Summary of the CFPB s Force-Placed Insurance Proposed Rules

TO: FROM : RE: ABIA Government Relations Committee Barnett, Sivon & Natter, P.C. McIntyre & Lemon, PLLC Summary of the CFPB s Force-Placed Insurance Proposed Rules Date: August 16, 2012 Overview The Bureau of Consumer Financial Protection (CFPB) has proposed mortgage servicing rules that will affect forced placed insurance (FPI). The CFPB rules amend Regulation X, which implements the Real Estate Settlement Procedures Act (RESPA), and which was transferred from the Department of Housing and Urban Affairs (HUD) to CFPB by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank).The provisions in the proposed rules that relate to FPI implement section 1463 of the Dodd-Frank Act. The proposed rules related to FPI are generally consistent with the terms of section 1463, but some features of the proposed rules go beyond what is required under the statute. This is a summary of the proposed rule as it affects FPI. Access to the Proposed Rule The proposed rule is available online here. The majority of FPI provisions are included in Section 1024.37, which is discussed on the following pages: preamble on pp 77-97; proposed rule on pp 208-213; proposed staff commentary on pp 237-239; and model notices on pp 221-225. Additional provisions related to escrow accounts are included in Section 1024.17(k) on the following pages: preamble on pp 27-32; proposed rule on p 198; and proposed staff commentary on pp 228-229. Comments on the proposed rule are due October 9, 2012. Definition of Force-Placed Insurance 1024.37(a) The definition of FPI contained in Dodd-Frank is slightly different from the definition provided in the proposed rule. Dodd-Frank defines FPI as: hazard insurance coverage obtained by a servicer of a federally related mortgage when the borrower has failed to maintain or renew hazard insurance on such property as required of the borrower under the terms of the mortgage. The proposed rule defines FPI as: hazard insurance obtained by a servicer on behalf of the owner or assignee of a mortgage loan on a property securing such loan. The proposed definition also excludes flood insurance policies and certain escrowed hazard insurance policies that are renewed by the servicer. 1

Exclusions from the Definition of FPI The proposed rule excludes the following categories of insurance from the definition of FPI: 1) flood insurance; and 2) for loans with escrow accounts, hazard insurance originally obtained by a borrower but renewed by the borrower s servicer as required under 1024.17(k) (described below) and hazard insurance renewed by the servicer at its discretion if the servicer is not required to renew the borrower s hazard insurance. Obligation to Continue Escrowed Insurance & Advance Funds 1024.17(k) The exclusions from FPI described above contemplate the renewal of hazard insurance policies under escrow accounts, which is required by the proposed rule in all cases unless the borrower s policy is cancelled or not renewed for reasons other than nonpayment of premium charges. Examples of reasons that permit a servicer to force-place insurance (and not advance funds for the continuation of a policy paid under escrow) include: 1) borrower cancellation or nonrenewal; 2) insurer cancellation or non-renewal based on a decision to stop writing insurance for all property in the borrower s community; and 3) insurer cancellation or non-renewal based on its underwriting criteria, such as the borrower s claim history or a change in occupancy status. When policies under escrow lapse due to nonpayment, the servicer would be required to advance funds to continue the borrower s policy. This is not required by Dodd-Frank. Basis for Obtaining FPI 1024.37(b) A servicer may not obtain FPI unless it has a reasonable basis to believe that the borrower has failed to comply with the mortgage loan contract s requirement to maintain hazard insurance. Proposed Official Bureau Interpretations provide examples of what constitutes a reasonable basis: - 1) Borrowers with escrow: if no renewal bill is received by the servicer 30 days before the expiration date of the hazard insurance, or a notice of cancellation or non-renewal from the insurance company is received before payment is due. - 2) Borrower without escrow: if a servicer receives a notice of cancellation or non-renewal from the insurance company. Requirements for Charging Borrower for FPI 1024.37(c) A servicer may not charge a borrower for FPI unless: - It delivers to the borrower or places in the mail a written notice at least 45 days before the premium is charged or any fee is assessed; - It delivers to the borrower or places in the mail a second written notice at least 30 days later; and - During the 45 day notice period, it has not received verification that the borrower has hazard insurance in place. 2

If not prohibited by state or other law, the servicer may retroactively charge a borrower for FPI obtained during the 45-day notice period, but must refund premiums and charges if it receives verification the borrower had hazard insurance for some or all of that 45 day period. Content of Initial Notice 1024.37(c)(2) CFPB believes it is the servicer s obligation to verify a borrower s hazard insurance status, and the servicer must accept from the borrower the policy number, name, mailing address and phone number of the insurance company or agent if the borrower provides the information in writing. The CFPB would require the initial notice to contain the following information: - The date of the notice, the servicer s name and address, and the borrower s name and address; - A statement that requests the borrower to provide hazard insurance for the borrower s property and identifies the property by its address; - A statement that the borrower s hazard insurance is expiring or expired and that the servicer does not have evidence that the borrower has coverage past the expiration date; - A statement that hazard insurance is required on the borrower s property and that the servicer has obtained, or will obtain, insurance at the borrower s expense; - A statement requesting the borrower to promptly provide the servicer with the policy number, name, address, and phone number of the insurance company or agent; - A description of how the borrower may provide that information; - The cost of FPI, stated as an annual premium, and if the cost is not known, a good faith estimate of the annual premium identified as such (This is not required by Dodd-Frank); - A statement that FPI may cost significantly more than hazard insurance and may not provide as much coverage (This is not required by Dodd-Frank); and - The servicer s telephone number for the borrower to ask questions. Reminder Notice 1024.37(d) A second (reminder) notice must be sent 30 days after the first notice if the servicer: 1) has not received insurance information; 2) has received insurance information but has not received verification that the borrower has had hazard insurance in place continuously; or 3) has not received verification of continuous coverage. Renewal or Replacement of FPI 1024.37(e) Citing a lack of an industry standard to notify borrowers of FPI annual renewals or replacements, the CFPB proposes to require a servicer, before charging a borrower for renewing or replacing existing FPI: (1) to send a notice 45-days before (with contents substantively similar to the other notices) and (2) not to have received evidence of the borrower obtaining hazard insurance. 3

Before the first anniversary of a servicer obtaining a renewal or replacement FPI policy, the servicer must deliver the notice or place it in the mail. After that, a servicer must comply with this notice before charging a borrower for renewing or replacing existing FPI annually. This is not required by Dodd-Frank. Cancellation of FPI 1024.37(g) Within 15 days of receiving verification that the borrower has hazard insurance in place, a servicer must: cancel FPI and, for any period of overlap, refund charges and fees; and remove all charges and fees from the account. Limitation on FPI charges 1024.37(h) All charges apart from charges subject to state regulation as the business of insurance must be bona fide and reasonable. A charge is a bona fide and reasonable charge if it is for a service actually performed, bears a reasonable relationship to the servicer s cost of providing the service, and is not otherwise prohibited by applicable law. Relationship to Flood Disaster Protection Act of 1973 (FDPA) 1024.37(i) If permitted by regulation under section 102(e) of the FDPA, a servicer subject to the requirements of these rules may deliver to the borrower, or place in the mail, any notice required by the rules together with the notice required by section 102(e) of the FDPA. 4

Comparison of Force-Placed Insurance (FPI) Provisions 8-16-12 Definition of FPI Standard for Placing FPI Hazard insurance obtained by a servicer on behalf of the owner or assignee of a mortgage loan on a property securing such loan and excludes flood insurance or, for escrowed hazard policies, some instances where the servicer renewed the borrower s hazard insurance. (See Escrowed Accounts section below). Must have a reasonable basis to believe the borrower has failed to maintain property insurance. Examples of reasonable basis: (1) with escrow: if no renewal bill received by servicer 30 days before expiration date; (2) with or without escrow: servicer receives notice of cancellation or non-renewal from the insurance company. Note: This is different than Dodd-Frank. Hazard insurance coverage obtained by a servicer of a federally related mortgage when the borrower has failed to maintain or renew hazard insurance on such property as required of the borrower under the terms of the mortgage. Must have a reasonable basis to believe the borrower has failed to maintain property insurance. Reasonable basis is met by fulfilling the requirements of 1463. Hazard insurance coverage obtained by a servicer when the borrower has failed to maintain or renew hazard or wind insurance on such property as required of the borrower under the terms of the mortgage. Same reasonable basis standard as Dodd-Frank, but reasonable basis is met by fulfilling the requirements set forth in the settlement. Not defined. The servicer must have procedures that document and provide evidence of their efforts to attempt to reinstate the borrower s insurance coverage when the servicer is notified of the cancellation. FPI should only be issued after the servicer has exhausted all means to keep the borrower s insurance policy in force.* * Provisions with an asterisk (*) next to them are new requirements as added by SVC-2012-04. 1

Consumer Notice Required Content Statement that requests the borrower to provide hazard insurance for the property with the property address. Statement that the borrower s hazard insurance is expiring or expired and that servicer does not have evidence of insurance coverage past the expiration date. Statement that hazard insurance is required and the servicer has obtained/will obtain insurance at the borrower s expense. Statement requesting the borrower to promptly provide the servicer with the policy number, name, address, phone number of insurance company or agent. Description of how the borrower may provide the information. Cost of FPI stated as an annual premium, and if cost is not known, a Reminder of borrower s obligation to maintain hazard insurance Statement that the servicer does not have evidence of insurance coverage Clear and conspicuous statement of the procedures by which the borrower may demonstrate that the borrower already has insurance coverage; Statement that the servicer must obtain such coverage at the borrower s expense if the borrower does not provide such demonstration of the borrower s existing coverage in a timely manner. Same as Dodd-Frank, plus the following: A statement that the cost of FPI may be significantly higher than the cost of the homeowner s current coverage; For first lien loans on servicer s primary servicing system, a statement that, if the borrower desires to maintain his voluntary policy, servicer will offer an escrow account and advance the premium due on the voluntary policy if the borrower (a) accepts the offer of the escrow account; (b) provides a copy of the invoice from the voluntary carrier; (c) agrees in writing to reimburse the escrow advances through regular escrow payments; (d) agrees to escrow to both repay the advanced premium and * Provisions with an asterisk (*) next to them are new requirements as added by SVC-2012-04. 2 8-16-12 The potential that FPI may be substantially more expensive (and that the borrower nevertheless will be required to pay for such coverage or risk being in default under the mortgage terms) Any FPI coverage might not cover the borrower as an insured, the borrower s equity, or provide the same scope of coverage as the borrower s normal homeowner s insurance; and The servicer or one of its affiliates may be paid a commission for its placement of the replacement insurance coverage. Additional notifications:* Servicer must notify the borrower in writing when it is required to change the FPI coverage amount due to the

Timing of Notices and Borrower Response good faith estimate shall be disclosed and identified as such. Statement that FPI may cost significantly more than hazard insurance and may not provide as much coverage as hazard insurance. Note: The elements in red are not required under Dodd-Frank. The CFPB is proposing model notices as part of the proposed rule. 1 st first class mail 45 days before FPI premium or charge assessed 2 nd first class mail, at least 30 days after 1 st first class mail 2 nd first class mail, at least 30 days after mailing of 1 st notice Borrower has 15 days after 2 nd notice was sent to pay for the future premiums necessary to maintain any required insurance policy; and (e) agrees servicer shall manage the escrow account in accordance with the loan documents and federal and state law; A statement, in the case of single interest coverage, that the coverage may only protect the mortgage holder s interest and not the homeowner s interest. Same as Dodd-Frank. * Provisions with an asterisk (*) next to them are new requirements as added by SVC-2012-04. 3 8-16-12 delinquent status of the loan. When offering the borrower a loss mitigation option, servicers must remind borrowers of the benefits of borrower-purchased insurance coverage, advising borrowers that (1) FPI may not provide the borrower coverage for personal property or contents; (2) FPI coverage may only cover the outstanding unpaid principal of a loan and it may not provide enough coverage to rebuild the borrower s home in case of a total loss; (3) FPI is in most cases more expensive than voluntary insurance coverage. Servicer must send at least two* written notices prior to obtaining FPI. Typically the borrower should have at least 60 days to provide evidence of coverage

Content of Borrower Response Renewal or Replacement of FPI mailing of 1 st notice Borrower has 15 days after 2 nd notice was sent to respond with proof Servicer must: 1) request in consumer notices that the borrower provide an insurance policy number and name, mailing address, and phone number for the borrower s insurance company or agent; and 2) describe how that information can be submitted. Servicer may not charge a borrower for renewing or replacing existing FPI unless the servicer sends a notice 45 days before charging and has not received evidence of the borrower obtaining hazard insurance. The contents of this notice are slightly different to reflect that it is a renewal of existing FPI. to respond with proof Servicer must accept any reasonable form of written confirmation from a borrower of existing insurance coverage, which shall include the existing insurance policy number along with the identity of, and contact information for, the insurance company or agent. The CFPB has the ability to modify these requirements. Same as Dodd-Frank, except: The servicer must accept written confirmation from either the borrow or the borrower s insurance agent; and No reference to CFPB. 8-16-12 before a charge for FPI is assessed to the borrower. Not specified. Not specified. Not specified. Not specified. * Provisions with an asterisk (*) next to them are new requirements as added by SVC-2012-04. 4

8-16-12 This must only be done on the first anniversary of a servicer obtaining FPI, and after that, a servicer is not required to comply with this notice before charging a borrower for renewing or replacing existing FPI more than once every 12 months. Refund Requirement Note: This is a new requirement that is not in Dodd-Frank. Within 15 days of receipt by servicer of evidence of a borrower s existing insurance coverage, servicer must: Terminate the FPI; and Refund to the customer all the FPI premiums paid by the borrower during any period during which the borrower s insurance coverage and the FPI coverage were each in effect, and any related fees charged to the consumer s account Within 15 days of receipt by servicer of evidence of a borrower s existing insurance coverage, servicer must: Terminate the FPI; and Refund to the customer all the FPI premiums paid by the borrower during any period during which the borrower s insurance coverage and the FPI coverage were each in effect, and any related fees charged to the consumer s account Same as Dodd-Frank. Same as Dodd-Frank, except the refund of fees only pertains to late charges. * The 15-day requirement is new under SVC 2012-04 and is effectively immediately. * Provisions with an asterisk (*) next to them are new requirements as added by SVC-2012-04. 5

8-16-12 Escrowed Accounts with respect to the FPI during such period. Remove all charges and fees from the borrower s account. CFPB is proposing to amend Reg X 1024.17(k)(1) and (2) by requiring the servicer to make timely disbursements from escrow funds to pay for a borrower s insurance premium even if the borrower is delinquent, absent cancellation of the policy by the borrower or the insurance company (for any reason other than nonpayment of premiums). This would require servicers to advance funds for longer than the 30 days currently required by Reg X. This continued payment would not constitute FPI. Note: This is not addressed in Dodd-Frank. with respect to the FPI during such period. No requirement. Servicer must continue to advance payments for the homeowner s existing policy, unless the borrower or insurance company cancels the existing policy. Additionally, servicer must make reasonable efforts to work with the borrower to continue or reestablish the existing homeowner s policy if there is a lapse in payment and the borrower s payments are escrowed. (Note: This requirement has been interpreted to apply to cases in which the lapse is due to servicer error.) When a mortgage loan payment includes escrows, the servicer must advance funds for the timely payment of the borrower s property insurance premiums. When a servicer has waived the escrow account requirement for a borrower, it is still responsible for the timely payment of insurance premiums. If the borrower fails to pay a premium, the servicer must advance its own funds to pay the past due premium and reinstate the borrower s insurance coverage, revoke the waiver, and begin escrow deposit collections to pay future premiums. * Provisions with an asterisk (*) next to them are new requirements as added by SVC-2012-04. 6

Charges, Fees, and Pricing Agent Commissions and Tracking Costs All charges, apart from charges subject to state regulation as the business of insurance, related to FPI imposed on the borrower by or through the servicer shall be bona fide and reasonable. A bona fide and reasonable charge is a charge for a service actually performed that bears a reasonable relationship to the servicer s cost of providing the service and is not otherwise prohibited by applicable law. Note: This definition of bona fide and reasonable is not in Dodd-Frank. All charges, apart from charges subject to state regulation as the business of insurance, related to FPI imposed on the borrower by or through the servicer shall be bona fide and reasonable. Any FPI policy must be purchased for a commercially reasonable price. * Provisions with an asterisk (*) next to them are new requirements as added by SVC-2012-04. 7 8-16-12 FPI vendor must have premium rates that are competitively priced and commercially reasonable. Servicer must have a documented process in place that demonstrates the vendor meets this requirement. Fannie reserves the right to require the servicer to change its FPI provider if the provider has not demonstrated its ability to file rates within a timely manner. * All of the provisions in this section are new under SVC 2012-04. No requirement. No requirement. No requirement. Fannie Mae is clarifying its requirement for reasonable reimbursable expenses for FPI. Any servicer request for reimbursement of FPI premiums must exclude: Any FPI commission earned on that policy by the servicer or any

Minimum / Maximum Amount of Coverage Required No requirement. No requirement. Servicer cannot place hazard or wind insurance on a property or require borrower to obtain or maintain such insurance in excess of the greater of: the replacement value, last known amount of coverage, or the outstanding loan balance, Unless required by applicable requirements or requested by borrower in writing. 8-16-12 related entity; Costs associated with insurance tracking or administration, or Any other costs beyond the actual cost of the FPI policy premium. Loans that are current to 119 days delinquent, insurance coverage amount should be the borrower s last known coverage amount. Loans 120 days or more delinquent as of effective date or which become 120 days delinquent after effective date, the coverage amount must be the lesser of: The unpaid principal balance or 100% of the insurable value of the improvements (as established by the property insurer) Servicers should not change the coverage * Provisions with an asterisk (*) next to them are new requirements as added by SVC-2012-04. 8

8-16-12 amount based on delinquency if the borrower is actively participating or has applied for a loss mitigation option. Required Deductible * All of the provisions in this section are new under SVC 2012-04. No requirement. No requirement. No requirement. Deductible requirement: $1,000 if the face amount of the policy is $100,000 or less or $2,500 for all other insurance policy coverage amounts. When a policy provides for a separate wind-loss deductible, that deductible must be 2% of the face amount of the policy. In the event of a loss when a borrower has FPI and the servicer discovers the borrower is unable to pay the deductible, the servicer must advance the short fall in funds up to the amount of the deductible, and the * Provisions with an asterisk (*) next to them are new requirements as added by SVC-2012-04. 9

8-16-12 servicer may submit for reimbursement by Fannie Mae. The servicer also must monitor the claim s status with the insurance carrier, the repairs, and disbursement of the insurance proceeds. Limitation on Coinsurance Qualification of Insurance Providers * All of the provisions in this section are new under SVC 2012-04. No requirement. No requirement. No requirement. FPI master policies must not contain a coinsurance clause or any other provision that yields the same result as a coinsurance clause.* No requirement. No requirement. No requirement. FPI carriers must be filed and admitted in every state in which they service loans for Fannie Mae. For carriers and FPI programs that do not meet this requirement, Fannie will allow the use of excess and surplus lines coverage during the filing period, up to a maximum of 180 days from the date of this * Provisions with an asterisk (*) next to them are new requirements as added by SVC-2012-04. 10

8-16-12 announcement. After that date, carriers cannot use surplus lines or excess coverage to write policies. Flood Insurance Effective Date No prohibition for servicer to provide simultaneous or concurrent notice of a lack of flood insurance pursuant to section 102(e) of the Flood Disaster Protection Act of 1973. Regulations to be finalized by January 2013 and effective no later than 12 months after final. If regulations are not issued, the statute is effective January 2013. Proposed regulations were issued on August 10, 2012, with comments due October 9, 2012. No prohibition for servicer to provide simultaneous or concurrent notice of a lack of flood insurance pursuant to section 102(e) of the Flood Disaster Protection Act of 1973. Regulations to be finalized by January 2013 and effective no later than 12 months after final. If regulations are not issued, the statute is effective January 2013. Same as Dodd-Frank. Must be approved by the court. Standards in effect for 3 ½ years after approved. * All of the provisions in this section are new under SVC 2012-04. Not addressed in SVC 2012-04. Original effective date of June 1, 2012 has been delayed. The 15-day refund requirement is effectively immediately. * Provisions with an asterisk (*) next to them are new requirements as added by SVC-2012-04. 11