The general AI regulatory effort has begun. Here is an excerpt from Ballard Spahr in a recent article they published via the CFPB. Colorado has started the trend with their new AI legislation SB24-205.
“Any person doing business in Colorado, including developers or deployers of high-risk AI systems that are intended to interact with consumers. The bill defines a high-risk AI system as any AI system that is a substantial factor in making a consequential decision. “
For our Industry, this could be interpreted to apply to automated underwriting. You are a deployer. It could also extend to systems that pre-qualify without human review and supervision. It could also extend to post closing quality control done solely by a system. The article describes disclosures that will be required in Colorado to make sure consumers know what recourse they have if an AI application’s result causes them harm.
I’m telling you about this because once a state adopts regulations, other states follow in their footsteps. So be proactive, get your team together, think about where in your operation AI plays a role, and consider planning for the future by learning as much as you can about how AI affects your clients, and what your state position is on disclosure regarding AI.
If you want us to be on your team, give us a call and we would be happy to sign you up.
We take quite a few questions from industry participants looking for a way to avoid disclosing an affiliated business arrangement. Usually, the reason given “not to disclose” is that the second business is owned by a spouse or child, not the mortgage broker or lender. But, is it?
The term “affiliated business arrangement” means an arrangement in which a person who is in a position to refer business (person can be a human or an entity) incident to or a part of a real estate settlement service (basically any business that participates in selling real estate, arranging loans for real estate, or closing either types of transactions) involving a federally related mortgage loan (and kind of QM/Agency/GSE loan or loan likely to be sold into a government pool) or an associate of such person, has either an affiliate relationship with or a direct or beneficial ownership interest of more than 1 percent in a provider of settlement services; and either of such persons directly or indirectly refers such business to that provider or affirmatively influences the selection of that provider.
Seems clear, but what is an “associate of such person”? Here is a common definition.
a partner or colleague in business or at work: “he arranged for a close associate to take control of the business.”
a companion or friend: “his old friend and hearty associate” “his wife or her husband”.
There are two types of ownership measurements.
Legal means named on the formation documents or contract.
Equitable means married or familial relationship creates influence or benefit sharing.
Let’s explore equitable, because that is where the problems take place. Equitable ownership refers to the ownership of rights and obligations based on the principal of fairness, even if legal title is help by someone else.
There is one more issue to consider if you want to form and disclose an ABA with a relative or marital partner. If you operate a mortgage broker business, there is a three percent cap on QM compensation imposed by the CFPB. Your lenders may choose to add the processing fee you collect, to your three percent cap.
We have a model contract for Contract Processing Companies to use with their clients. If you want to see it, give us a shout at jg@lockelaw.us Let’s see if we can help you in ALL your compliance matters.
This is about Beneficial Ownership Reporting of LLCs and Corporations.
Dec 7th, 2023
Folks,
FinCEN will begin accepting beneficial ownership information reports on January 1, 2024. Beneficial ownership information reports will not be accepted before then.
If you are required to report your company’s beneficial ownership information to FinCEN, you will do so electronically through a secure filing system available via FinCEN’s website. This system is currently being developed and will be available before your report must be filed.
The form to report beneficial ownership information is not yet available. Once available, information about the form will be posted on FinCEN’s beneficial ownership information webpage.
Companies required to report are called reporting companies. There are two types of reporting companies:
Domestic reporting companies are corporations, limited liability companies, and any other entities created by the filing of a document with a secretary of state or any similar office in the United States.
Foreign reporting companies are entities (including corporations and limited liability companies) formed under the law of a foreign country that have registered to do business in the United States by the filing of a document with a secretary of state or any similar office.
There are exemptions for certain types of entities. These entities include publicly traded companies meeting specified requirements, many nonprofits, and certain large operating companies.
The following table summarizes the 23 exemptions:
Exemption No.
Exemption Short Title
1
Securities reporting issuer
2
Governmental authority
3
Bank
4
Credit union
5
Depository institution holding company
6
Money services business
7
Broker or dealer in securities
8
Securities exchange or clearing agency
9
Other Exchange Act registered entity
10
Investment company or investment adviser
11
Venture capital fund adviser
12
Insurance company
13
State-licensed insurance producer
14
Commodity Exchange Act registered entity
15
Accounting firm
16
Public utility
17
Financial market utility
18
Pooled investment vehicle
19
Tax-exempt entity
20
Entity assisting a tax-exempt entity
21
Large operating company
22
Subsidiary of certain exempt entities
23
Inactive entity
A beneficial owner is an individual who either directly or indirectly: (1) exercises substantial control over the reporting company, or (2) owns or controls at least 25% of the reporting company’s ownership interests.
This law becomes effective January 1st, 2024, and any company that meets the REPORTING COMPANY definition (above) will need to access the fincen site and clarify ownership per the reporting form (that they have yet to develop).
This basically means all mortgage broker business and mortgage lenders per the above.
Recently we spoke to a client who was having trouble obtaining Patriot Act information from one of their lenders. This was because the Patriot Act is referenced on an audit checklist we provided. We are amending that checklist and removing that requirement, replacing it with a Customer Identification Program requirement.
Why? During the COVID Era, Congress never renewed the Patriot Act. Sounds amazing but true. The Patriot Act was principally aimed at restricting terrorist financial activities, whether foreign or domestic. Present day events around the world sure seem to indicate that terrorism is still an issue.
The CIP, on the other hand, has been in continuous force since 2010 and was amended in 2020. The requirement for proper verification of identity did not change. In order to be in “safe harbor”, a broker or lender must request and retain several sources of federally or state issued ID, with photo, that have names and addresses, do not show signs of alteration, and are not expired.
So from today forward, we will refer to the CIP. Now you know why.
For background on this question See CFPB SUPERVISORY HIGHLIGHTS, ISSUE 30 – (SUMMER 2023)
Here is the issue. The CFPB said compensation cannot vary (from a MLO Comp Plan Exhibit) on a brokered loan versus an in-house loan where the broker offers a substantially similar product.
The CFPB wrote “Regulation Z generally prohibits compensating mortgage loan originators in an amount that is based on the terms of a transaction. It defines a term of a transaction as “any right or obligation of the parties to a credit transaction.” And it provides that a determination of whether compensation is “based on” a term of a transaction is made based on objective facts and circumstances indicating that compensation would have been different if a transaction term had been different. Accordingly, in the preamble to the CFPB’s 2013 Loan Originator Final Rule, the CFPB clarified that it is “not permissible to differentiate compensation based on credit product type, since products are simply a bundle of particular terms.” As part of their business model, institutions brokered-out certain mortgage products not offered in-house.
For example, the institutions used outside lenders for reverse mortgage originations, but had their own in-house cash-out refinance mortgage product. Examiners determined that the institutions used a compensation plan that allowed a loan originator who originated both brokered-out and in-house loans to receive a different level of compensation for the brokered out loans versus in-house loans. By compensating differently for loan product types that were not offered in-house, the entities violated Regulation Z by basing compensation on the terms of a transaction. In response to these findings, the entities have since revised their loan originator compensation plans to comply with Regulation Z.”
This means if you choose to broker out the loan you must stick to the same MLO comp plan exhibit you use for in-house individual MLO commission calculation. If you are a broker origination organization, this just means stick to the comp plan exhibit because 100% of your loans are brokered out.
If you don’t OFFER the type of loan you are brokering out, this gets grey and you should have a consistent formula you use to calculate what the MLO will earn on a loan not part of your usual bundle of products. The grey comes in where you note the CFPB used reverse mortgages as an example and stated they thought a reverse mortgage was essentially the same as a cash out refinance. I cannot even begin to explain that conclusion.
Take note of this. The CFPB said “By compensating differently for loan product types that were not offered in-house, the entities violated Regulation Z by basing compensation on the terms of a transaction.” This seems to endorse the bucket concept used by most of you out there.
There has been an uptick in GSE challenges regarding false tax returns. These include alleging phony tax returns in general, alleging suspicious 1040X filings, alleging misrepresentations in tax preparer’s letters to clear underwriting stips, and a few more issues. Right now, we are aware of several tax preparers being investigated, especially in the Florida market. We are defending brokers being threatened with various LDP and exclusionary lists for the broker’s use of poorly vetted tax preparers.
Mortgage fraud evidences and gavel on a desk.
What can you do to protect yourself?
VET THE TAX PREPARER. How? Treat this matter seriously. Here are some suggestions.
Check the Internet for bad references or posts regarding the quality of their service.
Ask the tax preparer to provide CPA references.
If the tax preparer is a CPA, check with your state’s CPA oversight committee.
Always check the LDP and SAM lists for prohibited parties before using.
Make sure they have an actual office and if they work from home, ask why.
Annually, ask to see a valid license for the activity that the tax preparer is providing.
Finally, ask the tax preparer if they have ever been investigated by any type of government agency. If not, make them sign a sworn statement to that effect for your files and update that statement annually.
Will these steps protect the broker or lender? Maybe.
IF you have a policy of using more than one tax preparer, and randomly use them, yes.
IF you never engage in conversations guiding a tax preparer’s result, yes.
IF you rotate processors so there can be no collusion with a troubled tax preparer, yes.
If you get into trouble, call us right away. We will evaluate and assist to the level that we can, assuming you have been careful and are not involved in fraud or misrepresentation of any kind.
This subject came up recently, because of the recent increases we are seeing in repurchase demands from several of the industry’s largest lenders. Most of you seem to think because you are “only a broker” you do not have risk of repurchase demand. Well, you do, but there are ways to mitigate the risk to you.
Always sign your broker and/or correspondent agreements like this. “John Smith, as President; not personally.”
Never sign as “Owner”. You may be the owner, but your entity is always going to be an LLC or a Corp. So sign using your LLC or Corp title. For example, “as President; not personally.” Or “as Managing Member; not personally.”
Always challenge a lender request for a secondary personal guarantee. If your net worth is sufficient, you may be able to avoid this. Even if not, you may still be able to avoid this if your history with the lender is clear.
NEVER send all your business to one lender. You never know when things can sour. Right now we are dealing with multiple issues involving Freddie Mac. They are pressing those issues with their clients, who will not doubt include your lender. You need to have a back up.
Finally, these recommendations are offered as your compliance consultant and not as any sort of legal advice or legal opinion.
Questions? Call or email us, we are here to serve.
This decision was announced yesterday. The Hawaii Supreme Court has set precedent and made it crystal clear that sloppy foreclosures will not be tolerated. Their arguments are flawless. This should be applicable to any type of servicing.
But I am especially pleased this decision will protect seniors with HECMs who hit bumps in the road and cannot react as fast as younger folks.
This first link is from the IRS web site. You will note that it covers just about every single situation you can think of. You will also note that on the independent contractor page it does not mention mortgage loan originators, while it does mention realtors. That is important. The difference between us is Dodd Frank and the Safe Act regulations. The meltdown of 2008-2009 caused us to become “special”.
The second link takes you to the Department of Labor and its classification of mortgage loan originators as employees. Lots of information here. Look at the third paragraph down. Not exempt, are employees.
Just to repeat – the minute you are sponsored by a Broker Business or a Lender, you are an employee. That was the one of the most important motivations for the passing of Dodd Frank. SUPERVISION.
The Department of Labor and the MBA fought this all the way to the Supreme Court. See second paragraph down. Mortgage Loan Originators lost. The Department of Labor won.
The fourth ink will answer the question about owners. Such as – how can an owner pay themself, do they need to be W-2? Do they need to pay self-employment taxes? The answer is probably, but especially yes if they are taking commissions deal by deal and the CFPB requires them to have a comp plan exhibit because of that.
Distributions are the big myth here. Distributions are exempt ONLY if the distribution is a bona fide return of paid in capital. Otherwise, distributions are also taxable.
So here is the final link for you owners to consider. This is also from the IRS.
Finally, yes we know all about those NMLS entities that proudly proclaim you will be treated as a 1099. That is their business decision, it is based on their appetite for risk, and it is not a justification for a small broker or lender to fall in behind them and risk losing everything if caught in a tax avoidance scheme.
If you Broker Businesses and small Lenders are still thinking about paying NMLS MLOs as 1099s when per DF and the Safe Act you sponsor them as an NMLS MLO, please think again.
Regarding Conflict of Interest and Dual Employment
Folks,
Here are my comments about this mortgagee letter. Bear in mind, I certainly don’t see it as clearly written and it leaves several issues open to potentially multiple interpretations. I do believe that with careful reading and application of common sense, we are all using our best good faith efforts to comply. That could be an important mitigating factor if a mortgagee errs while trying to apply this mortgagee letter.
I lifted this information directly from 2022-22. My thoughts are captioned as “Comment”. Remember, this is just my interpretation. It might be different from yours.
Employees (I.A.3.c.iv(B)(3))
(b) Standard [Text was deleted in this section.]
(i) Eligibility of Employees
HUD: The Mortgagee must not employ any individual who will participate in FHA transactions if the individual is suspended, debarred, under a Limited Denial of Participation (LDP), or otherwise excluded from participation in FHA programs (see Restricted Participation (V.A.2.b.i(B)))
Comment: This is nothing new. You need to be checking status once a year for all employees, with or without licenses.
(ii) Compensation
HUD: The Mortgagee must not compensate employees who perform underwriting or Quality Control (QC) activities on a commission basis.
Comment: This is nothing new. You can never incentivize an underwriter or QC person; it can compromise the quality of their decisions.
HUD: The Mortgagee must report all employee compensation in accordance with IRS requirements.
Comment: IRS requirements means you apply the control test. To me this means employment tax returns. Thus, all staff should be W-2. This is federal guidance, trumps state guidance.
(iv) Conflicts of Interest
HUD: The Mortgagee’s employees will be subject to FHA’s Conflict of Interest policy.
Comment: This will be addressed below, item f.
(v) Underwriters
HUD: The Mortgagee must ensure that its underwriters are not managed by and do not report to any individual who performs mortgage origination activities.
Comment: This means no one who originates should supervise underwriters. Senior executives supervise, so they are likely OK.
HUD: The Mortgagee must ensure that its underwriters:
meet basic eligibility requirements (I.B.3.b); and
perform the underwriting function in a manner consistent with FHA guidelines.
Comment: No changes here.
(vi) HECM Originators
HUD: The Mortgagee and any other party that participates in the origination of a HECM transaction must not participate in, be associated with, or employ any party that participates in or is associated with any other financial or insurance activity, unless the Mortgagee demonstrates that it or any other party maintains firewalls and other safeguards designed to ensure that:
individuals participating in the origination of the HECM must have no involvement with, or incentive to provide the Borrower with, any other financial or insurance product; and have firewalls in place to prevent this conduct.
the Borrower must not be required, directly or indirectly, as a condition of obtaining a HECM, to purchase any other financial or insurance product. This is nothing new.
Comment: This is pretty clear. This is not a prohibition to dual licensing, but rather a prohibition to doing both the loan and an insurance sale simultaneously. I continue to believe a sufficient cooling off period would be evidence of a “firewall”. I define that as 90 days minimum, with the insurance sale NOT CONTEMPLATED when the mortgage loan is originated.
f. Conflicts of Interest
HUD: This policy applies to all FHA-insured transactions unless otherwise specified in program requirements.
Participants that have a direct impact on the mortgage approval decision are prohibited from having multiple roles or sources of compensation, either directly or indirectly, from a single FHA-insured transaction. These participants are:
underwriters
Appraisers
inspectors
engineers
Comment: This means participants who DO NOT HAVE a direct impact on the mortgage approval decision are NOT prohibited. This guidance uses the word “are”. It does not say “includes” or “might include” or is not limited to”. To me, this means this is an all-inclusive list of prohibited parties. It does not mention realtors. This may mean realtors can now have two roles. Then there is the issue of a senior executive? This means the executive CANNOT have direct impact on an approval decision, meaning no CEO etc. can over-rule an underwriter.
HUD: Indirect compensation includes any compensation resulting from the same FHA-insured transaction, other than for services performed in a direct role. Examples include, but are not limited to:
Compensation resulting from an ownership interest in any other business that is a party to the same FHA-insured transaction; or
Compensation earned by a spouse, domestic partner, or other Family Member that has a direct role in the same FHA-insured transaction.
Comment: Here I think we must look to the use of the phrase “in a direct role”. This means not passive. If services are performed in a direct role, indirect comp would be allowed. Also, the prohibition is directed at the mortgage approval decision. That seems to open the door to a realtor with an MLO license.
HUD: The Mortgagee must ensure that participants with a direct impact on the mortgage approval decision do not have multiple roles or sources of compensation from the same FHA-insured transaction.
HUD: Participants that do not have a direct impact on the mortgage approval decision may have multiple roles and/or sources of compensation for services actually performed and permitted by HUD, provided that the FHA-insured transaction complies with all applicable federal, state, and local laws, rules, and requirements.
Comment: Opens the door to the realtor issue.
If any of my comments seem questionable, please seek a second opinion from an attorney with proper mortgage industry experience. As I stated right up front, I certainly don’t see it as clearly written and 2022-22 leaves several issues open to potentially multiple interpretations. Use these comments at your own risk.
Carrington Mortgage Services, a non-prime lender and servicer, has been ordered to pay back $5.75 million to the homeowners it “cheated” out of their forbearance and repayment options during the COVID-19 health crisis.
An investigation by the Consumer Financial Protection Bureau (CFPB) found that Carrington repeatedly provided false information about pandemic housing protections, deceived consumers into paying late charges they did not owe, and botched homeowners’ credit reports.
“Carrington Mortgage unlawfully withheld legally mandated pandemic protections, wrongly imposed fees, and reported false information to credit reporting companies,” said CFPB director Rohit Chopra. “Homeowners were misled and denied key protections at a time when they were in most need of help.”
The CFPB said the nonbank mortgage company, which serviced nearly half a million GSE-backed loans as of September 2020, violated the Consumer Financial Protection Act when it misrepresented the requirements of the CARES Act and related federal agency guidelines.
“The company misrepresented to borrowers that they could not have 180 days of forbearance upon request and that certain borrowers could not have forbearance at all,” CFPB said in a statement. “Carrington also implied that homeowners had to make more detailed attestations than were actually required by law, and the company imposed late fees when they were not permitted.”
Just goes to show you, the CFPB is watching us .
If you have any questions or need assistance, contact me at (800) 656-4584.
On an important side note – Whatever you do, do NOT overreact to these rates. It will pass. We will be OK. And once you give up your freedom by joining someone out of fear, you will never be the same!
Three more co-conspirators have been taken into custody on charges related to a multi-layered mortgage fraud, credit repair and government loan fraud scheme, the US Attorney’s Office for the Southern District of Texas announced.
Heather Ann Campos, David Lewis Best Jr. and Stephen Laverne Crabtree had evaded law enforcement for several months, officials said. Campos, 43, of Houston, was up for a detention hearing while Best, 56, of Spring, Texas, and Crabtree, 62, of Herriman, Utah, remained in custody pending further criminal proceedings.
All three are accused of sending numerous sovereign citizen letters to federal agencies and the federal court in Houston declaring themselves immune from prosecution and refusing to recognize the authority of the federal courts, justice officials said.
Campos and Best were indicted in January on numerous charges for participating in a conspiracy to defraud mortgage lending businesses, banks, the Small Business Administration, and the Federal Trade Commission, according to the complaint. They indicated they would self-surrender before allegedly fleeing from law enforcement. Since that date, several other co-conspirators were indicted, officials added, including Crabtree. He was released on bond and became a fugitive.
Those indicted include Steven Tetsuya Morizono, 59, of Mission Viejo, Calif,; Albert Lugene Lim, 53, Laguna Niguel, Calif.; Melinda Moreno Munoz, 41, Elvina Buckley, 68, Leslie Edrington, 65, and ShyAnne Edrington, 29, all of Houston.
The charges allege Campos and Best recruited clients for credit repair using company names of KMD Credit, KMD Capital and Jeff Funding, among others. They allegedly “cleaned” their clients’ credit histories by filing false identity theft reports with the FTC, justice officials said.
“After fraudulently inflating client credit worthiness, the co-conspirators fraudulently obtained credit cards, disaster loans and mortgages for themselves and their clients, according to the charges,” justice officials said. “They were allegedly able to accomplish this through false statements and fake documents.”
Campos was a mortgage broker and Buckley a realtor, while operating as a notary was the responsibility of Munoz, according to the charges. After fraudulently inflating client credit worthiness, the individuals allegedly obtained rental properties to deceptively build a real estate portfolio worth millions of dollars in their clients’ names and profit from rental income. The charges allege Crabtree was a credit repair client and recruited others, including his family members, and conspired to commit wire fraud.
They also allegedly obtained loans from banks and the SBA’s Economic Injury Disaster Loan Program and Paycheck Protection Program, justice officials said. They were created in the names of clients, friends and family members through false statements and fake or altered documents, officials added.
Using the alias Jeff, Morizono was the leader and namesake for the scheme purporting to do business as Jeff Funding, according to the charges.
If convicted, they each face up to 30 years in federal prison and a possible $1 million maximum fine.
The Federal Housing Finance Agency – Office of Inspector General (OIG), U.S. Postal Inspection Service and SBA – OIG conducted the investigation with the assistance of the FTC – OIG and IRS – Criminal Investigation.
Other agencies assisted with the arrests of Campos, Best and Crabtree, to include The Unified Police Department of Greater Salt Lake; police departments in South Jordan, Riverton, and Herriman, Utah; FBI Hostage Rescue Team; U.S. Postal Inspection Service – Pittsburgh and Salt Lake City Divisions; and the U.S. Marshals Violent Fugitive Apprehension Strike Force.
The news comes amid a spike in mortgage fraud. According to a CoreLogic report, mortgage fraud risk soared in the fourth quarter of 2021 due to a drop in overall loan application volume and the shift to a purchase market.
CoreLogic’s 2021 Mortgage Fraud Report showed a 37.2% year-over-year increase in fraud risk at the end of the second quarter of 2021. The large increase followed a drop seen in 2020 – a decrease driven mainly by the surge in traditionally low-risk refinances during the pandemic.
When business slows down, regulator activity goes up. This is when you need to be super diligent about your compliance efforts and record keeping.
From the CFPB: Permissible methods of compensation. Compensation based on the following factors is not compensation based on a term of a transaction or a proxy for a term of a transaction:
A. The loan originator’s overall dollar volume (i.e., total dollar amount of credit extended – the Loan Amount – or total number of transactions originated), delivered to the creditor. See 1026.36 – Prohibited Acts or Practices – comment 36(d)(1)-9 discussing variations of compensation based on the amount of credit extended. Lender paid loans cannot be paid on splits of FEE INCOME. Basis points of funded loan amount only. Borrower paid can split commissions paid by borrower, but not include lender contributions from the back end. Comp can only come from one source or the other.
B. The long-term performance of the originator’s loans.
C. An hourly rate of pay to compensate the originator for the actual number of hours worked.
D. Whether the consumer is an existing customer of the creditor or a new customer.
E. A payment that is fixed in advance for every loan the originator arranges for the creditor (e.g., $600 for every credit transaction arranged for the creditor, or $1,000 for the first 1,000 credit transactions arranged and $500 for each additional credit transaction arranged).
F. The percentage of applications submitted by the loan originator to the creditor that results in consummated transactions.
G. The quality of the loan originator’s loan files (e.g., accuracy and completeness of the loan documentation) submitted to the creditor.
For those of you who did not live through the crash of 2009-2012, you should note that when production took a dive, audit activity and fines increased. Are you ready for an audit?
Please use the attached link for your HUD important disclosure on your websites. This was tested as of today and works correctly. You need to change this on your important disclosures website tab.
This is important, please do not ignore this request.
Here is the verified link. Subject to change at any time. Use at your own risk.
This three-in-one course will be a two-hour session and is for the Compliance Officer and/or CEO/President.
It will cover three critical areas of Independent Certification. I will act as the Independent Certifier.
An annual Independent Certification of your adherence to the Anti Money Laundering Rules.
2. An Independent Risk Assessment Review, one is due every six months. I will provide a model for you to work with. Lenders and regulators are requesting this on an increasing basis.
3. An informative discussion about Cyber Security and the requirements for Brokerage Businesses and small Lenders. We will use New York’s Program as the model. We will discuss if you have any special reporting requirements, based on your state and company census.
The cost for this session is $750. If you are a client of our company, the price is $500.
It will include AML and Risk Certifications, and your entire management Team can attend. This is NOT for MLO staff.
This information is frequently required when applying to new Lenders or being audited by your Regulator.
To request a slot and get this scheduled send an email to me at nl@lockelaw.us
Locations of reverse mortgage complaints, company response rates
By far, the state with the highest number of reverse mortgage-related complaints submitted to the CFPB was California, totaling 110 complaints (or 17.8% of the total). This is not particularly surprising, since California is far and away the most active reverse mortgage state in the country. Nine of the top 10 reverse mortgage lenders in 2021 all feature California as their most active state.
Florida came in second, with 81 reverse mortgage-related complaints (or 13.1% of the total) submitted to the CFPB in the same period. This is followed by Texas (58); New York (29); and Arizona (19) rounding out the top 5, with similar correlations to general loan activity for the industry.
In terms of a company’s response to the complaining consumer, all 618 listed complaints are accounted for with the vast majority — 595 — being listed as “closed with explanation.” Six of the complaints remain in process as of February 16. Interestingly, only 133 of the complaints (21.5% of the total) have received a direct response to the consumer by the company, with the majority of those instances seeing the company elect not to make that response publicly available in a CFPB database.
You all need to have a login and password set up at the CFPB Lender Portal. Here is the link.
You should check contents at least every 90 days. If you have a complaint you ignore, it is a red flag and a sure express ticket to a visit from your regulator.
Well, here we go. Take a really good look at the last one. I already have one client that has received notice of audit. I can tell you it is my opinion that there will be some “fishing” going on. The CFPB will be looking to find justification for all this bluster.
Redlining. Redlining has been a top priority since the Bureau’s inception in 2011 and both the Trump and Biden administrations, and that the CFPB intends to take “fresh approaches,” citing the DOJ’s anti-redlining initiative.
Appraisal bias. Home valuations have traditionally been based on human judgment and discretion, and additional objective controls are needed. The CFPB has already held meetings with industry representatives concerning the policies, procedures and controls currently in use to better understand valuation issues. The Bureau is also partnering with the FHFA and prudential agencies on a long-standing rulemaking for QC standards for automated valuation methods stemming from a requirement in the Financial Institutions Reform, Recovery and Enforcement Act of 1989, which is currently in the pre-rule stage.
Special purpose credit programs (“SPCPs”). Also a top priority of Director Chopra, the CFPB seeks to promote usage of SPCPs to increase equitable access to credit.
Small business lending. The CFPB issued a notice of proposed rulemaking that would implement Section 1071 of the Dodd-Frank Act in September 2021, and encouraged public comments, which are due on January 6, 2022.
Limited English Proficiency (“LEP”) consumers. LEP individuals face unique challenges in learning about and accessing consumer financial products and services because disclosures are generally not available in non-English languages. The CFPB’s LEP guidance issued in January 2021 sought to provide better guidance to the industry on serving LEP consumers, and in September 2021, the Bureau’s publication of a blog post on how mortgage lenders can better serve LEP borrowers.
Focus on unfairness and discrimination in examinations and supervision. Violations of law will not be tolerated, especially during the pandemic. In the CFPB’s quest to advance racial and economic equity, the Bureau has now increased resources targeted toward small business lending. The CFPB will also pursue “other illegal practices outside of ECOA and HMDA,” with the goal of using its authority to narrow the racial wealth gap and ensure markets are clear, transparent and competitive. (What????)
Call me if you want to discuss. Our number is (800) 656-4584 and my email address is nl@lockelaw.us
As you take applications this month and next, be aware of this issue. Plus, be sure you use the Covid disclosure we provide in your initial application package.
“If you’re looking for help with rent and utilities, you’re not alone. The CDC issued a NEW eviction moratorium on August 3, 2021, temporarily halting evictions in counties where COVID-19 is spreading rapidly.
If you gave your landlord a declaration by July 31, and it’s still true, you are still protected from eviction for unpaid rent until October 3rd, 2021. If you need help and have not submitted a declaration, this new CDC moratorium may help you avoid eviction, but you must take action. Learn more about this new order and the help available to you.”
(From the Consumer Financial Protection Bureau)
If you have any questions about this, feel free to call us at (800) 656-4584
You will not have to be licensed with DFI under the following scenarios:
You are a W2 employee Loan Processor for a licensed mortgage broker(s). Generally, you must work from a licensed location (main or branch office). See WAC 208-660-300(14)(link is external) for more information.
You are a W2 employee Loan Processor for a loan processing company that has a mortgage broker license. Generally, you must work from a licensed location. See WAC 208-660-300(14)(link is external) for more information.
You must have a license with DFI under the following scenarios:
You must have a loan originator license if you work as an independent contractor Loan Processor (receive a 1099) for a licensed mortgage broker. You must work from a licensed location under the mortgage broker license.
You must have a loan originator license if you work as an independent contractor Loan Processor (receive a 1099) for a loan processing company. You must work from a licensed location under the loan processing company’s mortgage broker license.
You must have a mortgage broker license if you own a processing company that independently contracts (receives a 1099) with licensed mortgage brokers to process loans. Your W2 employees and independent contractors (1099 paid workers) must work from a licensed location. Your independent contractors must be licensed as loan originators.
If you have any questions, give us a call at (800) 656-4584.
CFPB slaps 1st Alliance Lending for illegal mortgage-origination practices
The Consumer Financial Protection Bureau (CFPB) has taken 1st Alliance Lending and three of its top executives to court for allegedly engaging in various illegal mortgage-lending practices.
Filed in the US District Court for the District of Connecticut, the lawsuit claims that the Hartford, Conn.-based home lender – with the participation, knowledge, and direction of its managing executives John Christopher DiIorio (CEO), Kevin Robert St. Lawrence, and Socrates Aramburu – violated the Truth in Lending Act (TILA), the Fair Credit Reporting Act (FCRA), the Equal Credit Opportunity Act (ECOA), the Mortgage Acts and Practices—Advertising Rule (MAP Rule), and the Consumer Financial Protection Act of 2010 (CFPA).
1st Alliance originated residential mortgages from 2004 to September 2019, halting its operations in November 2019 due to fraud allegations.
In the course of its mortgage lending business, 1st Alliance allegedly used unlicensed employees – rather than licensed loan officers – to engage in mortgage origination activities. The Bureau said that the activities were in violation of the TILA and Regulation Z, and were illegal under state law.
“1st Alliance’s use of unqualified sales employees to deprive consumers of critical, accurate, and timely loan information was unfair,” CFPB said in the court filing. “The Bureau also alleges that 1st Alliance violated Regulation Z by requiring consumers to submit documents verifying information relating to the consumer’s residential-mortgage-loan application before providing them a Loan Estimate.”
Moreover, CFPB alleges that 1st Alliance employees denied credit to consumers based on information in their consumer report during the same period. And when they did respond to the applications, the company failed to give consumers the “adverse action” notice required under FCRA and ECOA.
1st Alliance also repeatedly violated the MAP Rule and CFPA by misleading representations, omissions, or engaging in practices “concerning whether 1st Alliance’s employees were licensed mortgage-loan originators, whether the consumer had been preapproved or guaranteed for a particular program or term, and whether and on what terms the consumer was likely to obtain refinancing.”
OK, then. Need a great Compliance Company? Call us at (800) 656-4584.
President-elect of the United States Joe Biden has nominated Federal Trade Commissioner Rohit Chopra to serve as the new director of the Consumer Financial Protection Bureau (CFPB), signaling that the incoming Biden administration aims to return the Bureau to its original enforcement posture.
If you want to protect yourself, call us. (800) 656-4584.
If you are an MLO looking to change employers and are currently sponsored by a Mortgage Broker Business or Lender, pay attention to these issues.
You must give good notice, and that is usually in your employment agreement. If it is NOT, then reasonableness applies. Which to me means 30 days written notice to insure good customer service and some continuity of planning for both parties. Yes, its an “at will” deal usually, but a contract can change that.
Your pipeline and your work in progress belongs to your current sponsor, not you. If you sabotage your sponsor’s pipeline, it is theft.
Any leads you obtained while working for your sponsor, belong to your sponsor. So you can’t “take your electronic rolodex” with you unless you ask, and your current sponsor agrees.
Don’t have your assistant quit before you, go to work for a new sponsor, and work leads you steal from your prior sponsor. The regulators have seen this before and you are not fooling anyone or avoiding liability.
This is important. The person that hires you is equally liable if they know even a scintilla of the facts regarding where you got your leads, or if they allow you to bring purloined files over via the “assistant” ploy. Now, you have a Dodd Frank, conspiracy, and theft issue.
Many regulators will pursue not only the dishonest MLO but also the new sponsor that takes them in.
Notice I said dishonest? This is a moral turpitude/fraud issue. Means you will be calling me to try and help you save your license.
Just have a conscience, and if you change sponsors, do it with class and do it the way you would want to be treated. Or else. If any of you don’t believe me, I can send you an excerpt from a regulator Administrative Complaint.
He has a new program that is 100% on line and for a limited time, you can access these classes and study at your own pace while earning the CE credits you need for your license renewal.
Give him or Andrea a call at 800-735-8565 – to get your access code for this limited time offer for free on-line CE classes.
This is better done sooner rather than later, folks.
ATR means Ability to Repay. I have been preaching about this for some time. I have seen a trend in the courts to require ATR regardless of what type of loan, or what type of borrower, or even, what type of lender.
Most lenders in the conventional or government arena require proof of ATR in order to confirm the mortgage is QM. And, they tell you how to calculate the number.
What about the weird loans we make where there is no guidance from anyone regarding the source of funds relied on to repay the loan? One thing is certain. The legal trend is that no matter what kind of loan to whatever type of person or entity, a formula for determining the ATR is necessary on almost all loans.
That’s when YOU have to rely on yourself. Because whether the lender wants to see it or not, you need to have it. Without ATR, you could find yourself defending a regulator assertion that you are a predatory lender.
Here’s my guidance, where guidance is lacking from your lender of choice.
In those cases where there is no set guidance for Ability to Repay, you must use your common sense and a formula that shows adequate assets and cash flow to support a total DTI of no higher than 50%. That maximum back end is defensible in the event of a lawsuit or a regulator challenge. If assets are the principal source of the ATR, then they MUST be highly liquid. You have to confirm that is the case.
Any questions? Give us a call. If you need a new compliance firm, we are presently offering a special package. Let us hear from you.
From a West Coast Auditor – but applicable to ALL states. Common violations found in last three months.
Mortgage Call Report – There continue to be late filers, and the numbers reported continue to show inaccuracies. Licensees should assign this reporting to someone who is detail oriented, and have a second person review the call report before filing.
Loan Officer Compensation Plans – Examiners are seeing compensation plans that pay the loan originator a percentage of the broker compensation, which is a term of the loan and not allowed by Regulation Z. Loan officers are allowed to be paid a percentage of the loan amount.Brokers may receive varying compensation levels with their respective wholesale lenders. Paying the loan originator a percentage of compensation provides an incentive to steer borrowers to the wholesale lender paying the most broker compensation. In many cases the lender paying the highest compensation will not be the most advantageous lender for the borrower. Mortgage Brokers have a fiduciary relationship with the borrower which means you must act in the best interests of the borrower.
One violation that is not common appeared during the second quarter – providing falsified borrower disclosures to the Department. Not providing a required disclosure is a violation but will not, in and of itself, lead to enforcement actions, unless there is a history of repeat violations.
Providing a falsified document is a serious violation that undermines the foundation of a licensees’ ability to conduct business (see RCW 19.146.005). This violation is always referred to enforcement. It may cause fines and penalties and even lead to license revocation.
DENVER – United States Attorney Jason R. Dunn announced today that Michael Scott Leslie, age 57, of Boulder, Colorado, pleaded guilty to federal bank fraud and aggravated identity theft charges. Leslie appeared remotely on a $50,000 unsecured bond, which was continued at the hearing’s conclusion. The Denver office of the FBI, and the Offices of the Inspector General for both the Department of Housing and Urban Development (HUD) and the Federal Deposit Insurance Corporation (FDIC) joined in today’s announcement.
According to the stipulated facts contained in Leslie’s plea agreement, Leslie owned, operated, or otherwise had an interest in several business entities, some of which were operated out of Colorado. These entities were involved in or affiliated with financing or originating residential mortgage loans. Through these business entities, Leslie sold residential mortgage loans to investors, including an FDIC-insured bank in Texas (“the victim bank”).
Between October 2015 and October 2017, Leslie devised and executed a scheme to defraud the victim bank by selling it 144 fraudulent residential mortgage loans valued at $31,908,806.88. These loans were purportedly originated by one of Leslie’s companies, Montage Mortgage, and “closed” by Snowberry, which earned fees for the closing. The loans were then presented and sold to the victim bank until Montage identified a final investor. For these 144 fraudulent loans, that final investor was Mortgage Capital Management (MCM).
Leslie never disclosed to the victim bank that he operated MCM and Snowberry, or the fact that sales to investor MCM, even if they had been real, were not arms-length transactions.
The 144 residential mortgage loans sold to the victim bank were not, in fact, real loans. The borrowers listed on these 144 fraudulent loans were real individuals, but they had no idea that their identities had been used as part of the sale of the fraudulent loans. The defendant had access to their personal identifying information in one of two primary ways: (1) the borrowers had used Montage for legitimate residential real estate transactions which were properly executed and closed, or (2) the borrowers had been solicited by Montage about refinancing their existing loans. In the case of refinance transactions, Montage secured permission from the borrowers to request credit scores and history from the major credit agencies. After receipt of those credit scores, Montage often told these would-be refinance borrowers that they did not qualify for a refinance. Leslie then recycled the borrowers’ information, obtained through prior legitimate transactions or attempted refinances, to create and sell nearly $32 million of fraudulent loan packages.
To execute this scheme, Leslie forged signatures on closing documents and fabricated and altered credit reports as well as title documents, often by using the names of legitimate companies. The fraudulent real estate transactions were never filed with the respective counties in which the properties were located, there were no closings, and no liens were ever recorded. Through numerous bank accounts for the various business entities and his personal accounts, the defendant used money in a Ponzi-like fashion from prior fraudulent loans sold to the victim bank to fund future fraudulent loans. This complex flow of money continued until the defendant’s fraud was detected. When the fraud was discovered, the victim bank still had 12 fraudulent loans, valued at $3,887,505.93, on its books that it could not, given that the loans did not exist, sell to any other legitimate third-party investor.
Chief U.S. District Court Judge Philip A. Brimmer presided over the change of plea hearing today, July 31, 2020. Leslie was first charged by information on June 5, 2020. This case was investigated by the Denver office of the FBI, and the Offices of the Inspector General for both the Housing and Urban Development and the Federal Deposit Insurance Corporation. The defendant was prosecuted by Assistant U.S. Attorneys Hetal J. Doshi and Jeremy Sibert.
A copy of this press release is located on the website of the U.S. Attorney’s Office for the District of Colorado. Related court documents can be found on PACER by searching for Case Number 20-cr-171.
The year 2020 marks the 150th anniversary of the Department of Justice. Learn more about the history of our agency at www.Justice.gov/Celebrating150Years.
With the help of a good friend we have assembled a “Return to Work” package that includes the following items.
A customer notification of the risks of COVID and its effect on business.
An employee assumption of risk and waiver of liability upon returning to the office.
A CDC handout on COVID symptoms.
A CDC handout on social distancing and the use of masks.
A CDC handout suitable for use as a door sign about masks required.
A CDC handout about how to prevent the spread of COVID.
This is available to all present clients at no charge.
If you are not a client, and want this or our COVID SPIKE Plan regarding working at home and precautions regarding non-public information, email us at nl@lockelaw.us and I will get back to you. The cost is reasonable.
Yesterday I heard from a good friend and client who contracted Covid-19. I thought about it and decided that you might benefit from hearing first hand from someone who is just emerging from a rough two weeks. This person was careful. Caught it anyway.
As they used to say on Dragnet, “the names were changed to protect the innocent.”
“Today is the first day in 9 days that I don’t have a fever. If I had more energy I would be dancing! Here are the symptoms:
Sore throat, splitting headache, extreme eye pain, fever, extreme fatigue, extreme body aches, couldn’t sleep until I remembered I had some sleeping meds (that was a big help for 3 days so I could rest at night, then I could rest without them). It would come in waves, no fever, then 101.8 30 minutes later. The only good news is no respiratory issues.
We had kept the office locked from the public for 3.5 months, but made a mistake by not requiring masks in the office for employees. I thought we were being careful enough with sanitizer and daily cleaning, but that was not the case. We don’t know who, but someone gave us the virus.
Needless to say, we now have a mask policy unless you are at your desk, alone, with your door closed. I don’t like to make the same mistake twice!”
The Department of Justice (“DOJ”) just fined Guaranteed Rate $15 million dollars for knowingly violating best quality control practices as related to FHA and VA loans in particular. Please note, Fannie, Freddie, Ginnie, and the USDA are all very similar to FHA and VA requirements.
The DOJ alleged that Guaranteed Rate knowingly failed to comply with program rules that require lenders to maintain quality control programs to prevent and correct any deficiencies in underwriting, self-report any materially deficient loans they identify, and ensure that there are no conflicts of interest in the underwriting process.
As part of the settlement, Guaranteed Rate admitted that it had not adhered to self-reporting requirements, that its FHA underwriters received commissions and gifts – a violation of program rules – and that its government underwriters were sometimes instructed not to review documents that were relevant to their underwriting decisions.
The lender also admitted that it certified loans that weren’t eligible for FHA mortgage insurance or VA guarantees, and that HUD and the VA would not have guaranteed or insured those loans otherwise.
We see this all the time. Lender tells underwriter to look away, then loan goes bad, lender tries to put it back to broker. We also see processors paid when loans fund, not for processing whether loans fund or not. To pay only when loans fund, is to create a conflict of interest such as referenced above.
If any of you have questions, reach out to me at nl@lockelaw.us
The Federal Housing Finance Agency (FHFA) this morning announced that it is approving the purchase of certain single-family mortgages in forbearance that meet specific eligibility criteria by government-sponsored enterprises Fannie Mae and Freddie Mac.
“We are focused on keeping the mortgage market working for current and future homeowners during these challenging times,” said Director Mark Calabria. “Purchases of these previously ineligible loans will help provide liquidity to mortgage markets and allow originators to keep lending.”
Due to the COVID-19 pandemic, some borrowers have sought payment forbearance shortly after closing on their single-family loan and before the lender could deliver the mortgage loan to the GSEs. Mortgage loans either in forbearance or delinquent are ineligible for delivery under GSE requirements. However, today’s action lifts that restriction for a limited period of time and only for mortgages meeting certain eligibility criteria.
If you are thinking about expanding your business, and maybe dropping some broker un-friendly states like (you know who you are), you can license yourself fairly quickly.
Compliance Services is now offering a registered agent and office space option to our clients.
Using us you can keep your startup costs low while building your Texas contacts and marketing.
If you are interested in expanding into the great state of TEXAS, contact us today. While we serve brokers and lenders nationwide, we are located in the Dallas Metroplex.
Special invitation to our Florida and California clients. Come on down!
Please be aware of this. Your lenders will be migrating loan programs away from the LIBOR and over to other, more “stable” indexes during 2020.
Some states, such as New York, have already asked for brokers and lenders to submit a plan to manage the transition. I have a template we can use if you receive such a request.
For most of you, the transition will be effortless as you do not keep the paper, thus no servicing issues regarding the LIBOR.
If you have any questions, here is a great link for information.
This Temporary Authority (120 days) relates to Mortgage Loan Originators transitioning from federally insured institutions (“NMLSR”) to non-bank lenders (“NMLS”), as well as already licensed individuals holding valid personal and/or broker or lender licenses that are moving or expanding their mortgage licensing to other states.
Thanks to Max Lewis for providing this information.
“A little less than 2 weeks ago a new process went into effect in NMLS. It is called the “Temporary Authority to Operate.” You may or may not have heard of this. Basically, it allows a loan officer to be able to start originating loans the day their loan officer license application is submitted to the state.
Please note though that there are several conditions which must be met first:
• The company must already have a license to operate in the state in which you wish to license this loan officer.
• The loan officer must be a W-2 employee.
• The loan officer must have at least one year of experience with a bank (deposit taking) preceding the date of application submission or 30 days of experience (licensure) at a non-bank company preceding the date of application submission – this is determined by the NMLS system.
• All of the requirements needed for licensure (background check, credit report, and any disclosure explanations) must be met before the license application can be submitted. What can be completed afterward is any state specific documentation, national test (if necessary) and any state specific PE. These final three items can be met once the approval is given by NMLS to operate under this new temporary authority regime. Also please note that these final three items need to be completed as soon as possible after the temporary authority is given as the state has up to 120 days to make a decision on the loan officer’ application whether to accept or deny.
• The scenario above does not apply to loan officers who have had a previous license application denied, a previous license revoked or suspended, a cease and desist order or any type of misdemeanor or felony conviction.
This new ability has several benefits to you subject to the conditions listed above:
• You will be able to hire a high producing loan officer from a bank, and that loan officer can start originating pretty much right away as long as the conditions above are met.
• You will be able to hire a high producing loan officer from a competitor who can also start pretty much right away.
In each of the two situations above, the recruited person does not need to worry about being in a position of waiting anywhere from one to four months for an approval before starting to originate for the new employer. They can start right away.”
“For the Examination Period, the Mortgage Brokerage Transaction and Lending Journal, Form OFR-494- 10 or HMDA-LAR; a listing of all applications by Loan Officer; and a listing of all Mortgage Loan Modification Applications.
SPECIFY IF ANY FUNDED/CLOSED LOANS IN THE MORTGAGE BROKERAGE TRANSACTION & LENDING JOURNAL ARE FOR INVESTMENT/BUSINESS PROPERTIES.”
If you have fooled yourself into believing you could package what would otherwise be a QM or non-QM residential loan into a non-QM loan deeded to an LLC or Corp, be warned.
The CFPB is concerned that some mortgage brokers may be shifting to the mini-correspondent model under the mistaken belief that identifying themselves as such would automatically exempt them from important consumer protection rules affecting broker compensation. The guidance sets out how the Bureau evaluates mortgage transactions involving mini-correspondent lenders. It confirms who must comply with the broker compensation rules, regardless of how they may describe their business structure.
“Before the financial crisis, consumers seeking mortgages were steered toward high-cost and risky loans that were not in the consumer’s interest,” said CFPB Director Richard Cordray. “The CFPB’s rules on mortgage broker compensation are intended to protect consumers from this type of abuse. Today we are putting companies on notice that they cannot avoid those rules by calling themselves by a different name.”
The policy guidance is available at: http://files.consumerfinance.gov/f/201407_cfpb_guidance_mini-correspondent-lenders.pdf
Mortgage brokers connect borrowers with lenders who underwrite and fund loans. In contrast, a correspondent lender, as generally understood in the mortgage industry, processes applications, provides legally required disclosures, frequently underwrites the loans, makes the final credit approval decision, funds the loans, and sells them to investors.
The CFPB is concerned that some mortgage brokers may be setting up arrangements with investors in which the broker claims to be a “mini-correspondent lender,” when in fact the broker is still essentially just facilitating a transaction between a borrower and a lender. While some brokers may be setting up such arrangements because they intend to grow into full correspondent lenders, the Bureau is concerned that other brokers may simply be attempting to evade consumer protection rules. Today’s guidance confirms that mortgage brokers who merely choose to describe themselves as mini-correspondent lenders are not automatically exempt from applicable consumer protection requirements.
The guidance sets out some of the questions the CFPB may consider in evaluating mortgage transactions involving mini-correspondent lenders in order to understand their true nature. This evaluation involves examining how the mini-correspondent lender is structured and operating, for example: whether it is continuing to broker loans; its sources of funding; whether it funds its loans through a bona fide warehouse line of credit; its relationship with its investors; and its involvement in mortgage origination activities such as loan processing, underwriting, and making the final credit approval decision.
Ya’ll better be careful out there! If you need to discuss this, just email us for an appointment to talk.
During April Audits we saw quite a few instances of Brokers relying on Lender disclosures.
These Brokers opted to quit using Point similar systems to save money.
When audited, their files were missing LEs or CDs and the Regulators cited the Broker for lack of attention to his/her client and the rules.
Brokers need to remember, the rules say that either the Broker or the Lender can prepare disclosures.
However, the Broker must be sure the client got them and the Broker must be sure the Broker has a copy for their post closing archives, in case of audit.
Last week we heard from five Florida clients that they had received a FedEx package from LBHI, who is the Bankruptcy Court collection arm for what used to be Lehman Brothers Mortgage, and Aurora Loans of Colorado. The demand letters ranged from $120K to the millions.
THIS IS A REAL ISSUE.
DO NOT THINK IT IS A SCAM.
If you received one of these letters, please contact our office at (800) 656-4584 or email me directly at nl@lockelaw.us
Do NOT attempt to handle this yourself.
This is a real issue and could cost you thousands more than necessary.
Florida Statute 494 has some changes effective July 1st, 2019 that tighten up the use of the RESPA loophole for Business Purpose Loans.
Language has been added that makes it a clear violation of FS 494 to misrepresent a residential mortgage loan as a business purpose loan.
Sound familiar? Your client lives in a property either as is full time residence or his second/vacation home. Because of his credit circumstances he cannot qualify for a QM or non-QM loan. So someone suggests he create an LLC, and make it look like an investment. Less required disclosure, higher interest rates and costs to the client. Then when the loan closes the “façade” is stripped away – the borrower is the client not the LLC, he house is his residence, he uses the proceeds to pay off his credit cards, and any cash needed comes and goes between the client and lender, not the LLC.
So what do you need to do? You need to be sure a business purpose loan is exactly that. Most if not all of the proceeds must go into a true business venture. Further, if the business purpose loan involves a RESPA property (residential) then the MLO and his sponsor better have a license. Finally, if in doubt, disclose to a higher level.
These loans will become red flags for audits. Be prepared.
Confused? Ask your compliance team. If you don’t have one, call us at 800-656-4584 and let us tell you how we can help you stay out of trouble.
I think all of you should listen to this. It is a pretty good summary of what I am experiencing with regulators already. For example, a recent Consent Order revoking licenses, fining $50,000, and barring the Broker from the Industry for 10 years.
Why? Respa violations 101.
You need to pay attention to your compliance attorney, and you need to ask frequent questions especially where advertising is involved.
I picked this up from the FTC who feeds FTC enforcement suggestions to the CFPB who feeds CFPB interpretation of the FTC suggestions to your state regulator. Its a daisy chain.
In an effort to curb inadequate compliance reporting, the FTC is introducing the following new model language that will be included in future FTC orders:
“Each compliance report shall contain sufficient information and documentation to enable the Commission to determine independently whether Respondents are in compliance with the Order. Conclusory statements that Respondents have complied with their obligations under the Order are insufficient. Respondents shall include in their reports, among other information or documentation that may be necessary to demonstrate compliance, a full description of the measures Respondents have implemented or plan to implement to ensure that they have complied or will comply with each paragraph of the Order; a description of all substantive contacts or negotiations for the divestitures and the identities of all parties contacted, and such supporting materials shall be retained and produced later if needed.”
The FTC explains that it intends this new language to clarify, not change, the requirements for compliance reporting. The CFPB, HUD, FNMA, USDA, FHLMC will all adopt this standard.
We will assist you when you have a finding requiring an action plan.
Last year, Congress voted to roll back several measures passed under Dodd-Frank, a law that many in the mortgage industry said created overly burdensome regulations. This relates to HMDA.
Among the changes was a law raising the loan-quality criteria reporting requirement exemption from 25 to 500 mortgages per year and from 100 to 500 home equity loans per year. So many of you smaller brokers and lenders were exempt.
According to the bills sponsor, Democrat Cortez Masto, the rollback effectively exempted 85% of all banks and credit unions from reporting loan characteristics vital to ensuring lending fairness.
Cortez Masto’s bill would reinstate the Dodd-Frank requirement that any bank making more than 25 mortgage loans or 100 home equity lines of credit per year report detailed characteristics, including interest rates, points and fees and loan terms, as well as borrower characteristics such as credit score and ethnicity.
The bill would also require each loan to receive a unique identifier so it can be tracked if it is sold to an investor.
Just be aware, we will keep you posted. For now, your triggers are still 25 and 100.
Here we are in late November, and there are some of you out there who need to have an independent party perform a Risk Assessment to satisfy state regulators regarding your compliance with Money Laundering Law and the Bank Secrecy Act.
We can do this for you, it will take about an hour and involves a small fee. $250 for survey and interview. The session will result in a complete Risk Assessment Report that will satisfy any requests for at least the next six months. This is an emerging trend.
If you would like to schedule this, shoot me an email at nl@lockelaw.us and let us know.
Here we are in late November, and there are some of you out there who need to have an independent party perform a Risk Assessment to satisfy state regulators regarding your compliance with Money Laundering Law and the Bank Secrecy Act.
We can do this for you, it will take about an hour and involves a small fee. The session will result in a complete Risk Assessment Report that will satisfy any requests for at least the next six months. This is an emerging trend.
If you are a small Broker shop, don’t be concerned. However, if you have multiple state licenses or more than 10 MLO staff, you may want to consider this extra step to stay in the safe zone.
If you would like to schedule this, shoot me an email at nl@lockelaw.us and let us know.
In the last ten days five clients have received audit letters from the OFR. All five clients had NOT been audited in 8 to 10 years. One had not been audited in 20 years.
It appears to me as if the OFR is on a “catch up” campaign. This means we know of three confirmed danger areas for an OFR audit.
If you are a new company with a new NMLS number, you will be audited in the first 18-24 months. Perhaps, sooner.
If it has been at least 7 years since your last audit, get ready. Use the checklist in Compliance Book Three to see how prepared you feel. Then let me know.
If you have had a consumer complaint that you failed to respond to, you can expect a visit.
But the big shocker is youold timers. Many of you may have been feeling complacent. That is not good.
Let’s pull out the checklist and be sure you feel aware and prepared.
We are now offering a two session “MOCK AUDIT” for companies who want to go the extra mile to be sure they are prepared. If you have interest, email me and let me know so we can get you scheduled.
There is a cost of $1,000 for this service. It will save you many times that much in potential fines. We have proof.
CFPB ends investigation of Zillow
By Richard J. Andreano, Jr. on June 28, 2018
Posted in CFPB Enforcement, CFPB Monitor, Mortgages
In a SEC filing dated June 22, 2018, Zillow Group announced that it is no longer under investigation by the CFPB for RESPA and UDAAP compliance with regard to its co-marketing program. Zillow Group had disclosed the existence of the investigation in May 2017.
According to the SEC filing, Zillow Group received a letter from the CFPB on June 22 stating that the CFPB “had completed its investigation, that it did not intend to take enforcement action, and that the Company was relieved from the document-retention obligations required by the Bureau’s investigation.”
The completion of the investigation leaves unanswered what concerns the CFPB may have had with Zillow Group’s co-marketing program, and whether the investigation was terminated because the concerns were addressed to the CFPB’s satisfaction or for other factors.
BE CAREFUL. JUST BECAUSE THE CFPB RELEASED ITS HOLD ON ZILLOW, IS NOT A TICKET FOR YOU TO INTO THE “GREY AREA”.
IF YOU ENTER INTO ANY KIND OF MSA, IT WOULD BE WISE TO ASK OUR ADVICE FIRST.
You can also dial in using your phone.
United States: +1 (646) 749-3122
Access Code: 223-553-717
I might have some attachments for you if time allows, but in any case we can have a good discussion about how the DF Reforms might (or might not) affect you and your business.
I was reviewing a client’s social media, to insure compliance with the Safe Act and Dodd Frank.
On his Facebook profile a new little link had appeared. It said “Mortgage Brokers”. He did not authorize this. And when we clicked on it, it contained a list of all his competitors.
OUCH.
Contact Facebook and demand that the link be removed. Keep a copy of your email to them and file it in your CFPB Advertising Log Book.
It really pays to check your social media every few weeks.
You can also dial in using your phone.
United States: +1 (646) 749-3122
Access Code: 223-553-717
I might have some attachments for you if time allows, but in any case we can have a good discussion about how the DF Reforms might (or might not) affect you and your business.
Under the TRID rule, a Loan Estimate is the disclosure primarily used to reset tolerances. Because the final revised Loan Estimate must be received by the consumer no later than four business days before consummation, the Commentary to the TRID rule includes a provision under which a creditor may use a Closing Disclosure to reset tolerances if “there are less than four business days between the time” a revised Loan Estimate would need to be provided and consummation. Because of the four-business-day timing element, in various cases when a creditor learns of a change, the creditor is not able to use a Closing Disclosure to reset tolerances. This situation is what the industry termed the “black hole.” The industry repeatedly asked the CFPB to address the black hole issue.
In the final rule the CFPB removes the four business day timing element, and makes clear that either an initial or a revised Closing Disclosure can be used to reset tolerances.
Consistent with the requirements for the Loan Estimate, when the TRID rule permits a creditor to use a Closing Disclosure to revise expenses, the creditor must provide the Closing Disclosure within three business days of receiving information sufficient to establish that a changed circumstance or other event triggering a change has occurred.
We are happy to answer any questions, just email us at nl@lockelaw.us
Recently I have encountered several situations where borrowers just flat out lied about their intent to occupy the subject property as their principal residence. The brokers were caught without sufficient evidence in their files that they properly verified the intent to the best of their ability. Thus, this affidavit was born. It covers both those who state their intention as owner occupied, and those who state their intention as non-owner occupied. If you put this on your letterhead and have it executed at closing it would be hard for a fraudulent minded borrower to point the finger back at you.
If this has happened to you and you need my help, contact me at nl@lockelaw.us
That’s it for now.
Here is the form. It is designed as a crystal clear WARNING.
“Do you intend to occupy this property as your principal residence?” or “Do you intend for this property to be non-owner occupied?”
These questions, indicated by check boxes on most mortgage loan applications, might seem straightforward. But if you misrepresent your intention, it is a crime known in real estate lingo as “occupancy fraud.”
Occupancy fraud occurs when a borrower says he or she plans to live in a home, all the while knowing the property will be rented out. The key here is to note “all the while”. People can change their minds, but they will need to show compelling evidence that at the time they applied, closed, and funded the deal they absolutely intended for the property to be either their residence or a non-owner occupied investment property.
Sometimes people change their mind after the fact. That’s less serious than someone intentionally deceiving the lender by providing information indicating they are either going to occupy or not when they truly have the opposite intention.
But it still maybe seen as an unintentional misrepresentation and give rise to a claim for damages by the lender that relied on the borrower’s statement about occupancy or investment use.
Most lenders’ loan documents define owner occupancy as a period of at least one year, but mortgage lenders have flexibility in their guidelines. If you intend to occupy a home, but move out within less than 12 months, you should notify the lender in writing and keep a copy of your letter.
Lenders perceive an owner-occupied transaction to be a safer credit risk than non owner occupied.
ONE LIE on a loan application may trigger a full-blown fraud investigation, and you’ll be facing HUGE negative consequences if you get caught. IT IS A FELONY. But it gets worse. Lying on a mortgage loan application is so serious it can also be considered Money Laundering. ANOTHER FELONY. And then, there is the usual conspiracy charge. THREE FELONIES.
Technically, the mortgage lender could call your loan due and payable, raise your interest rate and payment, or foreclose on your loan. Whatever does or doesn’t happen will be solely at the lender’s discretion.
The lender could file a Suspicious Activity Report (SAR) into the federal government’s Financial Crimes Enforcement Network (FinCEN), a centralized database that financial institutions use to report possible instances of fraud to law enforcement authorities. SARs could become a problem if you make a misrepresentation or outright false statement on a loan application and later want to move to another home or refinance your mortgage.
The Florida legislature kicked off its legislative session by introducing Florida Senate Bill 894 and House Bill 935, legislation that could cover private mortgage lenders. The bills, introduced by Sen. Rene Garcia (R-Miami) and Rep. Jeanette Nunes (R-Miami), would eliminate a longstanding business purpose exemption for loans secured by a Dwelling.
On January 18, the bill passed the House Insurance and Banking Subcommittee with a 13-1 vote in favor. On January 24, the House Commerce Committee passed the bill on a unanimous vote. The Senate similarly passed the bill on a unanimous vote in the Senate Banking and Insurance committee on January 23. The bills are expected to move through the Florida legislature and have strong bipartisan support.
An almost identical bill previously passed through the legislature in May 2017, but was ultimately vetoed by Governor Scott in June.
Florida has been one of the more interesting states from a mortgage licensing perspective. For example, a mortgage lender license is already necessary to make a business purpose loan secured by commercial real estate and 5-or-more unit multifamily residential property if the borrower or guarantor is an individual, or if the lender is considered a non-institutional investor.
If the bills become law, they would empower the state Office of Financial Regulation to regulate mortgage loans made for business purposes, require brokers of these loans to be licensed, and allow examination of firms offering or making private loans.
If this is signed into law, it means more audit activity and means that if you are a private lender making business purpose loans, you better call us and let us get you into shape before the regulators start enforcement activity. We will keep you posted.
Not much. The rewrite does some good things for the Banking Industry but……not too much for you and I.
The bill doesn’t go nearly as far as some Republicans would like to go in gutting the 2010 law. For example, it doesn’t make big changes to the Consumer Financial Protection Bureau. When it refers to smaller lenders, it looks like it is making reference to FDIC participants.
The CFPB has also made it clear it is engaging the state regulators more now than ever.
Don’t drop your guard or relax your focus on compliance. We have come so far. Let’s not go backwards.
Today, the CFPB again advised State Attorneys General (which means State Agencies as well) that the CFPB is monitoring how the states decide to undertake or not undertake enforcement action. Read this narrative taken from their site.
“Mr. Mulvaney stated that a significant, although not determinative, factor in the CFPB’s decision to initiate an enforcement action in a particular case will be whether state AGs or regulators are also considering whether to take enforcement action. He stated that if state AGs “are not bringing an action we are looking at, I’m going to want to know why.” More specifically, he would want to know whether the state’s reason is lack of resources or other factors unrelated to the merits of an action or whether it is that the state AG or regulator thinks the conduct in question is not illegal.”
In addition to various federal consumer protection statutes that give direct enforcement authority to state AGs or regulators, Section 1042 of the Consumer Financial Protection Act authorizes state AGs and regulators to bring civil actions to enforce the provisions of the CFPA, most notably its prohibition of unfair, deceptive or abusive acts or practices.
That’s the part that deserves your attention. The UDAAP provisions are broad by design and can be used to commence enforcement action for almost any reason.
Deceptive Acts or Practices
A representation, omission, actor practice is deceptive when
(1) The representation, omission, act, or practice misleads or is likely to mislead the consumer;
(2) The consumer’s interpretation of the representation, omission, act, or practice is reasonable under the circumstances; and
(3) The misleading representation, omission, act, or practice is material.
And some real or imagined consumer harm occurs as the result of the deceptive act or practice.
If a regulator sees or hears something that triggers their radar, they will examine your website and social media. Then your customer complaint log. Then the complete nature of your record keeping. Then they will interview you and measure your response.
Just be aware, folks – knowledge and training can reduce this risk greatly.
This morning we spent about an hour investigating an article recently published discussing rapid rescore where the consumer is disputing accuracy, and the issue of passing the fee along to the client.
There has been much discussion on this issue. Some feel that if the initial Loan estimate included an amount in anticipation of a rapid rescore, it might be acceptable to pass the cost on to the consumer. Others feel that 15 USC 1681i(a)(1)(A) is to be interpreted exactly as written which says clearly “free of charge” and then does not recite an exception. So it means – “free of charge” to the consumer. That leaves the credit bureau and your CRA open to charge your mortgage company. It can’t go to the consumer. Here is the exact language. Which seems to apply specifically to where a consumer is disputing accuracy.
§1681i. Procedure in case of disputed accuracy (a) Reinvestigations of disputed information (1) Reinvestigation required (A) In general Subject to subsection (f), if the completeness or accuracy of any item of information contained in a consumer’s file at a consumer reporting agency is disputed by the consumer and the consumer notifies the agency directly, or indirectly through a reseller, of such dispute, the agency shall, free of charge, conduct a reasonable reinvestigation to determine whether the disputed information is inaccurate and record the current status of the disputed information, or delete the item from the file in accordance with paragraph (5), before the end of the 30-day period beginning on the date on which the agency receives the notice of the dispute from the consumer or reseller.
So here is your best business practice. You cannot charge the consumer for rapid rescore and must absorb the cost yourself. Also, because of the CFPB comp rules we don’t see how you can ding the MLO for this cost.
The current regulatory trend is not to add new regulations. Thus existing regulations like the FCRA are being enforced more regularly. If your practice was to charge the consumer for a rapid rescore involving disputed accuracy by the consumer, and even if you brokered the loan and the lender allowed the fee on the Closing Disclosure – you could have problems during an audit or if a consumer complains. Govern yourself accordingly.
When you communicate with your entity’s attorney, if the communication has to do with legal action or regulator issues – do all you can to protect the confidentiality of the conversation the two of you are having.
If you “cc” an MLO, a processor, or for that matter any other third party other than an attorney, you may unwittingly place confidentiality at risk. You may find that emails which you intended to be private – become the subject of discovery.
All too often I see compromising situations where in the event of litigation or regulator action – your attorney client privilege might be vulnerable.
There are a couple of eccentric mortgage folks out there who publish video blogs that announced today (with great glee) that RESPA is dead. Looked like a comedy skit.
Please do not believe this sensationalism. What is going on right now at the CFPB is a leadership issue, and I think it is resolving itself in the favor of the White House. That means we will likely see a more conservative approach to adding new and aggressive tactics to the present CFPB platform. It does NOT mean the CFPB is without teeth. It does NOT mean everything the CFPB has put in place is going to be dismantled. It does NOT mean RESPA is “dead”.
Do NOT make that mistake.
Video blogs that celebrate the end of regulation are irresponsible and demonstrate why we found ourselves in this regulation situation in the first place.
If you have questions, just email me. And please folks, stay classy.
We just got this from one of our clients. Our clients can go home early and celebrate! The regulators appreciated the robust nature of our client’s concern for doing things right and protecting the consumer in the process.
Thank you to our client – you know who you are. You guys are the greatest!
If the rest of you are nervous I only have two things to say.
If you are our client and have been doing as we ask, these are the types of results you will see. So you need not be fearful. Especially if we are doing your post closing QC as part of the package.
If you are not our client, you probably need to be fearful. Call us at (800) 656-4584 and let’s see what we can do to get you into that safe place.
Things have changed again with HMDA, good for brokers and smaller lenders.
On Oct. 16, 2017, the CFPB published a new chart, the Reportable HMDA Data: A regulatory and reporting overview reference chart (“Reporting Reference Chart”). The changes relate to raising the reporting threshold volume numbers on open ended credit to where most brokers and small lenders may find themselves exempt.
I need to clarify a HMDA comment I made in an earlier blog. A broker does not have to report to HMDA a credit decision made regarding a pre-qual. But the broker does have to comply with ECOA and send the consumer an adverse action notice. Some pre-quals never get to a lender – thus the duty falls on the broker who decides not to pursue the loan. “Six items or not.” You can never go wrong sending an Adverse Action Notice. Its a best business practice.
The Uniform Closing Dataset Protocol (UCD) is a component of the Uniform Mortgage Data Program® (UMDP®), an ongoing effort by Fannie Mae and Freddie Mac at the direction of our regulator, the Federal Housing Finance Agency, to provide a common industry dataset to support the Consumer Financial Protection Bureau’s (CFPB) Closing Disclosure.
You as the Broker may be required to file this information. Some Lenders are asking for evidence you filed it as a pre-closing condition while others are doing it for you. You need to be aware of what it is and how to do it, in case you become responsible for the actual submission.
I suggest you contact the lenders that you broker Fannie and Freddie loans with and see what they choose to do. Further, this may affect VA and USDA. I’m not clear on that yet.
Here is a letter format you can use as either an email or a printed letter. It might be a good idea to include a copy of this with new loan applications for the next 180 days or so. It might even be a good idea to link your website to the below press release, you could do this on your IMPORTANT DISCLOSURE page.
EQUIFAX CYBERSECURITY INCIDENT
Dear Client,
Equifax announced recently that they had experienced a “cybersecurity incident potentially impacting approximately 143 million US customers.” Because your recent mortgage transaction with us may have involved a credit pull from Equifax, we felt you should read the attached Equifax press release.
Equifax states it has established a dedicated website which can be accessed at this link www.equifaxsecurity2017.com to help consumers determine if their information has been potentially impacted and to sign up for credit file monitoring and identity theft protection.
I get a lot of requests from clients who are hiring new MLO or other staff and are unsure of what they need to do to have a good solid hiring package.
So I created one for you. It is about 50 pages long and includes everything from an offer letter all the way to a copy of the generic HR manual. All you should do is pick the pages you need and put them to use.
If you would like this,please click below and send a request. It is FREE to current clients and $250 to non-clients.
Our Compliance Program includes all your Manuals, Annual Training, electronic media audits, Safe Act and DF Certification, and our exclusive Audit Protection Plan. Our annual fee works out to about 150 bucks a month. All inclusive. We accept credit cards. When the regulator sends the audit letter – you are NOT alone.
To send a contact request for this package, click here. nl@lockelaw.us
If you received a file named MLO Hiring Package already, it had two missing pages. I have already re-sent MLO Hiring Packaged FIXED to you. If you have the old one, just destroy it.
This is a poorly named Rule Change. Compliance is optional from October 2017 to October 2018. Compliance will become mandatory for applications received on or after October 1st 2018. Many are under the impression these changes must be implemented this October. Not so. You can implement changes according to any plan you create before October 2018, but you must have all changes in place October 2018.
Here are the key points and please remember, these are mandatory in October 2018.
1. Choice to use a CD versus an LE when checking tolerances and good faith. This is the creditors choice, not the broker.
2. Servicers will be required to provide consumer disclosures regarding partial payment policy and notice of the closing of an escrow account that was subject to RESPA.
3. You must treat cooperatives as if they were real property and provide the required RESPA TILA disclosures, regardless of how your state classifies cooperatives. Some presently call them personal property and claim they are exempt from these disclosures.
4. Now, Loans to Trusts are subject to all disclosures. Trusts will be treated as if the credit extended to natural (not artificial) persons. This is curious and should be sending a message to those of you who bundle 1 to 4 family units into new LLCs and claim exemption from RESPA-TILA. Small commercial is on the radar for RESPA TILA.
5. There are clarifications regarding construction loans. If there are going to be two phases, you must provide two GFE within three days of receiving the application for the particular phase. If only one transaction, then only one disclosure. There are many clarifications regarding how to allocate costs – see page 5 of the report attached above.
6. Simultaneous closings of a purchase money first and second – allows you to disclose the loans combined. I always recommended this. The law says your client has to understand the big picture. Have you ever seen a client try to add together two sets of GFE or LE or CD?
7. Tolerances now say if overstated, still ok. If understated more than $100, not OK.
8. If you fail to allow a consumer to shop for settlement services, there is ZERO tolerance.
9. Loan Estimate guidance is on pages 7 and 8.
10. Written list of Providers – see page 10 bottom. If you don’t use the special layout for the disclosure, you might lose the safe harbor.
11. SHARING DISCLOSURES – you can do it. Just be sure to correct so that what you send to the seller, for example, is what applies to the seller and NOT the buyer. And vice versa. You can leave the information you want to protect – off the form by providing it as blanks.
Respectfully,
Nelson A. Locke, Esq.
Mortgage Industry Compliance Expert
Attorney and Expert Witness
7800 Preston Road – Suite 118
Plano, TX 75024
Office (800) 656-4584
Cell (305) 951-2785 http://www.lockelaw.us http://expertlenderservices.com
The CFPB has released information about accuracy requirements for HMDA reporting starting in 2018.
There is controversy as to whether Brokers must file. See my earlier post regarding the language of the regulation. More than likely, you will have to report.
Under the new guidelines, there are revised thresholds for requiring resubmission, and for assessing if a full review of the sample will be performed based on errors in the initial smaller set of loans. Assessment of the data will be conducted on an individual data field basis. The new testing sample sizes and thresholds are available at this blog from Ballard Spahr
The “LAR” is the HMDA Loan Application Register. This is where you will enter your HMDA data. For institutions with fewer than 30 LAR entries, the resubmission threshold is still 3, so the effective resubmission threshold percentage is higher than 10%. As is the case currently, even if the thresholds are not met an institution can be required to correct one or more data fields and resubmit one or more data fields in its HMDA LAR if examiners have a reasonable basis to believe that errors in the field or fields will likely make analysis of the HMDA data unreliable.
The HMDA LAR and your MCR will eventually be compared for consistency. I have suggested to some clients, that keeping two logs might be a good idea. One for QM/TRID/RESPA residential loans, and one for pure commercial transactions. It may make the job easier for you down the road.
Any Questions? You can reach us at (800) 656-4584. Thanks.
Paying unlicensed mortgage loan originators or their proxies
Assistants who are acting as licensed MLOs.
Licensed MLOs you sponsor who have you pay their personal, unlicensed LLC or corp.
Licensed MLOs you sponsor who have you pay a third party entity in their name.
Lead Generators who are unlicensed but gather the type of information necessary to originate a loan – beyond mere contact information or public records.
Both the Broker and the MLO are not licensed because they think that as commercial lenders, they are exempt. The problem is the loans they call commercial, are NOT.
Advertising Issues
Ignoring SAFE ACT requirements for proper use of NMLS information.
Ignoring HUD, VA, and USDA requirements for government disclaimers.
No formal Advertising Book with a log and copies of all advertising
The Broker or Lender thinks his business cards and web sites are not advertising so he never audits them for compliance.
Not supervising your MLOs. You have rogue MLO with their own web sites and social media. You sponsor him, and you are responsible for everything he does. He can cost you your license. You think its not your duty, and it is.
Making NMLS information too hard for a consumer to locate. For example, burying it in the footer, or using 6 point type.
CFPB requirement for the use of the word LOAN after the words REVERSE MORTGAGE (UDAAP).
Mortgage Call Reports that are inaccurate.
The MCA does not match the Broker’s Loan Journal.
The MCA is late or incomplete.
Lack of Evidence of continuity in your Compliance Efforts
Failure to update.
Failure to miss required annual training.
Loan File Audits revealing substantial number of missing documents – no evidence of a complete file.
Making loans on 1-4 family residences without proper disclosures.
The loan is masquerading as a commercial loan. The “LLC” scam.
The package is missing minimal GFE and Closing Statement Requirements.
The Broker fails to do any type of qualifying.
A SPECIAL NOTE about Advertising and Maintenance of Advertising Records: We continue to see small brokers and lenders making mistakes resulting in large fines, suspensions, or revocation. If this happens to you, it can be outside of a regular audit. The different agencies, both state and federal, have staff assigned to watch what happens in print and electronic media form.
You could run an ad, post a flyer, set up a Facebook page, add your name to Linked In ……….. and if you failed to follow DF or the Safe Act requirements, BOOM.
So the first thing I wanted to say is our staff is trained to review client advertising in all forms before it goes live. Just send it via email and wait for our response.
The second thing is to insure you have a proper Advertising Log Book with samples and a dated log. Do you?
All of this is part of our Compliance Program. It is built into our fee so you are encouraged to take advantage of us.
“The Social Security Death Index is the commercial name for what the government refers to as the Death Master File (DMF). The Death Master File is available to the public; however obtaining full access is difficult. On December 26, 2013 President Obama signed the Bipartisan Budget Act of 2013 which among other things limited access to the Death Master File in order to curb identity theft. In order to access the DMF one must now be certified by the Secretary of Commerce to have a “legitimate fraud prevention interest or a legitimate business purpose pursuant to law, rule, regulation or fiduciary duty.”
In addition to being certified, there is a substantial fee. At the time of writing this, a yearly subscription costs nearly $1,400.00 per year.
Banks, financial institutions, investigators, people finding services and genealogy searching sites are among those who are certified to access the DMF. Some of these sites make the information available to the public in the form of Social Security Death Index search tools (these search tools are required by law to pay for updates to the DMF in order to keep their records up-to-date).
The Social Security Death Index contains nearly 90 million records. There are records for people born as early as the 1800’s however there are very few. These death records were originally stored in paper form in filing cabinets in Social Security Administration buildings across the county. In the late 20th century, Optical Character Recognition (OCR) software was used to digitize the records.
Because of the difficulty of keeping physical records and the tediousness of digitizing them, there are numerous errors throughout the data set – omissions, misspellings, missing data, different date formats, and typos are common. Bigger mistakes such as mixing up first and last name are not unheard of. If a name or Social Security Number is not found in the database it does not mean the person is still alive. Corrections can be made to the Social Security Death Index by submitting corrections to your local Social Security Office.”
I read the highlights of the bill and confirmed that the government did indeed institute this “fee based access”.
By a vote of 233-188, the House of Representatives passed H.R. 10, the Financial CHOICE Act yesterday. The bill, often referred to as the Dodd-Frank Act replacement bill, includes an overhaul of the CFPB’s structure and authority and makes significant changes to the rulemaking process followed by the CFPB and federal banking agencies.
As passed by the full House, the bill includes several amendments to the version of the bill passed by the House Financial Services Committee on May 4. One such amendment is the amendment introduced by House Financial Services Committee Chairman, Jeb Hensarling, to strike the provision which purported to repeal the Durbin Amendment. Based on reports we have seen, it does not appear any of the amendments impact the bill’s provisions dealing with the CFPB.
The bill’s fate in the Senate is very uncertain, with most pundits predicting it will not pass the Senate in its current form.
Hi Folks, the two subjects captioned above have been driving us nuts so we dug deeper to determine what the best advice might be. Many of our clients, especially the Brokers, feel they are exempt from both subjects. Turns out, maybe not. If I do the “lawyer thing” and sound a bit vague it’s because it is hard to interpret these masterfully written regulations. We do our best to understand them for you. We look to see where the evidence tips the scale before deciding which approach to recommend. We always take the approach that should keep you out of trouble. Sometime that means more work for you. But it’s far better than an “administrative action” for failure to comply.
Plus, it might make you a better lender or broker because you will have more of your OWN data to evaluate for opportunities or trends.
First, let’s look at HMDA. This language has changed. It now includes reference to taking applications (the six item threshold) which all brokers and most lenders do. It also establishes unit thresholds that are low enough to now include many smaller broker shops. For more on HMDA reporting: NondepCriteria04
Now let’s look at pre-quals. Pre-quals don’t affect HMDA at all, but they do affect your compliance with ECOA. Please don’t be quick to say you don’t make credit decisions. You probably are making them and just don’t realize it; for example, the client you decline after reviewing the pre-qual because you KNOW they can’t meet your lender’s guidelines. It would be foolish to take a full app when you know it can’t be successful and it would waste the client’s time and money. Your decision is based on your Lender’s guidelines. Most of you do this. Here you need to decide how you internally want to classify your pre-quals assuming they NEVER reach the six-item threshold that turns them into an indisputable application. After our research, we prepared the attached to guide you regarding pre-quals. It’s not “all or none”. Look HERE. When do you need to issue an Adverse Action Notice
Recently we received a letter from the Superintendent of Financial Services, State of New York, advising that Financial Services Providers must create an implement a comprehensive Cybersecurity Program by March 1st. So we investigated and discovered that many states are in the process of implementing the same type of requirement.
We have created such a policy. We structured it to satisfy New York’s requirements and be easily adaptable to any other state. It consists of 13 pages of guidance and two affidavits regarding Notice and Exemption – because your entity may be small enough to request an exemption once your Program is in place. However, if you don’t qualify for an exemption you must not only implement this program but have your compliance certified.
Because the Cybersecurity Program makes frequent reference to Risk Assessment, we are including a 13 page comprehensive Risk Assessment Program. New York requires this as well. Other states are trending in this direction.
If you need this, reply at the link below and I will provide it quickly. The cost is $250 for the bundle. I will invoice via PayPal.
Don’t get caught by surprise on this one.
This offer is limited to mortgage lenders and brokers that are NMLS licensees and not part of a large national bank. Credit Unions are allowed.
To request these policies, email me at nl@lockelaw.us and write CYBER in the subject line.
Hi folks, please be sure to read all the way to the bottom to see my comment.
Hot off the CFPB presses:
Dovetailing with President Trump’s recent Executive Order requiring a reduction in regulatory burden, on March 21, 2017, a CFPB official remarked at the American Bankers Association Government Relations Summit that the CFPB was planning to start its review of significant mortgage regulations, including the ability to repay/qualified mortgage rule.
The Dodd-Frank Act requires the CFPB to use available evidence and data to assess all of its rules five years after they go into effect to ensure they are meeting the purposes and objectives of Dodd-Frank, and the specific goals of the subject rule. January 2018 will mark five years since the ability to repay/ qualified mortgage rule was finalized, as well as other key mortgage regulations, in January 2013.
Citing this requirement and “common sense,” Chris D’Angelo, Associate Director of the CFPB’s Division of Supervision, Enforcement and Fair Lending, said that the CFPB is “embarking upon now the beginning of an assessment process for our major mortgage rules.” D’Angelo said that the CFPB would assess these rules’ “real-world effects” on the market, as well as “whether it had the effect which was intended, what the costs were, .”
D’Angelo noted that the CFPB was still receiving complaints related to the mortgage servicing industry despite the existence of these rules, and that most of the problems were due to “the third-party service providers and the folks who develop your technology solutions.” He also stated that incentive compensation practices would be considered but noted that “We know that you need those in order to manage larger organizations and how you drive your employees.”
Given Presidential pressure to reduce regulatory burdens and the fact that the CFPB’s mortgage rules have been criticized by financial industry participants and consumer advocates alike, the CFPB review of the key mortgage rules warrants close attention.
So what does this say? My interpretation is that they are planning on waiting until at least next year, probably after January, to issue a report supporting what they have done to us since 2013. It is in their best interest to write a persuasive report and show the best possible results. Many of you out there think this agency will disappear or be weakened by the Administration. I am asking you to be concerned about the exact opposite. Now, more than ever you better keep your compliance guard up. After we enter 2018 and actually read their findings I could make a better prediction. No matter what you hear, there is no crystal ball you can use to predict how this will go.
We recently changed our program a bit to provide free web and social media audits and free Safe Act certifications. Further, we have expanded our “repurchase defense” practice and it is working very well. Let us hear from you, and see how we can be of service.
Seventeen Mortgage Brokers and Settlement Service Providers have been charged in a 17-count indictment with conspiracy to commit bank fraud and various substantive bank fraud offenses, in violation of Title 18, United States Code, Sections 1349 and 1344.
Wifredo A. Ferrer, United States Attorney for the Southern District of Florida, Timothy Mowery, Special Agent in Charge, Federal Housing Finance Agent, Office of Inspector General (FHFA-OIG), Southeast Region, George L. Piro, Special Agent in Charge, Federal Bureau of Investigation (FBI), Miami Division, and Juan J. Perez, Director, Miami-Dade Police Department (MDPD), made the announcement.
During 2007 and 2008, the defendants conspired to perpetrate a complex mortgage fraud scheme against various FDIC-insured lenders.
The defendants conspired to fraudulently obtain mortgage loans for unqualified buyers of units in two condominium projects on the west coast of Florida: Portofino at Largo, also known as Indian Palms, in Largo, Florida; and Bayshore Landing, in Tampa, Florida.
The defendants submitted fraudulent loan applications to induce the lenders to make mortgage loans to the unqualified buyers. The submitted loan applications contained false and fraudulent statements relating to: the borrower’s occupation of, or intent to occupy, the mortgaged property as a residence; the borrower’s employment, income, and assets; the borrower’s liabilities; the borrower’s payment of an earnest money deposit and cash-to-close; the sellers’ payment of kick-backs to the borrowers; and other information that was material to the borrower’s qualifications to borrow money from the lenders and the values of the mortgage properties.
The indictment states that the co-conspirators would require certain parties to use some of the proceeds from certain of the fraudulently obtained mortgage loans to pay a fictitious “marketing fee” to one of the “marketing companies” set up by the conspirators.
If convicted, the defendants face a statutory maximum term of 30 years’ imprisonment, a $1 million fine, and mandatory restitution, on each count in the indictment.
Mr. Ferrer commends the investigative efforts of the FHFA-OIG, FBI and MDPD. The case is being prosecuted by Assistant United States Attorney Dwayne E. Williams.
An indictment is a formal charging documents notifying the defendant of the charges. All persons charged by indictment are presumed innocent until proven guilty in a court of law.
If you are concerned that you might have inadvertently done something like this, and you want us to review your situation, call us at (800) 656-4584. Sooner is better.
Florida Senate to re-open 494 with special attention to Commercial Lending and Unlicensed Loan Originators
We told you so. There has been so much abuse regarding the re-branding of residential property into commercial or investment classifications that it now looks like the state is going to close the loop hole. The OFR is tightening up what residential means, tracking it to what RESPA and TILA consider residential. Next, they are looking at those of you who tell us all the time you don’t “hold yourself out” to the public, yet you clearly do. Finally, with these new interpretations, where is your license?
If this news is making you nervous you probably need our services. You can reach us at (800) 656-4584 x103.
We have experience evaluating and advising “commercial lenders” who are in the danger zone.
If you ignore this regulatory and enforcement trend you will find yourself on the wrong end of an audit very soon.
Is this an issue? YES. Florida looks at servicing like this.
FLORIDA MORTGAGE LENDER SERVICER LICENSE Who is required to have this license? This licensing endorsement is required for any mortgage lender licensee who services a loan.
“Servicing a mortgage loan” means to receive, cause to be received, or transferred for another, installment payments of principal, interest, or other payments pursuant to a mortgage loan. A “servicing endorsement” means authorizing a mortgage lender to service a loan for more than 4 months.
Who does NOT need this license?
A person acting in a fiduciary capacity conferred by the authority of a court. Probably NOT you.
A person who, as a seller of his or her own real property, receives one or more mortgages in a purchase money transaction. So this refers to PERSONAL not held out as a business.
A person who acts solely under contract and as an agent for federal, state, or municipal agencies for the purpose of servicing mortgage loans. Probably NOT you.
A person who makes only non-residential mortgage loans and sells loans only to institutional investors. Here is the key – the legal definition of non-residential.
An individual making or acquiring a mortgage loan using his or her own funds for his or her own investment, and who does not hold himself or herself out to the public as being in the mortgage lending business. If you have a business card, and make more than two or three of these a year, this might be YOU.
An individual selling a mortgage that was made or purchased with that individual’s funds for his or her own investment, and who does not hold himself or herself out to the public as being in the mortgage lending business. Selling “notes”.
So now, ask this – What is a non-residential loan?
Legally acceptable definition – A loan that is used to purchase nonresidential property such as an office building or a factory.
Now – what is a commercial property?
Legally acceptable definition – Property used for retail or trade and not zoned residential.
CONCLUSION – Just because you “call” a 1-4 family a commercial investment, and have affidavits signed regarding NOO and not second or vacation home – that may not be legally sufficient. The RESPA definition and the definitions used above will apply.
So, be warned. On the radar for enforcement this year. If in doubt about your situation, let us hear from you.
Compliance Services intends to add this service on a limited basis.
If you have interest in our coming to your facility and “auditing” your entity to see how you would do when the state or the feds come calling, send me an email at nl@lockelaw.us.
These visits clearly show us what Brokers and Lenders thought they knew but didn’t.
These visits can save thousands in potential fines.
Back in April 2015 – HR 2121 was introduced in the House of Representatives, and the author asked for fast track. Well, it has made its way to the Senate but is stil in committee.
For those of you who were unaware, this bill would have authorized a conditional 90 day license to allow Brokers and non-bank Lenders to hire bank originators on a 90 day “honeymoon” during which the originator had to apply for an obtain a standard non-bank approval from the NMLS and their state regulator.
This was a good plan for a situation previously not considered by the CFPB or the Safe Act.
Because several of you seem to think this is in force, I wanted to advise you, it is NOT. While it passed in the House, it never passed in the Senate, thus it has died.
So don’t hire any bank originators unless they have already started the licensing process, and understand they cannot originate for you until the license is issued.
The Consumer Financial Protection Bureau (where “BATMAN” works) today ordered Prospect Mortgage, a major mortgage lender, to pay a $3.5 million fine for improper mortgage referrals in what the regulator calls an alleged “kickback” scheme.
The lender paid illegal kickbacks for mortgage business referrals. Prospect Mortgage isn’t the only one being fined. The CFPB also dealt out penalties to real estate brokers and a mortgage servicer who took kickbacks from Prospect. These three will pay a combined total of $495,000 in consumer relief, repayment of ill-gotten gains and penalties.
“Today’s action sends a clear message that it is illegal to make or accept payments for mortgage referrals,” CFPB Director Richard Cordray (“BATMAN”) said. “We will hold both sides of these improper arrangements accountable for breaking the law, which skews the real estate market to the disadvantage of consumers and honest businesses.”
Here are three reasons the CFPB said it is fining Prospect Mortgage:
Paid for referrals through agreements:
Prospect maintained various agreements with over 100 real estate brokers, including ReMax Gold Coast and Keller Williams Mid-Willamette, which served primarily as vehicles to deliver payments for referrals of mortgage business. Prospect tracked the number of referrals made by each broker and adjusted the amounts paid accordingly. Prospect also had other, more informal, co-marketing arrangements that operated as vehicles to make payments for referrals.
Paid brokers to require consumers – even those who had already prequalified with another lender – to prequalify again with Prospect:
One particular method Prospect used to obtain referrals under their lead agreements was to have brokers engage in a practice of “writing in” Prospect into their real estate listings. “Writing in” meant that brokers and their agents required anyone seeking to purchase a listed property to obtain prequalification with Prospect, even consumers who had prequalified for a mortgage with another lender.
Just yesterday a client of ours asked about a realtor who was pushing an over-market leasing arrangement for a desk that was to be exclusive but had no security as required by GLB. Further, the individual realtors who worked there openly solicited fees from the broker.
If you have a lease arrangement presently with a realtor, maybe I should take a look?
The CFPB announced that it entered into consent orders with three reverse mortgage companies to settle the CFPB’s allegations that the companies engaged in deceptive advertising in violation of the Mortgage Acts and Practices-Advertising Rule (Regulation N) and the Consumer Financial Protection Act. Each of the consent orders requires payment of a civil money penalty to the CFPB.
According to the CFPB’s consent order with American Advisors Group (AAG) (described in the consent order as the “largest reverse mortgage lender in the United States”), AAG’s advertisements (consisting of television advertisements and information kits that included a DVD and several brochures) misrepresented that a consumer with a reverse mortgage could not lose the home and could stay in the home for the rest of the consumer’s life. The advertisements also allegedly misrepresented that a consumer with a reverse mortgage would have no monthly payments and the mortgage would eliminate all of the consumer’s debts. The CFPB claimed that these statements were misrepresentations because (1) a consumer with a reverse mortgage still has payments and can default and lose the home by failing to comply with the loan terms such as requirements to pay property taxes or make homeowner’s insurance payments, and (2) a reverse mortgage is a debt and therefore cannot be used to eliminate all of a consumer’s debt.
In addition to prohibiting AAG from making similar misrepresentations in future advertising and requiring AAG to implement a compliance plan that includes an advertising compliance policy, the consent order requires AAG to pay a civil money penalty of $400,000.
According to the CFPB’s consent order with Reverse Mortgage Solutions (RMS), a reverse mortgage lender, RMS’s advertisements (which included television, radio, print, direct mail, and online advertisements) similarly misrepresented that a consumer with a reverse mortgage could not lose the home and could stay in the home for the rest of the consumer’s life, would have no monthly payments, and the mortgage would eliminate all of the consumer’s debts. The CFPB claimed that these statements were misrepresentations for the same reasons asserted in the AAG consent order.
The CFPB also alleged that the company misrepresented that a consumer’s heirs would inherit the home and that a consumer’s ability to obtain a reverse mortgage was time limited. The CFPB claimed that these statements were misrepresentations because, respectively, heirs can only retain ownership of the home after the consumer’s death by either repaying the reverse mortgage or paying 95 percent of the home’s assessed value, and there was in fact no relevant time limit on a consumer’s ability to obtain a reverse mortgage.
In addition to prohibiting RMS from making similar misrepresentations in future advertising and requiring RMS to implement a compliance plan that includes an advertising compliance policy, the consent order requires AAG to pay a civil money penalty of $325,000.
According to the CFPB’s consent order with Aegean Financial (AF), a reverse mortgage broker, AF’s advertisements (which included print, direct mail, radio, and online advertisements) similarly misrepresented that a consumer with a reverse mortgage could not lose the home and could stay in the home for the rest of the consumer’s life, and would have no monthly payments. The CFPB claimed that these statements were misrepresentations for the same reasons asserted in the AAG consent order.
The CFPB also alleged that AF misrepresented that a consumer who refinanced a reverse mortgage would not be subject to costs. According to the CFPB, this statement was a misrepresentation because a consumer who refinanced a reverse mortgage would incur costs such as credit report fees, flood certification fees, title insurance costs, appraisal costs, and other closing costs. The CFPB also claimed that the statement in AF’s Spanish-language advertisements that “if you are 62 years old or older and you own a house, we have good news for you; you qualify for a reverse mortgage from the United States Housing Department” was misleading. According to the CFPB, the statement was misleading because, while HUD provides insurance for the most popular type of reverse mortgage, a reverse mortgage is not a government benefit or loan from the government and the product is not endorsed or sponsored by the government. The CFPB also alleged that AF failed to keep records of its advertisements as required by Regulation N.
In addition to prohibiting AF from making similar misrepresentations or misleading statements in future advertising and requiring RMS to implement a compliance plan that includes an advertising compliance policy, the consent order requires AAG to pay a civil money penalty of $65,000.
Please remember, Compliance Services reviews your advertising at no charge. Send it to us BEFORE you get into trouble.
The CFPB’s proposed amendments to its rule on the disclosure of records and information is now the subject of a blog post written by Compliance Attorneys Ballard Spahr.
Entitled “CFPB Proposal Unconstitutionally Imposes Prior Restraint on Regulated Entities’ Speech,” the blog post focuses on a provision in the CFPB’s proposed rule published in the Federal Register on August 24, 2016. I previously advised you all about this. The provision would prohibit the recipient of a civil investigative demand (CID) or letter from the CFPB providing notice and opportunity to respond and advise (NORA) from disclosing the CID or NORA to third parties without prior consent of a high ranking CFPB official. The blog post explains why the proposal is not only ill-advised as a matter of public policy but is also unconstitutional both as a prior restraint on speech and a content-based restriction.
The CFPB’s proposal also includes a provision that would expand its discretion to share confidential supervisory information with state attorneys general and other agencies that do not have supervisory authority over companies.
I have previously blogged that I felt this was one of the most stupid, ill-advised rules I had ever seen. If mortgage industry participants cannot share their audit experiences they lose the opportunity to benefit from a peer’s audit and thus improve their operations based on someone else’s experience. Benefitting the consumer, of course. At other time in any other universe, working together would have been encouraged.
So let’s see how this ends up. I would bet Mr. Trump would have a field day with this rule.
Call me if you need assistance with your Compliance Program. A nationwide service, we have hundreds of satisfied Brokers and Mini-C’s and we can assist you as well. Ask about our Audit Protection Plan. Nothing like it, anywhere.
I just received a marketing email that came from a think tank in DC. It made reference to something called the Data Transparency Coalition,and was presenting training on financial transparency to be presented by a representative of the US Treasury.
So, at the bottom it also said this:
“Workshop Available to Federal, State and Local Government Employees Only. Press is NOT Invited to Attend to Permit Candid Discussion at this Educational Workshop”
Would you find this as amusing as I do? What are they discussing that they need to exclude some outside attendance? I swear its true.
Also a quick comment on those of you who feel like Dodd Frank will be abolished. Just my opinion, no it won’t. It will be modified and refined and probably made smaller. But it is here to stay. The great recession will guarantee that we will never be allowed to operate without stricter compliance parameters. Don’t delude yourself.
It is the end of the year and many of you must re-certify for NMLS and State purposes – making important statements about your compliance in your financial reports.
If you are stretching the truth or maybe not ready for an audit at all, please call us at (800) 656-4584 x103. We can help and if we hear from you this week we can certify you for year end. We work pretty quickly this time of year to insure you can be truthful when you re-certify.
The Federal Financial Institutions Examination Council (FFIEC), whose members include the CFPB, has finalized guidance setting forth a revised uniform interagency consumer compliance rating system (CCRS). The revisions reflect changes in consumer compliance supervision since the current rating system was adopted in 1980. The other FFIEC members are the Fed, FDIC, NCUA, OCC, and State Liaison Committee.
The FFIEC members plan to implement the revised rating system for consumer compliance examinations that begin on or after March 31, 2017.
The CCRS includes three categories of assessment factors: board and management oversight, compliance program, and violations of law and consumer harm. The assessment factors in the three categories consist of the following:
To assess an institution’s board and management oversight, examiners will consider: oversight and commitment to the institution’s CMS; effectiveness of the institution’s change management process; comprehension, identification and management of risks arising from the institution’s products, services, and activities; and any corrective action undertaken as consumer compliance issues are identified.
To assess an institution’s compliance program, examiners will consider: whether the institution’s policies and procedures are appropriate to the risk in the institution’s products, services, and activities; the degree to which compliance training is current and tailored to risk and staff responsibilities; the sufficiency of monitoring, and if applicable, auditing, to encompass compliance risks; and the responsiveness and effectiveness of the consumer complaint resolution process.
To assess an institution’s violations of law and consumer harm, examiners will consider: the root causes of any violations identified during examinations; the severity of any consumer harm resulting from the violations; the duration of time over which the violations occurred; and the pervasiveness of the violations. The CCRS includes incentives for self-identification and prompt correction of violations.
The revised rating system uses a scale of 1 through 5, with 1 representing the highest rating and lowest degree of supervisory concern and 5 representing the lowest rating and most critically deficient level of performance and thus the highest degree of supervisory concern. An institution’s overall rating under the CCRS is intended to reflect a comprehensive evaluation of the institution’s performance under the rating system by considering the categories and assessment factors in the context of the institution’s size, complexity, and risk profile.
The CCRS does not assign specific numeric ratings to any of the above assessment factors and an institution’s rating is not be based on a numeric average or any other quantitative calculation. As a result, an institution does not have to receive a satisfactory rating in all categories to receive an overall satisfactory rating. Conversely, even if some assessments are rated as satisfactory, an institution can still receive an overall less than satisfactory rating.
The important note is YES this does apply to small Brokers and Lenders and has already been rolled out in a few states. In recent audits, it has been used thoughtfully and seemed fair. Frankly the people having the worst audit experience are those who think they are somehow “above” the process. Be warned.
Back in May 2016 the Department of Labor (“DOL”) announced that effective December 1st, 2016 employers would have to raise the salary level of exempt employees to $47,476 per year for the employee to still be considered exempt. That is about $900 a week.
Now I am getting panic calls and emails asking me if this means you should increase your mortgage loan originator hourly wages to keep the exemption. So here comes the shocker.
Folks, your mortgage loan originators are NOT exempt. This December 1st rule applies to true administrative employees and managers. Based on last years DOL ruling, this new ruling does NOT apply to mortgage loan originators. MLOs have not been exempt since May of 2015. The MB had sued the DOL to make them exempt, but SCOTUS agreed with the DOL regarding the DOL ruling that MLOs were not exempt because MLOs were involved in sales.
Let’s start out with the history behind the rule.
Under the old administrative exemption of the FLSA, employees who are paid on a salary basis of at least $455 per week (pre-December 1st 2016) may be exempt from overtime compensation if the employee’s primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers, and their primary duty includes the exercise of discretion and independent judgment with respect to matters of significance. Employees in the financial services industry generally meet the duties requirements for this exemption if their duties include work such as collecting and analyzing information regarding the customer’s income, assets, investments, or debts; determining which financial products best meet the customer’s needs and financial circumstances; advising the customer regarding the advantages and disadvantages of different financial products; and marketing, servicing, or promoting the employer’s financial products; provided, however, that their primary duty is not selling financial products.
There’s the rub: provided their primary duty is NOT selling financial products.
So, pretty much, any MLO who is originating cannot be considered exempt any longer. So December 1st does not affect them. It affects non-selling managers and administrative staff. The new level of over $900 a week is real. That is what you should review.
Back to your MLOs. What can you do to protect yourself from being sued for overtime by a disgruntled or opportunistic former MLO?
Don’t fight the rule but rather have a policy in writing that prohibits any non-exempt employee (which is what the DOL calls your MLO staff) work beyond 35 hours a week unless approved in writing.
If you enforce this strongly I think this creates a rebuttable presumption for the DOL that you may have used your best reasonable efforts to comply.
You may experience an MLO who stepped outside his job description if he worked more hours than 35 hours a week without written approval. If you kept an eye on him or her and then they raise this issue, you can counter with an “ultra vires” or “frolic and detour” argument. The key to this is to enforce your policy and keep an eye on your non-exempt employees.
You would need a procedure in place that creates and monitors regular non-exempt employee time sheets and has your non-exempt employee sign a certification about hours worked under penalty of perjury every pay period, whether they have commission due or not. And you would need to demonstrate you enforce your rule and send people home when appropriate.
SUMMARY: Mortgage Loan Originators are non-exempt employees. As such they are subject to the protections of the overtime rule of the FLSA. If you don’t monitor and manage their hours worked, you can end up in a very bad place. Don’t prohibit overtime; rather require they obtain your pre-approval in writing. Next, monitor every pay period with non-exempt employee certification regarding hours reported. Keep these records carefully. When you find a violator, be able to show you enforce your own rules.
ONE FINAL COMMENT. We are still engaging with plenty of loan originators who think they can be paid as a 1099 contractor. The DOL decision applies the common law definition of employee.
Here you go, compliments of Black’s Law Dictionary. “Black Letter Law”.
“An employee is a person who works in the service of an employer under an express or implied contract of hire, under which the employer has the right to control the details of the work performed.”
So you have a license that requires a sponsor who is paid instead of you, who provides you with documents, compliance overview, and training, and maybe even leads. And you must originate and process your loans under his or her direction. And then, your employer has to pay you from what he is paid, because you cannot be paid directly under the current rules.
If you still think you are independent, you are just not listening. You are an employee.
I got a call from a client about changes to HMDA, specifically if these changes affected him as a Broker only. Usually Brokers left this function up to their lenders because the lenders made the credit decision.
There are some new rules going into effect. The new rule eliminated the asset test for lenders. Whereas in the past some lenders may have been excluded from having to file because their assets were smaller, that’s no longer the case. There are some other major changes coming in 2017.
The language I saw said if Lenders made the lending decision on at least 25 loans that closed in the last year then they had to file. This is a significantly lower threshold than the current 2016 level of 100 closed loans. But then the CFPB chimed in.
The CFPB published a warning sent to 44 “Brokers and Lenders“. The CFPB uses the word “Brokers”. Why did they say “Brokers”?
So here is what I found, the rule the CFPB pointed to does not talk about the lending decision. It specifically mentions originating home purchase loans. This is taken from the CFPB letter.
Annually, a for-profit mortgage-lending institution other than a bank, savings association, or credit union, must collect, record, and report data identified in HMDA and Regulation C to the appropriate Federal agency when: (i) in the preceding calendar year, it either: (A) originated home purchase loans, including refinancings of home purchase loans, that equaled at least 10 percent of its loan-origination volume, measured in dollars; or (B) originated home purchase loans, including refinancings of home purchase loans, that equaled at least $25 million; and (ii) on the preceding December 31, it had a home or branch office in a Metropolitan Statistical Area (MSA); and (iii) it either: (A) on the preceding December 31, had total assets of more than $10 million, counting the assets of any parent corporation; or (B) in the preceding calendar year, originated at least 100 home purchase loans, including refinancings of home purchase loans. 12 C.F.R. §§ 1003.2, 1003.4, 1003.5.
Guys, I think you better crank up your HMDA data collection effective January. You could always argue with the CFPB that all you did was take an application, but the attached agency chart quickly makes that a mute point. 2016-hmda-reporting-criteria-102716
Notice how it says “receive applications, originate, or purchase”? Broad.
I will dig into this a little deeper, but for now, prepare as if you will have to report.
The debate rages on. Unfortunately, most of those who have challenged our position that an MLO must be a W-2 – are either asking the wrong people for advice, or are not asking the question in an open and honest way.
If you have found an attorney who is telling you your 1099 practice is just fine, ask him for his written legal opinion. You will need that to show to the regulator that makes this an issue. While it won’t guarantee you won’t have a finding or fine, it is a defense of sort. Except I warned you, didn’t I. And the attorney won’t pay your fine for you.
The only reasonable conclusion is that a sponsored MLO is an employee.
We include the attachment titled 22-mlo-w2-discussion-021015 to our clients at the front of our MLO Policy Manual – Book Two. You should read this first. Let’s set the stage.
Now, if you are saying your state regulator is ignoring this issue their misfeasance does not mean you are not at personal risk for violating Safe Act, CFPB, IRS, and DOJ rules. The facts are clear – the CFPB has asked the states to look for violations of federal regs when auditing. When the CFPB issued its updated exam guidance, it again asked the states to assist.
Note the reference to the common law test – the common law definition of employee. Not YOUR definition, but what the IRS test uses to determine if a MLO is independent, or not. Let me give it to you here.
Directly from the IRS:
Under common-law rules, anyone who performs services for you is your employee if you can control what will be done and how it will be done. This is so even when you give the employee freedom of action. What matters is that you have the right to control the details of how the services are performed.
You are not an independent contractor if you perform services that can be controlled by an employer (what will be done and how it will be done). This applies even if you are given freedom of action. What matters is that the employer has the legal right to control the details of how the services are performed.
NOW about the Fair Labor Standards Act:
In an attempt to interpret provisions of the Fair Labor Standards Act and discern between employee and independent contractor status, courts and federal agencies have come up with the “economic realities test.” It looks at the dependence of the worker on the business for which he or she works. If a person gains a large portion of their salary or commission from that business, chances are that person qualifies as an employee.
These courts also use the “right to control” test. When the hiring party controls the way work is carried out and a product is delivered, the relationship between the parties is employer/employee. If you are sponsored and your Broker has to answer for your work, you are an employee.
If an employer does not have any authority over how a party accomplishes his or her work the relationship between the parties is that of independent contractor. But that can’t be: you are sponsored, right? And can only “work” at one place at a time, right?
We are always looking for new clients. If you need to tighten up your compliance efforts, call us at (800) 656-4584.
Man, this is a mess out there. As part of our Compliance Program we started reviewing the condition of corporate records. We never realized how many people have no idea WHAT should be in their corporate records. We do think everybody knows WHY you need to do this (shields you from personal liability) but we have been reviewing different Secretary of State Filings and the typical mortgage broker is all over the place. No one passed with flying colors.
So let’s make a list. Because this is important.
If you are a Corporation, either a C corp (for profit and pays its own taxes ) or an S corp (pass-through to you where you pay the taxes on your return):
Articles of INCORPORATION
By-Laws
Annual Reports to your Secretary of State
Annual Meeting Minutes – the report to your Shareholders
Anything in-between where the Corporation took action that should be properly recorded and approved in your Book.
This is the same list whether one shareholder or 1000 shareholders.
If you are a Limited Liability Company it is a bit different.
Articles of ORGANIZATION
Operating Agreement
Annual Reports to your Secretary of State
Member’s Minutes from meetings with your members
And, anything in-between where the LLC took action that should be properly recorded and approved in your Book
If you are a “single member LLC” the rules are a little looser but those of you who know me, know I think that more is better. Have meetings with yourself. Keep records with yourself. You get the picture.
Hope this helps. If you are unsure of your “condition”, email me at nl@lockelaw.us
By a vote of 30-26 earlier this week, the House Financial Services Committee approved the “The Financial CHOICE Act of 2016” (H.R. 5983), the bill released in July 2016 by Committee Chairman Jeb Hensarling to replace the Dodd-Frank Act. All Democrats on the Committee voted against the bill as did one Republican member. No amendments were offered by Democratic members.
The sections of the bill dealing with the CFPB are found in Title III, entitled “Empowering Americans to Achieve Financial Independence.” Subtitles A and B entitled, respectively, “Separation of Powers and Liberty Enhancements” and “Administrative Enhancements,” contain provisions that would change the CFPB’s structure, funding, and operation. For example, such provisions would change the CFPB’s name to the “Consumer Financial Opportunity Commission,” replace the current single director with a bipartisan, five-member commission, fund the commission through the appropriations process, require the commission to verify consumer complaint information before making it publicly available, and require the commission to establish a procedure for issuing written advisory opinions.
Subtitle C, entitled “Policy Enhancements,” contains provisions directed at the CFPB’s regulatory authority. For example, such provisions would repeal the CFPB’s authority to prohibit consumer financial services or products it deems “abusive” and to prohibit the use of arbitration agreements, repeal the CFPB’s indirect auto lending guidance and require use of the notice and comment process for any new proposed guidance, and authorize the commission to grant a 5-year waiver from a payday lending rule to any state or federally-recognized Indian tribe that requests such a waiver.
While the bill is not expected to be passed by Congress this year, depending on the outcome of the Presidential election, it could serve as a roadmap for future legislative change.
Thank you, CFPB. Nice job writing this press release. Written without bias, I am sure.
Give us a call to learn more about how we can serve you with an outstanding and affordable Compliance Program. (800) 656-4584
For the past two years, when I sign up a new client company for our services, I always inquire about the state of your corporate minutes book, or your member meeting book for an LLC. In an astonishing 30-40% of the cases, most clients don’t keep a current book and some have no idea why I am asking.
Here is why I am asking.
Business entities must follow certain legal formalities in order to remain in effect. Courts, while not eager to invalidate a corporation status or an LLC, will do so when it becomes apparent to them that the entity is nothing more than an alter-ego for the organizer. That means, a sort of “shell” that keeps no records, takes no actions, and is only in existence as an extra layer of personal liability protection.
Most good attorneys will look at corporate status right away, if they represent a client who is suing an entity. Piercing the corporate veil (that s what this practice is commonly called) creates great fear in the mind of the defendant and moves them to settlement faster than they might have otherwise had their entity been robust in its creation and its maintenance.
Here is how to how to create and keep a robust liability shield in place.
A corporation’s Articles of Incorporation is a formal legal document that contains important information about the corporation, such as the corporate name, address of the main office, and—in some states—the names of the directors and the name and address of one person who will be a contact for the public. In some states these incorporation articles are known as a “Charter” or “Certificate of Incorporation.”
Your corporation’s bylaws are an internal document that outlines how the corporation will govern itself and manage its day-to-day activities. In your bylaws, you can address the frequency of board of directors’ meetings, the number and name of corporate officers (i.e. President, Secretary, etc.), personnel policies, etc. Though not usually submitted to the state, bylaws are important in proving the legitimacy of the corporation.
The board of directors typically make important decisions at the initial board of directors meeting. Some of the decisions and actions that usually take place at the initial board of directors meeting include: Selection of officers, Adoption of bylaws, Stock authorization and issuance, and Adoption of the official stock form and seal.
The board of directors is the decision-making body of a corporation. Directors make the financial decisions and determine major corporate policies and procedures. They’re the ones who choose the officers, approve the issuance of stock, and set the salaries. The owner(s) of the corporation can appoint themselves or other people to the board of directors. Most states require at least one director on the board no matter how many owners there are.
After completing all the necessary steps to structure your business as a corporate entity, you’ll comply with the other requirements of running a business in your state and locality. You’ll need to obtain a business license and an employment identification number (EIN), which is your federal tax number, before doing any business. You will also need an EIN to open a business bank account. There may also be other permits or licenses that may be required could include a seller’s permit or a zoning permit depending on your type of business. Check the federal, state, and local requirements to find out what your business will need. I suggest including copies of your NMLS Licenses in your corporate records.
Corporate Minutes: Keeping corporate minutes doesn’t mean recording every meeting, but rather recording meetings that involve key decisions or key company activities. Here are examples. Annual director and shareholder meetings, Employee hires and compensation plan changes, new company bank accounts, loans, company credit cards, etc. The CFPB wants to see evidence that the entity required and approved a formal compliance program. The minutes can be simple – keep the language straightforward and professional. And it is best to use the same type of format each time you convene a meeting.
AT A MINIMUM, THIS IS WHAT SHOULD PRESENTLY BE IN YOUR CORPORATE RECORDS BOOK. LLC Member Minutes are similar.
Articles of Incorporation
By-Laws
Organizational meeting minutes where Officers and Directors were elected
Copies of Annual Meeting reports with your state.
Copies of your Annual Shareholder Meetings where you ratify in reverse the prior actions of your Board.
Copies of any Special Minutes necessary for those “special situations” that occur. Such as approving a formal Compliance Program.
If you follow these guidelines your corporation or LLC should survive any challenge, and you will usually not be subjected to personal liability as if you had no corporate veil.
We provide this service as part of our program. Call us at (800) 656-4584 if you want us to assemble your records for you.
I am being barraged by questions regarding commercial lending and the need or not to be licensed. The area is not as grey as you may think. The problem is many commercial lenders disguise what would otherwise be a RESPA loan on a 1-4 family – by using LLCs. These lenders and brokers are completely ignoring the legal doctrine of beneficial ownership. And many times these lenders and brokers actually believe that no auditor or regulator has ever seen this scheme before. Really?
I believe that the best business practice for any person originating any kind of mortgage residential or commercial – is to obtain the proper license first.
RESPA is applicable to all “federally related mortgage loans,” except as provided under 1024.5(b). “Federally related mortgage loans” are defined as: 1.A loan secured with a first or subordinate lien on residential property 2.Where a one to four family unit…
Before you go any further, the key word is PROPOSED.
1. The CFPB has issued a proposed rule with request for public comment containing both substantive amendments and technical corrections (collectively, Proposed Amendments) to the final TILA-RESPA Integrated Disclosure (TRID) rule that became effective on October 3, 2015. In a press release the CFPB advised that the Proposed Amendments are “intended to formalize guidance in the rule, and provide greater clarity and certainty.” Comments are due on or before October 18, 2016. The CFPB is proposing that the final rule based on the proposal would be effective 120 days after publication in the Federal Register, but is expressly requesting comment on the timeframe to implement the Proposed Amendments. THIS MEANS MOST LIKELY EARLY IN 2017.
2. Four of the Proposed Amendments that are highlighted by the CFPB in the press release would (1) create a tolerance for the total of payment calculation; (2) exclude recording fees and transfer taxes from the one percent fee limit that applies to the TRID rule exemption for down payment assistance and similar subordinate lien loans often made by housing finance agencies, non-profits, and similar entities; (3) amend the scope of the TRID rule to cover units in a cooperative, whether or not they are considered real property; (4) clarify how a creditor may provide separate Closing Disclosures to the consumer and the seller through the removal of information that raises privacy concerns.THE REALTORS HAVE BEEN COMPLAINING ABOUT NOT RECEIVING THE CD – IF YOU HAVE BEEN GIVING IT TO THE REALTOR YOU MAY HAVE BEEN VIOLATING THE CURRENT PRIVACY RULES – AND IF THIS NEW PROPOSAL IS APPROVED THIS CHANGE WILL HAPPEN AFTER JANUARY, SO DON’T START PASSING OUT CDs LIKE CANDY UNTIL IT IS OK TO DO SO.
3. In addition to the CD/Realtor item, the CFPB proposal would make numerous other changes including a change that addresses the so-called “black hole” by providing creditors with greater flexibility to use the Closing Disclosure to reset tolerances. Currently, only the Loan Estimate may be used to reset tolerances, subject to an exception that permits a creditor to use a Closing Disclosure to reset tolerances in a limited situation. Essentially, the exception applies when the creditor would not have sufficient time after learning of a change to be able to issue a new Loan Estimate and also satisfy the pre-consummation waiting period requirements under the TRID rule. The exception has proven to be too narrow in many cases resulting in creditors having to absorb increases in fees or require that the consumer reapply for a loan. OR CHARGE THE BROKER A CURE FEE. To address these unintended consequences, the CFPB proposes to expand the exception to include both (1) the current situation that is based on the timeframe between when a creditor learns of a change requiring revised disclosures and the consummation of the loan, and (2) any situation in which a Closing Disclosure has already been issued.
4. Other topics addressed by the Proposed Amendments include affiliate charges, the calculating cash to close table, construction loans, decimal places and rounding, escrow account disclosures, escrow cancellation notices, the treatment of gift funds, the written list of service providers (no surprise there), the distinction between model forms and sample forms, principal reductions, the summaries of transactions table, the total interest percentage calculation, and informational updates to the Loan Estimate.
5. Now about us. We are attorney owned and our attorney has 24 years experience as a Mortgage Banker. That should speak for itself. Most of our competition does not have that combination of experience. They sell you “policies” and walk away. The CFPB recently identified this type of off the shelf no relationship compliance program as a red flag for examiners. We don’t do that. We offer annual engagements at one price and are with you all year for training, updates, and all your Q&A.
Request our Engagement Package today and we can have your Compliance Program in really good shape within three weeks.
And you will feel much better about not having to face the regulators alone. But if you try to engage us after you have received your Audit Letter, the price will go up.
This may be the most important update you will ever read about the CFPB and their current Exam strategy.
Recently we obtained specific information about the CFPB’s current Exam Procedures. The information is credible and shows with great clarity what the CFPB expects to accomplish in an exam. It also confirms the CFPB has asked the states to incorporate CFPB and FFIEC procedures into state audits.
The CFPB has also created an Exam Rating System and asked the states to adopt it. We have been seeing this rating system in use for six months in certain states. It is probably coming to your neighborhood soon.
Read my report and trust me this is worth your time.
This information came to me directly from the CFPB.
“In emails sent to CFPB email subscription holders, the CFPB announced the publication of new annotated versions of the Loan Estimate and Closing Disclosure that include citations to sections in Chapter 2 of the Truth in Lending Act (TILA). The CFPB sent an original email on May 12, and then an updated email on May 13 that includes a direct link to the annotated forms. The emails provide that the citations are to TILA sections referenced in the Integrated Mortgage Disclosure final rule.
The use of the Loan Estimate and Closing Disclosure are required by the TILA/RESPA Integrated Disclosure (TRID) rule which became effective October 3, 2016. The rule incorporates both RESPA and TILA disclosure requirements, and the requirements are set forth in Regulation Z under TILA. Based on the varying nature of liability under RESPA and TILA, the CFPB addressed in the preamble to the TRID rule the sections of TILA, RESPA and/or the Dodd-Frank Act that it used as legal authority for the various TRID rule sections.
In a December 29, 2015 letter to the MBA, Director Cordray addressed TRID rule liability concerns. The Director noted that “As a general matter, consistent with existing [TILA] principles, liability for statutory and class action damages would be assessed with reference to the final closing disclosure issued, not to the loan estimate, meaning that a corrected closing disclosure could, in many cases, forestall any such private liability.” The industry took this to mean that in many cases errors in the Loan Estimate could be cured through a correct Closing Disclosure. However, by issuing a Loan Estimate with citations to TILA sections the CFPB appears to have raised the issue of whether there is TILA liability for Loan Estimate errors.
Also, the annotated disclosures provide that both the Adjustable Payment (AP) Table and Adjustable Interest Rate (AIR) Table were adopted based on TILA section 128(b)(2)(C)(ii). However, the preamble to the TRID rule reflects that only the AP Table was adopted based on such section, and that the AIR Table was adopted based on general CFPB rulemaking authority.
As we reported, recently the CFPB also announced its intention to re-open the rulemaking corresponding with the TRID rule. Perhaps the CFPB can use the rulemaking initiative to better address industry concerns regarding TRID rule liability.”
Until such time as we see more clarity my advice to Compliance Services Clients is to promptly cure any discrepancy whether it is in the LE or the CD.
For now, the fact that the CFPB is citing to the actual law tells me some big time auditing of your LE and CD may be coming soon.
I would strongly suggest you take a good hard look at any requests from closing agents that involve wires, and verify the request is valid. Further, keeping in mind the requirements of the Financial Services Modernization Act of 1999 – DO NOT transmit any of this non-public information in an unsecured manner. Always use a drop box or a password protected email.
This is getting crazier and crazier. Don’t take chances. Protect your data, trust but verify.
Call us if you would like to discuss our Compliance Services. Ask about the Audit Protection Plan – included with our program.
Yes. And it only takes about 30 seconds, so why fight this? Either you, or your credit agency, or your lender must do this, but it will come down to YOU if the law is violated. Is peace of mind worth 30 seconds?
You must and you can do so at the Treasury Department Link below.
There is no legal or regulatory requirement to use software or to scan. There is a requirement, however, not to violate the law by doing business with a target or failing to block property. OFAC realizes that financial institutions use software that does not always provide an instantaneous response and may require some analysis to determine if a customer is indeed on OFAC’s Specially Designated Nationals List (or any of OFAC’s other sanctions lists). The important thing is not to conclude transactions before the analysis is completed.
Every transaction that a U.S. financial institution engages in is subject to OFAC regulations. If a bank knows or has reason to know that a target is party to a transaction, the bank’s processing of the transaction would be unlawful. Yes, you Brokers and Lenders are engaging in financial services so you should fit into this description.
There is no minimum or maximum dollar amount subject to the regulations.
U.S. persons must comply with OFAC regulations, including all U.S. citizens and permanent resident aliens regardless of where they are located, all persons and entities within the United States, all U.S. incorporated entities and their foreign branches. In the cases of certain programs, foreign subsidiaries owned or controlled by U.S. companies also must comply. Certain programs also require foreign persons in possession of U.S.-origin goods to comply. If you specialize in Foreign National Loans, I would say you probably need to be extra careful.
We get asked a lot what we mean when we talk about the power of the Compliance Shelf. So I decided to tell you and show you a few pictures. These are from clients of ours.
When you are visited by your regulator it goes pretty far if he or she notices a dedicated area for your Compliance Manuals and Notes (the “Compliance Shelf”). The mere existence of this shelf creates an impression that your company takes compliance seriously. So you come out of the audit gate having impressed the regulator with your preparation. That good first impression.
What does a strong Compliance Shelf look like? It has your Audit Policies and Procedures, your MLO Policies and Procedures, your Regulatory Reference Book, an Advertising Log (back two years), a Customer Complaint Log (back two years), and finally, your QC Manual and Audit Report Log, with copies of all audits and management response. Here are two examples – the one on the right was recently audited by Texas and passed.
But please, don’t think for a moment that just making this impression will save your audit from disaster. You need to live by your policies and procedures. You need to know what they mean and you need to put them into practice.
Compliance is not a part time thing. You must form a “habit of compliance”. Every day, every file. That’s how you have good audit results. It has to be your company culture. Your “shelf” is just part of the big picture.
So, what’s on YOUR “Compliance Shelf”?
Want to learn more? Call us at (800) 656-4584. Over and out.
(Thanks to Eddie and Fred for providing us with these outstanding pictures.)
Because of the aggressive nature of the CFPB audit practice and the predictable fear that it creates among brokers and lenders, some of you have chosen to focus on the commercial niche. The mistaken belief is that by switching to commercial, you avoid the risks associated with RESPA, TRID, and the usual compliance requirements of a mortgage broker or lender. Some of you even think you are exempt from the SAFE Act and can let your licenses lapse.
Folks, don’t do this. You can run from compliance but you can’t hide, and they will get around to you eventually. Even if your business model changes to full commercial lending, you still have a healthy list of rules and regulations you MUST comply with in order to pass an audit. And in 99% of the situations I have investigated a license is required.
I drafted a compilation of some Q&A I searched out. It is informative and can be helpful to you. Download this and read it before you make any decisions about reducing or eliminating your compliance efforts.
Thanks for reading, call us at (800) 656-4584 and request information about how to engage Compliance Services. You will be amazed at how easy we will make the process for you. Hundreds of clients and all of them happy.
Yes it is true, I cannot stay away from the office for very long. Good for you, huh.
During the past quarter we were engaged by several mortgage companies that specialize in loans to Foreign Nationals. they also offer federally related loans, but foreign national loans are a specialty.
So I decided to create a one page summary of when you need to apply RESPA and TRID, and when you can revert to the old way of using a HUD-1 and maybe a classic GFE.
This past week I was contacted by several clients who received Audit Letters in the mail. One of them sent me a copy of the Audit Letter to review.
The Audit Letters are ominous because they are more robust than I have seen in the past and indicate the State is aggressively incorporating federal guidelines. It’s not just about state regulations anymore.
I think it would be a good idea for you to think about the below, and email me with questions. Some of these things might apply to you.
Here are some examples of just a few of the items included in the eleven page Audit Letter.
Emphasis on MLO Employment Contracts and Employee Files, likely to investigate compliance with training and to analyze your W-2 versus 1099 situations
List of third party providers to investigate Privacy Act Compliance, possible unreported ABA situations, and payments between entities
Form 941 – Federal Employer Quarterly Tax Return (I told you so)
Warehouse Line Agreements – looking for more than one agreement and comparing financials used for line approval with actual books and records
Advertising Log with samples back two years
Proof of Acceptance of Duties of Managers and Officers
Bank Accounts verifying third party payments and CFPB Comp Plan commission compliance
Corporate Minutes or LLC Records to establish Compliance as ongoing topic of Management
Random spot checks of minimum net worth requirement at any point in time to detected unreported deficiencies in net worth
I have the actual audit letter should anyone want to discuss it.
For many years we have been providing booklets at application and at closing, but the process has escalated to a very serious issue when you are audited. It used to be called the Settlement Costs Booklet. Now it is called the Toolkit. Do you provide the booklet as required?
The booklet must be delivered or placed in the mail no later than three business days after the application is received. We are talking about a qualified application (the “six things test”).
Delivered means handed to, or mailed in physical form in the US Mail, or UPS, or e-mail. E-mail? Sure, why not? If you e-mail and request a receipt, and send it to an e-mail you know to be valid, it should satisfy Electronic Documents rules.
Lenders are required to deliver or mail the Toolkit not later than 3 days after receipt of an application. However, in the Federal Register notice announcing the Toolkit’s availability, the CFPB encourages all market participants (such as realtors) “to provide the [Toolkit] to consumers at any other time, preferably as early in the home or mortgage shopping process as possible.” The Toolkit is designed to be distributed electronically and has interactive worksheets and checklists. So that should end any argument that it had to go in the US Mail, huh. Just be sure you can prove you sent it.
It is not considered delivered if all you do is make it available on your website. You have to go a step further.
By the calls and emails I am receiving, I am discovering that many of you are not ready for TRID yet. If you are not my client, call me at (800) 656-4584 and let’s see what we can do about your compliance program.
In the past few weeks I have encountered several brokers and lenders who were not keeping complete journals. A complete journal, in my mind, should include all intake, whether that intake be later withdrawn, or declined, or happily funded. And if you only do one type or another of exempt loan, you still need to consider that your regulators may require a journal regardless, where you have created a journal and shown that the loans are exempt. And if your business practice is to say, “we didn’t take an application” are you doing that to avoid the journal ?
The idea behind the journal is to protect consumers and validate proper adherence to state law, the ECOA and FAIR LENDING. And to allow the regulators to quickly review and trace handling of your consumers. No one has “no” declines or withdrawals. If that’s your story, you may be creating a regulator concern of a different type. A concern that you either underwrite or otherwise work with lenders so loose in their standards regarding QM and ability to repay that they creatively make all your files work.
The objective a journal is to provide a road map of your consumers. You can’t do that if you leave 15% or so off the list.
HARD MONEY LENDERS:
Seems to me like a recent trend in audit requests, many more of you are popping up on the audit lists. I know because you call me. The best prepared hard money lender will realize he has a license not limited to Hard Money or Commercial. His license allows him to do any kind of mortgage brokerage or lending. Thus, he needs to act as if he is fully prepared in case such an agency or QM type deal came in the doors. It’s nice that some of you say “Well, we don’t do that”. If I were the regulator, that would not give me much comfort. I would want to know about the “what if you did?”
Now about all these audits – look at this checklist. If you see anything on here you don’t have, maybe you should let me know.
General Compliance Checklist for State or Federal Examinations
Use the following one page checklist to assess your level of readiness.
Do we have policies and procedures in place covering?
Federal regulations under the CFPB authority, such as RESPA, TILA, ECOA, FCRA, HMDA, FDPCA, SAFE and GLB?
Tracked distribution of compliance information and updates?
Third-party service provider due diligence, monitoring, non-disclosure, and accountability?
Origination, underwriting, and servicing practices, particularly in areas where the exercise of individual discretion is required?
Receiving, reporting, and resolving customer complaints, including the tracking of customer
complaints to detect trends and the actions taken in response?
Loan officer compensation and any other incentive programs for employees who interact with consumers?
Fair Lending Compliance, in connection with both origination and loss mitigation?
Credit reporting and the handling of credit disputes?
Collection of past due accounts, including policies on written and verbal communications to borrowers?
Document retention and management that complies with state and federal law?
Do we perform periodic compliance audits and self-assessments, especially with regard to fair lending and mortgage servicing issues?
How active is our company’s board of directors/managing member in regards to compliance? Do they receive reports and provide guidance on compliance issues?
Are minutes taken at regular meetings of our company’s board of directors or managing member and do those minutes document involvement in consumer compliance issues and efforts? If sub- committees exist such as compliance/audit committee and credit/pricing committee, do they have documented minutes showing involvement in consumer compliance issues?
Do we have a company-wide training plan that documents training efforts, particularly with regard to fair lending issues?
Have we satisfactorily resolved all issues arising during examinations conducted by other regulators?
Do we have an examination plan in place that covers:
Identification of a liaison/organizational contact who will interact with the regulator?
Assignment of a coordinator, who is responsible for coordinating the collection and delivery of requested information/documentation as well as implementing a strategy for dealing with requests for privileged documents?
Assignment of personnel to assist with the examination process, including distribution of materials, collection of documents, demonstration of systems and explanations of procedures?
Is our IT department aware of the regulator’s e-examination system and how your systems will be able to communicate with them?
Are we able to run reports and analyze data in the same way that the regulators can, using its e- examination system?
A recent report (June 2015) issued by the feds spoke of ECOA and Credit Bureau issues, among others. The other issues were credit card and servicer oriented so most would not apply to you all.
The good news is if you are my client – your Policies and Procedures in Book One cover these areas well. If you are not my client, maybe you should be.
Issue One: Fair Lending comment about underwriting.
If you are a lender underwriting your own files be sure you have some training in place about Fair Lending and ECOA that discusses among other things, public assistance. If you do this and keep a copy in your files behind your Fair Lending Policy, you will strengthen your position in the event of a regulator challenge.
If you are a Broker remember this. It seems logical that if the consumer files an ECOA complaint you could just point the finger at the lender that you brokered the loan to. However there are no guarantees that the consequences won’t drip down to your level like waterboarding. Thus it would not hurt to hold a short meeting with staff and remind them about public assistance. Why take a chance?
I can pretty well tell you if you acted as the Broker and actually have evidence of this training the regulators will go right back to the lender you worked with and forget about you. You are in a defensible position.
While both the broker and the lender have a duty to comply with Fair Lending and ECOA, I think the lender’s duty is higher.
Here are the CFPB’s exact comment on this consumer violation.
Fair lending violations: Bureau examiners found that one or more institutions denied or discouraged mortgage applications from consumers because they would have relied on public assistance income in order to repay the loan. Excluding or refusing to consider public assistance income violates the Equal Credit Opportunity Act. The CFPB examiners directed that institutions change their policies and identify and provide remediation to harmed applicants.
Issue Two: Credit Bureau errors that cause you to change the loan program.
What about that client who claims the credit bureau has it all wrong? Should you try to help them get the error corrected? If you do are you in a better position should the consumer file a complaint at a later date? I think so.
The critical part of this that could dribble down to you is quality control. If you have been advised of an error by the consumer and as a result of the error you cannot actually put the consumer in the best possible loan, do you have liability if you knew? or should have known from what they told you or showed you? Maybe, and that’s the scary part. I can see some regulator saying you should have advised the client to hold off until the error was corrected instead of directing the consumer to a less advantageous program due to the error on the report.
Ten years ago, maybe not an issue. Today this is the age of consumer protection. Anti-steering and qualified mortgages are in full force and effect. Fiduciary duty is widely invoked. Dodd Frank and the SAFE Act hold you to a much higher standard of care. You must do all you can to insure you provide the best possible program. Especially when you know or should have known of an error that adversely and unfairly affected your consumer’s choices.
Anyway, here is what the CFPB had to say about the bureaus.
Accuracy problems at consumer reporting agencies: Examiners continue to find accuracy problems at one or more of the credit reporting agencies, stemming from issues with information collection and quality control. Examiners found that at least one consumer reporting agency did not conduct regular monitoring of its furnishers to make sure they were following requirements. Examiners also found no quality controls in place to test existing consumer reports for accuracy. CFPB Supervision directed one or more credit reporting agencies to develop a plan to implement such quality control.
One of my valued clients asked me about the applicability of the Qualified Mortgage Rule and the Ability to Repay Rule ……did they apply to loans securing investment or commercial properties. Apparently there are some attorneys and compliance people out there who think they do. As a mortgage guy, I think they do not.
It was a great question and something I think you all should read. Even though many of you do not work in the commercial or investment property arena, you must know the rules. Because a deal might come through your door and you want to handle it correctly.
This question demonstrated how complex things have become. Here we have one question where the answer involves careful study of QM, ATR, RESPA and TILA.
Keep Calm and ask questions! If you are not my client, you probably should be. I still have a few openings.
+++++++++++++++++++++++++++++++++++++
Transactions Covered by QM and ATR Rules
QM and ATR rules apply to the following:
Purchase and refinance transactions secured by owner-occupied and second homes.
QM and ATR rules do not apply to the following:
Investment property*
NOTE: Investment properties that are for business purposes are exempt from QM rules.
If the borrower occupies any investment property for > 14 days in any given year the investment property is no longer considered for business purposes only and would be subject to QM and ATR rules.
Additionally, there can be no evidence that the borrower purchased/refinanced the investment property for personal rather than business reasons (e.g. property purchased for a family member).
The Ability-to-Repay Rule, Regulation Z Section 1026.43, requires that a creditor make a “reasonable and good faith determination at or before consummation that the consumer will have a reasonable ability to repay the loan according to its terms.” The creditor must follow underwriting requirements and verify the information by using reasonably relied upon third-party records. The rule applies to all residential mortgages including purchase loans, refinances, home equity loans, first liens, and subordinate liens. In short, if the creditor is making a loan secured by a principal residence, second or vacation home, condominium, or mobile or manufactured home, the creditor must verify the borrowers’ ability to repay the loan. The section does not apply to commercial or business loans, even if secured by a personal dwelling. It also does not apply to loans for timeshares, reverse mortgages, loan modifications, and temporary bridge loans.
So, how are you doing with financial assessment? Need any training?
This post will be about Reverse Mortgages and the upcoming implementation of financial assessment. While I direct it to HECM originators and underwriters, you can probably rest assured it will end up on the agency or CFPB’s future “check lists” for use during an audit. So, what is a financial assessment?
Effective April 27th, 2015, all HECM borrowers will be submitted to a soft underwriting procedure called the “financial assessment”. It is a review procedure developed by FHA with input from the Industry. It requires the originator to be more savvy when collecting the initial data and requires the underwriter to review the borrower’s financial situation and certify to HUD that the borrower is “HECM-worthy”, and that the borrower’s financial profile is such that it becomes unlikely the HECM would default and become a liability to the FHA fund down the road somewhere.
Credit will be scrutinized more closely. In addition to federal or…
Wow. As a licensed attorney and mortgage industry specialist, I have been focused tightly on assisting small lenders and mortgage brokers regarding agency compliance and audit preparation. I am here to tell you there are still a lot of folks out there who think it’s still “business as usual” from the pre-SAFE Act and CFPB days.
Well, it’s not. Just google search companies like the large lender in Utah who recently answered CFPB findings regarding mortgage loan officer steering (comp plan structure) by paying huge fines. It didn’t stop there. Now they are apparently being directed to refund money to clients on any loan “tainted” by these non-compliant pay plans. OK, in trouble, what’s the solution? Pay lots and lots of money, and to wake up every morning for the near future realizing they are now on every agency radar and even an intentional miss-step will likely cause another visit.
Your situation doesn’t have to be like that. If you as a small broker or lender take the situation seriously. Even if your past compliance efforts may have been a little lacking, you will be in better shape when your audit commences if you can demonstrate that you worked hard to get compliant. How the very first audit interview goes will set the tone for the audit. Wouldn’t you prefer that there was a presumption of compliance, rather than a presumption of non-compliance?
That’s where an experienced compliance consultant pays off big. A person with actual experience in the trenches preferably trained in the law, who can guide you into a safer harbor and then be available to assist with audits or defense as required. And defend you if you find yourself in federal court.
So answer me honestly. Are you comfortable with your compliance program? If so, good luck. If maybe, why not let me take a look at what you presently offer? If not, run don’t walk to the phone and call me.
There is no better feeling that closing an audit with minimal findings. I can be reached at 800-557-6580, that’s it for now.
Seems to me that many of you still see the need to balance your product offerings by including forward mortgages, at the very least the QM products, with your tried-and-true HECM sales.
If you are asking what I mean by “QM” then you are the exact reason I decided to expand the training again.
A QM Mortgage is a CFPB definition for “qualified mortgage”. If the product is originated within some very tight guidelines and is Agency acceptable, then it is a QM. And that means that if you did your job well, you do not have to look over your shoulder regarding indemnifications or repurchases.
When we say “Agency” we mean FNMA-FHLMC-GNMA-HUD. That’s about it.
So here’s the point of this post. I would like to hear from you about what topics you would find most helpful regarding forwards and compliance. Webinars are being scheduled, and as usual they will be plain English easy to understand explanations of what you need to do and not do to keep your wheels on the pavement.
Since 2007, I have been a fan of Reverse Vision. Back then my old employer tasked me with the job of finding a replacement for our in-house proprietary system which was Office based, relying on Microsoft Access. There was too much risk of document error and calculation error, so we hired a top notch programmer and set about to re-invent the world.
Then Fannie Mae told us about RV. In fact to be an approved seller of HECMS to FNMA, we needed to use it as they had tested it to death and it was solid. The interfaces worked very well.
So I picked up the phone, called RV’s then president Thomas Martignoni – and the rest is happy history. We have been with them since their inception.
As an MLO you MUST know this program. In this session I am going to provide a copy of their current manual and the ability to discuss with me. Focus on part FIVE.
The most successful originators are the ones with the best discipline. They put equal amounts of time each day into farming or prospecting for new applications, as they invest in processing and closing activities on their existing files.
When I was originating, I knew I needed a system that would force me to be organized and consistent in my daily approach to finding new business.
And so, I invented the TENS LIST. Listen here to a short description of how it works.
Then download the example TENS LIST format and put it into motion. Here’s the form. LW Tens List 082114
This is an advertisement for Professional Services. To the extent that this website is deemed an “advertisement for state specific legal services,” Nelson Locke advertises for legal services only in California for CA state specific matters. The balance of his practice is expert consultation. No warranties can be given expressed or implied.Clients are unique and results will differ because of different facts in the analysis. This internet web site and other Locke social media are not to be construed as giving legal advice. Further, no attorney client relationship will ever exist until the client says so and an agreement exists in a signed writing. Nelson Locke provides legal services only where licensed and only provides consultative or supervised services in other jurisdictions. Nelson Locke is a Mortgage Industry Expert Witness, and provides federal agency audit preparation and defense nationwide. Nelson Locke is currently admitted to the California Bar and certain Florida, Texas, Oklahoma, Colorado, and California Federal Bars. The fastest way to contact Nelson Locke is to call (800) 656-4584. You can fax him at (954) 251-4923.
Content Copyright 2014 Nelson A. Locke, Esq. All rights reserved.
If so, please email me at once. While we believe this to be questionable, you need to protect yourself and our Team is ready to assist.
This Temporary Authority (120 days) relates to Mortgage Loan Originators 
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Here we are in late November, and there are some of you out there who need to have an independent party perform a Risk Assessment to satisfy state regulators regarding your compliance with Money Laundering Law and the Bank Secrecy Act.
If you need that kind of Compliance Expertise in your corner,
If the rest of you are nervous I only have two things to say.
Here is why I am asking.
I believe that the best business practice for any person originating any kind of mortgage residential or commercial – is to obtain the proper license first.
nltrainingsite.wordpress.com 