Servicers Need Clarity on CFPB’s View of Private-Label Practices

Investor Update
January 11, 2017

Earlier this year the U.S. Government Accountability Office issued a report which emphasized the fact that the share of mortgages serviced by nonbanks increased from 6.8% in 2012 to 24.2% in 2015.

This rise in market share by nonbank servicers leads many to believe that the practice of private-label servicing is ripe to be reviewed by the Consumer Financial Protection Bureau under their risk-based approach to supervision and enforcement.

The CFPB does not address the practice of private-label servicing in their guidance or any regulation. A common response to informal inquiry to the bureau is that the practice in not a violation per se.

However, given the CFPB’s penchant for regulation by enforcement, the mortgage industry needs to know where the line is drawn between a “service provider” or “vendor” performing the duties of private-label servicing and the duties of a subservicer. This is an opportunity for the Bureau to move away from the practice of regulation through enforcement and issue guidance that good actors in the space can use to avoid any unnecessary regulatory violations.

The report also stated that it is important for the CFPB to take steps to identify all nonbank entities and collect more comprehensive data to further ensure that all nonbank servicers comply with federal laws governing mortgage lending and consumer protection.

As mortgage servicing compliance costs have risen year over year, lenders have looked for a way to decrease costs while retaining their customer visibility and brand awareness. In response to this demand, private-label servicing has grown in popularity.

Private-label servicing products come in an array of offerings, ranging from a simple cobranding of billing statements which include the lending institution’s name and logo, all the way through private borrower-facing payment portals linked from the lender’s homepage with ACH drafts, credit reporting and collection activity all done in the lender’s name by the said private-label servicer.

With the most comprehensive offerings of private-label servicing, the borrower never knows the subservicer exists, and that’s the point. The wide spectrum of how this service is offered along with its increase in popularity, calls for regulatory guidance.

Those that are currently performing private-label servicing or utilizing the service rely on the argument that a subservicer providing private-label servicing is acting as a service provider or vendor of the servicer who retains the mortgage servicing rights.

As a service provider or vendor they are not acting as a traditional subservicer. The argument, while formally untested, is a valid one, there are service providers and vendors who perform activities for servicers every day that do the work in the name of servicer. However, there is an argument to be made that outsourcing the entire servicing business escalates a lender from a service provider or vendor to a subservicer.

Regulation X defines “master servicer” and “subservicer” but fails to address private-label servicing. Master servicer is defined as “the owner of the right to perform servicing. A master servicer may perform the servicing itself or do so through a subservicer.”

Subservicer is defined as “a servicer that does not own the right to perform servicing, but that performs servicing on behalf of the master servicer.” While “service provider” is defined in section 1002(26) of the Dodd-Frank Act as “Any person that provides a material service to a covered person in connection with the offering or provision by such covered person of a consumer financial product or service.”

Without formal guidance, there are at least five regulatory questions without a clear answer:

  • Is the lender required to issue a Notice of Transfer of servicing rights when loan boards with a private-label servicer?
  • Can the private-label servicer furnishing credit reporting in the name of the holder of the MSRs without violating the Fair Credit Reporting Act?
  • Which entity’s name should appear on a debt validation notices or mini Miranda warnings when acting as a collector on defaulted loans under the Fair Debt Collection Practices Act?
  • How will the private-label servicing be treated under Dodd-Frank’s unfair, deceptive, or abusive acts or practices policy, and what would be the best practices for both the subservicer and the master servicer to avoid a UDAAP violation?
  • Who would issue a privacy notice under the Gramm-Leach-Bliley Act?

For small originators who currently utilize private-label servicing it’s important to note that the CFPB is very clear about vendor liability; they have issued guidance on the topic found in CFPB Bulletin 2012–03. The use of a subservicer for private-label servicing does not absolve an institution of the compliance and/or regulatory risk. Prior to engagement, an institution should have a complete audit of policies, procedures and controls its private-label servicer has in place. These reviews should be completed on a regular basis.

Controls like these reviews will limit regulatory exposure but not eradicate it. Conversely, subservicers offering private-label servicing should be assessing if they have sufficiently reviewed procedures and product offerings under all applicable consumer lending regulations at both the state and federal level to ensure compliance.

Eventually, the mortgage industry will see guidance and regulations which address the issues raised in private-label servicing at the state level and/or the federal level, until then the industry should be very attentive to the risks associated with the practice and push for more guidance on the topic.

Craig Nazzaro is of counsel in regulatory and compliance issues in Baker Donelson’s Atlanta office.

Source: National Mortgage News

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CEO

Alan Jaffa

Alan Jaffa is the Chief Executive Officer for Safeguard Properties, steering the company as the mortgage field services industry leader. He also serves on the board of advisors for SCG Partners, a middle-market private equity fund focused on diversifying and expanding Safeguard Properties’ business model into complimentary markets.

Alan joined Safeguard in 1995, learning the business from the ground up. He was promoted to Chief Operating Officer in 2002, and was named CEO in May 2010. His hands-on experience has given him unique insights as a leader to innovate, improve and strengthen Safeguard’s processes to assure that the company adheres to the highest standards of quality and customer service.

Under Alan’s leadership, Safeguard has grown significantly with strategies that have included new and expanded services, technology investments that deliver higher quality and greater efficiency to clients, and strategic acquisitions. He takes a team approach to process improvement, involving staff at all levels of the organization to address issues, brainstorm solutions, and identify new and better ways to serve clients.

In 2008, Alan was recognized by Crain’s Cleveland Business in its annual “40-Under-40” profile of young leaders. He also was named a NEO Ernst & Young Entrepreneur Of The Year® Award finalist in 2013.

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Esq., General Counsel and EVP

Linda Erkkila

Linda Erkkila is the General Counsel and Executive Vice President for Safeguard Properties, with oversight of legal, human resources, training, and compliance. Linda’s broad scope of oversight covers regulatory issues that impact Safeguard’s operations, risk mitigation, strategic planning, human resources and training initiatives, compliance, insurance, litigation and claims management, and counsel related to mergers, acquisition and joint ventures.

Linda assures that Safeguard’s strategic initiatives align with its resources, leverage opportunities across the company, and contemplate compliance mandates. She has practiced law for 25 years and her experience, both as outside and in-house counsel, covers a wide range of corporate matters, including regulatory disclosure, corporate governance compliance, risk assessment, compensation and benefits, litigation management, and mergers and acquisitions.

Linda earned her JD at Cleveland-Marshall College of Law. She holds a degree in economics from Miami University and an MBA. Linda was previously named as both a “Woman of Influence” by HousingWire and as a “Leading Lady” by MReport.

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Michael Greenbaum

Michael Greenbaum is the Chief Operating Officer of Safeguard Properties, where he has played a pivotal role since joining the company in July 2010. Initially brought on as Vice President of REO, Mike’s exceptional leadership and strategic vision quickly propelled him to Vice President of Operations in 2013, and ultimately to COO in 2015. Over his 14-year tenure at Safeguard, Mike has been instrumental in driving change and fostering innovation within the Property Preservation sector, consistently delivering excellence and becoming a trusted partner to clients and investors.

A distinguished graduate of the United States Military Academy at West Point, Mike earned a degree in Quantitative Economics. Following his graduation, he served in the U.S. Army’s Ordnance Branch, where he specialized in supply chain management. Before his tenure at Safeguard, Mike honed his expertise by managing global supply chains for 13 years, leveraging his military and civilian experience to lead with precision and efficacy.

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Joe Iafigliola

Joe Iafigliola is the Chief Financial Officer for Safeguard Properties. Joe is responsible for the Control, Quality Assurance, Business Development, Marketing, Accounting, and Information Security departments. At the core of his responsibilities is the drive to ensure that Safeguard’s focus remains rooted in Customer Service = Resolution. Through his executive leadership role, he actively supports SGPNOW.com, an on-demand service geared towards real estate and property management professionals as well as individual home owners in need of inspection and property preservation services. Joe is also an integral force behind Compliance Connections, a branch of Safeguard Properties that allows code enforcement professionals to report violations at properties that can then be addressed by the Safeguard vendor network. Compliance Connections also researches and shares vacant property ordinance information with Safeguard clients.

Joe has an MBA from The Weatherhead School of Management at Case Western Reserve University, is a Certified Management Accountant (CMA), and holds a bachelor’s degree from The Ohio State University’s Honors Accounting program.

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Business Development

Carrie Tackett

Business Development Safeguard Properties