A lot of factors need to be clearly understood regarding the application, and certainly in just considering Regulation B, you need to know the requirements. Definition of an application, what you do before you have an application, and what you do after you have an application all matter. Other laws and regulations have different definitions of an application, so the waters can get murky without appropriate knowledge and training.

According to Regulation B, an application is an oral or written request for an extension of credit that is made in accordance with a creditor’s procedures used for the type of credit requested. Consumers will often inquire about loan terms. When is an inquiry not an application? An inquiry is not an application when:

A consumer calls to ask about loan terms and an employee explains the creditor’s basic loan terms, such as interest rates, loan-to-value ratio, and debt-to-income ratio.

A consumer asks about terms for a loan to purchase a home and tells the loan officer her income and intended downpayment, but the loan officer only explains the creditor’s loan-to-value ratio policy and other basic lending policies, without telling the consumer whether she qualifies for the loan.

A consumer calls to ask about terms for a loan to purchase vacant land and states his income and the sales price of the property to be financed, and asks whether he qualifies for a loan; the employee responds by describing the general lending policies, explaining that he would need to look at all of the consumer’s qualifications before making a decision, and offering to send an application form to the consumer.

Here’s an example of an application: A consumer asks you, the mortgage lender, to “preapprove” her for a loan to finance a home purchase and you review the request under a program in which your institution, after a comprehensive analysis of her creditworthiness, you issue a written commitment valid for a designated period of time to extend a loan up to a specified amount. The written commitment may not be subject to conditions other than conditions that require the identification of adequate collateral, conditions that require no material change in the applicant’s financial condition or creditworthiness prior to funding the loan, and limited conditions that are not related to the financial condition or creditworthiness of the applicant that your institution ordinarily attaches to a traditional application, such as certification of a clear termite inspection for a home purchase loan.

It’s also important to know the meaning of a completed application because notification requirements hinge on this. A completed application is an application in connection with which a creditor has received all the information that the creditor regularly obtains and considers in evaluating applications for the amount and type of credit requested. This may include, but is not limited to, credit reports, any additional information requested from the applicant, and any approvals or reports by governmental agencies or other persons that are necessary to guarantee, insure, or provide security for the credit or collateral. As a lender, you need to exercise reasonable diligence in obtaining such information. For example, you should request information from third parties, such as a credit report, promptly after receiving the application. If additional information is needed from the applicant, such as an address or a telephone number to verify employment, you should contact the applicant promptly. Continue to grow in your compliance career by gaining knowledge, experience what you’re learning, and receive coaching or mentoring. One regulation at a time.

Around the Industry:

Happening Now

The OCC recently issued Bulletin 2019-43 to remind banks that engage appraisal management companies (AMCs) of the new registration requirement for AMCs that became effective on August 10, 2019. Under this requirement, AMCs must register with the state or states in which they do business and must be subject to state supervision. Federal law bars AMCs from providing appraisal management services to financial institutions for consumer credit transactions secured by a consumer’s principal dwelling that are federally related transactions if the AMCs are not registered as required. The bulletin discusses considerations for banks with regard to confirming AMC registration as part of sound third-party risk management and suggests alternatives that banks can use when no registered AMCs are available. The OCC’s rules on banks’ use of AMCs can be found in 12 CFR 34, subpart H. The same requirements are included in the Federal Reserve Board’s Regulation H, subpart E, and the FDIC’s requirements are found in 12 CFR 323 subpart B.

Your marketing team excitedly presents their new social media campaigns; they’ve carefully thought through demographics, brand consistency and their budget—everything looks great! Then, like the proverbial needle screeching across a record, compliance walks in the room. Now what? This article suggests several ways you can stand out from your competitors, while minimizing the risk of litigation arising from deceptive marketing or implied discrimination.
 
Compliance concerns
In addition to state laws governing mortgage advertising, at least two federal regulatory agencies prosecute mortgage lenders for deceptive advertising. According to the Consumer Financial Protection Bureau (CFPB), most violations fall into four categories: 

►Potential misrepresentations about government affiliation: For example, ads containing official-looking seals or logos, or having other characteristics that may be interpreted by consumers as indicating a government affiliation.
►Potentially inaccurate information about interest rates: For example, ads promoting low rates that may mislead consumers about the terms of the product actually offered, or advertising rates that are not generally available.
►Potentially misleading statements concerning the costs of reverse mortgages: For example, ads for reverse mortgage products claiming that a consumer will have no payments in connection with the product, even though consumers with a reverse mortgage are commonly required to continue to make monthly or other periodic tax or insurance payments, and may risk default if the payments aren’t made.
►Potential misrepresentations about the amount of cash or credit available to a consumer: For example, ads containing a mock check and/or suggesting that a consumer has been pre-approved to receive a certain amount of money in connection with refinancing their mortgage or taking out a reverse mortgage, when a number of additional steps would customarily need to be completed before the consumer would qualify for the loan.

Ballard-Spahr LLP has a good list of additional examples of deceptive ads:
►Suggesting with a VA loan, that the rate being offered was part of an “economic stimulus plan” that will expire shortly
►Potential inaccurate information about interest rates, such as indicating a “fixed” rate for a variable rate loan
►Potential misrepresentations that the consumer is pre-approved for or guaranteed specific rates or terms
►Advertisements offering a very low “fixed” mortgage rate, without discussing significant loan terms
►Advertisements containing statements, images, symbols, and abbreviations suggesting that an advertiser is affiliated with a government agency
►Advertisements “guaranteeing” approval and offering very low monthly payments, without discussing significant conditions on these offers

Standing out on social media
Given the risk of bad messaging, social media advertising may feel like losing control–especially since most social media sites allow the public to comment then share their comments. What if someone puts non-compliant information into a comment or says you improperly denied them a loan? Fortunately, you can start with social media accounts that allow you to control comments on your posts. Here are some tips for controlling content and comments on popular social media sites.

Facebook
You can maintain control on Facebook by turning off comments for your posts. On the screen where you add a caption or location to your post, tap “Advanced Settings,” then tap “Turn Off Commenting.” This allows you to post your messages and allows other users to share them, while controlling the content seen on your page. If you have a large enough team, you can also make a team member your Facebook monitor with responsibility for hiding or deleting non-compliant comments. Take care with this approach—if people think you are deleting all negative feedback, they may just post more of it. We suggest you have a clear policy on your page that tells consumers what you delete, “We reserve the right to hide comments that may violate mortgage lending advertising laws” plus a short description of what that means, “Posts which include actual rates offered, posts that include incorrect information about the loans we offer …”

LinkedIn
Like Facebook, LinkedIn allows you to disable commenting on your posts so you can ease into your social media presence. It’s often the first social platform a firm tries since you can also control most elements of your firm’s page—including colors and company information. LinkedIn allows your loan officers to connect themselves to your company page which gives borrowers an easy way to learn more about your team.

Pro tips
►You can set up more than one page on LinkedIn–this is helpful if you run campaigns for different types of borrowers. For example, a credit union may offer both purchase and refinance loans. By creating Showcase pages, the credit union can tailor messages, information and links to those two types of borrower.
►Ask your employees to use a common picture or logo for their header so borrowers experience the same “look and feel” as they navigate between your company page, showcase pages and team member profiles.
►Make sure all pictures look professional and backgrounds are in line with your brand guidelines. While some loan officers may think that picture of their dog water-skiing is great, you should encourage them to change it to a professional headshot or your logo.
►Help your team understand what they can freely post on LinkedIn, what is inappropriate for your brand and what needs compliance approval. For example, linking to articles in industry magazines is probably fine, posting about personal activities may be inappropriate and sharing borrower pictures or stories may need compliance approval.

Instagram
Instagram also allows you to disable commenting on your posts and is increasingly preferred by Millennials and Gen Z over Facebook. All of the guidelines and tips for LinkedIn apply to Instagram.

Twitter
Many lenders take a pass on Twitter because you cannot prevent comments or delete them. Twitter’s business model of openness and free speech is a great fit for other consumer product companies, but may not be a good fit for lenders who need to comply with strict communication guidelines.

Emerging sites
Sites catering to building communities are growing, especially in urban areas. Let’s look at one example, Nextdoor.com. Nextdoor is like Facebook for almost 200,000 U.S., U.K. and Netherlands’ neighborhoods, (up from 100,000 in 2016). Users turn to the site to share information about crime, list items for sale, and get recommendations. Nextdoor includes a real estate section with features similar to Realtor.com or Zillow – users can look at homes for sale in their area or another neighborhood and see ads for service providers including mortgage lenders. You can control your content, showcase and add content by claiming your business page on the site. Then you can update your business information and start participating in the community. You can also create advertisements and campaigns, for which you’ll pay a fee. 
Summary
We’ve looked at key compliance communication concerns and thought about ways you can adjust the settings on many social media sites to control messages to borrowers. Since Facebook, LinkedIn and Instagram may be crowded with your competitors, we explored other online opportunities to reach potential borrowers and target your marketing spend to your licensed states and branch locations. If you are at the beginning of your social media journey, we suggest you engage compliance early, understand each Web site’s control features and think about emerging sites to complement your marketing strategy.

Deborah Hill, VP of customer success and operations at MortgageHippo, has more than 10 years of experience helping financial services customers gain efficiencies through their implementation and use of software. Before joining MortgageHippo, Deborah consulted and held board positions with several early-stage fintech firms.

This article originally appeared in the July 2019 print edition of National Mortgage Professional Magazine.

The Real Estate Settlement Procedures Act (RESPA) was enacted in 1974. Compliance with and rule-writing authority for RESPA was originally assigned to the U.S. Department of Housing and Urban Development (HUD) as its Regulation X; however, in July 2011, rule-writing authority and oversight for Regulation X was transferred to the CFPB. RESPA rules protect consumers by requiring creditors and other providers of residential loan and mortgage settlement services to make certain disclosures to consumers for transactions subject to real estate transaction settlement processes. It also prohibits settlement service providers from conducting or participating in certain acts or practices commensurate with business arrangements for consumer-purpose real estate transactions. RESPA generally does not cover open-end transactions secured by a dwelling if all of the disclosures required by Regulation Z have been provided to the consumer.

Specifically, Section 8 of RESPA addresses the prohibitions on kickbacks and unearned fees in connection with loans covered by RESPA. The rule to follow is very clear: actual work must be performed and documented in exchange for a fee. So, RESPA prohibits unearned fees for services that were never performed. Section 8 is an area to not be taken lightly. Prior to the CFPB assuming control of RESPA, HUD took an active enforcement position, and the CFPB has followed. Penalties for noncompliance can be severe. You may be fined up to $10,000 and imprisoned for up to one year. Should civil liability occur, penalties can amount up to three times the amount of the violation and court proceedings costs. Here are examples of penalties for noncompliance:

In 2015, the CFPB and the Maryland Attorney General took action against Wells Fargo and JPMorgan Chase for an illegal marketing-services-kickback scheme they participated in with Genuine Title, a now-defunct title company. The agencies also took action against a former Wells Fargo employee for their involvement. The combined penalty between the two institutions was $35.7 million.

NewDay Financial LLC was ordered to pay a $2 million penalty illegal kickbacks (and deceptive mortgage advertising). NewDay deceived consumers about a veterans’ organization’s endorsement of NewDay products and participated in a scheme to pay kickbacks for customer referrals, according to the consent order.

Fidelity National Financial is a title company that paid a $4.5 million fine in 2011. They illegally paid kickbacks to brokers for the referral of home loan

Also, in 2011, Prospect Mortgage, LLC, a mortgage lender, was fined $3.1 million for paying improper kickbacks or referral fees to affiliates.

In 2018, the FDIC published its Consumer Compliance Supervisory Highlights where an overview was provided of 2018 examination findings; issues concerning Section 8 of RESPA were included. The FDIC stated that desk rental arrangements were used to hide illegal referral fees. The report noted that “One issue involved institutions that purportedly leased offices or desk space from realtors and home builders, where the amounts paid to realtors and home builders greatly exceeded the fair market value of the rentals. Another issue involved desk rentals that appeared to be sham or subterfuge arrangements to disguise the payment of impermissible mortgage referral fees.” While RESPA does allow lenders to enter into bona fide marketing and advertising agreements with title and settlement providers, these arrangements must be based on fair market value of the advertising and marketing services received. The violation occurs when it is used to conceal the payment of illegal referral fees.

Although RESPA has been around for quite some time and systems are often automated to comply with these requirements, the industry continues to experience Section 8 problems. Monitoring of marketing incentives, third-party relationships, employee training, social media, and advertising should occur on a regular basis. In addition, dust off the HUD guidance (Statement of Policy 1999-1) that provides a list of services that are normally performed in the origination of a loan that HUD considers compensable services. They are:

1. Taking information from the borrower and filling out the application;

2. Analyzing the prospective borrower’s income and debts and pre-qualifying the prospective borrower to determine the maximum mortgage that the prospective borrower can afford;

3. Educating the prospective borrower in the home buying and financing process, advising the borrower bout the different types of loan products available, and demonstrating how closing costs and monthly payments could vary under each product;

4. Collecting financial information (tax returns, bank statements) and other related documents that are part of the application process;

5. Initiating/ordering VOEs (verifications of employment) and VODs (verifications of deposit);

6. Initiating/ordering request for mortgage and other loan verifications;

7. Initiating/ordering appraisals;

8. Initiating/ordering inspections or engineering reports;

9. Providing disclosures (truth in lending, good faith estimate, others) to the borrower;

10. Assisting the borrower in understanding and clearing credit problems;

11. Maintaining regular contact with the borrower, realtors, lender, between application and closing to appraise them of the status of the application and gather any additional information as needed;

12. Ordering legal documents;

13. Determining whether the property was located in a flood zone or ordering such service; and

14. Participating in the loan closing.

The guidance also stated that compensable services would be considered to be performed if: the lender’s agent or contractor took the application information and performed at least five additional items on the list (or substantially similar items); and the payment was not a fee given for steering a customer to a particular lender disguised as compensation for purported “counseling type” services (taking the application plus performing only the additional services identified in (B), (C), (D), (J) and (K) above).

We never have a dull moment in the mortgage industry with compliance. Stay straight when it comes to Section 8!

For the first time in nearly two de- I cades, major changes are coming to the Uniform Residential Loan Application (URLA) used in all agency and some non-agency residential loan transactions. Through a Fannie Mae and Freddie Mac initiative, this important document is being overhauled to im- prove efficiency, transparency, and cer- tainty in the mortgage process, and it is long overdue.

The new form will help move home lending deeper into the digital age. lt has a simpler, cleaner look and feel and provides better instructions for borrowers. Plus, it has new fields that reflect the current mortgage lending environment.

Additionally, there is a strategic advantage for lenders to use the new URLA. As more lenders go digital, they can use customer data to make marketing, sales, support, and operational decisions. The new URLA collects an abundance of new data that, with the right technology, can be harnessed to achieve strategic insights and gain competitive advantage in the marketplace, as well as quickly and efficiently process, underwrite, and deliver the loan to the secondary market or servicer.

All that being said, the new URLA is creating anxiety among lenders and for good reason. Change never comes easily, especially in an industry as complex and as highly regulated as the mortgage industry. Potential disruption from the new form could be similar to the TILA-RESPA Integrated Disclosure Rule (TRID), and there’s now less than a year to prepare. Fortunately, lenders can minimize the disruption by preparing now.

BIG CHANGES TO THE URLA

The biggest change to the updated application, aside from new elements and its appearance, is the way that information is reorganized. The current loan application was designed from a lender’s perspective and is very dense. The new, dynamic URLA is redesigned to be consumer-friendly and to look more like other disclosures. It was designed to enable prospective borrowers to complete more of the process by themselves, without a loan originator.

For example, the last time the form was significantly modified, there was no consideration given to email addresses and mobile phone numbers. The new form not only accounts for this information, it’s also dynamic. On traditional paper applications, there is limited space to list certain things like the borrower’s current and previous employers or the number of properties the borrower owns. The new form is dynamic, with expandable and collapsible sections. lt can accommodate all the information a borrower has to give while keeping relevant information in context as opposed to overflowing into separate pages.

Additional highlights of the new form include: Option for language preference Option for an “additional borrower” for those who might share assets or liabilities with the primary borrower Fields for rental or mortgage payments for current/prior residences Employment history income section Assets tied to the transaction (earnest money, sweat equity, employer assistance, etc.)

The Home Mortgage Disclosure Act (HMDA) requirements that went into effect in 2017 are also integrated into the new form, as well as details on veteran loan status, borrower credit counseling, and the relationship(s) between the borrower, additional borrowers, and other persons with interests in the property.

ALOTOF WORK LIESAHEAD

While changes in the new form are overwhelmingly positive, many of them will undoubtedly impact lenders. Every stage of the origination process will be affected. For this reason, when the optional use period will be reinstated and have made no changes to the mandatory use date of February 1, 2020. However, once the forms are integrated into automated underwriting systems, lenders should begin testing the updated application and updating any application plug ins. This will be a good time for training employees and familiarizing them with the new form and workflow. To successfully manage the transition, lenders should formulate implementation plans with clear goals and objectives, then execute against specific milestones. Plans should be designed to minimize disruption and coordinate changes across multiple vendor solutions. The overriding goal for lenders should be to prepare their organization, including training, testing, operations and technology, to manage a seamless transition to the new URLA with minimal business disruption.

The good news is that lenders have time to analyze their processes and identify potential the new form has the potential to be as disruptive, or even more disruptive, than TRID.

Consider this: Lenders’ websites that have built- in applications will need to be modified, as will all point-of-sale platforms. Pre-qualifications will need to change. And the impacts don’t stop once the loan closes, either. Data on closed loans will need to be provided to investors and integrated into servicing platforms.

Adoption will be a critical challenge for many lenders. Because it has become increasingly important for organizations to understand their data to run their businesses successfully, leveraging the new data fields in the form will be crucial. Another challenge will be maintaining ongoing compliance as the forms are being implemented and beyond. The impact to document tracking and investor delivery needs to be factored in, as well as the fact that the new URLA is a much larger digital document than its predecessor and requires extra storage space. There are changes to the lender’s loan origination system (LOS) and the customization of plugins to consider. And if they print Lender/Loan Information pages, they’ll need to decide whether the Loan ID, Universal Loan ID, or both should appear in the header of a printed document, and a host of similar decisions that sound minor but could have far-reaching consequences if not thought through.

THE TIMETO PREPARE IS NOW

While the revised form becomes mandatory on all new loan applications taken on or after Feb. 1, 2020, automated underwriting systems are already being updated. Now is an excellent time for lenders to prepare for this transition. Lenders can start immediately by reviewing their operational procedures. For example, how will they handle loans that were originated with the old application but are still in the active pipeline when the new forms are implemented? This issue will be exacerbated on construction loans, given their lengthy lifecycle.

As of June 12, 2019, Fannie Mae and Freddie Mac announced the redesigned URLA will no longer be available for optional use starting July 1, 2019. At this time, they have not indicated if or problems before the final implementation date eight months from now. While there may be challenges ahead, the changes upon US are very positive as we make progress in this ever-evolving age of the digital mortgage. Ultimately the new URLA is simpler and cleaner and provides better instructions for borrowers. That’s a step forward in powering the American dream of homeownership.

Proposed changes to the Home Mortgage Disclosure Act (HMDA) that would increase reporting exemptions on loan volume and other statistics present savings in cost and manpower hours for thousands of financial institutions.

Recent estimates suggest that banks collectively spend $270 billion in compliance-related costs or 10% of net operating costs, and the cost could more than double by 2022.

While everyone benefits from streamlined bureaucracy, this will be the third threshold change limiting the number of reporting institutions since the implementation of the 2015 HMDA Rule.

With continuous watering down of these regulations, banks run the risk of unintentionally impeding the Community Reinvestment Act. We stand to lose sight of the core mission of HMDA: To identify and address discrimination and ensure that economic incentives are focused on where they are most needed. Detailed data on home lending organized by census tract over the past 30 years has made these goals attainable. If we do not proceed cautiously, HMDA itself may become ineffective in its mandate, as the trickle of data it produces would be inconsequential.

Under the rule change proposed on May 2 by the Consumer Financial Protection Bureau (CFPB), now up for public comment, coverage thresholds and partial exemptions would be affected. For coverage thresholds the CFPB is proposing the following:

Increase the coverage threshold from 25 loans in the two preceding calendar years to either 50 or 100 for closed-end mortgage loans.

Extend to Jan. 1, 2022, the current temporary threshold of 500 open-end lines of credit and thereafter permanently set the threshold limit at 200 in each of the preceding two calendar years. As for partial exemptions, the rule includes amendments to the data compilation requirements and addresses interpretive issues relating to partial exceptions such as reporting after a merger or acquisition.

Under the current landscape of HMDA reporting, approximately 4,960 financial institutions are required to report closed-end mortgages and applications. Of those, 4,263 are depository institutions and approximately 697 are nondepository institutions.

Of those required to report, approximately 3,300 or 67% are partially exempt, and of 333 financial institutions are required to report open-end lines of credit of which none are partially exempt.

It’s important to consider the implications of the proposed threshold change.

If the reporting threshold for closed-end changes from 25 to 50, approximately 745 depository institutions—or 17%—would be relieved of HMDA reporting requirements. In addition, approximately 300 out of an estimated 74,000 total census tracts would lose at least 20% of HMDA reportable data.

Further, if the reporting threshold for closed-end loans changes from 25 to 100, approximately 1,682 depository institutions—or 39%—would be relieved of HMDA reporting requirements. In the end, around 1,100 out of an estimated 74,000 total census tracts would lose at least 20% of HMDA reportable data.

Although these changes have a small impact on the total number of records being reported, continuing to increase the reporting thresholds could have implications on the usefulness and reliability of HMDA, such as:

Less ability to use HMDA data to evaluate a depository institution’s performance under CRA Decreased insight to analyze access of credit at a neighborhood level to support targeted programs in underserved communities Impact of redlining analysis and comparing to peers
The reduced overall usefulness of reported data and questions about the output of HMDA data Deregulation of strict measures imposed after the 2008 financial crisis has helped banks and their customers boost the economy and increase confidence. But banks themselves should also recognize the benefit of continued reporting of HMDA statistics for the common good and the overall economy.

Source:https://dsnews.com/daily-dose/07-03-2019/proceed-caution-hmda-deregulation

The changes TRID brought to the industry, as we all know, was transformational, good or bad. From cradle to grave, we all had to make significant changes to processes and systems. Change management was put to the test with these changes.

How successful has your organization been in implementing TRID? What about continued compliance? Has your compliance management system continued to stand strong? Based on Federal Reserve System examiners, as noted in the first issue of the 2019 Consumer Compliance Outlook, common violations were noted. While you may have a few examinations under your belt for TRID requirements, it never hurts to review what regulators are finding that are important enough for them to document and communicate.

Make sure that general information on the Loan Estimate and Closing Disclosure is complete. Regulators look at this information because it’s important for borrowers to have the information at hand in the event that they have questions down the road. Errors or missing fields included:

Loan identification number Settlement agent File number Another important area is to ensure that closing costs and fees are clearly disclosed to borrowers. Fields in the Closing Cost Details table on the Loan Estimate and Closing Disclosure were found to be missing, such as disclosing the number of months for homeowner’s insurance to be paid, the person receiving payment for closing cost services, and funds disbursement for taxes to government entities.

It’s self-explanatory the need to have accurate calculations. It was also noted that violations were found on the Loan Estimate and Closing Disclosure regarding the Calculating Cash to Close table. Violations were observed concerning the omission of required contact information on the Closing Disclosure, page 5, for the lender, mortgage broker, consumer’s real estate broker, etc.

Regulators also noted that strong compliance management systems have certain elements in place that lend to the success of TRID compliance. Specially noted were the following:

Vendor management , Strong communication, Training and effective ,procedures, Secondary reviews , It’s no surprise that your focus is on preparing for the new URLA implementation. Also keep a close eye on TRID compliance.

Mortgage Compliance Magazine wants to hear from you! Bring the talent in our industry to the forefront by submitting a nominee from your organization. From your submissions, we will select and showcase one Mortgage Compliance Professional of the Month from nominees in regulatory compliance from banks, credit unions, or mortgage companies. Get started here!

Around the Industry:

Happening Now

Recently, the FRB, FDIC, and OCC issued a joint press release that announced the availability of the 2019 list of distressed or underserved nonmetropolitan middle-income geographies where revitalization or stabilization activities are eligible to receive CRA consideration under the community development definition. The historical list of these geographies is available on the FFIEC’s Distressed and Underserved Tracts page.

MCM Q&A

How does your organization measure up to social media compliance? Check out this article from our June issue on guaranteed tips!

Source:https://www.mortgagecompliancemagazine.com/weekly-newsline/trid-violations-are-they-common-to-you/

A few years ago, only a handful of intrepid originators,  aggregators, investors, and issuers were actively participating in non-QM lending. The rest of the market watched from the sidelines, convinced non-QM lending brought significant potential liability, was hard to learn and easy to get wrong, or was not worth the effort when there was an abundance of refinance business to be done.

Several years of declining volume and intense margin compression on traditional loans, combined with a newly-receptive investor  community, are changing the market’s perception of non-QM lending.

Today, non-QM lending is widely viewed as one of the few growth areas left in the market and one that is attracting more lenders and issuers. Overall, this is good news for previously nderserved market segments: the 16 million self-employed consumers in the U.S., the millions of borrowers who have been repairing their credit since the mortgage crash, and even the aging cohort of baby boomers who are sitting on nearly $30 trillion in assets.

Last year, Nomura estimated non-QM lending volume could grow to more than $100 billion within 10 years. Other observers have since suggested the addressable market for non-QM products could be as high as $200 billon. Increasingly, non-QM securitizations are becoming a growing part of the private-label RMBS market. S&P expects non-QM securitizations to double in 2019 from $10 billion to $20 billion.

Recent changes in banking law have made it easier for mid-size and smaller banks to originate products that used to fall into the non-QM category. And, new investors and different approaches to due diligence are helping banks and originators get more omfortable with non-QM. But, despite the growing acceptance and interest in non-QM, there are challenges inherent in the product, particularly the increased risk of buybacks, due to underwriting defects and real compliance issues that remain.

WHAT MAKES A LOAN NON-QM?

Generally speaking, a first mortgage can be classified as non-QM for several reasons: a debtto-income (DTI) ratio above 43 percent; an interest only (IO) or balloon structure; rates and fees above three percent; or, the use of alternative documents in its underwriting. Adjacent products, such as expanded credit, asset depletion, and some fix-and-flip loans are usually included in the non-QM category. Non-QM loans, similar to their QM counterparts, must include a determination of the borrower’s ability to repay (ATR).

For the past five years, the “GSE patch” (QM safe harbor for loans eligible for purchase by Fannie Mae or Freddie Mac) has allowed lenders to avoid non-QM classifications on high DTI loans and, to  date, more than 54 percent of the GSEs’ purchases exceed the 43-percent threshold. The patch, however, is an option only while the GSEs remain in conservatorship and is set to expire in 2021, regardless of GSE conservatorship status.

In 2018, the Economic Growth, Regulatory Relief, and Consumer Protection Act changed the non-QM playing field for banks with assets below $10 billion. Now far more mortgages, regardless of compliance with Appendix Q of the ATR rule, DTI and credit characteristics, can be deemed QM loans, if the bank holds them in portfolio.

It’s still too early to determine whether this new option makes non-QM lending more attractive to banks, but it certainly gives community banks more permanent leeway in originating products that used to be portfolio staples before the mortgage market downturn and subsequent recession. Similarly, it should help them serve the mortgage needs of highnet worth, retired, and self-employed customers who had been disadvantaged by QM rules. A strong case can be made that broader relationships with these customers put banks in a better position to make credit decisions with alternative documents like checking accounts, credit cards, auto loans, etc.

Prudent bankers that want to take advantage of the new portfolio lending option will most likely want to originate products that could eventually be sold to non-QM issuers. This means staying abreast with the evolving private non-QM market category, its guidelines, and this market’s zero-tolerance approach to compliance.

Banks that are used to “portfolio-ing” loans or selling to the GSEs may be surprised by the rigors of the due diligence processes being used by non-QM issuers. Depending upon the asset types, it is very common for non-QM issuers to do due diligence on 100 percent of the loans in a securitization, not just a sample. At a recent industry conference, a ratings agency showed a sample due diligence exceptions report for a non-QM/ non-agency private-label deal. The sample pool of 2,581 loans had three open exceptions for property, 89 for credit, and 6,805 for compliance!

While many of these exceptions were eventually cleared, the process was most likely time consuming, expensive, and painful.

COMPLIANCE CONSIDERATIONS

From a compliance standpoint, a non-QM loan is generally subject to the same regulations as a QM loan, including TRID, HOEPA, Fair Lending, and state and local regulations.

Lenders participating in the private secondary market since the TRID rule effective date will most likely have better discipline for preventing TRID errors than their counterparts participating only in the GSE and FHA markets.

Incentives to review and correct errors in the private secondary market are immediate. Loans with material TRID errors can be rejected from the securitization pool, leaving the lender holding a potentially unsalable loan. Or alternatively, the loan is accepted but only with a lender guarantee or a setaside to mitigate future devaluation from compliance losses. But, even then, only larger lenders with substantial capital and wherewithal in the marketplace are typically permitted by ratings agencies, issuers, or underwriters to use these options.

While the CFPB has promulgated TRID “clean up” rules, which have had the effect of reducing identified TRID errors, lenders entering the non-QM market must still have good controls in place and consistent compliance. TRID disclosure timing and disclosure error correction issues continue to persist, even for current, seasoned, private secondary market participants.

Additionally, there are QM (and non-QM) related ATR issues that have not yet been clarified by the CFPB and could impact loan program underwriting guidelines. Arguably, there are more issues in the QM space than in the non-QM market, given some of the vague income qualification requirements in Appendix Q and the liberal use of GSE underwriting guidelines by some lenders to meet perceived “gaps” in Appendix Q. As a practical matter, loans or loan programs intended to be QM, but with structural defects causing them to not be designated QM, may still comply with the ATR rule, without the safe harbor status.

For non-QM loans, complying with the ATR rule’s eight borrower repayment factors is the only concern. ATR rule compliance can be easier to prove as a de facto matter for older non-QM loan programs with large data sets, which establish low historical default rates, so long as the lender considers and documents the eight ATR factors.

However, the ATR rule also has gray areas when it comes to non-QM loans. For example, how should a lender consider repayment factor 7 (vii) for the “consumer’s monthly debt-to-income ratio or residual income” for an asset depletion loan where there is no income? The CFPB specifically contemplated certain non-dwelling asset-based loans when issuing the ATR rule but factor 7 (vii) is in direct conflict with Factor 1 (i). Factor 1 (i) of the rule provides that the creditor must consider “the consumer’s current or reasonably expected income or assets, other than the value of the dwelling, including any real property attached to the dwelling, that secures the loan.” If the loan is underwritten solely based on assets, there is less certainty for how to comply with factor 7 (vii).

If designed properly, asset depletion loans have strong repayment track records, especially for retirees with large asset holdings but minimal income derived from those assets or other sources of income; for instance, large quantities of treasury bond holdings without enough total yield to support DTI ratios. Borrowers plan to sell off assets on an “as needed” basis at irregular intervals to support monthly loan payments. Asset depletion loan programs often require that borrowers hold enough assets to support at least five years or more of monthly payments, depending on loan type and features. The proceeds from these types of sporadic asset sales often cannot be characterized as income. In some cases, the borrower’s monthly income could be $0 with $0 residual income. In others, the borrower has an insufficient amount of monthly fixed government program income to support loan payments. In either situation, however, the borrower clearly has the ability to repay as a de facto matter given the amount and liquidity of the assets.

NEW SOLUTIONS TO BUILD CONFIDENCE AND REDUCE DEFECTS

The first generation of non-QM loans were, for the most part, super prime and fully documented. They tended to fall into the non-QM category due to their size, DTI ratio, or structure: balloons, lOs, etc. But, the products are now rapidly evolving as the industry gets more comfortable with alternative documentation (bank statement), expanded credit and rental loans. The issuers are also changing. No longer is non-QM the province of specialty aggregators, REITS and private equity players; now, insurance companies, asset managers, and major money center banks are bringing new private-label offerings, backed by non-QM assets, to market.

To help keep pace with new product options and the ever-changing underwriting guidelines, some originators, including non-depositories, banks and credit unions, are outsourcing non-QM underwriting to recognized and experienced third-party fulfillment providers for loans to be sold on the secondary market. This approach can provide comfort for the originator and the investor. Both parties are subject to TILA liability and buyback demands. By using these fulfillment providers, some lessexperienced or smaller originators may find it easier to obtain approval from investors and warehouse lenders for participation in non-QM programs.

Investors, including the GSEs, are also moving loan reviews and due diligence closer to the point of sale. In the non-QM space, several active investors are using third-party underwriting fulfillment service providers to conduct pre-loan sale underwriting reviews on the non-QM loans they buy. The process is used to identify and clear conditions.

Recently, larger correspondent and wholesale lenders have also begun to do bank statement income calculations for their correspondents and brokers. These initiatives, and others like them, are giving both originators and investors greater confidence to originate and purchase non-QM loans. These efforts also help to educe the number of scratchand- dent non-QM loans in the market.

Since the QM rule went live in 2014, the industry has been waiting for the non-QM market to fully develop. 2019 is shaping up to be the year it does.

Source : https://www.mortgagecompliancemagazine.com/featured/thinking-about-joining-the-non-qm-queue-here-are-some-compliance-considerations-to-keep-in-mind/

Suspicious activity reporting is the cornerstone of the Bank Secrecy Act (BSA), according to the Federal Financial Institutions Examination Council (FFIEC). And, the FFIEC also states that “(i)t is critical to the United States’ ability to utilize financial information to combat terrorism, terrorist financing, money laundering, and other financial crimes.” Before a Suspicious Activity Report (SAR) is filed, it’s critical to first understand the process of how suspicious activity is identified.

While financial institutions utilize various methods to identify unusual or suspicious activity, such as automated and/or manual transaction monitoring systems, law enforcement inquiries, or National Security Letters. Perhaps the best method is you, the employee. Do you know what red flags to watch for as you interact with customers during the loan process? Do you know your financial institution’s procedures for reporting the identification of unusual or suspicious activity?

Red Flags

Red flags can be considered as examples of potential suspicious activity. However, it’s important to note that just because you may identify a red flag, it doesn’t necessarily mean that criminal activity has occurred. What does mean is that further scrutiny may be necessary. Your responsibility is simply to report the suspicious activity according to your organization’s procedures. More than likely, the BSA compliance officer or a committee will determine if a SAR should be filed.

Based on the FFIEC BSA/AML Examination Manual, Appendix F, here are examples of red flags of which you need to be aware as you work with loan customers and/or process loan transactions.
Customers Who Provide Insufficient or Suspicious Information

A customer uses unusual or suspicious identification documents that cannot be readily verified. A customer provides an individual taxpayer identification number after having previously used a Social Security number. A customer uses different taxpayer identification numbers with variations of his or her name.

A business is reluctant, when establishing a new account, to provide complete information about the nature and purpose of its business, anticipated account activity, prior banking relationships, the names of its officers and directors, or information on its business location.

A customer’s home or business telephone is disconnected.

Lending Activity

Loans secured by pledged assets held by third parties unrelated to the borrower.
Loan secured by deposits or other readily marketable assets, such as securities, particularly when owned by apparently unrelated third parties.

Borrower defaults on a cash-secured loan or any loan that is secured by assets which are readily convertible into currency.
Loans are made for, or are paid on behalf of, a third party with no reasonable explanation.
To secure a loan, the customer purchases a certificate of deposit using an unknown source of funds, particularly when funds are provided via currency or multiple monetary instruments.

Loans that lack a legitimate business purpose, provide the bank with significant fees for assuming little or no risk, or tend to obscure the movement of funds (e.g., loans made to a borrower and immediately sold to an entity related to the borrower).

Employees

Employee exhibits a lavish lifestyle that cannot be supported by his or her salary. Employee fails to conform to recognized policies, procedures, and processes, particularly in private banking. Employee is reluctant to take a vacation. Employee overrides a hold placed on an account identified as suspicious so that transactions can occur in the account.

Other Unusual or Suspicious Customer Activity

Customer repeatedly uses a bank or branch location that is geographically distant from the customer’s home or office without sufficient business purpose. The stated occupation of the customer is not commensurate with the type or level of activity. A customer obtains a credit instrument or engages in commercial financial transactions involving the movement of funds to or from higher-risk locations when there appear to be no logical business reasons for dealing with those locations.

Reporting Identified Red Flags

Your responsibility is simply to report the suspicious activity. Do you know what to do? What is the process to notify the right person? Be sure to know your financial institution procedures. The key is report, not prove that an activity or person is suspicious. You may even see a red flag outside of what the FFIEC has documented in Appendix F. Or, you may have a ‘hunch’ that something’s not right. The key is to report!

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Around the Industry:

Happening Now

The OCC posted its Semiannual Risk Perspective for Spring 2019. Highlights include:

Credit quality is strong when measured by traditional performance metrics, but successive years of growth, incremental easing in underwriting, risk layering, and building credit concentrations result in accumulated risk in loan portfolios.

Operational risk is elevated as banks adapt to a changing and increasingly complex operating environment. Key drivers for operational risk include persistent cybersecurity threats as well as innovation in financial products and services, and increasing use of third parties to provide and support operations that are not effectively understood, implemented, and controlled.

Compliance risk related to Bank Secrecy Act/Anti-Money Laundering (BSA/AML) is high as banks remain challenged to effectively manage money laundering risks.

Interest rate risk and the related liquidity risk implications pose potential challenges to earnings given the uncertain rate environment, competitive pressures, changes in technology, and untested depositor behavior.

Source: http://www.mortgagecompliancemagazine.com/weekly-newsline/lenders-are-you-aware-of-red-flags-for-aml/

The CFPB recently announced that it settled with a large mortgage servicer for the servicer’s alleged violations of the Consumer Financial Protection Act of 2010, RESPA, TILA, and their implementing regulations. Under the terms of the consent order, the servicer must, among other provisions, pay a civil money penalty of $200,000 and pay restitution to affected customers estimated to be at least $36,500.

Most of the loans the company serviced are owned by Fannie Mae and Freddie Mac, and approximately 21% of the serviced loans were 60 days or more unpaid. Further, the servicer offers loan modifications to eligible borrowers suffering economic hardships under proprietary programs offered by Fannie and Freddie and, until December 2016, the Department of Treasury’s Home Affordable Modification Program (HAMP).

The CFPB alleges that the servicer violated the above-mentioned statutes by:

Handling mortgage servicing transfers with incomplete or inaccurate; loss mitigation information, which resulted in failures to recognize transferred mortgage loans with pending loss mitigation applications, in-process loan modifications, and permanent loan modifications; escrow information, which resulted in untimely escrow disbursements; Inadequately overseeing service providers, which resulted in untimely escrow disbursements to pay borrowers’ property taxes and homeowners’ insurance premiums;

Failing to promptly enter interest rate adjustment loan data for adjustable rate mortgage (ARM) loans into its servicing system, which resulted in the issuance of monthly statements to consumers that sought to collect inaccurate principal and interest payments; and Maintaining an inadequate document management system that prevented the servicer’s personnel or consumers from readily obtaining accurate information about mortgage loans.

In addition to its civil money penalty and restitution payments, the servicer must also: (i) update “its oversight and compliance management systems to promptly identify and correct potential servicing errors and violations of Federal consumer financial laws;” (ii) within 120 days of May 29, 2019—the date on which the Consent Order was issued—establish and maintain a comprehensive data integrity program to ensure the accuracy, integrity, and completeness of the data for loans that it services; (iii) “implement an information technology plan appropriate to the nature, size, complexity, and scope of the servicer’s operations;” and (iv) within 120 days after the implementation of the data integrity program and the information technology plan, obtain an assessment and report from a qualified, independent, third-party professional acceptable to the Enforcement Director which evaluates said program and plan according to specified factors. Additionally, the servicer must not voluntarily transfer or acquire servicing for loans in loss mitigation or with a loss mitigation application pending, subject to a long list of exceptions.

Source: https://www.jdsupra.com/legalnews/cfpb-and-mortgage-servicer-settle-57906/

One of the more pressing initiatives over the past year relates to the updates to the Uniform Residential Loan Application (URLA) and the Uniform Loan Delivery Dataset (ULDD). For the first time in about 20 years, the URLA is getting a major overhaul and it isn’t just cosmetic. The URLA has a whole new format, with new fields, data points, and requirements. With the initiatives going into effect in February 2020, it’s high time that lenders take a look at how they will impact the industry’s approach to loan quality going forward.

ULDD AND URLA: WHY AND WHY NOW?

Before we jump into the implications of these two initiatives, let’s do a quick review of the ‘whats’ and ‘whys’. The URLA has seen virtually no changes for the past 20 or so years. Why is it being changed now? Good question. In short, it’s because this should have happened a long time ago. This change was inevitable. We can’t go on conducting business he way we did 20 years ago when our industry has changed so dramatically and technology has evolved so much. Think about what personal computing was 20 years ago, and where we were with data collection and analysis. We’re capable of so much more. Our industry needs to start implementing a way to leverage the technological capabilities that are now at our fingertips. And the ULDD and URLA help us do just that.

DON’T GET FOOLED:

THE NEW FORM ISN’T JUST ABOUT WHAT GOES WHERE

From a quality control (QC) and compliance perspective, the big stressors are about data integrity, which, technically speaking, isn’t terribly recent news. The new URLA enhances the type of data collected and the placement of that data within the loan application. That means anytime you deliver a dataset to the GSEs, you need to have that dataset in a specific format, one that’s been laid out and mapped out in a certain way. But more importantly, you need to make sure of the integrity of that data.

This is one thing that lenders regrettably forget. They’re so concerned with how to deliver the new data, that often they forget about the quality of the data itself. This can be a costly mistake, because data quality has been a big industry focus the last couple of years as both Fannie and Freddie have been very critical on data integrity issues. You also have CFPB, which monitors the industry for data integrity issues with HMDA. Now that they’re asking for new data, you can rest assured they’ll be checking to be sure that data is accurate, not merely delivered in the proper format.

A critical focus with the new URLA and the updated ULDD, with their enhanced data sets, is making sure that the data is accurate. A real push has been around how to perfect that data—where the systems are and who’s delivering the data. The LOSs are all getting up-to-date with providers creating testing models with the URLA included. Their goal is to have this fully integrated by sometime this summer with the new URLA being required in February of 2020. Lenders should rest assured that most LOS platforms will cover these updates. However, lenders do need to be prepared for an even deeper data integrity review. That’s how you eliminate the problems that come out of core data.

When it comes to the ULDD, one of the big changes is the capture and reporting of the new HMDA required data fields. So, it’s not only about making sure that data is in the right field or correct format, but even more importantly, making sure the data is accurate. One of the focal points for the ULDD changes is fair lending. If it’s important enough to add a way to collect this data, you can bet that accurately reporting your data is vital. So now that we’ve established that data integrity is of the utmost importance, we need to figure out how lenders can most effectively accomplish that.

THE ULDD/URLA ERA: PREPARE FOR PROACTIVE VS. REACTIVE QC

The way lenders approach QC for ULDD and the new URLA will determine a lot about whether or not they thrive as the industry moves into more robust data collection and analysis.

Can lenders survive with their old processes when the ULDD and URLA go into effect? Sure. But I’m not sure for how long. Lenders that want to thrive and succeed in the new era need to be proactive in assuring data accuracy. If you’re still asking whether you should use technology to verify and validate data, or if you can get away with doing it manually utilizing the “stare and compare” method, the same process as they have for past 20 years, you should prepare for other more proactive lenders to pass you by.

Manual processes are risky and using technology to merely identify data integrity issues is short changing your potential for success. The real question you should be asking is whether the data in your system is accurate, and more importantly, how technology can help assure that data is accurate. Focus on the number of errors found within the data and identify the root cause of the data integrity issues. Then implement corrective action planning to track and correct these data issues once and for all. This will turbocharge your QC and risk management path into true proactive operations, a key component of industry leading lenders.

Using technology that requires manual processes, when a more advanced alternative exists, is risky. Lenders need as systemic a process as possible for data validation. One of the big things we see repeatedly is that lenders have all this data, all this information, but the systems don’t talk to each other. They receive an abundance of the required documents to support a mortgage loan, but often fail to obtain the digital data that created the document. One of the great things about utilizing the abundance of digital data that is at our fingertips is, when technology is utilized  to its full extent, this digital data allows systems to talk to each other. Otherwise, at some point along the manufacturing process, somebody needs to go back and review that actual document and verify that the data in that document was actually brought into the system accurately. It’s always best to use technology that enables all systems to communicate and share data. Otherwise, you’re risking errors and even fraud.

The appraisal is a good example of this data vs. document process. The vast majority of loans these days have some form of an appraisal to provide a verifiable opinion of value. Most all appraisals come with the actual XML data file attached. Some tech providers offer the ability  to conduct a form of data validation using that data file, and not require a person to handle the appraisal or input data points into the LOS. Without that technology, each data point is typically manually entered into the LOS by a loan processor. And of course, every time you key in a data field, you have an opportunity for error.

If you want to be proactive in improving data integrity, the key is to bring as many data fields as possible into your LOS in a digital  format. And if you bring in the data digitally from your actual source document, the appraisal in this case, you’ll know the data fields on that appraisal are 100 percent accurate. Authority documents can be used to help validate data fields from other documents referencing the appraised  value. Technology allows lenders to compare  and validate all the data within their LOS and other key documents to that authority document with a click of the button

DATA QUALITY IS ONLY BECOMING MORE IMPORTANT

Data quality has always been important, but the ULDD and URLA initiatives are only going to make it more so. It’s important for the lending community to be even more critical of their data integrity. Don’t make the unfortunately all-too- common mistake of believing that delivering data in accordance with the ULDD assures that your data is right. In reality, the ULDD makes sure all their data fields are there, but does not validate the data is accurate.

Financial risks are high when compromising data integrity. Inaccurate data can cause a multitude of problems, from delays in loan delivery, extended warehouse dwell times, and, in many cases, pricing adjustments. In the worst cases, repurchase obligations result. If you think the GSEs won’t say they don’t want to buy a loan because the data you provided doesn’t match what you indicated you were selling, guess again. It’s the worst-case scenario, but it happens. Regulators, like the CFPB, for example, aren’t going away anytime soon. They’re closely scrutinizing HMDA data and have already levied numerous fines, some in the millions, for data validation errors.

So, no matter what changes are coming in  May for the ULDD and in early 2020 for the URLA, a critical piece in preparation is to make sure your data is accurate. Technology can relieve a number of loan delivery headaches while bringing  a substantial reduction in overhead. You just need to decide whether you will accomplish your goals by reacting to market conditions, or by proactively managing them.

Source : http://www.mcmag-digital.com/mcmag/april_2019/