On May 15, the CFPB announced a YouTube playlist, which includes seven videos that provide information about the mortgage rules the CFPB published earlier this year. The CFPB stated that the purpose of the videos is to provide an overview of the rules in a plain language format for use by a broad array of industry constituents, but cautioned that the videos are not a substitute for the rules themselves. Also on May 15, the CFPB announced a Spanish language website, with mobile capability, that provides access to CFPB resources, including information about how to submit a consumer complaint and answers to consumers’ frequently asked questions.
On May 16, the CFPB issued a final rule clarifying its January 2013 final rule on escrow account requirements for first-lien higher-priced mortgage loans (HPMLs). The January 2013 rule expands existing escrow requirements for such loans and creates a new exemption for small creditors that operate predominantly in rural or underserved areas. The clarifying rule adopts the rule clarifications as proposed. The clarifying rule explains how a county’s rural and underserved status may be determined based on currently applicable Urban Influence Codes established by the Department of Agriculture, or based on HMDA data, and provides illustrations to facilitate compliance. With the clarifying rule, the CFPB posted on its website a final list of rural and underserved counties, for use with mortgages closed from June 1, 2013 through December 31, 2013. The list is identical to the preliminary list posted in March. Finally, the clarifying rule (i) notes that the final escrow rule inadvertently removed existing language that provided certain protections related to a consumer’s ability to repay and prepayment penalties for HPMLs, and (ii) establishes a temporary provision to ensure the removed protections remain in effect until the expanded HPML protections take effect on January 10, 2014.
On May 9, Indiana enacted HB 1081, which makes numerous changes to the state’s consumer lending, licensing, and banking laws. Among those changes, the bill increases the threshold loan amounts under various definitions in the Uniform Consumer Credit Code, including “consumer credit sale,” “consumer loan,” and “consumer related loan.” With regard to mortgage originator licensing, the bill (i) revises the surety bond requirements for creditors and entities exempt from licensing that employ a licensed mortgage loan originator, (ii) prohibits an unlicensed individual or an unlicensed organization to act as a closing agent in a first lien mortgage transaction, and (iii) empowers the Department of Financial Institutions (DFI) to investigate any licensee or person that the DFI suspects is operating without a license or in violation of the First Lien Mortgage Lending Act. The bill provides additional guidelines for filing an article of dissolution of a bank, trust company, or a building and loan association. It also makes changes to the certain powers of banks and trust companies. In addition, the bill make numerous amendments related to debt management companies, lead generators, and other consumer financial service providers, and revises requirements for money transmitter licensing by, for example, authorizing the DFI to designate the NMLS for licensing purposes.
On May 15, Freddie Mac issued Bulletin Number 2013-8, which includes numerous revisions to requirements for sellers and servicers. According to the Bulletin, beginning January 1, 2014, a seller/servicer will be charged a $7,500 low activity fee if the seller/servicer does not either (i) sell mortgages to Freddie Mac with an aggregate unpaid principal balance greater than $5 million during the immediately preceding calendar year, or (ii) service, or act as a servicing agent for, mortgages for Freddie Mac with an aggregate unpaid principal balance of at least $25 million as of December 31 of the immediately preceding calendar year. In addition, the Bulletin, among other things: (i) requires seller/servicers to comply with the deadlines specified by Freddie Mac when it requests cooperation in a fraud investigation; (ii) notifies sellers and reminds servicers that seller/servicers must direct mortgage insurers providing coverage on mortgages sold to and/or serviced for Freddie Mac to release data to Freddie Mac at Freddie Mac’s request; (iii) updates and revises requirements for Living Trusts and announces that mortgages secured by properties in which the legal and equitable title is held by a land trust will no longer be eligible for purchase under the Guide, unless certain conditions are met; and (iv) prohibits sellers that have guarantor master commitments from taking out fixed-rate cash contracts for the sale of super conforming mortgages.
Over the past week, HUD issued numerous mortgagee letters applicable to single-family mortgagees. Mortgagee Letter 2013-14, dated May 9, 2013, establishes documentation requirements for mortgagees to demonstrate eligibility for FHA mortgage insurance of loans when a governmental entity, or its agency or instrumentality, directly provides the borrower’s required minimum cash investment. The letter also provides guidance on resolving concerns with extending secondary financing by a governmental entity when such an entity provides the minimum cash investment through secondary financing. The letter becomes effective July 1, 2013. Also on May 9, HUD issued Mortgagee Letter 2013-15, which introduces new status codes for reporting delinquent mortgages in the Single Family Default Monitoring System and announces a new requirement to report each non-incentivized loan modification. The reporting and status code requirements become effective November 9, 2013. On May 14, HUD issued Mortgagee Letters 2013-16 and 2013-17. The former permits the subordination of partial claim liens for FHA streamlined refinances and eliminates consideration of partial claim notes from the 125% combined loan-to-value ratio calculation for streamlined refinances. Mortgagees have until July 13, 2013 to implement the changes. The latter provides guidance for determining interest rates to use when implementing loss mitigation home retention options for trial payment plans offered on or after July 1, 2013.
Recently, Kansas enacted SB 129, which repealed a provision in the mortgage interest rate law that set a floating cap on the interest rate charged for first real estate mortgage loans and contracts for deeds. The repeal also renders irrelevant another recent change to the same provisions. Specifically, on April 4, the state enacted a bill that increased the maximum annual interest rate for certain mortgages from 1.5 percentage points to no more than 3.5 percentage points above a Freddie Mac floating rate. While that change was pending approval by the governor, the legislature passed the repeal, as explained in the legislature’s conference report. With the elimination of the specified interest rate cap, parties now are subject to provisions in current law, which provide the rate cannot exceed 15% per year.
On May 7, the CFPB proposed to temporarily delay the effective date of one aspect of its loan originator compensation rule. Under the final rule, effective June 1, 2013, creditors would be prohibited from financing premiums or fees for certain credit insurance products offered in connection with certain mortgage loan transactions. The CFPB proposes to temporarily delay the relevant provision so that the Bureau can clarify its application to transactions other than those in which a lump-sum premium is added to the loan amount at closing. The CFPB plans to publish a new proposal to seek further notice and comment about whether, and under what circumstances, premiums for certain credit insurance products can be charged on a periodic basis in connection with a covered consumer credit transaction
On May 2, the CFPB published three additional guides to assist companies seeking to comply with its HOEPA rule, ECOA valuations rule, and TILA high-priced mortgage appraisal rule. As with other prior guides it has released, the CFPB cautions that the guides are not a substitute for the rules and the Official Interpretations, and that the guides do not consider other federal or state laws that may apply to the origination of mortgage loans. BuckleySandler also has prepared detailed analyses of these and other CFPB mortgage rules.
On May 1, President Obama announced the nomination of Representative Mel Watt (D-NC) to serve as Director of the FHFA. Mr. Watt has represented portions of Charlotte and other North Carolina communities since 1993 and currently is a member of the House Committees on Financial Services and Judiciary. He would replace FHFA Acting Director Edward DeMarco, who federal and state Democratic policymakers and housing groups have called on to be replaced, in part based on his decision to not direct Fannie Mae and Freddie Mac to engage in broad principal reduction programs. On the same day as the President’s announcement, the Congressional Budget Office released a report that examined three options for Fannie Mae and Freddie Mac to use principal forgiveness, which the CBO finds would be likely to (i) result in small savings to the government, (ii) slightly reduce mortgage foreclosure and delinquency rates, and (iii) slightly boost overall economic growth.
On April 30, Fannie Mae released loan performance data on a portion of its single-family mortgage loans, which includes a subset of Fannie Mae’s 30-year, fully amortizing, full documentation, single-family, conventional fixed-rate mortgages. The initial population is comprised of loans acquired between January 1, 2000 and March 31, 2012 with corresponding monthly performance data as of December 31, 2012. The loan performance data is divided into two files for each acquisition quarter: (i) the “Acquisition file” includes static data at the time of a mortgage loan’s origination and delivery to Fannie Mae; and (ii) the “Performance” file contains monthly performance data of each mortgage loan from the time of Fannie Mae’s acquisition up until its current status as of the previous quarter, until the mortgage loan has been liquidated, or until it has become 180 days or more delinquent. Fannie Mae expects to update the acquisitions data each quarter to include a new quarter of acquired mortgage loans as of the prior year in addition to updated performance data as of the previous quarter. Certain data attributes also will be updated to reflect new terms, if applicable, as a result of a modification.
On April 11, HUD issued Mortgagee Letter 2013-11, which amends prior guidance related to the origination and servicing of FHA-insured loans in declared disaster areas. The letter stresses that prior guidance requiring a moratorium on foreclosures of properties in disaster areas for 90 days applies to the initiation of foreclosures and foreclosures already in process. The letter outlines steps servicers should take to determine the appropriate course of action for each borrower, including a review of individual facts and circumstances to determine whether to offer forbearance and other loss mitigation alternatives. The letter details such loss mitigation options and servicer requirements. The policy changes took effect immediately.
On April 9, HUD issued Mortgagee Letter 2013-10 to explain enhancements to the Lender Insurance program that allows high-performing mortgagees to conduct pre-endorsement reviews and insure loans. Those enhancements were implemented by a January 2012 HUD rule. The letter summarizes changes made by that rule, reviews mortgagee eligibility requirements for participation in the Lender Insurance program, and outlines the initial application process. Among other things, the letter also discusses the conditions under which a mortgagee’s lender insurance authority can be terminated or suspended and explains how mortgages with such authority are subject to a revised indemnification policy.
Tennessee Makes Minor Changes to Mortgage Licensing Rules. On April 11, Tennessee enacted HB 160, a bill that makes certain minor changes to the state’s mortgage licensing law. The bill removes current licensing exemptions for (i) a person who owns a vacant tract of real property which the person subsequently subdivides and sells the tracts, regardless of the number of individual tracts sold and the number of ultimate purchasers of such tracts of real property, and (ii) a person or agent engaged solely in commercial real estate lending or who provides financing on property which is not intended to be owner-occupied by the person receiving the financing. The bill continues to allow licensed real estate brokers to include in any contract, mortgage terms agreed upon by the parties without having to obtain mortgage licenses, but clarifies that such communications cannot include the offering or negotiating of any terms of a residential mortgage loan. The changes took effect immediately.
Kansas Increases Mortgage Interest Rate Cap. On April 4, Kansas enacted SB 52, which increases the maximum annual interest rate for certain mortgages from 1.5 percentage points to no more than 3.5 percentage points above a specified monthly floating rate set by Freddie Mac.
On April 10, the CFPB published a guide to help small entities comply with its ability-to-repay/qualified mortgage rule. As required by the Small Business Regulatory Enforcement Fairness Act, the guide highlights issues for small creditors to consider when implementing the rule. More broadly, the CFPB believes the guide provides an “easy-to-use” summary of the rule for all creditors, as well as secondary market participants, software providers, and other vendors and creditor business partners. However, the CFPB notes that the guide is not a substitute for the rule and the Official Interpretations, and the guide does not consider other federal or state laws that may apply to the origination of mortgage loans. The CFPB also has prepared a chart that compares the general ability-to-repay requirements with requirements for originating qualified mortgages.
On April 9, the FDIC announced a series of nationwide banker teleconferences focused on the CFPB’s final mortgage rules. The first teleconference call is scheduled for May 2, 2013 and will focus on the ability-to-repay/qualified mortgage rule, the new escrow requirements, and certain aspects of the loan originator compensation rule. The second call is scheduled for May 15, 2013 and will address the CFPB’s final rule on mortgage servicing. The final call is scheduled for June 6, 2013 and will focus on the loan originator compensation rule and HOEPA amendments. The sessions are free, but individuals are required to register.
On April 9, Fannie Mae issued Selling Guide Announcement SEL-2013-03, which updates numerous guide sections. According to the announcement, effective immediately, all lenders that wish to deliver eMortgages must obtain special approval evidenced by an addendum to their Mortgage Selling and Servicing Contract (MSCC), and not by a variance to their Master Agreement. Lenders that currently have variances by way of their Master Agreement will still be entitled to electronically deliver mortgages until the variance is converted to an MSCC addendum. The Selling Guide also has been updated to reflect previously announced policy changes regarding lender incentives for borrowers, private flood insurance policies, and the new selling representation and warranty framework. With regard to that new framework, the announcement includes a table summarizing the major updates. Fannie Mae also authorized changes to the last page of the note and security instrument to comply with the requirements of TILA and Regulation Z. Lenders are encouraged to implement the changes to the note and security instrument immediately and no later than January 10, 2014. Finally, the announcement includes numerous minor Guide changes and clarifications.