American Conference Institute's 15th National Forum on Residential Mortgage Litigation & Regulatory Enforcement

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Registration and Continental Breakfast

Co-Chairs’ Opening Remarks

In-House Roundtable: Ensuring Compliancein an Evolving Regulatory and EnforcementEnvironment, Preparing for and Managing Lending,Servicing, and Foreclosure Litigation, EnhancingRelationships with Outside Counsel…

• Perspectives on the CFPB servicing rules and their impact on the mortgage servicing industry
• Compliance challenges and how to overcome them
• Practical guidance regarding CFPB examinations
• Litigation trends arising from the new rules>
• How are lenders and servicers adapting to new and emerging regulations and case law? What changes have they made?
• What do corporate counsel fi nd to be the most challenging aspects of revamping compliance procedures and policies?
• Where are lenders and servicers turning for guidance?
• Developing best practices
• Managing and responding to enforcement actions
• Tools that are available when facing an enforcement action
• Responding to the action
• Filing a motion to quash a subpoena
• Jurisdiction hurdles when dealing with multiple state
and federal agencies
• Assessing the role of state attorneys general versus the role of the CFPB and other federal agencies
• Adapting your litigation strategies and settlement calculations to account for new trends
• Dealing with overzealous discovery requests in litigation and regulatory inquiries
• Managing and defending against claims arising from TILA, HAMP, and RESPA
• Lender-placed insurance claims
• Top 5 concerns of in-house counsel now and in the near-term
• Identifying and minimizing exposure to risk
• Foreclosure mediation
• Best practices for maximizing the effectiveness of these programs
• Lessons learned from past litigation
• Minimizing your exposure to future litigation and better managing future litigation
• Advising outside counsel on how to better support in-house counsel
• Top 5 issues that in-house counsel want their outside counsel to be thinking about
• How corporate counsel are responding to internal budgetary pressures
• Exploring the use of alternative fee agreements with outside counsel
• Internal and external cost-cutting
• What has worked and what has not
• In-house staffi ng solutions for stretched legal departments

Networking and Refreshment Break

The CFPB and the Residential Mortgage Industry:Practical Guidance on Complying with theServicing Rules, Implementing Lessons Learnedfrom Recent CFPB Enforcement Actions andExaminations, Gauging the Bureau’s Approachto UDAAP Issues…

• How the servicing rules have impacted the industry so far
• Lessons learned and pitfalls to avoid
• Best practices for ensuring compliance
• Litigation risks arising from the new rules
• Practical experiences with litigation to date
• CFPB examinations – what to expect
• What are examiners looking for?
• Practical guidance on how best to prepare
• Enforcement and litigation risks arising from an examination
• CFPB enforcement actions
• Status and assessment of recent enforcement cases
• How companies are responding
• What to expect going forward
• The amalgamation of RESPA and TILA
• Changes to the QWR provisions
• The CFPB’s mortgage loan complaint process
• Amicus program: analysis of cases filed so far
• The CFPB and UDAAP
• Why UDAAP violations should be of paramount concern to lenders and servicers
• Which acts and practices put lenders and servicers at greatest risk for UDAAP violations?
• Assessing the definition of ‘abusive’ practices
• Potential pitfalls for the mortgage industry
• What aspects of origination and servicing may be ‘abusive’?
• Lessons learned from recent enforcement actions
• Addressing potential UDAAP concerns
• Minimizing exposure to UDAAP issues
• What to expect from the CFPB in the coming months
• Potential changes to the new rules

Establishing Standing, Defending Against ClaimsRelating to MERS, Overcoming ContestedForeclosures, and Responding to BorrowerCounterclaims and Stall Tactics

• Conditions precedent to foreclosure
• Assessing borrower attacks on standing
• New and emerging claims
• How to combat and defeat standing attacks
• Update on MERS litigation
• Borrower claims
• Qui tam cases
• County recorder/AG litigation
• MERS interest as mortgagee or beneficiary
• Transfer of notes via endorsement and delivery rather than assignment
• Assignment of mortgages
• Handling borrower counterclaims in contested foreclosures
• Overcoming commonly raised defenses including TILA, SCRA, fraud, and rescission claims
• Preventing bankruptcy from becoming a tool used by borrowers to stall foreclosures
• Loss mitigation
• Litigation challenges relating to mortgage origination
• Loan modifications and foreclosure
• Defending against counterclaims arising from loan modifications and HAMP
• Foreclosure mediation programs
• Responding to challenges to foreclosures in non-judicial foreclosure states

Networking Luncheon for Speakers and Attendees

A Focus on Residential Mortgage Class Actions:New and Emerging Cases and Theories, theContinuing Impact of

• Class action trends involving residential mortgage litigation
• What recent cases tell us about what may be coming next
• Recent Supreme Court decisions and the trickle-down effect of those decisions on residential mortgage class action litigation
• Removability of AG actions under CAFA
• New CAFA removal and misjoinder issues
• Recap of relevant cases
• Knowles
• Hood v. AU Optronics
• New and emerging class action claims and how to defend against them
• Where plaintiffs are filing class actions and why
• Using this information to structure your case
• Assessing the continuing impact of Wal-Mart and its progeny on class certifications
• How are the lower courts applying Wal-Mart?
• Defeating plaintiffs’ theories as to why Wal-Mart and its progeny should not apply to a particular case
• Settlement considerations
• Making the decision to settle, and ensuring effective client communication throughout the settlement process
• Evaluating tradeoffs in scope of class and release; creating a comprehensive settlement order

Networking and Refreshment Break

The Evolving Landscape for Mortgage Servicing:Litigation and Enforcement Concerns, ServicerLiability Under the FDCPA and the FCRA,Determining and Implementing Best Practices,Defending Against New and Innovative BorrowerClaims, and More

• Fallout from the servicing rules
• Enforcement issues
• Compliance hurdles and how best to overcome them
• Types of private claims arising from the rules
• Practical experiences with such litigation
• Impact of Basel III on loan servicing
• Defending against claims relating to loan servicing
• Debt collection practices claims
• Credit reporting claims and the FCRA
• Escrow issues
• RESPA issues
• Fair lending issues
• Class action issues arising from loan servicing
• What can originators learn from recent litigation involving servicers?
• Servicer liability under the FDCPA
• Assessing when a mortgage servicer may be considered a debt collector
• Servicer liability for lack of disclosure
• Viability of good faith defense
• Sufficient evidence to show adequate disclosure
• Conducting due diligence of servicing compliance
• Loss mitigation programs

Developments in Lender-Placed Insurance Claimsand Loan Modifi cation Litigation in ConjunctionWith the Home Affordable Modifi cation Program(HAMP)

• Assessing recent claims alleging that banks engaged in deceptive practices relating to lender-placed insurance
• Potential violations of TILA, RICO, and other consumer protection laws
• Possible collusion among lenders and insurance companies
• Results of state investigations: NY, CA, IL
• NYSDFS regulation of lender-placed insurance
• How lenders can defend against and mitigate operational and reputational risks relating to their lender-placed insurance practices
• Loan mod litigation and HAMP
• Complying with the requirements for a permanent modifi cation
• 30-day trial period
• Borrower claims
• Effective defenses
• The rise in HAMP-related False Claims Act litigation
• Mortgage fraud considerations in relation to HAMP

Conference Adjourns

Continental Breakfast

Views from the Bench: Judicial Perspectiveson the Latest Plaintiff Theories, Emerging Defense Strategies, Lender-Placed Insurance Litigation…

• Emerging claims and litigation trends arising from the plaintiffs’ bar
• How defense counsel are responding
• Insights into new measures lenders and servicers must implement to mitigate future liability
• Lender-placed insurance litigation
• Loan modifi cation litigation
• Navigating through bankruptcy court — what lenders and servicers need to know
• Discretionary awards of attorneys’ fees
• Determining when sanctions are appropriate
• Insights into foreclosure mediation programs
• How effective are these programs?
• How to maximize the benefi ts of foreclosure mediation
• Novel approaches to trial and case management
• Pre-trial procedures
• Judicial perspectives on e-discovery
• What are the expectations of counsel when dealing with a case involving voluminous discovery requests?

Networking and Refreshment Break

Regulatory Enforcement and ExaminationRoundtable: The View from Federal and StateAgencies and Attorneys General on New andEmerging Initiatives, Enforcement Actions,Examination Procedures, and Investigations

• Perspectives on the new servicing rules and their impact on the mortgage servicing industry
• Compliance challenges for the industry
• Best practices for ensuring compliance
• CFPB and other federal and state agency examinations
• What to expect and how to prepare for an examination
• Problems that regulators, especially the CFPB, are finding in examinations
• Top 10 violations
• How federal and state agencies and attorneys general are working together
• Increasing focus on fair lending concerns
• Ensuring compliance with UDAAP
• Perspectives on lender-placed insurance
• Assessing the multi-state mortgage examination process
• Cooperating with investigations
• Reaching consent settlements with regulators
• Implementing lessons learned from past enforcement actions

Networking Luncheon for Speakers and Attendees

Fair Lending: Managing and Defending AgainstClaims of Discriminatory Lending and Assessingthe Status of ‘Disparate Impact’ in LendingLitigation and Enforcement

• Recent cases and enforcement actions
• How state and federal agencies are approaching fair lending issues
• Assessing the status of ‘disparate impact’ in lending litigation and enforcement
• HMDA data serving as basis for claims
• Disparate impact in the age of the Qualified Mortgage
• Assessing the likelihood that lenders who underwrite QM loans will face fair lending claims because loans meeting the QM standards may result in a disparate impact on certain demographic groups
• New and emerging allegations of discriminatory practices and how to defend against them
• Assessing the evolving definition of and uncertainty relating to fair lending
• Impact of the CFPB on fair lending litigation
• CFPB initiatives and enforcement efforts relating to discriminatory lending and ‘disparate impact’
• Defending against the latest claims alleging fair lending violations
• Early interviews and information gathering
• Data analysis
• Impact of recent regulatory and litigation developments on the defense of predatory lending claims
• Public relations concerns
• Settlement considerations and strategies

A Due Diligence Guide to the Managementof Third-Party Vendors, Service Providers,and Mortgage Brokers

• Impact of enhanced regulatory scrutiny and oversight
• CFPB initiatives
• Power to supervise “related persons” and “material service providers”
• To what extent are banks liable for lending done through a third-party relationship?
• OCC activity
• Implementing best practices to manage and mitigate the risk of outsourcing
• Third-party vendor products and fees
• Liability for the actions of mortgage brokers
• Contracting with ethical third parties
• Making the decision to work with a third-party entity
• Assessing the decrease in servicing costs vs. the increased risks of litigation and reputational damage

Conference Ends

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