Dodd-Frank Financial Reform

Transcription

1 Overview of Dodd-Frank Provisions for Residential Mortgage Lending Presented January 19, 2011 by Marjorie A. Corwin, Esquire Gordon, Feinblatt, Rothman, Hoffberger & Hollander, LLC 233 East Redwood Street Baltimore, Maryland Copyright, 2011 Dodd-Frank Financial Reform The Law: Dodd-Frank Wall Street Reform and Consumer Protection Act (Public Law , enacted July 21, 2010) Regulations: Many statutory provisions require regulations before they become effective Some provisions become effective on the designated transfer date which, at present, is July 21, 2011 Dodd-Frank Financial Reform Today s Presentation Because we are waiting for numerous regulations, today s presentation is merely a simple overview There is much more we need to know before full implementation is possible Not discussing new liability provisions or enforcement powers

2 Dodd-Frank Financial Reform Of greatest interest to the mortgage industry: Title X, Bureau of Consumer Financial Protection Title XIV, Mortgage Reform and Anti- Predatory Lending Dodd-Frank: Title X Title X, Consumer Financial Protection Bureau (CFPB) CFPB will write the rules for nearly all federal consumer protection laws applicable to mortgage lending. CFPB will be the enforcement agency for some mortgage entities and laws Dodd-Frank: Title X Title X contains a number of substantive changes to the mortgage lending laws Title X includes provisions that significantly affect preemption for banks

3 Dodd-Frank: Preemption Dodd-Frank dramatically narrows the federal preemption over "state consumer financial laws" for national banks, federal thrifts, their subsidiaries, and agents. It also impacts interstate activities of statechartered banks. Practice Point: Institutions need to implement an action plan now to ensure their operations and products do not violate state law beginning on the designated transfer date (July 21, 2011). Check the publications section our website for more information: Dodd-Frank: Title X Some Title X substantive changes include: Fair Credit Reporting Act. Expands information given to consumer (including numerical credit score) when a consumer report is used as a basis for adverse action ( 1100F). This requirement appears to become effective on July 21, Practice Point: This change needs to be coordinated with the Risk-Based Pricing Notice. Dodd-Frank: Title X Some Title X substantive changes include: Home Mortgage Disclosure Act. Prescribes new categories of information to be collected and reported under HMDA ( 1094). Most of the new HMDA data need not be reported until the first calendar year that begins following 9 months after the date final regulations are issued. (For example, if final HMDA regulations are issued November 2011, the first year new data needs to be reported is 2013 for data from 2012).

4 Dodd-Frank: Title X Some Title X substantive changes include: Equal Credit Opportunity Act. Imposes new obligations to collect data regarding women-owned, minority-owned, and small business loan applicants ( 1071). This requirement appears to become effective on July 21, Note: The statute of limitations for ECOA liability has been lengthened from 2 years to 5 years ( 1085). Dodd-Frank: Title X Some Title X substantive changes include: S.A.F.E. Act. Puts the CFPB in charge of S.A.F.E. Act implementation ( 1100). Requires the registration system to be effective by July 20, 2011 (but note, the registration system for bank employees is expected to be available by the end of January 2011). Title XIV: Mortgage originators will need to place their unique identifiers on all mortgage loan documents ( 1402). Licensing and registration will be required by the Truth in Lending Act ( 1402). Dodd-Frank: Title X Some Title X substantive changes include: Truth in Lending Act and Real Estate Settlement Procedures Act. Requires the Bureau to publish a single, integrated model disclosure form for mortgage transactions which includes the disclosure requirements of RESPA (HUD settlement statement and good faith estimate) and TILA disclosure requirements ( 1098 and 1100A). This combined disclosure must be proposed for public comment by July 21, 2012 ( 1032).

5 Dodd-Frank: Title X Some Title X substantive changes include: Alternative Mortgage Transactions Parity Act. Narrows the scope of the law so that only adjustable rate loans will be deemed alternative mortgage transactions ( 1083). This limitation on the scope of AMTPA becomes effective on July 21, Practice Point: In Maryland, this will result in a prohibition on balloon payment HELOCs. Dodd-Frank Financial Reform As stated earlier, of greatest interest to the mortgage industry: Title X, Bureau of Consumer Financial Protection Title XIV, Mortgage Reform and Anti- Predatory Lending Title XIV is all mortgage, all the time Subtitle A: Residential Mortgage Loan Origination Standards Subtitle B: Minimum Standards for Mortgages Subtitle C: High-Cost Mortgages Subtitle D: Office of Housing Counseling Subtitle E: Mortgage Servicing Subtitle F: Appraisal Activities Subtitle G: Mortgage Resolution and Modification Subtitle H: Miscellaneous Provisions

6 Dodd-Frank: Effective Dates Many Title XIV provisions require regulations before they become effective Most mortgage reform regulations must be final by no later than 18 months after the designated transfer date (December 22, 2012) Most mortgage reform regulations must take effect not later than 12 months after made final (e.g., December 22, 2013) Dodd-Frank: Effective Dates Many Title XIV provisions require regulations before they become effective But if regulations are required and are not final, then the statutory provisions become effective 18 months after the designated transfer date without regulations (December 22, 2012) Subtitle A: Residential Mortgage Loan Origination Standards Applies to mortgage originators which has a lengthy definition but basically means mortgage loan brokers, broker employees, and (I believe) creditor employees who originate residential mortgage loans, namely consumer closed-end mortgage loans ( 1401) The definition of residential mortgage loans is not limited to owner-occupied loans.

7 Subtitle A: Residential Mortgage Loan Origination Standards Requires licensing and registration of mortgage originators ( 1402) Prohibits steering incentives ( 1403) Imposes TILA liability on mortgage originators ( 1404) Subtitle A: Prohibits steering incentives ( 1403) No compensation based on loan terms (other than loan amount) Compensation may be paid by borrower or by lender, but not both (and if compensation is paid by lender, borrower cannot pay points or fees to creditor) Identifies practices that will be prohibited by forthcoming regulations Subtitle B: Minimum Standards for Residential Mortgage Loans ( 1411) Ability to repay: Requires creditor to make a determination that consumer has a reasonable ability to repay the loan Statute includes ridiculous amount of detail on how this determination must be made There is a presumption that this requirement is met if the loan is a qualified mortgage

8 Attributes of a Qualified Mortgage ( 1412) No negative amortization No balloon payment (with limited exceptions) Income and financial resources are verified and documented Underwriting based on fully amortizing loan payments Meets debt to income ratios set by regulation No greater than 30 year term (with limited exceptions) Maximum points and fees of 3% Attributes of a Qualified Mortgage ( 1412) For purposes of the maximum fees of 3%, points and fees is defined as in HOEPA with some wiggle room for certain fees paid by the borrower to buy down the interest rate (discount points) However, there is a new definition of HOEPA points and fees which is expanded and includes all mortgage originator compensation (e.g., YSP) and the maximum amount of prepayment fees, if any ( 1431) Qualified Mortgage ( 1412) Practice Point: This definition might be similar to what the regulators come up with for qualified residential mortgage in connection with the exemption for risk retention by securitizers ( 941)

9 Subtitle B: Minimum Standards for Mortgages Law prohibits: Certain prepayment penalties Financing single premium credit insurance Mandatory arbitration Certain negative amortization provisions ( 1414) Subtitle B: Minimum Standards for Mortgages: New Disclosures ( 1414) Imposes disclosure obligations if loan is subject to anti-deficiency protection (Comment: this protection is not provided by current Maryland law) Must disclose prior to settlement, and at the time a person becomes owner of the loan, creditor s policy regarding acceptance of partial payments and if partial payments are not accepted, what will happen when partial payments are made Subtitle B: Minimum Standards for Mortgages: New Disclosures ( 1418) New disclosures when interest rates will adjust for loans that have introductory fixed rate periods, after which the rate becomes variable (e.g., 5-1 ARM)

10 Subtitle B: Minimum Standards for Mortgages: New Disclosures ( 1419) New disclosures added to TILA closed-end disclosure statement regarding: Variable rate loan payment amount Detailed settlement charges disclosures Mortgage originator compensation Total amount of interest to be paid as a percentage of principal There also is a new disclosure added to TILA closed-end disclosure statement requiring escrow amounts to be included in the payment disclosure ( 1464) Subtitle B: Minimum Standards for Mortgages: New Disclosures ( 1420) Adds new post-closing disclosures (either in the periodic payment notice or coupon) including: Current principal balance, interest rate, and date rate may next change Amount of any prepayment fee to be charged and description of any late fee Contact information where consumer can get mortgage information Counseling agency information Subtitle C: High-Cost Mortgages ( ) Changes (downward) all HOEPA rate triggers, and bases them on the average prime offer rate Changes (downward) the HOEPA points and fees trigger and greatly expands what is included in the points and fees computation Establishes a new HOEPA trigger based on prepayment fees Makes HOEPA applicable to open-end credit Prohibits balloon payments on HOEPA loans Imposes numerous additional requirements in connection with HOEPA loans Establishes a correction procedure for unintentional failure to comply with HOEPA requirements violations

11 Subtitle E: Mortgage Servicing: Escrow Accounts ( 1461) Adds new TILA section requiring escrow accounts on certain closed-end first lien loans secured by consumer s principal dwelling, namely: Loans that do not exceed the Freddie Mac base conforming loan limits and have an APR that exceeds the average prime offer rate by 1.5%; and Loans that exceed the Freddie Mac base conforming loan limits and have an APR that exceeds the average prime offer rate by 2.5%. Subtitle E: Mortgage Servicing: Escrow Accounts There will be a new disclosure at least 3 business days before consummation explaining the escrow account requirements ( 1461) There will be an additional disclosure required if an escrow is not established in connection with a consumer credit mortgage transaction or if, after an escrow account is established, the consumer chooses to close the account ( 1462) Subtitle E: Mortgage Servicing: Escrow Accounts Adds a new TILA disclosure requirement for closed-end first lien loans secured by consumer s principal dwelling that has or will have an escrow account resulting in the payment disclosure taking into account the monthly payments for escrow ( 1464)

12 Subtitle E: Mortgage Servicing: RESPA Servicer Activities ( 1463) Prohibiting fees to respond to a qualified written requests (QWR), and requiring acknowledgment of receipt of a QWR within 5 days and substantive response within 30 days Adds significant obligations before obtaining forceplaced insurance Subtitle E: Mortgage Servicing: RESPA Servicer Activities ( 1463) Requires taking timely action to respond to borrower request to correct errors relating to standard duties (e.g., payment allocation, payoffs, foreclosure avoidance issues, etc.) Requires response within 10 business days to a borrower request to provide the identity, address, and other relevant contact information about the owner or assignee of a loan Practice Point: This section of RESPA authorizes private actions for damages with possible penalties (increased to $2,000 per violation) and attorney fees (12 USC 2605) Subtitle E: Mortgage Servicing: Payments ( 1464) Adds a new provision to TILA requiring prompt crediting of home loan payments Adds a new provision to TILA requiring the servicer (or creditor) to send an accurate payoff balance not later than 7 business days after receipt of a written request for that balance from or on behalf of borrower

13 Subtitle F: Appraisal Activities Mandatory appraisal requirements apply to higherpriced mortgage loans that are not qualified mortgages, including an application disclosure and the right to free copy of appraisal ( 1471) New appraisal independence requirements ( 1472) New FRB appraisal regulations, effective December 27, 2010, implement this rule. They ended the Home Valuation Code of Conduct. Subtitle F: Appraisal Activities ( 1473) New requirement that appraisal management companies register Automated valuation models must adhere to certain quality control standards Broker price opinions may not be primary basis to determine property value for purchase money home loans Subtitle F: Appraisal Activities ( 1474) ECOA revised to require that a copy of an appraisal prepared in connection with a first lien loan to be secured by a dwelling must be provided to the loan applicant promptly upon completion but not later than 3 days prior to closing Applies even if loan is denied, incomplete, or withdrawn Must be provided at no additional charge A new notice at the time of application must tell applicant of this right to a copy of the appraisal

14 Questions? THANK YOU! Marjorie A. Corwin, Esquire Gordon, Feinblatt, Rothman, Hoffberger & Hollander, LLC 233 East Redwood Street Baltimore, Maryland Copyright, 2011