; (b) the property securing the mortgage is not vacant or condemned; (c) the property securing the mortgage is the Eligible Servicemember's primary residence (or, the property was his or her principal residence immediately before he or she moved pursuant to a Permanent Change of Station (“PCS”) order dated on or after October 1, 2010; (d) the Eligible Servicemember purchased the subject primary residence on or after July 1, 2006 and before December 31, 2008; and (e) the Eligible Servicemember relocates or has relocated from the subject property not more than 12 months prior to the date of the short sale agreement to a new duty station or home port outside a 50-mile radius of the Eligible Servicemember's former duty station or home port under a PCS. Eligible Servicemembers who have relocated may be eligible if the Eligible Servicemember provides documentation that the property was their principal residence prior to relocation or during the 12-month period prior to the date of the short sale agreement. |
b. | Short Sale Waivers |
i. | If an Eligible Servicemember qualifies for a short sale hereunder and sells his or her principal residence in a short sale conducted in accordance with Servicer's then customary short sale process, Servicer shall, in the case of an owned portfolio first lien, waive the additional amount owed by the Eligible Servicemember so long as it is less than $250,000. |
ii. | Servicer shall receive credit under Table 1, Section 4, for mandatory waivers of amounts under this Section 8.b. |
c. | With respect to the refinancing program described in Section 9 below, Servicer shall use reasonable efforts to identify active servicemembers in its owned portfolio who would qualify and to solicit those individuals for the refinancing program. |
9. | Refinancing Program |
a. | Servicer shall create a refinancing program for current borrowers. Servicer shall provide notification to eligible borrowers indicating that they may refinance under the program described herein. The minimum occupied Property eligibility criteria for such a program shall be: |
i. | The program shall apply only to Servicer-owned first lien mortgage loans. |
ii. | Loan must be current with no delinquencies in past 12 months. |
iii. | Fixed rate loans, ARMS, or I/Os are eligible if they have an initial period of 5 years or more. |
iv. | Current LTV is greater than 100%. |
v. | Loans must have been originated prior to January 1, 2009. |
vi. | Loan must not have received any modification in the past 24 months. |
vii. | Loan must have a current interest rate of at least 5.25 % or PMMS + 100 basis points, whichever is greater. |
viii. | The minimum difference between the current interest rate and the offered interest rate under this program must be at least 25 basis points or there must be at least a $100 reduction in monthly payment. |
ix. | Maximum UPB will be an amount at or below the Applicable Limits. |
x. | The following types of loans are excluded from the program eligibility: |
1. | FHA/VA |
2. | Property outside the 50 States, DC, and Puerto Rico |
3. | Loans on Manufactured Homes |
4. | Loans for borrowers who have been in bankruptcy anytime within the prior 24 months |
5. | Loans that have been in foreclosure within the prior 24 months |
b. | The refinancing program shall be made available to all borrowers fitting the minimum eligibility criteria described above in 9.a. Servicer will be free to extend the program to other customers beyond the minimum eligibility criteria provided above and will receive credit under this Agreement for such refinancings, provided that such customers have an LTV of over 80%, and would not have qualified for a refinance under Servicer's generally-available refinance programs as of September 30, 2011. Notwithstanding the foregoing, Servicer shall not be required to solicit or refinance borrowers who do not satisfy the eligibility criteria under 9.a above. In addition, Servicer shall not be required to refinance a loan under circumstances that, in the reasonable judgment of the Servicer, would result in Troubled Debt Restructuring (“TDR”) treatment. A letter to the United States Securities and Exchange Commission regarding TDR treatment, dated November 22, 2011, shall be provided to the Monitor for review. |
c. | The structure of the refinanced loans shall be as follows: |
i. | Servicer may offer refinanced loans with reduced rates either: |
1. | For the life of the loan; |
2. | For loans with current interest rates above 5.25% or PMMS + 100 basis points, whichever is greater, the interest rate may be reduced for 5 years. After the 5 year fixed interest rate period, the rate will return to the preexisting rate subject to a maximum rate increase of 0.5% annually; or |
3. | For loans with an interest rate below 5.25% or PMMS + 100 basis points, whichever is greater, the interest rate may be reduced to obtain at least a 25 basis point interest rate reduction or $100 payment reduction in monthly payment, for a period of 5 years, followed by 0.5% annual interest rate increases with a maximum ending interest rate of 5.25% or PMMS + 100 basis |
ii. | The original term of the loan may be changed. |
iii. | Rate reduction could be done through a modification of the existing loan terms or refinance into a new loan. |
iv. | New term of the loan has to be a fully amortizing product. |
v. | The new interest rate will be capped at 100 basis points over the PMMS rate or 5.25%, whichever is greater, during the initial rate reduction period. |
d. | Banks fees and expenses shall not exceed the amount of fees charged by Banks under the current Home Affordable Refinance Program (“HARP”) guidelines. |
e. | The program shall be credited under these Consumer Relief Requirements as follows: |
i. | Credit will be calculated as the difference between the preexisting interest rate and the offered interest rate times UPB times a multiplier. |
ii. | The multiplier shall be as follows: |
1. | If the new rate applies for the life of the loan, the multiplier shall be 8 for loans with a remaining term greater than 15 years, 6 for loans with a remaining term between 10 and 15 years and 5 for loans with a remaining term less than 10 years. |
2. | If the new rate applies for 5 years, the multiplier shall be 5. |
f. | Additional dollars spent by each Servicer on the refinancing program beyond that Servicer's required commitment shall be credited 25% against that Servicer's first lien principal reduction obligation and 75% against that Servicer's second lien principal reduction obligation, up to the limits set forth in Table 1. |
10. | Timing, Incentives, and Payments |
a. | For the consumer relief and refinancing activities imposed by this Agreement, Servicer shall be entitled to receive credit against Servicer's outstanding settlement commitments for activities taken on or after Servicer's start date, March 1, 2012 (such date, the “Start Date”). |
b. | Servicer shall receive an additional 25% credit against Servicer's outstanding settlement commitments for any first or second lien principal reduction and any amounts credited pursuant to the refinancing program within 12 months of Servicer's Start Date (e.g., a $1.00 credit for Servicer activity would count as $1.25). |
c. | Servicer shall complete 75% of its Consumer Relief Requirement credits within two years of the Servicer's Start Date. |
d. | If Servicer fails to meet the commitment set forth in these Consumer Relief Requirements within three years of Servicer's Start Date, Servicer shall pay an amount equal to 125% of the unmet commitment amount; except that if Servicer fails to meet the two year commitment noted above, and then fails to meet the three year commitment, the Servicer shall pay an amount equal to 140% of the unmet three-year commitment amount; provided, however, that if Servicer must pay any Participating State for failure to meet the obligations of a state-specific commitment to provide Consumer Relief pursuant to the terms of that commitment, then Servicer's obligation to pay under this provision shall be reduced by the amount that such a Participating State would have received under this provision and the Federal portion of the payment attributable to that Participating State. The purpose of the 125% and 140% amounts is to encourage Servicer to meet its commitments set forth in these Consumer Relief Requirements. |
11. | Applicable Requirements |
Menu Item | Credit Towards Settlement | Credit Cap |
Consumer Relief Funds | ||
1. First Lien Mortgage Modification2 | Minimum 30% for First Lien Mods3(which can be reduced by 2.5% of overall consumer relief funds for excess refinancing program credits above the minimum amount required) | |
PORTFOLIO LOANS | ||
i. First lien principal forgiveness modification | LTV </= 175%: $1.00 Write-down=$ 1.00 Credit | |
LTV > 175%: $1.00 Write-down=$0.50 Credit (for only the portion of principal forgiven over 175%) | ||
ii. Forgiveness of forbearance amounts on existing modifications | $1.00 Write-down=$0.40 Credit | Max 12.5% |
1. | Where applicable, the number of days of delinquency will be determined by the number of days a loan is delinquent at the start of the earlier of the first or second lien modification process. For example, if a borrower applies for a first lien principal reduction on February 1, 2012, then any delinquency determination for a later second lien modification made pursuant to the terms of this Agreement will be based on the number of days the second lien was delinquent as of February 1, 2012. |
2. | Credit for all modifications is determined from the date the modification is approved or communicated to the borrower. However, no credits shall be credited unless the payments on the modification are current as of 90 days following the implementation of the modification, including any trial period, except if the failure to make payments on the modification within the 90 day period is due to unemployment or reduced hours, in which case Servicer shall receive credit provided that Servicer has reduced the principal balance on the loan. Eligible Modifications will include any modification that is completed on or after the Start Date, as long as the loan is current 90 days after the modification is implemented. |
3. | All minimum and maximum percentages refer to a percentage of total consumer relief funds. |
Menu Item | Credit Towards Settlement | Credit Cap |
iii. Earned forgiveness over a period of no greater than 3 years - provided consistent with PRA | LTV </= 175%: $1.00 Write-down=$.85 Credit LTV > 175%: $1.00 Write-down=$0.45 Credit (for only the portion of principal forgiven over 175%) | |
SERVICE FOR OTHERS | ||
iv. First lien principal forgiveness modification on investor loans (forgiveness by investor) | $1.00 Write-down=$0.45 Credit | |
v. Earned forgiveness over a period of no greater than 3 years - provided consistent with PRA | LTV </= 175%: $1.00 Write-down=$.40 Credit LTV > 175%: $1.00 Write-down=$0.20 Credit (for only the portion of principal forgiven over 175%) | |
2. Second Lien Portfolio Modifications | Minimum of 60% for 1st and 2nd Lien Mods (which can be reduced by 10% of overall consumer relief funds for excess refinancing program credits above the minimum amounts required) | |
i. Performing Second Liens (0-90 days delinquent) | $1.00 Write-down=$0.90 Credit | |
ii. Seriously Delinquent Second Liens (>90-179 days delinquent) | $1.00 Write-down=$0.50 Credit | |
iii. Non-Performing Second Liens (180 or more days delinquent) | $1.00 Write-down=$0.10 Credit | |
3. Enhanced Borrower Transitional Funds | Max 5% | |
i. Servicer Makes Payment | $1.00 Payment=$1.00 Credit (for the amount over $1,500) | |
ii. Investor Makes Payment (non-GSE) | $1.00 Payment=0.45 Credit (for the amount over the $1,500 average payment established by Fannie Mae and Freddie Mac) |
Menu Item | Credit Towards Settlement | Credit Cap |
4. Short Sales/Deeds in Lieu | ||
i. Servicer makes payment to unrelated 2nd lien holder for release of 2nd lien | $1.00 Payment=$1.00 Credit | |
ii. Servicer forgives deficiency and releases lien on 1st lien Portfolio Loans | $1.00 Write-down=$0.45 Credit | |
iii. Investor forgives deficiency and releases lien on 1st Lien investor loans | $1.00 Write-down=$0.20 Credit | |
iv. Forgiveness of deficiency balance and release of lien on Portfolio Second Liens | ||
Performing Second Liens (0-90 days delinquent) | $1.00 Write-down=$0.90 Credit | |
Seriously Delinquent Second Liens (>90‑179 days delinquent) | $1.00 Write-down=$0.50 Credit | |
Non-Performing Second Liens (180 or more days delinquent) | $1.00 Write-down=$0.10 Credit | |
5. Deficiency Waivers | Max 10% | |
i. Deficiency waived on 1st and 2nd liens loans | $1.00 Write-down=$0.10 Credit | |
6. Forbearance for unemployed homeowners | ||
i. Servicer forgives payment arrearages on behalf of borrower | $1.00 new forgiveness=$ 1.00 Credit | |
ii. Servicer facilitates traditional forbearance program | $1.00 new forbearance=$0.05 Credit | |
7. Anti-Blight Provisions | Max 12% | |
i. Forgiveness of principal associated with a property where Servicer does not pursue foreclosure | $1.00 property value=$0.50 Credit | |
ii. Cash costs paid by Servicer for demolition of property | $1.00 Payment=$1.00 Credit |
Menu Item | Credit Towards Settlement | Credit Cap |
iii. REO properties donated to accepting municipalities or non-profits or to disabled servicemembers or relatives of deceased servicemembers | $1.00 property value=$ 1.00 Credit |
A. | Implementation Timeline. Servicer anticipates that it will phase in the implementation of the Servicing Standards and Mandatory Relief Requirements (i) through (iv), as described in Section C.12, using a grid approach that prioritizes implementation based upon: (i) the importance of the Servicing Standard to the borrower; and (ii) the difficulty of implementing the Servicing Standard. In addition to the Servicing Standards and any Mandatory Relief Requirements that have been implemented upon entry of this Consent Judgment, the periods for implementation will be: (a) within 60 days of entry of this Consent Judgment; (b) within 90 days of entry of this Consent Judgment; and (c) within 180 days of entry of this Consent Judgment. Servicer will agree with the Monitor chosen pursuant to Section C, below, on the timetable in which the Servicing Standards and Mandatory Relief Requirements (i) through (iv) will be implemented. In the event that Servicer, using reasonable efforts, is unable to implement certain of the standards on the specified timetable, Servicer may apply to the Monitor for a reasonable extension of time to implement those standards or requirements. |
B. | Monitoring Committee. A committee comprising representatives of the state Attorneys General, State Financial Regulators, the U.S. Department of Justice, and the U.S. Department of Housing and Urban Development shall monitor Servicer's compliance with this Consent Judgment (the “Monitoring Committee”). The Monitoring Committee may substitute representation, as necessary. Subject to Section F, the Monitoring Committee may share all Monitor Reports, as that term is defined in Section D.2 below, with any releasing party. |
C. | Monitor |
1. | Pursuant to an agreement of the parties, Joseph A. Smith Jr. is appointed to the position of Monitor under this Consent Judgment. If the Monitor is at any time unable to complete his or her duties under this Consent Judgment, Servicer and the Monitoring Committee shall mutually agree upon a replacement in accordance with the process and standards set forth in Section C of this Consent Judgment. |
2. | Such Monitor shall be highly competent and highly respected, with a reputation that will garner public confidence in his or her ability to perform the tasks required under this Consent Judgment. The Monitor shall have the right to employ an accounting firm or firms or other firm(s) with similar capabilities to support the Monitor in carrying out his or her duties under this Consent Judgment. Monitor and Servicer shall agree on the selection of a “Primary Professional Firm,” which must have adequate capacity and resources to perform the work required under this agreement. The Monitor shall also have the right to engage one or more attorneys or other professional persons to represent or assist the Monitor in carrying out the Monitor's duties under this Consent Judgment (each such individual, along with each individual deployed to the engagement by the Primary Professional Firm, shall be defined as a “Professional”). The Monitor and Professionals will collectively possess expertise in the areas of mortgage servicing, loss mitigation, business operations, compliance, internal controls, accounting, and foreclosure and bankruptcy law and practice. The Monitor and Professionals shall at all times act in good faith and with integrity and fairness towards all the Parties. |
3. | The Monitor and Professionals shall not have any prior relationships with the Parties that would undermine public confidence in the objectivity of their work and, subject to Section C.3(e), below, shall not have any conflicts of interest with any Party. |
(a) | The Monitor and Professionals will disclose, and will make a reasonable inquiry to discover, any known current or prior relationships to, or conflicts with, any Party, any Party's holding company, any subsidiaries of the Party or its holding company, directors, officers, and law firms. |
(b) | The Monitor and Professionals shall make a reasonable inquiry to determine whether there are any facts that a reasonable individual would consider likely to create a conflict of interest for the Monitor or Professionals. The Monitor and Professionals shall disclose any conflict of interest with respect to any Party. |
(c) | The duty to disclose a conflict of interest or relationship pursuant to this Section C.3 shall remain ongoing throughout the course of the Monitor's and Professionals' work in connection with this Consent Judgment. |
(d) | All Professionals shall comply with all applicable standards of professional conduct, including ethics rules and rules pertaining to conflicts of interest. |
(e) | To the extent permitted under prevailing professional standards, a Professional's conflict of interest may be waived by written agreement of the Monitor and Servicer. |
(f) | Servicer or the Monitoring Committee may move the Court for an order disqualifying any Professionals on the grounds that such Professional has a conflict of interest that has inhibited or could inhibit the Professional's ability to act in good faith and with integrity and fairness towards all Parties. |
4. | The Monitor must agree not to be retained by any Party, or its successors or assigns, for a period of 2 years after the conclusion of the terms of the engagement. Any Professionals who work on the engagement must agree not to work on behalf of Servicer, or its successor or assigns, for a period of 1 year after the conclusion of the term of the engagement (the “Professional Exclusion Period”). Any Firm that performs work with respect to Servicer on the engagement must agree not to perform work on behalf of Servicer, or its successor or assigns, that consists of advising Servicer on a response to the Monitor's review during the engagement and for a period of six months after the conclusion of the term of the engagement (the “Firm Exclusion Period”). The Professional Exclusion Period and Firm Exclusion Period, and terms of exclusion may be altered on a case-by-case basis upon written agreement of Servicer and the Monitor. The Monitor shall organize the work of any Firms so as to minimize the potential for any appearance of, or actual, conflicts. |
5. | It shall be the responsibility of the Monitor to determine whether Servicer is in compliance with the Servicing Standards and the Mandatory Relief Requirements (as defined in Section C.12) and whether Servicer has satisfied the Consumer Relief Requirements, in accordance with the authorities provided herein and to report his or her findings as provided in Section D.3, below. |
6. | The manner in which the Monitor will carry out his or her compliance responsibilities under this Consent Judgment and, where applicable, the methodologies to be utilized shall be set forth in a work plan agreed upon by Servicer and the Monitor, and not objected to by the Monitoring Committee (the “Work Plan”). |
7. | Servicer will designate an internal quality control group that is independent from the line of business whose performance is being measured (the “Internal Review Group”) to perform compliance reviews each calendar quarter (“Quarter”) in accordance with the terms and conditions of the Work Plan (the “Compliance Reviews”) and satisfaction of the Consumer Relief Requirements after the (A) end of each calendar year (and, in the discretion of the Servicer, any Quarter) and (B) earlier of the Servicer assertion that it has satisfied its obligations thereunder and the third anniversary of the Start Date (the “Satisfaction Review”). For the purposes of this provision, a group that is independent from the line of business shall be one that does not perform operational work on mortgage servicing, and ultimately reports to a Chief Risk Officer, Chief Audit Executive, Chief Compliance Officer, or another employee or manager who has no direct operational responsibility for mortgage servicing. |
8. | The Internal Review Group shall have the appropriate authority, privileges, and knowledge to effectively implement and conduct the reviews and metric assessments contemplated herein and under the terms and conditions of the Work Plan. |
9. | The Internal Review Group shall have personnel skilled at evaluating and validating processes, decisions, and documentation utilized through the implementation of the Servicing Standards. The Internal Review Group may include non-employee consultants or contractors working at Servicer's direction. |
10. | The qualifications and performance of the Internal Review Group will be subject to ongoing review by the Monitor. Servicer will appropriately remediate the reasonable concerns of the Monitor as to the qualifications or performance of the Internal Review Group. |
11. | Servicer's compliance with the Servicing Standards shall be assessed via metrics identified and defined in Schedule E-1 hereto (as supplemented from time to time in accordance with Sections C.12 and C.23, below, the “Metrics”). The threshold error rates for the Metrics are set forth in Schedule E-1 (as supplemented from time to time in accordance with Sections C.12 and C.23, below, the “Threshold Error Rates”). The Internal Review Group shall perform test work to compute the Metrics each Quarter, and report the results of that analysis via the Compliance Reviews. The Internal Review Group shall perform test work to assess the satisfaction of the Consumer Relief Requirements within 45 days after the (A) end of each calendar year (and, in the discretion of the Servicer, any Quarter) and (B) earlier of (i) the end of the Quarter in which Servicer asserts that it has satisfied its obligations under the Consumer Relief Provisions and (ii) the Quarter during which the third anniversary of the Start Date occurs, and report that analysis via the Satisfaction Review. |
12. | In addition to the process provided under Sections C.23 and 24, at any time after the Monitor is selected, the Monitor may add up to three additional Metrics and associated Threshold Error Rates, all of which (a) must be similar to the Metrics and associated Threshold Error Rates contained in Schedule E-1, (b) must relate to material terms of the Servicing Standards, or the following obligations of Servicer: (i) after the Servicer asserts that it has satisfied its obligation to provide a refinancing program under the framework of the Consumer Relief Requirements (“Framework”), to provide notification to eligible borrowers indicating that such borrowers may refinance under the refinancing program described in the Framework, (ii) to make the Refinancing Program available to all borrowers fitting the minimum eligibility criteria described in 9.a of the Framework, (iii) |
13. | Servicer and the Monitor shall reach agreement on the terms of the Work Plan within 90 days of the Monitor's appointment, which time can be extended for good cause by agreement of Servicer and the Monitor. If such Work Plan is not objected to by the Monitoring Committee within 20 days, the Monitor shall proceed to implement the Work Plan. In the event that Servicer and the Monitor cannot agree on the terms of the Work Plan within 90 days or the agreed upon terms are not acceptable to the Monitoring Committee, Servicer and Monitoring Committee or the Monitor shall jointly petition the Court to resolve any disputes. If the Court does not resolve such disputes, then the Parties shall submit all remaining disputes to binding arbitration before a panel of three arbitrators. Each of Servicer and the Monitoring Committee shall appoint one arbitrator, and those two arbitrators shall appoint a third. |
14. | The Work Plan may be modified from time to time by agreement of the Monitor and Servicer. If such amendment to the Work Plan is not objected to by the Monitoring Committee within 20 days, the Monitor shall proceed to implement the amendment to the Work Plan. To the extent possible, the Monitor shall endeavor to apply the Servicing Standards uniformly across all Servicers. |
15. | The following general principles shall provide a framework for the formulation of the Work Plan: |
(a) | The Work Plan will set forth the testing methods and agreed procedures that will be used by the Internal Review Group to perform the test work and compute the Metrics for each Quarter. |
(b) | The Work Plan will set forth the testing methods and agreed procedures that will be used by Servicer to report on its compliance with the Con |