The Office of Inspector General
(OIG) for the Federal Housing Finance Agency (FHFA) has released critical preliminary
findings from an audit conducted on FHFA's oversight of Fannie Mae's
default-related legal services. The audit was requested by Representative
Elijah Cummings (D-MD) to examine "widespread allegations of abuse by ...law
firms hired to process foreclosures."
Fannie Mae established a Retained
Attorney Network (RAN) in 1997 to perform default-related legal services for foreclosures,
bankruptcies, loss mitigation, eviction, and REO closings. Fannie Mae, which delegates to its servicers
the management of individual law firms working on its loans, states that RAN
allows it to control expenses through negotiated rates with the law firms and
provides for consistent actions and control of timelines and efficiency.
In August 2008 Fannie Mae
expanded the RAN to 140 law firms in 31 jurisdictions and has subsequently
expanded it again to 190 firms within 45 states. After the initial expansion Fannie Mae
required that servicers refer all foreclosure and bankruptcy cases to the
network.
When it assumed conservatorship
of Fannie Mae and Freddie Mac (the Enterprises) FHFA did not consider the RAN
to be a high risk area and focused instead on areas such as credit risks. During the time covered by the audit it also
focused on evaluating loan modifications and loss mitigation proposals from the
Enterprises and scaled back scheduled examinations. The agency viewed
foreclosures as the responsibility of servicers.
As early as December 2003 Fannie
Mae heard of foreclosure abuse allegations in Florida and hired an outside law
firm to investigate. In May of 2006 the
firm issued a report which stated, "Foreclosure attorneys in Florida are
routinely filing false pleadings and affidavits.... The practice could be occurring
elsewhere." While Fannie Mae claims to
have notified OFHEO, its regulator at the time, of the findings, FHFA could
find no record of the communication.
In 2008, news stories began to
circulate about "foreclosure mills" managing defaulted loans for the Enterprises. The New
York Times reported on complaints that firms used improper or duplicative
foreclosure and bankruptcy pleadings and levied inappropriate fees on
borrowers. In mid-2009 FHFA also began
receiving consumer complaints about foreclosure practices involving Fannie Mae
loans but an earlier OIG examination found that FHFA did not assess overall
trends related to consumer complaints.
In June 2010 FHFA staff met with
17 representatives from the mortgage industry, legal community, and federal and
state governments in Florida and reported to the Acting Director that servicers,
attorneys, and other supporting personnel were overloaded by foreclosures, the
average timeline had increased from 150 to 400 days, documentation problems
were evident and law firms (referred to as "foreclosure mills") were not
devoting adequate time to their cases due to Fannie Mae's flat fee structure
and volume-based processing model. FHFA
staff submitted a list of five actionable items for the agency.
Two months later a news article
asserted that the Enterprises had failed to oversee their networks of law firms
and that some of those firms had filed forged documents in judicial foreclosure
procedures. Other media followed with
similar reports and federal and state regulators and law enforcement initiated
probes into whether banks and law firms had improperly seized homes using
fraudulent or incomplete paperwork.
Shortly thereafter the robo-signing scandal became nationwide news.
In November 2010, FHFA initiated
concurrent reviews of RAN and Freddie Mac's Designated Counsel Program (DCP) to
determine whether they met safety and soundness standards. Examiners concluded that Fannie Mae could
have reacted to foreclosure deficiencies sooner based on warning signals and
that its existing control structure for RAN did not meet standards in areas
such as a cost benefit analysis of the program, and having adequate controls, training
and monitoring of RAN firms in place.
While FHFA briefed the OIG on its review, it has never published its
findings or reported them to the Enterprise.
Fannie Mae also took steps to
address reports of foreclosure abuse.
They conducted audits and reviews of RAN law firms to assess compliance
with engagement letters, fees and costs charged, the accuracy of the language
used in pleadings to describe the standing of the servicer, and compliance with
state laws. Through the end of June
2011, Fannie Mae contractors have conducted 49 on-site reviews of RAN law
firms. Fannie Mae also sent questionnaires
to all firms to assess the adequacy of their policies and procedures to ensure
compliance with applicable laws and their employees and/or third parties
adherence to procedures. Fannie Mae also
stated that it worked with several firms that reported problems and appointed its
staff to oversee remediation.
The OIG audit reached the
following conclusions:
1.
Various
indicators could have led FHFA to identify and address the heightened risk
posed by foreclosure abuses prior to late 2010.
These included the deteriorating financial conditions of the Enterprises
that led to conservatorship, consumer complaints and public court filings alleging
improper foreclosures; and contemporaneous media reports about foreclosure
abuses. Based on the evidence regarding
these indicators and the FHFA response, FHFA needs to develop procedures to
identify and assess new or heightened risks.
2.
FHFA's supervisory planning and guidance do not
adequately address default-related legal services. To date, the OIG says FHFA has neither an
ongoing risk-based supervisory plan for examination and supervision of default related
neither legal services nor guidance for use in performing targeted examinations
and monitoring of such services. Its
existing handbooks are general in nature and not specific to operational risk
areas nor do they address specific third-party vendor risks.
3.
FHFA does not have a formal process for the
Enterprises to share information about problem law firms. The agency needs to address concerns such as
poor or inappropriate performance associated with third-party vendors that do
business with both Enterprises and ensure that dismissal and other disciplinary
actions by one Enterprise are communicated to the other.
The OIG concludes:
"The Agency's
special review of the RAN framework is a positive step and the Agency should
continue with undertaking such reviews.
FHFA-OIG contends however that the Agency should have paid closer
attention to the highly dynamic housing foreclosure environment between 2008
and 2010 and, in the future, should become more proactive in its oversight of
the RAN in particular and the foreclosure process in general. The Agency needs to apply a proactive
approach going forward to identify and assess new and emerging risks and to
develop detailed guidance on conducting targeted examinations of the
Enterprises' operational risks associated with their vendors. This guidance should incorporate continuous
supervision, special reviews, and targeted examinations and address crossover issues
that affect both of the Enterprises and their relationships with third-party
vendors."