Mortgage & Home Lending
As the mortgage industry and regulatory landscape continues to change, we work to minimize our clients’ risk in line with their commercial objectives and consumer focus.
Our team combines regulatory depth, fierce and agile skill in litigation all the way to the appellate level, and a strategic and sensitive approach to enforcement actions. Our bench includes highly-specialized practitioners and former regulators – including those who served at the Consumer Financial Protection Bureau, offices of state attorneys general, U.S. Attorneys' offices, HUD, the DOJ, the Federal Reserve, and the U.S. Treasury Department – whose experience informs our approach.
DWT's seasoned attorneys use their firsthand knowledge to aid bank and non-bank mortgage lenders, loan servicers, secondary market investors and FinTechs in all aspects of mortgage lending and servicing-related enforcement, supervision, regulatory counseling, and complex litigation. This includes fair lending and fair and responsible servicing issues, lender-placed insurance, loan modifications and other loss mitigation programs and issues, foreclosure and bankruptcy.
Our intimate knowledge of laws and regulations governing the residential mortgage industry includes:
- The Truth in Lending Act (TILA)
- The Real Estate Settlement Procedures Act (RESPA)
- The Home Ownership and Equity Protection Act (HOEPA)
- The Fair Credit Reporting Act (FCRA)
- The Equal Credit Opportunity Act (ECOA)
- The Fair Housing Act (FHA)
- The Fair Debt Collection Practices Act (FDCPA)
- The Home Mortgage Disclosure Act (HMDA)
- The Secure and Fair Enforcement for Mortgage Licensing (SAFE) Act
- The Servicemembers Civil Relief Act (SCRA)
- Privacy laws such as the Gramm-Leach-Bliley Act
- Issues arising under unfair, deceptive and abusive acts and practices laws
As well as all state law equivalents.
Government Investigations, Enforcement, Compliance Advice and Remediation
RESPA violations - marketing services
Defended bank executive in FDIC investigation of alleged RESPA violations related to marketing services agreements.
Consumer protection legislation and national mortgage relief program advice*
Advised small foreign government regarding implementation of mortgage relief programs in cooperation with locally operating banks, and assisted in drafting foreclosure-related legislation and other consumer financial protection legislation.
CFPB investigation and enforcement*
Represented loan servicer in CFPB investigation and enforcement action and related state regulator inquiries relating to loss mitigation practices.
CFPB HMDA enforcement action
Representation of a federal savings bank against which the CFPB had launched an enforcement action relating to HMDA; achieved favorable resolution.
CFPB mortgage origination examination
Represented a national bank in a CFPB mortgage origination examination PARR Letter alleging violations of ECOA, HMDA, RESPA, TILA and UDAAP; the matter was resolved confidentially.
Advised large national bank in connection with large-scale, government-driven SCRA lookback following the foreclosure crisis.
Self-disclosure and remediation*
Advised mortgage loan servicer in connection with self-disclosure to CFP, resolution, and remediation of improper fee assessment and collection issue. Matter was resolved with no civil monetary penalties.
HELOC self-disclosure and remediation
Representation of a regional bank in connection with identification, scoping, self-disclosure, and consumer remediation of several issues in the bank’s HELOC loan servicing area including interest overages, payment misallocation, lien release, and PMI cancellation.
Representation of a mortgage lender to determine readiness for the new HMDA rules.
Provide exam support concerning a mortgage originator, mortgage servicer and small-dollar lender
SAFE Act compliance
Advised large financial institution on SAFE Act compliance of proposed use of contract underwriting services.
Foreclosure practices advice*
Routinely advised mortgage servicer clients regarding foreclosure practices, particularly with regard to compliance with New York foreclosure and mandatory foreclosure mediation-related laws, regulations, and court-imposed requirements.
Advice on marketing agreement
Counseled large bank in developing marketing agreement with FinTech mortgage lender.
RESPA and fair lending advice
Represented a financial services company in connection with RESPA and fair lending advice related to its mortgage marketing arrangements with two online mortgage companies.
"Zombie property" compliance advice for properties in REO*
Provided advice regarding compliance with New York's "Zombie Property" statutes for properties maintained in distressed mortgage asset REO (real estate owned) portfolio of private equity firm.
"Zombie property" compliance advice and negotiations*
Represented mortgage loan servicer in negotiations with municipality regarding compliance with and enforcement of New York's "Zombie Property" laws and provided related property preservation compliance advice.
Mortgage loss mitigation*
Routinely advised mortgage industry clients on loss mitigation practices and procedures and compliance with federal and state mortgage servicing regulations, particularly those governing foreclosure, bankruptcy, and loss mitigation.
Single-closing construction loan remediation advice*
Advised regional bank regarding remediation and required associated disclosures for small portfolio of acquired single-closing construction mortgage loans.
Water, sewer, and emergency repair-related tax liens for properties in foreclosure*
Advised and assisted mortgage loan servicer regarding negotiations over $10 million in municipal tax liens arising from unpaid water, sewer and emergency repair-related tax liens associated with properties in foreclosure.
National Flood Insurance Program and Flood Disaster Protection Act
Represent mortgage lender in connection with claims arising as a result of third party service provider’s erroneous flood hazard area determination.
Short sale-related California Unfair competition law claims
Representing a large financial institution in a putative California state class action alleging that our client required mortgage loan borrowers to enter into unsecured loan agreements as a condition of allowing a short-sale. (Ongoing)
Wrongful lien release
Successfully tried claims brought on behalf of mortgage lender against title company and mortgage borrower arising from mistaken release of deed of trust for loan that had not been paid.
California consumer protection claims
Defending credit union in putative consumer class action alleging violations of California consumer protection statutes and related claims. (Ongoing)
TILA rescission claim – issue of first impression
Obtained favorable decision on appeal to the Ninth Circuit Court of Appeals holding, as a matter of first impression, that TILA rescission is not available where borrower previously owned property at issue and had an equitable interest, even though borrower was not record title owner at time loan was made and thus lender chose to provide TILA disclosures.
Lien release recording statute violations*
Represented mortgage loan investor in putative consumer class action alleging violations of state lien release recording statutes, implicating millions in statutory damages.
"Zombie property" litigation*
Represented mortgage loan servicer in municipal actions seeking to enforce New York’s “Zombie Property” statutes, which impose securing and maintenance obligations for vacant and abandoned properties in foreclosure on loan servicers.
FDCPA violations – debt validation letter*
Secured dismissal, affirmed on appeal to the 2nd Circuit, of putative consumer class action alleging FDCPA violations stemming from language and figures used in statutorily required debt validation letter.
National Bank Act preemption
Secured dismissal, based on National Bank preemption, of national bank in action alleging violations of the Washington Consumer Protection Act, based on purported violations of TILA and RESPA.
TILA rescission claim
Obtained dismissal and sanctions in defending against untimely TILA rescission claim, affirmed by the 9th Circuit Court of Appeals.
FDCPA, TILA and RESPA foreclosure-related violations
Obtained 9th Circuit affirmance of trial court dismissal of mortgage and foreclosure-related claims under Oregon and federal law, including FDCPA, TILA and RESPA.
FDCPA and TILA violations*
Secured affirmance on appeal to the 3rd Circuit of dismissal of FDCPA claims associated with foreclosure and untimely TILA rescission claim.
UDAAP and ECOA violations – loan modification program*
Secured dismissal of putative consumer class action against mortgage loan servicer alleging unfair and deceptive practices, violations of federal loan servicing regulations governing loss mitigation, and ECOA in connection with loan servicer’s administration of proprietary loan modification program.
Unfair and deceptive loan disclosure policies
Represented lender in Washington state court putative class action alleging lender’s loan disclosure policies were unfair or deceptive under Washington Consumer Protection Act and defeated motion for class certification.
Diversity jurisdiction and national bank citizenship – issue of first impression*
In matter of first impression in the Second Circuit Court of Appeals, achieved victory in federal foreclosure action that also clarified issues of diversity jurisdiction and corporate citizenship for national banks.
Foreclosure-related RICO claims*
Secured dismissal, affirmed on appeal, of putative consumer class action asserting RICO violations in connection with allegedly wrongful foreclosures.
Wrongful foreclosure under RMBS trust agreements*
Successfully defended mortgage industry clients through appeal in several mass actions asserting foreclosure-related violations of mortgage-backed security trust agreements.
Washington Consumer Protection Act trial
Successfully defended Mortgage Electronic Registration System (MERS) in bench trial alleging Washington Consumer Protection Act violations.
Establishing precedent for dismissal of wrongful foreclosure claims
In case of first impression, obtained holding distinguishing decisions from Washington state’s intermediate appellate courts regarding dismissal of state law claims for wrongful foreclosure.
Wrongful foreclosure based on RMBS trust advance payment theory
Represented secondary mortgage market investor in consumer class action alleging improper foreclosures based on theory that loan-servicer advances to trusts in mortgage backed securities cured borrower defaults.
Foreclosure statute of limitations*
Advised mortgage loan servicers on portfolio-wide statute of limitations risk issues stemming from drawn-out foreclosure crisis, and defended statute of limitations-based claims to discharge aged defaulted mortgage loans.
Loss-mitigation related claims*
In scores of cases where mortgage loan borrowers allege bad faith negotiation by loan servicers in court-supervised residential mortgage foreclosure or bankruptcy mediation and loss mitigation proceedings, assisted mortgage loan servicer clients in de-escalation, resolution and if necessary, pursuit of reversal of sanctions orders.
HUD regulations governing reverse mortgage default events*
Secured reversal, on appeal, of trial court's dismissal of reverse mortgage foreclosure action based on incorrect interpretation of applicable Department of Housing and Urban Development (HUD) regulations regarding "triggering" default events.
HUD pre-foreclosure regulations*
Secured dismissal of complaint against a reverse mortgage lender alleging violations of HUD pre-foreclosure counseling regulations, establishing that there is no private right of action under the relevant HUD regulations.
Extensive foreclosure-related and other single plaintiff mortgage litigation and portfolio advice*
Represented residential mortgage lending and servicing industry clients, including national bank servicers and non-bank loan servicers, in defense of hundreds of claims arising out of residential mortgage loans, including complex foreclosure litigation (through trial and appeal), in state and federal courts, particularly in New York, and provided related portfolio-wide risk assessment and strategy advice.
Extensive wrongful foreclosure-related and other single plaintiff mortgage litigation
Represent residential mortgage lending and servicing industry clients, including national bank servicers and non-bank loan servicers, in defense of scores of claims arising out of residential mortgage loans and allegedly wrongful foreclosures (through trial and appeal), in state and federal courts, throughout the Pacific Northwest, northern California and Alaska.
Wrongful foreclosure and other mortgage-related appeals*
Represented mortgage industry clients in hundreds of contested foreclosure and other mortgage-related appeals in New York state appellate courts, as well as in the federal Circuit Courts of Appeal.
Wrongful foreclosure and other mortgage-related appeals
Represent mortgage industry clients in scores of wrongful foreclosure and other mortgage-related appeals in state and federal appeals courts throughout the Pacific Northwest, northern California and Alaska.
Appeal to state highest court: preservation of standing defense under New York law*
Represented mortgage foreclosure plaintiff in defense of appeal to New York’s highest court on issue of how a standing-defense, which is waiveable under New York law, must be alleged to be preserved in an answer.
Appeals to state highest court: foreclosure standing under Washington law
Represented mortgage lenders against wrongful foreclosure and Washington Consumer Protection Act claims involving the Mortgage Electronic Registration System (MERS).
Alaska wrongful foreclosure issues of first impression
Successfully defended lender against claims of wrongful foreclosure under various theories of first impression in Alaska.
* Denotes prior experience