[Federal Register: March 14, 2008 (Volume 73, Number 51)]
[Proposed Rules]
[Page 14029-14124]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14mr08-25]
[[Page 14029]]
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Part III
Department of Housing and Urban Development
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24 CFR Parts 203 and 3500
Real Estate Settlement Procedures Act (RESPA): Proposed Rule To
Simplify and Improve the Process of Obtaining Mortgages and Reduce
Consumer Settlement Costs; Proposed Rule
[[Page 14030]]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Parts 203 and 3500
[Docket No. FR-5180-P-01]
RIN 2502-AI61
Real Estate Settlement Procedures Act (RESPA): Proposed Rule To
Simplify and Improve the Process of Obtaining Mortgages and Reduce
Consumer Settlement Costs
AGENCY: Office of the Assistant Secretary for Housing--Federal Housing
Commissioner, HUD.
ACTION: Proposed rule.
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SUMMARY: This proposed rule presents HUD's proposal to simplify and
improve the disclosure requirements for mortgage settlement costs under
the Real Estate Settlement Procedures Act of 1974 (RESPA), to protect
consumers from unnecessarily high settlement costs. This proposed rule
takes into consideration: discussions during HUD's RESPA Reform
Roundtables held in July and August 2005; public comments in response
to HUD's July 29, 2002, proposed rule that addressed RESPA reform; and
comments received and views expressed through congressional hearings;
meetings with affected parties; and consultation with other federal
agencies, including the Small Business Administration Office of
Advocacy.
HUD's objective in proposing these revisions is to protect
consumers from unnecessarily high settlement costs by taking steps to:
Improve and standardize the Good Faith Estimate (GFE) form, to make it
easier to use for shopping among settlement service providers; ensure
that page one of the GFE provides a clear summary of the loan terms and
total settlement charges so that borrowers will be able to use the GFE
to comparison shop among loan originators for a mortgage loan; provide
more accurate estimates of costs of settlement services shown on the
GFE; improve disclosure of yield spread premiums to help borrowers
understand how they can affect their settlement charges; facilitate
comparison of the GFE and the HUD-1/HUD-1A Settlement Statements (HUD-1
settlement statement or HUD-1); ensure that at settlement borrowers are
made aware of final loan terms and settlement costs, by reading and
providing a copy of a ``closing script'' to borrowers; clarify HUD-1
instructions; clarify HUD's current regulations concerning discounts;
and expressly state when RESPA permits certain pricing mechanisms that
benefit consumers, including average cost pricing and discounts,
including volume based discounts.
DATES: Comment Due Date: May 13, 2008.
ADDRESSES: Interested persons are invited to submit comments regarding
this proposed rule. There are two methods for comments to be submitted
as public comments and to be included in the public comment docket for
this rule. Regardless of the method selected, all submissions must
refer to the above docket number and title.
1. Submission of Comments by Mail. Comments may be submitted by
mail to the Regulations Division, Office of General Counsel, Department
of Housing and Urban Development, 451 Seventh Street, SW., Room 10276,
Washington, DC 20410-0001.
2. Electronic Submission of Comments. Interested persons may submit
comments electronically through the Federal eRulemaking Portal at
www.regulations.gov. HUD strongly encourages commenters to submit
comments electronically. Electronic submission of comments allows
commenters maximum time to prepare and submit comments, ensures timely
receipt by HUD, and enables HUD to make them immediately available to
the public. Comments submitted electronically through the
www.regulations.gov Web site can be viewed by other commenters and
interested members of the public. Commenters should follow the
instructions provided on that site to submit comments electronically.
Note: To receive consideration as public comments, comments must
be submitted through one of the two methods specified above. Again,
all submissions must refer to the docket number and title of the
rule. No Facsimile Comments. Facsimile (FAX) comments are not
acceptable.
Public Inspection of Public Comments. All properly submitted
comments and communications submitted to HUD will be available, without
charge, for public inspection and copying between 8 a.m. and 5 p.m.
weekdays at the above address. Due to security measures at the HUD
Headquarters building, an advance appointment to review the public
comments must be scheduled by calling the Regulations Division at (202)
708-3055 (this is not a toll-free number). Individuals with speech or
hearing impairments may access this number through TTY by calling the
toll-free Federal Information Relay Service at (800) 877-8339. Copies
of all comments submitted are available for inspection and downloading
at www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Ivy Jackson, Director, or Barton
Shapiro, Deputy Director, Office of RESPA and Interstate Land Sales,
U.S. Department of Housing and Urban Development, 451 Seventh Street,
SW., Room 9158, Washington, DC 20410; telephone number (202) 708-0502
(this is not a toll-free number). For legal questions, contact Paul S.
Ceja, Assistant General Counsel for GSE/RESPA, Joan L. Kayagil, Deputy
Assistant General Counsel for GSE/RESPA or Rhonda L. Daniels, Attorney-
Advisor for GSE/RESPA, Room 9262; telephone number (202) 708-3137.
Persons with hearing or speech impairments may access this number via
TTY by calling the toll-free Federal Information Relay Service at (800)
877-8339. The address for the above listed persons is: Department of
Housing and Urban Development, 451 Seventh Street, SW., Washington, DC
20410.
SUPPLEMENTARY INFORMATION:
I. Introduction and Principles
The process for disclosing settlement costs in the financing or
refinancing of a home is regulated under RESPA, 12 U.S.C. 2601-2617.
HUD seeks to make improvements to its regulations implementing RESPA
(24 CFR part 3500), to make the process clearer and more useful and
ultimately less costly for consumers. The mortgage industry has changed
considerably since RESPA was enacted in 1974, and the regulations
implementing RESPA's original disclosure requirements are no longer
adequate.
The settlement costs associated with a mortgage loan are
significant. In the case of purchase transactions, these costs can
become an impediment to homeownership, particularly for low- and
moderate-income households. HUD's current RESPA rules do not facilitate
shopping or competition to lower these costs. HUD estimates that with
the changes proposed to its RESPA regulations in this rulemaking,
settlement costs will be lowered by $6.5 to $8.4 billion annually, with
an average savings of $518 to $670 per transaction.
RESPA's purposes include the provision of effective advance
disclosure of settlement costs and elimination of practices that tend
to unnecessarily increase the costs of settlement services. Similarly,
the Administration is committed to extending homeownership
opportunities. HUD's regulatory reform and enforcement efforts for
RESPA
[[Page 14031]]
remain guided by the following principles:
1. Borrowers should receive loan terms and settlement cost
information early enough in the process to allow them to shop for the
mortgage product and settlement services that best meet their needs;
2. Costs should be disclosed and should be as firm as possible to
avoid surprise charges at settlement;
3. Many of the current problems arise from the complexity of the
mortgage loan settlement process. The process can be improved with
simplification of disclosures and better borrower information;
4. Increased shopping by borrowers will lead to greater pricing
competition, so that market forces will lower prices and lessen the
need for regulatory enforcement;
5. The key final terms of the loan a borrower receives should be
disclosed to the borrower in an understandable way at closing; and
6. HUD will continue to vigorously enforce RESPA to protect
borrowers and ensure that honest settlement service providers can
compete for business on a level playing field.
II. RESPA Overview
Congress enacted the Real Estate Settlement Procedures Act of 1974
(Pub. L. 93-533, 88 Stat. 1724, 12 U.S.C. 2601-2617) after finding that
``significant reforms in the real estate settlement process are needed
to ensure that consumers throughout the Nation are provided with
greater and more timely information on the nature and costs of the
settlement process and are protected from unnecessarily high settlement
charges caused by certain abusive practices * * *.'' (12 U.S.C.
2601(a)). RESPA's stated purpose is to ``effect certain changes in the
settlement process for residential real estate that will result:
``(1) In more effective advance disclosure to home buyers and
sellers of settlement costs;
``(2) In the elimination of kickbacks or referral fees that tend
to increase unnecessarily the costs of certain settlement services;
``(3) In a reduction in the amounts home buyers are required to
place in escrow accounts established to insure the payment of real
estate taxes and insurance; and
``(4) In significant reform and modernization of local
recordkeeping of land title information.'' (12 U.S.C. 2601(b)).
RESPA's requirements apply to transactions involving ``settlement
services'' for ``federally related mortgage loans.'' Under the statute,
the term ``settlement services'' includes any service provided in
connection with a real estate settlement.\1\ The term ``federally
related mortgage loan'' is broadly defined to encompass virtually all
purchase money and refinance mortgages.\2\
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\1\ ``Settlement services'' include ``* * * title searches,
title examinations, the provision of title certificates, title
insurance, services rendered by an attorney, the preparation of
documents, property surveys, the rendering of credit reports or
appraisals, pest and fungus inspections, services rendered by a real
estate agent or broker, the origination of a federally related
mortgage loan (including, but not limited to, the taking of loan
applications, loan processing, and the underwriting and funding of
loans), and the handling of the processing, and closing of
settlement.'' 12 U.S.C. 2602(3). The term is further defined at 24
CFR 3500.2.
\2\ The term ``federally related mortgage loan'' generally
includes a loan that both: (i) Is ``secured by a first or
subordinate lien on residential real property (including individual
units of condominiums and cooperatives) designed principally for the
occupancy of from one to four families''; and (ii) is ``made in
whole or in part by any lender the deposits or accounts of which are
insured by any agency of the Federal Government, or is made in whole
or in part by any lender which is regulated by any agency of the
Federal Government''; or ``is made * * * or insured, guaranteed,
supplemented, or assisted in any way, by [HUD] or any other officer
or agency of the Federal Government or * * * in connection with a
housing or urban development program administered by [HUD]'' or
other federal officer or agency; or ``is intended to be sold * * *
to [Fannie Mae, Ginnie Mae, Freddie Mac], or a financial institution
from which it is to be purchased by [Freddie Mac]; or is made in
whole or in part by any creditor * * * who makes or invests in
residential real estate loans aggregating more than $1,000,000 per
year * * *.'' 12 U.S.C. 2602(1).
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Section 4(a) of RESPA (12 U.S.C. 2603(a)) requires the Secretary to
develop and prescribe ``a standard form for the statement of settlement
costs which shall be used * * * as the standard real estate settlement
form in all transactions in the United States which involve federally
related mortgage loans.'' The law further requires that the form
``conspicuously and clearly itemize all charges imposed upon the
borrower and all charges imposed upon the seller in connection with the
settlement * * *'' (Id).
Section 5 of RESPA (12 U.S.C. 2604) requires the Secretary to
prescribe a Special Information Booklet for borrowers. Sections 5(c)
and (d) of RESPA require each lender to provide a Good Faith Estimate
(GFE), as prescribed by the Secretary, within 3 days of loan
application, and that the GFE state ``the amount or range of charges
for specific settlement services the borrower is likely to incur in
connection with the settlement * * *.''
In 1990, language was added in Section 6 of RESPA (12 U.S.C. 2605)
to require certain disclosures to each borrower, both at the time of
loan application and during the life of the loan, about the servicing
of the loan.
Section 8(a) of RESPA (12 U.S.C. 2607(a)) prohibits persons from
giving and from accepting ``any fee, kickback, or thing of value
pursuant to any agreement or understanding, oral or otherwise, that
[real estate settlement service business] shall be referred to any
person'' (12 U.S.C. 2607(a)). Section 8(b) of RESPA prohibits persons
from giving and from accepting ``any portion, split, or percentage of
any charge made or received for the rendering of a real estate
settlement service * * * other than for services actually performed''
(12 U.S.C. 2607(b)). Section 8(c) provides, in part, that ``[n]othing
in [Section 8] shall be construed as prohibiting * * * (2) the payment
to any person of a bona fide salary or compensation or other payment
for goods or facilities actually furnished or for services actually
performed, * * * or (5) such other payments or classes of payments or
other transfers as are specified in regulations prescribed by the
Secretary, after consultation with the Attorney General, the
Administrator of Veterans' Affairs, the Federal Home Loan Bank
Board,\3\ the Federal Deposit Insurance Corporation, the Board of
Governors of the Federal Reserve System, and the Secretary of
Agriculture'' (12 U.S.C. 2607(c)(2)).
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\3\ The Federal Home Loan Bank Board (FHLBB) was abolished
effective October 8, 1989, by the Financial Institutions Reform,
Recovery, and Enforcement Act of 1989 (FIRREA) (Pub. L. 101-73, 103
Stat. 183). Its successor agency, the Office of Thrift Supervision,
Department of the Treasury, assumed the FHLBB's regulatory
functions. 12 U.S.C. 1462a(e).
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Section 9 of RESPA (12 U.S.C. 2608) forbids any seller of property
from requiring, directly or indirectly, buyers to purchase title
insurance covering the property from any particular title company.
Section 10 of RESPA (12 U.S.C. 2609) limits the amounts that lenders or
servicers may require borrowers to deposit in escrow accounts, and
requires servicers to provide borrowers with both initial and annual
escrow account statements. Section 12 of RESPA (12 U.S.C. 2610)
prohibits lenders and loan servicers from imposing any fee or charge on
any other person for the preparation and submission of the uniform
settlement statement required under Section 4 of RESPA or the escrow
account statements required under Section 10(c) of RESPA, or for any
statements required by the Truth in Lending Act (TILA).
Section 18 of RESPA (12 U.S.C. 2616) provides that the Act does not
annul, alter, affect, or exempt any person from complying with the laws
of any State with respect to settlement practices,
[[Page 14032]]
``except to the extent that those laws are inconsistent with any
provision of [RESPA], and then only to the extent of the
inconsistency.'' Section 18 further authorizes the Secretary to
determine whether such inconsistencies exist, but provides that the
Secretary may not determine a State law to be inconsistent with RESPA
if the Secretary determines the State law gives greater protection to
consumers.
Section 19 of RESPA (12 U.S.C. 2617), among other provisions,
authorizes the Secretary to seek to achieve the purposes of RESPA by
prescribing regulations, making interpretations, and granting
reasonable exemptions for classes of transactions.
III. Overview of HUD's Efforts Since 2002
On July 29, 2002 (67 FR 49134), HUD issued a proposed RESPA reform
rule ``Real Estate Settlement Procedures Act (RESPA); Simplifying and
Improving the Process of Obtaining Mortgages to Reduce Settlement Costs
to Consumers'' (2002 Proposed Rule) that would have provided for a
revised GFE that would have simplified and standardized estimated
settlement cost disclosures to make such estimates more reliable, as
well as to prevent unexpected charges at settlement. In addition, the
2002 Proposed Rule would have modified mortgage broker compensation
disclosure requirements and would have provided an exemption from
Section 8 of RESPA for guaranteed packages of settlement services.
The 2002 Proposed Rule followed several years of consultation with
industry, consumer, and government groups on changes to RESPA. The 2002
Proposed Rule also followed two reports to Congress that examined ideas
to improve the mortgage loan settlement process: The 1998 joint report
by HUD and the Board of Governors of the Federal Reserve (Federal
Reserve or the Board) on reform of RESPA and the Truth in Lending Act;
and the 2000 HUD-Treasury Report on Predatory Lending. Both of these
reports are described in more detail in the 2002 Proposed Rule (see 67
FR at 49143-6).
In response to the 2002 Proposed Rule, HUD received over 40,000
comments, of which 400 contained in-depth discussions of various issues
raised by the proposal. Comments were submitted by real estate,
mortgage broker, banking, mortgage lending, financial services, and
title industry trade groups; consumer advocacy organizations; mortgage
companies; settlement service providers; banks; credit unions and
related organizations; State agencies; Members of Congress; lawyers;
and other concerned persons.
Generally, the extensive comment letters supported the overall
goals of the proposal, but disagreed with or expressed reservations
concerning specific aspects of the proposal. For example, some lender
organizations (including the Mortgage Bankers Association) strongly
supported the packaging proposal, while the National Association of
Realtors supported the GFE changes. Consumer advocacy organizations
(including AARP and the National Consumer Law Center) largely supported
the mortgage broker compensation disclosure changes, the other GFE
changes; and, subject to some exceptions, the packaging proposal.
Several industry organizations supported better disclosure of total
mortgage broker compensation. On the other hand, the National
Association of Mortgage Brokers opposed HUD's proposed approach to
disclosing the yield spread premium as part of the total mortgage
broker compensation, and the American Land Title Association opposed
HUD's packaging proposal and offered a two-package approach as an
alternative.
In response to the considerable and varied comments from the
public, as well as from other federal agencies and Congress, the
Secretary withdrew the proposed rule in early 2004. At that time, the
Secretary committed HUD to gather additional information about
settlement service costs and the process of obtaining mortgages, as
well as to engage in outreach to Congress, members of potentially
affected industries, consumers, and other federal agencies, before
proceeding with any proposed changes related to HUD's RESPA
regulations.
In June 2004, in preparation for outreach to the industry and
consumer groups, HUD began consulting with its federal agency partners,
including the Small Business Administration (SBA) Office of Advocacy,
on RESPA reform. These meetings continued through 2005. In Spring 2005,
HUD also consulted with Members of Congress and congressional staff on
RESPA reform.
After these initial consultations, in July and August 2005, HUD
held a series of seven consumer and industry roundtables both at HUD
Headquarters in Washington, DC, and jointly with the SBA Office of
Advocacy in Chicago, Los Angeles, and Fort Worth. As discussed in the
public notice announcing the roundtables (70 FR 37646, June 29, 2005),
in selecting participants for the roundtables, HUD sought a cross-
section of representatives of consumer advocacy organizations, all
segments of the settlement services industry, State mortgage industry
regulators, and other interested persons who had analyzed the 2002
Proposed Rule or had offered alternative proposals for HUD's
consideration. Over 150 companies, organizations, and other persons
were invited to attend, and 122 of these attended at least one of the
roundtables.
At the roundtables, HUD presented an overview of an approach to
RESPA reform that included revision of the GFE, clarification of the
yield spread premium disclosure, and the option of providing an
exemption from the Section 8 provisions prohibiting referral fees,
kickbacks, and unearned fees to encourage packaging of settlement
services. After HUD's presentation, participants were encouraged to
present their views on RESPA reform issues.
Participants generally agreed that HUD should pursue revision of
the GFE. Many participants stated that the GFE should reflect the HUD-1
settlement statement, so that borrowers could better compare the GFE to
the HUD-1. Consumer representatives stated that disclosure of the yield
spread premium (YSP) is necessary, while mortgage brokers recommended
that the YSP disclosure be dropped from the GFE. Mortgage broker
participants noted that lenders are not required to disclose any
secondary market fees on otherwise identical loans. Mortgage brokers
expressed concern that focusing on a requirement for more effective
disclosure of YSPs puts mortgage brokers at a severe disadvantage, as
compared to lenders, in originating a loan. Lenders maintained that it
would be impractical for a lender to disclose on the GFE how much a
lender would earn if or when the loan is sold on the secondary market.
These concepts also are discussed in more detail in HUD's Real Estate
Settlement Procedures Act Statement of Policy 2001-1 (66 FR 53052, at
53256-7, October 18, 2001).
With respect to packaging, small business representatives asserted
that a Section 8 exemption for packaging would be harmful to small
business providers of settlement services because lenders would
dominate packaging and would extract kickbacks from small businesses in
exchange for inclusion in a package. Consumer groups opposed packaging
with a Section 8 exemption on the grounds that the exemption would
provide a safe harbor for loans with high costs and fees and other
potentially predatory features. These groups also asserted that there
would be no way to determine costs and fees for packaged loans for
purposes of determining compliance with the Truth
[[Page 14033]]
in Lending Act. Lender representatives generally supported packaging
under a Section 8 exemption as the most efficient method to ensure cost
savings to consumers, but some indicated that packaging could also be
delivered with limited Section 8 relief, such as for volume-based
discounts and average cost pricing.
IV. This Proposed Rule
A. Generally
Today's proposed rule builds on all of this history and
specifically recognizes many of the suggestions made at the roundtables
with respect to the GFE and comparability of the HUD-1. The rule
proposes a new framework under RESPA that would:
(1) Improve and standardize the GFE form to make it easier to use
for shopping among settlement service providers;
(2) Ensure that page one of the GFE provides a clear summary of
loan terms and total settlement charges so that borrowers will be able
to use the GFE to comparison shop among loan originators for a mortgage
loan;
(3) Provide more accurate estimates of costs of settlement services
shown on the GFE;
(4) Improve the disclosure of yield spread premiums to help
borrowers understand how they can affect their settlement charges;
(5) Facilitate comparison of the GFE and the HUD-1/HUD-1A
Settlement Statements (HUD-1 settlement statement or HUD-1);
(6) Ensure that at settlement, borrowers are aware of final loan
terms and settlement costs, by reading and providing a copy of a
``closing script'' to borrowers;
(7) Clarify HUD-1 instructions;
(8) Clarify HUD's current regulations concerning discounts; and
(9) Expressly state when RESPA permits certain pricing mechanisms
that benefit consumers, including average cost pricing and discounts,
including volume-based discounts.
A detailed description of each aspect of the proposed rule that
involves these concepts follows in Sections B-E of this preamble.
This proposal also includes certain technical amendments to the
current RESPA rules, as set forth below.
B. Legislative Proposals Related to RESPA Reform
In order to further bolster consumer protection, as well as to
ensure uniform and consistent enforcement under RESPA, HUD intends to
seek legislative changes to RESPA that will complement the regulatory
improvements made in this rule. HUD firmly believes that the proposed
rule will improve the mortgage loan settlement process through better
disclosures to consumers, but greater consumer protection can be
achieved by also strengthening certain statutory disclosure
requirements and improving the remedies available under RESPA.
In today's proposed rule, HUD seeks to ensure that consumers are
provided with meaningful and timely information. While HUD can make
certain regulatory improvements to the disclosures that will help
consumers shop for mortgage loans, HUD needs additional statutory
authority to make further warranted improvements in disclosures that
will help consumers understand the final terms of the loans and costs
to which they commit at closing. Moreover, as currently framed, RESPA
establishes limited and inconsistent enforcement authority, and does
not provide HUD with any enforcement authority for key disclosure
provisions. The 1998 joint report by HUD and the Federal Reserve on
reform of RESPA and the Truth in Lending Act recommended that RESPA be
amended to provide for more effective enforcement.\4\ In its April 2007
report on the title insurance industry, the Government Accountability
Office recommended that Congress consider whether modifications to
RESPA are needed to better achieve its purposes, including by providing
HUD with increased enforcement authority.\5\
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\4\ See Section III of this preamble.
\5\ Title Insurance: Actions Needed to Improve Oversight of the
Title Industry and Better Protect Consumers, Government
Accountability Office, April 2007, GAO-07-401.
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As part of its efforts to improve the protections provided under
RESPA, HUD intends to seek statutory modifications that would include
the following provisions: (1) Authority for the Secretary to impose
civil money penalties for violations of specific RESPA sections,
including sections 4 (provision of uniform settlement statement), 5
(GFE and special information (settlement costs) booklet), 6
(servicing), 8 (prohibition against kickbacks, referral fees, and
unearned fees), 9 (title insurance), and portions of 10 (escrow
accounts), as well as authority for the Secretary and State regulators
to seek injunctive and equitable relief for violations of RESPA; (2)
requiring delivery of the HUD-1 to the borrower 3 days prior to
closing; and (3) a uniform and expanded statute of limitations
applicable to governmental and private actions under RESPA.
RESPA does not currently provide HUD with enforcement mechanisms
for some of the most important consumer disclosures, including the
section 4 requirements related to provision of the HUD-1, and section 5
requirements related to provision of the GFE and the special
information (settlement costs) booklet. HUD believes that a lack of
enforcement authority and of clear remedies for violations of critical
sections of RESPA negatively impacts consumers and diminishes the
effectiveness of the statute. Accordingly, HUD intends to seek
authority to impose civil money penalties to enforce violations of
RESPA. In addition to civil money penalty authority, HUD intends to
seek authority for additional injunctive and equitable remedies for
violations of RESPA.
Improving the ability of consumers to shop for the best mortgage
loan and control settlement costs--using the new GFE form and comparing
it to the HUD-1 at closing--is a key component of today's proposed
rule. Additional statutory authority would enable HUD to improve its
efforts at providing borrowers with necessary and timely information
about their mortgage loans and other settlement services. Section 4 of
RESPA currently provides that a borrower may request to inspect the
HUD-1 the day before settlement, but many borrowers are unaware of this
right, and the time currently provided to inspect the HUD-1 allows
little margin for identifying and challenging problematic charges
before settlement.
HUD also intends to seek reform of the statute of limitations
provisions of RESPA. Currently, there are different limitation periods
depending on which section of the statute is alleged to have been
violated, and who is pursuing a remedy of the violation. HUD believes
that enforcement efforts would be enhanced, and the requirements of the
statute simplified, by standardizing the statute of limitations.
C. Federal Reserve Board Proposed Rule Amending Regulation Z
On January 9, 2008, the Federal Reserve Board (Board) issued a
proposed rule that would amend its Regulation Z which implements the
Truth in Lending Act, 16 U.S.C. 1601, et seq. (73 FR 1672, January 9,
2008). The proposed rule is intended to accomplish three goals: (1) To
protect consumers in the mortgage market from unfair, abusive, or
deceptive lending and servicing practices while preserving responsible
lending and sustainable homeownership; (2) to ensure that mortgage loan
advertisements provide accurate and balanced information and
[[Page 14034]]
do not include misleading or deceptive representations; and (3) to
require earlier mortgage disclosures for non-purchase money mortgage
transactions which would include mortgage refinancings, closed-end home
equity loans, and reverse mortgages (73 FR 1672).
In its proposal, the Board would establish new protections for
higher-priced mortgages, a newly defined category of loans, and for all
mortgage loans. The proposed rule contains four key protections for
higher-priced mortgage loans to prohibit creditors from: (1) Engaging
in a pattern or practice of extending credit based on the collateral
without regard to the consumer's ability to repay; (2) making a loan
without verifying the income and assets relied upon to make the loan;
(3) imposing prepayment penalties in certain circumstances; and (4)
making loans without establishing escrows for taxes and insurance (73
FR 1673).
The Board also proposes, for all mortgage transactions, to prohibit
creditors from paying mortgage brokers more than the consumer agreed
the broker would receive. Specifically, the proposed rule would
prohibit a creditor from making a payment, ``directly or indirectly, to
a mortgage broker unless the broker enters into an agreement with a
consumer'' (73 FR 1725). Further, a creditor payment to a mortgage
broker could not exceed the total amount of compensation stated in the
written agreement, reduced by any amounts paid directly by the consumer
or by any other source (Id).
In proposing the mortgage broker agreement, the Board recognizes
HUD's current policy statements and regulatory requirements regarding
disclosure of mortgage broker compensation and noted that HUD had
announced its intention to propose improved disclosures under RESPA (73
FR 1700). The Board stated that it intends that its proposal ``* * *
would complement any proposal by HUD and operate in combination with
that proposal to meet the agencies' shared objectives of fair and
transparent markets for mortgage loans and for mortgage brokerage
services.''
HUD believes its proposals regarding the GFE and mortgage broker
compensation are consistent with those of the Board. As HUD moves
forward to finalize this rule, it will continue to work with the Board
to make the respective rules consistent, comprehensive, and
complementary.
D. Planned Implementation of Final Rule
Given the significant changes that would be made in its RESPA
regulations by this proposed rule, the Department intends to include a
transition period in the final rule. During the 12-month transition
period, settlement service providers and other persons may comply with
either the current requirements or the revised requirements of the
amended provisions. HUD is seeking comments on whether such a
transition period is appropriate.
E. The GFE and GFE Requirements
Problems Identified with the Existing GFE. Under RESPA, loan
originators must provide a GFE of the borrower's settlement costs
(along with HUD's Special Information Booklet in home purchase
transactions) at or within 3 days of a mortgage loan application. RESPA
authorizes HUD to prescribe regulations concerning the GFE, and HUD's
regulations at 24 CFR 3500.7, along with the suggested format set forth
in Appendix C to the regulations, constitute the current GFE guidance.
At the closing, a borrower must receive the Uniform Settlement
Statement (HUD-1 or HUD-1A), which itemizes final settlement charges to
borrowers. The regulations at 24 CFR 3500.8-3500.10 and the
instructions in Appendix A to the regulations specify HUD's
requirements for the HUD-1/1A.
HUD believes that the GFE could better facilitate borrowers
shopping for the best loan. Further, the GFE could better achieve the
statute's purposes of preventing unnecessarily high settlement costs by
requiring a more accurate and consistent presentation of costs. The
regulations do not require that the GFE be given to the borrower until
after he or she submits a full application to an originator. This can
result in a borrower paying significant fees before receiving a GFE,
inhibiting the possibility of shopping beyond the provider with whom
the applicant first applies. HUD's RESPA regulations require that the
GFE include a list of charges but they do not prescribe a standard
form. Consequently, it is virtually impossible to shop and compare the
charges of various originators and settlement service providers using
the GFE, because different originators may list different types or
categories of charges, or may identify specific charges by different
names, or both. The current regulations also do not require that the
GFE contain information on the terms of loans, such as the loan's
interest rate, for purposes of comparison. Further, while the HUD
Special Information Booklet supplements the GFE, the GFE does not
provide certain important explanatory information to the borrower
including, for example, how the borrower can use the document to shop
and compare loans. The GFE also does not make clear the relationship
between the closing costs and the interest rate on a loan.
HUD's current regulations require loan originators to list on the
GFE the ``amount of or range of'' each charge that the borrower is
likely to incur in connection with the settlement.\6\ The suggested GFE
format, found in Appendix C to the regulations, lists 20 common
settlement services. The suggested format also provides a space for
listing any other applicable services and charges. These requirements
have led, in many instances, to a proliferation of charges for separate
``services'' without any actual increase in the work performed by
individual settlement service providers.
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\6\ 24 CFR 3500.7(a).
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The RESPA regulations do not require that the GFE clearly identify
the total charges of major providers of settlement services, including
lenders and brokers (loan originators), title agents and insurers
(title charges), and other third party settlement service providers.
Without the simplification provided by presenting totals for major
items, it is difficult for borrowers to know how much they are paying
for major items, including origination and title related charges, or
how they can compare loans and select among service providers to get
the best value.
The estimated costs on GFEs are frequently unreliable or
incomplete, or both, and final charges at settlement often include
significant increases in items that were estimated on the GFE, as well
as additional surprise ``junk fees,'' which can add substantially to
the consumer's ultimate closing costs.
New GFE Requirements. In light of these considerations, HUD
believes that in order for the GFE to better serve its intended
purpose, which is to apprise borrowers of the charges they are likely
to incur at settlement, a number of specific changes to the GFE
requirements are required to make it firmer and more useable.
Accordingly, today's proposed rule would establish a new required GFE
form to be provided to borrowers by loan originators in all RESPA
covered transactions.\7\ HUD
[[Page 14035]]
believes that the content of the material in the proposed form gives
the consumer the information needed to shop for loan products and to
assist them during the settlement process. The Department seeks public
comment on the proposed GFE, as well as the proposed HUD-1/1A
Settlement Statement forms. The following sections address the proposed
changes, and, where appropriate, include a summary of comments received
on the issue in response to the 2002 Proposed Rule, as well as comments
voiced during the 2005 RESPA Reform Roundtables.
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\7\ HUD's RESPA rules currently provide that in the case of a
federally related mortgage loan involving an open-end line of credit
(home equity plan) covered under the Truth in Lending Act and
Regulation Z, a lender or broker that provides the borrower with the
disclosures required by 12 CFR 226.5b of Regulation Z at the time
the borrower applies for such loan shall be deemed to comply with
GFE requirements set forth at 24 CFR 3500.7. Nothing in this
proposed rule is intended to change this provision.
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1. Changes to Facilitate Shopping
The Proposed Rule. Today's rule proposes to establish a new
definition for a ``GFE application'' and a separate new definition for
``mortgage application.'' The GFE application would be comprised of
those items of information that the borrower would submit to receive a
GFE. Such an application would include only such information as the
originator considered necessary to arrive at a preliminary credit
decision and provide the borrower a GFE. Specifically, a GFE
application would include six items of information (name, Social
Security number, property address, gross monthly income, borrower's
information on the house price or best estimate of the value of the
property, and the amount of the mortgage loan sought) in order to
enable a loan originator to make a preliminary credit decision
concerning the borrower. The proposed rule will also require that the
GFE application be in writing or in computer-generated form. Oral
applications can be accepted at the option of the lender. In such
cases, the lender must reduce the oral application to a written or
electronic record.
The proposed rule also provides that when a borrower chooses to
proceed with a particular loan originator, the loan originator may
require that the borrower provide a ``mortgage application'' to begin
final underwriting. The mortgage application will ordinarily expand on
the information provided in the GFE application, including bank and
security accounts and employment information as well as asset and
liability information and all the other information that the originator
requires to underwrite the loan.
To facilitate shopping and lower the cost burden of shopping on
consumers and industry alike, the proposed rule would not require that
all underwriting information be supplied at the GFE application stage.
Nevertheless, borrowers must be protected against ``bait and switch.''
Accordingly, the proposed rule provides that during final underwriting,
the originator may verify the information in and developed from the GFE
application, including employment and income information, ascertain the
value of the property to secure the loan, update the credit analysis,
and analyze any relevant information collected in the entire
application process, including, but not limited to, information on the
borrower's assets and liabilities. However, borrowers may not be
rejected unless the originator determines that there is a change in the
borrower's eligibility based on final underwriting, as compared to
information provided in the GFE application and credit information
developed for such application prior to the time the borrower chooses
the particular originator.\8\ The originator must document the basis
for any such determination and keep these records for no less than 3
years after settlement, in accordance with proposed subsection 24 CFR
3500.7(f)(1)(iii).
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\8\ Unforeseeable circumstances resulting in a change in the
borrower's eligibility may also be a basis for rejecting the
borrower. Unforeseeable circumstances are also discussed in Section
8(b) below.
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Where a borrower is rejected for a loan for which a GFE has been
issued, and another loan product is available to the borrower, the loan
originator must provide the borrower with a revised GFE. Where a
borrower is rejected, the borrower must be notified within one business
day and the applicable notice requirements satisfied.
Loan originators will provide GFEs based on the GFE applications
that are memorialized in writing or electronic form. A separate GFE
must be provided for each loan where a transaction will involve more
than one mortgage loan. For loans covered by RESPA, Truth in Lending
Act (TILA) disclosures would also be provided within 3 days of a
written GFE application, unless the creditor, i.e., loan originator,
determines that the application cannot be approved on the terms
requested. (See comments 19(a)(1)-3 and 4 of the Federal Reserve
Board's Official Staff Commentary on the Truth in Lending Act (TILA).)
Based on consultations with representatives of the Federal Reserve,
when a GFE application is submitted, an initial TILA disclosure should
also be provided so long as the application is in writing, or, in the
case of an oral application, committed to written or electronic form.
By obtaining multiple GFEs, borrowers will be in a position to
decide which loan provider and which mortgage product they wish to
select. When the borrower makes those decisions, the borrower will
notify the originator, who may then require a more comprehensive
``mortgage application,'' and possibly a fee or fees, to initiate the
loan origination. As indicated, this application would consist of the
more detailed information required by the originator, submitted in
order to obtain a final underwriting decision, leading to origination
of a mortgage loan.\9\
---------------------------------------------------------------------------
\9\ HUD anticipates that in most cases a mortgage application
will be the Uniform Residential Loan Application, Freddie Mac Form
65, or Fannie Mae Form 1003.
---------------------------------------------------------------------------
Discussion. Under RESPA, a GFE must be provided to a borrower at or
within 3 days of application. HUD's current regulations define an
application as the ``submission of a borrower's financial information
in anticipation of a credit decision, whether written or computer
generated, relating to a federally related mortgage loan'' identifying
a specific property.\10\ The 2002 Proposed Rule sought to make GFEs
more readily available to consumers and, therefore, more useful as a
shopping tool by clarifying the minimum information needed to obtain a
GFE and by broadening the rules to allow oral applications, consistent
with earlier informal interpretations by HUD, so long as such requests
contained sufficient information for the originator to provide a GFE.
Accordingly, the 2002 Proposed Rule also revised the definition of
``application'' in the regulations to make it clear that an application
would be deemed to exist, and that the GFE should be provided once the
consumer provided sufficient information to enable a loan originator to
make an initial determination regarding the borrower's creditworthiness
(typically, a Social Security number, a property address, basic income
information, the borrower's information on the house price or best
estimate of the value of the property, and the mortgage loan amount
needed), whether orally, in writing or computer-generated. The GFE
would be given to the borrower, conditioned on final loan approval
following full underwriting and appraisal of the property securing the
mortgage.
---------------------------------------------------------------------------
\10\ 24 CFR 3500.2.
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HUD acknowledged in the 2002 Proposed Rule that the proposed
changes in the definition of ``application'' and the requirement that a
GFE be provided to prospective borrowers early in the shopping process
[[Page 14036]]
might have implications for the content and delivery of required
disclosures under TILA requirements. As a result, HUD invited comments
on how the proposed GFE changes might impact other disclosure
requirements, and also invited comments on how the proposed GFE changes
could be harmonized with the other disclosure requirements.
As indicated above, under today's proposal, the definition of ``GFE
application'' provides the trigger for initial RESPA disclosures. After
a consumer decides to proceed with a particular loan originator's GFE,
the loan originator will generally require a separate ``mortgage
application'' as defined under this proposed rule, before making a
credit decision. Consumer representatives recommended that HUD consult
with the Federal Reserve Board to coordinate the timing of RESPA and
TILA disclosures. Industry commenters on the 2002 Proposed Rule were
generally concerned that HUD's proposal to require disclosures earlier
in consumers' process of shopping for a mortgage would trigger
requirements under the Home Mortgage Disclosure Act (HMDA) and the
Equal Credit Opportunity Act (ECOA).
By refining the definition of ``application'' under RESPA, and
dividing the application process as described, HUD believes that
today's proposal will facilitate the availability of shopping
information and avoid unnecessary regulatory burden on the industry and
an unwarranted increase in notices of loan denials to borrowers.
Whether a GFE application under a particular set of facts triggers HMDA
or ECOA requirements must be determined under Regulation B and
Regulation C, as interpreted in the Federal Reserve Board's official
staff commentary. It should be noted that by proposing such a change to
the current definition of ``application,'' HUD does not intend to
prevent a loan originator from prequalifying a borrower for a mortgage
loan.
2. Addressing Up-Front Fees That Impede Shopping
The Proposed Rule. The proposal would allow a loan originator, at
its option, to collect a fee limited to the cost of providing the GFE,
including the cost of an initial credit report, as a condition for
providing a GFE to the prospective borrower.
Discussion. HUD would prefer that originators not impose any
charges for a GFE, since providing a GFE before the payment of any fee
will further facilitate shopping. HUD believes it would be reasonable
for loan originators to treat shoppers for mortgages in much the same
way other retailers treat shoppers, where the price of the product
includes marketing expenses and purchasers pay the cost incurred to
serve shoppers who do not purchase the goods or services. Such an
approach would better serve the purposes of the statute. However, HUD
recognizes that there may be incidental or nominal costs to provide
GFEs to prospective borrowers. Therefore, in order to facilitate
shopping using GFEs, the proposed rule would allow a loan originator,
at its option, to collect a fee limited to the cost of providing the
GFE, including the cost of an initial credit report, as a condition for
providing a GFE to a prospective borrower. HUD is interested in
receiving comments on this approach.
3. Introductory Language
The Proposed Rule. The proposed GFE explains to the borrower: (1)
The purpose of the GFE, i.e., that it is an ``* * * estimate of your
settlement costs and loan terms if you are approved for this loan'' and
(2) informs the borrower that he or she is the ``* * * only one who can
shop for the best loan for you. You should compare this GFE with other
loan offers. By comparing loan offers, you can shop for the best
loan.''
Discussion. The GFE proposed today informs the borrower that he or
she is the only one who can shop for the best loan. HUD believes that
this formulation should be useful to consumers dealing with all types
of loan originators.
The 2002 Proposed Rule had included language in this section of the
previously proposed GFE that was intended to describe the role of the
loan originator and to encourage borrowers to shop for themselves.
Comments both from consumer groups and industry generally favored
removing language on the GFE that discussed the role of the loan
originator, on the grounds that the language was misleading, confusing,
and might conflict with state law. AARP, however, supported retaining
the portion of the proposed language that encourages the borrower to
shop among loan originators.
In light of the comments received on the 2002 proposal, today's
proposed GFE does not include any language on the role of the loan
originator. Instead, the language on the proposed GFE informs the
consumer that he or she is the only one who can shop for the best loan.
4. Terms on the GFE (Summary of Loan Details)
The Proposed Rule. The proposed GFE includes a summary of the key
terms of the loan. The form discloses the initial loan amount; the loan
term; the initial interest rate on the loan; the initial monthly
payment owed for principal, interest, and any mortgage insurance; and
the rate lock period. The form also discloses whether the interest rate
can rise, whether the loan balance can rise; whether the monthly amount
owed for principal, interest and any mortgage insurance can rise;
whether the loan has a prepayment penalty or a balloon payment and
whether the loan includes a monthly escrow payment for property taxes
and possibly other obligations. HUD is requiring the terms ``prepayment
penalty'' and ``balloon payment'' to be interpreted consistent with
TILA (15 U.S.C. 1601 et seq.). The Annual Percentage Rate (APR) is not
included on the proposed GFE.
Discussion. One of HUD's objectives in proposing revisions to the
current RESPA regulations is to ensure that consumers are able to use
page one of the GFE to comparison shop among loan originators for a
mortgage loan. Accordingly, page one of the proposed GFE contains a
summary of the loan terms and details, as well as a summary of the
total estimated settlement charges for the loan. The new summary format
of page one of the proposed GFE with its list of important loan terms
will increase consumer awareness and allow borrowers the opportunity to
shop among loan originators and easily compare various loan offers.
The proposed GFE is designed to provide clear information on both
fixed and adjustable rate mortgages. The disclosure of terms on the
latter is complicated due to their variable structure and to future
changes in interest rates. Adjustable rate mortgages have recently
experienced high default rates. HUD seeks comment on possible
additional ways to increase consumer understanding of adjustable rate
mortgages.
The 2002 proposed GFE advised the borrower of the terms of the
mortgage and included the interest rate and the APR. It also advised
the borrower whether or not the loan had a prepayment penalty or
balloon payment, and whether the loan had an adjustable rate and, if
so, its terms. Comments on the 2002 GFE primarily concerned whether it
should include information also appearing on the TILA disclosure.
Consumers generally supported the inclusion of TILA disclosure
information on the GFE. Lenders generally recommended that information
appearing on TILA disclosures should be removed from the GFE because
borrowers will continue to receive separate TILA disclosure forms, and
inclusion on the GFE is unnecessary and would potentially lead
[[Page 14037]]
to borrower confusion. Some participants at the RESPA Reform
Roundtables suggested that more information on new loan products such
as interest-only loans should be included on the GFE.
While mindful of the need to present consumers with key loan
information on the GFE, HUD has determined not to include the APR on
today's proposed GFE. The APR is central to the TILA disclosure that
will be provided in purchase transactions at the same time as the GFE
and ordinarily at the same time in other transactions. However, the
terms ``prepayment penalty'' and ``balloon payment'' have been retained
on the form to facilitate consumer shopping, even though these terms
are also included on the TILA disclosure.
With respect to today's proposed GFE, HUD notes that there are
differences between how the GFE discloses the monthly payment and how
the TILA form will disclose the monthly payment. Specifically, the
proposed GFE requires disclosure of principal, interest, and any
mortgage insurance, while the TILA disclosure may include amounts for
taxes. HUD will revise its Special Information Booklet to explain this
difference, to avoid consumer confusion.
The interest rate listed on the GFE will reflect the loan offered
at the time the GFE is given. Until locked in, the interest rate will
float. For loans originated by mortgage brokers, the amount of any
``charge or credit to the borrower for the specific interest rate
chosen'' will float with the wholesale market.\11\ This is because
mortgage brokers must report the precise difference between the price
of the loan and its par value in the ``charge or credit for the
specific interest rate chosen.'' As a result, borrowers who use brokers
as defined in this proposed rule and choose to float will float
according to wholesale lenders' changes.
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\11\ The ``charge or credit for the interest rate chosen''
concerns the discount points and the yield spread premium that are
further discussed in Section C of this preamble.
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Current federal regulations allow originators to provide GFE and
TILA information together.\12\ However, the proposed GFE is designed as
a distinct, required form to promote shopping by consumers. HUD
believes it is best complemented by providing a separate TILA
disclosure along with the GFE.
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\12\ 24 CFR 3500.7(d).
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5. Period During Which the GFE Terms Are Available to the Borrower
The Proposed Rule. The interest rate stated on the GFE would be
available until a date set by the loan originator for the loan. After
that date, the interest rate, some of the loan originator charges, the
per diem interest, and the monthly payment estimate for the loan could
change until the interest rate is locked. The estimate of the charges
for all other settlement services would be available until 10 business
days from when the GFE is provided, but it may remain available longer,
if the loan originator extends the period of availability.
Discussion. In order to promote competition while avoiding
committing originators to open-ended offers, the 2002 Proposed Rule
would have required that the GFE be held open for a minimum of 30 days.
Commenters on the 2002 Proposed Rule were specifically asked whether 30
days was an appropriate period, and considerable comment was elicited
on this subject. A major consumer group supported the 30-day period,
while the majority of lenders commenting on the 2002 proposal
recommended a 10-day shopping period or less.
Today's proposed rule reflects HUD's determination that the
appropriate period for which GFE terms are generally to be available is
10 business days, excluding the interest rate of the loan set forth in
the GFE, some of the loan origination charges related to the interest
rate, the per diem interest, and the monthly payment estimate. The
interest rate stated on the GFE would be available until a date set by
the loan originator for the loan. After that date, the interest rate,
some of the loan originator charges, the per diem interest, and the
monthly payment estimate for the loan could change until the interest
rate is locked.
A central purpose of RESPA regulatory reform is to facilitate
shopping in order to lower settlement costs, and there is legitimate
concern that requiring GFEs to be open for too long a shopping period
could unintentionally operate to increase borrower costs. By requiring
that the GFE terms be generally available for 10 business days, GFEs
will be effectively open for 2 weeks, thereby providing borrowers with
sufficient time to shop among various offers and providers. Borrowers
may request, and originators at their option may lengthen the shopping
period for a loan or loans beyond 10 business days. In such cases, the
originator should note and initial the increased duration the GFE is
open on the borrower's GFE.
6. Consolidating Major Categories on the GFE
The Proposed Rule. The proposed GFE would group and consolidate all
fees and charges into major settlement cost categories, with a single
total amount estimated for each category.
Discussion. Under current RESPA rules, the GFE simply lists
estimated charges or ranges of charges for settlement services. There
is no requirement for grouping or subtotaling charges to the same
recipients. The costs listed on the GFE include loan originator charges
such as loan origination and underwriting charges; charges by third
parties for lender-required services, such as appraisal, title, and
title insurance fees; state and local charges imposed at settlement
such as recording fees or city/county stamps; and amounts the borrower
is required to put into an escrow account, or reserves, for items such
as property taxes or hazard insurance. At settlement, borrowers receive
a second RESPA disclosure--the Uniform Settlement Statement (the HUD-1/
1A) that enumerates the final costs associated with both the loan and,
if applicable, the purchase transaction.
The proposed GFE would group and consolidate all fees and charges
into major settlement cost categories, with a single total amount
estimated for each category. This approach would reduce any incentive
for loan originators and others to establish a myriad of ``junk fees''
and provide them in a long list in order to increase their profits.
In the 2002 Proposed Rule, HUD had proposed a GFE that grouped and
consolidated charges into major cost categories, with a single total
amount for each category. In commenting on the 2002 proposal, consumer
groups were split on the best approach to addressing fee proliferation
on the GFE. AARP strongly supported consolidation of major cost
categories, and recommended that HUD's proposed categories be further
consolidated into three categories for enhanced consumer comprehension.
The National Consumer Law Center (NCLC) filed comments on its own
behalf, and on behalf of the Consumer Federation of America, National
Association of Consumer Advocates, Consumers Union, and U.S. Public
Interest Research Group. These commenters noted that while subtotaling
is helpful to consumers, itemization on the HUD-1 is necessary to
ensure that compliance with TILA and the Home Ownership and Equity
Protection Act (HOEPA) can be determined. The National Community
Reinvestment Coalition and the National Center on Poverty Law indicated
their belief that the
[[Page 14038]]
tolerance \13\ levels will address the issue of proliferation of fees,
and commented that the GFE must be as similar as possible to the HUD-1
for comparison purposes. Lenders who commented on this proposed change
to the GFE in 2002 expressed concern that lumping costs together in
large categories will confuse consumers when they compare data on the
GFE with data on the HUD-1/1A.
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\13\ ``Tolerance'' refers to the maximum amount by which the
charge for a category of settlement costs may exceed the amount of
the estimate for such category on a GFE, and is expressed as a
percentage of an estimate. See Section (h) below.
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Having considered the results of consumer testing of the forms as
detailed below in Section F and comments received on the 2002 Proposed
Rule, HUD has determined to propose a standardized GFE, containing
major cost categories, to facilitate better borrower understanding of
settlement services and their costs, and empower borrowers to shop,
compare, and negotiate major cost items where possible. HUD is not
proposing to further consolidate the categories, because it believes
that each of the proposed categories provides useful information to
borrowers. Although today's proposed GFE does not itemize the services
required in each category, it does explain to the borrower the exact
nature of each category of services. For example, origination services
are characterized as the services and charges to obtain and process the
loan for the borrower. HUD also regards the information on required
services that can and cannot be shopped for as useful information that
borrowers should have in choosing an originator and later to facilitate
shopping for services to lower costs.
HUD's current RESPA regulations require that the GFE include a list
of any lender-required providers, including the name, address and
telephone number of the provider and the nature of the lender's
relationship with the provider. Under today's proposed rule, if the
lender requires the use of a particular provider other than its own
employees, and requires the borrower to pay any portion of such
service, the lender must identify on the GFE the service, and the
estimated cost or range of charges for the service. HUD has determined
to eliminate the requirement to identify the name of the required
service provider, because it believes that consumers will use the GFE
to shop among loan originators based on cost rather than on the
identity of individual settlement service providers.
Where a lender permits a borrower to shop for a required settlement
service, under today's proposed rule the lender must provide the
borrower with a written list of identified providers at the time the
GFE is provided. Such a list may be included on the GFE form or on a
separate sheet of paper.
The GFE set forth in the 2002 Proposed Rule would also have
referenced the corresponding series on the HUD-1, to facilitate
comparison between the GFE and HUD-1. While these references have been
removed in the GFE proposed today in the interest of simplifying the
form, HUD is also proposing changes to the HUD-1/1A to facilitate
comparison of the GFE to the HUD-1/1A. Section II.D. of this preamble
discusses today's proposed changes to the HUD-1/1A.
Pursuant to 24 CFR 3500.15, originators seeking to satisfy the
requirements for the affiliated business exemption must provide the
requisite affiliated business arrangement disclosure at the time of any
referral to an affiliated settlement service provider. The GFE proposed
by today's Proposed Rule does not attempt to include this information.
However, under HUD's existing RESPA regulations, the affiliated
business disclosure must be given on a separate form consistent with
Appendix D of HUD's existing regulations. Where such a referral occurs
at the time a GFE is given, the affiliated business disclosure must be
given along with the GFE.
7. Option to Pay Settlement Costs
The Proposed Rule. The GFE Form shall advise the borrower how the
interest rate of the loan affects the borrower's settlement costs, and
shall include actual available options in this regard on the form.
Discussion. In addressing the problem of lender payments to
mortgage brokers in the 1999 and 2001 Policy Statements,\14\ HUD made
it clear that consumers should be advised as early as possible when
shopping for a loan of how their interest rate affects their settlement
costs and that their options in this regard should be presented on the
GFE form. In order to decide which rate/cost combination is best, HUD
regards it as essential that borrowers be presented actual offers of
the loan originator on the chart on page 3 of today's proposed GFE. The
GFE would inform borrowers that: (1) They can choose the loan presented
in the GFE; (2) they can choose an otherwise identical loan with a
lower interest rate and monthly payments that will raise settlement
costs by a specific amount; or (3) they can choose an otherwise
identical loan with a higher interest rate and monthly payments that
will lower settlement costs by a specific amount. If a higher or lower
interest rate is not in fact available from the originator, the
originator must provide those options that are available and indicate
``not available'' on the form for those options that are not available.
While some commenters on the 2002 Proposed Rule recommended that HUD
require loan originators to feature specific types of loans on the loan
option chart on the GFE, HUD does not believe that it should impose
requirements on loan originators on what types of loans are offered to
borrowers. Therefore, HUD does not propose such requirements in today's
proposed rule. HUD's consumer testing has demonstrated that consumers
responded very positively to the trade-off chart on the GFE that
presents information on different interest rates and up-front fees. In
fact, this was the feature that consumers liked best about the form.
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\14\ 64 FR 10080 (March 1, 1999), 66 FR 53052 (October 18,
2001).
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The provision of this information on page 3 of the form will help
borrowers understand their options for paying settlement costs. If the
borrower chooses one of the two alternative options presented on the
form, the borrower must receive a new GFE.
8. Establishing Meaningful Standards for GFEs
a. Tolerances.
The Proposed Rule. The proposal would prohibit loan originators
from exceeding at settlement the amount listed as ``our service
charge'' on the GFE, absent unforeseeable circumstances. The charge or
the credit to the borrower for the interest rate chosen, if the
interest rate is locked, absent unforeseeable circumstances, also
cannot be exceeded at settlement. The proposal would also prohibit Item
A on the GFE, ``Your Adjusted Origination Charges'' from increasing at
settlement once the interest rate is locked. In addition, the proposal
would prohibit government recording and transfer charges from
increasing at settlement, absent unforeseeable circumstances. The
proposal would prohibit the sum of all the other services subject to a
tolerance (originator required services where the originator selects
the third party provider, originator required services where the
borrower selects from a list of third party providers identified by the
originator, and optional owner's title insurance, if the borrower uses
a provider identified by the originator) from increasing at settlement
by more than 10 percent absent unforeseeable
[[Page 14039]]
circumstances. Thus, a specific charge may increase by more than 10
percent at settlement, so long as the sum of all the services subject
to the 10 percent tolerance does not increase by more than 10 percent.
Discussion. Current RESPA regulations at 24 CFR 3500.7(a) require a
lender to provide a ``good faith estimate'' of the ``amount of or range
of charges for the specific settlement services the borrower is likely
to incur in connection with the settlement.'' While the rules require
that the estimate be made ``in good faith'' and ``bear a reasonable
relationship'' to the charges the borrower is likely to incur at
settlement, HUD is proposing to clarify what a ``Good Faith Estimate''
demands, both with regard to the loan originator's own charges, as well
as to lender-selected, third party charges and other settlement costs.
Estimates appearing on the GFEs can be significantly lower than the
amount ultimately charged at settlement and do not provide meaningful
guidance on the costs borrowers will incur at settlement. While
unforeseeable circumstances can drive up costs in particular
circumstances, in most cases loan originators have the ability to
estimate final settlement costs with great accuracy. The loan
originator's own charges, which are entirely within the originator's
control, can be stated with certainty, absent unforeseeable
circumstances. Government recording and transfer charges are well known
to loan originators or can be calculated based on the purchase price or
value of the property. Moreover, many third party costs such as credit
report fees, pest inspection fees, tax services, and flood reviews are
readily ascertainable. Other third party costs such as title services
and title insurance and up-front mortgage insurance premiums, typically
only vary depending on the value of the property or the loan amount.
HUD also is aware that recent advances in technology and
telecommunications in loan processing make routine provision of
accurate estimates of third party costs easier and cheaper.
Some borrowers have indicated that the GFE has often failed to
represent an accurate estimate of final settlement costs, for a number
of reasons. In too many cases, fees that were not included on the GFE
materialize at settlement. These unexpected fees often result in extra
compensation for the originator and/or the third party settlement
service providers and in higher charges to the borrower. The absence of
more precise regulatory standards for providing a good faith estimate
of final settlement costs has not helped ensure greater accuracy and
reliability.
In light of these considerations, HUD believes that in order for
the GFE to serve its intended purpose, which is to apprise prospective
borrowers of the charges they are likely to incur at settlement, new
standards must be established under existing law to better define good
faith'' and the standards applicable to the GFE.\15\ Accordingly, the
proposed rule states that loan originators may not increase their own
charges (the service charge) from that stated on the GFE, absent
``unforeseeable circumstances.'' Government recording and transfer
charges would also not be able to increase at settlement, absent
``unforeseeable circumstances.'' While the interest rate is locked, the
charge or the credit to the borrower for the interest rate chosen also
cannot be exceeded at settlement, absent ``unforeseeable
circumstances.'' While fees for the service charge have a ``zero
tolerance'' under the proposed rule, absent unforeseeable
circumstances, the sum of all the other services subject to a
tolerance--required services the loan originator selects, title and
closing services, lender's title insurance and optional owner's title
insurance if chosen or identified by the originator, and required
services that borrowers can shop for when the borrower elects to use
the provider identified by the originator--would be subject to a single
overall 10 percent tolerance. Thus, a specific charge may increase by
more than 10 percent, so long as the total does not increase by more
than 10 percent.
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\15\ Differing editions of Black's Law Dictionary have defined
``good faith'' as a ``state of mind consisting in * * * honesty in
belief or purpose * * * and faithfulness to one's duty or
obligation,'' and ``freedom from knowledge of circumstances which
ought to put the holder upon inquiry,'' as well as ``absence of all
information, notice, or benefit or belief of facts which render a
transaction unconscientious.'' Inherent in these definitions is the
concept that where a party makes an estimate in good faith, the
party will take into account all available relevant information, and
will exercise reasonable care in evaluating such information before
providing such an estimate.
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The subject of tolerances received considerable attention from
commenters in the 2002 proposed RESPA rulemaking, as well as during the
RESPA Reform Roundtables. Generally, lending industry groups commenting
on the 2002 Proposed Rule opposed tolerances on the grounds that
settlement costs are extremely variable and subject to change after
appraisal and underwriting. Many other comments from lenders on the
2002 Proposed Rule noted that costs often change after property
appraisal and as a result of borrower product changes or changes in the
loan amount or closing date. Consumer groups, on the other hand,
supported tolerances as a means to prevent ``bait and switch'' tactics
by loan originators. Regulators, including the Conference of State Bank
Supervisors and the American Association of Residential Mortgage
Regulators, were generally supportive of tolerances. During the RESPA
reform roundtables, many participants who expressed comments on the
need for tolerances agreed that it is possible to get solid estimates
of costs at the GFE stage, while others expressed concern that a 10
percent tolerance level is too strict.
In its written comments in response to the 2002 Proposed Rule, the
American Land Title Association (ALTA) questioned HUD's authority to
adopt tolerances in light of the legislative history of the good faith
estimate requirement in Section 5(c) of RESPA. ALTA noted that as part
of the original RESPA statute, Congress enacted a separate section that
required lenders, at the time of loan commitment, but not later than 12
days prior to settlement, to provide the prospective buyer and seller
with an ``itemized disclosure in writing of each charge arising in
connection with the settlement.'' Section 6 of the original statute
imposed a duty on the lender to obtain from persons who were to provide
services in connection with the settlement ``the amount of each charge
they intend to make.'' If the exact charge was not available, a good
faith estimate could be provided. Section 6(b) provided for lender
liability to the buyer or seller for failure to provide the requisite
disclosures in the amount of actual damages or $500, whichever was
greater, and, if the action was successful, attorney's fees and court
costs.
ALTA noted that due to concerns raised by lenders about Section 6,
that provision of RESPA was repealed within one year of enactment.
Congress substituted for Section 6 the language of Section 5(c)
requiring lenders to provide a good faith estimate of settlement costs,
along with a Special Information Booklet, within 3 days of loan
application. ALTA also noted that Congress did not impose any sanctions
for violations of the Section 5(c) obligation. In light of this
legislative history, ALTA contends that HUD does not have statutory
authority to adopt tolerances as proposed.
While mindful of the legislative history of RESPA with respect to
the enactment and later repeal of the section requiring lenders to
provide disclosures of the amount of each charge arising in
[[Page 14040]]
connection with the settlement, HUD believes that the tolerance
approach it is proposing today is distinguishable from the requirement
to provide an itemized disclosure of each charge. Unlike the
requirement in the original Section 6 of RESPA that required lenders to
provide exact figures for individual settlement charges, today's
proposed approach permits considerable flexibility. The proposal would
permit all charges to decrease between the time the GFE is provided and
the date of settlement; all charges may increase in the event of
unforeseeable circumstances; and some third party charges such as
homeowners' insurance are not subject to any tolerance. Moreover,
individual charges for certain third party services that originators
require and either select or identify may increase by more than 10
percent at settlement, as long as the sum of such charges increases by
no more than 10 percent at settlement.
In considering the appropriate tolerance for third party settlement
services on the GFE, HUD considered the available data on the variation
in the cost of title services within individual market areas. Title
services is the largest component of third party settlement service
costs, accounting for slightly over two-thirds of the total among the
sample of Federal Housing Administration (FHA) insured-loans discussed
in the Economic Analysis. A study by Consumers Union on the dispersion
of title costs within each of five large California metropolitan areas
provides the best available data. Consumers Union found that, for four
of the five metropolitan areas--Los Angeles, San Francisco, San Diego,
and Sacramento--the highest reported prices for title services were
between 9.95 percent and 13.84 percent above the average price in the
local market. The exception is Fresno, where the highest price is 27.90
percent above the average. These data indicate that a title insurance
company should be able to remain within about 10 percent of its
originally quoted price, in the event that a particular loan turns out
to involve more extensive title work than originally anticipated. HUD
therefore has concluded that a 10 percent tolerance is reasonable. To
provide a further margin for unexpected cost increases, HUD extended
the 10 percent tolerance per service in the 2002 Proposed Rule to a 10
percent tolerance for the combined total cost of all third party
settlement services selected by the lender. Other services are a much
smaller share of the total cost of third party settlement services, and
therefore increases in their cost are likely to have a much smaller
impact on the combined total cost of all third party settlement
services covered by the 10 percent tolerance.
The proposal also clarifies that if the borrower requests a change
in the type of loan, loan amount, or loan product, or otherwise makes a
change to the mortgage transaction, the originator is not bound by the
original GFE. However, because the borrower is in effect initiating a
new application, today's proposed rule would require that the
originator must either adhere to the original GFE or must redisclose to
the borrower by providing a new GFE, and the originator would then be
subject to the tolerances applicable to that GFE, provided the
originator chooses to accommodate the change and the borrower qualifies
for the change.
In addition, to meet the tolerances, today's proposed rule provides
that originators must include all charges correctly within their
prescribed category on the GFE (and the HUD-1/1A). This means that
third party fees estimated on the GFE must be reported as the estimated
prices to be paid to third parties only, and fees reported on the HUD-
1/1A must not exceed those actually paid to third parties, except where
the prices are based on an average calculated in accordance with
proposed Sec. 3500.8(b)(2). (See Section G discussion on average cost
pricing in this preamble.)
While loan originators are expected to issue a GFE of settlement
costs where a borrower submits a GFE application, in the case of new
construction, settlement costs can change between the time a purchase
contract is signed and settlement. Such estimates are subject to the
provisions regarding unforeseeable circumstances and the provision for
borrower requested changes, including the documentation requirements
discussed below. The proposed rule provides that the loan originator
may provide the GFE to the borrower with a clear and conspicuous
disclosure stating that at any time up until 60 days prior to closing,
the loan originator may issue a revised GFE. If no such disclosure is
provided with the initial GFE, the loan originator would not be able to
issue a revised GFE except as otherwise provided in the rule.
b. Unforeseeable Circumstances
The Proposed Rule. The proposal provides that loan originators
should not be held to tolerances where actions by the borrower or
circumstances concerning the borrower's particular transaction result
in higher costs that could not have reasonably been foreseen at the
time of the GFE application, or where other legitimate circumstances
beyond the originator's control result in such higher costs. The
proposal also provides that if unforeseeable circumstances result in a
change in the borrower's eligibility for the specific loan terms
identified in the GFE, the borrower must be notified of the rejection
for the loan and be provided a new GFE if another loan is made
available.
Discussion. While tolerances are necessary to provide ``bright
line'' standards for consumers and industry alike, HUD recognizes that
there may be circumstances under which loan originators should not be
held to tolerances. The proposed rule details the circumstances under
which tolerances may not apply, but indicates further that if it is
possible for the loan originator to perform at all in such
circumstances, the loan originator's charges may increase only to the
extent caused by the particular circumstances.
Today's proposed rule defines ``unforeseeable circumstances'' as
either: (1) Acts of God, war, disaster, or other type of emergency that
makes it impossible or impracticable for the originator to perform; or
(2) circumstances that could not be reasonably foreseen at the time of
the GFE application, that are particular to the transaction and that
result in increased costs, such as a change in the property purchase
price, boundary disputes, or environmental problems that were not
described to the loan originator in the GFE application; the need for a
second appraisal; and flood insurance. As with any business
transaction, the borrower has the ability to call off the transaction
in such circumstances. The proposed rule specifically excludes market
fluctuations from being regarded as unforeseeable circumstances.
Where an originator cannot perform or meet the tolerances because
of unforeseeable circumstances, the originator must document the costs
occasioned by the unforeseeable circumstances, and, as indicated,
charge the borrower only the increased costs caused by such
circumstances. Additionally, as indicated, when an increase in costs is
necessary because of unforeseeable circumstances beyond the
originator's control, the borrower should be notified within 3 days of
such charges--as though a new application was filed--before any
additional costs are incurred, and a new GFE reflecting the charges
must be provided to the borrower. Finally, when unforeseeable
circumstances result in a change in a borrower's eligibility for the
loan identified in the GFE, the borrower
[[Page 14041]]
should be notified within one business day of the decision to reject
the loan, and, if another loan is made available to the borrower, a new
GFE must be provided to the borrower. In all cases, the loan originator
must retain appropriate documentation explaining any unforeseeable
circumstances for a transaction for no less than 3 years after
settlement.
9. Important Information for Borrowers
Page 4 of the GFE provides important information for the borrower,
including information on how to apply for the loan set forth in the
GFE. Page 4 also informs borrowers that they may wish to consult
government publications about loans and settlement charges that have
been published by HUD and the Federal Reserve Board. In addition, Page
4 provides important information to borrowers about their financial
responsibilities as homeowners. This section of the GFE notifies the
borrower that in addition to the monthly loan payment for principal,
interest, and mortgage insurance, the borrower will be required to pay
other annual charges to keep the property. The section provides the
borrower with an estimate for annual property taxes, along with
homeowner's flood, and other required property protection insurance,
but estimates for other annual charges such as homeowner's association
fees or condominium fees are not required to be provided on the form.
The section informs the borrower that the borrower may have to identify
such other charges and ask for additional estimates from other sources.
The section also states that such charges will not change based on the
loan originator chosen by the borrower and advises the borrower not to
consider the loan originator's estimates of such charges, when shopping
for the best loan.
Page 4 also notes that lenders can receive additional fees from
other sources by selling the loan at some future date after settlement.
However, the borrower is informed that once the loan is obtained at
settlement, the loan terms, the borrower's adjusted origination
charges, and total settlement charges cannot change.
Page 4 also includes a mortgage shopping chart that allows
borrowers to compare GFEs from different loan originators.
10. Enforcement
The Proposed Rule. Today's proposed rule provides that charging a
fee in excess of the tolerance, or any other failure to follow the GFE
requirements, constitutes a violation of Section 5 of RESPA. As
discussed below, HUD is also considering a provision that would allow
loan originators a limited period of time to remedy any potential
violations of the tolerances established under the rule, and thereby
ease their possible exposure to liability for such violations.
Discussion. In enacting RESPA, Congress sought to protect consumers
from unnecessarily high settlement charges. Accordingly, HUD believes
that charging of a fee in excess of the tolerance, or other failure to
follow the GFE requirements, constitutes a violation of Section 5 of
RESPA.
HUD is soliciting comments on whether to add a provision to HUD's
regulations that would allow loan originators, for a limited time after
closing, to address the failure to comply with tolerances under HUD's
GFE requirements, and if so, how such a provision should be structured.
HUD is considering providing in the final rule that if, within a
specified period (such as 14 business days) after the closing, a loan
originator identifies a charge that exceeded the tolerance and repays
the excess amount of the charge to the consumer within the specified
period, the loan originator would be in compliance with Section 5. HUD
is interested in commenters' views on whether such a procedure would be
useful, and if so, what would be the appropriate time frame for finding
and refunding excess charges. HUD is also soliciting comments on
whether such a provision could be abused and therefore harmful to
consumers, and whether the ability of prosecutors to exercise
enforcement discretion obviates the need for such a provision.
F. Lender Payments to Mortgage Brokers--Yield Spread Premium (YSP)
Background. Lenders routinely provide the funds for mortgages that
mortgage brokers originate for borrowers. Mortgage brokers also may be
compensated for their services in originating the mortgage by the
borrower and/or the lender. When the interest rate on the loan exceeds
the par interest rate of the lender, the lender pays the broker at
closing an amount in excess of the principal amount of the loan, and
this excess is commonly referred to in the mortgage industry as a
``yield spread premium'' (YSP). For the past decade, such payments have
been the subject of numerous lawsuits and consumer complaints,
typically because consumers claim they were unaware that their broker
was receiving such compensation, in addition to the direct compensation
they paid the broker. Moreover, these consumers assert that such
payments resulted from their being placed in mortgages with higher than
necessary interest rates without their knowledge. Some consumer
advocates have argued that all such payments should be treated as
referral fees or kickbacks and thus should be illegal per se under
RESPA.
HUD has taken the position, however, that YSPs can be useful and
should remain available as an option for mortgage borrowers to help pay
their closing costs, particularly those borrowers with limited
available cash who choose to pay some or all closing costs through a
higher interest rate. HUD made its position on the issue clear in HUD's
Policy Statement 2001-1 (2001 Policy Statement).\16\ In the 2001 Policy
Statement, HUD restated its view \17\ that as long as the broker's
compensation is for services, and total compensation is reasonable,
interest rate-based lender payments to the mortgage broker are legal
under RESPA. HUD did not mandate new disclosure requirements in the
2001 Policy Statement, but did commit itself to making full use of its
regulatory authority to establish clearer requirements for disclosure
of mortgage broker fees, and to improve the settlement process for
lenders, mortgage brokers, and consumers.\18\ In the 2001 Policy
Statement, HUD stressed that disclosure of broker compensation was
``extremely important and that many of the concerns expressed by
borrowers over YSPs can be addressed by disclosing YSPs, borrower
compensation to the broker, and the terms of the mortgage loan, so that
the borrower may evaluate and choose among alternative loan options.''
\19\ In brief, it has been HUD's consistent position that the existence
of a YSP in any loan should be at the borrower's choice, based upon a
complete understanding of the trade-off between up-front settlement
costs and the interest rate.
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\16\ Real Estate Settlement Procedures Act Statement of Policy
2001-1, Clarification of Statement of Policy 1999-1 Regarding Lender
Payments to Mortgage Brokers, and Guidance Concerning Unearned Fees
under Section 8(b), published October 18, 2001, at 66 FR 53052.
\17\ 66 FR 53052.
\18\ 66 FR 53052.
\19\ 66 FR 53056.
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HUD's current RESPA regulations require that a rate-based payment
from a lender to a broker be reported on the GFE, and later on the HUD-
1. Such payments are frequently characterized on the GFE and HUD-1 as a
``YSP'' or ``yield spread premium,'' and then are designated as a
``paid outside closing''
[[Page 14042]]
or ``POC.'' \20\ The YSP is not often understood by the borrower. In
addition, it is not listed as an expense to the borrower. At the same
time, many brokers hold themselves out as shopping among various
funding sources for the best loan for the borrower, and do not explain
to the borrower that the payment they receive from the lender is
derived from the borrower's interest rate. Some may even assert that
the YSP is not a payment the borrower needs to be concerned with. The
2001 Policy Statement emphasized that earlier disclosure and the entry
of yield spread premiums, as credits to borrowers would ``offer greater
assurance that lender payments to mortgage brokers serve borrowers'
best interests.'' \21\
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\20\ ``YSP POC'' sometimes appears on the second page of the
HUD-1/1-A to represent ``Yield Spread Premium Paid Outside of
Closing,'' which is rarely understood by borrowers as a payment they
make out of their above-par interest rate.
\21\ 66 FR 53056.
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2002 Proposed Rule. The 2002 Proposed Rule provided that on the
GFE, all brokers first disclose their total compensation charges and
disclose any YSP as a lender payment to the borrower and discount
points as additional borrower payments. The amounts of any lender
payment or discount points would be combined with the total origination
charges, to arrive at a net origination charge. It was this final
figure that was to be emphasized and highlighted for borrower
comparison among lenders and brokers.
The purpose of these changes in the GFE disclosure requirements, as
proposed by the 2002 Proposed Rule, was to: (a) Make the borrower aware
of the fact that the lender payments were a part of total origination
costs, since they were directly related to the borrower's choice of a
higher interest rate and monthly payment; (b) ensure that these
payments worked to reduce out of pocket costs of the borrower; and (c)
encourage the borrower to compare net origination costs of all loans
whether from a lender or a broker, in order to select the loan product
that best meets the borrower's needs. The rationale for the disclosure
changes was to promote transparency, reduce borrower confusion,
facilitate shopping, and, at the same time, avoid giving any
competitive advantage to brokers or lenders in the marketplace.
Nearly all commenters on the 2002 Proposed Rule that discussed YSPs
other than individual mortgage brokers or their national and state
associations expressed support for greater broker fee disclosure.
Consumer representatives, in particular, were strong supporters of
disclosure along the lines that HUD proposed, and offered suggestions
for making the requirements more enforceable. Consumer groups recounted
the class action litigation that resulted from the payment of yield
spread premiums and HUD's past statements committing the Department to
ensuring better disclosure of yield spread premiums. The National
Consumer Law Center (NCLC) said that to date, yield spread premiums are
generally paid by the lender solely as compensation for a higher
interest rate loan. In most cases, according to NCLC, the borrower is
not only paying an up-front fee, but is also paying a higher interest
rate as a result of being steered into above-par loans. Consumer groups
asserted that the YSP should be defined for the consumer in simple,
easy-to-understand language on the GFE.
Lenders and their trade groups, on the other hand, tended to favor
HUD's requiring a separate Mortgage Broker Fee Agreement, as proposed
by the lending industry in the last few years, which would be entered
into by brokers and their customers, in addition to the GFE.
Mortgage brokers and their trade groups expressed vigorous
opposition to disclosing the YSP as a credit to the borrower. They
maintained that such a characterization is misleading, unfair, and
anti-small business. The brokers stated that HUD's proposal: (1)
Created confusion for the borrower; (2) would unnecessarily increase
HOEPA transactions; (3) would stifle FHA and low/moderate-income
lending; (4) would unfairly target brokers; (5) would create an uneven
playing field with retail lenders; and (6) could adversely affect tax
treatment of borrowers.
FHA Issue. Currently, FHA regulations limit origination fees for
loans insured under the FHA program generally to one percent of the
mortgage amount (see 24 CFR 203.27(a)(2)(i)). FHA does not have
authority under the National Housing Act (12 U.S.C. 1709(b)(2)) to
limit payments between loan originators, and yield spread premiums are
not included in calculating the FHA limits on origination fees. Some
industry commenters argued that the YSP disclosure, as proposed in
2002, would have adversely affected the origination of FHA loans.
Specifically, the National Association of Mortgage Brokers (NAMB)
commented that if the 2002 Proposed Rule were finalized, many mortgage
brokers would cease to originate FHA loans because of the origination
fee limitation. The MBA and some of its member firms argued for removal
or adjustment of the FHA origination fee cap.
RESPA Roundtables. At the 2005 RESPA Reform Roundtables, consumer
representatives generally continued to support disclosure of yield
spread premium on the GFE. Mortgage broker representatives maintained
their opposition to any yield spread premium disclosure on the GFE on
the grounds that disclosure would put mortgage brokers at a competitive
disadvantage as compared to lenders. Mortgage brokers also stated that
if brokers are required to disclose yield spread premiums, lenders
should also be required to disclose par, plus pricing, and gain on
sales in the secondary market. Many lender representatives at the
roundtables noted that it would be difficult for a lender to disclose
any profit on a loan sold in the secondary market on the GFE, since the
amount could not be ascertained with any certainty in advance, but in
general, they did not express support for or opposition to a
requirement for broker disclosure of the yield spread premium. Some
participants at the roundtables, including consumer as well as industry
representatives, recommended the use of a separate mortgage broker fee
agreement in lieu of the yield spread premium disclosure requirement.
The Proposed Rule. Lender payments to mortgage brokers in table
funded and intermediary transactions should be clearly disclosed to
consumers on the GFE, and on the HUD-1 settlement statements as set
forth below. The proposed rule would also streamline the current
regulatory definition of ``mortgage broker.''
Discussion. For the past decade, HUD has required the disclosure of
YSPs on the GFE and HUD-1 documents as a ``payment outside closing'' or
``POC.'' This means of disclosure proved to be of little use to
consumers. Moreover, notwithstanding that lender payments to brokers
are directly based on the rate of the borrower's loan, under current
HUD guidance, such lender payments are not required to be included in
the calculation of the broker's total charges for the transaction, nor
are they clearly listed as an expense to the borrower. The confusion
that can result when borrowers do not understand that mortgage brokers'
total compensation includes lender payments derived from the interest
rate is exacerbated by the fact that many brokers hold themselves out
as shopping among various funding sources for the best loan for the
borrower, while failing to explain to the borrower that the payment
they receive from the lender is derived from the borrower's interest
rate. On the other hand, some brokers tell their customers
[[Page 14043]]
how they can use lender payments to lower the customer's up-front
settlement costs.
The 2001 Policy Statement made clear that earlier disclosure and
the entry of yield spread premiums as credits to borrowers would
``offer greater assurance that lender payments to mortgage brokers
serve borrowers' best interests.'' \22\ HUD could not mandate new
disclosure requirements in the 2001 Policy Statement. HUD did, however,
commit itself in the 2001 Policy Statement to making full use of its
regulatory authority to establish clearer requirements for disclosure
of mortgage broker fees, and to improve the settlement process for
lenders, mortgage brokers, and consumers.\23\
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\22\ 66 FR 53056.
\23\ 66 FR 53053.
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It is for this reason that HUD proposed its new disclosure
requirements in the July 2002 Proposed Rule. Having carefully
considered the NAMB's and other comments in response to the 2002
proposal, as well as the comments presented at the RESPA Roundtables,
and the results of consumer testing by the Federal Trade Commission
(FTC) and HUD, as discussed below, HUD maintains that while YSPs to
mortgage brokers must be clearly disclosed to borrowers, at the same
time, mortgage brokers also must not be disadvantaged in the
marketplace, since such disadvantage will only result in decreased
competition and higher costs to consumers. Many mortgage brokers offer
products that are competitive with and frequently lower priced than the
products of retail lenders, as evidenced by brokers' large and growing
share of the loan origination market, and HUD wishes to preserve
continued competition and lower cost choices for consumers.
Today's proposed rule also streamlines the current regulatory
definition of ``mortgage broker.'' Under the proposed definition,
``mortgage broker'' means a person (not an employee of the lender) or
entity that renders origination services in a table funded or
intermediary transaction. The definition would also apply to a loan
correspondent approved under 24 CFR 202.8 for FHA programs.
The proposed definition would eliminate the current exclusion of an
``exclusive agent'' of a lender from the definition of ``mortgage
broker.'' The current definition essentially excludes some persons who
perform the same services as mortgage brokers as defined in 24 CFR
3500.2. In order to improve disclosure of settlement charges and
increase transparency, HUD believes that all persons who perform
mortgage broker services should be subject to the disclosure
requirements. Therefore, an ``exclusive agent'' of a lender who is not
an employee of the lender, but who renders origination services in a
table funded or intermediary transaction, would be subject to the
mortgage broker disclosure requirements set forth in this proposed
rule.
HUD Research on Mortgage Broker Disclosures
1. HUD's Testing of the GFE. In October 2002, HUD contracted with a
communication and consumer testing expert, Kleimann Communication
Group, to revise and test the GFE and mortgage package forms,\24\ in
order to assure that the forms were user-friendly and enabled consumers
to identify the least expensive loan. With respect to the GFE, the
testing had the additional purpose of showing and explaining yield
spread premiums and discount points to borrowers. New homebuyers and
experienced homebuyers were part of the groups tested. The groups
included members from diverse racial and ethnic groups, the elderly,
and low-education and low-income groups. The testing of the GFE form
was conducted in two phases.
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\24\ As noted in Section III above (Overview of HUD's Efforts
Since 2002), the 2002 Proposed Rule included a ``guaranteed mortgage
package agreement'' or ``GMPA,'' and HUD's contractor initially
tested both the GFE and GMPA forms. In subsequent rounds of testing,
the name of the GMPA form was changed to ``mortgage package offer''
or ``MPO'' and is referred to in this document as ``MPO.''
---------------------------------------------------------------------------
2. Phase 1 HUD Testing. In Phase 1, the contractor conducted three
rounds of one-on-one testing interviews to collect data about form
comprehension and potential sources of confusion. The goal of the
testing was to fine-tune and develop the GFE form and ensure that
consumers can use the GFE in the way intended. Testing in this phase
solicited consumer feedback through individual interviews with
consumers as they actually used the GFEs in the simulated task of
buying a home and needed to select between several loan offers. The
data provide guidance about problems consumers have and the reasons for
those problems. This phase consisted of three rounds of testing.
Each of the first two rounds of testing involved interviews with a
total of 45 consumers in three cities. The contractor made several
format and language changes to the form, as it was published in the
July 2002, proposed rule, to improve readability and clarity. Among
other changes, a summary page was developed and tested, with the
specific charges for individual categories of settlement services
appearing on a second page of the form. Kleimann then developed a
comprehensive testing protocol that addressed the key objectives of the
GFE form for consumers. The interviews with each participant lasted for
90 minutes with a 10-minute break. The interviews had two parts, one
unstructured and one structured. In the unstructured portion of the
interview, participants were asked to think aloud as they looked at
each form for the first time. This unstructured and unprompted portion
of the interview allowed Kleimann to capture users' initial reactions,
including to areas that they responded well, to areas they did not
understand, and to areas they questioned. The unstructured portion also
ensured that the testers did not influence the comments of the
participants by leading them to discuss information they would not have
noticed on their own.
In the structured portion of the interview, Kleimann gave each
consumer completed GFEs (as well as MPOs) and asked targeted questions
to determine how well participants understood certain areas of the
forms, whether the consumers could determine the least expensive loan,
and how the forms might be improved. The study design focused on how
the forms performed as stand-alone documents. The interviewer neither
helped the participant understand any of the information on the forms
nor answered any questions the participant asked to clarify
information.
In these tests, 90 percent of participants chose the least
expensive loan, when confronted with a choice between a GFE
representing a loan from a lender (with no YSP shown) and a GFE
representing a loan from a broker (with the YSP disclosed). The
percentage increased slightly to 93 percent when an MPO was included as
a third option.
Participants also understood the forms well. They could identify
the basic loan costs and loan features. Over 90 percent could identify
the total estimated settlement charges. The tested forms retained the
trade-off table shown on the forms in the 2002 Proposed Rule, showing
borrowers that if they wanted to receive a lower interest rate, they
would have to pay more at settlement, and vice versa; 90 percent
understood the trade-off table. About two-thirds of the participants
could distinguish between items they, as consumers, could shop for and
items for which they would use the broker's or lender's
[[Page 14044]]
providers; almost two-thirds could explain the adjusted origination
charge; and 70 percent of participants were able to identify the
tolerances correctly in round 2 testing.
During the testing, Kleimann asked participants a number of
questions about how they felt about the forms--how comfortable or
uncomfortable they felt with the forms, what they liked and disliked,
and how they perceived the information and the level of writing.
Participants reacted very positively to the GFE layout and language,
and to the clear delineation of charges. They found the summary page on
page 1, the breakdown of charges on page 2, and the trade-off table on
page 3 to be particularly useful. In round 2 of testing, 86 percent
said the GFE had the right information for them, almost 90 percent said
the GFE was written at the right level for them, and about two-thirds
of participants said they were comfortable with the forms.
This testing was designed to see how the GFE form would perform as
a stand-alone document. The interviewer neither coached nor led the
participant by asking questions before the participant could work alone
with the document. While this technique identifies how well
participants use the GFE form as a stand-alone in a testing situation,
consumers using these forms in the context of actual situations may
perform even better. First, this testing involved no interaction at all
between the potential borrower and a loan originator. In an actual
situation, a loan originator would be able to answer borrower questions
about the information on the forms and improve the borrower's
understanding of it. Of course, some originators might try to confuse
the borrower in order to collect higher fees, but a competitor might be
more than willing to clear up that confusion, since doing so might get
him the borrower's business. In addition to the help coming from the
originator, borrowers could always ask someone else for help: A spouse,
friend, their real estate agent, etc. Moreover, local consumer groups
that focus on lending issues will also assist borrowers in
understanding the new, streamlined GFE form. Since none of these
sources were available during the testing, the Kleimann results should
be viewed as underestimates of how much the new forms will help
consumers once the forms are placed in an actual context of obtaining
financing to purchase a home or refinance an existing loan. The third
round of testing consisted of 60 participants, with 15 each in four
cities, following the same procedures as in the first two rounds of
testing.\25\ The GFE form was changed in order to consider whether an
alternative presentation of the discount points and yield spread
premium, suggested by the National Association of Mortgage Brokers,
would increase consumer understanding. The yield spread premium (YSP)
and discount point disclosure was removed from the top of page 2, where
it had been integrated into the calculation of total up-front charges
to the borrower, and moved to page 3. As a consequence, page 2 included
only the adjusted origination charge at the top. Thus, otherwise
identical loans from a broker and a lender would have identical figures
on page 2 as well as on page 1 of the summary. Page 3 contained the YSP
and discount points. The form did not include a full calculation of
total broker compensation, and thus differed from both the proposed
rule and the first two rounds of testing.
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\25\ The cities were Wilmington (Delaware), Tulsa, Minneapolis,
and Los Angeles.
---------------------------------------------------------------------------
The results showed that participants could continue to identify the
cheapest loan: 93 percent of the participants correctly selected the
broker loan as the cheaper loan as opposed to 90 percent in round 2.
Also, in round 3 of testing, 89 percent of participants would have
chosen the cheaper broker loan as opposed to 86 percent in round 2.
None of the differences between these percentages in round 2 and round
3 is statistically significant. Also, as in the first two rounds,
participants generally liked the form and would use it to comparison
shop. They could identify the basic terms of the mortgage and the
estimate of total settlement costs, and 86 percent understood the
trade-off table. The material seemed to be presented at the right level
and to be clearly laid out. Participants again identified the summary
page, the breakdown of charges, and the trade-off table as useful.
However, participants had trouble understanding the concepts of YSP
and discount points.\26\ Only 3 percent and 30 percent, respectively,
of the participants could paraphrase what YSPs and discount points
represented, leaving over two-thirds of the participants unable to
paraphrase. Participants did not understand how these two concepts (now
located on page 3) related to other settlement charges (on page 2).
Essentially, placing these terms outside the calculation of origination
charges (that is, on page 3 instead of page 2 as in the first two
testing rounds) seems to decrease participants' understanding of how
the YSP and discount points fit into total loan costs. Since there was
no significant improvement in participants' ability to determine the
cheapest loan, and most participants did not understand the concept of
YSP, HUD decided to keep the YSP on page 2 in the calculation in the
2005 Proposed Rule, as was the case in the 2002 Proposed Rule.
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\26\ These results are consistent with the work of Jackson and
Berry (2001) and Woodward (2003a).
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3. FTC Testing. During the same period that HUD was developing the
revised GFE, FTC tested the effect of YSP disclosure to see if the
disclosure had an adverse effect on the consumer's ability to
comparison shop. Using a variation on the GFE form tested by Kleimann
in round 2 testing, FTC extracted and tested a portion of the form. The
first page of the extract consisted of an abbreviated version of the
Summary Table from page 1 of the GFE. The second page of the extract
contained the ``Your Charges for Loan Origination'' box and an
abbreviated version of the ``Your Charges for All Other Settlement
Services'' box from page 2 of the GFE. As a control, FTC took these
same two extracts and eliminated the YSP and service charge, producing
a second set of extracts. Thus, FTC isolated elements of the proposed
GFE and created two variations of their extracts: with the YSP and
without the YSP. FTC also tested the YSP disclosure from the GFE in
HUD's 2002 Proposed Rule, and an alternative disclosure using language
developed by FTC to describe the YSP and other loan terms.
FTC testers gave each participant a pair of loan extracts to
evaluate: one had no YSP and thus represented a lender loan, and the
other contained a YSP and thus represented a broker loan. The broker
loan was $300 less than the lender loan. FTC asked participants which
loan was cheaper and also which loan the participant would choose. Each
participant also received a second set of extracts in which each loan
offer was the same cost. The participants were asked the same two
questions: which loan was cheaper and which loan would the participant
choose.
FTC tested five groups with 103 or 104 participants per group. The
results using the GFE variation of HUD's second round of testing are
most relevant to the 2005 Proposed Rule. When the YSP was disclosed and
the broker loan offer was cheaper, 72 percent of participants could
correctly identify the broker loan as the cheaper loan; 17 percent
incorrectly identified the lender loan as cheaper. Asked to identify
which loan offer they would choose, 70 percent of participants
[[Page 14045]]
would have chosen the cheaper broker loan; and 16 percent would have
chosen the lender loan. In contrast, when the form extract did not
disclose the YSP, 90 percent correctly identified the broker loan as
cheaper, and 85 percent would have chosen it. Disclosing the YSP caused
an 18 percent drop in participants correctly identifying the cheaper
loan and a 14 percent drop in the number who would choose it in the
market. When costs of the broker and lender loans were the same on GFE
forms that contained the YSP, participant performance decreased. Fifty-
three percent reported that the loan costs were a tie; 30 percent
believed the lender was cheaper; 11 percent believed the broker was
cheaper. When asked to identify which loan offer they would choose, 25
percent of the participants chose either the lender or the broker loan
offers; 46 percent selected the lender loan offer; and 17 percent
selected the broker offer. In contrast, when the form omitted the YSP,
96 percent correctly identified the tie, and 78 percent chose one or
the other as their preference.
FTC concluded that the YSP disclosure on the GFE form extract it
tested had two drawbacks. First, its YSP disclosure impaired the
ability of borrowers to comparison shop leading many to choose the more
costly alternative. Second, the YSP disclosure introduced bias in the
selection process that favored lenders over brokers. The Department's
goal is to promote consumer shopping for mortgages and to prevent bias
against any loan originator.
4. Phase 2 HUD Testing. FTC conducted its tests in February and
March of 2003, and briefed HUD on the results during the summer of
2003. HUD decided to undertake additional testing and to incorporate
the FTC test results in the further testing. For round 4 of testing,
HUD asked Kleimann Communication Group to parallel aspects of the FTC
study, including the questions asked, the difference between the
amounts of each offer, and the length of the test situation.\27\ HUD
continued to test a full-length GFE rather than the portion tested by
FTC, because HUD thought that the context of the entire form might
provide a more accurate measure of participants' understanding of the
GFE.
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\27\ Kleimann's report, entitled Consumer Testing Results for
HUD's Good Faith Estimate (GFE) Form: Rounds 4 & 5 (dated March 19,
2004), provides information on the specific characteristics of the
consumers tested, revisions that Kleimann made to the form and the
reasons for those revisions, the specific cities where the tests
were conducted, the testing protocols, testing conditions, and the
main results from each round of testing.
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For round 4 of testing, 600 participants were selected; all
received full GFEs. The control group received GFEs that omitted the
YSP disclosure, while the experimental group received GFEs with the YSP
disclosed. Each participant was given two pairs of loans: one in which
the broker loan was $300 less than the lender and one in which the
broker and lender loan offers were the same cost. Each participant was
asked three questions for each set of GFEs: (1) Which offer was cheaper
or if they cost the same, (2) which offer would they choose, and (3)
why they made that choice. The results of this testing showed both
consistency with and divergence from the FTC results.
When the YSP was disclosed, 83 percent of the participants
correctly identified the broker loan as cheaper, and 8 percent
incorrectly identified the lender as cheaper. These results were an
improvement over the FTC results of 72 percent and 17 percent. In this
GFE scenario, 72 percent of the participants said they would choose the
broker offer and 11 percent said they would choose the lender.
Similarly, in the FTC study, 70 percent of the participants chose the
broker offer and 16 percent chose the lender offer.
When the YSP disclosure was removed, 92 percent correctly
identified the broker loan as cheaper, and 1 percent incorrectly
identified the lender as cheaper. These results are quite similar to
FTC's results of 90 percent and 4 percent. When asked to choose a loan,
88 percent of participants chose the broker offer, while 1 percent
chose the lender loan. These results compare to 85 percent and 3
percent respectively in the FTC testing.
When given same cost loan offers with a YSP, 81 percent correctly
identified both loans as costing the same; 15 percent incorrectly
identified the lender as cheaper; and 3 percent incorrectly identified
the broker as cheaper. In contrast, in the FTC study, only 53 percent
correctly identified the offers as costing the same; 30 percent
incorrectly identified the lender as cheaper; and 11 percent
incorrectly identified the broker as cheaper. In this GFE scenario, 50
percent of participants would have chosen either offer; 39 percent
chose the lender offer; and only 5 percent chose the broker's. In
contrast in the FTC study, only 25 percent chose either offer; 46
percent chose the lender offer; and 17 percent chose the broker's
offer.
Of particular concern was the difference between participants who
could identify the cheapest loan offer, but did not choose it. Analysis
of the participant responses to the open-ended question of ``why did
you choose that offer'' led to further modifications of the GFE to
address this concern and to a fifth round of testing. In many comments,
participants stated that they chose a particular offer because they did
not want the ``higher interest rate'' indicated on page 2 of the GFE.
They concluded from the language on the YSP disclosure that the
interest rate was higher than the rate cited on page 1 under ``Loan
Details.'' Also, many of those who had no preference for the cheaper
broker loan indicated that $300 was not a sufficient difference to be a
deciding factor.
As a result of the testing and analysis, revisions were made to the
GFE. First, the language in box 2 on page 2 of the GFE referring to the
``higher interest rate'' and ``lower interest rate'' was modified to
reduce the possibility of borrowers'' misinterpreting that the interest
rate had changed from what was reported on the first page. Second, a
third option was added to the YSP/discount points section on page 2 so
a lender could indicate that its credits or charges were already
included in ``Our Service Charge.'' This addition was designed to
ensure that participants would understand that a lender's origination
charge might include a YSP or discount points, even though the YSP or
points would not necessarily be known at the time of settlement,
because the loan would not have been sold into the secondary market.
The third option thus creates a closer parallel between broker and
lender loans. Third, arrows were added on pages 1 and 2 to focus the
borrower's attention on the subtotals and the total estimated charges,
rather than on individual components. In addition, the typeface point
size in the Total Estimated Settlement Charges on the bottom of page 1
was increased to further draw attention to the bottom-line.
For purposes of testing, three other changes were made to the GFEs.
First, the difference in the total cost was changed to $500, to
increase the likelihood that the difference would be a deciding factor.
Second, another pair of loan options was added in which the lender
offer was $500 less than the broker offer. This addition was intended
to identify any bias for or against the broker and lender options.
Finally, a set of four loans was added, to investigate whether the
comparison across more than two offers increased or decreased
participant performance. No version was tested without the YSP and
discount points language.
[[Page 14046]]
For round 5 of testing, 600 participants were divided into two
groups, both of which received the revised GFE.\28\ The first group
received the revised GFE with changed language and with the addition of
a third option so that lenders could indicate that YSP and discount
points had been included in ``Our Service Charge.'' The second group
received the identical revised GFE, but the third option box was
removed. All participants received three pairs of loans, one with the
broker offer being lower by $500, one with the lender offer being lower
by $500, and one in which both offers were the same. In addition, each
participant received a set of four offers to compare.
---------------------------------------------------------------------------
\28\ Participants were chosen for demographic diversity in the
same five cities: Atlanta, Boston, Denver, Seattle, and Tulsa. No
participant from round 4 was permitted to participate in round 5.
---------------------------------------------------------------------------
The three option GFE and the two option GFE performed quite
similarly with the three option form consistently getting slightly
better results. The proposed rule therefore discusses only the three
option form, and that form is included in the proposed rule.
In the GFE in which the broker was cheaper, 92 percent of the
participants correctly identified the broker as the cheaper loan offer.
This result represents an improvement over the 72 percent reported by
the FTC study and the 83 percent reported in the round 4 results. Only
3 percent of the participants incorrectly identified the lender as the
cheaper loan offer, compared to the 17 percent reported by the FTC and
8 percent in round 4. When asked to choose a loan, 87 percent of the
participants chose the cheaper broker loan as compared to 70 percent of
the participants in the FTC study and 72 percent of the participants in
round 4. These results of round 5 of testing are significantly better
than the FTC's results and are based on a much larger sample.
In the GFE in which the lender was cheaper, 92 percent of the
participants correctly identified the lender as the cheaper loan offer.
Only 1 percent incorrectly identified the broker as cheaper. When asked
to choose a loan, 89 percent of the participants chose the lender loan
and less than 1 percent chose the broker.
The purpose of testing the case in which the lender was cheaper
than the broker was to test for bias by seeing if the GFE forms
performed equally well when either the lender or broker was the cheaper
loan. A comparison of the results indicates that there is no bias
against brokers when the loans have different borrower costs.
In the GFE in which the broker and lender loan offers were of equal
cost, 90 percent of the participants were able to correctly identify
that fact. This result compares very favorably with the 53 percent
reported by FTC and the 81 percent from round 4 of testing.
Participants in round 5 misidentified the lender as cheaper seven
percent of the time, compared to 30 percent in the FTC results and 15
percent in round four. Participants misidentified the broker as cheaper
1 percent of the time as compared to 11 percent in the FTC study and 3
percent in round 4. Participants said they would choose either loan 70
percent of the time, a dramatic increase over the 25 percent in the FTC
study and the 50 percent in round four. Twenty-one percent would choose
the lender as compared to 46 percent in the FTC study and 40 percent in
round 4. Four percent of participants chose the broker compared to 17
percent in the FTC study and 5 percent in round 4 of testing.
To further test whether increased context improved or decreased
consumer performance with the revised GFE, the Department asked
Kleimann to give the participants a four-loan comparison as well. For
this four-way comparison, HUD included a blank worksheet or shopping
chart to aid participants in comparing the loans, as page 4 of the GFE
form. The worksheet contained spaces for the originator's name, loan
amount, interest rate, term, monthly payment, adjusted origination
charge, charges for all other settlement services, and total estimated
settlement charges. On page 1 of the GFE, a sentence telling
participants to use the table to compare offers was inserted.
Additionally, half of the participants were given explicit verbal
directions to use the worksheet.
The 300 participants who had received the three option GFE were
included in this four-way comparison. Half were given a set in which a
broker loan offer was the cheapest. The other half were given a set in
which a lender and a broker loan offer cost exactly the same and were
the cheapest at $6,500. Only 150 participants received explicit verbal
instructions to use the worksheet in their comparison, while half
received no instructions.
In the comparison in which a broker loan offer was the cheapest, 92
percent of participants who were not verbally reminded to use the
comparison worksheet correctly reported the broker loan as the
cheapest. Very few of the participants who were not verbally reminded
to use the comparison worksheet used it. When instructed to use the
comparison sheet, many participants did, and 97 percent correctly
identified the broker loan as the cheapest. The overall success rate
for correctly identifying the correct loan as the cheapest for both
those getting and those not getting the verbal instructions to use the
comparison worksheet was 95 percent, with only 1 percent misidentifying
a lender loan as cheaper.
In the case where both loans cost the same and no verbal
instructions were given to use the comparison sheet, 41 percent picked
the broker loan as cheaper and 49 percent picked the lender loan. With
verbal instructions to use the worksheet, 57 percent picked the broker
at $6,500 and 35 percent picked the lender at $6,500. The combined
average was 49 percent for the broker and 41 percent for the lender.
There was no bias against the broker when costs were the same.
5. Sixth Round of Testing. HUD conducted a sixth round of consumer
testing in November 2007. The testing consisted primarily of
qualitative tests of the GFE and an introductory qualitative test of
the closing script (referred to in testing as ``the summary'').
Compared to previous rounds of testing, the testers found that
participants were more aware, due to recent intensive media coverage of
mortgage market difficulties, personal experience, and the experiences
of relatives and friends, of the issues facing a consumer choosing a
mortgage loan. The modifications to the GFE for round 6 included an
expanded disclosure of loan terms on page 1 of the GFE, clarifying
language regarding the important dates when actions must be taken by
the consumer, changes in the title and description of government
recording and transfer charges, and new language regarding additional
compensation lenders may receive after closing for selling the loan.
Consumers appreciated the enhanced loan terms disclosures designed
to alert the borrower to potentially unfavorable changes in their
obligations during the term of their loans. Participants stated that
they liked the form length, the language of the GFE, and the layout of
pages 1 and 2. Participants appreciated the trade-off table on page 3
and used it to compare loans. As a result of the round six testing,
information on the existence of an escrow account was added in the
``Summary of your loan terms'' section on page 1, and a section
entitled ``Your financial responsibilities as a homeowner'' was added
at the top of page 4. Finally, the tolerance presentation was changed
from a pure list of headings and bullets on page 3,
[[Page 14047]]
to bullets within columns according to the tolerance that applies.
Testers conducted settlement/closing simulations to test the idea
of the closing script. Participants thought the loan details were clear
and understandable and reacted positively to having the summary read
aloud. Participants were more attentive to loan details, were more
aware of the tolerance categories and how they related to charges, and
were better able to identify tolerance violations when the script was
read aloud than when they reviewed the script documents independently.
Revisions to the GFE Based on Testing
The GFE form proposed today is the result of an iterative testing
process comprised of six rounds of consumer testing of the form during
the 2003-2007 period. HUD's testing contractor used the data collected
from testing participants during each round to improve and modify the
form throughout the testing process. A summary report with detailed
information on each round of testing is available at http://
www.huduser.org/publications/hsgfin/GoodFaith.html. Based on this
testing, HUD has made revisions in the GFE disclosure form and now
presents the net origination charge on the first page of the form as
``your adjusted origination charges.'' This amount is added to the
charges for all other services to arrive at the total estimated
settlement charges for the mortgage on the first page. This new
approach to disclosure helps consumers focus appropriately on the net
charges of the originator when comparing similar loans, from either a
lender or a broker, and on the total estimated settlement charges. The
fourth page of the form provides a Mortgage Shopping Chart that also
helps borrowers compare total charges for various mortgage loans.
The second page of the new GFE informs the consumer how the
adjusted origination charge is computed. Block 1 discloses as ``Our
service charge'' the originator's total charge to the borrower for the
loan. (The form no longer refers to this total charge in Block 1 as
``maximum'' compensation.)
Today's proposed rule proposes to require that in the case of loans
originated by mortgage brokers, the amount in Block 1 must include all
charges received by the broker and any other originator for, or as a
result of, the mortgage loan origination, including any payments from
the lender to the broker for the origination. In the case of loans
originated by originators other than mortgage brokers, the amount in
Block 1 must include all charges to be paid by the borrower that are to
be received by the originator for, or as a result of, the loan
origination to the borrower, except any amounts denominated by the
lender as discount points or amounts that the lender chooses to call a
credit and which are disclosed in Block 2.
Block 2 discloses for loans originated by mortgage brokers whether
there is any charge or a credit to the borrower for the specific
interest rate chosen for the GFE. The second check box indicates
whether there is a payment for a higher interest rate loan described,
as the ``credit of $---- for this interest rate of --%. This credit
reduces your upfront charges.'' The third check box indicates any
``charge of $---- for the interest rate of --%. This payment (discount
points) increases your upfront charges.'' Any lender payment is then
subtracted and any points are added to arrive at ``your adjusted
origination charge'' that is also disclosed on the first page of the
form. For mortgage brokers, the amounts of any charge or credit in
Block 2 must equal the difference between the price the wholesale
lender pays the broker for the loan and the initial loan amount.
At page 2, while lenders are not required to check the second or
third boxes of Block 2, in loans where they do not make such
disclosures, they are required to check box 1 that indicates that ``The
credit or charge for the interest rate chosen is included in the
service charge.'' If lenders denominate any amounts due from the
borrower as ``discount points,'' they must check the third box
indicating that there are charges for the interest rate and enter the
appropriate amount for points as a positive number. If lenders
denominate any amounts as a credit to the borrower for the particular
interest rate covered by the GFE, they must check the second box and
enter the appropriate amount as a negative number. Lenders must also
add any such positive amounts or deduct any negative amounts to arrive
at ``Your Adjusted Origination Charge,'' which is also to be disclosed
on page 1 of the form.
Considering that mortgage brokers are required to disclose payments
from lenders while lenders are not required to disclose payments they
receive from the secondary market, by virtue of the ``secondary market
exemption,'' \29\ HUD considered providing only the adjusted
origination charge and disclosing the YSP and discount points elsewhere
on the form without the calculation. HUD concluded, however, that a
complete disclosure of payments to the broker as presented on page 2 of
the form, read in conjunction with the chart on page 3 of the form, was
essential to borrower understanding of: (1) The broker's total
compensation; (2) how rate-based payments from lenders can help reduce
borrowers' up-front origination charges and settlement costs in
brokered loans; and (3) how payments to reduce the interest rate and
monthly payment increase up-front charges. Because mortgage broker
compensation occurs at settlement and can be readily ascertained, full
disclosure of total broker compensation is appropriate. On the other
hand, even in the absence of the secondary market exemption, a similar
disclosure of lender compensation would not be appropriate because it
is difficult to measure secondary market payments with any precision at
the time of settlement and because a lender may or may not choose to
sell a particular loan at some point in the future. However, the GFE
form includes a notation on page 4 that lenders may also receive an
additional payment if they sell the loan after settlement.
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\29\ As set forth in 24 CFR 3500.5(b)(7), a bona fide transfer
of a loan obligation in the secondary market is not covered by RESPA
and this part, except as set forth in section 6 of RESPA (12 U.S.C.
2605) and 24 CFR 3500.21.
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Furthermore, based on testing by HUD's contractor, as discussed
above, the YSP disclosure without an explanation of its context was not
useful to consumers. On the other hand, based on testing, by moving to
a form that requires in Block 2 that lenders disclose that credits or
charges may be included in their service charge as well, even when the
calculation is on the form for brokered loans, borrowers are not
confused and correctly compare adjusted origination charges between
loans from mortgage brokers and loans from lenders even when the YSP is
included in the calculation of the adjusted origination charge.
Nevertheless, to help borrowers identify the lowest-cost loan without
being confused by the presence of a YSP, HUD established the first page
of the form as a summary page that only includes adjusted origination
charges, moved the ``calculation'' of any credit (YSP) or charge to the
second page of the new GFE, and then established the new Mortgage
Shopping Chart at page 4 to facilitate comparison shopping. HUD is now
convinced that by making these changes, any disadvantage to brokers is
virtually eliminated. Also, consistent with the FTC's 2002 comment, HUD
proposes to include in the revised Special Information Booklet advice
to borrowers that lenders also may receive payments from financial
institutions when they sell the mortgage but are not
[[Page 14048]]
required to disclose such payments and, for this reason, borrowers
should focus on net origination charges of loan originators for
comparable mortgages.
To avoid borrower confusion, the term ``lender payment to the
borrower'' that had been included in the 2002 Proposed Rule also has
been dropped. Through its use of this term in the earlier proposal, HUD
had sought to have borrowers focus on the payment, and understand that
it was a consequence of their choice of rate. HUD now recognizes the
original terminology warranted improvement.
In arriving at changes in the proposed revised GFE form, HUD also
considered the possibility of adopting the Mortgage Broker Fee
Agreement developed by representatives of the lending and brokerage
industries. These forms disclose the total amount of fees to the broker
and explain that the fees may include lender payments, but not the
specific amount of such payments. HUD believes, however, that it is
better for the borrower to understand the lender payment and its
relationship to higher interest rates so that he or she can use the
payment to lower his or her up-front costs, rather than simply to
disclose the possibility of such payment to the borrower. For these
reasons, HUD remains committed to improving the GFE disclosure rather
than requiring yet another new form or agreement.
In its consultations with staff of the Federal Reserve, HUD raised
the concern expressed by some commenters that treating lender payments
to mortgage brokers as a credit toward the origination charges could
increase the points and fees of each brokered mortgage loan, resulting
in more loans coming under HOEPA coverage. Federal Reserve staff
advised HUD that, notwithstanding HUD's changed requirements,
determinations of whether payments to a mortgage broker must be
included in the finance charge and whether a loan is covered by HOEPA
are based on the statutory definitions and requirements in TILA as
implemented by the Board's Regulation Z, which are unaffected by HUD's
RESPA rulemaking.
HUD also recognizes that many loan originators today offer loans
with no up-front fees due from the borrower. These loans have become
more popular over the years. The proposed GFE can easily accommodate
these ``no cost'' loans. In the case where ``no cost'' means no up-
front payment to the loan originator, the figure in Block A equals
zero. This implies that any credit identified in Block 2 would exactly
offset the charge in Block 1. While a mortgage broker would always be
required to enter the actual amount of any yield spread premium in
Block 2, a lender could alternatively enter zero for the credit, in
which case the charge in Block 1 would also have to equal zero so that
the combination to be reported in Block A would equal zero.
Alternatively, the borrower might want to pay a lower interest rate
and monthly payment than that associated with a ``no cost'' loan. The
borrower generally may do this by buying the interest rate down. This
is done by paying an up-front fee to the loan originator that
compensates the loan originator for the lower interest rate and monthly
payments it will receive over the life of the loan. The more the
borrower pays, the lower the interest rate and monthly payments will
be. The amount the borrower pays to buy the rate down shows up in Block
A as a positive number. This would result from a higher value in Block
1 or a higher value in Block 2. (A lower credit in Block 2 or a higher
charge in Block 2 yields a higher value in Block 2, and in Block A as
well.) Thus, either ``no cost'' loans or those where the borrower buys
down the interest rate can be accommodated on the proposed GFE. In the
first case, the value in Block A is zero. In the second, Block A
represents what is paid to buy the interest rate down.
In the case where ``no cost'' encompasses some third party fees as
well as the up-front payment to the loan originator, the figure in
Block A would have to be a negative value large enough to offset the
third party fees covered under this definition of ``no cost.'' For
brokers, who are required to report yield spread premiums, this implies
that the yield spread premium identified in Block 2 as a credit would
be larger than the charge in Block 1. The sum of the positive value in
Block 1 and the negative value, the credit, in Block 2 would equal a
negative value large enough to offset the third party fees. Lenders are
not required to report yield spread premiums. But they are permitted to
enter credits in Block 2. If a lender chooses to do so, then the yield
spread premium identified in Block 2 as a credit would have to be
larger than the charge in Block 1. Just as in the broker case, the sum
of the two would equal a negative value large enough to offset the
third party fees for a ``no cost'' loan. Finally, today's proposed rule
states that loan originators must include all charges correctly within
their prescribed category on the GFE and the HUD-1 (or HUD-1A). The
amounts for categories involving third parties can include only amounts
paid to the third party, and must not include amounts retained by the
loan originator for related services performed by the loan originator.
The amount charged to the borrower and shown on the HUD-1 in an
individual transaction may be based on an average calculated in
accordance with proposed Sec. 3500.8(b)(2). (See Section E discussion
on average cost pricing.) HUD believes these rules are required to
assure that, pursuant to Sections 4 and 5 of RESPA, originators provide
borrowers accurate disclosures of settlement charges on the GFE, HUD-1,
and HUD-1A.
FHA Limit. Under its current regulations, HUD places specific
limits on the amount a mortgagee may collect from a mortgagor to
compensate a mortgagee for expenses incurred in originating and closing
a FHA-insured mortgage loan (see 24 CFR 203.27).\30\ In light of the
considerations below and its proposed changes to the HUD-1/1A, HUD is
today proposing a change to the FHA regulations limiting origination
fees of mortgagees. FHA considered deregulating the loan origination
fee limitation in 1988 (see 53 FR 15408, April 28, 1988), but did not
pursue a final rule at that time.
---------------------------------------------------------------------------
\30\ Under 24 CFR 203.27(a)(2)(i), origination fees are limited
to one percent of the mortgage amount. For new construction
involving construction advances, that charge may be increased to a
maximum of 2.5 percent of the original principal amount of the
mortgage to compensate the mortgagee for necessary inspections and
administrative costs connected with making construction advances.
For mortgages on properties requiring repair or rehabilitation,
mortgagor charges may be assessed at a maximum of 2.5 percent of the
mortgage attributable to the repair or rehabilitation, plus one
percent on the balance of the mortgage. (See 24 CFR 203.27(a)(2)(ii)
and (iii).)
---------------------------------------------------------------------------
HUD believes that its RESPA policy statements on lender payments to
mortgage brokers restrict the total origination charges for mortgages,
including FHA mortgages, to reasonable compensation for goods,
facilities, or services. \31\ While the FHA limit on origination fees
only regulates fees from mortgagors to mortgagees and does not include
any payments between mortgagees, HUD is aware that in recent years
mortgage brokers have routinely utilized yield spread premiums in FHA
mortgage transactions to supplement their compensation beyond the
amount they receive directly from the borrower. Studies by HUD confirm
this.
---------------------------------------------------------------------------
\31\ See Statement of Policy 1999-1, 64 FR 10080, March 1, 1999,
and Statement of Policy 2001-1, 66 FR 53052, October 18, 2001.
---------------------------------------------------------------------------
HUD believes that improvements to the disclosure requirements for
all loans sought to be achieved as a result of the rulemaking should
make total loan charges more transparent and allow market forces to
lower these charges for all borrowers, including FHA borrowers.
Therefore, HUD is proposing in this
[[Page 14049]]
rulemaking to remove the current specific limitations on the amounts
mortgagees presently are allowed to charge borrowers directly for
originating and closing an FHA loan. The FHA Commissioner would retain
authority to set limits on the amount of any fees that mortgagees
charge borrowers directly for obtaining an FHA loan.
The proposed rule would also permit other government program
charges to be disclosed on the blank lines in Section 800 of the HUD-1/
1A.
G. Modification of the HUD-1 Settlement Statement
The Proposed Rule. The current HUD-1/1A Settlement Statements would
be modified to allow the borrower to easily compare specific charges at
closing with the estimated charges listed on the GFE. In addition, an
addendum would be added to the HUD-1/1A that would compare the loan
terms and settlement charges estimated on the GFE to the final charges
on the HUD-1 and would describe in detail the loan terms for the
specific mortgage loan and related settlement information. The
settlement agent would be required to read the addendum aloud to the
borrower at settlement and provide a copy of it at settlement.
Discussion. As recommended at the 2005 RESPA Roundtables, HUD is
today proposing to modify the HUD-1/1A form to make it comparable to
the GFE. The HUD-1 is well accepted as a listing of settlement service
charges by industry and consumers alike. However, there is a risk that
if a borrower cannot easily compare the estimated charges listed on the
GFE with the settlement charges listed on the HUD-1/1A, a settlement
service provider could deviate from the prices listed on the GFE and
the borrower would not realize such deviation prior to closing. Thus,
borrowers would not be able to fully realize the financial savings that
will result from comprehensive RESPA reform. Many participants at the
RESPA Reform Roundtables recommended that in order to ensure the
maximum cost savings to borrowers, the GFE and the HUD-1 should be
easily comparable so that borrowers will be able to compare the
estimated costs with the actual costs at closing. While some
participants recommended that a new GFE be designed to correspond to
the HUD-1, others recommended that the HUD-1 be redesigned to
correspond to a new GFE that includes major cost categories.
HUD recognizes that the HUD-1/1A forms are the most widely used and
accepted forms in the mortgage industry and does not undertake changes
to these forms lightly. However, because HUD believes that the GFE and
the HUD-1 should be easily comparable, today's proposal sets forth
changes to the HUD-1/1A that will allow borrowers to easily compare the
figures on the GFE to the final charges at settlement. The proposed
changes facilitate comparison of the two documents by inserting, on the
relevant lines of the HUD-1/1A, a reference to the corresponding block
on the GFE. With such changes, a borrower would be able to easily
compare a figure in a particular column on the HUD-1/1A with the
corresponding figure on the GFE. In addition, creating new labels for
lines, showing totals while still permitting disclosure of details so
long as not shown in either column or paid outside closing (POC), and
leaving blank lines allows the HUD-1 to still function as an effective
settlement document.
The instructions for completing the HUD-1 will clarify the extent
to which charges for individual services must be itemized. In general,
the HUD-1 must separately itemize every service provided by a third
party (i.e., other than the loan originator) to show the name of the
party ultimately receiving the payment, along with the total amount
received. However, services connected to the origination of the loan
must not be separately itemized, even if a loan originator uses a third
party to perform those services. For example, charges for document
handling or processing should not be separately itemized, but instead
should be included in the loan originator's own charge, since those
types of services are ordinarily performed by the loan originator
itself. Today's proposed rule adds a definition of ``origination
services'' to clarify the types of services that may not be separately
itemized on the HUD-1.
The instructions for completing the HUD-1 also clarify the extent
to which charges for title services must be itemized. In general, the
HUD-1 must separately identify each service provider that is performing
title services, along with the total amount received. If a party other
than the title company listed on line 1101 of the HUD-1 provides
services that are separate from providing title insurance, such as
attorney and settlement or escrow agent services, the title company
should separately itemize those services with the total amount paid to
that provider, to the left of the columns. However, charges for
services defined as ``primary title services'' such as abstract,
binder, copying, document handling, or notary fees, should not be
separately itemized on the HUD-1, even if a party other than the title
company listed on line 1101 of the HUD-1 provides those services.
Today's proposed GFE distinguishes between those settlement costs
attributable to the loan originator and charges for all other
settlement services. However, Section 800 of the current HUD-1/1A forms
combines loan originator costs and some third party costs under the
same heading (``Items Payable in Connection with Loan''). In order to
facilitate comparison between the GFE and the HUD-1/1A for this
section, the proposed HUD-1 replaces the existing line descriptions on
the current HUD-1/1A with the relevant headings from the GFE. Thus,
Line 801 on the proposed HUD-1 lists ``Our service charge (from GFE
1)'' to refer back to Block 1 on the GFE. In lieu of the
``Loan discount'' terminology on the current Line 802 of the HUD-1/1A,
the proposed Line 802 includes ``Your charge or credit for the specific
interest rate chosen (from GFE 2)'' to refer back to Block 2
on the GFE. Line 803 of the proposed HUD-1/1A lists ``Your Adjusted
Origination Charges (from GFE Block A)'' and corresponds to GFE Block
A. Lines 804 to 807 on the proposed HUD-1/1A for appraisal fee, credit
report, tax service, and flood certification include notations
indicating that the charges are listed in Block 3 on the GFE (required
services selected by the loan originator). The dollar value showing up
in GFE Block A can show up as POC, in the borrower's column, or in the
seller's column. On line 803, the sum of the figures labeled as POC, in
the borrower's column and in the seller's column should be compared to
the figure in GFE Block A. The figures on Blocks 1 and 2 of the GFE
must not show up in either column or as POC in order to avoid double-
counting.
For Section 900, ``Items Required by Lender to be Paid in
Advance,'' Line 901 of the proposed HUD-1/1A lists ``Daily Interest
Charges (from GFE 8)''; Line 902 lists ``Mortgage insurance
premium (from GFE 3 or 5);'' and Line 903 lists
``Homeowner's insurance (from GFE 9).''
For Section 1000, ``Reserves Deposited with Lender,'' the proposed
HUD-1/1A inserts Line 1001 ``Reserves or escrow (from GFE 7)''
and then renumbers the current lines. For Section 1100, ``Title
Charges,'' the proposed form inserts Line 1101 ``Title services and
lender's title insurance (from GFE 4)'' and then renumbers the
current lines. Line 1110 lists ``Optional owner's title insurance (from
GFE 10).''
For Section 1200 ``Government Recording and Transfer Charges,'' the
proposed HUD-1/1A inserts Line 1201, ``Government Recording and
Transfer Charges (from GFE 6)'' and renumbers
[[Page 14050]]
current lines. For Section 1300 ``Additional Settlement Charges,'' Line
1301 includes ``Survey (from GFE 5)''and Line 1302 ``Pest
inspection (from GFE 5).''
The figures from Blocks 3 and 5 on the GFE are broken out and
listed individually on the HUD-1 in the columns or as POC. The totals
are not listed as POC or in the columns to avoid double-counting.
All items on the HUD-1/1A that correspond to an item on the GFE are
made to stand out by using a different font from the other text on the
HUD-1, such as by bolding the text or using italics, so it is easier
for the borrower to find these numbers when comparing the forms.
Addendum to the HUD-1/1A, ``Closing Script.'' In addition to the
proposed changes to the HUD-1/1A discussed above, HUD is proposing an
addendum to the HUD-1 that would be provided to the borrower at
closing. The loan originator would transmit to the settlement agent all
information necessary to complete the prescribed addendum to the HUD-1/
1A settlement form, referred to as the ``closing script.'' The addendum
would be prepared by the settlement agent and would have to accurately
reflect the loan documents and related settlement information provided
by the lender. The settlement agent would be required to read the
addendum aloud to the borrower at settlement. The addendum would
compare the loan terms and settlement charges estimated on the GFE with
those on the HUD-1 and would describe in detail the loan terms for the
specific mortgage loan as stated in the mortgage note, and related
settlement information. The length of the addendum would vary depending
on the specifics of the borrower's loan.
HUD is proposing the addendum to address the frequent complaints it
receives from borrowers that the costs quoted at the GFE stage varied
considerably from the costs imposed at settlement. In addition, HUD
continues to receive complaints from borrowers indicating that they
were unaware or unsure of the terms of the loan provided at settlement.
HUD believes that by making borrowers aware of their loan terms at the
settlement, many problems after settlement can be avoided.
HUD believes that greater borrower awareness and understanding of
the settlement charges will help prevent the imposition of charges at
settlement that were not included at the GFE stage. By reviewing each
charge with the borrower at settlement, the closing agent will be able
to highlight those charges that may have changed between the GFE stage
and the settlement. In this fashion, the borrower will be able to more
easily question any charges at the settlement, rather than after the
settlement, when it becomes more difficult to address the issue or
provide borrower satisfaction. HUD believes that the addendum to the
HUD-1 complements the proposed GFE by apprising the borrower as to
whether the tolerances imposed by the proposed GFE have been met,
thereby minimizing post-settlement questions as to any cost variances
between the GFE and the HUD-1.
With respect to issues arising from the loan provided at
settlement, the most frequent complaints stem from the following: The
interest rate for the loan the borrower received was not the interest
rate applied for; the borrower applied for a fixed rate loan but
received an adjustable rate loan at settlement; and the closing
documents were not explained to the borrower, leaving the borrower
unaware or unsure of important loan information. In addition, HUD is
aware that in many cases, borrowers are unaware of or confused by
certain loan terms. This problem has become more acute with the rise of
non-traditional mortgages. For example, many borrowers do not have a
solid understanding of negative amortization or are unaware of the
potential for negative amortization. For borrowers with adjustable rate
loans, many do not understand the maximum amount their monthly mortgage
payment could reach when the interest rate adjusts. In addition, many
borrowers are unaware of the prepayment penalty in their loan until
they try to refinance.
To address these issues, today's proposed rule would require the
settlement agent or other person conducting the settlement to read the
closing script document aloud to the borrower and explain: (1) The
comparison between the loan terms and the settlement charges listed on
the HUD-1/1A settlement form with the estimate of charges listed on the
GFE; (2) whether or not the tolerances have been met; and (3) the loan
terms, as contained in the mortgage note and related settlement
information. Any inconsistencies between the mortgage note, between
related settlement information and the GFE, and between the HUD-1/1A
settlement charges and the GFE would have to be disclosed and explained
to the borrower. The proposed rule would also require that the closing
script addendum be delivered to the borrower as part of the HUD-1/1A at
the closing. Upon request of the borrower, the HUD-1/1A and the closing
script addendum would have to be made available for review by the
borrower 24 hours prior to the settlement, in accordance with 24 CFR
3500.10.
The instructions to the preparer of the closing script are included
in Appendix A to the rule. Examples of closing scripts are also
provided in Appendix A to the rule. All instructions for completing the
closing script are proposed to be codified with the rule at the final
rule stage.
Enforcement. The Proposed Rule. The proposed rule provides that
failure to complete the HUD-1 in accordance with the regulations
constitutes a violation of Section 4 of RESPA.
H. Permissibility of Average Cost Pricing and Negotiated Discounts
The Proposed Rule. The proposed rule would recognize pricing
mechanisms that result in greater competition and lower costs to
consumers, specifically average cost pricing and some discounts among
settlement service providers, including volume-based discounts. The
proposed rule would amend 24 CFR 3500.8 and would explain that charges
for third party services may be calculated using average cost pricing
mechanisms based on appropriate methods established by HUD. These
mechanisms would also accommodate certain volume-based discounts.
Although the third party charge on any one loan may be higher than the
average, the third party charge on another loan may be lower, provided
that borrowers are being charged no more than the average price
actually received by the third parties during the period on which the
average price is computed. The proposed rule would allow loan
originators to disclose on the HUD-1 an average cost price in
accordance with one of several specific methods. The proposed rule
would also amend 24 CFR 3500.14(d) and the definition of ``thing of
value'' to clarify that it is permissible for settlement service
providers to negotiate discounts in the prices for settlement services,
so long as the borrower is not charged more than the discounted price.
The practice of negotiating discounts in prices--whether among
settlement service providers, such as with volume-based discounts, or
by a settlement service provider on behalf of consumers--can serve to
reduce prices to consumers.
Discussion. In this proposed rule, HUD is seeking to facilitate
pricing arrangements that will benefit consumers. HUD has determined
that in the evolving marketplace, certain loan originators and third
party settlement service providers may wish to adopt average cost
pricing and to offer
[[Page 14051]]
discounts, including volume-based discounts. HUD welcomes comment on
these and any other pricing techniques that may result in greater
competition and lower costs to consumers and that are consistent with
the purposes of RESPA.
Congress authorized the Secretary, pursuant to Section 19(a) of
RESPA, to prescribe such rules and regulations and to make such
interpretations as may be necessary to achieve the purposes of RESPA.
In enacting RESPA, Congress found that reforms in the real estate
settlement process were needed to protect consumers from the
unnecessarily high settlement charges that had evolved in some areas of
the country. Congress explained the purpose of RESPA as being to effect
changes in the residential settlement process that will result ``in
more effective advance disclosure to home buyers and sellers of
settlement costs'' and ``the elimination of kickbacks or referral fees
that tend to increase unnecessarily the costs of certain settlement
services.''
Congress sought to achieve its purposes through both prohibitions
on conduct and better consumer disclosures. The Senate Committee Report
on S.3164, the bill that was eventually enacted as RESPA, noted that
the Committee on Housing, Banking, and Urban Affairs recommended an
approach to the problems of settlement costs that would regulate the
underlying business relationships and procedures of which the costs are
a function, rather than regulating closing costs directly. (See S Rep.
93-866, at 3 (1974).) Through the prohibitions against kickbacks and
unearned fees in Section 8 and the escrow account requirements in
Section 10, the Senate Committee was aiming to ensure that the costs of
buying a home would not be ``unreasonably or unnecessarily inflated''
(Id). In fact, the Committee expected that advance disclosure of
settlement charges would reduce or eliminate many ``unnecessary or
unreasonably high settlement charges'' (Id).
Section 4(a) of RESPA authorizes the Secretary to prescribe the
primary disclosure document for settlement, the Uniform Settlement
Statement, generally known as the HUD-1 (or HUD-1A) Settlement
Statement. This standard form is used at settlement to disclose all
charges imposed on the borrower and the seller. Section 4 is silent,
however, on how such charges are calculated. Congress expressly
encouraged flexibility on the application of at least some of the
Section 4 requirements relating to the HUD-1 Settlement Statement, by
allowing for the deletion from the form of items that are not required
by local custom.
In Section 5(c) of RESPA, Congress required that the lender provide
to the borrower ``a good faith estimate of the amount or range of
charges'' that the borrower is likely to incur at settlement. Section
5, like Section 4, is silent on how such charges are to be calculated.
This GFE of charges is to be included with a special information
booklet that contains information about the homebuying and home finance
process. Section 5(b)(1) of RESPA requires that the booklet include ``a
description and explanation of the nature and purpose of each cost
incident to a real estate settlement,'' but does not require that each
charge be calculated on a per-transaction cost basis. Section 8(c) of
RESPA is evidence of the approach that regulates the underlying
business relationships and procedures, in that it exempts specific
kinds of business payments from being found to violate RESPA's
prohibitions on kickbacks, referral fees, and unearned fees. Section
8(c)(1) establishes exemptions for payments between title companies and
their agents, between lenders and their agents, and to attorneys, for
services actually performed. Similar exemptions are established in
subsections (c)(3) and (c)(4) for payments between real estate brokers
and their agents, and among affiliated businesses. In section 8(c)(2),
Congress permits settlement service providers to be compensated ``for
goods or facilities actually furnished [and] for services actually
performed,'' without requiring a particular, regimented pricing
structure.
Section 8(c)(5) of RESPA gives the Secretary discretion to permit
``such other payments or classes of payments * * * as are specified in
regulations prescribed by the Secretary, after consultation with [other
Federal officials and entities].'' Through this section and section 19,
the Secretary has been given broad regulatory authority to address
changes in the real estate marketplace under RESPA.
HUD's current regulations implementing RESPA have sometimes been
cited as obstacles to consumer-friendly business practices, however.
Discussions at the RESPA Reform Roundtables during 2005 and additional
comments from both industry representatives and consumer advocates have
suggested the need for greater competition among settlement service
providers. In light of these suggestions, the Secretary has determined
that, in HUD's implementation of RESPA, there should be greater
flexibility for cost pricing formulas that bring more innovation and
increased price competition to the settlement process. HUD proposes to
recognize in the regulations that innovative approaches such as average
cost pricing and certain discounts, including volume-based discounts,
may serve to lower settlement costs to consumers without violating the
statutory requirements of RESPA.
The practices of negotiating price reductions--whether among
settlement service providers or by an individual settlement service
provider on behalf of consumers--can serve to reduce prices to
consumers. Such arrangements are not contrary to the purposes of RESPA
and do not violate section 8 when any and all pricing benefits are
passed on to consumers. Accordingly, in today's proposed rule, HUD is
amending the definition of ``thing of value'' set forth in 24 CFR
3500.14(d) to exclude discounts negotiated by settlement service
providers based on negotiated pricing arrangements, provided that no
more than the reduced price is charged to the borrower and disclosed on
the HUD-1/1A.
In the 2002 proposed rulemaking, in the context of loan originators
being subject to tolerances for their GFE estimates of settlement
service charges, HUD recognized that:
[T]he new GFE's tighter requirements on estimated third party
charges may cause many loan originators not already doing so to seek
to establish pricing arrangements with specific third party
settlement service providers in advance, in order both to ensure
they are able to meet the tolerances and to ensure lower prices for
their customers. As part of negotiations for such arrangements, many
originators, particularly those with a substantial volume of
business, may seek prices from third party providers that are lower
than those providers offer on a retail basis. However, because
Section 8 of RESPA broadly prohibits providing a ``thing of value,''
which is specifically defined to include discounts, in exchange for
the referral of business, many loan originators have been reluctant
to openly seek such pricing benefits, even where any such discount
in the price is passed on to the borrower. HUD believes that the
fundamental purpose of RESPA is to lower settlement costs to
borrowers, and it is therefore contrary to the law's objectives to
interpret the anti-referral fee provisions of Section 8 to prohibit
one settlement service provider from using its market power to
negotiate discounted prices, as long as the entire discounted price
negotiated by the originator is charged to the borrower and reported
as part of the total charge. * * *
67 FR 49134, 49151 (July 29, 2002).
Lender comments on the 2002 Proposed Rule and discussions during
the RESPA Reform Roundtables in 2005
[[Page 14052]]
continued to cite a need for a complete exemption from section 8 before
lenders could use pricing models that would allow them to introduce
more price competition in the marketplace. These comments were
primarily in the context of the mortgage packaging proposal, however,
and in 2002 HUD had proposed a ``safe harbor'' or section 8 exemption
in that context. In advance of that proposal, HUD had determined that
in order to fully develop the potential to reduce closing costs, loan
originators would be able to seek discounts, including volume-based
discounts, and to utilize average cost pricing. Today's proposed rule
relies on adapting the GFE requirements to broaden the mortgage lending
and settlement services marketplace, without a need for specific
packaging proscriptions and requirements or a section 8 exemption.
HUD believes that no such exemption is necessary in order to permit
average cost pricing and discounting, including volume-based discounts.
Rather, HUD has determined that RESPA provides enough flexibility to
permit a variety of approaches to fee calculations, so long as they do
not unnecessarily increase fees charged to consumers. During the 2005
RESPA Roundtables, some loan originators and third party settlement
service providers also took the position that neither a full section 8
exemption nor formal authority for packaging is needed. These providers
believed that development of different pricing mechanisms and some
discounts could promote market innovation and increased price
competition.
In this rule, the Secretary is proposing to use the authority under
section 19(a) of RESPA to permit pricing techniques using average cost
pricing and certain discounts, consistent with RESPA's GFE and
settlement statement requirements, and with section 8. HUD believes
that consumers will ultimately benefit from negotiated pricing among
and by settlement service providers. This proposed rule seeks to lower
consumer costs by permitting settlement service providers who procure,
or who help consumers to obtain, third party settlement services, to
negotiate the pricing of those services by the third party provider. By
using average cost pricing, settlement service providers could avoid
having to track individual prices paid for third party services on a
transaction-by-transaction basis, thereby lowering administrative costs
that would be passed on to consumers.
The proposed rule would make clear that where average cost pricing
is used, the evaluation of prices of third party services should focus
on all of the loan originator's transactions together, rather than
viewing each transaction separately. An individual borrower might be
charged more or less than the actual amount paid for that service in an
individual transaction, provided that borrowers are being charged no
more than the average price actually received by third parties during
the period in which the average price is computed.
The proposed rule sets forth two specific methods that loan
originators may use to calculate an average price for a particular
settlement service. The loan originator would designate a recent 6-
month period as the ``averaging period'' for purposes of calculating
the average price. The same average price must then be used in every
transaction in that class of transactions for which a GFE is provided
following the averaging period until a new averaging period is
established. The average price would be calculated either as: (1) The
actual average price for the settlement service during the averaging
period; or (2) a projected average under a tiered pricing contract,
based on the number of transactions that actually closed during the
recent averaging period. If a loan originator uses one of these methods
to calculate the average price for a settlement service, HUD will deem
the loan originator to have complied with the requirements of the rule.
HUD welcomes comments on its proposed methods for calculating
average cost prices and on any alternative methods that should be
permitted. Specifically, HUD welcomes comments on how to define ``class
of transactions.'' For example, ``class of transactions'' could be
defined by loan type, or loan-to-value ratio. HUD is also interested in
suggestions on alternative average cost pricing methods and other
pricing methods that benefit consumers and are based on factors that
would lead to charges to the consumer (and the disclosure of such
charges) that are easily calculated, verified, and enforced, but
difficult to manipulate in an abusive manner. Such factors could
include, for example:
(a) Experience over a period of time that is longer or shorter than
that currently provided in the proposed rule;
(b) Prices for the service among the usual third party providers
upon which the lender or other settlement service usually relies;
(c) General industry practices; and
(d) A reasonable projection of future costs.
Finally, with regard to any pricing method used by a settlement
service provider, if a violation of section 8 of RESPA is alleged and
an investigation ensues, the proposed rule would place the burden on
the targeted settlement service provider to demonstrate compliance with
a permissible pricing method through the production of relevant
records.
I. Changes To Strengthen Prohibition Against Requiring the Use of
Affiliates
The Proposed Rule. The proposed rule would change the definition of
``required use'' in Sec. 3500.2, so that consumers would be more
likely to shop for the homes and home features, and the loans and other
settlement services, that are best for them, free from the influence of
disingenuous referral arrangements. HUD intends the rule to establish
that, in a real estate transaction covered by RESPA, incentives that
consumers may want to accept and disincentives that consumers may want
to avoid should be analyzed similarly for compliance with RESPA.
This change would make it clear that HUD views economic
disincentives that a consumer can avoid only by purchasing a settlement
service from particular providers or businesses to which the consumer
has been referred to be potentially as problematic under RESPA as are
economic incentives that are contingent on the consumer's choice of a
particular settlement service provider. In particular, the change
proposed today may affect the analysis under section 8(a) of
disincentives that are avoided only by using an affiliated settlement
service provider. The change may also affect sellers who use
disincentives to influence a borrower's choice of a particular title
company.
Consumer business captured through economic incentive or
disincentive arrangements can raise questions about violations of
section 8(a) of RESPA. The change proposed today may eliminate the
argument by affiliated businesses that there is no ``required use''
that prevents them from invoking the affiliated business exemption to
section 8 violations that involve consumer incentives and
disincentives. The modifications in the proposed rule are not intended
to prevent discounts that are beneficial to consumers, however. The
revised definition states that the offering by a settlement service
provider of an optional package or a combination of bona fide
settlement services to a borrower at a total price lower than the sum
of the prices of the individual settlement services would not
constitute a ``required use.'' By separate amendment to Sec.
3500.14(d), such arrangements are defined as not being a thing of
value, and so would not be in violation of the referral prohibitions in
section 8(a) of RESPA.
The proposed revision to the ``required use'' definition would
[[Page 14053]]
continue to apply in two sections of the regulations: The affiliated
business exemption in Sec. 3500.15, and the prohibition on the seller
requiring the buyer to purchase title insurance from a particular
company in Sec. 3500.16. However, as part of the proposed amendment of
Sec. 3500.7, and in light of other changes that would be made by this
proposed rule, the term ``required use'' would no longer apply as it
does currently in Sec. 3500.7(e).
Discussion. Section 8(a) of RESPA prohibits persons from giving or
receiving a thing of value, pursuant to an agreement for the referral
of business incident to a settlement service in a covered transaction.
RESPA was amended in 1983 to allow businesses to make referrals to
affiliated businesses, however, and to receive a benefit from their
ownership interest in the affiliated businesses, so long as three
conditions are met (see section 8(c)(4)).\32\ One of the three
conditions is that affiliated businesses may not require consumers to
use any particular provider of settlement services. The term ``required
use'' is currently defined in Sec. 3500.2 of HUD's regulations to mean
a situation in which a person must use a particular provider of a
settlement service in order to have access to some distinct service or
property. In addition, the term appears in section 9 of RESPA \33\, and
in Sec. Sec. 3500.7(e), 3500.14(f), 3500.15(b)(2), and 3500.16 of
HUD's implementing regulations.
---------------------------------------------------------------------------
\32\ Section 8(c)(4) (12 U.S.C. 2607(c)(4)) of RESPA states in
part that ``Nothing in this section shall be construed as
prohibiting * * * affiliated business arrangements so long as (A) a
disclosure is made of the existence of such an arrangement to the
person being referred * * *, (B) such person is not required to use
any particular provider of settlement services, and (C) the only
thing of value that is received from the arrangement, other than the
payments permitted under this subsection, is a return on the
ownership interest * * *.''
\33\ Section 9 states in part that ``[n]o seller of property * *
* shall require directly or indirectly, as a condition to selling
the property, that title insurance covering the property be
purchased by the buyer from any particular title company.''
---------------------------------------------------------------------------
HUD believes that some businesses have used the affiliated business
arrangement exception in section 8 of RESPA to steer consumers to
affiliated settlement service providers that may not provide the best
mortgage products or settlement services for those consumers. A number
of such complaints stem from builders, who are in a position to refer
settlement service business, that use incentives or penalties to steer
consumers to the builders' affiliated mortgage and title companies.
Consumers have frequently contacted HUD to express concerns and
register complaints about these practices, which usually fall into one
of two categories.
First, consumers complain that the cost to the builders of
incentives and discounts related to the homes themselves have been
built into the sales price of the homes, so that they are not true
incentives and discounts, but are penalties (i.e., higher sales prices)
that are imposed if the consumer chooses an unaffiliated settlement
service provider. Second, consumers complain that the rates and fees
charged by builders' affiliated settlement service providers are higher
than what would be charged by unaffiliated settlement service
providers. In both of these cases, consumers may be confused about the
value of the ``deal,'' and may forego shopping for lower rates and fees
offered by unaffiliated settlement service providers.
For example, HUD has recently received complaints such as:
A buyer was offered a $22,000 discount on the price of
a home for using the builder's affiliated lender, but the interest
rate offered by the lender was \1/2\ point higher than the market
rate, and the origination fee charged by the affiliated lender was
higher.
A buyer would be required to make a higher earnest
money deposit and would lose a $2,000 ``closing incentive'' if the
buyer did not use the builder's affiliated lender.
A builder promised a $3,000 incentive on the purchase
price and $6,000 toward closing costs if the buyer used the
builder's affiliated lender, which charged an interest rate that was
1 percent higher than the market rate and additional fees.
The effect of the change made by the proposed rule in the
definition of ``required use'' is not limited to builders and their
affiliated settlement service providers. Any businesses that are either
clearly affiliated because of their company structures, or that would
be deemed to be in an ``affiliated business arrangement'' under RESPA's
definitions of that term and the related term of ``associate,'' should
be aware of the change in the definition of ``required use'' in this
proposed rule. This change could affect the applicability of the
affiliated business requirements to those businesses.
Further, the definition applies to all sellers of property in RESPA
covered transactions, for purposes of the prohibitions in section 9 of
RESPA against requiring directly or indirectly that buyers purchase
title insurance from any particular title company.
HUD is requesting comments on whether the proposed change in the
definition of ``required use'' will better serve the purposes of RESPA
and whether further improvements could be made in the definition to
accomplish the intent of both the affiliated business exemption in
section 8 and the prohibition in section 9 on the required use of a
title company.
J. Technical Amendments to Current RESPA Regulations
The Proposed Rule. The proposed rule would update the current RESPA
regulations concerning the provision of the mortgage servicing
disclosure statement within 3 days of an application for a mortgage
loan, to ensure consistency with current statutory requirements. In
addition, the proposed rule would update the current escrow
regulations, by removing outdated provisions.
Specifically, the proposed rule would amend current Sec. 3500.21
to conform to the Economic Growth and Regulatory Paperwork Reduction
Act of 1996 (Title II of the Omnibus Consolidated Appropriations Act,
1997) (Pub. L. 104-208) (the Act). Section 2103(a) of the Act amended
section 6(a) of RESPA to eliminate the requirement that applicants for
federally related mortgage loans be provided a disclosure describing
the lender's historical practice regarding the sale or transfer of
servicing rights, and the requirement that loan applications contain
signed statements from applicants acknowledging that they have read and
understood the disclosure provided.
On May 9, 1997, the Department published a proposed rule (62 FR
25740) designed in part to modify HUD's existing RESPA regulations
concerning the disclosure to mortgage borrowers of information
pertaining to the lender's practices regarding the transfer or sale of
servicing rights (RESPA section 6(a)), in order to make the regulations
consistent with 1996 statutory amendments effected by the Economic
Growth and Regulatory Paperwork Reduction Act. The Department received
numerous comments on the proposed rule, and the comments were generally
favorable. However, the Department never finalized that proposed rule.
Due to the amount of time that has passed since the first proposed
rule, today's proposed rule seeks comment on changes to conform the
transfer of servicing disclosure requirements to the current statutory
requirements.
In addition, the proposed rule would make changes to current Sec.
3500.17 to eliminate the phase-in period for aggregate accounting for
escrow accounts. The phase-in period was a transitional provision that
expired on October 27, 1997. All servicers are currently required to
use the aggregate accounting method. Today's proposed
[[Page 14054]]
rule would clarify this by eliminating provisions from Sec. 3500.17
that relate only to the alternate accounting methods that were
permitted during the phase-in period.
K. ESIGN Applicability to RESPA Disclosures
The Proposed Rule. The proposed rule would amend HUD's RESPA rules
to explicitly recognize the current statutory applicability of the
Electronic Signatures in Global and National Commerce Act (ESIGN), 15
U.S.C. 7001-7031, to RESPA. This amendment is intended to make clear
that all RESPA disclosures may be provided to consumers in electronic
form, so long as the consumer consents to receive such disclosures in
electronic form and the other specific conditions of ESIGN are met.
This recognition of the applicability of ESIGN to RESPA would also make
clear that all documents required to be retained under RESPA may be
retained in electronic format, so long as the ESIGN requirements for
document retention are met.
V. Questions for Commenters
HUD welcomes comments on all aspects of the proposal. In addition,
HUD specifically requests comment on the following issues:
1. Whether a 12-month implementation period for the GFE is
appropriate. (Section IV.D.)
2. The proposed GFE, as well as the proposed HUD-1/1A Settlement
Statement Forms.
3. Possible additional ways to increase consumer understanding of
adjustable rate mortgages.
4. Whether the proposed requirements for completing and delivering
the Addendum to the HUD-1/1A, including the mandatory reading of the
Closing Script by the party conducting the closing to the borrower(s),
are the best methods for assuring that borrower(s) understand their
loan terms and the differences between the GFE and the HUD-1/1A.
5. Whether a provision should be added to the RESPA regulations
allowing a loan originator, for a limited time after closing, to
address the failure to comply with tolerances under the proposed GFE
requirements, and if so, how should such a provision be structured?
(Section IV.E. 10) Would such a provision be useful, and if so, what
would be the appropriate time frame for finding and refunding excess
charges? Could such a provision be abused, and therefore harmful to
consumers? Would the ability of prosecutors to exercise enforcement
discretion obviate the need for such a provision?
6. Proposed methods for calculating average cost prices and on any
alternative methods that should be permitted. (Section IV.H.)
Specifically, how to define ``class of transactions.'' Comments are
also invited on alternative average cost pricing methods and other
pricing methods that benefit consumers and are based on factors that
would lead to charges to the consumer and disclosure of such charges
that are easily calculated, verified, and enforced, but difficult to
manipulate in an abusive manner. Such factors could include:
(a) Experience over a period of time that is longer or shorter than
that currently provided in the proposed rule;
(b) Prices for the service among the usual third party providers
upon which the lender or other settlement service usually relies;
(c) General industry practices; and
(d) A reasonable projection of future costs.
7. Whether the proposed change in the definition of ``required
use'' will better serve the purposes of RESPA and whether further
improvements could be made in the definition to accomplish the intent
of both the affiliated business exemption in section 8 and the
prohibition in section 9 on the required use of a title company.
(Section IV.I.)
8. With respect to the revised definition of ``Good Faith
Estimate'' set forth in the proposed rule language at 24 CFR 3500.2, is
the standard set forth sufficient to ensure that good faith estimates
will be filled out consistently by all loan originators in a particular
community?
9. Should the Section 6 disclosure on transfer of servicing that is
required under RESPA be included on the GFE?
10. Should a loan originator be required to include a ``no cost
loan'' on the trade-off chart on page 3 of the GFE as one of the
alternative loans if it is not the loan for which the GFE is written?
VI. Findings and Certifications
The Paperwork Reduction Act
Information Collection Requirements
The information collection requirements contained in this proposed
rule have been submitted to the Office of Management and Budget (OMB)
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). In
accordance with the Paperwork Reduction Act, an agency may not conduct
or sponsor, and a person is not required to respond to, a collection of
information, unless the collection displays a currently valid OMB
control number.
The burden of the information collections in this proposed rule is
estimated as follows:
Reporting and Recordkeeping Burden
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Frequency of Responses per Burden hour Annual burden
Information collection respondents response annum per response hours Hourly cost Annual cost
--------------------------------------------------------------------------------------------------------------------------------------------------------
GFE/Information Booklet................. 50,000 425 21,250,000 0.17 5,3,612,500 $31.14 $112,493,250
Servicing Disclosure.................... 0 0 0 0 0 0 0
Transfer Disclosure..................... 20,000 3,000 60,000,000 0.03 1,800,000 10.00 18,000,000
HUD-1 or HUD-1A and Closing Script...... 20,000 625 12,500,000 0.58 7,250,000 33.74 244,615,000
Initial Escrow.......................... 2,000 4,875 9,750,000 0.08 780,000 * 0.00 0
Annual Escrow........................... 2,000 21,100 42,200,000 0.08 3,376,000 * 20.00 67,520,000
Voluntary Escrow Account Payments....... 2,000 600 1,200,000 0.08 99,600 20.00 1,920,000
AfBA.................................... 10,000 269 2,689,500 0.10 268,950 20.00 5,379,000
---------------------------------------------------------------------------------------------------------------
Totals.............................. .............. .............. 149,589,500 .............. 17,183,450 .............. $449,927,250
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 14055]]
In accordance with 5 CFR 1320.8(d)(1), HUD is soliciting comments
from members of the public and affected agencies concerning this
collection of information to:
(1) Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of
the proposed collection of information;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of information on those
who are to respond; including through the use of appropriate automated
collection techniques or other forms of information technology, e.g.,
permitting electronic submission of responses.
Interested persons are invited to submit comments regarding the
information collection requirements in this rule. Under the provisions
of 5 CFR part 1320, OMB is required to make a decision concerning this
collection of information between 30 and 60 days after today's
publication date. Therefore, a comment on the information collection
requirements is best assured of having its full effect if OMB receives
the comment within 30 days of today's publication. Comments must refer
to the proposal by name and docket number (FR-5180) and must be sent
to: HUD Desk Officer, Office of Management and Budget, New Executive
Office Building, Washington, DC 20503, Fax number: (202) 395-6947 and
Reports Liaison Officer, Office of Housing--Federal Housing
Commissioner, Department of Housing and Urban Development, 451 Seventh
Street, SW., Room 9136, Washington, DC 20410-8000.
Environmental Impact
A Finding of No Significant Impact with respect to the environment
has been made in accordance with HUD regulations at 24 CFR part 50,
which implement section 102(2)(C) of the National Environmental Policy
Act of 1969 (42 U.S.C. 4332(2)(C)). The Finding of No Significant
Impact is available for public inspection between the hours of 8 a.m.
and 5 p.m. weekdays in the Regulations Division, Office of General
Counsel, U.S. Department of Housing and Urban Development, 451 Seventh
Street, SW., Room 10276, Washington, DC 20410-0500. Due to security
measures at the HUD Headquarters building, an advance appointment to
review the public comments must be scheduled by calling the Regulations
Division at (202) 402-3055 (this is not a toll-free number).
Individuals with speech or hearing impairments may access this number
via TTY by calling the toll-free Federal Information Relay Service at
(800) 877-8339.
Executive Order 12866, Regulatory Planning and Review
OMB reviewed this proposed rule under Executive Order 12866
(entitled ``Regulatory Planning and Review''), which the President
issued on September 30, 1993. This rule was determined economically
significant under the executive order. Any changes made to the proposed
rule subsequent to its submission to OMB are identified in the docket
file, which is available for public inspection in the Regulations
Division, Office of General Counsel, U.S. Department of Housing and
Urban Development, 451 Seventh Street, SW., Room 10276, Washington, DC
20410-0500. The Initial Economic Analysis prepared for this rule is
available online at http://www.hud.gov/respa, and for public inspection
in the Regulations Division. Due to security measures at the HUD
Headquarters building, an advance appointment to review the public
comments must be scheduled by calling the Regulations Division at (202)
402-3055 (this is not a toll-free number). Individuals with speech or
hearing impairments may access this number through TTY by calling the
Federal Information Relay Service at (800) 877-8339.
Federalism Impact
This proposed rule does not have federalism implications and does
not impose substantial direct compliance costs on state and local
governments or preempt state law within the meaning of Executive Order
13132 (entitled ``Federalism'').
Regulatory Flexibility Act
The Secretary, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)), has reviewed and approved this proposed rule and has
determined that the rule would have a significant economic impact on a
substantial number of small entities within the meaning of the
Regulatory Flexibility Act.
In accordance with section 603 of the Regulatory Flexibility Act,
an Initial Regulatory Flexibility Analysis (IRFA) has been prepared and
has been made part of the Economic Analysis prepared under Executive
Order 12866. The IRFA portion, however, of the combined analysis is
published as an appendix to this proposed rule. The IRFA was also
submitted to the Chief Counsel for Advocacy of the Small Business
Administration for review and comment on its impact on business.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
1531-1538) (UMRA) requires federal agencies to assess the effects of
their regulatory actions on state, local, and tribal governments and on
the private sector. This proposed rule does not, within the meaning of
the UMRA, impose any federal mandates on any state, local, or tribal
governments nor on the private sector.
Congressional Review of Final Rules
This rule constitutes a ``major rule'' as defined in the
Congressional Review Act (5 U.S.C. Chapter 8). At the final rule stage,
this rule will have a 60-day delayed effective date and be submitted to
the Congress in accordance with the requirements of the Congressional
Review Act.
List of Subjects
24 CFR Part 203
Hawaiian Natives, Home improvement, Indians--lands, Loan programs--
housing and community development, Mortgage insurance, Reporting and
recordkeeping requirements, Solar energy.
24 CFR Part 3500
Consumer protection, Condominiums, Housing, Mortgagees, Mortgage
servicing, Reporting, and Recordkeeping requirements.
For the reasons stated in the preamble, HUD proposes to amend 24
CFR parts 203 and 3500 as follows:
PART 203 -- SINGLE FAMILY MORTGAGE INSURANCE
1. The authority citation for part 203 continues to read as
follows:
Authority: 12 U.S.C. 1709, 1710, 1715b, 1715z-16, and 1715u; 42
U.S.C. 3535(d).
2. In Sec. 203.27, paragraph (a)(2) is revised to read as follows:
Sec. 203.27 Charges, fees, or discounts.
(a) * * *
(2) A charge to compensate the mortgagee for expenses incurred in
originating and closing the loan, provided that the Commissioner may
establish limitations on the amount of any such charge.
* * * * *
[[Page 14056]]
PART 3500--REAL ESTATE SETTLEMENT PROCEDURES ACT
3. The authority citation for part 3500 continues to read as
follows:
Authority: 12 U.S.C. 2601 et seq.; 42 U.S.C. 3535(d).
4. In Sec. 3500.2, paragraph (b) is amended by removing the
definition of Application; revising the definitions of Good faith
estimate or GFE, Mortgage broker; and Required use and add, in
alphabetical order, the following new definitions of Adjustable rate,
Balloon payment, Closing script, Credit or charge for the specific
interest rate chosen, Good faith estimate applicant or GFE applicant,
Good faith estimate application or GFE application, Loan originator,
Mortgage application, Origination service, Prepayment penalty, Primary
title service, Third party, Tolerance, and Unforeseeable circumstances
to read as follows:
Sec. 3500.2 Definitions.
* * * * *
(b) * * *
Adjustable rate has the same meaning as ``adjustable rate'' under
the Truth in Lending Act, 15 U.S.C. 1601 et seq. (``TILA'').
Balloon payment has the same meaning as ``balloon payment'' under
the Truth in Lending Act, 15 U.S.C. 1601 et seq. (``TILA'').
* * * * *
Closing script means the disclosure document prepared for the
closing by the settlement agent, pursuant to information provided by
the loan originator, that compares the loan terms and settlement
charges estimated on the GFE with the HUD-1/HUD-1A and that describes,
in detail, the required loan terms for the specific mortgage loan and
related settlement information. It is an addendum to the HUD-1/HUD-1A.
Credit or charge for the specific interest rate chosen means, for a
mortgage broker, the credit or charge for the specific interest rate
chosen is the difference between the initial loan amount and the
payment to the mortgage broker (i.e., the sum of the price paid for the
loan by the lender and any other payments to the mortgage broker from
the lender). When the amount paid to the mortgage broker exceeds the
initial loan amount, there is a credit to the borrower and it is
entered as a negative amount in block 2 of the GFE. When the initial
loan amount exceeds the amount paid to the mortgage broker, there is a
charge to the borrower and it is entered as a positive amount in block
2 of the GFE.
* * * * *
Good faith estimate or GFE means an estimate of settlement charges
a borrower is likely to incur, as a dollar amount, and related loan
information, based upon common practice and experience in the locality
of the mortgaged property, provided on the form prescribed in Appendix
C to this part that is prepared in accordance with Sec. 3500.7 and the
Instructions in Appendix C to this part.
Good faith estimate applicant or GFE applicant means any
prospective borrower for a federally related mortgage loan who submits
a GFE application.
Good faith estimate application or GFE application means a written
or oral submission to a loan originator by a prospective borrower to
obtain a GFE for a specific loan product. The loan originator may
require the GFE applicant to provide no more than the prospective
borrower's name, Social Security number, property address, monthly
income, the borrower's best estimate of the value of the property, and
the mortgage loan amount sought by the borrower to obtain a GFE. A GFE
application shall either be in writing or electronically submitted,
including a written record of an oral application, so that the loan
originator can retain a record of the application. If the submission
does not state or identify a specific property, the submission is not a
GFE application. The subsequent addition of an identified property to
the submission converts the submission to a GFE application. Neither a
GFE application nor an application for a prequalification is a mortgage
application for a federally related mortgage under this part.
* * * * *
Loan originator means a lender or mortgage broker.
* * * * *
Mortgage application means a submission to a loan originator by a
prospective borrower of such financial and other information, whether
written or computer-generated, as a loan originator may require to
begin final underwriting, and such other steps as are necessary to
originate a mortgage loan for the prospective borrower.
Mortgage broker means a person (not an employee of a lender) or
entity that renders origination services in a table funded or
intermediary transaction. A loan correspondent approved under 24 CFR
202.8 for Federal Housing Administration programs is a mortgage broker
for purposes of this part.
* * * * *
Origination service means any service involved in the creation of a
mortgage loan, including but not limited to the taking of loan
applications, loan processing, and the underwriting and funding of
loans, and the processing and administrative services required to
perform these functions.
* * * * *
Prepayment penalty has the same meaning as ``prepayment penalty''
under the Truth in Lending Act, 15 U.S.C. 1601 et seq. (``TILA'').
Primary title service means any service involved in the provision
of title insurance (lender or owner policy) and settlement or closing
services, including but not limited to: title examination and
evaluation; preparation and issuance of title commitment; clearance of
underwriting objections; preparation and issuance of a title insurance
policy or policies; and the processing and administrative services
required to perform these functions.
* * * * *
Required use means a situation in which a borrower's access to some
distinct service, property, discount, rebate, or other economic
incentive, or the borrower's ability to avoid an economic disincentive
or penalty, is contingent upon the borrower using or failing to use a
referred provider of settlement services. However, the offering by a
settlement service provider of an optional combination of bona fide
settlement services to a borrower at a total price lower than the sum
of the prices of the individual settlement services does not constitute
a required use.
* * * * *
Third party means a settlement service provider other than a loan
originator.
* * * * *
Tolerance means the maximum amount by which the charge for a
category or categories of settlement costs may exceed the amount of the
estimate for such category or categories on a GFE.
Unforeseeable circumstances means:
(1) Acts of God, war, disaster, or other emergency making it
impossible or impracticable for the loan originator to complete the
transaction; and
(2) Circumstances that could not be reasonably foreseen by a loan
originator at the time of GFE application that are particular to the
transaction and that result in increased costs, such as a change in the
property purchase price, boundary disputes, the need for a second
appraisal or flood insurance, or environmental problems. Market
fluctuations by themselves shall not be considered unforeseeable
circumstances.
[[Page 14057]]
Sec. 3500.6 [Amended]
5. Section 3500.6 is amended in paragraph (a) introductory text by
adding ``GFE or a'' before ``federally related mortgage loan'', and in
paragraph (a)(1) by adding ``GFE'' before the word ``application'' the
first time it appears.
6. In Sec. 3500.7, the section heading and paragraphs (a) through
(e) are revised; paragraph (f) is redesignated as paragraph (g); and
new paragraphs (f) and (h) are added, as follows:
Sec. 3500.7 Good faith estimate or GFE.
(a) Lender to provide. (1) Except as otherwise provided in
paragraphs (a), (b), or (g) of this section, not later than 3 business
days after a lender receives a GFE application from a GFE applicant, or
information sufficient to complete a GFE application, the lender must
provide the GFE applicant with a GFE. In the case of dealer loans, the
lender must either provide the GFE or ensure that the dealer provides
the GFE.
(2) The lender must provide the GFE to the GFE applicant by hand
delivery, by placing it in the mail, or, if the GFE applicant agrees,
by fax, email, or other electronic means.
(3) The lender is not required to provide the GFE applicant with a
GFE if, before the end of the 3-business-day period:
(i) The lender denies the GFE application of the GFE applicant;
(ii) The lender denies the mortgage application of the GFE
applicant; or
(iii) The applicant withdraws its GFE application.
(4) The lender is not permitted to collect, as a condition for
providing a GFE, any fee for an appraisal, inspection, or other similar
service needed for final underwriting. The lender may, at its option,
collect a fee limited to the cost of providing the GFE, including the
cost of an initial credit report.
(b) Mortgage broker to provide. (1) Except as otherwise provided in
paragraphs (b) or (g) of this section, either the lender or the
mortgage broker must provide a GFE to the GFE applicant not later than
3 business days after a mortgage broker receives from the GFE applicant
either a GFE application or information sufficient to complete a GFE
application. The lender is responsible for ascertaining whether the GFE
has been provided. If the mortgage broker has provided a GFE that is
acceptable to the lender, the lender is not required to provide an
additional GFE.
(2) The mortgage broker must provide the GFE by hand delivery, by
mail, or, if the applicant agrees, by fax, email, or other electronic
means.
(3) The mortgage broker is not required to provide the GFE
applicant with a GFE if, before the end of the 3-business-day period:
(i) The mortgage broker or lender denies the GFE application of the
GFE applicant;
(ii) The mortgage broker or lender denies the mortgage application
of the GFE applicant; or
(iii) The applicant withdraws its GFE application.
(4) The mortgage broker is not permitted to collect, as a condition
for providing a GFE, any fee for an appraisal, inspection, or other
similar service needed for final underwriting. The mortgage broker may,
at its option, collect a fee limited to the cost of providing the GFE,
including the cost of an initial credit report.
(c) Availability of GFE terms. The estimate of the charges for all
settlement services other than the charge or credit for the interest
rate chosen, the adjusted origination charges, and per diem interest
must be available until 10 business days from when the GFE is
delivered, but it may remain available longer, if the loan originator
extends the period of availability. Once a mortgage application is
submitted to the loan originator, the non-interest rate-dependent
settlement charges of the GFE that is the basis for the mortgage
application must remain in effect until closing. If the interest rate
was not locked when the mortgage application was submitted, or a locked
interest rate has expired, all interest rate-dependent charges and
disclosures may change. If the GFE applicant notifies the loan
originator to proceed with a mortgage application after the period of
availability has expired, the loan originator may:
(1) Continue to abide by the terms and conditions contained within
the GFE for which the period of availability has expired;
(2) Deny the GFE applicant an opportunity to submit a mortgage
application at that time for that specific loan because the applicant
did not respond within the period of availability; or
(3) Provide a new GFE for a new loan to the GFE applicant within 3
business days.
(d) Content and form of GFE. The loan originator must prepare the
GFE in accordance with the requirements of this section and the
Instructions in Appendix C to this part when preparing the GFE Form in
Appendix C to this part. The instructions in Appendix C to this part
allow for flexibility in the preparation and distribution of the GFE in
hard copy and electronic format.
(e) Tolerances for amounts included on GFE. (1) Absent
unforeseeable circumstances, the actual charges at settlement may not
exceed the amounts included on the GFE for:
(i) The loan originator's service charge;
(ii) While the borrower's interest rate is locked, the credit or
charge for the interest rate chosen;
(iii) While the borrower's interest rate is locked, the adjusted
origination charge; and
(iv) Government recording and transfer charges.
(2) Absent unforeseeable circumstances, the sum of the charges at
settlement for the following services may not be greater than 10
percent above the sum of the amounts included on the GFE:
(i) Lender-required settlement services, where the lender selects
the third party settlement service provider; and
(ii) Lender-required services, and optional owner's title insurance
selected by the borrower, when the borrower uses a settlement service
provider identified by the loan originator.
(3) The amounts charged for all other settlement services included
on the GFE may change at settlement.
(4) If a loan originator cannot meet the tolerances under this
section because of unforeseeable circumstances, the loan originator
must document the unforeseeable circumstances that resulted in the
increased costs and charge the borrower only the amount of the
increased costs. In such situations, the loan originator must notify
the borrower within 3 business days of the increase in charges arising
from the unforeseeable circumstances, and a new GFE reflecting the
revised charges must be provided to the borrower.
(5) Loan originators must retain documentation of any unforeseeable
circumstances resulting in final costs in excess of the established
tolerances for amounts stated on GFEs for no less than 3 years after
settlement.
(f) Changes to the GFE. (1) The loan originator must complete final
underwriting within a reasonable time after a borrower's mortgage
application is complete. If final underwriting or unforeseeable
circumstances result in a change in the borrower's eligibility for the
specific loan terms identified in the GFE, the loan originator must:
(i) Notify the borrower within one business day of the decision to
reject the loan;
[[Page 14058]]
(ii) If another loan is made available, provide a revised GFE to
the borrower; and
(iii) Document the reasons for the revised GFE and retain the
documentation for no less than 3 years after settlement.
(2) If a borrower requests changes to the mortgage loan identified
in the GFE that change the settlement charges or the terms of the loan,
the loan originator is no longer bound by the GFE, and the loan
originator must:
(i) Notify the borrower within one business day of the decision to
reject the loan;
(ii) If another loan is made available, provide a revised GFE to
the borrower; and
(iii) Document the reasons for the revised GFE and retain the
documentation for no less than 3 years after settlement.
(3) In transactions involving new home purchases, where settlement
is anticipated to occur more than 60 days from the time of a GFE
application, the loan originator may provide the GFE to the borrower
with a clear and conspicuous disclosure stating that at any time up
until 60 days prior to closing, the loan originator may issue a revised
GFE. If no such separate disclosure is provided, the loan originator
cannot issue a revised GFE, except as otherwise provided in paragraph
(f) of this section.
* * * * *
(h) Violations of section 5 of RESPA (12 U.S.C. 2604). A loan
originator that violates the requirements of this section, including by
exceeding the charges listed on the GFE at settlement by more than the
permitted tolerances, shall be deemed to have violated section 5 of
RESPA.
7. In Sec. 3500.8, paragraphs (b) and (c) are revised; and new
paragraphs (d) and (e) are added to read as follows:
Sec. 3500.8 Use of HUD-1 or HUD-1A settlement statements.
* * * * *
(b) Charges to be stated. The settlement agent shall complete the
HUD-1 or HUD-1A in accordance with the instructions set forth in
Appendix A to this part.
(1) In general. The settlement agent shall state the actual charges
paid by the borrower and seller on the HUD-1 or HUD-1A. The settlement
agent must separately itemize each third party charge paid by the
borrower and seller. Origination services performed by or on behalf of
the loan originator must be included in the loan originator's own
charge. Primary title services performed by or on behalf of the title
underwriter or title agent must be included in the title underwriter's
or title agent's own charge. The amount stated on the HUD-1 or HUD-1A
for any itemized service cannot exceed the amount actually received by
the third party for that itemized service, unless the charge is based
on an average cost price in accordance with paragraph (b)(2) of this
section.
(2) Average cost pricing. (i) The charge shown on the HUD-1 or HUD-
1A for a settlement service provided by a third party may be an average
price calculated based on either of the following methods:
(A) The average price used on a HUD-1 or HUD-1A may be based on the
actual average price for that service in all loans closed by the loan
originator, on a national or more limited basis, during the averaging
period; or
(B) The average price used on a HUD-1 or HUD-1A may be based on a
tiered pricing contract, provided the projected number of loans used in
calculating the average is equal to the number of loans actually closed
by the loan originator during the averaging period.
(ii) For purposes of calculating an average price, the averaging
period must be a specific recent period of 6 consecutive months
preceding the receipt of a GFE application, as designated by the loan
originator. The same method of determining the averaging period must be
used for each borrower from whom a GFE application is received, until
such time as the average is recomputed.
(iii) If a loan originator uses average cost pricing for any class
of transactions in a particular period, the loan originator must use
the same average cost price in every transaction within that class for
which a borrower's GFE application was received during that period.
(iv) The loan originator must retain all documentation that the
average cost pricing is accurate in a given time period, under the
pricing formula used, for at least 3 years.
(c) Aggregate accounting at settlement. After itemizing individual
deposits in the 1000 series, the servicer must make an adjustment based
on aggregate accounting. This adjustment equals the difference in the
deposit required under aggregate accounting and the sum of the itemized
deposits. The computation steps for aggregate accounting are set out in
Sec. 3500.17(d). The adjustment will always be a negative number or
zero (-0-). The settlement agent shall enter the aggregate adjustment
amount on a final line in the 1000 series of the HUD-1 or HUD-1A
statement. Appendix E to this part sets out an example of aggregate
analysis. Appendix A to this part contains instructions for completing
the HUD-1 or HUD-1A settlement statements using an aggregate analysis
adjustment.
(d) Closing script. (1) The loan originator must transmit to the
settlement agent all information necessary to complete the prescribed
closing script disclosure document, which is an addendum to the HUD-1/
1A settlement form and is prepared by the settlement agent. This
addendum must accurately reflect the required information provided by
the loan originator regarding the loan terms and related settlement
information.
(2) The settlement agent or other person conducting the closing
must read the closing script aloud to the borrower and explain:
(i) The comparison between the final settlement charges listed on
the HUD-1/1A settlement form and the estimate of charges listed on the
GFE;
(ii) Whether or not the tolerances have been met; and
(iii) Other required loan information as shown on the closing
script addendum forms in Appendix A to this part.
(3) Any inconsistencies between the loan documents (including the
mortgage note) and the summary of loan terms on the GFE, and between
the HUD-1/1A settlement charges and the charges stated on the GFE, must
be disclosed and explained to the borrower.
(4) Upon request of the borrower, the HUD-1/1A and the closing
script addendum must be made available for review by the borrower 24
hours prior to the closing in accordance with Sec. 3500.10(a). The
closing script addendum must be delivered to the borrower with the HUD-
1/1A at the closing in accordance with Sec. 3500.10(a) and (c). The
prescribed closing script addendum formats, with instructions, are set
forth in Appendix A to this part.
(e) Violations of section 4 of RESPA (12 U.S.C. 2604). A violation
of any of the requirements of this section will be deemed to be a
violation of section 4 of RESPA.
Sec. 3500.10 [Amended].
8. Section 3500.10 is amended by adding the phrase ``, with
addendum,'' as follows:
a. In paragraph (a) after the word ``statement'';
b. In paragraph (b) after the reference ``HUD-1A'' in the first and
last sentences; and
c. In paragraphs (c), (d), and (e) after each reference to ``HUD-
1A''.
9. In Sec. 3500.14, the text after the heading in paragraph (d) is
redesignated
[[Page 14059]]
as paragraph (d)(1), and new paragraph (d)(2) is added, to read as
follows:
Sec. 3500.14 Prohibition against kickbacks and unearned fees.
* * * * *
(d) Thing of value. (1) * * *
(2) A discount negotiated by settlement service providers in the
price of a third party settlement service is not a thing of value,
provided that no more than the discounted price is charged to the
borrower and disclosed on the HUD-1/1A.
* * * * *
10. Section 3500.17 is amended:
a. In paragraph (b) by removing the definitions of Acceptable
accounting method, Conversion date, Phase-in period, Post-rule account,
and Pre-rule account;
b. In paragraph (c) by revising the heading and paragraphs (c)(4),
(5), (6), and (8);
c. In paragraph (d) by removing paragraph (d)(2), redesignating
paragraph (d)(1) as paragraph (d)(2), revising newly designated
paragraph (d)(2)(i) introductory text, and redesignating the
introductory text as paragraph (d)(1) and revising it; and
d. In paragraph (e) by removing paragraph (e)(3), to read as
follows:
Sec. 3500.17 Escrow accounts.
* * * * *
(c) Limits on payments to escrow accounts. * * *
(4) Aggregate accounting required. All servicers must use the
aggregate accounting method in conducting escrow account analyses.
(5) Cushion. The cushion must be no greater than one-sixth (\1/6\)
of the estimated total annual disbursements from the escrow account.
(6) Restrictions on pre-accrual. A servicer must not practice pre-
accrual.
* * * * *
(8) Provisions in mortgage documents. The servicer must examine the
mortgage loan documents to determine the applicable cushion for each
escrow account. If the mortgage loan documents provide for lower
cushion limits, then the terms of the loan documents apply. Where the
terms of any mortgage loan document allow greater payments to an escrow
account than allowed by this section, then this section controls the
applicable limits. Where the mortgage loan documents do not
specifically establish an escrow account, whether a servicer may
establish an escrow account for the loan is a matter for determination
by State law. If the mortgage loan document is silent on the escrow
account limits and a servicer establishes an escrow account under State
law, then the limitations of this section apply unless State law
provides for a lower amount. If the loan documents provide for escrow
accounts up to the RESPA limits, then the servicer may require the
maximum amounts consistent with this section, unless an applicable
State law sets a lesser amount.
* * * * *
(d) Methods of escrow account analysis. (1) The following sets
forth the steps servicers must use to determine whether their use of
aggregate analysis conforms with the limitations in Sec.
3500.17(c)(1). The steps set forth in this section result in maximum
limits. Servicers may use accounting procedures that result in lower
target balances. In particular, servicers may use a cushion less than
the permissible cushion or no cushion at all. This section does not
require the use of a cushion.
(2) Aggregate analysis. (i) In conducting the escrow account
analysis using aggregate analysis, the target balances may not exceed
the balances computed according to the following arithmetic operations:
* * * * *
11. Section 3500.21 is amended by revising paragraphs (b) and (c)
to read as follows:
Sec. 3500.21 Mortgage servicing transfers.
* * * * *
(b) Servicing Disclosure Statement; Requirements. (1) At the time a
GFE application for a mortgage servicing loan is submitted, or within 3
business days after submission of the GFE application, the lender,
mortgage broker who anticipates using table funding, or dealer who
anticipates a first lien dealer loan shall provide to each person who
applies for such a loan a Servicing Disclosure Statement. A format for
the Servicing Disclosure Statement appears as Appendix MS-1 to this
part. The specific language of the Servicing Disclosure Statement is
not required to be used. The information set forth in ``Instructions to
Preparer'' on the Servicing Disclosure Statement need not be included
with the information given to applicants, and material in square
brackets is optional or alternative language. The model format may be
annotated with additional information that clarifies or enhances the
model language. The lender, table funding mortgage broker, or dealer
should use the language that best describes the particular
circumstances.
(2) The Servicing Disclosure Statement must indicate whether the
servicing of the loan may be assigned, sold, or transferred to any
other person at any time while the loan is outstanding. If the lender,
table funding mortgage broker, or dealer in a first lien dealer loan
will not engage in the servicing of the mortgage loan for which the
applicant has applied, the disclosure may consist of a statement that
such entity intends to assign, sell, or transfer servicing of such
mortgage loan before the first payment is due. Alternatively, if the
lender, table funding mortgage broker, or dealer in a first lien dealer
loan will engage in the servicing of the mortgage loan for which the
applicant has applied, the disclosure may consist of a statement that
the entity will service such loan and does not intend to sell,
transfer, or assign the servicing of the loan.
(c) Servicing Disclosure Statement; Delivery. The lender, table
funding mortgage broker, or dealer that anticipates a first lien dealer
loan shall deliver Servicing Disclosure Statements to each applicant
for a mortgage servicing loan at the time a GFE application is
received, or by placing it in the mail with prepaid first-class postage
within 3 business days from receipt of the GFE application. In the
event the borrower is denied credit within the 3 business-day period,
no servicing disclosure statement is required to be delivered. If co-
applicants indicate the same address on their GFE application, one copy
delivered to that address is sufficient. If different addresses are
shown by co-applicants on the GFE application, a copy must be delivered
to each of the co-applicants.
* * * * *
12. A new Sec. 3500.22 is added to read as follows:
Sec. 3500.22 Severability.
If any particular provision of this part or the application of any
particular provision to any person or circumstance is held invalid, the
remainder of this part and the application of such provisions to other
persons or circumstances shall not be affected by such holding.
13. A new Sec. 3500.23 is added to read as follows:
Sec. 3500.23 ESIGN applicability.
The Electronic Signatures in Global and National Commerce Act
(``ESIGN''), 15 U.S.C. 7001-7031, shall apply to this part.
14. Appendix A to part 3500 is amended:
a. By revising the first two sentences of the first paragraph of
the Appendix;
b. By removing the second paragraph of the General Instructions and
adding four new paragraphs in its place;
[[Page 14060]]
c. By revising the first paragraph after the heading ``Section L.
Settlement Charges'';
d. By revising the paragraphs for ``Line 801'' through ``Lines 808-
811'' after the heading ``Section L. Settlement Charges'';
e. By revising the second paragraph and removing the third
paragraph of instructions for ``Lines 1000-1008'' after the heading
``Section L. Settlement Charges'', and by removing the heading for the
instructions for ``Lines 1000-1008'' and adding in its place ``Lines
1000-1009'';
f. By removing the paragraphs for ``Lines 1100-1113'' through
``Lines 1111-1113'' after the heading ``Section L. Settlement Charges''
and adding in their place nine paragraphs of instructions for lines
1100-1114;
g. By removing the paragraph for ``Lines 1201-1205'' after the
heading ``Section L. Settlement Charges'' and adding in its place two
paragraphs of instructions for lines 1200-1205;
h. By removing the paragraphs for ``Lines 1301 and 1302'' and for
``Lines 1303-1305'' after the heading ``Section L. Settlement Charges''
and adding in their place a paragraph of instructions for lines 1301-
1305;
i. By revising the paragraph for ``Line 1400'';
j. By revising the first sentence in the first paragraph following
the heading ``Line Item Instructions for Completing HUD-1A'';
k. By adding after the paragraph of instructions for ``Line 1604''
a new heading ``General Instructions for Completing Closing Script
Addendum to HUD-1/1A Settlement Form'' and a new paragraph of
instructions;
l. By revising the Forms ``Settlement Statement'' and ``Settlement
Statement Optional Form for Transactions without Sellers''; and
m. By adding new Instructions to Closing Script Preparer and
Examples of Completed Closing Scripts 1 through 6, as follows:
APPENDIX A TO PART 3500--INSTRUCTIONS FOR COMPLETING HUD-1 AND HUD-1A
SETTLEMENT STATEMENTS; SAMPLE HUD-1 AND HUD-1A STATEMENTS
The following are instructions for completing sections A through
L and the closing script addendum of the HUD-1 settlement statement,
required under section 4 of RESPA and Regulation X of the Department
of Housing and Urban Development (24 CFR part 3500). This form is to
be used as a statement of actual charges and adjustments paid by the
borrower and the seller and received by each settlement service
provider, to be given to the parties in connection with the
settlement. * * *
General Instructions
* * * * *
The settlement agent shall complete the HUD-1 to itemize all
charges imposed upon the Borrower and the Seller by the loan
originator and all sales commissions, whether to be paid at
settlement or outside of settlement, and any other charges which
either the Borrower or the Seller will pay at settlement. For all
items except for those paid to and retained by the loan originator,
the name of the person or firm ultimately receiving the payment must
be shown together with the total amount paid to such person in
connection with the transaction. Charges that are customarily paid
for by the seller must be shown in the seller's column on page 2 of
the HUD-1 (unless paid outside closing), and charges that are
customarily paid for by the borrower must be shown in the borrower's
column (unless paid outside closing). If a seller pays for a charge
that is customarily paid for by the borrower, the charge should not
be shown on page 2 of the HUD-1 but instead should be listed as an
adjustment in lines 506-509 of the HUD-1. If a borrower pays for a
charge that is customarily paid for by the seller, the charge should
not be shown on page 2 of the HUD-1, but instead should be listed as
an adjustment in lines 204-209 of the HUD-1.
Charges to be paid outside of settlement by the borrower,
seller, or loan originator, including cases where a non-settlement
agent (i.e., attorneys, title companies, escrow agents, real estate
agents, or brokers) holds the Borrower's deposit toward the sales
price (earnest money) and applies the entire deposit towards the
charge for the settlement service it is rendering, must be included
on the HUD-1 but marked ``P.O.C.'' for ``Paid Outside of Closing''
(settlement) and cannot be included in computing totals. P.O.C.
items must not be placed in the Borrower or Seller columns, but
rather on the appropriate line next to the columns. The settlement
agent must indicate whether P.O.C. items are paid for by the
Borrower, Seller, or some other party by marking the items paid for
by whoever made the payment as ``P.O.C. (payor).''
In the case of ``no cost'' loans where ``no cost'' encompasses
third party fees as well as the up-front payment to the loan
originator, the third party services to be paid for out of the
adjusted origination charge must be itemized and listed on the HUD-
1/1A with the charge for the third party service. These itemized
charges must be recorded in the columns.
For charges disclosed using average cost pricing, the amount
stated on the HUD-1 Settlement Statement as a charge to the borrower
or seller for the settlement service must be the average price
established pursuant to 24 CFR 3500.8(e).
* * * * *
Line Item Instructions
Section L. Settlement Charges
For all items except for those paid to and retained by the loan
originator, the name of the person or firm ultimately receiving the
payment must be shown. In the case of loans where third party
settlement services, other than origination services, are paid from
the adjusted origination charge by the loan originator, the
individual third party settlement services should be itemized, with
the charges shown in the columns. In those cases, the adjusted
origination charge in line 803 will be a negative number large
enough to offset the amounts of the third party settlement services
that are paid out of the adjusted origination charge.
* * * * *
Line 801 is used to record ``Our Service Charge,'' which is
received by the loan originators. This number must not be listed in
either the buyer's or seller's column.
Line 802 is used to record ``Your charge or credit for the
specific interest rate chosen,'' which states the charge or credit
adjustment as applied to ``Our Service Charge,'' if applicable. This
number must not be listed in either column or shown on page one of
the HUD-1.
Line 803 is used to record ``Your Adjusted Origination
Charges,'' which states the net amount of the loan origination
charges. This number must be listed in either the buyer's column or
as ``paid outside closing.''
Lines 804-811 may be used to record each of the ``Required
services that we select''. Each settlement service provider must be
identified by name and the amount paid recorded inside the columns
or ``P.O.C.''.
Lines 808-811 may also be used to record other required lender
or loan program disclosures. In such a case, any charge must be
listed outside the columns.
* * * * *
Lines 1000-1009. * * *
After itemizing individual deposits in the 1000 series, the
servicer shall make an adjustment based on aggregate accounting.
This adjustment equals the difference between the deposit required
under aggregate accounting and the sum of the itemized deposits. The
computation steps for aggregate accounting are set out in Sec.
3500.17(d). The adjustment will always be a negative number or zero
(-0-). The settlement agent shall enter the aggregate adjustment
amount on a final line of the 1000 series of the HUD-1 or HUD-1A
statement.
Lines 1100-1115. This series covers title charges and charges by
attorneys. The title charges include a variety of services performed
by title companies or others, and include fees directly related to
the transfer of title (title examination, title search, document
preparation) and fees for title insurance. The legal charges include
fees for Lender's, Seller's, or Buyer's attorney, or the attorney
preparing title work. The series also includes any settlement,
notary, or delivery fees.
Line 1101 is used to record the total for the category of
``Title services and lender's title insurance,'' and the amount must
be listed in the columns.
Lines 1102-1108 may be used to itemize charges paid other than
those defined as ``primary title services,'' such as for a closing
attorney or escrow agent, and those charges paid must be listed
outside the columns. Lines 1102-1108 may also be used to itemize
some required title services whose costs are already included in
Line 1101. In such a
[[Page 14061]]
case, any charge must be listed outside the columns.
Line 1109 is used to record ``Lender's title insurance
premium,'' and the amount must be listed outside the columns.
Line 1110 is used to record ``Optional owner's title
insurance,'' and the amount must be listed in the columns.
Line 1111 is used to record the lender's title insurance policy
limits of coverage, and the amount must be listed outside the
columns.
Line 1112 is used to record the owner's title insurance policy
limits of coverage, and the amount must be listed outside the
columns.
Line 1113 is used to record the title agent's portion of the
total title insurance premium, and the amount must be listed outside
the columns.
Line 1114 is used to record the underwriter's portion of the
title insurance premium, and the amount must be listed outside the
columns.
Line 1201 is used to record the total ``Government recording and
transfer charges,'' and the amount must be listed in the columns.
Lines 1202-1205 may be used to record specific itemized third
party charges for government recording and transfer services, but
the amounts must be listed outside the columns.
Lines 1301-1305 may be used to record additional itemized
settlement charges, and the amounts must be listed in either column.
Line 1400 must state the total settlement charges stated within
each column.
Line Item Instructions for Completing HUD-1A
Note: The HUD-1A, including the closing script addendum, is an
optional form that may be used for refinancing and subordinate lien
federally related mortgage loans, as well as for any other one-party
transaction that does not involve the transfer of title to
residential real property.\34\ * * *
\34\ Note the HUD-1A and its instructions will be conformed to
changes to the HUD-1 and HUD-1 instructions at the final rule stage.
---------------------------------------------------------------------------
* * * * *
General Instructions for Completing Closing Script Addendum to HUD-1/1A
Settlement Form
The settlement agent must complete the closing script addendum
to the HUD-1/1A settlement form pursuant to Sec. 3500.8(d) and in
accordance with the instructions and example closing script forms
contained in this Appendix A.
BILLING CODE 4210-67-P
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BILLING CODE 4210-67-C
[[Page 14093]]
?>
15. Appendix C to part 3500 is revised to read as follows:
APPENDIX C TO PART 3500--INSTRUCTIONS FOR COMPLETING GOOD FAITH
ESTIMATE (GFE) FORM
The following are instructions for completing the GFE required
under section 5 of RESPA and 24 CFR 3500.7 (Regulation X) of the
Department of Housing and Urban Development regulations. The
standardized form set forth in this Appendix is the required GFE
form and must be provided exactly as specified. The instructions for
completion of the GFE are primarily for the benefit of the loan
originator who prepares the form and need not be transmitted to the
borrower(s) as an integral part of the GFE. The required,
standardized GFE form must be prepared completely and accurately. A
separate GFE must be provided for each loan where a transaction will
involve more than one mortgage loan.
General instructions
The loan originator preparing the GFE may fill in information
and amounts on the form by typewriter, hand printing, computer
printing, or any other method producing clear and legible results.
Under these instructions, the ``form'' refers to the required,
standardized GFE form. Although the standardized, required GFE is a
prescribed form, sections 3 and 5 on page 2 may be adapted for use
in particular loan situations, similarly to the way the Form HUD-1
Settlement Statement is adaptable, so that if additional lines are
needed in those blocks on the GFE, additional lines may be inserted
there.
All fees for categories of charges shall be disclosed in U.S.
dollar amounts.
Specific instructions
Page 1.
Top of the Form--The loan originator must enter its name,
business address, telephone number and email address on the top of
the form, along with the borrower's (GFE applicant's) name, the
address of the property for which financing is sought, and the date
of the GFE.
``Instructions''--This section requires no loan originator
action.
``Important dates.''--This section briefly states important
deadlines that the GFE applicant must meet during the GFE
application and mortgage application processes in order to obtain
the loan product that is the subject of the GFE. In Line 1, the loan
originator must state the date until which the interest rate for the
GFE will be available. In Line 2, the loan originator must state the
date until which the estimate of all other settlement charges for
the GFE will be available. In Line 3, the loan originator must state
how many days within which time the GFE applicant has to go to
settlement from the start of the mortgage application process, and
how many days prior to settlement the interest rate would have to be
locked.
``Summary of Your Loan Terms''--In the section entitled ``Your
Loan Details'', for all loans, the loan originator must fill in:
(i) The initial loan balance;
(ii) The loan term;
(iii) The initial interest rate; and
(iv) The initial monthly amount owed for principal, interest and
any mortgage insurance.
The loan originator must also specify the rate lock period in
days informing the borrower that after the borrower locks in his or
her interest rate, the borrower must go to settlement within this
period to receive that interest rate.
The loan originator must indicate whether the interest rate can
rise, and, if so, insert the maximum rate to which it can rise. The
loan originator must indicate whether the loan balance can rise,
and, if so, insert the maximum amount to which it can rise. (If the
loan balance will increase only because escrow is run out of the
loan balance, the loan originator is not required to check the box
indicating that the loan balance can rise.) The loan originator must
indicate whether the monthly amount owed for principal, interest,
and any mortgage insurance might rise, and, if so, insert the
maximum amount to which it can rise. The loan originator must
indicate whether the loan includes a prepayment penalty, and, if so,
the maximum amount that it could be. The loan originator must
indicate whether the loan requires a balloon payment and, if so, the
maximum amount, and in how many years it will be due. The loan
originator must also indicate whether the loan includes a monthly
escrow payment for property taxes and other financial obligations.
``Summary of your settlement charges''--In this section, the
loan originator must state its own charges (``Your Adjusted
Origination Charge'') based on the calculation of Blocks 1 and 2 on
page 2, as entered at highlighted Line A on page 2. The loan
originator must provide the total charge for all other services
(``Your Charges for All Other Settlement Services'') based on the
addition of the sums in Blocks 3 through 10 on page 2, as entered at
highlighted Line B on page 2. The loan originator must provide the
sum of these two numbers (``Total Estimated Settlement Charges''),
as entered at highlighted Line A+B on page 2.
Page 2.
``Understanding Your Estimated Settlement Charges''--This
section details the ten settlement cost categories and amounts
associated with the mortgage loan. For purposes of determining
whether the tolerance has been met, the amount on the GFE should be
compared with the total of any amounts shown on the HUD-1 in the
borrower's column and any amounts shown as ``P.O.C. (borrower).''
``Your Loan Details''
Block 1, ``Our service charge''--The loan originator must state
here all charges that all loan originators involved in this
transaction will receive, except for any charges for the interest
rate chosen noted in Block 2. The amount stated in Block 1 is
subject to zero tolerance, i.e., the amount may not increase at
settlement.
Block 2, ``Your credit or charge for the specific interest rate
chosen (points)''--The loan originator must indicate through check
boxes whether there is a credit to the borrower for the interest
rate chosen on the loan, and the amount of the credit, or whether
there is an additional up-front charge to the borrower for the
interest rate chosen on the loan, and the amount of that charge. A
credit and charge cannot occur together in the same transaction. A
lender may choose not to separately disclose any credit or charge
for the interest rate chosen on the loan in this block; however, if
this block does not include any positive or negative figure, the
lender must check the first box to indicate that ``The credit or
charge for the interest rate you have chosen'' is included in ``Our
service charge'' above. (See Block 1 instructions above.) For a
mortgage broker, the credit or charge for the specific interest rate
chosen is the difference between the initial loan amount and the
payment to the mortgage broker (i.e., the sum of the price paid for
the loan by the lender and any other payments to the mortgage broker
from the lender). When the amount paid to the mortgage broker
exceeds the initial loan amount, there is a credit to the borrower
and it is entered as a negative amount in Block 2 of the GFE. When
the initial loan amount exceeds the amount paid to the mortgage
broker, there is a charge to the borrower and it is entered as a
positive amount in Block 2 of the GFE. The amount stated in Block 2
is subject to zero tolerance while the interest rate is locked,
i.e., any charge for the interest rate chosen cannot increase and
any credit for the interest rate chosen cannot decrease in absolute
value terms.
Line A, ``Your Adjusted Origination Charges''--The loan
originator must add the numbers in Blocks 1 and 2 and enter this
subtotal at highlighted Line A. The subtotal at Line A will be a
negative number if there is a credit in Block 2 that exceeds the
charge in Block 1. The amount stated in Line A is subject to zero
tolerance while the interest rate is locked.
In the case of ``no cost'' loans where ``no cost'' refers only
to the loan originator's fees, Line A must show a zero charge as the
adjusted origination charge. In the case of ``no cost'' loans where
``no cost'' encompasses third party fees as well as the up-front
payment to the loan originator, the third party fees listed in Block
3 through Block 10, to be paid for by the loan originator, must be
itemized and listed on the GFE, and the total for Line A will result
in a negative number equal to the third party fees covered in the
loan originator's definition of ``no cost.''
``Your Charges for All Other Settlement Services''
Block 3, ``Required services that we select''--In this block,
the loan originator must identify each third party settlement
service required and selected by the loan originator (excluding
title services), along with the estimated price to be paid to the
provider of each service. The loan originator must identify the
specific required services and provide an estimate of the price of
each service. Loan originators are also required to add the
individual prices disclosed in this block and place the total in the
right-hand column of this block. Where a loan originator permits a
borrower to shop for third party settlement services, the loan
originator must
[[Page 14094]]
provide the borrower with a written list of settlement services
providers at the time of the GFE, on a separate sheet of paper. The
10 percent tolerance applies to the sum of the prices of each
service listed in Block 3, Block 4, Block 5, and Block 10, where the
loan originator requires the use of a particular provider or the
borrower uses a provider selected or identified by the loan
originator. Any services in Block 4, Block 5, or Block 10 for which
the borrower selects a provider other than one identified by the
loan originator are not subject to any tolerance and should not be
included in the sum of the prices on which the 10 percent tolerance
is based.
Block 4, ``Title services and lender's title insurance''--In
this block, the loan originator must state the estimated total price
paid to third party settlement service providers for all title
related services and lender's title insurance premiums, when such
services are required by the loan originator, regardless of whether
they are selected by the prospective borrower or the loan
originator. Where a loan originator permits a borrower to shop for
title services and lender's title insurance, the loan originator
must provide the borrower with a written list of title services
providers at the time of the GFE on a separate sheet of paper. The
price shown in this block is subject to an overall 10 percent
tolerance as described in the instructions for Block 3 above, if the
borrower selects one of the title services providers identified by
the loan originator.
Block 5, ``Required services that you can shop for''--In this
block, the loan originator must identify each third party settlement
service required by the loan originator where the borrower is
permitted to shop for and select the settlement service provider
(excluding title services), along with the estimated price to be
paid to the provider of each service. The loan originator must
identify the specific required services and provide an estimate of
the price of each service. The loan originator must also add the
individual prices disclosed in this block and place the total in the
right-hand column of this block. Where a loan originator permits a
borrower to shop for a required settlement service, the loan
originator must provide the borrower with a written list of
settlement service providers at the time of the GFE, on a separate
sheet of paper. The prices shown in this block are subject to an
overall 10 percent tolerance as described in the instructions for
Block 3 above, if the borrower selects a settlement service provider
identified by the loan originator.
Block 6, ``Government Recording and Transfer Charges''--Based
upon the proposed loan amount and/or sales price, and the property
address, a loan originator must estimate in this block the sum of
all state and local government fees, charges, and taxes, usually
resulting from the mortgage loan or property transfer, which can be
expected to be charged at settlement. A zero tolerance applies to
the sum of these estimated fees.
Block 7, ``Reserves or escrow''--In this block, the loan
originator must estimate the amount that the borrower will be
required to place in a reserve or escrow account at settlement to be
applied to periodic property tax, homeowner's insurance, mortgage
insurance payments, or other periodic charges.
Block 8, ``Daily interest charges''--In this block, the loan
originator must enter the daily interest amount applicable to the
proposed loan and estimate the total amount that will be due at
settlement, based on a closing date that the loan originator is to
identify in this block, and list the specific number of days.
Block 9, ``Homeowner's insurance''--The loan originator must
estimate in this block the premium amount for a hazard insurance
policy meeting the loan originator's requirements. To the extent a
loan originator requires that hazard insurance be part of the escrow
account, the amount of the initial escrow deposit must be properly
included in Block 7.
Block 10, ``Optional owner's title insurance''--In this block,
the loan originator must estimate the price of an owner's title
insurance policy. The loan originator must provide the borrower with
a written list of providers of owner's title insurance at the time
of the GFE on a separate sheet of paper. The price shown in this
block is subject to an overall 10 percent tolerance as described in
the instructions for Block 3 above, if the borrower selects a title
services provider identified by the loan originator.
Line B, ``Your Charges for All Other Settlement Services''--The
loan originator shall add the numbers in Blocks 3 to10 and enter
this subtotal at highlighted Line B.
Line A + B, ``Total Estimated Settlement Charges''--The loan
originator shall add the numbers at highlighted Lines A and B and
enter the total at highlighted Line A + B.
Page 3.
``Important Information and Instructions''
``Shopping for a loan offer''--The section requires no loan
originator action.
``Understanding Which Charges Can Change at Settlement''--This
section informs the prospective borrower of which categories of
settlement charges can increase at closing, and by how much, and
which categories of settlement charges cannot increase at closing.
This section requires no loan originator action.
``Looking at Trade-offs''--This section is designed to make
borrowers aware of the relationship between their total estimated
settlement charges on one hand, and the proposed interest rates and
resulting monthly payments on the other hand. The loan originator
must complete the left hand column using the loan amount, interest
rate, monthly payment figure, and the total estimated settlement
charges from page 1. The loan originator must provide the borrower
with the same information for two alternative loans, one with a
higher interest rate, if available, and one with a lower interest
rate, if available, from the loan originator. The alternative loans
must use the same loan amount and be otherwise identical to the loan
in the GFE. The loan originator must fill in the trade-off chart to
show the borrower the loan amount, alternative interest rate,
alternative monthly payment, the change in the monthly payment from
the loan in this GFE to the alternative loan, the change in the
total settlement charges from the loan in this GFE to the
alternative loan, and the total settlement charges for the
alternative loan. If either of the alternative loans are not
available from the loan originator, the loan originator should so
indicate with N. A. (i.e., Not Available), in the appropriate
column(s). If these options are available, an applicant may request
a new GFE, and a new GFE must be provided by the loan originator.
Page 4.
``Your financial responsibilities as a homeowner''--In this
section, the loan originator must enter the estimated annual amount
for property taxes, and any homeowner's, flood, or other required
property protection insurance that the GFE applicant may incur in
order to retain the mortgaged property. The remainder of this
section requires no loan originator action.
``Applying for this loan''--In this section, the loan originator
must provide its contact information, i.e., name and telephone
number or email address, and specify any fee the borrower must pay
to proceed with the mortgage application.
``Getting More Information''--The section requires no loan
originator action.
``Using the shopping chart''--This chart is a shopping tool to
be provided by the loan originator for the borrower to complete to
compare GFEs.
``If your loan is sold in the future''--This section requires no
loan originator action.
BILLING CODE 4210-67-P
[[Page 14095]]
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[[Page 14096]]
[GRAPHIC] [TIFF OMITTED] TP14MR08.032
[[Page 14097]]
[GRAPHIC] [TIFF OMITTED] TP14MR08.033
[[Page 14098]]
[GRAPHIC] [TIFF OMITTED] TP14MR08.034
BILLING CODE 4310-67-C
16. Appendix E to part 3500 is amended by removing the
parenthetical ``(Existing Accounts)'' from the heading,
[[Page 14099]]
``II. Example Illustrating Single-Item Analysis (Existing Accounts)''.
17. Appendix MS-1 to part 3500 is revised to read as follows:
APPENDIX MS-1 TO PART 3500
[Sample language; use business stationery or similar heading]
[Date]
SERVICING DISCLOSURE STATEMENT
NOTICE TO FIRST LIEN MORTGAGE LOAN APPLICANTS: THE RIGHT TO COLLECT
YOUR MORTGAGE LOAN PAYMENTS MAY BE TRANSFERRED
You are applying for a mortgage loan covered by the Real Estate
Settlement Procedures Act (RESPA) (12 U.S.C. 2601 et seq.). RESPA
gives you certain rights under Federal law. This statement describes
whether the servicing for this loan may be transferred to a
different loan servicer. ``Servicing'' refers to collecting your
principal, interest, and escrow payments, if any. You will be given
advance notice before a transfer occurs.
Servicing Transfer Information
[We may assign, sell, or transfer the servicing of your loan
while the loan is outstanding.]
[or]
[We do not service mortgage loans of the type for which you
applied. We intend to assign, sell, or transfer the servicing of
your mortgage loan before the first payment is due.]
[or]
[The loan for which you have applied will be serviced at this
financial institution and we do not intend to sell, transfer, or
assign the servicing of the loan.]
[INSTRUCTIONS TO PREPARER: Insert the date and select the
appropriate language under ``Servicing Transfer Information.'' The
model format may be annotated with further information that
clarifies or enhances the model language.]
Dated: February 8, 2008.
Brian D. Montgomery,
Assistant Secretary for Housing--Federal Housing Commissioner.
Note: The following appendix will not appear in the Code of
Federal Regulations.
Appendix to FR-5180 Proposed Rule on Regulatory Flexibility Analysis
The following Regulatory Flexibility Analysis is Chapter 6 of
the rule's Economic Analysis, which is available for public
inspection and available online at www.hud.gov/respa.
Appendix I. Introduction to the Rule's Benefits and Impacts on
Small Businesses
This appendix is the Initial Regulatory Flexibility Analysis
(IRFA) of the proposed rule as described under Section 604 of the
Regulatory Flexibility Act. The requirements of the IRFA are listed
below along with references to where the requirements are covered in
the IRFA and where more detailed discussion can be found in other
chapters of the Regulatory Impact Analysis (RIA).
(1) A description of the reasons why action by the agency is
being considered can be found in Section III of this appendix, in
Section II of Chapter 1 of the Regulatory Impact Analysis (RIA), and
in greater detail in the first sections of Chapters 3 and 4 of the
RIA.
(2) A succinct statement of the objectives of, and legal basis
for, the proposed rule is provided in Section III of this appendix.
This is also discussed in Section II of Chapter 1 of the Regulatory
Impact Analysis and in greater detail in the first sections of
Chapters 3 and 4 of the RIA.
(3) A description and an estimate of the number of small
entities to which the rule will apply or an explanation of why no
such estimate is available. Section V of this Appendix provides data
on small businesses that may be affected by the rule. As explained
in Section V, Chapter 5 of the Regulatory Impact Analysis also
provides extensive documentation of the characteristics of the
industries directly affected by the rule, including various
estimates of the numbers of small entities, reasons why various data
elements are not reliable or unavailable, and descriptions of
methodologies used to estimate (if possible) necessary data elements
that were not readily available. The industries discussed in Chapter
5 of the RIA included the following (with section reference):
mortgage brokers (Section II); lenders including commercial banks,
thrifts, mortgage banks, credit unions (Section III); settlement and
title services including direct title insurance carriers, title
agents, escrow firms, and lawyers (Section IV); and other third-
party settlement providers including appraisers, surveyors, pest
inspectors, and credit bureaus (Section V); and real estate agents
(Section VI). As explained in Section V of this chapter, Appendix A
includes estimates of revenue impacts for the new Good Faith
Estimate (GFE).
(4) A description of the projected reporting, record keeping,
and other compliance requirements of the rule, including an estimate
of the classes of small entities that will be subject to the
requirement and the types of professional skills necessary for
preparation of the report or record. Compliance requirements and
costs are discussed in Sections VII through IX of this appendix. In
no case are any professional skills required for reporting, record
keeping, and other compliance requirements of this rule that are not
otherwise required in the ordinary course of business of firms
affected by the rule. As noted above, Chapter 5 of the RIA includes
estimates of the small entities that may be affected by the rule.
(5) An identification, to the extent practicable, of all
relevant Federal rules which may duplicate, overlap or conflict with
the proposed rule. The proposed rule provisions for describing loan
terms in the new GFE and the HUD-1 closing script are somewhat
duplicative of the Truth in Lending Act (TILA) regulations; however
the differences in approach between the TILA regulations and HUD's
proposed RESPA rule make the duplication less than complete.
Overlaps are discussed further in this chapter.
In addition, this appendix contains (c) a description of any
significant alternatives to the proposed rule which accomplish the
stated objectives of applicable statutes and which minimize any
significant impact of the proposed rule on small entities. The IRFA
also describes comments dealing with compliance and regulatory
burden in the 2002 proposed rule. Some of the comments were on
provisions of the 2002 proposed rule that have been dropped. Other
comments were on impacts that the Department believes will be small
or non-existent. Some of the compliance and regulatory burden
comments concerned costs that are only felt during the start-up
period and are one-time costs. These are discussed in Section VII.B
of the Appendix, while comments on recurring costs of implementing
the new GFE form are addressed in Section VII.C. Section VII.D pf
the Appendix discusses GFE-related changes in the proposed rule that
reduce regulatory burden. Section VII.E discusses compliance issues
related to GFE tolerances on settlement party costs, while Section
VII.F discusses efficiencies associated with the new GFE.
Before proceeding further, Section II provides a brief summary
of the main findings from the Regulatory Impact Analysis that relate
to the proposed rule. The summary is provided for those readers who
do not have ready access to the other chapters of the Regulatory
Impact Analysis. Some readers may want more details on the
anticipated competitive and market effects of the new GFE on small
businesses. These are discussed in Chapter 3 of the RIA in Sections
VIII.A (mortgage brokers), VIII.B (lenders), VIII.C (title and
settlement third-party firms), and VIII.D (other third-party firms).
Appendix II. Summary of the Regulatory Impact Analysis
This summary follows the same outline as the Executive Summary
of the RIA: beginning with an overview of the proposed rule; a
discussion of the problems with the mortgage shopping process and
the current GFE; followed by a description of the main components of
the changes to the GFE; and a review of the anticipated benefits and
market effects of the proposed rule.
Appendix III. Overview of Proposed Rule
HUD has issued a proposed rule under the Real Estate Settlement
Procedures Act (RESPA) to simplify and improve the process of
obtaining home mortgages and to reduce settlement costs for
consumers. This Regulatory Impact Analysis and Regulatory
Flexibility Analysis examine the economic effects of that rule.\35\
As this Regulatory Impact Analysis demonstrates, the proposed rule
is expected to improve consumer shopping for mortgages and to reduce
the costs of closing a mortgage transaction for the consumer.
Consumer savings were estimated under a variety of scenarios about
originator and settlement costs. In the base case, the estimated
price reduction to borrowers comes to $8.35 billion or $668 per
loan. This
[[Page 14100]]
represents the substantial savings that can be achieved with the
proposed rule.
---------------------------------------------------------------------------
\35\ The term ``Economic Analysis'' will often be used to refer
to both the Regulatory Flexibility Analysis as well as the
Regulatory Impact Analysis.
---------------------------------------------------------------------------
The proposed RESPA rule includes a new, simplified Good Faith
Estimate (GFE) that includes tolerances on final settlement costs
and a new method for reporting wholesale lender payments in broker
transactions. The proposed rule allows settlement service providers
to seek discounts, including volume based discounts, for settlement
services, which should lead to lower third-party settlement service
prices. In addition, the proposed rule allows service providers to
use average cost pricing for third-party services they purchase,
making their business operations simpler and less costly.
Competition among loan originators will put pressure for these cost
savings to be passed on to borrowers. The proposed GFE will produce
substantial shopping and price-reduction benefits for both
origination and third-party settlement services.
To increase the value of the new GFE as a shopping document, HUD
is proposing revisions to the HUD-1 Settlement Statement form that
will make the GFE and HUD-1 easier to compare. The revised HUD-1
uses the same language to describe categories of charges as the GFE,
and orders the categories of charges in the same way. This makes it
much simpler to compare the two documents and confirm whether the
tolerances required in the new GFE have been met or exceeded. In
addition, the proposed rule requires as an addendum to the revised
HUD-1, the preparation and reading of a closing script that would:
(1) Compare the GFE to the HUD-1 and advise borrowers whether
tolerances have been met or exceeded; (2) verify that the loan terms
summarized on the GFE match those in the loan documents, including
the mortgage note; and (3) provide additional information on the
terms and conditions of the mortgage. All three of these components
of the rule, together, are required fully to realize the consumer
saving on mortgage closing cost estimated here.
Given that there has been no significant change in the basic
HUD-1 structure and layout, generating this new HUD-1 should not
pose any problem for firms closing loans--in fact, the closing
process will be much simpler given that borrowers and closing agents
can precisely link the information on the initial GFE to the
information on the final HUD-1.
Because the proposed rule calls for significant changes in the
process of originating a mortgage, this Regulatory Impact Analysis
identifies a wide range of benefits, costs, efficiencies, transfers,
and market impacts. The effects on consumers from improved borrower
shopping will be substantial under this rule. Similarly, the use of
tolerances will place needed controls on origination and third-party
fees. Ensuring that yield spread premiums are credited to borrowers
in brokered transactions could cause significant transfers to
consumers. The increased competition associated with RESPA reform
will reduce settlement service costs and result in transfers to
consumers from service providers. Entities that will suffer revenue
losses under the proposed rule are usually those who are charging
prices higher than necessary or are benefiting from the current
system's market failure.
Note to Reader: A more comprehensive summary of the problems
with the current mortgage shopping system and the benefits and
market impacts of the proposed rule is provided in Section I of
Chapter 3 of the RIA.
Appendix II.B. Problems With the Mortgage Shopping Process and the
Current GFE
The current system for originating and closing mortgages is
highly complex and suffers from several problems that have resulted
in high prices for borrowers. Studies indicate that consumers are
often charged high fees and can face wide variations in prices, both
for origination and third-party settlement services. The main points
are as follows:
There are many barriers to effective shopping for
mortgages in today's market. The process can be complex and can
involve rather complicated financial trade-offs, which are often not
fully and clearly explained to borrowers.
Consumers often pay non-competitive fees for
originating mortgages. Most observers believe that the market
breakdown occurs in the relationship between the consumer and the
loan originator--the ability of the loan originator to price
discriminate among different types of consumers leads to some
consumers paying more than other consumers.\36\
---------------------------------------------------------------------------
\36\ One could see price discrimination in a competitive market
that was the result of different costs associated with originating
loans for different applicants. For example, those who required more
work by the originator to obtain loan approval might be charged more
than those whose applications required little work in order to
obtain an approval. The price discrimination we refer to in this
paragraph and elsewhere in this analysis is not cost-based. It is
the result of market imperfections, such as poor borrower
information on alternatives that leads borrowers to accept loans at
higher cost than the competitive level.
---------------------------------------------------------------------------
There is convincing statistical evidence that yield
spread premiums are not always used to offset the origination and
settlement costs of the consumer. Studies, including a recent HUD-
sponsored study of FHA closing costs by the Urban Institute, find
that yield spread premiums are often used for the originator's
benefit, rather than for the consumer's benefit.\37\
---------------------------------------------------------------------------
\37\ See Section IV.D of Chapter 2 for a discussion of these
studies.
---------------------------------------------------------------------------
Borrowers can be confused about the trade-off between
interest rates and closing costs. It may be difficult for borrowers
(even sophisticated ones but surely unsophisticated ones) to
understand the financial trade-offs associated with discount points,
yield spread premiums, and upfront settlement costs. While many
originators explain this to their borrowers, giving them an array of
choices to meet their needs, some originators may only show
borrowers a limited number of options.
There is also evidence that third-party costs are
highly variable, indicating that there is much potential to reduce
title, closing, and other settlement costs. For example, a recent
analysis of FHA closing costs by the Urban Institute shows wide
variation in title and settlement costs. There is not always an
incentive in today's market for originators to control these costs.
Too often, high third-party costs are simply passed through to the
consumer. And consumers may not be the best shoppers for third-party
service providers due to their lack of expertise and to the
infrequency with which they shop for these services. Consumers often
rely on recommendations from the real estate agent (in the case of a
home purchase) or from the loan originator (in the case of a
refinance as well as a home purchase).
Today's GFE. Today's GFE does not help the above situations, as
it is not an effective tool for facilitating borrower shopping nor
for controlling third-party settlement costs. The current GFE is
typically comprised of a long list of charges, as today's rules do
not prescribe a standard form and consolidated categories. Such a
long list of individual charges can be overwhelming, often confuses
consumers, and seems to provide little useful information for
consumer shopping. The current GFE certainly does not inform
consumers what the major costs are so that they can effectively shop
and compare mortgage offers among different loan originators. The
current GFE does not explain how the borrower can use the document
to shop and compare loans. Also, the GFE fails to make clear the
relationship between the closing costs and the interest rate on a
loan, notwithstanding that many mortgage loans originated today
adjust up-front closing costs due at settlement, either up or down,
depending on whether the interest rate on the loan is below or above
``par.'' Finally, current rules do not assure that the ``good faith
estimate'' is a reliable estimate of final settlement costs. As a
result, under today's rules, the estimated costs on GFEs may be
unreliable or incomplete, and final charges at settlement may
include significant increases in items that were estimated on the
GFE, as well as additional fees, which can add to the consumer's
ultimate closing costs.
Thus, today's GFE is not an effective tool for facilitating
borrower shopping or for controlling origination and third-party
settlement costs. There is enormous potential for cost reductions in
today's market, which is too often characterized by relatively high
and highly variable charges for both origination and third-party
services.
In addition, today's RESPA rules hold back efficiency and
competition by acting as a barrier to innovative cost-reduction
arrangements. While today's mortgage market is characterized by
increased efficiencies and lower prices due to technological
advances and other innovations, that is not the case in the
settlement area where aggressive competition among settlement
service providers simply does not always take place. Under current
law, a provider's efforts to enter into volume arrangements with
settlement service firms may be regarded as illegal, which likely
impedes efforts to reduce the costs of third-party services.
Similarly, existing RESPA regulations inhibit average cost pricing
\38\ (another example of a
[[Page 14101]]
cost reduction technique). Thus, a framework is needed that would
encourage competitive negotiations and other arrangements that would
lead to lower settlement prices. The proposed GFE will provide such
a framework.
---------------------------------------------------------------------------
\38\ The charges reported on the HUD-1 are required to be the
specific charge paid in connection with the specific loan for which
the HUD-1 is filled out. Average cost pricing is the practice of
charging all borrowers the same expected average charge for all the
loans they work on. Average cost pricing requires less record
keeping and tracking for any individual loan since the numbers
reported to the settlement agent need not be transaction specific.
Average cost pricing is not permissible under RESPA because loan-
specific prices are required.
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Appendix II.C. Proposed Approach
Appendix II.C.1. Main Components of the Proposed GFE and HUD-1
The proposed GFE format simplifies the process of originating
mortgages by consolidating costs into a few major cost
categories.\39\ The proposed GFE ensures that in brokered
transactions, borrowers receive the full benefit of the higher price
paid by wholesale lenders for a loan with a high interest rate; that
is, so-called yield spread premiums. On both the GFE and HUD-1, the
portion of any wholesale lender payments that arise because a loan
has an above-par interest rate is passed through to borrowers as a
credit against other costs. Thus, there is assurance that borrowers
who take on an above-par loan receive funds to offset their
settlement costs. The proposed GFE also includes a trade-off table
that will assist consumers in understanding the relationship between
higher interest rates and lower settlement costs.
HUD conducted consumer tests to further improve the GFE form in
the 2002 proposed rule. Numerous changes were made to make the GFE
more user-friendly. A summary page containing the key information
for shopping was added; during the tests, consumers reported that
the summary page was a useful addition to the GFE. The trade-off
table, another component of the proposed GFE that consumers found
useful, has also been improved. The end result is a form that
consumers find to be clear and well written and, according the tests
conducted, one that they can use to determine the least expensive
loan. In other words, it is a shopping tool that is a vast
improvement over today's GFE with its long list of fees that can
change (i.e., increase) at settlement.
---------------------------------------------------------------------------
\39\ See the proposed GFE in Exhibit 3-B of Chapter 3.
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The proposed GFE includes a set of tolerances on originator and
third-party costs: Originators must adhere to their own origination
fees, and give estimates subject to a 10 percent upper limit on the
sum of certain third-party fees. The tolerances on originator and
third-party costs will encourage originators not only to lower their
own costs but also to seek lower costs for third-party services.
The proposed rule would allow settlement service providers to
seek discounts, including volume based discounts, for settlement
services, providing the price charged on the HUD-1 is no more than
the price paid to the third-party settlement service provider for
the discounted service. This should lead to lower third-party
settlement service prices. The proposed rule would allow service
providers to use average cost pricing for third-party services they
purchase so long as the average is calculated using an acceptable
method and the charge on the HUD-1 is no greater than the average
paid for that service. This will make internal operations for the
loan originator simpler and less costly and competition among
lenders will put pressure for these cost savings to be passed on to
borrowers as well. The end result of all these changes should be
lower third-party fees for consumers.
The HUD-1 has also been adjusted to ensure that the proposed GFE
(a shopping document issued early in the process) and the HUD-1 (a
final settlement document issued at closing) work well together. The
layout of the proposed HUD-1 has new labeling of some lines so that
each entry from the proposed GFE can be found on the proposed HUD-1
with the exact wording as on the GFE. This will make it much easier
to determine if the fees actually paid at settlement are consistent
with the GFE, whether the borrower does it alone or with the
assistance of the settlement agent. The reduced number of HUD-1
entries that should result, as well as use of the same terminology
on both forms should reduce the time spent by the borrower and
settlement comparing and checking the numbers.
No sections of the current HUD-1 have been eliminated so the
proposed HUD-1 should work for any settlement using the existing
HUD-1. Given that there has been no significant change in the basic
HUD-1 structure and layout, generating this new HUD-1 should not
pose any problem for firms closing loans--in fact, the closing
process will be much simpler given borrowers and closing agents can
precisely link the information on the initial GFE to the information
on the final HUD-1.
Appendix II.C.2. Estimates and Sources of Consumer Savings From the
Proposed Rule
Overall Savings. Chapter 3 discusses the consumer benefits
associated with the proposed GFE form and provides dollar estimates
of consumer savings due to improved shopping for both originator and
third-party services. Consumer savings were estimated under a
variety of scenarios about originator and settlement costs.\40\ In
the base case, the estimated price reduction to borrowers comes to
$8.35 billion, or 12.5 percent of the $66.7 billion in total charges
(i.e., origination fees, appraisal, credit report, tax service and
flood certificate and title insurance and settlement agent
charges).\41\ Thus, there is an estimated $8.35 billion in transfers
from firms to borrowers from the improved disclosures and tolerances
of the proposed GFE. This would represent savings of $668 per loan.
Sensitivity analysis was conducted with respect to the savings
projection in order to provide a range of estimates. Because title
fees account for over 70 percent of third-party fees and because
there is widespread evidence of lack of competition and overcharging
in the title and settlement closing industry, one approach projected
third-party savings only in that industry. This approach (called the
``title approach'') projected savings of $200 per loan in title and
settlement fees. In this case, the estimated price reduction to
borrowers comes to $8.38 billion ($670 per loan), or 12.6 percent of
the $66.7 billion in total charges--savings figures that are
practically identical to the base case mentioned above.\42\ Other
projections also showed substantial savings for consumers. As
explained in Chapter 3, estimated consumer savings under a more
conservative projection totaled $6.48 billion ($518 per loan), or
9.7 percent of total settlement charges. Thus, while consumer
savings are expected to be $8.35 billion (or 12.5 percent of total
charges) in the base case or $8.38 billion (12.7 percent of total
charges) in the title approach, they were $6.48 billion (or 9.7
percent of total charges) in a more conservative sensitivity
analysis. This $6.48-$8.38 billion ($518-$670 per loan) represents
the substantial savings that can be achieved with the proposed GFE.
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\40\ Throughout this Economic Analysis, the terms ``borrowers''
and ``consumers'' are often used interchangeably.
\41\ Government fees and taxes and escrow items are not included
in this analysis, as they are not subject to competitive market
pressures.
\42\ If the savings in title and settlement closing fees due to
RESPA reform were only $150, then the estimated price reduction to
borrowers comes to $7.76 billion, or 11.6 percent of the $66.7
billion in total charges.
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Industry Breakdown of Savings. Chapter 3 also disaggregates the
sources of consumer savings into the following major categories:
Originators with a breakdown for brokers and lenders, and third-
party providers with a breakdown for the title and settlement
industry and other third-party providers.\43\ In the base case,
originators (brokers and lenders) contribute $5.88 billion, or 70
percent of the $8.35 billion in consumer savings. This $5.88 billion
in savings represents 14.0 percent of the total revenue of
originators, which is projected to be $42.0 billion.\44\ The $5.88
billion is divided between brokers, which contribute $3.53 billion,
and lenders (banks, thrifts, and mortgage banks), which contribute
the remaining $2.35 billion. The shares for brokers (60 percent) and
lenders (40 percent) represent their respective shares of mortgage
originations.
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\43\ Readers are referred to Chapter 5 for a more detailed
examination of the various component industries (e.g., title
services, appraisal, etc.) as well as for the derivations of many of
the estimates presented in this chapter.
\44\ This assumes a 1.75 percent origination fee for brokers and
lenders, which, when applied to projected originations of $2.4
trillion, yields $42.0 billion in total revenues from origination
fees (both direct and indirect). See Steps (3)-(5) of Section
VII.E.1 of Chapter 3 of the RIA for the explanation of origination
costs. Sensitivity analyses are conducted for smaller origination
fees of 1.5 percent and larger fees of 2.0 percent; see Step (21) in
Section VII.E.4 of Chapter 3.
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In the base case, third-party settlement service providers
contribute $2.47 billion, or 30 percent of the $8.35 billion in
consumer savings. This $2.47 billion in savings represents 10.0
percent of the total revenue of third-party providers, which is
projected to be $24.738 billion.\45\ The $2.47 billion is divided
between title and settlement agents, which contribute $1.79 billion,
and other
[[Page 14102]]
third-party providers (appraisers, surveyors, pest inspectors,
etc.), which contribute $0.68 billion. Title and settlement agents
contribute a large share because they account for 72.5 percent of
the third-party services included in this analysis. In the title
approach, title and settlement agents account for all third-party
savings, which total $2.5 billion if per loan savings are $200 and
$1.88 billion if per loan savings are $150.
---------------------------------------------------------------------------
\45\ See Step (7) of Section VII.E.1 of Chapter 3 of the RIA for
the derivation of the $24.738 billion.
---------------------------------------------------------------------------
Section II.C.4 of this appendix presents the revenue impacts on
small originators and small third-party providers.
Sources of Savings: Lower Origination and Third-Party Fees. The
Regulatory Impact Analysis presents evidence that some consumers are
paying higher prices for origination and third-party services. The
proposed GFE format in the proposed rule will improve consumer
shopping for mortgages, which will result in better mortgage
products, lower interest rates, and lower origination and third-
party costs for borrowers.
The proposed rule simplifies the process of originating
mortgages by consolidating costs into a few major cost categories.
This is a substantial improvement over today's GFE that is not
standardized and can contain a long list of individual charges that
encourages fee proliferation. This makes it easier for the consumer
to become overwhelmed and confused. The consistent and simpler
presentation of the proposed GFE will improve the ability of the
consumer to shop.
A GFE with a summary page, which includes the terms of
the loan, will make it to clear to the consumer whether they are
comparing similar loans.
A GFE with a summary page will make it simpler for
borrowers to shop. The higher reward for shopping, along with the
increased ease with which borrowers can compare loans, should lead
to more effective shopping, more competition, and lower prices for
borrowers.
The proposed GFE makes cost estimates more reliable by
applying tolerances to the figures reported. This will reduce the
all too frequent problem of borrowers being surprised by additional
costs at settlement. With fees firmer under the proposed GFE,
shopping is more likely to result in borrowers saving money when
they shop.
The proposed GFE will disclose yield spread premiums
and discount points in brokered loans prominently, accurately, and
in a way that should inform borrowers how they may be used to their
advantage. Both values will have to be calculated as the difference
between the price of the loan and its par value. Their placement in
the calculations that lead to net settlement costs will make them
very difficult to miss. That placement should also enhance borrower
comprehension of how yield spread premiums can be used to reduce up-
front settlement costs. Tests of the form indicate that consumers
can determine the cheaper loan when comparing a broker loan with a
lender loan.
The proposed GFE will better inform consumers about
their financing choices by requiring that lenders present the
different interest rate and closing cost options available to them.
For example, consumers will better understand the trade-offs between
reducing their closing costs and increasing the interest rate on the
mortgage.
The proposed rule allows settlement service providers
to seek discounts, including volume based discounts, for settlement
services. In addition, the rule allows service providers to use
average cost pricing for third-party services they purchase.
The above changes and the imposition of tolerances on
fees will encourage originators to seek discounts, which should
lower settlement service prices. The tolerances will lead to well-
informed market professionals either arranging for the purchase of
the settlement services or at least establishing a benchmark that
borrowers can use to start their own search. Under either set of
circumstances, this should lead to lower prices for borrowers than
if the borrowers shopped on their own, since the typical borrower's
knowledge of the settlement service market is limited, at best.
Appendix II.C.3. Savings and Transfers, Efficiencies, and Costs
As explained above, it is estimated that borrowers would save
$8.35 billion in origination and settlement charges. This $8.35
billion represents transfers to borrowers from high priced
producers, with $5.88 billion coming from originators and $2.47
billion from third-party settlement service providers. In addition
to the transfers, there are efficiencies associated with the rule as
well as costs.
Mortgage applicants and borrowers realize $1,073 million savings
in time spent shopping for loans and third-party services. Loan
originators save $1,404 million in time spent with shoppers, in
efforts spent seeking out vulnerable borrowers, and from average
cost pricing. Third-party settlement service providers save $113
million in time spent with shoppers. Some or all of the $1,404
million and $113 million in efficiency gains have the potential to
be passed through to borrowers through competition.
The total one-time compliance costs to the lending and
settlement industry of the proposed GFE and HUD-1 are estimated to
be $570 million, $390 million of which is borne by small business.
These costs are summarized below. Total recurring costs are
estimated to be $1.231 billion annually or $98.48 per loan. The
share of the recurring costs on small business is $548 million. This
chapter examines in greater detail the compliance and other costs
associated with the proposed GFE and HUD-1 forms and its tolerances.
The proposed GFE has some features that would increase the cost
of providing it and some that would decrease the cost. Practically
all of the information required on the GFE is readily available to
originators, suggesting no additional costs. The fact that there are
fewer numbers and less itemization of individual fees suggests
reduced costs. On the other hand, there could be a small amount of
additional costs associated with the trade-off table but that is not
clear. Thus, while it is difficult to estimate, it appears that
there could be a net of zero additional costs. However, if the
proposed GFE added 10 minutes to the time it takes to handle the
forms today, annual costs would rise by $255 million ($12 per
application or $20 per loan). (See Section VII.C.1 of this
appendix.)
The presence of tolerances will lead to some additional costs to
originators of making additional arrangements for third parties to
provide settlement services. If the average loan originator incurs
an average of 10 minutes per loan of effort making third-party
arrangements to meet the tolerances, then the total cost to
originators of making third-party arrangements to meet the tolerance
requirements comes to $300 million ($24 per loan). (See Section
Appendix VII.E.2.)
In addition to the recurring costs of the proposed GFE, there
will be one-time adjustment costs of $401 million in switching to
the new form. Loan originators will have to upgrade their software
and train staff in its use in order to accommodate the requirements
of the new rule. It is estimated that the software cost will be $33
million and the training cost will be $58 million, for a total of
$91 million (see Section Appendix III.B.1). Once the new software is
functioning, the recurring costs of training new employees in its
use and the costs associated with periodic upgrades simply replace
those costs that would have been incurred doing the same thing with
software for the old rule. They represent no additional costs of the
new rule. Similarly, there will be a one-time adjustment cost for
legal advice on how to deal with the changes related to the new GFE.
The one-time adjustment cost for legal fees is estimated to be $116
million (see Appendix III.B.2). Once the adjustment has been made,
the ongoing legal costs are a substitute for the ongoing legal costs
that would have been incurred under the old rule and do not
represent any additional burden.
Finally with respect to the GFE, employees will have to be
trained in the new GFE beyond the software and legal training
already mentioned. This one time adjustment cost is estimated to be
$193 million (see Section Appendix III.B.3). Again, once the
transition expenses have been incurred, any ongoing training costs
are a substitute for the training costs that would have been
incurred anyway and do not represent an additional burden.
There will be recurring costs of the new HUD-1 on the settlement
industry arising from the addition of the closing script. Requiring
the script would impose a cost on the settlement industry only when
it increases the average time spent to complete a settlement.
Settlement agents would be obliged to collect data from the GFE,
fill out the script, read it to the borrower, and answer any
questions engendered by the script. The typical agent will perform
this kind of work regardless of whether they are required to do so.
A script only standardizes the explanation of the correspondence
between the GFE and the HUD-1 forms. It is conceivable that the
burden imposed on the average conscientious agent is very modest.
However, to be cautious, we assume that the script would lead to an
additional forty-five minutes spent on the average settlement. The
opportunity cost of that time to the
[[Page 14103]]
settlement firm would be $54 (derived from a $150,000 fully loaded
salary). The total cost of the script in a normal year (12.5 million
originations) would be $676 million and $838 million in a high
volume year (15.5 million originations). (See Section VII.C.2 of
this appendix for a lengthier discussion.)
There will be one-time adjustment costs of $169 million in
switching to the new HUD-1 form and its new addendum, the
standardized closing script. Settlement firms will have to upgrade
their software and train staff in its use in order to accommodate
the requirements of the new rule. It is estimated that the software
cost will be $14 million and the training cost will be $48 million,
for a total of $62 million (see Section Appendix VII.B.). Once the
new software is functioning, the recurring costs of training new
employees in its use and the costs associated with periodic upgrades
simply replace those costs that would have been incurred doing the
same thing with software for the old rule. They represent no
additional costs of the new rule.
Similarly, there will be a one-time adjustment cost for legal
advice on how to deal with the changes related to the new HUD-1. The
one-time adjustment cost for legal fees is estimated to be $37
million (see Section Appendix VII.B.). Once the adjustment has been
made, the ongoing legal costs are a substitute for the ongoing legal
costs that would have been incurred under the old rule and do not
represent any additional burden.
Finally, employees will have to be trained in the new HUD-1
beyond the software and legal training already mentioned. This one
time adjustment cost is estimated to be $71 million (see Section
Appendix VII.B.). Again, once the transition expenses have been
incurred, any ongoing training costs are a substitute for the
training costs that would have been incurred anyway and do not
represent an additional burden.
The consumer savings, efficiencies and costs associated with the
proposed GFE are discussed further in the Appendix and in Chapter 3
of the RIA. A summary of the compliance costs for the base case of
12.5 million loans annually is presented below in Table A-1.
Table A-1.--Compliance Costs of the Proposed Rule (If 12.5 Million Loans Annually)
----------------------------------------------------------------------------------------------------------------
One-time compliance costs Recurring compliance costs
incurred during the first year (in millions annually)
(in millions) -------------------------------- $ cost per
-------------------------------- loan
All firms Small firms All firms Small firms
----------------------------------------------------------------------------------------------------------------
GFE............................. $401 $280 $555 $290 $44.40
HUD-1........................... 169 110 676 258 54.08
-------------------------------------------------------------------------------
Total....................... 570 390 1,231 548 98.48
----------------------------------------------------------------------------------------------------------------
The costs of the closing script are included in the HUD-1 costs.
Note that all of the recurring costs from the HUD-1 stem entirely
from the required closing script.
Appendix II.C.4. Alternatives Considered To Make the GFE More
Workable for Small and Other Businesses
Chapter 3 discusses the many comments that HUD received on the
GFE in the 2002 proposed rule and in the 2005 RESPA Reform
Roundtables. Chapter 4 discusses alternatives. The most basic
alternative was to make no change in the current GFE. Some
commenters, particularly those who favored packaging, argued that
the current GFE should be left in place while packaging was given a
chance to work. The proposed rule does allow the current GFE to be
used for one year after the proposed GFE is introduced. This one-
year adjustment period responds to lenders' comments that there
would be significant implementation issues with switching to a
proposed GFE.
The main alternative concerning small businesses considered the
brokers' argument that they were disadvantaged by the reporting of
yield spread premiums. HUD improved the proposed GFE to ensure that
there will not be any anti-competitive impacts on the broker
industry. A summary page was added that presents the key cost
figures for borrower shopping, that does not report yield spread
premiums, and that provides identical treatment for brokers and
lenders. The proposed GFE adds language that clarifies how yield
spread premiums reduce the upfront charge that borrowers pay.
HUD changed the GFE to make it more workable for small lenders
and brokers. Some examples of the changes are the following:
In response to concerns expressed by lenders and
brokers about their ability to control third-party costs and meet
the specified tolerances in the 2002 proposed rule, the proposed
rule clarifies that ``zero tolerance'' does not pertain in
``unforeseeable circumstances'' beyond the originator's control. The
tolerance for fees for lender-required, lender-selected third-party
services was also increased from zero percent to 10 percent. The sum
of the fees to which the ten percent tolerance applies may not
exceed the initial sum by more than ten percent. However, individual
fees in this category may increase by more than ten percent.
Consistent with the above, the rule clarifies the
definition of ``unforeseeable circumstances'' to include
circumstances that could not be reasonably foreseen at the time of
GFE application--examples include the need for a second appraisal or
flood insurance.
The definition of an application was changed to be
consistent with the way consumers and lenders operate today--a ``GFE
application'' would serve as a shopping application and a ``mortgage
application'' would be submitted once a shopper chooses a particular
loan originator, and would resemble the standard application in
today's market and be the basis for full underwriting.
The proposed rule clarifies that only the ``mortgage
application'' would be subject to Regulations B (ECOA) and C (HMDA),
which is the current situation today.
HUD reduced the guarantee period for tolerances to 10
business days, which gives borrowers ample time to shop and does not
impose large operational and hedging costs on lenders and brokers
(as 30 days might have).
Lenders and brokers objected to the requirement that
they calculate the Annual Percentage Rate (APR) on the GFE; for a
variety of reasons, HUD dropped the APR from the proposed GFE. They
also disagreed with splitting out the broker and lender portions of
the origination fee on the back page of the GFE; HUD dropped that
from the proposed GFE.
The above changes address a number of practical and
implementation problems raised by lenders and brokers about the
proposed GFE. The changes make the proposed GFE easier to use for
small lenders and brokers.
Alternatives. This chapter and Chapter 4 discuss other major
alternatives that HUD considered, including single packaging, dual
packaging, and a Settlement Service Package. These chapters discuss
the pros and cons of these alternatives and why HUD decided not to
include them in this proposed rule. For example, HUD did consider
the option of offering a Mortgage Package Offer (MPO, or single
packaging) with a Section 8 safe harbor in combination with the
proposed GFE. HUD rejected this alternative for several reasons.
First, HUD included tolerances in the proposed GFE, which will
encourage lenders to negotiate with third-party providers in order
to reduce their costs. Second, this proposed rule encourages volume
discount arrangements (one of the cost-reduction features of single
packaging), which will also lead to more competitive third-party
prices. Third, the proposed rule allows lenders and other service
providers to average cost price (another cost-reduction feature of
single packaging). Fourth, the proposed GFE itself is a much
improved shopping document over the existing GFE; for example,
individual fees are consolidated into broad categories and a
summary, first page provides the shopper with key information to
select the least expensive loan package. Thus, the proposed GFE
already includes many of the cost-reducing features that would
supposedly be offered by packing. Finally, this is all
[[Page 14104]]
accomplished without having to offer a Section 8 exemption to the
industry.
Appendix II.C.5 Market and Competitive Impacts on Small Businesses
From the Proposed Rule
Transfers from Small Businesses. It is estimated that $4.13
billion, or 49.5 percent of the $8.35 billion in consumer savings
comes from small businesses, with small originators contributing
$3.01 billion and small third-party firms, $1.13 billion.\46\ Within
the small originator group, most of the transfers to consumers come
from small brokers ($2.47 billion, or 82 percent of the $3.01
billion); this is because small firms account for most of broker
revenues but a small percentage of lender revenues. Within the small
third-party group, most of the transfers come from the title and
closing industry ($0.68 billion, or 60 percent of the $1.13
billion), mainly because this industry accounts for most third-party
fees. In the title approach, small title and settlement closing
companies account for $0.95 billion of the $2.5 billion in savings.
Section VII.E.2 of Chapter 3 of the Regulatory Impact Analysis IA
explains the steps in deriving these revenue impacts on small
businesses, and Section VII.E.4 of Chapter 3 reports several
sensitivity analyses around the estimates. In addition, Chapter 5 of
the RIA provides more detailed revenue impacts for the various
component industries.\47\
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\46\ In the more conservative scenario of $6.48 billion in
consumer savings, small businesses would account for $3.21 billion
of the transfers to consumers, with small originators accounting for
$2.36 billion, and small third-party providers, $0.84 billion.
\47\ In Chapter 5 of the RIA, see Section II for brokers,
Section III for the four lender groups (commercial banks, thrifts,
mortgage banks, and credit unions), Section IV for the various title
and settlement groups (large insurers, title and settlement agents,
lawyers, and escrow firms), Section V.A for appraisers, Section V.B
for surveyors, Section V.C for pest inspectors, and Section V.D for
credit bureaus.
---------------------------------------------------------------------------
The summary bullets in Section Appendix II.C.2 highlight the
mechanisms through which these transfers are expected to happen.
Improved understanding of yield spread premiums, discount points,
and the trade-off between interest rates and upfront costs; improved
consumer shopping among originators; more aggressive competition by
originators for settlement services; and increased competition
associated discounting--all will lead to reductions in both
originator and third-party fees. As noted earlier, there is
substantial evidence of non-competitive prices charged to some in
the origination and settlement of mortgages. Originators (both small
and large) and settlement service providers (both small and large)
that have been charging high prices will experience reductions in
their revenues as a result of the proposed GFE. There is no evidence
that small businesses have been disproportionately charging high
prices; for this reason, there is no expectation of any
disproportionate impact on small businesses from the proposed GFE.
The revenue reductions will be distributed across firms based on
their non-competitive price behavior.
Small Brokers.\48\ The main issue raised by the brokers
concerned the treatment in the 2002 proposed rule of yield spread
premiums on the proposed Good Faith Estimate. This was also the main
small business issue with the 2002 proposed GFE since practically
all brokers qualify as small businesses. As explained above, the
current proposed rule addresses the concern expressed by brokers
that the reporting of yield spread premiums in the 2002 proposed
rule would disadvantage them relative to lenders. The Department
hired forms development specialists, the Kleimann Communication
Group, to analyze, test, and improve the forms. They reworked the
language and presentation of the yield spread premium to emphasize
that it offsets other charges to reduce up-front charges, the cash
needed to close the loan. The subjects tested seemed to like the
table on page 3 of the form that shows the trade-off between the
interest rate and up-front charges. It illustrates how yield spread
premiums can reduce upfront charges. There is the new summary page
designed to simplify the digestion of the information on the form by
including only summary information from page two: The adjusted
origination charge, the sum of all other charges, and the total.
This is the first page any potential borrower would see. It contains
only the essentials for comparison-shopping and is simple: A
standard set of yes-no questions describing the loan and a very
simple summary of costs and the bottom line. Yield spread premiums
are never mentioned here. Lender and broker loans get identical
treatment on page 1. A mortgage shopping chart has been added as a
last page of the GFE, to help borrowers comparison shop. Arrows were
added to focus the borrower on overall charges, rather than one
component. All of these features work against the borrower
misinterpreting the different required presentation of loan fees
required of brokers vis-[agrave]-vis lenders.
---------------------------------------------------------------------------
\48\ Practically all (98.9%) of the 30,000-44,000 brokers
qualify as a small business. The Bureau of Census reports that small
brokers account for 70% of industry revenue.
---------------------------------------------------------------------------
HUD has redesigned the proposed GFE form to focus borrowers on
the right numbers so that competition is maintained between brokers
and lenders. The forms adopted in the proposed rule were tested on
hundreds of subjects. The tests indicate that borrowers who
comparison shop will have little difficulty identifying the cheapest
loan offered in the market whether from a broker or a lender.
The customer outreach function that brokers perform for
wholesale lenders is not going to change with RESPA reform.
Wholesale lending, which has fueled the rise in mortgage
originations over the past ten years, will continue to depend on
brokers reaching out to consumer customers and supplying them with
loans. Brokers play the key role in the upfront part of the mortgage
process and this will continue with the proposed GFE.
RESPA reform is also not going to change the basic cost and
efficiency advantages of brokers. Brokers have grown in market share
and numbers because they can originate mortgages at lower costs than
others. There is no indication that their cost competitiveness is
going to change in the near future. Thus, brokers, as a group, will
remain highly competitive actors in the mortgage market, as they
have been in the past.
While there is no evidence to suggest any anti-competitive
impact, there will be an impact on those brokers who are charging
non-competitive prices. And there is convincing evidence that some
brokers (as well as some lenders) overcharge consumers (see studies
reviewed in Chapter 2). As emphasized throughout the Regulatory
Impact Analysis, the proposed GFE will lead to improved and more
effective consumer shopping, for many reasons--the proposed GFE is
simple and easy to understand, it includes reliable cost estimates,
it effectively discloses yield spread premiums and discounts in
brokered loans without disadvantaging brokers, it ensures that
consumers are shown options, and it explains the trade-off between
closing costs and yield spread premiums. This increased shopping by
consumers will reduce the revenues of those brokers who are charging
non-competitive prices. Thus, the main impact on brokers (both small
and large) of the proposed rule will be on those brokers (as well as
other originators) who have been overcharging uninformed consumers,
through the combination of high origination fees and yield spread
premiums.\49\ As noted above, small brokers are expected to
experience $2.47 billion in reduced fees.
---------------------------------------------------------------------------
\49\ As explained throughout this chapter, it is anticipated
that market competition, under this proposed GFE approach, will have
a similar impact on those lenders (non-brokers) who have been
overcharging consumers through a combination of high origination
costs and yield spread premiums.
---------------------------------------------------------------------------
Section VIII.A of Chapter 3 of the RIA discusses other concerns
raised by brokers about the 2002 proposed GFE, such as the
following:
1. Brokers were concerned about their ability to control costs
and meet the specified tolerances in the 2002 proposed rule. As
explained above, the proposed rule made several adjustments to the
tolerance rules and clarified when tolerances would or would not be
in effect.
2. Brokers supported a generic trade-off table but the
Department concluded, based on consumer testing, that a customized
trade-off chart was essential for increasing consumer understanding
of the complex yield spread premium issue.
3. Brokers disagreed with splitting out the broker and lender
portions of the origination fee on the back page of the GFE; HUD has
dropped that on the 2007 proposed GFE.
4. Brokers did not agree with the 30-day shopping period for the
GFE; HUD reduced that to 10 days, which should provide adequate time
for consumers to shop.
5. Brokers raised objections to having brokers calculate the
Annual Percentage Rate (APR) on the GFE; for a variety of reasons,
HUD has dropped the APR from the GFE.
To a large extent, brokers raised many of the same
implementation issues voiced by lenders in their comments. The
changes that HUD made in the 2007 proposed rule will
[[Page 14105]]
make the GFE more workable for small brokers and small lenders.
Small Lenders. Lenders include mortgage banks, commercial banks,
credit unions, and thrift institutions.\50\ There are over 10,000
lenders that would be affected by the RESPA rule, as well as almost
4,000 credit unions that originate mortgages. While two-thirds of
the lenders qualify as a small business (as do four-fifths of the
credit unions), these small originators account for only 23 percent
of industry revenues. Thus, small lenders (including credit unions)
account for only $540 million of the projected $2.35 billion in
transfers from lenders.\51\ Section VIII.B of Chapter 3 of the RIA
provides a detailed discussion of the anticipated impacts of the
rule on lenders, and the pros and cons of the various policy
alternatives that the Department considered.
---------------------------------------------------------------------------
\50\ While it is recognized that the business operations and
objectives of these lender groups can differ--not only between the
groups (a mortgage banker versus a portfolio lender) but even within
a single group (a small community bank versus a large national
bank)--they raised so many of the same issues that it is more useful
to address them in one place.
\51\ Section III of Chapter 5 describes the characteristics of
these component industries (number of employees, size of firms,
etc.), their mortgage origination activity, and the allocation of
revenue impacts between large and small lenders. That section also
explains that the small business share of revenue could vary from 20
percent to 26 percent.
---------------------------------------------------------------------------
In general, there was less concern expressed by lenders (as
compared with brokers) about potential anti-competitive impacts of
the GFE on small businesses. Small lenders--relative to both brokers
and large lenders--will remain highly competitive actors in the
mortgage market, as they are today. Small mortgage banks, community
banks and local savings institutions benefit from their knowledge of
local settlement service providers and of the local mortgage market.
Nothing in the 2007 proposed GFE rule changes that.
For the most part, lenders supported the packaging concept but
wanted to delay the enhanced GFE while packaging was given a chance
to work. As explained above, HUD allows a 12-month implementation
period during which the current GFE could be used, which should give
lenders time to adjust their computer systems and train employees to
use the proposed GFE.
Lenders had numerous comments on most aspects of the 2002
proposed GFE form--some of them dealing with major issues such as
the difficulty in predicting costs within a three day period and
many dealing with practical and more technical issues. HUD responded
to many of the issues and concerns raised by lenders; Sections V,
VI, and VIII of Chapter 3 discuss lenders' comments and HUD's
response.
Some lenders were concerned about their ability to produce firm
cost estimates (even of their own fees) within a three-day period,
given the complexity of the mortgage process. Lenders wanted
clarification on their ability to make cost adjustments as a result
of information they gain during the full underwriting process. The
tolerances in the proposed rule require that lenders play a more
active role in controlling third-party costs than they have in the
past. However, some lenders emphasized that they have little control
over fees of third-party settlement providers, while others seem to
not anticipate problems in this regard. As explained in I.B above,
the proposed rule made several adjustments to the tolerance rules,
which should make them workable for lenders. In addition, the
proposed rule allows volume discounting and average cost pricing,
which should help lenders reduce their costs. Practically all
lenders wanted clarification on the definition of application, and
HUD did that, along the same lines that lenders suggested in their
comments.
There will be an impact on those lenders (both large and small)
who are charging non-competitive prices. Improved consumer shopping
with the proposed GFE will reduce the revenues of those lenders who
are charging non-competitive prices. Thus, as with brokers, the main
negative impact on lenders (both small and large) of the proposed
GFE will be on those lenders who have been overcharging uninformed
consumers.
Small Title and Settlement Firms. The title and settlement
industry--which consists of large title insurers, title agents,
escrow firms, lawyers, and others involved in the settlement
process--is expected to account for $1.79 billion of the $2.47
billion in third-party transfers under the proposed GFE. Within the
title and settlement group, small firms are expected to account for
38.1 percent ($0.68 billion) of the transfers, although there is
some uncertainty with this estimate.\52\ Step (8) of Section VII.E
of Chapter 3 conducts an analysis that projects all of the consumer
savings in third-party costs coming from the title industry;
evidence suggests there are more opportunities for price reductions
in the title industry, as compared with other third-party
industries. In this case, consumer savings in title costs ($150-$200
per loan) ranged from $1.88 billion to $2.50 billion. To a large
extent, the title and closing industry is characterized by local
firms providing services at constant returns to scale. The demand
for the services of these local firms will continue under the
proposed GFE.
---------------------------------------------------------------------------
\52\ Section IV of Chapter 5 describes the component industries
and estimates the share of overall industry revenue going to small
businesses.
---------------------------------------------------------------------------
Section VIII.C of Chapter 3 summarizes the key competitive
issues for this industry with respect to the proposed rule. As noted
there, the overall competitiveness of the title and closing industry
should be enhanced by the RESPA rule. Chapters 2 and 5 and Section
III.E of Chapter 3 of the Regulatory Impact Analysis provide
evidence that title and closing fees are too high and that there is
much potential for price reductions in this industry. Increased
shopping by consumers, as well as increased shopping by loan
originators to stay within their tolerances, will reduce the
revenues of those title and closing companies that have been
charging non-competitive prices.\53\ Excess charges will be reduced
and competition will ensure that reduced costs are passed through to
consumers.
---------------------------------------------------------------------------
\53\ The reasons why the proposed GFE and its tolerances will
lead to improved and more effective shopping for third-party
services by consumers and loan originators has already been
discussed, and need not be repeated here.
---------------------------------------------------------------------------
The title industry argued that greater itemization was needed in
order for consumers to be able to adequately comparison shop among
estimates. HUD's view is that the consolidated categories on the
proposed GFE form provide consumers with the essential information
needed for comparison-shopping. Itemization encourages a long list
of fees that confuse borrowers.
It is important to emphasize that the services of the title and
closing industry, as well as other third-party industries
(appraisers, surveyors, and pest inspectors), are local in nature
and are performed near or at the site. Local firms have advantages
of knowledge and networks of clients, as well as transportation cost
advantages. As explained in Chapter 3, these advantages of small,
locally based firms will not be negatively impacted by the new Good
Faith Estimate. In fact, RESPA reform should open up opportunities
for efficient third-party firms to expand their operations.
Appendix III. Statement of Need for and Objectives of the Rule \54\
---------------------------------------------------------------------------
\54\ For a detailed discussion of problems with the current
system, and thus the need for this proposed rule, see Sections IV
and V of Chapter 2 and Sections I and VII of Chapter 3.
---------------------------------------------------------------------------
Acquiring a mortgage is one of the most complex transactions a
family will ever undertake. The consumer requires a level of
financial sensibility to fully understand the product. For example,
consider the trade-off between the yield spread premium and interest
rate payments. Borrowers do not have access to the rate sheets that
describe this trade-off. Indeed, many consumers may not even
understand that there is a trade-off. To further complicate matters,
the mortgage industry is continuously evolving: The range and
complexity of products expands every year. Because consumers borrow
fairly infrequently, the average borrower will be at an extreme
informational disadvantage compared to the lender. To exacerbate
this situation, the typical homebuyer may be rushed and easily
steered into a bad loan because they are under pressure to make an
offer on a home. This is especially the case for first-time
homebuyers who will not be as likely to challenge lenders, whom they
may view as unquestionable experts.
Closing costs (lender fees and title charges) add to the
borrower's confusion. They are not as significant as the loan itself
and total on average approximately four percent of the loan amount.
However, the direct lender fees and the title charges are perhaps
just as perplexing to the consumer. First, the multiplicity of fees
is confusing (see Exhibits 1-3 of Chapter 3 for a list of the
different names of upfront lender fees and settlement charges). The
purpose of every fee and title charge is likely to be neither
understood nor questioned by the average first-time homebuyer, who
may be intimidated by the formality of the transaction. Second, to
add to the confusion and uncertainty, even once the charges have
been agreed upon, they are subject to change until the day of
closing.
[[Page 14106]]
Such informational asymmetries between the buyer and seller impede
the ability of the consumer to be an effective shopper and
negotiator.
Consumers have strong incentives to ensure that they are getting
the best deal possible on a mortgage loan and the associated third-
party settlement costs, but poorly-informed decisions have drastic
consequences. First, the household itself will lose by paying more
for housing and possibly by ruining their credit history in the
event of default. Second, market imperfections stemming from
information asymmetries may stand in the way of achieving one of
this administration's domestic priorities: Expansion of
homeownership. There is a wide range of positive economic
externalities from homeownership that have been investigated in the
empirical housing economics literature. These include household
saving, wealth accumulation, property improvements, a more pleasing
urban environment, an increase in political activity, a reduction of
crime, better child outcomes, and a positive impact on the labor
supply of women. The average loan amount is 3.5 times a household's
income: Even minor inefficiencies in this market will have sizeable
impacts on the U.S. economy.
The current GFE format contains a long list of individual
charges that can be overwhelming, often confuses consumers, and
seems to provide little useful information for consumer shopping.
Current RESPA regulations have led to a proliferation of charges
that makes consumer shopping and the mortgage settlement process
both difficult and confusing, even for the most informed shoppers.
Long lists of charges certainly do not highlight the bottom-line
costs so consumers can shop and compare mortgage offers among
different originators. In addition, under today's rules, the
estimated costs on GFEs may be unreliable or incomplete, or both,
and final charges at settlement may include significant increases in
items that were estimated on the GFE, as well as additional
unexpected fees, which can add substantially to the consumer's
ultimate closing costs. The process of shopping for a mortgage can
also involve complicated financial trade-offs, which are not always
clearly explained to borrowers. Today's GFE is not an effective tool
for facilitating borrower shopping nor for controlling origination
and third-party settlement costs.
The potential for cost reductions in today's market is also
indicated by studies showing relatively high and highly variable
charges for third-party services, particularly for title and closing
services that account for the major portion of third-party fees.
There is not enough incentive for loan originators to control
settlement costs by negotiating lower costs from third-party
providers; rather, they too often simply pass through increases in
third-party costs to consumers. Because of their lack of expertise,
consumers may not be the best shoppers for third-party services
providers, leaving them to rely on recommendations from real estate
agents and lenders. Thus, a framework is needed that would encourage
competitive negotiations and other arrangements that would lead to
lower third-party settlement prices.
Current RESPA regulations are acting as a major barrier to
competition and lower settlement costs. Today's mortgage market is
increasingly characterized by the introduction of efficiency
enhancing improvements such as automated underwriting systems and,
through competition, these improvements are leading to lower prices
for consumers. But the one area where efficiencies and competition
are being held back is the production and pricing of settlement
services. Under current law, a provider's efforts to enter into
volume arrangements with settlement service firms may be regarded as
illegal, which may impede the cost-reducing arrangements to deliver
third-party settlement services. Similarly, average cost pricing
(another cost reduction technique) is inhibited by existing RESPA
regulations.
The goal of HUD's proposed RESPA reform is to even the playing
field. The rule will accomplish this by requiring lenders to provide
consumers information that lenders already have in a format that is
transparent. One of the major inefficiencies of imperfect
information is the costs of acquiring information. The proposed
RESPA reform will go a long way toward educating consumers. The
first page of the new GFE presents a brief summary of the terms of
the loan that would warn prospective borrowers of potentially
expensive aspects of the loan including loan amount, maximum
interest rate, prepayment penalties, and the total estimated
settlement charges. The second page provides more detail on the
charges for loan origination and other settlement services. The
third page provides a trade-off table so that consumers will learn
the relationship between the interest rate and the yield-spread
premium. The fourth page includes a table so that the consumer can
take notes on alternative loan offers and thus comparison shop.
Tolerances will limit how much settlement charges can vary once the
GFE has been made and the closing script will serve to double-check
the GFE and provide a summary of the key terms of the borrower's
loan. The proposed rule also allows settlement service providers to
use average cost pricing and volume discounting, making their
business operations simpler and less costly. It is expected that the
proposed GFE will encourage shopping, increase efficiency, lower
housing costs, and promote the purchase of loans that are more
suited to a household's needs.
Empirical Evidence of Price Discrimination. Studies indicate
that consumers are often charged relatively high fees and can face
wide variations in settlement prices, both for origination and
third-party settlement services. Chapter 2 offers convincing
evidence that not only do borrowers find it difficult to comparison
shop in today's mortgage market, but that they are all too often
charged excessive prices. The enormous potential for cost reductions
in today's market is indicated by studies showing that yield spread
premiums do not always offset consumers' origination costs. Studies
show that consumers are, in effect, charged relatively high prices
in some transactions involving yield-spread premiums, and that the
mortgage market is characterized by ``price dispersion.'' In other
words, some borrowers get market price deals, but other borrowers do
not. Studies show that less informed and unsuspecting borrowers are
particularly vulnerable in this market. But given the fact that a
borrower may be more interested in the main transaction (the home
purchase), even more sophisticated borrowers may not shop
aggressively for the mortgage or may not monitor the lending
transaction very closely.
The (2007a) conducts an analysis of 5,926 non-subsidized FHA
loans. The median total loan closing cost is $5,334. Total charges
are composed of loan charges ($3,392), title charges ($1,267), and
other third party charges ($574). It is apparent from the
distribution presented below that there is significant variation in
closing costs. The ratio of what the 75th percentile pays to what
the 25th percentile pays is 1.7 for total closing costs, 2.0 for
total loan charges, 2.4 for the yield-spread premium (indirect loan
fee), 2.9 for direct loan fees, 1.7 for title charges, and 1.6 for
other third-party charges. These results are shown below in Table A-
2.
Table A-2.--Distribution of Categories of Closing Costs
[Exhibit 11, Urban Institute 2007a]
----------------------------------------------------------------------------------------------------------------
50th
Series 5th percentile 25th percentile 75th 95th
percentile (median) percentile percentile
----------------------------------------------------------------------------------------------------------------
Total Closing Cost.............. $2,663 $4,045 $5,334 $6,889 $10,183
Total Loan Charges.............. 1104 2,310 3,392 4,714 7,394
Yield-spread premium (indirect) 250 1,249 2,041 3,016 4,658
loan fee.......................
Direct loan fees................ 21 683 1,387 2,008 3,696
Total Title Charges............. 666 953 1,267 1,652 2,407
Total Other Third-Party Charges. 293 469 574 744 1,097
----------------------------------------------------------------------------------------------------------------
[[Page 14107]]
The greatest degree of variation appears in the lender fees.
Since total loan charges are correlated with loan amount, it would
be useful to examine the distribution of closing costs as a
percentage of loan amounts to ascertain whether the variation in
fees is still present. There is slightly less variation when
measured as a percentage but it is still substantial: The ratio of
what the 75th percentile pays as a percentage of the loan to what
the 25th percentile pays is 1.8 for total loan charges, 2.1 for the
yield spread premium (indirect loan fee), and 2.4 for direct loan
fees. (See Table A-3 below.)
Table A-3.--Distribution of Categories of Closing Costs as a Percentage of Loan Amount
[Calculated by HUD from the data used by Urban Institute 2007a]
----------------------------------------------------------------------------------------------------------------
50th
Series 5th percentile 25th percentile 75th 95th
percentile (median) percentile percentile
----------------------------------------------------------------------------------------------------------------
Total Closing Cost.............. 2.9 4.1 5.1 6.4 8.9
Total Loan Charges.............. 1.3 2.4 3.2 4.2 6.2
Yield-spread premium (indirect) 0.3 1.3 2.0 2.7 3.8
loan fee.......................
Direct loan fees................ 0.0 0.8 1.3 1.8 3.3
Total Title Charges............. 0.6 0.9 1.2 1.6 2.3
Total Other Third-Party Charges. 0.2 0.4 0.6 0.8 1.4
----------------------------------------------------------------------------------------------------------------
It is apparent that half of the borrowers pay loan charges equal
or greater than 3.2% of their loan amount; one-quarter pay loan
charges of at least 4.2% of their loan amount; and five percent pay
loan charges of at least 6.2% of their loan amount. The variation is
similar for title charges and other third-party charges. Half of the
borrowers pay total closing costs equal or greater than 5.1% of
their loan; one-quarter pay closing costs of at least 6.4% of their
loan amount, and five percent pay closing costs of at least 8.9% of
their loan amount.
HUD believes that these data provides strong indications of
large price dispersion and thus price discrimination. Price
discrimination will always lead to a loss in consumer surplus and
unless price discrimination is perfect, it will also lead to a loss
in social welfare. It should also be noted that if the variation of
fees and charges paid is greater than the actual costs of providing
the services, then that constitutes evidence of a violation of
RESPA, which explicitly prohibits mark-ups.
First, in a competitive market the price of the good should
depend on its quality and not to whom and how it is sold. If there
is dispersion because the negotiations are face-to-face, this would
suggest that the nature of the market exacerbates the consumer's
informational disadvantage. Indeed, there is strong evidence that
individuals pay different prices for reasons other than how costly
service provisions will be. An Urban Institute report (2007b) finds
that African Americans pay an additional $415 for their loans and
that Latinos pay an additional $365 (after taking into account
borrower differences such as credit score and loan amount). These
loans are not subprime loans but standard FHA loans. Other
researchers have found similar results: Jackson and Berry (2002, see
the Regulatory Impact Analysis for reference) find that mortgage
brokers charge African-Americans (by $474) and Hispanics (by $580)
substantially more for settlement services than other borrowers.
Discrimination by race or ethnicity is not economically efficient
and would not survive in a perfectly competitive market.
Second, reconsider the yield-spread premium. We mentioned that
this is one of the elements of a mortgage that a consumer is not
likely to understand. The yield-spread premium is compensation to
the broker for selling a loan with a higher interest rate. Thus, as
the interest rate rises so should the yield-spread premium. This
relationship appears to hold in the data analyzed. The broker earns
income from two sources: A yield-spread premium that is paid by the
lender and fees that are paid by the consumer. However, the burden
of the yield-spread premium is on the consumer, who pays a higher
interest rate for loans with a higher yield-spread premium. If
consumers were perfectly informed, there would be a negative one-to-
one relationship between up-front fees and the yield-spread premium.
They simply represent two different ways of compensating the broker
for the effort required to originate a loan.
The Urban Institute (2007b) finds no clear trade-off between the
yield-spread premium and upfront cash payments. (This analysis is
based on loans with interest rates of over 7 percent. In this
sample, there are 4,603 loans; the average upfront cash is $1,179
with a standard deviation of $1,125; and the average YSP is $2,365
with a standard deviation of $1,044.) There is even a slight
positive relationship between the upfront cash divided by the loan
and the YSP divided by the loan amount. That is, upfront cash as a
percentage of loan amount increases with the YSP as a percentage of
loan amount. FHA borrowers appear to get no benefit from YSPs on
brokered loans with coupon rates above 7 percent. Such a
relationship is contrary to what one would expect in a market where
there were only minor imperfections. Further evidence is from
Jackson and Berry (2002) who studies only brokered transactions, a
description of which can be found in Section IV.D.2 of Chapter 2 of
the Regulatory Impact Analysis. They find that the problem of price
dispersion occurs when yield spread premiums are present, because in
these situations there is no single price for broker services:
``Most borrowers pay more than 1.5 percent of loan value; more than
a third pay more than 2.0 percent of loan value; roughly ten percent
pay more than 3.5 percent of loan value.'' Jackson and Berry find
this ``price dispersion'' troubling, as it suggests that brokers use
yield spread premiums as a device ``to extract unnecessary and
excessive payments from unsuspecting borrowers'' (page 9).
Third, consider the confusion that the variety of loan products
and permutations of those products can create. If informational
asymmetries are significant, then lenders will be able to earn more
when selling more complex products. The Urban Institute (2007b)
reports that all borrowers see a benefit (in lower upfront cash
costs) of only 20 cents for each dollar of yield-spread premium
(actual or inferred) paid. Those who borrow through mortgage brokers
see a benefit of only 7 cents per dollar, for a net loss of 93 cents
on the dollar. Borrowers who simplify their mortgage shopping by
rolling all lender/broker fees into the interest rate (i.e., get
``zero-cost'' loans) pay $1,200 less for their loans than brokers
who pay lender or broker fees as measured by implicit YSPs. It
appears that the industry is able to take advantage of loan
complexity, which is evidence of price discrimination not related to
the cost of originating the loan.
Fourth, consider other settlement charges. Title insurance is an
industry with a strong potential for natural monopoly. The costs of
title insurance are primarily related to research of property
transactions. There is a large fixed cost of entry which is
compiling a database of transaction and lending records. There
should not be a great variation in settlement charges since the only
component that does vary substantially is the insurance premium. The
Urban Institute (2007b) finds an average $1,200 title charge in
their sample of all loans with a standard deviation of $500. They
also find a significant variation by state with New York, Texas,
California, and New Jersey all costing at least $1,000 more than
North Carolina, the lowest-cost state. A reasonable question is what
extra benefits people in the high-cost states get relative to those
in low cost states, or why costs are so high if there are no extra
benefits. It is also useful to analyze total title costs on a state-
by-state basis due to the different legal requirements that exist
among the states and the different customs that might have evolved
in them as well. HUD examined within state variation of settlement
fees. One measure of variability that we calculated for each state
was the difference between the median of the highest quartile of
title charges and the median of the lowest quartile. This is a
measure of the difference between the typical charge for the highest
fourth of the borrowers and the lowest fourth of the borrowers
within each state. This difference was over $1,000 for nine states.
Due to the
[[Page 14108]]
extent of price dispersion, we can expect significant savings from
the proposed rule.
The primary purpose of this discussion was to show that there is
great variation in closing costs and thus room for price
discrimination. HUD would like to emphasize that the goal was not to
portray lenders, and especially mortgage brokers, as unscrupulous
and harmful to economic welfare. On the contrary, HUD recognizes
that mortgage brokers and other lenders have played a crucial role
in recent trends in home ownership. It is also clear from the
statistical evidence presented in this section that there are many
ethical lenders. One quarter of the borrowers in this sample paid no
more than 2.4% in loan charges and 4.1% in total closing costs.
Consider that if the entire market mirrored this more efficient
segment, then RESPA reform would not be as urgent.
Appendix IV. Summary of Significant Issues Raised in Comments on
the 2002 Initial Regulatory Flexibility Analysis
This section describes how HUD responded in this Initial
Regulatory Flexibility Analysis (IRFA) to comments received on the
2002 IRFA. The primary comments on the 2002 IRFA included: a desire
for more detailed information on the industries potentially affected
by the rule and the expected effects of the rule on these industries
on a per-firm basis, and more discussion of alternatives considered
by HUD to minimize the impact of the rule on small business
consistent while still achieving the stated objectives of the
statute. The Office of Advocacy of the Small Business
Administration, in particular, wanted to see more details on the
industries and small businesses affected by RESPA reform.
Appendix IV.A. Detailed Industry Data and Analysis
Section Appendix V provides data on small businesses that may be
affected by the rule and provides detailed breakdowns of the
anticipated effects of the rule on all firms, small firms and very
small firms. The analysis includes both industry total effects and
per-firm effects. As explained in Section V below, Chapter 5 of the
RIA provides extensive documentation of the characteristics of the
industries directly affected by the rule, including various
estimates of the numbers of small entities, reasons why various data
elements are not reliable or unavailable, and descriptions of
methodologies used to estimate (if possible) necessary data elements
that were not readily available. The industries discussed in Chapter
5 of the EA included the following (with Chapter 5 section
reference): mortgage brokers (Section II); lenders including
commercial banks, thrifts, mortgage banks, credit unions (Section
III); settlement and title services including direct title insurance
carriers, title agents, escrow firms, and lawyers (Section IV); and
other third-party settlement providers including appraisers,
surveyors, pest inspectors, and credit bureaus (Section V); and real
estate agents (Section VI).
Appendix IV.B. Alternatives Considered To Minimize Impact on Small
Businesses
Section VI of the Appendix provides discussion of the
alternatives considered by HUD in developing the proposed rule with
a focus on those alternatives considered to minimize the impact on
small business. Section VI includes summary discussion of the
following major alternatives: Maintaining the status quo; not
including the yield-spread premium calculation in the GFE;
introducing the Settlement Services Package; offering packaging; and
allowing dual packaging. Section VI also includes a discussion of
steps HUD took to make the new GFE easier to implement for small
businesses.
Appendix IV.C. Comments and Responses
Chapters 1-5 of the Regulatory Impact Analysis include detailed
summaries of the comments submitted by small businesses and other
firms on various aspects of the 2002 proposed rule and in response
to the 2002 IRFA. Detailed discussion of comments received can be
found in the preamble. Detailed analysis responding to comments
received can be found in Sections VI and VIII of Chapter 3 of the
RIA. Detailed discussion of comments related to the compliance
burden of the rule can be found in Sections VII and VIII of this
appendix. Analysis responding to some specific comments on the 2002
IRFA can be found in Chapter 3 of the RIA. Changes made to the 2002
proposed rule in response to comments received are summarized in
Section VI of the Appendix.
Appendix V. Description and Estimate of the Number of Small
Entities
Chapter 5 provides extensive documentation of the
characteristics of the industries affected by the rule, including
estimates of the numbers of small entities. The industries discussed
in Chapter 5 included the following (with industry code and Chapter
V section reference): mortgage brokers (Section II); lenders
including commercial banks, thrifts, mortgage banks, credit unions
(Section III); settlement and title services including direct title
insurance carriers, title agents, escrow firms, and lawyers (Section
IV); and other third-party settlement providers including
appraisers, surveyors, pest inspectors, and credit bureaus (Section
V); and real estate agents (Section VI). The specific industry names
and industry codes (North American Industry Classification System,
or NAICS code) for the mortgage originators and third-party firms
covered in Chapter V are as follows:
Mortgage Origination Firms
1. Mortgage Loan Brokers (522310)
2. Commercial Banks (522110)
3. Savings Institutions (522120)
4. Real Estate Credit/Mortgage Bankers (522292)
5. Credit Unions (522130)
Third-Party Service Firms
1. Direct Title Insurance Carriers (524127)
2. Title Abstract and Settlement Offices (541191)
3. Offices of Lawyers (541110)
4. Other Activities Related to Real Estate (531390)
5. Offices of Real Estate Appraisers (531320)
6. Surveying and Mapping (except geophysical) Services (541370)
7. Credit Bureaus (561450)
8. Exterminating and Pest Control Services (561710)
9. Offices of Real Estate Agents and Brokers (531210)
Chapter 5 supports Chapters 3 and 6 by providing basic mortgage-
related data on each industry and by explaining the various
methodologies for estimating the share of industry revenue accounted
by the different component industries and by small businesses within
each component industry. Chapter 5 presents an overview of the
industries involved in the origination and settlement of mortgage
loans (see above list). Industry trends are briefly summarized and
special issues related to RESPA are noted. There is also a
description of the economic statistics for each industry, with an
emphasis on each industry's share of small business activity. Both
the estimation of the revenue share for various industry sub-sectors
(e.g., large title insurers' share of total revenue in the title and
settlement industry) and the estimation of the small business share
of mortgage-related revenue within the industry, often involve
several technical analyses that pull together data from a variety of
sources, in addition to Census Bureau data. This leads to several
sensitivity analyses to show the effects of alternative estimation
methods and assumptions. This chapter also reports the revenue
transfers from the RESPA rule for the specific industry sectors;
these transfers are reported in dollar terms and, where possible, as
a percentage of industry revenue. Finally, a number of technical
issues and special topics, such as techniques for estimating the
distribution of retail mortgage originations, are discussed. A
technical appendix to Chapter 5 provides relevant definitions and
explains the methodology associated with the economic data obtained
from the Census Bureau. A data appendix in Chapter 5 includes tables
with the economic data (number of firms, employment, revenue, etc.)
for each industry sector.
Thus, the Regulatory Impact Analysis pulls together substantial
data from the Bureau of the Census and industry sources to provide
estimates of revenue transfers for different industries and for
small businesses within those industries. Chapter 5 provides a full
technical review of the data used and the various methodologies for
estimating the small business share of industry revenues.
Drawing from the analysis in Chapters 3 and 5, Appendix A to
this chapter provides estimates of the revenue impacts from the new
GFE. These data are presented in aggregate form ($ million) and on a
per firm basis, covering all firms (both employer and non-employer),
small firms (small employer firms plus non-employer firms), and very
small firms (very small employer firms plus non-employer firms).
Separate data for non-employer firms are also provided. In some
cases, different projections are provided for some of the more
important sensitivity analyses conducted in Chapters 3 and 5. The
technical analyses presented in Chapter 5
[[Page 14109]]
indicate some uncertainty around some of the numbers (such as the
number of small mortgage banks, the split of revenue among different
sectors of the broad title industry, etc.). Readers are referred to
the technical discussion in Chapter 5 for various qualifications
with the data and for various sensitivity analyses that illustrate
the effects on the estimates of alternative assumptions. In
addition, Chapter 5 explains the definitions of small and very small
being used here.
Appendix VI. Alternatives Which Minimize Impact on Small Businesses
Under the Initial Regulatory Flexibility Analysis, HUD must
discuss alternatives that minimize the economic impact on small
entities consistent with the stated objectives of applicable
statutes, including a statement of the factual, policy, and legal
reasons for selecting the alternative adopted in the proposed rule
and why each of the other significant alternatives to the rule
considered by the agency was rejected. Many of the alternatives that
HUD considered and implemented were directed at making the proposed
GFE less burdensome for small businesses. These changes are
described below. A more detailed discussion of the changes to make
the GFE easier to implement for small businesses are provided in
Section VIII of Chapter 3. For a discussion of all of the major
alternatives considered to the proposed GFE, see Chapter 4.
This Regulatory Impact Analysis discusses several steps that HUD
took that will assist small businesses involved in the mortgage
origination and settlement process. Examples include simplifying the
new GFE form (fewer numbers, etc.), designing the new GFE form so
that there is a level playing field between lenders and brokers, and
delaying the phase-out of today's GFE for twelve months. HUD also
made numerous other changes that were designed to make the GFE
easier to use, particularly for small businesses. These changes are
discussed throughout Chapter 3 and summarized in several places in
the Regulatory Impact Analysis. This section will list them again,
as it is useful to provide a record of the changes made to the 2002
proposed rule that should make the new GFE easier to implement for
small businesses. Considered as a group, these changes are
important. While many are designed to address a problem faced by
large as well as small lenders, for the most part, they address
problems that would place a greater burden on small rather than
large businesses.
Some examples of the changes that HUD made are the following:
Clarifying that ``zero tolerance'' in the new GFE does
not pertain in ``unforeseeable circumstances'' beyond the
originator's control. This was in response to concerns expressed by
lenders and brokers about their ability to control third-party costs
and meet the specified tolerances in the 2002 proposed rule, the
proposed rule. The tolerance for fees for lender-required, lender-
selected third-party services was also increased from zero percent
to 10 percent; further, tolerances no longer apply to items such as
escrow expenses and government charges and fees. Relaxing tolerances
benefit smaller firms, which would be more impacted by an
underestimated fee.
Clarifying the definition of ``unforeseen
circumstances'' to include circumstances that could not be
reasonably foreseen at the time of GFE application--examples include
the need for a second appraisal or flood insurance.
Changing the definition of an application so that it is
consistent with the way consumers and lenders operate today--a ``GFE
application'' would serve as a shopping application and a ``mortgage
application'' would be submitted once a shopper chooses a particular
lender, and would resemble the standard application in today's
market and be the basis for full underwriting.
Clarifying that only the ``mortgage application'' would
be subject to Regulations B (ECOA) and C (HMDA), which is the
current situation today.
Reducing the period for the GFE tolerances to 10
business days, which gives borrowers ample time to shop and does not
impose large operational and hedging costs on small lenders and
brokers (as 30 days might have).
Dropping the Annual Percentage Rate (APR) from the new
GFE. Lenders and brokers objected to the requirement that they
calculate the APR on the GFE; for a variety of reasons, HUD dropped
the APR.
Dropping the broker-lender split of fees from the GFE.
Lenders and brokers disagreed with splitting out the broker and
lender portions of the origination fee on the back page of the
proposed GFE; HUD dropped that from the new GFE, as it was not
useful for comparison shopping.
Dropping the Title Agent/Title Insurance Premium
Breakout. Title agents argued that breaking out the title insurance
premium that goes to the underwriter from the rest of the title
charges is costly and serves no useful purpose. This requirement has
been eliminated, so there will be no compliance burden associated
with the title agent/title insurance premium breakout on the GFE.
The breakout was not useful for comparison shopping.
Clarifying the ability to make cost adjustments as a
result of information gained during the full underwriting process;
and
Allowing average cost pricing which will reduce the
costs of keeping up with every ``nickel and dime'' of third-party
costs.
The above changes address a number of practical and
implementation problems raised by lenders, brokers, and others about
the new GFE. They make these GFE form easier to use, particularly
for small lenders and brokers.
Appendix VII. Compliance Costs and Regulatory Burden: New GFE
This section focuses on the compliance, regulatory, and other
costs associated with implementing the proposed rule. It examines
compliance and regulatory impacts of the new GFE on originators.
There are two types of compliance and regulatory costs--one-time
start-up costs and recurring costs. Section VII.B of the Appendix
discusses start-up costs, noting that HUD has lengthened the phase-
in period for the new GFE in order to reduce any implementation
burden on the industry, particularly small firms. Section VII.C
discusses recurring costs that are related to implementing the new
GFE. The simplicity of the new GFE, plus the changes that HUD has
made to improve the new GFE, will limit these annual costs, as
discussed in Section VII.D. Section VII.E discusses compliance
issues related to tolerances on settlement party costs. Finally,
Section VII.F outlines efficiencies associated with the new GFE.
Before examining the specific regulatory and compliance costs,
Section III.A reviews the basic data used in estimating these costs.
For a similar description of the costs on the settlement industry,
see Section Appendix VIII.
Appendix VII.A. Data Used in Compliance Cost Estimates
The following tables provide a summary of the industry
characteristics data used to develop compliance cost estimates for
the GFE. Details on the derivation of these data are available in
Chapter 5. The compliance costs of the GFE provisions of the rule
apply mainly to retail loan originators. While wholesale lenders,
for example, are involved in the mortgage origination process, they
are not responsible for issuing the GFE--rather the originating
lender or broker is responsible for the issuing the GFE to the
borrower.\55\ Therefore, data are presented only for those brokers
and lenders that do retail mortgage loan originations. Settlement
agents do not generate GFEs and therefore they would not be subject
to these GFE-related costs. Settlement agents do, however, generate
HUD-1s; since there are some changes to the HUD-1 form, there are
compliance costs on settlement agents associated with that change. A
major portion of the compliance cost will be the burden of
performing the closing script accurately. Other third-party
providers (e.g., appraisers) will face no compliance costs from the
GFE provisions of the rule.
---------------------------------------------------------------------------
\55\ If the wholesale lender generates the GFE, then there would
be a charge to the originator (either a direct charge or a reduction
in fees, compared with the case where the originator issues the
GFE).
---------------------------------------------------------------------------
Chapter 5 of the RIA provides information on the total number of
brokers and lenders that are likely to be affected by the new RESPA
rule and its revised GFE form. Section II of that chapter explains
that the number of brokers has grown substantially in recent years.
In 2000, there were 30,000 brokers, but with the increase in
refinancing, the number of brokers rose to 33,000 in 2001 and then
jumped to 44,000 in 2002 and then to 53,000 in 2004. According to
Census Bureau data, practically all brokers (99.1%) qualify as a
small business. Thus, it is estimated that small broker firms have
ranged from 32,703 to 52,523 over the past few years. As explained
in Section III of Chapter 5, lenders that will be affected by the
RESPA rule include: 7,402 commercial banks (4,426 or 59.8% are
small), 1,279 thrift institutions (641 or 50.1% are small), 1,287
mortgage banks (1,077 or 83.7% are small), and 3,969 credit unions
(3,097 or 78.0% are small).\56\
[[Page 14110]]
Altogether, there are 13,937 lenders (including credit unions)
affected by the RESPA rule, and 9,241 of these qualify as a small
business.
---------------------------------------------------------------------------
\56\ See Section III.B.5 of Chapter 5 for issues related to the
number of small mortgage banks. As also explained in that section,
the credit unions are the ones that report some mortgage origination
activity.
---------------------------------------------------------------------------
Table A-4 provides the distribution of retail mortgage
originations among the various industries and for small firms within
each industry. Totals are estimated based on the number of mortgage
originations (12,500,000 loans) that would occur in a ``normal''
year of mortgage originations (that is, not in a high-volume year
with a refinancing boom). The data below assume that brokers account
for 60% of mortgage originations and lenders, the remaining 40%.\57\
---------------------------------------------------------------------------
\57\ See Section III.B.5.d of Chapter 5 for the derivation of
the distribution of retail originations among commercial banks,
thrifts, and mortgage banks; the distribution used here is the
``adjusted distribution'' for the number of loans. See Chapter 5 for
reasons why there is some uncertainty with the estimated
distribution and for analysis of an alternative distribution.
---------------------------------------------------------------------------
(See below for alternative origination volume and broker share
estimates.)
Table A-4.--Volume of Retail Mortgage Originations
----------------------------------------------------------------------------------------------------------------
Percent
All Percent of Originations industry
Industry originations originations by small firms originations
by small firms
----------------------------------------------------------------------------------------------------------------
Mortgage Brokers................................ 7,500,000 60.00 5,250,000 70.00
Commercial Banks................................ 2,053,150 16.43 389,893 18.99
Thrifts......................................... 974,750 7.80 120,089 12.32
Mortgage Banks.................................. 1,551,500 12.41 644,803 41.56
Credit Unions................................... 420,600 3.36 122,563 29.14
---------------------------------------------------------------
Total....................................... 12,500,000 100.00 6,527,349 52.22
----------------------------------------------------------------------------------------------------------------
As shown in Table A-4 it is estimated that 52% of mortgages are
originated by small brokers and lenders.
Table A-5 provides the total number of workers and the number of
workers in small firms engaged in retail mortgage origination by
industry. It is based on the mortgage origination volumes depicted
in Table A-4 and productivity rates of 20 loans per worker per year
for mortgage brokers and lenders. See Section II.B.2.c of Chapter 5
for the derivation of the 20 loans per worker in the broker industry
and see Section III.B.5.g of Chapter 5 for a discussion of the 20
loans per worker in the lender industry. Given the uncertainty
around these estimates (and particularly the lender estimate which
is obtained by simply assuming that lender workers are as productive
as brokers), alternative estimates and sensitivity analyses are
provided in Chapter 5.
As noted in Chapter 5, one alternative would be to choose a
lower productivity number for lenders, which would be consistent
with the widely held belief that brokers are more productive than
lenders; in addition, it may be more appropriate to overestimate the
number of lender employees affected by the RESPA rule than to
underestimate them.\58\ However, this analysis starts by assuming
equal productivity for lenders and brokers.
---------------------------------------------------------------------------
\58\ A comment should be made about the small business share for
brokers. Section II.B.1 in Chapter 5 reports that small brokers
account for 70% of broker industry revenue. Table A-4 assumes that
small brokers account for the same percentage (70%) of the number of
loans originated by all brokers; it is possible that this percentage
could be too low, given that Section II.B.2.c of Chapter 5 derives
an estimate of 77% for the share of industry workers in small broker
firms. The 77% figure is used in Table A-5 (288,750 divided by
375,000) for estimating the share of workers in small broker firms.
The small business share of the number of workers in each of the
four lender industries in Table A-5 is assumed to be the same as in
Table A-4 for the number of loans. See Section III.B.5 of Chapter 5
for the derivation of the small lender shares of lender
originations.
Table A-5.--Workers Engaged in Retail Mortgage Loan Origination
----------------------------------------------------------------------------------------------------------------
Percent of
Industry Total workers Workers in workers in
small firms small firms
----------------------------------------------------------------------------------------------------------------
Mortgage Brokers................................................ 375,000 288,750 77.00
Commercial Banks................................................ 102,658 19,495 18.99
Thrifts......................................................... 48,738 6,004 12.32
Mortgage Banks.................................................. 77,575 32,240 41.56
Credit Unions................................................... 21,030 6,128 29.14
-----------------------------------------------
Total....................................................... 625,000 352,617 56.42
----------------------------------------------------------------------------------------------------------------
As shown in Table A-5, it is estimated there are 625,000 workers
engaged in mortgage origination, with 352,617 of these operating in
small businesses. As noted above, the mortgage volume figure
(12,500,000 loans based on $2.4 trillion in originations) reflects
industry projections of mortgage originations for 2008. Chapters 3,
4, and 5 conduct sensitivity analyses with a higher level of
originations. For example, one could consider an environment where
15,500,000 loans were originated (compared with the 12,500,000 loans
in the base case). In this case, the figures in Tables A-4 and A-5
would change. For example, the number of workers in the broker
industry would increase to 438,038 (with 337,293 in small firms) and
the number of workers in the combined lender group would increase to
271,250 (with 69,296 in small firms).\59\ Below, sensitivity
analyses cover these higher estimates of the number of workers
affected by the RESPA rule.
---------------------------------------------------------------------------
\59\ As explained in Chapter 5, this scenario assumes that the
increase in mortgage originations comes mainly from brokers; the
loans-per-worker assumption is increased to 23 for brokers
(consistent with that number increasing in Olson's surveys during
higher volume years) but kept at 20 for lenders since their volume
does not increase much during this scenario.
---------------------------------------------------------------------------
Appendix VII.B. Compliance and Regulatory Burden: One-Time Costs
Several one-time compliance burdens can be identified that will
result from the new rule. All involve the adjustment process from
the old rule to the new rule. Although HUD received comments on the
one-time compliance cost issues associated with the new GFE,
commenters did not provide any useful data on the magnitude of these
costs (see Section Appendix VII.B.5 below).
There are three major areas of expected one-time compliance
costs of the new GFE. Those who generate the new GFE forms, loan
originators, will need new software in order
[[Page 14111]]
to produce the new forms.\60\ Their employees will need to be
trained in the use of the new forms and software. Loan originators
may seek legal advice to be certain that the arrangements they make
to ensure that third-party service prices are accurate and within
tolerances comply with the regulation. Loan originators may also
seek legal advice regarding discount arrangements that are
permissible under the new GFE. In this section, it is estimated that
these one-time compliance costs will total $401 million, although it
is recognized below that these costs could vary with several factors
such as different levels of overall mortgage activity. Small brokers
and small lenders firms will experience $280 million (or 70%) of
these one-time compliance costs.
---------------------------------------------------------------------------
\60\ This analysis assumes that the mortgage broker, not the
wholesale lender, produces the GFE in transactions involving
mortgage brokers. To the extent that the wholesale lender is
involved in producing the GFE the use of the broker data will result
in an overestimation of the impact on small businesses (since small
businesses make up a much larger portion of broker businesses than
they do of wholesale lender businesses).
---------------------------------------------------------------------------
Appendix VII.B.1. Software Modification and Training Costs
Loan originators would need alterations to their software to
accommodate the requirements of the new rule since they generate the
new GFE. There would be one-time costs for production and
installation of the new GFE (software development, etc.). Software
modification, or new software, is needed because the GFE has been
changed. The implementation of software varies with business size.
Small originators are likely to use commercial off-the-shelf (COTS)
software products while larger originators may produce their own
software if in-house development is cheaper than buying from outside
suppliers. HUD reviewed several software products for loan
origination and closing advertised on the Internet.\61\ Prices
ranged from a flat $69 \62\ for one license to undisclosed
negotiated prices based on the number of users and feature sets
purchased. Software is generally priced according to the number of
users (e.g., one license per user, or enterprise licenses based on
the expected number of users in the enterprise).
---------------------------------------------------------------------------
\61\ Examples are: Vantage ILM, http://www.vantageilm.com;
Utopia Originator from Utopia Mortgage Software, http://
www.callutopia.com/support.html; The Mortgage OfficeTM from Applied
Business Software, http://www.themortgageoffice.com/main.asp; and
MORvision Loan Manager from Dynatek, http://www.dynatek.com/
products.asp.
\62\ Good Faith Settlement Software by Law Firm Software; http:/
/www.lawfirmsoftware.com/software/good-faith-estimate.htm. Note that
this is very basic software compared to other alternatives. More
sophisticated software is more expensive.
---------------------------------------------------------------------------
One new requirement, implicit from the tolerances, is that
originators will have to keep track of the costs listed on the GFE
in order to ensure that the tolerances are not exceeded at
settlement. Most of the software products HUD examined have the
capability to access databases of information, including pricing
information, of third-party service providers. Because these systems
have the capability to access other databases, they would not need
to be redesigned to carry forward prices from the GFE to the closing
documents in order to determine if final settlement prices remain
within tolerances. The GFE portion of the software would need to be
modified to display the consolidated expense categories mandated in
the rule. Redesigning the form appears to constitute a minor
alteration of the software.
The new GFE also requires additional information. The first page
summarizes worst case scenarios for the borrower: The maximum
monthly interest rate, the maximum monthly mortgage payment, and
maximum loan balance. Such information is obvious for most types of
loans but could require more effort to calculate for more exotic
loans such as a negative amortizing loan. Some loan origination
software will already possess analytical capabilities. However,
producers of less sophisticated programs will need to write a few
additional lines of code to create the output for the first page of
the new GFE. Nonetheless, the proposed rule would have no impact on
the primary function of origination software and would require only
minor changes.
Depending on the software that a firm has purchased there are
three possibilities as to who pays the direct cost of developing new
software. The first scenario is that a firm purchases an update of
the program. This is a fairly standard option and is generally less
than half the price of new software. Given that the changes required
by the proposed rule are fairly minor, the price of an update should
compensate software companies for the cost involved in altering
their programs.
The second possibility is that a firm purchases new software, in
which case the cost of redesigning the forms to comply with the
proposed rule will be built into the purchase price. Firms that
would purchase new software would include new entrants into the
industry, pre-existing firms that would have bought new software for
reasons unrelated to the proposed rule, and firms that use software
for which updates are not offered. Many users routinely upgrade
software as new versions are released and build the expected
expenses into their business plans. To the extent that software is
routinely upgraded, the extra costs of implementing the GFE changes
will be reduced. In these cases, the software cost to the firm of
the proposed rule is not the purchase price of the software but
rather the increase in the purchase price as a result of the costs
of redesigning software to meet RESPA guidelines.
A third scenario is that software companies are obliged or
volunteer to offer free updates, in which the case the software cost
of the proposed rule falls directly on software developers. However,
indirectly, the cost of the new software will be shared by real
estate and software firms. Software companies that offer free
updates will price the risk of changes into the purchase price of
the software. If a large unexpected change occurs, then the software
company will bear the burden. However, the change required by RESPA
will not be unexpected because the proposed rule will be made public
and will not be costly for reasons previously discussed.
In all three scenarios, the cost of an update is a good
approximation of the software cost of the rule. In the first
scenario in which firms purchase an update, it would probably be an
overestimate of the cost to a purchaser because an update may
contain other useful improvements to the software. However, it is a
reasonable estimate of the cost in that many firms would not
purchase an update if not for the proposed rule. In the second
scenario, in which a firm purchases new software, the price of an
update could serve as an approximation of the cost of implementing
the required changes and thus an estimate of the resulting increase
in the price of new software. In the third scenario, where the
software companies bear the direct cost of the change, the price of
an update could serve as an estimate of the cost to software firms
of producing free updates.\63\
---------------------------------------------------------------------------
\63\ Correctly estimating the cost to software firms is
difficult given the nature of the output. Development is a one-time
fixed cost, whereas the cost of delivering software to one user is
very low. Given the decreasing average costs, the aggregate economic
impact to the software industry would depend upon the number of
firms.
---------------------------------------------------------------------------
In the first two scenarios, where firms bear the burden of the
change in the software; the costs of new or updated software will
depend upon the number of employees in the firm using the software.
Virtually all software companies providing software to lenders for
loan origination offer volume discounts. Such a pricing policy
reduces the average cost for large firms. Second, in larger firms
many employees will have specialized duties that do not include
completing the new GFE form and so will not require updated
software. Thus, it is likely that small firms will bear a greater
per employee software cost from the proposed rule.
Based upon the discussion above and an examination of software
pricing schemes, it is reasonable to make three assumptions in order
to estimate the software costs of the proposed rule: (1) The cost
per user is the cost of an update; (2) updates cost less than half
of the cost of new software; (3) the costs per user for a firm
decline significantly with the number of users. An example of the
type of software that a firm might purchase is Bytepro Standard (by
Byte Software, Inc., http://www.bytesoftware.com). This software has
many analytical features such as the ability to calculate maximum
loan amounts, which would be required by the new GFE. The software
costs $395 for a two user package and $400 for five additional
users. The per user cost for the first two is $198. The cost per
user for an additional five is $80.
We can safely assume that the industry average of the cost of an
update would be no more than $150 for the first user, $100 per user
for the average small firm, and $50 for the average large firm.\64\
Second, we assume that the proportion of workers involved in
origination that use the software declines with the size of the
firm. For small firms, we assume that three-quarters of all workers
use the software and will need an update. For
[[Page 14112]]
large firms, we assume that only half of the workers use origination
software and need an update. Given these assumptions, the total cost
to the industry of an update would be $33 million, of which $26
million is borne by small firms.\65\ This amounts to an average
software update cost of $83 per user.
---------------------------------------------------------------------------
\64\ Byte Software, Inc., offers an annual support service,
which would include updates, for up to ten users for $300 per year.
Every additional user over ten cost $30.
\65\ To demonstrate that our estimate is a safe ceiling, suppose
that there are one hundred software firms and that each one pays six
programmers an average of $150,000 a year to upgrade the software to
reflect the changes incurred by the proposed rule. The total cost to
the software industry would be $90 million.
---------------------------------------------------------------------------
In addition, each employee using the new software would require
some time to adjust to the changes. The actual amount of time
required to familiarize ones self with the new software is unknown.
For this example it is assumed that 2 hours are required. If the
opportunity cost of time is $72.12 per hour (based on a $150,000
fully-loaded annual salary), then the opportunity cost of software
training would be $144 per worker using the new software. Software
users often learn about new modifications without formal training by
using them with very little loss of time or productivity. Thus the
software training costs estimated below are likely an upper bound.
Table A-6 shows the distribution of these costs by industry and the
amount borne by small businesses within each industry. The table
uses worker distributions from Table A-5 and assumes half of the
workers in large firms and three-quarters of the workers in small
firms use the software and will require upgrades and training. Given
these assumptions the total software training cost is $58 million,
of which $38 million is borne by small firms. The grand total for
software upgrade and training cost is $91 million, of which $65
million is borne by small firms.
Table A-6.--One-Time Software Upgrade and Training Costs of the New GFE
----------------------------------------------------------------------------------------------------------------
Total software
Industry upgrade and Small business Percentage
training cost cost small
----------------------------------------------------------------------------------------------------------------
Mortgage Brokers................................................ $61,267,428 $52,891,226 86.3
Commercial Banks................................................ 11,647,288 3,570,897 30.7
Thrifts......................................................... 5,249,891 1,099,855 21.0
Mortgage Banks.................................................. 10,308,241 5,905,531 57.3
Credit Unions................................................... 2,569,710 1,122,511 43.7
-----------------------------------------------
Total....................................................... 91,042,558 64,590,020 70.9
----------------------------------------------------------------------------------------------------------------
Alternative estimates could be made. If 4 hours (instead of 2
hours) of software training were required, then total costs would
rise by $57 million to $148 million (with $103 million being the
small business cost). Assuming that only two hours are required, but
that the proportions of software users were raised to all of the
workers in small firms and three-quarters of the workers in large
firms, then the total software cost (including training) of the
proposed rule would be $126 million, of which $86 million would be
borne by small firms. If the proportions are increased (as in the
latter scenario) and the hours are increased (as in the former
scenario), then the total cost would be $206 million (with $137
million being the small business cost).
The estimates in Table A-6 above are based on a ``normal'' level
of mortgage origination activity and not that of a high volume year
which might occur as a result of low interest rates. High volume
years bring with them increases in productivity by existing firms
and employees (higher rates of loans per employee), new employees,
and new entrants. New employees and new entrants would require
additional software licenses even if there were no new rule changing
the GFE. For this reason, basing the software upgrade compliance
burden on a high volume year would overstate the burden. Using the
higher rates of productivity associated with refinancing booms to
compute software upgrade costs would tend to understate them.
Therefore, use of the normal business volume probably provides the
most appropriate estimate of this cost. Still, assuming a higher
level of origination activity (15,500,000 loans) and a 65% market
share for brokers, estimated software costs would be $118 million,
and $86 million would be accounted for by small businesses (with
one-half of employees at large firms and three-quarters of workers
at small firms using the software and requiring 2 hours of
training). As noted earlier, the costs of software upgrades required
to implement the new GFE apply only to retail loan originators.
These costs do not apply to wholesale lenders.
Appendix VII.B.2. Legal Consultation
Using the new GFE will entail a change in business practices,
including making arrangements with third-party settlement service
providers to ensure that prices charged will remain within the
tolerances of the prices quoted. Loan originators will want to
ensure that these arrangements do not violate RESPA. Loan
originators may also seek legal advice regarding discount
arrangements that are permissible under the new GFE. It is highly
likely that the trade associations for the mortgage loan origination
industries will produce model agreements or other guidance for
members to help them comply with the new rule. Some originators may
feel no further need for additional legal advice so that they would
have no legal consultation expenses as a result of the rule. Larger
originators may wish to seek a greater amount of legal advice, as
they perceive themselves to be at greater risk of class action RESPA
litigation.
The actual amount and cost of legal services that will be
incurred because of the new GFE are unknown. While it is recognized
that all firms might not seek legal advice, it would seem that many
firms engaged in retail mortgage origination would want some minimal
legal advice, so that they understand the new rules and regulations.
If all 57,937 firms sought two hours of legal advice at $200 per
hour, the fixed legal consultation expense would amount to $23
million. In addition, firms will seek further legal advice based on
their volume of transactions; in this analysis, the total volume-
based legal expense amounts to 4 times the fixed expense or $93
million. To show that this is a reasonable estimate, suppose a large
originator, operating in all 50 states and the District of Columbia,
required state-by-state legal reviews averaging 1-person-week (40
hours) per state. At $200 per hour, this would amount to $408,000.
If all of the 100 largest originators acquired a similar amount of
legal advice, the cost would come to $40.8 million, which leaves
approximately $52 million for variable legal costs for other
originators.\66\ Under these estimates, total legal consultation
expenses associated with the new GFE are expected to total $116
million and are distributed among industries and small businesses,
which bear 60.3% of the legal cost, as depicted in Table A-7, which
uses information on the distribution of firms and originations.
---------------------------------------------------------------------------
\66\ If the per hour cost of legal consultation were greater
than $200 per hour, then these estimates would rise proportionately
with the increase in hourly legal costs.
[[Page 14113]]
Table A-7.--One-Time Legal Consultation Costs of the New GFE
----------------------------------------------------------------------------------------------------------------
Total legal Percentage
Industry consultation Small business cost to small
cost cost business
----------------------------------------------------------------------------------------------------------------
Mortgage Brokers................................................ $73,219,520 $56,375,264 77.0
Commercial Banks................................................ 18,186,829 4,934,375 27.1
Thrifts......................................................... 7,740,284 1,182,697 15.3
Mortgage Banks.................................................. 12,020,625 5,212,708 43.4
Credit Unions................................................... 4,706,743 2,147,722 45.6
-----------------------------------------------
Total....................................................... 115,874,000 69,852,767 60.3
----------------------------------------------------------------------------------------------------------------
The costs of legal consultation required to implement the new
GFE apply only to retail loan originators. Wholesale lenders and
settlement agents and other third-party settlement service providers
do not provide GFEs and therefore they would not be subject to these
costs.
Appendix VII.B.3. Employee Training on the New GFE
Loan originators must fill out the new GFE and be familiar with
its requirements so that they can fill out the form correctly and
respond to the borrower's questions about it. So, there would be a
one-time expense of training loan originators' employees in the
requirements of the new rule. While the actual extent of the
required training is unknown, a reasonable starting point would be
that one quarter of the workers in large firms and one half of the
workers in small firms would require training concerning the
implications of the proposed rule. We assume that small firms pay
tuition of $250 per worker but that large firms receive a discount
and pay only $125 per trainee. If the training lasts an entire day,
then the opportunity cost of the time, at $72.12 an hour (based on a
$150,000 fully-loaded annual salary) would be $577 per trainee. The
total tuition cost to the industry would be $53 million and the
opportunity cost of lost time would be $141 million, amounting to a
total training cost of $194 million. The total one-time cost for
RESPA training for originator staff in the new rule would come to
$194 million or $310 per worker (averaged across all workers). The
one-time cost for small businesses is $146 million. Table A-8
depicts the distribution of training costs among the retail mortgage
origination industries and for small businesses in each industry. It
uses data on workers from Table A-5.\67\
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\67\ Sensitivity analysis shows the effects of changing the
number of workers participating in the training. If one half (rather
than one-quarter) of workers at large firms and three-fourths
(rather than one-half) of the workers at small firms attended
training, then the total costs would be $314 million (with the small
business share being $219 million); the average cost per employee
would be $503. However, as noted in the text, there may be other,
less costly ways in which the knowledge necessary to comply with the
GFE provisions of the final rule can be imparted to workers, which
will reduce the number of workers that need formal training.
Table A-8.--One-Time Worker Training Costs of the New GFE
----------------------------------------------------------------------------------------------------------------
Percentage
Industry Total training Small business small business
cost cost cost
----------------------------------------------------------------------------------------------------------------
Mortgage Brokers............................................. $134,522,236 $119,387,019 88.7
Commercial banks............................................. 22,653,771 8,060,292 35.6
Thrifts...................................................... 9,981,440 2,482,613 24.9
Mortgage Banks............................................... 21,285,461 13,330,070 62.6
Credit Unions................................................ 5,148,741 2,533,751 49.2
--------------------------------------------------
Total.................................................... 193,591,648 145,793,746 75.3
----------------------------------------------------------------------------------------------------------------
As explained earlier, the costs of training are probably best
estimated using the more normal mortgage environment, since many of
the additional employees during a refinance wave are temporary
employees who may either do only general office work that does not
require any GFE-specific training or who may be trained on-the-job
by existing permanent employees. Still, the higher figures are
reported for those who believe they are the relevant figures.
The data and table presented above depict what is likely to be
an upper bound for training costs. There are other, less costly ways
in which the knowledge necessary to comply with the provisions of
the final RESPA rule can be imparted to workers. Small firms, in
particular, are likely to take advantage of information on complying
with the final rule provided by trade associations and their
business partners (such as wholesale lenders), and these firms may
find the time and expense of formal training unnecessary. To the
extent that this is the case, the estimates reported above will over
state the impact on small businesses.
Appendix VII.B.4. One-Time Adjustment Costs
Comments. Loan originators commented that it would be costly to
develop systems and train people in the new rule and the new
systems. They commented that it would be especially costly to engage
in two changes, the new GFE and GMPA, simultaneously. (Of course,
the proposed rule only requires them to implement the new GFE.) Even
worse, they said, would be to make both changes without the old GFE
as an alternative. For example, the Consumer Mortgage Coalition
(2002) commented that from a training, compliance and systems
changes standpoint, HUD's proposals were of such a magnitude that
they should be implemented in stages. The Mortgage Banking
Association of America (2002) commented that the proposed changes to
the GFE would impose operational difficulties and would serve to
complicate the implementation of packaging. The MBAA stated:
The cost burden of requiring a lender to overhaul its
operational and compliance infrastructure on a single level is
always significant. Doubling this task--by introducing the revised
GFE and the GMPA at the same time--will likely increase costs
exponentially. Lenders have limited human resources in their
technology departments. These resources are already taxed in
updating systems caused by the proliferation of law and regulation
changes on the local, state, and Federal levels. (p. 11)
Bank of America (2002) said that two years are needed to
implement the new rule, stating:
[The rule] will require significant systems changes, possibly
occupying full time all of the technical staff a mortgage loan
originator has. It will also require changes to the way lenders
price their loans. Extensive testing and training time will be
needed. (p. 20)
[[Page 14114]]
America's Community Bankers (2002) said there would be a ``host
of compliance and operational difficulties'' with the proposed GFE.
The American Bankers Association (2002) notes the following with
respect to the GFE:
If the changes proposed by HUD, especially modification of the
GFE, were to become final it would necessitate the banking
industry's expenditure of extensive resources and time to become
fully compliant. Banks would have to modify their mortgage
origination policies and practices. They would have to retrain their
employees involved in the mortgage process as well as those
overseeing compliance with RESPA and Regulation Z. They would have
to redesign their software programs to accommodate the changes
incorporated in such a final regulation. (p.3)
America's Community Bankers, the Consumer Banker Association,
and the Missouri Bankers Association wanted two years lead time to
implement the proposed GFE.
Response. An important feature simplifying implementation of the
proposed rule is that it does not allow for the MPO (or GMPA as it
was called in the 2002 proposed rule). Another important feature
simplifying implementation is a twelve-month period during which the
new GFE could be used by an originator who wanted to make the
switch, or the old GFE could be used as an alternative by one who is
more reluctant. This allows those who want to use the new GFE to do
so as soon as possible. At the other extreme, it allows others to
wait up to twelve months to make the adjustment. Several points can
be made about this option:
Some might prefer to wait to see how the new GFE
actually works in practice before deciding exactly how they want to
proceed. With HUD's implementation schedule, they will have some
time to see how others have fared.
Some might want to see how borrowers have responded to
the new loan origination option, thus increasing the likelihood of
making the best choices for their firm when they implement the new
GFE. The 12-month implementation schedule will allow time to observe
borrower reactions.
Some might want to see how other loan originators have
coped with new arrangements with other settlement service providers.
The implementation period will allow them some time to adopt those
arrangements most likely to work for them.
Some might want to see how competing software systems
are serving various clients' needs, increasing the likelihood of
picking the software system that would work best for them.
Some might want simply to follow the lead of their
wholesale lender or other lenders that they do business with. There
will be some competitive pressure on wholesale lenders to develop
products and systems that meet the needs of brokers and loan
correspondents who provide them with their loans. The implementation
period allows time for this to be worked out.
In short, there will be twelve months for those more eager to
embrace the changes to be the guinea pigs for the transition. This
should help ease the burden of adjustment for those who might find
it most difficult to adjust quickly. One would also anticipate that
information about the new GFE rules and about new software systems
for handling the forms would be highly publicized through several
means (industry conferences, seminars, advertisements,
demonstrations, etc.).
Appendix VII.C. Compliance and Regulatory Burden: Recurring Costs
This section discusses recurring costs associated with the new
GFE. Several topics are addressed, some of which have already been
discussed in previous sections. It is estimated that the new GFE may
impose recurring costs of $255 million per year but will probably be
neutral (see the conclusion of Section VII.C.1). Costs of the
additional time spent to arrange the pricing that protects the
originator from the costs of the tolerances being exceeded is $300
million annually or $24 per loan (see Section VII.E.2). The
potential recurring costs are thus $555 million annually or $44.40
per loan. The recurring cost on small business would amount to $290
million (52.2 percent of the total).
Appendix VII.C.1. Cost of Implementing the New GFE Form
This section examines the various costs associated with filling
out and processing the new GFE. In their comments on the 2002
proposed rule, loan originators commented that the proposed GFE was
longer than today's GFE and that it would take more time to fill
out. In addition to settlement charges, the proposed GFE contained
loan terms, a trade-off table, a breakout of lender and broker fees,
and a breakout of title agent and insurance fees.
There are several aspects of the new GFE that must be considered
when estimating the overall additional costs of implementing it. The
following discusses the various factors that will reduce costs and
possibly add costs to the GFE process. As is made clear by the
discussion, there should not be much, if any, additional cost with
implementing the new GFE (as compared with implementing today's
GFE).
(1) Disclosure of YSP. Under the existing scheme, mortgage
brokers are required to report yield spread premiums as ``paid
outside of closing'' (POC) on today's GFE and HUD-1. Page 2 of the
new GFE has a separate block for yield spread premiums (as well as
for discount points). In order to fill out a GFE under the proposed
rule (as well under the 2002 proposed rule), the mortgage broker
must have a loan in mind for which the borrower qualifies from the
information available to the originator. Pricing information is
readily available to mortgage brokers, so there is no additional
cost incurred in determining the yield spread premium or discount
points since they have to look and see if there is a yield spread
premium under the current regime anyway. Since it is reasonable to
assume that all brokers consult their rate sheets prior to making
offers to borrowers, it is reasonable to assume that they know the
difference between the wholesale price and par. It does not appear
that disclosing the yield spread premium or discount points adds any
new burden.
(2) Itemization of Fees. The reduction in the itemization of
fees will lead to fewer unrecognizable terms on the new GFE.\68\
That should lead to fewer questions about them and less time spent
answering those questions. Of course, to the extent that the
originator is precluded from including junk fees on the GFE, he or
she will not have to spend any time trying to explain what they are.
The confusion avoided may lead the borrower to better understand
what is being presented so that questions on useful topics are more
likely to come up and the originator can spend his time giving
useful answers (or more time will be spent explaining useful
things). In all, the simpler GFE produces a savings in time for
originators and borrowers.\69\
---------------------------------------------------------------------------
\68\ The fees in the lender-required and selected services
section will still be itemized (e.g., appraisal, credit report,
flood certificate, or tax service) as will those in the lender-
required and borrower selected section (e.g., survey or pest
inspection). There will, however, be no itemization or long lists of
various sub-tasks of lender fees or title fees, often referred to as
junk fees.
\69\ Several items were dropped from the new GFE, as compared
with the proposed GFE: the APR, the breakout of the origination fee
into its broker and lender components, and the breakout of the title
services fee were dropped. These were considered unnecessary for
comparison shopping.
---------------------------------------------------------------------------
(3) Summary Page. A summary page has been added to the new GFE
in the proposed rule. But it should be noted that Sections I and II
(on the summary page of the new GFE) ask for basic information
(e.g., note rate, loan amount) that is readily available to the
originator and thus do not involve additional costs. The summary
page simply moves items around or repeats items rather than
requiring new work.
(4) Trade-Off Table. There is a burden to producing and
explaining the worksheet in Section IV (on page 3 of the GFE)
showing the alternative interest rate and upfront fee combinations
(the so-called ``trade-off'' table or worksheet). Many commenters
said customizing the trade-off table with the individual applicant's
actual loan information would be difficult; these commenters
recommended a generic example, possibly placing it in the HUD
Settlement Booklet, rather than providing it with the GFE. However,
it is important to remember that the information in the worksheet is
likely to be a reflection of a worksheet the originator already uses
to explain the interest rate/upfront fee trade-off. While there may
be a burden to explaining how the interest rate-point trade-off
works, this explanation is something all conscientious originators
are already doing in the origination process. In today's market,
most lenders and brokers likely go over alternative interest-rate-
point combinations with potential borrowers. For these originators,
there is no additional explanation burden arising from the
production of this worksheet. To the extent that some lenders only
explain one option to a particular borrower (even though they offer
others), there would be some additional costs
[[Page 14115]]
for those lenders. Today, most originators present to borrowers much
more complicated sets of alternative products than captured by the
worksheet. It is important to remember that the main purpose of the
worksheet is simply to sensitize the borrower to the fact that
alternative combinations of interest rates and closing costs are
available.
With respect to customizing the worksheet to the applicant's
actual offer, the information on the applicant's loan is already on
the new GFE, so that would not appear to be a significant problem,
as that applicant information can be linked directly into the
worksheet. Then, there is the issue of the two alternative
combinations, one with a lower interest rate and one with a higher
interest rate. Most originators offer loans with several interest
rate and point combinations from which the borrower chooses. As
noted above, they probably have already discussed these alternative
combinations with the applicant. The originator would pick two
alternatives from among the options available but not chosen by the
borrower when he picked the interest rate and point combination for
which his GFE is filled out. The originator would have to punch
these other two combinations into his GFE software (two interest
rate and point combinations) in order for the software to fill out
the form. In the event that the originator does not use software to
make these calculations, they would have to be done by hand.
(5) Costs of Re-Disclosing the New GFE. As discussed in Chapter
3, if the borrower does not qualify for the loan presented in the
originator's GFE and a new loan is offered, a new GFE must be filled
out with the appropriate changes. In addition, if there are
unforeseen circumstances or changes requested by the borrower, a new
GFE must be issued with the appropriate changes. But the borrower
would be given these changes today for a new loan (but a new GFE
would not be issued). The rule simply requires that the new
information be conveyed to the borrower through a new revised GFE.
For further information, see the discussion of re-disclosure costs
below in Section VII.D.2.
(6) Documentation Costs. Loan originators are required to
document the reasons for changes in any GFE when a borrower is
rejected or when there are unforeseeable circumstances that result
in cost increases. Once a GFE has been given, there are several
potential outcomes. One is that the loan goes through to closing
with tolerances and other requirements met. Another is the borrower
terminates the application. Borrowers could also request changes,
such as an increase in the loan amount. There could also be a
rejection, a counteroffer, or unforeseen circumstances.
The first two require no special treatment. Borrower requested
changes do not require documentation but do require a new GFE, as
explained in (5) above. The case of borrower rejection (which
assumes there is no counteroffer accepted by the borrower) requires
documentation today under the Equal Credit Opportunity Act (ECOA).
Under ECOA, the originator must document the reason for a rejection
and retain the records for 25 months, which is also the requirement
in the proposed rule. Therefore, there is no additional
documentation required in case of a rejection. There is no
documentation requirement for a counteroffer, but the lender must
issue a new GFE to the borrower; the minimal burden associated with
issuing an additional GSE as discussed in Section VII.D.2 below.
Documentation for unforeseeable circumstances adds a new
requirement. The additional burden associated with unforeseen
circumstances comes from having to document the reasons for the
increase in costs and from determining that the amounts of the
increases in charges to the borrower are no more than the increases
in costs incurred by the unforeseeable circumstances. The Department
does not require that a justification document be prepared. Since
there are no special reporting requirements when unforeseeable
circumstances occur, compliance could be met by simply retaining the
documentation in a case binder, as any other relevant loan
information might be retained in a case binder today. For example,
itemized receipts for the increased charges would simply be put in
the loan case binder (as they probably are today). Case binders are
stored now. The additional cost of identifying and storing the
documentation in that binder would be de minimus. This would
represent little burden on the originator, particularly since
unforeseen circumstances will not be the norm.
There may be some record retention issues with small
originators, such as brokers. If small originators retain case
binders today, then their situation would be similar to other
originators. If they do not retain the case binder today, then they
may choose to do so, or they may rely on their wholesalers for
record retention. It might well become a selling point for
wholesalers. Relative costs of storage, reliability, and
accessibility would determine who could best perform this function.
(7) Crosswalk from New GFE to New HUD-1. The HUD-1 has been
changed so that it matches up with the categories on the new GFE--
making it simple for the borrower to compare his or her new GFE with
the final HUD-1 at closing. In addition, a closing script has been
added so that the settlement agent is required to explain the
crosswalk. The simplification of the GFE does not add any burden for
the borrower to the comparison of the figures on the two forms--
rather it will be reduced since it will now be easier for the
borrower to match the numbers from the GFE (issued at time of
shopping) with those on the HUD-1 (issued at closing). Compared with
today, it also eliminates the step of adding a pointless list of
component originator charges to get the relevant figure, the total
origination charge. In addition, the elimination of junk fees on the
GFE may lead to the elimination of them on the HUD-1 since they may
have been on the GFE only to overwhelm the comparison shopper. Even
without the script, the settlement would have been more transparent
for the borrower. However, requiring that a script be completed by
the settlement agent and read to the borrower will impose some costs
on the settlement agent. Compliance costs of the script are
discussed in detail in Section VII.C.2 below.
(8) Mortgage Comparison Chart. The Mortgage Comparison Chart is
the fourth page of the GFE. It is delivered to the borrower as a
blank form. The borrower is free to fill it out and use it to
compare different loan offers. The loan originator or packager is
only required to hand it out, but has the option of answering
borrower questions about it. The short, simple, and self-explanatory
nature of the form leads the Department to believe that the
additional costs per form, if any, borne by an originator or
packager would approach zero.
Summary. To summarize, the discussion of the above factors
identifies offsetting costs and suggests that there will be little
if any additional annual costs associated with the new GFE.
Practically all of the information required on the new GFE is
readily available to originators, suggesting no additional costs.
The fact that there are fewer numbers and less itemization of
individual fees suggests reduced costs. The fact that the GFE
figures are displayed on the HUD-1 will substantially simplify the
closing process. In addition, Section D below lists further changes
that HUD made to the form that are likely to reduce costs. On the
other hand, there could be some small amount of additional costs
associated with the trade-off table and documentation requirements.
If there were additional costs of, for example, 10 minutes per GFE,
the dollar costs would total $255 million per year.70 71
But given the above discussion of offsetting effects and the
improvements made to the form, there are likely to be no additional
net costs with implementing the new GFE. Note, however, that there
is the potential for recurring costs from the script required at
closing. This issue is summarized in Section VIII.
---------------------------------------------------------------------------
\70\ This calculation assumes a $150,000 fully-loaded annual
salary; dividing by 2,080 hours yields $72 per hour, or $12 for ten
minutes. Assuming 21,250,000 applications, produces a cost figure of
$255 million. At 15 minutes, the cost estimate would rise to about
$382.5 million. In the higher volume environment (26,350,000
applications), the overall cost figure would be $316.2 million if
the per application cost was $12 for ten minutes.
\71\ We have used a fully-loaded hourly opportunity cost of
$72.12 for highly-skilled professional labor throughout the Economic
Analysis. For many functions as well as locations this amount is
probably an overestimate of the hourly opportunity cost. However,
our goal in the Economic Analysis is to accurately measure the upper
bound of the costs of the rule. An alternative method would be to
generate an estimate of the average variable cost from industry-
specific data. For example, in Tucson, Arizona, the average unit
labor cost (salary, bonuses, time off, social-security, disability,
healthcare, 401(k), and other benefits) is $30.73 per hour for loan
officers ($23.97 for a Loan Officer/Counselor; $28.48 for a Consumer
Loan Officer I; and $39.75 for a Consumer Loan Officer II).
Additional costs to be considered are rent ($2812.50 per month for
1500 square feet) and computer equipment ($560 per month). Summing
this gives us an hourly cost of $31.14. An additional ten minutes
per closing would increase costs by $5.19 per loan. The estimate of
the recurring annual burden of the new GFE could reasonably be
assumed to be $110 million, much less than the $255 million used
throughout this analysis.
---------------------------------------------------------------------------
[[Page 14116]]
Appendix VII.C.2. Crosswalk Between the GFE to the HUD-1
The following paragraphs describe HUD's response to comments
from the 2002 proposed rule on the crosswalk between the GFE and
HUD-1 as well as a description of the development of the crosswalk.
The compliance costs of the crosswalk are described in Section VIII.
Comment. Many commented that borrowers would require more help
in comparing the proposed GFE to their HUD-1. The HUD-1 may contain
all of the detail it has today while the GFE shows subtotals for
major categories of settlement costs.
Response. While the forms do not match-up fee-for-fee, they do
not have to match-up that way today under the GFE. In the area of
lender fees on the GFE under today's rules, there would typically be
several itemized fees (e.g., application fee, underwriting fee,
etc.) despite the fact that they all go to the originator. Thus, the
borrower would have to make several GFE-versus-HUD-1 comparisons of
lender fees that do not have to match up dollar-for-dollar. Under
the new rule, the borrower would add up the lender fees (which would
typically be in the 800 series on the HUD-1) and look for that one
number, ``Our Service Charge,'' on the new GFE. This would be no
more difficult than before.
The HUD-1 has been changed so that it matches up with the
categories on the new GFE--making it simple for the borrower to
compare his or her new GFE with the final HUD-1 at closing. The GFE
has been standardized and the titles of sections in the HUD-1 have
been renamed to match with the GFE. Numbered references to the lines
in the GFE are included in the HUD-1 to make it easier to match the
appropriate lines. Finally, a crosswalk between the GFE and the HUD-
1 has been added to the HUD-1 as an addendum. The settlement agent
will be required to read the script to the borrower and guide him or
her through the comparison of the GFE and the HUD-1 forms.
It should be noted, however, that even without the script, the
borrowers might require less help in comparing GFEs to HUD-1s under
the new rule. There is only one space for originator fees on the
GFE. Originators who might otherwise break up their fee into a large
number of components to overwhelm borrowers do not have that option
on the new GFE. Borrowers will make their choices based on the GFE
that has only one originator fee. Once the borrower is committed,
originators might decide there is no advantage to splitting this
figure into a large number of components since delivering
overwhelming detail designed to affect the choice of loans after the
choice has been made is pointless. If so, they would report only one
originator fee on the HUD-1. If borrowers have only one originator
fee on the HUD-1 and it matches the only originator fee on the GFE,
then borrowers will require less help in comparing the originator's
fees on the two documents.
In the area of title services, today the lender might estimate
this cost with one number or an array. But if the originator does
not initially know who will perform this service, the figures on the
HUD-1 in the end could bear little semblance to those on the GFE.
Under the new rule, title services, owner's title insurance, and
borrower's title insurance are shown. The latter two will be
itemized in the 1100 series and title services will be the sum of
the rest of the numbers in the 1100 series of the HUD-1. Adding up
the figures in the 1100 series and subtracting out the owner's title
insurance premium (which is not covered by the 10% tolerance) is
simple arithmetic. Adding that sum to the other third-party fees is
more addition. Seeing if the total of these third-party fees is ten
percent over the estimates involves one comparison. The new rule
changes the procedure from making numerous charge-by-charge
comparisons, for which matching entries may be missing on either
form, to an exercise in adding first and then making a few
comparisons. It is not clear that the new rule involves more
difficulty or time than the old rule for a borrower who wants to
compare the GFE to the HUD-1. It may well be easier for borrowers to
compare GFEs to HUD-1s under the new rule than it was under the old.
In addition, the required script will provide a standard explanation
of the crosswalk.
The crosswalk tested by the Kleimann Communication Group met
with mixed results. The crosswalk was tested in rounds two and three
of the consumer testing of the forms. The conditions tested in round
three were different than in round two since the form and tolerance
scheme had changed. The first two numbers on page 2 of the round two
GFE were dropped and the form began with what had been the adjusted
origination charge. Also, the tolerances had changed from an
individual zero tolerance for the fees of originator selected third-
party providers and an individual ten percent tolerance for third-
party providers where the borrower used a referral made by the
originator, to an overall ten percent tolerance on originator and
third-party fees so long as the borrower selected providers had been
a referral from the originator. Also, the tolerance was dropped on
reserves or escrow.
The crosswalk was tested as a stand-alone document; the subjects
got no help at all from the testers. No verbal instructions were
given and no questions of substance were answered. Under these
circumstances, the subjects had a wide range of success rates in
filling out the crosswalk. In the ordinary course of a closing,
however, the borrower could be accompanied by a spouse, friend, or
real estate agent who might help the borrower figure the crosswalk
out. There is also the settlement agent who is likely to be an
expert in this field, would understand the crosswalk, and could
answer questions the borrower had about comparing charges on their
GFE and HUD-1, i.e, performing the crosswalk. The crosswalk is
likely to work much better in practice than it did in the isolation
of stand-alone testing.
The proposed rule provisions for describing loan terms in the
new GFE and the HUD-1 closing script are somewhat duplicative of the
Truth in Lending Act (TILA) regulations, however the differences in
approach between the TILA regulations and HUD's proposed RESPA rule
make the duplication less than complete. The TILA and RESPA
approaches to mortgage loan terms disclosure are most similar when
the loans are very simple, e.g., fixed interest rate, fixed payment
loans. The approach differs for more complex loan products with
variable terms. In general, TILA describes how variable terms can
vary (e.g., the interest rate or index to which variable interest
rates are tied, how frequently they can adjust, and what are the
maximum adjustment amounts, if any), but forecasts the ``likely''
outcome based on an indefinite continuation of current market
conditions (e.g., the note rate will be x in the future based in the
index value y as of today). The RESPA disclosures in the GFE and
HUD-1 closing script focus the borrower on the ``worst case
scenario'' for the loan product to ensure borrowers are fully
cognizant of the potential risks they face in agreeing to the loan
terms. The disclosures on the GFE are meant to be as simple and
direct as possible to communicate differences among loan products.
HUD's approach to these disclosures thus supports consumers ability
to shop for loans among different originators. For a given set of
front-end loan terms (initial interest rate, initial monthly
payment, and up-front fees), originators have an incentive to offer
borrowers loans with worse back-end terms (e.g., higher maximum
interest rate, higher prepayment penalty) to the extent capital
markets are willing to pay more for loans with such terms. While
brokers are required to disclose such differentials on the GFE and
HUD-1, lenders are not. HUD's proposed GFE will help consumers to
quickly and easily identify and distinguish loan offers with similar
front-end terms, but worse back-end terms, while shopping for the
best loan. Requiring a script will act to double-check the HUD-1 and
thus enhance the realization of the benefits of the simpler GFE.
Appendix VII.C.3. Multiple Preliminary Underwritings
Comment. Every application under the new rule requires
preliminary underwriting. Since borrowers who shop may seek out
multiple GFEs, there will be multiple underwritings. Commenters said
this will add to the underwriting burden firms incur today.
Response. Every application under the 2002 proposed rule that
generates a GFE will require preliminary underwriting in order to
come up with an early offer for the borrower. Originators can charge
a fee for issuing a new GFE. It is hoped that the charge for this,
if any, would be small enough so that it is not a significant
deterrent to effective shopping. But whether or not there is a
charge, there are real resource costs associated with preliminary
underwriting. The additional cost generated depends on the number of
applicants and the number of GFEs they get. Since every completed
loan eventually gets underwritten in full, the additional cost of
preliminary underwriting depends mainly on the number of additional
times that preliminary underwriting occurs beyond the one associated
with the full underwriting that would have occurred under the
existing scheme. It cannot be determined how many additional GFEs
the average borrower would get under the new rule. Borrowers might
[[Page 14117]]
continue the informal shopping method that many use today--gathering
information and making inquiries to lenders and brokers about their
products and their rates, even before deciding to proceed with the
request for a more formal quote using the GFE. In other words, they
may formally apply only after deciding who offers the best terms.
The simple format and clarity of the new GFE form will enhance this
informal information gathering process; in fact, the increased
efficiency of informal shopping (calling around, checking web sites,
etc.) could be an important benefit of the new GFE. Since shoppers
as well as originators will be familiar with the GFE, these forms
will likely serve as a guide for practically any conversation
between a shopper and an originator, or for any initial request by a
shopper for preliminary information about rates, points, and fees.
For these borrowers, the new GFE simply pins down the numbers.
Others, on the other hand, may obtain multiple GFEs and use them to
shop.
There are currently 1.7 times as many applications as loans
originated; therefore, if originations are 12.5 million, full
underwriting is started (and probably completed) for about 21.25
million applications, including 8.75 million (21.25 million minus
12.5 million originations) that are not originated. Under the
proposed rule, preliminary underwriting should decrease the number
of applications that go to full underwriting (e.g., an applicant may
be denied during the preliminary without having been charged for an
appraisal); that is, some of the 8.75 million that are not
originated may be disapproved at the preliminary stage rather than
going through full underwriting (as they might today). This savings
in appraisal, verification, and other incremental underwriting costs
that are avoided would tend to offset the increase in cost resulting
from the extra preliminary underwriting noted in the above
paragraph. However, it is difficult to estimate these effects.
Appendix VII.D. Changes in the Proposed Rule That Reduce Regulatory
Burden 72
---------------------------------------------------------------------------
\72\ See Chapter 3 for a more detailed treatment of changes
listed in this section.
---------------------------------------------------------------------------
The proposed rule contains several changes from the 2002
proposed rule that are designed to reduce regulatory burden.
Appendix VII.D.1 Items Dropped From the Proposed GFE
Several items that commenters were concerned about are not
included on the final GFE:
Lender/Broker Breakout. Loan originators argued that breaking
out the origination charges into its broker and lender components is
costly and serves no useful purpose. This requirement has been
eliminated so there will be no compliance burden associated with the
lender/broker breakout on the GFE.
Title Agent/Title Insurance Premium Breakout. Title agents
argued that breaking out the title insurance premium that goes to
the underwriter from the rest of the title charges is costly and
serves no useful purpose. This requirement has been eliminated, so
there will be no compliance burden associated with the title agent/
title insurance premium breakout on the GFE.
APR. Loan originators commented that including the APR on the
GFE was an unnecessary burden since it is duplicated on the TILA
forms. There will be no compliance burden with the APR since that
term has been dropped from the GFE.
Appendix VII.D.2 Cost of Re-Disclosure
Comment. Loan originators commented that re-disclosure would be
costly. Under the 2002 proposed rule, a new GFE was to be filled out
if the borrower did not qualify for the loan presented to him or her
on the original GFE or if the borrower requested a change in the
loan that would invalidate the original GFE. The GFE in the proposed
rule has similar requirements. For example, the appraisal might come
in lower than the value stated by the borrower and result in the
need for mortgage insurance or a change in the mortgage insurance
rate. Or, the borrower might request a change in loan product,
interest rate, or loan amount. These situations would require a new
GFE.
Response. If the borrower does not qualify for the loan
presented in the originator's GFE and a new loan is offered, a new
GFE must be filled out with the appropriate changes. If a borrower
did not qualify for the loan under the old rule, no new GFE would be
required, but the borrower would be told of the changes in the loan
program and changes in fees that would result. The proposed rule (as
well as the 2002 proposed rule) requires that the new information be
conveyed to the borrower through a new revised GFE rather than
through some other medium.
The only change is the method of communication. The data and
other information on the counteroffer are readily available to the
originator. In addition, one who receives a counteroffer must be
made aware of the changes in the loan terms in order to properly
prepare for the closing. For example, the borrower would have to
know the new settlement costs in order to show up at settlement with
a check for the right amount. So, counteroffer information is
certainly already being conveyed today under existing rules. There
would seem to be little cost in the change to require this
information to be conveyed in a new GFE. If it took 10 extra minutes
per new GFE over and above the time spent today conveying the
information for the new offer, that would come to $12 extra cost per
form. But there would be offsetting decreases in costs as well.
There would be a decrease in confusion at the settlement table that
would result from the borrower having a ``correct'' GFE for the
offer accepted rather than the irrelevant GFE for the loan for which
the applicant did not qualify. Any attempt to reconcile the old GFE
with the HUD-1 would be confusing and ultimately unsuccessful. The
new GFE, of course, could be reconciled with the HUD-1. The value of
the time saved from being able to match the correct GFE with the
HUD-1 should far exceed any additional cost resulting from the
requirement that the new offer cost estimates must be conveyed in
the form of a new GFE.
Appendix VII.D.3 Increase in HOEPA Loans
Comment. Loan originators commented that the reporting
requirements for the yield spread premium would increase the fees
reported by brokers and increase the number of loans subject to
HOEPA regulations. As a result, HOEPA compliance costs will be
incurred on a larger number of loans.
Response. The will be no compliance burden associated with
increased HOEPA coverage since there will be no increase in HOEPA
coverage. The comment assumes that the finance charge used to
calculate the APR in the future would include the service charge
rather than the adjusted origination charge that is the equivalent
of what is reported under current rules. If it were true that the
service charge was to be used under the new rule, the finance charge
and APR would rise leading to more HOEPA loans and more HOEPA
compliance burden. The Federal Reserve, however, will require the
adjusted origination charge, equivalent to what is required today,
to be used in calculating the finance charge and APR under the new
rule. Consequently, there will be no RESPA mandated change to the
calculation of the finance charge or APR on loans originated under
the new GFE, and, therefore, no resulting increase in HOEPA
compliance burden for loans originated under the new GFE.
Appendix VII.D.4 Treatment of Government Fees and Reserves/Escrow
Comment. Loan originators argued that these tolerances (zero on
government fees and 10 percent on escrow) imposed burdens on them
that were unnecessary. Escrow deposits can be difficult to determine
within three days, especially when the property is new construction.
These are not retained by the lender but are held on behalf of the
borrower and are covered by the escrow rule. As with the other
tolerances, small firms commented that they would be at a
disadvantage relative to their large counterparts from the risks
associated with having to cover any charges in excess of the
tolerances.
Response: In the proposed rule, there will be no compliance
costs resulting from tolerances on escrow since this tolerance
protection has been eliminated. The zero tolerance on government
recording fees and transfer taxes remains.
Appendix VII.D.5 Required Time for the GFE To Be Open to the
Borrower
Comment. Loan originators argued that 30 days was too long for a
GFE to be binding. In that time, some prices could change and the
originator would have to bear the price increases that resulted.
Response. The time period for which the GFE will be open has
been reduced from 30 days to 10 business days. It is unlikely that
there would be any changes in that short a time that would be
unanticipated and lead to the loan originator having to cover any
charge in excess of the tolerances.
Appendix VII.D.6. Earlier Triggers for HMDA and Fair Credit
Comment. The new definition of application in the 2002 proposed
rule was
[[Page 14118]]
designed to get the borrower good shopping information earlier in
the application than under the current scheme. Loan originators
complained that the new definition would trigger more GFEs than it
had before. It would also trigger more Truth in Lending Forms as
well as more Regulation B and C (HMDA and Fair Credit) reporting
requirements for applicants who were at an earlier stage in the
process than before. This would generate additional compliance
burden as a result of having to generate more of these forms.
Response. As discussed in Section VI of Chapter 3 of the RIA,
the definition of application has been bifurcated. The definition of
``application'' for GFE and TILA purposes will remain as in the 2002
proposed rule and result in earlier delivery of these forms while
the definition for Regulations B and C purposes will be met when the
borrower completes the application process by selecting a loan
originator with whom his application will go forward. There will be
no increase in reporting burdens because the timing requirements
have not changed under the proposed rule.
Appendix VII.E. Other Compliance Costs: New GFE
This section discusses compliance issues related to the zero
tolerances on lender fees (Section III.E.1) and the 10% tolerance on
third-party fees (Section III.E.2).
Appendix VII.E.1. Zero Tolerances on Lender Fees
Comment. Originators commented that the zero tolerance on lender
fees makes it difficult to switch borrowers from one loan to another
if the fees are different. Such switching can be in the borrower's
best interest. In such cases, the originator could keep the same GFE
and possibly earn less on the loan, or have to fill out a new GFE
for the borrower. The commenters said either alternative is costly
to the originator.
Small originators commented that zero tolerance puts a greater
burden on them than on larger originators. Their smaller number of
transactions gives them a smaller base over which things can average
out. One particular loan that turned out to be much more costly than
estimated would have a larger proportionate negative effect on a
small firm than on a larger counterpart that could average this out
over a much larger number of transactions.
Response. This feature of the proposed GFE remains. The
Department believes that it is not difficult for a loan originator
to figure out its own price for its own product in three days. If
the borrower does not qualify for the loan product described in the
GFE and is rejected for that loan, the originator may offer the
borrower another loan for which he may qualify and present the
borrower with a new GFE for that loan. If the fees are higher for
the new product, the GFE may reflect those higher fees and the
originator is not limited to the lower fees of the original loan
product.
Appendix VII.E.2 Tolerances on Third-Party Fees
The GFE tolerance requirements in the new rule require loan
originators to bear the full burden of any third-party charges that
exceed the limits set by the tolerances. Paying the excess to
borrowers or incurring the costs to ensure that the third-party fees
fall within the tolerances is a compliance burden.
Under the 2002 proposed rule, zero tolerance applied to fees for
third-party services that are required by and selected by the
lender. A ten percent tolerance applied to the required third-party
services where the borrower chooses a firm referred by the
originator.
No tolerance applied to third-party fees where the borrower
chose a provider without a referral from the originator. The
rational for the zero tolerance was that a loan originator should
know the price of a service if it required the use of its chosen
provider. In the case of making referrals, the loan originator could
be expected to have some knowledge of the market. In fact, it should
have some knowledge if it is to meet even the weakest concept of
``good faith.'' The 10 percent tolerance seemed like a reasonable
limit for price dispersion for services obtained in a market that
could be competitive if the buyers had good information. It is also
simple for borrowers quickly to compute 10 percent of the total fee
and determine if final charges are within the tolerance. In order to
protect themselves from charges in excess of the limits set by the
tolerances, originators would have to gather price information in
the market and possibly set up agreements with some third-party
providers to perform settlement services at prearranged prices.
Those originators who would have gathered more information than they
do today or made more pricing arrangements than they do today would
have incurred an increase in regulatory burden resulting from the
new rule.
Comment. Loan originators wrote that they should not be required
to pay the bills for third-party fees in excess of the tolerances
since they do not control those fees. They argued that their
expertise is as originators, not as appraisers or title companies.
They claimed that they do not know who will perform all these
services at application, so the price is indeterminate. In addition,
there are occasions when services beyond the normal minimum will be
required, but that cannot be known at application. For example,
additional appraisal work may be required or some work may have to
be done to clear up a title problem. So prices and even some
services that end up as being required are unknown at application.
Small originators made the same argument that they made on the
zero tolerance for lender fees. They will be at a disadvantage if
they have to cover the third-party fees in excess of the tolerances
since they have a smaller base on which to average out these excess
fees. If the loan originator solves its problem by using only those
third-parties that agree to fixed prices, that shifts the burden to
the third-party. Small third-party providers made the same argument
that small originators made. They then will be disadvantaged
relative to large third-party providers by having to bear the risk
of the unpredictable cost that cannot be averaged out over a large
number of transactions.
Response. The tolerance scheme for third-party services has been
changed in the proposed rule. An overall tolerance of ten percent
now applies to the sum of (a) third-party fees for services where
the originator requires the use of a specific provider or (b) third-
party fees where the borrower uses a provider whose name was given
to him by the originator in response to a request for a
referral.\73\ As mentioned above, the 2002 proposed rule had a zero
tolerance on (a) and a 10 percent tolerance on (b). The sum of the
fees on the HUD-1 for third-party providers selected by the
originator or used as a result of the referral process cannot exceed
the sum of these fees on the new GFE by more than 10 percent. As in
the 2002 proposed rule, no tolerance applies where the borrower
elects to use a provider without the referral from the originator.
---------------------------------------------------------------------------
\73\ Upfront mortgage insurance is not included in the overall
10% tolerance. It has a zero tolerance because upfront private
mortgage insurance charges (which are rare) along with upfront FHA
and VA insurance charges are well known.
---------------------------------------------------------------------------
Tolerances will impose some burden on originators. Since the
protection of tolerances kicks in only if the originator requires
the use of a particular provider or if the borrower comes to the
originator and asks where the services may be purchased within the
tolerances, the originator must have reliable third-party settlement
service provider pricing information or risk paying the charge in
excess of the tolerance. Some originators might simply check out the
market prices for third-party services from time to time, formulate
estimates such that several of the prices charged by the third
parties fall within the tolerance, and trust that nobody to whom
they refer the borrower charges a price in excess of the
tolerance.\74\ Other originators might want more protection and have
contracts or business arrangements in place that have set prices for
services that are not in excess of the tolerances.
---------------------------------------------------------------------------
\74\ Other originators may rely on vendor management companies
(or vendor management departments within their own company) for
pricing information about third-party services.
---------------------------------------------------------------------------
Either case requires the originator to do more than today,
although even today originators fill out GFEs with estimates for
third-party settlement services. In the first case, the liability in
the event a tolerance is exceeded would lead to at least a little
more work gathering information prior to filling out the GFE. In the
second case, more work would be involved in formalizing an agreement
to commit the third-party to a fixed price. But as noted above,
originators today have to have a working knowledge of third-party
settlement service prices to fill out a GFE. Therefore, it is only
the increase in burden that would need to be accounted for here.
It is difficult to estimate these incremental costs. But to
provide an order of magnitude, it is estimated that it takes an
average of 10 additional minutes per loan for the originator to
arrange the pricing that protects the originator from the costs of
the tolerances being exceeded.\75\ For a brokerage firm originating
250 loans per year, 10 minutes per loan would come to 42 hours or
about
[[Page 14119]]
one week's worth of one employee's time per year. Thus, this seems
to be a reasonable starting point for estimation. For the estimated
12,500,000 loans, that comes to 125,000,000 minutes or 2,083,333
hours. At $72 per hour, this comes to a total of $150 million for
all firms and $78 million for small firms. If it takes 20 extra
minutes per loan instead of 10, these costs come to $300 million and
$156 million respectively and would be two weeks of one employee's
time per year for a brokerage firm making 250 loans per year. Table
A-9 details the distribution of these costs among the retail
mortgage originating industries. With a larger number of loans
(15,500,000), total costs are $186 million for all firms (at ten
minutes per loan) and $97 million for small firms.
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\75\ These 10 minutes would be beyond what the originator spends
today to seek out good choices for his borrowers.
Table A-9.--Incremental Costs of Third-Party Pricing Arrangements for the New GFE
----------------------------------------------------------------------------------------------------------------
Total third-
party pricing Small business
Industry arrangement cost
cost
--------------------------------------------------------------------------------------------------
Mortgage Brokers.................................................. $180,000,000 $126,000,000
Commercial Banks.................................................. 49,275,600 9,357,436
Thrifts........................................................... 23,394,000 2,882,141
Mortgage Banks.................................................... 37,236,000 15,475,282
Credit Unions..................................................... 10,094,400 2,941,508
---------------------------------------------
TOTAL......................................................... 300,000,000 156,656,367
----------------------------------------------------------------------------------------------------------------
One wholesale lender, ABN-AMRO, offers a One-fee program to
brokers. In it, the borrower gets a fixed price for many services,
including many third-party services. Under the new GFE, arrangements
like this would solve the broker's tolerance compliance requirements
with the wholesaler making the arrangements for many of the third-
party services and negotiating the prices for them. So it may be
that (mostly large) wholesalers offer (mostly small) brokers a lower
cost alternative to complying with the tolerance requirements of the
new rule. If so, then the small business burden above would be an
overestimate. Vendor management companies are increasingly appearing
in the market, not only providing third-party pricing information,
but also offering monitoring and quality control services for
originators.
Appendix VII.F. Efficiencies and Reductions in Regulatory and
Compliance Burden: The New GFE
Efficiencies come from time saved by both borrowers and
originators as a result of forms that are easier to use, competitive
impacts in the market, the decrease in the profitability of
searching for victims, and the decrease in discouraged potential
homeowners. All these are ongoing as opposed to one-time costs.
Appendix VII.F.1. Shopping Time Saved by Borrowers
It should be noted that the increased burden on originators of
arranging third-party settlement services is likely to be much more
than offset by a reduction in the aggregate shopping burden for
third-party providers incurred by borrowers. Originators will be
highly motivated to find low third-party prices. Originators could
pass the savings on and make it easier to appeal to borrowers, or
alternatively, could raise their origination fee by the savings in
third-party fees and earn more profit per loan. Or the final result
could fall somewhere in between the two. Regardless of which path
any originator chooses, the lower third-party prices work to his or
her advantage; originators will probably be aggressive in seeking
out lower prices. The borrower benefits to the extent that, upon
receipt of the GFE, he or she immediately has good pricing
information on third-party services. The borrower could immediately
decide to use the originator's third parties, in which case his or
her search is over. Or, the borrower could search further with the
originator's prices as a good starting point and available as a
fall-back, in which case the borrower's search efforts are likely to
be greatly reduced. In both cases the borrower searches less.
Considering the number of loans the average originator closes
per year, the aggregate decrease in search efforts by borrowers is
very likely to exceed the increase in aggregate search effort by the
originators. For example, if each borrower saves an average of 15
minutes in shopping for third-party services, then the total savings
to borrowers would be $234 million.\76\ As discussed Sections
VII.E.1 and VII.E.2 on tolerances, the new form and the tolerances
will enable borrowers to save time shopping for loans and for third-
party settlement service providers. If the new forms save the
average applicant one hour in evaluating offers and asking
originators follow-up questions, borrowers save $935 million.\77\
The total value of borrower time saved shopping for a loan and
third-party services comes to $1,169 million.
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\76\ Calculated as follows: 21,250,000 projected mortgage
applications (see Chapter 2) times $44 per hour times 0.25 hour (or
15 minutes) gives $233.750 million. The $44 per hour figure is based
on the average income ($92,000) of mortgage borrowers, as reported
by HMDA; the $92,000 income figure is divided by 2,080 hours to
arrive at the hourly rate of $44.23 or $44. If the borrower saved 30
minutes in shopping time, then the total savings would be $330
million.
\77\ Calculated as follows: 12,500,000 loans times 1.7
applications per loan times 1 hour per application times $44 per
hour, the average hourly income of loan applicants ($92,000 per
year/2080 hours per year). See earlier footnote.
---------------------------------------------------------------------------
Appendix VII.F.2. Time Saved by Originators and Third-Party Service
Providers
Originators and third-party settlement service providers will
save time as well. If half the borrower time saved in (1) above
comes from less time spent with originators and third-party
settlement service providers, then originators spend half an hour
less per loan originated answering borrowers' follow-up questions
and third-party settlement service providers spend 7.5 minutes less
with borrowers for a saving of $765 million \78\ and $191 million,
respectively, for a total of $956 million.
---------------------------------------------------------------------------
\78\ Calculated as follows: 12,500,000 loans times 1.7
applications per loan times 0.5 hours per application times $72 per
hour, the average hourly income of loan originators ($150,000 per
year/2,080 hours per year).
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Appendix VII.F.3. Average Cost Pricing
As discussed in Chapter 3, the proposed rule allows average cost
pricing. This reduces costs because firms do not have to keep up
with an itemized, customized cost accounting for each borrower. This
not only saves costs when generating the GFE, it also saves quality
control and other costs afterward. Industry sources have told HUD
that this could be a significant cost savings under packaging.
Appendix VII.F.4 Time Saved From Average Cost Pricing
As explained above, there will be reductions in compliance costs
from average cost pricing. It is estimated that the benefits of
average cost pricing (e.g., reduction in the number of fees whose
reported values must be those specifically incurred in each
transaction) will lead to a reduction in originator costs of 0.5
percent, or $210 million. No breakdown of fees is needed. No
knowledge of an exact fee for each specific service needed for the
loan is required for the GFE. In addition, no exact figure for the
amount actually paid needs to be recorded for each loan and
transmitted to the settlement agent for recording on the HUD-1. The
originator only needs to know his or her approximate average cost
when coming up with a package price that is acceptable. The cost of
tracking the details for each item for each loan is gone.
Appendix VII.F.5. Other Efficiencies
Chapter 3 discusses additional efficiencies of the new GFE. The
lower profitability of seeking out vulnerable borrowers for non-
competitive and abusive loans should lead to a reduction in this
activity. If the decline in
[[Page 14120]]
this activity represented one percent of current originator effort,
this would result in $420 million in savings to firms (see Section
VII.B of Chapter 3 of the RIA).
There are other potential efficiencies that are anticipated from
the new GFE approach but would be difficult to estimate. For
example, studies indicate that one impediment to low-income and
minority homeownership may be uncertainty and fear about the home
buying and lending process. The new GFE approach should increase the
certainty of the lending process and, over time, should reduce the
fears and uncertainties expressed by low-income and minority
families about purchasing a home (see Section VII.F of Chapter 3).
As discussed in Section IV.D.4 of Chapter 2, improvements in lender
information (e.g., interest and settlement costs) should also lend
to a general increase in consumer satisfaction with the process of
taking out a mortgage (see CFI Group, 2003).
Appendix VIII. Costs Associated With Changes to the HUD-1 and the
Closing Script
This section discusses costs on closing agents associated with
the new HUD-1 and the required closing script. Section VIII.A
explains the data and VIII.B the analysis of costs.
Appendix VIII.A. Data on Settlement Service Providers
Section VII.A reproduced background data on the retail mortgage
origination industries. Since the GFE affects settlement service
providers as well as retail mortgage originators, this section
recapitulates data from Chapter 5 of the RIA on the settlement
services industries. Readers are referred to Section IV of Chapter 5
for a more detailed treatment of the data.
Table A-10 provides the total number of firms, the number of
small employer firms, the number of nonemployer firms, and the
percent of small firms (employer and nonemployer) in industries that
provide settlement services (see Chapter 5 for details on the
classification of small employer firms in these industries). These
constitute all of the firms in these industries in 2004, according
to the Census Bureau. As discussed below, for Offices of Lawyers,
Other Activities Related to Real Estate (Escrow), Surveying &
Mapping Services, Extermination & Pest Control Services, and Credit
Bureaus, the figures in Table A-10 almost certainly overstate the
number of firms actually participating in residential real estate
settlements.\79\
---------------------------------------------------------------------------
\79\ As shown by the fourth column, practically all firms
qualify as small businesses. This is partially due to the large
number of non-employer firms (which automatically qualify as a small
business) included in the Bureau of Census data. See Chapter 5 for
further discussion of this issue and for small business percentages
for employer firms only. Also note that while the number of firms is
drawn from year 2004 data, the small business percentages are based
on 2002 data from the Bureau of Census; while they are estimates,
they are probably highly accurate ones. Also see Chapter 5 for the
source of the small business percentages and for alternative, year-
2002-based small business percentages based on firms with less than
100 employees.
Table A-10.--Firms in Industries Providing Settlement Services
----------------------------------------------------------------------------------------------------------------
Small employer Nonemployer Percent small
Industry Total firms firms firms firms
----------------------------------------------------------------------------------------------------------------
Direct Title Insurance Carriers................. 2,094 1,865 135 95.5%
Title Abstract and Settlement Offices........... 14,211 7,889 6,203 99.2
Offices of Lawyers.............................. 401,553 165,127 234,849 99.6
Other Activities Related to Real Estate (Escrow) 463,545 15,119 448,409 99.996
Offices of Real Estate Appraisers............... 65,491 15,656 49,802 99.9
Surveying & Mapping Services.................... 18,224 8,990 9,196 99.8
Extermination & Pest Control Services........... 18,000 10,018 7,935 99.7
Credit Bureaus.................................. 1,285 710 545 97.7
---------------------------------------------------------------
Total....................................... 984,403 225,374 757,074 99.8
----------------------------------------------------------------------------------------------------------------
Source: Census Bureau.
Table A-11 provides the total number of employees in employer
firms, and the number and percent of employees in small employer
firms for each of the settlement services industries.\80\ The Census
Bureau does not count owners of employer and non-employer firms as
employees. The number of ``workers'' in these industries is
understated by the number of employees as defined by the Census
Bureau because in a nonemployer firm the owner is a production
worker as is likely also true for the owner of a small employer
firm. Using the Census Bureau's count of employees for computing the
compliance burden of a rule may tend to understate the burden.\81\
Thus in computing the number of workers in these industries, one
worker is added for each small employer firm and each nonemployer
firm to the total number of employees (see Table A-13 below for
these results).
---------------------------------------------------------------------------
\80\ The ``Total Employees'' data in Table A-11 are for the year
2004. The ``Employees in Small Employer Firms'' data are obtained by
multiplying the total employee data for 2004 by the percentage of
employees in SBA-defined small firms obtained from 2002 Bureau of
Census data; thus, the small employee data are estimates but
probably highly accurate ones. See Chapter 5 for discussion of the
2002 small business percentages.
\81\ For example, if worker training were required by the rule,
and burden estimates were based on Census Bureau employee
statistics, the compliance burden for nonemployer firms would be
estimated at zero, while clearly at least one ``worker,'' the owner,
would require the training.
Table A-11.--Employees In Industries Providing Settlement Services
----------------------------------------------------------------------------------------------------------------
Total Employees in Percent
Industry employees in small employer employed by
employer firms firms small firms
----------------------------------------------------------------------------------------------------------------
Direct Title Insurance Carriers................................. 75,702 7,144 9.4%
Title Abstract and Settlement Offices........................... 79,819 47,913 60.0
Offices of Lawyers.............................................. 1,122,723 657,749 58.6
Other Activities Related to Real Estate (Escrow)................ 67,274 40,074 59.6
Offices of Real Estate Appraisers............................... 45,021 37,300 82.8
Surveying & Mapping Services.................................... 61,623 53,610 87.0
Extermination & Pest Control Services........................... 95,437 55,565 58.2
Credit Bureaus.................................................. 25,555 5,135 20.1
-----------------------------------------------
[[Page 14121]]
Total....................................................... 1,573,154 904,490 57.5
----------------------------------------------------------------------------------------------------------------
Source: Census Bureau (note: non-employer firms not included).
Table A-12 provides information on the volume of settlements for
various industries that participate in the settlement process and
the number and percent handled by small firms within each
industry.\82\ Note that while the distribution among Direct Title
Insurance Carriers, Title Abstract and Settlement Offices, Offices
of Lawyers, Lawyers and Escrow, Offices of Real Estate Appraisers,
and Credit Bureaus is based on all settlements, the numbers and
percentages for the other industries (Surveying & Mapping Services
and Extermination & Pest Control Services) represent the proportion
of settlements in which they are involved.\83\ The allocation is
based upon estimated dollar revenues from settlements for these
industries.\84\ Totals are estimated based on the number of mortgage
originations, 12,500,000 that would occur in a ``normal'' year of
mortgage originations (i.e., not in a year with a refinancing boom).
---------------------------------------------------------------------------
\82\ The small business percentages in Table A-12 are the shares
of revenue accounted for by small business, as reported and
explained in Chapter 5--in other words, the small business share of
revenues is being used here as a proxy for the small business share
of settlements (or mortgage loans). There are two other points that
should be made about these data. (1) Figures for Offices of Lawyers
and Other Activities Related to Real Estate (Escrow) are combined
into the new ``Lawyers and Escrow'' category. This is because there
is insufficient information to allocate volumes of settlements
between these two industries (see Section IV.B.5 of Chapter 5 for
further explanation). As explained in Chapter 5, the small business
revenue share for the combined ``Lawyers and Escrow'' category is
raised to 90% (versus 47.8% for all lawyers and 86.9% for escrow
firms based on 2002 Census Bureau revenue data) under the assumption
that lawyer and escrow firms engaged in real estate activity are
likely to be the smaller firms operating in these industries. Note
that in Table A-13 below, the 90% figure is also used for the share
of employees in small firms in this combined industry. (2) As
explained in Section IV.B.4 of Chapter 5, there are probably no
small businesses in the Direct Title Insurance Carriers (DTIC)
industry, which includes the large title insurance firms. The 4.8%
figure in Table A-12 (as well as the 9.4% figure in Table A-11) is
reported to remain consistent with the Bureau of Census data--
including it or excluding it does not affect the results in any
significant way.
\83\ See Step (9) in VII.E.1 of Chapter 3 for the calculation of
the proportion of settlements for Surveying & Mapping Services and
Extermination & Pest Control Services. Because of their relatively
small shares of the overall mortgage business, different shares for
these industries would not materially affect the overall small
business shares of revenue. While it is recognized that the other
industries may not be involved in every mortgage origination and
settlement transactions (e.g., an appraisal may not be required for
some mortgage originations), they are certainly involved in most
such transactions and, therefore, it is assumed here that they are
involved in all transactions.
\84\ As explained in Chapter 5, there is also some uncertainty
about the distribution of mortgage-related business and revenues
among the various title-related industries. Table A-12 assumes the
following distribution: Direct Title Insurance Carriers (43.0%),
Title Abstract and Settlement Offices (38.0%), and Lawyer and Escrow
(19.0%). Section IV.B.5 of Chapter 5 considers other distributions
and suggests the following ranges for the specific industry shares:
Direct Title Insurance Carriers (35%-50%), Title Abstract and
Settlement Offices (29%-43%), and Lawyer and Escrow (17%-29%). Given
limited available information, it is difficult to determine a
precise estimate, which is why Chapter 5 includes several
sensitivity analyses. But obviously, reducing the relative weight of
the DTIC or increasing the relative weight of the lawyer-escrow
industry would increase the small business share of settlements.
Readers are referred to Section IV of Chapter 5 for a more complete
analysis of the relative importance of each title-related industry,
particularly as it affects the overall small business percentage for
title- and settlement-related work.
Table A-12.--Volume of Settlement Service Activity
----------------------------------------------------------------------------------------------------------------
Percent
All Percent of Settlements by industry
Industry settlements settlements small firms settlements by
small firms
----------------------------------------------------------------------------------------------------------------
Direct Title Insurance Carriers................. 5,375,000 43.00% 258,000 4.80%
Title Abstract and Settlement Offices........... 4,749,953 38.00 2,365,476 49.80
Lawyers and Escrow.............................. 2,375,048 19.00 2,137,543 90.00
---------------------------------------------------------------
Total Settlements........................... 12,500,000 100.00 4,761,019 38.09
----------------------------------------------------------------------------------------------------------------
Offices of Real Estate Appraisers............... 12,500,000 100.00 10,387,500 83.10
Surveying & Mapping Services.................... 3,600,000 28.80 2,926,800 81.30
Extermination & Pest Control Services........... 5,500,000 44.00 2,964,500 53.90
Credit Bureaus.................................. 12,500,000 100.00 1,312,500 10.50
----------------------------------------------------------------------------------------------------------------
A larger volume of mortgage activity can also be examined, for
example, to reflect a ``refinance environment''.\85\ In this case,
the volume of settlement activity would be distributed as follows:
6,665,000 for Direct Title Insurance Carriers, 5,889,941 for Title
Abstract and Settlement Offices, 2,945,059 for Lawyers and Escrow,
4,464,000 for Surveying & Mapping Services, 6,820,000 for
Extermination & Pest Control Services, and 15,500,000 for both
Offices of Real Estate Appraisers and Credit Bureaus.\86\
---------------------------------------------------------------------------
\85\ In the projection given in the text, home purchase loans
were assumed to stay the same (7.5 million, or 60% of the 12.5
million in mortgages), while refinances increased from 5 million (or
40% of the 12.5 million mortgages) to 8 million of the 15.5 million
total (home purchases remain at 7.5 million).
\86\ The settlement volume for small businesses during a high
volume year can be obtained using the small business percentages
from Table A-12, giving: 319,920 for Direct Title Insurance
Carriers, 2,933,191 for Title Abstract and Settlement Offices,
2,650,553 for Lawyers and Escrow, 3,629,232 for Surveying & Mapping
Services, 3,675,980 for Extermination & Pest Control Services,
12,880,500 for Offices of Real Estate Appraisers, and 1,627,500 for
Credit Bureaus.
---------------------------------------------------------------------------
The employee figures reported in Table A-11 misstate the number
of workers actually participating in residential real estate
settlements. This section offers some estimates of that figure,
although it is recognized that they are subject to some uncertainty
given the limited information that is available. Table A-13 provides
one estimate of the total number of workers and the number and
percent of workers in small firms engaged in performing settlements
by industry. For Title Abstract and Settlement Offices and the
combined Lawyers and Escrow industry, it is based on the volumes of
settlement activity depicted in Table A-12
[[Page 14122]]
and the productivity level of Title Abstract and Settlement Offices
(i.e., settlements per worker).
The figure for total workers in Title Abstract and Settlement
Offices is the sum of: all employees (79,819), small firms (7,889),
and nonemployer firms (6,203), or 93,911. (Small firms and
nonemployer firms are added to count the owners of those firms as
production workers as discussed in the description of Table A-11
above). The corresponding figure for workers in small firms is the
sum of: Employees of small firms (47,913), small firms (7,889), and
nonemployer firms (6,203), or 62,005 workers (representing 66% of
all workers in Title Abstract and Settlement Offices). These figures
are reported in Table A-13 below. In this industry, there are 50.6
settlements per worker (obtained by dividing the 4,749,953
settlements from Table A-12 by the 93,911 workers).\87\
---------------------------------------------------------------------------
\87\ There are two caveats with this estimate. First, the
estimate depends on the number of settlements in the Title Abstract
and Settlement industry, which, as discussed in an earlier footnote,
could differ from the number reported in Table A-12 (see Section
IV.B.5 of Chapter 5 as well as the earlier footnote for possible
ranges of estimates). Second, not all workers in the Title Abstract
and Settlement industry are engaged in single-family real estate
transactions, which means that the number of workers is overstated
and therefore the number of settlements per worker is understated.
(Unfortunately, there is no information on the proportion of Title
and Abstract workers engaged in single-family mortgage activity,
although it is likely that most are.) If the number of settlements
per worker is too low, the projection will overstate the number of
workers needed.
---------------------------------------------------------------------------
In the combined Lawyers and Escrow industry group, worker
productivity is assumed to be half of that in Title Abstract and
Settlement Offices on the grounds that these workers may not do
settlements full time and because of the general lack of information
on the degree of settlement activity in these broadly defined
industries. Thus, the number of workers in this category (93,914) is
computed by dividing the number of settlements handled by the
industry from Table A-12 divided by one-half the settlements per
worker in the Title Abstract and Settlement Offices industry.
For Direct Title Insurance Carriers, many workers are not
engaged in actual settlements, but rather in the title insurance
function itself. Direct Title Insurance Carriers provide title
insurance through agents as well as both direct sales of title
insurance and associated settlement services to consumers through
branch offices. They also, of course, perform the title insurance
function itself. HUD examined the annual reports of the large direct
title insurance carrier companies to attempt to estimate the
proportion of employees of these companies engaged in providing
settlement services. It is estimated that approximately 70 percent
of workers in this industry, or 54,391 workers, are engaged in
providing settlement services. (See Table A-13).\88\
---------------------------------------------------------------------------
\88\ In 2004, the DTIC industry employed 77,702 workers (based
on the definition of worker used in the text). HUD estimates that
approximately 70 percent, or 54,391, are engaged in providing
settlement services. HUD computed an estimate of the proportion of
salaries that large title insurance companies paid to workers
engaged in settlement services as follows: (1) The amount of revenue
required to carry out the insurance function for policies written by
agents was computed as the difference between agent-generated
revenue and agent commissions (or agent retention expenses); (2) two
percentages were then calculated, (a) the percentage of agent-
generated revenue required for the insurance function in agent-
written policies as (1) divided by total agent-generated revenue,
(b) the percent of all insurance revenue required for the insurance
function for agent-written policies as (1) divided by total
insurance revenue; (3) the salaries for employees providing the
insurance function for agent-written policies was computed by
multiplying (2)(b) by total salary expenses; (4) the total salaries
for employees engaged in direct sales of insurance (including other
settlement services) and providing the insurance function for
direct-sales policies was computed by subtracting (3) from total
salary expenses; (5) the salaries of employees providing the
insurance function for direct-sales policies was computed by
multiplying (2)(a) by (4); (6) the salaries of employees selling
title insurance directly (and providing other settlement services)
was computed by subtracting (5) from (4); finally (7) the percent of
salaries paid to employees selling title insurance directly (and
providing other settlement services) was computed by dividing (6) by
total salary expenses. This analysis was carried out using 2005 data
from the annual reports of four title insurance companies (First
America, Land America, Fidelity National, and Stewart). The
percentage computed in (7) ranged from 67.7 percent to 72.8 percent.
Based on these results, HUD assumes that 70 percent of DTIC workers
are engaged in providing direct title insurance sales and other
settlement services.
Table A-13.--Workers Engaged Performing Settlements
----------------------------------------------------------------------------------------------------------------
Percent of
Industry Total workers Workers in workers in
small firms small firms
----------------------------------------------------------------------------------------------------------------
Direct Title Insurance Carriers................................. 54,391 6,401 11.77%
Title Abstract and Settlement Offices........................... 93,911 62,005 66.03
Lawyers and Escrow.............................................. 93,914 84,523 90.00
-----------------------------------------------
Total....................................................... 242,217 152,929 63.14
----------------------------------------------------------------------------------------------------------------
The estimated numbers of title and settlement workers would be
larger under market conditions producing a larger volume of mortgage
activity. The estimated distribution of settlements when overall
mortgage volume is 115,500,000 was given earlier. To adjust the
worker estimates in Table A-13 to reflect the higher mortgage volume
requires information about the increase in productivity (i.e., loans
per worker) during the higher volume (or heavy refinance)
environment. It is not correct to simply adjust the number of
workers up by the percentage increase in mortgage loans because the
number of loans per worker increases during refinance booms. The
earlier analysis of brokers and lenders provided estimates of
additional workers in a higher volume market. That analysis was
based heavily on trend data through 2002 for the number of workers
in the broker industry, as reported by David Olson and his firm,
Wholesale Access. The number of loans per broker increased between
low and high volume years. Similar trend data do not exist showing
the number of title and settlement workers during recent refinance
booms. Thus, any adjustment would be somewhat speculative. But it is
also important to emphasize that workers hired during high-volume
years, for example, are more likely to be temporary or part-time
workers. Temporary workers will likely rely on permanent workers for
training or information about new rules and regulations. Thus, the
numbers in Table A-13 providing estimates of workers in the title
and settlement industry serve as a reasonable basis for analyzing
the effects of the new regulation among the various settlement and
title industries, recognizing that the numbers could vary somewhat
depending on the volume of mortgages considered in the analysis.
Estimates of the number of single-family-mortgage-related
workers in Surveying & Mapping Services, Extermination & Pest
Control Services, and Credit Bureaus are not included because there
are insufficient data upon which to base an estimate. Mortgage-
related work accounts for a relatively small portion of the overall
activity of these industries, and information is not available to
separate single-family-mortgage-related business from other
activity. In addition, data on workers for these industries are not
needed for the analysis of cost savings below. While this
information is also not needed below for the appraisal industry, it
is possible to produce reasonable estimates of workers for this
industry because single-family-mortgage-related work likely accounts
for most of the activity in this industry. Using the methodology
described above (adding employees of employer firms, non-employer
firms, and owners of small firms to arrive at the number of
workers), the appraisal industry in the projection year would
include 110,479 workers, and 102,758 of these work
[[Page 14123]]
in small firms.\89\ While some of these appraisers focus on
multifamily and commercial properties and/or conduct appraisals for
local governments (e.g., estimating the value of properties for tax
purposes), most are likely involved in single-family mortgage-
related activities.\90\
---------------------------------------------------------------------------
\89\ The total number of workers is derived as follows: 45,021
employees in employer firms (from Table A-11) plus 49,802 non-
employer firms (from Table A-10) plus 15,656 owners of small firms
(from Table A-10), which yield 110,479 workers. The number of
workers in small businesses is derived as follows: 37,300 employees
in small employer firms (from Table A-11) plus 49,802 non-employer
firms (from Table A-10) plus 15,656 owners of small firms (from
Table A-10), which yields 102,758 workers in small businesses.
\90\ One would think that practically all of the owners of the
49,802 non-employed firms appraised single-family properties, as
well as most of the 37,300 employees in small employer firms. One
could argue that the number of workers for the entire industry in
2004 is a upper bound since mortgage activity in that year was
higher than in the projection year. Additionally, automated
valuation models (AVMs) may have reduced the demand for appraisers;
particularly on refinance loans (see Section V.A of Chapter 5 for a
discussion of AVMs).
---------------------------------------------------------------------------
Appendix VIII.A. One-Time Costs of the New HUD-1 and Closing Script
Addendum
Appendix VIII.A.1 Introduction
The proposed HUD-1 is simpler than the existing HUD-1.
Nevertheless, there will be change in the form, including the
introduction of the closing script addendum, and the settlement
industry will need to learn how the proposed form works. The primary
focus will be on how to put the numbers in the right place. The
service charge and the charge or credit for the interest rate chosen
will be placed outside the columns in the HUD-1 while the adjusted
origination charge will be in the columns, borrower or seller, or
listed as POC. This is to avoid double counting that the settlement
agent would certainly want to avoid in order that would lead to
erroneous totals. For third-party fees selected by the lender
located in section 3 of the proposed GFE, the individual entries
rather than the subtotals will be entered in the columns or as POCs
and the subtotals will not be reported as such. The same is true of
the third-party fees selected by the borrower located in section 5
of the proposed GFE. The individual entries are entered because they
can wind up in different series of the HUD-1 and subtotals would be
difficult to reconcile. The rest of the proposed GFE fees go in the
columns or as POCs. The settlement agent must be aware for each GFE
item listed on the HUD-1 that totals from the HUD-1 must include
figures from both the borrower column and the seller column, as well
as any figure listed as POC.
The required script will represent a more significant change for
the industry than the new HUD-1. Although some training may be
required, it is not likely to be substantial since settlement agents
are already very familiar with what information to provide at a
closing. The script simply standardizes the explanation of the loan
terms and any differences between the settlement charges on the GFE
and HUD-1. The burden of the script is more likely to be felt on
software developers.
The costs can be categorized similarly as for the new GFE:
Software costs (including training), legal consultation costs, and
training costs. The total one-time compliance cost to the industry
is $169 million, of which $110 million is borne by small business.
Appendix VIII.A.2 Software Costs
Developers of settlement software and settlement agents will be
subject to software costs. They will face the following two changes:
A reorganization of the HUD-1 form and the requirement of a closing
script explaining the crosswalk between the GFE and the final HUD-1.
The changes to the HUD-1 form would not require much work from
programmers. The only programming to be done is changing the manner
in which information is displayed on the HUD-1 form. First, there
will be fewer fees. Second, references to the corresponding figures
in the GFE would need to be inserted by the software developers.
Including the script would require more effort because it is a
completely new form. The programming itself would not be challenging
since the script only contrasts data from the HUD-1 and the GFE and
shows whether the tolerances are met. The more complex calculations
concerning the loan terms are not required to be done by the
settlement agent but by the lender. Indeed, it is possible that some
producers of loan origination software will begin to feature a
crosswalk application that generates an almost complete script for
the settlement agents to finish. Settlement agents may prefer to put
together the script themselves. There would be a strong demand for
settlement script software given the importance of the script as a
means to double check the final figures. Software would perform the
important task of calculating the difference between the figures on
the initial GFE and the actual settlement costs and then check
whether they are within the tolerances.
We will assume that the costs of software updates and software
training are the same as for the new GFE. Given the number of
workers and the distribution by firm size, the total cost of new
software is $62 million, of which $46 million is borne by small
business. The cost of the changes to software is $14 million (of
which $11 million is borne by small business) and the opportunity
cost of the time spent learning the new software is $48 million (of
which $34 million is borne by small business).
Appendix VIII.A.3. Legal Consultation Costs
Legal consultation will be less involved for the HUD-1 form and
the script than for the new GFE. The only issue that is important
for the settlement industry to understand is that practicing
discounting as well as volume-based discounting is permitted.
However, settlement firms may require additional legal consultation
to be on the safe side. We make the same assumptions as for the GFE:
All firms purchase a minimum of two hours of legal consultation at a
cost of $200 an hour and that additional legal service are demanded
on the basis of the volume of business. We estimate that the total
legal costs to the settlement industry will be $37 million of which
$18 million is borne by small business. The cost of legal fees is
lower for the HUD-1 form than for the GFE because there are less
firms involved in settlement than in mortgage origination.
Appendix VIII.A.4. Training Costs
Workers who perform settlements will only need to learn how to
fill out the simplified HUD-1 form and the closing script. The
quantities are provided to settlement agents by the GFE, so training
will be much less involved. Assuming four hours of training at an
opportunity cost of $72.12 per hour (based on a $150,000 fully-
loaded annual salary); tuition of $250 per worker for small firms
and a discounted tuition of $125 per worker for large firms; and
that half of the workers in small firms and one quarter of the
workers in large firms require training; then the total cost of
training is $71 million, of which $62 million is borne by small
business.
Appendix VIII.B. Recurring Costs of the New HUD-1 and the Closing
Script Addendum
There are no increased recurring costs associated with the
proposed HUD-1. The proposed HUD-1 will very likely have fewer
entries than the existing HUD-1 which will require fewer
explanations of figures than is true with the existing forms. This
is because of the combined subtotals presented in many sections in
the proposed GFE in lieu of the frequently numerous broken out
individual fees that we see on the GFE. The same is true when
comparing the proposed HUD-1 to the existing HUD-1. Comparing the
proposed GFE to the Proposed HUD-1 should be simpler than in the
past because it will be much easier to find entries on the proposed
HUD-1 that correspond to the proposed GFE because they have the
exact same description. And, of course, there are fewer entries to
deal with. It is hard to imagine how simpler forms could be more
costly to explain to borrowers.
There will be recurring costs from the HUD-1 addendum. The
closing script will serve the purpose of a crosswalk between the
HUD-1 form and page 2 of the GFE. Requiring the script would
standardize the explanation of the HUD-1 form. One could reasonably
assume that the script would impose no additional burden on the
typical conscientious settlement agent. Although there is currently
no standard procedure for a settlement, most settlement agents are
conscientious so that reviewing the terms of the loan and settlement
costs with the borrower is standard practice. In the occasional case
of the hasty or careless settlement agent today, the borrower is
likely to ask for an explanation of the correspondence between the
GFE form (issued at the time of shopping) and the HUD-1 form (issued
at closing). However, a detailed description of the loan and closing
costs is not compulsory. Requiring that a script be read will impose
a cost on those settlement agents who do not automatically explain
all costs of the loan at closing. Thus, rather than assuming that a
script would be neutral in its impact on the settlement industry, we
will account for the possibility of positive compliance costs.
[[Page 14124]]
A mandatory script could impose a cost on a settlement agent by
increasing the time required to perform a settlement. A cost will
arise only when a scripted settlement takes longer than the current
unscripted one. First, agents would be obliged to complete the
script, which would consist of collecting the data (approximately
twenty on the loan terms, depending on the loan and a comparison of
approximately fifteen settlement charges from both the GFE and HUD-
1), fill in the blanks on the script, determine the tolerances for
the fees, and check that the figures on the HUD-1 are within the
tolerances of those from the GFE. An experienced settlement agent
who is organized might be able to do this work in fifteen minutes.
Even inexperienced agents would not need to spend much time when
assisted by software. There may be the occasional loan, which is
especially difficult because the loan terms are complex and because
the settlement agent would like to double-check the complicated
calculations made by the lender. Such loans may require thirty
minutes to complete the script. We will assume the worst case
scenario and that preparing a script requires thirty more minutes on
average than if there were no script. Second, reading the script
would take five minutes longer on average than if there were no
formal procedures for explaining the HUD-1 form. For the agent who
currently reviews the HUD-1 form with the borrower requiring a
review will not constitute an additional burden. Third, we assume
that the net effect on time spent discussing borrowers' questions is
an additional ten minutes for the average loan.\91\ The script may
induce questions on some issues but it is also expected that a
methodical explanation will obviate the need for others. For simple
loans, the net effect is expected to be nil. In the case of more
complex loans, clarifying the terms of the loan is expected to add
from five to ten minutes. We use an average of ten minutes across
all loans.
---------------------------------------------------------------------------
\91\ Although it is not appropriate to count this additional
time answering questions as a burden for the Paperwork Reduction Act
because conveying this information is a standard business practice,
it is counted as a potential cost in the Economic Analysis because
the additional time that settlement agents may need to spend
answering questions generated by the script will reduce the time
that settlement agents could spend doing something else.
---------------------------------------------------------------------------
In total, the script could lead to an additional forty-five
minutes spent on the average settlement. The opportunity cost of
that time to the settlement firm would be $54 ($72 per hour, which
is derived from a $150,000 fully loaded salary). The total cost of
the script in a normal year (12.5 million originations) would be
$676 million and $838 million in a high volume year (15.5 million
originations).\92\ We assume that 38.1 percent of the closings are
done by small business (see Table A-12) so that the recurring cost
on small business would be $258 million in a normal year and $319
million in a high volume year. It is possible that the time added by
the script is an overestimate. If the required script led to an
additional thirty minutes spent on a settlement (twenty minutes
preparing the script, five minutes reading it, and five minutes
answering questions), then it would cost the industry $36 per
closing, totaling $451 million in a normal year and $559 million in
a high volume year.
---------------------------------------------------------------------------
\92\ As for the GFE, an alternative method could be used to
generate an estimate of the opportunity cost of time spent on a
script. Instead of assuming a $72.12 opportunity cost (from a
$150,000 fully-loaded salary), one could construct a cost estimate
from industry-specific data. For example in Tucson, Arizona, the
cost of labor (compensation and benefits) of a Real Estate Clerk is
$16.66 per hour and $74.61 per hour for a Real Estate Attorney. If
the Real Estate Clerk spends an additional twenty-five minutes
preparing for a settlement due to the script and the Real Estate
Attorney spends an additional twenty minutes reading and reviewing
the script; and if we include office rent at 34 cents a minute and
computer equipment at 7 cents a minute both for forty-five minutes,
then the burden of the script would be $32.12 per closing or a total
$401 million in a normal year or $497 million in a high-volume year.
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We do not include the additional ten minutes spent by the
borrower at the settlement as a cost to the borrower because it is
expected that the script is more likely to reduce the time spent by
the borrower trying to determine whether the fees of their HUD-1s
(issued at time of shopping) were in accord with the fees on the GFE
and the tolerances. In addition, a borrower may be less likely to
ask to be accompanied by someone to help them translate the
crosswalk. Indeed, it is possible that the extra time spent by
settlement agents is more than outweighed by the time saved by
borrowers.
The benefits of the script are not estimated separately from the
benefits of the new GFE ($6.48-$8.38 billion, see Section I.B of
Chapter 3). It is assumed that the script reinforces the consumer
savings of the new GFE by compelling settlement agents and borrower
to check the compliance with the tolerances. The script is a vital
part of the new GFE. Requiring is expected to increase the number of
consumers who realize the full benefits of the proposed rule.\93\
The benefit of the script is to double-check the final figures.
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\93\ Given our estimated compliance cost, the benefits of the
script ($518-$670 per loan) would outweigh the costs as long as the
absence of a standardized script would decrease the probability of
realizing those consumer benefits by a few percentage points (8.1
for our higher estimate of the benefits and 10.4 for the more
conservative estimate).
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Appendix IX References
America's Community Bankers. 2002. Comments from America's
Community Bankers regarding ``Proposed Rule on Real Estate
Settlement Procedures Act (RESPA); Simplifying and Improving the
Process of Obtaining Mortgages to Reduce Settlement Costs to
Consumers, Docket No. FR-4727-P-01; 67 FR 49134-49174 (July 29,
2002),'' October 28, 2002.
Consumer Mortgage Coalition to United States Senate. Hearing on
the Impact of the Proposed Real Estate Settlement Procedures Act
Rule on Small Business and Consumers. Committee on Banking. (18
April 2003).
Jackson, Howell E., and Jeremy Berry. 2002. ``Kickbacks or
Compensation: The Case of Yield Spread Premiums.'' Unpublished
Paper, pp. 1-52.
Mortgage Bankers Association of America. 2003. ``RESPA Interest
Rate Working Group Report.'' Comments regarding ``Proposed Rule on
Real Estate Settlement Procedures Act (RESPA); Simplifying and
Improving the Process of Obtaining Mortgages to Reduce Settlement
Costs to Consumers, Docket No. FR-4727-P-01; 67 FR 49134-49174 (July
29, 2002),'' October 28, 2002.
Sadow, Eric S. 2002. Comments from the Associate General
Counsel, Bank of America Corporation regarding ``Proposed Rule on
Real Estate Settlement Procedures Act (RESPA); Simplifying and
Improving the Process of Obtaining Mortgages to Reduce Settlement
Costs to Consumers, Docket No. FR-4727-P-01; 67 FR 49134-49174 (July
29, 2002),'' October 25, 2002.
Urban Institute. Descriptive Analysis of FHA Loan Closing Costs,
Prepared for Department of Housing and Urban Development for
internal use only by Signe-Mary McKernan, Doug Wissoker, and William
Margrabe. May 9, 2007a.
Urban Institute. A Study of Closing Costs for FHA Mortgages,
Prepared for Department of Housing and Urban Development Office of
Policy Development and Research by Susan Woodward. November 29,
2007b.
[FR Doc. 08-1015 Filed 3-13-08; 8:45 am]
BILLING CODE 4210-67-P