Even though the company performed no actual servicing functions, the FMLA requires a license “to act or attempt to act, directly or indirectly, as a … mortgage servicer.” “Mortgage servicer” means a person “that receives or has the right to receive from or on behalf of a borrower … the funds or credits in payment for a mortgage loan ….”
Alston & Bird Observations
While the penalty imposed by the ASC was relatively light, the issuance of the consent order is a startling development. In a previous advisory, we warned that a growing list of state regulators are requiring entities that purchase and hold MSRs to be licensed or registered as residential mortgage servicers – even though these entities actually perform no servicing activities and engage in no consumer-facing functions.
In the eyes of these state regulators, there are two types of MSR holders: (1) persons that purchase and hold only MSRs – and not the underlying loans – but retain third-party licensed mortgage servicers to actually perform the servicing activity; and (2) persons that purchase residential mortgage loans, servicing released from the seller and similarly hire licensed mortgage servicers to perform the servicing activity.
In light of this Arkansas consent order, MSR holders should consider obtaining the requisite licenses or, as we describe in the previous advisory, evaluate short-term solutions such as acquiring MSRs through a Delaware statutory trust with a national bank trustee or through a participation arrangement.