Settlement Includes a Minimum of $22 Million in Relief for Victims

WASHINGTON – The Justice Department recently announced settlements with two lenders under the Servicemembers Civil Relief Act (SCRA) to resolve allegations that the lenders wrongfully foreclosed upon active duty servicemembers without first obtaining court orders, in violation of the SCRA. Combined, the settlements provide more than $22 million in monetary relief for the victims.

Under the first settlement , BAC Home Loans Servicing LP, formerly known as Countrywide Home Loans Servicing LP, a subsidiary of Bank of America Corporation, will pay $20 million to resolve a lawsuit alleging that Countrywide foreclosed on approximately 160 servicemembers between January 2006 and May 2009 without court orders. In addition to the $20 million, Countrywide agreed to pay any servicemember wrongfully foreclosed in the period from June 2009 through 2010. The complaint alleges that Countrywide did not consistently check the military status of borrowers on whom it foreclosed through at least May 31, 2009. The complaint was filed in the Central District of California, where Countrywide is headquartered.

Under the second settlement, Saxon Mortgage Services Inc., a subsidiary of Morgan Stanley, will pay $2.35 million to resolve a lawsuit alleging that Saxon foreclosed on approximately 17 servicemembers between January 2006 and June 2009 without court orders. In addition to the $2.35 million, Saxon agreed to pay any servicemember wrongfully foreclosed in the period from July 2009 through 2010. The complaint alleges that Saxon failed to consistently or accurately check the military status of borrowers on whom it foreclosed through at least June 30, 2009. The complaint was filed in the Northern District of Texas, where Saxon is headquartered.

“The men and women who serve our nation in the armed forces deserve, at the very least, to know that they will not have their homes taken from them wrongfully while they are bravely putting their lives on the line on behalf of their country,” said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division of the Department of Justice. “The Civil Rights Division is committed to aggressively enforcing those laws that protect the rights of servicemembers. All lenders have an obligation to do their part to work with servicemembers while these brave men and women focus on keeping us safe. The Justice Department also thanks the Department of Defense for its critical assistance in identifying servicemembers whose rights were violated”

“Countrywide Home Loans failed to protect and respect the rights of our servicemembers, failed to comply with clearly mandated procedures and foreclosed against homeowners who are valiantly serving our nation,” said André Birotte Jr, U.S. Attorney for the Central District of California. “Military families lost their homes when Countrywide violated the law, causing undue stress to wartime personnel who have been protected from such actions since the Civil War.”

“With the numerous sacrifices our servicemembers make while they are serving our country, the last thing they need to worry about is whether or not their families will be forced from their homes,” said James T. Jacks, U.S. Attorney for the Northern District of Texas. “These lenders’ callous disregard for the SCRA, a law which was designed to insulate these patriots from unlawful foreclosures and other civil and financial obligations while they are on active duty, is deplorable and I applaud the Department’s Civil Rights Division’s efforts in identifying and seeking remedies for these wronged service members.”

Of the approximately 160 servicemembers upon whom Countrywide foreclosed without obtaining court orders, Countrywide allegedly foreclosed in many instances where it knew, or should have known, about their military status. The victims include individuals who have served honorably in Iraq and Afghanistan. The Department of Justice initiated its SCRA investigation of Countrywide in response to a referral by the U.S. Marine Corps regarding an active duty servicemember who was facing foreclosure by Countrywide.

Under the consent decree, Countrywide will establish a settlement fund of $20 million to compensate the servicemembers upon whom Countrywide foreclosed between January 1, 2006, and May 31, 2009. In addition to this settlement fund, Countrywide has agreed to compensate any additional SCRA-eligible individuals on whom Countrywide foreclosed without court orders between June 1, 2009, and Dec. 31, 2010. The consent decree also requires numerous corrective measures, including SCRA training for Countrywide employees and agents, developing modified SCRA policies and procedures and referring future SCRA complaints to the Justice Department. Countrywide will also repair any negative credit report entries related to the allegedly wrongful foreclosures and will not pursue any remaining amounts owed under the mortgages. Countrywide now will check the Defense Manpower Data Center’s website and its own files prior to conducting any foreclosure, and will not foreclose in violation of the SCRA if the borrower is in military service or is otherwise protected by the SCRA.

Of the approximately 18 servicemembers upon whom Saxon foreclosed without obtaining court orders, Saxon allegedly foreclosed on at least 10 servicemembers when Saxon knew or should have known about their military status. The servicemembers Saxon foreclosed on include men and women who have served honorably in Iraq, some of whom were severely injured in the line of duty or suffer from post-traumatic stress disorder. The Department of Justice initiated its SCRA investigation in response to an inquiry from Sergeant James Hurley, who resolved his claims against Saxon earlier this year in a confidential settlement.

Under the consent decree, Saxon will establish a settlement fund of $2.35 million to compensate the servicemembers upon whom Saxon allegedly wrongfully foreclosed between 2006 and 2009. In addition to this settlement fund, Saxon also has agreed to compensate any additional SCRA-eligible servicemembers on whom Saxon foreclosed without court orders between July 1, 2009, and Dec. 31, 2010. The consent decree also requires numerous corrective measures, including SCRA training for Saxon employees and agents, developing modified SCRA policies and procedures, and referring future SCRA complaints to the Justice Department. Saxon will also repair any negative credit report entries related to the wrongful foreclosures and will not pursue any remaining amounts owing under the mortgages. Saxon now will check the Defense Manpower Data Center’s website and its own files prior to conducting any foreclosure, and will not foreclose in violation of the SCRA if the borrower is in military service or is otherwise protected by the SCRA.

The division’s SCRA investigations have resulted in litigation or settlements enforcing SCRA’s provisions for termination of residential lease agreements, protection against enforcement of storage liens on towed vehicles without court orders, reduction of interest rates to six percent on credit obligations, and a prohibition against paying pre-payment penalties on mortgage loans when a servicemember must move for military service.

President Obama established the interagency Financial Fraud Enforcement Task Force to wage an aggressive, coordinated and proactive effort to investigate and prosecute financial crimes. The task force includes representatives from a broad range of federal agencies, regulatory authorities, inspectors general and state and local law enforcement who, working together, bring to bear a powerful array of criminal and civil enforcement resources. The task force is working to improve efforts across the federal executive branch, and with state and local partners, to investigate and prosecute significant financial crimes, ensure just and effective punishment for those who perpetrate financial crimes, combat discrimination in the lending and financial markets, and recover proceeds for victims of financial crimes. For more information on the task force, visit www.stopfraud.gov .

Servicemembers and their dependents who believe that their SCRA rights have been violated should contact the nearest Armed Forces Legal Assistance Program office. Please consult the military legal assistance office locator at http://legalassistance.law.af.mil and click on the Legal Services Locator. Additional information about the Justice Department’s enforcement of the SCRA and the other laws protecting servicemembers is available at www.servicemembers.gov. Servicemembers who believe they may have been victims, can contact the banks directly at 1-800-896-7743, mailbox 6 for Countrywide or 1-800-896-7743, mailbox 995 for Saxon.

The American Bar Association has announced that Judge J. Rich Leonard of

the United States Bankruptcy Court for the Eastern District of North Carolina is

the 2011 recipient of the Robert B. Yegge Award, which will be presented at the

annual meeting in Toronto on August 4. The Award is given annually to a judge or

lawyer who has made an outstanding contribution to judicial administration in the

United States. Judge Leonard was recognized for his two-decade effort to assist

in developing and overseeing the electronic case filing and public access systems

of the federal courts, his pioneering program to make the digital audio recordings

of federal court proceedings available to the public over the Internet, his efforts

at training and educating court officials and attorneys in the U.S. and abroad, his

chairmanship of the current task force to assist in the design of the next

generation of federal case management systems, and his editorship of the

American Bankruptcy Law Journal. The Award is made possible by an endowment

from the family of Dean Emeritus Robert B. Yegge of the University of Denver Law

School, a national pioneer in the field of judicial administration.

Judge Leonard has spent his career in the federal courts in eastern North

Carolina. He began in 1979 as the Clerk of Court for the United States District

Court, became a United States Magistrate Judge in 1981, and joined the United

States Bankruptcy Court in 1992 where he served as chief judge from 1998-2005.

In 1995, President Clinton nominated him for a seat on the United States Court of

Appeals for the Fourth Circuit, but his confirmation was blocked by Senator

Helms.

A native of Welcome, North Carolina in Davidson County, he graduated

from the University of North Carolina, where he was a Morehead Scholar, and

Yale Law School. Judge Leonard is the father of five children, and is married to Dr.

Whitney Cain, an associate professor of psychology at Peace College.

By North Carolina Attorney General Roy Cooper

During the economic downturn, job loss and other hardships have caused many families to fall behind on their bills. No matter the circumstances, most consumers dread the thought of a debt collector calling to ask about an unpaid debt or overdue bill.

The NC Attorney General’s office hears from hundreds of consumers each year about how they were treated by a collection agency or how frequently they were contacted about a debt. Complaints about debt collectors ranked fifth among all consumer complaints my office received last year.

Once you fall behind on a debt, your creditor may turn your account over to a debt collector. It’s your responsibility to pay what you owe on time, but debt collectors must follow rules that protect you from abusive practices. In North Carolina, these laws apply to creditors collecting their own debts as well as third party debt collectors.

Debt collectors may not:

* Harass you, use profanity, or threaten you with violence.
* Tell you that you will be arrested if you don’t pay your debts.
* Pretend to be attorneys or government representatives.
* Tell your employer or others about your debts.
* Pretend that they are contacting you for reasons other than to collect a debt.
* Contact you before 8 AM or after 9 PM unless you agree.

Debt collectors are allowed to contact you:

* In person, or by mail, telephone, or fax.
* At home, between the hours of 8 AM and 9 PM.
* At work, unless they have a telephone number to reach you during non-working hours. Debt collectors must stop calling you at work if they know that your employer disapproves of the calls.
* Through people who know you, if they’re unable to find you. When a collection agency contacts people you know, they are not allowed to say why they are trying to contact you or how much you owe.

To stop a collection agency from contacting you at home or at work, put your request in writing. Send a letter by certified mail telling the debt collector to cease phone contact with you both at your home and your job. Be sure to keep a copy of the letter for your records. Once they get your letter, they may not contact you again except to tell you that a creditor intends to take some specific action on your account.

If a debt collector starts calling about a debt that isn’t yours, it could mean that the debt collector has the wrong information or that someone has stolen your identity and used it to open accounts in your name. If the debt isn’t yours, inform the debt collector immediately and ask for proof that you owe the debt. Also, check your credit report regularly to make sure that you haven’t become a victim of identity theft. You can get a free copy of your credit report by calling 1-877-322-8228 or visiting www.annualcreditreport.com.

For more help and advice about identity theft, or to file a complaint about a debt collector who refuses to follow the rules, contact the North Carolina Attorney General’s Consumer Protection Division at 1-877-5-NO-SCAM toll-free in North Carolina or online at www.ncdoj.gov.

The North Carolina Office of the Commissioner of Banks (NCCOB) announced that the mortgage rules adopted in March 2010 to reduce foreclosures have been approved by the Rules Review Commission and will take effect for licensed mortgage servicers on June 1, 2010.

NCCOB first proposed the rules in November 2009 due to its concerns that homeowners often face foreclosure when alternative solutions exist that would benefit both the homeowner and the mortgage company. The rules were adopted by the Commissioner and approved by the North Carolina State Banking Commission on March 17, and the Rules Review Commission approved these rules on April 16th at its regularly scheduled meeting.

NCCOB says new requirements contained in the new rules will improve opportunities for homeowners to avoid foreclosure:

• Require a mortgage servicer to stop foreclosure efforts pending the consideration of a request by the homeowner for assistance (Rule 703). Currently, most mortgage servicers continue to advance foreclosure proceedings, even when they are in the process of modifying the delinquent loan. This adds significant costs and confusion for homeowners trying to work-out their loan. Given the unprecedented number of homeowners requesting assistance, some servicers have struggled to qualify them for assistance in a timely fashion, which has led to some losing their home when they would have been eligible for existing foreclosure prevention programs.

• Require a mortgage servicer to respond promptly and clearly to homeowner requests for assistance (Rule 702). As noted above, mortgage servicers have struggled to respond promptly to borrowers with concise and needed information regarding their qualification for foreclosure prevention assistance. Homeowner frustration caused by inefficiencies in the loan modification process, such as poor communication, the need to send documents multiple times, and repeated calls to check on the status of the request, have resulted in unnecessary foreclosures. Rule 702 provides a timeline for communications to homeowners and specifies the required content of communications to increase the reliability, transparency, and efficiency of the foreclosure prevention process.

The final rules apply to non-bank mortgage servicers regulated by NCCOB under the NC SAFE Mortgage Licensing Act and do not apply to bank servicers. NCCOB hopes that bank servicers with large numbers of delinquent mortgage loans will consider adopting similar procedures to reduce the potential of unnecessary foreclosures.

State Home Foreclosure Prevention Project assists 4,000th homeowner in avoiding foreclosure

In addition to the rules, NCCOB has been working with its partners to help homeowners fight foreclosure through the State Home Foreclosure Prevention Project (SHFPP). To date, SHFPP has helped over 4,000 North Carolina homeowners avoid foreclosure. In addition, more than 10,000 other homeowners have met with non-profit housing counselors to get free advice and assistance in dealing with their finances and mortgage problems.

NCCOB estimates the impact of avoiding foreclosures on these homes has prevented almost $350 million in neighboring property value declines and financial system losses. Utilizing 34 local non-profit counseling agencies across the state and one national non-profit phone counseling agency, the program has prevented foreclosures in all 100 counties in North Carolina. SHFPP involves a network of State agencies, HUD-certified counselors, legal service providers and non-profit organizations working together to help homeowners avoid foreclosure.

Homeowners seeking help from SHFPP can receive free assistance over the phone by calling toll-free, 1-866-234-4857 (8:00 a.m.-9:00 p.m., Mon.-Fri.; 8:00 a.m.-5:00 p.m., Sat.). In addition, homeowners may wish to meet with a local counselor directly. A full list of these counselors and additional information can be found at www.fightncforeclosure.org.

The final mortgage rules are available at http://www.nccob.org/NCCOB/Mortgage/Proposed+Rules+and+Amendments+to+the+Mortgage+Licensing+Act.htm.

NCCOB regulates state-chartered banks, thrifts, savings and loans, trust companies, and more than 600 mortgage lenders/servicers/brokers and 6,000 mortgage loan originators, as well as numerous consumer finance companies, check-cashers, and other financial services. NCCOB is funded by industry fees and assessments and not taxpayer dollars.

North Carolina state regulators have ruled that once a homeowner asks for a loan modification, any foreclosure actions must be halted. Previously, lenders pursued foreclosures at the same time they were working with homeowners to make their loan payments more manageable. That puts homeowners up against the clock.

”We believe that the mortgage industry has failed to prevent as many foreclosures as they could have, and that there are some significant flaws in the system," said Mark Pearce, North Carolina Deputy Commissioner of Banks.  "We think the new rules that we adopted … will help homeowners have a better chance of avoiding foreclosure when they have the ability to stay in the home."

The second new regulation requires mortgage servicers to respond clearly and promptly when homeowners ask for mortgage assistance. Often times, a breakdown in communication can lead to foreclosure.

The regulations take effect June 1, 2010. They apply to mortgage brokers and other lenders that account for about three-quarters of the mortgages in the State of North Carolina. The rules do not apply to banks or savings and loans.

Community banks and other state-chartered banks haven’t been much of a problem on the foreclosure front, Pearce said. The commission doesn’t have authority over federally chartered banks such as Bank of America and Wells Fargo.

The regulations were approved by the North Carolina Banking Commission and Joe Smith, the NC Commissioner of Banks.

North Carolina Attorney General Cooper backed new law to save homes and communities, stop harassment from debt buyers

North Carolinians who face the loss of their homes through foreclosure or harassment from unfair debt collectors now have new protections under the law, according to NC Attorney General Roy Cooper.

The Consumer Economic Protection Act of 2009 (CEPA), which Cooper worked with state legislators to enact, will ensure that homeowners and their mortgage lenders have the chance to voluntarily resolve foreclosures. The new law, which started October 1, 2009, will also protect consumers from an aggressive new breed of debt collectors called debt buyers.

“Losing a home should be a last resort because foreclosures hurt the whole economy,” Cooper said. “With this new law, homeowners and lenders get more time to rework mortgages so that more families can afford to stay in their homes.”

Court records show that nearly 40,000 North Carolina homes have gone into foreclosure so far in 2009. According to the Center for Responsible Lending, more than 2.2 million North Carolina homeowners will see their property values decline over the next three years because of foreclosures in their neighborhood. Foreclosures hurt lenders as well, costing them an estimated 40 percent of the loan value.

Not all foreclosures can be prevented, but some homeowners are able to work out repayment plans and loan modifications with their mortgage lender or servicer. CEPA requires lenders to explain in detail their efforts to resolve delinquent home loans without resorting to foreclosure. Clerks of Court presiding over a foreclosure hearing now have the authority to ask what steps have been taken to prevent foreclosure and to continue the hearing for up to 60 days to allow homeowners and lenders more time to negotiate a solution.

To give homeowners a fair opportunity to appeal foreclosure orders, CEPA also standardizes the amount of bond required at one percent of the balance due on the loan. Previously, some homeowners were asked to put up a bond worth the entire value of the loan balance in order to be able to appeal their foreclosure.

For free counseling on options to avoid foreclosure, North Carolina homeowners can call a toll-free hotline set up by the NC Commissioner of Banks’ Office. The hotline, 1-866-234-4857, is available from 8:00 AM to 9:00 PM Monday through Friday, and from 8:00 AM to 5:00 PM on Saturdays.

The new law also protects North Carolina consumers from unfair debt collection practices by debt buyers, a new type of debt collector that pursues old debts even when the debts have already been settled or paid.

For example, a debt buyer sued a 65-year-old North Carolina woman, producing billing statements supposedly sent to her at an address in Greensboro. But the consumer, who has lived in the same house for more than 30 years, had never lived in Greensboro.

In another case, a 73-year-old North Carolinian received daily calls from a debt buyer, telling her that she would never be able to buy anything if she didn’t pay them. The account the debt buyer was trying to collect was opened in Ohio, and the woman had never set foot in Ohio. A criminal had stolen her identity years before and been prosecuted and convicted for it, but the debt buyer still filed suit against her over the debt that wasn’t hers.

Under the new law, debt buyers must now prove that they have the right to enforce the debt and be able to verify the amount owed. Debt buyers are also prohibited from filing or threatening to file suit when barred by the statute of limitations.

“Whether you’re a senior on a fixed income or a working family trying to make ends meet, the last thing you need is someone hounding you to pay a debt that you don’t really owe,” Cooper said.

A provision in the original legislation that would have clarified the Attorney General’s Office’s enforcement over investment scams involving securities will be pursued in the next legislative session.

Consumer tips on home loans, debt collectors and many other topics are available from the Attorney General’s Consumer Protection Division at www.ncdoj.gov.

Senate Bill 974 will save North Carolina communities and protect against unfair debt collectors

RALEIGH – Last week, North Carolina Governor Bev Perdue signed Senate Bill 974, The Consumer Economic Protection Act Of 2009 (CEPA),which will help homeowners facing foreclosure, preserve communities, and protect consumers from unfair debt collectors.

“When a home is foreclosed — it’s bad for our families, it’s bad for our communities, it’s bad for our businesses and it’s bad for North Carolina,” said Gov. Perdue. “This bill makes it easier for homeowners to work out a deal with their lenders and avoid foreclosure.”

Court records show that nearly 40,000 North Carolina homes have gone into foreclosure so far in 2009. According to the Center for Responsible Lending, more than 2.2 million North Carolina homeowners will see their property values decline over the next three years because of foreclosures in their neighborhood. Foreclosures hurt lenders as well, costing them an estimated 40 percent of the loan value.

“Everybody loses when a foreclosure happens,” NC Attorney General Roy Cooper said. “Giving homeowners and lenders more time to find solutions can save homes, neighborhoods and money.”

Not all foreclosures can be prevented, but some homeowners are able to work out repayment plans and loan modifications with their mortgage lender or servicer. The bill, sponsored by Senator Tony Rand and Representatives Deborah Ross, Larry Hall, Grier Martin, and Dan Blue, will ensure that homeowners and their mortgage lenders have the chance to voluntarily resolve foreclosures.

SB 974 empowers the Clerk of Court presiding over a foreclosure hearing to ask what steps have been taken to prevent foreclosure and to continue the hearing for up to 60 days to allow homeowners and lenders more time to negotiate a solution.

To give homeowners a fair opportunity to appeal foreclosure orders, the bill also standardizes the amount of bond required at one percent of the balance due on the loan. Previously, some homeowners were asked to put up a bond worth the entire value of the loan balance in order to be able to appeal their foreclosure.

The bill also protects North Carolina consumers from unfair debt collection practices by debt buyers, a new breed of debt collectors that purchase old debts and aggressively file lawsuits to collect on them. In some cases, the debts have already been settled or paid. Debt buyers must now prove that they have the right to enforce the debt and be able to verify the amount owed. The new law also prohibits debt buyers from filing or threatening to file suit when barred by the statute of limitations.

Consumer tips on home loans, debt collectors and many other topics are available from the Attorney General’s Consumer Protection Division at www.ncdoj.gov.

Banks are quietly changing the terms of millions of credit card accounts as they brace for a tough new law that will limit rate hikes, according to a recent commentary in the Los Angeles Times.

The Credit Card Accountability, Responsibility and Disclosure Act (P.L. 111-24), which President Obama signed in May, will be phased in between August and February. The law would restrict interest rate increases unless a credit card has a variable rate.

Two major lenders have already switched their cards with fixed rates to variable rates. Bank of America has notified some customers that "as a result of a change in our business practices, your annual percentage rate will use a variable rate formula based on the U.S. prime rate."

JPMorgan Chase is also swapping variable rates for cardholders’ fixed rates. Representatives of Wells Fargo, Citibank and American Express said that each company had no plans at the moment to change fixed-rate accounts to variable accounts, but didn’t rule it out down the road.

In response to the news about credit card companies changing their practices, Senate Banking Chairman Christopher Dodd (D-Conn.) wrote to federal banking regulators urging them to warn credit card issuers that they will be accountable for any unfair interest rate increases on consumers prior to new legislation going into effect Feb. 22.

Dodd asked Federal Reserve Chairman Bernanke and four other regulators to prevent issuers from raising interest rates on existing balances without justification. Dodd wrote that the new law requires that all interest rate increases that took place this year be subject to a mandatory six-month review by regulators. "I ask you to immediately notify all credit card companies under your respective jurisdictions that they will be held accountable for all interest rate increases during this time period and will be subject to the review requirement once it takes effect," Dodd wrote.

New rules for the credit card industry that are designed to protect consumers from surprise charges, such as over-the-limit fees and costs for paying a bill by phone, are part of a bill President Obama is set to sign into law today, the Associated Press reported today. 

Obama plans to sign an overhaul of credit card regulations that he blames in part for the economic downturn.

Despite opposition from financial companies, the bill cleared Congress with broad support.

The new rules, which would go into effect in nine months, would prohibit credit card companies from giving cards to people under 21 unless they can prove they have the means to pay the debt or a parent or guardian co-signs for the card.

Under the bill, a customer would have to be more than 60 days behind on a payment before seeing a rate increase on an existing balance. Even then, the lender would be required to restore the previous, lower rate if the cardholder pays the minimum balance on time for six months.

Consumers also would have to receive 45 days’ notice and an explanation before their interest rates increased.

Congress yesterday sent the president legislation that encourages banks to spare homeowners from foreclosure, after the industry helped scuttle a tougher measure that would have forced lenders to reduce monthly payments of owners in bankruptcy, the Associated Press reported yesterday.

The House voted 367-54 to pass the Helping Families Save Their Homes Act. The Senate had previously voted 91-5 in favor of the bill and approved the final version by unanimous consent.

The bill would expand an existing $300 billion program that encourages lenders to write down an individual’s mortgage if the homeowner agrees to pay an insurance premium.

The program, set to expire in 2011, would swap out a homeowner’s high-interest rate for a 30-year fixed loan backed by the Federal Housing Administration.

In addition, the bill extends through 2013 an increase in deposit insurance by the FDIC from $100,000 to $250,000.