MAIDEN VOYAGE inside this issue spotlight: woods oviattp6 snapshot: foreclosure hot topicsp10 advocacy: spring into actionp12 twelve years of answersp24 servicer sitdown: bayviewp30
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PRACTICE AREAS: Foreclosure, Bankruptcy, Litigation, Loss Mitigation, REO, Title, and Eviction STATES: 8 state based offices with local attorneys supported by a national back office. California, Florida, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, Texas
alfn angle: in this issue FROM THE PRESIDENT
CEO Wesley T. Kozeny briefs members on organizational updates and introduces the newly reformatted ALFN ANGLE
SPOTLIGHT: NATALIE GRIGG, ESQ. p6
p10 p31 p30
Meet New York member Woods Oviatt Gilman as we sit down with attorney Natalie Grigg, Esq.
SNAPSHOT: HOT TOPICS IN FORECLOSURE
Get a sneak peek of five hot topics in foreclosure to be examined in more detail during a session at ANSWERS
SERVICER SITDOWN: BAYVIEW
Sasha Cohen, Esq., Vice President and Corporate Counsel of Default Administration, Bayview Loan Servicing, LLC
features & contributions p12
ADVOCACY: SPRING INTO ACTION
Third annual legislative & regulatory policy summit concludes with traction gained on FDCPA bills and other issues
COVER STORY: MAIDEN VOYAGE
Cade Holleman, M.A. AVP, Government Affairs & Communications American Legal & Financial Network
The CFPB celebrates its third anniversary and the six month marker after mortgage servicing rules take effect
Michelle Gilbert, Esq. Matthew Kahl, Esq. Abe Salen, Esq.
OPERATIONS: FULL-TIME EMPLOYEES
Affordable Care Act affects how full-time employees are defined and what firms should know about hiring today
A retrospective of the 12 years of ANSWERS as members head to Colorado this month with increased servicer attendance
Questions from mortgage servicers. Answers from the ALFN.
Firm Announces Illinois Appearance Counsel Update Michigan Firm Announces New Executive Hire
Cade Holleman, M.A. AVP, Government Affairs & Communications American Legal & Financial Network email@example.com
American Legal & Financial Network (ALFN) 12400 Olive Blvd., STE 555 St. Louis, MO 63141 314.590.0859 (phone) 314.744.7738 (fax) www.alfn.org
Christina Danovsky SVP, Business Development American Legal & Financial Network firstname.lastname@example.org
Ashleigh Bouselli Administrative & Event Coordinator American Legal & Financial Network email@example.com
Vol. 1 / Issue 1 / Summer 2014
The ALFN ANGLE is a quarterly digital magazine published by the American Legal & Financial Network (ALFN) on behalf of its attorney/trustee, associate, and mortgage servicing members. Reprint permission is available by request. To contribute or advertise, please contact the ALFN directly.
THE SAME BOLD PERSPECTIVE FROM A NEW ANGLE For over ten years the ALFN ANGLE has delivered timely organizational, legal, and industry updates to members’ inboxes. With the industry’s shift toward compliance, regulation and related oversight issues, our need for an expanded publication with deeper insights, more meaningful analysis and a greater opportunity for dialogue has grown tremendously. So while we needed something new, we realize we’ve always had a good angle on legal issues affecting the mortgage servicing industry.
That’s where the new ANGLE comes in. We’ve kept the same great organizational information you need from the ALFN to stay abreast of events, happenings and breaking news, but we’ve worked hard to deepen our coverage of issues facing members and the mortgage servicing community. And now that’s curated all in one place, the brand new digital ANGLE Magazine. What you can expect is simply more of the same great content ALFN has always provided—just from a fresh, new ANGLE.
WESLEY T. KOZENY PRESIDENT & CEO, ALFN
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spotlight HOW’S WORKING IN A STATE KNOWN FOR ITS TOUGHNESS WITH AN EVEN TOUGHER AND ONTHE-HUNT OFFICE OF FINANCIAL SUPERVISION? JUST ASK WOODS OVIATT. THEY KNOW. by Cade Holleman, ALFN With over 160 years of experience, there’s no question that Woods Oviatt is a forward-looking organization. Momentum alone might be responsible for that. However, credit should be given to the energized, dynamic attorneys who lead some of its most important practice areas. Enter Natalie Grigg, a New York native who transitioned to creditor’s rights work just as things began to fall apart in 2008. “I entered into the industry right around the crash. When I was coming into the market, it was right in the middle of the proverbial ‘smackdown’ on robosigning and the assault on MERS,” says Grigg of the environment she found herself in when transitioning out of civil litigation and insurance defense. “I was looking for a change and eventually found a new home at Woods Oviatt,” she continued. It’s at Woods Oviatt, a New Yorkbased firm, where she now heads the firm’s foreclosure and bankruptcy departments.
When asked about Woods Oviatt’s decision to join the ALFN, Grigg offered a few motivating factors. “With the increased scrutiny on the industry we wanted to make sure we were part of the key organizations in the industry that can keep us abreast of developments and to take advantage of the marketing benefits,” she said. Grigg continued, saying “That aspect was particularly important as we see our role as not just attorneys handling cases, but as counselors—Woods Oviatt wants to be a true partner to the lender and servicer community in New York.” Being a partner to the mortgage servicing community is increasingly expensive and some firms have found it hard to compete with the audit standards, technology, and infrastructure requirements. How does Woods Oviatt handle it? Well, New York has never been easy. The timelines are long and state regulators take their jobs very seriously—just check the news.
Grigg says, “We already had strict standards in place. Though we’ve increased our quality control, document review, execution of documents—we’ve heightened those standards because we’re aware of the increased liability of lenders and servicers.” Grigg also keeps her fingers on the pulse of hot topics. After discussing the issues she believes we’ve “mostly put to bed” like MERS and robosigning that dominated headlines when she first came into the industry, she immediately dives into the issue of so-called zombie foreclosures. For those details, Grigg says “access our New York State Spotlight webinar—you’ll learn everything you need to know, especially servicers—it will give you a glimpse inside New York from the attorney’s perspective.” Woods Oviatt joined the ALFN in May 2014 and is a member in New York state. For more information on the firm, visit ALFN.org or contact the firm directly.
CONTACT NATALIE A. GRIGG, ESQ. WOODS OVIATT GILMAN ALFN NEW YORK MEMBER PHONE: 585-362-4521 NGRIGG@WOODSOVIATT.COM WOODSOVIATT.COM
DON’T MISS WEBINAR: NEW YORK STATE SPOTLIGHT HOSTED BY: WOODS OVIATT GILMAN AVAILABLE: NOW ONLINE AT ALFN.ORG
WOODS OVIATT WANTS TO BE A TRUE PARTNER TO THE LENDER AND SERVICER COMMUNITY IN NEW YORK STATE.
The ALFN Junior Professionals & Executives Group (JPEG) is designed to support young professionals employed by ALFN attorney/trustee, associate or mortgage servicer members. The group focuses on networking, mentoring and creating opportunities that will retain industry talent, build cross-generational relationships and shape future leaders of the mortgage servicing industry. JPEGs are either under 39 years of age or have fewer than five years of industry experience. Any ALFN member may have participants in JPEG. JPEG meets via monthly teleconference and hosts two mixers a year: at the MBA Mortgage Servicing Conference and ALFNâ€™s Annual Leadership Conference, ANSWERS, where the annual JPEG: Picture the Future List is published each July. To find out how to join JPEG, attend Monday nightâ€™s mixer or contact Cade Holleman at email@example.com.
THANK YOU TO OUR 2014 JPEG: PICTURE THE FUTURE SPONSORS
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snap shot FORECLOSURE ATTORNEYS DISCUSS THE INDUSTRY’S HOTTEST TOPICS, IDENTIFY RISKS, AND PROPOSE SOLUTIONS TO NEGATE THOSE RISKS OR REDUCE THEIR IMPACT ON A SERVICER OR LAW FIRM by Michelle Gilbert, Esq.
Aggressive condominium and homeowners associations. FDCPA violations filed against law firms. Chronologies, curtailments and compensatory fees. Using prior servicers’ records and problems with breach letters. Read on for a look at what’s facing the default servicing industry. ASSOCIATION ASSESSMENTS Many times the litigation surrounding foreclosure does not end after the sale. If a borrower has defaulted on his or her mortgage, he or she has likely defaulted on the Association assessments. Associations in des-
perate need for funds, seek past-due assessments from the new title owners of the property. For purchasers at a foreclosure sale and first mortgagees of foreclosure properties, this could lead to extensive negotiating and even litigation with an association over past-due assessments. FDCPA LAWSUITS Thousands of FDCPA lawsuits are filed or threatened each year that are based upon alleged errors contained in pleadings filed in court. Some courts reject the notion that the FDCPA applies to pleadings while others have reached the opposite
conclusion. In many jurisdictions, the question is unsettled, creating uncertainty for practicing attorneys and opportunity for consumers’ attorneys. The need for legislation like H.R. 2892 has been recognized for many years. From 1998 through 2006, the Federal Trade Commission recommended such a clarification. H.R. 2892 is not an outright exclusion for attorneys. It clarifies the intent that the FDCPA should not apply to litigation-related attorney conduct that is already subject to judicial oversight and retains the FDCPA’s applicability to attorneys’ extrajudicial activities such as demand letters and phone calls.
PASS THROUGH FEES The industry comes under scrutiny about fees and costs, which are charged to loans and borrowers. Investors are requiring firms to conduct fees and costs analysis to support the reasonableness of any third party pass through charges. The scrutiny starts with chronologies followed by curtailments and request for compensatory fees from servicers, who seek reimbursement from firms. Is this a way to offset curtailments faced by servicers? MSR TRANSFERS & PRIOR SERVICER RECORDS
BREACH LETTERS/ NOTICES OF DEFAULT The failure to include certain items in breach letters/notices of default could lead to a ruling by that the condition precedent necessary for the initiation of the foreclosure action has not been met. Omitting these items in the acceleration letter has been the basis of denial of foreclosure until condition precedent is met. What impact does one of the latest defense strategies have on “old” cases with “old” breach letters? LEARN MORE AT ANSWERS
Just as investors buy and sell mortgages, servicers are routinely changed during the life of the loan. When a service transfer occurs and the loan goes into foreclosure, the business records associated with the loan become extremely important in order to prove in a court of law that the subject loan is in default and the default has not been cured. A trend in some states is the inability of current loan servicers being permitted to testify about prior servicers records, even though the business records exception to hearsay is accepted in all states. Recent rulings address computer-generated records used in foreclosure trials and highlight difficulties successor servicers have with using prior servicing records at trial.
Join this author, Michelle Gilbert, Esq., President & CEO of Gilbert Garcia Group, and fellow panelists Brian G. Sayer, Esq., a Partner with Klatt, Odekirk, Augustin, Sayer, Treinen & Rastede, P.C.; Candice Archibald, Attorney Oversight, M&T Bank; Elizabeth Wellborn, Esq., Founder & Principal, Law Offices of Elizabeth R. Wellborn, P.A.; And Samantha Gramsas, AVP of Business Controls with Specialized Loan Servicing, LLC (SPS) who will discuss “Hot Topics in Foreclosure” at the upcoming ALFN ANSWERS conference this July 2023, 2014. The session is moderated by Kim M. Hammond, Esq., Managing Attorney with Ohio-based Keith D. Weiner & Assoc. Co., LPA and will be held on Tuesday, July 22 in the Broadmoor Hall D.
CONTACT THE AUTHOR Michelle Garcia Gilbert, Esquire Managing Partner Gilbert Garcia Group, P.A. 2005 Pan Am Circle, Suite 110 Tampa, Florida 33607 Direct Office: 1-813-638-8920 Cell: 1-813-810-1414 Facsimile: 1-813-443-5089 firstname.lastname@example.org www.gilbertgrouplaw.com
MICHELLE GILBERT, ESQ.
DON’T MISS THESE HOT TOPICS AND MORE AS THEY’RE ADDRESSED BY PRACTITIONERS AT ANSWERS 2014 ROUNDTABLE SESSION 2: HOT TOPICS IN FORECLOSURE TUESDAY, JULY 22, 3:00-4:00 PM BROADMOOR HALL D
SPRING INTO ACTION: ALFN TAKES MEMBER ISSUES TO REGULATORS & LEGISLATORS IN WASHINGTON, D.C. On Wednesday April 9, 2014, the American Legal & Financial Network (“ALFN”) held its third annual Advocacy Day in Washington, D.C. The event was well-attended by attorneys in the mortgage banking and default services industries with over 50 attorneys from 30 law firms nationwide present. The morning consisted of speakers from the Consumer Financial Protection Bureau (“CFPB”) and the Federal Housing Finance Agency (“FHFA”), two of the most important regulators in the mortgage servicing industry, as well as other nationally recognized experts on the Fair Debt Collection Practices Act (“FDCPA”) and other relevant subject matters. The afternoon’s session shifted to Capitol Hill and meetings with over 60 members of Congress including 13 that sit on a banking, housing or financial services committee. The goal of these meetings was to discuss several of the key pieces of legislation relating to the mortgage servicing industry and request Congressional sponsorship and/or support.
During the morning session, the first panel discussion was titled “New Regulatory Actions and Legislative Clarifications: What Does the Next Generation of the FDCPA Look Like?” The panel included three law firm partners and the Director of Government and Public Affairs from National Association of Retail Collection Attorneys (“NARCA”). The main topic of this discussion was H.R 2892: FDCPA Technical Clarification Act, which would provide a partial exemption for litigation-related attorney conduct. In its original form, the FDCPA contained a complete exemption for attorneys. That exemption was removed in 1985; however, Rep. Annunzio (D-IL), the sponsoring Congressman, explained at that time that the FDCPA’s intent was still to regulate only non-litigation collection. Since the exemption was repealed, there have varying opinions amongst the courts whether attorneys are subject to the FDCPA. Thus, the purpose of this pending Act was to clarify the FDCPA in that it should not apply to litigation-related conduct as attorneys are already subject to judicial oversight. The FDCPA would retain application to non-litigation activities including sending demand letters and telephone calls to consumers.
KEY CONCEPTS Advocacy Day brought together ALFN attorney/trustee and associate members to advocate on behalf of industry participants Members of Congress and regulators alike were interested, open, and forthcoming in conversations with attendees Considerable legislative progress has been made on FDCPA-related issues building on Advocacy Day’s success in April
The second panel discussion, titled “Trickle-Down: How Supervision & Enforcement Actions Move Down the Mortgage Servicing Food Chain”, was headlined by two members of the CFPB: Erin Jeweler, an Attorney-Advisor from the Office of Supervision Policy and Scott Steckel, a Consumer Response Product Analyst from the Office of Consumer Response. Mrs. Jeweler provided insight as to the structure of the CFPB’s Supervision and Enforcement Department including number of offices (San Francisco, Chicago, New York, D.C. plus regional offices), number of employees (over 1,300), and number of field examiners (over 350). Among the key issues currently on the CFPB’s radar are Loss Mitigation Applications, Periodic Statements (ensuring borrower notification of fees being assessed) and Servicing Transfers. While the CFPB does not publish specific results of its review, it does publish Supervisory Highlights,
the most recent of which was published on its website in January 2014. Mr. Steckel advised the attendees that since December 2011, the Office of Consumer Response has received more than 330,000 complaints. Of this total number, 73% of the complaints have been routed to mortgage servicers for a response and there has been a 95% response rate from servicers. Following the servicers’ responses, only 21% resulted in further disputes from consumers. Following the morning discussions, the group left the Westin National Harbor for the Congressional meetings on Capitol Hill. Each attendee was scheduled to meet with his/her respective Representative and Senator, if possible, as well as other Representatives from his/her respective state. As some of the states had multiple attendees present, these meetings typically were held in a group setting in the Congressman’s office. While a few of the meetings where directly with the Congressman, most of them were with a Legislative Assistant, Legislative Affairs Director or even Chief of Staff. In total, the group met with 40 Representatives and 22 Senators from Arkansas, California, Florida, Georgia, Illinois, Louisiana, Massachusetts, Maryland, Missouri, North Carolina, New Jersey, Nevada, New York, Ohio, Pennsylvania, Texas, Virginia, and Washington as well as Puerto Rico. Some of the more well-known Congressman included Representative Tom Cotton, Representative Alcee Hastings, Representative John Lewis, Senator Elizabeth Warren, Representative Peter King, and Senator Ted Cruz. In addition to the proposed FDCPA legislation discussed during the morning panel, the Congressional meetings also focused on H.R. 3543: Permanently Protecting Tenants at Foreclosure Act of 2013, H.R. 2767: Protecting American Taxpayers and Homeowners Act (PATH Act), and S. 1217: Housing Finance Reform and Taxpayer Protection Act. Additionally, some attendees also discussed the draft Home Foreclosure Procedures Act, a set of uniform foreclosure laws proposed by the National Conference
of Commissioners on Uniform State Laws, which is a state-supported, non-profit unincorporated association comprised of lawyers appointed by state governments to draft non-partisan legislation to bring clarity and stability to critical areas of state foreclosure laws. Overall, the discussions were very positive. In particular, there was a lot of positive feedback relating to H.R 2892: FDCPA Technical Clarification Act. The only hesitancy expressed by some of the Congressmen was whether this Act would remove all law firms from complying with the Fair Debt Collection Practices Act. (It should be noted that following the ALFN’s Advocacy Day, on May 13, 2014, Senator Patrick Toomey introduced S. 2328 Fair Debt Collection Practices Technical Clarification Act of 2014 that mirrored the House’s version of the bill but included an additional clause that the amendment would not exempt any law firm “engaged in any activity other than those activities specifically described in the amendments from being subject to the any other applicable provision of the Fair Debt Collection Practices Act.”)
THE ONLY HESITANCY EXPRESSED BY SOME OF THE CONGRESSMEN WAS WHETHER THIS ACT WOULD REMOVE ALL LAW FIRMS FROM COMPLYING WITH THE FAIR DEBT COLLECTION PRACTICES ACT.
Each of the individuals that the ALFN met with was very professional and interested in the conversations being held. This was a pleasant surprise considering the number of meetings the Congressional offices have scheduled each day. The meetings were not rushed and the Congressional representative seemed more than happy to spend a couple extra minutes just talking about how things were, in general, back in the Congressman’s state. That evening, the group reconvened at the Westin for a reception and to discuss our meetings and observations from the day. The reception also included meet-and-greets with former Representative Nancy Lee Johnson (R-CT) and keynote speaker Representative Ann Wagner (R-MO). Representative Wagner currently sits on the House Financial Services Committee and sub-committee on Capital Markets and GSE Oversight.
ABOUT THE AUTHOR Matthew L. Kahl, Esq. Senior Associate Default Operations and Compliance Director Morris|Hardwick|Schneider Phone: 678-298-2117 ext. 12508 email@example.com www.closingsource.net
ADVOCACY TOOLS & MEMBER RESOURCES stay on top of the issues all year long with our member resources
ALFN WEBINAR: HOUSE FDCPA BILL
N RICA AMERICAN AMEAL &LEGA & IAL LCIAL LEARGANCFIN ALFN WEBIN AN K R N toIthe tionF AR Educa WO NE TWORK EBIN highest level. E T NW N ALF e to th on l. cati Edu st leve e high
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PRESENTERS: Cade Holleman, AVP, ALFN; Andrea Tromberg, Esq., Managing Partner, Gladstone Law Group; Noah Marine, Legislative Director, U.S. House Representative Ed Perlmutter. ORIGINAL AIR DATE: March 28, 2014 ACCESS: archive available via members-only portal at ALFN.org
ALFN WEBINAR: ADVOCACY DAY DEBRIEF
PRESENTERS: Cade Holleman, AVP, ALFN; Matthew Kahl, Esq., Senior Associate, Morris|Hardwick|Schneider; Michelle Gilbert, Esq., President & CEO Gilbert Garcia Group, P.A.; Marisol Morales, Esq., Managing Partner Millennium Partners. ORIGINAL AIR DATE: June 18, 2014 ACCESS: archive available via members-only portal at ALFN.org
WINNING THE WAR FOR INFLUENCE: HOW POLITICAL DOLLARS SHAPE THE HOUSING DEBATE BY CADE HOLLEMAN, PUBLISHED IN M REPORT
“Outspent. Outsmarted. Outdone. Out of our minds? In the years since the 2008 housing collapse and onset of the foreclosure crisis, the amount of money the real estate, mortgage banking and financial services industries have spent on lobbying has skyrocketed. It’s no surprise that more targeted oversight and increased regulation would bring an industry’s lobbyists to the Hill in record speed, but the numbers are staggering . . . “ read more at alfnevents.org
TWO MORTGAGE REFORM EFFORTS: MORTGAGE SECURITIZATION AS COMMON THREAD BY CADE HOLLEMAN, PUBLISHED IN HOUSINGWIRE
“This fall President Obama partnered with online real estate giant Zillow to introduce his administration’s housing finance reform agenda. Seventy-five years after the founding of Fannie Mae and five years into the government-sponsored enterprise’s conservatorship with sibling Freddie Mac, housing finance reform is gaining steam and looks to be the dominant legislative battle of 2014.” read more at alfnevents.org
WHAT IS A DEBT COLLECTOR? THE TUG-OF-WAR OVER THE FDCPA TECHNICAL CLARIFICATION ACT
BY CADE HOLLEMAN & LINDSEY PURDY, PUBLISHED IN SERVICING MANAGEMENT
“Never before in the history of mortgage servicing and debt collection have industry leaders faced such a challenging regulatory regime. Earlier this year, the Consumer Financial Protection Bureau (CFPB) made clear its intent to regulate the debt collection industry using its newly granted authority under the DoddFrank Financial Reform Act . . .” read more at alfnevents.org
MAIDEN VOYAGE NAVIGATING THE UNKOWN WATERS OF REGULATORY COMPLIANCE
Legislating a new financial services regulator into being is apparently the easiest part of the rarely-done process. Transferring, consolidating and wielding that regulatory power has proven to be an entirely different story. Not to mention the task of staffing and housing an agency with an incredibly wide-ranging mandate. Wait, did we address the process of creating internal policies, procedures, and the drafting and issuance of actual regulation? All of this before the ongoing, high-touch, day-to-day part of being a regulator of one of America’s most dynamic, powerful, and important industries begin.
Financial services is one of the few sectors of the economy that is as important to the one percenters as it is crucial for the ninety nine and, in fact, is global in scope. It reaches from the “unbanked” who are living paycheck to paycheck, to the hedge fund managers raking in multimillion bonuses on Wall Street each year. There’s no doubt, the Consumer Financial Protection Bureau (CFPB) is in the home stretch of its maiden voyage—one that many detractors hope ends more like another famous maiden voyage that didn’t go so well back in 1912. Here’s a look at how we’re thinking this ship is going to port.
by Cade Holleman, ALFN
CHOPPY WATERS Industry relations is probably the single biggest ongoing battle any regulator faces. Practitioners are the folks that you regulate and it’s their input that is most informative when drafting rules and issuing guidance, but they’re also the folks who pump millions of dollars into associations, lobbyists and political campaigns designed to thwart a regulator’s activities and promote the status quo. And naturally, that’s where one might expect to find a new regulator’s first missteps to occur. Enter Steven Antonakes, Deputy Director of the Consumer Financial Protection Bureau (CFPB), who addressed the Mortgage Bankers Association (MBA) earlier this year as part of the Bureau’s strategy to increase its industry relations efforts now that the regulator has shifted from “rulemaking to oversight and enforcement”. It was quite the impression Mr. Antonakes left. Housingwire described it with the headline “CFPB Shocks Mortgage Conference” and in a separate article claims Antonakes “walked away from a silent, shocked audience” after his keynote. Antonakes comments left such a raw impression amongst attendees that MBA CEO David Stevens issued an open letter addressing the keynote before the conference even concluded. In his letter, Stevens says the regulator “went just a bit too far.” While his actual comments spoke of his deep “disappointment” in the “lack of progress” the servicing industry has made, it was more the general tone and perceived chastisement of industry practitioners by a regulator that was still in the process of standing up amidst the mortgage servicing industry’s efforts to combat the largest housing crisis in generations.
A WONKY COMPASS Part of why the regulator hadn’t seen progress is fairly obvious: many industry participants, including large servicing organizations responsible for hundreds of millions of dollars worth of mortgage loans weren’t willing to reorient their entire business processes without clear and deliberate guidance from the Bureau—which was not quite the case in the months
THERE’S NO DOUBT, THE CONSUMER FINANCIAL PROTECTION BUREAU (CFPB) IS IN THE HOME STRETCH OF ITS MAIDEN VOYAGE—ONE THAT MANY DETRACTORS HOPE ENDS MORE LIKE ANOTHER FAMOUS MAIDEN VOYAGE THAT DIDN’T GO SO WELL BACK IN 1912. before Antonakes’ speech at the MBA Conference. Proposed rules, interim final rules and final rules had all been promulgated over the preceding months requiring lenders and servicers to examine every process from underwriting and origination to servicing, default and loss mitigation practices to ensure compliance with the new rules. Further complicating the initial rush to comply in early 2014 was the confusion surrounding competing guidance from the Federal Housing Finance Agency (FHFA) and its regulated entities, the govern-
ment-sponsored enterprises Fannie Mae and Freddie Mac, which also provided their own guidance to mortgage servicers with GSE products in their servicing portfolios. Ice that cake with conflicting state law and you’ll get a recipe for paralysis that typically results in a halt of foreclosure processes and a constriction of lending that hurts the very consumers the rules are meant to protect. Further fueling the slow progress was the fact that over the last twenty five years the mortgage origination industry became one built around automation and low-touch customer service in order to drive volume and efficiencies. A defaulted mortgage is an entirely different beast, however. It’s a paper driven process that is extremely high touch (and that’s often just to get in touch with the borrower in the first place). So it wasn’t just a simple gear change that the regulator was expecting to see in eight months—it was a wholesale turn around in the internal processes of servicers and a entirely new way of how they’d managed their customer base to date. SAILING INTO PORT This month we’ll be celebrating the Bureau’s third anniversary and the six month marker since the agency’s mortgage servicing rules took effect. While the CFPB is moving full steam ahead with its legislative mandate, there is plenty of precedence for change at the regulatory level. While the CFPB is one of the largest new regulators to be created in a generation, it’s just one in a merry-go-round of financial services regulators. The same legislation that created the CFPB also killed the Office of Thrift Supervision (OTS) and was responsible
for transferring certain regulatory powers away from other agencies, like the Federal Reserve System. Such changes are not new to the industry. The FHFA, current regulator of the GSEs, is a third generation regulator created after the statutory merger of two preceding organizations, the Office of Federal Housing Enterprise Oversight and the Federal Housing Finance Board. Taking a cue from past Congresses, legislators may take a different tone after mid-term elections should certain parties, or factions of parties, gain traction in the House or Senate building on existing momentum to chip away at the Bureau’s mandate or to restructure its leadership. Though for now, as the CFPB itself says, it’s moved from rule-making to enforcement and supervision. As far as the Bureau is concerned, that means smooth sailing from here on out. GET MORE An ANSWERS panel titled “The CFPB: A Reality Check” will examine the realities on the ground for mortgage servicers and their vendors as they operate in the new regulatory environment. Panelists will address best practices for overcoming operational and legal challenges facing mortgage servicers. The panel is moderated by ALFN member Matt Abad, Esq. of Chicago-based Kluever Platt and includes speakers from Freddie Mac, Bayview Loan Servicing, Statebridge Company, Residential Credit Solutions, and default law firm Mackie Wolf Zientz & Mann. ANSWERS is held this July 20-23, 2014 in Colorado Springs, Colorado at the Broadmoor Hotel.
ABOUT THE AUTHOR Cade Holleman, M.A. Assistant Vice President, Government Affairs & Communications American Legal & Financial Network (ALFN) 1803 Biltmore St. NW, #800 Washington, D.C. 20009 Direct: 714-679-2514 Cholleman@ALFN.org www.ALFN.org
WHO IS FULL-TIME? THE AFFORDABLE CARE ACT & RAMIFICATIONS FOR EMPLOYERS OF SEASONAL WORKERS We’ve all heard the stories – both pro and con – as to President Obama’s primary push for universal and affordable health care. The Patient Protection and Affordable Care Act (“ACA”) was signed into law on March 23, 2010. Certain provisions became effective almost immediately, while others, including employer requirements, have taken time to be phased in. It was scheduled to be fully active on January 1, 2014; but due to its complexity, numerous delays allowed the IRS, state exchanges, and employers to work through various “kinks”; certain requirements pertaining to employer responsibilities will not go into effect until January, 2015. From an insured’s standpoint (or those who could not obtain coverage), the ACA provides
important changes in how insurance companies provide health coverage. For instance, insurance companies can no longer create lifetime or annual limits. There is now a prohibition on rescission of coverage, and an insurer cannot exclude coverage based upon an insured’s preexisting condition or other health status. In addition, the ACA creates a uniform standard for explaining coverage documents and definitions and requires an appeals process should claims be denied for any reason. But, of course, the ACA goes much deeper. The primary thrust of the Act requires that affordable coverage be offered to each and every American. This occurs either through State or Federal insurance exchanges or, through an
by Abe G. Salen, Esq.
individual’s employer. The latter depends upon several factors. In its simplest form, the ACA requires large employers (any business entity with 50 or more full time employees) to offer affordable health insurance coverage to its full time employees. If such an employer fails to offer affordable coverage to its full time employees, then the employer may face penalties for the specific period, upwards of $2,000.00 per employee. This law begs the question, then … Who is a full-time employee? A full time employee is defined by the Internal Revenue Service (“IRS”) as an employee who generally works at least 30 hours/week. For most of us, a full-time employee is one who works 9-5, Monday through Friday – 35+ hours/week. 7-8 hour days are the norm for most administrative and executive positions and/or those who are exempt such as professionals. But how is this computed for seasonal workers or temporary workers? How is this computed for those who may work 30+ hours / week for 3-4 months, but who then stop working for a period before finding new work with the same company? The IRS has come out with multiple clarification publications over the past 2 years in an effort to better explain the system to employers. It is important to understand that the Act places the onus on the employer to confirm whether his employee is deemed full time or part-time. Thus, the following is not mandated by the IRS; it is simply one method that the IRS recommends to properly make the determination. A “variable hour” employee is one in which, based on the facts and circumstances at the date the employee begins providing services to the employer, it cannot be
determined whether the employee is reasonably expected to work on average at least 30 hours per week. The most common example is a seasonal or temporary employee who works for several weeks, but then is ‘laid off’ until there is a further need for that particular employee’s services. Under the look-back / stability period safe harbor method, an employer would determine each employee’s full-time status by looking back at a defined period of not less than three nor more than 12 consecutive calendar months. This “look-back” period may be determined by the employer and can be the calendar year (Jan-Dec) or any period in-between. It may even be created between months (March 15 – March 14th). If the employee were determined to be a full-time employee during the measurement period, then the employee would be treated as a full-time employee during the subsequent “stability” period. A “stability” period is a period of time not less than six consecutive months following the measurement period. Employers may also create what is known as an administrative period of not more than 90 days (3 months) to occur after the measurement period, but before the stability period takes effect. This administrative period may be required for the employer to determine who is qualified and to allow time to offer coverage and obtain employee enrollment in the plan. If an employee were not determined to be a full time employee during the “measurement” period, then that employee would not be considered full-time over the next stability period, though a re-determination may occur when the stability period ends. At that time, the same “look-back” calculations would take place for the prior measurement period. If, at that time,
THE IRS HAS COME OUT WITH MULTIPLE CLARIFICATION PUBLICATIONS OVER THE PAST 2 YEARS IN AN EFFORT TO BETTER EXPLAIN THE SYSTEM TO EMPLOYERS . . . IT IS IMPORTANT TO UNDERSTAND THAT THE ACT PLACES THE ONUS ON THE EMPLOYER.
the employee were deemed to be full-time, then the employee would be considered a full-time employee at the next stability period’s start. In addition, an employer may administer differing measurement periods and stability periods, with respect to the following categories of employees: (1) collective bargained employees and noncollectively bargained employees; (2) salaried employees and hourly employees; (3) employees of different entities; and (4) employees located in different states.
THIS IS IMPORTANT: IF THE EMPLOYER DOES NOT OFFER COVERAGE TO ANY EMPLOYEE DURING THE FIRST THREE MONTHS (MAXIMUM ALLOWED) OF EMPLOYMENT, THE STANDARD MEASUREMENT PERIOD WOULD BEGIN ON THE FIRST DAY OF THE FOURTH MONTH, AND THEN COULD CONTINUE FOR A SET TERM TO DETERMINE WHETHER THAT “NEW” HIRE IS DEEMED A FULL-TIME EMPLOYEE. An employer of seasonal or “variable hour” employees may create for each new hire, an initial measurement period of between 3-12 months; however, the stability period for such employees must be the same length as the stability period in effect for the employer’s on-going employees. Once an employee has worked full-time for at least one standard
measurement period, that employee is deemed an “on-going” employee. If a new hire, then, is considered variable at time of hire, the employer has the ability to place the employee into a measurement period of not less than three nor more than 12 months. Also, an employee’s probationary period may subject the employee to longer waiting times before being offered coverage. This is important: If the employer does not offer coverage to any employee during the first three months (maximum allowed) of employment, the standard measurement period would begin on the first day of the fourth month, and then could continue for a set term to determine whether that “new” hire is deemed a full-time employee. The foregoing is simply one “safe-harbor” method recommended by the IRS for employers to determine whether an employee is to be deemed full-time under the Act. The foregoing summary shows that employers must be diligent in the administrative side of offering health care coverage to their employees, and to create a systematic scheme that provides a firm-wide objective standard as to whether an employee is deemed full-time or not. If the IRS deems a part time employee, full-time, the financial implications could be enormous.
ABOUT THE AUTHOR Abe G. Salen, Esq. The Wolf Firm, A Law Corporation 2955 Main Street, 2nd Floor Irvine, CA 92614 Tel: 949-720-9200 ext. 5230 firstname.lastname@example.org wolffirm.com
ALFN ANSWERS 2013
More tailored. Less typical. Some businesses have boxes. Boxes they try and fit you and your needs into. At Stewart Lender Services®, we’ve thrown out the boxes. There’s no pre-existing package we trot out for every meeting trying to convince every customer that one solution fits all. We let you tell us your problem. Then we have experts develop specialized solutions. Sometimes it’s tweaking the process. Sometimes it’s outsourcing to us. It’s always specific to your needs and what’s best for your business – even if it means we don’t make as much money. Sounds too good to be true, we know. But to us, it’s just good business. Want more information? Visit stewart.com/more. Stewart Lender Services. Dedicated to doing business right.
© 2013 Stewart.
ALFN INCREASES MORTGAGE SERVICER PARTICIPATION OVER PRIOR YEARS
With eleven years of success behind it, the ALFN Annual Leadership Conference, known as ANSWERS, has built a incredible reputation for its casual, networking-driven environment. An invitation-only event, ANSWERS offers attendees the ability to network, conduct business and create new business opportunities in an environment of collaboration with only those parties specifically involved in the legal aspects of mortgage servicing. In recent years as new loss mitigation processes have emerged, compliance-related expenditures and educational needs have grown, and as file volumes have stagnated or decreased in many markets, the importance of events like ANSWERS has grown. The need for education, face-to-face interactions between firms, service providers and mortgage servicers has grown exponentially since the implementation of new regulations stemming from 2010’s Dodd-Frank Act and the implementation of the Consumer Financial Protection Bureau’s
(CFPB) mortgage servicing rules and other actions stemming from its new regulatory power. In the current mortgage servicing environment, the importance of what ANSWERS offers cannot be underestimated.
ALFN MEMBER SUPPORT IS HIGHER THAN EVER WITH THE GREATEST NUMBER OF SPONSORS OVER ANY PAST ANNUAL EVENT. alfnanswers.org/sponsors In fact, ANSWERS is more vital to ALFN members’ business and bottom lines than ever before in the history of the organization. Participation from mortgage servicing organizations today reaches a wider net than in any previous year that the
conference has been held. A greater number of mortgage servicing organizations and executives are attending ANSWERS 2014, held this July 20 24 at the Broadmoor Hotel in Colorado Springs, CO. What’s more, is that the ALFN’s impact with the servicing community is not just reaching a wider audience of servicers, but represents a deeper impact than in previous years. On average, each servicer is sending executives and general counsel attendees who manage key books of default-related business, have decision making influence or authority, and who are in some respects some of the industry’s key leaders in mortgage servicing. Servicing attendees range from large national banks to smaller special and sub-servicers to government sponsored enterprises like Fannie Mae, Freddie Mac and federal regulators like the CFPB and others like the Federal Reserve and the US Bankruptcy Court. We also bring together the industry’s leading law firms and ancillary service providers to network and explore synergies and partnerships, discuss best
CLE CREDITS AVAILABLE FOR ATTORNEYS
practices and increase the overall networking value of attendance. Member support for ANSWERS is also at an all time high with more organizations using the branding and promotional opportunities provided throughout the conference than in any previous year. With the event’s trademark on-site and off-site networking activities, receptions, lunches and dinners, and our top-of-the-line education provided by ALFN members on the cutting edge of mortgage servicing, compliance and regulatory matters, ANSWERS 2014 is a can’t miss event.
ANSWERS 2015 The 13th Annual ALFN Leadership Conference, ANSWERS, will be held at the Hyatt Regency Lake Tahoe Resort located in the picturesque Incline Village, Nevada. ANSWERS 2015 is scheduled for July 19-22, 2015. Registration will open in January 2015 at ALFNANSWERS.org. Current sponsors may reserve their existing opportunity via the registration desk at this year’s conference during normal registration hours.
ANSWERS 2014 ACHIEVES MORE SERVICER ATTENDEES THAN ANY PREVIOUS ANNUAL CONFERENCE
21ST MORTGAGE CORP. AMERIPRISE FINANCIAL BANK OF AMERICA BAYVIEW LOAN SERVICING, LLC BSI FINANCIAL SERVICES INC CARRINGTON CENTRAL MORTGAGE COMPANY FANNIE MAE FREDDIE MAC LENDERLIVE SETTLEMENT SERVICES, INC. LOAN RESOLUTION CORP, TIMBERLINE LOANDEPOT M&T BANK MADISON MANAGEMENT SERVICES, LLC NATIONSTAR MORTGAGE OCWEN FINANCIAL CORPORATION PIONEER BANK RANIERI PARTNERS RESIDENTIAL CREDIT SOLUTIONS, INC. RIVERSOURCE RUSHMORE LOAN MANAGEMENT SN SERVICING CORPORATION SPECIALIZED LOAN SERVICING LLC STATEBRIDGE COMPANY, LLC WELLS FARGO HOME MORTGAGE
YOU ASK & ALFN ANSWERS. UNDERSTANDING HOW CFPB RULES INTERSECT THE FORECLOSURE PROCESS QUESTIONS RECEIVED DURING THE ON-AIR Q&A
ASKED BY SERVICING PROFESSIONALS VIA RECENT ALFN WEBINARS. TO VIEW MORE QUESTIONS, ACCESS THE ALFN WEBINAR ARCHIVE VIA ALFN.ORG OR SUBMIT QUESTIONS DIRECTLY BY EMAILING US AT Q&ALFN.ORG TO BE FEATURED IN THE NEXT ANGLE PUBLICATION AND ANSWERED
WHY CAN’T YOU RELY
DOES THE APPEAL
ON THE TERMS AND
PERIOD PRECLUDE A
CONDITIONS OF THE
NOTE AND MORTGAGE? - Servicing Professional
JIM: You should be able to but now have to comply with additional regulations brought about by Dodd-Frank and CFPB. The note and mortgage/deed of trust are generally controlled by state statutes and case law. Unfortunately, the recent Great Recession affected housing dramatically as well as the enforcement of the terms of Notes, Mortgages and Deeds of Trust. All sectors of the mortgage process, from origination to secondary marketing to servicing, have been severely affected by these new regulations and enforcement agencies.”
- Servicing Professional
MICHELLE: A servicer cannot make the first foreclosure notice or filing if the borrower submits a complete loss mitigation application before the 120th day of delinquency, or before the 1st foreclosure notice or filing until the appeal period expires. In addition, the servicer cannot make the 1st foreclosure notice of filing if the application was denied until the appeal period expires or appeal has been denied. There is a distinction between a referral and first notice of filing.
BY SUBJECT MATTER EXPERTS FROM ALFN. JIM DELOACH EXECUTIVE VICE PRESIDENT ALFN BOARD MEMBER CANDIDATE JDELOACH@BUTLERANDHOSCH.COM
N CA ERICAN ERIL &AMGAL & M EL A GA LIA NC IAL E R ANCFIN EBINA ALFN WL RKAW N O ORK I T to the E W ationF N uc Ed T R el. INA highest lev NE EB W he LFN to t ion el. cat v Edu est le h hig
MICHELLE MIERZWA NATIONAL MANAGING ATTORNEY NON-JUDICIAL FORECLOSURE MMIERZWA@BUTLERANDHOSCH.COM
ALFN WEBINAR: UNDERSTANDING HOW CFPB RULES INTERSECT THE FORECLOSURE PROCESS
presenters: Jim Deloach, Executive Vice President, Butler & Hosch, P.A.; Michelle Mierzwa, Esq., National Managing Attorney, Non-Judicial Foreclosure. original air date: May 21, 2014 access: archive available via members-only portal at ALFN.org
The information provided herein is for general discussion related to ALFN webinars and should not be considered legal advice or opinion on the particular matter discussed. If you would like to discuss these or any other issues further, feel free to contact the practitioners directly.
BANKRUPTCY: ALL CRAMMED DOWN & NOWHERE TO GO QUESTIONS RECEIVED DURING THE ON-AIR Q&A
WHEN THE PLAN PROPOSES TREATMENT FOR THE PRINCIPAL RESIDENCE AND THE PROPERTY APPEARS TO HAVE EQUITY, WHAT REMEDY IS AVAILABLE WHEN THE PAYMENTS ARE SERIOUSLY DELINQUENT? IF MFR IS NOT AN OPTION IN THE JURISDICTION HOW CAN WE GET A STIPULATION FOR ADEQUATE PROTECTION? - Servicing Professional
Even though the property has equity, this is not the sole basis for relief in Ch 11. The failure to make a monthly payment (i.e. adequately protect the creditor) is another basis. I would file the MFR to alert the court to the delinquency, and the Debtor’s failure to move the case toward confirmation. However, I only recommend doing this after the first 6 months of a case. If an adequate protection stipulation cannot be worked out before the hearing even the most Debtor friendly judge would require the Debtor to make adequate protection payments. Also, this will open the opportunity to discuss plan treatment if it has not yet been broached.
I believe that I have the right to file a MFR in any case in which the client is not getting paid. I think it is persuasive that one should not throw out the entire case simply because one obligation is not being paid. I do think it is better if you wait several months only because there is a reorganization presumption that permits the Judge to favor the Debtor. Having said that, the case law is pretty clear that Adequate Protection is a prospective remedy meaning that you will not be entitled to missed payments. Also remember that if you have the Debtor’s principal residence as collateral, the Debtor really cannot modify your rights 1322(b) (2) and 1123(e) have anti modification provisions (assuming some portion of your claim is secured by value in the property).
At least in the Midwest where I practice, if no payments are being made, an MFR would be appropriate. The existence of equity is not likely a bar to seeking relief. A request in the alternative for adequate protection can be included in the motion. If the property is not the primary residence, then the real goal is to negotiate for adequate protection and the ultimate plan treatment. Most Courts will impose some kind of adequate protection payments if an agreement cannot be reached. If this is the primary residence, then as Larry noted, it is subject to the anti-modification provisions and the arrearages will need to be addressed.
KRISTIN A. ZILBERSTEIN, ESQ. SENIOR ASSOCIATE MCCARTHY HOLTHUS LLP KZILBERSTEIN@MCCARTHYHOLTHUS.COM
N RICA AMEAL &AMERICAN & ALFN WEBINAR IAL LEG NCLEGAL FINANCIAL K NA O R EducationF to Ithe INAR B E W highest level. NW ALF NE T NETWORK the to tion Educa level. est high
LARRY FOYLE, ESQ. PARTNER KASS SHULER, P.A. LFOYLE@KASSLAW.COM
DAVID C. NALLEY, ESQ. MANAGING ATTORNEY - BANKRUPTCY REISENFELD & ASSOCIATES, LPA, LLC DAVID.NALLEY@RSLEGAL.COM
ALFN WEBINAR: ALL CRAMMED DOWN & NOWHERE TO GO
presenters: Kristin A. Zilberstein, Esq., Senior Associate, McCarthy Holthus, LLP; Larry Foyle, Esq., Partner, Kass Shuler, P.A.; David C. Nalley, Esq., Managing Attorney - Bankruptcy, Reisnfeld & Associates, LPA, LLC original air date: June 25, 2014 access: archive available via members-only portal at ALFN.org
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AN AN RIC &AMERLIC& E M A EG L A GAL LIA L EAR ANCFIN EBIN KANC IA ALFN WL R K R N O O I e W Ftoel.th TW NE T Education AR highest lev NE BIN WE he LFN to t ion el. cat v Edu est le h hig
CONTACT US TO LEARN MORE Christina Danovsky SVP, Business Development American Legal & Financial Network email@example.com
ILLINOIS: ELIMINATING THE USE OF APPEARANCE COUNSEL ON ILLINOIS FORECLOSURES The State of Illinois has 102 counties, and the drive from Chicago to the southernmost tip of the state can take over six hours. Traditionally, law firms practicing foreclosure throughout the state of Illinois have always employed “appearance counsel” to appear on matters for their clients at locations beyond an easy distance from their office. As a result of regulatory requirements for third party vendor oversight and appearance counsel policies and procedures that are extremely difficult for law firms and appearance counsel to comply with as well as for mortgage servicers to monitor and enforce, the firm of Codilis & Associates has taken steps to ensure that it has sufficient attorneys actually employed by the firm to cover foreclosure matters in
all 102 counties of Illinois without use of appearance counsel. Using a combination of attorney employees working in downstate Illinois and attorneys traveling from the firm’s Burr Ridge headquarters, the firm will be able to handle foreclosure matters “in-house” throughout all 102 counties in Illinois, significantly reducing noncompliance risk for all our clients. To our knowledge, Codilis & Associates is the only residential foreclosure firm with sufficient in-house attorney resources to cover foreclosure matters throughout the state without use of appearance counsel.
eliminating the use of appearance counsel on illinois foreclosures The State of Illinois has 102 counties, and the drive from Chicago to the southernmost tip of the state can take over six hours. Traditionally, law firms practicing foreclosure throughout the state of Illinois have always employed “appearance counsel” to appear on matters for their clients at locations beyond an easy distance from their office. As a result of regulatory requirements for third party vendor oversight and appearance counsel policies and procedures that are extremely difficult for law firms and appearance counsel to comply with as well as for mortgage servicers to monitor and enforce, the firm of Codilis & Associates has taken steps to ensure that it has sufficient attorneys actually employed by the firm to cover foreclosure matters in all 102 counties of Illinois without use of appearance counsel. Using a combination of attorney employees working in downstate Illinois and attorneys traveling from the firm’s Burr Ridge headquarters, the firm will be able to handle foreclosure matters “inhouse” throughout all 102 counties in Illinois, significantly reducing noncompliance risk for all our clients. To our knowledge, Codilis & Associates is the only residential foreclosure firm with sufficient in-house attorney resources to cover foreclosure matters throughout the state without use of appearance counsel.
Visit Codilis & Associates on line at: www.codilis.com facebook.com/CodilisandAssociatesPC linkedin.com/company/1379332 twitter.com/CodilisAndAssoc
Contact us at 630.794.5300 or Codilisfirstname.lastname@example.org Advertising Materials Attorney Adam Codilis, Codilis & Associates, P.C. 15W030 N. Frontage Road, Burr Ridge, Illinois.
Find out more about Codilis & Associates by visiting www.codilis.com. Submit your member updates to email@example.com to be featured in a future issue.
MICHIGAN: FABRIZIO & BROOK ANNOUNCES NEW CHIEF OPERATING OFFICER Fabrizio & Brook is pleased to announce the hiring of John P. Marecki as the firm’s Chief Operating Officer. John joins the firm with over 30 years of experience in the mortgage industry. John was previously SVP of Default Administration at Flagstar Bank where he worked for 25 years. At Flagstar he was responsible for administration of both residential and commercial mortgage portfolios. He managed all phases of collections for residential and commercial properties and spearheaded the bank’s loss mitigation efforts,
as well as foreclosure and REO processes. Prior to joining Fabrizio & Brook, John was the VP of outstate foreclosure operations with Prommis Solutions and Director of Operations for a multi-state default firm in Atlanta GA. John’s vast industry experience, knowledge and skills are a welcome addition to the overall operations of the firm as well as our continued excellence in servicing our clients. Find out more about Fabrizio & Brook by visiting www.fabriziobrook.com. Submit your member updates to firstname.lastname@example.org to be featured in a future issue.
SAVE THE DATE
ALFN ADVOCACY DAY ASSOCIATE. ADVOCATE. ACHIEVE. Join ALFN in Washington, D.C. to speak with legislators and regulators face-to-face as we continue the dialogue on GSE reform, FDCPA, audit, compliance and other issues impacting your business, bottom line and clients.
SPRING INTO ACTION. APRIL 2015.
J U LY 2 0 - 2 3 , 2 0 1 4 THE BROADMOOR
CLARITY IS COMING COLORADO SPRINGS, CO ALFNANSWERS.ORG