x0000x0000 CARES Act Forbearance Foreclosurex0000x0000May 2020 - PDF document

1 �� CARES Act Forbea
�� CARES Act Forbearance & Foreclosure��May 2020 CARES Act Forbearance Provisions The mortgage relief provided by the CARES Acthas prompted questions regarding the Act’s forbearance provisions. Mortgage companies navigating Statutory Overview The CARES Act provides protections for borrowers with federallybacked mortgages, which are No additional interest, fees, or penalties can be charged beyond the amounts scheduled or calculated as if the borrower made all contractual payments on time and in full under Relevant Rules & Guidelines How the CARES Act interacts with rules or guidelines from regulators may not always be clear. Regardless, there are several regulations and guidelines that pertain to servicers’ determinations as to how to implement the CARES Act requirements, including:Regulationand ZCFPB, OCC, FDIC, FRB, NCUA, and CSBS Practices Regarding the MortgageServicing Rules in Response to the COVID19 Emergency and the CARES Act CFPB Mortgage Servicing Rules FAQs related to the COVID19 Emergency Fannie Mae Lender Letter (LL202002) Freddie Mac Bulletin 2020 Temporary Servicing Guidance Related to COVID Federal Housing Administration COVID19 Questions and Answers Veterans Benefits Administration Extended Relief Under the CARES Act for those Affected by COVID Coronavirus Aid, Relief, and Economic Security Act, Public Law No: 116(27 March 2020) (“CARES Act”). Available athttps://www.congress.gov/bill/116thcongress/housebill/748/text . CARES Act §4022(a)(2). 2 Questions and Answers The following Q&A’s prefaced with context related to observed or anticipated actions by mortgage servicers. Context: Some servicers are granting a CARES Act forbearance for an initial period shorter than the 180day period referenced in the CARES Act(e.g. 3 months), followed by review and potential extension by the servicerQ: Given thatthe CARES Act says, “up to 180 days,” are servicers allowed to provide forbearances in shorter increments? A: According to investor guidelines, ervicers can grant CARES Act forbearance periods for less than 180daysthe borrower’s request or with theborrower’s consent. However,servicers must default to the term requested by the borrower (not to exceed 180 days) if the borrower and servicer cannot agree on an appropriate forbearance length or communication with the requesting borrower is not possible under the circumstancesServicers are obligated to provide a

2 CARES Act forbearance if: (1) a borrower
CARES Act forbearance if: (1) a borrower requests forbearance, and (2) the borrower affirms financial hardship due to the COVID19 emergency.Because the statutory language qualifies the period as “up to” days, servicers can grant forbearance in separate, shorter increments than the 180day periodwith borrowerconsent, but must extend those shorter periodsunless agreed by the borrower withno further borrower attestation requiredServicers must effectively manage compliance withCARES Act forbearancerequirements andrelated operational activities of the institution over the full lifecycle of the forbearance period. When grantinga period other than 180 days with the borrower’s consentthe servicer’s board of directors and management mustprovide the additional resources necessary to continue forbearance as required under the CARES Act. In order to be responsive to borrowers and to ensure compliance with law, management should assessits ability to adequately perform under shorter, incremental forbearance periods, including anysupplementalsystems or human resourcesneedContext: Some servicers are asking for documentation of the need for forbearance or proof that the borrower can’t make their payment.Q: Mayservicers request information supporting the need for forbearance? A: Forbearance must be granted if requested andthe borrower attests a COVIDrelated hardship.However, servicers may work with the borrowerto better understand the borrower’s situation so long as (i) borrowers are not misled about the requirementsof,or dissuaded from proceeding witha CARES Act forbearance if they have a COVIDrelated hardship and (ii) any information obtained from the borrower has no bearing on theservicer’s provision ofa CARES Act forbearance. CARES Act § 4022(b)(1). �� &#x/Att;¬he; [/;ott;&#xom ];&#x/BBo;&#xx [6;.44;i 3;.55;U 5;S.6;࢖ ;c.7;g ];&#x/Sub;&#xtype;&#x /Fo;&#xoter;&#x /Ty;&#xpe /;&#xPagi;&#xnati;&#xon 0;&#x/Att;¬he; [/;ott;&#xom ];&#x/BBo;&#xx [6;.44;i 3;.55;U 5;S.6;࢖ ;c.7;g ];&#x/Sub;&#xtype;&#x /Fo;&#xoter;&#x /Ty;&#xpe /;&#xPagi;&#xnati;&#xon 0;3 &#x/MCI; 0 ;&#x/MCI; 0 ; &#x/MCI; 1 ;&#x/MCI; 1 ;Q: Do borrowers need to prove hardship?A: No. Attestation of hardship due to COVID19 is the exclusive requirement established by the CARES Act for forbearance.Q: Mayservicers determine that a borrower does not need a CARES Act forbearance and

3 limit the amount of forbearance given?A
limit the amount of forbearance given?A: No. A servicer must grant forbearance to any requesting borrower with a federally backed mortgage loanattesting toa COVID19 relatedhardship regardless of delinquency status. Context: some servicers are steering borrowers away from requesting forbearance. Q: Shoulda servicer steera borrower away from a CARES Act forbearance?A: he CARES Act dictates that forbearance must be granted upon request by an attesting borrowerExaminers will evaluate communicationbetween borrowers and their servicers, includingthe servicer’scommunication of repayment optionsfor legalcomplianceor resulting consumer harmA servicer that offersvery limited repayment options when others are reasonably availablecoulddepending on the facts and circumstances, be at risk of legal violation orcausingconsumer harm.Context:some originatorsare reported to structure closing attestations in a manner designed to discourage borrowers that subsequently experience a COVIDrelated hardshipfrom requesting forbearance. Q: Should an originator use loan closing attestations, notices or other communications to discourage borrowers from seeking forbearance under the CARES Act following loan closing.A: Examiners will evaluate originator communications with borrowers for legal compliance or causing consumer harm. An originatorthat misleads a borrower concerning herrights under the CARES Actcould, depending on the facts and circumstances, be at risk ofcommitting alegal violation or causing consumer harm. See, e.g. Joint Statement on Supervisory and Enforcement Practices Regarding the Mortgage Servicing Rules in Response to the COVID19 Emergency and the CARES Act (“Servicers may notrequire any additional information from the borrower before granting a CARES Act forbearance.”) Fannie Mae Lender Letter 202002 (“[N]o additional documentation other than the borrower’s attestation to a financialhardship caused by the COVIDemergency is required.”;Freddie Mac Temporary Servicing Guidance Related to COVID19 (“In the event the Servicer and Borrower cannot agree on an appropriate forbearance length, or further communication with the Borrower isnot possible under the circumstances, the Servicer must provide the term requested by the Borrower, not to exceed 180 days. Fannie Mae, Freddie Mac, the Federal Housing Administration, the U.S. Department of Veterans Affairs, and the U.S. Department ofAgriculturehave provided guidance for repayment of forborne payments.