Dodd Frank Act Consumer Financial Protection Bureau Mortgage Lending

Transcription

1 Dodd Frank Act Consumer Financial Protection Bureau Mortgage Lending A Briefing for the Texas House Investments and Financial Services Committee John C. Fleming

2 Consumer Financial Protection Bureau (CFPB) Established in Title X of Dodd Frank Intended To create a single point of accountability in the federal government for consumer financial regulation Consolidated significant consumer regulatory authority in the CFPB previously overseen by seven federal agencies.

3 Consumer Financial Protection Bureau (CFPB) Reaction in part to perception that federal safety and soundness banking regulators were slow to address consumer protection laws and that this was a contributing cause to 2008 crisis. Intended to be isolated from political interference (some would say insulated from Congressional oversight)

4 Structure and Funding Separate agency within the Federal Reserve but essentially independent of the Federal Reserve Executive Director appointed by the President with advice and consent of Senate Executive Director serves a 5 year term The President may remove the Director for inefficiency, neglect of duty, or malfeasance in office (unlike other appointees, the Director does not serve at

5 Structure and Funding CFPB funded by transfer of up consolidated earnings of the Federal Reserve system up to a maximum of 12% of the amount of operating expenses of the Federal Reserve. Amounts transferred not subject to review by Congressional Appropriations Committees FY 2013 budget estimate is $ 478 million

6 Structure and Funding May request up to $200 million in additional funding if Federal Reserve transfers are not sufficient These supplemental funding requests are subject to Congressional approval

7 Regulations Transferred (A) the Alternative Mortgage Transaction Parity Act of 1982 (12 U.S.C et seq.); (B) the Consumer Leasing Act of 1976 (15 U.S.C et seq.); (C) the Electronic Fund Transfer Act (15 U.S.C et seq.), except with respect to section 920 of that Act;

8 Regulations Transferred (E) the Fair Credit Billing Act (15 U.S.C et seq.); (F) the Fair Credit Reporting Act (15 U.S.C et seq.), except with respect to sections 615(e) and 628 of that Act (15 U.S.C. 1681m(e), 1681w); (G) the Home Owners Protection Act of 1998 (12 U.S.C et seq.); (H) the Fair Debt Collection Practices Act (15

9 Regulations Transferred (I) subsections (b) through (f) of section 43 of the Federal Deposit Insurance Act (12 U.S.C. 1831t(c) (f)); (J) sections 502 through 509 of the Gramm-Leach- Bliley Act (15 U.S.C ) except for section 505 as it applies to section 501(b); (K) the Home Mortgage Disclosure Act of 1975 (12U.S.C et seq.); (L) the Home Ownership and Equity Protection Act of 1994 (15 U.S.C note); (M) the Real Estate Settlement Procedures Act of 1974 (12 U.S.C et seq.);

10 Regulations Transferred (N) the S.A.F.E. Mortgage Licensing Act of 2008 (12 U.S.C et seq.); (O) the Truth in Lending Act (15 U.S.C et seq.); (P) the Truth in Savings Act (12 U.S.C et seq.); (Q) section 626 of the Omnibus Appropriations Act, 2009 (Public Law 111 8); and

11 Rulemaking authority The Director of CFPB has authority to issue rules for those regulations that CFPB has jurisdiction to oversee. Richard Cordray was appointed by President Obama as CFPB Director under the President s recess appointment authority

12 Rulemaking Authority Because of recent DC Circuit Appellate case regarding recess appointments, a question exists as to whether Cordray was lawfully appointed. If not, the CFPB regulations promulgated during his tenure may be invalid. The financial services industry is divided as to whether this is a good thing or bad thing.

13 Rulemaking Authority For instance in the mortgage industry, CFPB has issued final rules on the Dodd Frank mandated requirement that lenders determine a borrower s ability to repay a mortgage loan. Many are critical of the rule, but the rule did create a Safe Harbor for mortgage lenders. If the rule is invalid, the statutory requirement is still in full effect

14 Rulemaking Authority This leaves the industry subject to a case by case litigation over what a lender must do to comply with the Ability to Repay statutory requirement In the absence of a rule, there is no Safe Harbor.

15 Rulemaking Authority A rule issued by the CFPB Director may be set aside by a 2/3 vote of the members of the Financial Stability Oversight Council (also established by Dodd Frank) FSOC members are The Bank and credit union regulators: Federal Reserve Board of Governors ; OCC (national bank regulator): FDIC; National Credit Union Administration Federal Housing Finance Agency (oversees Freddie/Fannie; Federal Home Loan Banks) SEC Commodity Futures Trading Commission Secretary of Treasury (Chairs Council)

16 Supervision, Examination, Enforcement Depository institutions over $10 Billion in assets. CFPB has exclusive examination and supervisory authority relating to consumer financial regulations and primary enforcement authority. Depository institutions less than $10 Billion in assets: CFPB may ride along with the prudential bank regulator on exams; may recommend enforcement actions to the prudential bank regulator Persistent reports of CFPB independently examining Texas smaller institutions.

17 Supervision, Examination, Enforcement CFPB has direct authority to supervise the following non depository entities regardless of size: lenders, servicers and brokers of residential mortgage loans; mortgage modification and foreclosure relief services; private educational lenders; and payday lenders.

18 Supervision, Examination, Enforcement CFPB possesses supervision, examination, and enforcement authority over larger non depository entities in the following industries: debt collection agencies; credit reporting agencies; consumer lenders, servicers and brokers (i.e., non-real-estate related); money transmitters, check cashers and similar entities; prepaid card providers; and debt relief services.

19 Supervision, Examination, Enforcement CFPB has issued rule defining the definition of larger participants for credit reporting businesses to be those that exceed $7 million in annual receipts for debt collection businesses to be those that exceed $10 million in annual receipt Thresholds for the other industries are yet to be determined.

20 Supervision Regulation and Examination and State Regulators CFPB has overlapping jurisdiction with State regulators Memorandums of Understanding with the Department of Banking, Savings and Mortgage Lending, and Office of Consumer Credit Commissioner have been entered into relating to sharing of information and coordination with CFPB. In a 12/06/2012 release CFPB issued a statement of intent relating to sharing of information, coordination of examinations, and proposed enforcement for non depository

21 Dodd Frank and Mortgage Lending The two major mortgage lending reforms made by Dodd Frank involve a consumer protection statute and an investor protection statute. The two look alike. Ability to Repay and QM (Qualified Mortgage). This is the consumer side. It requires a mortgage lender to verify that the borrower has the ability to repay the proposed mortgage loan and imposes serious consequences for failure to comply.

22 Dodd Frank and Mortgage Lending The Credit Risk Retention Rule ( Skin in the game ) and the QRM (Qualified Residential Mortgage). This is the investor protection rule Under the ability to repay a lender may be presumed to have complied if the loan is a qualified mortgage loan or QM.

23 Dodd Frank and Mortgage lending Generally, a qualified residential mortgage loan can be described as a loan that: 1. does not permit negative amortization 2. does not permit deferment of principal payments 3. does not provide for a balloon payment more than 2 times the average payments with limited exceptions 4. with respect to fixed rate loans, the underwriting process is based upon a payment schedule that fully amortizes the loan over the term and takes into account taxes, insurance, and assessments. 5. with respect to adjustable rate loans, the underwriting is based upon the maximum rate permitted under the loan during the first 5 years based upon a payment schedule that fully amortizes the loan over the term and takes into account taxes, insurance, and assessments 6. complies with regulations relating to ratios of total monthly debt to monthly income or alternative measures of ability to repay. 7. the total points and fees do not exceed 3% of the loan amount; 8. is for a term of 30 years or less with limited exceptions. 9. the income and financial resources are verified and documented.

24 Dodd Frank and Mortgage Lending The Dodd Frank act left to the CFPB to fill in the details of what a Qualified Mortgage is and whether or not there would be a Safe Harbor (insulating the lender from liability if it underwrites a loan to the QM standard) or a rebuttable presumption. In January CFPB issued the final ability to repay rules; it provides for a Safe Harbor for certain QM loans.

25 Dodd Frank and Mortgage Lending The Credit Risk Retention piece of Dodd Frank is found in the Investor Protection provisions of Dodd Frank. The simple formulation is that a lender that originates a loan and sells it into the secondary market must retain a 5% economic interest in the loan. This was in response to the originate to sell business model that was believed to have encouraged the proliferation of non traditional mortgage products such as the subprime loans and the no doc loans.

26 Dodd Frank and Mortgage Lending Impact of Risk Retention Provisions of Sec This will impact the ability of community banks to sell residential mortgage loans into the secondary market. Amends the Securities Act of 1934 (15 USC 78a, et seq) to add new Sec 15G, Credit Risk Retention Requires SEC, Fed Banking Agencies, and HUD to issue regulations on Mortgage Backed Securities Rules to require retention of credit risk by securitizer : generally not less than 5% of the economic interest in mortgage loans subject of securitization unless the loan is a qualified mortgage loan May be less than 5% if the loan is not a qualified mortgage loan but meets certain underwriting standards Does not require risk retention if the mortgage loan is a qualified mortgage loan.

27 Dodd Frank and Mortgage Lending The agencies issued a proposed rule for credit risk retention before CFPB issued its Ability to Repay rules. Although what constitutes a qualified mortgage under Ability to Repay and what constitutes a qualified residential mortgage under the risk retention rules do not have to be identical, the joint agencies decided to defer the credit risk retention rules until after the CFPB issued its final rules.

28 Recent Rules Amendments to Reg Z (Truth in Lending) relating to fees that can be charged on credit cards Final rules on loan originator compensation Electronic funds transfer rules on remittances (Reg E) Appraisals relating to high cost loans Counseling for certain high cost loans

29 Recent Rules Mortgage servicing rules Requires periodic statement for each billing cycle, payments made, application of past payments, fees imposed, transaction activities Provide 21- to 240 day advance notice of rate change for ARM s; 60 to 120 day notice of payment changes Prompt application of payments; provide payoff balance within 7 business day of request

30 Recent Rules Mortgage servicing (continued) Restrictions on force placed insurance. Error Resolution Acknowledge receipt from consumer 5 days days to correct error or notify consumer no error Prohibits dual tracking (simultaneously doing loss mitigation and foreclosure) May not begin foreclosure until consumer is 120 days delinquent