Lenders Likely Next Target in CFPB Reinsurance Kickback Probe

Lenders Likely Next Target in CFPB Reinsurance Kickback Probe

by Joe Adler APR 4, 2013 4:43pm ET

WASHINGTON – The Consumer Financial Protection Bureau’s enforcement actions against four large mortgage insurers are likely just the start of efforts against an alleged widespread mortgage insurance kickback scheme that involves several lenders.

The agency ordered the firms to stop reinsurance deals with mortgage lenders that were purportedly made in return for getting a larger slice of the mortgage insurance pie. It also said the insurance companies must pay a total of $15.4 million in civil money penalties and undergo additional CFPB monitoring.

Yet the paltry size of the fines – combined with additional investigations and ongoing litigation involving borrowers, insurers and big banks alleged to have participated – suggests more enforcement activity is still on the way, including against lenders that were said to have received the reinsurance business. The scheme is estimated by some to have involved as much as $6 billion in kickbacks.

“In the context of the massive amount of mortgage fraud that occurred in this industry, a $15 million penalty seems pretty small,” said David Reiss, a professor at Brooklyn Law School. “But given that further enforcement against the large financial institutions that demanded the kickbacks is possibly still on the horizon, the jury is out on whether this will be an effective set of enforcement actions.”

The largest fines, of $4.5 million each, were levied against United Guaranty Corp. and Genworth Mortgage Insurance Corp. Radian Guaranty Inc. and Mortgage Guaranty Insurance Corp. were ordered to pay, respectively, $3.75 million and $2.65 million. Each of the companies was party to CFPB consent orders that must still be approved by the U.S. District Court for the Southern District of Florida.

The agency said the companies, which rely on lenders for referrals to sell mortgage insurance policies, agreed to take out reinsurance policies themselves from lender affiliates in return for those referrals. But the deals, regulators say, appeared to be more about providing lenders with extra profits than insurers needing a backstop.

“The mortgage insurance business can be lucrative, and our investigation indicates that lenders sought to leverage their control over the business to capture some of those revenues for themselves,” CFPB Director Richard Cordray said on a conference call with reporters.

Officials with the agency did not provide any details about further actions to come related to the scheme, but signaled that the institutions on the other side of the business arrangements continue to be a focus of their probe.

“In every kickback situation, there is somebody paying and there is somebody receiving. It takes two to tango,” said Kent Markus, the CFPB’s assistant director for enforcement. “As I’ve indicated, today we’re dealing with those who paid the kickbacks, and in particular trying to make sure that the practices stopped and that consumers do not continue to be victimized in this way. But we have more work to do on this matter.”

At issue are so-called captive reinsurance arrangements. Borrowers typically must pay for mortgage insurance when they cannot afford to make a 20% down payment. The CFPB said the mortgage insurance firms were unnecessarily taking out reinsurance contracts with a lender’s own subsidiary – a captive reinsurance arrangement that effectively allowed the insurance firms to provide additional money to the lender.

Under the proposed settlement, which cites alleged violations of the Real Estate Settlement Procedures Act, the companies are prohibited from entering into any mortgage reinsurance arrangements for at least 10 years. The CFPB said the fines were based on the insurers’ finances, “relative culpability” and the companies’ cooperation with the agency. (The federal investigation into the kickback schemes was initially launched by the inspector general of the Department of Housing and Urban Development.)

“While mortgage insurance can help borrowers get a loan, the financial burden it imposes is clearly magnified if the cost is inflated by illegal kickbacks,” Cordray said. “That harms not only consumers but entire communities, the housing market and the economy as a whole.”

In statements issued by the insurance companies involved, they expressed their hope to move past the ordeal, while also attempting to make the case that the captive deals did not affect borrower costs and were intended to help the firms mitigate losses.

“MGIC’s captive reinsurance transactions caused no harm to any borrower because MGIC’s premium rates were not based on, or affected by, captive reinsurance,” the company said.

A statement by Teresa Bryce Bazemore, president of Radian Guaranty, said, “We are pleased to put this behind us.”

“While we believe our captive arrangements complied with RESPA and caused no harm to consumers, this settlement was an opportunity to eliminate distractions at an acceptable cost so that we can continue our primary focus of writing new, profitable mortgage insurance and helping low down-payment borrowers realize the dream of homeownership,” Bazemore said.

But in its press release, the CFPB said the captive reinsurance “was essentially worthless” and “designed to make a profit for the lenders.”

Markus said mortgage-related kickbacks can have a real effect on consumers.

“The impact on consumers of illegal kickbacks is that it raises prices. That’s the entire reason the Congress made it illegal to have kickbacks in the context of real estate settlement activity,” he said. “Those kickback costs somehow end up working their way into the costs of the product and therefore increased costs for consumers.”

NEW CFPB COMPLAINT REPORT SHOWS MORTGAGE BROKERS ARE THE BEST ORIGINATORS

NEW CFPB COMPLAINT REPORT SHOWS MORTGAGE BROKERS ARE THE BEST ORIGINATORS

The National Association of Mortgage Brokers (NAMB) has come out in support of the Consumer Financial Protection Bureau’s (CFPB) release of the Consumer Complaint Database, a public database of federal consumer financial complaints, containing more than 90,000 individual complaints on financial products and services. One of NAMB’s core beliefs is the protection of consumers and their rights to fair and equal credit as it pertains to the residential mortgage market. It is NAMB’s belief that the CFPB’s Consumer Complaint Database will assist consumers in identifying reputable and efficient sources for obtaining credit needed to purchase a home in today’s heavily regulated market.

“In reviewing the information on the current Consumer Complaint Database, it seems that the mortgage broker is again being thrown into a category with ‘Application, Originator and Mortgage Brokers,’” said Donald J. Frommeyer, CRMS, NAMB president. “I would think that mortgage brokers would be in a category separate from the other two items.

According to the Consumer Complaint Database (https://data.consumerfinance.gov/dataset/Mortgage-complaints/c6ve-d79g) released on March 28, 2013 of the 3,564 complaints filed with mortgage broker, 2,745 actually belonged to banks, not mortgage brokers. A closer examination shows that only 22 out of the 50,457 complaints filed are against mortgage brokers-a 0.0436 percent negative feedback reading against the mortgage broker community.

“It seems that this is creating a public perception that all origination complaints are against mortgage brokers when their own real data shows otherwise,” said Frommeyer. “The CFPB needs to make sure that the information that is being accumulated makes sense so that all consumers can and will eventually use this information as a correct and complete guideline.”

According to NAMB, the term “mortgage broker” has, for the last three years, been used to categorize both depository and non-depository institutions, when in fact, it should not. This unintentional oversight appears to have been made by the CFPB when defining the institutions receiving complaints.

“A mortgage broker, as defined by the Secure and Fair Enforcement for Mortgage Licensing Act (SAFE Act) is a non-depository institution that, for compensation, arranges a residential mortgage,” said Richard M. Bettencourt Jr., CRMS, chairman of the NAMB Government Affairs Committee. “The mortgage broker does not close, fund, or underwrite the file in question. The depository lender and mortgage banker, however, do, in fact, underwrite, approve, fund and close those transactions in their name, thus those institutions can be categorized as anything but a mortgage broker.”

NAMB is excited about the opportunity to work with the CFPB in the years to come to ensure that consumers nationwide are provided with the highest level of consumer protection.

“The data released by the CFPB shows that mortgage brokers receive the least amount of complaints of any origination channel,” said Bettencourt. “The bulk of complaints are for mortgage servicers and about not helping with payment issues. After sorting all of the 993 complaints against origination, less than 10 were against mortgage brokers.”

The National Association of Mortgage Brokers (NAMB)-The Association of Mortgage Professionals, is a trade association of mortgage professionals with membership in all 50 states and the District of Columbia. NAMB provides education, certification and government affairs representation for the mortgage industry. For more information, visit NAMB.org.