Posted by kevin on June 5, 2012 under Foreclosure Blog | 
To review, a servicer collects the monthly mortgage payments and distributes those payments to the lender, the taxing authority, and the insurance company. It gets a fee for providing this service. Most servicers are affiliated with large banks- too big to fail banks.
The servicer, in many instances, was the original lender or the purchaser from the original lender, who then sold the loans to FANNIE, FREDDIE or a securitized trust.
Since the servicer is involved in the collection and distribution of payments, it is the entity that coordinates foreclosure or bankruptcy activities on the part of the lenders. It was the entity most likely to be involved in robo-signing, issuing questionable certifications or affidavits in foreclosure litigation, and even forging instruments. The AG’s were looking primarily at the servicers, and the AG’s had claims of approximately a trillion dollars or more against these servicers. These AG claims go away based on the settlement. Now, you as a borrower can raise these defenses in a foreclosure action. But you do not have the same clout that a State AG has to pursue litigation. Moreover, you have to deal with state procedural rules which put a time limit on the ability to set aside a judgment based on fraudulent papers. Therefore, your chances of hitting a home run against the servicers are limited.
Imagine if you could get off the hook on your debts by putting up 25 billion to wipe out of trillion dollars of liability. You could pay off a million dollar mortgage for $25,000. How come the government did not give you that deal? It has something to do with a concept known as moral hazard. Many in the banking industry and government think that it sends a bad message to allow people to walk away from their mortgage obligation. Notwithstanding that many got hoodwinked into deals that they could not afford. However, those same people have no problem with bailing out the banks. In other words, a different set of rules apply to the too big to fail banks. Go figure.
Posted by kevin on May 13, 2012 under Foreclosure Blog |
A couple of months ago, we informed you that the various Attorneys General entered into a settlement with the 5 largest servicers over robo-signing and other servicing irregularities. In the next few posts, I want to explain to you the terms of the settlement. However, before we can get into the details, we need to understand the basics. Why was the deal made with servicers and not lenders?
What is a servicer and how does it differ from your lender? It is not always clear. In fact, most borrowers think that their servicer is actually their lender. If you go on the Freddie Mac website, a borrower is advised to contact its lender for details and then in parentheses it says (servicer). So, Freddie Mac is acknowledging the confusion.
A lender is the entity that gives the borrower the money or buys the loan from the original lender. A servicer is an entity that collects your mortgage payments on behalf of the lender and distributes those payments pursuant to the terms of the loan agreements. In the old days (before 1970), the entity that lent you the money actually collected your payments and did the bookkeeping associated with your mortgage loan. So, the lender and the servicer were one and the same.
For purposes of this paper, let’s refer to the lender as a bank. Historically, the bank made a mortgage loan and made its money, primarily, on interest payments. They serviced their own loans; that is, they collected the money, paid the taxes and insurance, performed the paperwork, and dealt with any defaults on the loan by foreclosure or otherwise.
With the advent of Fannie Mae, Freddie Mac, and later private securitizations, however, a marketplace was set up where banks could sell their mortgage loans to investors. By selling their loans, the bank would get most, if not all of its money back, and thereby have money to make more loans. So, instead of making its money primarily from interest payments, banks started to become involved in high volume lending and made the bulk of their money on first mortgages on the fees that it charged to the borrowers. Those fees included application fees, points, credit report fees and the like.
When banks started selling their loans, they quickly noticed that investors who wanted to buy the income stream of the mortgage notes did not necessarily want to collect the payments each month and perform the paperwork. But banks, especially large banks, had the infrastucture already in place to do the servicing. So, what happened? The banks that sold the loans to investors, in some cases, made a deal with the investor to service the loans that it sold- for a fee.
Now to finish off the scenario, many large banks did not sell all their loans. For the most part, large banks retained or held their second mortgages. In this circumstance, the bank acted in the like it did in the old days- it was both lender and servicer.
How did the servicers get involved in the 25 Billion dollar settlement? Well, although foreclosures are supposed to be brought in the name of the lender, the reality is that the servicer is the entity that deals with the defaulted loan. The servicer is the one that calls or writes to the borrower to find out why payments have stopped and whether the loan could be put back on track by modification, forbearance, short sale or the like. In addition, it is the servicer that has all the information necessary to prosecute the foreclosure. So, the servicer usually hires the lawyers, appraisers, real estate people, litigation support companies and the like on the behalf of the lender. And it was the servicer that was involved in all the shenanigans relating to robo-signing, lost notes, improper charges, fraudulent endorsements and more which were being investigated by the various AG’s and led to the 25 billion dollar settlement.
