Pub. 10 2020 Issue 3

13 PUB. 10 2020 ISSUE 3 Chris W. Bell is an Associate General Counsel at Compli- ance Alliance. He has worked in the legal department of a federal savings bank and for the Texas Department of Banking. He is one of the C/A hotline advisors. is frozen in place during forbearance, even if the bank suspends payments during the forbearance. As it stands today, customers can request forbearance under the CARES Act until the earlier of the end of 2020, or the end-date of the national emergency concerning the novel coronavirus disease outbreak declared by the President on March 13, 2020, under the National Emer- gencies Act. State and Local-Level Protection Many state and local authorities enacted policies to protect mortgage borrowers and renters. The details of these state and local foreclosure bans vary. Banks should refer to the official websites for their state and local governments to assess the scope and requirements of applicable prohibitions. While effective dates vary widely, many of these protections remain in effect until respective governors lift statewide emer- gency declarations. Private Loans The CARES Act provided no relief for loans that are not federally backed. Banks should refer to the appropriate investor guidelines for mortgages sold to private investors. Banks should refer to guidance from its regulators concerning their ex- pectations regarding non-federally-backed mortgage loans held in a portfolio. Troubled Debt Restructuring (“TDR”) If neither a federal nor state moratorium applies to a residential mortgage held in a portfolio, you may still be able to exercise your authority to assist pandemic-effected borrowers who are struggling financially. Regulators have urged banks to work with customers and prudently modify loans in a safe and sound manner. Section 4310 of the CARES Act provided banks relief from TDR. In April, regulatory agencies issued revised interagency guidance to help banks sort modification requests into three groups: (1) loan modifications covered by Section 4310 of the CARES Act; (2) those outside of Section 4310 deemed not to be TDRs; and (3) those outside of Section 4310 that may be TDRs. In June, regulators released new interagency safety and sound- ness examiner guidelines. These guidelines As with everything related to the COVID-19 pandemic, expect mortgage foreclosure protections to change as the county continues to deal with the long- term effects of our national crisis. instruct examiners to not criticize institu- tions for doing so as part of a risk mitigation strategy intended to improve existing loans, even if a restructured loan ultimately results in adverse credit classifications. To be covered by Section 4310 of the CARES Act, a loan modification must: (1) relate to COVID-19, (2) be executed be- tween March 1 and December 31 (assuming the current national emergency does not end earlier than the end of the year), and (3) the underlying obligation must be not more than 30 days past due. If a loan modifica - tion meets these three criteria, financial institutions do not have to report it as a TDR; however, the financial institution should maintain records of the volume of such loan modifications. If a loan modification fails to meet any of the three criteria for Section 4310 cover- age, it does not automatically result in a TDR. Regulators will deem a modifica - tion as not to constitute a TDR if it relates to COVID-19, extends no more than six months, and the underlying obligation is not more than 30 days past due. The only subjective criterion is the relationship of the modification to COVID-19. As a best practice, banks should have the borrower certify that the requested change is due to COVID-19. To not raise HIPAA concerns, the certification should be general and not address specific health details. While such a certification is not required to be in the loan file, it would show future examiners that the lender followed the guidance in good faith. If a bank receives a modification request that is outside the scope of Section 4310 and does not meet the described crite- ria, the bank should assess whether the modification would be a concession to the borrower that the bank would not other- wise consider and act accordingly. As with everything related to the COVID-19 pandemic, expect mortgage foreclosure protections to change as the county continues to deal with the long-term effects of our national crisis. The federal agencies may extend the protections relating to the loans they back, and Congress will undoubtedly reassess the CARES Act’s protections as the end of its covered period draws near. Despite how things change, you can count on the Arizona Bankers Association to bring you the most up-to-date information available as we walk hand-in-hand through this crisis. w