Abuses by the Mortgage Servicing Industry

Learn about mistakes and errors that happen in the mortgage servicing industry.

By , Attorney · University of Denver Sturm College of Law

"Mortgage servicers" collect and process payments from homeowners and handle loss mitigation applications and foreclosures for defaulted loans. Unfortunately, servicers sometimes make errors and engage in harmful practices when it comes to managing homeowners' accounts.

For example, here are some errors that servicers make, with more details below:

  • misapplying payments or accounting mistakes
  • charging unreasonable fees
  • improperly buying a homeowners' insurance policy for the property (called "lender-placed" insurance) and making you pay for it
  • dual tracking your loan
  • robosigning documents, and
  • failing to make escrow disbursements for insurance or taxes.

Mortgage Company Not Applying Payments

One of a servicer's duties is to collect and process payments from the borrower. But in some cases, a servicer might:

  • improperly apply funds, violating the mortgage or deed of trust's terms
  • ignore a grace period, or
  • fail to credit funds to the correct account.

Example. Let's say a borrower sends in a full monthly payment of $1,200. But the servicer incorrectly records the payment as $200 and places this amount in a suspense account. (Servicers often use suspense accounts when borrowers send partial payments.) The servicer then reports the payment as late to the credit reporting agencies. The servicer's actions could affect the homeowner's credit scores, even if the mistake is eventually corrected.

The Prompt Crediting Rule

Under federal mortgage servicing laws, the servicer must credit your payment to the account on the day it receives the payment. This requirement is called the "prompt crediting rule."

But a few exceptions to this rule exist. The servicer doesn't have to apply the funds to the account on the day the payment comes in if any of the following are true:

  • The servicer doesn't charge you anything, like a late fee, additional interest, or any similar penalty, due to the delay.
  • The servicer doesn't report negative information to a consumer reporting agency.
  • You didn't follow the servicer's written instructions on how to make your payment. Payments that don't comply with the servicer's specific instructions must be credited within five days of receipt.
  • You actually made a partial payment. (A partial payment occurs when you pay less than the full amount due, including principal, interest, and escrow, if applicable.)

Partial Payments and Suspense Accounts

The servicer can put a partial payment into a suspense account rather than apply it to your account. In that case, it must let you know on your next monthly statement, called a "periodic statement," that it has decided to hold the funds in suspense rather than apply them to your account.

Once you make another payment and the suspense account has enough to cover a full payment, including principal, interest, and any applicable escrow amounts, the servicer must then apply the funds to the account.

Charging Unreasonable Fees

Loan contracts generally allow a servicer to charge fees under certain circumstances, like when the borrower is late on a payment or is in foreclosure. A few examples of these types of fees are:

  • late fees
  • inspection fees
  • foreclosure costs, and
  • other default-related fees.

But servicers sometimes charge excessive fees or incorrect amounts to the account, which unfairly increases the borrower's total balance.

Improperly Force-Placing Insurance

Most mortgages and deeds of trust require homeowners to maintain hazard insurance coverage on their property. The property owner generally purchases a homeowners' policy to meet this requirement.

But if the homeowner lets the coverage lapse, the servicer can buy insurance coverage at the homeowner's expense. This kind of insurance is called "force-placed" or "lender-placed" insurance. Usually, the servicer adds the cost of the force-placed insurance to the loan payment.

Sometimes, a servicer force-places insurance coverage even though the borrower already had other coverage in place. Because force-placed insurance is expensive, these charges can increase the monthly payment by a large amount. So, a homeowner who's already behind in payments or facing financial difficulties might go into foreclosure when it becomes even more difficult to keep up with the monthly payments.

Dual Tracking a Loan

Dual tracking happens when the servicer proceeds with foreclosure while simultaneously working with the borrower on a loan modification or another loss mitigation option. With dual tracking, the foreclosure might be completed even though the modification application is still pending.

Efforts have been made to address and correct this problem: Federal law restricts dual tracking, and some states, like California, Colorado, and others, have laws that prohibit dual tracking.

Robosigning Documents

One of the worst loan servicing abuses to come to light during the foreclosure crisis was "robosigning." The media and courts slammed the mortgage servicing industry for using false affidavits in thousands of foreclosure cases.

Following the robosigning scandal, several large banks temporarily froze all pending foreclosures. For some homeowners, the robosigning mess created opportunities to challenge their foreclosures in court or negotiate with banks to avoid foreclosure. Now, robosigning happens much less often, but your case might be the exception.

What Is Robosigning?

As part of the foreclosure process in the 25 or so states that require judicial foreclosure, the foreclosing bank must demonstrate that the homeowner has defaulted on the mortgage and that the bank owns the mortgage (that is, the bank has "standing").

Typically, the bank proves these requisite facts by submitting documents and a written statement signed under oath, called an "affidavit," by a person, usually a bank employee or representative, who has reviewed the documents and is supposed to have some personal basis for believing the facts to be true.

The idea behind the affidavit requirement is to prevent foreclosures on homes when the foreclosing bank can't prove that it owns the mortgage or when the homeowner isn't in default to the degree asserted in the foreclosure papers.

Robosigning Scandal in 2010

In 2010, it was revealed that several large banks routinely used affidavits signed by employees who didn't personally review the documents and had no basis for believing that the homeowner was in default or that the bank owned the loan.

Employees for financial giants like Bank of America, JPMorgan Chase, Wells Fargo, and GMAC testified that they signed many thousands of affidavits a month, spending about 30 seconds on each affidavit, and that they didn't have a clue regarding the veracity of the affidavit or the documents in question—hence the name "robosigners."

Since the time this scandal broke, the public also found out that servicers' employees robosigned all kinds of foreclosure documents besides affidavits, like assignments of mortgage and other documents needed to foreclose. Robosigning occurred in both judicial and nonjudicial foreclosures.

While robosigning is much less likely to occur today, it could happen. Or the foreclosure documentation in your case could be flawed in another way.

Failing to Make Appropriate Escrow Disbursements and Escrow Shortages

Escrow accounts are established to ensure that real estate taxes and homeowners' insurance get paid. Along with the monthly mortgage payment for principal and interest, the servicer collects funds from the borrower to make payments for these expenses. But, in some cases, the servicer neglects to make the tax or insurance payment.

So, a homeowner could face penalties from the taxing authority (and, in a worst-case scenario, a tax foreclosure) or face difficulties with uninsured property damage.

Additionally, the servicer might charge a late fee the taxing authority imposed or a reinstatement fee an insurance company charged to the borrower's account. These fees could lead to an escrow shortage, which would increase the borrower's monthly payments.

Talk to a Lawyer

The errors mentioned in this article represent just a few of the typical offenses that servicers have been known to commit. There are, of course, others.

If you're the victim of abusive servicing practices and are facing foreclosure, you should speak to a qualified attorney who can advise you on what to do in your particular situation.

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