United States: New Guidance For Mortgage Servicing Rules

On October 15, 2013, the CFPB issued additional Guidance regarding various aspects of the Mortgage Servicing Rules issued last January and effective January 10, 2014. Those rules implement changes to the Real Estate Settlement Procedures Act and the Truth In Lending Act. This new Guidance addresses three areas of concern expressed by many servicers:

  • Policies and procedures that servicers must have regarding the identification of and communication with a successor in interest of a deceased borrower with respect to the deceased borrower's mortgage loan.
  • Communication with borrowers under the Early Intervention Rule.
  • A servicer's obligation to provide notices and communicate with borrowers who have given notice under the Fair Debt Collections Practices Act (FDCPA) barring collectors from communicating with them.

Each of these areas of concern will be discussed below.

Successors in Interest. Starting on January 10, 2014, servicers must have policies and procedures in place to insure that the servicer can identify and facilitate communication with a successor in interest when a borrower dies. The CFPB Guidance provides the following examples of practices that would reasonably achieve the objective of the successor in interest provisions:

  • Promptly providing any successor in interest with a list of documents the servicer requires to establish the death of the borrower and the identity and legal interest of the successor. (e.g., death certificate, will or probate documents, etc.)
  • Establishing the procedure for identifying and evaluating the rights and obligations of the successor in interest. For example:

- Receipt of acceptable proof of the successor in interest's claim;

- The current status of the loan;

- The ability of the successor to continue making payments;

- Whether any loan modification was in place at the time of death;

- Whether a foreclosure is pending or planned;

- Whether the successor might qualify for loss mitigation options;

- Whether the successor might be eligible to assume the loan.

  • Promptly providing documents, forms, etc. required to enable the successor to apply and be considered for either a loan assumption or a loss mitigation option.
  • Promptly evaluating the successor for any of the above transactions.
  • Providing employees with training related to the effect of laws related to ownership and inheritance of real property.

In addition to the foregoing, servicers should consider the impact that a borrower's death should have on any pending foreclosure process or loss mitigation effort in place at the time of death.

The Early Intervention Rule. The Rule requires that for each billing cycle during which a borrower is delinquent for at least 36 days, a servicer is required to make a good faith effort to establish live contact with the borrower by the 36th day and inform the borrower of any loss mitigation options available. Good faith efforts consist of reasonable efforts to reach a borrower and may include efforts to contact the customer by telephone or electronic communication. This Interagency Guidance provides additional guidance to cover the following situations:

  • On-going Loss Mitigation. The live contact requirement can be satisfied in situations where a borrower is in the process of completing a loss mitigation application simply by establishing and maintaining the on-going contact required to evaluate and pursue such an application.
  • Borrower Becomes Delinquent Under an Approved Loss Mitigation Plan. Failure to make a payment under an approved loss mitigation plan creates a new delinquency and a requirement to contact the borrower within 36 days of the start of that delinquency; however, a borrower is not considered delinquent if he or she is paying as agreed under such a plan – including a forbearance plan or a trial modification.
  • Other Contact. The new Guidance makes it clear that a servicer may combine contacts under the Early Intervention Rule with other customer contacts (i.e., additions to scripts for collection calls, etc.).
  • Unresponsive Borrower. "Good faith efforts" to establish live contacts do not necessarily mean unlimited efforts. If the borrower is repeatedly unresponsive for a period of six or more months, a single phone call or a simple sentence added to a communication asking the customer to contact the bank would suffice.

Fair Debt Collection Practices Act. The FDCPA generally allows debtors to prohibit debt collectors from contacting them. Such an action by a borrower could create confusion for a servicer that is under an obligation to contact a delinquent borrower. The CFPB has concluded that a servicer that complies with Regulation X (RESPA) for purposes of error resolution, requests for information, force-placed insurance or loss mitigation and with Regulation Z (TILA) for adjustable-rate mortgage initial interest rate adjustment and furnishing of periodic statements will have no liability under the FDCPA. The rationale of the CFPB is that the consumer should be deemed to have excluded these categories of communication from the general request to cease communications. In some of these instances, it can also be said that the specific communication requirement is contained in the Dodd-Frank Act which makes no reference to the FDCPA and may be viewed as the more recent and more specific statement of legislative intent.

These clarifications should be incorporated into your RESPA and TILA policies and procedures.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions