oversight

FHFA's Oversight of Fannie Mae's 2013 Settlement with Bank of America

Published by the Federal Housing Finance Agency, Office of Inspector General on 2013-08-22.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

           Federal Housing Finance Agency
               Office of Inspector General




      FHFA’s Oversight of
Fannie Mae’s 2013 Settlement with
        Bank of America




Evaluation Report  EVL–2013–009  August 22, 2013
                   FHFA’s Oversight of Fannie Mae’s 2013 Settlement with
                                      Bank of America
                  Why OIG Did This Report
                  Between 2000 and 2008, the Federal National Mortgage Association (Fannie Mae or
                  the Enterprise) purchased millions of mortgages from Bank of America (and from
                  Countrywide, which Bank of America acquired in 2008). Bank of America continued
Synopsis          to service the mortgages (i.e., collect and disburse principal and interest payments and
                  manage defaults and foreclosures).
    ———           Fannie Mae claimed that Bank of America had breached its representations and warranties
                  at the time it sold Fannie Mae many of the mortgages, and that Bank of America had to
August 22, 2013
                  either repurchase the mortgages or compensate Fannie Mae for its losses. In addition,
                  Fannie Mae assessed certain compensatory fees against Bank of America for failures to
                  properly manage defaults on these mortgages.
                  In September 2011, at the direction of the Federal Housing Finance Agency (FHFA or the
                  Agency), Fannie Mae and Bank of America met to negotiate a comprehensive settlement
                  of the Enterprise’s claims. Negotiations continued for more than a year, concluding with
                  FHFA’s January 2013 approval of an $11.6 billion settlement between the parties.
                  The $11.6 billion settlement resolved Fannie Mae’s long-standing claims that Bank of
                  America sold it defective mortgages and mishandled various mortgages it was servicing
                  for the Enterprise. In addition, FHFA allowed the transfer of the servicing rights to
                  approximately 1.1 million mortgages from Bank of America to other servicers.
                  In September 2011, the Office of Inspector General (OIG) recommended that FHFA
                  “issue internal guidance regarding its handling of future repurchase settlements, should
                  they arise.” In June 2012, the Agency issued such guidance. The January 2013 Bank of
                  America settlement provided the first opportunity for OIG to review FHFA’s
                  implementation of its new settlement policy. Moreover, because FHFA’s policy applied
                  to one, but not all, portions of the settlement, the 2013 settlement enabled OIG to contrast
                  FHFA’s oversight under its settlement policy with its oversight of matters that fell outside
                  of that policy. Accordingly, OIG evaluated FHFA’s oversight of Fannie Mae’s 2013
                  settlement with Bank of America.

                  Conclusions
                  FHFA, to its credit, adhered to its established policy in reviewing the representation and
                  warranty settlement between Fannie Mae and Bank of America. Its policy did not apply,
                  however, to the resolution of compensatory fees and the transfer of mortgage servicing.
                  Consequently, FHFA’s review of these aspects of the settlement did not benefit from such
                  an established process.

                  Recommendation
                  FHFA should establish a formal review process for compensatory fee settlements and
                  significant mortgage servicing rights transfers.
TABLE OF CONTENTS ................................................................

TABLE OF CONTENTS .................................................................................................................3

ABBREVIATIONS .........................................................................................................................5

PREFACE ........................................................................................................................................6

CONTEXT .......................................................................................................................................8

THE DISPUTE AND SETTLEMENT BETWEEN FANNIE MAE AND BANK OF
AMERICA .......................................................................................................................................8
      Overview of Settlement ............................................................................................................8
      The Dispute and Negotiations ..................................................................................................9

REPRESENTATION AND WARRANTY SETTLEMENT ........................................................10
      Overview of Agreement .........................................................................................................10
      FHFA’s Settlement Policy ......................................................................................................11
              Settlement Value and Commercial Reasonableness .......................................................12
              Independent Third-Party Review ....................................................................................12
              Goals of Conservatorship................................................................................................13
              Settlement Documentation ..............................................................................................13
              Coordination Within FHFA ............................................................................................13
              Consistency with Other Settlements ...............................................................................14
              Checklists ........................................................................................................................14

COMPENSATORY FEES RESOLUTION ..................................................................................15
      Overview of Agreement .........................................................................................................15
      Lack of an Established Policy Regarding Compensatory Fees ..............................................16

TRANSFER OF MORTGAGE SERVICING RIGHTS................................................................17
      Issues Regarding Servicing Transfers ....................................................................................17
      FHFA’s Review of Bank of America’s Sale of Mortgage Servicing to Specialty
      Servicers .................................................................................................................................18
              OHRP’s Review..............................................................................................................18


                                            OIG  EVL–2013–009  August 22, 2013                                                                 3
             DER’s Review ................................................................................................................19

CONCLUSIONS............................................................................................................................20

RECOMMENDATION .................................................................................................................21

OBJECTIVE, SCOPE, AND METHODOLOGY .........................................................................22

APPENDIX A ................................................................................................................................23
      FHFA’s Comments on OIG’s Recommendation ....................................................................23

ADDITIONAL INFORMATION AND COPIES .........................................................................24




                                          OIG  EVL–2013–009  August 22, 2013                                                              4
ABBREVIATIONS .......................................................................

DER                   Division of Enterprise Regulation

Enterprises           Fannie Mae and Freddie Mac

Fannie Mae
or the Enterprise     Federal National Mortgage Association

FHFA
or the Agency         Federal Housing Finance Agency

Freddie Mac           Federal Home Loan Mortgage Corporation

MSR                   Mortgage Servicing Rights

OCO                   Office of Conservatorship Operations

OHRP                  Office of Housing and Regulatory Policy

OIG                   Federal Housing Finance Agency Office of Inspector General

PLMBS                 Private-Label Mortgage-Backed Securities

Settlement Policy     FHFA Settlement Policy and FHFA Settlement Procedural Guide




                         OIG  EVL–2013–009  August 22, 2013                       5
PREFACE ...................................................................................

OIG was established by the Housing and Economic Recovery Act of 2008, which amended
the Inspector General Act of 1978. OIG is authorized to conduct audits, investigations, and
other studies of FHFA’s programs and operations. As a result of our work, we may
recommend policies that promote economy and efficiency in the administration of FHFA’s
programs and operations or that prevent and detect fraud and abuse in them.

This report was initiated in the wake of an $11.6 billion comprehensive settlement of disputes
between Fannie Mae and Bank of America that was concluded in January 2013. Moreover,
the report was designed to follow up on a recommendation issued by OIG in 2011 in
Evaluation of the Federal Housing Finance Agency’s Oversight of Freddie Mac’s Repurchase
Settlement with Bank of America.1

In that evaluation, OIG recommended that FHFA “issue internal guidance regarding its
handling of future repurchase settlements, should they arise.” Subsequently, on June 27,
2012, the Agency issued the FHFA Settlement Policy and the FHFA Settlement Procedural
Guide (together, the “Settlement Policy”) and distributed them to the chief executive officers
of Fannie Mae and the Federal Home Loan Mortgage Corporation (Freddie Mae)
(collectively, the Enterprises). The Bank of America settlement that is the subject of this
report provided the first opportunity for OIG to test the effectiveness of the Settlement Policy.

This report was prepared by Bruce McWilliams, Senior Investigative Evaluator; Simon Wu,
Chief Economist; Beth Preiss, Program Analyst; and David M. Frost, Assistant Inspector
General for Evaluations. OIG appreciates the cooperation of all those who contributed to this
evaluation.




1
  EVL-2011-006 (Sept. 27, 2011). The report, in part, detailed limitations of Freddie Mac’s process for
selecting loan candidates for repurchase review (see page 18). In particular, Freddie Mac focused mainly on
loans that defaulted in the first two years after origination or had a spotty payment history during the first two
years. For its Bank of America settlement, Fannie Mae, by contrast, employed a more holistic approach that
used a model to determine which loans to review considering payment history during the first five years with a
focus on the first three; Fannie Mae’s process also considered a wide range of variables, such as whether the
loan was risky to begin with and the likely value to be recovered if the loan was to be repurchased.



                                    OIG  EVL–2013–009  August 22, 2013                                             6
This evaluation report has been distributed to Congress, the Office of Management and
Budget, and others, and will be posted on OIG’s website, www.fhfaoig.gov.




George Grob
Deputy Inspector General for Evaluations




                            OIG  EVL–2013–009  August 22, 2013                        7
CONTEXT ..................................................................................

The Dispute and Settlement Between Fannie Mae and Bank
of America

Overview of Settlement

On January 6, 2013, FHFA approved agreements between Fannie Mae and Bank of America
to resolve certain claims related to mortgages sold to Fannie Mae between 2000 and 2008.
Many of these mortgages were originated by Countrywide Home Loans, which Bank of
America had purchased during that time. The agreements were approved by the Fannie Mae
board of directors, and—taken as a whole—reflected the resolution of large and long-standing
disputes between Bank of America and Fannie Mae.2
                                                                      Specialty Servicers (also known
There were three agreements between the parties:                      as High Touch Servicers) are
(1) the settlement of representation and warranty                     companies capable of providing
claims for defective loans; (2) the payment of                        more contact with troubled
compensatory fees for Bank of America’s failure to                    borrowers than existing bank
                                                                      servicers. The aim of using a
meet foreclosure timelines; and (3) a transaction in
                                                                      specialty servicer is to reduce the
which Bank of America, with Fannie Mae’s approval,                    likelihood of foreclosure and
sold to specialty servicers mortgage servicing rights                 ultimately to reduce costs to the
(MSR) for approximately 1.1 million loans.                            Enterprises.

The representation and warranty settlement involved
$10.26 billion in cash proceeds to Fannie Mae. The compensatory fee payment of
$1.30 billion (subject to subsequent adjustment) by Bank of America to Fannie Mae was for
failure to meet timeline requirements related to handling delinquencies. Together, these
settlements resulted in a payment of $11.56 billion to Fannie Mae. The transfer of MSR from
Bank of America to specialty servicers did not involve any direct payments to or from Fannie
Mae. Figure 1 summarizes these three agreements.




2
 The parties to the representation and warranty and compensatory fee agreements included Bank of America,
N.A., Countrywide Home Loans, and other parties affiliated with Bank of America Corporation. For
convenience, these parties are referred to, collectively, throughout this report as “Bank of America.”



                                 OIG  EVL–2013–009  August 22, 2013                                       8
             FIGURE 1. THREE AGREEMENTS BETWEEN FANNIE MAE AND BANK OF AMERICA
                                                                         Settlement Cash
                                   Agreement                                 Proceeds
                   Representation and Warranty Settlement
                          Cash “Make-Whole” Payment                   $ 3.55 billion
                          Repurchases                                 $ 6.71 billion
                   Total Representation and Warranty                  $10.26 billion
                   Settlement
                   Compensatory Fees for Failure to Meet
                                                                      $ 1.30 billion
                   Delinquency Timelines
                                                                      No funds to or from
                   Transfer of Mortgage Servicing Rights
                                                                      Fannie Mae
                   Total                                              $11.56 billion



The agreements resolved the majority of Fannie Mae’s outstanding repurchase claims against
Bank of America for the years 2000 through 2008. The Agency, which was instrumental in
facilitating this settlement, believes that the settlement is a reasonable way to resolve the
disputes between Bank of America and Fannie Mae without the risks and costs associated
with litigation.

The Dispute and Negotiations

The disputes between Fannie Mae and Bank of America revolved around a large portfolio
of mortgages that Bank of America sold to Fannie Mae, and for which it conducted the
servicing. Fannie Mae claimed that many of these mortgages were defective at the time they
were sold and demanded that Bank of America repurchase them. Fannie Mae cited its
representation and warranty arrangement that required Bank of America to repurchase such
mortgages. Bank of America claimed that it was exempt from the repurchase requirement
based upon another agreement that the bank asserted superseded Fannie Mae’s claims. In
addition, Fannie Mae claimed that Bank of America had not lived up to its contractual
obligations to pay compensatory fees associated with delays in delinquent borrower resolution
timelines.

At the suggestion of FHFA, in September 2011, Fannie Mae, Bank of America, and FHFA
met to discuss the possibility of a comprehensive settlement relating to Bank of America’s
legacy book of business.3 As the parties continued to meet, however, there were substantial
differences of opinion about the value of the loans in question and the possibility of litigation

3
  Freddie Mac attended the first meeting. Subsequently, however, FHFA directed the Enterprises to pursue
their own settlements.



                                  OIG  EVL–2013–009  August 22, 2013                                     9
was raised. By February 2012, Fannie Mae ceased purchasing Bank of America mortgages,
except those tied to the Home Affordable Refinance Program.4 The two sides spent many
hours discussing their valuation models.

Eventually, the parties decided to divide the representation and warranty settlement into two
parts: (1) a cash payment for the loans upon which Fannie Mae and Bank of America agreed
on the “make-whole” amount that would compensate Fannie Mae for the losses it had
incurred and will incur in the future, and (2) a repurchase of approximately 30,000 loans for
which Bank of America would pay Fannie Mae the unpaid principal balance (and any
delinquent interest) and would take the risk of future losses. This change helped break the
stalemate.

The two sides finally reached agreement in December 2012, more than a year after the first
meeting. FHFA approved the settlement, and Fannie Mae and Bank of America completed
the transactions in January 2013.


Representation and Warranty Settlement

Overview of Agreement

On January 6, 2013, following protracted negotiations and final approval by FHFA, Fannie
Mae and Bank of America agreed to a resolution of outstanding repurchase requests arising
from contractual breaches of representations and warranties made when the loans were sold.
The settlement resolved a long-standing dispute between Bank of America and Fannie Mae
and resulted in the payment of $10.26 billion to the Enterprise.

The agreement covered a population of 2.88 million active and inactive loans originated from
2000 to 2008 with an unpaid principal balance of $414 billion as of July 31, 2012. The
original loan count for these vintage years was 8.2 million with an unpaid principal balance of
$1.38 trillion; the difference results from pay downs, liquidations, and refinances.

As mentioned above, the parties used different methodologies to project likely losses on the
mortgages. To reach resolution, Bank of America and Fannie Mae agreed to a framework that
included both a make-whole cash component for loans Fannie Mae kept and a repurchase
component. Bank of America repurchased approximately 30,000 mortgages for their unpaid



4
  The Home Affordable Refinance Program aims to refinance loans owned or guaranteed by Fannie Mae or
Freddie Mac and was designed to assist borrowers who are current on their loans but have not been able to
refinance because they have little or no equity in their homes.



                                  OIG  EVL–2013–009  August 22, 2013                                      10
principal balance and accrued interest of $6.71 billion.5 Fannie Mae gave up the stream of
payments from these mortgages, and Bank of America assumed any future credit losses.6

The agreement resolved 97% of Fannie                                  FIGURE 2. FANNIE MAE’S OUTSTANDING
Mae’s outstanding repurchase requests made                                   REPURCHASE REQUESTS
to Bank of America as of December 31,
2012. Further, as detailed in Figure 2,                                $18
                                                                       $16
because Fannie Mae’s repurchase requests                               $14        27%
to Bank of America represented 73% of




                                                           Billions
                                                                       $12
its total repurchase requests outstanding                              $10
as of December 31, 2012, the settlement                                 $8
                                                                        $6        73%
drastically reduced the total number of                                 $4
repurchase requests in Fannie Mae’s                                     $2                          90%
                                                                                            10%
portfolio.                                                              $0
                                                                               12/31/2012         3/31/2013
On January 4, 2013, citing compliance with
                                                            Bank of America   Other
the FHFA Settlement Policy of June 27,
2012, FHFA staff recommended that the FHFA Acting Director approve the settlement. The
Acting Director approved the settlement on January 6, 2013.

FHFA’s Settlement Policy

In June 2012, FHFA established the Settlement Policy for settlements of Enterprise claims
against counterparties related to mortgage repurchases, mortgage insurance, or private-label
mortgage-backed securities (PLMBS). The Settlement Policy calls for FHFA to direct and
approve settlements that satisfy the goals of conservatorship and exceed $50 million, and
notes that FHFA could choose to review smaller transactions. The Settlement Policy was
designed to ensure that relevant parties within FHFA had the opportunity to provide their
views to the conservator on a proposed settlement. It defines the respective roles of FHFA
officials, the Enterprise’s management, and the Enterprise’s board in negotiating and
approving settlements.



5
  When FHFA submitted the transaction for the Acting Director’s approval on January 4, 2013, the numbers
were to repurchase 30,024 mortgages for $6.71 billion including unpaid principal balance and accrued interest
on the loans. These numbers were subject to reconciliation. Fannie Mae’s 2012 Annual Report on Form 10-K,
issued April 2, 2013, said that Bank of America repurchased approximately 29,500 loans for $6.6 billion,
subject to a reconciliation process.
6
  Because Fannie Mae gave up the future payments on the loans, the value of the repurchase transaction to
Fannie Mae was less than the $6.71 billion received in cash. From Fannie Mae’s perspective, the value was
equivalent to what it would have sought as a cash payment had it settled the representation and warranty claims
for these loans with a make-whole payment instead of repurchases.



                                   OIG  EVL–2013–009  August 22, 2013                                           11
The representation and warranty settlement between Fannie Mae and Bank of America
resolved claims related to mortgage repurchases and was well above the $50 million
threshold. Therefore, the Settlement Policy applied. FHFA’s Settlement Policy did not,
however, apply to the resolution of compensatory fees or to the mortgage servicing transfer,
regardless of how large they were, because those agreements did not involve mortgage
repurchases, mortgage insurance, or PLMBS.

OIG analyzed the Settlement Policy and divided its provisions into more than 50 elements.
OIG then reviewed whether FHFA and Fannie Mae applied each of the 50 elements to the
resolution of the representation and warranty dispute. OIG determined that the elements of
the Settlement Policy were followed. Some of the main elements are discussed below.

   Settlement Value and Commercial Reasonableness

The Settlement Policy sets several standards for FHFA to approve a settlement. A key
standard is that the “value of the proposed settlement exceeds the estimated value of
achieving a resolution absent a settlement (such as through litigation).” In addition, the
settlement must be “commercially reasonable.”

Analysis by Fannie Mae, supported by the calculations of an independent consultant retained
by the Enterprise, led Fannie Mae to conclude that it likely achieved a more favorable
resolution than it would have without the settlement. FHFA also concluded that the value of
the representation and warranty settlement exceeded the value absent a settlement and that the
settlement was commercially reasonable.

The repurchase component allows both parties to realize a settlement value consistent with
their own loss expectations. Fannie Mae projected losses would be greater than those
projected by Bank of America. Fannie Mae received the unpaid principal balance, and the
risk of loss was transferred back to Bank of America.

   Independent Third-Party Review

As set forth in the Settlement Policy, for settlements valued in excess of $500 million (not
involving PLMBS), a knowledgeable third-party must review and attest that the proposed
settlement is a commercially reasonable resolution. Because this settlement exceeded
$500 million, Fannie Mae obtained the services of a recognized independent consulting firm,
which attested that the representation and warranty settlement was a commercially reasonable
settlement of Fannie Mae’s claims.




                              OIG  EVL–2013–009  August 22, 2013                               12
   Goals of Conservatorship

In addition, for FHFA to approve a settlement, it must satisfy “one or more goals of
conservatorship.” The Settlement Policy lists reasons that “justify the use of settlements in
furtherance of the goals of conservatorship and the statutory purposes of the Enterprises.”
These reasons include that the settlement will: reduce costs of pursuing claims through
lengthier and more costly processes such as litigation; speed the timeline for restoring stability
to company operations by bringing certainty and final resolution to outstanding claims; and
bring certainty to and restore confidence in marketplace norms and practices. FHFA stated in
announcing the settlement that it was “a major step forward in resolving issues from the past
and providing greater certainty in the marketplace, which remain critical FHFA goals as
conservator.”

   Settlement Documentation

Another standard for FHFA to approve a settlement is that the settlement is “properly
documented.” OIG’s review of the transaction records showed that the documents required
by the Settlement Policy were included in the records. In one case, Fannie Mae did not
provide the necessary information in FHFA’s specified format, but this did not affect the
information available to FHFA to approve the transaction.

   Coordination Within FHFA

The Settlement Policy requires FHFA’s Office of Conservatorship Operations (OCO) to
coordinate with FHFA’s legal, policy, and supervision staff to analyze and assess the claims
at issue. Additionally, supervision staff must ensure that OCO is aware of issues arising from
its examinations that may be relevant to the proposed settlement.

FHFA legal officials were involved from the beginning in the settlement process and signed
the final recommendation to approve the transaction. The Office of Housing and Regulatory
Policy (OHRP) was not involved in the representation and warranty settlement. However, its
recommendation supporting the MSR transfer included the condition that outstanding
representation and warranty claims, as well as compensatory fees, be resolved (see below,
Transfer of Mortgage Servicing Rights). In addition, OHRP had the opportunity to comment
while the announcement of the representation and warranty settlement was under review.

According to FHFA, OCO and supervision staff were present at several meetings during
which the settlement was discussed throughout the negotiation process. OIG has no record of
specific advice rendered by them at these meetings. However, on December 26, 2012, as the
representation and warranty settlement was concluding, supervision officials received an
email asking whether they were aware of any impediments to the proposed settlement or had
concerns with the models or methodology used. They responded that day, indicating that—


                              OIG  EVL–2013–009  August 22, 2013                                   13
based on a quick review—the dollar amount was in the “ballpark” and the methodology did
not raise concerns. Additionally, FHFA’s supervision staff had conducted a prior review of
Fannie Mae’s model for valuing representation and warranty claims, the results of which were
noted by FHFA in its deliberations regarding the settlement.

OIG observes that the Settlement Policy does not specify when the policy and supervision
staff must be provided with information by which to analyze claims. In fact, with regard to
supervision staff, it states: “The role of FHFA supervision staff most often will be limited to
providing technical expertise upon request.” Seeking advice from these groups earlier in the
process might be beneficial for future settlements.

    Consistency with Other Settlements

Under the Settlement Policy, OCO must—to the extent practicable and appropriate—ensure
reasonable consistency with other Enterprise settlements with specific counterparties across
similar types of claims.

FHFA stated that it is difficult to draw precise conclusions regarding comparability between
representation and warranty settlement transactions because each transaction is negotiated
separately and is based upon the existing contract, historical performance, business practices,
litigation risks, and other factors. Notwithstanding this, Fannie Mae presented FHFA with
information regarding several other representation and warranty settlements from recent
years.

    Checklists

Though not required under the Settlement Policy, the FHFA officials recommending the
transaction provided the Acting Director with a checklist that covers the procedures OCO is
required to carry out under the Settlement Policy. Each box was checked, indicating OCO’s
self-assessment that it had followed those procedures for which it was responsible.7

The Settlement Policy requires the Enterprise to use a submission checklist when providing
transaction documentation to FHFA. Such a Fannie Mae checklist—covering the Enterprise’s
responsibilities—also was included in the supporting materials for the Acting Director’s
decision. In this case, instead of checkmarks, specific documentation that had been submitted
was listed. However, the items in the Enterprise’s checklist were broad categories that did not




7
 However, the checkmarks were not linked to documentation showing that the requirements were indeed
satisfied. The OCO checklist also was not signed or dated.



                                 OIG  EVL–2013–009  August 22, 2013                                 14
mirror the items the Enterprise was responsible for in the Settlement Policy. Further, some
items required by the procedures were not included in the checklist.8

Checklists that mirror the policies and procedures and link to supporting documentation might
enhance FHFA’s implementation of its Settlement Policy.


Compensatory Fees Resolution

Overview of Agreement

Under its contract with Bank of America, Fannie Mae regularly submitted invoices to the
bank for “compensatory fees” owed by Bank of America for deficiencies in foreclosure
management. In particular, Bank of America was required to meet certain deadlines in the
foreclosure process—which it did not—and Fannie Mae was entitled to assess compensatory
fees for Bank of America’s failure to meet those deadlines. Bank of America did not honor
Fannie Mae’s demands. Almost all of the compensatory fees assessed to Bank of America
under its contract with Fannie Mae from 2010 through September 2012 remained outstanding
until the date of the settlement. As of September 30, 2012, assessed but unpaid compensatory
fees amounted to $664 million.

According to Fannie Mae’s usual practice with its servicers, Bank of America would have
been able to challenge or “rebut” any of the compensatory fees assessed by Fannie Mae
through a review process agreed upon by both parties. However, as indicated above, Bank of
America had not made most of the payments since 2010.

Nonetheless, Fannie Mae was able to bring Bank of America to the negotiating table due to
the bank’s interest in completing a significant sale of MSR to third-party servicers. The
proposed sale was part of a special project designed to transfer substantial amounts of MSR
from Bank of America to specialty servicers. Because Bank of America needed Fannie Mae’s
approval for the sale, it agreed to negotiate a resolution of all compensatory fee claims in
exchange for Fannie Mae’s consent.

During the negotiations, Fannie Mae and Bank of America agreed to address not only the
$664 million of outstanding claims assessed by Fannie Mae for servicing deficiencies as of
September 2012, but also claims for loans to be foreclosed from October 2012 through
December 2012. Further, the parties agreed to resolve projected claims for the large number
of mortgages associated with the MSR that Bank of America intended to transfer in

8
 Fannie Mae’s checklist did not include, for example, the requirement in the procedures for the Enterprise to
provide FHFA with a standard briefing book applicable to settlements generally or the requirement in the
policy for the Enterprise to have internal procedures for settlements.



                                   OIG  EVL–2013–009  August 22, 2013                                         15
connection with the special project, but that were already in delinquency as of December
2012. This resolution of the compensatory fees was intended to represent the amount that
would be due if both entities reviewed the entire portfolio of mortgage loans on a loan-by-
loan basis.

As a part of the process, the parties negotiated a presumed rebuttal success rate derived from a
statistical sample of liquidated loans as of September 30, 2012. The rebuttal success rate
represents the portion of mortgages that Bank of America would successfully demonstrate
should not have been charged compensatory fees due to the circumstances of the foreclosure.
Based on the total fees assessed and the presumed rebuttal success rate, Bank of America
agreed to make an initial payment of $1.3 billion to Fannie Mae.

Following Bank of America’s initial $1.3 billion payment, the parties initiated a “true-up”
process based on a revised rebuttal success rate calculated from a statistical sample of both
liquidated loans and transferred loans. As detailed in the agreement between the parties, the
revised rebuttal success rate is to be the basis for a final adjustment to Bank of America’s
$1.3 billion payment.

Depending on the outcome of the true-up process, Bank of America might remit additional
sums; a second possibility is that Fannie Mae might be required to reimburse some portion of
the monies paid by Bank of America. Finally, it is possible that the process would leave Bank
of America’s initial payment unchanged. The entire process of sampling, reconciliation, and
final payments is to be completed by September 15, 2013.

Lack of an Established Policy Regarding Compensatory Fees

Although FHFA’s Settlement Policy states that mortgage repurchase settlements in excess of
$50 million are subject to review by FHFA, and those in excess of $500 million are subject to
third party review, FHFA viewed the resolution of compensatory fees as not directly related to
mortgage repurchases generally or the representation and warranty settlement specifically.
Thus, in its review of the compensatory fee settlement, FHFA did not follow the same
procedures it applied to the review of the representation and warranty settlement.

In addition, although Freddie Mac also had both a substantial compensatory fee claim against
Bank of America and a pool of mortgages for which Bank of America wished to transfer the
MSR, Freddie Mac did not wish to pursue a resolution along the same lines as the one being
finalized with Fannie Mae. Yet, there is no indication that, in the course of its review of
Fannie Mae’s proposed transaction, FHFA weighed the possible merits of Freddie Mac’s
divergent approach to the issue.

OIG ventures no conclusions regarding whether Freddie Mac’s approach was superior to
Fannie Mae’s, or vice-versa, or, indeed, whether both were reasonable business decisions.


                             OIG  EVL–2013–009  August 22, 2013                                  16
However, the process that FHFA used to review the compensatory fee resolution was not on
par with the process it had established for representation and warranty settlements, which, if
applicable, would have required consideration of the comparable situation at Freddie Mac.


Transfer of Mortgage Servicing Rights
As indicated above, Fannie Mae approved Bank of America’s proposed sale of MSR to
certain specialty servicers contemporaneously with the resolution of the compensatory fee
dispute. Fannie Mae’s approval of Bank of America’s MSR sale was not formally a part of
the settlement agreements. However, FHFA recognized that the negotiation of the
compensatory fee exposure was directly linked to the MSR transfer and was structured to
provide greater leverage in the negotiation and resultant recovery of funds owed to Fannie
Mae. Specifically, Fannie Mae would not consent to Bank of America’s proposed transfer of
the MSR until Bank of America agreed to a resolution of Fannie Mae’s claims for
compensatory fees (see the previous section).

Issues Regarding Servicing Transfers

Both OIG and FHFA have, in the past, expressed concerns regarding Enterprise servicing
transfer activities. In a report issued in September 2012, OIG recommended that FHFA
engage in closer oversight of Fannie Mae’s efforts to transfer MSR to high touch servicers.9
In response, FHFA stated that it intended to ensure that Fannie Mae was adequately managing
its internal processes to ensure that risk controls were in place relating to MSR transfers. In
addition, FHFA stated that it would continue to follow up on MSR transfer issues throughout
the 2013 examination cycle.

The Agency’s examiners have continued to monitor issues arising from the Enterprises’
handling of MSR. As detailed in OIG’s September 2012 report referenced above, FHFA had
raised concerns about Fannie Mae’s transfer of MSR as early as June 2011. A year later, in
July 2012, the Agency’s Division of Enterprise Regulation (DER) noted that MSR transfer
issues remained a concern at Fannie Mae. The rapid growth of specialty servicers in the
market increased Fannie Mae’s operational risk, particularly in light of the fact that Bank of
America had plans to transfer significant servicing portfolios to these entities. DER


9
 OIG, Evaluation of FHFA’s Oversight of Fannie Mae’s Transfer of Mortgage Servicing Rights from Bank of
America to High Touch Servicers (September 18, 2012). In the case addressed in the September 2012 report,
Fannie Mae repurchased MSR from Bank of America and then transferred the MSR to specialty servicers.
While the instant case involves a transaction between Bank of America and the specialty servicers without any
payments to or from Fannie Mae, the MSR transfer was still quite substantial, involving approximately
1.1 million loans, with a combined unpaid principal balance of approximately $164 billion.



                                  OIG  EVL–2013–009  August 22, 2013                                          17
emphasized the need for Fannie Mae to consider the special servicers’ ability to adapt to a
changing business landscape.

DER also noted that it had previously expressed concerns about inadequate policies and
procedures governing Fannie Mae’s transfer of MSR. DER acknowledged that the Enterprise
had developed a new transfer of servicing procedure in late 2012,10 but stated that, due to the
high volume of servicing transfers, the rapid growth of specialty servicers, and Fannie Mae’s
prior lack of internal procedures, MSR transfers would be a high priority for FHFA risk
oversight in the coming year.

Based on the OIG and DER studies, FHFA was aware of the complexity of, and risk
associated with, large MSR transfers to specialty servicers. Thus, FHFA was aware of the
significance of its own review of the specific transfers proposed.

FHFA’s Review of Bank of America’s Sale of Mortgage Servicing to Specialty Servicers

Although FHFA, in its capacity as conservator, has revised and refined its delegations of
authority to the Enterprises, it continues to consider servicing transfers (regardless of size) to
be matters within the Enterprises’ regular business activities and therefore included within the
discretion allowed to Enterprise management.

Nonetheless, as detailed above, FHFA was actively involved in most aspects of the settlement
between Fannie Mae and Bank of America. Further, FHFA reviewed the MSR transfer and,
ultimately, decided to allow it to proceed.

OCO, which was responsible for facilitating FHFA’s approval of Fannie Mae’s representation
and warranty and compensatory fee settlements with Bank of America, was not the office
within FHFA primarily responsible for review of the MSR transaction. OCO requested that
OHRP review the transaction. Additionally, DER was consulted on the transaction.

     OHRP’s Review

OHRP was asked on or about December 14, 2012, to conduct a review of the proposed MSR
transaction. OHRP did not ordinarily review transactions. Nonetheless, on January 3, 2013,
OHRP issued its final memorandum to the Acting Director; in this memorandum, OHRP
discussed various aspects of the proposed sale including risks and mitigating factors. Among
other risks, OHRP noted its concern with servicer capacity and performance and made some
recommendations (ultimately accepted) to mitigate these concerns. On January 4, 2013, the
Acting Director approved OHRP’s recommendation.

10
 According to information provided by DER staff in May 2013, Fannie Mae has implemented its new policy;
FHFA continues to monitor implementation of the policy and to work with Fannie Mae on this issue.



                                OIG  EVL–2013–009  August 22, 2013                                      18
     DER’s Review

During the course of OHRP’s review of the contemplated MSR transactions, the Acting
Director sent an email to DER in which he asked for DER’s review (but not approval) of the
settlements, including the MSR transaction.

An executive from DER responded on the same day that his advice was requested, expressing
some concern regarding the operational risk associated with the specialty servicers.
Specifically, he questioned the servicers’ ability to take on the volume of loans involved and
to manage the relationship with Bank of America and Fannie Mae going forward. The DER
executive strongly recommended that FHFA be contractually authorized to conduct onsite
examinations at the specialty servicers and noted that, should the transaction go badly, the
Agency would bear most of the reputational risk for having approved it. Finally, he suggested
that DER could review and monitor the servicing after the transaction was complete.11 It does
not appear that DER provided any further feedback regarding the transaction or that it was
asked to do so.

Nonetheless, the review of the MSR transfer did not reflect the depth of analysis that likely
would have been accorded had FHFA followed a process comparable to that used in its newly
established process for reviewing mortgage repurchase, mortgage insurance, and PLMBS
settlements.




11
   In fact, FHFA examiners have access to all the larger specialty servicers as a result of the regulatory clause
in Fannie Mae’s contracts, and they conduct onsite reviews. Moreover, after the settlement, in May 2013,
DER issued a “Supervisory Expectation Letter” to Fannie Mae, informing the Enterprise that the Agency
expected that it would maintain “robust policies and procedures to ensure strong counterparty risk management
for all existing and proposed holders of MSRs, both before and after a transfer of MSRs occurs.”



                                   OIG  EVL–2013–009  August 22, 2013                                             19
CONCLUSIONS ..........................................................................

FHFA approved a significant settlement between Fannie Mae and Bank of America. The
settlement resolved the majority of Fannie Mae’s outstanding representation and warranty
claims. In reviewing the settlement, FHFA followed the settlement review policy and
procedures it had established with regard to mortgage repurchase, mortgage insurance, and
PLMBS claims. However, that policy did not apply to resolution of compensatory fee claims
or to agreements regarding the transfer of mortgage servicing. Consequently, FHFA’s review
of these aspects of the settlement did not benefit from such an established process.

As indicated throughout this report, there are several opportunities for improvement that
FHFA might wish to consider. The most important would be the development of procedures
for settlements (along the lines of those applicable to mortgage repurchases) of compensatory
fee claims and significant MSR transactions, and possibly other matters that exceed the
monetary thresholds in the current Settlement Policy. In addition, FHFA might consider
engaging policy and supervision staff earlier in the approval process and linking checklists
to documentation showing that applicable requirements were satisfied.




                             OIG  EVL–2013–009  August 22, 2013                               20
RECOMMENDATION .................................................................

FHFA should establish a formal review process for compensatory fee settlements and
significant MSR transfers.

Agency Response to Recommendation: After the evaluation was complete, the Agency
had the opportunity to review the report and recommendation. (Its response is included as
Appendix A.) In sum, the Agency concurred with our recommendation, committing to
establish guidelines for both compensatory fee claims in excess of $50 million and significant
MSR transfers by January 31, 2014.




                             OIG  EVL–2013–009  August 22, 2013                                21
OBJECTIVE, SCOPE, AND METHODOLOGY .................................

The objective of this report was to review FHFA’s oversight of the January 2013 dispute
resolution between Fannie Mae and Bank of America. The resolution had three parts: an
agreement on the representation and warranty dispute, an agreement on the compensatory fee
dispute, and an agreement approving the transfer of MSR.

To review FHFA’s oversight of these agreements, we:

   1. Reviewed FHFA and Fannie Mae documents;

   2. Conducted a targeted review of email to/from FHFA officials involved in analyzing
      and approving the transactions;

   3. Conducted interviews of FHFA and Fannie Mae officials; and

   4. Reviewed financial data provided by Fannie Mae and the independent third party
      that FHFA retained to attest to the commercial reasonableness of the representation
      and warranty settlement.

FHFA had implemented policies and procedures that applied to the settlement of the
representation and warranty dispute. OIG divided these policies and procedures into more
than 50 elements, and then determined whether FHFA’s approval of the settlement was in
compliance with each applicable element.

FHFA did not have policies and procedures to guide its decision to approve the settlement of
the compensatory fee dispute or to allow the transfer of MSR. Instead, FHFA relied on its
own expertise to guide its judgment. Therefore, in order to assess FHFA’s oversight of the
settlement of the compensatory fee dispute and the transfer of MSR, OIG compared FHFA’s
process for approving these matters to the process it established for representation and
warranty settlements.

This report was prepared under the authority of the Inspector General Act and in accordance
with the Quality Standards for Inspection and Evaluation, which were promulgated by the
Council of the Inspectors General on Integrity and Efficiency. These standards require OIG
to plan and perform an evaluation that obtains evidence sufficient to provide a reasonable
basis to support the conclusion made herein. OIG believes that the analysis and conclusion
discussed in this report meet these standards.

The performance period for this study was from January 2013 through June 2013.




                             OIG  EVL–2013–009  August 22, 2013                              22
APPENDIX A .............................................................................

FHFA’s Comments on OIG’s Recommendation




                          OIG  EVL–2013–009  August 22, 2013                         23
ADDITIONAL INFORMATION AND COPIES .................................


For additional copies of this report:

      Call: 202–730–0880
      Fax: 202–318–0239
      Visit: www.fhfaoig.gov



To report potential fraud, waste, abuse, mismanagement, or any other kind of criminal or
noncriminal misconduct relative to FHFA’s programs or operations:

      Call: 1–800–793–7724
      Fax: 202–318–0358
      Visit: www.fhfaoig.gov/ReportFraud
      Write:
                FHFA Office of Inspector General
                Attn: Office of Investigation – Hotline
                400 Seventh Street, S.W.
                Washington, DC 20024




                              OIG  EVL–2013–009  August 22, 2013                         24