NY Establishes Loss Mitigation, Fair Dealing Duties for Mortgage Servicers

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In mortgage lending, the reduction or elimination of credit losses to lenders, servicers, investors and insurers. In the broadest view, this can include any activity associated with recovery of the debt. Therefore everything from collections to sale of real estate owned (REO) property can be considered loss mitigation.

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(v) Foreclosure Is a Last Resort – The new servicing standards make foreclosure a last resort by requiring servicers to evaluate homeowners for other loss mitigation options first. In addition, banks will be restricted from foreclosing while the homeowner is being considered for a loan modification.

The New York State Banking Department has issued new regulations that address the business practices of mortgage loan servicers and establish additional consumer protections for homeowners. Part 419 of the Superintendent’s Regulations, which go into effect Oct. 1, 2010, are a follow-up to the adoption of Part 418 in July 2009, which established standards and procedures for the registration.

Servicing Transfers During Loss Mitigation A. Privately Enforceable RESPA Provisions 1. The requirements for responding to a loss mitigation application generally continue to apply even after the servicing of the borrower’s loan has been transferred. 2. Although a servicer is required to comply with section 1024.41 only for a single complete

Fair Lending Compliance in the Age of Disparate Impact Melanie H. Brody. Servicing / Loss Mitigation. 3. Conducting fair lending examinations of non-mortgage credit products, e.g., small business loans, payday loans

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In addition, Bankruptcy Judges in the Southern District of New York oversee a bankruptcy court-sponsored loss mitigation program to permit debtors and creditors to attempt to work out a mortgage default with greater transparency and accountability than is often available through mortgage industry loss mitigation programs outside of bankruptcy.

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Loss Mitigation and Mortgage Modification in Bankruptcy Courts The Mortgage Servicing Rule addresses, among other things, the requirements for responding to borrower inquiries and notices of errors; loss mitigation; early intervention with delinquent borrowers; and force-placed insurance. "Small servicers" meeting certain criteria are subject to some, but not all, aspects of the Mortgage Servicing Rule.

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