Banks Seek Exit from Robo-Signing Enforcement Order

Mortgage & Real Estate









The nation’s largest mortgage servicers are desperate to put the robo-signing scandal behind them.

At least two of the servicers say they are close to being released from consent orders dating back to 2011, when the Office of the Comptroller of the Currency ordered 14 bank servicers to clean up their servicing practices. The consent orders were issuedafterbank employees were found to have improperly signed and processed foreclosure documents following the housing bust.

Two of the banks have fulfilled the OCC’s requirements and expect to be released from the consent order as early as next month, their lawyers said this week. Several of the banks were given a Sept. 30 deadline to comply with the terms of the enforcement order.

Ending the consent orders has been a dearly held objective for both banks and regulators. Some of the servicers have gone through exams in the past year where the possibility of lifting the orders was discussed, said a personal familiar with the process. The orders are unlikely to be lifted all at once, however, since some institutions have made more progress than others.

An end to the April 2011 consent orders would mark a significant step for the 14 largest bank servicers, which have spent considerable time and money addressing regulators’ concerns. Banks have long claimed that regulators used the consent orders as leverage to force them to fix a wider range of problems, some of which were unrelated to mortgage servicing, bank lawyers said.

Still, the OCC has not set a schedule for its review and termination of the consent orders. Regulators also do not look kindly on banks wrangling for an early release.

“OCC examiners are in the process of assessing compliance with the foreclosure-related consent orders,” said an OCC spokesman Bryan Hubbard. “OCC will not terminate the consent order of a particular bank until the OCC is satisfied that the bank has met the terms of the order.”

The robo-signing scandal rocked the mortgage industry in 2010 after bank employees were found to have routinely signedforeclosure documents without verifying theiraccuracy and absent a notary, as required by law.

During the housing boom, so many loans changed hands in the frenzy to securitize that lenders often lost, or failed to create, documents verifying the transfersof ownership. Complicating matters, many of the originating lenders went bust forcing the servicers to create documents out of whole cloth.

Originally, 16 large financial institutions were covered by the foreclosure-related consent orders, but two of them, MetLife and Aurora Bank, had their orders terminated in 2013 when they ceased to be banking companies.

The remaining 14 largest mortgage servicers, including Bank of America, Citigroup, JPMorgan Chase, U.S. Bancorp and Wells Fargo, were required by the orders to review their servicing practices from 2009 and 2010. The servicers had to address deficiencies in their foreclosure practices and hire independent consultants to investigate past foreclosure errors.

But the so-called “lookback” reviews ordered by the OCC and the Federal Reserve became nearly as controversial as the original servicing blunders.

The review process was marred by a lack of independence and escalating costs with the average loan reviewing costing $10,000 or more. Servicers were allowed to self-police and weigh in on whether borrowers were harmed. In 2013, regulators scrapped the costly independent foreclosure review process in favor of a $10 billion settlement with most of the servicers.

Banks initially halted foreclosures and invested heavily in mortgage servicing to comply with the orders. But whether the original servicing problems have ultimately been fixed, nearly four years later, remains to be seen.

“Have they beefed up their shops? Maybe but their same problems and bad performance continue to cause great problems for homeowners seeking assistance,” said Ira Rheingold, executive director of the National Association of Consumer Advocates.

Early this year, the OCC provided a status report on the progress the servicers. That report found that 9% of the files had some type of servicing error, though many were technical and did not hard borrowers. Just 4.5% of the loans reviewed qualified for some type of financial payment to the borrower.

Sean O’Toole, the CEO of, a Truckee, Calif., data and analytics firm, said the consent orders created the belief that borrowers should get loan modifications, which was not required by law.

“Banks went from a world where if a borrower missed two payments, they would try to dispose of the nonperforming asset as soon as possible, to a world where regulators expected them to give borrowers loan mods and delay foreclosure as long as possible,” O’Toole said.

He added that banks might not have resorted to robo-signing if foreclosure laws were more uniform and didn’t vary from state to state.

“The foreclosure process itself was never the problem, originatinga whole bunch of loans to people who couldn’t afford them was the problem, and that highlighted the fact that we hadn’t changed the foreclosure law in decades.”

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