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.