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Letter to Office of Mortgage Settlement Oversight Urging Stronger Enforcement of the Settlement

The Brennan Center, along with over a hundred fair lending advocates, sent the following letter to the monitor of the national mortgage settlement, urging him to improve public knowledge of banks’ consumer relief activities and to more aggressively enforce the settlement’s requirements.

Published: March 27, 2013

The Brennan Center, along with over a hundred fair lending advocates, sent the following letter to Mortgage Settlement Oversight monitor, Joseph A. Smith, urging him to improve public knowledge of banks’ consumer relief activities and to more aggressively enforce the settlement’s requirements. More than a year ago, federal and state authorities promised the national mortgage settlement agreement would end mortgage servicing abuses and help prevent unnecessary foreclosures. But to date, homeowners report that little has changed on the ground. Banks are routinely violating the agreement’s servicing standards. And very few homeowners are receiving affordable modifications under the settlement, especially in communities of color and low-to-moderate income neighborhoods that have been hardest hit by the foreclosure crisis.

[Download PDF of letter]

Joseph A. Smith
Office of Mortgage Settlement Oversight
301 Fayetteville St., Suite 1801
Raleigh, NC 27601

Members of the Monitoring Committee

Via electronic mail

Dear Mr. Smith and Members of the Monitoring Committee:

We write to follow up on your interim report regarding Ally Financial’s compliance with the national mortgage settlement, and to again stress the need for greater transparency to ensure the effectiveness of this settlement agreement for communities of color and other hardest-hit communities.

Homeowners and advocates around the nation have grown frustrated by the banks’ failure to provide information about consumer relief under the settlement, and by the slow pace of change on the ground for hardest-hit communities.  You heard these frustrations voiced at the recent forum hosted by the National Council of La Raza, National Urban League, and the National Coalition for Asian Pacific American Community Development.  Just last week, the Alliance of Californians for Community Empowerment, Center for Popular Democracy and the Home Defenders League called upon Wells Fargo to “be honest with Californians by reporting data on its principal reduction, short sales, and foreclosures by race, income, and zip code.” 

These statements reflect a broad consensus: we need greater transparency and accountability to ensure that banks comply with their fair lending obligations, and remedy the damage of foreclosures in communities of color and other low-to-moderate income communities.

Federal and state authorities promised that this settlement would end mortgage servicing abuses and help prevent unnecessary foreclosures.  In exchange for waivers of liability on substantial legal claims, the settling banks promised to invest billions of dollars toward alleviating the nation’s foreclosure crisis.  As part of the settlement, the banks specifically agreed not to “discriminate against any protected class of borrowers.”  [Consent Judgment Ex. D, at 1.] 

This fair lending protection is central to resolving the nation’s foreclosure crisis.  Discriminatory and predatory lending practices inflated the subprime lending bubble and caused the nation’s financial collapse and foreclosure crisis.  Today, banks are reportedly failing to maintain REO properties in communities of color adequately, and there is evidence that vacant homes lost to foreclosure are driving down property values and driving up crime in hardest-hit neighborhoods. 

The national mortgage settlement must help break this cycle of discriminatory lending.  Unfortunately, your reports fail to provide any insight into whether the settlement is benefitting communities of color.  Without transparency, we cannot maximize the benefit of this settlement for struggling homeowners, or learn how to improve upon this settlement for future agreements.  This is a missed opportunity that must be addressed.

First: the Monitor should use its access to loan-level data to improve public knowledge of the banks’ consumer relief activities. 

As your Ally Financial report illustrates, the Monitor must use the banks’ mortgage servicing data (including “access to databases reflecting total populations and loan level information on loans in these populations”) to confirm the banks’ relief activities.  [Ally Report at 7–8.]  For example, your auditors are carefully reviewing whether banks have set property values appropriately.  [Ally Report at 24.]  This review cannot be conducted without information on where these properties are located – exactly the kind of loan-level geographic data that the public has been seeking for months to no avail.

The Monitor should share this data at a census tract or zip code level, so that the public may finally understand which neighborhoods are being provided with foreclosure relief under the settlement.  Without this data, it is impossible to measure the impact of the national mortgage settlement in any meaningful way, or to determine the settlement’s impact on our communities and our economy.  And without knowing where relief is going under this settlement, it is impossible to make recommendations for improving the effectiveness of relief under future agreements.  

Publishing this data at the neighborhood level would not violate any homeowner’s privacy, but would provide the public with critical information about the state of our nation’s foreclosure crisis.

Second: the Monitor should aggressively enforce the settlement’s servicing reforms and fair lending requirements.

Your interim report on Ally Financial too blithely dispenses with the settlement’s prohibition against discriminatory lending.  These fair lending requirements are central to addressing the roots of the foreclosure crisis and ensuring the efficacy of this agreement.  They are core responsibilities under the settlement, not merely “indirect requirements” as you describe them in your report.  [Ally Report at 28–29.]

Ally’s relief activity was largely structured by the particular set of outreach requirements imposed on that bank.  But their counsel’s statement that Ally “did not consider any borrower’s geographic location or status as a protected class member” remains insufficient proof of fair lending compliance.  The Monitor must also ask and measure whether banks are taking adequate action to reach out to borrowers. 

For example, 78% of housing counselors surveyed by National Housing Resource Center, and over 60% of housing counselors surveyed by the California Reinvestment Coalition, report that their Limited English Proficient homeowners are “never” or only “sometimes” able to speak to their servicer in their native language, or through a translator provided by the servicer.  The Monitor must ensure that banks serve all customers fairly, including low and moderate income borrowers and homeowners who do not speak English as a first language. 

In addition, the Monitor must aggressively enforce the settlement’s servicing reforms to ensure that all families have a fair opportunity to save their homes.  These servicing reforms are needed to spur recovery in hardest-hit communities. Unfortunately, surveys of housing counselors and attorneys suggest widespread violation of the settlement’s servicing requirements. 

For example, the settlement requires banks to provide a Single Point of Contact to guide consumers through the loan modification process.  This reform is critical to cutting back on delays and improving outcomes for borrowers and lenders.  But it does not appear to be working: 81% of housing counselors surveyed by the National Housing Resource Center, and 70% of housing counselors surveyed by the California Reinvestment Coalition, reported that their contact at the bank was only “sometimes,” “rarely,” or “never” accessible, consistent or knowledgeable about relevant program rules.

These surveys also found that the banks are failing to meet their obligations to end dual tracking, respond to borrower applications within required timelines, or accommodate borrowers with disabilities or special needs.  Banks are continuing to lose documents and require duplicative submissions, causing unnecessary delays that hurt borrowers, investors and communities.

Past lending practices and servicing violations have disproportionately harmed communities of color.  The settlement servicing standards should be enforced with regard to all borrowers, and monitoring must also ensure that settlement relief does not perpetuate past discrimination by continuing to disfavor members of protected classes, or by neglecting these hardest-hit communities.


The Monitor’s most recent reports fail to provide sufficient information about the geography or demographics of borrowers receiving relief under the settlement.  Such data is needed to ensure that these mortgage servicers comply with the settlement’s prohibition of discriminatory conduct, as well as the banks’ fair lending obligations under the Fair Housing Act and the Equal Credit Opportunity Act.  It is also needed to ensure that this agreement has the greatest possible impact on the nation’s ongoing foreclosure crisis – and that relief is fairly provided to communities of color and other hardest-hit communities who were targeted for subprime lending and are now reeling from particularly high foreclosure rates.

For these reasons, we again urge you to:

  • Use the Monitor’s access to loan-level servicer data to show which neighborhoods are receiving homeowner relief under the settlement;
  • Aggressively, immediately, and regularly monitor fair lending concerns, and make that process transparent to the public;
  • Fully audit fair lending compliance before relieving any of the servicers from their obligations under the settlement; and
  • Enforce the settlement’s servicing standards to ensure that all consumers have a fair shot at saving their homes. 

It is past time to begin examining these issues in your assessments of the national mortgage settlement, and to use the data at your disposal to help make this and future agreements more effective for promoting fair and responsible lending.


Able WorksAction NCAction United (PA)
Advocates for Basic Legal Equality, Inc. (ABLE)Advocates for Neighbors, Inc.Affordable Housing Services
AFL-CIOAlliance for a Just SocietyAmerican Civil Liberties Union
Americans for Financial ReformBedford-Stuyvesant Community Legal ServicesBet Tzedek Legal Services
Brennan Center for Justice at NYU School of LawCalifornia Reinvestment CoalitionCalifornia Rural Legal Assistance, Inc.
Campaign for a Fair SettlementCausa Justa :: Just CauseCenter for NYC Neighborhoods
Civic Center Barrio Housing Corp.Columbia Legal ServicesCommunity Housing Council of Fresno
Community Housing Development CorporationCommunity Legal Services (Philadelphia, PA)Connecticut Fair Housing Center
Consumer ActionConsumer Credit Counseling Service of Orange CountyConsumer Credit Counseling Service of the North Coast
Consumers UnionCorporate Action NetworkCourage Campaign
Cypress Hills Local Development Corp.Delaware Bar FoundationEmpire Justice Center
EPACT Education FundESOP: Empowering and Strengthening Ohio’s PeopleFair Housing Council of the San Fernando Valley
Fair Housing Napa ValleyFair Housing of MarinGreater Boston Legal Services, Inc.
Greenlining InstituteGulfcoast Legal ServicesHome Defenders League
HomeFree-USAHousing and Economic Rights Advocates (HERA)ISAIAH
JASA/Legal Services for the Elderly in QueensKorean Churches for Community DevelopmentLeadership Center for the Common Good
Legal Aid Foundation of Los AngelesLegal Aid of East TennesseeLegal Aid of Nebraska
Legal Aid Society of Metropolitan Family ServicesLegal Services NYCLegal Services of Central New York, Inc.
Maryland Consumer Rights CoalitionMaryland Legal Aid BureauMemphis Area Legal Services
MFY Legal ServicesMinnesotans for a Fair EconomyMission Economic Development Agency
Mississippi Center for Legal ServicesMissourians Organizing for Reform and EmpowermentMountain State Justice, Inc.
NAACP Legal Defense and Educational Fund, Inc. (LDF)National Association of Consumer AdvocatesNational Coalition for Asian Pacific American Community Development
National Consumer Law Center (on behalf of its low-income clients)National Council of La RazaNational Fair Housing Alliance
National Legal Aid & Defender Association (NLADA)National People’s ActionNEDAP
Neighborhood Housing Services of the East BayNeighborhood Legal Services, Inc.New Bottom Line
New Hampshire Legal AidNew Hampshire Legal AssistanceNew Jersey Communities United
NJ Communities UnitedPennsylvania Legal Aid Network, Inc.Philadelphia Unemployment Project
PLAN Action FundPlanning for Sustainable CommunitiesProfessor F. Willis Caruso, Director of the Pro Bono Program of The John Marshall Law School
Progressive Leadership Alliance of NevadaPublic CounselPublic Law Center (Santa Ana, CA)
Queens Legal ServicesRight to the City AllianceRural Community Assistance Corporation
San Diego City-County Reinvestment Task ForceStaten Island Legal ServicesTenants Together
Texas Legal Services CenterThai Community Development CenterThe Asian Pacific Policy & Planning Council (A3PCON)
The Fair Housing Consultants of LakewoodThe Fair Housing CouncilThe Fair Housing Council of San Diego
The Greater Sacramento Urban LeagueThe Housing & Economic Development Corporation (HEDC)The Leadership Conference on Civil and Human Rights
The Legal Aid Society for the District of ColumbiaThe Mississippi Center for JusticeThe North Florida Center For Equal Justice, Inc.
The Northwest Justice ProjectThe Progressive Leadership Alliance of NevadaThe
Public Interest Law Project /
California Affordable Housing Law Project

The Unity Council

Vermont Slauson Economic Development Corporation (VSEDC)Western New York Law Center