# Amendments to the 2013 Mortgage Rules Under the Real Estate Settlement Procedures Act (Regulation X) and the Truth in Lending Act (Regulation Z)

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A2013-16962

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** July 24, 2013
- **Citation:** 78 FR 44686

## Text

BUREAU OF CONSUMER FINANCIAL PROTECTION
12 CFR Parts 1024 and 1026
[Docket No. CFPB-2013-0010]
RIN 3170-AA37
Amendments to the 2013 Mortgage Rules Under the Real Estate Settlement Procedures Act (Regulation X) and the Truth in Lending Act (Regulation Z)

AGENCY:

Bureau of Consumer Financial Protection.

ACTION:

Final rule; official interpretations.

SUMMARY:

This rule amends some of the final mortgage rules issued by the Bureau of Consumer Financial Protection (Bureau) in January of 2013. These amendments clarify, correct, or amend provisions on the relation to State law of Regulation X's servicing provisions; implementation dates for adjustable-rate mortgage servicing; exclusions from requirements on higher-priced mortgage loans; the small servicer exemption from certain servicing rules; the use of government-sponsored enterprise and Federal agency purchase, guarantee or insurance eligibility for determining qualified mortgage status; and the determination of debt and income for purposes of originating qualified mortgages.

DATES:

This rule is effective January 10, 2014, except for the amendment to § 1026.35(e), which is effective July 24, 2013. See part V, Effective Date, in
SUPPLEMENTARY INFORMATION
.

FOR FURTHER INFORMATION CONTACT:

Marta Tanenhaus, Senior Counsel, Paul Ceja, Senior Counsel and Special Advisor; Joseph Devlin, Counsel; Office of Regulations, at (202) 435-7700.

SUPPLEMENTARY INFORMATION:

I. Summary of Final Rule

In January 2013, the Bureau issued several final rules concerning mortgage markets in the United States (2013 Title XIV Final Rules), pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act). Public Law 111-203, 124 Stat. 1376 (2010). On January 10, 2013, the Bureau issued the 2013 ATR Final Rule;
1

on January 17, 2013, the Bureau issued the 2013 Mortgage Servicing Final Rules;
2

and on May 16, 2013, the Bureau issued Amendments to the 2013 Escrows Final Rule.
3

This final rule makes several amendments to those rules. These amendments clarify, correct, or amend provisions on (1) the relation to State law of Regulation X's servicing provisions; (2) implementation dates for adjustable-rate mortgage disclosures; (3) exclusions from the repayment ability and prepayment penalty requirements for higher-priced mortgage loans (HPMLs); (4) the small servicer exemption from certain of the new servicing rules; (5) the use of government-sponsored enterprise (GSE) and Federal agency purchase, guarantee or insurance eligibility for determining qualified mortgage (QM) status; and (6) the determination of debt and income for purposes of originating QMs. In addition to these six revisions and clarifications, which are discussed more fully below, the Bureau is making certain technical corrections to the regulations with no substantive change intended.

1
Ability-to-Repay and Qualified Mortgage Standards Under the Truth in Lending Act (Regulation Z) (2013 ATR Final Rule), 78 FR 6407 (Jan. 30, 2013).

2
Mortgage Servicing Rules Under the Real Estate Settlement Procedures Act (Regulation X) (2013 RESPA Servicing Final Rule) and Mortgage Servicing Rules Under the Truth in Lending Act (Regulation Z) (2013 TILA Servicing Final Rule) (together, 2013 Mortgage Servicing Final Rules), 78 FR 10695 (Feb. 14, 2013) (Regulation X), 78 FR 10901 (Feb. 14, 2013) (Regulation Z).

3
Amendments to the 2013 Escrows Final Rule under the Truth in Lending Act (Regulation Z), 78 FR 30739 (May 23, 2013). Those amendments revised 78 FR 4726 (Jan. 22, 2013) (2013 Escrows Final Rule).

First, the Bureau is amending the commentary to the preemption provision of Regulation X to clarify that the regulation does not occupy the field of regulation of the practices covered by the Real Estate Settlement Procedures Act (RESPA) or Regulation X, including with respect to mortgage servicers or mortgage servicing. The rule also redesignates the Regulation X preemption provision, § 1024.13, as § 1024.5(c).

Second, in response to industry requests, the Bureau is providing clarification of the implementation dates for adjustable-rate mortgage provisions § 1026.20(c) and (d) of the 2013 TILA Servicing Final Rule. This clarification is provided in the section-by-section analysis and does not revise the 2013 TILA Servicing Final Rule or its official commentary.

Third, the Bureau is revising § 1026.35(e) of Regulation Z, as amended by the Amendments to the 2013 Escrows Final Rule,
4

to clarify that construction and bridge loans and reverse mortgages are not subject to its requirements regarding repayment abilities and prepayment penalties for HPMLs.

4
78 FR 30739 (May 23, 2013).

Fourth, the Bureau is clarifying the scope and application of the exemption for small servicers that is set forth in Regulation Z's periodic statement provision, § 1026.41, and incorporated by cross-reference in certain provisions of Regulation X. The rule clarifies which mortgage loans to consider in determining small servicer status and the application of the small servicer exemption with regard to servicer/affiliate and master servicer/subservicer relationships. Further, the rule provides that three types of mortgage loans will not be considered in determining small servicer status: mortgage loans voluntarily serviced for an unaffiliated entity without remuneration, reverse mortgages, and mortgage loans secured by a consumer's interest in timeshare plans.

Fifth, the Bureau is revising regulatory text and an official interpretation adopted in the 2013 ATR Final Rule and adding a new official interpretation to describe qualified mortgages that are entitled to a presumption of compliance with the ability-to-repay requirements under the Dodd-Frank Act. Specifically, the Bureau is providing clarifications with regard to § 1026.43(e)(4), which allows qualified mortgage status to certain loans that are eligible for purchase, guarantee, or insurance by the GSEs or federal agencies. Section 1026.43(e)(4)(ii)(A)-(E) is amended to make clear that matters wholly unrelated to ability to repay will not be relevant to determination of QM status under this provision. Comment 43(e)(4)-4 explains that matters wholly unrelated to ability to repay are those matters that are wholly unrelated to credit risk or the underwriting of the loan. Comment 43(e)(4)-4 also clarifies the standards a creditor must meet when relying on a written guide or an automated underwriting system to determine qualified mortgage status under § 1026.43(e)(4). In addition, the revised comment specifies that a creditor relying on approval through an automated underwriting system to establish qualified mortgage status must also meet the conditions on approval that are generated by that same system.

The Bureau is also revising comment 43(e)(4)-4 to clarify that a loan meeting eligibility requirements provided in a written agreement with one of the GSEs, HUD, VA, USDA, or RHS is also eligible for purchase or guarantee by the GSEs or insured or guaranteed by the agencies for the purposes of § 1026.43(e)(4). In addition, the comment has been clarified to provide that loans receiving individual waivers from GSEs or agencies will be considered eligible as

well. Thus, such loans could be qualified mortgages.

The Bureau is also issuing new comment 43(e)(4)-5, which provides that a repurchase or indemnification demand by the GSEs, HUD, VA, USDA, or RHS is not dispositive for ascertaining qualified mortgage status. The comment provides two examples to illustrate the application of this guidance.

Sixth, the Bureau is amending appendix Q of Regulation Z to facilitate compliance and ensure access to credit by assisting creditors in determining a consumer's debt-to-income ratio (DTI) for the purposes of § 1026.43(e)(2), the primary qualified mortgage provision. The Bureau is making changes to address compliance challenges raised by stakeholders, as well as technical and wording changes for clarification purposes. The Bureau's revisions include clarifications to appendix Q on: (1) Stability of income, and the creditor requirement to evaluate the probability of the consumer's continued employment; (2) with regard to salary, wage, and other forms of consumer income, the creditor requirement to determine whether the consumer's income level can reasonably be expected to continue; (3) creditor analysis of consumer overtime and bonus income; (4) creditor analysis of consumer Social Security income; (5) requirements related to the analysis of self-employed consumer income; (6) requirements related to non-employment related consumer income, including creditor analysis of consumer trust income; and (7) creditor analysis of rental income. The Bureau is also revising the introduction to appendix Q to make clear that creditors may refer to other federal agency and GSE guidance that is in accordance with appendix Q as a resource, and to provide default rules and an optional safe harbor when appendix Q's standards do not otherwise resolve how to treat a particular type of debt or income.

II. Background

A. Title XIV Rulemakings Under the Dodd-Frank Act

In response to an unprecedented cycle of expansion and contraction in the mortgage market that sparked the most severe U.S. recession since the Great Depression, Congress passed the Dodd-Frank Act, which was signed into law on July 21, 2010. In the Dodd-Frank Act, Congress established the Bureau and, under sections 1061 and 1100A, generally consolidated the rulemaking authority for Federal consumer financial laws, including the Truth in Lending Act (TILA) and RESPA, in the Bureau.
5

At the same time, Congress significantly amended the statutory requirements governing mortgage practices with the intent to restrict the practices that contributed to and exacerbated the crisis. Under the statute, most of these new requirements would have taken effect automatically on January 21, 2013, if the Bureau had not issued implementing regulations by that date.
6

To avoid uncertainty and potential disruption in the national mortgage market at a time of economic vulnerability, the Bureau issued several final rules in a span of less than two weeks in January 2013 to implement these new statutory provisions and provide for an orderly transition.

5
Sections 1011 and 1021 of the Dodd-Frank Act, in title X, the “Consumer Financial Protection Act,” Public Law 111-203, sections 1001-1100H, codified at 12 U.S.C. 5491, 5511. The Consumer Financial Protection Act is substantially codified at 12 U.S.C. 5481-5603. Section 1029 of the Dodd-Frank Act excludes from this transfer of authority, subject to certain exceptions, any rulemaking authority over a motor vehicle dealer that is predominantly engaged in the sale and servicing of motor vehicles, the leasing and servicing of motor vehicles, or both. 12 U.S.C. 5519.

6
Dodd-Frank Act section 1400(c), 15 U.S.C. 1601 note.

On January 10, 2013, the Bureau issued the 2013 ATR Final Rule, Escrow Requirements Under the Truth in Lending Act (Regulation Z) (2013 Escrows Final Rule),
7

and High-Cost Mortgages and Homeownership Counseling Amendments to the Truth in Lending Act (Regulation Z) and Homeownership Counseling Amendments to the Real Estate Settlement Procedures Act (Regulation X) (2013 HOEPA Final Rule).
8

On January 17, 2013, the Bureau issued the 2013 Mortgage Servicing Final Rules. On January 18, 2013, the Bureau issued Appraisals for Higher-Priced Mortgage Loans (Regulation Z)
9

(issued jointly with other agencies) and Disclosure and Delivery Requirements for Copies of Appraisals and Other Written Valuations Under the Equal Credit Opportunity Act (Regulation B) (2013 Appraisals Final Rule).
10

On January 20, 2013, the Bureau issued Loan Originator Compensation Requirements Under the Truth in Lending Act (Regulation Z) (2013 Loan Originator Final Rule).
11

Most of these rules will become effective on January 10, 2014.

7
78 FR 4726 (Jan. 22, 2013).

8
78 FR 6855 (Jan. 31, 2013).

9
78 FR 10367 (Feb. 13, 2013).

10
78 FR 7215 (Jan. 31, 2013).

11
78 FR 11279 (Feb. 15, 2013).

Concurrent with the 2013 ATR Final Rule, on January 10, 2013, the Bureau issued Proposed Amendments to the Ability-to-Repay Standards Under the Truth in Lending Act (Regulation Z) (2013 ATR Concurrent Proposal).
12

This proposal has now been made final (May 2013 ATR Final Rule).
13

The May 2013 ATR Final Rule provides exemptions for creditors with certain designations, loans pursuant to certain programs, certain nonprofit creditors, and mortgage loans made in connection with certain Federal emergency economic stabilization programs. The final rule also provides an additional definition of a qualified mortgage for certain loans made and held in portfolio by small creditors and a temporary definition of a qualified mortgage for balloon loans. Finally, the May 2013 ATR Final Rule modifies the requirements regarding the inclusion of loan originator compensation in the points and fees calculation.

12
78 FR 6622 (Jan. 30, 2013).

13
78 FR 35429 (Jun. 12, 2013).

B. Implementation Initiative for New Mortgage Rules

On February 13, 2013, the Bureau announced an initiative to support implementation of its new mortgage rules (Implementation Plan),
14

under which the Bureau would work with the mortgage industry and other stakeholders to ensure that the new rules can be implemented accurately and expeditiously. The Implementation Plan included (1) coordination with other agencies; (2) publication of plain-language guides to the new rules; (3) publication of additional corrections and clarifications of the new rules, as needed; (4) publication of readiness guides for the new rules; and (5) education of consumers on the new rules.

14
Consumer Financial Protection Bureau Lays Out Implementation Plan for New Mortgage Rules. Press Release. Feb. 13, 2013.

This final rule is the third final rule providing additional revisions and clarifications of and amendments to the 2013 Title XIV Final Rules. In addition, the Bureau issued a proposed rule with further revisions and clarifications of and amendments to several of the 2013 Title XIV Final Rules on June 24, 2013. The purpose of these updates is to address important questions raised by industry, consumer groups, or other agencies. Priority for these updates is given to issues that are important to a large number of stakeholders and that critically affect mortgage companies' implementation decisions. Previously, the Bureau issued a final rule
15

providing corrections and clarifications of its 2013 Escrows Final Rule, and a final rule delaying the effective date for a provision related to credit insurance

financing in the 2013 Loan Originator Final Rule. On June 24, 2013, the Bureau issued additional proposed clarifications
16

to several of the new mortgage rules, including the servicing rules touched on here and the 2013 Loan Originator Final Rule. The Bureau expects to review the comments received and finalize that proposal later this summer. Going forward, the Bureau will continue to assess whether additional clarifications or revisions are warranted.

15
78 FR 30739 (May 23, 2013).

16
78 FR 39902 (July 2, 2013).

Comments on the Proposed Rule

The Bureau received 73 comments on the proposed rule
17

on which this final rule is based. Many of these comments discussed issues that the proposed rule did not touch upon such as disparate impact in regard to fair lending enforcement, calculation methods for residual income, and whether or not the special QM provision at § 1026.43(e)(4) should be eliminated before the rule goes into effect. The Bureau notes that it would be inconsistent with the Administrative Procedure Act (APA) to make changes outside the scope of the proposal because the other commenters and the public would not have notice and opportunity to comment. In addition, these regulatory updates are intended to focus on specific narrow implementation issues, and broader policy changes would not be appropriate as part of this process.

17
78 FR 25638 (May 2, 2013).

The Bureau has examined all comments submitted and will discuss those that were responsive to the proposal in the section-by-section analysis below.

III. Legal Authority

The Bureau is issuing this final rule pursuant to its authority under RESPA, TILA, and the Dodd-Frank Act. Section 1061 of the Dodd-Frank Act transferred to the Bureau the “consumer financial protection functions” previously vested in certain other Federal agencies, including the Federal Reserve Board (Board). The term “consumer financial protection function” is defined to include “all authority to prescribe rules or issue orders or guidelines pursuant to any Federal consumer financial law, including performing appropriate functions to promulgate and review such rules, orders, and guidelines.”
18

Section 1061 of the Dodd-Frank Act also transferred to the Bureau all of HUD's consumer protection functions relating to RESPA.
19

Title X of the Dodd-Frank Act, including section 1061, along with RESPA, TILA, and certain subtitles and provisions of title XIV of the Dodd-Frank Act are Federal consumer financial laws.
20

18
12 U.S.C. 5581(a)(1).

19
Public Law 111-203, 124 Stat. 1376, section 1061(b)(7); 12 U.S.C. 5581(b)(7).

20
Dodd-Frank Act section 1002(14), 12 U.S.C. 5481(14) (defining “Federal consumer financial law” to include the “enumerated consumer laws” and the provisions of title X of the Dodd-Frank Act); Dodd-Frank Act section 1002(12), 12 U.S.C. 5481(12) (defining “enumerated consumer laws” to include TILA), Dodd-Frank section 1400(b), 15 U.S.C. 1601 note (defining “enumerated consumer laws” to include certain subtitles and provisions of Title XIV).

A. RESPA

Section 19(a) of RESPA, 12 U.S.C. 2617(a), authorizes the Bureau to prescribe such rules and regulations, to make such interpretations, and to grant such reasonable exemptions for classes of transactions, as may be necessary to achieve the purposes of RESPA, which include its consumer protection purposes. In addition, section 6(j)(3) of RESPA, 12 U.S.C. 2605(j)(3), authorizes the Bureau to establish any requirements necessary to carry out section 6 of RESPA, and section 6(k)(1)(E) of RESPA, 12 U.S.C. 2605(k)(1)(E), authorizes the Bureau to prescribe regulations that are appropriate to carry out RESPA's consumer protection purposes. As identified in the 2013 RESPA Servicing Final Rule, the consumer protection purposes of RESPA include responding to borrower requests and complaints in a timely manner, maintaining and providing accurate information, helping borrowers avoid unwarranted or unnecessary costs and fees, and facilitating review for foreclosure avoidance options.

B. TILA

Section 105(a) of TILA, 15 U.S.C. 1604(a), authorizes the Bureau to prescribe regulations to carry out the purposes of TILA. Under 105(a) such regulations may contain such additional requirements, classifications, differentiations, or other provisions, and may provide for such adjustments and exceptions for all or any class of transactions, as in the judgment of the Bureau are necessary or proper to effectuate the purposes of TILA, to prevent circumvention or evasion thereof, or to facilitate compliance therewith. A purpose of TILA is “to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit.” TILA section 102(a), 15 U.S.C. 1601(a). In particular, it is a purpose of TILA section 129C, as amended by the Dodd-Frank Act, to assure that consumers are offered and receive residential mortgage loans on terms that reasonably reflect their ability to repay the loans and that are understandable and not unfair, deceptive, or abusive. Section 105(f) of TILA, 15 U.S.C. 1604(f), authorizes the Bureau to exempt from all or part of TILA any class of transactions if the Bureau determines that TILA coverage does not provide a meaningful benefit to consumers in the form of useful information or protection. Accordingly, the Bureau has authority to issue regulations pursuant to title X as well as RESPA and TILA, as amended by title XIV.

In addition, to constitute a qualified mortgage a loan must meet “any guidelines or regulations established by the Bureau relating to ratios of total monthly debt to monthly income or alternative measures of ability to pay regular expenses after payment of total monthly debt, taking into account the income levels of the borrower and such other factors as the Bureau may determine are relevant and consistent with the purposes described in [TILA section 129C(b)(3)(B)(i)].” The Dodd Frank Act also provides the Bureau with authority to prescribe regulations that revise, add to, or subtract from the criteria that define a qualified mortgage upon a finding that such regulations are necessary or proper to ensure that responsible, affordable mortgage credit remains available to consumers in a manner consistent with the purposes of the ability-to-repay requirements; or are necessary and appropriate to effectuate the purposes of the ability-to-repay requirements, to prevent circumvention or evasion thereof, or to facilitate compliance with TILA sections 129B and 129C. TILA section 129C(b)(3)(B)(i), 15 U.S.C. 1639c(b)(3)(B)(i). In addition, TILA section 129C(b)(3)(A) provides the Bureau with authority to prescribe regulations to carry out the purposes of the qualified mortgage provisions, such as to ensure that responsible and affordable mortgage credit remains available to consumers in a manner consistent with the purposes of TILA section 129C. TILA section 129C(b)(3)(A), 15 U.S.C. 1639c(b)(3)(A).

C. The Dodd-Frank Act

Section 1022(b)(1) of the Dodd-Frank Act authorizes the Bureau to prescribe rules “as may be necessary or appropriate to enable the Bureau to administer and carry out the purposes and objectives of the Federal consumer financial laws, and to prevent evasions

thereof.” 12 U.S.C. 5512(b)(1). Title X of the Dodd-Frank Act is a Federal consumer financial law. Accordingly, the Bureau is exercising its authority under the Dodd-Frank Act section 1022(b) to prescribe rules that carry out the purposes and objectives of title X, as well as of RESPA, TILA, and the enumerated subtitles and provisions of title XIV of the Dodd-Frank Act, and to prevent evasion of those laws.

The Bureau is amending certain rules finalized in January, 2013, that implement a number of Dodd-Frank Act provisions. In particular, the Bureau is clarifying or amending regulatory provisions and associated commentary adopted by the 2013 ATR Final Rule,
21

the 2013 TILA Servicing Final Rule,
22

the 2013 RESPA Servicing Final Rule,
23

and the 2013 Escrows Final Rule
24

as amended by the 2013 Amendments to the 2013 Escrows Final Rule.
25

21
78 FR 6408 (Jan. 30, 2013).

22
78 FR 10902 (Feb. 14, 2013).

23
78 FR 10696 (Feb. 14, 2013).

24
78 FR 4726 (Jan. 22, 2013).

25
78 FR 30739 (May 23, 2013).

IV. Section-by-Section Analysis

A. Regulation X

Subpart A—General Provisions

The Bureau proposed a technical amendment to the heading for Subpart A of Regulation X from “Subpart A—General” to “Subpart A—General Provisions” to conform the heading in the text of the regulation to the heading set forth in the corresponding commentary. No comments were received on this change, and it is adopted as proposed.

Section 1024.5 Coverage of RESPA

The Proposal

The Bureau proposed to redesignate § 1024.13 as § 1024.5(c). Section 1024.13, “Relation to State laws,” sets forth rules regarding the relationship of the requirements in RESPA and Regulation X to requirements established pursuant to State law. In the 2013 RESPA Servicing Final Rule, the Bureau divided Regulation X into subparts and § 1024.13 was located in new “Subpart B—Mortgage Settlement and Escrow Accounts.” However, the provisions of § 1024.13(a) are intended to apply with respect to all of Regulation X. Because § 1024.13 applies for all sections of Regulation X, the Bureau proposed to redesignate § 1024.13 as § 1024.5(c), located within “Subpart A—General Provisions.” Further, the Bureau proposed to remove and reserve § 1024.13.

The Bureau further proposed to add commentary for proposed § 1024.5(c) to make clear that Regulation X does not create field preemption. Since issuing the 2013 RESPA Servicing Final Rule, the Bureau had received inquiries as to whether Regulation X's mortgage servicing rules result in preemption of the field of mortgage servicing regulation. The Bureau had addressed this question in the preamble to the final rule, stating that “the Final Servicing Rules generally do not have the effect of prohibiting State law from affording borrowers broader consumer protection relating to mortgage servicing than those conferred under the Final Servicing Rules.”
26

The preamble further stated that, although “in certain circumstances, the effect of specific requirements of the Final Servicing Rules is to preempt certain limited aspects of state law” in general, “the Bureau explicitly took into account existing standards (both State and Federal) and either built in flexibility or designed its rules to coexist with those standards.”
27

26
78 FR 10706 (Feb. 14, 2013).

27

Id.
(specifically identifying the National Mortgage Settlement and the California Homeowner Bill of Rights).

Because the Bureau continued to receive questions on this issue, the Bureau believed it was appropriate to propose commentary to clarify the scope of proposed § 1024.5(c) and expressly address concerns about field preemption. Consistent with the preamble to the 2013 RESPA Servicing Final Rule, proposed comment 5(c)(1)-1 stated that State laws that are in conflict with the requirements of RESPA or Regulation X may be preempted by RESPA and Regulation X. Proposed comment 5(c)(1)-1 stated further that nothing in RESPA or Regulation X, including the provisions in subpart C with respect to mortgage servicers or mortgage servicing, should be construed to preempt the entire field of regulation of the covered practices. This proposed addition to the commentary was meant to clarify that RESPA and Regulation X do not effectuate field preemption of States' regulation of mortgage servicers or mortgage servicing. The comment also made clear that RESPA and Regulation X do not preempt State laws that give greater protection to consumers than do these federal laws.

The Bureau requested comment regarding the addition of the proposed commentary, including whether further clarification regarding the preemption effects of RESPA and Regulation X was necessary or appropriate.

Comments

Numerous consumer and community groups provided similar comments supporting the proposed changes to the Regulation X preemption provision. These commenters supported the relocation of the preemption provision to § 1024.5(c) in the General Provisions subpart and the addition of comment 5(c)(1)-1. Many of these consumer and community groups further suggested that the regulatory text itself be changed to replace the phrase “settlement practices” with language more clearly inclusive of servicing activities. Several also requested that an example be included with comment 5(c)(1)-1 showing that a state law more protective of consumers will not be preempted by Regulation X.

Two industry commenters supported the proposed changes to the Regulation X preemption provision. One trade association suggested that the Bureau should promote uniform servicing standards to help create certainty in the market. Another industry commenter stated that the current regulation covered the situation sufficiently and the proposed guidance was unnecessary.

Two trade associations stated that the Bureau was narrowing the existing preemption provision to reduce the likelihood of preemption. One opposed the idea that state laws more protective of consumers are not preempted, and so opposed the inclusion of the comment. The other stated that the preemption provision for mortgage servicing transfers functions statutorily as a general preemption of mortgage servicing.

Several industry commenters pointed out that the statute and regulation use the word “inconsistent” when explaining which state laws may be preempted, while the proposed comment uses the more common term “conflict” to describe the situation. They suggested that the comment also use the term “inconsistent” to avoid confusion.

Final Rule

The relocation of the preemption provision and the guidance in proposed comment 5(c)(1)-1 were not intended to change the current preemption regime under Regulation X and the Bureau does not believe that they do so. The sentence in the regulation that consumer and community groups urged the Bureau to change simply replicates text in RESPA section 18. Therefore the Bureau does not believe that a change to that sentence would be appropriate. Comment 5(c)(1)-1 provides the

Bureau's official interpretation of that regulatory language. As stated in the proposal, the Bureau believes that the relocation of the preemption provision and the addition of the comment are necessary and appropriate to eliminate any confusion as to how the preemption provision operates. In addition, the Bureau believes that the comment is sufficiently clear and does not consider an example to be necessary.

The final rule adopts the amendments as proposed, but changes the word “conflict” in the comment to “inconsistent” to avoid confusion.

B. Regulation Z

Section 1026.20 Disclosure Requirements Regarding Post-Consummation Events

20(c) Rate Adjustments With a Corresponding Change in Payment

20(d) Initial Rate Adjustment

Implementation Date.
In its proposal, the Bureau did not seek to revise or clarify § 1026.20(c) and (d), the adjustable-rate mortgage (ARM) servicing regulations issued by the Bureau in the 2013 TILA Servicing Final Rule. Nevertheless, the Bureau received unsolicited queries regarding the implementation dates for these rules. Despite the unsolicited nature of these comments, the Bureau believes it would be helpful to clarify the ARM implementation dates.

ARM regulations § 1026.20(c) and (d) generally apply to ARMs originated both prior to and after the January 10, 2014, effective date. However, no servicer is required to comply with the rule until the effective date.

Implementation Date for § 1026.20(d).
Because the notice required by § 1026.20(d) must be provided to the consumer between 210 and 240 days before the first payment is due after the initial interest rate adjustment,
servicers will not be required to provide the § 1026.20(d) notice when such payment is due 209 or fewer days from the effective date.
However, payments due 210 or more days from the effective date are subject to the rule.

Implementation Date for § 1026.20(c).
Because the notice required by § 1026.20(c) must be provided to the consumer between 60 and 120 days before the first payment is due after an interest rate adjustment causing a corresponding change in payment,
servicers will not be required to provide the § 1026.20(c) notice when such payment is due 25 to 59 days from the effective date.
Note that, under the time frame of current § 1026.20(c), notices are required 25 to 120 days before the first payment is due after the interest rate adjustment. Thus, servicers already will have provided the § 1026.20(c) notices required by the current rule when such payment is due 24 or fewer days from the January 10, 2014, effective date.

Section 1026.35 Requirements for Higher-Priced Mortgage Loans

35(e) Repayment Ability, Prepayment Penalties

The Bureau is concerned that its recently published Amendments to the 2013 Escrows Final Rule
28

requiring industry to comply with certain provisions regarding repayment ability and prepayment penalties for HPMLs could be interpreted as requiring that certain transactions excluded from such requirements are now subject to those requirements. The Bureau believes that the amendments, properly understood, continue the exclusion for such transactions from the requirements. To provide certainty, the Bureau is revising § 1026.35(e)
29

to explicitly exclude from coverage construction and bridge loans and reverse mortgages—loans that were previously explicitly excluded from such requirements, as discussed below.

28
78 FR 30739 (May 23, 2013).

29

Id.

In January 2013, the Bureau issued the 2013 Escrows Final Rule,
30

which implements certain provisions of the Dodd-Frank Act relating to escrow accounts. That final rule revised the definition of “higher-priced mortgage loan” in 12 CFR 1026.35(a) by removing certain exclusions from the scope of consumer credit transactions that may be HPMLs. The loans no longer excluded from the definition of HPML are: Transactions to finance the initial construction of a dwelling (construction loans); temporary or “bridge loans” with a terms of twelve months or less, such as a loan to purchase a new dwelling where the consumer plans to sell a current dwelling within twelve months (bridge loans); and reverse mortgages subject to § 1026.33 (reverse mortgages). The Bureau removed these exclusions from the general definition of HPML and located them directly into the individual provisions regarding appraisal, escrow, ability to repay, and prepayment penalty requirements for HPMLs.
31

30
78 FR 4726 (Jan. 22, 2013).

31

See
§ 1026.35(c)(2) of the 2013 TILA Appraisals Rule, 78 FR 10368 (Feb. 13, 2013) (which was adopted by the Bureau, together with several other Federal agencies, as an inter-agency rulemaking); § 1026.35(b)(2) of the 2013 Escrows Final Rule, 78 FR 4727 (Jan. 22, 2013); § 1026.43(a) of the 2013 ATR Final Rule, 78 FR 6408 (Jan. 30, 2013); and § 1026.32(a) of the 2013 HOEPA Final Rule, 78 FR 6856 (Jan. 31, 2013).

Since adopting the above-referenced rules, the Bureau adopted Amendments to the 2013 Escrows Final Rule
32

to prevent the inadvertent and temporary elimination of certain consumer protections for HPMLs concerning ability to repay and prepayment penalties that were codified in 12 CFR 1026.35(b) prior to June 1, 2013. The 2013 Escrows Final Rule took effect June 1, 2013, while the 2013 ATR and HOEPA Final Rules
33

do not take effect until January 10, 2014. Consequently, the existing ability-to-repay and prepayment penalty protections for HPMLs would have been removed, pursuant to the 2013 Escrows Final Rule, over seven months before parallel provisions would take effect. The Amendments to the 2013 Escrows Final Rule restored those protections temporarily in, and re-codified them as part of, newly created 12 CFR 1026.35(e), which took effect June 1, 2013, and will be effective through January 9, 2014.

32
78 FR 30739 (May 23, 2013).

33
78 FR 6408 (Jan. 30, 2013); 78 FR 6856 (Jan. 31, 2013), respectively.

The Bureau's renumbering of the ability-to-repay and prepayment penalty provisions in § 1026.35(e) of Regulation Z, without excluding reverse mortgages and construction and bridge loans from coverage under that section, could be seen as removing these exclusions from the requirements of that temporary provision. To clarify that the Amendments to the 2013 Escrows Final Rule did not have that effect, the Bureau is revising temporary § 1026.35(e) to explicitly exclude construction loans, bridge loans, and reverse mortgages from its requirements. The Bureau is replacing current § 1026.35(e)(3) with new § 1026.35(e)(3), which states that the requirements of § 1026.35(e) do not apply to construction loans, bridge loans, and reverse mortgages. The Bureau is renumbering current § 1026.35(e)(3), “Sunset of requirements on repayment ability and prepayment penalties,” as new § 1026.35(e)(4). The general language in § 1026.35(e) is also revised to reflect the addition of these exclusions. As noted below, the amendment to § 1026.35(e) will apply to any transaction consummated on or after June 1, 2013, for which the creditor receives an application on or before January 9, 2014. Then, at the time § 1026.35(e) expires, the exclusions for construction loans, bridge loans, and reverse mortgages in the 2013 ATR and HOEPA Final Rules will take effect. Thus, the revision of § 1026.35(e) in this

final rule will make clear that construction loans, bridge loans, and reverse mortgages have continued and will continue to be excluded from certain HPML requirements regarding prepayment penalties and a consumer's ability to repay the loan.

Legal authority.
Construction loans, bridge loans, and reverse mortgages have always been excluded from the requirements of Regulation Z regarding repayment ability and prepayment penalties. The mortgage rules referenced above that implement the Dodd-Frank Act continue to exclude such loans from their requirements, including those governing repayment ability and prepayment penalties. Thus, the revisions to § 1026.35(e) in this final rule are merely technical changes to clarify the temporary provision's consistency with the historical and current treatment of such loans under Regulation Z.

For these reasons, the Bureau is revising temporary amendment § 1026.35(e) to explicitly exclude construction loans, bridge loans, and reverse mortgages from its requirements regarding ability to repay and prepayment penalties for HPMLs, pursuant to its authority to provide for adjustments and exceptions under TILA section 105(a) and (f), and with reliance on the authority used by the Board in amending Regulation Z to include these requirements,
34

including TILA section 129(p). As the Board concluded before it, the Bureau does not believe subjecting these loans to the repayment ability and prepayment penalty requirements would effectuate the purposes of, or facilitate compliance with TILA and Regulation Z. Many of the characteristics of these loans make it inappropriate or unnecessary to apply the repayment ability and prepayment penalty requirements of § 1026.35(e). For example, because the structure of reverse mortgages does not provide for repayment, the requirements related to repayment are not appropriate for such loans. The Bureau also notes that it anticipates undertaking a rulemaking to address how the Dodd-Frank Act title XIV requirements apply to reverse mortgages, and consumer protection issues in the reverse mortgage market may be addressed through such a rulemaking. Thus, the Bureau both interprets § 1026.35(e) not to subject the affected loans to its requirements and also, pursuant to 105(a) and 105(f) of TILA, continues to exclude those loans from the requirements of § 1026.35(e).

34
73 FR 44522 (July 30, 2008).

Notice and comment are not necessary for this revision of § 1026.35(e), which merely makes explicit in the regulation the Bureau's continuing interpretation that certain loans have been excluded from certain legal requirements throughout the renumbering process. Moreover, the Bureau finds good cause to proceed without notice and comment. 5 U.S.C. 553(b)(B). This revision merely clarifies the operation of the rule that should already have been apparent to many market participants. Notice and comment are therefore unnecessary. In addition, the length of the notice and comment period make it impracticable to correct erroneous interpretations of a rule that is already in effect and that expires within months. For these reasons and under the authority cited above, the Bureau is expressly excluding construction and bridge loans and reverse mortgages from the ability-to-repay and prepayment penalty requirements for HPMLs under interim § 1026.35(e).

Section 1026.41 Periodic Statements for Residential Mortgage Loans

41(a) In General

41(a)(1) Scope

Section 1026.41(a)(1) of the 2013 TILA Servicing Final Rule addresses the scope of the mortgage loans subject to the periodic statement requirements, stating that the rule applies to closed-end consumer credit transactions secured by a dwelling, subject to certain exemptions set forth in § 1026.41(e). It goes on to say that, for purposes of § 1026.41, “such transactions are referred to as
mortgage loans.”

To eliminate any confusion as to which loans “such transactions” refers, and thus to which loans the periodic statement rule applies, the Bureau proposed to clarify § 1026.41(a)(1). The proposed revision would have replaced the indefinite reference “such transactions” in § 1026.41(a)(1) with a reiteration of the loans to which the rule applies, that is, closed-end consumer credit transactions secured by a dwelling. This revision would have clarified which transactions are considered “mortgage loans” for purposes of § 1026.41.

The proposal stated that the Bureau believed this change also would reduce uncertainty about which loans to consider in determining a servicer's eligibility for one of the exemptions under § 1026.41(e), the small servicer exemption. Section 1026.41(e)(4)(ii) defines a small servicer as a servicer that services 5,000 or fewer mortgage loans, for all of which the servicer (or an affiliate) is the creditor or assignee.
35

The Bureau reasoned that the proposed text would have clarified that, in general, a servicer determines whether it is a small servicer by considering the closed-end consumer credit transactions secured by a dwelling that it services—including coupon book loans, which are exempt from some of the requirements of the periodic statement rule. The proposal noted that, pursuant to proposed § 1026.41(e)(4)(iii), reverse mortgages and transactions secured by consumers' interests in timeshares, which are exempt from all of the requirements of § 1026.41, would be excluded from consideration for purposes of determining small servicer status.

35
The proposal stated that Housing Finance Agencies are deemed small servicers under § 1026.41(e)(4)(ii)(B) regardless of loan count and loan ownership status.

The Bureau received no comments on its proposed change to the regulatory text of § 1026.41(a)(1) and therefore is adopting it as proposed. The Bureau did, however, receive comments regarding the mortgage loans covered by the small servicer exemption, and those comments are discussed below in the sections specifically addressing the small servicer exemption.

41(e) Exemptions

41(e)(4) Small Servicers

41(e)(4)(ii) Small Servicer Defined

The Proposal

The proposed rule explained that, for the reasons set forth in the 2013 Servicing Final Rules,
36

the Bureau determined that it was appropriate to exempt small servicers from certain mortgage servicing requirements. The proposal set forth the rules from which small servicers, as defined by § 1026.41(e)(4), are exempt: the Regulation Z requirement to provide periodic statements for residential mortgage loans
37

and, in Regulation X, (1) certain requirements relating to obtaining force-placed insurance,
38

(2) the general servicing policies, procedures, and requirements,
39

and (3) certain requirements and restrictions relating to communicating with borrowers about, and evaluation of applications for, loss mitigation options.
40

36

See, e.g.,
78 FR 10718-10720 (Feb. 14, 2013).

37
12 CFR 1026.41(e).

38
12 CFR 1024.17(k)(5).

39
12 CFR 1024.30(b)(1).

40

Id.

Scope and application of the small servicer exemption.
The Bureau's proposal would have clarified the scope and application of the small servicer

exemption. The proposal stated that determination of a servicer's status as a small servicer, and thus its eligibility for the small servicer exemption, is set forth in § 1026.41(e)(4) and that, as set forth above, this standard is applicable by cross-reference to certain provisions of Regulation X. The proposal pointed out that Regulation X applies to “federally related mortgage loans,” which excludes certain loans that are “mortgage loans” as defined by Regulation Z § 1026.41(a)(1). The proposed revision would have clarified that, to qualify for the small servicer exemption applicable to either rule, the servicer must qualify as a small servicer under § 1026.41(a)(1)—a determination based on closed-end consumer credit transactions secured by a dwelling. The proposal would have clarified that this Regulation Z standard applies regardless of whether or not the loans considered are subject to the requirements of Regulation X. The Bureau noted in the proposal that, although some mortgage loans not subject to coverage under Regulation X are considered for purposes of determining eligibility as a small servicer, servicing such loans under Regulation X rules would not be required. Thus, the Bureau posited, a servicer that services 5,000
federally related mortgage loans,
as defined by Regulation X, may service more than 5,000
mortgage loans,
as defined by Regulation Z § 1026.41(a)(1). The Bureau went on to explain that, in such a case, because the servicer's loans exceed the 5,000 mortgage loan limit, the servicer is not a small servicer and, thus, would not qualify for the small servicer exemption with regard to Regulation Z and Regulation X. The proposal reiterated that the servicer would not have to comply with Regulation X requirements for those mortgage loans counted for purposes of determining small servicer eligibility but which are not federally related mortgage loans. The proposal stated that by clarifying how a servicer determines whether it qualifies as a small servicer with regard to Regulation Z, the proposal also would have clarified how a servicer determines whether it qualifies for the small servicer exemptions from the applicable mortgage servicing requirements in Regulation X.

To ensure understanding of the small servicer exemption, the Bureau proposed to amend the commentary to § 1026.41(e)(4)(ii) to specifically identify which mortgage loans are considered for purposes of determining eligibility for the small servicer exemption. To this end, the Bureau proposed to add comment 41(e)(4)(ii)-1, which would have clarified that, in general and pursuant to § 1026.41(a)(1), the mortgage loans considered in determining qualification for the small servicer exemption are closed-end consumer credit transactions secured by a dwelling. Proposed comment 41(e)(4)(ii)-1 also would have highlighted that, pursuant to § 1026.41(e)(4)(iii), certain closed-end consumer credit transactions secured by a dwelling are not considered in determining status as a small servicer, as discussed further below in connection with proposed § 1026.41(e)(4)(iii).

The Bureau requested comments and data regarding whether proposed comment 41(e)(4)(ii)-1 would appropriately clarify the scope of mortgage loans that must be considered for determining if a servicer qualifies as a small servicer. The Bureau specifically requested comment and data regarding whether any servicers service a significant number of closed-end consumer credit transactions secured by a dwelling, which are subject to Regulation Z, but service significantly fewer “federally related mortgage loans,” which are subject to Regulation X. By way of example, the Bureau requested comment and data regarding whether any servicers would not be considered a small servicer if the small servicer exemption were based on whether a servicer services 5,000 or fewer closed end consumer credit transactions secured by a dwelling, but would be a small servicer if the small servicer exemption were based on whether a servicer services 5,000 or fewer “federally related mortgage loan[s],” as that term is defined in 12 CFR 1024.2. The proposal provided a specific example in a footnote of a servicer that services 10,000 construction loans, which are not considered “federally related mortgage loans” pursuant to 12 CFR 1024.2, and 100 mortgage loans that are considered “federally related mortgage loans” pursuant to 12 CFR 1024.2.
41

Such a servicer, the Bureau stated, would be considered to service 10,100 closed-end consumer credit transactions secured by a dwelling and would not qualify for the small servicer exemption. The proposal, however, underscored the fact that, in any case, only the 100 federally related mortgage loans serviced by the servicer would be subject to the mortgage servicing requirements set forth in Regulation X pursuant to 12 CFR 1024.31.

41
78 FR 25638, 25642 n.27 (May 2, 2013).

Comments

In response to its request for comment, the Bureau received several comments expressing general support for its proposed clarification of the scope of loans to consider in determining whether a servicer is a small servicer, and received no comments opposing the proposed clarification. Nor did the Bureau receive any data or comment with regard to servicers servicing a disproportionate number of federally related mortgage loans, as defined by Regulation X, compared to the number of “mortgage loans” they service, as defined by Regulation Z.

The Bureau also received a number of comments that were beyond the scope of the proposal. Three national trade associations urged the Bureau to revise the rule itself so that more servicers could qualify for the small servicer exemption, but provided no data or reasoning in support of this position. Similarly, a credit union trade association recommended that the Bureau revise the rule to consider only “federally related mortgage loans” instead of the more inclusive “mortgage loans,” as defined by the rule, but likewise provided no supporting data or reasoning. A trade association representing community banks generally urged the Bureau to reduce the loan pool used to determine small servicer status by limiting it to “federally related mortgage loans” and, in the alternative, specifically recommended carving out construction loans—one of the categories of loans not included in the definition of “federally related mortgage loans”—from the category of “mortgage loans.” The trade association set forth reasons why construction loans require less oversight than other mortgage loans. Finally, a trade association representing home builders voiced concern that the proposal's reference to construction loans in the footnote example might cause “confusion” which could result in community banks reducing their construction loan portfolio to preserve their small servicer status. To avoid this possibility, the trade association recommended excluding construction loans from the loans considered in determining small servicer status.

Final Rule

As stated above in section I, this final rule generally does not address comments not directly related to the clarifications and revisions proposed by the rule. Absent opposition or responsive comments and in view of the support the Bureau received for its

proposed clarification that the scope of loans considered in determining small servicer status are mortgage loans, as defined by § 1026.41, the Bureau is adopting comment 41(e)(4)(ii)-1 as proposed and declines to revise § 1026.41 with regard to the scope of loans considered in determining small servicer status.

The Proposal

Affiliate and master/subservicer relationships.
The Bureau also proposed to amend § 1026.41(e)(4)(ii)(A), which states that a small servicer is a servicer that “services 5,000 or fewer mortgage loans, for all of which the servicer (or an affiliate) is the creditor or assignee.” Proposed § 1026.41(e)(4)(ii)(A) would have provided clarification that, for purposes of determining small servicer status, a servicer considers the mortgage loans it services
together with any mortgage loans serviced by any affiliates.
This change, the Bureau explained, would conform that section with § 1026.41(e)(4)(iii), which states that small servicer status is determined by counting “the number of mortgage loans serviced by the servicer and any affiliates as of January 1 for the remainder of the calendar year.” To avoid any risk of inconsistency, the Bureau believed it would have been appropriate to amend § 1026.41(e)(4)(ii)(A) to conform the language to § 1026.41(e)(4)(iii) by adding the clause “together with any affiliates” such that a small servicer is a servicer that “services,
together with any affiliates,
5,000 or fewer mortgage loans, for all of which the servicer (or an affiliate) is the creditor or assignee.” As stated in the proposal, this change would more fully conform the language of § 1026.41(e)(4)(ii)(A) with the language of § 1026.41(e)(4)(iii) but would not change the meaning of the small servicer exemption.

The Bureau also proposed to amend the comments to § 1026.41(e)(4)(ii)(A). Specifically, comment 41(e)(4)(ii)-1 would have been redesignated as comment 41(e)(4)(ii)-2 and would have been amended to clarify several elements set forth in the 2013 TILA Servicing Final Rule. First, it would have clarified that there are two concurrent requirements for determining whether a servicer is a small servicer, as discussed further below. Second, it would have explained that the mortgage loans considered in making this determination are those serviced by the servicer as well as by its affiliates. Finally, it would have clarified that the second requirement of the small servicer test, that a servicer must be either the “creditor or assignee” of the mortgage loans it services, means that the servicer must either currently own or have originated all of the mortgage loans it services. The comment also would have provided examples to illustrate these points.

Proposed comment 41(e)(4)(ii)-2 would have set forth the two requirements for determining if a servicer is a small servicer and would have clarified that both requirements apply to the mortgage loans serviced by the servicer as well as by its affiliates. The comment would have set forth both requirements: (1) A servicer, together with its affiliates, must service 5,000 or fewer mortgage loans, and (2) the servicer must only service mortgage loans for which the servicer (or an affiliate) is the creditor or assignee. Proposed comment 41(e)(4)(ii)-2 further would have clarified that to be the “creditor or assignee” of a mortgage loan, the servicer (or an affiliate) must either currently own the mortgage loan or must have been the entity to which the mortgage loan was initially payable. It also would have clarified that a servicer that only services such mortgage loans may qualify as a small servicer so long as the servicer also only services 5,000 or fewer mortgage loans. The Bureau stated that it believed that this clarification would provide a helpful alternative way of expressing the requirement stated in the rule that the servicer or affiliate must also be the creditor or assignee of a mortgage loan.

Proposed comment 41(e)(4)(ii)-2 also would have provided examples of specific circumstances demonstrating these requirements. The first example would have illustrated the effect affiliation has on the loan count requirement of the small servicer test. Proposed comment 41(e)(4)(ii)-2.i stated that if a servicer services 3,000 mortgage loans, but is affiliated (as defined at § 1026.32(b)(2))
42

with another servicer that services 4,000 other mortgage loans, both servicers are considered to service 7,000 mortgage loans and neither servicer is considered a small servicer. The second example would have illustrated the ownership requirement of the small servicer test. Proposed comment 41(e)(4)(ii)-2.ii stated that if a servicer services 3,100 mortgage loans, including 100 mortgage loans it neither owns nor originated but for which it owns the mortgage servicing rights, the servicer is not a small servicer. The proposal explained that this is because the servicer services some mortgage loans for which the servicer (or an affiliate) is not the creditor or assignee, notwithstanding that the total number of mortgage loans serviced is fewer than 5,000.

42
The definition of “affiliate” for purposes of subpart E of Regulation Z, which includes § 1026.41, is set forth in § 1026.32(b)(2) and applies to all of subpart E, including the small servicer exemption. Affiliate, as defined in § 1026.32(b)(2), “means any company that controls, is controlled by, or is under common control with another company, as set forth in the Bank Holding Company Act of 1956 (12 U.S.C 1841
et seq.
).”

Finally, the Bureau proposed to redesignate comment 41(e)(4)(ii)-2 as 41(e)(4)(ii)-3 and to revise the comment so that it would provide further clarification regarding the application of the small servicer exemption in certain master servicer/subservicer relationships. Under the 2013 TILA Servicing Final Rule, the Bureau explained, comment 41(e)(4)(ii)-2 references Regulation X, 12 CFR 1024.31, for the definitions of “master servicer” and “subservicer” that apply to the rule. It also provided an example demonstrating that even though a master servicer meets the definition of a small servicer, a subservicer retained by that master servicer that does not meet the definition does not qualify for the small servicer exemption.

Proposed comment 41(e)(4)(ii)-3 would have clarified that a small servicer does not lose its small servicer status because it retains a subservicer, as that term is defined in 12 CFR 1024.31, to service any of its mortgage loans. The comment also would have clarified that, for a subservicer, as that term is defined in 12 CFR 1024.31, to gain the benefit of the small servicer exemption, both the master servicer and the subservicer must be small servicers. The comment also would have pointed out that, generally, a subservicer will not qualify as a small servicer because it does not own or did not originate the mortgage loans it subservices. However, the comment went on to state, a subservicer would qualify as a small servicer if it is an affiliate of a master servicer that qualifies as a small servicer.

Proposed comment 41(e)(4)(ii)-3 also would have removed the example in 2013 TILA Servicing Rule comment 41(e)(4)(ii)-2 described above in favor of three other examples that would have demonstrated the implication of a master servicer/subservicer relationship for purposes of qualifying for the small servicer exemption. In the first proposed example, a credit union services 4,000 mortgage loans—all of which it originated or owns. The credit union retains a credit union service organization to subservice 1,000 of the mortgage loans and the credit union services the remaining 3,000 mortgage loans itself. The credit union has no affiliation relationship with the credit union service organization. The credit

union is a small servicer and, thus, the small servicer exemption applies to the 3,000 mortgage loans the credit union services itself. The credit union service organization is not a small servicer because it services mortgage loans it does not own or did not originate. Accordingly, the credit union service organization does not gain the benefit of the small servicer exemption and, thus, must comply with any applicable mortgage servicing requirements for the 1,000 mortgage loans it subservices.

Proposed comment 41(e)(4)(ii)-3.ii would have posited the example of a bank holding company that, through a lender subsidiary, owns or originated 4,000 mortgage loans. In the example, all mortgage servicing rights for the 4,000 mortgage loans are owned by a wholly owned master servicer subsidiary. Servicing for the 4,000 mortgage loans is conducted by a wholly owned subservicer subsidiary. The bank holding company controls all of these subsidiaries and, thus, they are affiliates of the bank holding company pursuant § 1026.32(b)(2). Because the master servicer and subservicer service 5,000 or fewer mortgage loans and because the mortgage loans are owned or originated by an affiliate of each, the master servicer and the subservicer are each considered a small servicer and qualify for the small servicer exemption for all 4,000 mortgage loans.

Proposed comment 41(e)(4)(ii)-3.iii would have posited the example of a nonbank servicer that services 4,000 mortgage loans, all of which it originated or owns. The servicer retains a “component servicer” to assist it with servicing functions. The component servicer is not engaged in “servicing” as defined in 12 CFR 1024.2; that is, the component servicer does not receive any scheduled periodic payments from a borrower pursuant to the terms of any mortgage loan, including amounts for escrow accounts, and does not make the payments to the owner of the loan or other third parties of principal and interest and such other payments with respect to the amounts received from the borrower as may be required pursuant to the terms of the mortgage servicing loan documents or servicing contract. In this proposed example, the component servicer is not a subservicer pursuant to 12 CFR 1024.31 because it is not engaged in servicing, as that term is defined in 12 CFR 1024.2. The nonbank servicer is a small servicer and the small servicer exemption applies to all 4,000 mortgage loans it services.

Comments

Many commenters expressed their appreciation for the Bureau's clarification of the affiliate and master/subservicer relationships. Among them, a trade association representing the banking industry noted that the proposed clarification of the affiliate relationship was consistent with the regulation as issued by the Bureau. Several commenters submitted comments outside the scope of this rulemaking recommending that the Bureau reconsider altogether the inclusion of affiliate loans in determining eligibility for the small servicer exemption. A trade association representing credit union service organizations (CUSOs), a national and state trade association representing credit unions, and two individual credit unions raised concerns that the affiliate relationships some CUSOs have with one or more credit unions would prevent those CUSOs (and their credit union affiliates) from qualifying for the small servicer exemption. (The proposed example clarifying the master/subservicer relationship included a CUSO that was not an affiliate.) These commenters recommended that the Bureau either revise the rule to remove affiliates and their mortgage loans from consideration in determining small servicer status or that the Bureau provide clarification regarding how to take into account the loans of CUSO affiliates that are not wholly-owned by credit unions or of CUSOs with multiple owners. Two of the commenters explained that many credit unions have an affiliate relationship with a CUSO to facilitate mortgage lending and borrowing. The trade associations noted the many cases of multiple credit unions affiliating with a single CUSO in order to achieve economies of scale and to maintain competitiveness in the marketplace. They indicated that these arrangements are particularly important for small credit unions with limited capacity. The trade association representing CUSOs voiced concern that the affiliate requirement in § 1026.41 could have a chilling effect on the mortgage CUSO industry by encouraging credit unions to divest their interests in CUSOs to maintain their small servicer exemption or by discouraging credit unions that qualify as small servicers from investing in an affiliate relationship with a CUSO.

Final Rule

In view of the comments supporting the proposed clarification of affiliate and master/subservicer relationships with regard to small servicer qualification and in the absence of responsive comments to the contrary, the Bureau is adopting the clarifications as proposed. With respect to the comments outside the scope of this rulemaking recommending that the Bureau exclude the mortgage loans of affiliates from consideration in determining small servicer status, the Bureau declines to revise the rule. In addition to the fact that reopening consideration of a major policy decision would require notice and comment relatively late in the implementation process, the Bureau continues to believe that the reasons underlying the rule as set forth in the 2013 Servicing Final Rules are persuasive on the merits.

For clarification with regard to CUSOs and their relationships with one or more credit unions, the Bureau directs both the CUSOs and the credit unions to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
et seq.
) to determine whether their particular business relationships constitute affiliate relationships.
43

For further clarification, the Bureau notes that, pursuant to the affiliate requirement in § 1026.41, in any affiliate relationship with a CUSO, the total number of the mortgage loans of the affiliated entities must be considered in determining small servicer status. For example, for a credit union and its CUSO affiliate, the total number of mortgage loans serviced by both entities must be considered to determine the small servicer status for both the credit union and the CUSO.
44

The same is true for credit unions that are deemed affiliates under the Bank Holding Company Act of 1956.

43
Pursuant to § 1026.32(b)(2), § 1026.41 is subject to the definition of “affiliate” as set forth in the Bank Holding Company Act of 1956 (the Act).
See
proposed comment 41(e)(4)(ii)-3.ii. Under the Act, “affiliate” is defined as any company that controls, is controlled by, or is under common control with another company. The percentage of control is a determining factor in whether an affiliate relationship exists. The Bureau notes that, absent other determining factors, if a credit union's percentage of control over a CUSO falls below the statutory minimum, there would be no affiliate relationship.

44
For the small servicer status of a credit union/master servicer and the small servicer status of its
unaffiliated
CUSO/subservicer, see proposed comment 41(e)(4)(ii)-3.i, which the Bureau is adopting as proposed in this final rule.

41(e)(4)(iii) Small Servicer Determination

Section 1026.41(e)(4)(iii) of the 2013 TILA Servicing Final Rule sets forth certain criteria regarding how to determine if a servicer qualifies as a small servicer. In addition, that section explains that small servicer determination is based on the number of mortgage loans serviced by the servicer and any affiliates as of January 1 for the remainder of the calendar year. It also specifies that a servicer that “crosses the threshold,” and thus loses its small

servicer status and its small servicer exemption, has six months after crossing the threshold or until the next January 1, whichever is later, to comply with any requirements from which the servicer is no longer exempt.

The Proposal

To provide clarification regarding the date for determining small service status and when a servicer that loses small servicer status must begin to comply with regulations from which it had been exempt, and that those dates apply to both elements of the small servicer exemption (loan count and ownership status), proposed § 1026.41(e)(4)(iii) included a number of revisions to the 2013 TILA Servicing Final Rule § 1026.41(e)(4)(iii). First, proposed § 1026.41(e)(4)(iii) would have replaced the reference to a servicer that “crosses the threshold” for determining if the servicer qualifies as a small servicer with broader language indicating that a servicer that “ceases to qualify” as a small servicer will have six months or until the next January 1, whichever is later, to comply with any requirements for which a servicer is no longer exempt as a small servicer. The Bureau stated it believed that the broader phrase “ceases to qualify” would more accurately reflect the fact that there are two elements to determining if a servicer qualifies as a small servicer and pointed to the discussion above to underscore that either one of these elements could cause a servicer to lose exempt status.

Proposed § 1026.41(e)(4)(iii) therefore would have applied the transition period set out in the rule to situations in which a servicer no longer meets the loan count requirement as well as to situations in which the servicer no longer meets the requirement that the servicer is the creditor or assignee of all mortgage loans it services. Thus, the proposal stated, if a servicer exceeds the 5,000 mortgage loan limit or begins to service mortgage loans it does not own or did not originate, it must comply with any requirements from which it is no longer exempt by either the following January 1 or six months after the change in operations that disqualifies it as a small servicer, whichever is later. The proposal would have provided the example that, if on September 1 a servicer that previously qualified as a small servicer begins to service a mortgage loan that it does not own and did not originate, the servicer has until March 1 of the following year to comply with the requirements from which it was previously exempt as a small servicer.

Comments and Final Rule

The Bureau did not receive any responsive comments regarding the proposed clarifications discussed above, outside of general support for providing clarification regarding this issue. In order to clarify the timing provision, the Bureau is adopting the changes as proposed.

In this final rule, the Bureau also is revising a comment to § 1026.41(e)(4)(iii) that provides three examples of the timing for when a small servicer is no longer considered a small servicer and when that former small servicer must start complying with any requirements from which it previously was exempt as a small servicer. The Bureau is revising comment 41(e)(4)(iii)-2 to maintain consistency with and further clarify the changes to the regulatory text the Bureau is adopting in § 1026.41(e)(4)(iii), as discussed above.

To this end, the Bureau is revising the heading of comment 41(e)(4)(iii)-2. The Bureau is removing the reference to “threshold” and is amending the heading to read: “
Timing for small servicer exemption”
for the same reasons discussed above and to maintain consistency with the adopted regulatory changes to § 1026.41(e)(4)(iii). In addition, the Bureau is amending the examples in the comment to conform to and further clarify the changes the Bureau is adopting in the regulatory text. The first of the current examples states that a servicer that begins servicing more than 5,000 loans on October 1 and is servicing more than 5,000 loans as of January 1 of the following year would no longer be considered a small servicer on April 1 of that following year. The second current example states that a servicer that begins servicing more than 5,000 mortgage loans on February 1, and services more than 5,000 loans as of January 1 of the following year, would no longer be considered a small servicer on January 1 of that following year. The third example states that a servicer that begins servicing more than 5,000 mortgage loans on February 1, but services less than 5,000 loans as of January 1 of the following year, is considered a small servicer for that following year.

The revised examples clarify two points. The first point is that the application of the calendar dates apply to both elements of the small servicer test,
i.e.,
exceeding the allowable maximum number of loans serviced
and
servicing mortgage loans a servicer either does not own or did not originate. The second point of clarification is that January 1 is the date used to determine whether or not a servicer is considered a small servicer and the other dates (the latter of six months from the time the servicer ceases to be a small servicer or until the next January 1) are used to determine when a small servicer that has lost its small servicer status must begin complying with the regulations for which it had been exempt.

The first revised example explains that a small servicer that begins servicing more than 5,000 mortgage loans (or begins servicing one or more mortgage loans it does not own or did not originate) on October 1 and is servicing 5,000 mortgage loans (or services one or more mortgage loans it does not own or did not originate) as of January 1 of the following year, would no longer be considered a small servicer on January 1 of that following year and would have to comply with any requirements from which it is no longer exempt as a small servicer on April 1 of that following year. The second revised example states that a small servicer that begins servicing more than 5,000 mortgage loans (or begins servicing one or more mortgage loans it does not own or did not originate) on February 1, and services more than 5,000 mortgage loans (or begins servicing one or more mortgage loans it does not own or did not originate) as of January 1 of the following year, would no longer be considered a small servicer on January 1 of that following year and would have to comply with any requirements from which it is no longer exempt as a small servicer on that same January 1. The third revised example states that a servicer that begins servicing more than 5,000 mortgage loans (or begins servicing one or more mortgage loans it does not own or did not originate) on February 1, but services less than 5,000 mortgage loans (or no longer services mortgage loans it does not own or did not originate) as of January 1 of the following year, is considered a small servicer for that following year. In sum, the amended heading and examples conform to and provide further clarification of the proposed changes to the regulatory text discussed above that the Bureau is adopting in this final rule.

The Proposal

Consideration of loans serviced.
The proposed rule also would have added language to § 1026.41(e)(4)(iii) to specify which mortgage loans should not be considered in determining small servicer status. Proposed § 1026.41(e)(4)(iii) would have clarified that certain closed-end consumer credit transactions secured by a dwelling would not be considered for purposes of

determining whether a servicer qualifies as a small servicer. Specifically, the proposal went on to explain, because reverse mortgage transactions and mortgage loans secured by a consumer's interest in timeshare plans are exempt from § 1026.41, such loans are not considered when determining if a servicer is a small servicer. The proposed rule also would have clarified that, because coupon book loans are exempt only from some requirements of § 1026.41, such loans must be considered in determining whether a servicer is a small servicer.

The proposal also would have excluded from consideration in connection with the small servicer exemption, any mortgage loan voluntarily serviced by a servicer for a creditor or assignee that is not an affiliate of the servicer and for which the servicer does not receive any compensation or fees (“charitably serviced” mortgage loans). The Bureau explained that it had received feedback that certain servicers that otherwise would be considered small servicers voluntarily service mortgage loans for unaffiliated nonprofit entities for charitable purposes and do not receive compensation or fees from engaging in that servicing. The Bureau further explained that, if such charitably serviced mortgage loans were considered in connection with determining whether a servicer qualifies as a small servicer, a servicer engaging in this practice would not qualify for the small servicer exemption because the servicer would be servicing a mortgage loan it does not own or did not originate, notwithstanding that such servicer undertook to service those mortgage loans for charitable purposes.

The Bureau expressed concern that including charitably serviced mortgage loans in determining small servicer status would cause servicers to refrain from charitable servicing rather than lose the benefits of a small servicer exemption. The Bureau stated its belief that such a result would not further the goal of consumer protection for the affected consumers and might instead negatively affect the availability and costs of credit for consumers whose mortgage loans would otherwise be serviced pursuant to such charitable arrangements. Further, the Bureau believed that consumers would be more likely to receive superior service from an entity in the business of servicing that is willing to donate its services than they would if nonprofit entities that are not experienced in the business of servicing were forced to take on those duties themselves. Finally, the Bureau stated that it believed that the benefits of excluding charitably serviced mortgage loans from small servicer determination would outweigh the potential risks to consumers that exclusion may pose.

The Bureau proposed that, for the reasons set forth above and pursuant to the Bureau's exemption authority and authority to provide for adjustments and exceptions for any class of transactions as may be necessary or proper to effectuate the purposes of TILA, under TILA sections 105(a) and (f), mortgage loans voluntarily serviced by a servicer for a creditor or assignee that is not an affiliate of the servicer and for which the servicer does not receive any compensation or fees would not be considered in determining a servicer's qualification as a small servicer. The Bureau stated that it believed that considering such loans in determining if a servicer is a small servicer would defeat the purposes of TILA by penalizing charitable servicers, thereby dissuading them from engaging in charitable servicing to the detriment of the consumers that otherwise would benefit from this activity. The Bureau requested comment regarding whether it would be appropriate not to consider such mortgage loans when determining if a servicer qualifies for the small servicer exemption. The Bureau further requested comment on whether other mortgage loans serviced through similar limited arrangements should not be considered in determining whether a servicer is a small servicer. The Bureau emphasized in its proposed rule that it was neither reexamining nor seeking comment on the issue of exempting nonprofit entities engaged in mortgage servicing from the requirements of the periodic statement or any other mortgage servicing rule.

Finally, the Bureau proposed to add comment 41(e)(4)(iii)-3. Proposed comment 41(e)(4)(iii)-3 would have clarified that mortgage loans that are not considered for purposes of determining small servicer qualification pursuant to § 1026.41(e)(4)(iii), are not considered for determining either whether a servicer services, together with any affiliates, 5,000 or fewer mortgage loans or whether a servicer is servicing mortgage loans that it does not own or did not originate. Proposed comment 41(e)(4)(iii)-3 further would have posited the example of a servicer that services a total of 5,400 mortgage loans, of which the servicer owns or originated 4,800 mortgage loans, services 300 reverse mortgage transactions that it does not own or did not originate, and voluntarily services 300 mortgage loans that it does not own or did not originate for an unaffiliated nonprofit organization for which the servicer does not receive any compensation or fees. The example stated that neither the reverse mortgage transactions nor the mortgage loans voluntarily serviced by the servicer are considered for purposes of determining if the servicer is a small servicer. The example concluded that, because the only mortgage loans considered are the 4,800 other mortgage loans serviced by the servicer, and the servicer owns or originated each of those mortgage loans, the servicer is considered a small servicer and qualifies for the small servicer exemption with regard to all 5,400 mortgage loans it services. The comment also would have noted that reverse mortgages and transactions secured by a consumer's interest in timeshare plans, in addition to not being considered in determining small servicer qualification, also are
exempt
from the requirements of § 1026.41. In contrast, the proposed comment noted, although charitably serviced mortgage loans, as defined by § 1026.41(e)(4)(iii), are likewise not considered in determining small servicer qualification, they are
not exempt
from the requirements of § 1026.41. The comment thus would have clarified that a servicer that does
not
qualify as a small servicer would not be required to provide periodic statements for reverse mortgages and timeshare plans because they are exempt from the rule, but would be required to provide periodic statements for the mortgage loans it charitably services.

Legal authority.
The Bureau proposed to exclude charitably serviced mortgage loans and reverse mortgage transactions from consideration in determining a servicer's status as a small servicer for purposes of the small servicer exemption in § 1024.41(e)(4) pursuant to its authority to provide for adjustments and exceptions under TILA section 105(a) and (f).
45

The proposal went on to say that, with respect to charitably serviced mortgage loans, the Bureau believed, for the reasons described above, that declining to consider such mortgage loans for purposes of determining eligibility as a small servicer would effectuate the purposes of, and would facilitate compliance with TILA and Regulation Z. The proposal further stated that, consistent with TILA

section 105(f) and in light of the factors in that provision, the Bureau believed that requiring servicers to consider mortgage loans they charitably service for purposes of determining eligibility as a small servicer would cause mortgage servicers to withdraw from such charitable relationships and not provide a meaningful benefit to consumers in the form of useful information or protection. In addition, the Bureau expressed its concern regarding the extent to which any requirement to consider such loans would complicate, hinder, or make more expensive the credit process for such mortgage loan transactions, especially considering the status of the borrowers that typically secure mortgage loans that are charitably serviced. The Bureau said that ultimately it believed the goal of consumer protection would be undermined if it were to consider, for purposes of small servicer qualification, mortgage loans voluntarily serviced by a servicer for a creditor or assignee that is not an affiliate of the servicer and for which the servicer does not receive any compensation or fees.

45
The proposal stated that TILA section 128(f) requires periodic statements for “residential mortgage loans,” which, pursuant to TILA section 103(cc)(5), excludes transactions secured by consumers' interests in timeshare plans. For this reason, the proposed rule said, exception authority is not required to exclude such loans from consideration in determining if a servicer is a small servicer.

In the proposed rule, the Bureau said it similarly believed that not considering reverse mortgages in determining whether a servicer is a small servicer would effectuate the purposes of, and would facilitate compliance with, TILA and Regulation Z. The Bureau said it believed this for the same reasons set forth in the 2013 TILA Servicing Final Rule
46

exempting reverse mortgages from the requirements of § 1026.41. The Bureau pointed to the discussion in that final rule that the periodic statement requirements were designed for a traditional mortgage product and that information relevant and useful for consumers with reverse mortgages differs substantially from the information required on the periodic statement and, thus, would not provide a meaningful benefit to consumers of reverse mortgages. Finally, the proposal put forth the Bureau's belief that not considering reverse mortgages in determining whether a servicer is a small servicer is proper irrespective of the amount of the loan, the status of the consumer (including related financial arrangements, financial sophistication, and the importance to the consumer of the loan), or whether the loan is secured by the principal residence of the consumer.

46

See
78 FR 10901, 10973 (Feb. 14, 2013).

Comments and Final Rule

The Bureau received only positive comments regarding its proposed clarification that reverse mortgage transactions and mortgage loans secured by a consumer's interest in timeshare plans, which are exempt from all provisions of § 1026.41, are excluded from the loan pool used to determine eligibility for the small servicer exemption. However, one national trade association representing credit unions contested the Bureau's clarification that fixed-rate loans with coupon books must be considered for purposes of determining eligibility for the small servicer exemption. The commenter said that including fixed-rate loans with coupon books in the loan pool used to determine small servicer status but excluding them from the requirement to provide periodic statements would create confusion without providing adequate benefits. The Bureau disagrees and notes, as discussed above, that fixed-rate loans with coupon books are exempt only from some of the requirements of § 1026.41—as opposed to reverse mortgage transactions and mortgage loans secured by a consumer's interest in timeshare plans which are not subject to any of the requirements of § 1026.41. Servicers servicing fixed-rate loans with coupon books are exempt from the requirement to provide periodic statements for these loans under § 1026.41, but servicers nevertheless have to provide to consumers with such loans the information contained in the periodic statement, either in the coupon book or in some other form. Because servicers servicing fixed-rate loans with coupon books must comply with the requirements of § 1026.41 regarding those mortgage loans, it is appropriate that such loans would be considered in determining whether such servicers are small servicers and therefore exempt from complying with the requirements of § 1026.41 with regard to those loans. Conversely, it is appropriate to exclude reverse mortgage transactions and mortgage loans secured by a consumer's interest in timeshare plans from the loan pool used to determine small servicer status because, regardless of that servicer's small servicer status, there is no requirement for the servicer to comply with any of the requirements of § 1026.41 with regard to those loans.

The Bureau received strong support for its proposed revision of § 1026.41 to exclude charitably serviced loans from consideration in determining whether a servicer qualifies as a small servicer, that is, mortgage loans voluntarily serviced for a non-affiliate creditor or assignee and for which the servicer does not receive any compensation or fees. Commenters agreed that, absent the Bureau's proposal, small servicers likely would relinquish their volunteer efforts in order to preserve their small servicer status. In response to one commenter's request for clarification, the Bureau notes that its proposed revision of the rule with regard to volunteer servicing is not limited to the servicing of mortgage loans owned or originated by nonprofit organizations, although the Bureau suspects that most charitable servicing is done on behalf of such organizations. Due to the support received by the Bureau for its proposed revision of § 1026.41(e)(4)(iii)(A) excluding charitably serviced mortgage loans from the loan pool used to determine small servicer eligibility, and for the reasons stated above, the Bureau is adopting the revision as proposed.

In addition to requesting comment regarding the appropriateness of excluding charitably serviced mortgage loans when determining small servicer status, the proposal solicited comment on whether other mortgage loans serviced through similar limited arrangements should not be considered in determining whether a servicer is a small servicer. The Bureau did not receive comments recommending that any other servicing arrangements be excluded from consideration for purposes of determining small servicer status. The Bureau did receive a comment outside of the scope of the proposal from a national trade association requesting guidance regarding the trade association's conclusion that certain depository services some of its members provide for depositors who self-finance the sale of residential real estate do not qualify as “servicing,” as defined in 12 CFR 1024.2(b). The trade association explained that, for a minimal fee, some banks—usually small banks—receive mortgage payments from a borrower and deposit the funds into that customer's account. According to the trade association, the agreement between the bank and the depositor/creditor typically excludes any other services, such as providing servicing in the case of delinquency. The trade association expressed concern that small institutions will discontinue this service for their depository customers who owner-finance the sale of real property for fear of losing their small servicer status if the depository service could be construed as servicing mortgage loans that the bank does not own or did not originate.

Because the comment was outside the scope of the proposal, the Bureau declines to provide the requested guidance. Moreover, even if the comment were within the scope of the proposal, the Bureau is not able to

provide guidance at this juncture because the trade association did not provide sufficient information about the banking service described.

Section 1026.43 Minimum Standards for Transactions Secured by a Dwelling

43(e) Qualified Mortgages

43(e)(4) Qualified Mortgage Defined—Special Rules

The 2013 ATR Final Rule generally requires creditors to make a reasonable, good faith determination of a consumer's ability to repay any consumer credit transaction secured by a dwelling (excluding an open-end credit plan, timeshare plan, reverse mortgage, or temporary loan) and establishes certain protections from liability under this requirement for “qualified mortgages.” These provisions, in § 1026.43(c), (e)(2), (e)(4), (e)(5), (e)(6)
47

and (f), implement the requirements of TILA section 129C(a)(1) and the qualified mortgage provisions of TILA section 129C(b).

47
The May 2013 ATR Final Rule amended the 2013 ATR Final Rule in part by adding two new types of qualified mortgages, at § 1026.43(e)(5) and (6). See 78 FR 35430 (June 12, 2013).

To determine the qualified mortgage status of a loan, creditors must analyze whether the loan meets one of the definitions of “qualified mortgage” in § 1026.43(e)(2), (e)(4), (e)(5), (e)(6) or (f). Section 1026.43(e)(4) provides a definition of qualified mortgage for loans that (1) meet the prohibitions on certain risky loan features (
e.g.,
negative amortization and interest only features); (2) do not exceed certain limitations on points and fees under § 1026.43(e)(2); and (3) either are eligible for purchase or guarantee by one of the GSEs, while under the conservatorship of the Federal Housing Finance Agency, or are eligible to be insured or guaranteed by HUD under the National Housing Act (12 U.S.C. 1707
et seq.
), the VA, the USDA, or RHS.
48

HUD, VA, USDA, and RHS have authority under the Dodd-Frank Act to define qualified mortgage standards for the types of loans they insure, guarantee, or administer.
See
TILA section 129C(b)(3)(B)(ii). Coverage under § 1026.43(e)(4) for such loans will sunset once each agency promulgates its own qualified mortgage standards and such rules take effect. Coverage of GSE-eligible loans will sunset when conservatorship ends.

48
Eligibility standards for the GSEs and Federal agencies are available at: Fannie Mae,
Single Family Selling Guide,

https://www.fanniemae.com/content/guide/sel111312.pdf;
Freddie Mac,
Single-Family Seller/Servicer Guide,

http://www.freddiemac.com/sell/guide/;
HUD Handbook 4155.1,
http://www.hud.gov/offices/adm/hudclips/handbooks/hsgh/4155.1/41551HSGH.pdf;
Lenders Handbook—VA Pamphlet 26-7,
Web Automated Reference Material System (WARMS),

http://www.benefits.va.gov/warms/pam26_7.asp;

Underwriting Guidelines: USDA Rural Development Guaranteed Rural Housing Loan Program,

http://www.rurdev.usda.gov/SupportDocuments/CA-SFH-GRHUnderwritingGuide.pdf.

Even if the Federal agencies do not issue additional rules or conservatorship does not end, the temporary qualified mortgage definition in § 1026.43(e)(4) will expire seven years after the effective date of the rule.
49

Covered transactions that satisfy the requirements of § 1026.43(e)(4) that are consummated before the sunset of § 1026.43(e)(4) will retain their qualified mortgage status after the temporary definition expires. However, a loan consummated after the sunset of § 1026.43(e)(4) may be a qualified mortgage only if it satisfies the requirements of another qualified mortgage provision in effect at that time.

49
The rule's effective date is January 10, 2014, thus the § 1026.43(e)(4) qualified mortgage definition expires at the latest after January 10, 2021.

Eligibility Under GSE/Agency Guides and Automated Underwriting Systems

The Proposal

As adopted by the 2013 ATR Final Rule, comment 43(e)(4)-4 clarifies that, to satisfy § 1026.43(e)(4)(ii), a loan need not be actually purchased or guaranteed by a GSE or insured or guaranteed by HUD, VA, USDA, or RHS. Rather, § 1026.43(e)(4)(ii) requires only that the loan be eligible for such purchase, guarantee, or insurance. For example, the comment provides that, for purposes of § 1026.43(e)(4), a creditor is not required to sell a loan to a GSE for that loan to be a qualified mortgage. Rather, the loan must be eligible for purchase or guarantee by a GSE. The Commentary clarifies that, with respect to GSEs, to determine eligibility, a creditor may rely on an underwriting recommendation provided by one of the GSEs' automated underwriting systems (AUSs) or their written guides. Accordingly, with regard to the GSEs, the comment states that a covered transaction is eligible for purchase or guarantee by Fannie Mae or Freddie Mac (and therefore a qualified mortgage under § 1026.43(e)(4)) if: (i) the loan conforms to the standards set forth in the Fannie Mae Single-Family Selling Guide or the Freddie Mac Single-Family Seller/Servicer Guide; or (ii) the loan receives an “Approve/Eligible” recommendation from Desktop Underwriter (DU); or an “Accept and Eligible to Purchase” recommendation from Loan Prospector (LP).

The Bureau proposed to revise comment 43(e)(4)-4 in a number of ways. First, the proposal would have clarified that a creditor is not required to comply with all GSE or agency requirements to show qualified mortgage status. Specifically, the proposed revision made clear that the creditor need not comply with certain requirements that are wholly unrelated to a consumer's ability to repay, including activities related to selling, securitizing, or delivering consummated loans and any requirement the creditor is required to perform after the consummated loan is sold, guaranteed, or endorsed for insurance (in the case of agency loans) such as document custody, quality control, and servicing. These requirements are spelled out in the most depth in the GSE and agency written guides, but may also be referenced in automated underwriting system conditions and in written agreements with individual creditors, as discussed further below.

The Bureau believed that the proposed comment would clarify the intended scope of the temporary category of qualified mortgage created in § 1026.43(e)(4) and facilitate compliance with the provisions of Regulation Z adopted in the 2013 ATR Final Rule. As explained in the preamble to the final rule, the Bureau established § 1026.43(e)(4) as a temporary transition measure designed to ensure access to responsible, affordable credit for consumers with debt-to-income ratios that exceed the 43 percent threshold that the Bureau adopted as a bright-line standard in the permanent general definition of qualified mortgage under § 1026.43(e)(2) while creditors adapted to the new ATR rules and other changes in economic and regulatory conditions. The Bureau believed that using widely recognized underwriting standards of Federal agencies and entities under Federal conservatorship to define qualified mortgages during this interim period would both facilitate compliance and ensure responsible lending practices. The temporary provision therefore bases qualified mortgage status on
eligibility
for purchase, insurance, or guarantee, which requires use of the federally related underwriting standards, but does not require actual sale, guarantee, or insurance endorsement. Furthermore, the temporary provision requires that a qualified mortgage must be eligible at consummation.

However, the Bureau recognized in the proposed rule that the GSEs and agencies impose a wide variety of requirements relating not only to underwriting of potentially eligible loans, but also to the mechanics of sale, guarantee, or insurance and post-consummation activities. Because

underwriting is a complex process that involves assessment of the consumer's ability to repay the loan as well as other credit risk factors, the Bureau believed that it was appropriate to base qualified mortgage status under § 1026.43(e)(4) on the GSEs' and agencies' general standards concerning borrower, product, and mortgage eligibility and underwriting. While some of these underwriting requirements may be more closely or directly related to assessing a consumer's ability to repay than others, the Bureau believed that attempting to disaggregate them would be an extraordinarily complex task that would defeat the purposes of the temporary definition in adopting widely recognized standards to facilitate compliance and access to responsible credit. Where groups of requirements are wholly unrelated to underwriting (
i.e.,
wholly unrelated to assessing ability to repay and other risk-related factors), however, the Bureau believed that it was appropriate to specify that such requirements do not affect qualified mortgage status.

The Bureau believed that the items described in the comment would meet this test and provide greater clarity to the temporary definition of qualified mortgage. Because TILA requires assessment of a consumer's ability to repay a loan as of the time of consummation, the Bureau believed that GSE and agency requirements relating to post-consummation activity should not be relevant to qualified mortgage status. And because the temporary definition does not require actual purchase, guarantee, or insurance, the Bureau believed that it would not be appropriate to base qualified mortgage status on elements of the guides relating to the mechanics of actual delivery, purchase, guarantee, and endorsement. The Bureau recognized that most requirements wholly unrelated to underwriting involve post-consummation activity; however, pre-consummation GSE and agency requirements could also be wholly unrelated to underwriting. For example, the status of a creditor's approval or eligibility to do business with a GSE is not relevant for ascertaining qualified mortgage status using an AUS. The Bureau invited comment on this proposed clarification generally and on whether other GSE or agency requirements should be excluded.

Comments

Only one consumer group commented on the Bureau's inclusion of guidance stating that issues wholly unrelated to ability to repay would not affect a loan's QM status. This consumer group is also a nonprofit lender. Its comment suggested that the Bureau should state clearly those issues that are “related” to ability to repay, such as income or obligations that materially impact ability to repay, and violations of specific QM product restrictions, and rule out such things as credit score and appraisal requirements. This commenter also stated that failure to make this guidance clearer could reduce credit availability.

Industry commenters overwhelmingly supported the interpretation that issues wholly unrelated to ability to repay should not be considered in assessing the QM status of a loan under § 1026.43(e)(4). Most, however, also suggested that the guidance on what would be considered wholly unrelated to ability to repay should be clarified and the excluded items or categories expanded. Commenters agreed that failure to comply with post-consummation requirements should be excluded. As did the consumer group in the comment referenced above, some industry commenters requested that the Bureau make clear that items deemed related to ability to repay be limited to narrow issues of a borrower's ability to make the loan's payments, and that other risk-related factors be excluded. Specifically, commenters asked that factors related to willingness to repay (as opposed to ability to repay) and issues involving the attributes or defects of the collateral be excluded. Some commenters raised the issue of excluding jumbo loans.
50

Two commenters requested that a time limit be imposed so that repurchase or indemnification claims on seasoned loans would be disregarded. One commenter stated that income determinations are variable and subjective, so errors made in good faith should not invalidate QM status. Another commenter asked for guidance on some of the issues above, rather than specifically requesting exclusion.

50
Although one commenter asked that jumbo size, which renders a loan too large to be eligible for GSE purchase or guarantee, be deemed wholly unrelated to ability to repay, another commenter merely asked for guidance on whether or not jumbos would be excluded. The Bureau stated in the January 2013 final rule that the temporary qualified mortgage definition does not include “jumbo” loans in 1026.43(e)(4), given, in part, that the Bureau views the jumbo market as already robust and stable. Excluding jumbo loan size eligibility conditions for GSEs would effectively reverse the Bureau's conclusion on this matter. The Bureau continues to believe that the jumbo loan market does not need the benefit of temporary qualified mortgage definition and notes that jumbo loans can be qualified mortgages to the extent that they meet the other qualified mortgage definitions.

In addition, commenters generally suggested that various other topics should be specifically listed as wholly unrelated to ability to repay, including: (1) Failure to comply with laws and regulations, including consumer protection laws and regulations; (2) purchase of a state-issued title guarantee for loans held in portfolio; (3) delayed note certification; (4) Ginnie Mae modification; (5) early buy-out programs; (6) non-material technical defects triggering repurchase or indemnification; and (7) “additional repurchase requirements.”

The two GSEs both commented on the proposed rule, and both discussed the “wholly unrelated to ability to repay” guidance. One specifically stated support for the guidance, and both urged the Bureau to state that collateral-related issues were wholly unrelated to ability to repay.

Final Rule

The Bureau adopts the guidance on issues of what is wholly unrelated to ability to repay substantially as proposed, but has adopted the standard in the regulatory text to harmonize the eligibility requirements that must be met for the temporary qualified mortgage definition under the rule with those permitted under the Commentary. In addition, comment 43(e)(4)-4 has been revised to state that matters wholly unrelated to ability to repay are those matters that are wholly unrelated to credit risk or the underwriting of the loan, and to provide more detailed guidance on applying the standard.

As stated in the proposed rule, underwriting is a complex process that involves assessment of the consumer's ability to repay the loan as well as a variety of other credit risk factors. The Bureau made a deliberate decision in the 2013 ATR Final Rule to base qualified mortgage status under § 1026.43(e)(4) on the GSEs' and agencies' general underwriting and credit risk analysis standards. While some of these factors may be more closely and directly focused on consumers' ability to repay than others, the Bureau continues to believe that attempting to disaggregate GSE and agency underwriting requirements based on degree of relationship to ability to repay would be an extraordinarily complex task that would defeat the purposes of the temporary definition in adopting widely recognized standards to facilitate compliance and access to responsible credit. Indeed, the statute itself requires consideration of a borrower's credit history, which could relate to willingness as well as ability to repay. Exclusion of requirements regarding collateral and other risk-related factors

would require line-drawing exercises that could potentially interfere with the regulatory purpose. Moreover, allowing disaggregation would not be consistent with the use of AUS determinations to demonstrate compliance, as they involve interdependent risk factors and do not focus solely on a borrower's capacity to make payments.

The Bureau has revised the final comment to add an express general statement that matters wholly unrelated to ability to repay are those matters wholly unrelated to credit risk or the underwriting of the loan. The Bureau believes that this language, in conjunction with the reference to specific sets of requirements that are wholly unrelated to assessing ability to repay at the time of consummation (such as those related to selling, securitizing, or delivering consummated loans), provides useful guidance to stakeholders.

As stated in the proposed rule, and consistent with the final rule, QM status depends on eligibility for sale, insurance, or guarantee at consummation, not on an actual executed sale, insuring, or guarantee of the individual loan. Accordingly, the Bureau considers events occurring after consummation and GSE and agency requirements concerning execution of an actual sale, insuring, or guarantee of the loan to be wholly unrelated to ability to repay.
51

In addition, the Bureau believes that in regard to very limited matters, such as the status of a creditor's approval or eligibility to do business with a GSE, additional pre-consummation occurrences may also be wholly unrelated to ability to repay. Accordingly, the Bureau has revised the language in the final comment to identify specifically that these sets of requirements are considered wholly unrelated to ability to repay for purposes of the rule.

51
Because the determination is based on the situation at consummation, the later repayment history or “seasoning” of the loan would not be an appropriate metric for this standard.

Although the Bureau has reviewed many of the requests for determinations as to particular requirements in the comments received, the Bureau notes that with respect to certain of these inquiries, there was not sufficient detail or background information to discern the precise nature of the request or question. For instance, commenters' bare suggestion that “additional purchase requirements” be deemed wholly unrelated to ability to repay was simply too vague to analyze, and would require further specification in order to apply the standard.

Use of Automated Underwriting Systems

The Proposal

The Bureau also proposed to revise comment 43(e)(4)-4 to clarify eligibility as determined by an automated underwriting system of a GSE or one of the agencies. As explained in comment 43(e)(4)-4 as adopted in the 2013 ATR Final Rule, the AUSs and the written guides of the GSEs as well as the agencies can be used for eligibility purposes under § 1026.43(e)(4). The proposed revision of the comment explained that to rely upon an AUS recommendation to demonstrate qualified mortgage status a creditor must have (1) accurately inputted the loan information into the automated system, and (2) satisfied any accompanying requirements or conditions to the AUS approval that would otherwise invalidate the recommendation, unless, as discussed above, the conditions are wholly unrelated to the consumer's ability to repay. The comment as adopted in the 2013 ATR Final Rule assumed that any recommendation used for compliance would be valid, and these clarifications merely listed two criteria that should be monitored to ensure that validity. In particular, because the AUSs generate a list of conditions that must be met in support of the approval designation, the Bureau believed that those conditions must be satisfied to show eligibility for purchase, guarantee, or insurance. The Bureau sought comment on these revisions as well and also proposed technical edits to comment 43(e)(4)-4 for clarity and accuracy.

Comments

The consumer and community group commenters did not discuss the guidance in comment 43(e)(4)-4 requiring that an AUS determination be based on accurate inputs, and that the creditor comply with any requirements and conditions specified by the AUS. About half of the industry commenters that specifically discussed this guidance supported its inclusion. Industry commenters asked that the Bureau make clear that QM status will not be invalidated by minor inaccuracies and by inaccuracies that would not change the outcome of the AUS determination. One commenter stated that it will not be possible to determine whether or not a loan would have been approved with accurate inputs.

Final Rule

The Bureau adopts the comment as proposed, with minor edits for clarity. As stated in the regulation, a loan is a QM if it is eligible for purchase, insurance or guarantee by a GSE or agency other than with regard to issues wholly unrelated to ability to repay, and meets the other relevant requirements. For this reason, minor inaccuracies in input data that do not affect eligibility will not affect QM status. The Bureau believes the convenience and ease of compliance made possible by this provision are more important than avoiding those few situations in which it is difficult to determine which inaccuracies will affect the AUS outcome.

Although the reference to issues wholly unrelated to ability to repay in the main paragraph of the proposed comment applied to the requirements and conditions accompanying an AUS determination, and unquestionably do now that the standard is in the regulatory language, the Bureau believes that repeating such language in paragraph ii will enhance the clarity of the comment, and is doing so.

Effect of Written Contract Variances

The Proposal

The Bureau also proposed to revise comment 43(e)(4)-4 in a third way to clarify further that a loan meeting eligibility requirements provided in a written agreement between the creditor and a GSE or agency that permits variation from the standards of the written guides and/or AUSs in effect at the time of consummation is also eligible for purchase or guarantee by the GSEs or insurance or guarantee by the agencies for the purposes of § 1026.43(e)(4). Thus, such loans would be qualified mortgages. The Bureau recognized that these agreements between creditors and the GSEs or agencies effectively constitute modification of, or substitutes for, the general manuals or AUSs with regard to these creditors. In many cases, the agreements allow the creditors to use other automated underwriting systems rather than the GSE or agency systems, subject to certain conditions or limitations on which loans the GSE or agency will accept as eligible for purchase, guarantee, or insurance. The Bureau believed that it was therefore appropriate for the purposes of § 1026.43(e)(4) to consider the agreements to be equivalent to the standard written guides for purposes of the specific creditor to which the agreement applies. Many of these agreements are necessary to accommodate local and regional market variations and other considerations that do not substantially relate to ATR-related underwriting criteria and

therefore are generally consistent with the consumer protection and other purposes of the rule. However, the Bureau did not believe that it would be appropriate to allow one creditor to rely on the terms specified in another creditor's written agreement with a GSE or agency to establish qualified mortgage status, as the written agreements are individually negotiated and monitored. The Bureau sought comment on this proposed clarification generally and on whether other variations on standard guides and eligibility criteria should be considered.

Comments

Two consumer and community group commenters discussed the use of variances with § 1026.43(e)(4). One comment, from a group of organizations, stated that allowing use of variances was a mistake because the agreements are private and this would make them very difficult for consumers to enforce when they are violated. This comment also suggested that if the variance provision is adopted the Bureau should make clear that a borrower would have access to such variance agreements by sending a qualified written request under RESPA. The other consumer group commenter, which operates a nonprofit lender, supported the use of variances as provided in the comment.

Industry commenters were very supportive of allowing the use of variances. However, one association representing credit unions opposed allowing the use of variances, stating that it would disadvantage smaller market participants. A real estate association commented that variances should be allowed but should be required to be made public so that any creditor could request use of their terms. Other industry commenters requested that the Bureau make clear that later assignees could rely on the QM status of loans originated pursuant to a variance. Another commenter asked that the Bureau specify that, in order to be relied on, a variance must be in effect at the time of consummation of the loan.

Several industry commenters pointed out that these variances are often used with correspondent lenders, and the creditor who has negotiated the variance agreement acts as an aggregator or sponsor, pooling loans originated by others. They stated that the comment as proposed would present a problem because it states that the variance can only be used by a creditor who is a party to the agreement with the GSE. They further stated that this problem could interfere with the origination of a large number of loans that meet the GSEs' standards, and argued that correspondent lenders should be allowed to rely on the variances of their sponsors or aggregators. One large bank, however, opposed the idea of allowing one creditor to rely on another's variance, stating that this might allow loans to become QMs after consummation.

One of the GSEs provided comment on the variance provision, strongly supporting it, and pointing out in addition that both GSEs sometimes grant individual loan waivers of their standards. The GSE stated that these waivers do not proceed from an increase in its appetite for risk, and are only granted “on an exceptional basis,” and that they should be treated the same as the negotiated variances. One industry association also asked that such individual waivers be treated this way.

Final Rule

The language regarding variances is adopted substantially as proposed, with two important changes. The Bureau agrees that disallowing correspondent use of variances would interfere unduly with the market, and is adding language to clarify use in such circumstances without allowing wholly unrelated entities to rely on some other creditor's agreement. Also, the Bureau believes that individual waivers granted by the GSEs should benefit from the same treatment as creditor-specific variances negotiated with the GSEs.

As with all the QM provisions, the status of a loan is determined at the time of consummation. The variance applied to a transaction must be in effect at the time a loan is consummated, and the loan must meet all relevant requirements at that time. For this reason, a loan cannot be retroactively made into a QM by a creditor or assignee. In addition, because the status is determined at consummation, later assignees can rely on that status if it is valid. Allowing correspondents to rely on the variances of their sponsors or aggregators in effect at the time of consummation will not change this situation, and it will help to alleviate concerns that only larger market participants may take advantage of negotiated variances. The language of comment 43(e)(4)-4 has been crafted to ensure that the correspondent is involved in a direct relationship with the variance holder and originating the QM pursuant to that relationship.

In addition, the Bureau does not believe that allowing use of variances will disadvantage smaller market participants, since it is intended only to maintain the current market situation. Although variances are private agreements, with the potential for attendant disadvantages described by commenters above such as difficulty of enforcement, the Bureau does not believe it is appropriate to regulate transparency for these agreements through this narrowly focused amendatory rulemaking, without further review. As always, the Bureau will monitor the effects of its rules on the marketplace going forward.

The Bureau has decided to allow loans benefitting from individual waivers granted by the GSEs to be treated the same as loans originated following negotiated variances. The Bureau has no reason to believe that these loans present undue risk to consumers, and notes that the GSEs are under government conservatorship.

The provision regarding variances is adopted as proposed, with the two changes discussed above.

Repurchase and Indemnification Demands

The Proposal

The Bureau also proposed new comment 43(e)(4)-5 to provide additional clarification on how repurchase and indemnification demands by the GSEs and agencies may affect the qualified mortgage status of a loan. The proposed comment did not amend the meaning of the current rule but clarified how a determination of the qualified mortgage status of a loan should be understood in relation to claims that the loan was not eligible for purchase, insurance, or guarantee and therefore not a qualified mortgage. In making the proposal, the Bureau understood that facts upon which eligibility status was determined at or before consummation could later be found to be incorrect. Often, a repurchase or indemnification demand by a GSE or an agency involves such issues. However, the mere occurrence of a GSE or agency demand that a creditor repurchase a loan or indemnify the agency for an insurance claim does not necessarily mean that the loan is not a qualified mortgage.

Proposed comment 43(e)(4)-5 would have provided that a repurchase or indemnification demand by the GSEs, HUD, VA, USDA, or RHS is not dispositive in ascertaining qualified mortgage status. Much as qualified mortgage status under the general definition in § 1026.43(e)(2) may typically turn on whether the consumer's debt-to-income ratio at the time of consummation was equal to or less than 43 percent, qualified mortgage status under § 1026.43(e)(4) may typically turn on whether the loan was eligible for purchase, guarantee, or

insurance at the time of consummation. Thus, for example, a demand for repurchase or indemnification based on post-consummation GSE or agency requirements would therefore not be relevant to qualified mortgage status. As indicated above, such factors meet the wholly unrelated to ability to repay standard that the Bureau is finalizing in § 1026.43(e)(4). Only reasons for a repurchase or indemnification demand that specifically apply to the qualified mortgage status of the loan under § 1026.43(e)(4) would be relevant, as discussed above in connection with comment 43(e)(4)-4. Moreover, the mere fact that a demand has been made, or even resolved, between a creditor and GSE or agency is not dispositive with regard to eligibility for purposes of § 1026.43(e)(4), as those parties are involved in an ongoing business relationship rather than an adjudicatory process. However, evidence of whether a particular loan satisfied the § 1026.43(e)(4) eligibility criteria at consummation may be brought to light in the course of dealings over a particular demand, depending on the facts and circumstances. Such evidence—like any evidence discovered after consummation that relates to th

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2013-16962. Public record. Not legal advice.