Loan Buybacks: Causes and Defenses Joseph M. Kolar Clinton
Download
Report
Transcript Loan Buybacks: Causes and Defenses Joseph M. Kolar Clinton
Loan Buybacks: Causes and Defenses
Joseph M. Kolar
Clinton R. Rockwell
Christopher M. Witeck
June 15, 2010
Huge Exposure
Repurchase demands soared in 2009 and early 2010
Most originators affected, both large and small
Demands potentially catastrophic for some originators
Focus on loans sold 2005-2007
Current Threats
GSEs
Private investors
Going Forward
Volume of demands expected to decrease starting in 2011 (as credit
tightened in 2008)
2
Repurchase Demands on the Rise
The pushback from the parties now holding the loans-- namely Fannie Mae
and Freddie Mac -- began in earnest in the second half of 2009. With
delinquencies and foreclosures still running at record highs, there's no sign the
demands will begin to abate this year.
3
Bases for Demands
Representations &Bases
Warranties
For Demands
Language is crucial
Rep often says loan contains “no untrue information”
Agreements generally permit repurchase demand upon borrower fraud
or violation of underwriting guidelines
Misrepresentation of income/employment (SISA, NINA, SIVA)
Misrepresentation of credit/undisclosed debt
Misrepresentation of occupancy
Appraisal fraud
Improper exceptions
Whose underwriting guidelines?
Early Payment Defaults
More difficult to defend
Some breaches permit pool-wide repurchase demands
4
Response to Large Demands
Purchasers have hired vendors to meticulously scrub loan files for
deficiencies
Looking for any purported defect that might justify repurchase demand
Lenders may be exposed to liability for multiple issues
Owners up the chain may seek redress under “assigned” reps
Originators hiring own vendors to re-underwrite loans and investigate for
issues/defenses
Time intensive
Costly (but not as costly as repurchase)
Purchasers often have it wrong
Legal analysis performed
On individual loans
Reasonableness of stated income (salary.com, bankruptcy filings)
Validity of appraisal
Appropriateness of exception
On pool as a whole
5
Seller Defenses
Prompt and timely notice
Purchase agreements generally require “prompt” notice of breaches
or notice within specified number of days
Purchaser’s failure to provide timely notice of breach may give rise to
failure to mitigate damages defense, but purchasers will argue that
not a bar to repurchase demand
Meaningful opportunity to cure
Contracts generally provide time to cure
Refusal to cooperate by the purchaser in curing process (e.g., refusal
to provide servicing files) or initiation of litigation before meaningful
opportunity to cure may violate purchase agreement
Sophisticated Actors
Purchasers knew what they were buying and cannot now claim they
are “shocked” to find borrower fraud
Originators not responsible for market downturn
6
Seller Defenses (Cont’d)
Materiality
Did breach materially and adversely affect the value of the loan?
Requires loan by loan analysis
Sampling pools may be accepted method
Would knowledge of breach have prevented or altered the deal?
Investor’s due diligence
Causation
Borrower-specific alternative causes
Other intervening causes, e.g., general market conditions
Standing
Plaintiff must have purchased and currently own the loans and/or
securities
Validity of assignments
Statute of limitations
Does the clock start upon sale of loan or upon denial of repurchase
demand?
7
Changes in Loan Sale Agreements
Still not a lot of non-GSE activity (other than distressed
asset/scratch and dent sales)
Purchasers exercising leverage:
Changes from repurchase for a breach that “materially and
adversely affects the value of a loan” to a “material breach”
Knowledge clawbacks
No time period requirement to give notice or demand
repurchase
Repurchase price is based on loan balance for unmodified
loan (whether HAMP or otherwise)
Your watch/our watch indemnities
8
GSE Repurchase Issues
GSEs expected to try to obtain $21 billion through repurchases in
2010
In year-end filings, Freddie Mac disclosed that it forced lenders to buy
back $4.1 billion of mortgages in 2009, almost triple the amount in
2008. Fannie Mae did not disclose the amount of its repurchase
demands
Freddie Mac and Fannie Mae have been stepping up their repurchase
requests since being put into conservatorship by the government in
September 2008, as they try to manage the mountain of delinquencies
on their books. But as those requests multiply, it's clear lenders aren't
just rolling over. In its quarterly SEC filing, Freddie said about $4
billion of loan repurchase requests were outstanding as of Dec. 31,
2009, up from $3 billion at the end of 2008. Nearly 30% of those
requests had been outstanding for more than three months
- American Banker, 2/24/10
9
GSE Repurchase Issues (Cont’d)
Increasingly less flexible in demands
More of a short-term view – used to be long-term
business relationships
Personnel turnover and some uncertainty
People you may have dealt with in years past are not
there anymore
Need to strengthen balance sheets
More common now for outside litigators to be involved
10
GSE Repurchase Issues (Cont’d)
Under pressure to put back non-performing loans
Using retro-appraisals
Fannie Mae Guide permits an independent third party repurchase
review
Expanded programs that increased risk but where GSE got all
upside
Recent changes to Fannie Mae Guide (3/29/10)
Lender must notify Fannie within 30 days of confirming any
misrepresentation or breach of a selling warranty, including fraud,
regardless of who committed the act or whether the lender believes
that the act resulted in an actual breach of its selling warranties
Any fraudulent or dishonest activities by lenders, contractors, or
brokers must be reported to Fannie immediately. A record of activity
must be maintained and made available to Fannie upon request
Fannie may perform additional audits as needed
11
GSE Repurchase Issues (Cont’d)
New “official position” regarding uniform documents
ANY change not agreed to by Fannie/Freddie or
authorized by related Guide makes loan “nonstandard”
Other potential remedies
Indemnification
Termination or suspension
Compensatory fees
12
GSE Servicing Rights
Purchasers of Fannie / Freddie servicing rights
generally step into the shoes of the seller
Joint and several liability, although GSE policy is
typically to go back against the current servicer
Freddie Mac Servicing Guide provides that
Freddie Mac “may require the Seller or Servicer to
repurchase Freddie Mac’s interest in a Mortgage”
under certain defined circumstances, including seller
breaches of representations or warranties in the
selling documents
13
GSE Servicing Rights (Cont’d)
Fannie Mae Servicing Guide provides that “the servicer
assumes responsibility for all of the lender’s contractual
obligations related to the mortgages,” which would
include repurchase obligations
In addition, “[t]he lender's termination of its servicing
arrangement does not release it from any of its
responsibilities or liabilities related to specific mortgages
. . . that we purchased before the termination, unless we
expressly agree in writing to release the lender from
those responsibilities or liabilities."
Liability rarely waived
14
GSE Termination of Servicing Rights
GSEs have the right to terminate servicing of their loans
at any time, with or without cause
If termination is with cause, Fannie has no obligation to
pay anything. As you would expect, the definition of
“cause” is broad
If termination is without cause, servicer may arrange for
sale within 90 days to an approved servicer. If
approved, sale must be completed in 60 days. If not
sold, Fannie will pay a termination fee of 2x the
annualized servicing revenue minus a processing fee
Servicer remains jointly and severally liable unless
expressly released
15
Private Mortgage Insurers
PMI policies are intended to protect the lender in the
event of borrower default
PMI companies have been rejecting an
unprecedented number of claims – reviewing files to
justify denying insurance claim requests
Denial of claim also means rescission of underlying
insurance policy
Typically, the insured is a GSE and rescission of PMI
is grounds for repurchase demand
16
FHA Indemnification Demands
HUD increasingly demanding “voluntary”
indemnifications through HOC QAD, HQ Lender
Activities and Program Compliance, or MRB
Indemnifying mortgagees not granted opportunity to
mitigate
HUD holds the approval card
Must determine when to offer $ (and how much)
HUD seeking to expand its authority to require
indemnification to all DE lenders
17
For further information
Joseph Kolar
[email protected]
202-349-8020
Clinton Rockwell
[email protected]
424-203-1002
Christopher Witeck
[email protected]
202-349-8051
18