8th National Forum on

Residential Mortgage Litigation and Regulatory Enforcement

Thursday, March 29 to Friday, March 30, 2012
The Hamilton Crowne Plaza, Washington, DC

DAY ONE – THURSDAY, MARCH 29, 2012

7:20 Registration and Continental Breakfast

8:00 Co-Chairs’ Welcoming Remarks

Andrew K. Stutzman
Chair, Mortgage and Lending Litigation Practice Group
Stradley Ronon Stevens & Young, LLP

Frank Hirsch
Partner
Alston & Bird LLP

8:05 In-House Counsel Speak Out: What They Are Doing to Prevent and Manage Mortgage Litigation Involving Lending, Servicing & Foreclosure

Panel 1 | 8:05 – 9:05

Gene R. Clark
General Counsel
Arch Bay Capital, LLC

C. Vance Beck
Associate General Counsel
Wells Fargo

Stephanie Karfias
First Vice President & Assistant General Counsel
SunTrust Banks, Inc.

Gary A. Deutsch
Senior Counsel
PNC Bank, N.A.

David K. Stein
Senior Vice President & General Counsel
Residential Finance Corporation

Janna Lewis
EVP and General Counsel
Fay Servicing

Panel 1 Moderator:
Gregory S. Korman

Partner
Katten Muchin Rosenman LLP

Panel 2 | 9:05 – 10:05

Anthony Del Piano
Vice President, Associate General Counsel & Corporate Secretary
HSBC North America

Alan J. Levith
Associate General Counsel
LOGS Network

David Chernek
Senior Vice President, Associate General Counsel
Prospect Mortgage

Eric Spett
SVP and Associate General Counsel
American Home Mortgage Servicing, Inc.

Chante Bowser
Associate General Counsel
Freddie Mac

Leah S. Getlan
Director and Assistant General Counsel
Capital One

Michael Schulte
Assistant General Counsel
Springleaf Financial Services

Panel 2 Moderator:
Thomas M. Hefferon

Partner
Goodwin Procter LLP

  • Ensuring proper foreclosure procedures both internally and externally
  • Managing the flood of residential mortgage litigation arising from alleged foreclosure documentation errors and “robo-signing” practices
  • Avoiding claims of predatory lending or RESPA or TILA violations
    • Implementing training and compliance controls
    • Resolving disputes before borrowers or investors file suit
  • Determining when to settle a claim and when to continue to defend against it
  • Working with outside counsel
    • Achieving efficient and cost effective coordination of responsibilities
    • In-house pet peeves and concerns
  • Dos and Don’ts when working with in-house counsel

10:05 Morning Coffee Break

10:15 Complying with and Responding to New and Emerging Federal and State Enforcement Actions

Joseph Samarias
Senior Counsel
U.S. Department of the Treasury

Reid Muoio
Deputy Chief, Structured and New Products Unit
Securities and Exchange Commission

John A. Davidovich
Counsel to the Inspector General
Federal Deposit Insurance Corporation

Chris Barry-Smith
Chief, Public Protection and Advocacy Bureau
Office of the Mass. Attorney General Martha Coakley

Thomas P. James
Consumer Counsel
Consumer Fraud Bureau Office of the Illinois Attorney General

Chuck Cross
Vice President of Mortgage Regulatory Policy
Conference of State Bank Supervisors

John Prendergast
Vice President of Non-Depository Supervision
Conference of State Bank Supervisors

Moderator:
Andrew Sandler

Chairman and Executive Partner
BuckleySandler LLP

Legislative initiatives on a state and federal level

  • DOJ initiatives
    • Preparing for an increase in DOJ and FTC enforcement
      • Investigations and enforcement for predatory lending
      • Focus on the TCPA and TILA and increase in consumer protection laws
      • DOJ’s focus on discrimination claims
    • Adapting and defending under the DOJ’s increased focus on investigation
  • Complying with federal and state investigations and inquiries into foreclosure practices
    • What to expect and how to prepare
    • What are states and AGs doing to act parallel to the federal government on mortgage servicing and foreclosure look-back
  • State/Federal discrepancies
    • Independent state consumer protection laws and lack of preemption
    • Debt collection

Emerging Federal Cases

  • Case wrap up and important litigation over the past year
  • Servicer foreclosure settlement: An in depth look at the current status of the Office of Comptroller of the Currency (OCC) Consent Order

How external factors are shaping the residential mortgage market

  • Political influences on the regulatory movement
    • Most recent issues and developments
    • Changes in the economy, elections, corporate downsizing
  • Looking to the future
    • Possible effects on the industry when interest rates are no longer suppressed
    • What will the market be able to bear
    • How will uncertainty affect pricing in the residential mortgage market

Multi-State Mortgage Examination Process

  • Overview of increase in joint state examinations
    • Complying with data requests for the multi-state examination process
  • Understanding and responding to increased requests for information
  • Preparing for the possibility of resulting state enforcement actions

11:45 The Evolving Regulatory Landscape: Repercussions of Dodd-Frank and Adapting to the New Authority from the CFPB

Kenneth W. Edwards
Policy Counsel
Center for Responsible Lending

Glenn S. Arden
Partner
Jones Day

Anand S. Raman
Partner
Skadden, Arps, Slate, Meagher & Flom LLP

Andrew K. Stutzman
Chair, Mortgage and Lending Litigation Practice Group
Stradley Ronon Stevens & Young, LLP

Moderator
Anthony Rollo

Member
McGlinchey Stafford PLLC

  • Continued impact of Dodd-Frank on residential mortgage litigation
    • What to expect moving forward
    • Preparing and responding to enforcement efforts
  • Assessing the CFPB and its impact on the industry
    • Overlap and concurrent jurisdiction and power with the FHA
    • Impact of the CFPB on state enforcement initiatives
    • Overview of what to expect in the coming months from the CFPB

1:00 Networking Luncheon for Speakers and Delegates

2:15 Loan Servicing: Complying with the Multitude of Regulations and Minimizing Risk through Proper Procedures and Loss Mitigation Strategies in Litigation

Leah S. Getlan
Director and Assistant General Counsel
Capital One

E. Hutchinson Robbins, Jr.
Principal
Miles & Stockbridge, P.C

Sanjay P. Ibrahim
Partner
Parker Ibrahim & Berg LLC.

Richard J. Andreano, Jr.
Partner
Patton Boggs LLP

Robert T. Mowrey
Partner
Lock Lord LLP

  • Regulatory compliance in a new era of CFPB
    • Specific servicing rulemaking process commenced by FTC and transferred to CFPB
    • General Dodd-Frank prohibition against unfair, deceptive or abusive acts or practices, and substantial assistance prohibition
      • Unfair, deceptive or abusive acts or practices authority of the CFPB
  • Avoiding and defending against claims of TILA and RESPA violations
    • QWR procedures
    • Payment processing, escrow, and ARM adjustments
    • Fee practices
  • Servicer liability for lack of disclosure
    • Viability of good faith defense
    • Evidence required to show adequate disclosure
    • Conducting due diligence of servicing compliance
  • Loss mitigation and state mandated mediation to reduce litigation
    • Loss mitigation during the foreclosure process
  • Remediation plans
  • Loan modification: Issues and defenses
    • Breach of contract theories relating to loan modifications
    • Defending against causes of action arising under HAMP
    • Defending against claims that borrowers were given modifications against their will
  • Managing and defending against claims involving “robo-signing” practices and documentation errors
  • Claims relating to MERS
    • Assessing the current and future viability of MERS
    • Long term impact on servicers and title companies

3:30 Afternoon Coffee Break

3:45 Defeating Discriminatory/Predatory Lending Claims, Including TILA, SCRA and HAMP: Best Defenses and Settlement Techniques

Sharon Kelly
Managing Director
ERS Group

David M. Bizar
Partner
Seyfarth Shaw LLP

Eric Jon Taylor
Partner
Parker, Hudson, Rainer& Dobbs LLP

Michael J. Agoglia
Partner
Morrison & Foerester LLP

  • Defending against the most recent claims alleging fair lending violations, including:
    • TILA
    • SCRA
  • What constitutes proper disclosure notices and enforceable modification contract under HAMP
  • The effect of recent regulatory and litigation developments on the defense of predatory lending claims
    • Lessons learned from recent SCRA cases and enforcement actions
  • Determining when to settle a claim and when to defend against it
  • Avoiding predatory lending claims: proactive steps to prevent future claims
    • Conducting internal compliance assessment and training
    • Resolving disputes before borrowers file suit

5:00 Capital Markets Litigation: The Latest Claims & Emerging Regulatory Initiatives Involving Trustees, Investors, Insurers and Repurchasers

Richik Sarkar
Partner
Ulmer & Berne LLP

Talcott J. Franklin
Attorney
Talcott Franklin P.C.

  • Implementing policies and procedures to ensure compliance with new and emerging regulations
    • Regulatory response to RMBS cases
    • Regulatory oversight and involvement in consent orders
  • Defending against claims arising from mortgage backed securities and derivative products
    • Inadequate disclosure
    • Misrepresentation
    • Breach of representations and warranties/faulty origination and underwriting
    • Loan servicer misconduct
  • Trustees’ suits to “audit” loan files to determine if RMBS contracts have been breached
  • Analysis and strategies to address buyback and repurchase litigation
    • Investor put-back claims
    • Trustee put-back claims
  • Recent investor lawsuits and claims
    • Assessing investor claims regarding loan modifications
    • Establishing effective defenses to investor claims

6:00 Conference Adjourns

Day Two – Friday, March 30, 2012

7:30 Continental Breakfast

8:00 View From the Bench: Judicial Perspectives on Foreclosure Documentation Errors, Loan Modification Litigation, Affidavit and Pleading Requirements, Third Party Beneficiary Claims, Discretionary Awards of Fees and Sanctions, and Navigating through Bankruptcy Court

The Honorable Jane J. Boyle
District Court Judge
United States District Court, Northern District of Texas

The Honorable Helen Gillmor
District Court Judge
United States District Court, District of Hawaii

The Honorable Robert J. Johnston
Magistrate Judge United States District Court, District of Nevada

The Honorable Paul M. Warner
Magistrate Judge United States District Court, District of Utah

The Honorable Alan S. Trust
Bankruptcy Judge
United States Bankruptcy Court, Eastern District of New York

The Honorable Michael McManus
Bankruptcy Judge
United States Bankruptcy Court, Eastern District of California

The Honorable Michael G. Williamson
Bankruptcy Judge
United States Bankruptcy Court, Middle District of Florida

Moderator:
Hunter Eley

Partner
Doll Amir & Eley LLP

  • Judicial Perspectives on foreclosure documentation errors and “robo-signing” practices
  • Impact of court implemented rules
    • Attorney affidavits
    • File reviews
    • Enhanced pleading requirements
  • Insights into discretionary awards of attorneys’ fees and sanctions
  • A look at the mediation process and its merits for residential foreclosure cases
  • Judicial tips on pleading and proving damages
    • Proper documentation
    • How much detail is needed in a complaint
  • Navigating bankruptcy court
    • Common valuation issues of assets in bankruptcy
    • What lenders and servicers need to know

9:35 Morning Coffee Break

9:45 Judicial Foreclosure Intervention: How to Effectively Navigate Foreclosure Mediation Programs

The Honorable C. Darnell Jones
District Court Judge
United States District Court, Eastern District of Pennsylvania

The Honorable Kevin S.C. Chang
Magistrate Judge
United State District Court, District of Hawaii

Moderator:
Richard E. Gottlieb

Member and Director, Financial Industry Group
Dykema Gossett PLLC

  • Preventative means to address overburdened courts
    • Mediation programs
    • Programs requiring good faith efforts by the lender to look at all options to avoid foreclosure
  • Foreclosure prevention programs across the country
    • Nevada, California, Hawaii, and Philadelphia programs
  • Mediation programs
    • Enforceability of mandatory arbitration clauses
    • Recent developments regarding mandatory mediation programs
  • Federal and state court opinions on foreclosure prevention
    • 2010 CA Superior Court Mabry v. Superior Court decision

FORECLOSURE LITIGATION

10:30 Establishing Standing and Ensuring Compliance with New Document and Affidavit Procedures

Nina F. Simon
Director of Litigation
Center for Responsible Lending

Therese G. Franzen
Partner
Franzen & Salzano, P.C.

Bryan A. Fratkin
Partner
McGuireWoods LLP

  • Evolution of a borrower attacks on standing
    • New claims and standing attacks brought by borrowers
    • How to combat and defeat standing attacks
  • Specific Documents defense attorneys need to prove a foreclosure case
    • When is the original loan documentation necessary
    • Issues involving possession, note, and assignment
  • New challenges to proving the validity of an endorsement
  • Best practices and lessons learned from foreclosure documentation errors
  • Attorney’s fees and related foreclosure filings; ensuring compliance with local fee caps
  • Responding to challenges to foreclosures in non-judicial foreclosure states

11:15 Responding to Borrower Counterclaims and Stall Tactics and Defending Against MERS Claims

Joseph J. Patry
Counsel
MERSCORP, Inc.

Alan M. Warfield
Partner
Jones Walker, LLP

Roland P. Reynolds
Partner
Palmer, Lombardi & Donohue LLP

  • Defenses to foreclosure actions
  • Managing counterclaims arising from common law and statutes including:
    • TILA
    • RESPA
    • FDCPA
    • UDAP
  • MERS
    • MERS interest as mortgagee or beneficiary
    • Transfer of notes via endorsement and delivery rather than assignment
  • Assignment of mortgages
  • Refuting Claims of documentation error
    • When is the original loan documentation necessary
  • How to combat discovery claims and attacks on endorsement validity and prevent a fishing expedition
  • Preventing bankruptcy claims from being used as a borrower tool

12:00 Strategies to Overcome Claims and Objections in Contested Foreclosures

Michelle A. Canter
Managing Partner,
Atlanta Lotstein Legal PLLC

Karyn A. Caldwell
First Vice President & Associate General Counsel
Flagstar Bank, FSB

Michele Stocker
Shareholder and Chair, Financial Services Litigation
Greenberg Traurig LLP

  • Handling borrower counterclaims in contested foreclosures
  • Overcoming commonly raised defenses including TILA, SCRA, and fraud and rescission claims
  • Foreclosures while borrowers are dealing with HAMP modification
  • Origination Claims

12:45 Networking Luncheon for Speakers and Delegates

1:45 Mortgages in Bankruptcy: Prevailing Against the Latest Bankruptcy Litigation Claims

The Honorable Elizabeth W. Magner
Bankruptcy Judge United States
Bankruptcy Court, Eastern District of Louisiana

Katrina Christakis
Partner
Grady Pilgrim Christakis Bell LLP

John R. Chiles
Partner
Burr & Forman LLP

Debra Lee Hovatter
Member
Spilman Thomas & Battle, PLLC

Scott Borison
Partner
Legg Law Firm LLC

  • Foreclosure litigation standards in bankruptcy court
  • Navigating bankruptcy court
    • Defending against borrower claims in bankruptcy court
    • Common valuation issues of assets in bankruptcy
    • What lenders and servicers need to know
  • Recent bankruptcy class certification decisions
  • Latest cases regarding ownership of a debt/note
  • Stay relief and avoiding stay violations
  • Proof of Claim issues and litigation update

3:00 A Focus on Class Actions: Avoiding Class Treatment and Prevailing Against the Latest Plaintiffs’ Class Claims

Christopher T. Shaheen
Vice President and Chief
Litigation Counsel, U.S. Bank

Jay Fastow
Partner
Dickstein Shapiro LLP

Frank A. Hirsch
Partner
Alston & Bird LLP

Robert E. Boone
Partner
Bryan Cave LLP

Effectively defending against class claims arising in relation to:

    • Consumer Protection laws
      • Class claims under the TCPA
    • Loan Modification and HAMP
      • Providing evidence of proper modification
    • Foreclosure documentation errors
  • Continued impact of Concepcion
    • The status of class action waiver clauses in arbitration agreements after Concepcion
    • Drafting an arbitration provision to be effective in avoiding class treatment
  • Removal under the Class Action Fairness Act
  • Mass actions developments
  • Recent issues in class notice and settlement structures
  • Class action trends involving residential mortgage litigation, and what to expect going forward

4:15 Conference Ends