Homeownership Counseling Disclosure

Lenders of federally-related mortgage loans are now required to provide the Homeownership Counseling Disclosure.  This disclosure is in addition to the GFE required under RESPA.

Here are the basics:

1.  Effective Date:  for loans with an application date of 01/10/2014 or later.

2. Scope:  This new requirement covers all federally-related mortgage loans.  Essentially, if the GFE is required for a loan, you must also provide this Homeownership Counseling Disclosure.

3. When: within three business days after the receipt of an application, or information sufficient to constitute an application.  The timing is identical with that of the GFE.

4. What: this disclosure must contain a list of at least ten HUD-approved housing counseling agencies located closest to the borrower's current address (zip code).  At this moment, the easiest way to generate this list of counseling agencies is to go here, plug in the zip code of the borrower's current address, hit "Find A Counselor", and print or save search results.  Before you send the list to the borrower, be sure to include the following language on your disclosure document:

The counseling agencies on this list are approved by the U.S. Department of Housing and Urban Development (HUD), and they can offer independent advice about whether a particular set of mortgage loan terms is a good fit based on your objectives and circumstances, often at little or no cost to you. This list shows you several approved agencies in your area. You can find other approved counseling agencies at the Consumer Financial Protection Bureau’s (CFPB) website: consumerfinance.gov/mortgagehelp or by calling 1-855-411-CFPB (2372).  You can also access a list of nationwide HUD-approved counseling intermediaries at http://portal.hud.gov/hudportal/HUD?src=/ohc_nint.

Lenders should pay special attention to this requirement for a number of reasons.  First, many loan originators may be aware that housing counseling is required for reverse mortgages and Section 32 high cost mortgage loans; therefore, they may mistakenly ignore this disclosure when sending out the early disclosures on federally-related loans.  Second, most, if not all, secondary market investors will be looking for this disclosure when auditing loans.  A few have expressly stated in their bulletins that they would not purchase a loan absent this disclosure.

  

QM Points and Fees: What to Do about Bona Fide Discount Points?

Lenders and clients of our firm continue to ask for clarifications regarding bona fide discount points in calculating QM points and fees.  Many articles have been written, many webinars have been had, and many clarifications have been given, yet folks are still not sure about what to do about bona fide discount points.  So, it is, I think, not redundant to go over the basics one more time.

Discount points are finance charges, and are therefore included in the QM points and fees.  However, the QM Rule dos allow the following exclusions:

• up to two bona discount points paid by the consumer in connection with the loan if the loan's interest rate, without any discount, does not exceed the APOR by more than 1%;
• Upon to one bona fide discount if the loan's interest, without any discount, does not exceed  the APOR by more than 2%.

The math above seems easy enough, but the real problem lies in the definition of "bona fide" in the QM Rule. According to Section 1026.32(b)(3)(i), bona fide discount point means:

an amount equal to 1 percent of the loan amount paid by the consumer that reduces the interest rate or time-price differential applicable to the transaction based on a calculation that is consistent with established industry practices for determining the amount of reduction in the interest rate or time-price differential appropriate for the amount of discount points paid by the consumer.  [emphasis added]

 In simpler terms, a discount is considered "bona fide" if the discount fee paid by the borrower corresponds to a reduction in interest rate, but the ratio (rate reduction vs. discount fee) must conform to "well established industry practices".

What is "well established industry practices"?  CFPB explains as follows:

To satisfy this standard, a creditor may show that the reduction is reasonably consistent with established industry norms and practices for secondary mortgage market transactions. For example, a creditor may rely on pricing in the to-be-announced (TBA) market for mortgage-backed securities (MBS) to establish that the interest rate reduction is consistent with the compensation that the creditor could reasonably expect to receive in the secondary market. The creditor may also establish that its interest rate reduction is consistent with established industry practices by showing that its calculation complies with requirements prescribed in Fannie Mae or Freddie Mac guidelines for interest rate reductions from bona fide discount points. For example, assume that the Fannie Mae Single-Family Selling Guide or the Freddie Mac Single Family Seller/Servicer Guide imposes a cap on points and fees but excludes from the cap discount points that result in a bona fide reduction in the interest rate. Assume the guidelines require that, for a discount point to be bona fide so that it would not count against the cap, a discount point must result in at least a 25 basis point reduction in the interest rate. Accordingly, if the creditor offers a 25 basis point interest rate reduction for a discount point and the requirements of § 1026.32(b)(1)(i)(E) or (F) are satisfied, the discount point is bona fide and is excluded from the calculation of points and fees. [Emphasis added]

CFPB's staff commentary specifically refers to FNMA's definition or method of determining whether discount points are bona fide.  However, FNMA has since removed its definition from its guidelines.

Without the benefit of the only readily available and familiar standard, the mortgage lending industry is in dire need of clarity.  Secondary market investors have varying ways of determining "bona fide"; however, I do see a common requirement for documentation showing the connection between points paid and a corresponding rate reduction, which documents may include, without limitation:

• Rate sheet;
• Screen print from LOS and/or Pricing Engine;
• Rate lock agreement/confirmation with the borrower; and
• Final HUD-1.  

 In order to successfully exclude certain number of discount points from QM points and fees, a lender will have to present sufficient documentation to establish that the discounts paid by the borrower were indeed bona fide.

Qualified Mortgages: Are Seller-Paid Items Included in Points and Fees?

It's well established in the industry that seller's points are excluded from the APR calculation.  Likewise, a seller's credit/contribution to pay certain pre-paid finance charges, such as mortgage insurance premiums, may convert such fees into non-APR fees.  Lenders should feel fairly comfortable in such a practice with respect to a seller's credit/contributions because of the following Official Staff Interpretations:

Paragraph [1026.]4(c)(5)

1. Seller's points. The seller's points mentioned in §1026.4(c)(5) include any charges imposed by the creditor upon the noncreditor seller of property for providing credit to the buyer or for providing credit on certain terms. These charges are excluded from the finance charge even if they are passed on to the buyer, for example, in the form of a higher sales price. Seller's points are frequently involved in real estate transactions guaranteed or insured by governmental agencies. A commitment fee paid by a noncreditor seller (such as a real estate developer) to the creditor should be treated as seller's points. Buyer's points (that is, points charged to the buyer by the creditor), however, are finance charges.

 2. Other seller-paid amounts. Mortgage insurance premiums and other finance charges are sometimes paid at or before consummation or settlement on the borrower's behalf by a noncreditor seller. The creditor should treat the payment made by the seller as seller's points and exclude it from the finance charge if, based on the seller's payment, the consumer is not legally bound to the creditor for the charge. A creditor who gives disclosures before the payment has been made should base them on the best information reasonably available. [Emphasis added]

The question is whether a lender/creditor may approach seller credits in the same way when calculating the QM points and fees.  More specifically, if the seller pays a particular charge or fee included in QM points and fees, will this payment by the seller cause the fee to be excluded from QM points and fees?  A convoluted answer lies in the CFPB's Official Staff Interpretations:

2. Charges paid by parties other than the consumer. Under § 1026.32(b)(1), points and fees may include charges paid by third parties in addition to charges paid by the consumer. Specifically, charges paid by third parties that fall within the definition of points and fees set forth in § 1026.32(b)(1)(i) through (vi) are included in points and fees. In calculating points and fees in connection with a transaction, creditors may rely on written statements from the consumer or third party paying for a charge, including the seller, to determine the source and purpose of any third-party payment for a charge.

According to the above, the general rule is that even if a third party (including the seller) pays items included QM points and points, such items will still be counted in QM points and fees.  The CFPB gives the following examples:

i. Examples—included in points and fees. A creditor's origination charge paid by a consumer's employer on the consumer's behalf that is included in the finance charge as defined in § 1026.4(a) or (b), must be included in points and fees under § 1026.32(b)(1)(i), unless other exclusions under § 1026.4 or § 1026.32(b)(1)(i)(A) through (F) apply. [Comment: no exclusion applies to a lender's origination charge; therefore, this charge should still be included in QM points and fees no matter who pays it.]  In addition, consistent with comment 32(b)(1)(i)-1, a third-party payment of an item excluded from the finance charge under a provision of § 1026.4, while not included in the total points and fees under § 1026.32(b)(1)(i), may be included under § 1026.32(b)(1)(ii) through (vi). For example, a payment by a third party of a creditor-imposed fee for an appraisal performed by an employee of the creditor is included in points and fees under § 1026.32(b)(1)(iii). See comment 32(b)(1)(i)-1. 

However, some exceptions, as shown in the example below, apply.  

ii. Examples—not included in points and fees. A charge paid by a third party is not included in points and fees under § 1026.32(b)(1)(i) if the exclusions to points and fees in § 1026.32(b)(1)(i)(A) through (F) apply. For example, certain bona fide third-party charges not retained by the creditor, loan originator, or an affiliate of either are excluded from points and fees under § 1026.32(b)(1)(i)(D), regardless of whether those charges are paid by a third party or the consumer.

In other words, in order to utilize seller's credits to offset QM points and fees, such points and fees must fall into one of the following categories: 

• interest (1026.32(b)(1)(i)(A)) ;
• insurance premiums in Federal or State agency loan programs (1026.32(b)(1)(i)(B)) ;
• upfront and annual mortgage insurance premiums, guaranty fees, funding fees, etc. in government-insured loans (VA, FHA, USDA, etc.) (1026.32(b)(1)(i)(C));
• bona fide third-party charges in connection with the loan, not retained by the creditor/broker, or an affiliate of either (1026.32(b)(1)(i)(D)) ; and
• bona fide discount points  (1026.32(b)(1)(i)(E) - (F))

But, practically speaking, because the above items would have already been statutorily excluded from the QM points and fees, it would not make logical sense for a creditor to apply seller credits to offset them in the event that the lender has exceeded the 3% limit.  It appears that the Rule was designed to prevent the circumvention of QM points and fees by artful application of seller credits to pay charges.  

According to the CFBP's official comments, seller's points are, apparently, treated differently than seller's credits:

iii. Seller's points. Seller's points, as described in § 1026.4(c)(5) and commentary, are excluded from the finance charge and thus are not included in points and fees under § 1026.32(b)(1)(i). However, charges paid by the seller for items listed in § 1026.32(b)(1)(ii) through (vi) are included in points and fees. 

Therefore, unless seller's credits can be treated as sellers' points, the seller's credits will, in effect, not be permitted to offset QM points and fees.        

For the purpose of calculating QM points and fees, can a lender/creditor LEGALLY treat seller credits (toward paying finance charges) as seller's points?

To date, there seems to be two schools of thought and interpretation.

On the one hand, some believe the answer is "Yes" because of the Official Staff Interpretations on §1026.4(c)(5), which section is part of the general provisions (Subpart A) in Regulation Z and the definitions therein should apply to the rest of the regulatory provisions, including QM.  According to the CFPB,

[...] The creditor should treat the payment made by the seller as seller's points and exclude it from the finance charge if, based on the seller's payment, the consumer is not legally bound to the creditor for the charge. [...]  

It seems plausible to argue that CFPB would want "seller's points" to have a consistent meaning in the context of both APR fees and QM points and fees; therefore, a seller's payment of finance charges at or before closing should be treated as seller's points so long as the consumer is no longer legally responsible for paying such charges.

On the other hand, some approach this more conservatively, believing that seller's credits are treated differently than seller's points, and that seller's credits can be applied toward pre-paid finance charges only if exclusions to points and fees in § 1026.32(b)(1)(i)(A) through (F) apply.

Absent further clarification from the CFPB, lenders/creditors should follow their investor's particular guidelines on these complex issues so as to originate salable loans on the secondary market.  If a lender does not sell its loans on the secondary market, it is probably more prudent to refrain from applying seller's credits toward pre-paid finance charges with the intent to reduce the amount of QM points and fees.  

Qualified Mortgages: Are Lender-Paid Items Included in Points and Fees?

With the exception of LO/broker compensation, lender-paid items are excluded from QM points and fees.

As supported by the official guidance below, if a loan exceeds the QM 3% in points and fees, the lender can always issue a lender credit to bring the loan into compliance before closing:

iv. Creditor-paid charges. Charges that are paid by the creditor, other than loan originator compensation paid by the creditor that is required to be included in points and fees under § 1026.32(b)(1)(ii), are excluded from points and fees. [Official Interpretations] 

Investment Property: Does the Qualified Mortgage Rule Apply?

To continue yesterday's discussion on my first impressions of the QM Rule, let's focus on the applicability of the QM Rule.  In particular, does it apply to investment properties?

Section 1026.43(a) details the scope of the QM Rule, and it identifies a list of transactions exempt from this Section, which is the crux of the QM Rule.  However, Section 1026.3(a)(1), which formulates "Subpart A" of Regulation Z that encompasses the QM Rule, provides specifically that an extension of credit primarily for commercial or business purposes is exempt from Regulation Z.  The Official Staff Interpretations regarding Section 1026.3(a)(1) clarify that credit extended to purchase, improve, or maintain non-owner occupied rental property is "deemed" to be for business purpose.  This means that residential mortgage loans to be secured by non-owner occupied investment property are exempt from Regulation Z, and thus Section 43 of Regulation Z.  However, if a borrower were to occupy the property for at least 14 days in one year (second home), a loan to be secured by such a property would not be deemed to be for business purpose, and thus, rendering it subject to the QM Rule.

Despite the express, statutory exemption for business-purpose loan transactions secured by investment properties, some investors have decided that such loans must comply with the QM Rule in order for them to be eligible for purchase.  For example,  Stonegate Mortgage Company, Cole Taylor Mortgage, and Freedom Mortgage all wrote in their QM bulletins or guidelines that they want, for the time being, the QM Rule to apply to investment properties.

These investors' interpretations are not necessarily wrong.  The investors just chose to approach the QM Rule more conservatively for legitimate business reasons, which is perfectly justifiable in the post-QM business environment.  They may, for good business reasons, change their interpretations a few months later when the jitters and uncertainties about these complex new rules settle down. For lenders and loan originators, in order to originate loans salable to investors that may appear to be a little conservative at this stage of the QM Rule, it is absolutely essential to know how the investors interpret the QM Rule.

In sum, knowing the QM Rule is important; knowing your investors' interpretations of the QM Rule is probably more important.  

Qualified Mortgage Rules: Will the Sky Fall?

The CFPB's regulations on qualified mortgages ("QM") have been in effective since 1/10/2014, but most covered transactions have yet to make through the origination/underwriting process.  In the next few weeks, more loans will proceed to closing in the post-QM, mortgage lending environment.  Before lenders and loan originators begin the last minute preparation to close their loans, I would like to share some of my first impressions on QM.

First, secondary market investors have very different interpretations on QM.  Based on my perusal of a large number of bulletins, guidelines, and updates issued by a handful of investors, it appears that investors interpret many aspects of QM very differently.  For example, while Regulation Z clearly states that non-owner occupied investment property is exempt from the QM requirements, some investors still require loans secured by investment properties to comply with QM rules.  Although most investors are poised to purchase QMs, some may only purchase certain loan products that fall under the safe harbor QMs.

Second, confusion seems abundant in a number of areas.  Some folks may still find it difficult to grasp the nuanced distinction between pre-paid finance charges (APR fees) and QM points and fees.  What is typically an APR fee, for example, contract processing fee, may not necessarily be included in the QM points and fees if the contract processor receiving the fee is not an affiliate of the lender/broker.  On the other hand, what is counted in the QM points and fees, for example, certain real estate-related charges (appraisal fee, credit report fee, title policy premiums) paid to an affiliate of the lender, are generally not APR fees.  It's essential for lenders and originators to identify the differences and connection between APR fees and QM points and fees.  In addition, the 3% threshold applies when the loan amount (note amount) equals to or is greater than $100,000.  In such cases, the total points and fees cannot exceed 3% of the total loan amount.  For the purpose of calculating the QM points and fees limit, the total loan amount, in most cases, is the amount financed as shown on the final TIL disclosure, not the note amount.

Third, lenders and investors alike seem to still struggle with how to apply seller credits.  Before QM, the same issue surfaced when lenders tried to comply with Fannie Mae's 5% points and fees limit.  Fannie Mae did clarify in its Announcement 09-24 that "points or fees are counted against the limitation regardless of the party paying the fee".  With respect to QM points and fees limit, the CFPB's guidance document and staff interpretation seem to indicate that seller credits/contributions can be used to offset pre-paid finance charges in 1026.32(b)(1) that are included in the QM points and fees.  However, if charges paid by the seller were for broker compensation, real estate-related fees (payable to the lender's affiliate), or credit insurance premiums, such charges should still be included in QM points and fees.

In the next few days, I will provide addition details on each of the above three topics.  Please check back for more.