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The  TILA-RESPA  Integrated Disclosures The  TILA-RESPA  Integrated Disclosures

The TILA-RESPA Integrated Disclosures - PowerPoint Presentation

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The TILA-RESPA Integrated Disclosures - PPT Presentation

April 17 2014 Dentons US LLP 2 April 17 2014 The History and Rulemaking Process Dentons US LLP The History April 17 2014 Dentons US LLP For more than 30 years TILA and RESPA have required different ID: 808788

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Slide1

The TILA-RESPA Integrated Disclosures

April 17, 2014

Dentons US LLP

Slide2

2

April 17, 2014

The History and Rulemaking Process

Dentons US LLP

Slide3

The HistoryApril 17, 2014

Dentons US LLP

For more than 30 years,

TILA

and

RESPA

have required different

but

overlapping disclosure

forms regarding the loan’s terms and costs.Longstanding frustration from industry and consumers.On September 30, 1996, Congress directed the Federal Reserve Board and HUD to integrate the disclosures, but they could instead submit a report to Congress containing legislative recommendations.The Federal Reserve Board and HUD did not integrate the disclosures. In July 1998, the Federal Reserve Board and HUD issued a ‘‘Joint Report to the Congress Concerning Reform to [TILA and RESPA]"Recommendations on timing of the disclosures, changing the definition of "finance charge," and accuracy of estimates.

3

Slide4

The Final RuleMonth Day Year

Dentons US LLP Document reference #

Dodd-Frank Act sections 1032(f), 1098, and 1100A directed the CFPB to integrate the mortgage disclosures under

TILA

and

RESPA

1032(f

)

gave

July 21, 2012

deadline for the proposalTwo purposes of the integrated disclosures:Aid consumer understanding by utilizing readily understandable language to simplify the technical nature of the disclosures.Facilitate compliance with the disclosure requirements of RESPA and TILACFPB issued proposal on July 9, 201277 FR 51116 (August 23, 2012)Over 2,800 public commentsCFPB issued final rule on November 20, 20131,888 pages78 FR 79730 (Dec. 31, 2013) - only 637 pages

!

17 years after Congress first directed the Board and HUD to integrate

22 different form models and samples

4

Slide5

The Design and Consumer Testing Process

Month Day YearDentons US LLP Document reference #

Before

the

proposal:

Started designing prototypes in January 2011

10 rounds of qualitative usability testing from May 2011 - March 2012

One on one interviews

92 consumer and 22 industry participants

9 locations across the country

KBYO public outreach processOver 150,000 visits to the KBYO web siteOver 27,000 public comments and emails about the prototype disclosures5

Slide6

The Design and Consumer Testing Process

Month Day YearDentons US LLP Document reference #

6

Slide7

The Design and Consumer Testing Process

Month Day YearDentons US LLP Document reference #

7

Slide8

The Design and Consumer Testing Process

Month Day YearDentons US LLP Document reference #

After the proposal:

7 rounds of qualitative usability testing from Oct 2012 - July 2013

Spanish and Refinance versions

Quantitative Test in Spring 2013

Baseline test against current disclosures

858 consumers

20 locations across the country

Integrated disclosures performed statistically significantly better than current disclosures

Overall improvement around 29%197% improvement in identifying the highest possible total monthly payment in the final loan offer. 98% improvement in comparing the highest possible total monthly payments between two loans.28% improvement for comparing initial and closing disclosures 8

Slide9

9

Month Day Year

The Final Rule

Dentons US LLP Document reference #

Slide10

ScopeMonth Day Year

Dentons US LLP Document reference #

Applies to most closed-end consumer credit transactions secured by real property

Excludes:

Open-end credit (i.e.,

HELOCs

)

Reverse mortgages

Mortgages

secured by a

dwelling that is not real property (e.g., mobile home, house boat). Lenders who made 5 or fewer mortgage loans in the preceding calendar year (unless made more than one HOEPA loan in any 12-month period).Loans not covered by the rule are still covered by the current disclosure requirementsFinal rule updates GFE and HUD-1 instructions to incorporate the guidance in the HUD FAQs on reverse mortgages10

Slide11

Effective DateMonth Day Year

Dentons US LLP Document reference #

Final Rule is effective Aug. 1, 2015

Applies to applications received by a creditor or mortgage broker on or after Aug. 1, 2015

Except pre-disclosure restrictions and state preemption/exemption provisions which become effective on Aug. 1, 2015 without respect to application date

Early use of the integrated disclosures is not permitted

Examples:

If application received on

July 31, 2015,

provide the early

TIL and GFE, and final TIL and HUD-1.If application received on August 1, 2015, provide the LE and CD.11

Slide12

What is Not in the Final Rule (All-in APR and Machine Readable)

Month Day Year

Dentons US LLP Document reference #

"All in" APR

Proposal revised definition "finance charge" to include most fees

Concerned about effects on other

rule

thresholds (e.g., QM,

HOEPA

), lack of data, uncertain

benefits of APRCFPB will study in connection with 5-year review of the final ruleElectronic, Machine ReadableProposal required record retention in an electronic, machine readable format, but did not specify a data formatConcerned about costs and the data standard that would be requiredGSE Uniform Closing Dataset (UCD)Uses MISMO data standardsGSEs intend to collect this dataset from lenders in the futurehttp://www.freddiemac.com/singlefamily/sell/ucd.htmlhttps://www.fanniemae.com/singlefamily/uniform-closing-dataset

12

Slide13

Pre-Disclosure RestrictionsMonth Day Year

Dentons US LLP Document reference #

Fee Restriction

Prohibits fees,

except

a bona

fide and reasonable

credit report fee, before the consumer has received the Loan Estimate and indicated to the creditor an intent to proceed.

Consumer can indicate an intent

to proceed in any

manner, unless creditor requires certain method. Need to document intent to proceed.Be careful! Prohibited from requiring method for payment before receipt of LE and intent to proceed (e.g., checks or credit card numbers)Worksheet DisclaimerStatement required on the top of any written estimate of terms or costs specific to a consumer (e.g., worksheets) before receipt of the LEIn a font size that is no smaller than 12-point font: ‘‘Your actual rate, payment, and costs could be higher. Get an official Loan Estimate before choosing a loan.’’ Written estimates may not be made with headings, content, and format substantially similar to LE or CD.

13

Slide14

Pre-Disclosure Restrictions

Month Day Year

Dentons US LLP Document reference #

Worksheet Disclaimer (cont.)

Model Form H-26

Verification of Information

Prohibits requiring

a consumer to

submit documents

verifying information

related to the consumer’s application before providing the disclosures required.Similar to current Reg XBe careful! Rule specifically mentions purchase and sale contracts14

Slide15

Providing the Loan EstimateMonth Day Year

Dentons US LLP Document reference #

Creditor must

deliver or place

the Loan Estimate in

the mail

within 3

business

days

after

receipt of the applicationConsumer is considered to have received the disclosures 3 business days after they are sent or placed in the mailMust deliver the LE not later than the 7th business day before consummation of the transactionBona fide personal financial emergency waiverMortgage BrokersIf mortgage broker receives an application, either the creditor or mortgage broker has to provide the LEBut the creditor must ensure that the LE is provided in accordance with the rule15

Slide16

Providing the Loan Estimate

Month Day YearDentons US LLP Document reference #

Definition of Application

The six items currently under Regulation X

Name

Income

Social security number to obtain a credit report

The property address

Estimate of the value of the property

Mortgage loan amount sought

Deletes the seventh "catch all" item from current Reg X definition"Any other information deemed necessary by the loan originator.’’But can collect additional information before collect all six itemsDefinition of Business Day: Proposal would have changed the definition of "business days" for this requirement to include SaturdaysAfter analysis of public comments, CFPB was concerned that including Saturdays would impose additional costs on industry, especially smaller entities, because would have to open on SaturdaysFinal Rule uses the general definition for this requirement: days on which the creditor’s offices are open to the public for carrying on substantially all of its business functions16

Slide17

Written List of ProvidersMonth Day Year

Dentons US LLP Document reference #

Written List of Providers

Must

provide a

written

list identifying

at least one

available provider

for each settlement service for which the consumer is permitted to shop Must include sufficient information to allow the consumer to contact the providerMust also state that the consumer may choose a different provider for that serviceThe creditor shall provide this written list of settlement service providers separately from the disclosuresShopping means can go off-listThe written list is a referral under RESPA 17

Slide18

Written List of ProvidersMonth Day Year

Dentons US LLP Document reference #

Model Form H-27

18

Slide19

TolerancesMonth Day Year

Dentons US LLP Document reference #

Final Rule Expands the 0% Tolerance Category

0% Tolerance Category:

Fees

paid to the

creditor,

a mortgage

broker

Affiliates of the creditor or mortgage broker

Third-party services for which the consumer cannot shopTransfer taxes10% Category (aggregate amount):Services for which the consumer can shop, but selects a provider on the written list of providersRecording feesNo Tolerance LimitationVoluntary servicesPrepaid interestProperty insurance premiumsAmounts placed into an escrow, impound, reserve, or similar accountThe LE lasts for 10 business daysChanged circumstances/borrower requested changes still applyGenerally have to send revised LE within three business days of the change

19

Slide20

TolerancesMonth Day Year

Dentons US LLP Document reference #

Changed Circumstance. Causes the charge to increase

or affects the consumer’s creditworthiness or the value of the security for the

loan:

An

extraordinary event beyond the control of any interested party or other unexpected event specific to the consumer or transaction;

Information

specific to the consumer or transaction that the creditor relied upon when providing the

Loan Estimate and

that was inaccurate or changed after the disclosures were provided; orNew information specific to the consumer or transaction that the creditor did not rely on when providing the Loan Estimate.Borrower requested change. The consumer requests revisions to the credit terms or the settlement that cause an estimated charge to increase.Interest rate dependent charges change because interest rate not lockedMust provide revised LE on the date interest rate locked20

Slide21

Providing the Closing Disclosure

Month Day YearDentons US LLP Document reference #

Closing Disclosure required to be received by the consumer no

later than

three business

days before

consummation

Business days for this requirement includes Saturdays

Redisclose

and additional three business day waiting period if:

The annual percentage rate becomes inaccurate (1/8 of a percent or 1/4 for irregular loans);The loan product changes; orA prepayment penalty is added.Proposal required additional three business day waiting period for any changes except:$100 or less change in cash to closeBuyer/seller negotiations (e.g., walk-throughs)After analysis of public comments, CFPB concerned about frequently delayed closingsNarrowed triggers of additional three business day waiting period21

Slide22

Providing the Closing Disclosure

Month Day YearDentons US LLP Document reference #

Post-Consummation Requirements.

Changes within 30 days after consummation. If an event causes the CD to be inaccurate with respect to an amount the consumer pays, the creditor must provide a corrected CD within 30 days after learning of the change.

Non-numeric clerical errors. Not a violation if non-numeric clerical errors, if the creditor provides corrected disclosures within 60 days after consummation.

Tolerance cures

.

To cure a tolerance violation, the refund and corrected CD has to be provided within 60 days after consummation.

22

Slide23

Settlement Agents and the Closing Disclosure

Month Day YearDentons US LLP Document reference #

Creditor is

ultimately responsible

for

providing the CD

This includes the HUD-1 information for which the settlement agent was previously responsible

Settlement

agent may provide the CD

But creditor

still ultimately liableCreditor and settlement agent can divide responsibilities for providing the CD at different times, or for different portions of the CDSettlement agent responsible for providing the CD to the seller Required to be provided no later than the day of consummationIf within 30 days after consummation, an event causes the CD to be inaccurate with respect to an amount the seller pays, the settlement agent must provide a corrected CD within 30 days after learning of the change.23

Slide24

Record RetentionMonth Day Year

Dentons US LLP Document reference #

Loan Estimate

Three years

After the

later of the date of

consummation, the

date disclosures are required to

be made

, or the date the action is

required to be takenClosing DisclosureFive years If sell or transfer the loan, still required to retain records for the remainder of the five years24

Slide25

New Post-Closing Disclosure Requirements

Month Day YearDentons US LLP Document reference #

25

Escrow Cancellation Disclosure

Uses similar format and language as Escrow disclosure on CD

Model Form H-29

Slide26

New Post-Closing Disclosure Requirements

Month Day YearDentons US LLP Document reference #

26

Partial Payments Disclosure

Adds partial payment disclosure to the Mortgage Transfer Notice

Can use similar language as the Partial Payments disclosure on the CD

Can make modifications to the language from the CD to make the disclosure suitable to the

format of the covered

person’s Mortgage

T

ransfer Notice.E.g., can change ‘‘Your lender may’’ or ‘‘Your lender does not,’’ to ‘‘We will’’ or ‘‘We are your new lender and have a different Partial Payment Policy than your previous lender. Under our policy we will.’’

Slide27

27

Month Day Year

The Forms

Dentons US LLP Document reference #

Slide28

The FormsMonth Day Year

Dentons US LLP Document reference #

28

LE combines the early

TIL

and

GFE

CD combines the final

TIL

and

HUD-1Standard forms for RESPA transactionsDynamic formsInapplicable disclosures are left blank or do not appearAIR/AP TablesNot permitted to use N/ADesign PrinciplesLess text, more graphic designInformation not educationMore important and usable information earlierLE and CD should matchOne-page mortgage shopping sheet

Slide29

Loan Estimate

Slide30

Loan Estimate

Slide31

Loan Estimate

Slide32

Closing Disclosure

Slide33

Closing Disclosure

Slide34

Closing Disclosure

Slide35

Closing Disclosure

Slide36

Closing Disclosure

Slide37

37

Month Day Year

Other Issues

Dentons US LLP Document reference #

Slide38

LiabilityMonth Day Year

Dentons US LLP Document reference #

38

TILA

Liability

Private right of action

Actual

damages

Statutory

damages

up to $4,000Attorney’s feesAdministrative enforcementRESPA LiabilityNo private right of action for integrated disclosures under RESPAAdministrative enforcementRule does not state whether TILA or RESPA statutory liability applies to different parts of the disclosuresInstead states that the preamble describes the statutory authority for each provision, which provides sufficient guidance for industry, consumers, and the courts regarding liability.

Slide39

LiabilityMonth Day Year

Dentons US LLP Document reference #

39

CFPB

Enforcement (

DFA

1055

)

Administrative or

JudicialReliefRefundsRestitutionDamagesLimitations on activitiesCosts in enforcing actionCivil Money PenaltiesTier 1: Up to $5,000 per dayTier 2: Reckless violations - up to $25,000 per day Tier 3: Knowing violations - up to $1,000,000 per day

Slide40

Challenges and Next StepsMonth Day Year

Dentons US LLP Document reference #

40

Creditor – Settlement Agent Relationship

Creditors

now

l

iable

for HUD-1 settlement cost Information

CFPB

Service Provider Bulletin - CFPB Bulletin 2012-03 (April 13, 2012)Increased scrutiny over third party service providersALTA Best PracticesCommunicating with settlement agents earlier in the process to provide CD at least 3 days before consummationExpanded TolerancesObtaining accurate estimates from service providersApplication ProcessObtain information in addition to the 6 items

Slide41

Challenges and Next StepsMonth Day Year

Dentons US LLP Document reference #

41

Changes in vocabulary

Itemization

No more HUD-1 line numbers

Fewer hard coded lines

No more

POCs

on closing cost details page

New Disclosure ItemsSales Price/Appraised ValueAnti-Deficiency DisclosureState SurveysPartial PaymentsContact Information

Slide42

Challenges and Next StepsMonth Day Year

Dentons US LLP Document reference #

42

Software

Systems

Dynamic forms

Detailed regulations

Staff Training

Policies and Procedures

Vendor Agreements

Customer ExperienceTrial Disclosure Program (DFA 1032(e))

Slide43

Thank You

Richard Horn

Partner

Dentons US LLP

(202) 408-9190

richard.horn@dentons.com

1301 K Street, NW, Suite 600, East Tower, Washington, DC 20005-3364

USA

© 2013 Dentons

Dentons is an

international legal practice providing client services worldwide through its member firms and affiliates. This publication is not designed to provide legal or other advice and you should not take, or refrain from taking, action based on its content. Please see dentons.com for Legal Notices.