Secondary Market

Freddie Mac's conservator, the Federal Housing Finance Agency (FHFA), is requiring Freddie Mac and its fellow GSE, Fannie Mae, to reduce the number of non-performing residential loans in their portfolios. This will be Freddie Mac's third sale of nonperforming loans since last summer. In August, the Enterprise sold a bundle of NPLs totaling $596 million and one in February that covered $392 in UPB. Sales of NPLs by the two Enterprises generally include loans that are seriously delinquent, which are those that are 90 days or more past due.

Servicers are now required to evaluate mortgage loans backed by the two GSEs and actively reach out to borrowers to offer a streamlined loan modification if the mortgage loan was previously modified to include a step-rate feature (which allows for a gradual rate increase in the first few years) and if the mortgage rate becomes 60 days delinquent in the first 12 months following a rate increase.

Counsel's Corner is an ongoing series in which DS News talks with default servicing attorneys around the country about the most pressing issues facing the default servicing industry. This installment features Stacey Slaughter, partner with Robins Kaplan.

According to Ocwen, the portfolio consists of approximately 55,000 performing loans owned by Freddie Mac. The transaction is subject to approval by Freddie Mac and its conservator, the Federal Housing Finance Agency (FHFA), as well as other customary conditions. Ocwen reported that it expects the transaction to close by April 30, 2015, and expects the loan servicing to transfer in May 2015.

In an update on its website dated March 2, Ocwen announced that it had "signed a letter of intent with a buyer on the sale of mortgage servicing rights (MSRs) on a portfolio consisting of approximately 277,000 performing Agency loans owned by Fannie Mae with a total unpaid principal balance of approximately $45 billion." In that March 2 update, Ocwen wrote that the transaction was "subject to a definitive agreement, approvals by Fannie Mae and FHFA and other customary conditions, Ocwen expects the transaction to close by mid-year and the loan servicing to transfer over the course of the second half of 2015."

Nomura, which is headquartered in Japan and is one of the world's biggest banks, is the first financial institution to go to trial out of the 18 lenders FHFA sued in 2011 to recoup U.S. taxpayer costs following the government's $188 billion bailout of Fannie Mae and Freddie Mac in 2008, after which the government seized control of both Enterprises.

Recent actions by the Federal Housing Finance Agency (FHFA) indicate that the Agency is placing an increased emphasis on the clearing out of Fannie Mae's and Freddie Mac's seriously delinquent loan portfolios and steering more borrowers toward foreclosure prevention and loss mitigation actions, using foreclosure only as an absolute last resort.

FHFA is said to be seeking $1 billion in damages over losses the Agency suffered when the sponsor of the mortgage-backed securities, Nomura, and the securities' underwriter, RBS, did not follow underwriting guidelines on 68 percent of a sample of a bundle of securities backing more than $2 billion worth of mortgages sold to the GSEs prior to the financial crisis of 2008.

The institutional investors, including affiliates of investment manager BlackRock Inc. and Pacific Investment Management Company LLC, had objected to the settlement, saying it excludes them from the class, while simultaneously releasing their claims against U.S. Bank in a derivative action. The judge said the terms of the agreement didn’t bar those investors' claims.

In the February 2015 Mortgage Industry Outlook Report released last month by the Collingwood Group and the Five Star Institute, 39 percent of survey respondents who service Federal Housing Administration (FHA) mortgages said that the biggest challenge in servicing those loans was fulfilling the Agency's property preservation requirements.