Regulation X 

Real Estate Settlement Procedures Act 

The Real Estate Settlement Procedures Act of 1974 (RESPA) (12 U.S.C. 2601 et seq.) (the 

Act) became effective on June 20, 1975. The Act requires lenders, mortgage brokers, or 

servicers of home loans to provide borrowers with pertinent and timely disclosures 

regarding the nature and costs of the real estate settlement process. The Act also prohibits 

specific practices, such as kickbacks, and places limitations upon the use of escrow 

accounts. The Department of Housing and Urban Development (HUD) originally 

promulgated Regulation X, which implements RESPA. 

Congress has amended RESPA significantly since its enactment. The National Affordable 

Housing Act of 1990 amended RESPA to require detailed disclosures concerning the 

transfer, sale, or assignment of mortgage servicing. It also requires disclosures for mortgage 

escrow accounts at closing and annually thereafter, itemizing the charges to be paid by the 

borrower and what is paid out of the account by the servicer. 

In October 1992, Congress amended RESPA to cover subordinate lien loans. 

Congress, when it enacted the Economic Growth and Regulatory Paperwork Reduction Act 

of 1996,1 further amended RESPA to clarify certain definitions, including “controlled 

business arrangement,” which was changed to “affiliated business arrangement.” The 

changes also reduced the disclosures under the mortgage servicing provisions of RESPA. 

In 2008, HUD issued a RESPA Reform Rule (73 Fed. Reg. 68204, November 17, 2008) that 

included substantive and technical changes to the existing RESPA regulations and different 

implementation dates for various provisions. Substantive changes included a standard Good 

Faith Estimate (GFE) form and a revised HUD-1 Settlement Statement that were required as of 

January 1, 2010. Technical changes, including streamlined mortgage servicing disclosure 

language, elimination of outdated escrow account provisions, and a provision permitting an 

“average charge” to be listed on the GFE and HUD-1 Settlement Statement, took effect on 

January 16, 2009. In addition, HUD clarified that all disclosures required by RESPA are 

permitted to be provided electronically, in accordance with the Electronic Signatures in Global 

and National Commerce Act (E-Sign).

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The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, Pub. L. 111-203 

(July 10, 2010) (Dodd-Frank Act) granted rule-making authority under RESPA to the Consumer 

Financial Protection Bureau (CFPB) and, with respect to entities under its jurisdiction, generally 

granted authority to the CFPB to supervise for and enforce compliance with RESPA and its 

implementing regulations.

3 In December 2011, the CFPB restated HUD’s implementing 

regulation at 12 CFR Part 1024 (76 Fed. Reg. 78978) (December 20, 2011). 

1 Pub. L. 104-208, Div. A., Title II § 2103 (c), September 30, 1996. 

2 15 U.S.C. 7001 et seq. 

3 Dodd-Frank Act Secs. 1002(12)(M), 1024(b)-(c), and 1025(b)-(c); 1053; 12 U.S.C. 5481(12)(M), 5514(b)-(c), and 5515 (b)-(c). 

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Since December 2011, the CFPB has issued a series of final rules amending Regulation X. On 

January 17, 2013, the CFPB issued a final rule that implemented certain provisions of Title XIV 

of the Dodd-Frank Act and included substantive and technical changes to the existing 

regulations. (78 Fed. Reg. 10695) (February 14, 2013). Substantive changes included modifying 

the servicing transfer notice requirements and implementing new procedures and notice 

requirements related to borrowers’ error resolution requests and information requests. The 

amendments also included new provisions related to escrow payments; force-placed insurance; 

general servicing; policies, procedures, and requirements; early intervention; continuity of 

contact; and loss mitigation. The amendments were effective as of January 10, 2014. 

Subsequently, on July 10, 2013, September 13, 2013, and October 22, 2014, the CFPB issued 

final rules to further amend Regulation X ((78 Fed. Reg. 44685) (July 24, 2013), (78 Fed. Reg. 

60381) (October 1, 2013), and (79 Fed. Reg. 65299) (November 3, 2014)). The final rules 

included substantive and technical changes to the existing regulations, including revisions to 

provisions on the relation to state law of Regulation X’s servicing provisions, to the loss 

mitigation procedure requirements, and to the requirements relating to notices of error and 

information requests. On October 15, 2013, the CFPB issued an interim final rule to further 

amend Regulation X (78 Fed. Reg. 62993) (October 23, 2013) to exempt servicers from the early 

intervention requirements in certain circumstances. The Regulation X amendments were 

effective as of January 10, 2014. 

On December 31, 2013, the CFPB published final rules implementing Sections 1098(2) and 

1100A(5) of the Dodd-Frank Act, which direct the CFPB to publish a single, integrated 

disclosure for mortgage transactions, which includes mortgage disclosure requirements under the 

Truth in Lending Act (TILA) and Sections 4 and 5 of RESPA. These amendments are referred to 

in this document as the “TILA-RESPA Integrated Disclosure Rule” or “TRID,” and are 

applicable to covered closed-end mortgage loans for which a creditor or mortgage broker 

receives an application on or after October 3, 2015. As a result, Regulation Z now houses the 

integrated forms, timing, and related disclosure requirements for most closed-end consumer 

mortgage loans. 

The new integrated disclosures are not used to disclose information about reverse mortgages; 

home equity lines of credit (HELOCs); chattel-dwelling loans, such as loans secured by a mobile 

home or by a dwelling that is not attached to real property (i.e., land); or other transactions not 

covered by the TILA-RESPA Integrated Disclosure Rule. The final rule also does not apply to 

loans made by a creditor who makes five or fewer mortgages in a year. Creditors originating 

these types of mortgages must continue to use, as applicable, the GFE, HUD-1 Settlement 

Statement, and Truth in Lending (TIL) disclosures. 

On August 4, 2016, the CFPB issued a final rule to further clarify, revise, and amend provisions 

of Regulation X as well as Regulation Z, the regulation implementing TILA. (81 Fed. Reg. 

72160) (October 19, 2016). The amendments in the final rule are referenced in this document as 

the “2016 Servicing Rule.” The 2016 Servicing Rule establishes a definition of successor in 

interest and provides that confirmed successors in interest are considered “borrowers” for the 

purposes of Regulation X’s mortgage servicing provisions. Confirmed successor in interest 

means a successor in interest once a servicer has confirmed the successor in interest’s identity 

and ownership interest in a property that secures a mortgage loan subject to Subpart C of 

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Regulation X. The 2016 Servicing Rule also addresses compliance with certain servicing 

requirements when a person is a debtor in bankruptcy or sends a cease communication request 

under the Fair Debt Collection Practices Act (FDCPA). 

Additionally, the 2016 Servicing Rule clarifies, revises, or amends provisions regarding forceplaced insurance notices, policy and procedure requirements, early intervention, and loss 

mitigation requirements under Regulation X’s mortgage servicing provisions; and which loans 

are considered in determining whether a servicer qualifies as a small servicer, certain periodic 

statement requirements relating to bankruptcy and charge-off, and prompt crediting requirements 

under Regulation Z’s mortgage servicing provisions. The 2016 Servicing Rule was effective 

October 19, 2017, except for the provisions related to successors in interest and periodic 

statements for borrowers in bankruptcy, which take effect on April 19, 2018. 

The CFPB concurrently issued an interpretive rule under the FDCPA to clarify the interaction of 

the FDCPA and specified mortgage servicing rules in Regulations X and Z. (81 Fed. Reg. 71977) 

(October 19, 2016).4

 This interpretive rule constitutes an advisory opinion for purposes of the 

FDCPA and provides safe harbors from liability for servicers acting in compliance with it. 

On October 4, 2017, the CFPB issued an interim final rule amending a provision of the 2016 

Servicing Rule relating to the timing for servicers to provide modified written early intervention 

notices under Regulation X to borrowers who have invoked their cease communication rights 

under the FDCPA. (82 FR 47953) (October 16, 2017). The interim final rule was effective 

October 19, 2017. 

Subpart A – General Provisions 

Coverage – 12 CFR 1024.5(a) 

RESPA is applicable to all “federally related mortgage loans,” except as provided under 12 

CFR 1024.5(b) and 1024.5(d), discussed below. “Federally related mortgage loans” are 

defined as: 

Loans (other than temporary loans), including refinancings that satisfy the following two 

criteria: 

•	 First, the loan is secured by a first or subordinate lien on residential real property, 

located within a state, upon which either: 

A one-to-four family structure is located or is to be constructed using proceeds of the 

loan (including individual units of condominiums and cooperatives); or 

A manufactured home is located or is to be constructed using proceeds of the loan. 

4 See Safe Harbors from Liability under the Fair Debt Collection Practices Act for Certain Actions Taken in Compliance with 

Mortgage Servicing Rules under the Real Estate Settlement Procedures Act (Regulation X) and the Truth in Lending Act 

(Regulation Z) (81 Fed. Reg. 71977) (Oct. 19, 2016) (hereinafter 2016 FDCPA Interpretive Rule). The interpretations contained 

in this interpretive rule are included in Regulation X comments 30(d)-1 and 39(d)-2; Regulation Z comment 2(a)(11)-4.ii. 

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•	 Second, the loan falls within one of the following categories: 

Loans made by a lender,

5 creditor,6 dealer;7 

Loans made or insured by an agency of the federal government; 

Loans made in connection with a housing or urban development program administered by 

an agency of the federal government; 

Loans made and intended to be sold by the originating lender or creditor to the FNMA, 

GNMA, or FHLMC (or its successor);8

 or 

Loans that are the subject of a home equity conversion mortgage or reverse mortgage 

issued by a lender or creditor subject to the regulation. 

“Federally related mortgage loans” are also defined to include installment sales contracts, 

land contracts, or contracts for deeds on otherwise qualifying residential property if the 

contract is funded in whole or in part by proceeds of a loan made by a lender, specified 

federal agency, dealer or creditor subject to the regulation. 

Exemptions – 12 CFR 1024.5(b) 

The following transactions are exempt from coverage: 

•	 A loan primarily for business, commercial or agricultural purposes (definition identical to 

Regulation Z, 12 CFR 1026.3(a)(1)). 

•	 A temporary loan, such as a construction loan. (The exemption does not apply if the loan is 

used as, or may be converted to, permanent financing by the same financial institution or is 

used to finance transfer of title to the first user of the property.) If the lender issues a 

commitment for permanent financing, it is covered by the regulation. 

•	 Any construction loan with a term of two years or more is covered by the regulation, 

unless it is made to a bona fide contractor. “Bridge” or “swing” loans are not covered by 

the regulation. 

•	 A loan secured by vacant or unimproved property where no proceeds of the loan will be used 

to construct a one-to-four family residential structure. If the proceeds will be used to locate a 

5 A lender includes financial institutions either regulated by, or whose deposits or accounts are insured by, any agency of the 

federal government.

6 A creditor is defined in Section 103(g) of the Consumer Credit Protection Act (15 U.S.C. 1602(g)). RESPA covers any creditor 

that makes or invests in residential real estate loans aggregating more than $1,000,000 per year.

7 “Dealer” is defined in Regulation X to mean a seller, contractor, or supplier of goods or services. Dealer loans are covered by 

RESPA if the obligations are to be assigned before the first payment is due to any lender or creditor otherwise subject to the 

regulation. 8 FNMA – Federal National Mortgage Association; GNMA - Government National Mortgage Association; FHLMC – Federal 

Home Loan Mortgage Corporation. 

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manufactured home or construct a structure within two years from the date of settlement, the 

loan is covered. 

•	 An assumption, unless the mortgage instruments require lender approval for the assumption 

and the lender approves the assumption. 

•	 A conversion of a loan to different terms which are consistent with provisions of the original 

mortgage instrument, as long as a new note is not required, even if the lender charges an 

additional fee for the conversion.

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•	 A bona fide transfer of a loan obligation in the secondary market. (However, the mortgage 

servicing requirements of Subpart C, 12 CFR 1024.30-41, still apply.) Mortgage broker 

transactions that are table funded (the loan is funded by a contemporaneous advance of loan 

funds and an assignment of the loan to the person advancing the funds) are not secondary 

market transactions and therefore are covered by RESPA. Similarly, neither the creation 

of a dealer loan or consumer credit contract, nor the first assignment of such loan or 

contract to a lender, is a secondary market transaction. 

Partial Exemptions for Certain Mortgage Loans – 12 CFR 

1024.5(d) 

Most closed-end mortgage loans are exempt from the requirement to provide the GFE, HUD-1 

settlement statement, and application servicing disclosure requirements of 12 CFR 1024.6, 

1024.7, 1024.8, 1024.10, and 1024.33(a). Instead, these loans are subject to disclosure, timing, 

and other requirements under TILA and Regulation Z. Specifically, the aforementioned 

provisions do not apply to a federally related mortgage loan that: 

•	 Is subject to the special disclosure (TILA-RESPA Integrated Disclosure) requirements for 

certain consumer credit transactions secured by real property set forth in Regulation Z, 12 

CFR 1026.19(e), (f), and (g); or 

•	 Is subject to the partial exemption under 12 CFR 1026.3(h) (i.e., certain no-interest loans 

secured by subordinate liens made for the purpose of down payment or similar home buyer 

assistance, property rehabilitation, energy efficiency, or foreclosure avoidance or prevention. 

(12 CFR 1026.3(h)). 

Note that a creditor may not use the TILA-RESPA Integrated Disclosure forms instead of the 

GFE, HUD-1, and TIL forms for transactions that continue to be covered by TILA or RESPA 

that require those disclosures (e.g., reverse mortgages). 

Summary of Applicable Disclosure Requirements: 

9 12 CFR 1024.5(b)(6). 

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Use TILA-RESPA Integrated Disclosures 

(See Regulation Z): 

Continue to use existing TIL, RESPA 

Disclosures (as applicable): 
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• Most closed-end mortgage loans, 

including: 

• HELOCs (subject to disclosure 

requirements under Regulation Z, 

12 CFR 1026.40) Construction-only loans 

Loans secured by vacant land 

or by 25 or more acres 

• Reverse mortgages10 (subject to 

existing TIL and GFE disclosures) 

• Chattel-secured mortgages (i.e., 

mortgages secured by a mobile 

home or by a dwelling that is not 

attached to real property, such as 

land) (subject to existing TIL 

disclosures, and not RESPA) 

But note: In both cases, there is a partial exemption from these disclosures under 12 

CFR 1026.3(h) for loans secured by subordinate liens and associated with certain housing 

assistance loan programs for low- and moderate-income persons. 

Subpart B – Mortgage Settlement and Escrow 

Accounts 

Examiners should note that certain provisions in Subpart B (12 CFR 1024.6, 1024.7, 1024.8, and 

1024.10) are applicable only to limited categories of mortgage loans. See the discussion of 12 

CFR 1024.5(d) above. 

10 Open-end reverse mortgages receive open-end disclosures, rather than GFEs or HUD-1s. 

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Special Information Booklet – 12 CFR 1024.6 

For mortgage loans that are not subject to the TILA-RESPA Integrated Disclosure Rule (see 

12 CFR 1026.19(e), (f) and (g)),* a loan originator11 is required to provide the borrower 

with a copy of the Special Information Booklet at the time a written application is submitted 

or no later than three business days after the application is received. If the application is 

denied before the end of the three-business-day period, the loan originator is not required to 

provide the booklet. If the borrower uses a mortgage broker, the broker rather than the 

lender, must provide the booklet. 

The booklet does not need to be provided for refinancing transactions, closed-end 

subordinate lien mortgage loans and reverse mortgage transactions, or for any other 

federally related mortgage loan not intended for the purchase of a one-to-four family 

residential property. (12 CFR 1024.19(g)(1)(iii)). 

A loan originator that complies with Regulation Z (12 CFR 1026.40) for open-end home equity 

plans (including providing the brochure entitled “What You Should Know About Home Equity 

Lines of Credit” or a suitable substitute) is deemed to have complied with this section. 

*NOTE: The Special Information Booklet may also be required under 12 CFR 1026.19(g) for 

those closed-end mortgage loans subject to the TILA-RESPA Integrated Disclosure Rule. A 

discussion of those requirements is located in the Regulation Z examination procedures. 

Good Faith Estimate (GFE) of Settlement Costs – 

12 CFR 1024.7 Standard GFE Required 

For closed-end reverse mortgages, a loan originator is required to provide a consumer 

with the standard GFE form that is designed to allow borrowers to shop for a mortgage 

loan by comparing settlement costs and loan terms. (See GFE form at Appendix C to 12 

CFR Part 1024.) 

Overview of the Standard GFE 

The first page of the GFE includes a summary of loan terms and a summary of estimated 

settlement charges. It also includes information about key dates such as when the interest rate for 

the loan quoted in the GFE expires and when the estimate for the settlement charges expires. The 

second page discloses settlement charges as subtotals for 11 categories of costs. The third page 

provides a table explaining which charges can change at settlement, a trade-off table showing the 

relationship between the interest rate and settlement charges, and a shopping chart to compare 

the costs and terms of loans offered by different originators. 

GFE Application Requirements 

•	 The loan originator must provide the standard GFE to the borrower within three business 

days of receipt of an application for a mortgage loan. A loan originator is not required to 

11 A “loan originator” is defined as a lender or mortgage broker. 12 CFR 1024.2(b). 

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provide a GFE if before the end of the three-business-day period, the application is denied or 

the borrower withdraws the application. 

•	 An application can be in writing or electronically submitted, including a written record of an 

oral application. 

•	 A loan originator determines what information it needs to collect from a borrower and which 

of the collected information it will use in order to issue a GFE. Under the regulations, an 

“application” includes at least the following six pieces of information: 

1)	 The borrower’s name; 

2)	 The borrower’s gross monthly income; 

3)	 The borrower’s Social Security number (e.g., to enable the loan originator to obtain a 

credit report); 

4)	 The property address; 

5)	 An estimate of the value of the property; and 

6)	 The mortgage loan amount sought. In addition, a loan originator may require the 

submission of any other information it deems necessary. 

A loan originator will be presumed to have relied on such information prior to issuing a GFE 

and cannot base a revision of a GFE on that information unless it changes or is later found to 

be inaccurate. 

•	 While the loan originator may require the borrower to submit additional information beyond 

the six pieces of information listed above in order to issue a GFE, it cannot require, as a 

condition of providing the GFE, the submission of supplemental documentation to verify the 

information provided by the borrower on the application. However, a loan originator is not 

prohibited from using its own sources to verify the information provided by the borrower 

prior to issuing the GFE. The loan originator can require borrowers to provide verification 

information after the GFE has been issued in order to complete final underwriting. 

•	 For dealer loans, the loan originator is responsible for providing the GFE directly or ensuring 

that the dealer provides the GFE. 

•	 For mortgage brokered loans, either the lender or the mortgage broker must provide a GFE 

within three business days after a mortgage broker receives either an application or 

information sufficient to complete an application. The lender is responsible for ascertaining 

whether the GFE has been provided. If the mortgage broker has provided the GFE to the 

applicant, the lender is not required to provide an additional GFE. 

•	 A loan originator is prohibited from charging a borrower any fee in order to obtain a GFE 

unless the fee is limited to the cost of a credit report. 

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GFE Not Required for Open End Lines of Credit – 12 CFR 1024.7(h) 

A loan originator that complies with Regulation Z (12 CFR 1026.40) for open-end home 

equity plans is deemed to have complied with 12 CFR 1024.7. 

Availability of GFE Terms – 12 CFR 1024.7(c) 

Regulation X does not establish a minimum period of availability for which the interest rate 

must be honored. The loan originator must determine the expiration date for the interest rate 

of the loan stated on the GFE. In contrast, Regulation X requires that the estimated settlement 

charges and loan terms listed on the GFE be honored by the loan originator for at least 10 

business days from the date the GFE is provided. The period of availability for the estimated 

settlement charges and loan terms as well as the period of availability for the interest rate of the 

loan stated on the GFE must be listed on the GFE in the “important dates” section of the form. 

After the expiration date for the interest rate of the loan stated on the GFE, the interest rate and 

the other rate related charges, including the charge or credit for the interest rate chosen, the 

adjusted origination charges and the per diem interest can change until the interest rate is locked. 

Key GFE Form Contents – 12 CFR 1024.7(d) 

The loan originator must ensure that the required GFE form is completed in accordance with 

the Instructions set forth in Appendix C of 12 CFR Part 1024. 

First Page of GFE 

•	 The first page of the GFE discloses identifying information such as the name and address of 

the “loan originator,” which includes the lender or the mortgage broker originating the loan. 

The “purpose” section indicates what the GFE is about and directs the borrower to the TIL 

disclosures and HUD’s website for more information. The borrower is informed that only the 

borrower can shop for the best loan and that the borrower should compare loan offers using 

the shopping chart on the third page of the GFE. 

•	 The “important dates” section requires the loan originator to state the expiration date for the 

interest rate for the loan provided in the GFE as well as the expiration date for the estimate of 

other settlement charges and the loan terms not dependent upon the interest rate. 

•	 While the interest rate stated on the GFE is not required to be honored for any specific period 

of time, the estimate for the other settlement charges and other loan terms must be honored 

for at least 10 business days from when the GFE is provided. 

•	 In addition, the form must state how many calendar days within which the borrower must go 

to settlement once the interest rate is locked (rate lock period). The form also requires 

disclosure of how many days prior to settlement the interest rate would have to be locked, if 

applicable. 

•	 The “summary of your loan” section requires disclosure of the initial loan amount; loan term; 

initial interest rate; initial monthly payment for principal, interest, and any mortgage 

insurance; whether the interest rate can rise, and if so, the maximum rate to which it can rise 

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over the life of the loan, and the period of time after which the interest rate can first change; 

whether the loan balance can rise if the payments are made on time and if so, the maximum 

amount to which it can rise over the life of the loan; whether the monthly amount owed for 

principal, interest and any mortgage insurance can rise even if payments are made on time, 

and if so, the maximum amount to which the monthly amount owed can ever rise over the 

life of the loan; whether the loan has a prepayment penalty, and if so, the maximum amount 

it could be; and whether the loan has a balloon payment, and if so, the amount of such 

payment and in how many years it will be due. Specific instructions are provided with 

respect to closed-end reverse mortgages. 

•	 The “escrow account information” section requires the loan originator to indicate whether the 

loan does or does not have an escrow account to pay property taxes or other property related 

charges. In addition, this section also requires the disclosure of the monthly amount owed for 

principal, interest and any mortgage insurance. Specific instructions are provided with 

respect to closed-end reverse mortgages. 

•	 The bottom of the first page includes subtotals for the adjusted origination charges and 

charges for all other settlement charges listed on page two, along with the total estimated 

settlement charges. 

Second Page of GFE 

The second page of the GFE requires disclosure of all settlement charges. It provides for the 

estimate of total settlement costs in eleven categories discussed below. The adjusted 

origination charges are disclosed in “Block A” and all other settlement charges are disclosed 

in “Block B.” The amounts in the blocks are to be added to arrive at the “total estimated 

settlement charges” which is required to be listed at the bottom of the page. 

Disclosure of Adjusted Origination Charge (Block A) 

Block A addresses disclosure of origination charges, which include all lender and mortgage 

broker charges. The “adjusted origination charge” results from the subtraction of a “credit” 

from the “origination charge” or the addition of a “charge” to the origination charge. 

•	 Block 1 – the origination charges, which include lender processing and underwriting fees and 

any fees paid to a mortgage broker. 

Origination Charge Note: This block requires the disclosure of all charges that all loan 

originators involved in the transaction will receive for originating the loan (excluding any 

charges for points). A loan originator may not separately charge any additional fees for 

getting the loan such as application, processing or underwriting fees. The amount in Block 1 

is subject to zero tolerance, i.e., the amount cannot change at settlement. 

•	 Block 2 – a “credit” or “charge” for the interest rate chosen. 

Credit or Charge for the Interest Rate Chosen Note: 

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Transaction Involving a Mortgage Broker. For a transaction involving a mortgage broker,12 

Block 2 requires disclosure of a “credit” or charge (points) for the specific interest rate chosen. 

The credit or charge for the specific interest rate chosen is the net payment to the mortgage 

broker (i.e., the sum of all payments to the mortgage broker from the lender, including payments 

based on the loan amount, a flat rate or any other compensation, and in a table funded 

transaction, the loan amount less the price paid for the loan by the lender.) 

When the net payment to the mortgage broker from the lender is positive, there is a “credit” 

to the borrower and it is entered as a negative amount. For example, if the lender pays a 

yield spread premium to a mortgage broker for the loan set forth in the GFE, the payment 

must be disclosed as a “credit” to the borrower for the particular interest rate listed on the 

GFE (reflected on the GFE at Block 2, checkbox 2). The term “yield spread premium” is not 

featured on the GFE or the HUD-1 Settlement Statement. 

Points paid by the borrower for the interest rate chosen must be disclosed as a “charge” 

(reflected on the GFE at Block 2, third checkbox). A loan cannot include both a charge 

(points) and a credit (yield spread premium). 

Transaction Not Involving a Mortgage Broker. For a transaction without a mortgage broker, a 

lender may choose not to separately disclose any credit or charge for the interest rate chosen 

for the loan in the GFE. If the lender does not include any credit or charge in Block 2, it must 

check the first checkbox in Block 2 indicating that “The credit or charge for the interest rate 

you have chosen is included in ‘our origination charge’ above.” Only one of the boxes in 

Block 2 may be checked, as a credit and charge cannot occur together in the same transaction. 

Disclosure of Charges for All Other Settlement Services (Block B) 

Block B is the sum of charges for all settlement services other than the origination charges. 

•	 Block 3 – required services by providers selected by the lender such as appraisal and flood 

certification fees. 

•	 Block 4 – title service fees and the cost of lender’s title insurance. 

•	 Block 5 – owner’s title insurance. 

•	 Block 6 – other required services for which the consumer may shop. 

•	 Block 7 – government recording charges. 

•	 Block 8 – transfer tax charges. 

12 The 2008 RESPA Reform Rule changed the definition of “mortgage broker” to mean a person or entity (not an employee 

of a lender) that renders origination services and serves as an intermediary between a lender and a borrower in a transaction 

involving a federally related mortgage loan, including such person or entity that closes the loan in its own name and table 

funds the transaction. The definition will also apply to a loan correspondent approved under 24 CFR 202.8 for Federal 

Housing Administration (FHA programs). The definition would also include an “exclusive agent” who is not an employee of 

the lender. 

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•	 Block 9 – initial deposit for escrow account. 

•	 Block 10 – daily interest charges. 

•	 Block 11 – homeowner’s insurance charges. 

Third Page of GFE 

The third page of the GFE includes the following information: 

•	 A tolerance chart identifying the charges that can change at settlement (see discussion on 

tolerances below); 

•	 A trade-off table that requires the loan originator to provide information on the loan 

described in the GFE and at the loan originator’s option, information about alternative loans 

(one with lower settlement charges but a higher interest rate and one with a lower interest 

rate but higher settlement charges); 

•	 A shopping chart that allows the consumer to fill in loan terms and settlement charges from 

other lenders or brokers to use to compare loans; and 

•	 Language indicating that some lenders may sell the loan after settlement, but that any fees the 

lender receives in the future cannot change the borrower’s loan or the settlement charges. 

Tolerances on Settlement Costs – 12 CFR 1024.7(e) and (i) 

The 2008 RESPA Reform Rule established “tolerances” or limits on the amount actual 

settlement charges can vary at closing from the amounts stated on the GFE. The rule 

established three categories of settlement charges and each category has different tolerances. 

If, at settlement, the charges exceed the charges listed on the GFE by more than the 

permitted tolerances, the loan originator may cure the tolerance violation by reimbursing to 

the borrower the amount by which the tolerance was exceeded, at settlement or within 30 

calendar days after settlement. 

Tolerance Categories 

•	 Zero tolerance category. This category of fees is subject to a zero tolerance standard. The 

fees estimated on the GFE may not be exceeded at closing. These fees include: 

The loan originator’s own origination charge, including processing and underwriting fees; 

The credit or charge for the interest rate chosen (i.e., yield spread premium or discount 

points) while the interest rate is locked; 

The adjusted origination charge while the interest rate is locked; and 

State/local property transfer taxes. 

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•	 Ten percent tolerance category. For this category of fees, while each individual fee may 

increase or decrease, the sum of the charges at settlement may not be greater than 10 percent 

above the sum of the amounts included on the GFE. This category includes fees for: 

Loan originator required settlement services, where the loan originator selects the thirdparty settlement service provider; 

Loan originator required services, title services, required title insurance and owner’s title 

insurance when the borrower selects a third-party provider identified by the loan 

originator; and 

Government recording charges. 

•	 No tolerance category. The final category of fees is not subject to any tolerance restriction. 

The amounts charged for the following settlement services included on the GFE can 

change at settlement and the amount of the change is not limited: 

Loan originator required services where the borrower selects his or her own third-party 

provider; 

Title services, lender’s title insurance, and owner’s title insurance when the borrower 

selects his or her own provider; 

Initial escrow deposit; 

Daily interest charges; and 

Homeowner’s insurance. 

Identification of Third-Party Settlement Service Providers 

When the loan originator permits a borrower to shop for one or more required third-party 

settlement services and select the settlement service provider for such required services, the 

loan originator must list in the relevant block on page two of the GFE the settlement service 

and the estimated charge to be paid to the provider of each required service. In addition, the 

loan originator must provide the borrower with a written list of settlement service providers 

for those required services on a separate sheet of paper at the time the GFE is provided. 

Binding GFE – 12 CFR 1024.7(f) 

The loan originator is bound, within the tolerances provided, to the settlement charges and 

terms listed on the GFE provided to the borrower, unless a new GFE is provided prior to 

settlement (see discussion below on changed circumstances). This also means that if a 

lender accepts a GFE issued by a mortgage broker, the lender is subject to the loan terms 

and settlement charges listed in the GFE, unless a new GFE is issued prior to settlement. 

Changed Circumstances – 12 CFR 1024.2(b), 1024.7(f)(1) and (f)(2) 

Changed circumstances are defined as: 

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•	 Acts of God, war, disaster, or other emergency; 

•	 Information particular to the borrower or transaction that was relied on in providing the 

GFE that changes or is found to be inaccurate after the GFE has been provided; 

•	 New information particular to the borrower or transaction that was not relied on in 

providing the GFE; or 

•	 Other circumstances that are particular to the borrower or transaction, including 

boundary disputes, the need for flood insurance, or environmental problems. 

Changed circumstances do not include the borrower’s name, the borrower’s monthly income, 

the property address, an estimate of the value of the property, the mortgage loan amount 

sought, and any information contained in any credit report obtained by the loan originator prior 

to providing the GFE, unless the information changes or is found to be inaccurate after the 

GFE has been provided. In addition, market price fluctuations by themselves do not constitute 

changed circumstances. 

Changed circumstances affecting settlement costs are those circumstances that result in increased 

costs for settlement services such that the charges at settlement would exceed the tolerances or 

limits on those charges established by the regulations. 

Changed circumstances affecting the loan are those circumstances that affect the borrower’s 

eligibility for the loan. For example, if underwriting and verification indicate that the borrower is 

ineligible for the loan provided in the GFE, the loan originator would no longer be bound by the 

original GFE. In such cases, if a new GFE is to be provided, the loan originator must do so 

within three business days of receiving information sufficient to establish changed 

circumstances. The loan originator must document the reason that a new GFE was provided and 

must retain documentation of any reasons for providing a new GFE for no less than three years 

after settlement. 

None of the information collected by the loan originator prior to issuing the GFE may later 

become the basis for a “changed circumstance” upon which it may offer a revised GFE, unless: it 

can demonstrate 1) that there was a change in the particular information; 2) that the information 

was inaccurate; or 3) that it did not rely on that particular information in issuing the GFE. A loan 

originator has the burden of demonstrating nonreliance on the collected information, but may do 

so through various means including through a documented record in the underwriting file or an 

established policy of relying on a more limited set of information in providing GFEs. 

If a loan originator issues a revised GFE based on information previously collected in issuing the 

original GFE and “changed circumstances,” it must document the reasons for issuing the revised 

GFE, such as its nonreliance on such information or the inaccuracy of such information. 

Borrower Requested Changes – 12 CFR 1024.7(f)(3) 

If a borrower requests changes to the mortgage loan identified in the GFE that change the 

settlement charges or the terms of the loan, the loan originator may provide a revised GFE to 

the borrower. If a revised GFE is provided, the loan originator must do so within three 

business days of the borrower’s request. 

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Expiration of Original GFE – 12 CFR 1024.7(f)(4) 

If a borrower does not express an intent to continue with an application within 10 business 

days after the GFE is provided, or such longer time provided by the loan originator, the loan 

originator is no longer bound by the GFE. 

Interest Rate Dependent Charges and Terms – 12 CFR 1024.7(f)(5) 

If the interest rate has not been locked by the borrower, or a locked interest rate has expired, 

all interest rate-dependent charges on the GFE are subject to change. The charges that may 

change include the charge or credit for the interest rate chosen, the adjusted origination 

charges, per diem interest, and loan terms related to the interest rate. However, the loan 

originator’s origination charge (listed in Block 1 of page two of the GFE) is not subject to 

change, even if the interest rate floats, unless there is another changed circumstance or 

borrower-requested change. 

If the borrower later locks the interest rate, a new GFE must be provided showing the 

revised interest rate dependent charges and terms. All other charges and terms must remain 

the same as on the original GFE, unless changed circumstances or borrower-requested 

changes result in increased costs for settlement services or affect the borrower’s eligibility 

for the specific loan terms identified in the original GFE. 

New Home Purchases – 12 CFR 1024.7(f)(6) 

In transactions involving new home purchases, where settlement is expected to occur more 

than 60 calendar days from the time a GFE is provided, the loan originator may provide the 

GFE to the borrower with a clear and conspicuous disclosure stating that at any time up until 

60 calendar days prior to closing, the loan originator may issue a revised GFE. If the loan 

originator does not provide such a disclosure, it cannot issue a revised GFE except as 

otherwise provided in Regulation X. 

Volume-Based Discounts 

The 2008 RESPA Reform Rule did not formally address the legality of volume-based 

discounts. However, HUD indicated in the preamble to the rule that discounts negotiated 

between loan originators and other settlement service providers, where the discount is 

ultimately passed on to the borrower in full, is not, depending on the circumstances of a 

particular transaction, a violation of Section 8 of RESPA.

13 

Uniform Settlement Statement 

(HUD-1 OR HUD-1A) – 12 CFR 1024.8 

For closed-end reverse mortgages, the person conducting the settlement (settlement agent) 

must provide the borrower with a HUD-1 Settlement Statement at or before settlement that 

clearly itemizes all charges imposed on the buyer and the seller in connection with the 

settlement. The 2008 RESPA Reform rule included a revised HUD-1/1A Settlement 

13 73 Fed. Reg. 68204, 68232 (November 17, 2008). 

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Statement form that is required as of January 1, 2010. The HUD-1 is used for transactions in 

which there is a borrower and seller. For transactions in which there is a borrower and no 

seller (refinancings and subordinate lien loans), the HUD-1 may be completed by using the 

borrower’s side of the settlement statement. Alternatively, the HUD-1A may be used. 

However, no settlement statement is required for home equity plans subject to TILA and 

Regulation Z, Appendix A to 12 CFR 1024 contains the instructions for completing the forms. 

Key 2008 RESPA Reform Enhancements to the HUD-1/1A Settlement 

Statement 

While the 2008 RESPA Reform Rule did not include any substantive changes to the first 

page of the HUD-1/1A form, there were changes to the second page of the form to facilitate 

comparison between the HUD-1/1A and the GFE. Each designated line on the second page 

of the revised HUD-1/1A includes a reference to the relevant line from the GFE. 

With respect to disclosure of “no cost” loans where “no cost” refers only to the loan 

originator’s fees (see Section L, Subsection 800 of the HUD-1 form), the amounts shown for 

the “origination charge” and the “credit or charge for the interest rate chosen” should offset, 

so that the “adjusted origination charge” is zero. 

In the case of a “no cost” loan where “no cost” encompasses loan originator and third-party 

fees, all third-party fees must be itemized and listed in the borrower’s column on the HUD1/1A. These itemized charges must be offset with a negative adjusted origination charge 

(Line 803) and recorded in the columns. 

To further facilitate comparability between the forms, the revised HUD-1 includes a third 

page (second page of the HUD-1A) that allows borrowers to compare the loan terms and 

settlement charges listed on the GFE with the terms and charges listed on the closing 

statement. The first half of the third page includes a comparison chart that sets forth the 

settlement charges from the GFE and the settlement charges from the HUD-1 to allow the 

borrower to easily determine whether the settlement charges exceed the charges stated on 

the GFE. If any charges at settlement exceed the charges listed on the GFE by more than the 

permitted tolerances, the loan originator may cure the tolerance violation by reimbursing to 

the borrower the amount by which the tolerance was exceeded. A borrower will be deemed 

to have received timely reimbursement if the financial institution delivers or places the 

payment in the mail within 30 calendar days after settlement. 

Inadvertent or technical errors on the settlement statement are not deemed to be a violation 

of Section 4 of RESPA if a revised HUD-1/1A is provided to the borrower within 30 

calendar days after settlement. 

The second half of the third page sets forth the loan terms for the loan received at settlement 

in a format that reflects the summary of loan terms on the first page of the GFE, but with 

additional loan related information that would be available at closing. The note at the bottom 

of the page indicates that the borrower should contact the lender if the borrower has 

questions about the settlement charges or loan terms listed on the form. 

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12 CFR 1024.8(b) and the instructions for completing the HUD-1/1A Settlement Statement 

provide that the loan originator shall transmit sufficient information to the settlement agent 

to allow the settlement agent to complete the “loan terms” section. The loan originator must 

provide the information in a format that permits the settlement agent to enter the information 

in the appropriate spaces on the HUD-1/1A, without having to refer to the loan documents. 

Average Charge Permitted 

As of January 16, 2009, an average charge may be stated on the HUD-1/1A if such average 

charge is computed in accordance with 12 CFR 1024.8(b)(2). All settlement service 

providers, including loan originators, are permitted to list the average charge for a settlement 

service on the HUD-1/1A Settlement Statement (and on the GFE) rather than the exact cost 

for that service. 

The method of determining the average charge is left up to the settlement service provider. 

The average charge may be used as the charge for any third-party vendor charge, not for the 

provider’s own internal charges. The average charge also cannot be used where the charge is 

based on the loan amount or the value of the property. 

The average charge may be used for any third-party settlement service, provided that the total 

amounts received from borrowers for that service for a particular class of transactions do not 

exceed the total amounts paid to providers of that service for that class of transactions. A class 

of transactions may be defined based on the period of time, type of loan and geographic area. 

If an average charge is used in any class of transactions defined by the loan originator, then 

the loan originator must use the same average charge for every transaction within that class. 

The average charge must be recalculated at least every six months. 

A settlement service provider that uses an average charge for a particular service must 

maintain all documents that were used to calculate the average charge for at least three years 

after any settlement in which the average charge was used. 

Printing and Duplication of the Settlement Statement – 

12 CFR 1024.9 

Financial institutions have numerous options for layout and format in reproducing the HUD1 and HUD-1A that do not require prior CFPB approval such as size of pages; tint or color 

of pages; size and style of type or print; spacing; printing on separate pages, front and back 

of a single page or on one continuous page; use of multi-copy tear-out sets; printing on rolls 

for computer purposes; addition of signature lines; and translation into any language. Other 

changes may be made only with the approval of the CFPB. 

One-Day Advance Inspection of the Settlement Statement 

– 12 CFR 1024.10 

For closed-end reverse mortgages, and upon request by the borrower, the HUD-1 or HUD1A must be completed and made available for inspection during the business day 

immediately preceding the day of settlement, setting forth those items known at that time by 

the person conducting the closing. 

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Delivery – 12 CFR 1024.10(a) and (b) 

The completed HUD-1 or HUD-1A must be mailed or delivered to the borrower, the seller 

(if there is one), the lender (if the lender is not the settlement agent), and/or their agents at or 

before settlement. However, the borrower may waive the right of delivery by executing a 

written waiver at or before settlement. The HUD-1 or HUD-1A shall be mailed or delivered 

as soon as practicable after settlement if the borrower or borrower’s agent does not attend 

the settlement. 

Retention – 12 CFR 1024.10(e) 

A lender must retain each completed HUD-1 or HUD-1A and related documents for five 

years after settlement, unless the lender disposes of its interest in the mortgage and does not 

service the mortgage. If the loan is transferred, the lender shall provide a copy of the HUD-1 

or HUD-1A to the owner or servicer of the mortgage as part of the transfer. The owner or 

servicer shall retain the HUD-1 or HUD-1A for the remainder of the five-year period. 

Prohibition of Fees for Preparing Federal Disclosures – 

12 CFR 1024.12 

For loans subject to RESPA, no fee may be charged for preparing the Settlement Statement 

or the Escrow Account statement or any disclosures required by TILA. 

Prohibition Against Kickbacks and Unearned Fees – 12 CFR 

1024.14 

Any person who gives or accepts a fee, kickback, or thing of value (payments, commissions, 

gifts, tangible item or special privileges) for the referral of settlement business is in violation of 

Section 8(a) of RESPA. Any person who gives or accepts any portion, split, or percentage of a 

charge for real estate settlement services, other than for services actually performed, is in 

violation of Section 8(b) of RESPA. Appendix B of Regulation X provides guidance on the 

meaning and coverage of the prohibition against kickbacks and unearned fees. 

RESPA Section 8(b) is not violated when a single party charges and retains a settlement service 

fee, and that fee is unearned or excessive. 

Penalties and Liabilities 

Civil and criminal liability is provided for violating the prohibition against kickbacks and 

unearned fees including: 

•	 Civil liability to the parties affected, equal to three times the amount of any charge paid for 

such settlement service. 

•	 The possibility that the costs associated with any court proceeding together with reasonable 

attorney’s fees could be recovered. 

•	 A fine of not more than $10,000 or imprisonment for not more than one year or both. 

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Affiliated Business Arrangements – 12 CFR 1024.15 

If a loan originator (or an associate)

14 has either an affiliate relationship or a direct or 

beneficial ownership interest of more than one percent in a provider of settlement services 

and the loan originator directly or indirectly refers business to the provider it is an affiliated 

business arrangement. An affiliated business arrangement is not a violation of Section 8 of 

RESPA and of 12 CFR 1024.14 of Regulation X if the following conditions are satisfied. 

Prior to the referral, the person making each referral has provided to each person whose 

business is referred an Affiliated Business Arrangement Disclosure Statement (Appendix D 

of Regulation X). This disclosure shall specify the following: 

•	 The nature of the relationship (explaining the ownership and financial interest) between 

the provider and the loan originator; and 

•	 The estimated charge or range of charges generally made by such provider. 

This disclosure must be provided on a separate piece of paper either at the time of loan 

application, or with the GFE, or at the time of the referral. 

The loan originator may not require the use of such a provider, with the following 

exceptions: the institution may require a buyer, borrower, or seller to pay for the services of 

an attorney, credit reporting agency, or real estate appraiser chosen by the institution to 

represent its interest. The loan originator may only receive a return on ownership or 

franchise interest or payment otherwise permitted by RESPA. 

Title Insurance Companies – 12 CFR 1024.16 

Sellers that hold legal title to the property being sold are prohibited from requiring 

borrowers, either directly or indirectly, as a condition to selling the property, to use a 

particular title insurance company. 

Escrow Accounts – 12 CFR 1024.17 

On October 26, 1994, HUD issued its final rule changing the accounting method for escrow 

accounts, which was originally effective April 24, 1995. The final rule established a national 

standard accounting method, known as aggregate accounting. The final rule also established 

formats and procedures for initial and annual escrow account statements. 

The amount of escrow funds that can be collected at settlement or upon creation of an 

escrow account is restricted to an amount sufficient to pay charges, such as taxes and 

insurance, that are attributable to the period from the date such payments were last paid until 

the initial payment date. Throughout the life of an escrow account, the servicer may charge 

the borrower a monthly sum equal to one-twelfth of the total annual escrow payments that 

the servicer reasonably anticipates paying from the account. In addition, the servicer may 

14 An associate includes a corporation or business entity that controls, is controlled by, or is under common control with the 

institution; an employer, officer, director, partner, franchisor, or franchisee of the institution; or anyone with an arrangement with 

the institution that enables the person to refer settlement business and benefit financially from the referrals. 12 U.S.C. 2602(8). 

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add an amount to maintain a cushion no greater than one-sixth of the estimated total annual 

payments from the account. 

Starting April 19, 2018, a servicer must treat a confirmed successor in interest as a borrower 

for purposes of 12 CFR 1024.17 and for Subpart C’s provisions. 

Escrow Account Analysis – 12 CFR 1024.17(c)(2) and (3) and 12 CFR 

1024.17(k) 

Before establishing an escrow account, a servicer must conduct an analysis to determine the 

periodic payments and the amount to be deposited. The servicer shall use an escrow 

disbursement date that is on or before the deadline to avoid a penalty and may make annual 

lump sum payments to take advantage of a discount. 

Transfer of Servicing – 12 CFR 1024.17(e) 

If the new servicer changes either the monthly payment amount or the accounting method 

used by the old servicer, then it must provide the borrower with an initial escrow account 

statement within 60 days of the date of transfer. When the new servicer provides an initial 

escrow account statement, it shall use the effective date of the transfer of servicing to 

establish the new escrow account computation year. In addition, if the new servicer retains 

the monthly payments and accounting method used by the old servicer, then the new 

servicer may continue to use the same computation year established by the old servicer or it 

may choose a different one, using a short year statement. 

Shortages, Surpluses, and Deficiency Requirements – 

12 CFR 1024.17(f) 

The servicer shall conduct an annual escrow account analysis to determine whether a 

surplus, shortage, or deficiency exists as defined under 12 CFR 1024.17(b). 

If the escrow account analysis discloses a surplus, the servicer shall, within 30 days from the 

date of the analysis, refund the surplus to the borrower if the surplus is greater than or equal to 

$50. If the surplus is less than $50, the servicer may refund such amount to the borrower, or 

credit such amount against the next year’s escrow payments. These provisions apply as long 

as the borrower’s mortgage payment is current at the time of the escrow account analysis. 

If the escrow account analysis discloses a shortage of less than one month’s escrow 

payments, then the servicer has three possible courses of action: 

•	 The servicer may allow the shortage to exist and do nothing to change it, 

•	 The servicer may require the borrower to repay the shortage amount within 30 days, or 

•	 The servicer may require the borrower to repay the shortage amount in equal monthly 

payments over at least a 12-month period. 

If the shortage is more than or equal to one month’s escrow payment, then the servicer has 

two possible courses of action: 

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•	 The servicer may allow the shortage to exist and do nothing to change it, or 

•	 The servicer may require the borrower to repay the shortage in equal monthly payments over 

at least a 12-month period. 

If the escrow account analysis discloses a deficiency, then the servicer may require the 

borrower to pay additional monthly deposits to the account to eliminate the deficiency. 

If the deficiency is less than one month’s escrow account payment, then the servicer; 

•	 May allow the deficiency to exist and do nothing to change it, 

•	 May require the borrower to repay the deficiency within 30 days, or 

•	 May require the borrower to repay the deficiency in two or more equal monthly payments. 

If the deficiency is greater than or equal to one month’s escrow payment, the servicer may 

allow the deficiency to exist and do nothing to change it, or require the borrower to repay 

the deficiency in two or more equal monthly payments. 

These provisions apply as long as the borrower’s mortgage payment is current at the time of 

the escrow account analysis. 

A servicer must notify the borrower at least once during the escrow account computation 

year if a shortage or deficiency exists in the account. 

Initial Escrow Account Statement – 12 CFR 1024.17(g) 

After analyzing each escrow account, the servicer must submit an initial escrow account 

statement to the borrower at settlement or within 45 calendar days of settlement for escrow 

accounts that are established as a condition of the loan. 

The initial escrow account statement must include the monthly mortgage payment; the 

portion going to escrow; itemize estimated taxes, insurance premiums, and other charges; 

the anticipated disbursement dates of those charges; the amount of the cushion; and a trial 

running balance. 

Annual Escrow Account Statement – 12 CFR 1024.17(i) 

A servicer shall submit to the borrower an annual statement for each escrow account within 

30 days of the completion of the computation year. The servicer must conduct an escrow 

account analysis before submitting an annual escrow account statement to the borrower. 

The annual escrow account statements must contain the account history; projections for the 

next year; current mortgage payment and portion going to escrow; amount of past year’s 

monthly mortgage payment and portion that went into the escrow account; total amount paid 

into the escrow account during the past year; amount paid from the account for taxes, 

insurance premiums, and other charges; balance at the end of the period; explanation of how 

the surplus, shortage, or deficiency is being handled; and, if applicable, the reasons why the 

estimated low monthly balance was not reached. 

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Short-Year Statements – 12 CFR 1024.17(i)(4) 

Short-year statements can be issued to end the escrow account computation year and 

establish the beginning date of the new computation year. Short-year statements may be 

provided upon the transfer of servicing and are required upon loan payoff. The statement is 

due to the borrower within 60 days after receiving the pay-off funds. 

Timely Payments – 12 CFR 1024.17(k) 

The servicer must pay escrow disbursements by the disbursement date. In calculating the 

disbursement date, the servicer must use a date on or before the deadline to avoid a penalty 

and may make annual lump sum payments to take advantage of a discount. A servicer may 

not purchase force-placed insurance unless it is unable to disburse funds from the 

borrower’s escrow account to maintain the borrower’s hazard insurance. A servicer is 

unable to disburse funds only if the servicer has a reasonable basis to believe that either the 

borrower’s property is vacant or the borrower’s hazard insurance has terminated for reasons 

other than non-payment. A servicer is not unable to disburse funds from the borrower’s 

escrow account solely because the account is deficient. If a servicer advances funds to an 

escrow account to ensure that the borrower’s hazard insurance premium charges are paid in a 

timely manner, a servicer may seek repayment from the borrower for the funds the servicer 

advanced, unless otherwise prohibited by applicable law. 

Regulation X includes a limited exemption from the restriction on force-placed insurance 

purchases for small servicers. Subject to the requirements of 12 CFR 1024.37, small 

servicers may purchase force-placed insurance and charge the borrower for the cost of that 

insurance if the cost to the borrower is less than the amount the small servicer would need to 

disburse from the borrower’s escrow account to ensure timely payment of the borrower’s 

hazard insurance premium charges. 

An institution qualifies as a small servicer under 12 CFR 1026.41(e)(4)(ii) if: 

•	 The institution services, together with any affiliates, 5,000 or fewer mortgage loans, for 

all of which the institution (or an affiliate) is the creditor or assignee; 

•	 The institution is a Housing Finance Agency, as defined in 24 CFR 266.5 (12 

CFR 1026.41(e)(4)(ii)); or 

•	 The institution is a nonprofit entity (defined in 12 CFR 1026.41(e)(4)(ii)(C)(1)) that services 

5,000 or fewer mortgage loans, including any mortgage loans serviced on behalf of 

associated nonprofit entities (defined in 12 CFR 1026.41(e)(4)(ii)(C)(2)), for all of which the 

servicer or an associated nonprofit entity is the creditor. 

The determination as to whether a servicer qualifies as a small servicer is generally made 

based on the mortgage loans, as that term is used in 12 CFR 1026.41(a)(1), serviced by the 

servicer and any affiliates as of January 1 for the remainder of that calendar year. However, 

to determine small servicer status under the nonprofit small servicer definition, a nonprofit 

servicer should be evaluated based on the mortgage loans serviced by the servicer (and not those 

serviced by associated nonprofit entities) as of January 1 for the remainder of the calendar year. 

A servicer that ceases to qualify as a small servicer will have six months from the time it 

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Except as otherwise noted below, the provisions of Subpart C – Mortgage Servicing, 12 CFR 

1024.30-41, apply to any mortgage loan, as that term is defined in 12 CFR 1024.31. The 

procedures set forth in 12 CFR 1024.39-1024.41 regarding early intervention, continuity of 

contact, and loss mitigation only apply to a mortgage loan secured by a property that is the 

borrower’s principal residence. If a property ceases to be a borrower’s principal residence, the 

procedures set forth in the early intervention provisions (12 CFR 1024.39), the continuity of 

contact provisions (12 CFR 1024.40), and the loss mitigation provisions (12 CFR 1024.41) do 

ceases to qualify or until the next January 1, whichever is later, to comply with any 

requirements from which the servicer is no longer exempt as a small servicer. 

Under 12 CFR 1026.41(e)(4)(iii), the following mortgage loans are not considered in 

determining whether a servicer qualifies as a small servicer: (a) mortgage loans voluntarily 

serviced by the servicer for a non-affiliate of the servicer and for which the servicer does not 

receive any compensation or fees; (b) reverse mortgage transactions; and (c) mortgage loans 

secured by consumers’ interests in timeshare plans; and (d) certain seller-financed transactions 

that meet the criteria identified in 12 CFR 1026.36(a)(5). 

List of Homeownership Counseling Organizations 

– 12 CFR 1024.20 

For any application for a federally related mortgage loan, as that term is defined in 12 CFR 

1024.2 subject to the exemptions in 12 CFR 1024.5(b) (except for applications for reverse 

mortgages or timeshare loans), the lender must provide a loan applicant with a clear and 

conspicuous written list of homeownership counseling services in the loan applicant’s 

location, no later than three business days after a lender, mortgage broker, or dealer receives 

an application or information sufficient to complete an application. The list is available on a 

website maintained by the CFPB, or from data made available by the CFPB or HUD. 

Lenders must make sure that the list of homeownership counseling services was obtained no 

earlier than 30 days before they provide it to the applicant. This list may be combined with 

other disclosures (unless otherwise prohibited by Regulation X or Regulation Z). A 

mortgage broker or dealer that receives a loan application, or for whom it prepares an 

application, may provide the list, in which case the lender is not required to provide an 

additional list, though in all cases the lender remains responsible for ensuring that the list is 

provided to the applicant. The list may be provided in person, by mail or other means. The 

list may be provided in electronic form, subject to compliance with the consumer consent 

and other applicable provisions of E-Sign. 

If, before the three-day period ends, the lender denies the application or the applicant 

withdraws it, the lender does not have to provide the list. If the transaction involves more than 

one lender, the lenders should agree on which of them will provide the list. If there is more 

than one applicant, the list can go to any one of them that has primary liability on the loan. 

Subpart C – Mortgage Servicing 

Scope – 12 CFR 1024.30 

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not apply to the mortgage loan secured by the property. (Comment 30(c)(2)-1). The 

determination of principal residence status will depend on the specific facts and circumstances 

regarding the property and applicable state law. For example, a vacant property may still be a 

borrower’s principal residence. (Comment 30(c)(2)-1). 

Starting April 19, 2018, a servicer must treat a confirmed successor in interest as a borrower 

under Subpart C’s provisions and under the escrow account requirements in 12 CFR 1024.17. 

Further, a servicer that is a debt collector under the FDCPA with respect to a mortgage loan does 

not violate the FDCPA Section 805(b)’s prohibition on communicating with third parties by 

communicating with a confirmed successor in interest in compliance with the mortgage servicing 

rules because “consumer” for purposes of FDCPA Section 805 includes any person who meets 

the definition in this part of confirmed successor in interest. (Comment 30(d)-1).15 

Definitions – 12 CFR 1024.31 

Regulation X, 12 CFR 1024.31 contains definitions that are applicable to Subpart C – Mortgage 

Servicing, 12 CFR 1024.30-41. Among other definitions, Regulation X provides that “mortgage 

loan” means “any federally related mortgage loan, as that term is defined in 12 CFR 1024.2 

subject to the exemptions in 12 CFR 1024.5(b), but does not include open-end lines of credit 

(home equity plans).” Thus, the term “mortgage loan” includes (but is not limited to) refinancing 

transactions, whether secured by a senior or subordinate lien. 

The 2016 Servicing Rule establishes definitions of “successor in interest” and “confirmed 

successors in interest,” and provides that the latter are considered “borrowers” for the purposes 

of Regulation X’s mortgage servicing provisions. The 2016 Servicing Rule also adds a new 

definition of “delinquency.” 

Successors in Interest (Effective April 19, 2018) 

“Successor in interest” means a person to whom an ownership interest in a property securing a 

mortgage loan if the transfer is: 

(1) A transfer by devise, descent, or operation of law on the death of a joint tenant or tenant by 

the entirety; 

(2) A transfer to a relative resulting from the death of a borrower; 

(3) A transfer where the spouse or children of the borrower become an owner of the property; 

(4) A transfer resulting from a decree of a dissolution of marriage, legal separation agreement, or 

from an incidental property settlement agreement, by which the spouse of the borrower becomes 

an owner of the property; or 

(5) A transfer into an inter vivos trust in which the borrower is and remains a beneficiary and 

which does not relate to a transfer of rights of occupancy in the property. 

15 See also the 2016 FDCPA Interpretive Rule (81 Fed. Reg. 71977, 71979). 

24 
“Confirmed successor in interest” means a successor in interest once a servicer has confirmed the 

successor in interest's identity and ownership interest in a property that secures a mortgage loan 

subject to Subpart C of Regulation X. 

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Delinquency 

The definition of “delinquency” applies to the servicing provisions in Subpart C of Regulation X 

and the provisions regarding periodic statements for mortgage loans in Regulation Z.16 Under the 

definition, a borrower and a borrower’s mortgage loan obligation are delinquent beginning on the 

date a payment sufficient to cover principal, interest, and, if applicable, escrow, becomes due and 

unpaid, and the borrower remains delinquent until such time as no periodic payment is due and 

unpaid (even if the borrower is afforded a period after the due date to pay before the servicer 

assesses a late fee). 

If a servicer applies payments to the oldest outstanding payment, a payment by a delinquent 

borrower advances the date the borrower’s delinquency began. For example, assume a 

borrower’s mortgage loan requires borrower to make periodic payments of principal, interest, 

and escrow by the first of each month. The borrower fails to make a payment on January 1 or on 

any day in January, and on January 31 the borrower is 30 days delinquent. On February 3, the 

borrower makes a periodic payment. The servicer applies the payment it received on February 3 

to the outstanding January payment. On February 4, the borrower is three days delinquent. 

(Comment 31-2). 

Further, if a servicer chooses to accept a payment that is less than the periodic payment due 

without considering the borrower delinquent for purposes of any provisions in Subpart C, the 

borrower is not delinquent for any other provisions in the Subpart. (Comment 31-3).17 

General Disclosure Requirements – 12 CFR 1024.32 

Disclosure Requirements – 12 CFR 1024.32(a) 

Disclosures required under 12 CFR 1024.30-.41 must be clear and conspicuous, in writing, and 

in a form that a recipient may keep. The disclosures may be provided in electronic form, subject 

to consumer consent and the provisions of E-Sign,18 and a servicer may use commonly accepted 

or readily understandable abbreviations. Disclosures may be made in a language other than 

English, provided that they are made in English upon a recipient’s request. 

16 For purposes of periodic statements for residential mortgage loans under Regulation Z, 12 CFR 1026.41(d)(8), the 

length of a consumer's delinquency is measured as of the date of the periodic statement or the date of the written 

notice provided under 12 CFR 1026.41(e)(3)(iv). A consumer’s delinquency begins on the date an amount sufficient 

to cover a periodic payment of principal, interest, and escrow, if applicable, becomes due and unpaid, even if the 

consumer is afforded a period after the due date to pay before the servicer assesses a late fee. A consumer is 

delinquent if one or more periodic payments of principal, interest, and escrow, if applicable, are due and unpaid. 

(Comment 1026.41(d)(8)-1). 17 A creditor is not prevented from exercising a right provided by a mortgage loan contract to accelerate payment for 

a breach of that contract. Failure to pay the amount due after the creditor accelerates the mortgage loan obligation in 

accordance with the mortgage loan contract would begin or continue delinquency. (Comment 31-4). 18 15 U.S.C. 7001 et seq. 

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Additional Information, Disclosures Required by Other Laws 

– 12 CFR 1024.32(b) 

Servicers may include additional information in disclosures required under 12 CFR 1024.30-41 

or combine these disclosures with any disclosure required by other law unless doing so is 

expressly prohibited by 12 CFR 1024.30-41, by other applicable law (such as TILA or the Truth 

in Savings Act), or by the terms of an agreement with a federal or state regulatory agency. 

Successors in Interest – 12 CFR 1024.32(c) (Effective April 19, 

2018) 

Under 12 CFR 1024.32(c), servicers have the option to provide a written notice and 

acknowledgment form to confirmed successors in interest who have not assumed the mortgage 

loan and are not otherwise liable on it. Among other things, the written notice must explain that 

the confirmed successor in interest may be entitled to receive certain notices and 

communications about the mortgage loan if the servicer is not providing them to another 

confirmed successor in interest or borrower on the account. The notice also must explain that in 

order to receive such notices and communications, the successor in interest must execute and 

provide to the servicer the acknowledgment form. 

Servicers that send this type of notice and acknowledgement form are not required to provide 

to the confirmed successor in interest any written disclosure required by 12 CFR 1024.17, 

1024.33, 1024.34, 1024.37, or 1024.39, or to comply with the live contact requirements in 12 

CFR 1024.39(a) with respect to the confirmed successor in interest until the confirmed 

successor in interest either assumes the mortgage loan or executes the acknowledgment form. 

Regardless of whether the confirmed successor in interest executes the acknowledgment 

form, the written notice must state the successor in interest is entitled to submit notices of 

error under 12 CFR 1024.35, requests for information under 12 CFR 1024.36, and requests 

for a payoff statement under 12 CFR 1026.36 with respect to the mortgage loan account, and 

the notice must include a brief explanation of those rights and how to exercise them, 

including appropriate address information. 

Furthermore, except as required by 12 CFR 1024.36, a servicer is not required to provide to a 

confirmed successor in interest any written disclosure required by 12 CFR 1024.17, 1024.33, 

1024.34, 1024.37, or 1024.39(b) if the servicer is providing the same specific disclosure to 

another borrower on the account. A servicer is also not required to comply with the live 

contact requirements in 12 CFR 1024.39(a) with respect to a confirmed successor in interest if 

the servicer is complying with those requirements with respect to another borrower on the 

account. A confirmed successor in interest who does not receive servicing communications 

because the servicer is providing them to another borrower on the account can request 

additional information as needed through the request for information process under 

Regulation X. 

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Mortgage Servicing Transfer Disclosures – 

12 CFR 1024.33 

The disclosures related to the transfer of mortgage servicing generally are required for any 

mortgage loan, as that term is defined in 12 CFR 1024.31, except that the servicing 

disclosure statement required under 12 CFR 1024.33(a) is required only for reverse 

mortgage transactions. 

Servicing Disclosure Statement – 12 CFR 1024.33(a) 

A lender, mortgage broker who anticipates using table funding, or dealer in a first-lien 

dealer loan that receives an application for a reverse mortgage transaction is required to 

provide the servicing disclosure statement to the borrower within three days (excluding legal 

public holidays, Saturdays, and Sundays) after receipt of the application. The disclosure 

statement must advise whether the servicing of the mortgage loan may be assigned, sold, or 

transferred to any other person at any time. A model disclosure statement is set forth in 

Appendix MS-1. 

If the institution denies the borrower’s application within the three-day period, it is not 

required to provide the disclosure statement. 

Notices of Transfer of Loan Servicing – 12 CFR 1024.33(b) 

When any mortgage loan, as that term is defined in 12 CFR 1024.31, is assigned, sold or 

transferred, the transferor (former servicer) generally must provide a disclosure at least 15 

days before the effective date of the transfer. Generally, a transfer of servicing notice from 

the transferee (new servicer) must be provided not more than 15 days after the effective date 

of the transfer. Generally, both notices may be combined into one notice if delivered to the 

borrower at least 15 days before the effective date of the transfer. Notices provided at the 

time of settlement satisfy the timing requirements. 

The disclosure must include: 

•	 The effective date of the transfer; 

•	 The name, address, and toll-free or collect-call telephone number for an employee or 

department of the transferee servicer that can be contacted by the borrower to obtain answers 

to servicing transfer inquiries; 

•	 The name, address, and toll-free or collect-call telephone number for an employee or 

department of the transferor servicer that can be contacted by the borrower to obtain answers 

to servicing transfer inquiries; 

•	 The date on which the transferor servicer will cease accepting payments relating to the loan, 

and the date on which the transferee servicer will begin to accept such payments. The dates 

must be either the same or consecutive dates; 

•	 Whether the transfer will affect the terms or the availability of optional insurance and any 

action the borrower must take to maintain such coverage; and 

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•	 A statement that the transfer does not affect the terms or conditions of the mortgage (except 

as directly related to servicing). 

Servicers may use the disclosure in Appendix MS-2 to comply with the mortgage servicing 

transfer disclosure. 

The following transfers are not considered an assignment, sale, or transfer of mortgage loan 

servicing for purposes of this requirement if there is no change in the payee, address to 

which payment must be delivered, account number, or amount of payment due: 

•	 Transfers between affiliates; 

•	 Transfers resulting from mergers or acquisitions of servicers or subservicers; and 

•	 Transfers between master servicers, when the subservicer remains the same. 

Additionally, the Federal Housing Administration (FHA) is not required to provide a notice of 

transfer to the borrower where a mortgage insured under the National Housing Act is assigned 

to FHA. 

Borrower Payments During Transfer of Servicing – 12 CFR 

1024.33(c) 

During the 60-day period beginning on the date of transfer, no late fee or other penalty can 

be imposed on a borrower who has made a timely payment to the transferor servicer (former 

servicer). Additionally, if the transferor servicer (former servicer) receives any incorrect 

payments on or after the effective date of the transfer, the transferor servicer must either 

transfer the payment to the transferee servicer (new servicer) or return the payment and 

inform the payor of the proper recipient of the payment. 

Timely Escrow Payments and Treatment of Escrow Account 

Balances – 12 CFR 1024.34 

Servicers must comply with requirements concerning the treatment of escrow funds, which apply 

to any mortgage loan, as that term is defined in 12 CFR 1024.31. 

If the terms of a mortgage loan require the borrower to make payments to the servicer for deposit 

into an escrow account to pay taxes, insurance premiums, and other charges, the servicer shall 

make payments from the escrow account in a timely manner. A payment is made in a timely 

manner if it is made on or before the deadline to avoid a penalty. 

Generally, the servicer must return any amounts remaining in escrow within the servicer’s 

control within 20 days (excluding legal public holidays, Saturdays, and Sundays) after the 

borrower pays the mortgage loan in full, unless the borrower and servicer agree to credit the 

remaining funds towards an escrow account for certain new mortgage loans. The rule does not 

prohibit servicers from netting any funds remaining in an escrow account against the outstanding 

balance of the borrower’s mortgage loan. 

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Error Resolution Procedures – 12 CFR 1024.35 

Servicers must comply with error resolution procedures that are triggered when a borrower 

submits an error notice to the servicer. The requirements set forth in 12 CFR 1024.35 apply to 

any mortgage loan, as that term is defined in 12 CFR 1024.31. 

The CFPB has issued an advisory opinion clarifying that, because borrowers initiate the error 

resolution process, a servicer’s communications with a borrower regarding an error notice are not 

subject to the “cease communication” provision of the FDCPA unless the borrower specifically 

withdraws the request for action regarding the error.19 

Notice of Error – 12 CFR 1024.35(a) 

An error notice must be in writing and identify the borrower’s name, information that allows the 

servicer to identify the borrower’s account, and the alleged error. A qualified written request that 

asserts an error relating to the servicing of a mortgage loan is an error notice, and the servicer must 

comply with all of the error notice requirements with respect to such qualified written request. 

The commentary clarifies that a servicer should not rely solely on the borrower’s description of a 

submission to determine whether it is an error notice, an information request, or both. For 

example, a borrower may submit a letter titled “Notice of Error” that indicates that the borrower 

wants to receive the information set forth in an annual escrow account statement and asserts an 

error for the servicer’s failure to provide that statement. Such a letter could be both an error 

notice and an information request, and the servicer must evaluate whether the letter fulfills the 

substantive requirements of an error notice, information request, or both. 

Scope of Error Resolution – 12 CFR 1024.35(b) 

The error resolution procedures apply to the following alleged errors: 

•	 Failure to accept a payment that complies with the servicer’s written requirements; 

•	 Failure to apply an accepted payment to principal, interest, escrow, or other charges as 

required by the mortgage loan and applicable law; 

•	 Failure to credit a payment to the borrower’s account as of the date the servicer received it, as 

required by 12 CFR 1026.36(c)(1); 

•	 Failure to pay taxes, insurance premiums, or other charges by the due date, as required by 12 

CFR 1024.34(a); 

•	 Failure to refund an escrow account balance within 20 days (excluding legal public holidays, 

Saturdays, and Sundays) after the borrower pays the mortgage loan in full, as required by 12 

CFR 1024.34(b); 

•	 Imposition of a fee or charge without a reasonable basis to do so; 

19 CFPB Bulletin 2013-12. 

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•	 Failure to provide an accurate payoff balance amount upon the borrower’s request, as 

required by 12 CFR 1026.36(c)(3); 

•	 Failure to provide accurate information to a borrower regarding loss mitigation options and 

foreclosure, as required by 12 CFR 1024.39; 

•	 Failure to transfer accurate and timely information relating to servicing to a transferee 

servicer; 

•	 Making the first notice or filing for a judicial or non-judicial foreclosure process before the 

time periods allowed by 12 CFR 1024.41(f) and (j); 

•	 Moving for foreclosure judgment or order of sale or conducting a foreclosure sale in 

violation of 12 CFR 1024.41(g) or (j); and 

•	 Any other error relating to the servicing of a borrower’s mortgage loan. 

The commentary gives examples of errors not covered by 12 CFR 1024.35(b), such as errors 

relating to: (i) the origination of a mortgage loan; (ii) the underwriting of a mortgage loan; (iii) a 

subsequent sale or securitization of a mortgage loan; and (iv) a determination to sell, assign, or 

transfer the servicing of a mortgage loan (unless it concerns the failure to transfer accurate and 

timely information relating to the servicing of the borrower’s mortgage loan account to a 

transferee servicer). 

Contact Information – 12 CFR 1024.35(c) 

If the servicer establishes an address to which borrowers must send error notices, the servicer 

must provide written notice of the address to the borrower with specified content. The 

commentary states that the servicer must also include this address on the following 

communications: (i) any periodic statement or coupon book required under 12 CFR 1026.41; (ii) 

any website the servicer maintains in connection with the servicing of the loan; and (iii) any 

notice required pursuant to 12 CFR 1024.39 (early intervention) or 12 CFR 1024.41 (loss 

mitigation) that includes contact information for assistance. The servicer must use the same 

address for receiving information requests under 12 CFR 1024.36(b), and provide written notice 

to the borrower before changing the address to which the borrower must send error notices. 

Acknowledgement of Receipt – 12 CFR 1024.35(d) 

The servicer generally must provide a written acknowledgment to the borrower within five days 

(excluding legal public holidays, Saturdays, and Sundays) after receiving the error notice. 

Response to an Error Notice – 12 CFR 1024.35(e) 

A servicer generally has 30 days (excluding legal public holidays, Saturdays, and Sundays) from 

receipt of the error notice to investigate and respond to the notice, except that a servicer may 

extend this period by an additional 15 days (excluding legal public holidays, Saturdays, and 

Sundays) if, prior to the expiration of the original 30-day period, it notifies the borrower in 

writing of the extension and the reasons for it. 

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A servicer must respond within seven days (excluding legal public holidays, Saturdays, and 

Sundays) if the alleged error is a failure to provide an accurate payoff balance amount, and a 

servicer must respond by the earlier of 30 days (excluding legal public holidays, Saturdays, and 

Sundays) or the date of a foreclosure sale if the error involves either (i) making the first notice or 

filing for a judicial or non-judicial foreclosure process before the time periods allowed by 12 

CFR 1024.41(f) or (j), or (ii) moving for foreclosure judgment or order of sale or conducting a 

foreclosure sale in violation of 12 CFR 1024.41(g) or (j). 

In response to the notice of error, the servicer must either correct the error or conduct a 

reasonable investigation and determine that no error occurred. The servicer must also send a 

written response to the borrower that accomplishes one of the following: 

•	 If the servicer corrects the alleged error. The servicer must advise the borrower of the 

correction and when the correction took effect, and provide contact information, including 

phone number, for further assistance; 

•	 If the servicer determines that it committed an error or errors different than or in addition to 

those identified by the borrower. The servicer must correct the error and advise the borrower 

of the correction and when the correction took effect, and provide contact information, 

including phone number, for further assistance; or 

•	 If the servicer determines after a reasonable investigation that no error occurred. The 

servicer must state that it determined that no error occurred, the reasons for its determination, 

and the borrower’s right to request documents relied upon by the servicer in reaching its 

determination and how the borrower can make such a request, and provide contact 

information, including phone number, for further assistance. If the borrower requests those 

documents, the servicer generally must provide them within 15 days (excluding legal public 

holidays, Saturdays, and Sundays) at no cost to the borrower. The servicer need not provide 

documents that constitute confidential, proprietary, or privileged information. 

Furthermore, servicers responding to a notice of error request for documentation may omit 

location, contact, and personal financial information (other than information about the terms, 

status, and payment history of the mortgage loan) if: (i) the information pertains to a potential or 

confirmed successor in interest who is not the requester; or (ii) the requester is a confirmed 

successor in interest and the information pertains to any borrower who is not the requester. 

(Effective April 19, 2018). 

As a part of its investigation of the asserted error, the servicer may request supporting 

documentation from the borrower, but the servicer must conduct a reasonable investigation even 

if the borrower does not provide supporting documentation. 

Early Correction or Error Asserted Before Foreclosure Sale – 12 CFR 

1024.35(f) 

A servicer is not required to provide the five-day acknowledgement notice (12 CFR 1024.35(d)) 

or the response notice (12 CFR 1024.35(e)) if either: 

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•	 The servicer corrects the asserted errors and notifies the borrower of the correction within 

five days (excluding legal public holidays, Saturdays, and Sundays) after receiving the error 

notice; or 

•	 The servicer receives the error notice seven or fewer days before a foreclosure sale and the 

asserted error concerns the timing of the foreclosure process under 12 CFR 1024.35(b)(9) or 

(10). In this instance, the servicer must make a good faith attempt to respond to the borrower, 

either orally or in writing, and either correct the error or state the reason the servicer has 

determined that no error occurred. 

Requirements Not Applicable – 12 CFR 1024.35(g) 

A servicer does not need to provide the five-day acknowledgement notice (12 CFR 1024.35(d)), 

provide the response notice (12 CFR 1024.35(e)), or refrain from providing adverse information 

to credit reporting agencies for 60 days (12 CFR 1024.35(i)), if the servicer reasonably 

determines any of the following apply: 

•	 Duplicative notice of error. The asserted error is substantially the same as a previouslyasserted error for which the servicer complied with the obligation to respond, unless the 

borrower provides new and material information to support the asserted error. New and 

material information is information that is reasonably likely to change the servicer’s prior 

determination about the error; 

•	 Overbroad notice of error. The error notice is overbroad if the servicer cannot reasonably 

determine the specific alleged error. The commentary provides examples of overbroad 

notices, including those that assert errors regarding substantially all aspects of the mortgage 

loan (including origination, servicing, and foreclosure), notices that resemble legal pleadings 

and demand a response to each numbered paragraph, or notices that are not reasonably 

understandable or contain voluminous tangential information such that a servicer cannot 

reasonably identify from the notice any error that requires a response. Note that if a servicer 

concludes an error notice as submitted is overbroad, the servicer must still provide a five-day 

acknowledgment notice and a subsequent response to the extent the servicer can identify an 

appropriate error notice within the submission; or 

•	 Untimely notice of error. The error notice is sent more than one year after either the 

mortgage loan was discharged or the servicer receiving the notice of error transferred the 

mortgage loan to another servicer. For purposes of this provision, a mortgage loan is 

discharged when both the debt and all corresponding liens have been extinguished or 

released, as applicable. 

If a servicer determines that any of these three exceptions apply, it must provide written notice to 

the borrower within five days (excluding legal public holidays, Saturdays, and Sundays) after 

making that determination, including the basis relied upon. 

Payment Requirements Prohibited – 12 CFR 1024.35(h) 

A servicer may not charge a fee or require a borrower to make any payments as a condition to 

responding to an error notice. 

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Effect on Servicer Remedies – 12 CFR 1024.35(i) 

In the 60-day period after receiving an error notice, a servicer may not furnish adverse 

information to any consumer reporting agency regarding any payment that is the subject of the 

error notice. 

Requests for Information – 12 CFR 1024.36 

Servicers must follow certain procedures in response to a borrower’s written request for 

information with respect to the borrower’s mortgage loan. The request must include the 

borrower’s name, information that allows the servicer to identify the borrower’s account, and the 

requested information related to the borrower’s mortgage loan. The request can be from the 

borrower or the borrower’s agent; a servicer may undertake reasonable procedures to determine 

if an alleged agent has authority from the borrower to act as the borrower’s agent. A qualified 

written request that requests information relating to the servicing of a mortgage loan is an 

information request, and the servicer must comply with all of the information request 

requirements with respect to such a qualified written request. 

The requirements set forth in 12 CFR 1024.36 apply to any mortgage loan, as that term is 

defined in 12 CFR 1024.31. 

The CFPB has issued an advisory opinion clarifying that, because borrowers initiate requests for 

information, a servicer’s communications with a borrower regarding such a request for 

information are not subject to the FDCPA’s “cease communication” provision, unless the 

borrower specifically withdraws the information request.20 

Contact Information – 12 CFR 1024.36(b) 

If the servicer establishes an address to which borrowers must send information requests, the 

servicer must provide written notice of the address to the borrower with specified information. 

The commentary states that the servicer must also include this address on the following 

communications: (i) any periodic statement or coupon book required under 12 CFR 1026.41; (ii) 

any website the servicer maintains in connection with the servicing of the loan; and (iii) any 

notice required pursuant to 12 CFR 1024.39 (early intervention) or 12 CFR 1024.41 (loss 

mitigation) that includes contact information for assistance. The servicer must use the same 

address for receiving error notices under 12 CFR 1024.35(b), and provide written notice to the 

borrower before changing the address to which the borrower must send information requests. 

Acknowledgement of Receipt – 12 CFR 1024.36(c) 

The servicer generally must provide a written acknowledgment to the borrower within five days 

(excluding legal public holidays, Saturdays, and Sundays) after receiving the information request. 

Response to Information Request – 12 CFR 1024.36(d) 

A servicer generally must respond in writing to an information request within 30 days (excluding 

legal public holidays, Saturdays, and Sundays) of receipt, except that a servicer may extend this 

20 CFPB Bulletin 2013-12. 

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period by an additional 15 days (excluding legal public holidays, Saturdays, and Sundays) if, 

prior to the expiration of the original 30-day period, it notifies the borrower in writing of the 

extension and the reasons for it. A servicer must respond within 10 days (excluding legal public 

holidays, Saturdays, and Sundays) after receiving the request, if the borrower requested the 

identity or contact information for the owner or assignee of a mortgage loan. 

The servicer must respond in writing by either: 

•	 Providing the requested information and contact information, including phone number, for 

further assistance; or 

•	 Conducting a reasonable search for the information and advising the borrower that the servicer 

has determined that the requested information is not available to it, the basis for the servicer’s 

determination, and contact information, including phone number, for further assistance. 

Information is not available if it is not in the servicer’s control or possession, or the servicer 

cannot retrieve it in the ordinary course of business through reasonable efforts. The commentary 

gives examples of when information is or is not available. 

In its response to a request for information, a servicer may omit location, contact, and personal 

financial information (other than information about the terms, status, and payment history of the 

mortgage loan) if: (i) the information pertains to a potential or confirmed successor in interest 

who is not the requester; or (ii) the requester is a confirmed successor in interest and the 

information pertains to any borrower who is not the requester. (12 CFR 1024.36(d)(3)). 

(Effective April 19, 2018). 

Early Response – 12 CFR 1024.36(e) 

The five-day receipt acknowledgement (12 CFR 1024.36(c)) and the response (12 CFR 

1024.36(d)) requirements do not apply if the servicer provides the requested information and 

contact information, including phone number, for further assistance within five days (excluding 

legal public holidays, Saturdays, and Sundays) after receiving the information request. 

Requirement Not Applicable – 12 CFR 1024.36(f) 

The five-day receipt acknowledgement (12 CFR 1024.36(c)) and the response notice (12 CFR 

1024.36(d)) requirements also do not apply if the servicer reasonably determines any of the 

following exceptions apply: 

•	 The information requested is substantially the same information that the borrower previously 

requested. 

•	 The information requested is confidential, proprietary, or privileged. 

•	 The information requested is not directly related to the borrower’s mortgage loan account. 

The commentary provides examples of irrelevant information, including information related 

to the servicing of mortgage loans other than the borrower’s loan and investor instructions or 

requirements for servicers regarding the negotiation or approval of loss mitigation options. 

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•	 The information request is overbroad or unduly burdensome. A request is overbroad if the 

borrower requests that the servicer provide an unreasonable volume of documents or 

information. A request is unduly burdensome if a diligent servicer could not respond within 

the time periods set forth in 12 CFR 1024.36(d)(2) or would incur costs (or have to dedicate 

resources) that would be unreasonable in light of the circumstances. The commentary 

provides examples of overbroad or unduly burdensome requests, such as requests that seek 

documents relating to substantially all aspects of mortgage origination, mortgage servicing, 

mortgage sale or securitization, and foreclosure, as well as requests that require servicers to 

provide information in a specific format or seek information that is not reasonably likely to 

assist the borrower. If an information request as submitted is overbroad or unduly 

burdensome, the servicer must still provide the five-day acknowledgment of receipt and 

subsequent response if the servicer can reasonably identify an appropriate information 

request within the submission. 

•	 The information request is sent more than one year after either the mortgage loan was 

discharged or the servicer receiving the information request transferred the mortgage loan to 

another servicer. For purposes of this provision, a mortgage loan is discharged when both the 

debt and all corresponding liens have been extinguished or released, as applicable. 

If a servicer determines that any of these five exceptions apply, it must provide written notice to 

the borrower within five days (excluding legal public holidays, Saturdays, and Sundays) after 

making that determination, including the basis relied on. 

Payment Requirement Limitations – 12 CFR 1024.36(g) 

A servicer generally may not charge a fee, or require a borrower to make any payment that may 

be owed on a borrower’s account, as a condition of responding to an information request. A 

servicer may charge for providing a beneficiary notice under applicable state law, if such a fee is 

not otherwise prohibited by applicable law. 

Potential Successors in Interest – 12 CFR 1024.36(i) (Effective April 

19, 2018) 

A servicer must respond to a written request from a person indicating that the person may be a 

successor in interest if the request includes the name of the transferor borrower from whom the 

person received an ownership interest and information that enables the servicer to identify the 

mortgage loan. The response must generally provide a written description of the documents the 

servicer reasonably requires to confirm the person’s identity and ownership interest in the 

property as well as contact information, including a telephone number, for further assistance. 

With respect to the written request, a servicer must treat the potential successor in interest as a 

borrower for the purposes of 12 CFR1024.36(c) through 1024.36(g). 

A servicer must respond to such a request not later than the time limits set forth in 12 CFR 

1024.36(d)(2) for information requests. Depending on the facts and circumstances of the request, 

responding promptly may require a servicer to respond more quickly than the time limits 

established in 12 CFR 1024.36(d)(2). (Comment 36(i)-2). 

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Under 12 CFR 1024.38(b)(1)(vi)(B), a servicer, other than a small servicer, must maintain 

policies and procedures that are reasonably designed to promptly facilitate communication with 

potential successors in interest and promptly confirm a potential successor in interest’s identity 

and ownership interest in the property securing the mortgage loan. 

Force-Placed Insurance – 12 CFR 1024.37 

Servicers must comply with restrictions on obtaining and assessing charges and fees for forceplaced insurance, defined as hazard insurance that a servicer obtains on behalf of the owner or 

assignee to insure the property securing the mortgage loan (but does not include (i) flood 

insurance required by the Flood Disaster Protection Act of 1973, (ii) hazard insurance obtained 

by a borrower but renewed by the borrower’s servicer in accordance with 12 CFR 1024.17(k)(1), 

(2), or (5), or (iii) hazard insurance obtained by a borrower but renewed by the borrower’s 

servicer with the borrower’s agreement). The requirements set forth in 12 CFR 1024.37 apply to 

any mortgage loan, as that term is defined in 12 CFR 1024.31. 

The CFPB has issued an advisory opinion clarifying that, because the Dodd-Frank Act 

specifically mandates certain disclosures regarding force-placed insurance without any mention 

of the FDCPA’s “cease communication” provisions, a servicer acting as a debt collector does not 

violate the FDCPA’s “cease communication” provision by providing the notices required under 

12 CFR 1024.37.21 

Requirements Before Charging For Force-placed Insurance 

– 12 CFR 1024.37(b), (c), (d) 

Servicers may not assess charges or fees for force-placed insurance unless the servicer satisfies 

four requirements. 

First, the servicer must have a reasonable basis to believe that the borrower has failed to 

maintain required hazard insurance. The commentary states that information about a borrower’s 

hazard insurance received by the servicer from the borrower, the borrower’s insurance provider, 

or the borrower’s insurance agent, may provide a servicer with a reasonable basis. If a servicer 

receives no such information, the servicer may satisfy the reasonable basis standard if the 

servicer acts with reasonable diligence to ascertain the borrower’s hazard insurance status and 

does not receive evidence of hazard insurance. 

Second, the servicer must mail or deliver an initial written notice to the borrower at least 45 days 

before assessing a charge or fee related to force-placed insurance. The servicer’s notice must 

identify the following: 

• The date of the notice; 

• The servicer’s name and mailing address; 

• The borrower’s name and mailing address; 

21 CFPB Bulletin 2013-12. 

37 
 

 

 

 

•	 A statement requesting that the borrower provide hazard insurance information for the 

borrower’s property and identifying the property by its physical address; 

•	 A statement that the borrower’s hazard insurance has expired, is expiring, or provides 

insufficient coverage, as applicable; that the servicer lacks evidence that the borrower has 

hazard insurance coverage past the expiration date or lacks evidence of sufficient coverage, 

as applicable; and if applicable, identifies the type of hazard insurance lacking; 

•	 A statement that hazard insurance is required on the borrower’s property and that the servicer 

has purchased or will purchase insurance at the borrower’s expense; 

•	 A request that the borrower promptly provide the servicer with insurance information; 

•	 A description of the requested insurance information and how the borrower may provide 

such information, and if applicable, that the requested information must be in writing; 

•	 A statement that the insurance coverage the servicer has purchased or will purchase may cost 

significantly more than, and provide less coverage than, hazard insurance purchased by the 

borrower; 

•	 The servicer’s phone number for borrower inquiries; and 

•	 A statement advising that the borrower review additional information provided in the same 

transmittal (if applicable). 

The servicer cannot provide any information on the initial notice other than the specific 

statements listed above and, at the servicer’s option, the loan account number. The servicer, 

however, can provide additional information on separate pages of paper contained in the same 

mailing. Certain information must be provided in bold text. Appendix MS-3(A) contains a form 

notice that servicers may use. 

Third, the servicer must send a reminder notice at least 30 days after the initial notice is mailed or 

delivered and at least 15 days before the servicer assesses charges or fees. If the servicer has 

received no hazard insurance information in response to the initial notice described above, the 

reminder notice must contain the date of the reminder notice and all of the other information 

provided in the initial notice, as well as (i) advise that it is a second and final notice, and (ii) 

identify the annual cost of force-placed insurance, or if unknown, a reasonable estimate of that 

cost. 

If the servicer has received hazard insurance information but not evidence that sufficient 

coverage has been in place continuously, the reminder notice must identify the following: 

•	 The date of the notice; 

•	 The servicer’s name and mailing address; 

•	 The borrower’s name and mailing address; 

38 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

•	 A statement requesting that the borrower provide hazard insurance information for the 

borrower’s property and that identifies the property by its physical address; 

•	 A statement that the insurance coverage the servicer has purchased or will purchase may cost 

significantly more than, and provide less coverage than, hazard insurance purchased by the 

borrower; 

•	 The servicer’s phone number for borrower inquiries; 

•	 A statement advising that the borrower review additional information provided in the same 

transmittal (if applicable); 

•	 A statement that it is the second and final notice; 

•	 The annual cost of force-placed insurance, or if unknown, a reasonable estimate of that cost; 

•	 A statement that the servicer has received the hazard insurance information that the borrower 

provided; 

•	 A request that the borrower provide the missing information; and 

•	 A statement that the borrower will be charged for insurance the servicer purchases during the 

time period in which the servicer cannot verify coverage. 

The servicer cannot provide any additional information on the reminder notice other than 

specific statements listed above and, at the servicer’s option, the loan account number. The 

servicer, however, can provide additional information on separate pages of paper contained in 

the same transmittal. Certain information must be provided in bold text. Appendix MS-3 

contains sample reminder notices at forms MS-3(B) and MS-3(C). If a servicer receives new 

information about a borrower’s hazard insurance after the required written notice has been put 

into production, the servicer is not required to update the notice if the written notice was put into 

production a reasonable time prior to the servicer delivering the notice to the borrower or placing 

the notice in the mail. For purposes of 12 CFR 1024.37(d)(5), five days (excluding legal 

holidays, Saturdays, and Sundays) is a reasonable time. (Comment 37(d)(5)-1). 

Fourth, by the end of the 15-day period beginning on the date the servicer delivers the reminder 

notice or places it in the mail, the servicer must not have received evidence that the borrower has 

had required hazard insurance continuously in place. As evidence, the servicer may require a 

copy of the borrower’s hazard insurance policy declaration page, the borrower’s insurance 

certificate, the borrower’s insurance policy, or other similar forms of written confirmation. 

Renewing Force-Placed Insurance – 12 CFR 1024.37(e) 

A servicer must comply with two requirements before assessing charges or fees on a borrower to 

renew or replace existing force-placed insurance. 

First, the servicer must provide written notice at least 45 days before assessing a premium charge 

or fee. This renewal notice must provide the following information: 

•	 The date of the renewal notice; 

39 
 

 

•	 The servicer’s name and mailing address; 

•	 The borrower’s name and mailing address; 

•	 A request that the borrower update the hazard insurance information and that identifies the 

property by its physical address; 

•	 A statement that the servicer previously purchased force-placed insurance at the borrower’s 

expense because the servicer did not have evidence that the borrower had hazard insurance 

coverage; 

•	 A statement that the force-placed insurance is expiring or has expired and that the servicer 

intends to renew or replace it because hazard insurance is required on the property; 

•	 A statement that the insurance coverage the servicer has purchased or will purchase may cost 

significantly more than, and provide less coverage than, hazard insurance purchased by the 

borrower, and identifying the annual cost (or if unknown, a reasonable estimate) of forceplaced insurance; 

•	 A statement that if the borrower purchases hazard insurance, the borrower should promptly 

advise the servicer; 

•	 A description of the requested insurance information and how the borrower may provide 

such information, and if applicable, that the requested information must be in writing; 

•	 The servicer’s telephone number for borrower inquiries; and 

•	 A statement advising the borrower to review additional information provided in the same 

transmittal (if applicable). 

The servicer cannot provide any additional information on the renewal notice other than the 

specific statements listed above, and, at the servicer’s option, the loan account number. The 

servicer, however, can provide additional information on separate pages of paper contained in 

the same transmittal. Certain information must be provided in bold text. Appendix MS-3(D) 

contains a form notice that servicers may use. 

Second, by the end of the 45-day period beginning on the date the written notice was delivered or 

placed in the mail, the servicer must not have received evidence demonstrating that the borrower 

has purchased required hazard insurance coverage. 

Notwithstanding these two requirements, if not prohibited by state or other applicable law, if the 

servicer receives evidence that the borrower lacked insurance for some period of time after the 

existing force-placed insurance expired, the servicer may promptly assess a premium charge or 

fee related to renewing or replacing the existing force-placed insurance for that period of time. 

The servicer must mail or deliver the renewal notice before each anniversary of purchasing forceplaced insurance, though the servicer need not send the renewal notice more than once per year. 

40 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Mailing the Notices – 12 CFR 1024.37(f) 

If the servicer mails the initial notice, the reminder notice, or the renewal notice, the servicer 

must use at least first-class mail. 

Canceling Force-Placed Insurance – 12 CFR 1024.37(g) 

If the servicer receives evidence that the borrower has had required hazard insurance coverage in 

place, then the servicer has 15 days to cancel the force-placed insurance, refund force-placed 

insurance premium charges and fees for the period of overlapping insurance coverage, and 

remove all force-placed charges and fees from the borrower’s account for that period. 

Limitations on Force-Placed Insurance – 12 CFR 1024.37(h) 

All charges that a servicer assesses on a borrower related to force-placed insurance must be bona 

fide and reasonable, except for charges subject to state regulation and charges authorized by the 

Flood Disaster Protection Act of 1973. A bona fide and reasonable charge is one that is 

reasonably related to the servicer’s cost of providing the service and is not otherwise prohibited 

by law. 

General Servicing Policies, Procedures, and Requirements 

– 12 CFR 1024.38 

Servicers must maintain policies and procedures reasonably designed to achieve certain 

servicing-related objectives, and are subject to requirements regarding record retention and the 

ability to create servicing files. 

These requirements apply to any mortgage loan, as that term is defined in 12 CFR 1024.31, 

except that they do not apply to (i) small servicers, (ii) reverse mortgage transactions, as that 

term is defined in 12 CFR 1024.31, or (iii) mortgage loans for which the servicer is a qualified 

lender. 

As noted above, an institution qualifies as a small servicer under 12 CFR 1026.41(e)(4)(ii) if 

it (a) services, together with any affiliates, 5,000 or fewer mortgage loans, for all of which 

the institution (or an affiliate) is the creditor or assignee, (b) is a Housing Finance Agency, as 

defined in 24 CFR 266.5, or (c) is a nonprofit entity (defined in 12 CFR 1026.41(e)(4)(ii)(C)(1)) 

that services 5,000 or fewer mortgage loans, including any mortgage loans serviced on behalf of 

associated nonprofit entities (defined in 12 CFR 1026.41(e)(4)(ii)(C)(2)), for all of which the 

servicer or an associated nonprofit entity is the creditor. 

The determination as to whether a servicer qualifies as a small servicer is generally made 

based on the mortgage loans, as that term is used in 12 CFR 1026.41(a)(1), serviced by the 

servicer and any affiliates as of January 1 for the remainder of that calendar year. However, 

to determine small servicer status under the nonprofit small servicer definition, a nonprofit 

servicer should be evaluated based on the mortgage loans serviced by the servicer (and not those 

serviced by associated nonprofit entities) as of January 1 for the remainder of the calendar year. 

A servicer that ceases to qualify as a small servicer will have six months from the time it 

41 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ceases to qualify or until the next January 1, whichever is later, to comply with any 

requirements from which the servicer is no longer exempt as a small servicer. 

 

 

 

As specified in 12 CFR 1026.41(e)(4)(iii), the following mortgage loans are not considered in 

determining whether a servicer qualifies as a small servicer: (a) mortgage loans voluntarily 

serviced by the servicer for a non-affiliate of the servicer and for which the servicer does not 

receive any compensation or fees; (b) reverse mortgage transactions; and (c) mortgage loans 

secured by consumers’ interests in timeshare plans; and (d) certain seller-financed transactions 

that meet the criteria identified in 12 CFR 1026.36(a)(5). 

Qualified lenders are those defined to be qualified lenders under the Farm Credit Act of 1971 and 

the Farm Credit Administration’s accompanying regulations set forth at 12 CFR 617.7000 et seq.

22 

Reasonable Policies and Procedures – 12 CFR 1024.38(a) 

Servicers must maintain policies and procedures reasonably designed to meet the objectives 

identified in 12 CFR 1024.38(b). Servicers may determine the specific policies and procedures 

they will adopt and the methods for implementing them in light of the size, nature, and scope of 

the servicers’ operations, including, for example, the volume and aggregate unpaid principal 

balance of mortgage loans serviced, the credit quality (including the default risk) of the mortgage 

loans serviced, and the servicer’s history of consumer complaints. “Procedures” refer to the 

servicer’s actual practices for achieving the objective. 

Objectives – 12 CFR 1024.38(b) 

Servicers are required to maintain policies and procedures that are reasonably designed to 

achieve the following objectives. 

1.	 Accessing and providing timely and accurate information. The servicer’s policies and 

procedures must be reasonably designed to ensure that the servicer can: 

a.	 Provide accurate and timely disclosures to the borrower. 

b.	 Investigate, respond to, and make corrections in response to borrowers’ complaints. 

These policies and procedures must be reasonably designed to ensure that the servicer 

can promptly obtain information from service providers to facilitate investigation and 

correction of errors resulting from actions of service providers. 

c.	 Provide a borrower with accurate and timely information and documents in response to 

the borrower’s request for information with respect to the borrower’s mortgage loan. 

d.	 Provide owners and assignees of mortgage loans with accurate information and 

documents about all the mortgage loans that they own. This includes information about a 

servicer’s evaluations of borrowers for loss mitigation options and a servicer’s loss 

mitigation agreements with borrowers, including loan modifications. Such information 

22 12 CFR 617.7000 defines a qualified lender as (i) a system institution (except a bank for cooperatives) that extends credit to a 

farmer, rancher, or producer or harvester of aquatic products for any agricultural or aquatic purpose and other credit needs of the 

borrower, and (ii) other financing institutions with respect to loans discounted or pledged under Section 1.7(b)(1)(B) of the Farm 

Credit Act. 

42 
 

 

 

 

o	 

o	 

includes, for example: (a) a loan modification’s date, terms, and features; (b) the 

components of any capitalized arrears; (c) the amount of any servicer advances; and (d) 

any assumptions regarding the value of property used in evaluating any loss mitigation 

options. 

e.	 Submit documents or filings required for a foreclosure process, including documents or 

filings required by a court, that reflect accurate and current information and that comply 

with applicable law. 

f.	 1. Upon notification of a borrower’s death, promptly identify and facilitate
 

communication with the borrower’s successor in interest concerning the secured 

property. (Effective until April 19, 2018).
 

2. Upon receiving notice of a borrower’s death or of any transfer of the secured property, 

promptly facilitate communication with any potential or confirmed successors in interest 

regarding the property. (Effective April 19, 2018). 

g.	 Upon receiving notice of the existence of a potential successor in interest, promptly 

determine the documents the servicer reasonably requires to confirm the person’s identity 

and ownership interest in the property (see commentary to 12 CFR 1024.38(b)(1)(vi) for 

illustrative examples) and promptly provide to the potential successor in interest a 

description of those documents and how the person may submit a written request under 

12 CFR 1024.36(i). (Effective April 19, 2018). 

h.	 Upon the receipt of such documents, promptly make a confirmation determination and 

promptly notify the person, as applicable, that the servicer has confirmed the person’s 

status, has determined that additional documents are required (and what those documents 

are), or has determined that the person is not a successor in interest. (Effective April 19, 

2018). 

2.	 Properly evaluating loss mitigation applications. The servicer’s policies and procedures must 

be reasonably designed to ensure that the servicer can: 

Provide accurate information regarding loss mitigation options available to the borrower 

from the owner or assignee of the borrower’s loan. 

Identify specifically all loss mitigation options available to a borrower from the owner or 

assignee of the borrower’s mortgage loan. This includes identifying, with respect to each 

owner or assignee all of the loss mitigation options the servicer may consider when 

evaluating a borrower, as well as the criteria the servicer should apply for each option. The 

policies and procedures should be reasonably designed to address how the servicer will 

apply any specific thresholds for eligibility for particular loss mitigation options 

established by an owner or assignee of a mortgage loan (e.g., if the owner requires that a 

particular option be limited to a certain percentage of loans, then the policies and 

procedures must be reasonably designed to determine in advance how the servicer will 

apply that threshold). The policies and procedures must be reasonably designed to ensure 

that such information is readily accessible to the servicer’s loss mitigation personnel. 

43 
 

 

 

 

 

 

 

 

o	 

o	 

o	 

o	 

o	 

o	 

o	 

o	 

o	 

Provide the loss mitigation personnel assigned to the borrower’s mortgage loan with 

prompt access to all of the documents and information that the borrower submitted in 

connection with a loss mitigation option. 

Identify the documents and information a borrower must submit to complete a loss 

mitigation application, and facilitate compliance with the notice required pursuant to 12 

CFR 1024.41(b)(2)(i)(B). 

In response to a complete loss mitigation application, properly evaluate the borrower for 

all eligible loss mitigation options pursuant to any requirements established by the owner 

or assignee of the mortgage loan, even if those requirements are otherwise beyond the 

requirements of 12 CFR 1024.41. For example, an owner or assignee may require that the 

servicer review a loss mitigation application submitted less than 37 days before a 

foreclosure sale or re-evaluate a borrower who has demonstrated a material change in 

financial circumstances. 

Promptly identify and obtain documents or information not in the borrower’s control that 

the servicer requires to determine which loss mitigation options, if any, to offer the 

borrower in accordance with the requirements of 12 CFR 1024.41(c)(4). 

3.	 Facilitating oversight of, and compliance by, service providers. The servicer’s policies and 

procedures must be reasonably designed to ensure that the servicer can: 

Provide appropriate personnel with access to accurate and current documents and
 

information concerning service providers’ actions.
 

Facilitate periodic reviews of service providers. 

Facilitate the sharing of accurate and current information regarding the status of any 

evaluation of a borrower’s loss mitigation application and any foreclosure proceeding 

among appropriate servicer personnel, including the loss mitigation personnel assigned the 

borrower’s mortgage loan, and appropriate service provider personnel, including service 

provider personnel responsible for handling foreclosure proceedings. 

Further, a servicer’s policies and procedures must be reasonably designed to 

ensure that servicer personnel promptly inform service provider personnel 

handling foreclosure proceedings that the servicer has received a complete loss 

mitigation application and promptly instruct foreclosure counsel to take any step 

required by 12 CFR 1024.41(g)—which generally sets forth limitations on 

moving for judgment or order of sale, or conducting a foreclosure sale— 

sufficiently timely to avoid violating the prohibition against moving for judgment 

or order of sale, or conducting a foreclosure sale. (Comment 38(b)(3)(iii)-1). 

4.	 Facilitating transfer of information during servicing transfers. 

Transferor Servicer. The servicer’s policies and procedures must be reasonably designed 

to ensure that when it transfers a mortgage loan to another servicer, it (i) timely and 

accurately transfers all information and documents in its possession and control related to 

a transferred mortgage loan to the transferee servicer, and (ii) transfers the information and 

44 
 

 

 

 

 

 

o	 

o	 

o	 

o	 

documents in a form and manner that ensures their accuracy and that allows the transferee 

to comply with the terms of the mortgage loan and applicable law. For example, where 

data is transferred electronically, a transferor servicer must have policies and procedures 

reasonably designed to ensure that data can be properly and promptly boarded by a 

transferee servicer’s electronic systems. The information that must be transferred includes 

information reflecting the current status of discussions with the borrower concerning loss 

mitigation options, any loss mitigation agreements entered into with the borrower, and 

analysis the servicer performed with respect to potential recovery from a non-performing 

mortgage loan. 

Transferee Servicer. The servicer’s policies and procedures must be reasonably designed 

to ensure that when it receives a mortgage loan from another servicer, it can (i) identify 

necessary documents or information that may not have been transferred, and (ii) obtain 

such documentation or information from the transferor servicer. The servicer’s policies 

and procedures must also be reasonably designed to address obtaining missing information 

regarding loss mitigation from the transferor servicer before attempting to obtain it from 

the borrower. For example, if a servicer receives information indicating that a borrower 

has made payments consistent with a trial or permanent loan modification but the servicer 

has not received information about the actual modification, the servicer must have policies 

and procedures reasonably designed to identify whether any such modification agreement 

exists and to obtain any such agreement from the transferor servicer. 

5.	 Informing borrowers of the written error resolution and information request procedures. 

The servicer must have policies and procedures reasonably designed to inform borrowers 

of the procedures for submitting written error notices under 12 CFR 1024.35 and written 

information requests under 12 CFR 1024.36. A servicer may comply with these 

requirements by informing borrowers of these procedures by notice (mailed or delivered 

electronically) or a website. For example, a servicer may comply with this provision by 

including a statement in the 12 CFR 1026.41 periodic statement advising borrowers that 

they have certain rights under federal law related to resolving errors and requesting 

information, that they may learn more about their rights by contacting the servicer, and 

directing borrowers to a website. 

A servicer’s policies and procedures also must be reasonably designed to ensure that the 

servicer provides borrowers who are dissatisfied with the servicer’s response to oral 

complaints or information requests with information about submitting a written error 

notice or written information request. 

The commentary addresses the circumstance in which a borrower incorrectly submits an 

error notice to any address given to the borrower in connection with the submission of a 

loss mitigation application or continuity of contact. A servicer’s policies and procedures 

must be reasonably designed to ensure that the servicer informs a borrower of the correct 

procedures for submitting written error notices under such circumstances, including the 

correct address. Alternatively, the servicer could redirect the error notice to the correct 

address. 

45 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Standard Requirements – 12 CFR 1024.38(c) 

Servicers must also retain certain records and maintain particular documents in a manner that 

facilitates compiling such documents and data into a servicing file. 

Record Retention – 12 CFR 1024.38(c)(1) 

Servicers must retain records that document any actions the servicer took with respect to a 

borrower’s mortgage loan account until one year after the loan is discharged or the servicer 

transfers servicing for the mortgage loan. Servicers may use any retention method that 

reproduces records accurately (such as computer programs) and that ensures that a servicer can 

access the records easily (such as a contractual right to access records another entity holds). 

Servicing File – 12 CFR 1024.38(c)(2) 

Servicers must maintain the following documents and data in a manner that facilitates compiling 

such documents and data into a servicing file within five days: a schedule of all credits and debits 

to the account (including escrow accounts and suspense accounts), a copy of the security 

instrument establishing the lien securing the mortgage, any notes created by servicer personnel 

concerning communications with the borrower, a report of the data fields created by the servicer’s 

electronic systems relating to the borrower’s account (if applicable), and copies of any information 

or documents provided by the borrower in connection with error notices or loss mitigation. 

For purposes of this section, a report of data fields relating to a borrower’s account means a 

report listing the relevant data fields by name, populated with any specific data relating to the 

borrower’s account. Examples of such data fields include fields used to identify the terms of the 

borrower’s mortgage loan, the occurrence of automated or manual collection calls, the evaluation 

of borrower for a loss mitigation option, the owner or assignee of a mortgage loan, and any credit 

reporting history. 

These requirements apply only to information created on or after January 10, 2014. 

Early Intervention Requirements for Certain Borrowers – 

12 CFR 1024.39 

Servicers must engage in certain efforts to contact delinquent borrowers. These requirements 

apply to only those mortgage loans, as that term is defined in 12 CFR 1024.31, that are secured 

by the borrower’s principal residence. The requirements do not apply to (i) small servicers, (ii) 

reverse mortgage transactions, as that term is defined in 12 CFR 1024.31, or (iii) mortgage loans 

for which the servicer is a qualified lender. 

As noted above, an institution qualifies as a small servicer under 12 CFR 1026.41(e)(4)(iii) if 

it (a) services, together with any affiliates, 5,000 or fewer mortgage loans, for all of which 

the institution (or an affiliate) is the creditor or assignee, (b) is a Housing Finance Agency, as 

defined in 24 CFR 266.5, or (c) is a nonprofit entity (defined in 12 CFR 1026.41(e)(4)(ii)(C)(1)) 

that services 5,000 or fewer mortgage loans, including any mortgage loans serviced on behalf of 

associated nonprofit entities (defined in 12 CFR 1026.41(e)(4)(ii)(C)(2)), for all of which the 

servicer or an associated nonprofit entity is the creditor. 

46 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The determination as to whether a servicer qualifies as a small servicer is generally made 

based on the mortgage loans, as that term is used in 12 CFR 1026.41(a)(1), serviced by the 

servicer and any affiliates as of January 1 for the remainder of that calendar year. However, 

to determine small servicer status under the nonprofit small servicer definition, a nonprofit 

servicer should be evaluated based on the mortgage loans serviced by the servicer (and not those 

serviced by associated nonprofit entities) as of January 1 for the remainder of the calendar year. 

A servicer that ceases to qualify as a small servicer will have six months from the time it 

ceases to qualify or until the next January 1, whichever is later, to comply with any 

requirements from which the servicer is no longer exempt as a small servicer. 

As specified in 12 CFR 1026.41(e)(4)(iii), the following mortgage loans are not considered in 

determining whether a servicer qualifies as a small servicer: (a) mortgage loans voluntarily 

serviced by the servicer for a non-affiliate of the servicer and for which the servicer does not 

receive any compensation or fees; (b) reverse mortgage transactions; and (c) mortgage loans 

secured by consumers’ interests in timeshare plans; and (d) certain seller-financed transactions 

that meet the criteria identified in 12 CFR 1026.36(a)(5). 

Qualified lenders are those defined to be qualified lenders under the Farm Credit Act of 1971 and 

the Farm Credit Administration’s accompanying regulations set forth at 12 CFR 617.7000 et seq. 

For purposes of this section, a borrower who is performing under a loss mitigation agreement is 

not considered delinquent and is not covered by this section. 

Live Contact – 12 CFR 1024.39(a) 

Servicers must make good faith efforts to establish live contact with a borrower no later than the 

36th day of delinquency. The servicer’s live contact requirement is continuous so long as the 

borrower remains delinquent. 

Under 12 CFR 1024.31, “delinquency” for Subpart C’s provisions means a period of time during 

which a borrower and a borrower's mortgage loan obligation are delinquent. A borrower and a 

borrower's mortgage loan obligation are delinquent beginning on the date a periodic payment 

sufficient to cover principal, interest, and, if applicable, escrow becomes due and unpaid, until 

such time as no periodic payment is due and unpaid. See also the related commentary to 1024.31 

for more on the delinquency definition. Borrowers are not delinquent for purposes of early 

intervention requirements under 12 CFR 1024.39 if they are performing as agreed according to 

the terms of a loss mitigation plan designed to bring the borrower current on a previously missed 

payment, but they may be considered delinquent for other purposes under the servicing rules and 

may also become delinquent for purposes of early intervention requirements if and when they 

fail to make a payment required under such a plan. 

The commentary also states that good faith efforts to establish live contact consist of “reasonable 

steps, under the circumstances,” and these efforts “may include telephoning the borrower on 

more than one occasion or sending written or electronic communication encouraging the 

borrower to establish live contact with the servicer.” 

Promptly after establishing live contact, the servicer must inform the borrower of any loss 

mitigation options, if appropriate. It is within the servicer’s reasonable discretion to determine 

whether it is appropriate under the circumstances to inform a borrower of the availability of loss 

47 
 

 

 

 

 

 

 

 

 

 

 

 

 

mitigation options. Examples of a servicer making a reasonable determination include a servicer 

informing a borrower about loss mitigation options after the borrower notifies the servicer during 

live contact of a material adverse change in financial circumstances that is likely to cause a longterm delinquency for which loss mitigation options may be available, or a servicer not providing 

information about loss mitigation options to a borrower who has missed a January 1 payment and 

notified the servicer that the full late payment will be transmitted to the servicer by February 15. 

If the servicer has established and is maintaining ongoing contact with the borrower under the 

loss mitigation procedures in 12 CFR 1024.41, including during the borrower’s completion of a 

loss mitigation application or the servicer’s evaluation of the borrower’s complete loss mitigation 

application, or if the servicer has sent the borrower a notice pursuant to 12 CFR 1024.41(c)(1)(ii) 

that the borrower is not eligible for any loss mitigation options, the servicer complies with its 

live contact requirements under 12 CFR 1024.39(a) and need not otherwise establish or make 

good faith efforts to establish live contact. A servicer must resume compliance with the live 

contact requirements for a borrower who becomes delinquent again after curing a prior 

delinquency. (Comment 39(a)-6). 

Written Notice – 12 CFR 1024.39(b) 

Servicers must send a borrower a written notice within 45 days after the borrower becomes 

delinquent and again no later than 45 days after each payment due date so long as the borrower 

remains delinquent. The written notice must encourage the borrower to contact the servicer, 

provide the servicer’s telephone number and address to access assigned loss mitigation 

personnel, describe examples of loss mitigation options that may be available (if applicable), 

provide loss mitigation application instructions or advise how to obtain more information about 

loss mitigation options such as contacting the servicer (if applicable), and list either the CFPB’s 

or HUD’s website to access a list of homeownership counselors or counseling organization and 

HUD’s toll-free number to access homeownership counselors or counseling organizations. 

Appendix MS-4 contains model clauses at MS-4(A), MS-4(B), MS-4(C), and MS-4(D) that 

servicers subject to the FDCPA can use to comply with a new disclosure requirement for the 

written notice, as discussed more below. 

A servicer is not required to provide the written notice under this section to a borrower more than 

once in any 180-day period. For example, a servicer who provided the written notice to the 

borrower within 45 days after the borrower became delinquent on January 1 would not be 

required to send another written notice if the borrower failed to make the February 1 payment. If 

a borrower is 45 days or more delinquent at the end of any 180-day period after the servicer has 

provided the written notice, a servicer must provide the written notice again no later than 180 

days after the provision of the prior written notice. If the borrower is less than 45 days delinquent 

at the end of that period, a servicer must provide the notice again no later than 45 days after the 

payment due date for which the borrower remains delinquent. 

A transferee servicer is required to provide the written notice to the borrower regardless of 

whether the transferor servicer provided a written notice in the preceding 180-day period. 

However, a transferee servicer is not required to provide a written notice if the transferor servicer 

provided one within 45 days of the transfer date. For example, assume a borrower has monthly 

payments, with a payment due on March 1. The transferor servicer provides the notice required 

48 
 

 

 

 

 

 

 

 

 

 

 

 

o	 

o	 

o	 

o	 

o	 

by 12 CFR 1024.39(b) on April 10. The loan is transferred on April 12. Assuming the borrower 

remains delinquent, the transferee servicer is not required to provide another written notice until 

45 days after May 1, the first post-transfer payment due date—i.e., by June 15. (Comment 

39(b)(1)-5). 

Borrowers in bankruptcy – 12 CFR 1024.39(c)) 

Partial Exemption 

Servicers are exempt from complying with the live contact obligations under 12 CFR 1024.39(a) 

while any borrower on a mortgage loan is a debtor in bankruptcy under Title 11 of the United 

States Code, with regard to that mortgage loan. Servicers are also exempt from providing the 

written notice under 12 CFR 1024.39(b) while any borrower on a mortgage loan is a debtor in 

bankruptcy under Title 11 of the United States Code, with regard to that mortgage loan, if no loss 

mitigation option is available or if any borrower on the mortgage loan has provided a cease 

communication notice under the FDCPA with respect to that mortgage loan (and the servicer is 

subject to the FDCPA for that loan). 

If the above conditions relating to the written notice exemption are not met, and any borrower on 

the mortgage loan is a debtor in bankruptcy, then the servicer must comply with modified 

written notice requirements under 12 CFR 1024.39(b): 

•	 Content: 

The notice may not contain a request for payment. 

•	 Timing: 

If a borrower is delinquent when the borrower becomes a debtor in bankruptcy, the 

servicer must provide the written notice not later than the 45th day after the borrower files 

a bankruptcy petition under Title 11 of the United States Code. 

However, if the borrower is not delinquent at the time of the bankruptcy petition filing, but 

subsequently becomes delinquent while a debtor in bankruptcy, the servicer must provide 

the written notice not later than the 45th day of the borrower’s delinquency. 

A servicer must comply with these timing requirements regardless of whether the servicer 

provided the written notice in the preceding 180-day period. 

A servicer is not required to provide the written notice more than once during a single 

bankruptcy case. 

Resuming Compliance 

A servicer that was exempt from the live contact and written early intervention notice 

requirements must resume compliance with such requirements after the next payment due date 

that follows the earliest of the following events: 

•	 The bankruptcy case is dismissed, 

49 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

o	 

o	 

o	 

•	 The bankruptcy case is closed, and 

•	 The borrower reaffirms personal liability for the mortgage loan. 

A servicer is not required to resume compliance with the live contact requirements with respect 

to a mortgage loan for which the borrower has discharged personal liability pursuant to Sections 

727, 1141, 1228, or 1328 of Title 11 of the United States Code, but must resume compliance 

with the written notice requirement if the borrower has made any partial or periodic payment on 

the mortgage loan after the commencement of the borrower’s bankruptcy case. 

Fair Debt Collections Practices Act Partial Exemption – 12 CFR 

1024.39(d) 

If a mortgage servicer is a debt collector under the FDCPA with regard to a borrower’s mortgage 

loan, 12 CFR 1024.39(d) clarifies the servicer’s early intervention obligations when that 

borrower has invoked cease communication protections by providing a notification pursuant to 

Section 805(c) of the FDCPA. 

For such borrowers invoking their FDCPA cease communication protections, servicers are 

exempt from the live contact requirements under 12 CFR 1024.39(a). 

Servicers are also exempt from the written notice requirements under 12 CFR 1024.39(b) when 

such a borrower on the loan has invoked the FDCPA cease communication protections and either 

of the following applies: (1) no loss mitigation option is available or (2) any borrower on the 

mortgage loan is a debtor in bankruptcy under Title 11 of the United States Code. However, 

servicers are required to comply with modified written notice requirements if the borrower has 

invoked FDCPA cease communication protections and these conditions are not met (e.g., a loss 

mitigation option is available or no borrower on that loan is a debtor in bankruptcy): 

•	 Content: 

The modified written notice must include a statement that the servicer may or intends to 

invoke its remedy of foreclosure. 

The written notice, however, may not contain a request for payment. 

Servicers subject to the FDCPA can use MS-4(D) to comply with a new disclosure requirement 

for the written notice. 

•	 Timing: 

A servicer is prohibited from providing the written notice more than once during any 180­

day period. If a borrower is 45 days or more delinquent at the end of any 180-day period 

after the servicer has provided the written notice, a servicer must provide the written 

notice again no later than 190 days after the provision of the prior written notice. If a 

borrower is less than 45 days delinquent at the end of any 180-day period after the servicer 

has provided the written notice, a servicer must provide the written notice again no later 

50 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

than 45 days after the payment due date for which the borrower remains delinquent or 190 

days after the provision of the prior written notice, whichever is later.23 

Further, such servicers do not violate FDCPA Section 805(c) with respect to the mortgage loan 

when providing the written early intervention notice required by 12 CFR 1024.39(b)(3), as 

modified by 12 CFR 1024.39(d)(3), to a borrower who has invoked the cease communication 

rights.24 Nor does a servicer violate FDCPA Section 805(c) by providing loss mitigation 

information or assistance in response to a borrower-initiated communication after the borrower 

has invoked the cease communication rights.25 A servicer subject to the FDCPA, however, must 

continue to comply with all other applicable provisions of the FDCPA, including restrictions on 

communications and prohibitions on harassment or abuse, false or misleading representations, 

and unfair practices.26 

Continuity of Contact – 12 CFR 1024.40 

Servicers must maintain policies and procedures to facilitate continuity of contact between the 

borrower and the servicer. 

These requirements apply to only those mortgage loans, as that term is defined in 12 CFR 

1024.31, that are secured by the borrower’s principal residence. The requirements do not apply 

to (i) small servicers, (ii) reverse mortgage transactions, as that term is defined in 12 CFR 

1024.31, or (iii) mortgage loans for which the servicer is a qualified lender. 

As noted above, an institution qualifies as a small servicer if it (a) services, together with any 

affiliates, 5,000 or fewer mortgage loans, for all of which the institution (or an affiliate) is 

the creditor or assignee, (b) is a Housing Finance Agency, as defined in 24 CFR 266.5, or (c) is 

a nonprofit entity (defined in 12 CFR 1026.41(e)(4)(ii)(C)(1)) that services 5,000 or fewer 

mortgage loans, including any mortgage loans serviced on behalf of associated nonprofit entities 

(defined in 12 CFR 1026.41(e)(4)(ii)(C)(2)), for all of which the servicer or an associated 

nonprofit entity is the creditor. The determination as to whether a servicer qualifies as a small 

servicer is generally made based on the mortgage loans, as that term is used in 12 CFR 

1026.41(a)(1), serviced by the servicer and any affiliates as of January 1 for the remainder 

of that calendar year. However, to determine small servicer status under the nonprofit small 

servicer definition, a nonprofit servicer should be evaluated based on the mortgage loans 

serviced by the servicer (and not those serviced by associated nonprofit entities) as of January 1 

for the remainder of the calendar year. A servicer that ceases to qualify as a small servicer will 

have six months from the time it ceases to qualify or until the next January 1, whichever is 

later, to comply with any requirements from which the servicer is no longer exempt as a small 

servicer. 

As specified in 12 CFR 1026.41(e)(4)(iii), the following mortgage loans are not considered in 

determining whether a servicer qualifies as a small servicer: (a) mortgage loans voluntarily 

23 See Interim Final Rule, 82 Fed. Reg. 47953, 47957-58 (October 16, 2017).
 24 Comment 39(d)-2. See also 2016 FDCPA Interpretive Rule (81 Fed. Reg. 71977, 71979-80).
 25 Comment 39(d)-2. See also 2016 FDCPA Interpretive Rule (81 Fed. Reg. 71977, 71980-81).
 26 See 15 U.S.C. §§ 1692c through 1692f.
 

51 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

serviced by the servicer for a non-affiliate of the servicer and for which the servicer does not 

receive any compensation or fees; (b) reverse mortgage transactions; and (c) mortgage loans 

secured by consumers’ interests in timeshare plans; and (d) certain seller-financed transactions 

that meet the criteria identified in 12 CFR 1026.36(a)(5). 

Qualified lenders are those defined to be qualified lenders under the Farm Credit Act of 1971 and 

the Farm Credit Administration’s accompanying regulations set forth at 12 CFR 617.7000 et seq. 

General Continuity of Contact Policies and Procedures – 12 CFR 

1024.40(a) 

Servicers must have policies and procedures that are reasonably designed to assign personnel 

(one or more persons) to a delinquent borrower at the time the servicer provides the borrower 

with the written notice required under 12 CFR 1024.39(b), and in any event, not later than the 

45th day of the borrower’s delinquency. The assigned personnel should be available by 

telephone to answer the borrower’s questions and assist the borrower with available loss 

mitigation options until the borrower makes two consecutive timely payments under a permanent 

loss mitigation agreement. If the borrower contacts the assigned personnel and does not receive 

an immediate live response, the servicer must have policies and procedures reasonably designed 

to ensure the servicer can provide a live response in a timely manner. 

Functions of Servicer Personnel – 12 CFR 1024.40(b) 

The servicer must also maintain policies and procedures reasonably designed to ensure that the 

assigned personnel can perform certain functions, including: providing the borrower with 

accurate information about (1) loss mitigation options available to the borrower from the owner 

or assignee of the borrower’s loan, (2) actions the borrower must take to be evaluated for such 

options, including the steps the borrower needs to take to submit a complete loss mitigation 

application and appeal a denial of a loan modification option (if applicable), (3) the status of any 

loss mitigation application the borrower has submitted, (4) the circumstances under which the 

servicer may refer the borrower’s account to foreclosure, and (5) any loss mitigation deadlines. 

The servicer must also have policies and procedures reasonably designed to ensure that assigned 

personnel are able to (1) timely retrieve a complete record of the borrower’s payment history and 

all written information the borrower has provided to the servicer (or prior servicers) in 

connection with a loss mitigation application, (2) provide these documents to other people 

required to evaluate the borrower for loss mitigation options, if applicable, and (3) provide the 

borrower with information about submitting an error notice or information request under 12 CFR 

1024.35 or 12 CFR 1024.36. 

Loss Mitigation Procedures – 12 CFR 1024.41 

Servicers must comply with certain loss mitigation procedures. The procedures differ depending 

on how far in advance of foreclosure a borrower submits a loss mitigation application. 

Regulation X does not impose a duty on a servicer to provide any borrower with any specific 

loss mitigation option. 

52 
 

 

 

 

 

 

 

The requirements set forth in 12 CFR 1024.41 apply to only those mortgage loans, as that term is 

defined in 12 CFR 1024.31, that are secured by the borrower’s principal residence. Except as 

noted below in 12 CFR 1024.41(j), the requirements do not apply to (i) small servicers, (ii) 

reverse mortgage transactions, as that term is defined in 12 CFR 1024.31, or (iii) mortgage loans 

for which the servicer is a qualified lender. 

As noted above, an institution qualifies as a small servicer if it (a) services, together with any 

affiliates, 5,000 or fewer mortgage loans, for all of which the institution (or an affiliate) is 

the creditor or assignee, (b) is a Housing Finance Agency, as defined in 24 CFR 266.5 or (c) is 

a nonprofit entity (defined in 12 CFR 1026.41(e)(4)(ii)(C)(1)) that services 5,000 or fewer 

mortgage loans, including any mortgage loans serviced on behalf of associated nonprofit entities 

(defined in 12 CFR 1026.41(e)(4)(ii)(C)(2)), for all of which the servicer or an associated 

nonprofit entity is the creditor. The determination as to whether a servicer qualifies as a small 

servicer is generally made based on the mortgage loans, as that term is used in 12 CFR 

1026.41(a)(1), serviced by the servicer and any affiliates as of January 1 for the remainder 

of that calendar year. However, to determine small servicer status under the nonprofit small 

servicer definition, a nonprofit servicer should be evaluated based on the mortgage loans 

serviced by the servicer (and not those serviced by associated nonprofit entities) as of January 1 

for the remainder of the calendar year. A servicer that ceases to qualify as a small servicer will 

have six months from the time it ceases to qualify or until the next January 1, whichever is 

later, to comply with any requirements from which the servicer is no longer exempt as a small 

servicer. 

As specified in12 CFR 1026.41(e)(4)(iii), the following mortgage loans are not considered in 

determining whether a servicer qualifies as a small servicer: (a) mortgage loans voluntarily 

serviced by the servicer for a non-affiliate of the servicer and for which the servicer does not 

receive any compensation or fees; (b) reverse mortgage transactions; and (c) mortgage loans 

secured by consumers’ interests in timeshare plans; and (d) certain seller-financed transactions 

that meet the criteria identified in 12 CFR 1026.36(a)(5). 

Qualified lenders are those defined to be qualified lenders under the Farm Credit Act of 1971 and 

the Farm Credit Administration’s accompanying regulations set forth at 12 CFR 617.7000 et seq. 

The CFPB issued an interpretive rule clarifying, among other things, that when a servicer that is 

a debt collector under the FDCPA with respect to a borrower’s mortgage loan responds to a 

borrower-initiated communication concerning loss mitigation after the borrower’s invocation of 

FDCPA Section 805(c)’s cease communication protections with regard to that loan, the servicer 

does not violate FDCPA Section 805(c) with respect to such communications as long as the 

servicer’s response is limited to a discussion of any potentially available loss mitigation option.27 

Only if the borrower provides a communication to the servicer specifically withdrawing the 

request for loss mitigation does the cease communication prohibition apply to communicating 

about the specific loss mitigation action. 

27 See 2016 FDCPA Interpretive Rule (81 Fed. Reg. 71977, 71980-81). See also Comment 39(d)-2. 

53 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Receipt of a Loss Mitigation Application – 12 CFR 1024.41(b) 

A servicer that receives a loss mitigation application at least 45 days before a foreclosure sale 

must take two steps. First, the servicer must promptly review the application to determine if it is 

complete. Second, the servicer must notify the borrower in writing within five days (excluding 

legal public holidays, Saturdays, and Sundays) that, among other things, it has received the 

application and state whether it is complete or incomplete. 

A loss mitigation application includes an oral or written request by the borrower where the 

borrower expresses an interest in applying for a loss mitigation option and provides information 

a servicer would evaluate in connection with a loss mitigation application. A loss mitigation 

application is considered expansively and includes any “prequalification” for a loss mitigation 

option. For example, if a borrower requests that a servicer determine whether the borrower is 

“prequalified” for a loss mitigation program by evaluating the borrower against preliminary 

criteria to determine eligibility for a loss mitigation option, the request constitutes a loss 

mitigation application. A loss mitigation application does not include oral inquiries about loss 

mitigation options where the borrower does not provide any information that the servicer would 

use to evaluate an application, including where the borrower requests information only about the 

application process but does not provide any information to the servicer. 

Complete Loss Mitigation Application – 12 CFR 1024.41(b)(1) 

An application is complete when it contains all the information the servicer requires from the 

borrower to evaluate an application for loss mitigation options. (12 CFR 1024.41(b)(1)). Upon 

receiving an application that is not complete, a servicer is generally required to exercise 

reasonable diligence28 in obtaining documents and information to complete the application. A 

servicer has flexibility to establish its own application requirements, but, with certain exceptions, 

a servicer is generally prohibited from offering a loss mitigation based on an evaluation of any 

information provided by a borrower in connection with an incomplete loss mitigation 

application. 

Review of Loss Mitigation Application Submission – 12 CFR 1024.41(b)(2) 

As stated above, if the servicer receives a loss mitigation application 45 days or more before a 

foreclosure sale, the servicer must notify the borrower in writing within five days (excluding legal 

public holidays, Saturdays, and Sundays) that it has received the application and state whether it is 

complete or incomplete. If the application is incomplete, the notice must advise (i) what additional 

documents or information are needed, and (ii) a reasonable date by which the borrower must 

submit them. 

Generally, 30 days from the date the servicer provides the written notice is a “reasonable date.” 

(Comment 41(b)(2)(ii)-1). Furthermore, the reasonable date must be no later than the earliest of: 

•	 The date by which any document or information submitted by a borrower will be considered 

stale or invalid pursuant to any requirements applicable to any loss mitigation option 

available to the borrower, 

28 See Comment 41(b)(1)-4 for examples of what constitutes reasonable diligence. 

54 
 

 

 

 

 

 

 

• The date that is the 120th day of the borrower’s delinquency, 

• The date that is 90 days before a foreclosure sale, 

• The date that is 38 days before a foreclosure sale. 

(Comment 41(b)(2)(ii)-2). 

A reasonable date, however, must never be less than seven days from the date on which the 

servicer provides the written notice. (Comment 41(b)(2)(ii)-3). 

As explained above, servicers must exercise reasonable diligence in obtaining documents and 

information to complete an incomplete loss mitigation application (e.g., promptly contacting the 

borrower to obtain missing information or determining whether information exists in the servicer’s 

files already that may provide the information missing from the borrower’s application). (12 CFR 

1024.41(b)(1)). 

In the course of gathering documents and information from a borrower to complete a loss 

mitigation application, a servicer may stop collecting documents and information for a particular 

loss mitigation option after receiving information confirming that, pursuant to any requirements 

established by the owner or assignee of the borrower’s mortgage loan, the borrower is ineligible 

for that option. A servicer may not stop collecting documents and information for any loss 

mitigation option based solely upon the borrower’s stated preference. The servicer, however, 

may stop collecting documents and information for any loss mitigation option based on the 

borrower’s stated preference in conjunction with other information, as prescribed by any 

requirements established by the owner or assignee. A servicer must continue to exercise 

reasonable diligence to obtain documents and information from the borrower that the servicer 

requires to evaluate the borrower as to all other loss mitigation options available to the borrower. 

(Comment 41(b)(1)-1). 

For example, assume applicable requirements established by the owner or assignee provide that a 

borrower is not eligible for home retention options if the borrower states a preference for a short 

sale and provides evidence of another applicable hardship, such as military Permanent Change of 

Station orders or a specified employment transfer more than 50 miles away. If the borrower 

indicates a preference for a short sale, the servicer may not stop collecting documents and 

information pertaining to available home retention options solely because the borrower has 

indicated the preference. The servicer, however, may stop collecting such documents and 

information once it receives information confirming that the borrower meets the applicable 

hardship standards. 

If a servicer has informed a borrower that the application was complete (or identified particular 

information needed to complete the application), and the servicer subsequently determines that 

additional information or corrected documents are required, the servicer must promptly request 

such information or documents from the borrower and treat the application as complete under 

12 CFR 1024.41(f)(2) and (g) until the borrower is given a reasonable opportunity to complete 

the application. 

55 
 

 

 

 

 

 

 

 

 

 

 

 

 

Calculating Time Periods and Determining Protections – 12 CFR 

1024.41(b)(3) 

12 CFR 1024.41 provides borrowers certain protections depending on whether the servicer 

received a complete loss mitigation application at least a specified number of days before a 

foreclosure sale. See, e.g., 12 CFR 1024.41(c)(1) (37 days); 12 CFR 1024.41(e) and (h) (90 

days). These time periods are calculated as of the date the servicer receives a complete loss 

mitigation application. Thus, scheduling or rescheduling a foreclosure sale after the servicer 

receives the complete loss mitigation application will not affect the borrower’s protections. 

If no foreclosure sale is scheduled as of the date the servicer receives a complete loss mitigation 

application, the application is considered received more than 90 days before a foreclosure sale. 

Evaluation of a Loss Mitigation Application – 12 CFR 1024.41(c) 

Evaluation of a Timely Complete Loss Mitigation Application 

– 12 CFR 1024.41(c)(1) 

A servicer that receives a complete loss mitigation application more than 37 days before a 

foreclosure sale must take two steps within 30 days: 

•	 First, the servicer must evaluate the borrower for all loss mitigation options available to the 

borrower from the owner or investor of the borrower’s mortgage loan. The criteria on which 

a servicer offers or does not offer a loss mitigation option need not meet any particular 

standard. Nonetheless, a servicer’s failure to follow requirements imposed by an owner or 

investor may demonstrate the servicer’s failure to comply with the 12 CFR 1024.38(b)(2)(v) 

requirement that the servicer must maintain policies and procedures that are reasonably 

designed to ensure that the servicer can properly evaluate a borrower for all loss mitigation 

options for which the borrower may be eligible pursuant to any requirements established by 

the mortgage loan’s owner or assignee; and 

•	 Second, the servicer must provide the borrower with a written notice stating which loss 

mitigation options, if any, the servicer will offer to the borrower. The notice must state the 

amount of time the borrower has to accept or reject an offered loss mitigation option pursuant 

to 12 CFR 1024.41(e), and, if applicable, that the borrower has the right to appeal a denial of 

a loan modification option as well as the time period and any requirements for making an 

appeal pursuant to 12 CFR 1024.41(h). 

Evaluation of Incomplete Loss Mitigation Application – 12 CFR 

1024.41(c)(2)(i)-(iii) 

With limited exceptions, a servicer may not offer a loss mitigation option based on an evaluation 

of an incomplete application. 

1.	 Offers permitted if not based on an evaluation of an incomplete application. Regulation X 

does not prohibit a servicer from offering loss mitigation options to a borrower who has not 

submitted a loss mitigation application. Further, nothing prohibits a servicer from offering a 

loss mitigation option to a borrower who has submitted an incomplete loss mitigation 

56 
 

 

application where the offer of the loss mitigation option is not based on any evaluation of 

information submitted by the borrower in connection with such application. 

2.	 Reasonable Time Exception. If the servicer has exercised reasonable diligence in obtaining 

documents and information to complete the application but the application still remains 

incomplete for a significant period of time without further progress by the borrower, the 

servicer may evaluate an incomplete application and offer the borrower a loss mitigation 

option. What qualifies as a significant period of time may depend on the timing of the 

foreclosure process. For example, 15 days may be a more significant period of time if the 

borrower is less than 50 days before a foreclosure sale than if the borrower is less than 120 

days delinquent. The requirements in 12 CFR 1024.41 do not apply to this evaluation, and it 

is not considered an evaluation of a complete loss mitigation application for purposes of 

determining whether a request for a loss mitigation evaluation is duplicative under 12 CFR 

1024.41(i). 

3.	 Short-Term Loss Mitigation Options Exception. A servicer may offer a short-term payment 

forbearance program or a short-term repayment plan to a borrower based upon an evaluation 

of an incomplete loss mitigation application. Promptly after offering a payment forbearance 

program or a repayment plan, unless the borrower has rejected the offer, the servicer must 

provide the borrower a written notice stating: 

•	 The specific payment terms and duration of the program or plan, 

•	 That the servicer offered the program or plan based on an evaluation of an incomplete 

application, 

•	 That other loss mitigation options may be available, and 

•	 That the borrower has the option to submit a complete loss mitigation application to 

receive an evaluation for all loss mitigation options available to the borrower regardless 

of whether the borrower accepts the program or plan. 

If the borrower is performing pursuant to the terms of a forbearance program or repayment plan 

offered under this provision, a servicer may not make the first notice or filing required by 

applicable law for any judicial or non-judicial foreclosure process, and it may not move for 

foreclosure judgment or an order of sale or conduct a foreclosure sale. A servicer may also offer 

a short-term payment forbearance program in conjunction with a short-term repayment plan. 

A servicer must comply with the remaining loss mitigation requirements in 12 CFR 1024.41 with 

respect to the incomplete application, such as the requirement in 12 CFR 1024.41(b)(2) to review 

the application to determine if it is complete, the requirement in 12 CFR 1024.41(b)(1) to 

exercise reasonable diligence in obtaining documents and information to complete a loss 

mitigation application, and the requirement in 12 CFR 1024.41(b)(2)(i)(B) to provide the 

borrower with written notice that the servicer acknowledges the receipt of the application and has 

determined that the application is incomplete. (Comment 41(c)(2)(iii)-2). 

For instance, a servicer must exercise reasonable diligence as clarified in part in Comment 

41(b)(1)-4.iii. The comment states that, if a borrower is complying with a short-term payment 

forbearance program or short-term repayment plan and the borrower does not request further 

57 
 

 

 

assistance, the servicer may suspend reasonable diligence efforts until near the end of the 

program or plan. However, if the borrower fails to comply with the short-term loss mitigation 

option or requests further assistance, the servicer must immediately resume reasonable diligence 

efforts. Additionally, near the end of a short-term payment forbearance program, and prior to the 

end of the forbearance period, if the borrower remains delinquent, a servicer must contact the 

borrower to determine if the borrower wishes to complete the loss mitigation application and 

proceed with a full loss mitigation evaluation. (Comment 41(b)(1)-4.iii). 

If the borrower completes the loss mitigation application, the servicer must comply with all of 

the loss mitigation procedure requirements in 12 CFR 1024.41 even if the servicer has offered a 

short-term payment forbearance program or short-term repayment plan based on an evaluation of 

an incomplete application. (Comment 41(c)(2)(iii)-3). 

Facially Complete Applications – 12 CFR 1024.41(c)(2)(iv) 

A loss mitigation application is facially complete when (i) the servicer’s initial notice under 12 

CFR 1024.41(b) advised the borrower that the application was complete, (ii) the servicer’s initial 

notice under 12 CFR 1024.41(b) requested additional information from the borrower to complete 

the application and the borrower submits such additional information, or (iii) the servicer is 

required to provide the borrower a written notice of a complete application under 12 CFR 

1024.41(c)(3)(i). 

If the servicer later discovers that additional information or corrections to a previously submitted 

document are required to complete the facially complete application, the servicer must promptly 

request the missing information or corrected documents and treat the application as complete for 

purposes of 12 CFR 1024.41(f)(2) and (g) until the borrower is given a reasonable opportunity to 

complete the application. A reasonable opportunity depends on the particular facts and 

circumstances, but must provide the borrower sufficient time to gather the necessary information 

and documents. 

If the borrower completes the application within this period, the application is considered 

complete as of the date it was actually complete for purposes of 12 CFR 1024.41(c), and the 

application is considered complete as of the date it was facially complete for purposes of 12 CFR 

1024.41(d), (e), (f)(2), (g), and (h). 

If the borrower does not complete the application within this period, the application is 

considered incomplete. 

Notice of Complete Application – 12 CFR 1024.41(c)(3) 

Within five days (excluding legal public holidays, Saturdays, and Sundays) after receiving the 

borrower’s complete loss mitigation application, the servicer shall provide the borrower a written 

notice setting forth the following information: 

• That the loss mitigation application is complete; 

• The date the servicer received the complete application; 

58 
 

 

 

 

 

 

 

 

o	 

o	 

•	 That the servicer expects to complete its evaluation within 30 days of the date it received the 

complete application; 

•	 That the borrower is entitled to certain foreclosure protections because the servicer has 

received the complete application, and, as applicable, either: 

If the servicer has not made the first foreclosure notice or filing required by applicable 

law, that the servicer cannot make the first notice or filing to commence a foreclosure 

before evaluating the borrower’s complete application; or 

If the servicer has made the first foreclosure notice or filing, that the servicer has begun 

the foreclosure process and that the servicer cannot conduct a foreclosure sale before 

evaluating the borrower’s complete application. 

•	 That the servicer may need additional information at a later date; and 

•	 That the borrower may be entitled to additional protections under state or federal law. 

A servicer is not required, however, to provide a notice of complete application if: 

•	 The servicer has already provided the borrower a notice under 12 CFR 1024.41(b)(2)(i)(B) 

informing the borrower the application is complete and the servicer has not requested any 

additional information; 

•	 The application was not complete more than 37 days before a foreclosure sale; or 

•	 The servicer has already provided the borrower a notice regarding its determination of the 

borrower’s application under 12 CFR 1024.41(c)(1)(ii). 

Information not in the Borrower’s Control – 12 CFR 1024.41(c)(4) 

If a servicer requires documents or information not in the borrower’s control to determine which 

loss mitigation options, if any, it will offer to the borrower, the servicer must exercise reasonable 

diligence in obtaining such documents or information. A servicer must not deny a complete loss 

mitigation application solely because the servicer lacks required documents or information not in 

the borrower’s control, unless the servicer has been unable to obtain the documents and 

information for a significant period of time following the 30-day evaluation period provided 

under Section 1024.41(c)(1) and is unable to make a determination on the complete application. 

However, a servicer is permitted to offer a borrower a loss mitigation option, even if the servicer 

does not obtain the requested documents or information. 

The servicer lacking third-party information must provide the borrower a written notice under 12 

CFR 1024.41(c)(4)(ii)(B) informing the borrower: 

•	 That the servicer has not received the third-party documents or information that the servicer 

requires to determine which loss mitigation options, if any, it will offer to the borrower; 

•	 Of the specific documents or information that the servicer lacks; 

•	 That the servicer has requested such documents or information; and 

59 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

o	 

o	 

•	 That the servicer will complete its evaluation of the borrower for all available loss mitigation 

options promptly upon receiving the documents or information. 

If a servicer has exercised reasonable diligence to obtain the third-party information, but the 

servicer has been unable to do so for a significant period of time and cannot complete its 

determination without the required documents or information, the servicer may deny the 

application and provide the borrower with a written notice in accordance with 12 CFR 

1024.41(c)(1)(ii). In conjunction with such notice, the servicer must provide a copy of the 

written notice provided under 12 CFR 1024.41(c)(4)(ii)(B). 

Denial of any Loss Mitigation Option – 12 CFR 1024.41(d) 

If the servicer denies a loss mitigation application for any trial or permanent loan modification 

option, the notice provided to the borrower must also state the servicer’s specific reason or 

reasons for denying each trial or permanent loan modification option, and, if applicable, that the 

borrower was not evaluated on other criteria. Certain disclosures are required when a servicer 

denies an application for the following reasons or using the following procedures: 

•	 Investor criteria and use of a waterfall. 

If the servicer denies a loan modification option based upon investor criteria, the servicer 

must identify the owner or assignee of the mortgage loan and the specific criteria that the 

borrower failed to satisfy. 

When an owner or assignee has established an evaluation criteria that sets an order 

ranking for evaluation of loan modification options (commonly known as a “waterfall”) 

and a borrower has qualified for a particular loan modification option in the waterfall, it is 

sufficient for the servicer to inform the borrower, with respect to other loan modification 

options ranked below any such option offered to a borrower, that the investor’s 

requirements include the use of such a waterfall and that an offer of a loan modification 

option necessarily results in a denial for any other loan modification options below the 

option for which the borrower is eligible in the ranking. 

•	 Net present value calculation. If the denial was based upon a net present value calculation, 

the servicer must disclose the inputs used in the calculation. 

•	 Reasons listed. The following applies if the servicer uses a hierarchy of eligibility criteria 

and, after reaching the first criterion that causes a denial, does not evaluate whether the 

borrower would have satisfied the remaining criteria. In this instance, the servicer need only 

(i) provide the specific reason or reasons why the borrower was actually rejected, and (ii) 

notify the borrower that the borrower was not evaluated on other criteria. A servicer is not 

required to determine or disclose whether a borrower would have been denied based on other 

criteria if the servicer did not actually evaluate these additional criteria. 

Borrower Response – 12 CFR 1024.41(e) 

A servicer offering a loss mitigation option must provide the borrower with a minimum period of 

time to accept or reject the option, depending on when the servicer receives a complete 

application. If the application was complete 90 days or more before a foreclosure sale, the 

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servicer must give the borrower at least 14 days to decide. If it was complete fewer than 90 but 

more than 37 days before a foreclosure sale, the servicer must give the borrower at least seven 

days to decide. 

A borrower’s failure to respond on time can be treated as a rejection of the loss mitigation 

options, with two exceptions. First, a borrower who is offered a trial loan modification plan and 

submits payments that would have been owed under that plan before the deadline for accepting 

must be given a reasonable time to fulfill any remaining requirements of the servicer for 

acceptance of the trial loan modification plan. Second, a servicer must give a borrower who has a 

pending appeal until 14 days after the servicer provides notice of its determination regarding 

resolution of that appeal to decide whether to accept any offered loss mitigation option. 

Prohibition on Foreclosure Referral – 12 CFR 1024.41(f) 

A servicer cannot make the first foreclosure notice or filing for any judicial or non-judicial 

process until (i) the borrower is more than 120 days delinquent, (ii) the foreclosure is based on a 

borrower’s violation of a due-on-sale clause, or (iii) the servicer is joining a superior or 

subordinate lienholder’s foreclosure action. The commentary states that whether a document 

qualifies as the first notice or filing depends on the foreclosure process at issue: 

•	 Judicial foreclosure. Where foreclosure procedure requires a court action or proceeding, the 

first notice or filing is the earliest document required to be filed with a court or other judicial 

body to commence the action or proceeding. Depending on the particular foreclosure process, 

examples of these documents could be a complaint, petition, order to docket, or notice of 

hearing; 

•	 Non-judicial foreclosure – recording or publication requirement. Where foreclosure 

procedure does not require an action or court proceeding (such as under a power of sale), the 

first notice or filing is the earliest document required to be recorded or published to initiate 

the foreclosure process; or 

•	 Non-judicial foreclosure – no recording or publication requirement. Where foreclosure 

procedure does not require an action or court proceeding, and also does not require any 

document to be recorded or published, the first notice or filing is the earliest document that 

establishes, sets, or schedules a date for the foreclosure sale. 

The commentary further states that a document provided to the borrower but not initially 

required to be filed, recorded, or published is not considered the first notice or filing on the sole 

basis that the documents must later be included as an attachment accompanying another 

document that is required to be filed, recorded, or published to carry out a foreclosure. 

If a borrower submits a complete loss mitigation application before the 120th day of delinquency 

or before the servicer makes the first foreclosure notice or filing, then the servicer cannot make 

the first foreclosure notice or filing unless one of the following occurs: (i) the servicer sends a 

notice to the borrower stating that the borrower is ineligible for any loss mitigation option and if 

an appeal is available, either the borrower did not timely appeal, or the appeal has been denied; 

(ii) the borrower rejects all the offered loss mitigation options; or (iii) the borrower fails to 

perform under a loss mitigation agreement. 

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Prohibition on Foreclosure Sale – 12 CFR 1024.41(g) 

If a borrower submits a complete loss mitigation application after the servicer has made the first 

foreclosure notice or filing but more than 37 days before a foreclosure sale, the servicer cannot 

conduct a foreclosure sale or move for foreclosure judgment or order of sale. The servicer must 

instruct foreclosure counsel promptly not to make a dispositive motion for foreclosure judgment 

or order of sale; to avoid a ruling on the motion or issuance of an order of sale where such a 

dispositive motion is pending; and, where a sale is scheduled, to prevent conduct of a foreclosure 

sale, except as provided below. The servicer may move forward with those specific foreclosure 

proceedings (or need not instruct foreclosure counsel as provided above) if one of the following 

occurs: (i) the servicer sends a notice to the borrower stating that the borrower is ineligible for 

any loss mitigation option and the appeal process is inapplicable, the borrower did not timely 

appeal, or the appeal has been denied; (ii) the borrower rejects all the offered loss mitigation 

options; or (iii) the borrower fails to perform under a loss mitigation agreement. A servicer is not 

relieved of its obligations because foreclosure counsel’s actions or inaction caused a violation. 

Absent one of the specified circumstances, conduct of the sale violates the regulation, even if a 

person other than the servicer administers or conducts the foreclosure sale proceedings. 

Appeal Process – 12 CFR 1024.41(h) 

A borrower has the right to appeal a servicer’s denial of a loss mitigation application for any trial 

or permanent loan modification available to the borrower if the borrower submitted a complete 

application 90 days or more before a foreclosure sale (or during the pre-foreclosure period set 

forth in 12 CFR 1024.41(f)). The borrower must commence the appeal within 14 days after the 

servicer provides the notice stating the servicer’s determination of which loss mitigation options, 

if any, it will offer to the borrower. 

Within 30 days of the borrower making the appeal, the servicer must provide a notice to the 

borrower stating: (i) whether it will offer the borrower a loss mitigation option based on the 

appeal, and (ii) if applicable, how long the borrower has to accept or reject this loss mitigation 

option or a previously offered loss mitigation option. If the servicer offers a loss mitigation 

option after an appeal, the servicer must provide the borrower at least 14 days to decide whether 

to accept the offered loss mitigation option. 

The servicer’s personnel who evaluated the borrower’s application cannot also evaluate the 

appeal, although personnel who supervised the initial evaluation may evaluate the appeal so long 

as they were not directly involved in the initial evaluation. 

Duplicative Requests – 12 CFR 1024.41(i) 

A servicer must comply with these loss mitigation procedures for a borrower’s loss mitigation 

application, unless the servicer has previously complied with the loss mitigation requirements for 

a complete loss mitigation application submitted by the borrower and the borrower has been 

delinquent at all times since submitting the prior complete application. 

Thus, for example, if the borrower has previously submitted a complete loss mitigation 

application and the servicer complied fully with 12 CFR 1024.41 for that application, but the 

borrower then ceased to be delinquent and later became delinquent again, the servicer is required 

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o	 

o	 

o	 

to again comply with 12 CFR 1024.41 for any subsequent loss mitigation application submitted 

by the borrower. 

Small Servicer Requirements – 12 CFR 1024.41(j) 

Although small servicers are exempt from most of the policy-and-procedure requirements (12 

CFR 1024.38), continuity of contact requirements (12 CFR 1024.40), and loss mitigation 

requirements (12 CFR 1024.41) of Regulation X, certain provisions still apply to them. Small 

servicers cannot make the first foreclosure notice or filing required by any judicial or nonjudicial foreclosure process until (i) the borrower is more than 120 days delinquent, (ii) the 

foreclosure is based on a borrower’s violation of a due-on-sale clause, or (iii) the servicer is 

joining a superior or subordinate lienholder’s foreclosure action. If the borrower is performing 

according to the terms of a loss mitigation agreement, a small servicer also cannot make the first 

foreclosure notice or filing, move for a foreclosure judgment or order of sale, or conduct a 

foreclosure sale. 

Servicing Transfers – 12 CFR 1024.41(k) 

When a transferee servicer acquires the servicing of a mortgage loan for which there is a loss 

mitigation application pending as of the transfer date, it must comply with 12 CFR 1024.41(k), 

which addresses and clarifies how loss mitigation procedures and timelines apply to these 

pending loss mitigation applications. A loss mitigation application is considered pending if the 

application is subject to the loss mitigation rules but was not fully resolved prior to the transfer 

date. (Comment 41(k)-1). The transfer date is defined for these provisions as the date on which 

the transferee servicer will begin accepting payments relating to the mortgage loan, as disclosed 

on the notice of transfer of loan servicing pursuant to 12 CFR 1024.33(b)(4)(iv). 

Specifically: 

•	 Subject to the exceptions below, for loss mitigation applications pending as of the transfer 

date, a transferee servicer must comply with the loss mitigation requirements within the same 

timeframes that applied to the transferor servicer based on the date the transferor servicer 

received the loss mitigation application; 

A transferor servicer must timely transfer, and a transferee servicer must obtain from the 

transferor servicer, documents and information submitted by a borrower in connection 

with a loss mitigation application. 

Subject to the modifications of timing requirements below, a borrower’s rights and 

protections under the loss mitigation procedures to which the borrower was entitled to 

before a transfer continue to apply post-transfer. 

In the transfer context, reasonable diligence under 12 CFR 1024.41(b)(1) includes 

ensuring that a borrower is informed of any changes to the application process, such as a 

change in address to which the borrower should submit documents and information to 

complete the application, as well as ensuring that the borrower is informed about which 

documents and information are necessary to complete the application. 

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o	 

o	 

o	 

•	 Within 10 days (excluding legal public holidays, Saturdays, and Sundays) of the transfer 

date, a transferee servicer must provide the borrower an acknowledgement notice under 12 

CFR 1024.41(b)(2)(i)(B) if the prior transferor had not provided such notice and the 

applicable period to provide the notice has not expired as of the transfer date; 

If a transferee servicer is required to provide the acknowledgment notice as described 

above, the transferee servicer is prohibited from making the first foreclosure notice or 

filing required by applicable law for any judicial or non-judicial foreclosure process until a 

date that is after the reasonable date disclosed in the acknowledgment notice. 

If a borrower submits a complete loss mitigation application to the transferee or transferor 

servicer 37 or fewer days before the foreclosure sale but on or before the reasonable date 

disclosed in the acknowledgement notice, the servicer must evaluate the application in 

accordance with 12 CFR 1024.41(c) and provide a denial notice in accordance with 12 

CFR 1024.41(d) (if applicable), and is prohibited from moving for foreclosure judgment 

or sale in accordance with 12 CFR 1024.41(g). 

•	 For a complete application pending as of the transfer date, the transferee servicer must 

evaluate the application within 30 days of the transfer date; 

•	 A transferee servicer must make a determination on appeals pending as of the transfer date if 

it is able to do so or, if unable to do so, must treat the appeal as a pending complete loss 

mitigation application; 

If the transferee servicer is required to make a determination on an appeal, the servicer 

must complete the determination and provide the notice required under 12 CFR 

1024.41(h)(4) within the later of 30 days of the transfer date or 30 days of the date the 

borrower made the appeal. 

•	 A transfer does not affect a borrower’s ability to accept or reject a pending loss mitigation 

offer if the time period to accept or reject has not expired as of the transfer date. In this 

instance, the transferee servicer must allow the borrower to accept or reject the offer during 

the unexpired balance of the applicable time period. 

Loss Mitigation Applications from Potential Successors in Interest 

(Effective April 19, 2018) 

If a servicer receives a loss mitigation application from a potential successor in interest before 

confirming that person's identity and ownership interest in the property, the servicer may, but 

need not, review and evaluate the loss mitigation application in accordance with the procedures 

set forth in 12 CFR 1024.41. (Comment 41(b)-1.i). 

If a servicer receives a loss mitigation application from a potential successor in interest and 

elects not to review and evaluate the loss mitigation application before confirming that person’s 

identity and ownership interest in the property, the servicer must preserve the loss mitigation 

application and all documents submitted in connection with the application. Upon confirmation 

of the successor in interest’s status, the servicer must review and evaluate the loss mitigation 

application in accordance with the procedures set forth in 12 CFR 1024.41 if the property is the 

64 
confirmed successor in interest’s principal residence and the loss mitigation procedures are 

otherwise applicable. For purposes of 12 CFR 1024.41, the servicer must treat the loss mitigation 

application as if it had been received on the date that the servicer confirmed the successor in 

interest’s status. If the loss mitigation application is incomplete at the time of confirmation 

because documents submitted by the successor in interest became stale or invalid after they were 

submitted and confirmation is 45 days or more before a foreclosure sale, the servicer must 

identify the stale or invalid documents that need to be updated in a notice pursuant to 12 CFR 

1024.41(b)(2). Comment 41(b)-1.ii. 

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REFERENCES 

Laws 

12 U.S.C. 2601 et seq. Real Estate Settlement Procedures Act (RESPA) 

Regulations 

Consumer Financial Protection Bureau Regulation 12 CFR Part 1024, Real Estate Settlement 

Procedures Act (Regulation X) 

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Real Estate Settlement Procedures Act
 

Examination Objectives
 

•	 To determine the financial institution’s compliance with the Real Estate Settlement 

Procedures Act (RESPA) and Regulation X. 

•	 To initiate corrective action when policies or internal controls are deficient, or when 

violations of law or regulation are identified. 

Examination Procedures 

Each examination should be risk-based and may not require an examiner to address all of the 

procedures below. In addition, each supervising agency may have its own supervisory strategy 

that will dictate which examination procedures are required to be completed. 

If the financial institution has loans covered by RESPA, determine whether the institution’s 

policies, practices, and procedures ensure compliance with RESPA and Regulation X. 

General Procedures 

1.	 Review the types of loans covered by RESPA, applicable exemptions, loan policies, and 

operating procedures in connection with federally related mortgage loans. 12 CFR 

1024.5 provides RESPA’s general coverage and applicable exemptions, though other 

RESPA and Regulation X provisions include additional exemptions. 

2.	 Assess whether mortgage personnel are knowledgeable about the requirements of
 

RESPA and Regulation X. 

3.	 Determine whether the loan disclosure and timing requirements of Regulation X (rather 

than Regulation Z, 12 CFR 1026.19(e) and (f)) apply to the loans being reviewed 

(generally for closed-end reverse mortgages). 

4.	 Review the Special Information Booklet, good faith estimate (GFE) form, Uniform
 

Settlement Statement form (HUD-1 or HUD-1A), and mortgage servicing transfer 

disclosure forms for compliance with the requirements of Regulation X. Review
 

standardized and model forms and clauses in the appendices to the regulation. 

5.	 Review the affiliated business arrangement disclosure form for compliance with the 

requirements of Regulation X. Review standardized and model forms and clauses in the 

appendices to the regulation. 

6.	 If electronic disclosures are provided, determine whether the institution has policies and 

procedures to provide electronic delivery in accordance with the Electronic Signatures in 

Global and National Commerce Act (E-Sign). 

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7.	 Through reviewing written loan policies and operating procedures in connection with 

federally related mortgage loans that are not partially exempt under 12 CFR 1024.5(d) 

(i.e., reverse mortgages) and by discussing them with institution personnel, or through 

other appropriate methods, determine whether the financial institution has policies and 

procedures that address the following: 

•	 The information that will be collected from applicants in connection with issuing a 

GFE, and what information will be relied on to issue a GFE. 

•	 Provision of a revised GFE in the event of changed circumstances, both in the course 

of a new home purchase and in other kinds of transactions. 

•	 To cure a tolerance violation by reimbursing the borrower the amount by which the 

tolerance was exceeded within 30 calendar days from date of settlement. 

•	 To cure a technical or inadvertent error on the HUD-1/1A by providing a revised 

settlement statement to the borrower within 30 calendar days of settlement. 

8.	 Through interviews with mortgage lending personnel or other appropriate methods, 

determine: 

•	 The identity of persons or entities referring federally related mortgage loan business; 

•	 The nature of services provided by referral sources, if any; 

•	 Settlement service providers used by the institution; and 

•	 Any providers whose services are required by the institution. 

9.	 Through interviews with mortgage lending personnel or other appropriate methods, 

assess how the institution complies with the general servicing policies and procedures 

required by Regulation X, as applicable, including: 

•	 How and for how long the institution maintains documentation and information 

related to a mortgage loan account and the institution’s process for aggregating such 

information into a servicing file within five days; 

•	 How the institution determines whether to engage third-party service providers, 

including the criteria the institution considers to evaluate potential service providers; 

•	 How the institution monitors the performance of third-party service providers; 

•	 How the institution ensures that it receives all necessary documentation and 

information concerning mortgage loan files that are transferred to it by another 

institution; and 

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•	 How the institution ensures that it sends all necessary documentation and 

information concerning mortgage loan files to another institution when it transfers 

files to that institution. 

10.	 Determine if the institution is a small servicer. (12 CFR 1026.41(e)(4)(ii) and (iii)).
 

Small servicers are exempt from a number of Regulation X requirements. 

NOTE: A small servicer is defined as (1) a servicer that, together with any affiliates, 

services 5,000 or fewer loans, for all of which the servicer or any affiliate is the creditor 

or assignee; (2) a servicer that is a housing finance agency under 24 CFR 226.5; or (3) a 

nonprofit entity (defined in 12 CFR 1026.41(e)(4)(ii)(C)(1)) that services 5,000 or fewer 

mortgage loans, including any mortgage loans serviced on behalf of associated nonprofit 

entities (defined in 12 CFR 1026.41(e)(4)(ii)(C)(2)), for all of which the servicer or an 

associated nonprofit is the creditor. Small servicer status is generally based on the loans 

serviced by the servicer and any affiliates as of January 1 for the remainder of the year. 

However, to determine small servicer status under the nonprofit small servicer definition, 

a nonprofit servicer should be evaluated based on the mortgage loans serviced by the 

servicer (and not those serviced by associated nonprofit entities) as of January 1 for the 

remainder of the calendar year. Servicers that cease to qualify as a small servicer will 

have the later of six months after the date they ceased to qualify, or until the next January 

1 to come into compliance. Under 12 CFR 1026.41(e)(4)(iii), the following mortgage 

loans are not considered in determining whether a servicer qualifies as a small 

servicer: (a) mortgage loans voluntarily serviced by the servicer for a non-affiliate of 

the servicer and for which the servicer does not receive any compensation or fees; 

(b) reverse mortgage transactions; and (c) mortgage loans secured by consumers’ 

interests in timeshare plans; and (d) certain seller-financed transactions that meet the 

criteria identified in 12 CFR 1026.36(a)(5). 

Subpart B – Mortgage Settlement and Escrow 

Accounts 

Special Information Booklet – 12 CFR 1024.6 

11.	 For mortgages that are not subject to the TILA-RESPA Integrated Disclosure Rule under 12 

CFR 1026.19(e) and (f), other than reverse mortgages, determine through appropriate 

methods such as discussions with management and reviewing credit files whether the 

Special Information Booklet, if required, is provided within three business days after the 

financial institution or broker receives a written application for a loan (12 CFR 1024.6(a)(1)). 

NOTE: The Special Information Booklet may be required under 12 CFR 1026.19(g) for 

closed-end mortgage loans subject to the TILA-RESPA Integrated Disclosure Rule. 

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o	 

o	 

o	 

o	 

o	 

o	 

o	 

o	 

Good Faith Estimate – 12 CFR 1024.7
 

12.	 For closed-end reverse mortgages (see 12 CFR 1024.5(d)), determine whether the financial 

institution provides a GFE of charges for settlement services, if required, within three 

business days after receipt of a written application (12 CFR 1024.7(a)). 

13.	 Review the GFE to determine if it appears exactly as set forth in Appendix C to Part 

1024. 

14.	 Review a sample of loan files that include GFEs to determine the following: 

•	 Whether the financial institution followed GFE application requirements. 

•	 Whether the institution provided revised GFEs to applicants when warranted due to 

changed circumstances. 

•	 If the institution provided a revised GFE to the applicant due to changed 

circumstances, determine whether the institution followed regulatory requirements 

for issuing a revised GFE due to changed circumstances. 

•	 Whether the GFE was completed as required in the regulations and instructions (12 

CFR 1024.7 and Appendix C to 12 CFR Part 1024) and whether it included the 

following information: 

Interest rate expiration date; 

Settlement charges expiration date; 

Rate lock period; 

Number of days before settlement the interest rate must be locked, if applicable; 

Summary of loan information; 

Escrow account information; 

Estimates for settlement charges; and 

Left hand column on trade-off table completed for loan in the GFE. 

•	 Whether, for no cost loans, all third-party fees paid by the financial institution are 

itemized and listed in the appropriate blocks on the second page of the GFE. 

•	 Whether a separate sheet was provided with the GFE that identifies the settlement 

service providers for the services listed on the GFE. 

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Uniform Settlement Statement Form (HUD-1 and HUD-1A) 

– 12 CFR 1024.8 

15.	 Using the same sample of loan files as used for the review of the GFE (i.e., for reverse 

mortgages), review the Uniform Settlement Statement (HUD-1 or HUD-1A, as 

appropriate) (12 CFR 1024.8 and Appendix A to 12 CFR Part 1024) to determine whether: 

•	 Charges are properly itemized in accordance with the instructions for completion of 

the HUD-1 or HUD-1A (Appendix A to 12 CFR Part 1024); 

•	 All charges paid by the borrower and the seller are itemized and include the name of 

the recipient (12 CFR 1024.8(b), Appendix A); 

•	 Average charges for settlement services are calculated in accordance with 12 

CFR 1024.8(b)(2); and 

•	 Charges required by the financial institution but paid outside of closing are itemized 

on the settlement statement, marked as “paid outside of closing” or “P.O.C.,” but not 

included in cost totals (12 CFR 1024.8(b); Appendix A). 

16.	 If the financial institution conducts the settlement, determine whether: 

•	 The borrower, upon request, is allowed to inspect the HUD-1 or HUD-1A at least 

one business day prior to settlement (12 CFR 1024.10(a)); 

•	 The HUD-1 or HUD-1A is provided to the borrower and seller at or before 

settlement (except where the borrower has waived the right to delivery and in the 

case of exempt transactions) (12 CFR 1024.10(b)); or 

•	 In cases where the right to delivery is waived or the transaction is exempt, the HUD1/1A is mailed as soon as practicable after settlement (12 CFR 1024.10(b), (c), and 

(d)). 

17.	 Determine whether, in the case of an inadvertent or technical error on the HUD-1/1A, the 

financial institution provides a revised HUD-1/1A to the borrower within 30 calendar 

days after settlement (12 CFR 1024.8(c)). 

18.	 Review the HUD-1 or HUD-1A form prepared in connection with each GFE reviewed to 

determine if the amount stated for any itemized service exceeds the amount shown on the 

GFE for that service. If the amount stated on the HUD-1 exceeds the amount shown on 

the GFE and such overcharge violates the tolerance for that category of settlement 

services, determine whether the financial institution cured the tolerance violation by 

reimbursing to the borrower the amount by which the tolerance was exceeded, at 

settlement or within 30 calendar days from date of settlement (12 CFR 1024.7(i)). 

19.	 Determine whether HUD-1 and HUD-1A forms are retained for five years after 

settlement if the institution retains its interest in the mortgage and/or services. If the 

financial institution disposes of its interest in the mortgage and does not service the loan, 

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determine whether the HUD-1 or HUD-1A form is transferred to the new asset owner 

with the loan file (12 CFR 1024.10(e)). 

Homeownership Counseling Organization List – 12 CFR 

1024.20 

20.	 Determine whether the lender (or a mortgage broker or dealer) provided a clear and 

conspicuous written list of homeownership counseling services in the applicant’s 

location no later than three business days after the lender, mortgage broker or dealer 

received the application or information sufficient to complete an application (for 

RESPA-covered loans except for reverse mortgages or timeshare loans) (12 CFR 

1024.20(a) and (c)). The written list does not need to be provided if, within the threebusiness-day period, the lender denies the application or the applicant withdraws it (12 

CFR 1024.20(a)(5)). 

21.	 Determine whether the lender obtained the list from either the website maintained by the 

CFPB or data made available by the CFPB or HUD for lenders complying with this 

requirement, no earlier than 30 days prior to the time it was provided to the applicant (12 

CFR 1024.20(a)). 

No Fees for RESPA Disclosures – 12 CFR 1024.12 

22.	 Determine whether the financial institution charges a fee specifically for preparing and 

distributing the HUD-1 forms, escrow statements, or documents required under TILA 

(12 CFR 1024.12). 

23.	 If any fee is charged before providing a GFE in a reverse mortgage transaction,
 

determine whether such fee is limited to the cost of a credit report (12 CFR
 

1024.7(a)(4)).
 

Purchase of Title Insurance – 12 CFR 1024.16 

24.	 When the financial institution owns the property being sold, determine whether it 

requires that title insurance be purchased from a particular company (12 CFR 1024.16). 

Payment or Receipt of Referral or Unearned Fees – 12 CFR 

1024.14 

25.	 Through interviews with institution management and reviews of audits, policies, and 

procedures, or other appropriate methods, determine if management is aware of the 

prohibition against payment and receipt of any fee, kickback, or thing of value in return 

for the referral of settlement services business (12 CFR 1024.14). 

26.	 Through interviews with institution management and reviews of audits, policies, and 

procedures, or other appropriate methods, determine if management is aware of the
 

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prohibition against unearned fees where a charge for settlement services is divided 

between two or more parties. 

27.	 Through interviews with institution management and personnel; file reviews; review 

of: good faith estimates and HUD-1 or HUD-1A (for closed-end reverse mortgages), 

the TILA-RESPA Integrated Disclosures (for other closed-end mortgages secured by a 

dwelling); or other appropriate methods, determine if federally related mortgage loan 

transactions are referred to the institution by brokers, affiliates, or other parties. Also, 

identify persons or entities to which the institution refers settlement services business 

in connection with a federally related mortgage transaction. 

•	 Identify the types of services rendered by the broker, affiliate, or service provider. 

•	 By a review of the institution’s general ledger or otherwise determine if fees were 

paid to the institution or any parties identified. 

•	 Determine whether any fees paid or received by the institution are for goods or 

facilities actually furnished or services actually performed and are not kickbacks or 

referral fees (12 CFR 1024.14(b)). This includes payments by the institution to an 

affiliate or the affiliate’s employees in connection with real estate settlements. 

•	 In cases where a fee is split between the institution and one or more other parties, 

determine whether each party actually performed services for that fee (12 CFR 

1024.14(c)). This includes payments by the institution to an affiliate or the affiliate’s 

employees in connection with real estate settlements. 

Affiliated Business Arrangements – 12 CFR 1024.15 

28.	 Determine from the TILA-RESPA Integrated Disclosures (or the HUD-1 or HUD-1A for 

reverse mortgages) and from interviews with institution management, or through other 

appropriate methods, if the institution referred a borrower to a settlement service provider 

with which the institution was affiliated or in which the institution had a direct or beneficial 

ownership interest of more than one percent (hereinafter, an “affiliated business 

arrangement”). 

29.	 If the financial institution had an affiliated business arrangement, determine whether the 

affiliated business arrangement disclosure statement (Appendix D to Part 1024) was 

provided as required by 12 CFR 1024.15(b)(1). 

30.	 Other than an attorney, credit reporting agency, or appraiser representing the lender, if 

the financial institution referred a borrower to a settlement service provider, determine 

whether the institution required the use of the provider (12 CFR 1024.15(b)(2)). 

31.	 Determine if compensation received by the lender in connection with an affiliated
 

business arrangement is limited to a return on an ownership interest or other amounts
 

permissible under RESPA (12 CFR 1024.15(b)(3)).
 

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Escrow Accounts – 12 CFR 1024.17 

If the institution maintains escrow accounts in connection with a federally related mortgage loan, 

complete the following procedures. (NOTE: Effective April 19, 2018, a servicer must treat a 

confirmed successor in interest, as defined in 12 CFR 1024.31, as a borrower for purposes of 12 

CFR 1024.17). 

32.	 Determine whether the institution performed an initial escrow analysis (12
 

CFR 1024.17(c)(2)) and provided the initial escrow statement required by 12 CFR
 

1024.17(g). The statement must contain the following:
 

• Amount of monthly payment, 

• Portion of the monthly payment being placed in escrow, 

• Charges to be paid from the escrow account during the first 12 months, 

• Disbursement dates, and 

• Amount of cushion. 

33.	 If the institution is a transferee (new) servicer and changed either the monthly payment 

amount or the accounting method used by the transferor (old) servicer, determine 

whether the institution provided a borrower with an initial escrow account statement 

within 60 days of the date of the servicing transfer (12 CFR 1024.17(e)(1)). A transferee 

servicer providing an initial escrow statement must use the effective date of transfer of 

servicing to establish the new escrow account computation year (12 CFR 

1024.17(e)(1)(i)). 

34.	 If the institution is a transferee servicer and retains the monthly payments and accounting 

method used by the prior servicer, but chooses to change the computation year, 

determine whether the institution provided a short-year statement to the borrower. (12 

CFR 1024.17(e)(1)(ii)). See also procedures related to 12 CFR 1024.17(i)(4). 

NOTE: Where the new servicer retains the monthly payments and accounting method 

used by the transferor servicer, then the new servicer may continue to use the escrow 

account computation year established by the transferor servicer or may choose to 

establish a different computation year using a short-year statement. At the completion of 

the escrow account computation year or any short year, the new servicer shall perform an 

escrow analysis and provide the borrower with an annual escrow account statement 12 

CFR 1024.17(e)(1)(ii). 

35.	 Determine whether the institution treats shortages, surpluses, and deficiencies in the
 

escrow account according to the procedures set forth in 12 CFR 1024.17(f). 

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36.	 Determine if the statement was given to the borrower at settlement or within 45 days
 

after the escrow account was established. This statement may be incorporated into the 

HUD-1 statement (12 CFR 1024.17(g)(1) and (2)).
 

37.	 Determine whether the institution performs an annual analysis of the escrow account (12 

CFR 1024.17(c)(3) and (7), and 1024.17(i)). 

38.	 Determine whether the annual escrow account statement is provided to the borrower
 

within 30 days of the end of the computation year (12 CFR 1024.17(i)).
 

39.	 Determine if the annual escrow statement contains the following: 

•	 Amount of monthly mortgage payment and portion placed in escrow; 

•	 Amount of past year’s monthly mortgage payment and portion that went into escrow; 

•	 Total amount paid into escrow during the past computation year; 

•	 Total amount paid out of escrow account during same period for taxes, insurance, 

and other charges; 

•	 Balance in the escrow account at the end of the period; 

•	 How a surplus, shortage, or deficiency is to be paid/handled; and 

•	 If applicable, the reason why the estimated low monthly balance was not reached (12 

CFR 1024.17(i)(1)). 

40.	 Determine whether the servicer complied with the requirements relating to short-year
 

statements in 12 CFR 1024.17(i)(4) within 60 days from the end of the short year or
 

within 60 days after receiving funds that pay off the loan. 

41.	 Determine whether monthly escrow payments following settlement are within the limits
 

of 12 CFR 1024.17(c).
 

Timely Payment of Hazard Insurance; Force-Placed 

Insurance 

NOTE: The procedures in this section do not apply to small servicers.29 In addition to the 

information provided in this section, examiners should also refer to 12 CFR 1024.37, which sets 

forth further requirements relating to force-placed insurance. 

29 Refer to 12 CFR 1026.41(e)(4)(ii)) and (iii). A small servicer is defined as (1) a servicer that, together with any 

affiliates, services 5,000 or fewer loans, for all of which the servicer or any affiliate is the creditor or assignee; (2) a 

servicer that is a housing finance agency under 24 CFR 226.5; or (3) a nonprofit entity (defined in 12 CFR 

1026.41(e)(4)(ii)(C)(1)) that services 5,000 or fewer mortgage loans, including any mortgage loans serviced on 

behalf of associated nonprofit entities (defined in 12 CFR 1026.41(e)(4)(ii)(C)(2)), for all of which the servicer or an 

75 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

In addition, the procedures related to 12 CFR 1024.34 and 1024.37 may be applicable to escrow 

accounts and fees or charges for force-placed insurance. 

42.	 If the institution purchased force-placed insurance for a borrower who had established an 

escrow account for the payment of hazard insurance, determine whether the institution was 

permitted to do so under 12 CFR 1024.17(k)(5). Under that provision, an institution may 

not purchase force-placed insurance unless (i) the borrower was more than 30 days 

delinquent, and (ii) the institution was unable to disburse funds from the escrow account to 

ensure that the borrower’s hazard insurance premium charges were paid in a timely 

manner. 

An institution is unable to disburse funds if it has a reasonable basis to believe that either 

(a) the borrower’s property is vacant, or (b) the borrower’s hazard insurance has 

terminated for reasons other than non-payment of the premium charges. An institution is 

not unable to disburse funds from the borrower’s escrow account solely because the 

account has insufficient funds for paying hazard insurance premium charges (12 CFR 

1024.17(k)(5)(ii)). 

43.	 Small servicer exception. Notwithstanding the above, a small servicer may charge 

borrowers for force-placed insurance. If the institution is a small servicer and charged 

borrowers for force-placed insurance, determine whether the cost to each borrower of the 

force-placed insurance was less than the amount the institution would have needed to 

disburse from the borrower’s escrow account to ensure that hazard insurance charges 

were paid in a timely manner (12 CFR 1024.17(k)(5)(iii)). 

Subpart C – Mortgage Servicing 

Applicability: Except as otherwise noted below, the provisions of Subpart C – Mortgage 

Servicing, 12 CFR 1024.30-41, apply to any mortgage loan, as that term is defined in 12 CFR 

1024.31. Effective April 19, 2018, a servicer must treat confirmed successors in interest as borrowers 

under the provisions of Subpart C. (12 CFR 1024.30(d)). 

associated nonprofit is the creditor. Small servicer status is generally based on the loans serviced by the servicer and 

any affiliates as of January 1 for the remainder of the year. However, to determine small servicer status under the 

nonprofit small servicer definition, a nonprofit servicer should be evaluated based on the mortgage loans serviced by 

the servicer (and not those serviced by associated nonprofit entities) as of January 1 for the remainder of the 

calendar year. Servicers that cease to qualify as a small servicer will have the later of six months after the date they 

ceased to qualify, or until the next January 1 to come into compliance. Under 12 CFR 1026.41(e)(4)(iii), the 

following mortgage loans are not considered in determining whether a servicer qualifies as a small servicer: (a) 

mortgage loans voluntarily serviced by the servicer for a non-affiliate of the servicer and for which the servicer 

does not receive any compensation or fees; (b) reverse mortgage transactions; and (c) mortgage loans secured 

by consumers’ interests in timeshare plans; and (d) certain seller-financed transactions that meet the criteria 

identified in 12 CFR 1026.36(a)(5). 

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General Disclosure Requirements – 12 CFR 1024.32(c) 

(Effective April 19, 2018) 

Successors in Interest 

44.	 For servicers providing the optional written notice and acknowledgment form under 12 

CFR 1024.32(c) to confirmed successors in interest who have not assumed the mortgage 

loan and are otherwise liable on it: 

•	 Determine whether the written notice explains that the confirmed successor in 

interest may be entitled to receive certain notices and communications about the 

mortgage loan if the servicer is not providing them to another confirmed successor in 

interest or borrower on the account. The notice also must explain that in order to 

receive such notices and communications, the successor in interest must execute and 

provide to the servicer the acknowledgment form. 

NOTE: Servicers that send this type of notice and acknowledgement form are not 

required to provide to the confirmed successor in interest any written disclosure 

required by 12 CFR 1024.17, 1024.33, 1024.34, 1024.37, or 1024.39, or to comply 

with the live contact requirements in 12 CFR 1024.39(a) with respect to the 

confirmed successor in interest until the confirmed successor in interest either 

assumes the mortgage loan or executes the acknowledgment form. 

•	 Determine whether the servicer stated in the written notice that, regardless of whether 

the successor in interest executes the acknowledgement form, the successor in 

interest is entitled to submit notices of error under 12 CFR 1024.35, requests for 

information under 12 CFR 1024.36, and requests for a payoff statement under 12 

CFR 1026.36. The notice must include a brief explanation of those rights and how to 

exercise them, including appropriate address information. 

Mortgage Servicing Transfer Disclosures – 12 CFR 1024.33 

Reverse Mortgage Disclosure Statement 

Complete the following if the institution received an application for a reverse mortgage loan, 

as defined in 12 CFR 1024.31. 

45.	 Determine whether the lender, mortgage broker who anticipates using table funding, 

or dealer in a first-lien dealer loan provided a proper servicing disclosure statement 

to the borrower within three days (excluding legal public holidays, Saturdays, and 

Sundays) after receipt of the application. The disclosure statement must advise 

whether the servicing of the mortgage loan may be assigned, sold, or transferred to 

any other person at any time. A model disclosure statement is set forth in Appendix 

MS-1 (12 CFR 1024.33(a)). 

Additionally, the disclosure statement is not required if the institution denied the 

application within the three-day period. 

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Transfers of Mortgage Servicing Rights – Disclosures 

Complete the following if the institution has transferred or received mortgage servicing rights. 

The following are generally not considered transfers: (1) transfers between affiliates; (2) 

transfers resulting from mergers or acquisitions of servicers or subservicers; and (3) transfers 

between master servicers, when the subservicer remains the same. Additionally, the Federal 

Housing Administration (FHA) is not required to provide a notice of transfer to the borrower 

where a mortgage insured under the National Housing Act is assigned to FHA (12 CFR 

1024.33(b)). 

46.	 If the institution has transferred mortgage servicing rights, determine whether notice to 

the borrower was given at least 15 days prior to the transfer (12 CFR 1024.33(b)(3)). 

This notice may be combined with the transferee’s notice (discussed below) into one 

notice if delivered to the borrower at least 15 days before the effective date of the 

transfer. Notices provided at the time of settlement satisfy the timing requirements. 

47.	 If the institution has received mortgage servicing rights, determine whether notice was 

given to the borrower within 15 days after the transfer (12 CFR 1024.33(b)(3)). This 

notice may be combined with the transferor’s notice (discussed above) into one 

notice if delivered to the borrower at least 15 days before the effective date of the 

transfer. Notices provided at the time of settlement satisfy the timing requirements. 

48.	 Determine whether the notice sent by the institution includes the following information 

(12 CFR 1024.33(b)(4)). Sample language for the notice of transfer is contained in 

Appendix MS-2 to 12 CFR Part 1024. 

•	 The effective date of the transfer 

•	 The name, address, and toll-free or collect-call telephone number for an employee or 

department of the transferee servicer that can be contacted by the borrower to obtain 

answers to servicing transfer inquiries 

•	 The name, address, and toll-free or collect-call telephone number for an employee or 

department of the transferor servicer that can be contacted by the borrower to obtain 

answers to servicing transfer inquiries 

•	 The date on which the transferor servicer will cease accepting payments relating to 

the loan and the date on which the transferee servicer will begin to accept such 

payments. The dates must either be the same or consecutive dates 

•	 Whether the transfer will affect the terms or the availability of optional insurance and 

any action the borrower must take to maintain such coverage and 

•	 A statement that the transfer does not affect the terms or conditions of the mortgage 

(except as directly related to servicing) (Appendix MS-2 to 12 CFR Part 1024) 

49.	 Determine whether the notice by the transferor and transferee was sent to the borrower’s 

address listed in the mortgage loan documents, unless the borrower notified the 

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institution of a new address pursuant to the institution’s requirements (12 CFR Part 1024, 

Supp. I., Comment 1024.33(b)(3)-1). 

Transfers of Mortgage Servicing Rights – Treatment of Post-Transfer 

Payments 

Complete the following if the institution has transferred or received mortgage servicing rights. 

50.	 If the borrower sent any payments to the transferor servicer within the 60 days following 

a transfer of servicing rights, determine whether the institution imposed late fees or 

otherwise treated such payments as late (12 CFR 1024.33(c)(1)). 

51.	 If the borrower sent any payments to the transferor servicer within the 60 days following 

a transfer of servicing rights, determine whether the transferor servicer either (a) 

forwarded the payment to the transferee servicer, or (b) returned the payment and 

informed the payor of the proper recipient of the payment (12 CFR 1024.33(c)(2)). 

Timely Escrow Payments and Treatment of Escrow Account 

Balances – 12 CFR 1024.34 

Complete the following if the terms of a borrower’s mortgage loan, as defined in 12 CFR 

1024.31, require the borrower to make payments to the institution for deposit into an escrow 

account to pay taxes, insurance premiums, and other charges for the mortgaged property. 

52.	 Determine whether the institution made payments from the escrow account in a timely
 

manner (12 CFR 1024.34). A “timely manner” means on or before the deadline to avoid 

a penalty, as governed by the requirements in 12 CFR 1024.17(k).
 

53.	 Determine whether the institution returned amounts remaining in escrow within 20 days
 

(excluding legal public holidays, Saturdays, and Sundays) after the borrower paid the
 

mortgage loan in full (12 CFR 1024.34(b)). The institution does not need to return this
 

amount if it and the borrower agree to credit the remaining funds towards an escrow
 

account for certain new mortgage loans.
 

Error Resolution Procedures – 12 CFR 1024.35 

Complete the following based upon a review of a sample of mortgage loan (as defined in 12 CFR 

1024.31) files that included written error notices from borrowers or through other appropriate 

methods. 

Address for Error Notices 

54.	 If the institution designates an address or addresses to which borrowers must send error
 

notices, complete the following:
 

79 
 

o	 

o	 

o	 

 

 

 

 

 

 

o	 

o	 

•	 Determine whether the institution provided written notice of the address to the 

borrower, along with a statement that the borrower must use that address to assert 

errors (12 CFR 1024.35(c)). 

•	 Determine whether the institution also provided that address to the borrower in each 

of the following three types of communications: 

Any periodic statement or coupon book required under 12 CFR 1026.41; 

Any website the institution maintains in connection with the servicing of the 

loan; and 

Any notice required pursuant to 12 CFR 1024.39 (early intervention) or .41 (loss 

mitigation) that includes contact information for assistance (12 CFR Part 1024, 

Supp. I., Comment 1024.35(c)-2). 

•	 Determine whether the institution designated the same address for receiving 

information requests pursuant to 12 CFR 1024.36(b) (12 CFR 1024.35(c)). 

•	 If the institution establishes an electronic method for submitting error notices that is 

its exclusive online intake process, determine whether this electronic process was in 

addition to, and not in lieu of, any process for receiving error notices by mail (12 

CFR Part 1024, Supp. I., Comment 1024.35(c)-4). 

55.	 If the institution does not establish a specific address to which to send error notices, 

determine whether the institution responds to error notices sent to any of its offices (12 

CFR Part 1024, Supp. I., Comment 1024.35(c)-1). 

Acknowledgement of Error Notices 

56.	 Determine whether: 

•	 The institution properly acknowledged the error notice by providing written 

acknowledgement of the error notice to the borrower within five days (excluding 

legal public holidays, Saturdays, and Sundays) after receiving an error notice (12 

CFR 1024.35(d)); or 

•	 Acknowledgment was not required because: 

The institution corrected the errors asserted and notified the borrower in writing 

within five days (excluding legal public holidays, Saturdays, and Sundays) of 

receiving the error notice (12 CFR 1024.35(f)); 

The institution determined that it was not required to respond and provided 

written notice, with the basis for its decision not to take any action, to the 

borrower within five days (excluding legal public holidays, Saturdays, and 

Sundays) after making that determination (12 CFR 1024.35(g)); or 

80 
o	 

 

 

 

 

 

 

 

 

 

 

 

 

 

o	 

o	 

o	 

The error notice related to violations of certain loss mitigation procedures under 

12 CFR 1024.35(b)(9) or (10) and was received by the institution seven or fewer 

days before a foreclosure sale. With respect to such error notices, the institution 

must make a good faith attempt to respond orally or in writing to the borrower 

and either correct the error or state the reason the institution determined that no 

error occurred (12 CFR 1024.35(f)(2)). 

Response to Error Notices 

57. Determine whether: 

• The institution properly responded to a borrower’s written error notice by: 

Correcting the errors identified by the borrower as well as any different or 

additional errors that were discovered during the investigation and providing 

written notice to the borrower of the corrections, the date the corrections took 

effect, and contact information for further assistance; or 

Conducting a reasonable investigation and providing the borrower with a written 

notice stating that the institution has determined that no error occurred, the 

reasons for its determination, the borrower’s right to request documents relied 

upon by the institution in reaching its determination and how to do so, and 

contact information for further assistance (12 CFR 1024.35(e)); AND 

Undertaking one of the above within the following time frames: 

−	 If the alleged error was a failure to provide an accurate payoff balance 

amount, the institution responded within seven days (excluding legal public 

holidays, Saturdays, and Sundays) (12 CFR 1024.35(e)(3)(A)); 

−	 If the alleged error was either (1) making the first notice or filing for a 

judicial or non-judicial foreclosure process in violation of 12 CFR 

1024.41(f) or (j), or (2) moving for foreclosure judgment or order of sale or 

conducting a foreclosure sale in violation of 12 CFR 1024.41(g) or (j), the 

institution responded by the earlier of 30 days (excluding legal public 

holidays, Saturdays, and Sundays) or the date of a foreclosure sale (12 CFR 

1024.35(e)(3)(B)). However, if the institution received the error notice seven 

or fewer days before a foreclosure sale, the institution is not required to 

respond in writing, but must nevertheless make a good faith attempt to 

respond orally or in writing to the borrower and either correct the error or 

state the reason the institution determined that no error occurred (12 CFR 

1024.35(f)(2)); 

−	 For all other alleged errors, the institution responded within 30 days 

(excluding legal public holidays, Saturdays, and Sundays) unless, prior to 

the expiration of that 30-day period, the institution extended the time for 

responding by an additional 15 days (excluding legal public holidays, 

81 
 

 

 

 

 

 

 

 

o	 

o	 

o	 

 

 

 

 

 

Saturdays, and Sundays) by notifying the borrower in writing of the 

extension and the reasons for it (12 CFR 1024.35(e)(3)); OR 

•	 The above responses were not required because: 

The institution corrected the errors asserted and notified the borrower in writing 

within five days (excluding legal public holidays, Saturdays, and Sundays) of 

receiving the error notice (12 CFR 1024.35(f)); 

The institution determined that it was not required to respond and provided 

written notice, with the basis for its decision not to take any action, to the 

borrower within five days (excluding legal public holidays, Saturdays, and 

Sundays) after making that determination (12 CFR 1024.35(g)); or 

The error notice related to violations of certain loss mitigation procedures under 

12 CFR 1024.35(b)(9) or (10) and was received by the institution seven or fewer 

days before a foreclosure sale. With respect to such error notices, the institution 

must make a good faith attempt to respond orally or in writing to the borrower 

and either correct the error or state the reason the institution determined that no 

error occurred (12 CFR 1024.35(f)(2)). 

Determination that No Error Occurred 

58.	 If the institution stated that no error occurred and the borrower requested supporting 

documentation, determine whether the institution provided the documents that it relied 

upon to determine that no error occurred within 15 days (excluding legal public holidays, 

Saturdays, and Sundays) (12 CFR 1024.35(e)(4)). If the institution withheld documents 

that constituted confidential, proprietary, or privileged information, determine whether it 

provided written notification to the borrower within 15 days (excluding legal public 

holidays, Saturdays, and Sundays) (12 CFR 1024.35(e)(4)). 

•	 NOTE: A servicer responding to a notice of error request for documentation may 

omit location, contact, and personal financial information (other than information 

about the terms, status, and payment history of the mortgage loan) if: (i) the 

information pertains to a potential or confirmed successor in interest who is not the 

requester; or (ii) the requester is a confirmed successor in interest and the 

information pertains to any borrower who is not the requester. (12 CFR 

1024.35(e)(5)) (Effective April 19, 2018). 

Determination that No Response was Required 

59.	 If the institution determined that it was exempt from the requirement to respond, 

determine whether the institution reasonably determined that one of the following three 

exemptions applied: 

•	 The error asserted is substantially the same as an error previously asserted by the 

borrower for which the institution complied with 12 CFR 1024.35(d) and (e), unless 

the borrower provides new and material information to support the error; 

82 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

•	 The error notice was overbroad. An error notice is overbroad if the institution cannot 

reasonably determine from the error notice the specific error that has occurred on a 

borrower’s account; or 

•	 The error notice was untimely. An error notice is untimely if it is delivered to the 

institution more than one year after either (i) the institution transferred servicing 

responsibility to another institution, or (ii) the mortgage loan was discharged (12 

CFR 1024.35(g)(1)). A mortgage loan is discharged when both the debt and all 

corresponding liens have been extinguished or released, as applicable. 

Asserted Errors Related to Non-Bona Fide Fees 

60.	 If the borrower asserted that the institution charged a fee without a reasonable basis to do 

so, determine whether the institution in fact had a reasonable basis to impose the fee (12 

CFR 1024.35(b)(5)). An institution lacks a reasonable basis to impose fees that are not 

bona fide, such as (i) a late fee for a payment that was not late, (ii) a charge for a service 

that a service provider did not actually provide, (iii) a default management fee for 

borrowers who are not delinquent, or (iv) a charge for force-placed insurance that is not 

permitted by 12 CFR 1024.37 (12 CFR Part 1024, Supp. I., Comment 1024.35(b)-2). 

Impermissible Fees and Conditions and Other Restrictions 

61.	 Determine whether the institution conditioned its investigation of the asserted error on 

the borrower providing supporting documentation (12 CFR 1024.35(e)(2)(i)).
 

62.	 Determine whether the institution determined that no error occurred because the 

borrower failed to provide any requested information without conducting a reasonable
 

investigation (12 CFR 1024.35(e)(2)(ii)).
 

63.	 Determine whether the institution charged a fee or required the borrower to make any
 

payments as a condition to responding to an error notice (12 CFR 1024.35(h)).
 

64.	 Determine whether the institution furnished adverse information to any consumer
 

reporting agency regarding a payment that was the subject of an error notice within 

60 days after receiving the notice (12 CFR 1024.35(i)).
 

Requests for Information – 12 CFR 1024.36 

Complete the following based upon a review of a sample of mortgage loan (as defined in 12 CFR 

1024.31) files that included written information requests from borrowers or other appropriate 

methods. 

Address for Information Requests 

65.	 If the institution designates an address or addresses to which borrowers must send 

information requests, complete the following:
 

83 
 

 

 

o	 

o	 

o	 

 

 

 

 

o	 

o	 

•	 Determine whether the institution provided written notice of the address to the 

borrower, along with a statement that the borrower must use that address to request 

information (12 CFR 1024.36(b)). 

•	 Determine whether the institution also provided that address to the borrower in each 

of the following three communications: 

Any periodic statement or coupon book required under 12 CFR 1026.41; 

Any website the institution maintains in connection with the servicing of the 

loan; and 

Any notice required pursuant to 12 CFR 1024.39 (early intervention) or .41 (loss 

mitigation) that includes contact information for assistance (12 CFR Part 1024, 

Supp. I., Comment 1024.36(c)-2). 

•	 Determine whether the institution designated the same address for receiving 

information requests pursuant to 12 CFR 1024.35(c) (12 CFR 1024.36(b)). 

•	 If the institution establishes an electronic method for submitting information requests 

that is its exclusive online intake process, determine whether this electronic process 

was in addition to, and not in lieu of, any process for receiving information requests by 

mail (12 CFR Part 1024, Supp. I., Comment 1024.36(c)-4). 

66.	 If the institution does not establish a specific address to which to send information 

requests, determine whether the institution responds to information requests sent to any 

of its offices (12 CFR Part 1024, Supp. I., Comment 1024.36(b)-1). 

Acknowledgement of Information Requests 

67.	 Determine whether: 

•	 The institution properly acknowledged the information request by providing written 

acknowledgement to the borrower within five days (excluding legal public holidays, 

Saturdays, and Sundays) after receiving the information request (12 CFR 1024.36(c)); 

or 

•	 Acknowledgement was not required because: 

The institution provided the borrower with the information requested and contact 

information (including telephone number) for further assistance within five days 

(excluding legal public holidays, Saturdays, and Sundays) (12 CFR 1024.36(e)); 

or 

The institution determined that it was not required to respond and provided 

written notice with the basis for its determination not to respond to the request to 

the borrower within five days (excluding legal public holidays, Saturdays, and 

Sundays) after making that determination (12 CFR 1024.36(f)). 

84 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

o 

o 

o	 

o	 

o	 

Response to Information Requests 

68. Determine whether: 

•	 The institution properly responded to the information request by: 

Providing the requested information and contact information for further 

assistance (12 CFR 1024.36(d)(1)(i)); or 

Conducting a reasonable search for the requested information and providing the 

borrower with a written notice advising the borrower that the institution has 

determined that the requested information is not available to it, the basis for the 

institution’s determination, and contact information for further assistance (12 CFR 

1024.36(d)(1)(ii)). Information is not available to the institution if the information is 

not in the institution’s control or possession or if it cannot be retrieved in the ordinary 

course of business through reasonable efforts such as, for example, if electronic 

back-up media is not normally accessible to the institution’s personnel and would 

take an extraordinary effort to identify and restore. Information stored offsite but 

which personnel can access upon request is available to the institution; AND 

Undertaking one of the above within the following time frames: 

−	 If the borrower requested the identity of or contact information for the owner 

or assignee of a mortgage loan, responding within 10 days (excluding legal 

public holidays, Saturdays, and Sundays); 

−	 For all other information requests, responding within 30 days (excluding 

legal public holidays, Saturdays, and Sundays) unless, prior to the expiration 

of that 30-day period, the institution extended the time for responding by an 

additional 15 days (excluding legal public holidays, Saturdays, and Sundays) 

by notifying the borrower in writing of the extension and the reasons for it 

(12 CFR 1024.36(d)); OR 

•	 The above responses were not required because: 

The institution provided the borrower with the information requested and contact 

information (including telephone number) for further assistance within five days 

(excluding legal public holidays, Saturdays, and Sundays) (12 CFR 1024.36(e)); 

or 

The institution determined that it was not required to respond and provided 

written notice with the basis for its determination not to respond to the request to 

the borrower within five days (excluding legal public holidays, Saturdays, and 

Sundays) after making that determination (12 CFR 1024.36(f)(2)). 

NOTE: A servicer in its response to a request for information may omit location, contact, 

and personal financial information (other than information about the terms, status, and 

payment history of the mortgage loan) if: (i) the information pertains to a potential or 

confirmed successor in interest who is not the requester; or (ii) the requester is a 

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confirmed successor in interest and the information pertains to any borrower who is not 

the requester. (12 CFR 1024.36(d)(3)) (Effective April 19, 2018). 

 

 

 

 

 

 

 

 

 

Information Requests Regarding the Identity or Contact Information 

of the Owner or Assignee of a Mortgage Loan 

69.	 For a borrower’s information request regarding the owner or assignee of a mortgage 

loan, when a loan is not held in trust for which an appointed trustee receives payments on 

behalf of the trust, determine whether the institution complied by identifying the person 

on whose behalf the institution receives payments (12 CFR Part 1024, Supp. I., 

Comment 1024.36(a)-2.i). 

However, when the loan is held in a trust for which an appointed trustee receives 

payments on behalf of the trust, determine first what specific information is being 

requested, and second whether the servicer complied with the requirements clarified in 

12 CFR Part 1024, Supp. I., Comment 1024.36(a)-2.ii: 

•	 For loans held in trust in which the Federal National Mortgage Association (Fannie 

Mae) or the Federal Home Loan Mortgage Corporation (Freddie Mac) is not the 

owner of the loan or the trustee, determine that the institution complied by 

identifying the name of the trust, and the name, address, and appropriate contact 

information for the trustee. (12 CFR Part 1024, Supp. I., Comment 1024.36(a)­

2.ii.A) 

•	 For loans held in a trust in which Fannie Mae or Freddie Mac is the owner of the 

loan or trustee, determine that the institution complied by providing the following 

information: 

•	 If the request did not expressly request the name or number of the trust or 

pool, the name and contact information for Fannie Mae or Freddie Mac, as 

applicable. The institution does not need to provide the name of the trust. 

•	 If the request did expressly request the name or number of the trust or pool, 

the name of the trust, and the name, address, and appropriate contact 

information for the trustee. (12 CFR Part 1024, Supp. I., Comment 

1024.36(a)-2(ii)(B)-(C)). 

NOTE: Comment 36(a)-2 clarifies that a servicer is not the owner or assignee for 

purposes of information requests under 12 CFR 1024.36 if the servicer holds title to the 

loan, or title is assigned to the servicer, solely for the administrative convenience of the 

servicer in servicing the mortgage loan obligation. It also states that the Government 

National Mortgage Association (Ginnie Mae) is not the owner or assignee for purposes 

of such requests for information solely as a result of its role as the guarantor of the 

security in which the loan serves as the collateral. (12 CFR Part 1024, Supp. I., Comment 

1024.36(a)-2). 

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Determination that No Response was Required 

70.	 If the institution determined that it was exempt from the requirement to respond,
 

determine whether the institution reasonably determined that one of the following five
 

exemptions applied:
 

•	 The information requested is substantially the same as information the borrower 

previously requested for which the institution has already complied with the 

requirements for responding to written information requests (12 CFR 

1024.36(f)(1)(i)); 

•	 The information requested is confidential, proprietary, or privileged (12 CFR 

1024.36(f)(1)(ii)); 

•	 The information requested is not directly related to the borrower’s mortgage loan 

account (12 CFR 1024.36(f)(1)(iii)); 

•	 The information request is overbroad or unduly burdensome. A request is overbroad 

if the borrower requests that the institution provide an unreasonable volume of 

documents or information. A request is unduly burdensome if a diligent institution 

could not respond within the time periods set forth in 12 CFR 1024.46(d)(2) or 

would incur costs (or have to dedicate resources) that would be unreasonable in light 

of the circumstances (12 CFR 1024.36(f)(1)(iv)); or 

•	 The information request is sent more than one year after either the mortgage loan 

balance was discharged or the institution transferred the mortgage loan to another 

servicer (12 CFR 1024.36(f)(1)(v)). A mortgage loan is discharged when both the 

debt and all corresponding liens have been extinguished or released, as applicable. 

Determination that Information Request was Overbroad 

71.	 If the institution determined that a submitted request was overbroad or unduly
 

burdensome, determine whether the institution could reasonably have identified a valid
 

information request in the submission and whether the institution did so (12 CFR
 

1024.36(f)(1)(iv)).
 

Impermissible Fees and Conditions 

72.	 Determine whether the institution charged a fee, or required a borrower to make any
 

payment that was owed on the borrower’s account, as a condition of responding to an 

information request (12 CFR 1024.36(g)).
 

Potential Successors in Interest (Effective April 19, 2018) 

73.	 In response to a written request from a potential successor in interest, determine whether 

the servicer provided the potential successor in interest with a written description of the 

documents the servicer reasonably required to confirm the person’s identity and 

ownership interest in the property as well as contact information, including a telephone 

number, for further assistance (12 CFR 1024.36(i)(1)). 

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74.	 With respect to the written request, determine whether the servicer treated the potential 

successor in interest as a borrower for purposes of the requirements in 12 CFR 1024.36 

(c)-(g), including responding to the request not later than the time limits set forth in 12
 

CFR 1024.36(d)(2). (12 CFR 1024.36(i)(1); 12 CFR Part 1024, Supp. I., Comment
 

1024.36(i)-2).
 

Force-Placed Insurance – 12 CFR 1024.37 

Applicability: Servicers must comply with restrictions on purchasing, renewing, and assessing 

fees for “force-placed insurance,” which is defined as hazard insurance that a servicer obtains on 

behalf of the owner or assignee to insure the property securing the mortgage loan (but does not 

include (i) flood insurance required by the Flood Disaster Protection Act of 1973; (ii) hazard 

insurance obtained by a borrower but renewed by the borrower’s servicer in accordance with 12 

CFR 1024.17(k)(1), (2), or (5); or (iii) hazard insurance obtained by a borrower but renewed by the 

borrower’s servicer at its discretion with the borrower’s agreement). 

The provisions of 12 CFR 1024.37 regulate when an institution may assess a premium charge or 

fee on borrowers related to force-placed insurance. These provisions apply to any mortgage loan, 

as that term is defined in 12 CFR 1024.31. 

Assessing Charges or Fees Related to Force-Placed Insurance 

Complete the following if the institution assessed a charge or fee on a borrower related to forceplaced insurance. 

Reasonable Basis 

75.	 Determine whether the institution had a reasonable basis to believe that the borrower has 

failed to comply with the mortgage loan contract’s requirement to maintain hazard 

insurance (12 CFR 1024.37(b)). An institution’s “reasonable basis” may be based upon 

information about a borrower’s hazard insurance which the institution receives from the 

borrower, the borrower’s insurance provider, or the borrower’s insurance agent. If the 

institution receives no such information, the institution may satisfy the “reasonable 

basis” standard if it acts with reasonable diligence to ascertain the borrower’s hazard 

insurance status and does not receive evidence of hazard insurance. A servicer that 

complies with the initial and reminder notice requirements (below) has acted with 

reasonable diligence (12 CFR Part 1024, Supp. I, Comment 1024.37(b)-1). 

Initial Notice 

76.	 Determine whether the institution provided the initial written notice to the borrower at 

least 45 days before assessing a fee or charge (12 CFR 1024.37(c)). 

77.	 Determine whether the initial notice included the following information (12 CFR 

1024.37(c)). Sample language for the initial notice is contained in Appendix MS-3(A) to 

12 CFR Part 1024. 

• The date of the notice; 

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•	 The institution’s name and mailing address; 

•	 The borrower’s name and mailing address; 

•	 A statement that requests the borrower provide hazard insurance information for the 

borrower’s property and that identifies the property by its physical address; 

•	 A statement that the borrower’s hazard insurance has expired, is expiring, or 

provides insufficient coverage (as applicable), that the institution lacks evidence that 

the borrower has hazard insurance coverage past the expiration date or lacks 

evidence that the borrower has hazard insurance that provides sufficient coverage (as 

applicable), and (if applicable) that identifies the type of hazard insurance lacking. 

(12 CFR 1024.37(c)(2)(v)); 

•	 A statement that hazard insurance is required on the borrower’s property and that the 

institution has purchased or will purchase insurance at the borrower’s expense; 

•	 A request that the borrower promptly provide the institution with insurance information; 

•	 A description of the requested insurance information, how the borrower may provide 

such information, and (if applicable) that the requested information must be in writing; 

•	 A statement that the insurance coverage the institution has purchased or will 

purchase may cost significantly more than, and provide less coverage than, hazard 

insurance purchased by the borrower; 

•	 The institution’s phone number for borrower inquiries; and 

•	 A statement advising that the borrower review additional information provided in the 

same transmittal (if applicable). 

78.	 Determine whether the initial notice was in the correct form. The notice must provide
 

certain information in bold text and, other than the specific statements listed above and 

the loan number, the institution cannot provide any information on the initial notice
 

(though the institution can provide additional information on separate pages of paper
 

contained in the same transmittal) (12 CFR 1024.37(c)(3)-(4)). A sample notice is
 

contained in Appendix MS-3(A) to 12 CFR Part 1024. 

Reminder Notice 

79.	 If the institution received no hazard insurance information or did not receive evidence of 

continuous coverage, determine whether the institution provided a reminder notice (i) at 

least 30 days after mailing or delivering the initial notice, and (ii) at least 15 days before 

assessing any charges or fees for force-placed insurance (12 CFR 1024.37(d)(1)). 

80.	 For borrowers who did not provide hazard insurance information, determine whether the 

reminder notice (i) contains the date of the reminder notice and all of the other 

information provided in the initial notice; (ii) advises that it is a second and final notice; 

and (iii) identifies the annual cost of force-placed insurance or, if unknown, a reasonable 

estimate (12 CFR 1024.37(d)(2)(i)). Sample language for the reminder notice is 

contained in Appendix MS-3(B) to 12 CFR Part 1024. 

81.	 When the institution receives hazard insurance information but does not receive evidence 

of continuous sufficient coverage, determine whether the reminder notice includes the 

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following information (12 CFR 1024.37(d)(2)(ii)). Sample language for the reminder 

notice is contained in Appendix MS-3(C) to 12 CFR Part 1024. 

•	 The date of the reminder notice; 

•	 The institution’s name and mailing address; 

•	 The borrower’s name and mailing address; 

•	 A statement requesting that the borrower provide hazard insurance information for 

the borrower’s property and that identifies the property by its physical address; 

•	 A statement that the insurance coverage the servicer has purchased or will purchase 

may cost significantly more than, and provide less coverage than, hazard insurance 

purchased by the borrower; 

•	 The institution’s phone number for borrower inquiries; 

•	 A statement advising that the borrower review additional information provided in the 

same transmittal (if applicable); 

•	 A statement that it is the second and final notice; 

•	 The annual cost of force-placed insurance, or if unknown, a reasonable estimate; 

•	 A statement that the institution has received the hazard insurance information that 

the borrower provided; 

•	 A request that the borrower provide the missing information; and 

•	 A statement that the borrower will be charged for insurance the institution purchases 

for the time period in which the institution cannot verify coverage. 

82.	 Determine whether the reminder notice was in the correct form. The notice must provide 

certain information in bold text and, other than the specific statements listed above and 

the loan number, the institution cannot provide any information on the reminder notice 

(though the institution can provide additional information on separate pages of paper 

contained in the same transmittal) (12 CFR 1024.37(d)(3)-(4)). Sample notices are 

contained in Appendix MS-3(B) and (C) to 12 CFR Part 1024. 

83.	 Determine whether, by the end of the 15-day period after the institution sent the reminder 

notice, the borrower provided evidence that it has had hazard insurance that complies with 

the loan contract continuously in place. As evidence, the institution may require a copy of 

the borrower’s hazard insurance policy declaration page, the borrower’s insurance 

certificate, the borrower’s insurance policy, or other similar forms of written confirmation 

(12 CFR 1024.37(c)(1)(iii) and 12 CFR Part 1024, Supp. I, Comment 1024.37(c)(1)(iii)-2). 

Assessing Charges or Fees for Renewing or Replacing Force-Placed 

Insurance 

If the institution assessed a charge or fee on a borrower for renewing or replacing force-placed 

insurance, complete the following. 

84.	 Determine whether the institution provided a written renewal notice to the borrower at
 

least 45 days before assessing any fee or charge (12 CFR 1024.37(e)(1)(i)). 

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85.	 Determine whether the renewal notice includes the following information (12 CFR 

1024.37(e)(2)). Sample language for the renewal of force-placed insurance notice is 

contained in Appendix MS-3(D) to 12 CFR Part 1024. 

•	 The date of the renewal notice; 

•	 The institution’s name and mailing address; 

•	 The borrower’s name and mailing address; 

•	 A statement that requests the borrower to update the hazard insurance information 

for the borrower’s property and that identifies the property by its physical address; 

•	 A statement that the institution previously purchased force-placed insurance at the 

borrower’s expense because the institution did not have evidence that the borrower 

had hazard insurance coverage; 

•	 A statement that the force-placed insurance has expired or is expiring, as applicable, 

and that the institution intends to renew or replace it because hazard insurance is 

required on the property; 

•	 A statement that the insurance coverage the institution has purchased or will 

purchase may cost significantly more than, and provide less coverage than, insurance 

purchased by the borrower, and identifying the annual premium cost of force-placed 

insurance or a reasonable estimate; 

•	 A statement that if the borrower purchases hazard insurance, the borrower should 

promptly provide the institution with insurance information; 

•	 A description of the requested insurance information and how the borrower may 

provide such information, and if applicable, that the requested information must be 

in writing; 

•	 The institution’s telephone number for borrower inquiries; and 

•	 A statement advising the borrower to review additional information provided in the 

same mailing (if applicable). 

86.	 Determine whether the renewal notice was in the correct form. The notice must provide 

certain information in bold text and, other than the specific statements listed above and 

the loan number, the institution cannot provide any information on the renewal notice 

(though the institution can provide additional information on separate pages of paper 

contained in the same transmittal) (12 CFR 1024.37(e)(3)-(4)). A sample notice is 

contained in Appendix MS-3(D) to 12 CFR Part 1024. 

87.	 Determine whether in the 45 days after sending the renewal notice the institution 

received evidence demonstrating that the borrower had purchased hazard insurance 

coverage (12 CFR 1024.37(e)(1)(ii)). As evidence, the institution may require a copy of 

the borrower’s hazard insurance policy declaration page, the borrower’s insurance 

certificate, the borrower’s insurance policy, or other similar forms of written 

confirmation. 

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General Mailing Requirements, Canceling Force-Placed Insurance, 

and Bona Fide and Reasonable Fee Requirements 

88.	 If the institution mailed any of the written initial, reminder, or renewal notices
 

(12 CFR 1024.37(c)(1)(i), (c)(1)(ii), or (e)(1)), determine whether the servicer used a
 

class of mail not less than first-class mail (12 CFR 1024.27(f)).
 

89.	 If the institution received evidence that the borrower had required hazard insurance 

coverage in place, determine whether the institution did the following within 15 days:
 

•	 Canceled the force-placed insurance, 

•	 Refunded force-placed insurance premiums charges and fees for the period of 

overlapping coverage, and 

•	 Removed all force-placed charges and fees from the borrower’s account for the 

period of overlapping coverage (12 CFR 1024.37(g)). 

90.	 Determine whether all fees or charges assessed on the borrower related to force-placed 

insurance are bona fide and reasonable (except for charges subject to State regulation and 

charges authorized by the Flood Disaster Protection Act of 1973). A “bona fide and 

reasonable charge” is one that is reasonably related to the institution’s cost of providing 

the service and is not otherwise prohibited by law (12 CFR 1024.37(h)). 

General Servicing Policies, Procedures, and Requirements 

– 12 CFR 1024.38 

Applicability: The general servicing policies, procedures, and requirements apply to all 

mortgage loans, as that term is defined in 12 CFR 1024.31, except that the requirements do not 

apply to (i) small servicers, as that term is defined in 12 CFR 1026.41(e)(4)(ii);30 (ii) reverse 

mortgage transactions, as that term is defined in 12 CFR 1026.33(a); and (iii) qualified lenders, 

as defined under the Farm Credit Act of 1971 and accompanying regulations. 

30 Refer to 12 CFR 1026.41(e)(4)(ii)) and (iii). A small servicer is defined as (1) a servicer that, together with any 

affiliates, services 5,000 or fewer loans, for all of which the servicer or any affiliate is the creditor or assignee; (2) a 

servicer that is a housing finance agency under 24 CFR 226.5; or (3) a nonprofit entity (defined in 12 CFR 

1026.41(e)(4)(ii)(C)(1)) that services 5,000 or fewer mortgage loans, including any mortgage loans serviced on 

behalf of associated nonprofit entities (defined in 12 CFR 1026.41(e)(4)(ii)(C)(2)), for all of which the servicer or an 

associated nonprofit is the creditor. Small servicer status is generally based on the loans serviced by the servicer and 

any affiliates as of January 1 for the remainder of the year. However, to determine small servicer status under the 

nonprofit small servicer definition, a nonprofit servicer should be evaluated based on the mortgage loans serviced by 

the servicer (and not those serviced by associated nonprofit entities) as of January 1 for the remainder of the 

calendar year. Servicers that cease to qualify as a small servicer will have the later of six months after the date they 

ceased to qualify, or until the next January 1 to come into compliance. Under 12 CFR 1026.41(e)(4)(iii), the 

following mortgage loans are not considered in determining whether a servicer qualifies as a small servicer: (a) 

mortgage loans voluntarily serviced by the servicer for a non-affiliate of the servicer and for which the servicer 

does not receive any compensation or fees; (b) reverse mortgage transactions; and (c) mortgage loans secured 

by consumers’ interests in timeshare plans; and (d) certain seller-financed transactions that meet the criteria 

identified in 12 CFR 1026.36(a)(5). 

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Policies and Procedures – Accessing and Providing Timely and 

Accurate Information 

91.	 Determine whether the institution has policies and procedures that are reasonably designed 

to ensure that it has access to and provides timely and accurate information (12 CFR 

1024.38(a) and (b)(1)). This includes policies and procedures that are reasonably designed 

to ensure the following: 

•	 Providing accurate and timely disclosures to the borrower; 

•	 Investigating, responding to, and making corrections in response to borrowers’ 

complaints, including promptly obtaining information from service providers to 

investigate and if applicable correct errors resulting from actions of service providers; 

•	 Providing borrowers with accurate and timely information and documents in response 

to borrower requests for information with respect to the borrower’s mortgage loan; 

•	 Providing owners and assignees of mortgage loans with accurate and current 

information and documents about all the mortgage loans they own, including 

information about the institution’s evaluations of borrowers for loss mitigation options 

and loss mitigation agreements with borrowers; 

•	 Submitting accurate and current information and documents that comply with 

applicable law during the foreclosure process; 

•	 Upon notification of a borrower’s death, promptly communicating with the borrower’s 

successor in interest concerning the secured property (Effective until April 19, 2018); 

•	 Upon receiving notice of a borrower’s death or of any transfer of the secured property, 

promptly facilitating communication with any potential or confirmed successors in 

interest regarding the property (Effective April 19, 2018); 

•	 Upon receiving notice of the existence of a potential successor in interest, promptly 

determining the documents the servicer reasonably requires to confirm the person’s 

identity and ownership interest in the property (see commentary to 12 CFR 

1024.38(b)(1)(vi) for illustrative examples) and promptly providing to the potential 

successor in interest a description of those documents and how the person may submit 

a written request under 12 CFR 1024.36(i) (Effective April 19, 2018); and 

•	 Upon the receipt of such documents, promptly making a confirmation determination 

and promptly notifying the person, as applicable, that the servicer has confirmed the 

person’s status, has determined that additional documents are required (and what those 

documents are), or has determined that the person is not a successor in interest 

(Effective April 19, 2018). 

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Policies and Procedures – Proper Evaluation of Loss Mitigation 

Applications 

92.	 Determine whether the institution has policies and procedures that are reasonably 

designed to ensure that its personnel properly evaluate loss mitigation applications (12 

CFR 1024.38(a) and (b)(2)). This includes policies and procedures that are reasonably 

designed to ensure the following: 

•	 Providing accurate information regarding available loss mitigation options from the 

owner or assignee of the borrower’s loan; 

•	 Identifying with specificity all loss mitigation options for which a borrower may be 

eligible, including identifying, with respect to each owner or assignee, all of the loss 

mitigation options the institution may consider when evaluating a borrower, as well 

as the criteria the institution should apply for each option; 

•	 Providing the loss mitigation personnel assigned to the borrower’s mortgage loan 

pursuant to 12 CFR 1026.40 with prompt access to all of the documents and 

information that the borrower submitted in connection with a loss mitigation option; 

•	 Identifying the documents and information a borrower must submit to complete a 

loss mitigation application; 

•	 In response to a complete loss mitigation application, properly evaluating the 

borrower for all eligible loss mitigation options pursuant to any requirements 

established by the owner or assignee of the mortgage loan, even if those 

requirements are otherwise beyond the requirements of 12 CFR 1024.41; and 

•	 Promptly identifying and obtaining documents or information not in the borrower's 

control that the servicer requires to determine which loss mitigation options, if any, 

to offer the borrower in accordance with the requirements of 12 CFR 1024.41(c)(4). 

Policies and Procedures – Oversight of Servicer Providers 

93.	 Determine whether the institution has policies and procedures that are reasonably
 

designed to facilitate oversight of, and compliance by, service providers (12 CFR
 

1024.38(a) and (b)(3)). This includes policies and procedures that are reasonably
 

designed to ensure the following:
 

•	 Providing appropriate personnel with access to accurate and current documents and 

information concerning the service providers’ actions; 

•	 Facilitating periodic reviews of service providers; and 

•	 Facilitating the sharing of accurate and current information regarding the status of a 

borrower’s loss mitigation application and any foreclosure proceeding among 

appropriate institution personnel, including the loss mitigation personnel assigned to 

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the borrower’s mortgage loan, and appropriate service provider personnel, including 

service provider personnel responsible for handling foreclosure proceedings. 

For instance, the policies and procedures must be reasonably designed to ensure 

that the servicer promptly informs service provider personnel handling 

foreclosure proceedings that the servicer has received a complete loss mitigation 

application and promptly instructs foreclosure counsel to take any step required 

by 12 CFR 1024.41(g) sufficiently timely to avoid violating the prohibition 

against moving for judgment or order of sale, or conducting a foreclosure sale. 

Policies and Procedures – Transfer of Information 

94.	 Determine whether the institution has policies and procedures that are reasonably
 

designed to facilitate the transfer of information during servicing transfers (12 CFR
 

1024.38(a) and (b)(4)). This includes policies and procedures that are reasonably
 

designed to ensure the following:
 

•	 For a transferor servicer, the timely and accurate transfer of all information and 

documents in its possession and control related to a transferred mortgage loan to the 

transferee servicer in a manner that ensures its accuracy and that allows the 

transferee to comply with the terms of the mortgage loan and applicable law, 

including any information about the status of any loss mitigation agreements or 

discussions with the borrower and any analysis performed with respect to potential 

recovery from non-performing mortgage loans; and 

•	 For a transferee servicer, identifying necessary documents or information that may not 

have been transferred, obtaining such missing documentation or information from the 

transferor servicer (for documents and information related to loss mitigation, the 

transferee’s policies and procedures must address obtaining missing documents from 

the transferor servicer before attempting to obtain such documents from the borrower). 

Policies and Procedures – Notifying Borrowers of Error Notice and 

Information Request Procedures 

95.	 Determine whether the institution has policies and procedures that are reasonably designed 

to inform borrowers of procedures for submitting written error notices and written 

information requests (12 CFR 1024.38(a) and (b)(5)). This includes policies and procedures 

reasonably designed to ensure that the institution informs borrowers who are dissatisfied 

with the institution’s response to oral complaints or information requests of the procedures 

for submitting written error notices under 12 CFR 1024.35 and written information requests 

under 12 CFR 1024.36. 

Record Retention – Accurate Records 

96.	 For any mortgage loan, determine if the institution is retaining accurate records that 

document actions with respect to the mortgage loan account (which includes any mortgage 

loan that has been transferred or paid in full). The institution must retain these records until 

95 
one year after the loan is discharged or the institution transfers servicing for the mortgage 

loan to a transferee servicer. (12 CFR 1024.38(c)(1)). 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Servicing File – Facilitating Aggregation of Information 

97.	 For documents or information created on or after January 10, 2014, determine whether the 

institution maintains the following five items for each mortgage loan file in a manner that 

allows the institution to aggregate these items into a servicing file within five days: 

•	 A schedule of all credits and debits to the account (including escrow accounts and 

suspense accounts); 

•	 A copy of the security instrument that establishes the lien securing the mortgage loan; 

•	 Any notes created by institution personnel reflecting communications with the 

borrower concerning the account; 

•	 A report of the data fields relating to the borrower’s account created by the institution’s 

electronic systems (if applicable); and 

•	 Copies of any information or documents provided by the borrower to the institution in 

connection with written error notices or loss mitigation (12 CFR 1024.38(c)(2)). 

Early Intervention Requirements for Certain Borrowers – 

12 CFR 1024.39 

Applicability: The early intervention requirements apply to only those mortgage loans, as that 

term is defined in 12 CFR 1024.31, that are secured by the borrower’s principal residence (12 

CFR 1024.30(c)(2)). The requirements do not apply to (i) small servicers, as that term is defined 

in 12 CFR 1026.41(e)(4)(ii),31 (ii) reverse mortgage transactions, as that term is defined in 12 

CFR 1026.33(a), and (iii) qualified lenders, as defined under the Farm Credit Act of 1971 and 

accompanying regulations (12 CFR 1024.30(b)). Refer to 12 CFR 1024.39(c)-(d) and associated 

31 Refer to 12 CFR 1026.41(e)(4)(ii)) and (iii). A small servicer is defined as (1) a servicer that, together with any 

affiliates, services 5,000 or fewer loans, for all of which the servicer or any affiliate is the creditor or assignee; (2) a 

servicer that is a housing finance agency under 24 CFR 226.5; or (3) a nonprofit entity (defined in 12 CFR 

1026.41(e)(4)(ii)(C)(1)) that services 5,000 or fewer mortgage loans, including any mortgage loans serviced on 

behalf of associated nonprofit entities (defined in 12 CFR 1026.41(e)(4)(ii)(C)(2)), for all of which the servicer or an 

associated nonprofit is the creditor. Small servicer status is generally based on the loans serviced by the servicer and 

any affiliates as of January 1 for the remainder of the year. However, to determine small servicer status under the 

nonprofit small servicer definition, a nonprofit servicer should be evaluated based on the mortgage loans serviced by 

the servicer (and not those serviced by associated nonprofit entities) as of January 1 for the remainder of the 

calendar year. Servicers that cease to qualify as a small servicer will have the later of six months after the date they 

ceased to qualify, or until the next January 1 to come into compliance. Under 12 CFR 1026.41(e)(4)(iii), the 

following mortgage loans are not considered in determining whether a servicer qualifies as a small servicer: (a) 

mortgage loans voluntarily serviced by the servicer for a non-affiliate of the servicer and for which the servicer 

does not receive any compensation or fees; (b) reverse mortgage transactions; and (c) mortgage loans secured 

by consumers’ interests in timeshare plans; and (d) certain seller-financed transactions that meet the criteria 

identified in 12 CFR 1026.36(a)(5). 

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commentary for an institution’s obligation to comply with the live contact requirements under 12 

CFR 1024.39(a) and written notice requirements under 12 CFR 1024.39(b) for borrowers in 

bankruptcy and for borrowers who have invoked cease communication rights under the FDCPA. 

Complete the following for any delinquent borrowers. 

NOTE: Delinquency for purposes of 12 CFR 1024.39 (and certain other sections in Regulation 

X) means a period of time during which a borrower and a borrower's mortgage loan obligation 

are delinquent. A borrower and a borrower's mortgage loan obligation are delinquent beginning 

on the date a periodic payment sufficient to cover principal, interest, and, if applicable, escrow 

becomes due and unpaid, until such time as no periodic payment is due and unpaid. (12 CFR 

1024.31). For purposes of 12 CFR 1024.39, this definition does not include borrowers 

performing as agreed under a loss mitigation agreement designed to bring the borrower current 

on a previously missed payment. (12 CFR Part 1024, Supp. I., Comment 1024.39(a)-1.ii). 

Live Contact 

98.	 Determine whether the institution made good faith efforts to establish live contact with the 

borrower within 36 days after each time the borrower became delinquent (12 CFR 

1024.39(a)). 

99.	 After the institution established live contact, determine whether the institution promptly
 

informed the borrower of loss mitigation options, if appropriate (as determined based on 

the institution’s reasonable discretion) (12 CFR 1024.39(a)).
 

Written Notice 

100.	 Determine whether the institution sent a written notice to the borrower within 45 days after 

the borrower became delinquent (12 CFR 1024.39(b)(1)). The institution generally does not 

need to send the notice to a borrower more than once in a 180-day period. Different timing 

requirements might apply when a borrower has filed for bankruptcy (see 12 CFR 

1024.39(c)) or has provided a cease communication notice pursuant to Section 805(c) of 

the FDCPA (see 12 CFR 1024.39(d)). 

101.	 Determine whether the notice included the following items (12 CFR 1024.39(b)(2)). 

Sample language for the notice is contained in Appendix MS-4(A), MS-4(B), MS-4(C), 

and MS-4(D) (that servicers subject to the FDCPA can use to comply with a new disclosure 

requirement for the written notice) to 12 CFR Part 1024. 

•	 A statement encouraging the borrower to contact the institution; 

•	 The telephone number to access assigned loss mitigation personnel; 

•	 A brief description of examples of loss mitigation options that may be available to the 

borrower (if applicable); 

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•	 Loss mitigation application instructions or instructions as to how to obtain more 

information about loss mitigation options (such as by contacting the institution), if 

applicable; 

•	 Either the CFPB’s or HUD’s website to access homeownership counselors or 

counseling organizations list and HUD’s toll-free number to access homeownership 

counselors or counseling organizations; and 

•	 If a mortgage servicer is a debt collector under the FDCPA with regard to a borrower’s 

mortgage loan, a statement that the servicer may or intends to invoke its specified 

remedy of foreclosure. 

Borrowers in Bankruptcy 

102.	 Determine whether the institution is exempt under 12 CFR 1024.39(c)(1)(i) for purposes of 

the live contact requirements or exempt under 12 CFR 1024.39(c)(1)(ii) for purposes of the 

written notice requirements. 

103.	 For servicers that are not exempt under 12 CFR 1024.39(c)(1)(i) or (ii), determine whether 

the servicer complied with, as applicable, the live contact requirements under 12 CFR 

1024.39(a) or the written notice requirements under 12 CFR 1024.39(b) as modified by 12 

CFR 1024.39(c)(1)(iii). 

104.	 For servicers that were exempt under 12 CFR 1024.39(c)(1)(i) and (ii) (unless they have 

discharged personal liability for the mortgage loan through bankruptcy), determine whether 

the servicer resumed compliance with the live contact and written notice requirements after 

the next payment due date that followed the earliest of the following events: (i) the 

bankruptcy case is dismissed; (ii) the bankruptcy case is closed; or (iii) the borrower 

reaffirms personal liability for the mortgage loan. (12 CFR 1024.39(c)(2)(i)). 

105.	 With respect to a mortgage loan for which the borrower has discharged personal liability 

under Sections 727, 1141, 1228, or 1328 of Title 11 of the United States Code, determine 

whether the servicer resumed compliance with the written notice requirements under 12 

CFR 1024.39(b) if the borrower has made any partial or periodic payment on the mortgage 

loan after the commencement of the borrower’s bankruptcy case. (12 CFR 

1024.39(c)(2)(ii)). (The servicer need not resume compliance with the live contact 

requirements under 12 CFR 1024.39(a) if the borrower has discharged personal liability as 

set forth above.) 

Fair Debt Collection Practices Act (FDCPA) 

NOTE: Servicers subject to the FDCPA can use MS-4(D) to comply with a new disclosure 

requirement for the written notice. 

106.	 If a mortgage servicer was a debt collector under the FDCPA with regard to a borrower’s 

mortgage loan for which any borrower has invoked cease communication rights pursuant to 

Section 805(c) of the FDCPA: 

98 
 

o 

o 

 

 

 

 

 

 

 

o	 

o	 

o	 

o 

o 

•	 Determine whether the servicer was exempt from the written notice requirements 

under 12 CFR 1024.39(b) because either: 

No loss mitigation option was available; or 

A borrower on the mortgage loan was a debtor in bankruptcy under Title 11 of the 

United States Code. (12 CFR 1024.39(d)(2)). 

•	 Determine whether the servicer was required to provide a modified written early 

intervention notice and that notice complied with the following: 

Content: 

The modified written notice included a statement that the servicer may or 

intends to invoke its remedy of foreclosure. 

The written notice did not contain a request for payment. 

Timing: 

The servicer did not provide the written notice more than once during any 

180-day period. 

•	 If a borrower was 45 days or more delinquent at the end of any 180­

day period after the servicer had provided the written notice, 

determine whether the servicer provided the written notice again no 

later than 190 days after the provision of the prior written notice. 

•	 If a borrower was less than 45 days delinquent at the end of any 

180-day period after the servicer has provided the written notice, 

determine whether the servicer provided the written notice again no 

later than 45 days after the payment due date for which the 

borrower remained delinquent or 190 days after the provision of the 

prior written notice, whichever was later.

 (12 CFR 1024.39(d)(3)). 

4. NOTE: A mortgage servicer that is a debt collector under the FDCPA with regard 

to a borrower’s mortgage loan for which any borrower has invoked cease 

communication rights pursuant to Section 805(c) of the FDCPA institution is exempt 

from the live contact requirements under 12 CFR 1024.39(a). 

Continuity of Contact – 12 CFR 1024.40 

Applicability: The continuity of contact requirements apply to only those mortgage loans, as 

that term is defined in 12 CFR 1024.31, that are secured by the borrower’s principal residence 

(12 CFR 1024.30(c)(2)). The requirements do not apply to (i) small servicers, as that term is 

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defined in 12 CFR 1026.41(e)(4)(ii),32 (ii) reverse mortgage transactions, as that term is defined 

in 12 CFR 1026.33(a), and (iii) qualified lenders, as defined under the Farm Credit Act of 1971 

and accompanying regulations (12 CFR 1024.30(b)). 

107.	 Determine whether the institution had policies and procedures reasonably designed to 

assign personnel to a delinquent borrower by the time the written early intervention notice 

was provided, and in any event, within 45 days after the borrower became delinquent (12 

CFR 1024.40(a)). 

108.	 Determine whether the institution had policies and procedures reasonably designed to 

ensure that the assigned personnel were available, via telephone, to answer the borrower’s 

questions and (as applicable) assist the borrower with available loss mitigation options until 

the borrower has made, without incurring a late charge, two consecutive mortgage 

payments in accordance with the terms of a permanent loss mitigation agreement (12 CFR 

1024.40(a)(2)). 

109.	 Determine whether the institution had policies and procedures reasonably designed to 

ensure that, if a borrower contacts the assigned personnel and does not immediately receive 

a live response, the institution can provide a live response in a timely manner (12 CFR 

1024.40(a)(3)). 

110.	 Determine whether the institution maintains policies and procedures reasonably designed to 

ensure that the assigned personnel can perform, among others, the following tasks: 

•	 Provide the borrower with accurate information about available loss mitigation options, 

including the steps the borrower must take to be evaluated for such options, including 

how to complete a loss mitigation application or appeal a denial of a loan modification 

option (if applicable); 

•	 Provide the borrower with accurate information about the status of any loss mitigation 

application submitted; 

32 Refer to 12 CFR 1026.41(e)(4)(ii)) and (iii). A small servicer is defined as (1) a servicer that, together with any 

affiliates, services 5,000 or fewer loans, for all of which the servicer or any affiliate is the creditor or assignee; (2) a 

servicer that is a housing finance agency under 24 CFR 226.5; or (3) a nonprofit entity (defined in 12 CFR 

1026.41(e)(4)(ii)(C)(1)) that services 5,000 or fewer mortgage loans, including any mortgage loans serviced on 

behalf of associated nonprofit entities (defined in 12 CFR 1026.41(e)(4)(ii)(C)(2)), for all of which the servicer or an 

associated nonprofit is the creditor. Small servicer status is generally based on the loans serviced by the servicer and 

any affiliates as of January 1 for the remainder of the year. However, to determine small servicer status under the 

nonprofit small servicer definition, a nonprofit servicer should be evaluated based on the mortgage loans serviced by 

the servicer (and not those serviced by associated nonprofit entities) as of January 1 for the remainder of the 

calendar year. Servicers that cease to qualify as a small servicer will have the later of six months after the date they 

ceased to qualify, or until the next January 1 to come into compliance. Under 12 CFR 1026.41(e)(4)(iii), the 

following mortgage loans are not considered in determining whether a servicer qualifies as a small servicer: (a) 

mortgage loans voluntarily serviced by the servicer for a non-affiliate of the servicer and for which the servicer 

does not receive any compensation or fees; (b) reverse mortgage transactions; (c) mortgage loans secured by 

consumers’ interests in timeshare plans; and (d) certain seller-financed transactions that meet the criteria identified 

in 12 CFR 1026.36(a)(5). 

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•	 Provide the borrower with accurate information about the circumstances under which 

the institution may refer the account to foreclosure; 

•	 Provide the borrower with accurate information about applicable loss mitigation 

deadlines; 

•	 Timely retrieve a complete record of the borrower’s payment history and all written 

information the borrower has provided to the institution (or the institution’s 

predecessors) in connection with a loss mitigation application, and provide these 

documents to other persons required to evaluate the borrower for available loss 

mitigation options; and 

•	 Provide the borrower with information about submitting a written error notice or 

written request for information (12 CFR 1024.40(b)). 

Loss Mitigation Procedures – 12 CFR 1024.41 

Applicability: The loss mitigation procedure requirements apply to only those mortgage loans, 

as that term is defined in 12 CFR 1024.31, that are secured by the borrower’s principal residence 

(12 CFR 1024.30(c)(2)). Except for the requirements of 12 CFR 1024.41(j), the loss mitigation 

procedure requirements do not apply to (i) small servicers, as that term is defined in 12 CFR 

1026.41(e)(4)(ii),33 (ii) reverse mortgage transactions, as that term is defined in 12 CFR 

1026.33(a), and (iii) qualified lenders, as defined under the Farm Credit Act of 1971 and 

accompanying regulations (12 CFR 1024.30(b)). A servicer must comply with the loss mitigation 

procedures for subsequent loss mitigation applications, unless the servicer previously complied 

with the requirements for a complete loss mitigation application from a borrower and the 

borrower has been delinquent at all times since submitting the prior complete application. (12 

CFR 1024.41(i)). 

Calculating Time Periods: 12 CFR 1024.41 provides borrowers certain protections if the 

institution receives a complete loss mitigation application at least a specified number of days 

before a foreclosure sale. See, e.g., 12 CFR 1024.41(c)(1) (37 days), and 12 CFR 1024.41(e) and 

33 Refer to 12 CFR 1026.41(e)(4)(ii)) and (iii). A small servicer is defined as (1) a servicer that, together with any 

affiliates, services 5,000 or fewer loans, for all of which the servicer or any affiliate is the creditor or assignee; (2) a 

servicer that is a housing finance agency under 24 CFR 226.5; or (3) a nonprofit entity (defined in 12 CFR 

1026.41(e)(4)(ii)(C)(1)) that services 5,000 or fewer mortgage loans, including any mortgage loans serviced on 

behalf of associated nonprofit entities (defined in 12 CFR 1026.41(e)(4)(ii)(C)(2)), for all of which the servicer or an 

associated nonprofit is the creditor. Small servicer status is generally based on the loans serviced by the servicer and 

any affiliates as of January 1 for the remainder of the year. However, to determine small servicer status under the 

nonprofit small servicer definition, a nonprofit servicer should be evaluated based on the mortgage loans serviced by 

the servicer (and not those serviced by associated nonprofit entities) as of January 1 for the remainder of the 

calendar year. Servicers that cease to qualify as a small servicer will have the later of six months after the date they 

ceased to qualify, or until the next January 1 to come into compliance. Under 12 CFR 1026.41(e)(4)(iii), the 

following mortgage loans are not considered in determining whether a servicer qualifies as a small servicer: (a) 

mortgage loans voluntarily serviced by the servicer for a non-affiliate of the servicer and for which the servicer 

does not receive any compensation or fees; (b) reverse mortgage transactions; and (c) mortgage loans secured 

by consumers’ interests in timeshare plans; and (d) certain seller-financed transactions that meet the criteria 

identified in 12 CFR 1026.36(a)(5). 

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(h) (90 days). These time periods are calculated as of the date the servicer receives a complete 

loss mitigation application. Thus, scheduling or rescheduling a foreclosure sale after the servicer 

receives the complete loss mitigation application will not affect the borrower’s protections (12 

CFR Part 1024, Supp. I., Comment 1024.41(b)(3)-2). (However, scheduling the sale is not 

necessarily the same as making the first notice or filing. If the servicer has not made the first 

notice or filing required by applicable law by the time it receives a complete application, it is 

generally prohibited from doing so before evaluating the application, pursuant to 1024.41(c).) If 

no foreclosure sale is scheduled as of the date the servicer receives a complete loss mitigation 

application, the application is considered received more than 90 days before a foreclosure sale 

(12 CFR Part 1024, Supp. I., Comment 1024.41(b)(3)-1). 

Definition of First Notice or Filing: 12 CFR 1024.41 includes certain prohibitions on 

making the first notice or filing for a judicial or non-judicial foreclosure and provides borrowers 

certain protections depending on whether such a notice or filing has been made at the time the 

servicer receives a complete application. Whether a particular document qualifies as the first 

notice or filing depends on the foreclosure process under the applicable state law at issue: 

•	 Judicial foreclosure. Where foreclosure procedure requires a court action or proceeding, 

the first notice or filing is the earliest document required to be filed with a court or other 

judicial body to commence the action or proceeding. Depending on the particular 

foreclosure process, examples of these documents could be a complaint, petition, order to 

docket, or notice of hearing; 

•	 Non-judicial foreclosure – recording or publication requirement. Where foreclosure 

procedure does not require an action or court proceeding (such as under a power of sale), 

the first notice or filing is the earliest document required to be recorded or published to 

initiate the foreclosure process; or 

•	 Non-judicial foreclosure – no recording or publication requirement. Where foreclosure 

procedure does not require an action or court proceeding, and also does not require any 

document to be recorded or published, the first notice or filing is the earliest document 

that establishes, sets, or schedules a date for the foreclosure sale. 

Note that a document provided to the borrower but not initially required to be filed, recorded, or 

published is not considered the first notice or filing on the sole basis that the documents must 

later be included as an attachment accompanying another document that is required to be filed, 

recorded, or published to carry out a foreclosure (12 CFR Part 1024, Supp. I., Comment 

1024.41(f)-1). 

Receipt of a Loss Mitigation Application (12 CFR 1024.41(b)) 

Review of an application received at least 45 days before a foreclosure sale 

(12 CFR 1024.41(b)(2)) 

111.	 If the institution received a loss mitigation application at least 45 days before a
 

foreclosure sale, determine that the institution:
 

102 
 

 

 

 

 

 

 

 

o 

o 

o

o

o

•	 Promptly upon receipt of a loss mitigation application, reviewed the loss mitigation 

application to determine if the loss mitigation application was complete. (12 CFR 

1024.41(b)(2)(i)(A); 12 CFR 1024.41(b)(1)). 

NOTE: 

A loss mitigation application that would trigger this requirement is viewed 

expansively and includes oral inquiries by the borrower where the borrower also 

provides information the institution would use to evaluate loss mitigation 

applications, or where a borrower requests that the institution determines whether 

the borrower is “prequalified” for a loss mitigation application by evaluating the 

borrower against preliminary criteria (12 CFR Part 1024, Supp. I., Comment 

1024.41(b)(1)-2). 

A complete loss mitigation application means an application in connection with 

which a servicer has received all the information that the servicer requires from a 

borrower in evaluating applications for the loss mitigation options available to the 

borrower (12 CFR 1024.41(b)(1)). 

If no foreclosure sale has been scheduled as of the date a servicer receives a loss 

mitigation application, the servicer must treat the application as having been 

received 45 days or more before any foreclosure sale (12 CFR Part 1024, Supp. I., 

Comment 1024.41(b)(2)(i)-1). 

•	 Notified the borrower in writing within five days (excluding legal public holidays, 

Saturdays, and Sundays) after receiving the loss mitigation application that the 

servicer acknowledged receipt of the loss mitigation application and determined that 

the loss mitigation application was either complete or incomplete (12 CFR 

1024.41(b)(2)). 

If the application is complete, determine that the written acknowledgement stated 

that the application was complete and included a statement that the borrower 

should consider contacting servicers of any other mortgage loans secured by the 

same property to discuss available loss mitigation options (12 CFR 

1024.41(b)(2)(i)(B) and (b)(2)(ii)). 

If a loss mitigation application is incomplete, stated, in the notice: (i) the 

additional documents and information the borrower must submit to make the loss 

mitigation application complete, (ii) the reasonable date by which the borrower 

must submit such documents or information, and (iii) a statement that the 

borrower should consider contacting servicers of any other mortgage loans 

secured by the same property to discuss available loss mitigation options (12 CFR 

1024.41(b)(2)). 

NOTE: For the reasonable date deadline, 30 days from the date the servicer provides 

the written notice is generally reasonable. The reasonable date, however, must be no 

later than the earliest of following milestones, but not less than seven days from the 

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date of the notice: (a) the date by which any document or information submitted by 

the borrower will be stale or invalid, (b) the 120th day of the borrower’s 

delinquency, (c) 90 days before a foreclosure sale; or (d) 38 days before a 

foreclosure sale (12 CFR Part 1024, Supp. I., Comments 1024. 41(b)(2)(ii)-1 through 

.41(b)(2)(ii)-3). 

Reasonable diligence requirements (12 CFR 1024.41(b)(1)) 

112.	 If the institution received an incomplete loss mitigation application, determine whether 

the institution exercised reasonable diligence to collect information needed to complete 

the application after receiving the loss mitigation application. (12 CFR 1024.41(b)(1); 12 

CFR Part 1024, Supp. I., Comments 1024.41(b)(1)-1, and .41(b)(1)-4) . 

NOTE: 

•	 Examples of reasonable diligence include: (a) where the institution requires 

additional information from the borrower (such as an address or telephone number to 

verify employment), promptly contacting the borrower to obtain the information; and 

(b) where the borrower’s loan is transferred to the institution from another servicer, 

reviewing documents the institution received from the prior servicer to determine if 

the required information is contained in those documents (12 CFR Part 1024, Supp. 

I., Comments 1024.41(b)(1)-4i and .41(b)(1)-4ii). 

•	 For borrowers offered short-term payment forbearance programs or short-term 

repayment plans on the basis of an incomplete application under 12 CFR 

1024.41(c)(2)(iii), refer to Comment 1024.41(b)(1)-4.iii for guidance relating to a 

servicer’s reasonable diligence obligations (12 CFR Part 1024, Supp. I., Comment 

1024.41(b)(2)(ii)). 

113.	 If the institution stopped collecting documents and information for a particular loss 

mitigation option, determine whether its decision was based on receiving information 

confirming that, pursuant to requirements established by the owner or assignee of the 

borrower’s mortgage loan, the borrower was ineligible for that option (12 CFR Part 

1024, Supp. I., Comment 1024.41(b)(1)-1). 

NOTE: A servicer may not stop collecting documents and information for any loss 

mitigation option based solely upon the borrower's stated preference but may stop 

collecting documents and information for any loss mitigation option based on the 

borrower's stated preference in conjunction with other information, as prescribed by any 

requirements established by the owner or assignee (12 CFR Part 1024, Supp. I., 

Comment 1024.41(b)(1)-1). 

Evaluation of Loss Mitigation Applications (12 CFR 1024.41(c)) 

Complete loss mitigation application evaluation (12 CFR 1024.41(c)(1)) 

114.	 If the institution received a complete loss mitigation application more than 37 days 

before a foreclosure sale, determine whether the institution, within 30 days of receiving 

the complete loss mitigation application: 

104 
o	 

o	 

o	 

 

 

•	 Evaluated the borrower for all loss mitigation options available to the borrower (12 

CFR 1024.41(c)(1)(i)); and 

•	 Provided the borrower with a written notice of the institution’s determination stating: 

Which loss mitigation options (if any) the institution would offer the borrower, 

The amount of time the borrower has to accept or reject an offered loss mitigation 

option pursuant to 12 CFR 1024.41(e), and 

If applicable, that the borrower has the right to appeal a denial of a loan 

modification option and the time period for making any appeal pursuant to 12 

CFR 1024.41(h) 

(12 CFR 1024.41(c)(1)). 

Incomplete loss mitigation application evaluation (12 CFR 

1024.41(c)(2)(i)-(iii)) 

115.	 If the borrower submitted an incomplete application and the institution has offered a loss 

mitigation option, determine whether the institution’s offer was permitted because: 

•	 The offer of the loss mitigation option was not based on any evaluation of 

information submitted by the borrower in connection with such application (12 CFR 

Part 1024, Supp. I., Comment 1024.41(c)(2)(i)-1); 

•	 The institution offered a loss mitigation option upon the evaluation of an incomplete 

application after it exercised reasonable diligence in obtaining documents and 

information to complete the loss mitigation application, but the application remained 

incomplete for a significant period of time under circumstances without any further 

progress by the borrower to complete the application (12 CFR 1024.41(c)(2)(ii)); or 

NOTE: Any such evaluation and offer is not subject to the requirements of this 

section and shall not constitute an evaluation of a single complete loss mitigation 

application for purposes of the duplicative request exception in 12 CFR 

1024.41(i) 

•	 The institution offered a short-term payment forbearance program or a short-term 

repayment plan based upon an evaluation of an incomplete application (12 CFR 

1024.41(c)(2)(iii). 

116.	 If the institution offered the borrower a short-term payment forbearance plan or shortterm repayment plan based upon information contained in an incomplete loss mitigation 

application, determine whether the institution promptly provided the borrower, unless the 

borrower rejected the offer, a written notice stating: 

•	 The specific payment terms and duration of the program or plan; 

105 
 

 

 

•	 That the servicer offered the program or plan based on an evaluation of an 

incomplete application, 

•	 That other loss mitigation options may be available, and 

•	 That the borrower has the option to submit a complete loss mitigation application to 

receive an evaluation for all loss mitigation options available to the borrower 

regardless of whether the borrower accepts the program or plan. 

(12 CFR 1024.41(c)(2)(iii)). 

NOTE: 

•	 A short-term payment forbearance program for these purposes allows a borrower to 

forgo making certain payments or portions of payments due over a period of no more 

than six months (12 CFR Part 1024, Supp. I., Comment 1024.41(c)(2)(iii)-1). 

•	 A short-term repayment plan for these purposes is a loss mitigation option with terms 

under which a borrower would repay all past due payments over a specified period of 

time to bring the mortgage loan account current. A short-term repayment plan allows 

for the repayment of no more than three months of past due payments and allows a 

borrower to repay the arrearage over a period lasting no more than six months (12 

CFR Part 1024, Supp. I., Comment 1024.41(c)(2)(iii)-4). 

117.	 If the institution offered the borrower a short-term payment forbearance plan or shortterm repayment plan based upon information contained in an incomplete loss mitigation 

application, determine whether the institution improperly (a) made the first notice or 

filing for any judicial or non-judicial foreclosure process, (b) moved for foreclosure 

judgment or an order of sale, or (c) conducted a foreclosure sale while the borrower was 

performing under such plan (12 CFR 1024.41(c)(2)(iii)). 

Facially Complete Application – Additional Information or Corrected 

Documents Required (12 CFR 1024.41(c)(2)(iv)) 

118.	 If the application was facially complete but the servicer later discovered that additional 

information or corrected documents were required to complete the application, determine 

whether: 

•	 The institution (i) promptly requested the missing information or corrected 

documents, and (ii) gave the borrower a reasonable opportunity to complete the 

application (12 CFR 1024.41(c)(2)(iv)). 

NOTE: 

A loss mitigation application is facially complete when (i) the institution’s initial notice 

under 12 CFR 1024.41(b)(2)(i)(B) advised the borrower that the application was 

complete, (ii) the institution’s initial notice under 12 CFR 1024.41(b)(2)(i)(B) requested 

additional information from the borrower to complete the application and the borrower 

106 
 

 

 

 

 

o	 

o	 

submits such additional information; or (iii) the servicer is required to provide the 

borrower a written notice of a complete application under 12 CFR 1024.41(c)(3)(i). 

A reasonable opportunity depends on the particular facts and circumstances, but must 

provide the borrower sufficient time to gather the necessary information and documents 

(12 CFR Part 1024, Supp. I., Comment 1024.41(c)(2)(iv)-1). 

119.	 In this same scenario, determine whether the institution treated the borrower’s application as 

complete for purposes of 12 CFR 1024.41(f)(2) (“Application received before foreclosure 

referral”) and 12 CFR 1024(g) (“Prohibition on foreclosure sale”) until the borrower is given 

a reasonable opportunity to submit additional information or corrected documents (12 CFR 

1024.41(c)(2)(iv)). 

Notice of Complete Application (12 CFR 1024.41(c)(3)) 

120.	 If none of the exceptions to the notice of complete application requirement listed in 12 

CFR 1024.41(c)(3)(ii) apply (see Note below), determine whether the institution has 

provided a written notice that the application is complete in accordance with 12 CFR 

1024.41(c)(3)(i). The notice of complete application must be provided within five days 

(excluding legal public holidays, Saturdays, and Sundays) after receiving a borrower’s 

complete loss mitigation application and must include the following information: 

•	 That the loss mitigation application is complete; 

•	 The date the servicer received the complete application; 

•	 That the servicer expects to complete its evaluation within 30 days of the date it 

received the complete application; 

•	 That the borrower is entitled to certain foreclosure protections because the servicer 

has received the complete application, and, as applicable, either: 

If the servicer has not made the first notice or filing required by applicable law 

for any judicial or non-judicial foreclosure process, that the servicer cannot make 

the first notice or filing required to commence or initiate the foreclosure process 

under applicable law before evaluating the borrower’s complete application; or 

If the servicer has made the first notice or filing required by applicable law for 

any judicial or non-judicial foreclosure process, that the servicer has begun the 

foreclosure process, and that the servicer cannot conduct a foreclosure sale 

before evaluating the borrower’s complete application; 

•	 That the servicer may need additional information at a later date to evaluate the 

application, in which case the servicer will request that information from the 

borrower and give the borrower a reasonable opportunity to submit it, the evaluation 

process may take longer, and the foreclosure protections could end if the servicer 

does not receive the information as requested; and 

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o	 

o	 

o	 

 

 

•	 That the borrower may be entitled to additional protections under state or federal 

law. 

NOTE: Under 12 CFR 1024.41(c)(3)(ii), a servicer is not required to provide a notice of 

complete application if: 

The servicer has already provided the borrower an acknowledgement notice 

under 1024.41(b)(2)(i)(B) stating the application is complete and the servicer has 

not subsequently requested additional information or corrected versions of 

previously submitted documents; 

The application was not complete or facially complete more than 37 days before 

a foreclosure sale; or 

The servicer has already provided the borrower a notice of its determination 

under 1024.41(c)(1)(ii). 

Information not in the borrower’s control (12 CFR 1024.41(c)(4)) 

121.	 Determine whether the servicer exercised reasonable diligence in obtaining information 

not in the borrower’s control that the servicer needs to determine which loss mitigation 

options to offer the borrower ( 12 CFR 1024.41(c)(4)(i)). 

122.	 Determine whether the servicer improperly denied the borrower’s complete loss 

mitigation application solely because the servicer lacks required documents or 

information not in the borrower’s control, (12 CFR 1024.41(c)(4)(ii)(A)(i), unless it was 

unable to obtain the documents and information for a significant period of time following 

the 30-day evaluation period and was unable to make a determination on the complete 

application. (12 CFR 1024.41(c)(4)(ii)(A)(2)). If this is the case, determine whether the 

servicer provided the written denial notice in accordance with 12 CFR1024.41(c)(1)(ii) 

and the written notice required under 12 CFR 1024.41(c)(4)(ii)(B) (see question below). 

NOTE: A servicer, however, is permitted to offer a borrower a loss mitigation option, 

even if the servicer does not obtain the requested documents or information. (12 CFR 

Part 1024, Supp. I., Comment 1024.41(c)(4)(ii)-2). 

123.	 If the servicer is unable to make a determination within 30 days of receiving a
 

borrower’s complete loss mitigation application due to the lack of the third-party 

information, review whether the servicer provided the written required notice to the
 

borrower under 12 CFR 1024.41(c)(4)(ii)(B) containing the following information:
 

•	 That the servicer has not received the third-party documents or information that the 

servicer requires to determine which loss mitigation options, if any, it will offer to 

the borrower; 

•	 The specific documents or information that the servicer lacks; 

•	 That the servicer has requested such documents or information; and 

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•	 That the servicer will complete its evaluation of the borrower for all available loss 

mitigation options promptly upon receiving the documents or information. 

Denial of loan modification options (12 CFR 1024.41(d)) 

124.	 If the institution denied the borrower’s complete application for any trial or permanent 

loan modification option available to the borrower, determine whether the notice 

provided to the borrower pursuant to 12 CFR 1024.41(c)(1)(ii) also stated the specific 

reason or reasons for denying each such option, and, if applicable, that the borrower was 

not evaluated on other criteria (12 CFR 1024.41 (d)). Specifically: 

•	 If the institution denied an application for a loan modification option due to a failure 

to meet investor guidelines, determine whether the institution identified in its notice 

to the borrower (i) the owner or assignee of the mortgage loan, and (ii) the specific 

criteria the borrower failed to meet (12 CFR 1024.41(d); 12 CFR Part 1024, Supp. I., 

Comment 41(d)-1). 

•	 NOTE: If the borrower’s application was evaluated under an investor’s waterfall and 

the borrower qualified for a particular option, it is sufficient for the institution to 

inform the borrower that the investor’s requirements include a ranking of options and 

that an offer of a loan modification option necessarily results in a denial of any other 

options ranked below the option for which the borrower is eligible (12 CFR Part 

1024, Supp. I., Comment 41(d)-1). 

•	 If the institution denied the application due to a net present value calculation, 

determine whether the institution disclosed the inputs used in that calculation (12 

CFR Part 1024, Supp. I., Comment 41(d)-2). 

•	 If the institution established a hierarchy of eligibility criteria and, after reaching the 

first criterion that causes a denial, did not evaluate whether the borrower would have 

satisfied the remaining criteria, determine whether the institution identified in the 

notice: (i) the specific reason or reasons why the borrower was actually rejected, and 

(ii) that the borrower was not evaluated on other criteria. (12 CFR Part 1024, Supp. 

I., Comment 41(d)-4). 

NOTE: An institution is not required to determine or disclose whether a borrower 

would have been denied based on other criteria if the servicer did not actually 

evaluate these additional criteria (12 CFR Part 1024, Supp. I., Comment 41(d)-4). 

Borrower response (12 CFR 1024.41(e)) 

125.	 If institution received the complete application at least 90 days before a foreclosure sale 

and offered a loss mitigation option, determine whether the institution provided the 

borrower with at least 14 days to accept or reject any offered loan modification option 

after the servicer provided notice of the offer to the borrower (12 CFR 1024.41(e)(1)). 

NOTE: 

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•	 If no foreclosure sale was scheduled when the servicer received the application, the 

application is considered to have been received more than 90 days before any 

foreclosure sale. (12 CFR Part 1024, Supp. I., Comment 41(b)(3)-1). 

•	 The acceptance period can be extended if, within 14 days, the borrower makes an 

appeal of a denial of any loan modification option pursuant to 12 CFR 1024.41(h). 

(12 CFR 1024.41(e)(2)(iii)). In the event of an appeal, the borrower’s time for 

acceptance is extended to 14 days after the institution provides a notice of its 

determination of the appeal. (12 CFR 1024.41(e)(2)(iii)). 

126.	 If institution received the complete application fewer than 90 days before a foreclosure sale 

but more than 37 days before the sale and offered a loss mitigation option, determine 

whether the institution provided the borrower with at least seven days to accept or reject 

any offered loss mitigation options after the servicer provided notice of the offer to the 

borrower (12 CFR 1024.41(e)(1)). 

127.	 If the institution offered a borrower a trial loan modification plan and the borrower did 

not respond within seven or 14 days (as applicable under 12 CFR 1024.41(e)(1)), 

determine (i) whether the borrower submitted payments in accordance with the offered 

plan, and (ii) if so, whether the institution gave the borrower a reasonable period of time 

to fulfill any remaining requirements to accept the plan (12 CFR 1024.41(e)(2)(ii)). 

Prohibition on foreclosure referral and sale (12 CFR 1024.41(f) and 

1024.41(g)) 

128.	 Determine whether the institution made the first judicial or non-judicial foreclosure 

notice or filing without meeting one of the following conditions: (i) the borrower was 

more than 120 days delinquent; (ii) the foreclosure is based on a borrower’s violation of 

a due-on-sale clause; or (iii) the institution is joining the foreclosure action of a 

subordinate or superior lienholder (12 CFR 1024.41(f)(1)). (Note that this requirement as 

applicable to small servicers is addressed below.) 

129.	 If the institution received a complete loss mitigation application either within the first 

120 days of delinquency or before the institution made the first judicial or non-judicial 

foreclosure notice or filing, determine whether the institution made the first foreclosure 

notice or filing only after one of the following occurred: (i) the institution notified the 

borrower that the borrower is ineligible for any loss mitigation option and if an appeal is 

available, either the appeal period expired or the appeal had been denied; (ii) the 

borrower rejected all the offered loss mitigation options; or (iii) the borrower failed to 

perform under a loss mitigation agreement (12 CFR 1024.41(f)(2)). 

130.	 If the institution received a complete loss mitigation application after the institution 

made the first foreclosure notice or filing required under applicable law but more than 37 

days before a foreclosure sale, determine whether the institution improperly conducted a 

foreclosure sale or moved for foreclosure judgment or order of sale before one of the 

following occurred: (i) the institution notified the borrower that it had denied the loss 

mitigation application for any loss mitigation option and if an appeal is available, either the 

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appeal period had expired or the appeal had been denied; (ii) the borrower rejected all the 

offered loss mitigation options; or (iii) the borrower fails to perform under a loss mitigation 

agreement (12 CFR 1024.41(g)). 

NOTE: A servicer must instruct foreclosure counsel promptly not to make a dispositive 

motion for foreclosure judgment or order of sale; where such a dispositive motion is 

pending, to avoid a ruling on the motion or issuance of an order of sale; and, where a sale 

is scheduled, to prevent conduct of a foreclosure sale, unless one of the conditions in 12 

CFR 1024.41(g)(1) through (3) is met. (12 CFR Part 1024, Supp. I., Comment 41(g)-3). 

A servicer is not relieved of its obligations because foreclosure counsel’s actions or 

inaction caused a violation. Absent one of the specified circumstances, conduct of the 

sale violates the regulation, even if a person other than the servicer administers or 

conducts the foreclosure sale proceedings. 

Appeal Process (12 CFR 1024.41(h)) 

Complete the following if (a) the institution denied a complete loss mitigation application for any 

trial or permanent loan modification option, and (b) the institution received that complete application 

(i) before the borrower was more than 120 days delinquent, (ii) before the institution made the first 

judicial or non-judicial foreclosure notice or filing, or (iii) at least 90 days before a foreclosure sale. 

131.	 For any borrower who timely appealed a denial of an available loan modification option, 

determine whether the institution provided a notice to the borrower within 30 days 

stating (i) whether it will offer the borrower a loss mitigation option based on the appeal, 

and (ii) if applicable, how long the borrower has to accept or reject this loss mitigation 

option or a previously offered loss mitigation option (12 CFR 1024.41(h)(4)). 

132.	 For any appeal that the institution granted, determine whether the institution afforded the 

borrower 14 days to accept or reject any offered loan modification option (12 CFR 

1024.41(h)(4)). 

133.	 Determine whether the institution used different personnel to evaluate the appeal than the 

personnel who had evaluated the borrower’s loss mitigation application (12 CFR 

1024.41(h)(3)). 

Duplicative Requests (12 CFR 1024.41(i)) 

134.	 Determine whether the institution complied with the loss mitigation procedures for all 

loss mitigation applications, unless the servicer previously complied for a complete loss 

mitigation application from a borrower and the borrower has been delinquent at all times 

since submitting the prior complete application. 

Small Servicers (12 CFR 1024.41(j)) 

135. If the institution is a small servicer, determine whether the institution made the first 

foreclosure notice or filing before (i) the borrower was more than 120 days delinquent, 

(ii) the foreclosure is based on a borrower’s violation of a due-on-sale clause, or (iii) the 

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institution is joining a subordinate or superior lienholder’s foreclosure action (12 CFR 

1024.41(j)). 

136.	 If the institution is a small servicer and the borrower is performing according to the terms 

of a loss mitigation agreement, determine whether the institution (i) made the first 

foreclosure notice or filing, (ii) moved for a foreclosure judgment or order of sale, or (iii) 

conducted a foreclosure sale (12 CFR 1024.41(j)). 

Servicing Transfers – (12 CFR 1024.41(k)) 

137.	 If the transferee (new) servicer acquired the servicing of a mortgage loan with a pending 

loss mitigation application as of the transfer date, determine whether the transferee 

servicer complied with the requirements of the loss mitigation procedures within the 

applicable timeframes. (The transfer date is defined for these provisions as the date on 

which the transferee servicer will begin accepting payments relating to the mortgage 

loan, as disclosed on the notice of transfer of servicing pursuant to 12 CFR 

1024.33(b)(4)(iv). (12 CFR 1024.41(k)(1)(ii)).) 

NOTE: In general, subject to the modifications below, the institution must comply within 

the timeframes that were applicable to the transferor (previous) servicer based on the 

date the transferor servicer received the loss mitigation application. A borrower 

continues to retain the rights and protections under 12 CFR 1024.41(c) through (h) to 

which a borrower was entitled before the servicing was transferred. (12 CFR 

1024.41(k)(1)(i)). A loss mitigation application is considered pending if the application 

is subject to the loss mitigation rules but was not fully resolved prior to the transfer date 

(12 CFR Part 1024, Supp. I., Comment 41(k)-1). 

a.	 If a transferee servicer acquired the servicing of a mortgage loan for which the 

period to provide the acknowledgement notice required by 12 CFR 

1024.41(b)(2)(i)(B) had not expired as of the transfer date and the transferor did 

not provide the acknowledgement notice, determine whether the transferee 

servicer provided the acknowledgment notice within 10 days (excluding legal 

public holidays, Saturdays, and Sundays) of the transfer date. (12 CFR 

1024.41(k)(2)(i)). 

b.	 If a transferee servicer was required to provide the acknowledgment notice as 

discussed in the previous question: 

i.	 Determine that the servicer did not make the first notice or filing for any 

judicial or non-judicial foreclosure process prior to the reasonable date 

disclosed in the acknowledgment notice to submit documents and 

information necessary to complete the application, notwithstanding the 

exceptions contained in 12 CFR 1024.41(f)(1). (12 CFR 

1024.41(k)(2)(ii)(A)). 

ii.	 And the borrower submitted a complete loss mitigation application to the 

transferee or transferor servicer 37 or fewer days before the foreclosure 

sale but on or before the reasonable date disclosed in the acknowledgment 

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notice, determine whether the servicer complied with the requirements 

regarding the evaluation of the loss mitigation application (12 CFR 

1024.41(c)); denial of loan modification options (12 CFR 1024.41(d), and 

prohibition on foreclosure sale (1024.41(g)). (12 CFR 

1024.41(k)(2)(ii)(B)). 

c.	 For pending complete loss mitigation applications as of the transfer date, 

determine whether the transferee servicer complied with the applicable 

requirements regarding complete loss mitigation applications (12 CFR 

1024.41(c)(1)) and information not in the borrower’s control (12 CFR 

1024.41(c)(4)) within 30 days of the transfer date (12 CFR 1024.41(k)(3)). 

d.	 For applications subject to the appeal process, if a transferee servicer acquired the 

servicing of a mortgage loan for which an appeal of a transferor servicer’s 

determination pursuant to 12 CFR 1024.41(h) had not been resolved by the 

transferor servicer as of the transfer date or was timely filed after the transfer date, 

determine whether: 

i.	 The transferee servicer made a determination on the appeal, if it was able 

to do so, and provided the required appeal determination notice under 12 

CFR 1024.41(h)(4) within 30 days of the transfer date or 30 days of the 

date the borrower made the appeal, whichever is later (12 CFR 

1024.41(k)(4)(i)). 

e.	 If a transferee servicer was unable to make a determination on an application 

subject to the appeal process, determine whether the servicer complied with the 

loss mitigation provisions, including evaluating the borrower for all loss 

mitigation options available to the borrower from the transferee servicer (12 CFR 

1024.41(k)(4)(ii)). 

f.	 Determine whether the transferee servicer allowed the borrower to accept or reject 

a pending loss mitigation offer during the unexpired balance of the applicable time 

period as required by 12 CFR 1024.41(k)(5). 

Applications Received from Successors in Interest (Effective April 

19, 2018) 

138.	 If the servicer receives a loss mitigation application from a confirmed successor in 

interest, determine whether the servicer is treating a confirmed successor in interest as a 

borrower for purposes of the loss mitigation procedures and complying with the relevant 

requirements (12 CFR Part 1024, Supp. I., Comment 1024.41(b)-1.i). 

139.	 If the servicer receives a loss mitigation application from a potential successor in interest 

and elects not to review and evaluate the loss mitigation application before confirming 

the person’s identity and ownership interest in the property: 

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•	 Determine whether the servicer has preserved the loss mitigation application and all 

documents submitted in connection with the application (12 CFR Part 1024, Supp. I., 

Comment 1024.41(b)-1.ii). 

•	 Upon confirmation of the successor in interest’s status, determine whether the 

servicer has reviewed and evaluated the loss mitigation application in accordance 

with the procedures set forth in 12 CFR 1024.41 if the property is the confirmed 

successor in interest’s principal residence and the loss mitigation procedures are 

otherwise applicable (12 CFR Part 1024, Supp. I., Comment 1024.41(b)-1.ii). 

NOTE: For purposes of 12 CFR 1024.41, the servicer must treat the loss mitigation 

application as if it had been received on the date that the servicer confirmed the 

successor in interest’s status. If the loss mitigation application is incomplete at the 

time of confirmation because documents submitted by the successor in interest 

became stale or invalid after they were submitted and confirmation is 45 days or 

more before a foreclosure sale, the servicer must identify the stale or invalid 

documents that need to be updated in a notice pursuant to 12 CFR 1024.41(b)(2) (12 

CFR Part 1024, Supp. I., Comment 1024.41(b)-1.ii). 

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