Timely and Efficient Default Servicing: Best Practices for Successful Foreclosure
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1 A Point of View Timely and Efficient Default Servicing: Best Practices for Successful Foreclosure Abstract The mortgage industry underwent significant changes due to widespread bankruptcy and foreclosures following the 2008 crisis. It left lenders and servicers grappling with a huge backlog of non-performing loans and exposed a gaping hole in the overall foreclosure process. As the housing market enters the rehabilitation phase, lenders and servicers must remain vigilant and ensure that they can handle another mortgage meltdown, should it arise. This is important considering that foreclosures can be an extremely complex process involving multiple teams in a constantly changing regulatory environment designed to protect borrower interests. Timely submissions, communication, and regulatory compliance with federal and investor guidelines are a must in order to ensure smooth and efficient foreclosures. This paper takes a look at the key challenges faced by lenders in the foreclosure process that impact both the overall process efficiency and the final sale of the mortgaged property. It also discusses strategies and best practices to help servicers reduce delays in foreclosure proceedings and liquidate the defaulted loans within the standard durations defined by the investors. Servicers and lenders can extract the best results from their default inventory by implementing these best practices.
2 The importance of accelerated foreclosure Foreclosure is a legal process in which the lender attempts to recover the loan balance from the borrower who has stopped making payments by selling the asset used as collateral for the loan. Usually, a mortgage lender (mortgagee), or lienholder, obtains a termination of a mortgage borrower's (mortgagor) equitable right of redemption, either by court order or an operation of law. The foreclosure process is extremely complex and time-bound, and requires a structured approach to managing loan default. While the foreclosure process and timelines vary between states, the process usually starts with preparing, initiating, and managing foreclosure, and goes on to scheduling and conducting the foreclosure sale and postforeclosure sale responsibilities. These processes must work seamlessly in a stringent regulatory environment, which impacts the way servicers interact and communicate with borrowers. Typically, the delinquency period starts when a borrower fails to pay the mortgage payments by the due date. According to the Consumer Financial Protection Bureau (CFPB), foreclosure efforts can begin only when the delinquency period exceeds 120 days. Consider a scenario where a mortgage payment is due on January 1, but includes a 15-day grace period before a late fee is charged. If the servicer does not receive the payment by January 1, then the 120-day waiting period can commence under the new rule. However, the servicer may fail to file a complaint for foreclosure within 120 days and delay it by, say, another 10 days. If, the borrower makes a regular payment of principal and interest during this 10-day period, then the loan is only 100 days delinquent, which would prevent the servicer from initiating foreclosure as per CFPB. In order to avoid such delays, servicers must send letters of default as soon as it occurs to accelerate principal payment of the loan. Roadblocks on the path to sale: Top challenges faced by lenders In case of a loan default, servicers are expected to use highly knowledgeable resources and more sophisticated processes to enable foreclosure of a property. However, lenders and mortgage servicers face various challenges in this process, some of which are outlined below. Changing state and federal regulatory requirements There are several regulatory bodies in the US such as the CFPB, National Mortgage Settlement, Office of the Comptroller of the Currency (OCC), as well as investors such as the Housing and Urban Development (HUD) department. They change compliance requirements on a regular basis to ensure fair lending practices, which also impact foreclosure proceedings. For example, the New York state law³ requires a demand notice to be sent to all borrowers who have signed both the mortgage document and the promissory note to repay the amount borrowed. This notice [1] The Consumer Financial Protection Bureau, CFPB Proposes Expanded Foreclosure Protections, November 20, 2014, accessed March 2015, [2] The Consumer Financial Protection Bureau, Foreclosure Avoidance, December, 2013, accessed March 2015, [3] The New York State Department of Financial Services, Laws of New York, 2009 Chapter 507, December, 2009, accessed March 2015, 2
3 needs to be sent to the mailing and subject property address through certified as well as regular mail. If any of the above steps are missed, then the entire process becomes invalid and must be repeated. Since it takes close to a year to complete the first legal action in the state, such errors can prove to be extremely costly. Without timely and proactive modifications to documents, letters, and the overall approach, lenders risk delaying the foreclosure process, thereby attracting severe penalties from investors. Delays in executing legal documents Legal documents are an integral part of the foreclosure proceedings. At each stage, the attorney firms prepare legal documents that are sent to the lenders for execution. The executed documents are submitted to the court by the attorney firm for scheduling important dates, such as hearing and sale dates, to move the foreclosure process forward. Delays in document execution result in multiple followups by the legal firms. In some cases, rejection due to partial submission of documents will require the firms to rework documents, thereby taking up additional time. Usually, critical dates are provided by the court only once a month. Any delay or error in executing such legal documents can reduce the probability of securing the preferred dates in specific counties or states, thereby extending the foreclosure proceedings and increasing default inventory. Servicers may also incur costs related to their dealings with attorney firms, property maintenance, and penalties, if any, from the investors for delays in completing critical tasks. Disconnected support teams The foreclosure process involves a lot of interdependent activities that require smooth coordination among teams to take the property to sale in a timely manner. These include document execution, fee approval, loss mitigation, litigation, and property preservation teams as well as those that provide payoff quotes and monitor funds. Inefficiencies within such teams adversely impact the overall foreclosure process. For example, delays in fee approval impact documentation by the attorney firm, which could extend the sale date. Demand notices sent to borrowers vary from state to state, and any discrepancies will make the foreclosure invalid. Delays from attorney teams in requesting fee approvals or insufficient communication from the documents team for rejecting documents submitted by the attorney could also create roadblocks in the foreclosure process. Such gaps in process, as a result of disconnected teams, may result in lenders incurring penalties from investors. Inefficient management of attorney firms Attorney firms play a vital role in the foreclosure process. They are responsible for all the legal proceedings such as preparing affidavits and other legal documents, filing complaints with courts, and litigating on servicers' behalf with respect to foreclosure and related bankruptcy proceedings. Delays in follow-up and responses to the attorney firm's queries will extend the foreclosure sale date. Careful evaluation of attorney firms is also a must as it helps ensure process adherence in a timely manner. Without a structured performance evaluation mechanism, it is difficult to manage referrals for attorney firms within each state. 3
4 Cancellations of foreclosure sales Last minute sales cancellations can prove expensive in terms of time and resources. Some states such as Texas⁴ and Georgia⁵ in the US allow foreclosure sales only on a single day every month, making it challenging to reschedule the sales date. Restarting the foreclosure process once the sale is cancelled is also time consuming. Best practices for accelerated and efficient foreclosure It is evident that servicers and lenders need to identify foreclosure procedural gaps to balance speed and cost efficiency with quality and accuracy. Some strategies to improve efficiencies across the foreclosure process are recommended below. Timely execution of legal documents Legal documents such as complaint verification, affidavits, substitution of trustee, and assignment of mortgage are an integral part of the foreclosure proceedings. Streamlining the document execution process ensures timely completion of critical tasks and yields better results for lenders and services. The document execution team should be well trained and adequately staffed in order to handle the large number of requests that come its way. It is also essential to manage robo-signing a major issue faced during default servicing. Robo-signing results in improper reviews that lead to the submission of inaccurate affidavits to the court. For borrowers, this is an opportunity to challenge their foreclosures in court or negotiate with lenders to avoid foreclosure. A robust quality control process will ensure greater accuracy. The team should also maintain a status report, and communicate with the attorney firms regarding the status of documents within 24 hours of submission. Back office support to strengthen collaboration Lenders and mortgage servicers should establish a strong back office that works closely with attorney firms and ensures timely completion of foreclosures. This team should be well trained and equipped with process knowledge, regulatory nuances and updates within each state, and investor guidelines. It must also communicate changes in legal templates and state-investor matrices, document rejection due to incorrect usage of language or templates, upcoming sale, and mediation or hearing dates. Back office support also drives coordination across internal teams to ensure smoother foreclosure processes. Proper communication with the support teams helps obtain timely fee approvals, original documents, and responses to attorney queries pertaining to litigation or loss mitigation status. Alignment with state, regulatory, and investor guideline changes Staying abreast of the industry changes, state guidelines, regulatory updates, and investor requirements is essential to avoid non-compliance, and the resulting penalties. Lenders must have a strong legal [4] United States Foreclosure Laws, Texas Foreclosure Law Summary, accessed March 2015, [5] United States Foreclosure Laws, Georgia Foreclosure Law Summary, accessed March 2015, 4
5 research team to monitor, interpret, and communicate updates to all intended recipients. A robust change management system can ensure effective implementation of relevant changes in the foreclosure process within the stipulated timeframe. Streamlined loss mitigation to avoid sales cancellations Servicers must offer borrowers appropriate loss mitigation options. They must streamline loss mitigation practices and coordinate with attorney firms in order to comply with relevant regulatory or statutory requirements and avoid last minute cancellations. The loss mitigation team should work with the borrower and obtain documents to underwrite and determine eligibility. If the borrower is eligible for a loan modification option, the lender must put the borrower on a trial payment plan for three months. Once approved, the lender can send a communication to the attorney to put foreclosure proceedings on hold. This would avoid the costs incurred in setting up a sale and cancelling it. In case the borrower is not eligible, then an immediate communication has to be sent to the attorney to proceed with the foreclosure. Additional checks should ensure that all the necessary requirements such as decline and welcome letters are sent to the borrowers. Efficient loss mitigation practices reduce the foreclosure timeline, costs associated with cancellations, and penalties for not adhering to the standard durations set forth by investors. Attorney scorecard for improved referral management Formal policies and procedures governing the selection, management, and termination of attorney firms are essential to offer greater clarity regarding roles and responsibilities. Lenders should also maintain a strong evaluation mechanism for effective management of attorney firms. This could be in the form of a scorecard to measure performance, track progress, and provide feedback for improvement. The attorney scorecard weighs performance against multiple parameters such as timely responses, document submission and reporting of sales results, effective communication, knowledge of regulatory updates, and the ability to carry out tasks with minimal errors. With the help of the scorecard, lenders can rank the firms based on performance and manage loan referrals. Robust controls to ensure compliance with investor and regulatory requirements The right controls ensure timely completion of critical activities and prevent breakdowns in the foreclosure process. This could be sale finalization and reporting and completion of the first legal action before the HUD first action date on all Federal Housing Administration (FHA) loans. Robust controls could also be used for timely transfer of sold loans to the Real Estate Owned (REO) claims department for filling claims with the investors. Controls can be in the form of exception reports that run through various systems and provide data prior to the stated deadlines. A maker-checker process, where one person initiates a process and the other completes it, reduces errors in critical tasks such as sales reporting and improves accuracy. Lenders can also implement pre-sale review checks five or 10 days prior to the sale. This helps validate the availability of accurate bidding instructions and keeps a check on loss mitigation processes. System 5
6 triggers for fast approaching deadlines enable lenders to complete procedures on time, and ensure that they have all the necessary information and documentation in place prior to the sale. For example, the system can send out a trigger stating that the sale date on a particular loan is approaching in the next three days. The lender can then check if all loss mitigation options have been exhausted, no funds have been received recently from the borrower against the loan, and bidding instructions have been sent to the attorney. Prevention of fraudulent activities Lenders should track and report fraudulent activities to maintain trust and remain compliant with changing regulations. Such techniques prevent leakage of confidential borrower and business information. s sent and received by the employees should be monitored for keywords related to borrower information, and filtered and reviewed to check for fraudulent activity. In addition, secure access must be provided to all third party vendors, and only senior management of the lending organizations should be allowed to approve transactions. Regular awareness sessions on avoiding, detecting, and reporting fraudulent activities can also be conducted for employees. Periodic internal and external audits through spot checks improve adherence to standard practices and information security requirements. These will help identify possible risks and ensure that controls are in place to monitor, track, and report red flags. All violations must be dealt with seriously. Stepping up foreclosure practices in an uncertain environment Deficiencies in foreclosure processing have widespread implications for the housing market and the borrower. Mortgage servicers came under heavy scrutiny after the real estate crisis, and new regulations called for greater accountability and transparency. In addition to improving servicing standards, these regulations have been put in place to protect homeowners from unlawful foreclosures. This places immense pressure on servicers to develop sound policies and procedures to manage and control mortgage-servicing and foreclosure processes. It would mean strengthening governance standards to minimize losses, accelerate foreclosure, and opportunity for homeowners to retain their homes. About the Author Sriram Nachiappan Sriram Nachiappan is a delivery manager in Tata Consultancy Services' Business Process Services' mortgage services team. He has over 14 years of experience in the mortgage industry with specializations in foreclosure, loss mitigation, and claims. He has successfully handled multiple mortgage processes ranging from origination underwriting to default servicing. 6
7 About TCS' Business Process Services Unit Enterprises seek to drive business growth and agility through innovation in an increasingly regulated, competitive, and global market. TCS helps clients achieve these goals by managing and executing their business operations effectively and efficiently. TCS' Business Process Services (BPS) include core industry-specific processes, analytics and insights, and enterprise services such as finance and accounting, HR, and supply chain management. TCS creates value through its FORETM simplification and transformation methodology, backed by its deep domain expertise, extensive technology experience, and TRAPEZETM governance enablers and solutions. TCS complements its experience and expertise with innovative delivery models such as using robotic automation and providing Business Processes as a Service (BPaaS). TCS' BPS unit has been positioned in the leaders' quadrant for various service lines by many leading analyst firms. With over four decades of global experience and a delivery footprint spanning six continents, TCS is one of the largest BPS providers today. Contact For more information about TCS Business Process Services Unit, visit: ( bps.connect@tcs.com About Tata Consultancy Services Ltd (TCS) Tata Consultancy Services is an IT services, consulting and business solutions organization that delivers real results to global business, ensuring a level of certainty no other firm can match. TCS offers a consulting-led, integrated portfolio of IT and IT-enabled infrastructure, engineering and assurance services. This is delivered through its unique Global Network Delivery ModelTM, recognized as the benchmark of excellence in software development. A part of the Tata Group, India s largest industrial conglomerate, TCS has a global footprint and is listed on the National Stock Exchange and Bombay Stock Exchange in India. IT Services Business Solutions Consulting All content / information present here is the exclusive property of Tata Consultancy Services Limited (TCS). The content / information contained here is correct at the time of publishing. No material from here may be copied, modified, reproduced, republished, uploaded, transmitted, posted or distributed in any form without prior written permission from TCS. Unauthorized use of the content / information appearing here may violate copyright, trademark and other applicable laws, and could result in criminal or civil penalties. Copyright 2015 Tata Consultancy Services Limited TCS Design Services I M I 04 I 15 For more information, visit us at
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