Mortgage Lending and Servicing

The residential mortgage lending and mortgage servicing industries are experiencing waves of changes. Business practices that were in place for decades were replaced and lenders and servicers in the residential mortgage market must now comply with more complex and stringent requirements that continue to evolve.  With the enactment of the Dodd-Frank Act and the establishment of the Consumer Financial Protection Bureau (CFPB), mortgage lenders, investors and mortgage servicers face an increase in regulatory scrutiny, enforcement and litigation risks. Noonan & Lieberman centers its practice on helping mortgage lenders, mortgage investors and servicers manage their legal risks.  We created a unique compliance and transaction program that provides cost efficient legal services for small and medium sized mortgage lenders and mortgage servicers that helps our clients achieve their business objectives. Click MortgageCompliance.Law for more on our compliance and transaction program website.

Regulatory Compliance

We advise mortgage lenders, investors and servicers on compliance with federal and state regulatory requirements. Our objective is to help clients operate in compliance with all applicable rules and agencies guidance.

Our federal regulatory compliance counseling includes advice the following acts and related regulations: Bank Secrecy Act (BSA) including Anti-Money Laundering (AML) rules, Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), Electronic Funds Transfer Act (EFTA), Electronic Signatures in Global and National Commerce Act (E-Sign Act), Equal Credit Opportunity Act (ECOA (fair lending)), Fair Credit Reporting Act (FCRA), Fair Debt Collection Practices Act (FDCPA), Fair Housing Act (FHA (fair lending)), False Claims Act (FCA), Gramm-Leach-Bliley Act (GLBA), Home Mortgage Disclosure Act (HMDA), Home Ownership and Equity Protection Act (HOEPA), Homeowners Protection Act (HPA), Mortgage Acts and Practices (MAP), National Flood Insurance Act and Flood Disaster Protection Act, Real Estate Settlement Procedures Act (RESPA), Office of Foreign Asset Control (OFAC), Secure and Fair Enforcement for Mortgage Licensing Act of 2008 (SAFE Act), Servicemembers Civil Relief Act (SCRA), Telephone Consumer Protection Act (TCPA), Truth in Lending Act (TILA) including TILA-RESPA integrated disclosure rule (TRID) and qualified mortgage rules (QM), Unfair, Deceptive, or Abusive Acts or Practices (UDAAP), and USA PATRIOT Act.

Our state compliance includes advice on state and local anti-predatory lending laws, consumer fraud and deceptive practices laws, debt collection laws, foreclosure laws, foreclosure prevention laws, interest and usury laws and licensing laws.

Our attorneys work with clients to develop, and conduct periodic reviews of, compliance management system, controls, policies and procedures to ensure they comply with applicable legal requirements. We advise and assist clients in the development, design and review of loan documents, loan modification and forbearance agreements, disclosure forms, consumer notices, new mortgage products and services in compliance with applicable regulatory requirements.  We work together with clients’ compliance personnel, internal or external auditors, consultants and senior management in conducting periodic reviews or internal compliance investigations. We conduct state law surveys for clients that have multistate operations and provide clients comparative federal and state requirements.  Our attorneys provide federal (e.g. CFPB, OCC, FDIC, NCUA and DOJ) and state regulatory exam support including, exam preparation, ongoing exam support, assist clients in responding to exam findings and advise on remediation. We also assist clients in responding to consumer complaints, in responding to federal and states regulatory inquiries and in communicating with federal and state regulatory agencies on all matters touching clients’ operations.

Government Agencies and GSEs

Our attorneys advise clients on compliance with Fannie Mae, Freddie Mac, Ginnie Mae, U.S. Department of Housing and Urban Development (HUD), Federal Housing Administration (FHA), U.S. Department of Veteran Administration (VA), Rural Housing Service (RHS) and U.S. Department of Agriculture (USDA) origination, underwriting, selling and servicing guidelines.

For depository institutions and CDFIs that are members of the Federal Home Loan Bank (FHLB) System, we advise clients on compliance with Acquired Members Assets (AMA) programs’, such as, the Mortgage Partnership Finance (MPF) and the Mortgage Purchase Program (MPP), origination, underwriting, selling and servicing guidelines.

Transactional Support

Our attorneys help clients in drafting, reviewing and negotiating mortgage industry agreements, including:

  • Bulk, flow or master loan purchase and sale agreements
  • Bulk, flow or master servicing sale agreements
  • Backup servicing, special servicing and subservicing agreements
  • Broker, correspondent and wholesale origination agreements
  • Custodial agreements
  • Entity formation, including limited liability companies, corporations and partnerships
  • Fannie Mae, Freddie Mac, Ginnie Mae, HUD, FHLBs MPF or MPP – related agreements
  • Joint marketing agreements
  • Joint venture agreements, including affiliate business arrangement in compliance with RESPA
  • Marketing services agreements
  • Mortgage Insurance (MI) agreements
  • Participation agreements
  • Repurchase letters demand, rebuttals and repurchase agreements
  • Telemarketing services agreements
  • Third-party vendor services agreements
  • Underwriting and delegated underwriting agreements
  • Warehouse line agreements

We help clients identify legal risks and offer alternatives to avoid or mitigate risk. Our attorneys also assist in performing comprehensive due diligence reviews of counterparties and of purchased financial assets, both pre-closing and post-closing. Our firm leverages our attorneys’ knowledge and experience in the mortgage related litigation and dispute resolution to assist clients in developing and negotiating transaction agreements.

Regulatory Enforcement

Our attorneys help clients in responding to federal and state regulators’ inquiries and investigation demands, such as, civil investigative demands (CID) and subpoenas. We also represent clients in administrative enforcement proceedings, including before the CFPB, Department of Justice (DOJ), Federal Trade Commission (FTC), Financial Crimes Enforcement Network (FinCEN), OFAC, depository institutions regulators and other federal and state regulators. We help clients navigate the enforcement process and assist clients in reaching resolution with the regulators. Examples of enforcement matters include: fair lending, loan originator compensation, marketing services agreements (MSA), RESPA anti-referral fees and anti-kickbacks rules.

Litigation

We provide a broad range of litigation services to mortgage lenders, investors and servicers, including prosecution and defense of mortgage industry agreements, defense of consumer litigation, class action defense and federal and state appellate litigation (including appeals of administrative decisions). We represent clients in residential and commercial foreclosures. We also represent clients as creditors in consumer and commercial bankruptcies.  We are able to leverage our attorneys’ knowledge of regulatory compliance and transactional work to augment our representation of clients in litigation prosecution and defense.  Click Litigation for more information on our litigation services.

Licensing

Our attorneys advise clients that engage in mortgage brokering, mortgage lending, mortgage servicing, or who regularly invest in mortgages, on state licensing requirements and, where appropriate, identify available exemptions.  We assist clients in obtaining state licenses and any required federal approvals to conduct their activities.  We help depository institution comply with SAFE Act requirements and assist mortgage lenders with state loan origination licensing rules.  Our attorneys conduct multistate licensing surveys, engage in multistate licensing applications projects and assist clients with licensing renewals.

Public Policy

Our firm is committed to engage in public debate concerning policies that affect the mortgage industry. We represent clients and industry participants as amicus curiae counsel in mortgage industry related cases and help clients provide comment to lawmakers and regulators on proposed rules and regulations.