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Fair Lending Riak Assessment

Have you ever considered fair lending risk? Do you even know what your fair lending risks are? What is your organization’s risk tolerance? As with other areas of compliance and risk management, a risk assessment can reveal strengths, weaknesses, and gaps to create action steps for forward motion. It’s better to be proactive in knowing what the risks are and certainly less costly. Because fair lending risk encompasses all aspects of every loan transaction, conducting a fair lending risk assessment is good business. And, it’s expected by your regulator.

What is a Fair Lending Risk Assessment?

Essentially, a fair lending risk assessment is the process of identifying and measuring risks inherent in your financial institution’s lending processes across the loan life cycle, and determining what internal controls and monitoring mechanisms need to be in place to reduce or minimize the occurrence of illegal discrimination.

Federal regulators utilize the risk-based approach and it would be wise for you to do the same. The risk-based approach will give you the opportunity, in an efficient manner, to apply preventive measures to mitigate fair lending risk. The fair lending risk assessment itself is the preventative measure; a tool to identify and understand specific fair lending risks inherent to your organization. Once the risk assessment is complete, you will gain a better understanding of allocating the right amount of resources to higher risk areas.

The Fair Lending Risk Assessment: Don’t Know Where to Begin?

The format, the tool, or the scale used to measure risk in your fair lending risk assessment is arbitrary. Just be consistent. There isn’t a one-size-fits all because each organization is distinct in its size, complexity, and risk tolerance. But it is important to have these key features within your risk assessment that align with the size and complexity of your financial institution:

Define and measure inherent and residual risks specific to each risk category:

Inherent risk: Consider these adjectives to describe inherent risk. Raw. Untreated. Unprocessed. It’s the pure level of risk that will occur with the current state of controls. This current state may be lacking or insufficient of which the results of the risk assessment will help you identify. Examples of inherent risk include:

Risks within your products, services, and business lines; certain products are riskier than others

Risks tied to operational insufficiencies and failures or external factors that are beyond your organization’s control

The ramifications of noncompliance that involve financial, legal, and reputational costs

Residual risk: The amount of risk that remains after applying controls to inherent risks. Risk cannot be completely eliminated; a fact that we all must accept. The level of residual risk and your organization’s risk tolerance will then determine the actions of implementing or revising controls to manage your fair lending risk.

Identify specific risk categories unique to your organization. Consider the following:

Products, services, and business lines

Geographical footprint

Marketing strategy

Your organization’s fair lending history, risk tolerance, and previous examination results

Policies, procedures, and processes


Lender discretion

Exception tracking and reporting

Tracking tools and reports

Vendor management of third-party relationships

Loan originator compensation

Regulations: ECOA (adverse action notices and spousal signatures are high risk areas) and HMDA (government monitoring information)

Specific fair lending risks to evaluate: redlining, steering, underwriting, pricing, marketing, servicing

Once the information has been collected on the identified categories, a deeper dive must occur to bring those risks to the surface. This deeper dive involves asking questions, lots of them. Test assumptions. Verify processes. Validate that documented policies and procedures actually mirror what you do. Are they static or do they reflect ongoing changes?

The results of your evaluation should be documented as a fair lending risk assessment. Again, the format or scale used to capture the level of risk can be approached in many different ways. Don’t make it complicated; do what makes sense and be consistent.

The Risk Assessment is Done: Now What?

Don’t let it collect dust and become stagnant. It requires action:

Manage your fair lending risk exposure by keeping the board and senior management informed and involved.

Where gaps were identified in the risk assessment process, correct quickly by updating policies, procedures, and processes. Provide training, if necessary.

Take corrective action where needed.

Make sure monitoring and reporting are ongoing.

Fine tune your fair lending compliance program elements based on the results of your risk assessment.

Remember that this risk assessment process is necessary to your organization managing its fair lending risk with success. While you may not have the dedicated resources to accomplish this task internally, don’t let that stop you. Employing a third-party vendor is a great option and should be considered. Dig in. Get started. Gain insights. Further compliance at your organization. Grow!

Burdened by Regulations – Welcome to the Club

Regulatory compliance and risk management concerns are on the rise at U.S. lending institutions, according to the 2019 Regulatory & Risk Management Indicator released Wednesday by Wolters Kluwer. The top areas of concern were HMDA rules, cybersecurity, and credit and compliance risk. 

Lenders reported their top compliance challenges for the next years are “managing and implementing residential mortgage regulations; keeping current with changing regulations; complying with the forthcoming Current Expected Credit Loss (CECL) accounting standards; deposit account regulations; and compliance program management.” 

When it comes to implementing compliance programs, lenders’ top concern was that their institution relies on manual rather than automated compliance processes. This concern was cited by 47% of respondents in the survey, up five percentage points from last year. At the same time, 46% of firms reported they anticipate “little to no investment” in compliance automation at their institution. 

The next two top concerns were inadequate staffing, cited by 45% of lenders, and “too many competing business priorities,” cited by 44% of respondents. 

Just 16% of survey respondents indicated that their institution has a “strategic, integrated” enterprise risk management system across all departments. About 30% said their institution lacks a widespread risk management system, and another 32% reported they were unsure whether their institution had one or not. 

Lenders harbor some major concerns with certain aspects of HMDA reporting but are increasingly comfortable with other aspects of HMDA.  Lenders reported declining concerns in regards to capturing data fields and upgrading systems over the past year. 

At the same time, they reported increasing concerns in regards to training staff, analyzing new data, and reporting in the expanded data submission process. The share of lenders who cited concerns with this last factor jumped from 15% last year to 40% this year. 

Cybersecurity remains a top concern at a majority of lending institutions and 78% of lenders reported it as a top risk that will receive “escalated priority” in the next year. While cybersecurity outranks all other risks in the survey, the level is down from 81% last year. 

Other top concerns that will receive additional attention over the next year are credit risk, up from 34% to 45% and regulatory/compliance risk, up from 33% to 47%. 

“Respondents indicated more confidence in their ability to maintain compliance, keep track of changing regulations, and demonstrate compliance to regulators, reaching the highest confidence levels in the survey’s seven years,” said Timothy R. Burniston, Senior Advisor for Regulatory Strategy at Wolters Kluwer’s Compliance Solutions business. 

The percentage of lenders expressing a high level of concern with compliance was down across the four main areas surveyed, including the ability to stay compliant amid changing regulations, the ability to keep track of regulatory changes, the ability to illustrate their compliance, and the ability to manage risk across the entire institution. However, despite declining concern in all these areas over the past two years, more than half of lenders maintain a high level of concern in these areas. 

The economic factors lenders are most concerned with moving forward are interest rate fluctuations, a concern for 87% of lenders; data privacy, a concern for 85% of lenders; and a pending recession, a concern for 76% of lenders. 

Lenders do not expect regulatory relief in the next two years. Just 22% of lenders believe regulatory relief is likely during that time, compared with 48% a year ago. 

The overall Main Indicator Score for the Wolters Kluwer’s regulatory and risk management survey was 95—up 10 points from last year. The score takes into account the lender survey, which included 704 respondents this year; as well as the number of new federal regulations for the industry, the number of regulatory enforcement actions, and the total dollar amount banks and credit unions incurred in fines over the year. 

Mortgage Lenders Beware !!

WASHINGTON (Reuters) – A U.S. regulatory panel is recommending increased federal and state oversight of nonbank mortgage lenders and servicers, saying for the first time in a report on Wednesday that their growing presence in the sector may threaten financial stability.

The panel of top U.S. regulators led by the Treasury Department had never flagged the issue as a systemic risk in previous annual reports, only that it was keeping an eye on the nonbank mortgage market. The report, which called overall risks to the financial system “moderate,” is not binding but could serve as a blueprint for policymakers in the coming months.

The Financial Stability Oversight Council report said nonbank lenders now account for more than half of all new mortgages but are not subject to the same rigorous scrutiny as traditional banks.

Nonbanks originate 51% of all new mortgages compared with just 10% at the height of the subprime mortgage crisis in 2009, according to the panel of the top U.S. regulators which is tasked with identifying systemic risks. Nonbanks service 47% of outstanding mortgages compared to 6% in 2009, it added.

A raft of regulatory and legal problems stemming from the subprime mortgage crisis discouraged banks from extending home loans to riskier borrowers. Bank regulations on mortgage lending have also tightened, which may also have led nonbanks to grab on a larger share, the panel said.

“However, most nonbank mortgage companies have fewer resources to absorb adverse shocks and are more dependent on short-term funding than banks,” according to the report.

Need to Know Compliance Factors Surrounding An “Application”

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.

Marketing & Social Media – What YOU Need to Know

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.

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 …”

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 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.

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 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 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. 
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.

Important RESPA Section 8 Updates

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!

The New URLA – Preparation Strategies

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.


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.


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.


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.

HMDA Changes On The Horizon

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.


TRID Violations & Regulators Target List

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.


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


Have You Considered These Compliance Issues When Originating Non-QM Loans ?

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.


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.


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.


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.

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