In the circles in which I travel, discussions related to the Consumer Financial Protection Bureau have not been favorable. One of the complaints is inexperienced auditors (and by inexperienced I mean individuals with little training−three weeks to be exact) with a complete lack of understanding of mortgage lending and the broader, secondary market.
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Then there are the mindboggling and sometimes laughable “questions” or “concerns” raised by said inexperienced auditors. Then there’s the heated debates regarding flat-fee compensation and the CFPB’s perceived desire to push the mortgage broker out of the business. I certainly can’t dismiss the conspiracy theorists who argue that this was all contrived in an effort to move the industry to the large money center banks. While the verdict is still out, and there’s a long way to go with the more recent release of final rules, I believe that the CFPB got it right; well, at least 95% right!
Let’s look at the 95%:
Loan Originator Compensation and the Points and Fees Calculation
- The Dodd-Frank Act included provisions that limited loan originator compensation by including LO compensation in the 3% points and fees cap on Qualified Mortgages. One could argue that this would have the effect of counting fees paid to mortgage brokers against the 3% twice. Under the final rule released by the CFBP, the compensation paid to a LO employee by a mortgage broker or mortgage lender is not included in the 3% threshold. Bravo CFPB. This should squelch the chatter from my broker and conspiracy theorist friends. Keep in mind, compensation paid by a mortgage lender to a mortgage broker (wholesale transaction) still must be included in points and fees.
Ability-to-Repay and Qualified Mortgage Standards
- This is one our community bank and credit union friends have been screaming about because a significant portion of their mortgage lending would not meet the QM standards thus eliminating their safe harbor protection. Just about every community bank and credit union has a mission statement that includes something to the effect of, “To serve the lending needs of our community” or “To serve the lending needs of our members.” The initial ATR and QM Standards released effectively squashed that notion by restricting points and fees, restricting balloon loans, requiring hoards of customer information and capping the debt-to-income ratio at 43%. With the amended rule release, the CFPB has done a good job in relieving some of the pressure. Under the final rule, banks and credit unions with $2 billion in assets or less that fund 500 or fewer first lien mortgages per year will benefit from exemptions to the ATR and QM Standards issued in January. Specifically, small banks and credit unions will be permitted to continue to make balloon mortgages held on portfolio during a two-year transition period, they will not be subject to the 43% DTI restriction on mortgages held in portfolio for at least three years and the can issue mortgages up to 3.5% above the average prime offer rate; an increase of 2%. Raising the threshold defining qualified mortgages thus keeping their safe harbor litigation shield in place.
- I know my eyes crossed when the realization set in that the ATR and QM Standards eliminated safe harbor protection for the FHFA and GSE programs being pushed to aid distressed home homeowners, improve performance of existing mortgage loans owned by the agencies and thus move the housing recovery forward. What about HARP, Refi Plus, Relief Refinance? The good news is that the CFPB has added a provision that says a loan is a qualified mortgage if it meets the statutory limitations on product features, points and fees and is eligible for purchase, guarantee or insurance by Fannie, Freddie, FHA, VA, USDA or RHS. Safe harbor shield preserved. Again, kudos to the CFPB.
- The ATR and QM Standards also placed at risk the numerous nonprofits and community based organizations and small creditors providing vital outreach and home ownership support to underserved communities and low to moderate income borrowers. Will the various nonprofit housing groups and coalitions become a thing of the past? What about community seconds and DPAPs. The CFPB is on a role now, the final amendment exempts certain nonprofits and community based lenders from ATR rules. Exempt are lenders that fund 200 or fewer loans per year and only to low to moderate income borrowers. Also exempt are housing finance agencies and some programs designed for foreclosure prevention.
- I will address this further in the 5% the CFPB got wrong.
Prohibitions on Financing Credit Insurance Premium
- It will likely be three-to-four months before any potential amendments are released; I mention this simply because it demonstrates the CFPB’s willingness and desire to fully understand an issue before going live. Originally scheduled to go in effect June 1, the rule prohibits creditors from financing premiums or fees for credit insurance products in connection with any residential mortgage loan or any open-ended credit plan secured by a principal dwelling. This applies to credit life, disability, unemployment, credit property insurance and similar products. The provision included vague language related to not prohibiting credit insurance or credit unemployment when premiums and fees are paid in full on a monthly basis, reasonable, the creditor is not compensated, there’s a separate insurance contract and premiums/fees are not paid to an affiliate. This led to several interpretive questions from industry stakeholders. The CFPB did the right thing and delayed implementation until Jan. 10, 2014, consistent with implementation of other provisions. Additionally, the CFPB will be publishing a proposal to seek further comments from consumers and industry stakeholders.
Qualified Mortgage Job Verification Standard
- This was another one that makes to pitch yourself and wonder if you’re dreaming. The ATR and QM Standards included a provision that required lender to determine a borrower’s “probability of continued employment.” The infamous “Appendix Q” outlined the many hoops lenders needed to jump through to, maybe, adequately verify “probability of continued employment.” But do you really know? What is the borrower is fired two months later; do I kiss my safe harbor protection good-bye? Once again the CFPB brought some common sense and clarity on this topic. Lenders must verify the borrower is employed and that the employer has no immediate plans to eliminate the position. OK, that’s doable.
Now the 5% they got wrong:
ATR and QM Standards
- In my opinion, the CFPB didn’t go far enough in their exemption of small banks and credit unions. The 500 or fewer first lien loans per year are not enough loans. Maybe if they specified 500 or fewer portfolio first mortgage loans. Due to traditional means of generating fee income being decimated by the financial crisis, numerous small banks and credit unions turned to the traditional secondary market mortgage space as means to generate reliable fee income. This has been a successful strategy for most but the need to provide non-traditional mortgage products to support their small business customers’ remains. By limiting the exemption to those institutions funding just 500 or fewer loans per year the CFPB is substantially limiting small banks and credit unions ability to serve their small business customers and the communities they serve.
- Interest-only loans should have been included in the ATR and QM Standards exemption for small banks and credit unions. While interest only financing, especially in the Alt-A and subprime space, certainly contributed to financial crisis, interest only financing is still a viable product and an effective cash-flow product for self-employed borrowers. When qualified appropriately utilizing fully amortized payments, small banks and credit unions can provide sound interest only financing and better serve the overall borrowing and cash-flow needs of their small business customers. They should be able do so and still retain their safe harbor protections.
All in all, the recent release of final rules, clarifications and extensions are positive signs. They demonstrate the CFPB is looking closely at the provisions included in Dodd Frank, considering their impact on the market, listening to industry stakeholders and consumers and making informed decisions related to amendment and implementation.
