Ability to Repay/Qualified Mortgage Rule Note: This document was - - PowerPoint PPT Presentation

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Ability to Repay/Qualified Mortgage Rule

Disclaimer

• The Bureau issued the Title XIV mortgage rules in January of 2013 to

implement provisions under the Dodd Frank Wall Street Reform and Consumer Protection Act.

• The rules have been further clarified and updated by final rules issued

in May, July and September, 2013.

• Most of the rules will take effect in January 2014.
• This presentation is current as of November 7, 2013. This

presentation does not represent legal interpretation, guidance or advice of the Bureau. While efforts have been made to ensure accuracy, this presentation is not a substitute for the rule. Only the rule and its Official Interpretations can provide complete and definitive information regarding requirements. This document does not bind the Bureau and does not create any rights, benefits, or defenses, substantive or procedural, that are enforceable by any party in any manner.

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Background

• Bureau finalized amendments to Regulations B, X, and Z that

relate to mortgage origination; most amendments take effect in January 2014.

 Ability-to-Repay and Qualified Mortgages (1026.32 and .43)  High-cost Mortgages (HOEPA) (1026.32 and .34)  New Counseling-Related Requirements (1024.20 and 1026.36)  Escrows for Higher-priced Mortgage Loans (1026.35)  New Appraisal Requirements (1002.14 and 1026.35)  Loan Originators (1026.36)

• A summary of each rule and the rules themselves are available
• n the Bureau’s website at:

w w w .consum erfinance.gov/ regulations

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ABI LI TY-TO-REPAY/ QUALI FI ED MORTGAGES FI NAL RULE

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General ability-to-repay requirement

• Applies broadly to closed-end transactions secured by a

dwelling

• Requires creditor to make a reasonable, good faith

determination that consumer can repay the loan

Qualified mortgages

• Restricts certain loan features, caps points and fees, and

imposes certain underwriting requirements

• Safe harbor for loans below the higher-priced mortgage

threshold; rebuttable presumption for higher-priced loans

Ability-to-Repay/Qualified Mortgages

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Ability-to-Repay Requirement

Creditor must make a reasonable and good faith determination that the consumer will have a reasonable ability to repay the loan according to its terms Consider and verify certain consumer-specific information Requirements for calculating mortgage payment No specific requirements for loan features or points and fees

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ATR – Eight Underwriting Factors

The 8 ATR factors cover norm al underw riting considerations:

• I ncom e, assets and em ploym ent status
• 1. Current or reasonably expected income or assets (other than the value of the property that

secures the loan) that the consumer will rely on to repay the loan

• 2. Current employment status (if you rely on employment income when assessing the consumer’s

ability to repay)

• Debts – m onthly paym ents on the new loan, and sim ultaneous loans, property

costs, alim ony, child-support obligations, and other debts

• 3. Monthly mortgage payment for this loan. You calculate this using the introductory or fully-

indexed rate, whichever is higher, and monthly, fully-amortizing payments that are substantially equal 4.Monthly payment on any simultaneous loans secured by the same property

• 5. Monthly payments for property taxes and insurance that you require the consumer to buy, and

certain other costs related to the property such as homeowners association fees or ground rent

• 6. Debts, alimony, and child-support obligations
• Risk - m onthly debt -to-incom e ratio or residual incom e, and credit history
• 7. Monthly debt-to-income ratio or residual income, that you calculated using the total of all of the

mortgage and non-mortgage obligations listed above, as a ratio of gross monthly income 8.Credit history

They do not include loan to value ratios

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Verifying information using 3rd party records

An organization must verify the information it relies on using reasonably reliable third-party records.

• For example, if a consumer tells the lender about his or her income,

the lender must verify a consumer’s income using documents such as W-2s or payroll statements.

There are a variety of sources and documents that may help to verify the information relied on for determining ATR and for verifying each of the eight factors.

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ATR factor (1) Income or assets

1 . Current or reasonably expected income or assets (other than the value of the property that secures the loan) that the consumer will rely on to repay the loan.

• Only required to consider income or assets necessary to

repay the loan.

• Income or assets include:
• Wages, self-employment income, bonuses, tips, commissions,

dividends, rental income, benefits payments, bank accounts, investments or trust funds.

• Verification can be by
• W-2 or payroll statement, tax returns, bank statements, receipts

from check cashing or funds-transfer services, benefits program documentation, or employer records.

• The consumer can provide tax return transcripts or payroll

statements.

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ATR factor (2) Employment status

2 . Current employment status (if the lender relies on employment income when assessing the consumer’s ability to repay)

• This can be full-time, part-time, seasonal, irregular, military, or

self-employment.

• Verification can be by
• Documenting a consumer’s employment status by calling the

employer and receiving an oral verification, as long as the lender maintains a record of the information received on the call.

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ATR factor (3) Mortgage Payment

3 . Monthly mortgage payment for this loan. Calculate this using

• the introductory or fully-indexed rate, whichever is higher, and
• monthly, fully-amortizing payments
• that are substantially equal

Other special rules:

• Balloon loans
• If they are higher-priced, the monthly payment is based on the maximum

payment in the payment schedule, including the balloon payment.

• If they are not higher priced, the monthly payment is based on the

maximum payment in the first 5 years.

• Interest-only and negative amortization loans also have special rules

for calculating monthly payments.

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ATR factor (4) Simultaneous loans

4 . Monthly payment on any simultaneous loans secured by the same property If a lender knows (or has reason to know) that there will be a simultaneous transaction around the time the loan closes, the lender must consider the monthly payment on that transaction:

• For HELOCs – the ATR assessment should include a monthly

payment on the simultaneous loan that is calculated based on the amount of credit to be drawn down at or before consummation of the main loan.

• For non-HELOCs - the ATR assessment should include a monthly

payment on the simultaneous loan calculated as appropriate for adjustable-rate mortgages, interest-only loans, or other categories discussed above, depending on what type of simultaneous loan is made.

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ATR factor (5) Monthly property costs

5 . Monthly payments for property taxes and insurance that the creditor requires the consumer to buy, and certain other costs related to the property such as homeowners association fees or ground rent

• Records for mortgage-related obligations can include:
• Property taxes: government entities or the amount listed on the

title report

• Cooperative, condominium, or homeowners associations: a billing

statement from the association

• Levies and assessments: statement from the assessing entity (for

example, a water district bill)

• Ground rent: the current ground rent agreement
• Lease payments: the existing lease agreement
• Other records: can be reasonably reliable if they come from a third

party

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ATR factor (6) Debts

6 . Debts, alimony, and child-support obligations Typical recurrent monthly debts include:

• Student loans
• Auto loans
• Revolving debt
• Existing mortgages not being paid off at or before closing

Verification can be by

• Using a credit report to verify a consumer’s debt obligations or
• on other items reported on the consumer’s application;
• The lender does not need to obtain individual statements for every

debt.

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ATR factor (7) DTI

7 . Monthly debt-to-income ratio or residual income, calculated using the total of all of the mortgage and non-mortgage

• bligations listed above, as a ratio of gross monthly income.

To calculate the DTI ratio or residual income the lender uses the verified information about the consumers’ income, along with the consumers’ debt information. The general ATR standard requires creditors to consider DTI or residual income, but does not contain specific DTI or residual income thresholds.

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ATR factor (8) Credit history

8 .Credit history The rule does not specify how credit history should be weighed against other factors or how the various aspects of a consumer’s credit history should be weighted to reach a reasonable, good faith determination of ability to repay. Verification: If a consumer does not have a credit history from a credit bureau, the lender can verify credit history using documents that show nontraditional credit references, such as rental payment history or utility payments.

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Record Retention

The rule requires that lenders retain evidence that they complied with the ATR/QM rule, including the prepayment penalty limitations, for three years after closing.

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Looking at ATR determinations

To determine whether the lender generally made a reasonable and good faith ATR determination, examiners can look at:

• Underwriting standards: Does the lender use standards that have

historically produced comparatively low rates of delinquency and default during adverse economic conditions?

• Payment history: Has the consumer paid on time for a significant

time after origination or reset of an adjustable-rate mortgage?

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Looking for unreasonable ATR determinations

Factors showing the ATR determination w as not reasonable and in good faith:

• Underwriting standards: Evidence was ignored that the underwriting

standards are not effective at determining consumers’ repayment ability.

• Inconsistency: Underwriting standards are inconsistent or different

standards were used for similar loans without having a reasonable justification.

• Payment history: The consumer defaults early in the loan, or shortly

after the loan resets, without having experienced a significant financial challenge or life-altering event.

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Consequences for failing to determine ATR

A lender that fails to consider the borrower’s ability to repay a loan faces the risk that the

• borrower, or
• a class action on behalf of similarly situated borrowers, or
• an enforcement action by a state or Federal regulator may recover
• 3 years of finance charges and
• attorneys fees
• Statutory damages not less than $400 or greater than $4,000 are

also permitted

• 3 year statute of limitations for affirmative claims.

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Qualified Mortgage: Presumption of Compliance

• Loan satisfies QM criteria and
• APR is less than:
• First liens: APOR + 1.5%
• Second Liens: APOR + 3.5% OR
• Loan satisfies small creditor QM or

balloon QM and

• APR is less than APOR + 3.5%

Safe Harbor

• Loan satisfies QM criteria and
• APR equals or exceeds:
• First liens: APOR + 1.5%
• Second Liens: APOR + 3.5%
• Rebuttal limited to insufficient

residual income

Rebuttable Presumption

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Qualified Mortgage: Features

• No negative amortization or interest-only periods
• No balloon payments (except for certain portfolio

loans by small creditors)

• Loan term may not exceed 30 years

Limits on loan features

• Generally 3% of total loan amount
• Higher caps for loans <$100,000
• Up to two additional bona fide discount points

allowed depending on rate

Points and fees cap

• Use maximum rate in first five years after first

payment, full amortization

• Consider and verify income or assets
• Consider and verify current debt obligations,

alimony, and child support

• Monthly debt-to-income ratio cannot exceed

4 3 %

Relevant underwriting requirements

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Qualified Mortgage: Temp. Alternative QM “Government Patch”

• Same as permanent definition

Limits on loan features

• Same as permanent definition

Points and fees cap

• Must be eligible for purchase, guarantee, or

insurance by:

• Fannie Mae or Freddie Mac (sunsets when

conservatorship ends or 7 years)

• HUD, VA, Department of Agriculture or Rural

Housing Service (sunsets when agency rules take effect or 7 years)

• Factors wholly unrelated to ability-to-repay are

excluded from eligibility criteria

Relevant underwriting requirements (alternative)

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Qualified Mortgage: Small Creditor Portfolio QM

• Same as permanent definition

Limits on loan features

• Same as permanent definition

Points and fees cap

• Same as permanent definition, but no 4 3 % DTI

requirement

Relevant Underwriting Requirements

• Creditors must have <$2 billion in assets and

(with affiliates) originate ≤500 covered mortgages per year; no restriction on location

• Must generally be held in portfolio for 3 years
• Threshold for safe harbor increased to 3 .5 %

above APOR – rather than 1.5%

Special Requirements

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Qualified Mortgage: Balloon QM

• Same as permanent definition, although balloons

are not restricted

Limits on loan features

• Same as permanent definition

Points and fees cap

• Same as permanent definition, but no 43% DTI

requirement

Relevant Underwriting Requirements

• Creditors must have <$2 billion in assets and (with

affiliates) originate ≤500 covered mortgages per year

• > 50% of first-lien mortgages made in rural or

underserved counties in the preceding calendar year

• Must generally be held in portfolio for 3 years
• Threshold for safe harbor increased to 3.5% above APOR

Special Requirements

• Effective through 2015 while Bureau reconsiders “rural”

and “underserved” definitions

• Allows small creditors to make balloon payment QMs

regardless of “rural” or “underserved” status

Two-year transition period

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Consequences of a failed QM

What happens if a loan does not meet the standards for a QM? A: There is no requirement to make a QM; a QM demonstrates compliance with the ATR requirement.

• Without a QM safe harbor or rebuttable presumption, the lender will

have to defend the loan as meeting the ability to repay requirements.

• For examiners who find that the loan fails as a QM, they must look

at whether lender considered the borrower’s ability to repay.

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Points and Fees Worksheet

• High Cost Mortgage ( Section 1 0 2 6 .3 2 ) W orksheet.
• The FFIEC Exam procedures for TILA have had a HCM (Section

1026.32) Worksheet, for examiners to determine whether a loan meets the points and fees limits for high cost loans. That worksheet has been revised to reflect the current rules.

• It is also useful to examiners for determining whether a QM is

within the points and fees limits.

• QM Points and fees ( Test 2 only) is the sam e for HCMs and

QMs.

• The worksheet is useful for examiners because the points and

fees test is the same for closed-end high cost mortgages and for QMs.

• After calculating points and fees, the examiner checks to see if

they exceed the threshold that applies.

• For QMs the points and fees threshold is generally 3% of the loan

amount (higher for loans under $100,000)

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Calculating QM Points and fees with HCM Worksheet

STEP 1: Total Points and Fees.

All charges payable in connection with the transaction and known at or before consummation.

• A. Items included in the finance charge
• B. Loan originator compensation
• C. Certain non-finance charges under §1026.4(c)(7) where the

amount of the fee is unreasonable, or the creditor or affiliate receives compensation from the charge

• D. Premiums or other charges for optional or required insurance

payable at or before consummation or account opening

• E. Maximum prepayment penalty
• F. For a refinance transaction, prepayment penalty paid to terminate

prior transaction

Total Points & Fees: Add Subtotals for A-F (Closed-End)

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Calculating QM Points and fees with HCM Worksheet STEP 2: Determine the Total Loan Amount (§1026.32(b)(4))

• 1. Determine the Amount Financed (§1026.18(b))
• The full amount of principal repayable under the terms of the

note or other loan contract

• Minus: Prepaid finance charges (§1026.2(a)(23))
• Equals: Amount Financed
• 2. Deduct the points and fees from the Amount Financed to

arrive at the Total Loan Amount

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Calculating QM Points and fees with HCM Worksheet

QM points and fees calculation - for transactions of

$100,000 or more

• A. Calculate 3 percent of the “total loan amount” (from Step 2)
• B. Total Points & Fees from Step 1
• C. If B exceeds A the loan is not a QM.

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Comparison of ATR and QM requirements

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Transaction Coverage and Exemptions

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Questions? CFPB_RegInquiries@CFPB.gov More information: http://www.consumerfinance.gov/regulatory- implementation/

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