Realty Times November 10, 2003

$55 Million FTC And HUD Settlement With Fairbanks Capital Reported By PMI Group
by Kenneth R. Harney

In what could be one of the largest and most complex legal settlements in history with an American mortgage company, two federal agencies reportedly have reached an agreement with Fairbanks Capital Corp. requiring at least $55 million in payouts and fines by the Utah-based servicer.

According to disclosures to shareholders by Fairbanks' majority owner, PMI Group Inc., the company has agreed to settle complaints made by thousands of its loan servicing customers with the U.S. Department of Housing and Urban Development and the Federal Trade Commission. Neither HUD nor the FTC would provide details of the agreement when requested by Realty Times last Friday, but one source indicated a formal federal announcement on the case may come by the middle of this week.

Sources familiar with the negotiations also suggested that in addition to a $40 million payout fund for Fairbanks customers and $15 million to settle outstanding class action suits, the company would have to follow a strict new set of guidelines on handling borrowers' loan accounts in the future.

Fairbanks is the country's largest servicer of subprime mortgages -- home loans made to homebuyers with imperfect credit. As detailed in Realty Times earlier this year (May 19), thousands of Fairbanks loan clients nationwide have complained to federal and state authorities that the company:

  • Routinely failed to credit on-time payments, and treated them instead as late payments, producing rolling delinquencies.

  • Pressured many borrowers into new, high-cost "force-placed" hazard insurance policies on their properties even though the borrowers could document the existence of valid insurance coverage already in place.

  • Squeezed legal and other fees out of borrowers threatened with needless foreclosures caused by Fairbanks' own servicing policies.

    The Federal Trade Commission and HUD both pursued investigations of the claims, urged in part by complaints from congressional representatives. Hundreds of borrowers also filed class action suits, charging "predatory" servicing practices. One class action in California alleged that customers often were forced to pay thousands of dollars of extra money to Fairbanks as the only way to stop groundless foreclosure proceedings.

    After initially dismissing or belittling the claims against it, Fairbanks executives began to cooperate with investigators. Ultimately the top leadership of the company was fired or replaced. Former president Bill Garland said borrower complaints and lawsuits "come with the territory" -- a reference to Fairbanks' position as servicer of nearly 600,000 subprime home loans.

    "We have litigation in this business," Garland said. "It is part of the business."

    Garland noted that his portfolio contained an unusually high percentage of problem loans -- 30% of his borrowers were two or more monthly payments behind schedule, he said, and 45,000 were in the foreclosure pipeline.

    Sources familiar with the Fairbanks case say the federal agencies hope to make an example of the company, and use the settlement as a model for "best practices" guidelines for the subprime servicing industry as a whole. For example, the best practices guidelines might specify precisely how a company should handle borrowers when acquiring a loan servicing portfolio from another mortgage company. Many of the complaints against Fairbanks appear to have arisen at the "hand-off" stage -- after the firm acquired large portfolios of mortgages from other companies, and apparently had difficulties communicating with and integrating the new borrowers into Fairbanks' own servicing procedures.



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