ICBA Summary of Ability-to-Repay/ Qualified Mortgage Final Rules

Transcription

1 ICBA Summary f Ability-t-Repay/ Qualified Mrtgage Final Rules September 2013 Cntact: Elizabeth Eurgubian Vice President and Regulatry Cunsel [email protected]

2 ICBA Summary f Ability-t-Repay/Qualified Mrtgage Final Rules I. BACKGROUND The Cnsumer Financial Prtectin Bureau (CFPB) issued final rules amending the Ability-t-Repay and Qualified Mrtgage Rules under Regulatin Z (Truth in Lending Act) n June 12, 2013 and July 10, Under the prvisins, mrtgage lenders must cnsider a cnsumer s ability t repay a mrtgage lan befre extending credit. The qualified mrtgage (QM) prvisins prvide certain legal prtectins fr mrtgage lenders. Overall, the rules create three categries f lans with different prtectins: (1) lans nt deemed qualified mrtgages that must therefre satisfy the ability-t-repay requirements; (2) lans deemed qualified mrtgages that receive safe harbr legal prtectin because they are nt higher interest mrtgage lans; and (3) lans deemed qualified mrtgages that receive a rebuttable presumptin f legal cmpliance (a lesser legal prtectin) because they are higher interest lans. Small creditrs under the rules receive safe harbr legal prtectin fr QM lans that have higher interest rates, as lng as the rates are less than 3.5 percentage pints abve the average prime ffer rate (APOR). A small creditr is defined as a creditr with under $2 billin in assets that riginates fewer than 500 first-lien mrtgage lans in a year. Small creditrs als may prvide balln payment mrtgage lans until January 10, 2016, and receive QM legal prtectins if the lans are held in prtfli. After this date, small creditrs must perate predminantly in cunties deemed t be rural r underserved t btain QM legal prtectins fr balln mrtgage lans held in prtfli. In additin, the CFPB issued subsequent rules in September 2013 allwing all small creditrs, regardless f whether they perate predminantly in rural r underserved areas, t cntinue riginating balln high-cst mrtgages if the lans meet the ther requirements fr QM. The ability-t-repay/qm rules g int effect n January 10, CFPB Mrtgage Rules Implementatin II. SCOPE OF THE RULES The rules apply t all cnsumer clsed-end mrtgage lans including hme-purchase lans, refinances, and hme equity lans. This includes first r subrdinate liens. The rules DO NOT cver: Hme equity lines f credit (HELOCs) r ther pen-end lans; Mrtgages secured by an interest in a timeshare plan; Reverse mrtgage lans; September 2013 ICBA Summary f Ability-t-Repay/Qualified Mrtgage Final Rules l 1

3 Temprary r bridge lans with a term f 12 mnths r less, such as a lan t finance the purchase f a new dwelling where the cnsumer plans t sell a current dwelling within 12 mnths r a lan t finance the cnstructin f a dwelling; A cnstructin phase f 12 mnths r less f a cnstructin-t-permanent lan; Business-purpses lans even if they are secured by a dwelling; Lan mdificatins, except if the mdificatin is a refinancing under Regulatin Z; Extensins f credit made by a Cmmunity Develpment Financial Institutin. Nte: The rules prvisins n prepayment penalties als apply t reverse mrtgages, temprary lans, and cnstructin lans, whereas the rest f the rules d nt. Fr lans within the rules scpe, a creditr must make a reasnable and gd faith determinatin at r befre cnsummatin that the cnsumer will have a reasnable ability t repay the lan accrding t its terms. Cmpliance is satisfied by meeting any f the fllwing requirements: Fllwing the ability-t-repay requirements; Making a qualified mrtgage (QM); Refinancing a nn-standard mrtgage int a standard mrtgage pursuant t the rules; r Fr small creditrs that prvide mrtgage lans primarily in cunties deemed t be rural r underserved pursuant t the rules, making a balln payment mrtgage lan held in prtfli that therwise satisfies the QM requirements. Small creditrs that d nt perate predminantly in rural r underserved areas can prvide balln mrtgage lans held in prtfli and satisfy these requirements until January 10, III. ABILITY TO REPAY The rules require that lenders cnsider a brrwer s ability t repay a cnsumer mrtgage lan befre prviding the lan. The rules describe certain minimum requirements fr creditrs making ability-t-repay determinatins but d nt dictate fllwing particular underwriting mdels. At a minimum, creditrs generally must cnsider eight underwriting factrs. Current r reasnably expected incme r assets (ther than the value f the cllateral). The creditr may cnsider assets alne. Cnsumer s current emplyment status if the creditr relies n incme frm their emplyment. The mnthly payment n the cvered transactin. Payments n adjustable rate mrtgages (ARMs) must reflect use f the fully indexed rate r any intrductry rate, whichever is greater. The mnthly payment n any simultaneus lan that the creditr knws r has reasn t knw will be made. This includes any lan cvered by these rules, r any HELOC that will be secured by the same prperty as the lan at issue and that is made at, befre, r after cnsummatin f the lan. The mnthly payment fr mrtgage-related bligatins such as prperty taxes, insurance, cndminium assessments, etc. September 2013 ICBA Summary f Ability-t-Repay/Qualified Mrtgage Final Rules l 2

4 Current debt bligatins, alimny, and child supprt. The mnthly debt-t-incme (DTI) rati r residual incme. Creditrs must make a reasnable and gd faith determinatin f cnsumer s ability t repay. Credit histry. Creditrs are nt required t btain r cnsider a cnslidated credit scre. Creditrs may lk t nntraditinal credit references, such as rental payment histry r utility payments. Creditrs must generally use reasnably reliable third-party recrds t verify the infrmatin they use t evaluate the factrs. Als, mnthly payments must generally be calculated by assuming that the lan is repaid in substantially equal mnthly payments during its term. Fr ARM lans, the mnthly payment must be calculated using the fully-indexed rate r an intrductry rate, whichever is higher. IV. QUALIFIED MORTGAGES A. Safe Harbr vs. Presumptin f Cmpliance Fr lans that meet the QM definitin, creditrs may receive either a safe harbr r presumptin f cmpliance frm the ability-t-repay requirements. Mrtgage lans that are cnsidered qualified mrtgages d nt have t satisfy all f the ability-t-repay requirements. Certain qualified mrtgages receive a safe harbr frm cmpliance. A QM lan receives a safe harbr if it has an annual percentage rate (APR) less than 1.5 percentage pints abve the average prime ffer rate (APOR). The safe harbr is t create a line f defense fr the creditr, fr example, the creditr may defend a claim under the rules by shwing it made a QM lan. In this case, whether the creditr determined the cnsumer s ability t repay the lan wuld be irrelevant. Other QM lans will nly receive a presumptin f cmpliance, which is a lesser legal prtectin fr the creditr. A QM lan receives a presumptin f cmpliance with the rules if it has an APR that is 1.5 percentage pints r mre abve the APOR. With this standard, cnsumers culd rebut the presumptin f cmpliance fr a QM lan if they shwed that despite having made a QM, the creditr did nt make a reasnable and gd faith determinatin f their ability t repay the lan. Nte: Fr cmmunity banks that satisfy the small creditr exceptin, QM first-lien mrtgages receive safe harbr prtectin if they are less than 3.5 percentage pints abve the APOR. In additin t the pricing limitatins abve, QM lans must have: Certain prduct features; Satisfy ne f tw underwriting tests; and Satisfy the pints and fees limitatins. September 2013 ICBA Summary f Ability-t-Repay/Qualified Mrtgage Final Rules l 3

5 B. Prduct Features QM lans must meet certain prduct-specific criteria. Lans that have the fllwing characteristics are nt cnsidered QM lans: Negative amrtizatin; Interest-nly payments; Balln payments (with sme exceptins fr small rural lenders); Terms exceeding 30 years; r N-dc lans. C. Underwriting Tests In additin, QM lan mnthly payments must be calculated based n the highest payment including any amunts escrwed fr taxes and insurance that will apply in the first five years f the lan. The cnsumer must als have either a ttal (r back-end) debt-t-incme rati f less than r equal t 43 percent OR satisfy a gvernment spnsred enterprise (GSE)/federal agency test, in which the lan passes as a QM if it is eligible (nt actually purchased r guaranteed) fr: Purchase r guarantee by Fannie Mae r Freddie Mac; Insurance by the Department f Husing and Urban Develpment (HUD); Guarantee by the Department f Veterans Affairs (VA); Guarantee by the Department f Agriculture pursuant t its Single Family Husing Guaranteed Lan Prgram; r Insurance by the Rural Husing Service. Nte: This prvisin will phase ut ver time as the federal agencies issue their wn QM rules and if Fannie Mae and Freddie Mac cnservatrship ends, r after January D. Pints and Fees Limitatins Pints and fees payable in cnnectin with the lan als cannt exceed specified amunts r percentages f the ttal lan amunt. Fr lans greater than r equal t $100,000, the cap n pints and fees is 3 percent f the ttal lan amunt. Fr lan amunts less than $100,000, the caps are: $3,000 fr lans $60,000 - $99,999; 5 percent f the ttal lan amunt fr lans $20,000 - $59,999; $1,000 fr lans $12,500 - $19,999; and 8 percent f the ttal lan amunt fr lans $12,499 and belw. Pints and fees include all nn-interest cmpnents f the finance charge except: Gvernment mrtgage insurance r guarantee fees; Private mrtgage insurance (PMI) premiums payable after cnsummatin; Certain up-frnt PMI fees where the premium is refundable n a pr rata basis; r September 2013 ICBA Summary f Ability-t-Repay/Qualified Mrtgage Final Rules l 4

6 Any bna fide third-party charge nt retained by the creditr, lan riginatr, r an affiliate f either. Pints and fees als include any lan level price adjustments charged by Fannie Mae r Freddie Mac. Certain charges, even if they are retained by the creditr, lan riginatr, r affiliate f either, are als cnsidered pints and fees : Real estate charges that are nt reasnable; Premiums fr credit insurance and debt cancellatin r suspensin cverage that are payable at r befre cnsummatin; and PMI premiums payable at r befre cnsummatin that either exceed the FHA premium r are nt required t be refunded when the lan is paid in full. All cmpensatin paid directly r indirectly by a cnsumer r creditr t a lan riginatr that can be attributed t the transactin at the time the interest rate is set is included in the calculatin f pints and fees. Cmpensatin is the dllar value f mnetary and nn-mnetary rewards such as a bnus, cmmissin, r award f merchandise, service trips, r similar prizes. Lan riginatr is a persn wh, either fr r in expectatin f cmpensatin, arranges, negtiates, r therwise btains a lan fr anther persn. Pints and fees als include the fllwing where they are payable at r befre cnsummatin: Credit life, credit disability, credit unemplyment, r credit prperty insurance; Any ther life, accident, health, r lss-f-incme insurance fr which the creditr is a beneficiary; and Any payments fr any debt cancellatin r suspensin agreement r cntract. Certain prepayment penalties are als cunted tward the 3 percent cap. The rules EXCLUDE frm pints and fees: Lan riginatr cmpensatin paid by a cnsumer t a mrtgage brker when that payment has already been cunted tward the pints and fees threshlds as part f the finance charge; Cmpensatin paid by a mrtgage brker t an emplyee f the mrtgage brker because that cmpensatin is already included in pints and fees as lan riginatr cmpensatin paid by the cnsumer r the creditr t the mrtgage brker; and Cmpensatin paid by a creditr t its lan fficers. September 2013 ICBA Summary f Ability-t-Repay/Qualified Mrtgage Final Rules l 5

7 V. SPECIAL EXCEPTIONS FOR SMALL CREDITOR PORTFOLIO LOANS A lan is autmatically a QM lan if: It is riginated and held in prtfli fr at least 3 years; It is riginated by a small creditr, which is a creditr with under $2 billin in assets and under 500 first lien mrtgage lans riginated in a calendar year; It meets the general restrictins n qualified mrtgages with regard t lan features and pints and fees; AND Creditrs evaluate cnsumers' debt-t-incme rati r residual incme. Fr creditrs that satisfy this exceptin: QM first-lien lans receive safe harbr prtectin if they are less than 3.5 percentage pints abve APOR. The lans ARE NOT subject t the 43 percent debt-t-incme rati as they wuld be under the general qualified mrtgage definitin. VI. SPECIAL EXCEPTION FOR SMALL CREDITOR BALLOON MORTGAGE LOANS Certain mrtgage lans with balln payments will be cnsidered QM lans if ALL f the fllwing criteria is satisfied. They are riginated and held in prtfli fr at least 3 years. They are riginated by a creditr with under $2 billin in assets. They are riginated by a creditr wh (with their affiliates) riginates n mre than 500 first-lien cvered mrtgages per year. The lender prviding the lan prvides ver 50 percent f their first-lien mrtgage lans in areas that are cnsidered rural r underserved. Rural is defined as a cunty nt in a metrplitan statistical area and nt in a micrplitan statistical area adjacent t a metrplitan statistical area. Underserved is defined as a cunty with n mre than tw creditrs that extend cvered mrtgage transactins secured by a first lien five r mre times in that cunty during a calendar year. Nte: The CFPB will designate a list f rural and underserved cunties each year. Balln lans are nly eligible fr the exceptin if they have a term f at least 5 years, a fixed interest rate, and meet certain basic underwriting standards. Debt-t-incme ratis must be cnsidered but are nt subject t the 43 percent requirement. The CFPB is prviding a tw-year transitin perid (ending January 10, 2016) during which small creditrs that DO NOT perate predminantly in rural r underserved areas can ffer September 2013 ICBA Summary f Ability-t-Repay/Qualified Mrtgage Final Rules l 6

8 balln-payment qualified mrtgages, including certain high-cst balln mrtages, if they hld the lans in prtfli. VII. REFINANCE OF A NON-STANDARD MORTGAGE INTO A STANDARD MORTGAGE Creditrs may als refinance a nn-standard mrtgage int a standard mrtgage and nt have t satisfy the ability-t-repay requirements. A nn-standard mrtgage is: An ARM with an intrductry fixed rate fr a perid f 1 year r lnger; An interest-nly lan; r A negative amrtizatin lan. Nn-standard mrtgages d nt include balln payment lans. A standard mrtgage must have: A fixed interest rate fr at least the first 5 years; Ttal pints and fees in cmpliance with QM requirements; A lan term that des nt exceed 40 years; and The lan prceeds will nly be used t pay the utstanding balance f the nn-standard mrtgage and clsing and settlement fees fr the standard mrtgage. The creditr must als cnsider whether the cnsumer is likely t default n the nn-standard mrtgage and whether the standard mrtgage wuld prevent the cnsumer s default. Cnsideratins include: The creditr fr the standard mrtgage is the current hlder f the nn-standard mrtgage. The mnthly payment fr the standard mrtgage is lwer than fr the nn-standard mrtgage. The creditr receives the cnsumer applicatin fr the standard mrtgage n later than tw mnths after the nn standard mrtgage has recast; and the cnsumer has made n mre than ne payment 30 days late n the nn-standard mrtgage in the 12 mnths preceding the applicatin and n late payments in the preceding 6 mnths. VIII. EXEMPTIONS FOR CERTAIN CREDITORS AND LENDING PROGRAMS There is an exemptin frm the ability-t-repay requirements fr extensins f credit made pursuant t prgrams administered by a husing finance agency and fr an extensin f credit made pursuant t an Emergency Ecnmic Stabilizatin Act prgram, such as extensins f credit made pursuant t a State Hardest Hit Fund prgram. September 2013 ICBA Summary f Ability-t-Repay/Qualified Mrtgage Final Rules l 7