Servicing Guide

Published June 13, 2018

E-1.3-01: General Servicer Responsibilities for Non-Routine Matters (11/12/2014)

“Non-routine” litigation generally consists of an action that, regardless of whether Fannie Mae is a party to the proceeding

  • seeks monetary damages against Fannie Mae, its officers, directors, or employees;

  • challenges the validity, priority, or enforceability of a Fannie Mae mortgage loan or seeks to impair Fannie Mae’s interest in an acquired property and the handling of which is not otherwise addressed in the Servicing Guide; or

  • presents an issue that may pose a significant legal or reputational risk to Fannie Mae.

The following table describes the servicer’s responsibilities related to non-routine litigation.

The servicer must...

Appropriately handle legal matters affecting Fannie Mae mortgage loans.

Notify Fannie Mae’s Legal department of any non-routine litigation by submitting a Non-Routine Litigation Form (Form 20).

Note: Fannie Mae reserves the right to direct and control all litigation involving a Fannie Mae mortgage loan, and the servicer and any law firm handling the litigation must cooperate fully with Fannie Mae in the prosecution, defense, or handling of the matter.

Obtain Fannie Mae’s prior written approval before either

  • removing a case to federal court based on Fannie Mae’s Charter, or

  • appealing or otherwise challenging judgment in any foreclosure or bankruptcy proceeding.

Note: The servicer must also notify Fannie Mae’s Legal department by submitting Form 20 if a borrower files an appeal or seeks other post-judgment relief in a foreclosure or bankruptcy proceeding.

Periodically update Fannie Mae on the progress of non-routine litigation as necessary and appropriate.

Provide Fannie Mae with sufficient opportunity in advance of any deadline or due date to review and comment upon proposed substantive pleadings, including:

  • motions,

  • responses,

  • replies, and

  • briefs.

Notify retained counsel of its proposal to offer any mortgage loan modification and provide counsel with sufficient opportunity in advance of the solicitation to review and provide comments in connection with any solicitation materials. See also Determining Eligibility for a Fannie Mae Flex Modification in D2-3.2-09, Fannie Mae Flex Modification, and Determining Eligibility for a Fannie Mae Cap and Extend Modification for Disaster Relief in D2-3.2-07, Fannie Mae Cap and Extend Modification for Disaster Relief, for eligibility requirements.

Not all contested matters constitute non-routine litigation. The following represent examples that are considered routine litigation and need not be reported to Fannie Mae:

  • a contested foreclosure action in which the borrower alleges a case-specific procedural or technical defect in the foreclosure, or

  • a contested foreclosure action in which the borrower alleges a case specific payment application claim.

In contrast, a contested foreclosure or bankruptcy action in which a borrower challenges the servicer’s ability to conduct a foreclosure or seek relief from stay based on a legal argument that, if upheld, could have broader application to other Fannie Mae mortgage loans is non- routine litigation because of the potential for negative legal precedent to extend beyond the immediate case.

In order to assist the servicer in identifying non-routine litigation, the following table lists the categories of non-routine litigation and provides examples of matters that must be reported to Fannie Mae as non-routine litigation. Given the evolving nature of default-related litigation, it is not possible to provide an exhaustive list.

Non-Routine Category Examples

Actions that seek monetary relief against Fannie Mae.

Any claim (including counterclaims, cross- claims, or third-party claims in foreclosure or bankruptcy actions) for damages against Fannie Mae or its officers, directors, or employees.

Actions that challenge the validity, priority, or enforceability of a Fannie Mae mortgage loan or seek to impair Fannie Mae’s interest in an acquired property.

An action seeking to demolish a property as a result of a code violation;

An action seeking to avoid a lien based on a failure to comply with a law or regulation;

An attempt by another lienholder to assert priority over Fannie Mae’s lien or extinguish Fannie Mae’s interests;

A quiet title action seeking to declare Fannie Mae’s lien void; or

An attempt by a borrower to effect a cramdown of a mortgage loan in bankruptcy as to which Fannie Mae has not delegated authority to the servicer or law firm to address.

Actions that present an issue that may pose significant legal or reputational risk to Fannie Mae.

Any issue involving Fannie Mae’s conservatorship, its conservator FHFA, Fannie Mae’s status as a federal instrumentality, or an interpretation of Fannie Mae’s Charter;

Any contention that Fannie Mae is a federal agency or otherwise part of the United States Government;

Any “due process” or other constitutional challenge;

Any challenge to the methods by which Fannie Mae does business;

Any putative class action involving a Fannie Mae mortgage loan;

A challenge to the standing of the servicer to conduct foreclosures or bankruptcies that, if successful, could create negative legal precedent with an impact beyond the immediate case;

A challenge to the methods by which MERS does business or to its ability to act as nominee under a mortgage;

Any “show cause orders” or motions for sanctions relating to a Fannie Mae mortgage loan, whether against Fannie Mae, the servicer, a law firm, or a vendor of the servicer or law firm;

Any foreclosure on Native American tribal lands;

Any environmental litigation relating to a Fannie Mae loan;

A need to foreclose judicially in a state where non-judicial foreclosures predominate;

Any claim invoking a Fannie Mae HAMP as a basis to challenge a foreclosure;

Any cross-border insolvency proceeding under Chapter 15 of the Bankruptcy Code;

Any claim of predatory lending or discrimination in loan origination or servicing; or

Any claim implicating the interpretation of the terms of the Fannie Mae/Freddie Mac Uniform Mortgage Instruments.