|Closer Look at Proposed LO Compensation RuleWebinar discusses CFPB proposal
Oct. 15, 2012
By JERRY DeMUTH MortgageDaily.com
|The Consumer Finance Protection Bureau’s current proposal for loan originator compensation, while clarifying many aspects of the current rule, also could lead to violations of some state laws, or even Internal Revenue Service codes, according to a recent online event on the subject. The deadline for public comments on the proposal is Tuesday.
The presentation was made by three attorneys with the mortgage banking and the consumer financial services groups at the national law firm, Ballard Spahr LLP. They spoke during a webinar on the proposed new rule sponsored by the Washington, D.C.-based firm.First, the definition of loan originator is “very broad” under the proposed rule, said John D. Socknat, and even includes persons who assist consumers by advising them on credit terms, preparing application packages, collecting application and supporting information, or even advertises or otherwise communicates to the public that they provide such services. The latter, he said, would include business cards, rate sheets and promotional items.
But managers and administrative and clerical staff are excluded if they do not arrange, negotiate or otherwise obtain an extension of credit for a consumer or if their compensation is not based actual loan originations.The proposal also “finally addresses” the anti-steering safe harbor issue, said Richard J. Andreano. The key to complying, he said, is that loan originators have to present the loan with the lowest rate to consumers, even if it includes more points than they said they are willing to pay and if they qualify for that loan. The current rule does not specifically require originators to present to borrowers the loan with the lowest rate, only the one with the lowest rates and fees.
“But the originator can’t impose points and fees on a loan unless it results in a lower rate. But this only applies before the consumer has received the good-faith estimate and since this is occurring before the good-faith estimate,” Andreano pondered, “how do you determine if they may not qualify for a loan?”
Healso noted all of this is in the preamble to the proposed new rule, not in the section on pricing policies. That section sets forth ties between specific increases and decreases in rates and the size of points and fees, with a specific rate reduction for each additional point.
“These are very complex proposals,” he commented. Andreano also pointed out that the CFPB, which originally had considered a flat-fee approach to originations, with the same fee applying to all loans, now proposes a “zero-zero alternative.” Under this proposal, any originator who receives compensation from any person other than the consumer may not impose on the consumer any points or fees unless a comparable, alternative loan without points and fees is made available to the consumer.
“That’s an interesting concept,” he said.To prevent manipulation of loan qualifications and loan availability, the CFPB, Andreano said, is considering two different alternatives that would either prevent originators from changing their underwriting standards for the purpose of disqualifying consumers from a “zero-zero alternative” or prevent originators from offering loans with points and fees unless the consumer would qualify for a comparable loan without points and fees. The proposed rules, said Michael S. Waldron, also now address the matter of compensation paid on a borrower’s behalf by parties other than the borrower. “This was not addressed previously,” he said, but warned that such an arrangement can be impacted by state laws.
“You have to make sure you follow state law,” Waldron emphasized.Waldron also noted that while the current rule does not expressly address the sharing of pooled compensation, the proposed rule “outright bans” pooled compensation among loan originators who are compensated differently for loans with different terms.
“Point blanks,” Waldron noted, are not expressly addressed by the current rule and may not be allowed under the proposed rule. Citing a CFPB advisory comment on the proposed rule that “there are no circumstances under which point blanks are permissible, and they there continue to be prohibited,” Waldron said, “‘Continue’ is a critical word. It truly shuts the door on point blanks.” New conditions also are placed on contributions to both qualified and non-qualified profit-sharing plans, Waldron pointed out. When applying these, he said, loan originator participants have to make sure they do not violate Internal Revenue Codes or become non-compliant with other rules.
“There’s a lot of pitfalls when amending qualified and non-qualified plans,” he cautioned.Finally, while under the current rule a loan originator’s compensation may not be changed based on changes to a specific loan’s terms or conditions, Socknat pointed out that the proposed rule would permit a reduction in an originator’s compensation to cover unanticipated increased non-affiliated, third-party closing costs that cause the actual amount of costs to exceed limits imposed by applicable law. However, Socknat said, the proposed rule forbids an originator from agreeing to pay part of a borrower’s closing costs to avoid high-cost loan provisions. The comment deadline on the proposed rule is Oct. 16.
Comments can be submitted to www.regulations.gov.
The long-battered housing market is finally starting to get back on its feet. But some experts believe it could soon become another housing boom. Signs of recovery have been evident in the recent pick ups in home prices, home sales and construction. Foreclosures are also down and the Federal Reserve has acted to push rates on home loans near record lows. But while many economists believe this emerging housing recovery will produce only slow and modest improvement in home prices, construction and jobs, others believe the rebound will be much stronger.
Barclays Capital put out a report recently forecasting that home prices, which fell by more than a third after the housing bubble burst in 2007, could be back to peak levels as soon as 2015. “In our view, the housing market had undergone a dramatic over-correction during the prior five years, resulting in pent-up demand for housing purchases that would spark a rapid rise in housing starts,” said Stephen Kim, an analyst with Barclays, in a note to clients. In addition to what Kim sees as a big rebound in building, he’s bullish on home prices, expecting rises of 5% to 7.5% a year. Construction is expected to be even stronger, with numerous experts forecasting home construction to grow by at least 20% a year for each of the next two years. Some believe building could be back near the pre-bubble average of about 1.5 million new homes a year by 2016, about double the 750,000 homes expected this year.
“We think the recovery is for real this time around,” said Rick Palacios, senior analyst with John Burns Real Estate Consulting. “If you look across the U.S. economy right now, there are only a handful of industries looking at 20-30% growth over the next 4-5 years, and housing is one of those.” The housing rebound can have a ripple effect that could help get the entire economy growing at a much stronger pace, which will add to more demand for housing. “That turn in the [housing] market is occurring now and it should become a boom by 2015. It will be powerful enough … to lift the entire U.S. economy,” said Roger Altman, chairman of Evercore Partners and former deputy Treasury secretary, in a column for the Financial Times. Altman said he expects housing will add 4 million jobs to the economy over the next five years, as pent-up demand for home purchases drives building and and home prices higher. Source: CNN/Money
Imagine a 30-year mortgage on which you only pay 2.8 percent in interest a year.
Such a mortgage could already exist, but something in the banking system is holding it back. And right now, few agree on what that “something” is.
Getting to the bottom of this enigma could help determine whether mortgage lenders are dysfunctional, greedy or simply trying to do their job in a sensible way.
Right now, borrowers are paying around 3.55 percent for a 30-year fixed rate mortgage that qualifies for a government guarantee of repayment. That’s down from 4.1 percent a year ago, and 5.06 percent three years ago.
Mortgage rates have declined as the Federal Reserve has bought trillions of dollars of bonds, a policy that aims to stimulate the economy. Last week, the Fed said it would make new purchases, focusing on bonds backed by mortgages.
The big question is whether those purchases lead to even lower mortgage rates, as the Fed chairman, Ben S. Bernanke, hopes.
But mortgage rates may not decline substantially from here. Something weird has happened. Pricing in the mortgage market appears to have gotten stuck. This can be seen in a crucial mortgage metric.
Banks make mortgages, but since the 2008 crisis, they have sold most of them into the bond market, attaching a government guarantee of repayment in the process.
The metric effectively encapsulates the size of the gain that banks make on those sales. In September 2011, banks were making mortgages with an interest rate of 4.1 percent. They were then selling those mortgages into the market in bonds that were trading with an interest rate, or yield, of 3.36 percent, according to a Bloomberg index.
The metric captures the difference between the bond and mortgage rates; in this case it was 0.74 percentage points. The bigger the “spread,” the bigger the financial gain for the banks selling the mortgages. That 0.74 percentage point “spread” was close to the 0.77 percentage point average since the end of 2007. Banks were taking roughly the same cut on the sales as they were in previous years.
But something strange has happened over the last 12 months. That spread has widened significantly, and is now more than 1.4 percentage points. The cause: bond yields have fallen a lot more than the mortgage rates banks are charging borrowers.
Put another way, the banks aren’t fully passing on the low rates in the bond market to borrowers. Instead, they are taking bigger gains, and increasing the size of their cut.
So where might mortgage rates be if the old spread were maintained? At 2.83 percent – that’s the current bond yield plus the 0.75 percentage point spread that existed a year ago.
It’s important to examine why the tight relationship between bond yields and mortgage rates becomes unglued.
One explanation, mentioned in a Financial Times story on Sunday, is that the banks are overwhelmed by the demand for new mortgages and their pipeline has become backlogged. When demand outstrips supply for a product, it’s less likely that its price — in this case, the mortgage’s interest rate — will fall. There are in fact different versions of this theory.
One holds that bank mortgage operations are still poorly run, and therefore it’s no surprise they can’t handle an inundation of new applications. Another says banks deliberately keep rates from falling further as a way of controlling the flow of mortgage applications into their pipeline. If mortgages were offered at 2.8 percent, they wouldn’t be able to handle the business, so they ration through price, according to this theory.
Another backlog camp likes to point the finger at Fannie Mae and Freddie Mac, the government-controlled entities that actually guarantee the mortgages. The theory is that these two are demanding that borrowers fulfill overly strict conditions to get mortgages. Banks fear that if they don’t ensure compliance with these requirements, they’ll have to take mortgages back once they’ve sold them, a move that can saddle them with losses.
As a result, the banks have every incentive to slow things down to make sure mortgages are in full compliance, which can add to the backlog. Once this so-called put-back threat is decreased, or the banks get better at meeting requirements, supply should ease.
But there is a weakness to the backlog theories.
The banks have handled two huge waves of mortgage refinancing since the 2008 financial crisis. During those, the spread between mortgage and bond rates did increase. But not anywhere near as much as it has recently. And the spread has stayed wide for much longer this time around.
For instance, $1.84 trillion of mortgages were originated in 2009, a big year for refinancing, according to data from Inside Mortgage Finance, a trade publication. In that year, the average spread between bonds and loans was 0.89 percentage points. And the banking sector was in a far worse state, which would in theory make the backlog problem worse.
Today, the sector is in better shape, with more mortgage lenders back on their feet. But the spread between loans and bonds is considerably wider. In the last 12 months, when mortgage origination has been close to 2009 levels, it has averaged 1.1 percentage points. This suggests that it’s more than just a backlog problem
Some mortgage banks seem to be having little trouble adapting to the higher demand. U.S. Bancorp originated $21.7 billion of mortgages in the second quarter of this year, 168 percent more than in the second quarter of last year.
Wells Fargo is currently the nation’s biggest mortgage lender, originating 31 percent of all mortgages in the 12 months through the end of June. In a conference call with analysts in July, the bank’s executives seemed unfazed about the challenge of meeting mounting customer demand.
“We’ve ramped up our team members in mortgage to be able to move the pipeline through as quickly as possible,” said Timothy J. Sloan, Wells Fargo’s chief financial officer. He also said that the bank had increased its full time employees in consumer real estate by 19 percent in the prior 12 months. Not exactly the picture of a bank struggling to expand capacity.
But if banks are readily adding capacity, why aren’t mortgage rates falling further, closing the spread between bond yields? Perhaps a new equilibrium has descended on the market that favors the banks’ bottom lines.
The drop in rates draws in many more borrowers. The banks add more origination capacity, but not quite enough to bring the spread between bonds and loans back to its recent average.
The banks don’t care because mortgage revenue is ballooning. But it all means that the 2.8 percent mortgage may never materialize. Source: New York Times
|From Mortgage Daily–This may portend further FHA mortgage insurance increases….
A near-unanimous vote was reached in favor of a bill that would increase liability for mortgagees that commit fraud or knowingly violated policies on government-insured mortgages. The legislation also addresses the solvency of the government’s home loan insurance fund.
H.R. 4264, the FHA Emergency Fiscal Solvency Act of 2012, was passed Tuesday by the House of Representatives by a vote of 402 to seven.
The bill would establish minimum annual mortgage insurance premiums of at least 0.55 percent of the remaining insured principal balance. In addition, it would give the Department of Housing and Urban Development the discretion to charge premiums up of up to 2.0/2.5 percent. The higher premiums would take effect six months after the bill is enacted.
The legislation also requires lenders that commit fraud to reimburse the Federal Housing Administration for related losses.
“If fraud or misrepresentation was involved in the origination or underwriting of the FHA mortgage, HUD could require the mortgagee to indemnify HUD regardless of when an insurance claim is paid,” an executive summary of the bill says.
Mortgagees would be required to indemnify FHA if HUD determines that lenders knew, or should have known, about a serious or material violation of FHA underwriting standards.
Government-insured mortgages that become 90 days delinquent during the first two years could trigger indemnification from lenders.
HUD will be required to set up an indemnification appeals process, issue regulations and report the number of fraudulent or improperly underwritten loans. The housing agency would also be required to report about how indemnification is impacting the FHA Mutual Mortgage Insurance Fund.
FHA lenders would have to report to HUD within 15 days of discovering that another lender is committing fraud or material misrepresentations.
The bill additionally expands HUD’s ability to terminate the authority of poorly performing mortgagees and requires performance tracking by servicer.
One section of the bill provides for the establishment of a chief risk officer for the Government National Mortgage Association, or Ginnie Mae.
Another section directs the HUD secretary to provide Congress an emergency capital plan for the restoration of the FHA’s fiscal solvency within 30 days of the bill’s enactment.
“The plan would provide a detailed explanation of how the FHA’s capital assets are monitored and tracked; how to ensure the FHA’s financial safety without borrowing funds from the U.S. Department of Treasury; and describe how, if necessary, the FHA would draw down funds from the Treasury,” the summary states.
Monthly reports to Congress are required as long as FHA’s capital reserve ratio is less than 2 percent.
Between 2013 and 2017, implementation of the bill is expected to cost $11 million.
“We are pleased that the bill passed by the House includes provisions that will allow FHA to continue its efforts to strengthen its enforcement capabilities in order to protect its insurance fund and American taxpayers,” Acting FHA Commissioner Carol Galante said in a statement. “We look forward to continuing to work with both chambers to enact final legislation to provide FHA with the tools it needs to build on the vital reforms implemented by this administration.”
The CFPB has proposed rules two sets of rules on July 9.
The first set of rules proposes combining required disclosures under TILA and RESPA pursuant to sections 1032(f), 1098 and 1100A of the Dodd-Frank Wall Street Reform and Consumer Protection Act. Highlights of the major portions of the Rules are provided below.
Full text of proposed disclosure rules: http://files.consumerfinance.gov/f/201207_cfpb_proposed-rule_integrated-mortgage-disclosures.pdf
View proposed disclosures as well as a summary of the proposals:
Scope. The CFPB has noted that the Rules will only affect closed-end mortgage loans. It does not appear that home-equity lines of credit (HELOCs) and reverse mortgages would be affected by the Rules.
The Loan Estimate. The Rules propose replacing the RESPA-mandated GFE and the TILA-mandated “TIL” form with a single new disclosure entitled the Loan Estimate. The Loan Estimate must be provided no later than three (3) business days after a consumer submits a loan application, and may be provided by either the broker or the lender, although the lender retains responsibility for ensuring the Loan Estimate’s accuracy. No person is permitted to impose a fee on a consumer in connection with an application until the consumer has received the Loan Estimate and has affirmatively indicated his or her intent to proceed with the transaction, although an exception exists for a fee to obtain a credit report.
The Closing Disclosure. In addition to the Loan Estimate, the Rules would replace the HUD-1 with the Closing Disclosure. It would have to be provided to the consumer no later than three (3) business days before the consumer closes on the loan. If changes occur between provision of the Closing Disclosure and closing, the consumer generally must be given a new, updated Closing Disclosure and the closing must be delayed for another three (3) business days in order to give the consumer time to review the Closing Disclosure (with some exceptions, such as changes resulting from negotiations between the buyer and the seller after a final walk-through, or changes that result in less than one hundred dollars ($100) in increased costs). Additionally, the CFPB has proposed two alternatives for who may provide the Closing Disclosure. Under the first alternative, the lender alone may deliver the document. Under the second alternative, the lender may rely on the settlement agent to provide the document; in that event, however, the lender would still be responsible for the accuracy of the Closing Disclosure.
As with the current GFE and HUD-1 requirement, there would be limits on closing cost increases associated with the Closing Disclosure. Generally, the Rules provide that the following charges could not increase from the amount disclosed on the Loan Estimate: (A) the lender’s or broker’s charges for its own services; (B) charges for services provided by an affiliate of the lender or broker; and (C) charges for services for which the lender or broker does not permit the consumer to shop. Generally, charges for all other services could not increase by more than ten percent (10%). Exceptions to these restrictions could arise when: (A) the consumer asks for a change; (B) the consumer chooses a service provider not identified by the lender; (C) information provided at application was inaccurate or becomes inaccurate; or (D) the Loan Estimate expired.
Finance Charge. In addition to the new disclosures, with respect to closed-end loans the Rules would replace the current definition of “finance charge” under TILA with (in the CFPB’s words) a “simpler, more inclusive” test. Under the Rules, a fee or charge would be included in the finance charge amount if: (A) it is “payable directly or indirectly by the consumer” to whom the credit is extended; and (B) it is “imposed directly or indirectly by the creditor as an incident to or a condition of the extension of credit.” Fees or charges paid in comparable cash transactions would continue to be excluded, as would late fees and other similar default or delinquency charges, seller’s points, amounts required to be paid into escrow accounts if they would not otherwise be included in the finance charge, and premiums for property and liability insurance if certain conditions were met. However, the Rules would include in the definition of “finance charge” most of the charges that are currently exempted from that definition for closed-end transactions.
The CFPB has indicated in the Rules that it is aware that this broader proposed definition of “finance charge” would potentially have negative consequences, such as exposing more loans to the HOEPA “high-cost” prohibitions due to APR or points-and-fees triggers or disqualifying more potential mortgages from the “qualified mortgage” definition under the proposed ability to repay rules, again due to points-and-fees triggers. The CFPB in response has proposed two different methods of reconciling the expanded definition of the finance charge with existing APR or points-and-fees triggers, and has asked for comments on this topic (as noted above) by September 7, 2012.
Comment Due Dates. Public comments on certain portions of the Rules (most importantly, the revised definition of “finance charge”) are due by September 7, 2012. All other public comments , including comments on when the Rules should become effective, are due by November 6, 2012.
Rules Regarding High Cost Mortgages. On the same date, additional rules were proposed that regulate and expand the definition of high-cost mortgages under HOEPA and the TIL Act.
The proposed rule (http://files.consumerfinance.gov/f/201207_cfpb_proposed-rule_high-cost-mortgage-protections.pdf) would implement an expansion of HOEPA rules approved by Congress when it passed the Dodd-Frank Act. The proposal would:
- Ban “potentially risky” features. For mortgages that qualify as high-cost based on their interest rates, points and fees or prepayment penalties, the proposed rule would generally ban balloon payments and would ban prepayment penalties.
- Ban and limit certain fees. The proposed rule would ban fees for modifying loans, cap late fees and restrict the charging of fees when consumers ask for a payoff statement.
- Require housing counseling for high-cost mortgages. The proposed rule would require consumers to receive housing counseling before taking out a high-cost mortgage. In addition, the CFPB’s proposal would implement Truth in Lending counseling requirements for first-time borrowers taking out certain mortgage loans that permit negative amortization. The proposal would also implement an amendment to RESPA to generally require that a list of housing counselors or counseling organizations be provided to all mortgage applicants
From Housing Wire:
The Federal Housing Administration rescinded a rule that would have forced potential homebuyers to settle ongoing credit disputes of more than $1,000 before getting financing, according to an alert sent to lenders Friday.
The FHA quietly drafted the rule in March to mitigate risks to its emergency fund. The rule went into effect April 1. Borrowers had to either pay off the outstanding balance on collections accounts or document an arrangement to pay before the mortgage was approved.
Industry experts pushed back, particularly homebuilders and lenders with much of their business tied to first-time homebuyers.
Combined with the increasing insurance premiums to bolster an FHA emergency fund on the brink of a bailout, many claimed more business would be pushed to Fannie Mae and Freddie Mac, two mortgage giants the government wants to wind down.
On April 3, the FHA clarified a borrower can be exempted from the rule if the disputed collections account stems from a “life event,” such as a medical bill, death, divorce or loss of employment.
Lisa Marquis Jackson, vice president of John Burns Real Estate Consulting, said roughly 25% of the builders they surveyed the week FHA announced the revised rule anticipated either a delay or losing up to 60% of their sales.
“The ripple effects of the FHA credit dispute rule would have had a notable impact on the housing market,” Marquis Jackson said.
The FHA delayed the rule a week after it went into effect and said it would take comments from the industry until July.
According to the letter sent Friday, the FHA completely revoked the rule. Any loans written to fit the guidelines in the week between April 1 and April 8 will not be deemed in violation of HUD requirements.
An FHA spokesperson said they are still taking comments on the original proposal.
“We’ll issue new guidance very soon,” the spokesperson said.
Edward Mills, senior vice president at FBR Capital Markets, said the FHA has to strike a tough balance between helping potential homeowners who cannot get credit elsewhere and protecting the insurance fund.
“FHA killing off the rule is not a surprise when you take into account the resounding objection from the housing finance community and their concern that this would overly constrain credit,” Mills said. “This action shows how it can be incredibly difficult to make choices that move towards protecting the insurance fund over keeping mortgage credit available.”