Alston & Bird Consumer Finance Blog

Mortgage Loans

Juneteenth Holiday Raises Tricky TRID Disclosure Issues

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On June 17, 2021, President Biden signed legislation making Juneteenth National Independence Day a federal national holiday. The first observance of the holiday is Friday, June 18, 2021. While the enactment of this new federal holiday is a notable and welcome national event, its first observance has immediate consequences for the timing of certain disclosures provided in connection with residential mortgage transactions.

In a Client Advisory, Steve Ornstein explores what the newly recognized Juneteenth holiday means for the residential mortgage industry.

Highlights of Washington Department of Financial Institutions’ Recent Mortgage Industry Webinar

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A&B ABstract: In a webinar earlier this month, the Washington Department of Financial Institutions provided updates on licensing, rulemaking, and recent examination findings.

On June 2, the Washington Department of Financial Institutions (“DFI”) held a webinar covering mortgage industry updates in the state.  Among the topics discussed were:

Licensing Updates

Between May 2020 and May 2021, the DFI has seen a substantial increase in licensing activities involving issuances and renewals for both mortgage loan originators and companies, including MLO temporary authority to operate.

Rulemaking Updates

On June 15, the DFI will hold an industry stakeholders meeting to consider amending the rules under the Consumer Loan Act (“CLA,” WAC 208-620) and the Mortgage Broker Practices Act (“MBPA,” WAC 620-660) to allow MLOs to work from home without licensing the residence as a branch office.  The proposed rules will implement enacted Senate Bill 5077 (2021 Wash. Sess. Laws 15), which takes effect on July 25.

Examination Updates

During the first quarter of 2021, the DFI conducted examinations for the review period of October 2020 through April 2021.  Commonly identified violations included:

For mortgage loan servicing:
  • Failure to file accurate annual assessments;
  • Failure to suppress adverse credit reporting for CARES Act forbearances, most often during the initial months of forbearance;
  • Failure to maintain records (typically involving subservicers);
  • Inaccurate adjustable rate change information (i.e., incorrect margin or index); and
  • Inaccurate consolidated annual reports.
For mortgage loan origination, under the CLA:
  • Failure to update surety bond amounts as required by WAC 208-620-320;
  • Failure to date residential mortgage loan applications (initial and revised) as required by WAC 208-620-550(18);
  • Failure to have day-to-day operations managers licensed as an MLO; and
  • Failure to have a written supervisory plan in place.
For mortgage loan origination, under the MBPA:
  • With respect to quarterly mortgage condition reports (“MCRs”), failure to timely file and/or failure to file accurate MCRs;
  • Failure to develop and implement an adequate Anti-Money Laundering program;
  • Failure to provide updated lock-in agreements when lock terms change;
  • Failure to include a link to the company’s NMLS consumer access website on all internet advertisements; and
  • Advertising violations, namely using disallowed phrases (such as “best” or “lowest” when describing rates, fees, and programs) or advertising “no closing costs” or that something is “free”.

Takeaways

The webinar suggests that the pandemic has created both a surge in license applications and renewals, as well as increases in the volume of mortgage loans, for Washington licensees.

The examination findings serve as a reminder to Washington State licensees to be mindful of their own compliance management and quality control processes, in order to ensure that they are conducting business activities in compliance with all statutes and regulations (to include the CLA and MBPA).

The CFPB is Sending Mixed Messages on COVID-19 Flexibility

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A&B ABstract: The CFPB’s inconsistent statements about the need for flexibility to address the pandemic suggest a deeper game afoot.

 CFPB warns that continued COVID flexibility for financial institutions is not prudent…

On March 31, 2021, the CFPB announced it would be rescinding seven policy statements issued last year that provided financial institutions with flexibilities regarding certain regulatory filings or compliance with consumer financial laws and regulations due to the COVID-19 pandemic. One of the rescinded statements, for example, encouraged financial institutions to “work constructively with borrowers and other customers affected by COVID-19 to meet their financial needs” and to that end, “when conducting examinations and other supervisory activities and in determining whether to take enforcement action, the Bureau will consider the circumstances that entities may face as a result of the COVID-19 pandemic and will be sensitive to good-faith efforts demonstrably designed to assist consumers.”

In explaining the rescissions, Acting CFPB Director Uejio reasoned: “Because many financial institutions have developed more robust remote capabilities and demonstrated improved operations, it is no longer prudent to maintain these flexibilities.” Accordingly, the CFPB provided notice that it “intends to exercise the full scope of the supervisory and enforcement authority provided under the Dodd-Frank Act.”

To further drive home its point, on April 1, 2021, the CFPB issued a press release and compliance bulletin warning mortgage servicers that “unprepared is unacceptable” with regard to the treatment of mortgage borrowers exiting extended forbearances this fall. The CFPB stated it is “committed to using its authorities, including its authority under Regulation X mortgage servicing requirements and under the Consumer Financial Protection Act (CFPA), to ensure that homeowners facing the ongoing economic impact of the Coronavirus Disease (COVID-19) national emergency receive the benefits of critical legal protections and that avoidable foreclosures are avoided.”

…Except when it is!

On March 2, 2021, the CFPB issued a notice of proposed rulemaking (NPRM) to delay the mandatory compliance date of the General Qualified Mortgage (QM) final rule from July 1, 2021 to October 1, 2022. The reason cited by the CFPB for the compliance delay is the “need to provide maximum flexibility [to financial institutions] to address the effects of the pandemic.” In particular, the CFPB’s proposal states:

“The Bureau is concerned that the potential impact of the COVID-19 pandemic on the mortgage market may continue for longer than anticipated at the time the Bureau issued the General QM Final Rule, and so could warrant additional flexibility in the QM market to ensure creditors are able to accommodate struggling consumers.”

Additionally, on April 7, 2021, the CFPB proposed to delay the effective date of two recent debt collection rules by sixty days, from November 30, 2021 until January 29, 2022. The reason cited by the CFPB for its proposed delay is “to give affected parties more time to comply due to the ongoing COVID-19 pandemic.” In particular, the CFPB’s proposal states:

“Since the Debt Collection Final Rules were published, the global COVID-19 pandemic has continued to cause widespread societal disruption, with effects extending into 2021. In light of that disruption, the Bureau believes that providing additional time for stakeholders to review and, if applicable, to implement the final rules may be warranted. The Bureau believes that extending the rules’ effective date by 60 days, to January 29, 2022, may provide stakeholders with sufficient time for review and implementation.”

What is really going on?

 Both of the CFPB’s delay NPRMs are curious. With respect to the QM delay proposal, a broad coalition of both housing and mortgage industry and consumer and civil rights groups files a joint comment letter stating that the recent enhancements to the General QM definition will replace loans that were designated QM under the temporary GSE Patch, and as a result, the organizations do not believe that extending the July 1 mandatory compliance date is necessary. And as our colleague Stephen Ornstein explained, recent FHFA actions will effectively sunset the GSE Patch on July 1 with or without the CFPB taking action. Further, with respect to the debt collection delay proposal, it is unlikely that 60 extra days before the rules take effect will make any appreciable difference to most market participants, considering that they were already given a full year to implement the rules, and they still won’t take effect for seven months.

The CFPB clearly has a strong desire to revisit both the underlying QM and debt collection final rules issued last year. For instance, as early as February 4, 2021, Acting Director Uejio stated that the CFPB would “[e]xplore options for preserving the status quo with respect to QM and debt collection rules.” And Diane Thompson, the Biden Administration political appointee now overseeing CFPB rulemaking efforts, publicly declared her hatred for the CFPB’s new General QM rule. If the CFPB does revisit these rules, it makes sense to do so soon; completing new rulemakings before the old ones take effect or require compliance could provide the CFPB a significant advantage in framing its mandatory Section 1022 cost-benefit analysis, depending upon the economic baseline established for analyzing the effects of its proposals. However, delaying rules simply for the purpose of changing them in light of the policy preferences of an incoming administration can be viewed skeptically by reviewing courts, since such actions tend to undermine the purposes of the Administrative Procedure Act. Perhaps that is the reason why the CFPB is disclaiming its plans to revisit the underlying rules in its delay NPRMs and, contrary to its own recent policy pronouncements, is relying instead upon the need for institutional flexibility to deal with the pandemic in the limited context of these two rules alone. Given the time constraints involved, the CFPB can be expected to show its full hand and propose changes to the QM and debt collection rules soon after it finalizes its associated delay rules.

CFPB Issues Warning to Mortgage Servicing Industry

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A&B ABstract: On April 1, 2021, the Consumer Financial Protection Bureau (“CFPB” or “Bureau”) issued a Compliance Bulletin and Policy Guidance (the “Bulletin”) on the Bureau’s supervision and enforcement priorities with regard to housing insecurity in light of heightened risks to consumers needing loss mitigation assistance once COVID-19 foreclosure moratoriums and forbearances end.  The Bulletin warns mortgage servicers to begin taking appropriate steps now to prevent “a wave of avoidable foreclosures” once borrowers begin exiting COVID-19 forbearance plans later this Fall, and also highlights the areas on which the CFPB will focus in assessing a mortgage servicer’s compliance with applicable consumer financial laws and regulations.

The Bulletin

The Bulletin warns mortgage servicers of the Bureau’s “commit[ment] to using its authorities, including its authority under Regulation X mortgage servicing requirements and under the Consumer Financial Protection Act” to ensure borrowers impacted by the COVID-19 pandemic “receive the benefits of critical legal protections and that avoidable foreclosures are avoided.”

Specifically, the Bureau highlighted two populations of borrowers as being at heightened risk of referral to foreclosure following the expiration of the foreclosure moratoriums if they do not resolve their delinquency or enter into a loss mitigation option, namely, borrowers in a COVID-19-related forbearance and delinquent borrowers who are not in forbearance programs.

As consumers near the end of their forbearance plans, the CFPB expects “an extraordinarily high volume of loans needing loss mitigation assistance at relatively the same time.” The Bureau specifically expressed its concern that some borrowers may not receive effective communication from their servicers and that some borrowers may be at an increased risk of not having their loss mitigation applications adequately processed. To that end, the Bureau plans to monitor servicer engagement with borrowers “at all stages in the process” and prioritize its oversight of mortgage servicers in deploying its enforcement and supervision resources over the next year.

Servicers are expected to plan for the anticipated increase in loans exiting forbearance programs and related loss mitigation applications, as well as applications from borrowers who are delinquent but not in forbearance. Specifically, the Bureau expects servicers to devote sufficient resources and staff to ensure they are able to clearly communicate with affected borrowers and effectively manage borrower requests for assistance in order to reduce foreclosures. To that end, the Bureau intends to assess servicers’ overall effectiveness in assisting consumers to manage loss mitigation, and other relevant factors, in using its discretion to address potential violations of Federal consumer financial law.

In light of the foregoing, the Bureau plans to focus its attention on how well servicers are:

  • Being proactive. Servicers should contact borrowers in forbearance before the end of the forbearance period, so they have time to apply for help.
  • Working with borrowers. Servicers should work to ensure borrowers have all necessary information and should help borrowers in obtaining documents and other information needed to evaluate the borrowers for assistance.
  • Addressing language access. The CFPB will look carefully at how servicers manage communications with borrowers with limited English proficiency (LEP) and maintain compliance with the Equal Credit Opportunity Act (ECOA) and other laws. It is worth noting that the Bureau issued a notice in January 2021 encouraging financial institutions to better serve LEP borrowers in a language other than English and providing key considerations and guidelines.
  • Evaluating income fairly. Where servicers use income in determining eligibility for loss mitigation options, servicers should evaluate borrowers’ income from public assistance, child-support, alimony or other sources in accordance with the ECOA’s anti-discrimination protections.
  • Handling inquiries promptly. The CFPB will closely examine servicer conduct where hold times are longer than industry averages.
  • Preventing avoidable foreclosures. The CFPB will expect servicers to comply with foreclosure restrictions in Regulation X and other federal and state restrictions in order to ensure that all homeowners have an opportunity to save their homes before foreclosure is initiated.

Takeaway

As more and more borrowers begin to near the end of their COVID-19-related forbearance plans, and as applicable foreclosure moratoriums near their anticipated expiration dates, mortgage servicers should consider evaluating their mortgage servicing operations, including applicable policies, procedures, controls, staffing and other resources, to ensure impacted loans are handled in accordance with applicable Federal and state servicing laws and regulations.

Evaluating the CFPB’s Proposed Delay of the QM Rule: Timing Considerations

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A&B ABstract: The CFPB must finalize its proposed QM delay rule in April, likely leaving no room for delay.

Background on ATR/QM and the Delay Rule

On March 3, 2021, the Bureau of Consumer Financial Protection (CFPB) released a notice of proposed rulemaking (NPRM) to delay the mandatory compliance date of the General Qualified Mortgage (QM) final rule from July 1, 2021 to October 1, 2022 (the Delay Rule).

As explained in the CFPB’s proposal, the Ability-to-Repay/Qualified Mortgage Rule (ATR/QM Rule) requires a creditor to make a reasonable, good faith determination of a consumer’s ability to repay a residential mortgage loan according to its terms. Loans that meet the ATR/QM Rule’s requirements for qualified mortgages (QMs) obtain certain protections from liability. The ATR/QM Rule defines several categories of QMs.

One QM category defined in the ATR/QM Rule is the General QM category. General QM loans must comply with the ATR/QM Rule’s prohibitions on certain loan features, its points-and-fees limits, and its underwriting requirements. Under the original ATR/QM Rule, the ratio of the consumer’s total monthly debt to total monthly income (DTI ratio) could not exceed 43 percent.

General QM Final Rule

In December 2020, the CFPB issued the General QM Final Rule, which among other changes replaced the General QM loan definition’s DTI limit with a limit based on loan pricing. The General QM Final Rule took effect on March 1, 2021, and it provides a mandatory compliance date of July 1, 2021.

In 2013, the CFPB created a second, supposedly temporary category of QMs for mortgages that (1) comply with the same loan-feature prohibitions and points-and-fees limits as General QMs and (2) are eligible to be purchased or guaranteed by Fannie Mae or Freddie Mac (collectively, the GSEs) while under the conservatorship of the Federal Housing Finance Agency (FHFA). These loans are referred to as Temporary GSE QM loans, and the provision that created this loan category is commonly known as the GSE Patch. Unlike for General QM loans, the ATR/QM rule did not prescribe a DTI limit for Temporary GSE QM loans. Thus, a loan can qualify as a Temporary GSE QM loan even if the consumer’s DTI ratio exceeds 43 percent, as long as the loan is eligible to be purchased or guaranteed by either of the GSEs. Under the original ATR/QM Rule, the Temporary GSE QM loan definition would expire with respect to each GSE when that GSE exits conservatorship or on January 10, 2021, whichever comes first.

Patch Extension Rule

In October 2020, the CFPB issued a final rule (the Patch Extension Rule) to replace the January 10, 2021 sunset date of the Temporary GSE QM loan definition with a provision stating that the Temporary GSE QM loan definition will be available only for covered transactions for which the creditor receives the consumer’s application before the mandatory compliance date of the General QM Final Rule. Therefore, under the CFPB’s current proposal, the Temporary GSE QM loan definition would expire upon the earlier of October 1, 2022 (rather than on the current mandatory compliance date of July 1, 2021) or the date the applicable GSE exits Federal conservatorship.

Timing Considerations

Public comments on the CFPB’s proposed Delay Rule are due on or before April 5, 2021. The CFPB proposes that a final rule based on its proposal be effective “60 days after publication in the Federal Register.” Also, the CFPB “anticipates that this would make the final rule effective before the current July 1, 2021 mandatory compliance date.”

Working backwards from the July 1, 2021 mandatory compliance date, the very last day the final rule could become effective is June 30, 2021. To be effective by that date, the Bureau must publish its final rule in the Federal Register by no later than April 30, 2021.

There is typically a delay between an agency’s public announcement of a final rule and the publication of that final rule in the Federal Register. The length of the delay varies based upon the amount of time required to process an agency’s submission, which mostly depends upon the page number length of the submission, and also on the overall volume of materials submitted by all Federal Departments and agencies for processing at a particular time.  (For example, although the CFPB announced General QM Final Rule on December 10, 2020, it was not published in the Federal Register until December 29, 2020. And although the CFPB announced the Patch Extension Rule on October 20, 2020, it was not published until October 26, 2020.)

Considering the page length and subject matter similarities between the Patch Extension Rule and the Delay Rule, anticipating a minimum six-day delay between announcing the Final Delay Rule and publication of the rule in the Federal Register appears reasonable. Based on this estimate, the CFPB must announce a final Delay Rule by no later than Friday, April 23.

Processing Time

The time period between the close of the April 5 comment period for the proposed Delay Rule and the day by which the CFPB must submit the text of the final Delay Rule to the Federal Register for processing is quite narrow. In fact, the CFPB has provided itself no more than about fourteen business days within which to perform several important and often time-consuming tasks, including:

  • analyzing the public comments, data and research received in response to its proposal;
  • determining whether to revise its proposal in light of relevant points raised by the comments,
  • drafting substantive responses to significant comments;
  • completing the internal divisional clearance process;
  • drafting the text of the final rule; and
  • securing approval of the Acting Director to issue the final rule.

Performing all of these tasks within the CFPB’s self-established timetable and in a manner consistent with the requirements of the Administrative Procedure Act (APA) will be difficult. For one thing, the time constraints suggest that the CFPB may begin drafting its final rule before the comment period closes, which may potentially raise questions about whether comments are given their due consideration and whether the CFPB maintains an open mind throughout the rulemaking process. For another thing, the CFPB likely cannot extend the comment period for its proposed rule; even a two-week extension would likely make it impossible for the CFPB to finalize a rule with an effective date occurring before July 1. This means that the CFPB likely must deny any extension request it receives, no matter what reason is provided in support of the request.

Takeaway

The availability of the GSE Patch and the continued ability of mortgage originators to make Temporary GSE QM loans depends upon the CFPB’s ability to finalize its proposed Delay Rule in short order. The timetable involved presents significant challenges for the CFPB, as noted above. The CFPB’s success or failure in that endeavor, and by extension the survival or demise of the GSE patch, will no doubt be received differently in different quarters, given the size of the mortgage market and the varied interests involved. This post simply notes that the CFPB is trying to thread a very small needle with its proposed Delay Rule.