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Treatment of Certain COVID-19 Related Loss Mitigation Options Under the Real Estate Settlement Procedures Act (RESPA) (Regulation X) (rule, 85 FR 39055,…

Summary

An interim final rule of the Bureau of Consumer Financial Protection amending Regulation X, 12 CFR Part 1024, Docket No. CFPB–2020–0022, published in the Federal Register, Vol. 85, No. 126, on Tuesday, June 30, 2020, beginning at page 39055. The amendments temporarily permit mortgage servicers to offer certain loss mitigation options based on the evaluation of an incomplete loss mitigation application. Eligible options must, among other things, permit borrowers to delay paying certain amounts until the mortgage loan is refinanced, the mortgaged property is sold or the term of the mortgage loan ends. Those amounts include principal and interest payments forborne through payment forbearance programs for borrowers experiencing financial hardships due to the COVID–19 emergency. The rule is effective on July 1, 2020.

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“Treatment of Certain COVID-19 Related Loss Mitigation Options Under the Real Estate Settlement Procedures Act (RESPA) (Regulation X) (rule, 85 FR 39055,….” Original at www.govinfo.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/treatment-of-certain-covid-19-related-loss-mitigation-options-under-th-c6dc7b5352/, SHA-256 0e00d4ea537c1907bafad11dae41885cccf6d269632f43f855a4be912441d4ef.

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                                                                Federal Register / Vol. 85, No. 126 / Tuesday, June 30, 2020 / Rules and Regulations                                         39055

                                               Renewed Amendment Number 5,                           2017, as corrected (ADAMS Accession                    amounts include, without limitation, all
                                             Revision 1, Effective Date: December 11,                No. ML18018A100).                                      principal and interest payments
                                             2017.                                                      Amendment Number 14 Effective                       forborne through payment forbearance
                                               Amendment Number 6 Effective Date:                    Date: April 25, 2017, superseded by                    programs made available to borrowers
                                             December 22, 2003, superseded by                        Renewed Amendment Number 14, on                        experiencing financial hardships due,
                                             Amendment Number 6, Revision 1, on                      December 11, 2017.                                     directly or indirectly, to the COVID–19
                                             April 25, 2017, superseded by Renewed                      Renewed Amendment Number 14                         emergency, including a payment
                                             Amendment Number 6, Revision 1, on                      Effective Date: December 11, 2017.                     forbearance program offered pursuant to
                                             December 11, 2017.                                         Renewed Amendment Number 15                         section 4022 of the Coronavirus Aid,
                                               Renewed Amendment Number 6,                           Effective Date: January 22, 2019.                      Relief, and Economic Security Act.
                                             Revision 1, Effective Date: December 11,                   Renewed Amendment Number 16                         These amounts also include principal
                                             2017.                                                   Effective Date: September 14, 2020.                    and interest payments that are due and
                                               Amendment Number 7 Effective Date:                       SAR Submitted by: Transnuclear, Inc.                unpaid by borrowers experiencing
                                             March 2, 2004, superseded by                               SAR Title: Final Safety Analysis                    financial hardships due, directly or
                                             Amendment Number 7, Revision 1, on                      Report for the Standardized NUHOMS®                    indirectly, to the COVID–19 emergency.
                                             April 25, 2017, superseded by Renewed                   Horizontal Modular Storage System for                  DATES: This interim final rule is
                                             Amendment Number 7, Revision 1, on                      Irradiated Nuclear Fuel.                               effective on July 1, 2020. Comments
                                             December 11, 2017.                                         Docket Number: 72–1004.                             must be received on or before August
                                               Renewed Amendment Number 7,                              Certificate Expiration Date: January
                                                                                                                                                            14, 2020.
                                             Revision 1, Effective Date: December 11,                23, 2015.
                                                                                                        Renewed Certificate Expiration Date:                ADDRESSES: You may submit comments,
                                             2017.
                                               Amendment Number 8 Effective Date:                    January 23, 2055.                                      identified by Docket No. CFPB–2020–
                                             December 5, 2005, superseded by                            Model Number: NUHOMS®–24P,                          0022, by any of the following methods:
                                             Amendment Number 8, Revision 1, on                      –24PHB, –24PTH, –32PT, –32PTH1,                           • Federal eRulemaking Portal: http://
                                             April 25, 2017, superseded by Renewed                   –37PTH, –52B, –61BT, –61BTH, and                       www.regulations.gov. Follow the
                                             Amendment Number 8, Revision 1, on                      –69BTH.                                                instructions for submitting comments.
                                             December 11, 2017.                                                                                                • Email: 2020-IFR-
                                                                                                     *     *     *     *     *
                                               Renewed Amendment Number 8,                                                                                  MortgageServicing@cfpb.gov. Include
                                                                                                       Dated June 15, 2020.                                 Docket No. CFPB–2020–0022 in the
                                             Revision 1, Effective Date: December 11,
                                             2017.                                                     For the Nuclear Regulatory Commission.               subject line of the message.
                                               Amendment Number 9 Effective Date:                    Margaret M. Doane,                                        • Hand Delivery/Mail/Courier:
                                             April 17, 2007, superseded by                           Executive Director for Operations.                     Comment Intake, Bureau of Consumer
                                             Amendment Number 9, Revision 1, on                      [FR Doc. 2020–13730 Filed 6–29–20; 8:45 am]            Financial Protection, 1700 G Street NW,
                                             April 25, 2017, superseded by Renewed                   BILLING CODE 7590–01–P
                                                                                                                                                            Washington, DC 20552. Please note that
                                             Amendment Number 9, Revision 1, on                                                                             due to circumstances associated with
                                             December 11, 2017.                                                                                             the COVID–19 pandemic, the Bureau
                                               Renewed Amendment Number 9,                                                                                  discourages the submission of
                                                                                                     BUREAU OF CONSUMER FINANCIAL
                                             Revision 1, Effective Date: December 11,                                                                       comments by hand delivery, mail, or
                                                                                                     PROTECTION
                                             2017.                                                                                                          courier.
                                               Amendment Number 10 Effective                         12 CFR Part 1024                                          Instructions: The Bureau encourages
                                             Date: August 24, 2009, superseded by                                                                           the early submission of comments. All
                                                                                                     [Docket No. CFPB–2020–0022]                            submissions should include the agency
                                             Amendment Number 10, Revision 1, on
                                             April 25, 2017, superseded by Renewed                                                                          name and docket number for this
                                                                                                     Treatment of Certain COVID–19
                                             Amendment Number 10, Revision 1, on                                                                            rulemaking. Because paper mail in the
                                                                                                     Related Loss Mitigation Options Under
                                             December 11, 2017.                                                                                             Washington, DC area and at the Bureau
                                                                                                     the Real Estate Settlement Procedures
                                               Renewed Amendment Number 10,                                                                                 is subject to delay, and in light of
                                                                                                     Act (RESPA) (Regulation X)
                                             Revision 1, Effective Date: December 11,                                                                       difficulties associated with mail and
                                             2017.                                                   AGENCY: Bureau of Consumer Financial                   hand deliveries during the COVID–19
                                               Amendment Number 11 Effective                         Protection.                                            pandemic, commenters are encouraged
                                             Date: January 7, 2014, superseded by                    ACTION: Interim final rule with request                to submit comments electronically. In
                                             Amendment Number 11, Revision 1, on                     for public comment.                                    general, all comments received will be
                                             April 25, 2017, superseded by Renewed                                                                          posted without change to https://
                                             Amendment Number 11, Revision 1, on                     SUMMARY: The Bureau of Consumer                        www.regulations.gov. In addition, once
                                             December 11, 2017.                                      Financial Protection (Bureau) is issuing               the Bureau’s headquarters reopens,
                                               Renewed Amendment Number 11,                          this interim final rule to amend                       comments will be available for public
                                             Revision 1, Effective Date: December 11,                Regulation X. The amendments                           inspection and copying at 1700 G Street
                                             2017, as corrected (ADAMS Accession                     temporarily permit mortgage servicers to               NW, Washington, DC 20552, on official
                                             No. ML18018A043).                                       offer certain loss mitigation options                  business days between the hours of 10
                                               Amendment Number 12 Effective                         based on the evaluation of an                          a.m. and 5 p.m. Eastern Time. At that
                                             Date: Amendment not issued by the                       incomplete loss mitigation application.                time, you can make an appointment to
                                             NRC.                                                    Eligible loss mitigation options, among                inspect the documents by telephoning
                                               Amendment Number 13 Effective                         other things, must permit borrowers to                 202–435–9169.




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                                             Date: May 24, 2014, superseded by                       delay paying certain amounts until the                    All comments, including attachments
                                             Amendment Number 13, Revision 1, on                     mortgage loan is refinanced, the                       and other supporting materials, will
                                             April 25, 2017, superseded by Renewed                   mortgaged property is sold, the term of                become part of the public record and
                                             Amendment Number 13, Revision 1, on                     the mortgage loan ends, or, for a                      subject to public disclosure. Proprietary
                                             December 11, 2017.                                      mortgage insured by the Federal                        information or sensitive personal
                                               Renewed Amendment Number 13,                          Housing Administration (FHA), the                      information, such as account numbers,
                                             Revision 1, Effective Date: December 11,                mortgage insurance terminates. These                   Social Security numbers, or names of


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                                             39056                Federal Register / Vol. 85, No. 126 / Tuesday, June 30, 2020 / Rules and Regulations

                                             other individuals, should not be                         paying certain amounts until the                       Procedures Act of 1974,4 and included
                                             included. Comments will not be edited                    mortgage loan is refinanced, the                       these rules in Regulation X.5 The
                                             to remove any identifying or contact                     mortgaged property is sold, the term of                Bureau later clarified and revised
                                             information.                                             the mortgage loan ends, or, for a                      Regulation X’s servicing rules through
                                             FOR FURTHER INFORMATION CONTACT: Joel                    mortgage insured by FHA, the mortgage                  several additional notice-and-comment
                                             Singerman, Counsel, or Terry J. Randall,                 insurance terminates. These amounts                    rulemakings.6 In part, these rulemakings
                                             Senior Counsel, Office of Regulations, at                include, without limitation, all                       were intended to address deficiencies in
                                             202–435–7700 or https://                                 principal and interest payments                        servicers’ handling of delinquent
                                             reginquiries.consumerfinance.gov/. If                    forborne under a payment forbearance                   borrowers and loss mitigation
                                             you require this document in an                          program made available to borrowers                    applications during and after the 2008
                                             alternative electronic format, please                    experiencing a financial hardship due,                 financial crisis.7 When the housing
                                             contact CFPB_Accessibility@cfpb.gov.                                                                            crisis began, servicers were faced with
                                                                                                      directly or indirectly, to the COVID–19
                                                                                                                                                             historically high numbers of delinquent
                                             SUPPLEMENTARY INFORMATION:                               emergency, including one made
                                                                                                                                                             mortgages, loan modification requests,
                                                                                                      pursuant to the Coronavirus Economic                   and in-process foreclosures in their
                                             I. Summary of the Interim Final Rule
                                                                                                      Stabilization Act, section 4022 (15                    portfolios.8 Many servicers lacked the
                                                Title 12 CFR part 1024 (Regulation X)                 U.S.C. 9056). These amounts also                       infrastructure, trained staff, controls,
                                             generally requires servicers to obtain a                 include, without limitation all other                  and procedures needed to manage
                                             complete loss-mitigation application                     principal and interest payments that are               effectively the flood of delinquent
                                             before evaluating a mortgage borrower                    due and unpaid by a borrower                           mortgages they were obligated to
                                             for a loss-mitigation option, such as a                  experiencing financial hardship due,                   handle.9 Inadequate staffing and
                                             loan modification or short sale.1                        directly or indirectly, to the COVID–19
                                             Regulation X provides an exception                       emergency. For purposes of this                           4 Public Law 93–533, 88 Stat. 1724 (12 U.S.C.
                                             from this requirement for certain short-                 criterion, the term of the mortgage loan               2601 et seq.).
                                             term loss mitigation options.2 Due to the                means the term of the mortgage loan
                                                                                                                                                                5 78 FR 10695 (Feb. 14, 2013). In January 2013,

                                             particular needs of mortgage servicers                   according to the obligation between the
                                                                                                                                                             the Bureau also issued separate ‘‘Mortgage
                                                                                                                                                             Servicing Rules Under the Truth in Lending Act
                                             and borrowers during the novel
                                                                                                      parties in effect when the borrower is                 (Regulation Z)’’ (2013 TILA Servicing Final Rule).
                                             coronavirus disease (COVID–19)                                                                                  See 78 FR 10902 (Feb. 14, 2013). The Bureau
                                                                                                      offered the loss mitigation option.
                                             pandemic emergency (COVID–19                                                                                    conducted an assessment of this rule in 2018–19
                                                                                                      Second, any amounts that the borrower                  and released a report detailing its findings in early
                                             emergency), the Bureau is amending
                                             Regulation X to temporarily permit                       may delay paying through the loss                      2019. 2013 RESPA Servicing Rule Assessment
                                                                                                      mitigation option do not accrue interest;              Report, https://files.consumerfinance.gov/f/
                                             mortgage servicers to offer certain loss                                                                        documents/cfpb_mortgage-servicing-rule-
                                             mitigation options without obtaining a                   the servicer does not charge any fee in                assessment_report.pdf.
                                             complete loss mitigation application.                    connection with the loss mitigation                       6 Amendments to the 2013 Mortgage Rules under

                                             Servicers may offer eligible loss                        option; and the servicer waives all                    the Real Estate Settlement Procedures Act
                                                                                                      existing late charges, penalties, stop                 (Regulation X) and the Truth in Lending Act
                                             mitigation options to a borrower who                                                                            (Regulation Z), 78 FR 44686 (July 24, 2013);
                                             has received a payment forbearance                       payment fees, or similar charges                       Amendments to the 2013 Mortgage Rules under the
                                             program made available to borrowers                      promptly upon the borrower’s                           Equal Credit Opportunity Act (Regulation B), Real
                                                                                                      acceptance of the loss mitigation option.              Estate Settlement Procedures Act (Regulation X),
                                             experiencing a financial hardship due,                                                                          and the Truth in Lending Act (Regulation Z), 78 FR
                                             directly or indirectly, to the COVID–19                  Third, the borrower’s acceptance of the                60382 (Oct. 1, 2013); Amendments to the 2013
                                             emergency, including one offered                         loss mitigation offer must resolve any                 Mortgage Rules under the Real Estate Settlement
                                             pursuant to section 4022 of the                          prior delinquency. These criteria                      Procedures Act (Regulation X) and the Truth in
                                                                                                                                                             Lending Act (Regulation Z), 78 FR 62993 (Oct. 23,
                                             Coronavirus Aid, Relief, and Economic                    maintain important protections for                     2013); Amendments to the 2013 Mortgage Rules
                                             Security Act (CARES Act),3 or who has                    borrowers and are intended to align                    Under the Real Estate Settlement Procedures Act
                                             had other principal and interest                         with the COVID–19 payment deferral                     (Regulation X) and the Truth in Lending Act
                                             payments that are due and unpaid as a                    option announced by the Federal                        (Regulation Z), 81 FR 72160 (Oct. 19, 2016);
                                                                                                                                                             Amendments to the 2013 Mortgage Rules Under
                                             result of a financial hardship due,                      Housing Finance Agency (FHFA),                         RESPA (Regulation X) and TILA (Regulation Z), 82
                                             directly or indirectly, to the COVID–19                  discussed in part II, and other similar                FR 30947 (July 5, 2017); Mortgage Servicing Rules
                                             emergency.                                               programs.                                              Under RESPA (Regulation X), 82 FR 47953 (Oct. 16,
                                                The amendment conditions eligibility                                                                         2017). The Bureau also issued notices providing
                                                                                                        The interim final rule also excludes                 guidance on the Rule and soliciting comment on the
                                             for the new exception on the loss                                                                               Rule. See, e.g., Applicability of Regulation Z’s
                                                                                                      servicers from certain regulatory
                                             mitigation option satisfying three                                                                              Ability-to-Repay Rule to Certain Situations
                                                                                                      requirements if a borrower accepts an                  Involving Successors-in-interest, 79 FR 41631 (July
                                             criteria. First, the loss mitigation option
                                             must permit the borrower to delay                        option offered pursuant to the new                     17, 2014); Safe Harbors from Liability Under the
                                                                                                      exception. Specifically, the interim final             Fair Debt Collections Practices Act for Certain
                                                                                                                                                             Actions in Compliance with Mortgage Servicing
                                               1 Section 1024.41(b)(1) (requiring servicer to         rule provides that the servicer is not                 Rules Under the Real Estate Settlement Procedures
                                             exercise reasonable diligence in obtaining               required to continue the reasonable                    Act (Regulation X) and the Truth in Lending Act
                                             documents and information to complete a loss             diligence efforts § 1024.41(b)(1)                      (Regulation Z), 81 FR 71977 (Oct. 19, 2016); Policy
                                             mitigation application); § 1024.41(c)(1)(i) (requiring                                                          Guidance on Supervisory and Enforcement
                                             evaluation of borrower for all loss mitigation
                                                                                                      otherwise requires or send the
                                                                                                                                                             Priorities Regarding Early Compliance With the
                                             options available to the borrower if the servicer        acknowledgement notice § 1024.41(b)(2)                 2016 Amendments to the 2013 Mortgage Servicing
                                             receives a complete loss mitigation application          otherwise requires.                                    Rules Under RESPA (Regulation X) and TILA
                                             more than 37 days before a scheduled foreclosure                                                                (Regulation Z), 82 FR 29713 (June 30, 2017).
                                                                                                      II. Background




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                                             sale); and § 1024.41(c)(2)(i) (prohibiting servicer                                                                7 See generally 78 FR 10699–701.
                                             from offering a loss mitigation option based on an                                                                 8 See discussion in Chapter 3 of the 2013 RESPA
                                             evaluation of any information provided by a              A. The Bureau’s Regulation X Mortgage                  Servicing Rule Assessment Report. 2013 RESPA
                                             borrower in connection with an incomplete loss           Servicing Rules                                        Servicing Rule Assessment Report, https://
                                             mitigation application). Small servicers, as defined                                                            files.consumerfinance.gov/f/documents/cfpb_
                                             in Regulation Z, 12 CFR 1026.41, are not subject to        In February 2013, the Bureau issued                  mortgage-servicing-rule-assessment_report.pdf.
                                             these requirements. 12 CFR 1024.30(b)(1).                                                                          9 Mortgage Servicing Rules Under the Real Estate
                                               2 12 CFR 1024.41(c)(2)(iii).                           the Mortgage Servicing Rules to
                                                                                                                                                             Settlement Procedures Act (Regulation X), 78 FR
                                               3 Public Law 116–136, 134 Stat. 281 (2020).            implement the Real Estate Settlement                   10696, 10700 (Feb. 14, 2013).



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                                                                 Federal Register / Vol. 85, No. 126 / Tuesday, June 30, 2020 / Rules and Regulations                                                   39057

                                             procedures led to a range of reported                    that more flexible requirements may be                   to payment forbearance programs
                                             problems with servicing of delinquent                    warranted when borrowers are facing                      (CARES Act forbearance) if they submit
                                             loans, including some servicers                          certain hardships. For example,                          a request to their mortgage servicer and
                                             misleading borrowers, failing to                         Regulation X provides flexibility for                    affirm that they are experiencing a
                                             communicate with borrowers, losing or                    servicers when they offer short-term                     financial hardship during the COVID–19
                                             mishandling borrower-provided                            payment forbearance programs or short-                   emergency.21 By requiring servicers to
                                             documents supporting loan                                term repayment plans, as defined in                      grant CARES Act forbearances to certain
                                             modification requests, and generally                     Regulation X, based upon an evaluation                   borrowers with federally backed
                                             providing inadequate service to                          of an incomplete application.17 In                       mortgages (which account for
                                             delinquent borrowers.10                                  granting this flexibility, the Bureau                    approximately 80 percent of mortgage
                                                The Bureau’s mortgage servicing rules                 explained that borrowers facing only                     borrowers), the CARES Act established
                                             addressed these concerns by                              temporary hardships might benefit from                   payment forbearance as the primary tool
                                             establishing procedures that mortgage                    a more efficient application process that                that servicers of these loans would use
                                             servicers generally must follow in                       leads to a temporary solution without                    initially to assist struggling borrowers
                                             evaluating loss mitigation applications                  exhausting the protections under                         during the COVID–19 emergency. The
                                             submitted by mortgage borrowers.11                       § 1024.41 that are determined as of the                  Bureau understands that servicers of
                                             Among other things, as relevant here,                    date a complete application is                           other mortgages that are not ‘‘Federally
                                             Regulation X generally requires                          received.18                                              backed mortgage loans’’ under the
                                             servicers to obtain a complete loss-                                                                              CARES Act may be offering similar
                                             mitigation application from a borrower                   B. The CARES Act and COVID–19
                                                                                                      Forbearances                                             payment forbearance programs to their
                                             before offering the borrower a loss-                                                                              borrowers.22
                                             mitigation option, such as a loan                           By late March 2020, the COVID–19                         On April 3, 2020, the Bureau, the
                                             modification or short sale.12 Servicers                  emergency was significantly affecting                    Board of Governors of the Federal
                                             generally may not offer a loss-mitigation                the economy. Between March 15 and                        Reserve System (the Board), the Federal
                                             option based upon an evaluation of any                   May 15, 2020, over 35 million people                     Deposit Insurance Corporation (FDIC),
                                             information provided in connection                       filed initial jobless claims, and the                    the National Credit Union
                                             with an incomplete application.13 The                    unemployment rate climbed to over 14                     Administration (NCUA), the Office of
                                             loss mitigation provisions were                          percent in April—the highest monthly                     the Comptroller of the Currency (OCC),
                                             motivated in part by concerns that some                  level since 1948 when the Bureau of                      and the State Banking Regulators issued
                                             servicers were doing an inadequate job                   Labor and Statistics started tracking this
                                                                                                                                                               a joint statement (Joint Statement)
                                             of communicating with borrowers                          series.19
                                                                                                                                                               recognizing the serious impact the
                                             regarding loss mitigation options,14 and                    On March 27, 2020, the CARES Act
                                                                                                      was enacted. Among other things, the                     COVID–19 emergency was having on
                                             that some servicers were unwilling to                                                                             consumers and on the operations of
                                             work with borrowers to reach agreement                   CARES Act ensures that borrowers
                                                                                                      experiencing a financial hardship due,                   mortgage servicers.23 The Joint
                                             on loss mitigation options.15 The
                                             Bureau intended this restriction to help                 directly or indirectly, to the COVID–19
                                                                                                                                                               Housing and Community Development Act of 1992
                                             ensure that borrowers have a full and                    emergency and who have ‘‘Federally                       (12 U.S.C. 1715z–13a, 1715z–13b); guaranteed or
                                             fair opportunity to be evaluated for loss                backed mortgage loans’’ 20 have access                   insured by the Department of Veterans Affairs;
                                             mitigation options.16                                                                                             guaranteed or insured by the Department of
                                                                                                                                                               Agriculture; made by the Department of
                                                However, in issuing these                                17 12 CFR 1024.41(c)(2)(iii); see also comments
                                                                                                                                                               Agriculture; or purchased or securitized by the
                                             requirements, the Bureau recognized                      41(c)(2)(iii)–1 and –4 (defining short-term payment
                                                                                                      forbearance program and short-term repayment plan        Federal Home Loan Mortgage Corporation or the
                                                                                                      for purposes of the regulation).                         Federal National Mortgage Association. CARES Act
                                                10 See U.S. Gov’t Accountability Off., GAO–10–           18 78 FR at 60400; 81 FR at 72246. Section            section 4022(a)(2).
                                             634, Troubled Asset Relief Program: Further              1024.41(i) limits the circumstances when a servicer
                                                                                                                                                                  21 CARES Act section 4022(b). Upon receiving the

                                             Actions Needed to Fully and Equitably Implement          must comply with the procedures described in             borrower’s request for forbearance, the servicer
                                             Foreclosure Mitigation Actions, at 14–16 (2010),         § 1024.41. Servicers do not need to comply with the      must provide a forbearance for up to 180 days with
                                             https://www.gao.gov/assets/310/305891.pdf;               procedures described in § 1024.41 if the servicer        no additional documentation required other than
                                             Hearing on Problems in Mortgage Servicing from           has previously complied with the requirements of         the borrower’s attestation to a financial hardship
                                             Modification to Foreclosure Before the S. Comm. on       § 1024.41 for a complete loss mitigation application     caused by the COVID–19 emergency and with no
                                             Banking, Housing, and Urban Affairs, 111th Cong.         submitted by the borrower and the borrower has           fees, penalties, or interest (beyond the amounts
                                             54 (2010) (statement of Thomas J. Miller, Att’y Gen.     been delinquent at all times since submitting the        scheduled or calculated as if the borrower made all
                                             State of Iowa).                                          prior complete application. Because a servicer who       contractual payments on time and in full under the
                                                11 See generally 12 CFR 1024.41. Small servicers,
                                                                                                      offers a borrower a short-term option based on           terms of the mortgage contract) charged to the
                                             as defined in Regulation Z, 12 CFR 1026.41, are          evaluation of an incomplete application pursuant to      borrower in connection with the forbearance. The
                                             generally exempt from these requirements. 12 CFR         § 1024.41(c)(2)(iii) has not evaluated a complete        servicer must extend the forbearance for up to an
                                             1024.30(b)(1).                                           application submitted by the borrower, a servicer        additional 180 days at the request of the borrower,
                                                12 12 CFR 1024.41(b)(1) (requiring servicer to                                                                 provided that the request for an extension is made
                                                                                                      would have to comply with the procedures
                                             exercise reasonable diligence in obtaining               described in § 1024.41 if the borrower submits a         during the covered period. Note that the borrower
                                             documents and information to complete a loss             complete application after the servicer offers the       may request that either the initial or extended
                                             mitigation application); § 1024.41(c)(1)(i) (requiring   borrower a short-term payment forbearance                forbearance period be less than 180 days. See
                                             evaluation of borrower for all loss mitigation           program.                                                 CARES Act section 4022(b) and (c)(1).
                                             options available to the borrower if the servicer           19 U.S. Bureau of Labor Statistics, Labor Force          22 Such programs may be based on servicers’ own
                                             receives a complete loss mitigation application          Statistics from the Current Population Survey,           programs or policy initiative or may be required by
                                             more than 37 days before a scheduled foreclosure         https://www.bls.gov/ces (last visited June 6, 2020).     State or local laws.
                                             sale); and § 1024.41(c)(2)(i) (prohibiting servicer         20 The CARES Act defines a ‘‘Federally backed            23 Joint Statement on Supervisory and
                                             from offering a loss mitigation option based on an       mortgage loan’’ as any loan which is secured by a        Enforcement Practices Regarding the Mortgage




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                                             evaluation of any information provided by a              first or subordinate lien on residential real property   Servicing Rules in Response to the COVID–19
                                             borrower in connection with an incomplete loss           (including individual units of condominiums and          Emergency and the CARES Act (Apr. 3, 2020),
                                             mitigation application). Small servicers, as defined     cooperatives) designed principally for the               https://files.consumerfinance.gov/f/documents/
                                             in Regulation Z, 12 CFR 1026.41, are not subject to      occupancy of from one-to-four families that is           cfpb_interagency-statement_mortgage-servicing-
                                             these requirements. 12 CFR 1024.30(b)(1).
                                                13 12 CFR 1024.41(c)(2)(i).
                                                                                                      insured by the Federal Housing Administration            rules-covid-19.pdf. On the same day, the Bureau
                                                                                                      under title II of the National Housing Act (12 U.S.C.    issued additional compliance guidance to provide
                                                14 78 FR at 10807.
                                                                                                      1707 et seq.); insured under section 255 of the          mortgage servicers with enhanced clarity about
                                                15 Id. at 10814.
                                                                                                      National Housing Act (12 U.S.C. 1715z–20);               existing flexibility in the Bureau’s mortgage
                                                16 Id. at 10815.                                      guaranteed under section 184 or 184A of the                                                        Continued




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                                             39058              Federal Register / Vol. 85, No. 126 / Tuesday, June 30, 2020 / Rules and Regulations

                                             Statement informed servicers of the                     November of 2008 during the great                      Mae and Freddie Mac permit servicers
                                             agencies’ flexible supervisory and                      recession.29                                           to offer FHFA COVID–19 payment
                                             enforcement approach during the                                                                                deferrals to any borrowers who meet
                                                                                                     C. COVID–19 Emergency: Post-
                                             emergency regarding certain consumer                                                                           certain criteria if the borrower indicates
                                                                                                     Forbearance Options and Post-
                                             communications required by Regulation                                                                          to the servicer that (1) the borrower can
                                                                                                     Delinquency Options
                                             X, and provided guidance on servicers’                                                                         afford to resume their normal monthly
                                             compliance with Regulation X when                          The CARES Act does not specify how                  payments due before the forbearance
                                             offering CARES Act forbearances and                     borrowers receiving CARES Act                          and (2) the borrower cannot afford full
                                             other payment forbearance programs                      forbearances must repay the forborne                   reinstatement or a repayment plan to
                                             during the COVID–19 emergency.24 The                    payments. While there are good reasons                 bring their mortgage loan current when
                                             Joint Statement explained that, when a                  for this, it creates uncertainty for                   they exit forbearance.35 Fannie Mae and
                                             borrower requests a CARES Act                           stakeholders as to how borrowers must                  Freddie Mac prohibit servicers from
                                             forbearance and affirms that the                        repay these amounts when CARES Act                     charging borrowers who accept an
                                             borrower is experiencing a financial                    forbearances expire. As many initial                   FHFA COVID–19 payment deferral
                                             hardship during the COVID-emergency,                    forbearance periods were set at 90 days,               administrative fees, and direct servicers
                                             it constitutes an incomplete loss                       many of them will expire in June or July               to waive all late charges, penalties, stop
                                             mitigation application for purposes of                  2020.                                                  payment fees, or similar charges upon
                                             Regulation X.25 Although receipt of an                     The Federal National Mortgage                       completing a COVID–19 payment
                                             incomplete application generally                        Association (Fannie Mae), Federal                      deferral.36 This program takes effect on
                                             triggers a servicer’s obligations under                 Home Loan Mortgage Company (Freddie                    July 1, 2020.37 Other mortgage investors
                                             § 1024.41, the Joint Statement also                     Mac), FHA, and other owners or                         and insurers have also announced
                                             provided that a CARES Act forbearance                   insurers of mortgage loans have                        similar loss mitigation options.38
                                                                                                     announced programs to assist borrowers                    After FHFA announced these deferral
                                             qualifies as a short-term payment
                                                                                                     in repayment of the forborne amounts.30                programs, industry stakeholders and
                                             forbearance program 26 under
                                                                                                     On May 13, 2020, FHFA announced that                   consumer advocates raised concerns
                                             Regulation X, so certain loss mitigation
                                                                                                     Fannie Mae and Freddie Mac would                       about whether servicers could offer an
                                             requirements under Regulation X do not
                                                                                                     make a payment deferral program                        FHFA COVID–19 payment deferral
                                             apply.27
                                                                                                     available to borrowers in a COVID–19                   using the streamlined application
                                                By early June 2020, as a result of the
                                                                                                     forbearance plan (FHFA COVID–19                        procedures described above without
                                             CARES Act and other similar
                                                                                                     payment deferral) and to borrowers who                 violating Regulation X’s general
                                             forbearance programs made available by
                                                                                                     have experienced a financial hardship                  prohibition of offering a loss mitigation
                                             owners or investors of mortgage loans,
                                                                                                     resulting from COVID–19 that has                       option based on an evaluation of an
                                             as many as 4.3 million mortgage                         affected their ability to make their full
                                             borrowers (or 8.55 percent of mortgage                                                                         incomplete application.39 The Bureau
                                                                                                     monthly payment.31 FHFA indicated                      has evaluated the interaction between
                                             borrowers) nationwide were in                           that these programs will be available to
                                             forbearance programs.28 After reaching a                                                                       the FHFA payment deferral procedures
                                                                                                     borrowers who are able to return to                    and Regulation X, and engaged in
                                             historic low in January of 2020 (just                   making their normal monthly mortgage
                                             above 3 percent), the mortgage                                                                                 informal outreach with FHFA, mortgage
                                                                                                     payment.32 According to FHFA, these                    servicers, trade associations, consumer
                                             delinquency rate (which includes loans                  programs take the missed mortgage
                                             in forbearance) had more than doubled                                                                          advocacy groups, and others. Industry
                                                                                                     payments and make them a payment                       stakeholders and consumer advocates
                                             by early June and was at its highest level              due at the sale of the home, refinancing               urged the Bureau to take steps to ensure
                                             since 2013. The delinquency rate was                    of the mortgage loan, or the end of the                that servicers would not be in violation
                                             3.1 percentage points higher in April                   loan.33 Fannie Mae and Freddie Mac                     of Regulation X if they were to use the
                                             than in March—a monthly increase                        have established streamlined                           streamlined procedures.
                                             three times the previous record set in                  application procedures for these                          The Bureau supports the goal of the
                                                                                                     programs that permit servicers to offer                FHFA’s COVID–19 payment deferral
                                             servicing rules that they may use to help consumers     an FHFA COVID–19 payment deferral                      program and certain other similar
                                             during the COVID–19 emergency. Bureau of
                                             Consumer Fin. Prot., Bureau’s Mortgage Servicing
                                                                                                     without collecting Fannie Mae’s and                    programs designed to assist borrowers
                                             Rules FAQs related to the COVID–19 Emergency,           Freddie Mac’s ‘‘complete Borrower                      experiencing financial hardships due,
                                             https://files.consumerfinance.gov/f/documents/          Response Package.’’ 34 Rather, Fannie                  directly or indirectly, to the COVID–19
                                             cfpb_mortgage-servicing-rules-covid-19_faqs.pdf.                                                               emergency. Through these programs,
                                                24 Joint Statement, supra note 23.
                                                25 Id. The Joint Statement also explained that
                                                                                                        29 Black Knight Fin. Servs., Mortgage Monitor
                                                                                                                                                            eligible borrowers can eliminate the
                                                                                                     (Apr. 2020), https://www.bls.gov/ces/.                 immediate potential risk of losing their
                                             servicers may provide multiple sequential short-           30 FHFA, FHFA Announces Payment Deferral as
                                             term payment forbearance programs under the             New Repayment Option for Homeowners in COVID–          homes, resume repaying the mortgage
                                             Regulation X mortgage servicing rules.                  19 Forbearance Plans (May 13, 2020), https://          loan with no delinquency and no
                                                26 Comment 41(c)(2)(iii)–1 explains that a short-    www.fhfa.gov/Media/PublicAffairs/Pages/FHFA-           additional fees or interest, and better
                                             term payment forbearance program is a loss              Announces-Payment-Deferral-as-New-Repayment-           plan how eventually to repay the
                                             mitigation option pursuant to which a servicer          Option-for-Homeowners-in-COVID-19-Forbearance-
                                             allows a borrower to forgo making certain payments      Plans.aspx; HUD Mortgagee Letter 2020–06, https://
                                             or portions of payments for a period of time. A         www.hud.gov/sites/dfiles/OCHCO/documents/20-           Freddie Mac Bulletin 2020–15, https://
                                             short-term payment forbearance program for              06hsngml.pdf.                                          guide.freddiemac.com/app/guide/bulletin/2020-
                                             purposes of § 1024.41(c)(2)(iii) allows the                31 FHFA, supra note 30.                             15?_ga=2.76149522.621170394.1590694543-
                                             forbearance of payments due over periods of no             32 Id.                                              1945440177.1590694543.




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                                                                                                                                                              35 See id.
                                             more than six months. Such a program would be              33 Id. While initial forbearance under the CARES
                                             short-term regardless of the amount of time a                                                                    36 See id.
                                                                                                     Act and similar programs probably constitute short-
                                             servicer allows the borrower to make up the missing     term payment forbearance programs under                  37 See id.

                                             payments.                                               § 1024.41(c)(2)(iii), the anticipated repayments         38 HUD Mortgagee Letter 2020–06, supra note 30.
                                                27 Joint Statement, supra note 23.                   arrangements may not constitute short-term               39 See, e.g., JDSupra, Can Mortgage Servicers
                                                28 Mortgage Bankers Ass’n, Share of Mortgage         repayment plans under that section. See also Joint     Legally Offer the GSEs’ COVID deferral options?
                                             Loans in Forbearance Increases to 8.55%, https://       Statement, supra note 23.                              (May 14, 2020), https://www.jdsupra.com/
                                             www.mba.org/2020-press-releases/june/share-of-             34 See Fannie Mae Lender Letter 2020–07, https://   legalnews/can-mortgage-servicers-legally-offer-
                                             mortgage-loans-in-forbearance-increases-to-855.         singlefamily.fanniemae.com/media/22916/display;        42513/.



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                                                                 Federal Register / Vol. 85, No. 126 / Tuesday, June 30, 2020 / Rules and Regulations                                                   39059

                                             forborne amount that servicers have                     Mortgage Servicing Final Rule,42 as                    amendments between the FHFA’s
                                             deferred. In addition, the streamlined                  discussed in detail in the Legal                       announcement of its COVID–19
                                             application procedures offered by                       Authority and Section-by-Section                       payment deferral program on May 13,
                                             Fannie Mae, Freddie Mac, and others                     Analysis of the 2013 Mortgage Servicing                2020, and its effective date of July 1,
                                             may help ensure that servicers have                     Final Rule.                                            2020. As discussed more fully in part II,
                                             sufficient resources to address the                                                                            the economic effects of the COVID–19
                                                                                                     A. Respa                                               emergency have resulted quickly in
                                             unusually large number of borrowers
                                             who will be exiting CARES Act or                          Section 19(a) of RESPA, 12 U.S.C.                    major challenges in the mortgage
                                             similar forbearances and may be seeking                 2617(a), authorizes the Bureau to                      market. Congress enacted the CARES
                                             assistance in the coming months. There                  prescribe such rules and regulations, to               Act in late March, making forbearances
                                             are circumstances where Regulation X                    make such interpretations, and to grant                available to many borrowers with
                                             may require a servicer to collect a                     such reasonable exemptions for classes                 federally backed mortgages, which
                                             complete application from a borrower                    of transactions, as may be necessary to                account for approximately 80 percent of
                                             before offering this type of program.                   achieve the purposes of RESPA, which                   the mortgage market.
                                             However, that result may not serve the                  include its consumer protection                           Because the CARES Act does not
                                             particular needs of borrowers and                       purposes. In addition, section 6(j)(3) of              specify how borrowers provided CARES
                                             servicers during the COVID–19                           RESPA, 12 U.S.C. 2605(j)(3), authorizes                Act forbearances will repay the forborne
                                             emergency.                                              the Bureau to establish any                            payments, Fannie Mae, Freddie Mac,
                                                For these and the reasons discussed                  requirements necessary to carry out                    FHA, and other owners or insurers of
                                             below, the Bureau is amending                           section 6 of RESPA, section 6(k)(1)(E) of              mortgage loans worked quickly after
                                             Regulation X to specify that servicers                  RESPA, and 12 U.S.C. 2605(k)(1)(E), and                they placed borrowers in these
                                             may offer loss mitigation options that                  authorizes the Bureau to prescribe                     forbearances to devise loss mitigation
                                             meet certain criteria based on the                      regulations that are appropriate to carry              options for borrowers who could not
                                             evaluation of an incomplete application,                out RESPA’s consumer protection                        afford to repay the forborne amounts in
                                             and that servicers need not comply with                 purposes. The consumer protection                      a lump sum at the conclusion of the
                                             certain other Regulation X requirements                 purposes of RESPA include ensuring                     forbearance period. FHFA, Fannie Mae,
                                             once the borrower accepts that option.                  that servicers respond to borrower                     and Freddie Mac announced a COVID–
                                             These criteria are intended to align with               requests and complaints in a timely                    19 post-forbearance program, the
                                             the criteria outlined in FHFA’s COVID–                  manner and maintain and provide                        COVID–19 payment deferral, on May 13,
                                             19 payment deferral and other                           accurate information, helping borrowers                2020.46 These programs take effect on
                                             comparable programs, such as FHA’s                      avoid unwarranted or unnecessary costs                 July 1, 2020, and, because significant
                                             COVID–19 partial claim.                                 and fees and facilitating review for                   numbers of borrowers entered 90-day
                                                The Bureau believes that this                        foreclosure avoidance options. The                     forbearances in late March and early
                                             flexibility is appropriate during the                   amendments to Regulation X in this                     April, this coincides with when many
                                             COVID–19 emergency, which presents                      interim final rule are intended to                     borrowers’ forbearance periods will end.
                                             extraordinary circumstances. The                        achieve some or all these purposes.                    Thus, starting on July 1, 2020—absent
                                             Bureau will evaluate comments received                                                                         immediate action by the Bureau—
                                                                                                     B. Dodd-Frank Act                                      servicers would have to reconcile
                                             under the interim final rule to
                                             determine whether it is appropriate to                    Section 1022(b)(1) of the Dodd-Frank                 FHFA’s COVID–19 payment deferral
                                             revise the amendments. The Bureau will                  Act, 12 U.S.C. 5512(b)(1), authorizes the              programs with the anti-evasion
                                             also continue to monitor the market to                  Bureau to prescribe rules ‘‘as may be                  requirement in the servicing rules. As a
                                             assess consumers’ experiences under                     necessary or appropriate to enable the                 practical matter, servicers would not be
                                             these programs and the interim rule.                    Bureau to administer and carry out the                 able to offer the payment deferral to
                                                                                                     purposes and objectives of the Federal                 some borrowers without first having
                                                As part of this rulemaking, the Bureau
                                                                                                     consumer financial laws, and to prevent                them complete their loss mitigation
                                             consulted with FHFA, the Board, FDIC,
                                                                                                     evasions thereof.’’ RESPA is a Federal                 applications, a step that would delay or
                                             NCUA, OCC, and the Department of
                                                                                                     consumer financial law.                                obstruct relief to borrowers and frustrate
                                             Housing and Urban Development.
                                                                                                                                                            the purpose and immediate need for the
                                                                                                     IV. Administrative Procedure Act
                                             III. Legal Authority                                                                                           program.47 It is critical that the Bureau’s
                                                                                                        Under the Administrative Procedure                  temporary revision to Regulation X be in
                                                The Bureau is issuing this interim                   Act,43 notice and opportunity for public
                                             final rule pursuant to its authority under                                                                     effect when these forbearance programs
                                                                                                     comment are not required if the Bureau                 take effect to ensure that borrowers and
                                             RESPA and the Dodd-Frank Wall Street                    for good cause finds that notice and
                                             Reform and Consumer Protection Act                      public comment are impracticable,                         46 Borrowers who are not exiting forbearance may
                                             (Dodd-Frank Act),40 including the                       unnecessary, or contrary to the public                 be also be eligible for this program if their mortgage
                                             authorities discussed below. This                       interest.44 Similarly, publication of this             loan became delinquent resulting from a financial
                                             interim final rule amends a provision                   interim final rule at least 30 days before
                                                                                                                                                            hardship due, directly or indirectly, to the COVID–
                                             previously adopted by the Bureau in the                                                                        19 emergency. Due to the rising delinquency rate
                                                                                                     its effective date is not required where               discussed in part I, significant numbers of
                                             2016 Mortgage Servicing Final Rule.41                   the Bureau has identified good cause for               borrowers who are not exiting forbearance could be
                                             In doing so, the Bureau relied on one or                a different effective date.45                          eligible.
                                             more of the authorities discussed below,                   The Bureau finds that prior notice and
                                                                                                                                                               47 As noted above, in the short period between the

                                             as well as other authority. The Bureau                                                                         FHFA’s announcement of its program and the
                                                                                                     public comment are impracticable




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                                                                                                                                                            issuance of this rule, the Bureau has consulted with
                                             is issuing this interim final rule in                   because there is insufficient time to                  stakeholders from industry, consumer groups, and
                                             reliance on the same authority and for                  solicit comment and finalize                           regulators regarding the interaction between the
                                             the same reasons relied on in adopting                                                                         FHFA’s program and the servicing rules. As also
                                             the relevant provisions of the 2013                       42 78 FR 10695 (Feb. 14, 2013).
                                                                                                                                                            noted above, industry stakeholders and consumer
                                                                                                                                                            advocates urged the Bureau to take steps to ensure
                                                                                                       43 5 U.S.C. 551 et seq., 701 et seq.
                                                                                                                                                            that servicers would not be in violation of
                                               40 Public Law 111–203, 124 Stat. 1376 (2010).           44 5 U.S.C. 553(b)(B).
                                                                                                                                                            Regulation X if they were to use the streamlined
                                               41 81 FR 72160 (Oct. 19, 2016).                         45 5 U.S.C. 553(d)(3).                               procedures.



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                                             39060              Federal Register / Vol. 85, No. 126 / Tuesday, June 30, 2020 / Rules and Regulations

                                             mortgage servicers can take advantage of                forbearances to longer term solutions at             mitigation options that permit
                                             these programs.                                         the same time, potentially                           borrowers to delay repayment of
                                                Thus, prior public comment is                        overwhelming servicers’ systems and                  forborne or delinquent amounts accrued
                                             impractical because there is insufficient               delaying providing relief to borrowers.              during a COVID–19-related forbearance.
                                             time to solicit comment and finalize                    Indeed, the Bureau understands that                  As described in the respective section-
                                             amendments before FHFA’s COVID–19                       servicers have already begun receiving               by-section analyses, new
                                             payment deferral programs take effect                   abnormally high call volumes,                        § 1024.41(c)(2)(v)(A) sets forth the
                                             on July 1, 2020.                                        beginning in March 2020.48                           minimum specific criteria that the loss
                                                For similar reasons, the Bureau also                   For these same reasons, the Bureau                 mitigation option must meet for the new
                                             finds that delaying this rulemaking to                  also finds that there is good cause for              exception to apply, and new
                                             allow for prior public comment would                    this interim final rule to be effective less         § 1024.41(c)(2)(v)(B) offers servicers
                                             be contrary to the public interest,                     than 30 days after publication, to ensure            relief from certain regulatory
                                             because the amendments are necessary                    that these amendments are in effect by               requirements when a borrower accepts a
                                             to avoid the harm to borrowers and to                   the July 1, 2020 effective date of the               loss mitigation option under the new
                                             the housing market that would result if                 FHFA COVID–19 payment deferral, to                   exception.
                                             the amendments did not take effect on                   avoid harm to borrowers and to the                      As discussed in part II, FHFA, FHA,
                                             July 1, 2020. As discussed above in part                housing market.                                      and others have recently announced
                                             II, the Bureau believes that the FHFA                                                                        loss mitigation options to assist
                                             COVID–19 payment deferral program                       V. Section-by-Section Analysis                       borrowers experiencing hardships
                                             and other comparable programs,                          Section 1024.41 Loss Mitigation                      related to the COVID–19 emergency in
                                             described more fully in part V, will                       Procedures                                        repaying amounts that accrued through
                                             benefit both borrowers and servicers                    41(c) Evaluation of loss mitigation                  forbearance or delinquency.51 In
                                             during the current COVID–19                                applications                                      general, these programs permit
                                             emergency. These programs will help                     41(c)(2) Incomplete loss mitigation                  borrowers who can resume their normal
                                             eligible borrowers avoid foreclosure by                    application evaluation                            periodic payments to move the forborne
                                             quickly entering an agreement regarding                 41(c)(2)(i) In general                               or delinquent payments to the end of
                                             repayment of their forborne payments.                      Section 1024.41(c)(2)(i) states that, in          the mortgage loan and cure any
                                             Absent these streamlined procedures,                    general, servicers shall not evade the               preexisting delinquency. Under those
                                             servicers likely would require borrowers                requirement to evaluate a complete loss programs, the deferred amounts must
                                             to submit a complete loss mitigation                    mitigation application for all loss                  not accrue interest, servicers may not
                                             application before servicers would                      mitigation options available to the                  charge any fee in connection with the
                                             consider them for these programs. This                  borrower by making an offer based upon loss mitigation option and must waive
                                             could result in significant delays before               an incomplete application.49 Currently,              various preexisting fees, if applicable,
                                             borrowers can be offered the payment                    the provision points to two paragraphs               and servicers are permitted to offer the
                                             deferral program. In some cases,                        providing exceptions to the anti-evasion deferral programs to borrowers based on
                                             borrowers might not complete a loss                     requirement, § 1024.41(c)(2)(ii) and (iii). streamlined application procedures.
                                             mitigation application, which could                     In this interim final rule, the Bureau is               The Bureau believes that the FHFA
                                             prolong their delinquency, increase                     adding a temporary exception under                   COVID–19 payment deferral and certain
                                             their costs, and put them at imminent                   new § 1024.41(c)(2)(v). As described in              similar programs would provide
                                             risk of foreclosure. Given the large                    the section-by-section analysis of                   benefits both to borrowers and servicers
                                             number of mortgage borrowers currently                  § 1024.41(c)(2)(v), the new exception                during the COVID–19 emergency.
                                             in forbearance or experiencing a                        applies to certain loss mitigation                   Through these programs, borrowers who
                                             delinquency related to the COVID–19                     options that permit borrowers to delay               can resume their normal periodic
                                             emergency, even a small fraction of                     repayment of forborne or delinquent                  payments but who cannot afford to
                                             those borrowers experiencing                            amounts accrued due to the COVID–19                  repay the forborne or delinquent
                                             foreclosure could translate to large                    emergency. The Bureau is amending                    amounts in the short-term should be
                                             aggregate consequences. For instance, as                § 1024.41(c)(2)(i) to include a reference            able to eliminate the immediate
                                             noted above, approximately four million                 to the new exception in paragraph                    potential risk of losing their homes to
                                             borrowers have entered forbearance                      (c)(2)(v).                                           foreclosure, resume repaying the
                                             since March 2020. Even if only one-                                                                          mortgage loan with no delinquency and
                                             tenth of 1 percent of these borrowers                   41(c)(2)(v) Certain COVID–19-Related                 no additional fees or interest, and better
                                             would experience foreclosure absent a                   Loss Mitigation Options                              plan how eventually to repay the
                                             deferral, that would translate to                          In general, § 1024.41 requires                    forborne or delinquent amount that has
                                             thousands of additional foreclosures.                   servicers to evaluate a complete loss                been deferred.
                                             Thus, avoiding foreclosures may help                    mitigation application for all loss                     In addition, the streamlined
                                             prevent significant consequences for the                mitigation options available to the                  application procedures authorized by
                                             housing market and imposing costs both                  borrower.50 In this interim final rule, the Fannie Mae and Freddie Mac should
                                             on borrowers and servicers.                             Bureau is adding a temporary exception help ensure that servicers have
                                                In addition, the streamlined                         to this requirement under new                        sufficient resources to address requests
                                             procedures permitted for FHFA’s                                                                              from the unusually large number of
                                                                                                     § 1024.41(c)(2)(v) for certain loss
                                             COVID–19 payment deferral program                                                                            borrowers who will be seeking
                                             would minimize the burden on servicers                                                                       assistance from them in the coming




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                                                                                                       48 See, Mortgage Bankers Ass’n, MBA Survey
                                             by allowing them to offer the payment                   Shows Spike in Loans in Forbearance and Servicer     months as many CARES Act
                                             deferral program without obtaining and                  Call Volume, https://www.mba.org/2020-press-         forbearances end. And borrowers
                                             processing a complete application from                  releases/april/mba-survey-shows-spike-in-loans-in-
                                                                                                     forbearance-servicer-call-volume.                    dealing with the social and economic
                                             the borrower. This is especially                          49 Small servicers, as defined in Regulation Z, 12 effects of COVID–19 may be less likely
                                             important during the COVID–19                           CFR 1026.41, are not subject to this requirement. 12
                                             emergency because servicers will be                     CFR 1024.30(b)(1).                                       51 FHFA, supra note 30; HUD Mortgagee Letter

                                             transitioning many borrowers from                         50 Id.                                               2020–06, supra note 30.



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                                                                    Federal Register / Vol. 85, No. 126 / Tuesday, June 30, 2020 / Rules and Regulations                                     39061

                                             than they would be under normal                         payment forbearance program made                       many borrowers may be facing extended
                                             circumstances to take the steps                         available to borrowers experiencing a                  periods of economic uncertainty.
                                             necessary to complete a loss mitigation                 financial hardship due, directly or                       The Bureau notes that new
                                             application to receive a full evaluation.               indirectly, to the COVID–19                            § 1024.41(c)(2)(v)(A)(1) allows for some
                                             This could prolong their delinquencies                  emergency,54 including a payment                       flexibility among loss mitigation options
                                             and put them at risk for foreclosure.                   forbearance program made pursuant to                   that may qualify for the exception. For
                                             Moreover, by allowing servicers to assist               the CARES Act. ‘‘Covered amounts’’                     example, although the loss mitigation
                                             borrowers eligible for deferrals more                   under § 1024.41(c)(2)(v)(A)(1) also                    options must defer all forborne or
                                             efficiently, servicers will have more                   includes, without limitation, all other                delinquent principal and interest
                                             resources to assist borrowers who are                   principal and interest payments that are               payments under new
                                             unable to resume making their normal                    due and unpaid by a borrower                           § 1024.41(c)(2)(v)(A)(1), the rule does
                                             periodic payment, and are therefore                     experiencing a similar financial                       not specify how servicers must treat any
                                             ineligible for a FHFA COVID–19                          hardship. And ‘‘the term of the mortgage               forborne or delinquent escrow amounts.
                                             payment deferral, submit a complete                     loan’’ under § 1024.41(c)(2)(v)(A)(1)                  A loss mitigation option would qualify
                                             loss mitigation application for                         means the loan term according to the                   for the new exception if it defers
                                             evaluation.                                             obligation between the parties in effect               repayment of escrow amounts, in
                                                The Bureau acknowledges that                         when the borrower is offered the loss                  addition to principal and interest
                                             borrowers accepting a loss mitigation                   mitigation option under the new                        payments, as long as it otherwise
                                             offer under new § 1024.41(c)(2)(v)(A)                   exception.                                             satisfies new § 1024.41(c)(2)(v)(A).
                                             will not receive protections under                                                                                New § 1024.41(c)(2)(v)(A)(1) is also
                                                                                                        Under new § 1024.41(c)(2)(v)(A)(2),                 flexible with respect to repayment
                                             § 1024.41 that are critical in other
                                                                                                     any amounts that the borrower may                      requirements—it does not specify how a
                                             circumstances. As the Bureau explained
                                                                                                     delay paying as described in paragraph                 servicer must structure repayment of the
                                             in the 2013 Mortgage Servicing Final
                                                                                                     (c)(v)(2)(A)(1) must not accrue interest;              deferred amounts. Requiring repayment
                                             Rule, the general prohibition against
                                             evaluating a borrower for all available                 the servicer must not charge any fee in                either in a lump sum or over a specified
                                             loss mitigation options based on a                      connection with the loss mitigation                    period at the end of the loan term
                                             single, complete application ensures                    option; and the servicer must waive all                through additional periodic payments,
                                             that borrowers have a full                              existing late charges, penalties, stop                 among other possible approaches,
                                             understanding of their loss mitigation                  payment fees, or similar charges                       would satisfy new
                                             options when deciding on a program.52                   promptly upon the borrower’s                           § 1024.41(c)(2)(v)(A)(1). The Bureau
                                             It also makes the loss mitigation                       acceptance of the loss mitigation option.              notes that the provision specifically
                                             application process more efficient by                   And, under § 1024.41(c)(2)(v)(A)(3), the               defines the mortgage loan term for these
                                             eliminating multiple, sequential                        borrower’s acceptance of the offer must                purposes to mean the loan term in effect
                                             evaluations that are sometimes based on                 end any preexisting delinquency.                       when the borrower is offered the loss
                                             similar application information,53 with                    The criteria in § 1024.41(c)(2)(v)(A)(1)            mitigation option. As a result, the
                                             the resulting efficiency often saving                   through (3) provide borrowers with                     exception under new
                                             borrowers time and resources.                           safeguards to ensure that borrowers are                § 1024.41(c)(2)(v)(A) is available for
                                                Nonetheless, the Bureau believes that                sufficiently protected when receiving a                eligible loss mitigation options that
                                             the protections set forth in new                        loss mitigation offer described in                     would technically extend the term of
                                             § 1024.41(c)(2)(v)(A) and (B), described                § 1024.41(c)(2)(v)(A) without an                       the loan in accommodating repayment
                                             below, provide sufficient safeguards for                evaluation of a complete loss mitigation               of forborne or delinquent amounts.
                                             borrowers in the narrow context of the                  application. First, to qualify for the                    The Bureau also notes that new
                                             COVID–19 emergency. The Bureau                          exception, new § 1024.41(c)(2)(v)(A)(1)                § 1024.41(c)(2)(v)(A)(1) provides a
                                             solicits comment on all aspects of the                  requires that any forborne or delinquent               standard specific to loans insured by
                                             new exception.                                          principal or interest payments be moved                FHA. This is intended to ensure that the
                                                                                                     to the end of the loan or, for loans that              new exception extends to certain loss
                                             41(c)(2)(v)(A)                                                                                                 mitigation options available for FHA
                                                                                                     FHA insures, until the mortgage
                                               New § 1024.41(c)(2)(v)(A) permits                     insurance terminates. This ensures that                loans. The Bureau understands that
                                             servicers to offer a loss mitigation                    borrowers in forbearance programs will                 FHA permits servicers to offer loss
                                             option based upon an evaluation of an                   not face a balloon payment immediately                 mitigation options that would otherwise
                                             incomplete application, as long as the                  after the forbearance period ends, and it              satisfy the criteria of
                                             loss mitigation option meets the criteria               will ease the financial strain of having               § 1024.41(c)(2)(v)(A) based on an
                                             set forth in § 1024.41(c)(2)(v)(A)(1)                   to make additional periodic payments to                evaluation of an incomplete loss
                                             through (3). Under new                                  catch up on a mortgage loan for                        mitigation application, and that these
                                             § 1024.41(c)(2)(v)(A)(1), the loss                      delinquent borrowers who are not in                    options would generally provide similar
                                             mitigation option must permit the                       forbearance. The alternatives could                    benefits to borrowers and servicers as
                                             borrower to delay paying covered                        exacerbate borrowers’ hardships and                    other loss mitigation options offered
                                             amounts until the mortgage loan is                      lead to foreclosure. As a result of the                under § 1024.41(c)(2)(v)(A). In some
                                             refinanced, the mortgaged property is                   eligibility criteria under new                         circumstances, these loss mitigation
                                             sold, the term of the mortgage loan ends,               § 1024.41(c)(2)(v)(A)(1), many borrowers               options would require repayment when
                                             or, for a mortgage insured by FHA, the                  receiving a loss mitigation option under               the mortgage insurance terminates. The
                                             mortgage insurance terminates. New                      § 1024.41(c)(2)(v)(A) will have years to               FHA-specific standard in new




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                                             § 1024.41(c)(2)(v)(A)(1) defines ‘‘covered              plan to address the deferred payments.                 § 1024.41(c)(2)(v)(A)(1) ensures that
                                             amounts’’ for these purposes to include,                This may be particularly important                     such repayment requirements do not
                                             without limitation, all principal and                   during the COVID–19 emergency, as                      exclude these loss mitigation options
                                             interest payments forborne under a                                                                             from the new exception.
                                                                                                       54 New § 1024.41(c)(2)(v)(A) states that ‘‘COVID–       Second, for the exception to apply,
                                               52 78 FR at 10828.
                                                                                                     19 emergency’’ has the same meaning as under           new § 1024.41(c)(2)(v)(A)(2) requires
                                               53 Id.                                                CARES Act section 4022(a)(1).                          that (1) any amounts that the borrower


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                                             39062               Federal Register / Vol. 85, No. 126 / Tuesday, June 30, 2020 / Rules and Regulations

                                             may delay paying as part of the loss                    that scenario, the servicer is not                     mortgage loans in forbearance increased
                                             mitigation agreement do not accrue                      required to comply with § 1024.41(b)(1)                from 0.19 percent to 8.55 percent.58 If
                                             interest, (2) the servicer charges no fee               or (2) with regard to any loss mitigation              servicers were required to exercise
                                             in connection with the loss mitigation                  application the borrower submitted                     reasonable diligence to obtain a
                                             option, and (3) the servicer waives a                   prior to the servicer’s offer of the loss              complete application for each of these
                                             variety of other fees promptly upon the                 mitigation option described in new                     borrowers when they exit the
                                             borrower’s acceptance. This                             § 1024.41(c)(2)(v)(A).                                 forbearance programs, as required under
                                             requirement will prevent the                               Section 1024.41(b)(1) and (2)                       § 1024.41(b)(1), or to provide borrower-
                                             application of standards that impose                    generally sets forth servicers’ obligations            specific notifications of the documents
                                             additional economic hardship on                         upon first receiving a borrower’s loss                 and information each individual
                                             borrowers, better enabling the borrowers                mitigation application. Section                        applicant must submit to complete the
                                             to address other financial needs during                 1024.41(b)(1) generally requires a                     application, as required under
                                             the COVID–19 emergency.                                 servicer to exercise reasonable diligence              § 1024.41(b)(2), it would likely interfere
                                                Third, for the exception to apply, new               in obtaining documents and information                 with their ability to provide effective
                                             § 1024.41(c)(2)(v)(A)(3) requires that the              to complete the loss mitigation                        and efficient assistance. And borrowers
                                             borrower’s acceptance of the offer end                  application. Section 1024.41(b)(2)                     dealing with the social and economic
                                             any preexisting delinquency.55 This                     generally requires the servicer to review              effects of the COVID–19 emergency may
                                             ensures that borrowers who accept a                     the application to assess completeness                 be less likely than normal to take the
                                             loss mitigation option under new                        and provide a written notice within five               steps necessary to complete a loss
                                             § 1024.41(c)(2)(v)(A) do not face a risk of             days (excluding legal public holidays,                 mitigation application to receive a full
                                             imminent foreclosure because, under                     Saturdays, and Sundays) stating, among                 evaluation. The Bureau notes that, if a
                                             existing § 1024.41(f)(1)(i), servicers are              other things, that the servicer has                    borrower does wish to pursue a
                                             generally prohibited from making the                    determined that the loss mitigation                    complete application and receive the
                                             first notice or filing required under                   application is either complete or                      full protections of § 1024.41, they may
                                             applicable law to initiate the foreclosure              incomplete; the additional documents                   do so notwithstanding new
                                             process until a mortgage loan obligation                and information the borrower must                      § 1024.41(c)(2)(v).
                                             is more than 120 days delinquent.                       submit to make the application                            The Bureau stresses that servicers are
                                                The Bureau understands that the                      complete, if applicable; a reasonable                  required to comply with § 1024.41,
                                             FHFA COVID–19 payment deferral and                      date by which the borrower should                      including § 1024.41(b)(1) and (2), if the
                                             FHA’s COVID–19 partial claim, both of                   submit the additional documents and                    borrower submits a new application
                                             which are described in part II, satisfy                 information; and a statement that the                  after accepting a loss mitigation option
                                             the criteria in new                                     borrower should consider contacting                    under new § 1024.41(c)(2)(v)(A). In
                                             § 1024.41(c)(2)(v)(A)(1) through (3).                   servicers of any other mortgage loans                  general, servicers are required to comply
                                             These programs have included these                      secured by the same property to discuss                with § 1024.41 if a borrower submits a
                                             criteria to assist borrowers in addressing              available loss mitigation options.                     loss mitigation application, unless the
                                             financial hardships caused by the                          These protections are part of a                     servicer has previously complied in
                                             COVID–19 emergency, in part by                          regulatory regime designed to ensure                   connection with a complete application
                                             helping to keep their mortgage loans                    that borrowers generally receive an                    submitted by the borrower and the
                                             current following the hardship.56 The                   evaluation for all available loss                      borrower has been delinquent at all
                                             Bureau notes, however, that the                         mitigation options based upon a single                 times since submitting that complete
                                             exception is not limited to those                       application. As explained in the section-              application.59 If a borrower has accepted
                                             programs. Servicers may offer loss                      by-section analysis of new                             a loss mitigation option offered under
                                             mitigation options under other                          § 1024.41(c)(2)(v)(A), this regulatory                 new § 1024.41(c)(2)(v)(A), neither of
                                             programs, as long as the loss mitigation                regime is intended to give borrowers                   these elements will be present the first
                                             options meet the criteria described in                  information about their loss mitigation                time the borrower submits a later loss
                                             § 1024.41(c)(2)(v)(A).                                  options when deciding on a program                     mitigation application. The exception
                                                                                                     and make the application process more                  described under new
                                             41(c)(2)(v)(B)                                          efficient, which can save borrowers time               § 1024.41(c)(2)(v)(A) is available only if
                                               New § 1024.41(c)(2)(v)(B) provides                    and resources.                                         the loss mitigation application is
                                             servicers relief from certain regulatory                   Notwithstanding these important                     incomplete and, under new
                                             requirements if a borrower accepts an                   benefits, however, the Bureau believes                 § 1024.41(c)(2)(v)(A)(3), the borrower’s
                                             offer made pursuant to new                              that, in the context of a loss mitigation              acceptance of the option ends any
                                             § 1024.41(c)(2)(v)(A). It states that, in               offer under new § 1024.41(c)(2)(v)(A),                 preexisting delinquency of the
                                                                                                     the protections under § 1024.41(b)(1)                  borrower’s mortgage loan account. As a
                                                55 After the borrower accepts a loss mitigation      and (2) introduce undue burden for both                result, servicers must comply with the
                                             option under new § 1024.41(c)(2)(v)(A), if a periodic   servicers and borrowers attempting to                  requirements of § 1024.41 for the first
                                             payment sufficient to cover principal, interest, and,   navigate the unusual challenges caused                 later application, which may occur
                                             if applicable, escrow becomes due and unpaid, a
                                             new delinquency would begin. See generally 12
                                                                                                     by the COVID–19 emergency. Servicers                   during the same conversation in which
                                             CFR 1024.31(definition of delinquency).                 are currently dealing with an                          the borrower accepts the offer under
                                                56 Press Release, Freddie Mac Announces COVID–       abnormally high number of requests for                 § 1024.41(c)(2)(v)(A).
                                             19 Payment Deferral (May 13, 2020), https://            loss mitigation assistance due to the                     Additionally, servicers may be
                                             freddiemac.gcs-web.com/news-releases/news-              pandemic. According to the Mortgage                    required to comply with early




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                                             release-details/freddie-mac-announces-covid-19-
                                             payment-deferral?_ga=2.125995917.1203641316.            Bankers Association (MBA), between                     intervention obligations if a borrower’s
                                             1592241885-952089942.1591127071; see also               early March and early June 2020,                       mortgage loan account becomes
                                             Fannie Mae Lender Letter (LL–2020–07) (as               approximately four million borrowers                   delinquent after a loss mitigation option
                                             updated on June 10, 2020), https://                     entered into forbearance programs.57
                                             singlefamily.fanniemae.com/media/22916/display;
                                                                                                                                                            takes effect under
                                             FHA Mortgagee Letter 2020–06 (Apr. 1, 2020),            Over that period, the percentage of all
                                                                                                                                                             58 Id.
                                             https://www.hud.gov/sites/dfiles/OCHCO/
                                             documents/20-06hsngml.pdf.                                57 Mortgage Bankers Ass’n, supra note 28.             59 12 CFR 1024.41(i).




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                                                                 Federal Register / Vol. 85, No. 126 / Tuesday, June 30, 2020 / Rules and Regulations                                                   39063

                                             § 1024.41(c)(2)(v)(A).60 These include                  VI. Request for Comment                                    In considering the relevant potential
                                             live contact and written notification                     The Bureau invites comment on this                    benefits, costs, and impacts of this
                                             obligations that, in part, require                      interim final rule. The Bureau is                       interim final rule, the Bureau has used
                                             servicers to inform borrowers of the                    particularly interested in whether the                  feedback received to date and its
                                             availability of additional loss mitigation              amendments appropriately balance                        knowledge of consumer financial
                                             options and how the borrowers can                       providing flexibility to servicers to offer             markets. The discussion below of these
                                             apply.61                                                relief quickly during the COVID–19                      potential costs, benefits, and impacts is
                                                Further, the Bureau believes that a                  emergency with providing important                      partly qualitative, reflecting the
                                             borrower whose mortgage loan account                    protections for borrowers engaged in the                specialized nature of the amendments.
                                             becomes delinquent following                            loss mitigation application process,                    The Bureau requests comment on this
                                             acceptance of a loss mitigation option                  such as protections from foreclosure.                   discussion generally, as well as the
                                             under § 1024.41(c)(2)(v)(A) will have                   The Bureau also seeks comment on                        submission of data or other information
                                             sufficient notice that other options may                whether to require written disclosures                  that could inform the Bureau’s
                                             be available should the borrower wish                   for this, or any similar exceptions that                consideration of the potential benefits,
                                             to submit another application. In                       the Bureau may authorize in the future.                 costs, and impacts of the interim final
                                             general, borrowers who previously                       The Bureau also seeks comment on                        rule.
                                             received a forbearance will have                        whether the Bureau should extend the                       The interim final rule’s provisions
                                             received at least two written                           exception established in new                            generally would decrease burden
                                             notifications earlier in the loss                       § 1024.41(c)(3)(v) to other post-                       incurred by industry participants and
                                             mitigation process, as required under                   forbearance loss mitigation options                     benefit consumers by providing a
                                             Regulation X: (1) The written notice                    made available to borrowers affected by                 limited exception to the general
                                             required under § 1024.41(b)(2) when the                 other types of disasters and                            requirement under § 1024.41 for
                                             borrower submits the initial application                emergencies.                                            borrowers to submit a complete loss
                                             requesting forbearance, and (2) written                                                                         mitigation application before servicers
                                             notification of the terms and conditions                VII. Effective Date                                     may offer any loss mitigation option
                                             of the forbearance program, required                      This interim final rule is effective on               based on the evaluation of an
                                             under § 1024.41(c)(2)(iii), stating that                July 1, 2020.                                           incomplete application. Under the
                                             the servicer offered the program based                                                                          interim final rule, this limited exception
                                             on evaluation of an incomplete                          VIII. Dodd-Frank Act Section 1022(b)                    would be available for loss mitigation
                                             application, that other loss mitigation                 Analysis                                                options that permit payments forborne
                                             options may be available, and that the                    In developing this interim final rule,                under an eligible forbearance, as well as
                                             borrower still has the option to submit                 the Bureau has considered the potential                 payments that are due and unpaid,
                                             a complete application to receive an                    benefits, costs, and impacts as required                related to the COVID–19 emergency to
                                             evaluation for all available options.62                 by section 1022(b)(2) of the Dodd-Frank                 be deferred to the end of the mortgage
                                             Additionally, many borrowers receiving                  Act.64 In developing this interim final                 loan. As is described in more detail
                                             an offer under § 1024.41(c)(2)(v)(A) are                rule, the Bureau has consulted with                     below, the Bureau does not believe that
                                             likely to have received early                           appropriate Federal agencies regarding                  these changes would restrict consumer
                                             intervention efforts by their servicers,                the consistency of this final rule with                 access to consumer financial products
                                             including the written notice required                   prudential, market, or systemic                         and services relative to what would
                                             under Regulation X stating, among other                 objectives administered by such                         occur under the baseline.
                                             things, a brief description of examples                 agencies as required by section                            Exception to Regulation X anti-
                                             of loss mitigation options that may be                  1022(b)(2)(B) of the Dodd-Frank Act.65                  evasion provision allowing FHFA
                                             available, as well as application                         The Bureau considered the benefits,                   COVID–19 payment deferrals without a
                                             instructions or a statement informing                   costs, and impacts of this interim final                complete loss mitigation application.
                                             the borrower how to obtain more                         rule against a baseline in which the                    The interim final rule revises
                                             information about loss mitigation                       Bureau takes no action. The baseline                    § 1024.41(c)(2)(i) and adds
                                             options from the servicer.63                            under this approach includes the                        § 1024.41(c)(2)(v) to allow servicers to
                                                In light of these protections, as well               CARES Act and the forbearances that                     offer a payment deferral, or a similar
                                             as the safeguards set forth in new                      have already been granted under the                     loss mitigation option in certain
                                             § 1024.41(c)(2)(v)(A), the Bureau                       CARES Act and substantially similar                     circumstances based on the evaluation
                                             believes the requirements of                            programs.66                                             of an incomplete loss mitigation
                                             § 1024.41(b)(1) and (2) would introduce                                                                         application. In general, for the exception
                                             burden for servicers and borrowers that                   64 Specifically, section 1022(b)(2)(A) of the Dodd-
                                                                                                                                                             to apply, borrowers must already have
                                             is unnecessary in this limited context.                 Frank Act (12 U.S.C. 5512(b)(2)(A)) requires the        received a forbearance or delinquency
                                                                                                     Bureau to consider the potential benefits and costs
                                                                                                     of the regulation to consumers and covered persons,     related to the COVID–19 emergency, the
                                               60 Small servicers, as defined in Regulation Z, 12
                                                                                                     including the potential reduction of access by          forborne or delinquent payments must
                                             CFR 1026.41, are not subject to these requirements.     consumers to consumer financial products or
                                             12 CFR 1024.30(b)(1).
                                                                                                                                                             be deferred to the end of the mortgage
                                                                                                     services; the impact of the proposed rule on insured
                                               61 See 12 CFR 1024.39(a) and (b). Also, servicers
                                                                                                     depository institutions and insured credit unions
                                                                                                                                                             loan without accruing interest and with
                                             are to have policies and procedures in place to         with $10 billion or less in total assets as described   a variety of fees waived, and the
                                             advise borrowers of all of their loss mitigation        in section 1026 of the Dodd-Frank Act (12 U.S.C.        borrower’s acceptance must end any
                                             options. 12 CFR 1024.38. During the COVID–19            5516); and the impact on consumers in rural areas.
                                             emergency, one of the loss mitigation options to be       65 Section 1022(b)(2)(B) of the Dodd-Frank Act (12
                                                                                                                                                             preexisting delinquency. The Bureau
                                                                                                                                                             understands that the FHFA COVID–19




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                                             presented to borrowers with federally backed            U.S.C. 5512(b)(2)(B)) requires that the Bureau
                                             mortgages is their right to CARES Act forbearance.      consult with the appropriate prudential regulators      payment deferral and FHA’s COVID–19
                                               62 See 12 CFR 1024.41(c)(2)(iii).                     or other Federal agencies prior to proposing a rule     partial claim satisfy the criteria,
                                               63 The early intervention written notice is           and during the comment process regarding                although the interim final rule is not
                                             generally required no later than the 45th day of a      consistency of the proposed rule with prudential,
                                             borrower’s delinquency. 12 CFR 1024.39(b). If a         market, or systemic objectives administered by such     limited to these programs.
                                             borrower is delinquent during a forbearance             agencies.
                                             program, the servicer will likely be required to          66 The Bureau has discretion in any rulemaking        respect to potential benefits, costs, and impacts and
                                             provide the written notice to the borrower.             to choose an appropriate scope of analysis with         an appropriate baseline.



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                                             39064              Federal Register / Vol. 85, No. 126 / Tuesday, June 30, 2020 / Rules and Regulations

                                                As noted above, § 1024.41(c)(2)(i), in               choose among available loss mitigation                 the COVID–19 emergency would
                                             part, prohibits evasion of the                          options.                                               experience foreclosure but for a
                                             requirement for servicers to evaluate                      Borrowers will likely benefit from the              payment deferral offered under the
                                             borrowers for all available loss                        new exception to the extent that they                  exception in this interim final rule.
                                             mitigation options in a single                          are more able to receive a payment                        Covered persons will benefit from the
                                             application once they have received a                   deferral without having to submit a                    reduction in burden from the
                                             complete application. In the 2013                       complete loss mitigation application. In               requirement to process complete loss
                                             Mortgage Servicing Final Rule, the                      most cases, this will result in a                      mitigation applications for deferrals
                                             Bureau explained its view that                          reduction in the time necessary to                     described in § 1024.41(c)(2)(v)(A) that
                                             borrowers would benefit from this                       gather required documents and                          are eligible for the exception. Given the
                                                                                                     information. In some cases, if borrowers               number of loans that are currently in a
                                             requirement, in part because borrowers
                                                                                                     would not otherwise complete a loss                    forbearance due to the COVID–19
                                             would generally be better able to choose
                                                                                                     mitigation application and could not                   emergency, this benefit could be
                                             among available loss mitigation options                 otherwise obtain relief with respect to                substantial. This may be particularly
                                             if they are presented simultaneously.                   the forborne or delinquent payments,                   true for loans serviced on behalf of
                                             This interim final rule is unlikely to                  the interim final rule will enable                     Fannie Mae and Freddie Mac. As part of
                                             affect this benefit in most cases, given                borrowers to obtain the deferral in the                the FHFA COVID–19 payment deferral
                                             the narrow scope and particular                         first place. Without a deferral, borrowers             program, Fannie Mae and Freddie Mac
                                             circumstances of the exception. Even if                 may need to repay the forborne or                      are requiring servicers of their loans to
                                             a borrower may be interested in and                     delinquent payments immediately.                       actively attempt to contact consumers
                                             eligible for another form of loss                       Borrowers who can do so would use                      currently in a CARES Act forbearance in
                                             mitigation besides a deferral, receiving a              savings, sell assets, or incur additional              order to verify eligibility for a deferral.69
                                             deferral would not generally remove the                 debt. Borrowers who cannot                             Thus, with or without the interim final
                                             borrower’s right under § 1024.41 to                     immediately repay the forborne or                      rule, servicers of loans that are owned,
                                             submit a complete loss mitigation                       delinquency balances could suffer                      insured, or guaranteed by Fannie Mae
                                             application and receive an evaluation                   foreclosure or other negative                          and Freddie Mac are required to attempt
                                             for all available options after the                     consequences. Thus, for borrowers who                  to contact borrowers currently in a
                                             deferral is in place. Moreover, in the                  obtain a deferral under the new                        CARES Act forbearance. Without the
                                             specific case of the FHFA COVID–19                      exception, the benefit of the provision                interim final rule, in each case, the
                                             payment deferral program, in practice,                  is, at a minimum, the interest on savings              servicers would further need to collect
                                             the incomplete applications that may                    or asset appreciation that need not be                 documentation needed for a complete
                                             result in deferrals will generally be                   foregone or the borrowing costs that                   loss mitigation application, and to
                                             created as a result of servicer outreach                need not be incurred. For other                        process the complete application before
                                             specifically for the purposes of granting               borrowers, the benefit of the provision                a deferral could be offered. Multiplied
                                             a deferral: Fannie Mae and Freddie Mac                  is the value of preventing delinquency                 by millions of such loans in forbearance,
                                             have directed their servicers to                        fees and foreclosure.                                  these costs could be substantial.
                                             proactively reach out to borrowers                         The Bureau does not have data                          Potential specific impacts of the
                                                                                                     available to predict what fraction of                  interim final rule. The Bureau believes
                                             currently under a CARES Act
                                                                                                     borrowers currently under a forbearance                that a large fraction of depository
                                             forbearance and to grant deferrals to all
                                                                                                     or delinquency related to the COVID–19                 institutions and credit unions with $10
                                             eligible borrowers.67 Further, to be
                                                                                                     emergency would not be able to                         billion or less in total assets that are
                                             eligible for the exception under new                    complete a loss mitigation application if              engaged in servicing mortgage loans
                                             § 1024.41(c)(2)(v)(A), a loss mitigation                required to complete the application in                qualify as ‘‘small servicers’’ for purposes
                                             option must bring the loan current. In                  order to receive a deferral offer.                     of the mortgage servicing rules because
                                             most cases, borrowers must be more                      However, the Bureau believes that in the               they service 5,000 or fewer loans, all of
                                             than 120 days delinquent before a                       present circumstances that percentage                  which they or an affiliate own or
                                             servicer may make the first notice or                   could be substantial due to limitations                originated. Small servicers are not
                                             filing required under applicable law to                 in servicer capacity. As discussed                     subject to the relevant portions of
                                             initiate foreclosure proceedings.68 Thus,               above, data from the MBA indicates that                Regulation X, § 1024.41, and so are not
                                             if a borrower wishes to pursue another                  as of June 7, 2020, roughly 8.55 percent               affected by the amendments in this
                                             loss mitigation option after accepting                  of all mortgages were currently in                     interim final rule.
                                             the deferral, the borrower will still have              forbearance, a total of about 4.3 million                 With respect to servicers that are not
                                             a considerable amount of time to                        loans, almost all of which entered                     small servicers as defined in
                                             complete a loss mitigation application                  forbearance following the passage of the               § 1026.41(e)(4), the Bureau believes that
                                             before they would be at risk for                        CARES Act and thus could exit                          the consideration of benefits and costs
                                             foreclosure. In summary, in these                       forbearance around the same time.                      of covered persons presented above
                                             specific circumstances, the Bureau                      Processing complete loss mitigation                    provides a largely accurate analysis of
                                             believes that allowing servicers to grant               applications for all these borrowers in a              the impacts of the final rule on
                                             deferrals without a complete loss                       short period of time would likely strain
                                             mitigation application will not                         many servicers’ resources. This might                    69 Press Release, Freddie Mac Announces

                                             materially affect borrowers’ ability to                 lead to more borrowers who have                        COVID019 Payment Deferral (May 13, 2020),
                                                                                                     incomplete applications that never                     https://freddiemac.gcs-web.com/news-releases/




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                                                                                                                                                            news-release-details/freddie-mac-announces-covid-
                                                67 The Bureau notes as well that one of the          reach completion and who fail to get a                 19-payment-deferral?_ga=2.125995917.1203641316.
                                             eligibility criteria for the Fannie Mae and Freddie     deferral under the baseline compared to                1592241885-952089942.1591127071; see also
                                             Mac programs is that the borrower states that they      what might occur under standard                        Fannie Mae Lender Letter (LL–2020–07) (as
                                             are able to resume payments under the original          market conditions. The Bureau also                     updated on June 10, 2020), https://
                                             terms of the mortgage. The Bureau expects that                                                                 singlefamily.fanniemae.com/media/22916/display;
                                             borrowers in those circumstances generally will not     does not have data available to predict                FHA Mortgagee Letter 2020–06 (Apr. 1, 2020),
                                             require other types of loss mitigation.                 how many borrowers currently in a                      https://www.hud.gov/sites/dfiles/OCHCO/
                                                68 12 CFR 1024.41(f)(1)(i).                          forbearance or a delinquency related to                documents/20-06hsngml.pdf.



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                                                                  Federal Register / Vol. 85, No. 126 / Tuesday, June 30, 2020 / Rules and Regulations                                               39065

                                             depository institutions and credit                       is delegating the authority to                         mortgage insurance terminates. For
                                             unions with $10 billion or less in total                 electronically sign this document to                   purposes of this paragraph
                                             assets that are engaged in servicing                     Laura Galban, a Bureau Federal Register                (c)(2)(v)(A)(1), ‘‘covered amounts’’
                                             mortgage loans.                                          Liaison, for purposes of publication in                includes, without limitation, all
                                               The Bureau has no reason to believe                    the Federal Register.                                  principal and interest payments
                                             that the additional flexibility offered to                                                                      forborne under a payment forbearance
                                             covered persons by this interim final                    List of Subjects in 12 CFR Part 1024
                                                                                                                                                             program made available to borrowers
                                             rule would differentially affect                           Banking, Banks, Condominiums,                        experiencing a financial hardship due,
                                             consumers in rural areas. The Bureau                     Consumer protection, Credit unions,                    directly or indirectly, to the COVID–19
                                             requests comment regarding the impact                    Housing, Insurance, Mortgage servicing,                emergency, including a payment
                                             of the amended provisions on                             Mortgagees, Mortgages, National banks,                 forbearance program made pursuant to
                                             consumers in rural areas and how those                   Savings associations, State member                     the Coronavirus Economic Stabilization
                                             impacts may differ from those                            banks.                                                 Act, section 4022 (15 U.S.C. 9056); it
                                             experienced by consumers generally.                                                                             also includes, without limitation, all
                                                                                                      Authority and Issuance
                                             IX. Regulatory Flexibility Act Analysis                                                                         other principal and interest payments
                                                                                                        For the reasons set forth above, the                 that are due and unpaid by a borrower
                                               The Regulatory Flexibility Act                         Bureau amends Regulation X, 12 CFR                     experiencing financial hardship due,
                                             (RFA) 70 does not apply to a rulemaking                  part 1024, as set forth below:                         directly or indirectly, to the COVID–19
                                             where general notice of proposed                                                                                emergency. For purposes of this
                                             rulemaking is not required.71 As noted                   PART 1024—REAL ESTATE
                                                                                                                                                             paragraph (c)(2)(v)(A)(1), ‘‘COVID–19
                                             previously, the Bureau has determined                    SETTLEMENT PROCEDURES ACT
                                                                                                                                                             emergency’’ has the same meaning as
                                             that it is unnecessary to publish a                      (REGULATION X)
                                                                                                                                                             under the Coronavirus Economic
                                             general notice of proposed rulemaking
                                                                                                      ■ 1. The authority citation for part 1024
                                                                                                                                                             Stabilization Act, section 4022(a)(1) (15
                                             for this interim final rule. Accordingly,
                                                                                                      continues to read as follows:                          U.S.C. 9056(a)(1)). For purposes of this
                                             the RFA’s requirements relating to an
                                                                                                                                                             paragraph (c)(2)(v)(A)(1), ‘‘the term of
                                             initial and final regulatory flexibility                   Authority: 12 U.S.C. 2603–2605, 2607,                the mortgage loan’’ means the term of
                                             analysis do not apply.                                   2609, 2617, 5512, 5532, 5581.
                                                                                                                                                             the mortgage loan according to the
                                             X. Paperwork Reduction Act                               Subpart C—Mortgage Servicing                           obligation between the parties in effect
                                               The Bureau has determined that the                                                                            when the borrower is offered the loss
                                             interim final rule does not impose any                   ■ 2. Section 1024.41 is amended by                     mitigation option.
                                             new or revise any existing                               revising paragraph (c)(2)(i) and adding                  (2) Any amounts that the borrower
                                             recordkeeping, reporting, or disclosure                  paragraph (c)(2)(v) to read as follows:                may delay paying as described in
                                             requirements on covered entities or                                                                             paragraph (c)(2)(v)(A)(1) of this section
                                                                                                      § 1024.41    Loss mitigation procedures.
                                             members of the public that would be                                                                             do not accrue interest; the servicer does
                                             collections of information requiring                     *      *      *      *     *                           not charge any fee in connection with
                                             approval by the Office of Management                        (c) * * *                                           the loss mitigation option; and the
                                             and Budget under the Paperwork                              (2) Incomplete loss mitigation                      servicer waives all existing late charges,
                                             Reduction Act.72                                         application evaluation—(i) In general.                 penalties, stop payment fees, or similar
                                                                                                      Except as set forth in paragraphs                      charges promptly upon the borrower’s
                                             XI. Congressional Review Act                             (c)(2)(ii), (iii), and (v) of this section, a          acceptance of the loss mitigation option.
                                                Pursuant to the Congressional Review                  servicer shall not evade the requirement
                                             Act,73 the Bureau will submit a report                   to evaluate a complete loss mitigation                    (3) The borrower’s acceptance of an
                                             containing this rule and other required                  application for all loss mitigation                    offer made pursuant to paragraph
                                             information to the U.S. Senate, the U.S.                 options available to the borrower by                   (c)(2)(v)(A) of this section ends any pre-
                                             House of Representatives, and the                        offering a loss mitigation option based                existing delinquency on the mortgage
                                             Comptroller General of the United                        upon an evaluation of any information                  loan.
                                             States prior to the rule’s published                     provided by a borrower in connection                      (B) Once the borrower accepts an offer
                                             effective date. The Office of Information                with an incomplete loss mitigation                     made pursuant to paragraph (c)(2)(v)(A)
                                             and Regulatory Affairs has designated                    application.                                           of this section, the servicer is not
                                             this rule as a ‘‘major rule’’ as defined by              *      *      *      *     *                           required to comply with paragraph
                                             5 U.S.C. 804(2). As discussed in part IV,                   (v) Certain COVID–19-related loss                   (b)(1) or (2) of this section with regard
                                             the Bureau finds that there is good cause                mitigation options. (A) Notwithstanding                to any loss mitigation application the
                                             for the rule to take effect without prior                paragraph (c)(2)(i) of this section, a                 borrower submitted prior to the
                                             notice and comment. Accordingly, this                    servicer may offer a borrower a loss                   servicer’s offer of the loss mitigation
                                             rule may take effect at such time as the                 mitigation option based upon evaluation                option described in paragraph
                                             Bureau determines. 5 U.S.C. 808(2).                      of an incomplete application, provided                 (c)(2)(v)(A) of this section.
                                             XII. Signing Authority                                   that all of the following criteria are met:            *      *     *     *     *
                                                                                                         (1) The loss mitigation option permits
                                               The Director of the Bureau, having                                                                              Dated: June 23, 2020.
                                                                                                      the borrower to delay paying covered
                                             reviewed and approved this document,                                                                            Laura Galban,




khammond on DSKJM1Z7X2PROD with RULES
                                                                                                      amounts until the mortgage loan is
                                               70 5 U.S.C. 601 et seq.                                refinanced, the mortgaged property is                  Federal Register Liaison, Bureau of Consumer
                                               71 5 U.S.C. 603(a), 604(a).                            sold, the term of the mortgage loan ends,              Financial Protection.
                                               72 44 U.S.C. 3501 et seq.                              or, for a mortgage loan insured by the                 [FR Doc. 2020–13853 Filed 6–29–20; 8:45 am]
                                               73 5 U.S.C. 801 et seq.                                Federal Housing Administration, the                    BILLING CODE 4810–AM–P




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