Integrated Mortgage Disclosures Under the Real Estate Settlement Procedures Act (Regulation X) and the Truth In Lending Act (Regulation Z), 51115-51457 [2012-17663]

Download as PDF Vol. 77 Thursday, No. 164 August 23, 2012 Part II Bureau of Consumer Financial Protection mstockstill on DSK4VPTVN1PROD with PROPOSALS2 12 CFR Parts 1024 and 1026 Integrated Mortgage Disclosures Under the Real Estate Settlement Procedures Act (Regulation X) and the Truth In Lending Act (Regulation Z); Proposed Rule VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\23AUP2.SGM 23AUP2 51116 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules BUREAU OF CONSUMER FINANCIAL PROTECTION 12 CFR Parts 1024 and 1026 [Docket No. CFPB–2012–0028] RIN 3170–AA19 Integrated Mortgage Disclosures Under the Real Estate Settlement Procedures Act (Regulation X) and the Truth In Lending Act (Regulation Z) Bureau of Consumer Financial Protection. ACTION: Proposed rule with request for public comment. AGENCY: Sections 1032(f), 1098, and 1100A of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) direct the Bureau to issue proposed rules and forms that combine certain disclosures that consumers receive in connection with applying for and closing on a mortgage loan under the Truth in Lending Act and the Real Estate Settlement Procedures Act. Consistent with this requirement, the Bureau is proposing to amend Regulation X (Real Estate Settlement Procedures Act) and Regulation Z (Truth in Lending) to establish new disclosure requirements and forms in Regulation Z for most closed-end consumer credit transactions secured by real property. In addition to combining the existing disclosure requirements and implementing new requirements in the Dodd-Frank Act, the proposed rule provides extensive guidance regarding compliance with those requirements. DATES: Comments regarding the proposed amendments to 12 CFR 1026.1(c) and 1026.4 must be received on or before September 7, 2012. For all other sections including proposed amendments, comments must be received on or before November 6, 2012. ADDRESSES: You may submit comments, identified by Docket No. CFPB–2012– 0028 or RIN 3170–AA19, by any of the following methods: • Electronic: https:// www.regulations.gov. Follow the instructions for submitting comments. • Mail/Hand Delivery/Courier: Monica Jackson, Office of the Executive Secretary, Consumer Financial Protection Bureau, 1700 G Street NW., Washington, DC 20552. Instructions: All submissions should include the agency name and docket number or Regulatory Information Number (RIN) for this rulemaking. Because paper mail in the Washington, DC area and at the Bureau is subject to delay, commenters are encouraged to mstockstill on DSK4VPTVN1PROD with PROPOSALS2 SUMMARY: VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 submit comments electronically. In general, all comments received will be posted without change to https:// www.regulations.gov. In addition, comments will be available for public inspection and copying at 1700 G Street NW., Washington, DC 20552, on official business days between the hours of 10 a.m. and 5 p.m. Eastern Time. You can make an appointment to inspect the documents by telephoning (202) 435– 7275. All comments, including attachments and other supporting materials, will become part of the public record and subject to public disclosure. Sensitive personal information, such as account numbers or social security numbers, should not be included. Comments will not be edited to remove any identifying or contact information. FOR FURTHER INFORMATION CONTACT: David Friend, Michael G. Silver and Priscilla Walton-Fein, Counsels; Andrea Pruitt Edmonds, Richard B. Horn, Joan Kayagil, and Thomas J. Kearney, Senior Counsels; Paul Mondor, Senior Counsel & Special Advisor; and Benjamin K. Olson, Managing Counsel, Office of Regulations, at (202) 435–7700. SUPPLEMENTARY INFORMATION: I. Summary of Proposed Rule A. Background For more than 30 years, Federal law has required lenders to provide two different disclosure forms to consumers applying for a mortgage. The law also has generally required two different forms at or shortly before closing on the loan. Two different Federal agencies developed these forms separately, under two Federal statutes: the Truth in Lending Act (TILA) and the Real Estate Settlement Procedures Act of 1974 (RESPA). The information on these forms is overlapping and the language is inconsistent. Not surprisingly, consumers often find the forms confusing. It is also not surprising that lenders and settlement agents find the forms burdensome to provide and explain. The Dodd-Frank Wall Street Reform and Consumer Protection Act (DoddFrank Act) directs the Bureau to combine the forms. To accomplish this, the Bureau has engaged in extensive consumer and industry research and public outreach for more than a year.1 1 See part III below for a discussion of the Bureau’s testing of the forms with more than 100 consumers, lenders, mortgage brokers, and settlement agents. This part also describes the Bureau’s outreach efforts, including the panel convened by the Bureau to examine ways to minimize the burden of the proposed rule on small businesses. PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 Based on this input, the Bureau is now proposing a rule with new, combined forms. The proposed rule also provides a detailed explanation of how the forms should be filled out and used. The first new form (the Loan Estimate) is designed to provide disclosures that will be helpful to consumers in understanding the key features, costs, and risks of the mortgage for which they are applying. This form will be provided to consumers within three business days after they submit a loan application. The second form (the Closing Disclosure) is designed to provide disclosures that will be helpful to consumers in understanding all of the costs of the transaction. This form will be provided to consumers three business days before they close on the loan. The forms use clear language and design to make it easier for consumers to locate key information, such as interest rate, monthly payments, and costs to close the loan. The forms also provide more information to help consumers decide whether they can afford the loan and to compare the cost of different loan offers, including the cost of the loans over time. In developing the new Loan Estimate form and Closing Disclosure form, the Bureau has reconciled the differences between the existing forms and combined several other mandated disclosures. The Bureau also has responded to industry complaints of uncertainty about how to fill out the existing forms by providing detailed instructions on how to complete the new forms.2 This should reduce the burden on lenders and others in preparing forms in the future. B. Scope of the Proposed Rule The proposed rule applies to most closed-end consumer mortgages. The proposed rule does not apply to homeequity lines of credit, reverse mortgages, or mortgages secured by a mobile home or by a dwelling that is not attached to real property (in other words, land). The proposed rule also does not apply to loans made by a creditor who makes five or fewer mortgages in a year.3 C. The Loan Estimate The Loan Estimate form would replace two current Federal forms. It would replace the Good Faith Estimate designed by the Department of Housing 2 This guidance is provided in the proposed regulations and the proposed Official Interpretations, which are in Supplement I. 3 For additional discussion of the scope of the proposed rule, see part VI below regarding section 1026.19, Coverage of Integrated Disclosure Requirements. E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 and Urban Development (HUD) under RESPA and the ‘‘early’’ Truth in Lending disclosure designed by the Board of Governors of the Federal Reserve System (the Board) under TILA.4 The proposed rule and the Official Interpretations (on which lenders can rely) contain detailed instructions as to how each line on the Loan Estimate form would be completed.5 There are sample forms for different types of loan products.6 The Loan Estimate form also incorporates new disclosures required by Congress under the Dodd-Frank Act.7 Provision by mortgage broker. The lender may rely on a mortgage broker to provide the Loan Estimate form. However, the lender also remains responsible for the accuracy of the form.8 Timing. The lender or broker must give the form to the consumer within three business days after the consumer applies for a mortgage loan.9 The proposed rule contains a specific definition of what constitutes an ‘‘application’’ for these purposes.10 Limitation on fees. Consistent with current law, the lender generally cannot charge consumers any fees until after the consumers have been given the Loan Estimate form and the consumers have communicated their intent to proceed with the transaction. There is an exception that allows lenders to charge fees to obtain consumers’ credit reports.11 Disclaimer on early estimates. Lenders and brokers may provide consumers with written estimates prior to application. The proposed rule requires that any such written estimates contain a disclaimer to prevent confusion with the Loan Estimate form. This disclaimer would not be required for advertisements.12 4 These disclosures are available at https:// www.hud.gov/offices/hsg/rmra/res/gfestimate.pdf and https://ecfr.gpoaccess.gov/graphics/pdfs/ ec27se91.024.pdf. 5 The requirements for the Loan Estimate are in proposed § 1026.37. Additional discussion of this and other sections of the proposed rule is provided in the relevant portion of part VI below. 6 Appendix H to the proposed rule provides examples of how to fill out these forms for a variety of different loans, including loans with fixed or adjustable rates or features such as balloon payments and prepayment penalties. 7 For a discussion of these disclosures, see part V.B below. 8 This provision is in proposed § 1026.19(e)(1)(ii). 9 This provision is in proposed § 1026.19(e)(1)(iii). 10 The definition of ‘‘application’’ is in proposed § 1026.2(a)(3). 11 This provision is in proposed § 1026.19(e)(2)(i). 12 This provision is in proposed § 1026.19(e)(2)(ii). VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 D. The Closing Disclosure The Closing Disclosure form would replace the current form used to close a loan, the HUD–1, which was designed by HUD under RESPA. It would also replace the revised Truth in Lending disclosure designed by the Board under TILA.13 The proposed rule and the Official Interpretations (on which lenders can rely) contain detailed instructions as to how each line on the Closing Disclosure form would be completed.14 The Closing Disclosure form contains additional new disclosures required by the Dodd-Frank Act and a detailed accounting of the settlement transaction. Timing. The lender must give consumers this Closing Disclosure form at least three business days before the consumer closes on the loan. Generally, if changes occur between the time the Closing Disclosure form is given and the closing, the consumer must be provided a new form. When that happens, the consumer must be given three additional business days to review that form before closing.15 However, the proposed rule contains an exception from the three-day requirement for some common changes. These include changes resulting from negotiations between buyer and seller after the final walk-through. There also is an exception for minor changes which result in less than $100 in increased costs.16 The Bureau seeks comment on whether to permit additional changes without requiring a new three-day period before closing. Provision. Currently, settlement agents are required to provide the HUD– 1, while lenders are required to provide the revised Truth in Lending disclosure. The Bureau is proposing two alternatives for who is required to provide consumers with the new Closing Disclosure form. Under the first option, the lender would be responsible for delivering the Closing Disclosure form to the consumer. Under the second option, the lender may rely on the settlement agent to provide the form. However, under the second option, the lender would also remain responsible for the accuracy of the form.17 The 13 These disclosures are available at https:// www.hud.gov/offices/adm/hudclips/forms/files/ 1.pdf and https://ecfr.gpoaccess.gov/graphics/pdfs/ ec27se91.024.pdf. 14 The requirements for the Closing Disclosure are in proposed § 1026.38. 15 This provision is in proposed § 1026.19(f)(1)(ii). 16 These exceptions are in proposed § 1026.19(f)(2). 17 These alternatives are set forth in proposed § 1026.19(f)(1). PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 51117 Bureau seeks comment as to which alternative is preferable. E. Limits on Closing Cost Increases Similar to existing law, the proposed rule would restrict the circumstances in which consumers can be required to pay more for settlement services—the various services required to complete a loan, such as appraisals, inspections, etc.—than the amount stated on their Loan Estimate form. Unless an exception applies, charges for the following services could not increase: (1) The lender’s or mortgage broker’s charges for its own services; (2) charges for services provided by an affiliate of the lender or mortgage broker; and (3) charges for services for which the lender or mortgage broker does not permit the consumer to shop. Also unless an exception applies, charges for other services generally could not increase by more than 10 percent.18 The rule would provide exceptions, for example, when: (1) The consumer asks for a change; (2) the consumer chooses a service provider that was not identified by the lender; (3) information provided at application was inaccurate or becomes inaccurate; or (4) the Loan Estimate expires. When an exception applies, the lender generally must provide an updated Loan Estimate form within three business days. F. Changes to APR The proposed rule redefines the way the Annual Percentage Rate or ‘‘APR’’ is calculated. Under the rule, the APR will encompass almost all of the up-front costs of the loan.19 This will make it easier for consumers to use the APR to compare loans and easier for industry to calculate the APR. G. Recordkeeping The proposed rule requires lenders to keep records of the Loan Estimate and Closing Disclosure forms provided to consumers in a standard electronic format.20 This will make it easier for regulators to monitor compliance. The Bureau seeks comment on whether smaller lenders should be exempt from this requirement. H. Effective Date The Bureau is seeking comment on when this final rule should be effective. Because the final rule will provide important benefits to consumers, the Bureau seeks to make it effective as soon as possible. However, the Bureau understands that the final rule will 18 The limitations and the exceptions discussed below are in proposed § 1026.19(e)(3). 19 These revisions are in proposed § 1026.4. 20 This provision is in proposed § 1026.25. E:\FR\FM\23AUP2.SGM 23AUP2 51118 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules require lenders, mortgage brokers, and settlement agents to make extensive revisions to their software and to retrain their staff. In addition, some entities will be required to implement other Dodd-Frank Act provisions, which are subject to separate rulemaking deadlines under the statute and will have separate effective dates. Therefore, the Bureau is seeking comment on how much time industry needs to make these changes. The Bureau is proposing to delay compliance with certain new disclosure requirements contained in the DoddFrank Act until the Bureau’s final rule takes effect.21 II. Background A. The Mortgage Market Overview of the Market and the Mortgage Crisis The mortgage market is the single largest market for consumer financial products and services in the United States, with approximately $10.3 trillion in loans outstanding.22 During the last decade, the market went through an unprecedented cycle of expansion and contraction that was fueled in part by the securitization of mortgages and creation of increasingly sophisticated derivative products designed to mitigate accompanying risks. So many other parts of the American financial system were drawn into mortgage-related activities that when the bubble collapsed in 2008, it sparked the most severe recession in the United States since the Great Depression. The expansion in this market is commonly attributed to both particular economic conditions and by changes within the industry. Interest rates dropped significantly—by more than 20 percent—from 2000 through 2003.23 Housing prices increased dramatically— about 152 percent—between 1997 and 2006.24 Driven by the decrease in interest rates and the increase in housing prices, the volume of refinances increased from about 2.5 million loans 21 For additional discussion, see part V below. Mortgage Finance, Outstanding 1–4 Family Mortgage Securities, Mortgage Market Statistical Annual (2012). 23 See U.S. Dep’t. of Hous. and Urban Dev., An Analysis of Mortgage Refinancing, 2001–2003 (Nov. 2004), available at www.huduser.org/Publications/ pdf/MortgageRefinance03.pdf; Souphala Chomsisengphet and Anthony Pennington-Cross, The Evolution of the Subprime Mortgage Market, Federal Reserve Bank of St. Louis Review, 88(1), 31, 48 (Jan./Feb. 2006), available at https:// research.stlouisfed.org/publications/review/article/ 5019. 24 The Financial Crisis Inquiry Commission, The Financial Crisis Inquiry Report (Feb. 25, 2011) (FCIC Report) at 156, available at https:// www.gpo.gov/fdsys/pkg/GPO-FCIC/pdf/GPOFCIC.pdf. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 22 Inside VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 in 2000 to more than 15 million in 2003.25 At the same time, advances in the securitization of mortgages attracted increasing involvement from financial institutions that were not directly involved in the extension of credit to consumers and from investors worldwide. Securitization of mortgages allows originating lenders to sell off their loans (and reinvest the funds earned in making new ones) to investors who want an income stream over time. Securitization had been pioneered by what are now called government sponsored enterprises (GSEs), such as the Federal National Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage Corporation (Freddie Mac). But by the early 2000s, large numbers of private financial institutions were deeply involved in creating increasingly sophisticated investment mortgagerelated vehicles through securities and derivative products. Growth in the mortgage loan market was particularly pronounced in what are known as ‘‘subprime’’ and ‘‘Alt-A’’ products. Subprime products were sold both to borrowers with poor or no credit history, as well as to borrowers with good credit. The Alt-A category of loans permitted borrowers to provide little or no documentation of income or other repayment ability. Because these loans involved additional risk, they were typically more expensive to borrowers than so-called ‘‘prime’’ mortgages, though many offered low introductory rates. In 2003, subprime and Alt-A origination volume was about $400 billion. In 2006, it had reached $830 billion.26 So long as housing prices were continuing to increase, it was relatively easy for borrowers to refinance their loans to avoid interest rate resets and other adjustments. However, housing prices began to decline as early as 2005, slowing the growth in refinances.27 At the same time, as the economy worsened the rates of serious delinquency (90 or more days past due or in foreclosure) for these subprime and Alt-A products began a steep increase from approximately 10 percent in 2006, to 20 percent in 2007, to over 40 percent in 2010.28 The impact of this level of delinquencies on the private investors who purchased these loans from the 25 An Analysis of Mortgage Refinancing, 2001– 2003, at 1. 26 Inside Mortgage Finance: Mortgage Market Statistical Annual 2011. 27 FCIC Report at 215. 28 Id. at 217. PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 mortgage originators was severe. Private securitizations of subprime loans peaked at $465 billion in 2005, but were virtually eliminated in 2008. Private securitizations of Alt-A loans followed a similar trajectory.29 This effect was even felt by Fannie Mae and Freddie Mac, which were large purchasers of these securitizations, and it resulted in the Federal government in late 2008 placing the GSEs into conservatorship in order to support the collapsing mortgage market. Four years later, the United States continues to grapple with the fallout. Home prices are down 35 percent from peak to trough on a national basis, and it is not clear whether the national market has reached bottom.30 The fall in housing prices is estimated to have resulted in about $7 trillion in household wealth losses.31 Moreover, mortgage markets continue to rely on extraordinary U.S government support. In addition, distressed homeownership and foreclosure rates remain at unprecedented levels. Approximately 5.8 million homeowners were somewhere between 30 days late on their mortgage and in the foreclosure process as of April 2012.32 Finally, the U.S. continues to face a stubbornly high unemployment rate, which was at 8.2 percent at the end of May 2012.33 While there remains debate about which market issues definitively sparked this crisis, there were several mortgage origination issues that pervaded the mortgage lending system prior to the crisis and are generally accepted as having contributed to its collapse. First, the market experienced a steady deterioration of credit standards in mortgage lending, particularly evidenced by the growth of subprime and Alt-A loans, which consumers were often unable or unwilling to repay.34 Second, the mortgage market saw a proliferation of more complex mortgage products with terms that were often difficult for consumers to understand. These products included most notably 2/28 and 3/27 Hybrid Adjustable Rate Mortgages and Option ARM products.35 29 Id. at 124. 30 S&P/Case-Shiller 20-City Composite accessed from Bloomberg, LP on June 6, 2012. 31 Board of Governors of the Federal Reserve System, The U.S. Housing Market: Current Conditions and Policy Considerations (Jan. 4, 2012), available at https://www.federalreserve.gov/ publications/other-reports/files/housing-whitepaper-20120104.pdf. 32 Lender Processing Services April 2012 Mortgage Monitor. 33 Bureau of Labor Statistics, accessed from Bloomberg, LP on June 6, 2012. 34 FCIC Report at 88. 35 Id. at 106. ‘‘Hybrid Adjustable Rate Mortgage’’ is a term frequently used to describe adjustable rate E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules make a reasonable and good faith determination, based on verified and documented information, that the consumer will have a reasonable ability to repay the loan.40 Sections 1032(f), 1098, and 1100A of the Dodd-Frank Act address concerns that Federal mortgage disclosures did not adequately explain to consumers the terms of their loans (particularly complex adjustable rate or optional payment loans) by requiring new disclosure forms that will improve consumer understanding of mortgage transactions (which is the subject of this proposal).41 In addition, the Dodd-Frank Act established other new standards concerning a wide range of mortgage lending practices, including compensation for mortgage originators 42 and mortgage servicing.43 For additional information, see the discussion below in part II.F. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 These products were often marketed to subprime and Alt-A customers. The appetite on the part of mortgage investors for such products often created inappropriate incentives for mortgage originators to originate these more expensive and profitable mortgage products.36 Third, responsibility for the regulation of consumer financial protection laws was spread across seven regulators including the Board, HUD, the Office of Thrift Supervision, the Federal Trade Commission, the Federal Deposit Insurance Corporation, the Office of the Comptroller of the Currency, and the National Credit Union Administration. Such a spread in responsibility may have hampered the government’s ability to coordinate regulatory monitoring and response to such issues.37 In the wake of this financial crisis, Congress passed the Dodd-Frank Act to address many of these concerns. In this Act, Congress created the Bureau and consolidated the rulemaking authority for many consumer financial protection statutes, including the two primary Federal consumer protection statutes governing mortgage origination, TILA and RESPA, in the Bureau.38 Congress also provided the Bureau with supervision authority for certain consumer financial protection statutes over certain entities, including insured depository institutions with total assets over $10 billion and their affiliates, and certain other non-depository entities.39 At the same time, Congress significantly amended the statutory requirements governing mortgage practices with the intent to restrict the practices that contributed to the crisis. For example, in response to concerns that some lenders made loans to consumers without sufficiently determining their ability to repay, section 1411 of the Dodd-Frank Act amended TILA to require that creditors Size of the Current Mortgage Origination Market Even with the economic downturn, approximately $1.28 trillion in mortgage loans were originated in 2011.44 In exchange for a mortgage loan, borrowers promise to make regular mortgage payments and provide their home or real property as collateral. The overwhelming majority of homebuyers use mortgage loans to pay for at least some of their property. In 2011, 93 percent of all new home purchases were financed with a mortgage loan.45 Borrowers may take out mortgage loans in order to purchase a new home, to refinance an existing mortgage, or to access home equity. Purchase loans and refinances produced 6.3 million new mortgage loan originations in 2011 alone.46 The proportion of loans that are for purchases as opposed to refinances varies with the interest rate environment. In 2011, 65 percent of the market was refinance transactions and 35 percent was purchase loans, by volume.47 Historically the distribution mortgage loans that have a low fixed introductory rate for a certain period of time. ‘‘Option ARM’’ is a term frequently used to describe adjustable rate mortgage loans that have a scheduled loan payment that may result in negative amortization for a certain period of time, but that expressly permit specified larger payments in the contract or servicing documents, such as an interest-only payment or a fully amortizing payment. For these loans, the scheduled negatively amortizing payment was typically described in marketing and servicing materials as the ‘‘optional payment.’’ 36 Id. at 109. 37 Id. at 111. 38 Sections 1011 and 1021 of title X of the DoddFrank Act, the ‘‘Consumer Financial Protection Act,’’ Public Law 111–203, sections 1001–1100H, codified at 12 U.S.C. 5491, 5511. The Consumer Financial Protection Act is substantially codified at 12 U.S.C. 5481–5603. 39 Sections 1024 through 1026 of title X of the Dodd-Frank Act, codified at 12 U.S.C. 5514–5516. 40 Section 1411 of the Dodd-Frank Act, codified at 15 U.S.C. 1639c. 41 1032(f) of the Dodd-Frank Act, codified at 12 U.S.C. 5532(f). Sections 1098 and 1100A of the Dodd-Frank Act amend RESPA and TILA, respectively. 42 Sections 1402 through 1405 of the Dodd-Frank Act, codified at 15 U.S.C. 1639b. 43 Sections 1418, 1420, 1463, and 1464 of the Dodd-Frank Act, codified at 12 U.S.C. 2605; 15 U.S.C. 1638, 1638a, 1639f, and 1639g. 44 Moody’s Analytics, Credit Forecast (2012). Reflects first-lien mortgage loans. 45 Inside Mortgage Finance, New Homes Sold by Financing, Mortgage Market Statistical Annual (2012). 46 Moody’s Analytics, Credit Forecast (2012). Reflects first-lien mortgage loans. 47 Inside Mortgage Finance, Mortgage Originations by Product, Mortgage Market Statistical Annual (2012). These percentages are based on the dollar amount of the loans. VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 51119 has been more even. In 2000, refinances accounted for 44 percent of the market while purchase loans comprised 56 percent, and in 2005 the two products were split evenly.48 Using a home equity loan, a homeowner can use their equity as collateral in exchange for a loan. The loan proceeds can be used, for example, to pay for home improvements or to pay off other debts. These home equity loans resulted in an additional 1.3 million mortgage loan originations in 2011.49 Shopping for Mortgage Loans When shopping for a mortgage loan, research has shown that consumers are most concerned about the interest rate and their monthly payment.50 Consumers may underestimate the possibility that interest rates and payments can increase later on, or they may not fully understand that this possibility exists. They also may not appreciate other costs that could arise later, such as prepayment penalties.51 This focus on short term costs while underestimating long term costs may result in consumers taking out mortgage loans that are more costly than they realize.52 48 Inside Mortgage Finance, Mortgage Originations by Product, Mortgage Market Statistical Annual (2012). These percentages are based on the dollar amount of the loans. 49 Moody’s Analytics, Credit Forecast (2012). Reflects open-end and closed-end home equity loans. 50 Bd. of Governors of the Fed. Reserve Sys., Summary of Findings: Design and Testing of Truth in Lending Disclosures for Closed-End Mortgages, prepared by Macro International, Inc. (July 16, 2009), p. 6, available at https:// www.federalreserve.gov/boarddocs/meetings/2009/ 20090723/Full%20Macro%20CE%20Report.pdf.; see also Kleimann Communication Group, Inc., Know Before You Owe: Evolution of the Integrated TILA–RESPA Disclosures (July 2012), available at https://files.consumerfinance.gov/f/ 201207_cfpb_report_tila-respa-testing.pdf. 51 James Lacko and Janis Pappalardo, Improving Consumer Mortgage Disclosures: An Empirical Assessment of Current and Prototype Disclosure Forms, Federal Trade Commission, p. 26 (June 2007) (finding borrowers had misunderstood key loan features, including the overall cost of the loan, future payment amount, ability to refinance, payment of up-front points and fees, whether the monthly payment included escrow for taxes and insurance, any balloon payment, whether the interest rate had been locked, whether the rate was adjustable or fixed, and any prepayment penalty), available at https://www.ftc.gov/os/2007/06/P025505 MortgageDisclosureReport.pdf. 52 Oren Bar-Gill, The Law, Economics and Psychology of Subprime Mortgage Contracts, 94 Cornell L. Rev. 1073, 1079 (2009) (discussing how subprime borrowers may not fully understand the loan costs due to product complexity and deferral of loan costs into the future); id. at 1133 (explaining that borrower underestimation of mortgage loan cost distorts their decision to take out a loan, resulting in excessive borrowing), available at https://legalworkshop.org/wp-content/uploads/2009/ 07/cornell-A23090727-bar-gill.pdf. E:\FR\FM\23AUP2.SGM 23AUP2 51120 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules Research points to a relationship between consumer confusion about loan terms and conditions and an increased likelihood of adopting higher-cost, higher-risk mortgage loans in the years leading up to the mortgage crisis. A study of data from the 2001 Survey of Consumer Finances found that some adjustable-rate mortgage loan borrowers—particularly those with below median income—underestimated or did not realize how much their interest rates could change.53 These findings are consistent with a 2006 Government Accountability Office study, which raised concerns that mortgage loan disclosure laws did not require specific disclosures for adjustable rate loans.54 This evidence suggests that borrowers who are not presented with clear, understandable information about their mortgage loan offer may lack an accurate understanding of the loan costs and risks. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 The Mortgage Origination Process Borrowers must go through a mortgage origination process to take out a mortgage loan. During this process, borrowers have two significant factors to consider: the costs that they pay to close the loan, and the costs over the life of the loan. Both factors can vary tremendously, making the home purchase especially complex. Furthermore, there are many actors involved in a mortgage origination. In addition to the lender and the borrower, a single transaction may involve a seller, mortgage broker, real estate agent, settlement agent, appraiser, multiple insurance providers, and local government clerks and tax offices. These actors typically charge fees or commissions for the services they provide. Borrowers learn about the loan costs and the sources of those costs through a variety of sources, including disclosures provided throughout the mortgage origination process. Loan Terms. The loan terms affect how the loan is to be repaid, including the type of loan product,55 the interest rate, the payment amount, and the length of the loan term. Among other things, the type of loan product determines whether the interest 53 Brian K. Bucks and Karen M. Pence, Do Borrowers Know their Mortgage Terms?, J. of Urban Econ. (2008), available at https://works.bepress.com/ karen_pence/5. 54 U.S. Government Accountability Office, Alternative Mortgage Products: Impact on Default Remains Unclear, but Disclosure of Risks to Borrowers Could Be Improved (Sept. 20, 2006), available at https://www.gao.gov/new.items/ d061112t.pdf. 55 Types of loan products include a fixed rate loan, adjustable rate loan, and interest-only loan. VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 rate can change and, if so, when and by how much. A fixed rate loan sets the interest rate at origination, and the rate stays the same until the borrower pays off the loan. However, the interest rate on an adjustable rate loan is periodically reset based on an interest rate index. This shifting rate could change the borrower’s monthly payment. Typically, an adjustable rate loan will combine both types of rates, so that the interest rate is fixed for a certain period of time before adjusting. For example, a 5/1 adjustable rate loan would have a fixed interest rate for five years, and then adjust every year until the loan ends. Any changes in the interest rate after the first five years would change the borrower’s payments. Today, fixed rate mortgages are the most common mortgage product, accounting for 87 percent of the mortgage loan market in 2011.56 Adjustable rate mortgages accounted for only 13 percent of the mortgage loan market in 2011, although they have been more popular in the past.57 Adjustable-rate mortgages accounted for 30 percent of mortgage loan volume in 2000, and reached a recent high of 50 percent in 2004.58 Borrowers are usually required to make payments on a monthly basis. These payments typically are calculated to pay off the entire loan balance by the time the loan term ends.59 The way a borrower’s payments affect the amount of the loan balance over time is called amortization. Most borrowers take out fully amortizing loans, meaning that their payments are applied to both principal and interest so that the loan’s principal balance will gradually decrease until it is completely paid off. The typical 30-year fixed rate loan has fully amortizing monthly payments that are calculated to pay off the loan in full over 30 years. However, loan amortization can take other forms. An interest-only loan would require the borrower to make regular payments that cover interest but not principal. In some cases, these interest-only payments end after a period of time (such as five years) and the borrower must begin making significantly higher payments that cover 56 Inside Mortgage Finance, Mortgage Originations by Product, Mortgage Market Statistical Annual (2012). These percentages are based on the dollar amount of the loans. 57 Inside Mortgage Finance, Mortgage Originations by Product, Mortgage Market Statistical Annual (2012). These percentages are based on the dollar amount of the loans. 58 Inside Mortgage Finance, Mortgage Originations by Product, Mortgage Market Statistical Annual (2012). These percentages are based on the dollar amount of the loans. 59 Some loans may require a large final payment (or ‘‘balloon’’ payment) in addition to monthly payments. PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 both interest and principal to amortize the loan over the remaining loan term. In other cases, the entire principal balance must be paid when the loan becomes due. The time period that the borrower has to repay the loan is known as the loan term, and is specified in the mortgage contract. Many loans are set for a term of 30 years. Depending on the amortization type of the loan, it will either be paid in full or have a balance due at the end of the term. Closing Costs. Closing costs are the costs of completing a mortgage transaction, including origination fees, appraisal fees, title insurance, taxes, and homeowner’s insurance. The borrower may pay an application or origination fee. Lenders generally also require an appraisal as part of the origination process in order to determine the value of the home. The appraisal helps the lender determine whether the home is valuable enough to act as collateral for the mortgage loan. The borrower is generally responsible for the appraisal fee, which may be paid at or before closing. Finally, lenders typically require borrowers to take out various insurance policies. Insurance protects the lender’s collateral interest in the property. Homeowner’s insurance protects against the risk that the home is damaged or destroyed, while title insurance protects the lender against the risk of claims against the borrower’s legal right to the property. In addition, the borrower may be required to take out mortgage insurance which protects the lender in the event of default. Application. In order to obtain a mortgage loan, borrowers must first apply through a loan originator. There are two different kinds of loan originators. A retail originator works directly for a mortgage lender. A mortgage lender that employs retail originators could be a bank or credit union, or it could be a specialized mortgage finance company. The other kind of loan originator is a mortgage broker. Mortgage brokers work with many different lenders and facilitate the transaction for the borrower. A loan originator may help borrowers determine what kind of loan best suits their needs, and will collect their completed loan application. The application includes borrower credit and income information, along with information about the home to be purchased. Borrowers can apply to multiple loan originators in order to compare the loans that they are being offered. Once they have decided to move forward with the loan, the borrower must notify the loan originator. The loan originator will E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules typically wait to receive this notification before taking more information from the borrower and giving the borrower’s application to a loan underwriter. Mortgage Processing. A loan underwriter uses the application and additional information to confirm initial information provided by the borrower. The underwriter will assess whether the lender should take on the risk of making the mortgage loan. In order to make this decision, the underwriter considers whether the borrower can repay the loan, and whether the home is worth enough to act as collateral for the loan. If the underwriter finds that the borrower and the home qualify, the underwriter will approve the borrower’s mortgage application. Depending on the loan terms, as discussed above, lenders may require borrowers to retain title insurance, homeowner’s insurance, private mortgage insurance, and other services. The lender may allow the borrower to shop for certain closing services on their own. Closing. After being accepted for a mortgage loan, completing any closing requirements, and receiving necessary disclosures, the borrower can close on the loan. Multiple parties participate at closing, including the borrower and the settlement agent. The settlement agent ensures that all the closing requirements are met, and that all fees are collected. The settlement agent also completes all of the closing documents. The settlement agent makes sure that the borrower signs these closing documents, including a promissory note and the security instrument. This promissory note is evidence of the loan debt, and documents the borrower’s promise to pay back the loan. It states the terms of the loan, including the interest rate and length. The security instrument, in the form of a mortgage, provides the home as collateral for the loan. A deed of trust is similar to a mortgage, except that a trustee is named to hold title to the property as security for the loan. The borrower receives title to the property after the loan is paid in full. Both a mortgage and deed of trust allow the lender to foreclose and sell the home if the borrower does not repay the loan. In the case of a purchase loan, the funds to purchase the home and pay closing costs are distributed at closing or shortly thereafter. In the case of a refinance loan, the funds from the new loan are used to pay off the old loan, with any additional amount going to the borrower or to pay off other debts. Refinance loans also have closing costs, which may be paid by the borrower at closing or, in some cases, rolled into the VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 loan amount. In home-equity loans, the borrower’s funds and the closing costs are provided upon closing. A settlement agent makes sure that all amounts are given to the appropriate parties. After the closing, the settlement agent records the deed at the local government registry. B. RESPA and Regulation X Congress enacted the Real Estate Settlement Procedures Act of 1974 based on findings that significant reforms in the real estate settlement process were needed to ensure that consumers are provided with greater and more timely information on the nature and costs of the residential real estate settlement process and are protected from unnecessarily high settlement charges caused by certain abusive practices that Congress found to have developed. 12 U.S.C. 2601(a). With respect to RESPA’s disclosure requirements, the Act’s purpose is to provide ‘‘more effective advance disclosure to home buyers and sellers of settlement costs.’’ Id. 2601(b)(1). In addition to providing consumers with appropriate disclosures, the purposes of RESPA include effecting certain changes in the settlement process for residential real estate that will result in (1) the elimination of kickbacks or referral fees that Congress found to increase unnecessarily the costs of certain settlement services; and (2) a reduction in the amounts home buyers are required to place in escrow accounts established to insure the payment of real estate taxes and insurance. Id. 2601. In 1990, Congress amended RESPA by adding a new section 6 covering persons responsible for servicing mortgage loans and amending statutory provisions related to mortgage servicers’ administration of borrowers’ escrow accounts.60 RESPA’s disclosure requirements generally apply to ‘‘settlement services’’ for ‘‘federally related mortgage loans.’’ Under the statute, the term ‘‘settlement services’’ includes any service provided in connection with a real estate settlement. Id. 2602(3). The term ‘‘federally related mortgage loan’’ is broadly defined to encompass virtually any purchase money or refinance loan, with the exception of temporary financing, that is ‘‘secured by a first or subordinate lien on residential real property (including individual units of condominiums and cooperatives) designed principally for the occupancy of from one to four families * * *.’’ Id. 2602(1). 60 Public Law 101–625, 104 Stat. 4079 (1990), sections 941–42. PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 51121 Section 4 of RESPA requires that, in connection with a ‘‘mortgage loan transaction,’’ a disclosure form that includes a ‘‘real estate settlement cost statement’’ be prepared and made available to the borrower for inspection at or before settlement.61 Id. 2603. The law further requires that form ‘‘conspicuously and clearly itemize all charges imposed upon the borrower and all charges imposed upon the seller in connection with the settlement * * *.’’ Id. 2603(a). Section 5 of RESPA provides for a booklet to help consumers applying for loans to finance the purchase of residential real estate from lenders that make federally related mortgage loans to understand the nature and costs of real estate settlement services. Id. 2604(a). Further, each lender must ‘‘include with the booklet a good faith estimate of the amount or range of charges for specific settlement services the borrower is likely to incur in connection with the settlement * * *.’’ Id. 2604(c). The booklet and the good faith estimate must be provided not later than three business days after the lender receives an application, unless the lender denies the application for credit before the end of the three-day period. Id. 2604(d). Historically, Regulation X of the Department of Housing and Urban Development (HUD), 24 CFR part 3500, has implemented RESPA. On March 14, 2008, after a 10-year investigatory process, HUD proposed extensive revisions to the good faith estimate and settlement forms required under Regulation X, as well as new accuracy standards with respect to the estimates provided to consumers. 73 FR 14030 (Mar. 14, 2008) (HUD’s 2008 RESPA Proposal).62 In November 2008, HUD finalized the proposed revisions in substantially the same form, including new standard good faith estimate and settlement forms, which lenders, mortgage brokers, and settlement agents were required to use beginning on January 1, 2010. 73 FR 68204 (Nov. 17, 2008) (HUD’s 2008 RESPA Final Rule). HUD’s 2008 RESPA Final Rule implemented significant changes to the 61 Prior to the Dodd-Frank Act, section 4 of RESPA applied to ‘‘all transactions in the United States which involve federally related mortgage loans.’’ 12 U.S.C. 2603 (2009). However, section 1098 of the Dodd-Frank Act deleted the reference to ‘‘federally related mortgage loan’’ in this section and replaced it with ‘‘mortgage loan transactions.’’ The regulation implementing this statutory requirement has historically applied and continues to apply to ‘‘federally related mortgage loans.’’ See 12 CFR 1024.8; 24 CFR 3500.8 (2010). 62 During this 10-year period, in 2002, HUD published a proposed rule revising the good faith estimate forms and accuracy standards for cost estimates, which it never finalized. 67 FR 49134 (July 29, 2002). E:\FR\FM\23AUP2.SGM 23AUP2 51122 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 rules regarding the accuracy of the estimates provided to consumers. The final rule required re-disclosure of the good faith estimate form when the actual costs increased beyond a certain percentage of the estimated amounts, and permitted such increases only under certain specified circumstances. Id. at 68240 (amending 24 CFR 3500.7). HUD’s 2008 RESPA Final Rule also included significant changes to the RESPA disclosure requirements, including prohibiting itemization of certain amounts and instead requiring the disclosure of aggregate settlement costs; adding loan terms, such as whether there is a prepayment penalty and the borrower’s interest rate and monthly payment; and requiring use of a standard form for the good faith estimate. Id. The standard form was developed through consumer testing conducted by HUD, which included qualitative testing consisting of one-onone cognitive interviews.63 HUD issued informal guidance regarding the final rule on its Web site, in the form of frequently asked questions 64 (HUD RESPA FAQs) and bulletins 65 (HUD RESPA Roundups). The Dodd-Frank Act (discussed further in part I.D, below) transferred rulemaking authority for RESPA to the Bureau, effective July 21, 2011. See sections 1061 and 1098 of the DoddFrank Act. Pursuant to the Dodd-Frank Act and RESPA, as amended, the Bureau published for public comment an interim final rule establishing a new Regulation X, 12 CFR part 1024, implementing RESPA. 76 FR 78978 (Dec. 20, 2011). This rule did not impose any new substantive obligations but did make certain technical, conforming, and stylistic changes to reflect the transfer of authority and certain other changes made by the Dodd-Frank Act. The Bureau’s Regulation X took effect on December 30, 2011. RESPA section 5’s requirements of an information booklet and good faith estimate of settlement costs (RESPA GFE) are implemented in Regulation X by §§ 1024.6 and 1024.7, respectively. RESPA section 4’s requirement of a real estate settlement statement (RESPA settlement statement) is implemented by § 1024.8. 63 U.S. Dep’t. of Hous. and Urban Dev., Summary Report: Consumer Testing of the Good Faith Estimate Form (GFE), prepared by Kleimann Communication Group, Inc. (2008), available at https://www.huduser.org/publications/pdf/ Summary_Report_GFE.pdf. 64 New RESPA Rule FAQs, available at https:// portal.hud.gov/hudportal/documents/huddoc?id= resparulefaqs422010.pdf. 65 RESPA Roundup Archive, available at https:// portal.hud.gov/hudportal/HUD?src=/program_ offices/housing/rmra/res/resroundup. VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 C. TILA and Regulation Z Congress enacted the Truth in Lending Act based on findings that the informed use of credit resulting from consumers’ awareness of the cost of credit would enhance economic stability and would strengthen competition among consumer credit providers. 15 U.S.C. 1601(a). One of the purposes of TILA is to provide meaningful disclosure of credit terms to enable consumers to compare credit terms available in the marketplace more readily and avoid the uninformed use of credit. Id. TILA’s disclosures differ depending on whether credit is an openend (revolving) plan or a closed-end (installment) loan. TILA also contains procedural and substantive protections for consumers. TILA’s disclosure requirements apply to a ‘‘consumer credit transaction’’ extended by a ‘‘creditor.’’ Under the statute, consumer credit means ‘‘the right granted by a creditor to a debtor to defer payment of debt or to incur debt and defer its payment,’’ where ‘‘the party to whom credit is offered or extended is a natural person, and the money, property, or services which are the subject of the transaction are primarily for personal, family, or household purposes.’’ Id. 1602(f), (i). A creditor generally is ‘‘a person who both (1) regularly extends * * * consumer credit which is payable by agreement in more than four installments or for which the payment of a finance charge is or may be required, and (2) is the person to whom the debt arising from the consumer credit transaction is initially payable on the face of the evidence of indebtedness or, if there is no such evidence of indebtedness, by agreement.’’ Id. 1602(g). TILA section 128 requires that, for closed-end credit, the disclosures generally be made ‘‘before the credit is extended.’’ Id. 1638(b)(1). For closedend transactions secured by a consumer’s dwelling and subject to RESPA, good faith estimates of the disclosures are required ‘‘not later than three business days after the creditor receives the consumer’s written application, which shall be at least 7 business days before consummation of the transaction.’’ Id. 1638(b)(2)(A). Finally, if the annual percentage rate (APR) disclosed in this early TILA disclosure statement becomes inaccurate, ‘‘the creditor shall furnish an additional, corrected statement to the borrower, not later than 3 business days before the date of consummation of the transaction.’’ Id. 1638(b)(2)(D). Historically, Regulation Z of the Board of Governors of the Federal PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 Reserve System, 12 CFR part 226, has implemented TILA. TILA section 128’s requirement that the disclosure statement be provided before the credit is extended (final TILA disclosure) is implemented in Regulation Z by § 1026.17(b). The requirements that a good faith estimate of the disclosure be provided within three business days after application and at least seven business days prior to consummation (early TILA disclosure) and that a corrected disclosure be provided at least three business days before consummation (corrected TILA disclosure), as applicable, are implemented by § 1026.19(a). The contents of the TILA disclosures, as required by TILA section 128, are implemented by § 1026.18. On July 30, 2008, Congress enacted the Mortgage Disclosure Improvement Act of 2008 (MDIA).66 MDIA, in part, amended the timing requirements for the early TILA disclosures, requiring that these TILA disclosures be provided within three business days after an application for a dwelling-secured closed-end mortgage loan also subject to RESPA is received and before the consumer has paid any fee (other than a fee for obtaining the consumer’s credit history).67 Creditors also must mail or deliver these early TILA disclosures at least seven business days before consummation and provide corrected disclosures if the disclosed APR changes in excess of a specified tolerance. The consumer must receive the corrected disclosures no later than three business days before consummation. The Board implemented these MDIA requirements in final rules published May 19, 2009, which became effective July 30, 2009, as required by the statute. 74 FR 23289 (May 19, 2009) (MDIA Final Rule). MDIA also requires disclosure of payment examples if the loan’s interest rate or payments can change, along with a statement that there is no guarantee the consumer will be able to refinance the transaction in the future. Under the statute, these provisions of MDIA became effective on January 30, 2011. The Board worked to implement these provisions of MDIA at the same time that it was completing work on a several 66 MDIA is contained in sections 2501 through 2503 of the Housing and Economic Recovery Act of 2008, Public Law 110–289, enacted on July 30, 2008. MDIA was later amended by the Emergency Economic Stabilization Act of 2008, Public Law 110–343, enacted on October 3, 2008. 67 MDIA codified some requirements previously adopted by the Board in a July 2008 final rule. 73 FR 44522 (July 30, 2008) (HOEPA Final Rule). To ease discussion, the description of MDIA’s disclosure requirements includes the requirements of the 2008 HOEPA Final Rule. E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 year review of Regulation Z’s provisions concerning home-secured credit. As a result, the Board issued two sets of proposals approximately one year apart. On August 26, 2009, the Board published proposed amendments to Regulation Z containing comprehensive changes to the disclosures for closedend credit secured by real property or a consumer’s dwelling, including revisions to the format and content of the disclosures implementing MDIA’s payment examples and refinance statement requirements, and several new requirements. 74 FR 43232 (Aug. 26, 2009) (2009 Closed-End Proposal). For the 2009 Closed-End Proposal, the Board developed several new model disclosure forms through consumer testing consisting of focus groups and one-on-one cognitive interviews.68 In addition, the 2009 Closed-End Proposal proposed an extensive revision to the definition of ‘‘finance charge’’ that would replace the ‘‘some fees in, some fees out’’ approach for determining the finance charge with a simpler, more inclusive ‘‘all-in’’ approach. The proposed definition of ‘‘finance charge’’ would include a fee or charge if it is (1) ‘‘payable directly or indirectly by the consumer’’ to whom credit is extended, and (2) ‘‘imposed directly or indirectly by the creditor as an incident to or a condition of the extension of credit.’’ The finance charge would continue to exclude fees or charges paid in comparable cash transactions.69 On September 24, 2010, the Board published an interim final rule to implement MDIA’s payment example and refinance statement requirements. 75 FR 58470 (Sept. 24, 2010) (MDIA Interim Rule). The Board’s MDIA Interim Rule effectively adopted those aspects of the 2009 Closed-End Proposal that implemented these MDIA requirements, without adopting that proposal’s other provisions, which were not subject to the same January 30, 2011 68 Bd. of Governors of the Fed. Reserve Sys., Summary of Findings: Design and Testing of Truth in Lending Disclosures for Closed-End Mortgages, prepared by Macro International, Inc. (July 16, 2009) (Macro 2009 Closed-End Report), available at https://www.federalreserve.gov/boarddocs/meetings/ 2009/20090723/Full%20Macro%20CE%20 Report.pdf. 69 As discussed in the analysis of the proposed amendments to § 1026.4 in part VI, in response to concerns about the effect of an ‘‘all-in’’ finance charge on the higher-priced and HOEPA coverage thresholds in §§ 1026.35 and 1026.32, respectively, the Board proposed to implement a different ‘‘transaction coverage rate’’ for higher-priced coverage and to retain the existing ‘‘some fees in, some fees out’’ treatment of certain charges in the definition of points and fees for purposes of determining HOEPA coverage. See 76 FR 27390, 27411–12 (May 11, 2011); 76 FR 11598, 11608–09 (Mar. 2, 2011); 75 FR 58539, 58636–38, 58660–61 (Sept. 24, 2010). VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 statutory effective date. The Board later issued another interim final rule to make certain clarifying changes to the provisions of the MDIA Interim Rule. 75 FR 81836 (Dec. 29, 2010). On September 24, 2010, the Board also proposed further amendments to Regulation Z regarding rescission rights, disclosure requirements in connection with modifications of existing mortgage loans, and disclosures and requirements for reverse mortgage loans. This proposal was the second stage of the comprehensive review conducted by the Board of TILA’s rules for home-secured credit. 75 FR 58539 (Sept. 24, 2010) (2010 Mortgage Proposal). The Board also began, on September 24, 2010, issuing proposals implementing the Dodd-Frank Act, which had been signed on July 21, 2010. The Board issued a proposed rule implementing section 1461 of the DoddFrank Act, which, in part, adjusts the rate threshold for determining whether escrow accounts are required for ‘‘jumbo loans,’’ whose principal amounts exceed the maximum eligible for purchase by Freddie Mac.70 75 FR 58505 (Sept. 24, 2010). On March 2, 2011, the Board proposed amendments to Regulation Z implementing other requirements of sections 1461 and 1462 of the DoddFrank Act, which added new substantive and disclosure requirements regarding escrow accounts to TILA. 76 FR 11598 (March 2, 2011) (2011 Escrows Proposal). Sections 1461 and 1462 of the Dodd-Frank Act create new TILA section 129D, which substantially codifies requirements that the Board had previously adopted in Regulation Z regarding escrow requirements for higher-priced mortgage loans (including the revised rate threshold for ‘‘jumbo loans’’ described above), but also adds disclosure requirements, and lengthens the period for which escrow accounts are required. On May 11, 2011, the Board proposed amendments to Regulation Z to implement section 1411 of the DoddFrank Act, which amends TILA to prohibit creditors from making mortgage loans without regard to the consumer’s repayment ability. 76 FR 27390 (May 11, 2011) (2011 ATR Proposal). Section 1411 of the Dodd-Frank Act adds section 129C to TILA, codified at 15 U.S.C. 1639c, which prohibits a creditor from making a mortgage loan unless the creditor makes a reasonable and good faith determination, based on verified and documented information, that the consumer will have a reasonable ability to repay the loan, including any 70 The Board finalized this proposal effective April 1, 2011. 76 FR 11319 (Mar. 2, 2011). PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 51123 mortgage-related obligations (such as property taxes). Effective July 21, 2011, the DoddFrank Act transferred rulemaking authority for TILA to the Bureau.71 See sections 1061 and 1100A of the DoddFrank Act. Along with this authority, the Bureau assumed responsibility for the proposed rules discussed above. Pursuant to the Dodd-Frank Act and TILA, as amended, the Bureau published for public comment an interim final rule establishing a new Regulation Z, 12 CFR part 1026, implementing TILA (except with respect to persons excluded from the Bureau’s rulemaking authority by section 1029 of the Dodd-Frank Act). 76 FR 79768 (Dec. 22, 2011). This rule did not impose any new substantive obligations but did make certain technical, conforming, and stylistic changes to reflect the transfer of authority and certain other changes made by the Dodd-Frank Act. The Bureau’s Regulation Z took effect on December 30, 2011. D. The History of Integration Efforts For more than 30 years, TILA and RESPA have required creditors and settlement agents to give consumers who apply for and obtain a mortgage loan different but overlapping disclosure forms regarding the loan’s terms and costs. This duplication has long been recognized as inefficient and confusing for both consumers and industry. Previous efforts to develop a combined TILA and RESPA disclosure form were fueled by the amount, complexity, and overlap of information in the disclosures. On September 30, 1996, Congress enacted the Economic Growth and Regulatory Paperwork Reduction Act of 1996,72 which required the Board and HUD to ‘‘simplify and improve the disclosures applicable to the transactions under [TILA and RESPA], including the timing of the disclosures; and to provide a single format for such disclosures which will satisfy the requirements of each such Act with respect to such transactions.’’ 73 If the agencies found that legislative action might be necessary or appropriate to simplify and unify the disclosures, they were to submit a report to Congress containing recommendations for such action. In the same legislation, Congress added 71 Section 1029 of the Dodd-Frank Act excludes from this transfer of authority, subject to certain exceptions, any rulemaking authority over a motor vehicle dealer that is predominantly engaged in the sale and servicing of motor vehicles, the leasing and servicing of motor vehicles, or both. 12 U.S.C. 5519. 72 Public Law 104–208, 110 Stat. 3009 (1996). 73 Id., section 2101. E:\FR\FM\23AUP2.SGM 23AUP2 51124 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 exemption authority in TILA section 105(f) for classes of transactions for which, in the determination of the Board (now the Bureau), coverage under all or part of TILA does not provide a meaningful benefit to consumers in the form of useful information or protection.74 The Board and HUD did not propose an integrated disclosure pursuant to this legislation. Instead, in July 1998, the Board and HUD issued a ‘‘Joint Report to the Congress Concerning Reform to the Truth in Lending Act and the Real Estate Settlement Procedures Act’’ (Board-HUD Joint Report).75 The BoardHUD Joint Report concluded that ‘‘meaningful change could come only through legislation’’ and provided Congress with the Board’s and HUD’s recommendations for revising TILA and RESPA. The agencies recommended a number of amendments to TILA and RESPA in the report, such as amendment of TILA’s definition of ‘‘finance charge’’ to eliminate the ‘‘some fees in, some fees out’’ approach and instead include ‘‘all costs the consumer is required to pay in order to close the loan, with limited exceptions’’; the amendment of RESPA to require either the guaranteeing of closing costs on the GFE or estimates that are subject to an accuracy standard; and provision of the final TILA disclosure and settlement statement three days before closing, so that consumers would be able to study the disclosures in an unpressured environment. The Board-HUD Joint Report also recommended several additional changes to the TILA disclosures. In particular, the report recommended significant revisions to the ‘‘Fed Box,’’ which is the tabular disclosure provided to consumers in the early and final TILA disclosures under Regulation Z containing the APR, the finance charge (which is intended to be the cost of credit expressed as a dollar amount), the amount financed (which is intended to reflect the loan proceeds available to the consumer), and the total of payments (which is the dollar amount of the transaction over the loan term, including principal and finance charges).76 The report recommended, among other things, eliminating the 74 Id., section 2102(b). of Governors of the Fed. Reserve Sys. And U.S. Dep’t of Hous. and Urban Dev., Joint Report to the Congress Concerning Reform to the Truth in Lending Act and the Real Estate Settlement Procedures Act (1998), available at https:// www.federalreserve.gov/boarddocs/rptcongress/ tila.pdf. 76 See, e.g., Regulation Z, 12 CFR part 1026 app. H–2 Loan Model Form. 75 Bd. VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 amount financed from the disclosure for mortgage loans because it probably was not useful to consumers in understanding mortgage loans. The report also recommended adding disclosure of the total closing costs in the Fed Box, citing focus groups conducted by the Board in which participants stated that disclosure of the amount needed to close the loan would be useful. The Board-HUD Joint Report did not result in legislative action. Eleven years later, and four months before the revised RESPA disclosures under HUD’s 2008 RESPA Final Rule were to become mandatory, the Board published the 2009 Closed-End Proposal, which proposed significant revisions to the TILA disclosures and stated that the Board would work with HUD towards integrating the two disclosure regimes. The proposal stated that ‘‘the Board anticipates working with [HUD] to ensure that TILA and [RESPA] disclosures are compatible and complementary, including potentially developing a single disclosure form that creditors could use to combine the initial disclosures required under TILA and RESPA.’’ 77 The proposal stated that consumer testing would be used to ensure consumers could understand and use the combined disclosures. However, only ten months later in July 2010, the Dodd-Frank Act was enacted by Congress, which transferred rulemaking authority under both TILA and RESPA to the Bureau and mandated that the Bureau establish a single disclosure scheme under TILA and RESPA. Now, nearly 16 years after Congress first directed the Board and HUD to integrate the disclosures under TILA and RESPA, the Bureau publishes this proposed rule. E. The Dodd-Frank Act As noted above, RESPA and TILA historically have been implemented by regulations of HUD and the Board, respectively, and the Dodd-Frank Act consolidated this rulemaking authority in the Bureau. In addition, the DoddFrank Act amended both statutes to mandate that the Bureau establish a single disclosure scheme for use by lenders or creditors in complying comprehensively with the disclosure requirements discussed above. Section 1098(2) of the Dodd-Frank Act amended RESPA section 4(a) to require that the Bureau ‘‘publish a single, integrated disclosure for mortgage loan transactions (including real estate settlement cost statements) which includes the disclosure requirements of this section and section 5, in 77 74 PO 00000 FR 43232, 43233. Frm 00010 Fmt 4701 Sfmt 4702 conjunction with the disclosure requirements of [TILA] that, taken together, may apply to a transaction that is subject to both or either provisions of law.’’ 12 U.S.C. 2603(a). Similarly, section 1100A(5) of the Dodd-Frank Act amended TILA section 105(b) to require that the Bureau ‘‘publish a single, integrated disclosure for mortgage loan transactions (including real estate settlement cost statements) which includes the disclosure requirements of this title in conjunction with the disclosure requirements of [RESPA] that, taken together, may apply to a transaction that is subject to both or either provisions of law.’’ 15 U.S.C. 1604(b). The amendments to RESPA and TILA mandating a ‘‘single, integrated disclosure’’ are among numerous conforming amendments to existing Federal laws found in subtitle H of the Consumer Financial Protection Act of 2010.78 Subtitle C of the Consumer Financial Protection Act, ‘‘Specific Bureau Authorities,’’ codified at 12 U.S.C. chapter 53, subchapter V, part C, contains a similar provision. Specifically, section 1032(f) of the Dodd-Frank Act provides that, by July 21, 2012, the Bureau ‘‘shall propose for public comment rules and model disclosures that combine the disclosures required under [TILA] and [sections 4 and 5 of RESPA] into a single, integrated disclosure for mortgage loan transactions covered by those laws, unless the Bureau determines that any proposal issued by the [Board] and [HUD] carries out the same purpose.’’ 12 U.S.C. 5532(f). The Bureau is publishing this proposed rule pursuant to that mandate and the parallel mandates established by the conforming amendments to RESPA and TILA, discussed above. F. Other Rulemakings In addition to this proposal, the Bureau currently is engaged in six other rulemakings relating to mortgage credit 78 The Consumer Financial Protection Act is title X, ‘‘Bureau of Consumer Financial Protection,’’ of the Dodd-Frank Act, Public Law 111–203, 124 Stat. 1376 (2010), sections 1001–1100H. In the Consumer Financial Protection Act, Congress established the Bureau and its powers and authorities, transferred to the Bureau various existing functions of other agencies, mandated certain regulatory improvements, and prescribed other requirements and conforming amendments. Subtitle H, ‘‘Conforming Amendments,’’ is the last subtitle and consists of sections 1081–1100H. Certain titles of the Dodd-Frank Act are codified at 12 U.S.C. chapter 53. Subtitles A through G (but not H) of title X are codified at 12 U.S.C. chapter 53, subchapter V, parts A through G. Thus, the Consumer Financial Protection Act is substantially codified at 12 U.S.C. 5481–5603. E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules to implement requirements of the DoddFrank Act: • HOEPA: On the same day that this proposal is released by the Bureau, the Bureau is releasing a proposal to implement Dodd-Frank Act requirements expanding protections for ‘‘high-cost’’ mortgage loans under HOEPA, pursuant to TILA sections 103(bb) and 129, as amended by DoddFrank Act sections 1431 through 1433 (2012 HOEPA Proposal). 15 U.S.C. 1602(bb) and 1639.79 • Servicing: The Bureau is in the process of developing a proposal to implement Dodd-Frank Act requirements regarding force-placed insurance, error resolution, and payment crediting, as well as forms for mortgage loan periodic statements and ‘‘hybrid’’ adjustable-rate mortgage reset disclosures, pursuant to sections 6 of RESPA and 128, 128A, 129F, and 129G of TILA, as amended or established by Dodd-Frank Act sections 1418, 1420, 1463, and 1464. The Bureau has publicly stated that in connection with the servicing rulemaking the Bureau is considering proposing rules on reasonable information management, early intervention for troubled and delinquent borrowers, and continuity of contact, pursuant to the Bureau’s authority to carry out the consumer protection purposes of RESPA in section 6 of RESPA, as amended by Dodd-Frank Act section 1463. 12 U.S.C. 2605; 15 U.S.C. 1638, 1638a, 1639f, and 1639g. • Loan Originator Compensation: The Bureau is in the process of developing a proposal to implement provisions of the Dodd-Frank Act requiring certain creditors and mortgage loan originators to meet duty of care qualifications and prohibiting mortgage loan originators, creditors, and the affiliates of both from receiving compensation in various forms (including based on the terms of the transaction) and from sources other than the consumer, with specified exceptions, pursuant to TILA section 129B as established by Dodd-Frank Act sections 1402 and 1403. 15 U.S.C. 1639b. • Appraisals: The Bureau, jointly with Federal prudential regulators and other Federal agencies, is in the process of developing a proposal to implement Dodd-Frank Act requirements concerning appraisals for higher-risk mortgages, appraisal management companies, and automated valuation models, pursuant to TILA section 129H as established by Dodd-Frank Act section 1471, 15 U.S.C. 1639h, and sections 1124 and 1125 of the Financial 79 Available at https://www.consumerfinance.gov/ notice-and-comment/. VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA) as established by Dodd-Frank Act sections 1473(f), 12 U.S.C. 3353, and 1473(q), 12 U.S.C. 3354, respectively. In addition, the Bureau is developing rules to implement section 701(e) of the Equal Credit Opportunity Act (ECOA), as amended by Dodd-Frank Act section 1474, to require that creditors provide applicants with a free copy of written appraisals and valuations developed in connection with applications for loans secured by a first lien on a dwelling (collectively, Appraisals Rulemaking). 15 U.S.C. 1691(e). • Ability to Repay: The Bureau is in the process of finalizing a proposal issued by the Board to implement provisions of the Dodd-Frank Act requiring creditors to determine that a consumer can repay a mortgage loan and establishing standards for compliance, such as by making a ‘‘qualified mortgage,’’ pursuant to TILA section 129C as established by DoddFrank Act sections 1411 and 1412 (Ability to Repay Rulemaking). 15 U.S.C. 1639c. • Escrows: The Bureau is in the process of finalizing a proposal issued by the Board to implement provisions of the Dodd-Frank Act requiring certain escrow account disclosures and exempting from the higher-priced mortgage loan escrow requirement loans made by certain small creditors, among other provisions, pursuant to TILA section 129D as established by DoddFrank Act sections 1461 and 1462 (Escrows Rulemaking). 15 U.S.C. 1639d. With the exception of the requirements being implemented in this rulemaking, the Dodd-Frank Act requirements referenced above generally will take effect on January 21, 2013 unless final rules implementing those requirements are issued on or before that date and provide for a different effective date. To provide an orderly, coordinated, and efficient comment process, the Bureau is generally setting the deadlines for comments on this and other proposed mortgage rules based on the date the proposal is issued, instead of the date this notice is published in the Federal Register. Specifically, as discussed below, it may be appropriate to finalize proposed §§ 1026.1(c) and 1026.4 in conjunction with the final rules adopted on or before January 21, 2013. Therefore, the Bureau is providing 60 days for comment on those proposals (until September 7, 2012), which will ensure that the Bureau receives comments with sufficient time remaining to issue final rules by that date. For the other portions of this proposed rule (including the Paperwork PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 51125 Reduction Analysis in part IX below), the Bureau is providing 120 days (until November 6, 2012). Because the precise date this notice will be published cannot be predicted in advance, setting the deadlines based on the date of issuance will allow interested parties that intend to comment on multiple proposals to plan accordingly. The Bureau regards the foregoing rulemakings as components of a larger undertaking; many of them intersect with one or more of the others. Accordingly, the Bureau is coordinating carefully the development of the proposals and final rules identified above. Each rulemaking will adopt new regulatory provisions to implement the various Dodd-Frank Act mandates described above. In addition, each of them may include other provisions the Bureau considers necessary or appropriate to ensure that the overall undertaking is accomplished efficiently and that it ultimately yields a regulatory scheme for mortgage credit that achieves the statutory purposes set forth by Congress, while avoiding unnecessary burdens on industry. Thus, many of the rulemakings listed above involve issues that extend across two or more rulemakings. In this context, each rulemaking may raise concerns that might appear unaddressed if that rulemaking were viewed in isolation. For efficiency’s sake, however, the Bureau is publishing and soliciting comment on proposed answers to certain issues raised by two or more of its mortgage rulemakings in whichever rulemaking is most appropriate, in the Bureau’s judgment, for addressing each specific issue. Accordingly, the Bureau urges the public to review this and the other mortgage proposals identified above, including those previously published by the Board, together. Such a review will ensure a more complete understanding of the Bureau’s overall approach and will foster more comprehensive and informed public comment on the Bureau’s several proposals, including provisions that may have some relation to more than one rulemaking but are being proposed for comment in only one of them. For example, as discussed in detail in the section-by-section analysis under proposed § 1026.4 below, this proposal includes a simpler, more inclusive definition of the finance charge, similar to what the Board proposed in its 2009 Closed-End Proposal. See 74 FR 43232, 43241–45 (Aug. 26, 2009). The Board recognized at that time that the more inclusive finance charge would cause more loans to be considered higherpriced mortgage loans under § 1026.35 and would expand the coverage of E:\FR\FM\23AUP2.SGM 23AUP2 51126 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 HOEPA and similar State laws. Id. at 43244–45. For these reasons, in its 2010 Mortgage Proposal, the Board proposed to retain the existing treatment of thirdparty charges in the points and fees definition, notwithstanding the proposed expansion of the finance charge for disclosure purposes. 75 FR 58539, 58637–38 (Sept. 24, 2010). Similarly, the Board’s 2010 Mortgage Proposal introduced a new metric for determining coverage of the higherpriced mortgage loan protections to be used in place of a transaction’s APR, known as the ‘‘transaction coverage rate’’ (TCR), which does not reflect the additional charges that are reflected in the disclosed APR under the more inclusive finance charge definition. Id. at 58660–62. The Bureau recognizes, as did the Board, that the proposed more inclusive finance charge could affect the coverage of the higher-priced mortgage loan and HOEPA protections. The Bureau also is aware that, consequently, a more inclusive finance charge has implications for the HOEPA, Appraisals, Ability to Repay, and Escrows rulemakings identified above. Those impacts are analyzed below, but the Bureau believes that it is also helpful to analyze potential mitigation measures on a rule-by-rule basis. Accordingly, the Bureau expects to seek comment in the HOEPA and Appraisals rulemakings on whether and how to account for the implications of the more inclusive finance charge on those specific regulatory regimes, for instance by adopting the TCR as previously proposed by the Board.80 III. Outreach and Consumer Testing As noted above, the Dodd-Frank Act established two goals for this rulemaking: ‘‘to facilitate compliance with the disclosure requirements of [TILA and RESPA]’’ and ‘‘to aid the borrower or lessee in understanding the transaction by utilizing readily understandable language to simplify the technical nature of the disclosures.’’ Dodd-Frank Act sections 1098, 1100A. Further, the Bureau has a specific mandate and authority from Congress to promote consumer comprehension of financial transactions through clear disclosures. Section 1021(a) of the Dodd-Frank Act directs the Bureau to ‘‘implement * * * Federal consumer financial law consistently for the purpose of ensuring,’’ inter alia, that ‘‘markets for consumer financial products and services are fair, 80 The Board already sought comment on this issue in its proposals to implement the ability to repay and escrow requirements. VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 transparent, and competitive.’’ 12 U.S.C. 5511(a). Section 1021(b) of the DoddFrank Act, in turn, authorizes the Bureau as part of its core mission to exercise its authorities to ensure that, with respect to consumer financial products and services, ‘‘consumers are provided with timely and understandable information to make responsible decisions about financial transactions.’’ 12 U.S.C. 5511(b). Consistent with these goals and in preparation for proposing integrated rules and forms, the Bureau conducted a multifaceted information gathering campaign, including researching how consumers interact with and understand information, testing of prototype forms, developing interactive online tools to gather public feedback, and hosting roundtable discussions, teleconferences, and meetings with consumer advocacy groups, industry stakeholders, and other government agencies. A. Early Stakeholder Outreach & Prototype Form Design In September 2010, the Bureau began meeting with consumer advocates, other banking agencies, community banks, credit unions, settlement agents, and other industry representatives. This outreach helped the Bureau better understand the issues that consumers and industry face when they use the current TILA and RESPA disclosures. At the same time, the Bureau began to research how consumers interact with and understand information. Given the complexities and variability of mortgage loan transactions and their underlying real estate transactions, the Bureau understood that the integrated disclosures would have to convey a large amount of complex and technical information to consumers in a manner that they could use and understand. Considering that, in January 2011, the Bureau contracted with a communication, design, consumer testing, and research firm, Kleimann Communication Group, Inc. (Kleimann), which specializes in consumer financial disclosures. Kleimann has been hired by other Federal agencies to perform such design and qualitative testing work in connection with other financial disclosure forms. For example, the Federal Trade Commission and the Federal banking agencies contracted with Kleimann to design and conduct consumer testing for revised model privacy disclosures.81 Also, HUD contracted with Kleimann to assist in the design and consumer testing for its 81 72 FR 14940, 14944 (Mar. 29, 2007); 74 FR 62890, 62893 (Dec. 1, 2009). PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 revised good faith estimate and settlement statement forms.82 The Bureau and Kleimann reviewed relevant research and the work of other Federal financial services regulatory agencies to inform the Bureau’s design of the prototype integrated disclosures. One of the findings of this research was that there is a significant risk to consumers of experiencing ‘‘information overload’’ when the volume or complexity of information detracts from the consumer decision-making processes. ‘‘Information overload’’ has often been cited as a problem with financial disclosures.83 Researchers suggest that there should be a balance between the types and amount of information in the disclosures, because too much information has the potential to detract from consumers’ decisionmaking processes.84 In its 2009 ClosedEnd Proposal, the Board cited a reduction in ‘‘information overload’’ as one of the potential benefits of its plan to harmonize the TILA and RESPA disclosures in collaboration with HUD.85 The Board’s consumer testing in connection with its 2009 Closed-End Proposal found that when participants were asked what was most difficult about their mortgage experience, the most frequent answer was the amount of paperwork.86 HUD also stated that one of its guiding principles for HUD’s 2008 RESPA Proposal was that ‘‘the [mortgage loan settlement process] can be improved with simplification of disclosures and better borrower information,’’ the complexity of which 82 73 FR 14030, 14043; 73 FR 68204, 68265. e.g., Debra Pogrund Stark and Jessica M. Choplin, A Cognitive and Social Psychological Analysis of Disclosure Laws and Call for Mortgage Counseling to Prevent Predatory Lending, 16 Psych. Pub. Pol. and L. 85, 96 (2010); Paula J. Dalley, The Use and Misuse of Disclosure as a Regulatory System, 34 Fla. St. U.L. Rev. 1089, 1115 (2007); Patricia A. McCoy, The Middle-Class Crunch: Rethinking Disclosure in a World of Risk-Based Pricing, 44 Harv. J. on Legis. 123, 133 (2007); Lauren E. Willis, Decisionmaking and The Limits of Disclosure: The Problem of Predatory Lending: Price, 65 Md. L. Rev. 707, 766 (2006); Troy A. Paredes, After the Sarbanes-Oxley Act: The Future Disclosure System: Blinded by the Light: Information Overload and its Consequences for Securities Regulation, 81 Wash. U. L. Q. 417 (2003); William N. Eskridge, Jr., One Hundred Years of Ineptitude: The Need for Mortgage Rules Consonant with the Economic and Psychological Dynamics of the Home Sale and Loan Transaction, 70 Va. L. Rev. 1083, 1133 (1984). 84 John Kozup & Jeanne M. Hogarth, Financial Literacy, Public Policy, and Consumers’ SelfProtection—More Questions, Fewer Answers, 42 Journal of Consumer Affairs 2, 127 (2008). 85 74 FR 43232, 43234. 86 See Macro 2009 Closed-End Report at 19. For additional discussion regarding information overload, see the section-by-section analysis to proposed § 1026.37(l). 83 See E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules caused many problems with the process.87 The potential for ‘‘information overload’’ was also cited by Congress as one of the reasons it amended the TILA disclosures in the Truth-in-Lending Simplification and Reform Act of 1980.88 According to the Senate Committee on Banking, Housing and Urban Affairs, this legislation arose in part because: mstockstill on DSK4VPTVN1PROD with PROPOSALS2 During its hearings the Consumer Affairs Subcommittee heard testimony from a leading psychologist who has studied the problem of ‘informational overload.’ The Subcommittee learned that judging from consumer tests in other areas, the typical disclosure statement utilized today by creditors is not an effective communication device. Most disclosure statements are lengthy, written in legalistic fine print, and have essential Truth in Lending disclosures scattered among various contractual terms. The result is a piece of paper which appears to be ‘just another legal document’ instead of the simple, concise disclosure form Congress intended.89 Based on this research, the Bureau is particularly mindful of the risk of information overload, especially considering the large volume of other information and paperwork consumers are required to process throughout the mortgage loan and real estate transaction. The Bureau began development of the integrated disclosures with certain design objectives. Considering that the quantity of information both on the disclosures and in other paperwork throughout the mortgage loan and real estate transaction may increase the risk of information overload, the Bureau began development of the integrated disclosures with the objective of creating a graphic design that used as few words as possible when presenting the key loan and cost information. The Bureau’s purpose for such a design was to make the information readily visible so that consumers could quickly and easily find the information they were looking for, without being confronted with large amounts of text. Accordingly, the Bureau decided to limit the content of the disclosures to loan terms, cost information, and certain textual disclosures and to exclude educational material. The Bureau understood that consumers would receive educational materials under applicable law, such as the Special Information Booklet required by section 5 of RESPA, or through other means. In addition, the 87 73 FR 14030, 14031. Law 96–221, 94 Stat 132 (1980). 89 Public Law 96–221, Depository Institutions Deregulation and Monetary Control Act of 1980, Senate Report No. 96073 (Apr. 24, 1979). 88 Public VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 Bureau understood that it would provide additional educational information and tools on its Web site and place a Web site link on the integrated disclosures directing consumers to that site, which would obviate the need to place educational material directly on the disclosures. The Bureau also believed the design should highlight on the first page the most important loan information that consumers readily understand and use to evaluate and compare loans, placing more detailed and technical information later in the disclosure. In addition, the Bureau believed the design should use plain language and limit the use of technical, statutory, or complex financial terms wherever possible. The Bureau believes these design objectives best satisfy the purposes of the integrated disclosures set forth by Dodd-Frank Act sections 1098 and 1100A, as well as the Bureau’s mandate under Dodd-Frank Act section 1021(b) to ensure that consumers are provided with ‘‘understandable information’’ to enable them to make responsible decisions about financial transactions. From January through May 2011, the Bureau and Kleimann developed a plan to design integrated disclosure prototypes and conduct qualitative usability testing, consisting of one-onone cognitive interviews. The Bureau and Kleimann worked collaboratively on developing the qualitative testing plan and several prototype forms for the Loan Estimate (i.e., the disclosure to be provided in connection with a consumer’s application integrating the RESPA GFE and the early TILA disclosure). Although qualitative testing is commonly used by Federal agencies to evaluate the effectiveness of disclosures prior to issuing a proposal, the qualitative testing plan developed by the Bureau and Kleimann was unique in that the Bureau conducted qualitative testing with industry participants as well as consumers. Each round of qualitative testing included at least two industry participants, including lenders from several different types of depository institutions (including credit unions and community banks) and non-depository institutions, mortgage brokers, and settlement agents. B. Prototype Testing and the Know Before You Owe (KBYO) Project In May 2011, the Bureau selected two initial prototype designs of the Loan Estimate, which were used in qualitative testing interviews in Baltimore, Maryland. In these interviews, consumers were asked to work through the prototype forms while PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 51127 conveying their impressions, and also asked a series of questions designed to assess whether the forms presented information in a format that enabled them to understand and compare the mortgage loans presented to them. These questions ranged from the highly specific (e.g., asking whether the consumer could identify the loan payment in year 10 of a 30-year, adjustable-rate loan) to the highly general (e.g., asking consumers to choose the loan that best met their needs).90 Industry participants were asked to use the prototype forms to explain mortgage loans as they would to a consumer and to identify implementation issues and areas for improvement. At the same time, to supplement its qualitative testing, the Bureau launched an initiative, which it titled ‘‘Know Before You Owe,’’ to obtain public feedback on the prototype disclosure forms.91 The Bureau believed this would provide an opportunity to obtain a large amount of feedback from a broad base of consumers and industry respondents around the country. This initiative consisted of either publishing and obtaining feedback on the prototype designs through an interactive tool on the Bureau’s Web site or posting the prototypes to the Bureau’s blog on its Web site and providing an opportunity for the public to email feedback directly to the Bureau. Individual consumers, loan officers, mortgage brokers, settlement agents, and others provided feedback based on their own experiences with the mortgage loan process by commenting on specific sections of the form, prioritizing information presented on the form, and identifying additional information that should be included.92 From May to October 2011, Kleimann and the Bureau conducted a series of five rounds of qualitative testing of different iterations of the Loan Estimate with consumer and industry participants. In addition to Baltimore, Maryland, this testing was conducted in Los Angeles, California; Chicago, 90 The consumers who participated in these interviews had varying levels of education (from consumers with less than a high school education to consumers with graduate degrees) and varying levels of experience with the home buying and mortgage loan process (from consumers who never owned a home to consumers who had been through the home buying and mortgage loan process before). 91 See https://www.consumerfinance.gov/ knowbeforeyouowe/. 92 Examples of consumer and industry responses to the prototypes of the disclosures can be seen in the CFPB blog, including at: www.consumerfinance.gov/know-before-you-owego; www.consumerfinance.gov/13000-lessonslearned; and www.consumerfinance.gov/knowbefore-you-owe-its-closing-time. E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51128 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules Illinois; Springfield, Massachusetts; and Albuquerque, New Mexico. Each round focused on a different aspect of the integrated disclosure, such as the overall design, the disclosure of closing costs, and the disclosure of loan payments over the term of the loan. The overall goal of this qualitative testing was to ensure that the forms enabled consumers to understand and compare the terms and costs of the loan. After each round of testing, Kleimann analyzed and reported to the Bureau on the results of the testing. Based on these results and supplemental feedback received through the KBYO process, the Bureau revised the prototype disclosure forms for the next round of testing. This iterative process helped the Bureau develop forms that enable consumers to understand and compare mortgage loans and that assist industry in complying with the law. For a detailed discussion of this testing, see the report prepared by Kleimann, Know Before You Owe: Evolution of the Integrated TILA–RESPA Disclosures (Kleimann Testing Report), which the Bureau is publishing on its Web site in conjunction with this proposed rule.93 After completion of the qualitative testing that focused solely on the Loan Estimate, the Bureau and Kleimann began work on the prototype designs for the Closing Disclosure (i.e., the disclosure provided in connection with the closing of the mortgage loan that integrates the RESPA settlement statement and the final TILA disclosure). From November 2011 through March 2012, the Bureau and Kleimann conducted five rounds of qualitative testing of different iterations of the Closing Disclosure with consumer and industry participants. This testing was conducted in five different cities across the country: Des Moines, Iowa; Birmingham, Alabama; Philadelphia, Pennsylvania; Austin, Texas; and Baltimore, Maryland. Similar to the qualitative testing of the Loan Estimate, the Bureau revised the prototype Closing Disclosure forms after each round based on the results Kleimann provided to the Bureau and the feedback received from the KBYO process. The Bureau focused on several aspects of the prototypes during each round, such as the settlement disclosures adapted from the HUD–1, new disclosure items required under title XIV of the Dodd-Frank Act, and tables to help identify changes in the information disclosed in the initial Loan 93 Kleimann Communication Group, Inc., Know Before You Owe: Evolution of the Integrated TILA– RESPA Disclosures (July 2012), available at https:// files.consumerfinance.gov/f/ 201207_cfpb_report_tila-respa-testing.pdf. VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 Estimate. The overall goal of the qualitative testing of the Closing Disclosure was to ensure that the forms enabled consumers to understand their actual terms and costs, and to compare the Closing Disclosure with the Loan Estimate to identify changes. Accordingly, several rounds included testing of different iterations of the Loan Estimate with the Closing Disclosure. Overall, the Bureau performed qualitative testing with 92 consumer participants and 22 industry participants, for a total of 114 participants. In addition, through the Bureau’s KBYO initiative, the Bureau received over 150,000 visits to the KBYO Web site and over 27,000 public comments and emails about the prototype disclosures. C. Ongoing Stakeholder Outreach Throughout the qualitative testing of the prototype disclosure forms, the Bureau continued to conduct extensive outreach to consumer advocacy groups, other regulatory agencies, and industry representatives and trade associations. The Bureau held meetings with individual stakeholders upon request, and also invited stakeholders to meetings in which individual views of each stakeholder could be heard. The Bureau conducted these meetings with a wide range of stakeholders that may be affected by the integrated disclosures, even if not directly regulated by the proposed rule. The meetings included community banks, credit unions, thrifts, mortgage companies, mortgage brokers, settlement agents, settlement service providers, software providers, appraisers, not-for-profit consumer and housing groups, and government and quasi-governmental agencies. Many of the persons attending these meetings represented small business entities from different parts of the country. In addition to these meetings, after each round of qualitative testing, the Bureau received numerous letters from individuals, consumer advocates, financial services providers, and trade associations, which provided the Bureau with additional feedback on the prototype disclosure forms. In preparing this proposal, the Bureau also considered comments provided in response to its December 2011 proposal regarding streamlining of regulations for which rulemaking authority was inherited by the CFPB from other Federal agencies, including TILA and RESPA. 76 FR 75825 (Dec. 5, 2011) (2011 Streamlining Proposal). That proposal specifically sought public comment on provisions of the inherited regulations that the Bureau should make the highest priority for updating, PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 modifying, or eliminating because they are outdated, unduly burdensome, or unnecessary, and sought suggestions for practical measures to make compliance with the regulations easier. Several commenters requested that the Bureau reconcile inconsistencies in the terminology and requirements of Regulations X and Z. Wherever possible, the Bureau has proposed to do so in this rulemaking. In addition, other relevant comments received in response to the 2011 Streamlining Proposal are addressed below. D. Small Business Review Panel In February 2012, the Bureau convened a Small Business Review Panel with the Chief Counsel for Advocacy of the Small Business Administration (SBA) and the Administrator of the Office of Information and Regulatory Affairs within the Office of Management and Budget (OMB).94 As part of this process, the Bureau prepared an outline of the proposals then under consideration and the alternatives considered (Small Business Review Panel Outline), which it posted on its Web site for review by the general public as well as the small entities participating in the panel process.95 The Small Business Review Panel gathered information from representatives of small lenders, mortgage brokers, settlement agents, and not-for-profit organizations and made findings and recommendations regarding the potential compliance costs and other impacts of the proposed rule on those entities. These findings and recommendations are set forth in the Small Business Review Panel Report, which will be made part of the administrative record in this rulemaking.96 The Bureau has carefully considered these findings and recommendations in preparing this proposal and has addressed certain specific examples below. In addition, the Bureau held roundtable meetings with other Federal banking and housing regulators, consumer advocacy groups, and 94 The Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) requires the Bureau to convene a Small Business Review Panel before proposing a rule that may have a substantial economic impact on a significant number of small entities. See Public Law 104–121, tit. II, 110 Stat. 847, 857 (1996) (as amended by Pub. L. 110–28, sec. 8302 (2007)). 95 Available at https://www.consumerfinance.gov/ blog/sbrefa-small-providers-and-mortgagedisclosure/. 96 Final Report of the Small Business Review Panel on CFPB’s Proposals Under Consideration for Integration of TILA and RESPA Mortgage Disclosure Requirements (Apr. 23, 2012), available at https:// files.consumerfinance.gov/f/201207_cfpb_report _tila-respa-sbrefa-feedback.pdf. E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules industry representatives regarding the Small Business Review Panel Outline. At the Bureau’s request, many of the participants provided feedback, which the Bureau has used in preparing this proposal. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 E. Next Steps The public may submit comments on the proposed rule for 120 days after issuance (with the exception of the proposed amendments to §§ 1026.1(c) and 1026.4 that have a shorter 60-day comment period as discussed below). These comments will be available to the public, as will summaries of written or oral presentations in accordance with the Bureau’s ex parte policy.97 During the comment period and after it closes, the Bureau will carefully review and analyze the comments. Once the Bureau has completed its review and analysis of the comments, it will consult with other Federal agencies and determine whether changes should be made to the proposed forms or rules. If changes are contemplated to the forms, the Bureau may conduct additional qualitative testing to evaluate the effectiveness of those changes. Whether or not changes are made, the Bureau may conduct large-scale quantitative testing of the forms to confirm that the forms aid consumers’ understanding of mortgage transactions, if appropriate. On March 28, 2012, the Bureau published a notice for comment under the Paperwork Reduction Act in connection with this quantitative testing, specifically inviting comment on whether the information collected will have practical utility, the accuracy of the Bureau’s burden hour estimates, and ways to enhance the quality of the information collected and minimize the burden on respondents.98 The Bureau received no comments to this notice. During the Small Business Review Panel, several small business representatives requested that the Bureau explore the feasibility of conducting testing of the disclosure forms on actual loans before issuing a final rule. See Small Business Review Panel Report at 28. Based on this feedback and consistent with the Small Business Review Panel’s recommendation, the Bureau is considering testing the forms on actual loans after reviewing comments received in connection with this proposal, and making any appropriate revisions to the proposed forms. 97 CFPB Bulletin 11–3 (August 16, 2011), available at https://files.consumerfinance.gov/f/ 2011/08/Bulletin_20110819_ExParte PresentationsRulemakingProceedings.pdf. 98 77 FR 18793 (Mar. 28, 2012). VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 After the Bureau has completed the appropriate steps, it will prepare and issue a final rule. However, as discussed below in part V.A, the Bureau understands from the Small Business Review Panel process and from other outreach that lenders, settlement agents, and others will need a period of time to update their systems and processes to comply with the final rule and to train their employees. Accordingly, the Bureau is asking for comment on a time period that strikes the appropriate balance between providing consumers with improved disclosures as soon as possible and providing industry with the necessary time to come into compliance. In addition, during the Small Business Review Panel, several small business representatives requested that the Bureau provide detailed guidance on how to complete the integrated forms, including, as appropriate, samples of completed forms for a variety of loan transactions. See Small Business Review Panel Report at 28. Similar feedback was also submitted by several industry trade associations in response to the Small Business Review Panel Outline. The Bureau also understands from its other outreach efforts that industry has experienced difficulties in complying with HUD’s 2008 RESPA Final Rule, in part because of a lack of detailed guidance in HUD’s 2008 RESPA Final Rule, and the many informal interpretations of the rule issued by HUD in the HUD RESPA FAQs and HUD RESPA Roundups. Based on this feedback and consistent with the Small Business Review Panel’s recommendation, the proposed rule contains detailed provisions regarding the completion of the integrated disclosures, multiple examples of completed disclosures forms in appendix H to Regulation Z, and additional guidance and clarification in the Bureau’s official commentary to Regulation Z. Such detailed guidance has, of course, added significant length to the proposed rule. The Bureau solicits comment on whether the level of detail in the proposed regulations and guidance (including the number of examples illustrating what is and is not permitted) will make compliance more, rather than less, burdensome and whether the Bureau should adopt a less prescriptive approach in the final rule. IV. Legal Authority The Bureau is issuing this proposed rule pursuant to its authority under TILA, RESPA, and the Dodd-Frank Act. On July 21, 2011, section 1061 of the Dodd-Frank Act transferred to the Bureau all of the HUD Secretary’s PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 51129 consumer protection functions relating to RESPA.99 Accordingly, effective July 21, 2011, the authority of HUD to issue regulations pursuant to RESPA transferred to the Bureau. Section 1061 of the Dodd-Frank Act also transferred to the Bureau the ‘‘consumer financial protection functions’’ previously vested in certain other Federal agencies, including the Board. The term ‘‘consumer financial protection function’’ is defined to include ‘‘all authority to prescribe rules or issue orders or guidelines pursuant to any Federal consumer financial law, including performing appropriate functions to promulgate and review such rules, orders, and guidelines.’’ 100 TILA, RESPA, and title X of the DoddFrank Act are Federal consumer financial laws.101 Accordingly, the Bureau has authority to issue regulations pursuant to TILA and RESPA, including the disclosure requirements added to those statutes by title XIV of the Dodd-Frank Act, as well as title X of the Dodd-Frank Act. A. The Integrated Disclosure Mandate Section 1032(f) of the Dodd-Frank Act requires that, ‘‘[n]ot later than one year after the designated transfer date [of July 21, 2011], the Bureau shall propose for public comment rules and model disclosures that combine the disclosures required under [TILA] and sections 4 and 5 of [RESPA], into a single, integrated disclosure for mortgage loan transactions covered by those laws, unless the Bureau determines that any proposal issued by the [Board] and [HUD] carries out the same purpose.’’ 12 U.S.C. 5532(f). In addition, the DoddFrank Act amended section 105(b) of TILA and section 4(a) of RESPA to require the integration of the TILA disclosures and the disclosures required by sections 4 and 5 of RESPA.102 The 99 Public Law 111–203, 124 Stat. 1376, section 1061(b)(7); 12 U.S.C. 5581(b)(7). 100 12 U.S.C. 5581(a)(1). 101 Dodd-Frank Act section 1002(14), 12 U.S.C. 5481(14) (defining ‘‘Federal consumer financial law’’ to include the ‘‘enumerated consumer laws’’ and the provisions of title X of the Dodd-Frank Act); Dodd-Frank Act section 1002(12), 12 U.S.C. 5481(12) (defining ‘‘enumerated consumer laws’’ to include TILA and RESPA). 102 Section 1100A of the Dodd-Frank Act amended TILA section 105(b) to provide that the ‘‘Bureau shall publish a single, integrated disclosure for mortgage loan transactions (including real estate settlement cost statements) which includes the disclosure requirements of this title in conjunction with the disclosure requirements of the Real Estate Settlement Procedures Act of 1974 that, taken together, may apply to a transaction that is subject to both or either provisions of law.’’ 15 U.S.C. 1604(b). Section 1098 of the Dodd-Frank amended RESPA section 4(a) to require the Bureau to publish a ‘‘single, integrated disclosure for E:\FR\FM\23AUP2.SGM Continued 23AUP2 51130 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 purpose of the integrated disclosure is to facilitate compliance with the disclosure requirements of TILA and RESPA, and to help the borrower understand the transaction by utilizing readily understandable language to simplify the technical nature of the disclosures. Dodd-Frank Act sections 1098, 1100A. Although Congress imposed this integrated disclosure requirement, it did not fully harmonize the underlying statutes. In particular, TILA and RESPA establish different timing requirements for disclosing mortgage credit terms and costs to consumers and require that those disclosures be provided by different parties. TILA generally requires that, within three business days of receiving the consumer’s application and at least seven business days before consummation of certain mortgage transactions, creditors must provide consumers a good faith estimate of the costs of credit.103 TILA section 128(b)(2)(A); 15 U.S.C. 1638(b)(2)(A). If the annual percentage rate that was initially disclosed becomes inaccurate, TILA requires creditors to redisclose the information at least three business days before consummation. TILA section 128(b)(2)(D); 15 U.S.C. 1638(b)(2)(D). These disclosures must be provided in final form at consummation. TILA section 128(b)(2)(B)(ii); 15 U.S.C. 1638(b)(2)(B)(ii). RESPA also requires that the creditor or broker provide consumers with a good faith estimate of settlement charges no later than three business days after receiving the consumer’s application. However, unlike TILA, RESPA requires that, at or before settlement, ‘‘the person conducting the settlement’’ (which may or may not be the creditor) provide the consumer with a statement that records all charges imposed upon the consumer in connection with the settlement. RESPA sections 4(b), 5(c); 12 U.S.C. 2603(b), 2604(c). The Dodd-Frank Act did not reconcile these and other statutory differences. Therefore, to meet the Dodd-Frank Act’s express requirement to integrate the disclosures required by TILA and RESPA, the Bureau must do so. DoddFrank Act section 1032(f), TILA section 105(b), and RESPA section 4(a) provide the Bureau with implicit authority to mortgage loan transactions (including real estate settlement cost statements) which includes the disclosure requirements of this section and section 5, in conjunction with the disclosure requirements of the Truth in Lending Act that, taken together, may apply to a transaction that is subject to both or either provisions of law.’’ 12 U.S.C. 2603(a). 103 This requirement applies to extensions of credit that are both secured by a dwelling and subject to RESPA. TILA section 128(b)(2)(A); 15 U.S.C. 1638(b)(2)(A). VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 issue regulations that reconcile certain provisions of TILA and RESPA to carry out Congress’s mandate to integrate the statutory disclosure requirements. For the reasons discussed in this notice, the Bureau is proposing regulations to carry out the requirements of Dodd-Frank Act section 1032(f), TILA section 105(b), and RESPA section 4(a). B. Other Rulemaking and Exception Authorities The proposed rule also relies on the rulemaking and exception authorities specifically granted to the Bureau by TILA, RESPA, and the Dodd-Frank Act, including the authorities discussed below.104 Truth in Lending Act TILA section 105(a). As amended by the Dodd-Frank Act, TILA section 105(a), 15 U.S.C. 1604(a), directs the Bureau to prescribe regulations to carry out the purposes of TILA, and provides that such regulations may contain additional requirements, classifications, differentiations, or other provisions, and may provide for such adjustments and exceptions for all or any class of transactions, that the Bureau judges are necessary or proper to effectuate the purposes of TILA, to prevent circumvention or evasion thereof, or to facilitate compliance. A purpose of TILA is ‘‘to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit.’’ TILA section 102(a); 15 U.S.C. 1601(a). This stated purpose is tied to Congress’ finding that ‘‘economic stabilization would be enhanced and the competition among the various financial institutions and other firms engaged in the extension of consumer credit would be strengthened by the informed use of credit[.]’’ TILA section 102(a). Thus, strengthened competition among financial institutions is a goal of TILA, achieved through the effectuation of TILA’s purposes. Historically, TILA section 105(a) has served as a broad source of authority for rules that promote the informed use of credit through required disclosures and substantive regulation of certain practices. However, Dodd-Frank Act 104 As discussed in part II above, prior to the Dodd-Frank Act, rulemaking authority over TILA was vested in the Board and rulemaking authority over RESPA was vested in HUD. The Dodd-Frank Act transferred rulemaking authority for TILA and RESPA to the Bureau, effective July 21, 2011. See Dodd-Frank Act sections 1061, 1098, and 1100A. The Bureau implements the proposed rule pursuant to its authorities in section 1061 of the Dodd-Frank Act. PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 section 1100A clarified the Bureau’s section 105(a) authority by amending that section to provide express authority to prescribe regulations that contain ‘‘additional requirements’’ that the Bureau finds are necessary or proper to effectuate the purposes of TILA, to prevent circumvention or evasion thereof, or to facilitate compliance. This amendment clarified the authority to exercise TILA section 105(a) to prescribe requirements beyond those specifically listed in the statute that meet the standards outlined in section 105(a). The Dodd-Frank Act also clarified the Bureau’s rulemaking authority over certain high-cost mortgages pursuant to section 105(a). As amended by the Dodd-Frank Act, TILA section 105(a) authority to make adjustments and exceptions to the requirements of TILA applies to all transactions subject to TILA, except with respect to the provisions of TILA section 129 105 that apply to the highcost mortgages referred to in TILA section 103(bb), 15 U.S.C. 1602(bb). For the reasons discussed in this notice, the Bureau is proposing regulations to carry out TILA’s purposes and is proposing such additional requirements, adjustments, and exceptions as, in the Bureau’s judgment, are necessary and proper to carry out the purposes of TILA, prevent circumvention or evasion thereof, or to facilitate compliance. In developing these aspects of the proposal pursuant to its authority under TILA section 105(a), the Bureau has considered the purposes of TILA, including ensuring meaningful disclosures, facilitating consumers’ ability to compare credit terms, and helping consumers avoid the uninformed use of credit, and the findings of TILA, including strengthening competition among financial institutions and promoting economic stabilization. TILA section 105(f). Section 105(f) of TILA, 15 U.S.C. 1604(f), authorizes the Bureau to exempt from all or part of TILA any class of transactions if the Bureau determines that TILA coverage does not provide a meaningful benefit to consumers in the form of useful information or protection. In exercising this authority, the Bureau must consider the factors identified in section 105(f) of TILA and publish its rationale at the time it proposes an exemption for public comment. Specifically, the Bureau must consider: 105 15 U.S.C. 1639. TILA section 129 contains requirements for certain high-cost mortgages, established by the Home Ownership and Equity Protection Act (HOEPA), which are commonly called HOEPA loans. E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 (a) The amount of the loan and whether the disclosures, right of rescission, and other provisions provide a benefit to the consumers who are parties to such transactions, as determined by the Bureau; (b) The extent to which the requirements of this subchapter complicate, hinder, or make more expensive the credit process for the class of transactions; (c) The status of the borrower, including— (1) Any related financial arrangements of the borrower, as determined by the Bureau; (2) The financial sophistication of the borrower relative to the type of transaction; and (3) The importance to the borrower of the credit, related supporting property, and coverage under this subchapter, as determined by the Bureau; (d) Whether the loan is secured by the principal residence of the consumer; and (e) Whether the goal of consumer protection would be undermined by such an exemption. For the reasons discussed in this notice, the Bureau is proposing to exempt certain transactions from the requirements of TILA pursuant to its authority under TILA section 105(f). In developing this proposal under TILA section 105(f), the Bureau has considered the relevant factors and determined that the proposed exemptions may be appropriate. TILA section 129B(e). Dodd-Frank Act section 1405(a) amended TILA to add new section 129B(e), 15 U.S.C. 1639B(e). That section authorizes the Bureau to prohibit or condition terms, acts, or practices relating to residential mortgage loans on a variety of bases, including when the Bureau finds the terms, acts, or practices are not in the interest of the borrower. In developing proposed rules under TILA section 129B(e), the Bureau has considered whether the proposed rules are in the interest of the borrower, as required by the statute. For the reasons discussed in this notice, the Bureau is proposing portions of this rule pursuant to its authority under TILA section 129B(e). Real Estate Settlement Procedures Act Section 19(a) of RESPA, 12 U.S.C. 2617(a), authorizes the Bureau to prescribe such rules and regulations and to make such interpretations and grant such reasonable exemptions for classes of transactions as may be necessary to achieve the purposes of RESPA. One purpose of RESPA is to effect certain changes in the settlement process for residential real estate that will result in VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 more effective advance disclosure to home buyers and sellers of settlement costs. RESPA section 2(b); 12 U.S.C. 2601(b). In addition, in enacting RESPA, Congress found that consumers are entitled to be ‘‘provided with greater and more timely information on the nature and costs of the settlement process and [to be] protected from unnecessarily high settlement charges caused by certain abusive practices * * *’’ RESPA section 2(a); 12 U.S.C. 2601(a). In the past, section 19(a) has served as a broad source of authority to prescribe disclosures and substantive requirements to carry out the purposes of RESPA. In developing proposed rules under RESPA section 19(a) for this proposal, the Bureau has considered the purposes of RESPA, including to cause changes in the settlement process that will result in more effective advance disclosure of settlement costs. For the reasons discussed in this notice, the Bureau is proposing portions of this rule pursuant to its authority under RESPA section 19(a). Dodd-Frank Act Dodd-Frank Act section 1021. Section 1021(a) of the Dodd-Frank Act provides that the Bureau shall seek to implement and, where applicable, enforce Federal consumer financial law consistently for the purpose of ensuring that all consumers have access to markets for consumer financial services and that markets for consumer financial products and services are fair, transparent, and competitive. 12 U.S.C. 5511(a). In addition, section 1021(b) of the DoddFrank Act provides that the Bureau is authorized to exercise its authorities under Federal consumer financial law for the purposes of ensuring that, with respect to consumer financial products and services: (1) Consumers are provided with timely and understandable information to make responsible decisions about financial transactions; (2) consumers are protected from unfair, deceptive, or abusive acts and practices and from discrimination; (3) outdated, unnecessary, or unduly burdensome regulations are regularly identified and addressed in order to reduce unwarranted regulatory burdens; (4) Federal consumer financial law is enforced consistently, without regard to the status of a person as a depository institution, in order to promote fair competition; and (5) markets for consumer financial products and services operate transparently and efficiently to facilitate access and innovation. 12 U.S.C. 5511(b). PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 51131 Accordingly, this proposal is consistent with the purposes of DoddFrank Act section 1021(a) and with the objectives of Dodd-Frank Act section 1021(b), specifically including DoddFrank Act section 1021(b)(1) and (3). Dodd-Frank Act section 1022(b). Section 1022(b)(1) of the Dodd-Frank Act authorizes the Bureau to prescribe rules ‘‘as may be necessary or appropriate to enable the Bureau to administer and carry out the purposes and objectives of the Federal consumer financial laws, and to prevent evasions thereof[.]’’ 12 U.S.C. 5512(b)(1). Section 1022(b)(2) of the Dodd-Frank Act prescribes certain standards for rulemaking that the Bureau must follow in exercising its authority under section 1022(b)(1). 12 U.S.C. 5512(b)(2). As discussed above, TILA and RESPA are Federal consumer financial laws. Accordingly, the Bureau proposes to exercise its authority under Dodd-Frank Act section 1022(b) to prescribe rules under TILA and RESPA that carry out the purposes and prevent evasion of those laws. See part VII for a discussion of the Bureau’s standards for rulemaking under Dodd-Frank Act section 1022(b)(2). Dodd-Frank Act section 1032(a). Section 1032(a) of the Dodd-Frank Act provides that the Bureau ‘‘may prescribe rules to ensure that the features of any consumer financial product or service, both initially and over the term of the product or service, are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the product or service, in light of the facts and circumstances.’’ 12 U.S.C. 5532(a). The authority granted to the Bureau in section 1032(a) is broad, and empowers the Bureau to prescribe rules regarding the disclosure of the ‘‘features’’ of consumer financial products and services generally. Accordingly, the Bureau may prescribe rules containing disclosure requirements even if other Federal consumer financial laws do not specifically require disclosure of such features. Dodd-Frank Act section 1032(c) provides that, in prescribing rules pursuant to section 1032, the Bureau ‘‘shall consider available evidence about consumer awareness, understanding of, and responses to disclosures or communications about the risks, costs, and benefits of consumer financial products or services.’’ 12 U.S.C. 5532(c). Accordingly, in developing proposed rules under Dodd-Frank Act section 1032(a) for this proposal, the Bureau has considered available studies, reports, and other evidence about consumer E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51132 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules awareness, understanding of, and responses to disclosures or communications about the risks, costs, and benefits of consumer financial products or services. See parts II and III, above. Moreover, the Bureau has considered the evidence developed through its consumer testing of the integrated disclosures as well as prior testing done by the Board and HUD regarding TILA and RESPA disclosures. See part III for a discussion of the Bureau’s testing. For the reasons discussed in this notice, the Bureau is proposing portions of this rule pursuant to its authority under Dodd-Frank Act section 1032(a). In addition, Dodd-Frank Act section 1032(b)(1) provides that ‘‘any final rule prescribed by the Bureau under this [section 1032] requiring disclosures may include a model form that may be used at the option of the covered person for provision of the required disclosures.’’ 12 U.S.C. 5532(b)(1). Any model form issued pursuant to that authority shall contain a clear and conspicuous disclosure that, at a minimum, uses plain language that is comprehensible to consumers, using a clear format and design, such as readable type font, and succinctly explains the information that must be communicated to the consumer. Dodd-Frank Act 1032(b)(2); 12 U.S.C. 5532(b)(2). As discussed in the sectionby-section analysis for proposed §§ 1026.37(o) and 1026.38(t), the Bureau is proposing certain model disclosures for transactions subject to TILA, and standard forms for transactions subject to both TILA and RESPA. For the reasons discussed in this notice, the Bureau is proposing these model disclosures pursuant to its authority under Dodd-Frank Act section 1032(b). Dodd-Frank Act section 1405(b). Section 1405(b) of the Dodd-Frank Act provides that, ‘‘[n]otwithstanding any other provision of [title 14 of the DoddFrank Act], in order to improve consumer awareness and understanding of transactions involving residential mortgage loans through the use of disclosures, the Bureau may, by rule, exempt from or modify disclosure requirements, in whole or in part, for any class of residential mortgage loans if the Bureau determines that such exemption or modification is in the interest of consumers and in the public interest.’’ 15 U.S.C. 1601 note. Section 1401 of the Dodd-Frank Act, which amends TILA section 103(cc)(5), 15 U.S.C. 1602(cc)(5), generally defines residential mortgage loan as any consumer credit transaction that is secured by a mortgage on a dwelling or on residential real property that includes a dwelling other than an open- VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 end credit plan or an extension of credit secured by a consumer’s interest in a timeshare plan. Notably, the authority granted by section 1405(b) applies to ‘‘disclosure requirements’’ generally, and is not limited to a specific statute or statutes. Accordingly, Dodd-Frank Act section 1405(b) is a broad source of authority to modify the disclosure requirements of TILA and RESPA. In developing proposed rules for residential mortgage loans under DoddFrank Act section 1405(b) for this proposal, the Bureau has considered the purposes of improving consumer awareness and understanding of transactions involving residential mortgage loans through the use of disclosures, and the interests of consumers and the public. For the reasons discussed in this notice, the Bureau is proposing portions of this rule pursuant to its authority under DoddFrank Act section 1405(b). V. Mandatory Compliance A. Implementation Period As discussed in part II.E above, the Bureau is proposing rules and disclosures that combine the preconsummation disclosure requirements of TILA and sections 4 and 5 of RESPA, not later than July 21, 2012, consistent with the requirements of sections 1032(f), 1098, and 1100A of the DoddFrank Act. 12 U.S.C. 2603(a); 5532(f); 15 U.S.C. 1604(b). The Dodd-Frank Act does not impose a deadline for issuing final rules and disclosures in connection with this mandate to integrate disclosure requirements or provide a specific amount of time for entities subject to those rules to come into compliance. As discussed in part II, above, the Dodd-Frank Act establishes two goals for the TILA–RESPA mortgage disclosure integration: To improve consumer understanding of mortgage loan transactions; and to facilitate industry compliance with TILA and RESPA. Dodd-Frank Act sections 1098 and 1100A. The Bureau must balance these statutory objectives in considering the length of the implementation period. The Bureau believes requiring industry to implement the requirements of the final rule as soon as practicable after its issuance will benefit consumers by expediting the use of the integrated disclosure forms, which will improve consumer understanding of mortgage loan transactions. At the same time, the Bureau recognizes that the creditors, mortgage brokers, settlement agents, and other entities affected by the proposed rule will incur one-time compliance costs, such as software upgrades to PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 generate the integrated disclosure forms, training staff and related parties to use the new disclosure forms, updating compliance systems and processes, and obtaining legal guidance.106 Consequently, the Bureau believes that a reasonable implementation period would help facilitate compliance and potentially reduce the one-time costs that may be incurred by the entities affected by the rule. The Bureau is mindful that small entities 107 may face unique challenges in complying with the rule. During the SBREFA Small Business Review Panel process,108 the Small Business Review Panel received feedback from small entity representatives requesting that the Bureau provide a substantial compliance period after issuance of the final rule. The small entity representatives reported that they anticipated significant one-time software upgrade and training costs, though their estimates varied greatly, and they generally stated that these costs would be less burdensome if the Bureau provided a substantial compliance period to upgrade systems and to train staff. The small entity representatives requested a variety of implementation periods, however.109 As detailed in the Panel Report, the Panel recommended that the Bureau provide a compliance period that permits sufficient time for small entities to make necessary system upgrades and provide training, and that the Bureau solicit public comment on the amount of time needed for such upgrades and training.110 Moreover, industry feedback generally in response to the Bureau’s Small Business Review Panel process stated that an implementation period for the final rule should provide sufficient time for training, systems development, and the operational changes that the rule will necessitate. In feedback provided during the SBREFA process and through other 106 These one-time costs are discussed in the section 1022 analysis in part VII, below, with respect to covered persons as defined for purposes of the Dodd-Frank Act, and the initial regulatory flexibility analysis in part VIII, below, with respect to small entities as defined for purposes of the Regulatory Flexibility Act (RFA). 107 The term ‘‘small entities’’ means those entities defined as small entities for purposes of the RFA, as discussed further in part VIII, below. The terms ‘‘large entities’’ or ‘‘larger entities’’ refer to all entities that are not small entities as defined for purposes of the RFA. 108 See part VIII.A, below, for a discussion of the Bureau’s Small Business Review Panel process. 109 Small Business Review Panel Report, at 19. As noted in chapter 8.1 of the Panel Report, the small entity representatives generally asked for an implementation period ranging from 12 to 18 months. 110 See id. at p. 27. E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules industry outreach, lenders, mortgage brokers, settlement agents, and forms vendors, as well as several trade associations representing lenders, brokers, and settlement agents, requested an implementation period of at least 12 months. Because the TILA– RESPA final rule will provide important benefits to consumers, the Bureau wishes to make the rule effective as soon as possible. However, the Bureau understands that the final rule will require lenders, mortgage brokers, and settlement agents to make extensive revisions to their software and to retrain their staff. In addition, some entities will be required to implement other Dodd-Frank Act provisions, which are subject to separate rulemaking deadlines under the statute and will have separate effective dates. Therefore, the Bureau is seeking comment on how much time industry needs to make these changes, and specifically requests details on the required updates and changes to systems and other measures that would be required to implement the rule and the amount of time needed to make those changes. Furthermore, in light of the feedback provided by small entity representatives during the SBREFA process, as reflected in the Panel Report of the Small Business Review Panel, the Bureau solicits comment on whether small entities affected by the rule should have more time to comply with the final rule than larger entities. In soliciting comment on this issue, however, the Bureau notes its concern that a bifurcated implementation period could be detrimental to consumers. During any period where only larger entities must comply with the final rule, consumers potentially would receive different disclosures and be subject to different sets of consumer protections depending on their choice of creditor, mortgage broker, or settlement agent. In addition, larger entities that are subject to the final rule and that purchase loans from small entities may nevertheless insist that small entities comply with the final rules. See, e.g., Small Business Review Panel Report at 30 (discussing recordkeeping requirements). Accordingly, based on the Small Business Review Panel recommendation, the Bureau solicits comment on whether any separate compliance period for larger entities should take into account the relationship between larger and smaller entities. VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 B. Delayed Effective Dates of Certain Disclosure Requirements Established by Title XIV of the Dodd-Frank Act As discussed above, the Bureau is proposing rules and disclosures that combine the pre-consummation disclosure requirements of TILA and sections 4 and 5 of RESPA, not later than July 21, 2012, consistent with the requirements of section 1032(f) of the Dodd-Frank Act. 12 U.S.C. 5532(f). The Dodd-Frank Act does not impose a deadline for issuing final rules and disclosures. In addition to this integrated disclosure requirement in title X, various provisions of title XIV of the Dodd-Frank Act amend TILA, RESPA, and other consumer financial laws to impose new pre-consummation disclosure requirements for mortgage transactions. These provisions generally require disclosure of certain information when a consumer applies for a mortgage loan or shortly before consummation of the loan, around the same time that consumers will receive the integrated TILA–RESPA disclosures required by section 1032(f) of the Dodd-Frank Act. If regulations that are required to implement the disclosure requirements in title XIV are not prescribed in final form within eighteen months after the designated transfer date (i.e., by January 21, 2013), institutions must comply with the statutory requirements on that date. Dodd-Frank Act section 1400(c)(3); 15 U.S.C. 1601 note. The Bureau believes that implementing a single, consolidated disclosure that satisfies section 1032(f) and certain of the disclosure requirements in title XIV of the DoddFrank Act will benefit consumers and facilitate compliance with TILA and RESPA. That is, the Bureau believes that both consumers and industry will benefit by incorporating many of the disclosure requirements in title XIV into this proposal (collectively, the ‘‘Affected Title XIV Disclosures’’). Consumers will benefit from a consolidated disclosure that conveys loan terms and costs to consumers in a coordinated way. Lenders and settlement agents will benefit by integrating two sets of overlapping disclosures into a single form and by avoiding regulatory burden associated with revising systems and practices multiple times. However, given the broad scope and complexity of this rulemaking and the 120-day comment period provided by this proposal, a final rule will not be issued by January 21, 2013. Absent a final implementing rule, institutions would have to comply with the Affected Title XIV Disclosures on that date due to the PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 51133 statutory requirement that any section of title XIV for which regulations have not been issued by January 21, 2013 shall take effect on that date. This likely would result in widely varying approaches to compliance in the absence of regulatory guidance, creating confusion for consumers, and would impose a significant burden on industry. For example, this could result in a consumer who shops for a mortgage loan receiving different disclosures from different creditors. Such disclosures would not only be unhelpful to consumers, but likely would be confusing since the same disclosures would be provided in widely different ways. Moreover, implementing the title XIV disclosures separately from the integrated TILA–RESPA disclosure would increase compliance costs and burdens on industry. Nothing in the Dodd-Frank Act itself or its legislative history suggests that Congress contemplated how the separate requirements in titles X and XIV would work together.111 Accordingly, and for the further reasons set forth below, the Bureau proposes to implement the Affected Title XIV Disclosures by delaying those requirements by temporarily exempting entities from the requirement to comply on January 21, 2013, until a final rule implementing the integrated TILA– RESPA disclosures take effect, pursuant to the Bureau’s authority under TILA section 105(a), RESPA section 19(a), Dodd-Frank Act section 1032(a) and, for residential mortgage loans, Dodd-Frank Act section 1405(b). 15 U.S.C. 1604(a); 12 U.S.C. 2617(a); 12 U.S.C. 5532(a); 15 U.S.C. 1601 note. Implementing the Affected Title XIV Disclosures as part of the broader integrated TILA–RESPA rulemaking, rather than issuing rules implementing each requirement individually or allowing those statutory provisions to take effect by operation of law, will improve the overall effectiveness of the integrated disclosure for consumers and reduce burden on industry. The Bureau will issue a final 111 Certain of the Affected Title XIV Disclosures highlight that Congress did not intend for the title XIV disclosure requirements and the integrated TILA–RESPA disclosure to operate independently. For example, Dodd-Frank Act section 1419 amended paragraphs (a)(16) through (19) of TILA section 128 to require additional content on the disclosure provided to consumers within three days of application and in final form at or before consummation. 15 U.S.C. 1638(a)(16) through (19). Pursuant to TILA section 128(b)(1), for residential mortgage transactions, all disclosures required by TILA section 128(a) must be ‘‘conspicuously segregated’’ from all other information provided in connection with the transaction. 15 U.S.C. 1638(b)(1). Therefore, these sections are directly implicated by the integrated TILA–RESPA requirement. E:\FR\FM\23AUP2.SGM 23AUP2 51134 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 rule finalizing the proposed delay prior to January 21, 2013. Specifically, as set forth in the section-by-section analysis to proposed § 1026.1(c), the Bureau proposes to delay those requirements by temporarily exempting entities from the requirement to comply on January 21, 2013. This is, in effect, a delay of the effective date of the following statutory provisions: • Warning regarding negative amortization features. Dodd-Frank Act section 1414(a); TILA section 129C(f)(1).112 • Disclosure of State law antideficiency protections. Dodd-Frank Act section 1414(c); TILA section 129C(g)(2) and (3). • Disclosure regarding creditor’s partial payment policy. Dodd-Frank Act section 1414(d); TILA section 129C(h). • Disclosure regarding mandatory escrow accounts. Dodd-Frank Act section 1461(a); TILA section 129D(h). • Disclosure regarding waiver of escrow at consummation. Dodd-Frank Act section 1462; TILA section 129D(j)(1)(A). • Disclosure of monthly payment, including escrow, at initial and fullyindexed rate for variable-rate transactions. Dodd-Frank Act section 1419; TILA section 128(a)(16). • Repayment analysis disclosure to include amount of escrow payments for taxes and insurance. Dodd-Frank Act section 1465; TILA 128(b)(4). • Disclosure of settlement charges and fees and the approximate amount of the wholesale rate of funds. Dodd-Frank Act section 1419; TILA section 128(a)(17). • Disclosure of mortgage originator fees. Dodd-Frank Act section 1419; TILA section 128(a)(18). • Disclosure of total interest as a percentage of principal. Dodd-Frank Act section 1419; TILA section 128(a)(19). • Optional disclosure of appraisal management company fee. Dodd-Frank Act section 1475; RESPA section 4(c). The Bureau is not proposing to delay the effective date for the following disclosure requirements found in title XIV of the Dodd-Frank Act, and therefore these provisions are not Affected Title XIV Disclosures for 112 Dodd-Frank Act section 1414(a) also added to TILA new section 129C(f)(2), which requires firsttime borrowers for certain residential mortgage loans that could result in negative amortization to provide the creditor with documentation to demonstrate that the consumer received homeownership counseling from organizations or counselors certified by HUD. That provision is implemented in the Bureau’s 2012 HOEPA Proposal, which also implements the requirement of RESPA section 5(c), added by section 1450 of the Dodd-Frank Act, that lenders provide borrowers with a list of certified homeownership counselors. VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 purposes of this discussion. These provisions will be implemented in separate rulemakings, which are expected to be proposed in summer 2012 and finalized by January 21, 2013, with the specific effective dates set out in the final rules for those specific rulemakings. • Disclosure regarding notice of reset of hybrid adjustable rate mortgage. Dodd-Frank Act section 1418(a); TILA section 128A(a). The Bureau does not propose to delay this requirement because it applies, for the most part, to the period after consummation. • Loan originator identifier requirement. Dodd-Frank section 1402(a)(2); TILA section 129B(b)(1)(B). The Bureau does not propose to delay this requirement because it applies broadly to ‘‘loan documents.’’ In the integrated TILA–RESPA final rule, the Bureau will harmonize the loan originator identifier provisions of this proposal with the separate rulemaking implementing TILA section 129B(b)(1)(B). • Disclosure regarding waiver of escrow after consummation. DoddFrank Act section 1462; TILA section 129D(j)(1)(B). The Bureau does not propose to delay this requirement because it applies to the period after consummation and because it will be implemented by final rule pursuant to an outstanding proposal published by the Board. 76 FR 11598 (Mar. 2, 2011). • Consumer notification regarding appraisals for higher-risk mortgages. Dodd-Frank Act section 1471; TILA section 129H(d). The Bureau does not propose to delay this requirement because it overlaps substantially with an existing disclosure requirement under ECOA (see below) and must be implemented through an interagency rulemaking. In the integrated TILA– RESPA final rule, the Bureau plans to harmonize the appraisal notification provisions of this proposal with the separate rulemaking implementing TILA section 129H(d), so that once the integrated form is finalized creditors will be able to use the integrated forms to satisfy the 129H(d) requirement. • Consumer notification regarding the right to receive an appraisal copy. DoddFrank Act section 1474; ECOA section 701(e)(5). The Bureau does not propose to delay this requirement because it replaces an existing disclosure requirement under ECOA that is typically provided separately from other disclosures. In the integrated TILA– RESPA final rule, the Bureau will harmonize the provisions with the separate rulemaking implementing ECOA section 701(e)(5), so that once the integrated form is finalized creditors PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 will be able to use it to satisfy the ECOA requirement. As discussed in the section-by-section analysis to proposed § 1026.19, the integrated disclosure provisions of this proposal apply to closed-end transactions secured by real property, other than reverse mortgages as defined in § 1026.33(a). However, under the statute, the Affected Title XIV Disclosures vary in scope and are in some cases broader than the scope of the proposed integrated disclosure provisions.113 For example, certain of the Affected Title XIV Disclosures apply to open-end credit plans,114 transactions secured by dwellings that are not real property,115 and/or reverse mortgages,116 which are not the subject of this rulemaking. However, because the final scope of the integrated disclosure provisions is not yet known, the Bureau is proposing to delay the Affected Title XIV Disclosures to the fullest extent those requirements could apply under the statutory provisions. However, the Bureau also solicits comment on whether the final rule implementing the integrated disclosures should implement the Affected Title 113 Except as described below, the Affected Title XIV Disclosures apply to ‘‘residential mortgage loans,’’ which are defined in TILA section 103(cc)(5). 15 U.S.C. 1602(cc)(5). TILA section 129C(f)(1) (requiring a negative amortization warning) applies to open- or closed-end consumer credit plans secured by a dwelling. 15 U.S.C. 1639c(f)(1). TILA section 129D(h) (disclosure regarding mandatory escrow accounts) applies to consumer credit transactions secured by a first lien on the principal dwelling of the consumer, other than open-end credit plans and reverse mortgages. 15 U.S.C. 1639d(h). TILA section 129D(j)(1)(A) applies to consumer credit transactions secured by real property. 15 U.S.C. 1639d(j)(1)(A). TILA section 128(b)(4) (requiring escrow amounts to be included in the repayment analysis disclosure) applies to consumer credit transactions secured by a first lien on the consumer’s principal dwelling, other than open-end plans or reverse mortgages. 15 U.S.C. 1638(b)(4). RESPA section 4(c) (permitting an appraisal management fee disclosure) applies to ‘‘federally related mortgage loans.’’ 12 U.S.C. 2603(c). To the extent these statutory provisions do not cover transactions that are within the scope of the integrated disclosure provisions of this proposal (e.g., vacant land), the Bureau is proposing to modify the statutory requirements to cover those transactions. See the section-by-section analysis to proposed § 1026.19. 114 The following Affected Title XIV Disclosures apply to open-end credit plans: TILA section 129C(f) (negative amortization warning); TILA section 129D(j)(1)(A) (disclosure regarding waiver of escrow at consummation); RESPA section 4(c) (appraisal management company fee disclosure). 115 All of the Affected Title XIV Disclosures, other than TILA section 129D(j)(1)(A) (disclosure regarding waiver of escrow at consummation) and RESPA section 4(c) (appraisal management company fee disclosure), apply to transactions secured by dwellings that are not real property. 116 All of the Affected Title XIV Disclosures, other than TILA section 128(b)(4) (requiring repayment analysis to include escrow) and TILA section 12D(h) (mandatory escrow or impound account disclosure), apply to reverse mortgages. E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 XIV Disclosures for open-end credit plans, transactions secured by dwellings that are not real property, and reverse mortgages, as applicable, by requiring creditors to comply with the proposed provisions that implement those disclosure requirements. Improving Overall Effectiveness of Disclosures Issuing final rules implementing the Affected Title XIV Disclosures at the same time as the integrated TILA– RESPA final rule will improve the overall effectiveness of the integrated disclosure. One of TILA’s primary purposes is to ‘‘assure a meaningful disclosure of credit terms * * * and avoid the uninformed use of credit.’’ TILA section 102(a); 15 U.S.C. 1601(a). Similarly, one purpose of RESPA is to improve advance disclosure of settlement costs. RESPA section 2(b)(1); 12 U.S.C. 2601(b)(1). As discussed above, however, TILA, RESPA, and current Regulations Z and X generally require that consumers receive two separate disclosures after applying for a mortgage loan, and then receive two additional separate disclosures prior to closing on that loan. Concerns have been raised that duplicative disclosures may reduce consumer understanding of mortgage loan transactions and increase burden on industry. Thus, when viewed together, the duplicative disclosures required by TILA and RESPA may inhibit consumers’ understanding of their loans. Section 1032(f) of the DoddFrank Act addresses these concerns by directing the Bureau to integrate these disclosure requirements to improve consumer understanding of mortgage disclosures. This same rationale supports delaying the requirements of the Affected Title XIV Disclosures until such time as the Bureau issues a final rule implementing the broader TILA–RESPA integration. Incorporating the Affected Title XIV Disclosures will enable the Bureau to use the results of its consumer testing and public feedback to develop forms that include these pre-consummation disclosures in a way that could improve overall consumer understanding of mortgage loan transactions. Implementing the Affected Title XIV Disclosures in isolation could have the opposite effect, by multiplying the number of individual disclosures that consumers receive, thereby reducing the likelihood that consumers will focus on any of them. Through consumer testing, the Bureau has specifically examined how the required disclosures should work together on the integrated disclosure to maximize consumer understanding. For VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 example, in its consumer testing of the integrated disclosures, the Bureau tested and solicited public feedback on clauses related to the Affected Title XIV Disclosures to determine how the language will be understood by consumers, both separately and in the context of the overall form. The Bureau estimates that, by incorporating Affected Title XIV Disclosures that would otherwise be provided separately, the total page count for pre-consummation TILA and RESPA disclosures would be reduced by as much as 50 percent. The Bureau believes that this reduction will not only improve consumer understanding of mortgage transactions, but also facilitate compliance as discussed below. Consumer testing also indicates that some disclosures are either not helpful or are detrimental to consumer understanding; as discussed in the section-by-section analysis below, the Bureau proposes to use its authority to modify these disclosures to enhance consumer understanding. Facilitating Compliance by Reducing Regulatory Burden As noted above, another purpose of the integrated TILA–RESPA disclosure is to facilitate compliance with the requirements and purposes of those statutes. TILA section 105(b); 15 U.S.C. 1604(b); RESPA section 4(a); 12 U.S.C. 2603(a). Delaying the effective date of the Affected Title XIV Disclosures until a rule implementing the integrated TILA–RESPA disclosure is final will further this purpose by reducing regulatory burden. A substantial burden would be imposed if entities were required to revise their systems and practices twice—once to comply with the Affected Title XIV Disclosures and again to comply with the final rule integrating the TILA and RESPA disclosures. Implementing the changes twice would be particularly burdensome because compliance with the Affected Title XIV Disclosures will involve modifying forms and systems, updating compliance manuals, and training staff regarding the new disclosures. Implementing the Affected Title XIV Disclosures as part of the integrated TILA–RESPA rulemaking will reduce regulatory burden by allowing entities to adopt all the necessary changes at one time. Implementing a single, consolidated disclosure will also reduce ongoing regulatory burden because an integrated disclosure is less costly to provide than a series of disclosures. Legal Authority For the reasons discussed above, the Bureau proposes to exercise its PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 51135 authority under TILA section 105(a) and (f), RESPA section 19(a), Dodd-Frank section 1032(a), and, for residential mortgage loans, Dodd-Frank Act section 1405(b) to, in effect, delay the effective date of the Affected Title XIV Disclosures by exempting regulated entities from these provisions until a final rule implementing Dodd-Frank Act section 1032(f) takes effect. 15 U.S.C. 1604(a); 12 U.S.C. 2617(a); 12 U.S.C. 5532(a); 15 U.S.C. 1601 note. TILA section 105(a) gives the Bureau authority to adjust or except from the disclosure requirements of TILA all or any class of transactions to effectuate the purposes of TILA or facilitate compliance. As set forth above, delaying the Affected Title XIV Disclosures until such time as a final rule implementing the integrated TILA–RESPA disclosures takes effect achieves the purpose of TILA to promote the informed use of credit through a more effective, consolidated disclosure, and facilitates compliance by reducing regulatory burden associated with revising systems and practices multiple times and providing multiple disclosures to consumers. The Bureau also proposes the exemption pursuant to TILA section 105(f). The Bureau has considered the factors in TILA section 105(f) and believes that an exemption is appropriate under that provision. Specifically, the Bureau believes that the proposed exemption is appropriate for all affected borrowers, regardless of their other financial arrangements and financial sophistication and the importance of the loan to them. Similarly, the Bureau believes that the proposed exemption is appropriate for all affected loans, regardless of the amount of the loan and whether the loan is secured by the principal residence of the consumer. Furthermore, the Bureau believes that, on balance, the proposed exemption will simplify the credit process without undermining the goal of consumer protection or denying important benefits to consumers. As discussed above, the Bureau believes that the exemption provides a benefit to consumers through a more effective, consolidated disclosure. Absent an exemption, the Affected Title XIV Disclosures would complicate and hinder the mortgage lending process because consumers would receive inconsistent disclosures and, likely, numerous additional pages of Federal disclosures that do not work together in a meaningful way. The Bureau also believes that the cost of credit would be increased if the Affected Title XIV Disclosures take effect independent of the larger TILA–RESPA integration E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51136 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules because industry would be required to revise systems and practices multiple times. The Bureau has also considered the status of mortgage borrowers in issuing the proposed exemptions, and believes the exemption is appropriate to improve the informed use of credit. The Bureau does not believe that the goal of consumer protection would be undermined by the exemption, because of the risk that layering the Affected Title XIV Disclosures on top of existing mandated disclosures would lead to consumer confusion. The exemption allows the Bureau to coordinate the changes in a way that improves overall consumer understanding of the disclosures. RESPA section 19(a) provides the Bureau with authority to grant exemptions from the requirements of RESPA as necessary to achieve the purposes of RESPA. As discussed above, one purpose of RESPA is to achieve more effective advance disclosure to home buyers and sellers of settlement costs. RESPA section 2(b)(1); 12 U.S.C. 2601(b). Delaying the Affected Title XIV Disclosures until such time as a final rule implementing the integrated TILA– RESPA disclosures takes effect will result in a more effective disclosure and improve consumer understanding and will facilitate compliance by reducing regulatory burden, as discussed above. In addition, section 1405(b) of the Dodd-Frank Act gives the Bureau authority to exempt from or modify disclosure requirements for any class of residential mortgage loans if the Bureau determines that the exemption or modification is in the interest of consumers and the public. As discussed above, implementing the Affected Title XIV Disclosures with the integrated TILA–RESPA disclosure is in the interest of consumers because it allows the Bureau to coordinate the changes in a way that improves overall consumer understanding of the disclosures. Further, implementing the Affected Title XIV Disclosures as part of the integrated disclosure rulemaking is in the public interest because it produces a more efficient regulatory scheme by incorporating multiple, potentially confusing disclosures into clear and understandable forms through consumer testing. Finally, consistent with section 1032(a) of the Dodd-Frank Act, implementing the Affected Title XIV Disclosures together with the integrated disclosure would ensure that the features of consumer credit transactions secured by real property are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 benefits, and risks associated with the product or service, in light of the facts and circumstances. The Bureau believes that implementing a single, consolidated disclosure will benefit consumers and facilitate compliance with TILA and RESPA. For these reasons, the Bureau is proposing to delay the Affected Title XIV Disclosures until the Bureau issues a final rule implementing the integrated TILA– RESPA disclosure required by section 1032(f) of the Dodd-Frank Act. The Bureau is proposing to implement the Affected Title XIV Disclosures in § 1026.1(c), which is discussed further in the section-bysection analysis below. This proposal, therefore, incorporates the Affected Title XIV Disclosures as part of the integrated disclosure. The Bureau views proposed § 1026.1(c) as prescribing the required rules in final form pursuant to Dodd-Frank Act section 1400(c)(1)(A) and the effective date of the final rule implementing the delay of the Affected Title XIV Disclosures as satisfying Dodd-Frank Act section 1400(c)(1)(B). The Bureau plans to issue a final rule implementing this exemption before the statutory provisions take effect in January 2013. For this reason, the Bureau is providing a comment period of 60 days for the proposed amendments to § 1026.1(c), rather than the 120-day comment period provided for all other aspects of this proposed rule other than § 1026.4, to permit the Bureau to evaluate comments received in response to this aspect of the proposal before issuing a final rule. The Bureau plans to issue a final notice that would remove this regulatory exemption at the time a final rule implementing the integrated TILA–RESPA disclosure takes effect, but solicits comment on whether the regulatory exemption should sunset on a specific date. C. Potential Exemptions from Disclosure Requirements As discussed in part III, above, one of the Bureau’s primary considerations in developing the integrated disclosures was to minimize the risk of information overload and enhance consumers’ overall understanding of mortgage loan and real estate transactions. To that end, the integrated disclosures highlight information that is important to consumers in comparing and evaluating mortgage loans and deemphasize information that is secondary to consumer understanding. In addition, as discussed in the section-by-section analysis, below, the Bureau is proposing to use its exemption and modification authority to exempt transactions subject to proposed § 1026.19(e) and (f) from PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 certain disclosure requirements that consumer testing and research indicate are confusing and unhelpful to consumers. Specifically, the Bureau is proposing to use its authority under TILA section 105(a) and (f), Dodd-Frank Act section 1032(a) and, for residential mortgage loans, Dodd-Frank Act section 1405(b) to omit from the Loan Estimate provided three business days after receipt of the consumer’s application: the amount financed (TILA section 128(a)(2)), the finance charge (TILA section 128(a)(3)), a statement that the creditor is taking a security interest in the consumer’s property (TILA section 128(a)(9)), a statement that the consumer should refer to the appropriate contract document for information about their loan (TILA section 128(a)(12)), a statement regarding certain tax implications (TILA section 128(a)(15)), and the creditor’s cost of funds (TILA section 128(a)(17)). See the section-by-section analysis to proposed § 1026.37(l). Although the Bureau is generally proposing to require these disclosures on the Closing Disclosure provided three business days prior to consummation, the Bureau is alternatively proposing to use its exemption and modification authority to omit the creditor’s cost of funds disclosure (TILA section 128(a)(17)) and the total interest percentage disclosure (TILA section 128(a)(19)) from both the Loan Estimate and the Closing Disclosure. See the section-by-section analysis to proposed §§ 1026.37(l) and 1026.38(o). For these same reasons, the Bureau solicits comment on additional disclosures that appear on the integrated disclosures that are unhelpful or potentially confusing to consumers and whether the Bureau should use its authority under TILA section 105(a) and (f), Dodd-Frank Act section 1032(a) and, for residential mortgage loans, DoddFrank Act section 1405(b) to exempt transactions subject to proposed § 1026.19(e) and (f) from any such disclosure requirements. The Bureau believes exempting transactions from those disclosure requirements would promote the informed use of credit and facilitate compliance, consistent with TILA section 105(a). For the same reasons, the Bureau believes such exemptions would be appropriate under TILA section 105(f) for all affected borrowers, regardless of their other financial arrangements and financial sophistication and the importance of the loan to them, and for all affected loans, regardless of the amount of the loan and whether the loan is secured by the principal residence of the consumer and E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules would simplify the credit process without undermining the goal of consumer protection or denying important benefits to consumers. Any such exemption would also ensure that the features of the transaction are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to better understand the costs, benefits, and risks associated with the mortgage transaction, in light of the facts and circumstances, consistent with Dodd-Frank Act section 1032(a), and would improve consumer awareness and understanding of residential mortgage loans, which is in the interest of consumers and the public, consistent with Dodd-Frank Act section 1405(b). mstockstill on DSK4VPTVN1PROD with PROPOSALS2 VI. Section-by-Section Analysis As discussed above, TILA’s mortgage disclosure requirements are currently implemented in Regulation Z, whereas RESPA’s mortgage disclosure requirements are currently implemented in Regulation X. Regulation Z contains detailed regulations and guidance regarding disclosures for mortgage transactions, whereas Regulation X largely relies on the GFE and HUD–1 forms. The Bureau understands that the additional detail in Regulation Z facilitates compliance by industry, which is one of the goals of this rulemaking.117 Accordingly, the Bureau is proposing to establish the integrated disclosure requirements in Regulation Z, while making conforming and other amendments to Regulation X.118 However, as discussed above, the Bureau solicits comment on whether the level of detail in the proposed regulations and guidance (including the number of examples illustrating what is and is not permitted) will make compliance more, rather than less, burdensome and whether the Bureau should adopt a less prescriptive approach in the final rule. As discussed in detail below with respect to proposed § 1026.19, certain mortgage transactions that are subject to TILA are not subject to RESPA and vice versa. As proposed, the integrated mortgage disclosures would apply to most closed-end consumer credit 117 For example, the small financial service providers who advised the Small Business Review Panel stated that ambiguity in the application or interpretation of the current RESPA disclosure requirements produces substantial costs in the form of legal fees, staff training, and, for settlement agents, preparing forms differently for different lenders. To address this concern, these providers generally requested that the Bureau provide clear guidance on how to fill out the forms, similar to that currently provided in Regulation Z. See Small Business Review Panel Report at 19–20. 118 The Bureau is proposing to retain established regulatory terminology in Regulations X and Z for consistency. VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 transactions secured by real property. Certain types of loans that are currently subject to TILA but not RESPA (construction-only loans and loans secured by vacant land or 25 or more acres) would be subject to the proposed integrated disclosure requirements, whereas others (such as mobile home loans and other loans that are secured by a dwelling but not real property) would remain solely subject to the existing Regulation Z disclosure requirements. Reverse mortgages are excluded from coverage of the proposed integrated disclosures and would therefore remain subject to the current Regulation X and Z disclosure requirements until the Bureau addresses those unique transactions in a separate, future rulemaking. Finally, consistent with the current rules under TILA, the integrated mortgage disclosures would not apply to mortgage loans made by persons who are not ‘‘creditors’’ as defined by Regulation Z (such as persons who make five or fewer mortgage loans in a year), although such loans would continue to be subject to RESPA. A. Regulation X Section 1024.5 Coverage of RESPA 5(a) Applicability For the reasons discussed below under proposed § 1024.5(c), the Bureau is proposing to use its authority under RESPA section 19(a) and, for residential mortgage loans, Dodd-Frank Act section 1405(b) to exempt certain transactions from the existing RESPA GFE and RESPA settlement statement requirements of Regulation X. The Bureau therefore is proposing a conforming amendment to § 1024.5(a) to reflect these partial exemptions pursuant to the same authority. 5(b) Exemptions 5(b)(1) Section 1024.5(b)(1) currently exempts from the coverage of RESPA and Regulation X loans on property of 25 acres or more. The Bureau believes that most loans that fall into this category are separately exempt under a provision excluding extensions of credit primarily for business, commercial, or agricultural purposes, set forth in § 1024.5(b)(2). Accordingly, the Bureau proposes to exercise its authority under RESPA section 19(a) and, for residential mortgage loans, Dodd-Frank Act section 1405(b) to eliminate the Regulation X exemption. This amendment will render the TILA and RESPA regimes more consistent, which promotes more effective advance disclosure of PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 51137 settlement costs (which is a purpose of RESPA). In addition, this consistency will improve consumer awareness and understanding of transactions involving residential mortgage loans and is therefore in the interest of consumers and the public, consistent with DoddFrank Act section 1405(b). Because it is unclear whether any mortgages are exempt based solely on § 1024.5(b)(1), the Bureau solicits comment on the number of loans that may be affected by this aspect of the proposal and any reasons for any continued exemption of loans on property of 25 acres or more. 5(c) Partial Exemptions for Certain Mortgage Loans As discussed further below, the Bureau proposes to exercise its authority under RESPA section 19(a), Dodd-Frank Act section 1032(a) and, for residential mortgage loans, Dodd-Frank Act section 1405(b) to add new § 1024.5(c), which would exempt two types of federally related mortgage loans from coverage of the RESPA settlement cost booklet, GFE, and settlement statement requirements of §§ 1024.6, 1024.7, 1024.8, and 1024.10. This partial exemption would apply to: (1) federally related mortgage loans that are subject to the integrated disclosures the Bureau is proposing in Regulation Z § 1026.19(e) and (f) and (2) federally related mortgage loans that satisfy specified criteria associated with certain housing assistance loan programs for low- and moderate-income persons. As described further below, these exemptions are designed to create consistency with the integrated disclosures under Regulation Z and to codify a disclosure exemption previously granted by HUD. However, the exemptions would retain coverage of affected loans for all other requirements of Regulation X, such as the servicing requirements in RESPA section 6, prohibitions on referral fees and kickbacks in RESPA section 8, and limits on amounts to be deposited in escrow accounts in RESPA section 10. 5(c)(1) Pursuant to the authority discussed above, proposed § 1024.5(c)(1) exempts from the RESPA settlement cost booklet, GFE, and settlement statement requirements of §§ 1024.6, 1024.7, 1024.8, and 1024.10 federally related mortgage loans that are subject to the special disclosure requirements for certain consumer credit transactions secured by real property set forth in Regulation Z, under proposed § 1026.19(e) and (f). As discussed in detail below, proposed § 1026.19(e) and (f) establishes the integrated disclosures E:\FR\FM\23AUP2.SGM 23AUP2 51138 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 for compliance both with sections 4 and 5 of RESPA and with TILA disclosures required for mortgage transactions, as mandated by section 1032(f) of the Dodd-Frank Act. Accordingly, compliance with §§ 1024.6, 1024.7, 1024.8, and 1024.10 is unnecessary for transactions that are subject to § 1026.19(e), (f) and (g) of Regulation Z. Because proposed § 1026.19(e) and (f) governs all closed-end transactions secured by real property other than reverse mortgages, the only federally related mortgage loans that will continue to comply with the Regulation X GFE and settlement statement requirements are reverse mortgages. The Bureau plans to address the disclosure requirements for reverse mortgages in a separate later rulemaking, at which time the Bureau may revise or eliminate the remaining disclosure provisions in Regulation X. 5(c)(2) Proposed § 1024.5(c)(2) exempts from the RESPA settlement cost booklet, GFE, and settlement statement requirements of §§ 1024.6, 1024.7, 1024.8, and 1024.10 federally related mortgage loans that satisfy several criteria associated with certain housing assistance loan programs for low- and moderate-income persons. This provision cross-references proposed 12 CFR 1026.3(h), which codifies an exemption issued by HUD on October 6, 2010.119 Under the HUD exemption, lenders need not provide the GFE and settlement statement when six prerequisites are satisfied: (1) the loan is secured by a subordinate lien; (2) the loan’s purpose is to finance downpayment, closing costs, or similar homebuyer assistance, such as principal or interest subsidies, property rehabilitation assistance, energy efficiency assistance, or foreclosure avoidance or prevention; (3) interest is not charged on the loan; (4) repayment of the loan is forgiven or deferred subject to specified conditions; (5) total settlement costs do not exceed one percent of the loan amount and are limited to fees for recordation, application, and housing counseling; and (6) the loan recipient is provided at or before settlement with a written disclosure of the loan terms, repayment conditions, and costs of the loan. In granting this partial exemption, HUD invoked its authority under RESPA section 19(a) to grant ‘‘reasonable exemptions for classes of transactions, as may be necessary to achieve the purposes of [RESPA].’’ HUD determined that, for transactions 119 See https://portal.hud.gov/hudportal/ documents/huddoc?id=DOC_14574.pdf. VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 meeting the criteria listed above, the RESPA GFE and settlement statement forms would be difficult to complete in a meaningful way and would be likely to confuse consumers who received them. Moreover, because of the limited, fixed fees involved with such transactions, the comparison shopping purpose of the GFE would not be achieved. Finally, the alternative written disclosure required as a prerequisite of the exemption would ensure that consumers understand the loan terms and settlement costs charged. To facilitate compliance, the Bureau is proposing to codify this exemption in Regulations X and Z for the same reasons and under the same authority as cited by HUD. In addition, the Bureau relies on its authority under Dodd-Frank Act section 1405(b) because the proposed exemption will improve consumer awareness and understanding of transactions due to these same concerns discussed involving residential mortgage loans in the identified class of transactions and is therefore in the interest of consumers and the public. The Bureau is proposing to adopt this exemption with the same prerequisites established by HUD. The Bureau seeks comment, however, on whether the same rationale for the exemption still would exist regardless of lien position and, therefore, the subordinate lien position should be eliminated as a requirement for the exemption. The Bureau also seeks comment concerning the prerequisite that the loan contract not ‘‘require the payment of interest.’’ As noted above, the exemption as issued by HUD requires that the loan ‘‘carr[y] an interest rate of -0- percent.’’ This wording may be interpreted narrowly to refer only to the rate of interest stated in the note or loan contract but not to other requirements or features that may serve as interest substitutes. For example, such a narrow reading would mean that loans requiring private mortgage insurance or loans having shared-equity or shared-appreciation features could qualify for this exemption, provided the note recites an interest rate of zero percent. The Bureau’s wording, on the other hand, could be interpreted as disallowing such requirements and features because they are essentially interest substitutes. The Bureau therefore seeks comment on whether such requirements and features should be considered ‘‘interest’’ and, therefore, should be impermissible for loans seeking to qualify for this partial exemption. In addition, the Bureau seeks comment on other types of loan requirements and features that should PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 be similarly deemed ‘‘interest’’ for purposes of this partial exemption. Alternatively, the Bureau seeks comment on whether this provision should be eliminated. Appendix A—Instructions for Completing HUD–1 and HUD–1A Settlement Statements; Sample HUD–1 and HUD–1A Statements As previously discussed, the Bureau proposes to require creditors to use the integrated Closing Disclosure required by §§ 1026.19(f) and 1026.38 to satisfy the disclosure requirements under RESPA section 4 for most closed-end transactions covered by RESPA, except for reverse mortgage transactions. Currently, the manner in which reverse mortgage transactions are disclosed on the HUD–1 or HUD–1A under appendix A of Regulation X is a source of confusion for creditors. HUD attempted to clarify the use of the RESPA settlement disclosure in reverse mortgage transactions by issuing frequently-asked questions, the HUD RESPA FAQs, the most recent of which was released on April 2, 2010. The Bureau proposes to exercise its authority under RESPA section 19(a) to modify appendix A of Regulation X to incorporate the guidance provided by the HUD RESPA FAQs because, under the proposed rule, the closing of reverse mortgage transactions will continue to be disclosed using the RESPA settlement statement. The proposed revisions can be found in the instructions for lines 202, 204 and page 3, loan terms. The Bureau believes that adopting this guidance will improve the effectiveness of the disclosures when used for reverse mortgages, thereby reducing industry confusion and advancing the purpose of RESPA to provide more effective advanced disclosure of settlement costs to both the consumer and the seller in the real estate transaction, consistent with RESPA section 19(a). Appendix B—Illustrations of Requirements of RESPA Appendix B to part 1024 contains illustrations of requirements under RESPA. Illustration 12 provides a factual situation where a mortgage broker provides origination services to submit a loan to a lender for approval. The mortgage broker charges the borrower a uniform fee for the total origination services, as well as a direct up-front charge for reimbursement of credit reporting, appraisal services, or similar charges. To address this factual situation, illustration 12 provides a comment that: the mortgage broker’s fee E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules must be itemized in the Good Faith Estimate and on the HUD–1 Settlement Statement; other charges that are paid for by the borrower and paid in advance of consummation are listed as paid outside closing on the HUD–1 Settlement Statement, and reflect the actual provider charge for such services; and any other fee or payment received by the mortgage broker from either the lender or the borrower arising from the initial funding transaction, including a servicing release premium or yield spread premium, is to be noted on the Good Faith Estimate and listed in the 800 series of the HUD–1 Settlement Statement. Subsequent to the guidance provided in illustration 12, Regulation Z § 1026.36(d)(2) was adopted. Section 1026.36(d)(2) states: If any loan originator receives compensation directly from a consumer in a consumer credit transaction secured by a dwelling: (i) No loan originator shall receive compensation, directly or indirectly, from any person other than the consumer in connection with the transaction; and (ii) No person who knows or has reason to know of the consumer-paid compensation to the loan originator (other than the consumer) shall pay any compensation to a loan originator, directly or indirectly, in connection with the transaction. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 The last sentence in illustration 12 clearly contemplates the loan originator, a mortgage broker, receiving compensation from the lender as well as the borrower, which therefore describes a factual situation prohibited by § 1026.36(d)(2). Accordingly, for consistency with § 1026.36(d)(2), the Bureau proposes to exercise its authority under RESPA section 19(a) to delete the last sentence of the comment provided in illustration 12 in Appendix B to part 1024. Appendix C—Instructions for Completing Good Faith Estimate (GFE) Form As previously discussed, the Bureau proposes to require creditors to use the integrated loan estimate required by §§ 1026.19(e) and 1026.37 to satisfy the disclosure requirements under RESPA section 5 for most closed-end transactions covered by RESPA, except for reverse mortgage transactions. Currently, the manner in which reverse mortgage transactions are disclosed on the RESPA GFE under appendix C of Regulation X is a source of confusion for creditors. HUD clarified the use of the RESPA GFE in reverse mortgage transactions in the HUD RESPA FAQs. The Bureau proposes to exercise its authority under RESPA section 19(a) to modify appendix C of Regulation X to VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 incorporate the guidance provided by the HUD RESPA FAQs because, under the proposed rule, reverse mortgage transactions will continue to be disclosed using the RESPA GFE. The proposed revisions can be found in the instructions for the ‘‘Summary of your loan’’ and ‘‘Escrow account information’’ sections. The Bureau believes that these revisions satisfy the purpose of RESPA to provide more effective advanced disclosure of settlement costs to both the consumer and the seller in the real estate transaction. Section 1026.1 Authority, Purpose, Coverage, Organization, Enforcement, and Liability The Bureau is proposing conforming amendments to § 1026.1 to reflect the fact that, under this proposal, Regulation Z implements not only TILA, but also certain provisions of RESPA. The details of the regulatory implementation of these statutory requirements are discussed below, under the applicable sections of Regulation Z. To reflect the expanded statutory scope of Regulation Z, the proposed conforming amendments revise § 1026.1(a) (authority), (b) (purpose), (d)(5) (organization of subpart E), and (e) (enforcement and liability) to include references to the relevant provisions of RESPA. 1(c) Coverage As discussed in part V.B, the Bureau is proposing to exempt persons temporarily from the disclosure requirements of sections 128(a)(16) through (19), 128(b)(4), 129C(f)(1), 129C(g)(2) and (3), 129C(h), 129D(h), and 129D(j)(1)(A) of TILA and section 4(c) of RESPA, until regulations implementing the integrated disclosures required by section 1032(f) of the DoddFrank Act take effect. 15 U.S.C. 1638(a)(16)–(19), 1638(b)(4), 1639c(f)(1), 1639c(g), 1639c(h), 1639d(h), and 1639d(j)(1)(A); 12 U.S.C. 2604(c); 12 U.S.C. 5532(f). Proposed § 1026.1(c)(5) implements this exemption by stating that no person is required to provide the disclosures required by the statutory provisions listed above. Proposed comment 1(c)(5)–1 explains that § 1026.1(c)(5) implements the abovelisted provisions of TILA and RESPA added by the Dodd-Frank Act by exempting persons from the disclosure requirements of those sections. The comment clarifies that the exemptions provided in proposed § 1026.1(c)(5) are intended to be temporary and will apply only until compliance with the regulations implementing the integrated disclosures required by section 1032(f) PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 51139 of the Dodd-Frank Act become mandatory. Proposed comment 1(c)(5)– 1 also clarifies that the exemption in proposed § 1026.1(c)(5) does not exempt any person from any other requirement of Regulation Z, Regulation X, or of TILA or RESPA. For the reasons discussed in part V.B, the Bureau is providing a comment period of 60 days for the proposed amendments to § 1026.1(c). In addition, as discussed above in part V.B, the Bureau requests comment on whether the exemptions provided in proposed § 1026.1(c)(5) should expire after a specified period of time. Section 1026.2 Definitions and Rules of Construction 2(a) Definitions 2(a)(3) Application Background Neither TILA nor RESPA defines the term ‘‘application.’’ Although Regulation Z does not define this term, for the good faith estimate disclosures currently required by § 1026.19(a), Regulation Z incorporates the Regulation X definition. See comment 19(a)(1)(i)–3. Section 1024.2(b) of Regulation X defines application as ‘‘the submission of a borrower’s financial information in anticipation of a credit decision relating to a federally related mortgage loan, which shall include the borrower’s name, the borrower’s monthly income, the borrower’s social security number to obtain a credit report, the property address, an estimate of the value of the property, the mortgage loan amount sought, and any other information deemed necessary by the loan originator.’’ 12 CFR 1024.2(b). This definition, adopted as part of HUD’s 2008 RESPA Final Rule, was intended to ensure that consumers received a RESPA GFE containing reliable estimates of settlement costs early in the process of shopping for a mortgage loan. However, in response to concerns that a narrow definition of application might inhibit preliminary underwriting, the definition adopted by HUD includes seven elements, one of which is ‘‘any other information deemed necessary by the loan originator.’’ HUD added this ‘‘catch-all’’ element to enable creditors to collect any additional information deemed necessary to underwrite a loan. Concerns With the Current Definition Under Regulation X While the Bureau believes that creditors should be able to collect information in addition to the six elements, the Bureau is concerned that the seventh catch-all element may E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51140 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules permit creditors to delay providing consumers with the integrated Loan Estimate. One primary purpose of the integrated Loan Estimate is to inform consumers of the cost of credit when they have bargaining power to negotiate for better terms and time to compare other financing options. It is vital, however, that creditors be able to collect the information necessary to originate loans in a safe and sound manner. The Bureau does not believe that these principles conflict. The definition of application does not define or limit underwriting; it instead establishes a point in time at which disclosure obligations begin. Based on this premise, the definition of ‘‘application’’ should facilitate consumers’ ability to receive reliable estimates early in the loan process, but should not restrict a creditor’s ability to determine which information is necessary for sound underwriting. Removing the catch-all element from the definition under Regulation X may ensure that the disclosures are received both early in the loan process and based on the information most critical to providing reliable estimates. Consumers would be able to receive the disclosures as soon as consumers provide creditors with the information needed for reliable estimation. Creditors would be able to collect whatever information is, in the creditor’s view, necessary for a reasonably reliable estimate, provided that it collects the additional information prior to collecting the six pieces of information specified in proposed § 1026.2(a)(3)(ii), which are the consumer’s name, income, and social security number to obtain a credit report, as well as the property address, an estimate of the value of the property, and the mortgage loan amount sought. For example, if a creditor believes that a reliable estimate cannot be provided without information related to the consumer’s combined current liabilities, the creditor may collect this information, provided that it does so prior to, or at the same time as, collecting the six pieces of information specified in § 1026.2(a)(3)(ii). The Bureau acknowledges that creditors could strategically order information collection in a manner that best suits the needs of the creditor. Even if the creditor did so, the Bureau believes that the definition would enable the consumers to receive the disclosures early in the loan process. This approach may also ensure that consumers are not required to disclose sensitive information, such as the consumer’s social security number or income, until after the creditor collects less sensitive VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 information. Thus, removing the seventh catch-all element, while preserving creditors’ ability to collect any additional necessary information, may strike the appropriate balance between the needs of consumers and the needs of industry. This approach also dovetails with the requirements of proposed § 1026.19(e) establishing limitations on fee increases for the purposes of determining good faith, but which are subject to several exceptions, including exceptions based on the information the creditor relied on in disclosing the estimated loan costs. Thus, the proposed definition of application, by requiring creditors to collect any additional information prior to collecting the six pieces of information specified in § 1026.2(a)(3)(ii), maintains creditors’ current flexibility in deciding which additional information is necessary for providing estimates. For example, if a creditor chooses to collect a consumer’s combined liability information prior to collecting the six pieces of information specified in § 1026.2(a)(3)(ii), the disclosures provided pursuant to § 1026.19(e) may reflect such information. If the consumer’s combined liabilities subsequently increase, the creditor may issue a revised disclosure reflecting the change in information relied upon in providing the original disclosure. If a different creditor chooses to rely on only the six pieces of information specified in § 1026.2(a)(3)(ii) in providing the disclosures, but during underwriting information related to the consumer’s combined liabilities is discovered, and such information requires a revision in loan terms, the creditor may issue a revised disclosure reflecting such new information not previously relied on in providing the disclosures. But neither creditor may delay providing consumers with the disclosures in the first instance by claiming that additional information related to the consumer’s combined liabilities is required after the consumer has provided the six pieces of information specified in § 1026.2(a)(3)(ii). Thus, removal of the seventh catch-all element may achieve the same outcome from the creditor’s perspective as under the current Regulation X definition, while inhibiting the ability of creditors to delay providing consumers with the disclosures. This approach has the added benefit of being a uniform standard for disclosure obligations across all creditors, which facilitates compliance and supervision. Accordingly, pursuant to its authority under section 105(a) of TILA and 19(a) of RESPA, the Bureau is proposing to PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 add § 1026.2(a)(3)(i) to define ‘‘application’’ as the submission of a consumer’s financial information for the purposes of obtaining an extension of credit. Proposed § 1026.2(a)(3)(ii) provides that, except for purposes of subpart B, subpart F, and subpart G, the term consists of the consumer’s name, income, and social security number to obtain a credit report, and the property address, an estimate of the value of the property, and the mortgage loan amount sought. For the reasons discussed above, removal of the seventh catch-all element from the definition of application may help carry out the purposes of TILA by promoting the informed use of credit and achieve the purposes of RESPA by promoting more effective advance disclosure of settlement costs by encouraging creditors to provide consumers with good faith estimates of loan terms and costs earlier in the process. The Bureau has received feedback, including a comment received in response to the 2011 Streamlining Proposal, requesting a single definition of ‘‘application’’ under Regulation Z, Regulation B (which implements the Equal Credit Opportunity Act), and Regulation C (which implements the Home Mortgage Disclosure Act). The Bureau recognizes the potential consistency benefits of a single definition. However, for the reasons discussed above, the Bureau believes that the proposed definition provides important benefits to consumers in this context. During the Small Business Panel Review process, several small entity representatives expressed concern about eliminating the seventh prong of the definition of application currently under Regulation X. See Small Business Review Panel Report at 33–34, 49, and 67. Based on this feedback and consistent with the recommendation of the Small Business Review Panel, the Bureau solicits comment on what, if any, additional specific information beyond the six items included under the proposed definition of application is needed to provide a reasonably accurate Loan Estimate. See id. at 29. The proposed definition of application consists of two parts. The first part establishes a broad definition for all of Regulation Z. The second part provides that an application consists of six elements of data. These elements, which are currently set forth in the definition of application in Regulation X, have an established significance in the context of closed-end loans secured by real property, but may be less significant or even inapplicable to other types of credit. Thus, these six elements E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules do not apply to Subpart B (open-end loans), Subpart F (student loans), and Subpart G (special rules for credit card accounts and open-end credit offered to college students). Proposed comment 2(a)(3)–1 explains that a consumer’s submission of financial information is for purposes of obtaining an extension of credit. A creditor is free to collect information in addition to that listed in § 1026.2(a)(3)(ii) that it deems necessary in connection with the request for the extension of credit. However, once a creditor has received the six listed pieces of information, it has an application for purposes of § 1026.2(a)(3). The proposed comment also contains illustrative examples of this provision. Proposed comment 2(a)(3)–2 clarifies that, if a consumer does not have a social security number, the creditor may instead request whatever unique identifier the creditor uses to obtain a credit report. For example, a creditor has obtained a social security number to obtain a credit report for purposes of § 1026.2(a)(3)(ii) if the creditor collects a Tax Identification Number from a consumer who does not have a social security number, such as a foreign national. This comment is consistent with guidance provided by HUD in the HUD RESPA FAQs p. 7, #14 (‘‘GFE— General’’). Proposed comment 2(a)(3)–3 clarifies that the creditor’s receipt of a credit report fee does not affect whether an application has been received. Section 1026.19(a)(1)(iii) permits the imposition of a fee to obtain the consumer’s credit history prior to the delivery of the disclosures required under § 1026.19(a)(1)(i). Section 1026.19(e)(2)(i)(B) permits the imposition of a fee to obtain the consumer’s credit report prior to the delivery of the disclosures required under § 1026.19(e)(1)(i). Whether, or when, such fees are received is irrelevant for the purposes of the definition in § 1026.2(a)(3) and the timing requirements in § 1026.19(a)(1)(i) and (e)(1)(iii). For example, if, in a transaction subject to § 1026.19(e)(1)(i), a creditor receives the six pieces of information identified under § 1026.2(a)(3)(ii) on Monday, June 1, but does not receive a credit report fee from the consumer until Tuesday, June 2, the creditor does not comply with § 1026.19(e)(1)(iii) if it provides the disclosures required under § 1026.19(e)(1)(i) after Thursday, June 4. The three-business-day period beings on Monday, June 1, the date the creditor received the six pieces of information. The waiting period does not begin on VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 Tuesday, June 2, the date the creditor received the credit report fee. 2(a)(6) Business Day Although neither RESPA nor TILA defines ‘‘business day,’’ that term is defined in Regulations X and Z. Both Regulation X § 1024.2(b) and Regulation Z § 1026.2(a)(6) generally define ‘‘business day’’ to mean a day on which the offices of the creditor or other business entity are open to the public for carrying on substantially all of the entity’s business functions. For certain provisions of Regulation Z, however, an alternative definition applies. Under this definition, ‘‘business day’’ means all calendar days except Sundays and the legal public holidays specified in 5 U.S.C. 6103(a), i.e., New Year’s Day, the Birthday of Martin Luther King, Jr., Washington’s Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, and Christmas Day. The alternative definition of business day applies to, among other things, the three-business-day limitation on the imposition of fees in § 1026.19(a)(1)(ii) and the three- and seven-business-day waiting periods in § 1026.19(a)(2). As discussed below, the Bureau is proposing to amend § 1026.19 to implement the integrated disclosure requirement in section 1032(f) of the Dodd-Frank Act by adding new paragraphs (e) and (f). Accordingly, for consistency and to facilitate compliance with TILA, the Bureau is proposing to use its authority under TILA section 105(a) to amend § 1026.2(a)(6) to apply the alternative definition of business day to the provisions of paragraphs (e) and (f) that are analogous to § 1026.19(a)(1)(i), (a)(1)(ii), and (a)(2). The Bureau also proposes conforming amendments to comment 2(a)(6)–2. The Bureau recognizes that this issue was previously raised during the Board’s 2008–2009 MDIA rulemaking. See 73 FR 74989 at 74991 (Dec. 10, 2008) and 74 FR 23289 at 23293–23294 (May 19, 2009). However, the Bureau believes that applying the alternative definition of business day to the integrated disclosures would facilitate compliance. The Bureau solicits feedback regarding whether the general definition of business day instead should apply to the integrated disclosure delivery requirements. The Bureau also solicits comment on whether the rules should be analogous to the current rules, where the general business day requirement applies to some requirements and the alternative business day requirement applies to other requirements. Finally, the Bureau seeks feedback regarding whether the PO 00000 Frm 00027 Fmt 4701 Sfmt 4702 51141 business day usage under current § 1026.19(a) should remain, or if § 1026.19(a) should be modified to use a single definition of business day consistent with proposed § 1026.19(e) and (f). 2(a)(17) Creditor Under current Regulation Z, a person who extended consumer credit 25 or fewer times in the past calendar year, or five or fewer times for transactions secured by a dwelling, is exempt from the definition of ‘‘creditor.’’ See § 1026.2(a)(17)(v). The Bureau’s 2011 Streamlining Proposal specifically requested comment on whether these thresholds should be raised and, if so, to what number of transactions. In addition, the proposal solicited comment on whether a similar exemption should be applied to the preconsummation disclosure requirements under RESPA that will be integrated with the TILA requirements pursuant to Dodd-Frank Act section 1032(f). In response, trade association commenters suggested raising the threshold number of transactions in order to reduce regulatory burden on more small lenders. For example, one trade association commenter suggested raising the threshold number of transactions to 50, regardless of transaction type. In light of this feedback, the Bureau requests comment on whether the fiveloan exemption threshold is appropriate for transactions subject to this proposed rule and, if not, what number of transactions would be appropriate. The Bureau also solicits comment on whether any transaction-based exemption adopted in this rulemaking should be applied to the preconsummation disclosure requirements of sections 4 and 5 of RESPA. 2(a)(25) Security Interest Pursuant to its authority under TILA section 105(a), the Bureau proposes a conforming amendment to the definition of ‘‘security interest’’ in current § 1026.2(a)(25). Under the current definition of security interest, for purposes of the disclosure requirements in §§ 1026.6 and 1026.18, the term does not include an interest that arises solely by operation of law. For consistency and to facilitate compliance with TILA, the Bureau’s proposed amendment extends that exemption to disclosures required under proposed §§ 1026.19(e) and (f) and 1026.38(l)(6). The same conforming amendment would be made to comment 2(a)(25)–2. E:\FR\FM\23AUP2.SGM 23AUP2 51142 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules Section 1026.3 Exempt Transactions The Bureau is proposing a partial exemption from the disclosure requirements of proposed § 1026.19(e), (f), and (g) for certain mortgage loans. The Bureau therefore is proposing conforming amendments to § 1026.3(h) to reflect this exemption. The Bureau is also proposing amendments to the commentary to § 1026.3(a) to clarify the current exemption for certain trusts. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 3(a) Business, Commercial, Agricultural, or Organizational Credit TILA section 104(1), 15 U.S.C. 1603(1), excludes from TILA’s coverage extensions of credit to, among others, organizations. Accordingly, § 1026.3(a)(2) provides that Regulation Z does not apply to extensions of credit to other than a natural person. The Bureau is proposing to revise comments 3(a)–9 and –10 to clarify that credit extended to certain trusts for tax or estate planning purposes is considered to be extended to a natural person rather than to an organization and, therefore, is not exempt from the coverage of Regulation Z under § 1026.3(a)(2). Existing comment 3(a)–10 discusses land trusts, a relatively uncommon way of structuring consumer credit in which the creditor holds title to the property in trust and executes the loan contract as trustee on behalf of the trust. The comment states that, although a trust is technically not a natural person, such arrangements are subject to Regulation Z because ‘‘in substance (if not form) consumer credit is being extended.’’ This proposal amends comment 3(a)–10 to extend this rationale to more common forms of trusts. Specifically, proposed comment 3(a)–10 notes that consumers sometimes place their assets in trust with themselves as trustee(s), and with themselves or themselves and their families or other prospective heirs as beneficiaries, to obtain certain tax benefits and to facilitate the future administration of their estates. Under this proposal, revised comment 3(a)–10 states that Regulation Z applies to credit that is extended to such a trust, even if the consumer who is both trustee and beneficiary executes the loan documents only in the capacity of the trustee, for the same reason the existing comment notes with respect to land trusts: Such transactions are extensions of consumer credit in substance, if not in form. Comment 3(a)–9 would be revised to cross-reference comment 3(a)–10. 3(h) Partial Exemption for Certain Mortgage Loans The Bureau is proposing a new § 1026.3(h) to provide an exemption VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 from proposed § 1026.19(e), (f), and (g) for transactions that satisfy several criteria associated with certain housing assistance loan programs for low- and moderate-income persons. As discussed below, proposed § 1026.19(e) and (f) establishes the requirement to provide the new integrated disclosures for transactions secured by real property, other than reverse mortgages, and proposed § 1026.19(g) establishes the requirement to provide a special information booklet for those transactions. The partial exemption in proposed § 1026.3(h) parallels § 1024.5(c)(3), discussed above. The exemptions are designed to create consistency with Regulation X and to codify a disclosure exemption previously granted by HUD. Thus, under the two proposed exemptions, lenders would be exempt from providing the RESPA-mandated closing cost disclosures for federally related mortgage loans that satisfy the exemption’s conditions, even if the transaction otherwise would be subject to RESPA. The Bureau proposes this exemption pursuant to its authority under TILA section 105(a) and (f), RESPA section 19(a), Dodd-Frank Act section 1032(a), and, for residential mortgage loans, Dodd-Frank Act section 1405(b). The Bureau believes that the proposed exemption will create consistency with Regulation X and therefore facilitate compliance with TILA and RESPA. In addition, the Bureau believes the special disclosure requirements that covered persons must meet to qualify for the proposed exemption will help ensure that the features of these mortgage transactions are fully, accurately. and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with these mortgage transactions, consistent with DoddFrank Act section 1032(a). The proposed exemption will also improve consumer awareness and understanding of transactions involving residential mortgage loans, which is in the interest of consumers and the public, consistent with Dodd-Frank Act section 1405(b). The Bureau has considered the factors in TILA section 105(f) and believes that, for the reasons discussed above, an exception is appropriate under that provision. Specifically, the Bureau believes that the proposed exemption is appropriate for all affected borrowers, regardless of their other financial arrangements and financial sophistication and the importance of the loan to them. Similarly, the Bureau believes that the proposed exemption is PO 00000 Frm 00028 Fmt 4701 Sfmt 4702 appropriate for all affected loans, regardless of the amount of the loan and whether the loan is secured by the principal residence of the consumer. Furthermore, the Bureau believes that, on balance, the proposed exemption will simplify the credit process without undermining the goal of consumer protection or denying important benefits to consumers. The proposed exemption applies only to transactions secured by a subordinate lien. For the same reasons discussed in the section-by-section analysis to proposed § 1024.5(c)(3), the Bureau requests comment on whether the exemption in proposed § 1026.3(h) should extend to first liens. In addition, for the reasons discussed above, the Bureau seeks comment on whether requirements and features that may serve as interest substitutes should be considered ‘‘interest’’ and, therefore, should be impermissible for loans seeking to qualify for this partial exemption. The Bureau also seeks comment on the types of loan requirements and features that should be similarly deemed ‘‘interest’’ for purposes of this partial exemption. Alternatively, the Bureau seeks comment on whether such requirements and features should be permissible within the exemption on the grounds that the disclosure required by proposed § 1026.3(h)(6) is sufficient to inform consumers of such loan terms. Proposed comments provide additional guidance. Proposed comment 3(h)–1 notes that transactions that meet the requirements of § 1026.3(h) are exempt from only the integrated disclosure requirements and not from any other applicable requirement of Regulation Z. The comment further clarifies that § 1026.3(h)(6) requires the creditor to comply with the disclosure requirements of § 1026.18, even if the creditor would not otherwise be subject to that section because of proposed § 1026.19(e), (f), and (g). In addition, the comment notes that the consumer also has the right to rescind the transaction under § 1026.23, to the extent that provision is applicable. Proposed comment 3(h)–2 explains that the conditions that the transaction not require the payment of interest under § 1026.3(h)(3) and that repayment of the amount of credit extended be forgiven or deferred in accordance with § 1026.3(h)(4) must be evidenced by terms in the credit contract. The comment further clarifies that, although the other conditions need not be reflected in the credit contract, the creditor must retain evidence of compliance with those requirements, as required by § 1026.25(a). The Bureau E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules solicits comment on whether this exemption should be adopted in Regulation Z. Section 1026.4 Finance Charge TILA’s Approach to the Finance Charge Section 106(a) of TILA defines the finance charge as ‘‘the sum of all charges, payable directly or indirectly by the person to whom the credit is extended, and imposed directly or indirectly by the creditor as an incident to the extension of credit,’’ excluding charges of a type payable in a comparable cash transaction. 15 U.S.C. 1605(a). Despite this broad general definition of the finance charge, TILA contains numerous exceptions. For example, TILA generally includes in the finance charge credit insurance and property and liability insurance charges or premiums, but it also excludes such amounts if certain conditions are met. 15 U.S.C. 1605(b), (c); TILA section 106(b), (c). TILA also specifically excludes from the finance charge certain charges related to the perfecting of the security interest, and various fees in connection with loans secured by real property, such as title examination fees, title insurance premiums, fees for preparation of loan-related documents, escrows for future payment of taxes and insurance, notary fees, appraisal fees, pest and flood-hazard inspection fees, and credit report fees. 15 U.S.C. 1605(d), (e); TILA section 106(d), (e). Such amounts would otherwise be included in the finance charge under the general definition. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Current Regulatory Approach to the Finance Charge Current § 1026.4 implements TILA section 106 by largely mirroring the statutory definition of finance charge and the specific exclusions from that definition. In addition, § 1026.4 contains certain exclusions from the finance charge that are not specifically listed in the statute. For example, current § 1026.4(c) specifically excludes application fees and forfeited interest from the definition of finance charge, whereas TILA does not. There are longstanding concerns about the ‘‘some fees in, some fees out’’ approach to the finance charge in TILA and Regulation Z. Early concerns about the problems with this approach to the finance charge are outlined in the Board-HUD Joint Report. Board-HUD Joint Report at 10. The Board-HUD Joint Report states that a fundamental problem with the finance charge is that the ‘‘cost of credit’’ has different meanings from the perspective of the consumer and the creditor. Id. From the VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 creditor’s perspective, the cost of credit may mean the interest and fee income that the creditor receives in exchange for providing credit to the consumer. Id. However, the consumer views the cost of credit as what the consumer pays for the credit, regardless of the persons to whom such amounts are paid. Id. The current ‘‘some fees in, some fees out’’ approach to the finance charge largely reflects the creditor’s perspective, not the consumer’s. In its 2009 Closed-End Proposal, the Board proposed to broaden the definition of the finance charge in closed-end transactions secured by real property or a dwelling, citing the BoardHUD Joint Report and consumer testing conducted by the Board as support for an expanded approach to the finance charge. 74 FR 43232, 43243 (Aug. 26, 2009). First, the Board reasoned that excluding certain fees from the finance charge undermines the effectiveness of the APR as a measure of the true cost of credit. Id. Second, the Board’s 2009 Closed-End Proposal stated that the numerous exclusions from the finance charge encourage lenders to shift the cost of credit to excluded fees. Id. This practice undermines the usefulness of the APR and has resulted in the creation of new so-called ‘‘junk fees,’’ such as fees for preparing loan-related documents, which are not part of the finance charge. Third, the Board cited the complexity of the implementing rules, which create significant regulatory burden and litigation risk, as support for a simplified definition of the finance charge. Id. In light of these concerns about the finance charge, for closed-end credit transactions secured by real property or a dwelling, the Board’s 2009 Closed-End Proposal would have replaced the ‘‘some fees in, some fees out’’ approach to the finance charge with a more inclusive approach to ensure that the finance charge and corresponding APR disclosed to consumers provides a more complete and useful measure of the cost of credit. The Board did not finalize its proposal prior to the transfer of its TILA rulemaking authority to the Bureau. The Bureau’s Proposal For the reasons set forth in the Board’s 2009 Closed-End Proposal, discussed above, proposed § 1026.4 revises the test for determining the finance charge. Except where otherwise noted, the Bureau’s proposal generally mirrors the Board’s 2009 Closed-End Proposal. Pursuant to its authority under TILA section 105(a) and (f), Dodd-Frank Act section 1032(a), and, for residential mortgage loans, DoddFrank Act section 1405(b), the Bureau is PO 00000 Frm 00029 Fmt 4701 Sfmt 4702 51143 proposing to amend § 1026.4 to replace the current ‘‘some fees in, some fees out’’ approach to the finance charge with a simpler, more inclusive test based on the general definition of finance charge in TILA section 106(a). 15 U.S.C. 1601 note; 1604(a), (f); 12 U.S.C. 5532(a). The proposed changes to § 1026.4 apply to closed-end transactions secured by real property or a dwelling, and are not limited to transactions subject to proposed § 1026.19(e) and (f). Under proposed § 1026.4, the current exclusions from the finance charge would be largely eliminated, for closedend transactions secured by real property or a dwelling. Specifically, under the proposed test, a fee or charge is included in the finance charge if it is (1) ‘‘payable directly or indirectly by the consumer’’ to whom credit is extended, and (2) ‘‘imposed directly or indirectly by the creditor as an incident to or a condition of the extension of credit.’’ However, the finance charge would continue to exclude fees or charges paid in comparable cash transactions. The proposed rule also retains a few narrow exclusions from the finance charge. As discussed below, proposed § 1026.4 continues to exclude from the finance charge late fees and similar default or delinquency charges, seller’s points, amounts required to be paid into escrow accounts if the amounts would not otherwise be included in the finance charge, and premiums for property and liability insurance if certain conditions are met. The Bureau proposes § 1026.4 pursuant to its authority under TILA section 105(a) and (f), Dodd-Frank-Act section 1032(a), and, for residential mortgage loans, Dodd-Frank Act section 1405(b). The Bureau has considered the purposes for which it may exercise its authority under TILA section 105(a) and, based on that review, believes that the proposed adjustments and exceptions are appropriate. The proposal would effectuate TILA’s purpose by better informing consumers of the total cost of credit and prevent circumvention or evasion of the statute through the unbundling or shifting of the cost of credit from items that are included in the finance charge to fees or charges that are currently excluded from the finance charge. The Bureau has considered the factors in TILA section 105(f) and believes that, for the reasons discussed above, an exception is appropriate under that provision. Specifically, the Bureau believes that the proposed exemption is appropriate for all affected borrowers, regardless of their other financial arrangements and financial sophistication and the E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51144 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules importance of the loan to them. Similarly, the Bureau believes that the proposed exemption is appropriate for all affected loans, regardless of the amount of the loan and whether the loan is secured by the principal residence of the consumer. Furthermore, the Bureau believes that, on balance, the proposed exemption will simplify the credit process without undermining the goal of consumer protection or denying important benefits to consumers. A more inclusive approach to the finance charge may improve the process of mortgage lending by enhancing consumer understanding of the finance charge and APR, and will also reduce compliance costs. The Bureau does not believe that the proposed exemptions undermine the goal of consumer protection; rather they promote and are more consistent with the overall purposes of TILA. Based on that review, the Bureau believes that treating the fees that are currently exempt as part of the finance charge, for closed-end transactions secured by real property or a dwelling, is appropriate. In addition, for the reasons set forth above, the proposed changes to the finance charge will ensure that the features of consumer credit transactions secured by real property are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the product or service, in light of the facts and circumstances, consistent with section 1032(a) of the Dodd-Frank Act. Finally, for closed-end transactions secured by real property or a dwelling that are also residential mortgage loans as defined in TILA section 103(cc)(5), the Bureau proposes § 1026.4 pursuant to its authority under Dodd-Frank Act section 1405(b). For the reasons set forth above, including avoiding consumer confusion and preventing the unbundling of the cost of credit, the Bureau believes this proposed modification may improve consumer understanding, and therefore is in the interest of consumers and the public. Industry feedback in response to the Bureau’s Small Business Review Panel Outline raised concerns about the usefulness of the proposed expansion of the finance charge in light of the Bureau’s proposal to deemphasize the finance charge and APR in the disclosures provided to consumers within three days of the consumers’ application and prior to consummation, as discussed below in the section-bysection analysis for proposed §§ 1026.37(l) and 1026.38(o). The Bureau has considered this feedback in developing the proposed rule, but VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 nevertheless believes that, in addition to benefiting industry by simplifying the finance charge and APR calculation, the proposed approach could provide important benefits to consumers in the form of an APR that better reflects the true cost of credit. The Bureau intends to develop supplemental educational materials to further explain how to use the finance charge and APR in comparing loan costs over the long term. Accordingly, the Bureau’s proposal to remove exclusions from the finance charge is one of several ways the Bureau intends to improve the disclosure as a useful measure for consumers. The Bureau recognizes that the proposed more inclusive finance charge could affect coverage under other laws, such as higher-priced mortgage loan and HOEPA protections, and that a more inclusive finance charge has implications for the HOEPA, Escrow, Appraisals, and Ability to Repay rulemakings identified in part II.F above. Absent further action by the Bureau, the more inclusive finance charge would: • Cause more closed-end loans to trigger HOEPA protections for high-cost loans.120 The protections include 120 Under the Dodd-Frank Act, a loan is defined as a high-cost mortgage, subject to HOEPA protections, if the total points and fees payable in connection with the transaction exceed specified thresholds (points and fees coverage test); the transaction’s APR exceeds the applicable APOR by a specified threshold (APR coverage test); or the transaction has certain prepayment penalties. First, under the points and fees coverage test, the definition of points and fees includes, as its starting point, all items included in the finance charge. Therefore, a potential consequence of the more inclusive finance charge is that more loans might exceed HOEPA’s points and fees threshold because new categories of charges would be included in the calculation of total points and fees for purposes of that coverage test. In addition, under the APR coverage test, the more inclusive finance charge could result in some additional loans being covered as high-cost mortgages because closed-end loans would have higher APRs. There are currently some differences between APR and the average prime offer rate, which is generally calculated using data that includes only contract interest rate and points but not other origination fees. See 75 FR 58660– 58662. The current APR includes not only discount points and origination fees but also other charges the creditor retains and certain third-party charges. The more inclusive finance charge, which would also include most third-party charges, would widen the disparity between the APR and APOR and cause more closed-end loans to qualify as a high-cost mortgage. The Bureau notes that substantially similar implications would apply to each respective rulemaking in which coverage depends on comparing a transaction’s APR to the applicable APOR. In addition, the Bureau notes that the DoddFrank Act expands HOEPA to apply to more types of mortgage transactions, including purchase money mortgage loans and open-end credit plans secured by a consumer’s principal dwelling. However, the proposed more inclusive finance charge applies only to closed-end loans. Therefore, the Bureau notes that the more inclusive finance charge would not affect the potential coverage of open-end credit plans under HOEPA. PO 00000 Frm 00030 Fmt 4701 Sfmt 4702 special disclosures, restrictions on certain loan features and lender practices, and strengthened consumer remedies. The more inclusive finance charge would affect both the points and fees test (which currently uses the finance charge as its starting point) and the APR test (which under Dodd-Frank will depend on comparisons to APOR) for defining what constitutes a high-cost loan. • Cause more loans to trigger DoddFrank Act requirements to maintain escrow accounts for first-lien higherpriced mortgage loans. Coverage depends on comparing a transaction’s APR to the applicable APOR. • Cause more loans to trigger DoddFrank Act requirements to obtain one or more interior appraisals for ‘‘higherrisk’’ mortgage loans. Coverage depends on comparing a transaction’s APR to the applicable APOR. • Reduce the number of loans that would otherwise be ‘‘qualified mortgages’’ under the Dodd-Frank Act Ability to Repay requirements, given that qualified mortgages cannot have points and fees in excess of three percent of the loan amount. Also, more loans could be required to comply with separate underwriting requirements applicable to higher-priced balloon loans, and could be ineligible for certain exceptions authorizing creditors to offer prepayment penalties on fixed-rate, non-higher-priced qualified mortgage loans.121 Again, status as a higherpriced mortgage loan depends on comparing APR to APOR. During the Small Business Review Panel and in industry feedback provided in response to the Small Business Review Panel Outline, concerns were expressed that one unintended consequence of a more inclusive definition of finance charge could be that more loans would qualify as high-cost loans subject to additional requirements under TILA section 129 and under similar State laws. See Small Business Review Panel Report at 25. Industry feedback generally suggests that the proposed revisions to the 121 Specifically, the Dodd-Frank Act generally prohibits prepayment penalties on closed-end, dwelling-secured mortgage loans, except on fixedrate qualified mortgages that are not higher-priced mortgage loans. For balloon loans, the Dodd-Frank Act generally requires creditors to assess consumers’ ability to repay a higher-priced loan with a balloon payment using the scheduled payments required under the terms of the loan including any balloon payment, and based on income and assets other than the dwelling itself. Only consumers with substantial income or assets would likely qualify for such a loan. A separate Dodd-Frank Act provision authorizing balloon loans made by creditors that operate predominantly in rural or underserved areas is not affected by the finance charge issue. E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 finance charge be viewed in the context of other rulemakings implementing the Dodd-Frank Act revisions to the thresholds for high-cost mortgages and qualified mortgage determinations, because of the relationship between the APR and those thresholds and because any changes to the APR calculation could be costly to implement and should be done in conjunction with other related changes. Based on this feedback and consistent with the Small Business Review Panel’s recommendation, the Bureau has considered the requirements of TILA section 129 (high-cost mortgages) and TILA section 129C (qualified mortgages), including the Dodd-Frank Act amendments to those provisions, as well as State predatory lending laws, in proposing the amendments to § 1026.4. For example, the Board previously proposed two means of reconciling an expanded definition of the finance charge with existing thresholds for loan APR and points and fees, and the Bureau expects to seek comment on potential trigger modifications in each proposal it issues as discussed below. The Bureau will consider any final or proposed rules implementing those provisions prior to issuing a final rule on this issue. See Small Business Review Panel Report at 30. As described in the § 1022 analysis below, the Bureau is seeking data that will allow it to perform a quantitative analysis to determine the impacts of a broader finance charge definition on APR thresholds for HOEPA and various other regimes.122 The Bureau seeks comment on its plans for data analysis, as well as additional data and comment on the potential impacts of a broader finance charge definition and potential modifications to the triggers. The Bureau is carefully weighing whether modifications may be warranted to the thresholds for particular regulatory regimes to approximate coverage levels under the current definition of finance charge. It is not clear from the legislative history of the Dodd-Frank Act whether Congress was aware of the Board’s 2009 ClosedEnd Proposal to expand the current 122 In its 2009 Closed-End Proposal, the Board relied on a 2008 survey of closing costs conducted by Bankrate.com that contains data for hypothetical $200,000 loans in urban areas. Based on that data, the Board estimated that the share of first-lien refinance and home improvement loans that are subject to HOEPA would increase by .6 percent if the definition of finance charge was expanded. The Bureau is considering the 2010 version of that survey, but as described below the Bureau is also seeking additional data that would provide more representative information regarding closing and settlement costs that would allow for a more refined analysis of the proposals. VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 definition of finance charge or whether Congress considered the interplay between an expanded definition and coverage under various thresholds addressed in the Dodd-Frank Act. In light of this fact and the concerns raised by commenters on the Board’s 2009 Closed-End Proposal regarding effects on access to credit, the Bureau believes that it is appropriate to explore alternatives to implementation of the expanded finance charge definition for purposes of coverage under HOEPA and other regulatory regimes. For example, the Board previously proposed two means of reconciling an expanded definition of the finance charge with existing APR-based thresholds. On several occasions, the Board proposed to replace the APR with a ‘‘transaction coverage rate’’ as a transaction-specific metric a creditor compares to the average prime offer rate to determine whether the transaction meets the higher-priced loan threshold in § 1026.35(a). See 76 FR 27390, 27411–12 (May 11, 2011); 76 FR 11598, 11608–09 (Mar. 2, 2011); 75 FR 58539, 58660–61 (Sept. 24, 2010).123 Although adopting the TCR would mean that lenders would have to calculate one metric for purposes of disclosure and another for purposes of regulatory coverage, both metrics would be simpler to compute than APR today using the current definition of finance charge.124 In addition, the Board proposed to amend § 1026.32 to retain the existing treatment of certain charges in the definition of points and fees for purposes of determining HOEPA coverage. 75 FR at 58539, 58636–38 (Sept. 24, 2010). The Bureau has proposed language to adopt the transaction coverage rate and to exclude the additional charges from the HOEPA points and fees test in its 2012 HOEPA 123 The transaction coverage rate would be determined in accordance with the applicable rules of Regulation Z for the calculation of the annual percentage rate for a closed-end transaction, except that the prepaid finance charge for purposes of calculating the transaction coverage rate includes only charges that will be retained by the creditor, mortgage broker, or affiliates of either. The wording of the Board’s proposed definition of ‘‘transaction coverage rate’’ varied slightly between the 2010 Mortgage Proposal and the 2011 Escrows Proposal as to treatment of charges retained by mortgage broker affiliates. In its 2012 HOEPA Proposal, the Bureau proposes to use the 2011 Escrows Proposal version, which would include charges retained by broker affiliates. The Bureau believes that this approach is consistent with the rationale articulated by the Board in its earlier proposals and with certain other parts of the Dodd-Frank Act that distinguish between charges retained by the creditor, mortgage broker, or affiliates of either company. See, e.g., Dodd-Frank Act sections 1403, 1411(a). 124 To the extent that lenders believe that it is burdensome to calculate two metrics, they could continue to use APR for both purposes. PO 00000 Frm 00031 Fmt 4701 Sfmt 4702 51145 Proposal. The Bureau has proposed language to adopt the transaction coverage rate and to exclude the additional charges from the HOEPA points and fees test in its 2012 HOEPA Proposal. The Bureau seeks comment on these prior proposals and other potential methods of addressing the impact of a more inclusive approach to the finance charge on other regimes. The Bureau also seeks comment on the potential advantages and disadvantages to both consumers and creditors of using different metrics for purposes of disclosures and for purposes of determining coverage of various regulatory regimes. With regard to the transaction coverage rate, the Bureau believes that the potential compliance burden is mitigated by the fact that both TCR and APR would be easier to compute than the APR today using the current definition of finance charge. However, the Bureau seeks comment on the issue generally and in particular on whether use of the TCR or other trigger modifications should be optional, so that creditors could use the broader definition of finance charge to calculate APR and points and fees triggers if they would prefer. The Board’s 2010 Mortgage Proposal structured TCR as a mandatory requirement out of concern that identical transactions extended by two different creditors could have inconsistent coverage under regulations governing higher-priced mortgage loans, but similarly sought comment on the issue. Finally, the Bureau also seeks comment on the timing of implementation. There is no statutory deadline for issuing final rules to integrate the mortgage disclosures under TILA and RESPA, and the Bureau expects that it may take some time to conduct quantitative testing of the forms prior to issuing final rules. However, the Bureau expects to issue several final rules to implement provisions of title XIV of the Dodd-Frank Act by January 21, 2013, that address thresholds for compliance with various substantive requirements under HOEPA and other Dodd-Frank Act provisions. In some cases the Dodd-Frank Act requires that regulations implementing title XIV take effect within one year of issuance. The Bureau believes that it would be preferable to make any change to the definition of finance charge and any related adjustments in regulatory triggers take effect at the same time, in order to provide for consistency and efficient systems modification. The Bureau also believes that it may be advantageous to consumers and creditors to make any such changes at E:\FR\FM\23AUP2.SGM 23AUP2 51146 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules the same time that creditors are implementing new title XIV requirements involving APR and points and fees thresholds, rather than waiting until the Bureau finalizes other aspects of this rulemaking relating to disclosures. If the Bureau expands the definition of finance charge, this approach would likely provide the benefits to consumers of the final rule at an earlier date as well as avoid requiring creditors to make two sets of systems and procedures changes focused on determining which loans trigger particular regulatory requirements. However, given that implementation of the disclosurerelated elements of this proposal will also require systems and procedures changes, there may be advantages to delaying any change in the definition of finance charge and any related adjustments to regulatory triggers until those changes occur. The Bureau therefore seeks comment on whether to sequence any change in the proposal considering the benefits and costs to both consumers and industry of both approaches. In light of these implementation issues, the Bureau wishes to evaluate comments on the cumulative effect of an expanded definition of the finance charge simultaneously with comments on the rules to implement title XIV. The Bureau therefore is providing a comment period of 60 days for the proposed amendments to § 1026.4, rather than the 120-day comment period provided for all other aspects of this proposed rule other than § 1026.1(c). The Bureau believes a shorter comment period is particularly appropriate given that this aspect of the proposal largely mirrors the proposed changes to § 1026.4 in the Board’s 2009 Closed-End Proposal. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 4(a) Definition Section 1026.4 states the basic test for the finance charge, as set forth in TILA section 106(a), and specifies that it does not include types of charges payable in a comparable cash transaction. Consistent with the Board’s 2009 Closed-End Proposal, the Bureau is proposing new comment 4(a)–6 to clarify that, in a transaction where there is no seller, such as a refinancing of an existing extension of credit described in § 1026.20(a), there is no comparable cash transaction and, therefore, the exclusion from the finance charge in proposed § 1026.4(a) for types of charges payable in a comparable cash transaction does not apply to such transactions. The Bureau solicits comment on this proposed clarification. VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 4(a)(2) Special Rule; Closing Agent Charges Section 1026.4(a)(2) provides a special rule for the treatment of closing agent charges in determining the finance charge. That section excludes from the finance charge fees charged by a third party that conducts a loan closing unless the creditor (1) requires the particular service for which the consumer is charged; (2) requires the imposition of the charge; or (3) retains a portion of the third-party charge. Under proposed § 1026.4(a)(2), this exclusion is inapplicable to closed-end transactions secured by real property or a dwelling. Under the basic test for the finance charge in TILA section 106(a), many closing agent charges described in § 1026.4(a)(2) would typically be part of the finance charge because creditors generally require closing agents to conduct closings who, in turn, impose various fees on the consumer. As the Board described in its 2009 Closed-End Proposal, in some cases, the creditor clearly requires the particular fee charged by the closing agent but that, in other cases, it is not clear whether a charge is specifically required by the creditor. A case-by-case determination as to whether the creditor requires the particular service charged by a closing agent would result in significant burden and risk for consumers and, likely, inconsistent treatment of such fees, which would undermine the purpose of disclosing the finance charge to consumers. 74 FR at 43246. For these reasons, proposed § 1026.4(a)(2) adopts a bright-line rule that includes in the finance charge fees charged by closing agents, including fees of other third parties hired by closing agents to perform particular services, assuming those fees meet the general definition of finance charge and that no other exclusion applies. Proposed comment 4(a)(2)–3 clarifies that comments 4(a)(2)–1 and 4(a)(2)–2 do not apply to closed-end transactions secured by real property or a dwelling. As the Board noted in its 2009 ClosedEnd Proposal, the inclusion of thirdparty charges in the finance charge may create some risk that creditors will understate the finance charge if the creditor does not know that a charge is imposed by a third party or the particular amount of such charge. 74 FR at 43246. Some industry commenters in response to the 2009 Closed-End Proposal supported the inclusion of all closing agent charges in the finance charge as a means of simplifying compliance. Other industry commenters opposed the inclusion of all closing agent charges in the finance charge due PO 00000 Frm 00032 Fmt 4701 Sfmt 4702 to the creditor’s lack of control over these charges, and also because including these amounts in the finance charge makes creditors responsible for settlement fees under TILA. The Bureau has considered these comments in developing the proposed rule, but believes that a determination of whether a creditor requires the particular service for which the consumer is charged results in significant confusion for consumers and inconsistent treatment of such fees. In addition, as discussed below, the Dodd-Frank Act added to TILA a requirement that creditors disclose aggregate settlement charges, so that creditors now have a statutory disclosure responsibility for such charges under TILA. Furthermore, creditors are responsible for disclosing settlement charges subject to certain estimation requirements and limitations on increases in settlement costs pursuant to HUD’s 2008 RESPA Final Rule and proposed § 1026.19(e), discussed below. The Bureau also notes that the risk of understating the finance charge is lessened by TILA section 106(f), 15 U.S.C. 1605(f), current § 1026.18(d)(1), and proposed § 1026.38(o)(2), which provide that a disclosed finance charge is treated as accurate if it does not vary from the actual finance charge by more than $100 or is greater than the amount required to be disclosed. The Bureau requests comment on the extent to which settlement costs increase from the good faith estimate to closing and whether the Bureau should increase the finance charge tolerance for closed-end transactions secured by real property or a dwelling in light of the proposal to include third-party charges in the finance charge, and the amount of any such increase. In addition, the Board’s 2009 ClosedEnd Proposal stated that excluding certain fees from the finance charge because they are voluntary or optional is inconsistent with the statutory objective of disclosing the ‘‘cost of credit,’’ including charges imposed ‘‘as an incident to the extension of credit.’’ 74 FR at 43246. As the Board noted, an assumption underlying the exclusion from the finance charge for certain voluntary or optional charges is that they are not ‘‘imposed directly or indirectly by the creditor.’’ Id. However, some charges may be imposed by the creditor even if the services for which the fee is imposed are not specifically required by the creditor. Id. For example, a creditor may require the use of a closing agent, but may not impose or require certain fees or services imposed by that closing agent for which E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules the consumer is charged, such as administration fees for voluntary escrow accounts. Excluding such charges from the finance charge conflicts with the statutory purpose of including charges that are imposed ‘‘as an incident to the extension of credit.’’ The Board historically interpreted the definition of ‘‘finance charge’’ as not dependent on whether a charge is voluntary or required. See, e.g., 61 FR 49237, 49239 (Sept. 19, 1996) (‘‘The Board has generally taken a case by case approach in determining whether particular fees are ‘finance charges’ and does not interpret Regulation Z to automatically exclude all ‘voluntary’ charges from the finance charge.’’). This approach is reflected in current Regulation Z’s treatment of voluntary credit insurance premiums and debt cancellation fees, which are by definition voluntary, as excluded from the finance charge only under certain circumstances. This special rule presupposes that voluntary credit insurance and debt cancellation charges would be included in the finance charge under the general definition. Furthermore, excluding certain fees from the finance charge because they are voluntary or optional requires a factual determination, which is not practical in all cases since it may be difficult to determine whether a fee or charge is truly voluntary. The Board’s 2009 Closed-End Proposal cited the current provisions addressing whether a charge for credit insurance is optional as an example of an approach to defining a voluntariness test that has proven unsatisfactory. Id. For this reason, the Bureau proposes a bright-line rule to include in the finance charge both voluntary and required charges that are imposed by the creditor to avoid factbased analysis and improve consistency in disclosure of the finance charge and APR. The Board cited as another basis for the current exclusions from the finance charge the assumption that creditors cannot know the amounts of voluntary or optional charges at the time the finance charge and APR disclosures must be provided to consumers. Id. However, like the Board, the Bureau believes that creditors know the amounts of their own voluntary charges, if any, and that creditors know or can readily determine voluntary charges when disclosing the finance charge and APR to consumers at least three business days prior to consummation. As a practical matter, most voluntary fees would be excluded from the finance charge because they are also payable in a comparable cash transaction (e.g., home warranty fees). The Board cited VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 voluntary credit insurance premiums as the primary voluntary third-party charge in connection with a mortgage transaction that is not otherwise excluded from the finance charge, noting that creditors generally solicit consumers for this insurance and that, historically, creditors had to disclose the premium for voluntary credit insurance to exclude such amounts from the finance charge. However, the Bureau solicits comment on whether there are voluntary third-party charges that would be included in the finance charge under the proposed more-inclusive approach the amounts of which cannot be determined three business days before consummation. The Bureau also recognizes that, within three business days of receiving the consumer’s application, creditors may not know what voluntary or optional charges the consumer will incur. Regulation Z generally permits creditors to rely on reasonable assumptions regarding voluntary or optional charges and label those disclosures as estimates pursuant to § 1026.17(c) and its commentary. The Bureau requests comment on whether further guidance is required regarding reasonable assumptions for the voluntary or optional charges. 4(b) Examples of Finance Charges The Bureau proposes to amend comment 4(b)-1 to be consistent with proposed § 1026.4(g), which provides that the exclusions from the finance charge under § 1026.4(a)(2) and (c) through (e), other than § 1026.4(c)(2), (c)(5), (c)(7)(v), and (d)(2), do not apply to closed-end transactions secured by real property or a dwelling, as discussed below. 4(c) Charges Excluded From the Finance Charge The Bureau proposes to amend § 1026.4(c), which lists specific exclusions from the finance charge, to be consistent with proposed § 1026.4(g). Pursuant to proposed § 1026.4(g), the exclusions in § 1026.4(c), other than the exclusion for late fees, exceeding a credit limit, and default, delinquency, or similar charges, seller’s points, and escrowed items that are otherwise not included in the finance charge, would not apply to closed-end transactions secured by real property or a dwelling. The Bureau also proposes to amend the commentary to § 1026.4(c) to be consistent with § 1026.4(g). 4(c)(2) The Bureau proposes to retain the exclusion from the finance charge under § 1026.4(c)(2) of fees for actual PO 00000 Frm 00033 Fmt 4701 Sfmt 4702 51147 unanticipated late payment, exceeding a credit limit, or for delinquency, default, or a similar occurrence. Although the Bureau is generally proposing a more inclusive approach to the finance charge through proposed § 1026.4, the charges described in § 1026.4(c)(2) should be excluded from the finance charge because they are incurred, if at all, only after consummation of the transaction. At the time a creditor must disclose the finance charge and other items affected by the finance charge, the creditor cannot know whether or how many times such charges may be imposed. 4(c)(5) The Bureau proposes to retain the exclusion from the finance charge under § 1026.4(c)(5) of seller’s points. Seller’s points include any charges imposed by the creditor upon the non-creditor seller of property for providing credit to the buyer or for providing credit on certain terms. Although the Bureau is generally proposing a more inclusive approach to the finance charge, the Bureau believes that it is appropriate to continue to exclude seller’s points from the finance charge because seller’s points are not payable by the consumer and because the extent to which seller’s points are passed on to the consumer in the form of a higher sales price is unknown. However, the Bureau requests comment on whether seller’s points should be included in the finance charge for closed-end transactions secured by real property or a dwelling. In particular, the Bureau requests comment on the frequency with which seller’s points are passed on to the borrower through a higher sales price. In addition, although the scope of the changes to § 1026.4 under this proposal is limited to closedend transactions secured by real property or a dwelling, the Bureau solicits comment on the potential ramifications of including seller’s points in the finance charge for other types of credit. 4(c)(7) Real-Estate Related Fees Section 106(e) of TILA, 15 U.S.C. 1605(e), excludes certain charges from the finance charge for credit secured by an interest in real property. This provision is implemented in current § 1026.4(c)(7), which contains exclusions from the finance charge that generally mirror the statute, for transactions secured by real property or in residential mortgage transactions, provided that the fees for such charges are bona fide and reasonable in amount. Specifically, § 1026.4(c)(7) excludes from the finance charge those fees for: title examination, abstract of title, title insurance, property survey, and similar E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51148 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules purposes; preparing loan-related documents, such as deeds, mortgages, and reconveyance or settlement documents; notary and credit report fees; property appraisal or inspections to assess the value or condition of the property prior to closing, including pest-infestation or flood-hazard determination; and amounts required to be paid into escrow or trustee accounts if the amounts would not otherwise be included in the finance charge. These fees fall squarely within the general statutory definition of the finance charge, and their exclusion from the finance charge significantly undermines the purpose of the finance charge as a reflection of the cost of credit since the charges comprise a significant portion of the up-front costs paid by consumers. As noted by some industry commenters to the 2009 Closed-End Proposal, the inclusion of real-estate related fees such as application, appraisal, and credit report fees in the finance would reduce the possibility that a creditor can manipulate the APR by shifting some costs of credit to fees that are currently excluded from the finance charge. Some commenters also noted that these charges are generally known to the creditor early in the loan process. Accordingly, proposed § 1026.4 includes these charges in the finance charge. However, proposed § 1026.4 retains the exclusion from the finance charge in current § 1026.4(c)(7)(v) for amounts required to be paid into escrow or trustee accounts if the amounts would not otherwise be included in the finance charge. For example, homeowner’s insurance premiums that are excluded from the finance charge pursuant to § 1026.4(d)(2) would not be included in the finance charge simply because such premiums will be paid into an escrow account. Under the Board’s 2009 Closed-End Proposal, § 1026.4(c)(7) would have applied only to open-end credit plans secured by real property or open-end residential mortgage transactions. Some commenters interpreted that proposal to mean that amounts required to be paid into escrow or trustee accounts should be included in the finance charge calculation, even if such amounts would not otherwise be included in the finance charge if not paid into an escrow or trustee account. Concerns about including escrowed taxes and insurance in the finance charge were raised during the Small Business Review Panel (see Small Business Review Panel Report at 30), in industry feedback provided in response to the Small Business Review Panel Outline, and in comment letters provided to the Board in response to the VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 2009 Closed-End Proposal. The Small Business Review Panel specifically recommended that escrowed taxes and insurance remain excluded from the finance charge, unless those amounts would otherwise be considered finance charges under the expanded definition. Small Business Review Panel Report at 30. Commenters to the 2009 Closed-End Proposal noted that including escrowed taxes and insurance in the finance charge while excluding those paid outside of escrow may mislead consumers who try to compare escrowed and non-escrowed loans. Commenters also noted that the APR for identical loans could be vastly different because the escrow deposit is calculated based on the date the loan closes and when the next tax payment is due. Based on this feedback and consistent with the Small Business Review Panel’s recommendation, the Bureau is proposing to exclude escrowed taxes and insurance from the finance charge, unless those amounts would otherwise be considered finance charges under the expanded definition. In short, a fee or charge that is not part of the finance charge does not become part of the finance charge merely because it is paid to an escrow account. Accordingly, proposed comment 4(c)(7)–1 clarifies that the exclusion of escrowed amounts under § 1026.4(c)(7)(v) applies to all residential mortgage transactions and to other transactions secured by real estate. The Bureau also proposes other amendments to the commentary to § 1026.4(c)(7) to be consistent with proposed § 1026.4(g). 4(d) Insurance and Debt Cancellation and Debt Suspension Coverage The Bureau proposes to amend § 1026.4(d), which currently excludes from the finance charge, under certain circumstances, voluntary credit insurance premiums, property insurance premiums, and voluntary debt cancellation or debt suspension fees. Consistent with proposed § 1026.4(g), proposed § 1026.4(d) would not exclude from the finance charge credit insurance premiums and debt cancellation or debt suspension fees, for closed-end mortgage transactions. The Bureau also proposes to amend the commentary to § 1026.4(d) to be consistent with § 1026.4(g). 4(d)(1) Voluntary Credit Insurance Premiums 4(d)(3) Voluntary Debt Cancellation or Debt Suspension Fees TILA section 106(b)(7), 15 U.S.C. 1605(b)(7), provides that premiums for PO 00000 Frm 00034 Fmt 4701 Sfmt 4702 credit life, accident, or health insurance written in connection with any consumer credit transaction are part of the finance charge unless (1) the coverage is not a factor in the approval by the creditor of the extension of credit, and this fact is clearly disclosed in writing to the consumer; and (2) to obtain the insurance, the consumer specifically requests the insurance after getting the disclosures. Current § 1026.4(d)(1) and (d)(3) implement this provision by providing that the creditor may exclude from the finance charge any premium for credit life, accident, health or loss-of-income insurance; any charge or premium paid for debt cancellation coverage for amounts exceeding the value of the collateral securing the obligation; or any charge or premium for debt cancellation or debt suspension coverage in the event of loss of life, health, or income or in case of accident, whether or not the coverage is insurance, if (1) the insurance or coverage is not required by the creditor and the creditor discloses this fact in writing, (2) the creditor discloses the premium or charge for the initial term of the insurance or coverage, (3) the creditor discloses the term of insurance or coverage, if the term is less than the term of the credit transaction, and (4) the consumer signs or initials an affirmative written request for the insurance or coverage after receiving the required disclosures. In addition, under § 1026.4(d)(3)(iii), the creditor must disclose, for debt suspension coverage, the fact that the obligation to pay loan principal and interest is only suspended, and that interest will continue to accrue during the period of suspension. Proposed § 1026.4(d)(1) and (3) includes credit insurance and debt cancellation charges in the finance charge for closed-end transactions secured by real property or a dwelling to be consistent with § 1026.4(g). Proposed § 1026.4(d) is consistent with the overall proposed changes to § 1026.4, which remove exclusions from the finance charge, to make the finance charge and APR more accurately reflect the cost of credit. As discussed above, the Bureau does not believe that a rule that excludes fees from the finance charge simply because they are ‘‘voluntary’’ is consistent with the statute, which says that the finance charge include charges ‘‘imposed as an incident to the extension of credit,’’ and that a determination of whether a fee is, in fact, voluntary simply has not been effective. As discussed above and as the Board noted in its 2009 Closed-End Proposal, the current test for defining E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules whether a charge for credit insurance and debt cancellation or suspension coverage is ‘‘voluntary’’ has proven unsatisfactory. See 74 FR at 43246–50. Instead, the Bureau proposes a brightline rule to include in the finance charge premiums for credit insurance and debt suspension fees. The Bureau also proposes to amend the commentary to § 1026.4(d) to be consistent with § 1026.4(g). Concerns were raised in industry feedback in response to the Small Business Review Panel Outline and in comment letters in response to the 2009 Closed-End Proposal that voluntary charges such as credit insurance and debt cancellation fees should not be part of the finance charge because they are not ‘‘imposed’’ by the creditor. Commenters to the 2009 Closed-End Proposal also noted that the products are often sold after consummation of the transaction and that including fees for these products in the finance charge may confuse consumers into believing they are mandatory. The Bureau has considered this feedback in developing the proposed rule, but, as discussed above, believes that whether or not a fee is ‘‘voluntary’’ is not determinative of whether it is imposed as an ‘‘incident to the extension of credit.’’ Concerns that consumers might mistake voluntary charges for mandatory ones due to their inclusion in the finance charge are mitigated by the fact that (1) the TILA disclosures do not itemize the components of the finance charge or APR, and (2) for transactions secured by real property other than reverse mortgages, creditors must indicate that voluntary credit insurance or debt suspension, or cancellation fees are ‘‘optional’’ on the Loan Estimate provided to consumers within three business days of application and the Closing Disclosure provided three business days before consummation pursuant to proposed § 1026.37(g)(4)(ii). Furthermore, existing commentary makes clear that credit insurance and debt cancellation and suspension products requested by the consumer after consummation are not considered written in connection with the credit transaction and therefore do not meet the basic test for inclusion in the finance charge. See comments 4(b)(7) and (b)(8)–2 and 4(b)(1)–2. 4(d)(2) Property Insurance Premiums Section 106(c) of TILA, 15 U.S.C. 1605(c), provides that premiums for insurance, written in connection with any consumer credit transaction, against loss of or damage to property or against liability arising out of the ownership or use of property, should be included in VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 the finance charge unless the creditor provides the consumer with a clear written statement that discloses the cost of such insurance if obtained from or through the creditor, and informs the consumer that he may choose his own insurance provider. Current § 1026.4(d)(2) implements TILA section 106(c), and generally provides that such premiums may be excluded from the finance charge if (1) the insurance may be obtained from a person of the consumer’s choice, and that fact is disclosed to the consumer, and (2) if the coverage is obtained from or through the creditor, the premium for the initial term of insurance coverage is disclosed. The Bureau proposes to retain the current exclusion from the finance charge under § 1026.4(d)(2) for premiums for insurance against loss of or damage to property, or against liability arising out of the ownership or use of property. As the Board noted in its 2009 Closed-End Proposal, property insurance is generally a hybrid product that protects both the value of the creditor’s collateral and the consumer’s equity in the property, such that it is impossible to segregate the premium into the portion that protects the creditor and the portion that protects the consumer. 74 FR at 43250. Although creditors generally require property insurance as a condition to extending credit secured by real property or a dwelling, consumers who do not have mortgages also regularly purchase property insurance to protect themselves from the risk of loss of or damage to property. Id. For these reasons, the Bureau proposes to retain the current exclusion from the finance charge under § 1026.4(d)(2). The Bureau proposes to revise comment 4(d)–8 to conform it to the statutory language providing that, to be excluded from the finance charge, premiums for property insurance obtained ‘‘from or through the creditor’’ must be disclosed to the consumer. 15 U.S.C. 1605(c). Current § 1026.4(d)(2) also provides that if coverage is obtained ‘‘from or through the creditor,’’ the premium for the initial term must be disclosed. However, current comment 4(d)-8 states, in relevant part, that ‘‘[t]he premium or charge must be disclosed only if the consumer elects to purchase the insurance from the creditor; in such a case, the creditor must also disclose the term of the property insurance coverage if it is less than the term of the obligation.’’ (Emphasis added.) Accordingly, the Bureau proposes to amend comment 4(d)–8 to conform to the statutory language. In addition, proposed § 1026.4(d)(2) and comment 4(d)–8 clarify that insurance is available PO 00000 Frm 00035 Fmt 4701 Sfmt 4702 51149 ‘‘from or through a creditor’’ only if it is available from the creditor or the creditor’s ‘‘affiliate,’’ as that term is defined under the Bank Holding Company Act, 12 U.S.C. 1841(k). The Bank Holding Company Act defines an ‘‘affiliate’’ as ‘‘any company that controls, is controlled by, or is under common control with another company.’’ Thus, if the consumer elects to purchase property insurance from a company that controls, is controlled by, or is under common control with the creditor, then the creditor is required to disclose the cost of the insurance and its term, if it is less than the term of the obligation, for the charge to be excluded from the finance charge. 4(e) Certain Security Interest Charges TILA section 106(d), 15 U.S.C. 1605(d), provides exclusions from the finance charge for certain government recording taxes and related fees and the premiums for any insurance in lieu of perfecting a security interest, provided those amounts are disclosed to the consumer. This provision is implemented in current § 1026.4(e). Consistent with the overall approach to largely eliminate the specific exclusions from the finance charge for closed-end transactions secured by real property or a dwelling, the Bureau proposes to amend § 1026.4(e) to eliminate those exclusions, consistent with proposed § 1026.4(g). The Bureau believes this approach will better inform consumers of the total cost of credit and prevent circumvention or evasion of the statute through the unbundling of the cost of credit to fees or charges that are currently excluded from the finance charge. The Bureau also proposes to amend the commentary to § 1026.4(e) to be consistent with § 1026.4(g). 4(g) Special Rule for Closed-End Mortgage Transactions The Bureau proposes new § 1026.4(g), which treats certain fees as part of the finance charge, for closed-end transactions secured by real property or a dwelling. Specifically, proposed § 1026.4(g) provides that the exclusions from the finance charge in § 1026.4(a)(2) (closing agent charges) and (c) (fees for actual unanticipated late payment, exceeding a credit limit, or for delinquency, default, or similar occurrence), (d) (premiums for credit insurance and debt cancellation coverage), and (e) (certain securityinterest charges), other than § 1026.4(c)(2) (late, over-limit, delinquency, default, and similar fees), (5) (seller’s points), (7)(v) (escrowed items that are not included in the finance charge), and (d)(2) (property and E:\FR\FM\23AUP2.SGM 23AUP2 51150 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules liability insurance premiums), do not apply to closed-end transactions secured by real property or a dwelling. As discussed above, the Bureau proposes to retain the exclusion from the finance charge for late, over-limit, delinquency, default and similar fees in § 1026.4(c)(2), seller’s points described in § 1026.4(c)(5), amounts required to be paid into escrow or trustee accounts if the amounts would not otherwise be included in the finance charge described in § 1026.4(c)(7)(v), and property and liability insurance described in § 1026.4(d)(2). Proposed comments 1026.4(g)–1 through –3 provide guidance to creditors on compliance with the special rule for closed-end mortgage transactions provided in proposed § 1026.4(g). Proposed comment 4(g)–1 clarifies that the commentary under the exclusions identified above no longer applies to closed-end credit transactions secured by real property or a dwelling. Proposed comment 4(g)–2 clarifies that third-party charges that meet the definition under § 1026.4(a) and are not otherwise excluded from the finance charge generally are included in the finance charge, whether or not the creditor requires the services for which they are imposed. Proposed comment 4(g)–3 clarifies that charges payable in a comparable cash transaction, such as property taxes and fees or taxes imposed to record the deed evidencing transfer of title to the property from the seller to the buyer, are not part of the finance charge because they would have to be paid even if no credit were extended to finance the purchase. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Section 1026.17 General Disclosure Requirements The Bureau is proposing conforming amendments to current § 1026.17 to reflect the proposed rules regarding the format, content, and timing of disclosures for closed-end transactions secured by real property, other than reverse mortgages subject to § 1026.33. 17(a) Form of Disclosures TILA section 128(b)(1) provides that the disclosures required by TILA sections 128(a) and 106(b), (c), and (d) must be conspicuously segregated from all other terms, data, or information provided in connection with the transaction, including any computations or itemizations. 15 U.S.C. 1638(a), (b)(1); 15 U.S.C. 1605(b), (c), (d). In addition, TILA section 122(a) requires that the ‘‘annual percentage rate’’ and ‘‘finance charge’’ disclosures be more conspicuous than other terms, data, or information provided in connection with the transaction, except information VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 relating to the identity of the creditor. 15 U.S.C. 1632(a). Current § 1026.17(a) implements these statutory provisions. Current § 1026.17(a)(1) implements TILA section 128(b)(1) by providing that closed-end credit disclosures must be grouped together and segregated from all other disclosures and must not contain any information not directly related to the disclosures. Current § 1026.17(a)(2) implements TILA section 122(a) for closed-end credit transactions by requiring that the terms ‘‘annual percentage rate’’ and ‘‘finance charge,’’ together with a corresponding amount or percentage rate, be disclosed more conspicuously than any disclosure other than the creditor’s identity. The Bureau proposes to revise § 1026.17(a) to reflect the fact that special rules apply to the disclosures required by § 1026.19(e), (f), and (g), by providing that § 1026.17(a) is inapplicable to those disclosures. As discussed below, the Bureau is implementing the grouping and segregation requirements of TILA section 128(b)(1) in proposed §§ 1026.37(o) and 1026.38(t). Further, for the reasons set forth in the sectionby-section analysis to proposed §§ 1026.37(l)(3) and 1026.38(o)(2) and (4), the Bureau proposes to use its authority under TILA section 105(a), Dodd-Frank Act section 1032(a), and, for residential mortgage loans, DoddFrank Act section 1405(b), to modify the requirements of TILA section 122(a) for transactions subject to § 1026.19(e) and(f). Proposed comment 17–1 states that, for the disclosures required by proposed § 1026.19(e), (f), and (g), rules regarding the disclosures’ form are found in proposed §§ 1026.19(g), 1026.37(o), and 1026.38(t). In addition, proposed comment 17(a)(1)–7 reflects the special disclosure rules for transactions subject to § 1026.18(g) or (s). 17(b) Time of Disclosures TILA section 128(b)(1) provides that the disclosures required by TILA section 128(a) shall be made before credit is extended. 15 U.S.C. 1638(b)(1). Special timing rules for transactions subject to RESPA are found in TILA section 128(b)(2). 15 U.S.C. 1638(b)(2). Current § 1026.17(b) implements TILA section 128(b)(1) by requiring creditors to make closed-end credit disclosures before consummation. The special timing rules for transactions subject to RESPA are implemented in current § 1026.19(a). As discussed below, the Bureau is proposing special timing rules for the disclosures required by proposed § 1026.19(e), (f), and (g) in those provisions. Proposed § 1026.17(b) PO 00000 Frm 00036 Fmt 4701 Sfmt 4702 reflects these special rules by providing that § 1026.17(b) is inapplicable to the disclosures required by § 1026.19(e), (f), and (g). Proposed comment 17–1 states that, for to the disclosures required by § 1026.19(e), (f), and (g), rules regarding timing are found in those sections. 17(c) Basis of Disclosures and Use of Estimates 17(c)(1) Current § 1026.17(c)(1) requires that the disclosures that creditors provide pursuant to subpart C of Regulation Z reflect the terms of the legal obligation between the parties. The commentary to current § 1026.17(c)(1) provides guidance to creditors regarding the disclosure of specific transaction types and loan features. As discussed more fully in the section-by-section analysis to proposed §§ 1026.37 and 1026.38, the Bureau is proposing to integrate the disclosure requirements of TILA and sections 4 and 5 of RESPA in the Loan Estimate that creditors must provide to consumers within three business days after receiving the consumer’s application and the Closing Disclosure that creditors must provide to consumers at least three business days prior to consummation. Some disclosures required by RESPA pertain to services performed by third parties, other than the lender. Accordingly, the Bureau is proposing conforming amendments to the commentary to § 1026.17(c) to clarify that the ‘‘parties’’ referred to in the commentary to § 1026.17(c) are the consumer and the creditor and that the ‘‘agreement’’ referred to in the commentary to § 1026.17(c) is the legal obligation between the consumer and the creditor. The proposed conforming amendments to the commentary also clarify that the ‘‘disclosures’’ referred to in the commentary to current § 1026.17(c) are the finance charge and the disclosures affected by the finance charge. Finally, the proposed conforming amendments to the commentary extend existing guidance on special disclosure rules for transactions subject to § 1026.18(s) to reflect the addition of new special rules under § 1026.19(e) and (f). The Bureau also proposes amendments to the commentary to § 1026.17(c)(1) to address areas of industry uncertainty regarding TILA disclosures. First, the Bureau proposes to revise comment 17(c)(1)–1 to provide the general principle that disclosures based on the assumption that the consumer will abide by the terms of the legal obligation throughout its term comply with § 1026.17(c)(1). In E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules addition, the Bureau proposes to revise comments 17(c)(1)–3 and –4, regarding third-party and consumer buydowns, respectively. Under existing Regulation Z, whether the effect of third-party or consumer buydowns are disclosed depends on State law. To address uncertainty, the Bureau is proposing to revise the examples in comments 17(c)(1)–3 and –4 to clarify that, in the disclosure of the finance charge and other disclosures affected by the finance charge, third-party buydowns must be reflected as an amendment to the contract’s interest rate provision if the buydown is reflected in the credit contract between the consumer and the creditor and that consumer buydowns must always be reflected as an amendment to the contract’s interest rate provision. The Bureau also proposes new comment 17(c)(1)–19, regarding disclosure of rebates and loan premiums offered by a creditor. In its 2009 ClosedEnd Proposal, the Board proposed to revise comment 18(b)–2, which provides guidance regarding the treatment of rebates and loan premiums for the amount financed calculation required by § 1026.18(b). 74 FR at 43385. Comment 18(b)–2 primarily addresses credit sales, such as automobile financing, and provides that creditors may choose whether to reflect creditor-paid premiums and seller- or manufacturer-paid rebates in the disclosures required by § 1026.18. The Board stated its belief that such premiums and rebates are analogous to buy-downs because they may or may not be funded by the creditor and reduce costs that otherwise would be borne by the consumer. 2009 ClosedEnd Proposal, 74 FR at 43256. Accordingly, their impact on the § 1026.18 disclosures properly depends on whether they are part of the legal obligation, in accordance with § 1026.17(c)(1) and its commentary. The Board therefore proposed to revise comment 18(b)–2 to clarify that the disclosures, including the amount financed, must reflect loan premiums and rebates regardless of their source, but only if they are part of the legal obligation between the creditor and the consumer. The Board also proposed a parallel comment under the section requiring disclosure of the amount financed for transactions subject to the proposed, separate disclosure scheme for transactions secured by real property or a dwelling. 2009 Closed-End Proposal, 74 FR at 43417 (proposed comment 38(e)(5)(iii)–2). The Bureau agrees with the Board’s reasoning in proposing the foregoing revisions to comment 18(b)–2 that the VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 disclosures must reflect loan premiums and rebates, even if paid by a third party such as a seller or manufacturer, but only if they are part of the legal obligation between the creditor and the consumer. The Bureau notes, however, that the comment’s guidance extends beyond the calculation of the amount financed. For example, the guidance on whether and how to reflect premiums and rebates applies equally to such disclosures as the amount financed, the APR, the projected payments table, interest rate and payment summary table, or payment schedule, as applicable, and other disclosures affected by those disclosures. The Bureau therefore is proposing to place the guidance in the commentary to § 1026.17(c)(1), as that section is the basis for the underlying principal that the impact of premiums and rebates depends on the terms of the legal obligation. 17(c)(2) Current § 1026.17(c)(2) and its commentary contain general rules regarding the use of estimates. The Bureau proposes conforming amendments to the commentary to § 1026.17(c)(2) to be consistent with the special disclosure rules for closed-end mortgage transactions subject to proposed § 1026.19(e) and (f). Comment 17(c)(2)(i)–1 provides guidance to creditors on the basis for estimates. The proposed rule amends this comment to specify that it applies except as otherwise provided in §§ 1026.19, 1026.37, and 1026.38, and that creditors must disclose the actual amounts of the information required to be disclosed pursuant to § 1026.19(e) and (f), subject only to the estimation and redisclosure rules in those sections. The proposed rule also revises comment 17(c)(2)(i)–2, which gives guidance to creditors on labeling estimated disclosures, to provide that, for the disclosures required by § 1026.19(e), use of the Loan Estimate form H–24 in appendix H, pursuant to § 1026.37(o), satisfies the requirement that the disclosure state clearly that it is an estimate. In addition, consistent with the proposed revisions to comment 17(c)(1)–1, the proposed rule revises comment 17(c)(2)(i)–3, which provides guidance to creditors regarding disclosures in simple interest transactions, to reflect that the comment applies only to the extent that it does not conflict with proposed § 1026.19. Proposed comment 17(c)(2)(i)–3 also clarifies that, in all cases, creditors must base disclosures on the assumption that payments will be made on time and in the amounts required by the terms of the PO 00000 Frm 00037 Fmt 4701 Sfmt 4702 51151 legal obligation, disregarding any possible differences resulting from consumers’ payment patterns. Finally, proposed comment 17(c)(2)(ii)–1, regarding disclosure of per diem interest, provides that the creditor shall disclose the actual amount of per diem interest that will be collected at consummation, subject only to the disclosure rules in § 1026.19(e) and (f). 17(c)(4) The proposed rule revises comment 17(c)(4)–1 to clarify that creditors may disregard payment period irregularities when disclosing the payment summary tables pursuant to §§ 1026.18(s), 1026.37(c), and 1026.38(c), in addition to the payment schedule under § 1026.18(g) discussed in the existing comment. 17(c)(5) Current § 1026.17(c)(5) and its commentary contain general rules regarding the disclosure of demand obligations. The proposed rule revises comment 17(c)(5)–2, which addresses obligations whose maturity date is determined by a future event, to reflect the fact that special rules apply to the disclosures required by § 1026.19(e) and (f). In addition, the proposal revises comment 17(c)(5)–3, regarding transactions that convert to demand status only after a fixed period, to delete obsolete references to specific loan programs and to update crossreferences. Finally, the proposal revises comment 17(c)(5)–4, regarding balloon payment mortgages, to reflect the fact that special rules apply to the disclosure of balloon payments in the projected payments tables required by §§ 1026.37(c) and 1026.38(c). 17(d) Multiple Creditors; Multiple Consumers Current § 1026.17(d) addresses transactions that involve multiple creditors or consumers. The proposed rule revises comment 17(d)–2, regarding multiple consumers, to clarify that the early disclosures required by § 1026.19(a), (e), or (g), as applicable, need be provided to only one consumer who will have primary liability on the obligation. Material disclosures, as defined in § 1026.23(a)(3)(ii), under § 1026.23(a) and the notice of the right to rescind required by § 1026.23(b), however, must be given before consummation to each consumer who has the right to rescind, including any such consumer who is not an obligor. As the Board stated in its 2010 Mortgage Proposal, the purpose of the TILA section 128 requirement that creditors provide early and final disclosures is to E:\FR\FM\23AUP2.SGM 23AUP2 51152 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules ensure that consumers have information specific to their loan to use while shopping and evaluating their loan. See 75 FR at 58585. On the other hand, the purpose of the TILA section 121(a) requirement that each consumer with a right to rescind receive disclosures regarding that right is to ensure that each such consumer has the necessary information to decide whether to exercise that right. Id. For this reason, the proposed rule requires creditors to provide all consumers who have the right to rescind with the material disclosures under §§ 1026.18 and 1026.38 and the notice of the right to rescind required by § 1026.23(b), even if such consumer is not an obligor. 17(e) Effect of Subsequent Events Current § 1026.17(e) provides rules regarding when a subsequent event makes a disclosure inaccurate and requires a new disclosure. The proposed rule revises comment 17(e)–1 to clarify that special rules apply to transactions subject to proposed § 1026.19(e) and (f). 17(f) Early Disclosures Current § 1026.17(f) contains rules regarding when a creditor must redisclose after providing disclosures prior to consummation. As discussed in the section-by-section analysis to proposed § 1026.19(a), (e), and (f), special timing requirements apply for transactions subject to those sections. Accordingly, § 1026.17(f) is revised to reflect the fact that the general early disclosure rules in § 1026.17(f) are subject to the special rules in § 1026.19(a), (e), and (f). In addition, comments 17(f)–1 through –4 would be revised to conform to the special timing requirements under proposed § 1026.19(a) or (e) and (f). mstockstill on DSK4VPTVN1PROD with PROPOSALS2 17(g) Mail or Telephone Orders—Delay in Disclosures Current § 1026.17(g) and its commentary permit creditors to delay disclosures for transactions involving mail or telephone orders until the first payment is due if specific information, including the principal loan amount, total sale price, finance charge, annual percentage rate, and terms of repayment is provided to the consumer prior to the creditor’s receipt of a purchase order or request for extension of credit. As discussed in the section-by-section analysis to proposed § 1026.19(a), (e), and (f), the Bureau proposes special timing requirements for transactions subject to those provisions. Accordingly, the Bureau proposes to revise § 1026.17(g) and comment 17(g)– 1 to clarify that § 1026.17(g) does not VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 apply to transactions subject to § 1026.19(a), (e), and (f). 17(h) Series of Sales—Delay in Disclosures Current § 1026.17(h) and its commentary permit creditors to delay disclosures until the due date of the first payment in transactions in which a credit sale is one of a series made under an agreement providing that subsequent sales may be added to the outstanding balance. As discussed in the section-bysection analysis to proposed § 1026.19(a), (e), and (f), the Bureau proposes special timing requirements for transactions subject to those provisions. Accordingly, the Bureau proposes to revise § 1026.17(h) and comment 17(h)–1 to clarify that § 1026.17(h) does not apply to transactions subject to § 1026.19(a) or (e) and (f). 1026.18 Content of Disclosures Section 1026.18 sets forth the disclosure content for closed-end consumer credit transactions. As discussed in more detail below, the Bureau is proposing to establish separate disclosure requirements for closed-end transactions secured by real property, other than reverse mortgage transactions, through proposed § 1026.19(e) and (f). Accordingly, the Bureau is proposing to amend § 1026.18’s introductory language to provide that its disclosure content requirements apply only to closed-end transactions other than mortgage transactions subject to § 1026.19(e) and (f). The Bureau is also proposing revisions to § 1026.18(k), which provides for disclosure of whether, if the obligation is prepaid in full, a penalty will be imposed or a consumer will be entitled to a rebate of any finance charge. The proposed revisions conform to the definition of ‘‘prepayment penalty’’ in proposed § 1026.37(b)(4) and associated commentary. As explained in more detail in the section-by-section analysis for proposed § 1026.37(b)(4), the Bureau is coordinating the definition of ‘‘prepayment penalty’’ across its pending mortgage-related rulemakings, and proposed revisions to § 1026.18(k) are part of that comprehensive approach. The Bureau also is proposing to add a new comment 18–3 clarifying that, because of the exclusion of transactions subject to § 1026.19(e) and (f), the disclosures required by § 1026.18 apply only to closed-end transactions that are unsecured or secured by personal property (including dwellings that are PO 00000 Frm 00038 Fmt 4701 Sfmt 4702 not also secured by real property) and to reverse mortgages. The comment would also clarify that, for unsecured transactions and transactions secured by personal property that is not a dwelling, creditors must disclose a payment schedule under § 1026.18(g), and for other transactions that are subject to § 1026.18, creditors must disclose an interest rate and payment summary table under § 1016.18(s), as adopted by the Board’s MDIA Interim Rule. 75 FR at 58482–84. Finally, the comment would clarify that, because § 1026.18 does not apply to most transactions secured by real property, references in the section and its commentary to ‘‘mortgages’’ refer only to transactions secured by personal property that is not a dwelling and reverse mortgages, as applicable. 18(b) Amount Financed Section 1026.18(b) addresses the calculation and disclosure of the amount financed for closed-end transactions. Comment 18(b)–2 currently provides that creditors may choose whether to reflect creditor-paid premiums and seller- or manufacturerpaid rebates in the disclosures required by § 1026.18. For the reasons discussed under § 1026.17(c)(1), above, the Bureau is proposing to remove comment 18(b)– 2 and place revised guidance regarding rebates and loan premiums in proposed comment 17(c)(1)–19. 18(b)(2) The Bureau is proposing certain conforming changes to comment 18(b)(2)–1, which addresses amounts included in the amount financed calculation that are not otherwise included in the finance charge. As discussed more fully under proposed § 1026.4, above, the Bureau proposes to adopt a simpler and more inclusive definition of the finance charge. Therefore, references to real estate settlement charges in comment 18(b)(2)– 1 are inappropriate. Proposed comment 18(b)(2)–1 removes those references and substitutes appropriate examples. 18(c) Itemization of Amount Financed Section 1026.18(c) requires an itemization of the amount financed and provides guidance on the amounts that must be included in the itemization. The Bureau proposes certain conforming amendments to two comments under § 1026.18(c). Under this proposal, § 1026.18 disclosures, including the itemization of amount financed under § 1026.18(c), are required only for closed-end transactions that are not secured by real property and reverse mortgages; E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules transactions secured by real property other than reverse mortgages are subject instead to the disclosure content required by §§ 1026.37 and 1026.38. The Bureau therefore proposes technical revisions to comments 18(c)–4 and 18(c)(1)(iv)–2 to limit those comments’ discussions of the RESPA disclosures and their interaction with § 1026.18(c) to reverse mortgages. 18(f) Variable Rate 18(f)(1) mstockstill on DSK4VPTVN1PROD with PROPOSALS2 18(f)(1)(iv) Section 1026.18(f)(1)(iv) requires that, for variable-rate transactions not secured by a consumer’s principal dwelling and variable-rate transactions secured by a consumer’s principal dwelling where the loan term is one year or less, creditors disclose an example of the payment terms that would result from an interest rate increase. The Bureau proposes to revise comment 18(f)(1)(iv)–2 by removing paragraph 2.iii, which provides that such an example is not required in a multiple-advance construction loan disclosed pursuant to appendix D, part I. Appendix D, part I provides guidance for disclosing the construction phase of a construction-to-permanent loan as a separate transaction pursuant to § 1026.17(c)(6)(ii) (or for disclosing a construction-only loan). The Bureau’s proposal to remove comment 18(f)(1)(iv)–2.iii is intended solely as a conforming amendment, to reflect the fact that multiple-advance construction loans would no longer be subject to the § 1026.18 disclosure requirements under this proposal. The Bureau believes that multiple-advance construction loans are limited to transactions with real property as collateral, and are not used for dwellings that are personal property or in reverse mortgages. Therefore, all construction loans would be subject instead to the new disclosure content requirements of §§ 1026.37 and 1026.38. The Bureau seeks comment, however, on whether any reason remains to preserve comment 18(f)(1)(iv)–2.iii. 18(g) Payment Schedule Section 1026.18(g) requires the disclosure of the number, amounts, and timing of payments scheduled to repay the obligation, for closed-end transactions other than transactions subject to § 1026.18(s). Section 1026.18(s) requires an interest rate and payment summary table, in place of the § 1026.18(g) payment schedule, for closed-end transactions secured by real property or a dwelling, other than transactions that are secured by a consumer’s interest in a timeshare plan. VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 As noted above, however, the Bureau is proposing to remove from the coverage of § 1026.18 transactions secured by real property, other than reverse mortgages, and subject them to the integrated disclosures under §§ 1026.37 and 1026.38. Thus, under this proposal, § 1026.18(g) applies only to closed-end transactions that are unsecured or secured by personal property that is not a dwelling. All closed-end transactions that are secured by either real property or a dwelling, including reverse mortgages, are subject instead to either the interest rate and payment summary table disclosure requirement under § 1026.18(s) or the projected payments table disclosure requirement under §§ 1026.37(c) and 1026.38(c), as applicable. In light of these changes to the coverage of § 1026.18 generally, and specifically § 1026.18(g), the Bureau is proposing several conforming changes to the commentary under § 1026.18(g). Specifically, comment 18(g)–4 would be revised to remove a reference to home repairs, and comment 18(g)–5, relating to mortgage insurance, would be removed and reserved. In addition, comment 18(g)–6, which currently discusses the coverage of mortgage transactions as between §§ 1026.18(g) and 1026.18(s), would be revised to reflect the additional effect of proposed § 1026.19(e) and (f), which requires the new integrated disclosures set forth in proposed §§ 1026.37 and 1026.38 for most transactions secured by real property. Finally, the Bureau also proposes to amend comments 18(g)(2)– 1 and –2 to remove unnecessary, and potentially confusing, references to mortgages and mortgage insurance. 18(k) Prepayment Section 1026.18(k) implements the provisions of TILA section 128(a)(11), which requires that the transactionspecific disclosures for closed-end consumer credit transactions disclose whether (1) a consumer is entitled to a rebate of any finance charge upon prepayment in full pursuant to acceleration or otherwise, if the obligation involves a precomputed finance charge, and (2) a ‘‘penalty’’ is imposed upon prepayment in full of such transactions if the obligation involves a finance charge computed from time to time by application of a rate to the unpaid principal balance. 15 U.S.C. 1638(a)(11). Commentary to § 1026.18(k) provides further guidance regarding the disclosures and provides examples of prepayment penalties and the types of finance charges where a consumer may be entitled to a rebate. For further background on § 1026.18(k), PO 00000 Frm 00039 Fmt 4701 Sfmt 4702 51153 see the section-by-section analysis for proposed § 1026.37(b)(4), below. The Bureau defines ‘‘prepayment penalty’’ in proposed § 1026.37(b)(4) for transactions subject to §§ 1026.19(e) and (f) as a charge imposed for paying all or part of a loan’s principal before the date on which the principal balance is due, and provides examples of prepayment penalties and other relevant guidance in proposed commentary. The Bureau’s proposed definition of ‘‘prepayment penalty’’ and commentary is based on its consideration of the existing statutory and regulatory definitions of ‘‘penalty’’ and ‘‘prepayment penalty’’ under TILA and Regulation Z, the Board’s proposed definitions of prepayment penalty in its 2009 ClosedEnd Proposal, 2010 Mortgage Proposal, and 2011 ATR Proposal, and the Bureau’s authority under TILA section 105(a) and Dodd-Frank Act sections 1032(a) and, for residential mortgage loans, 1405(b). Further background on the Bureau’s definition of prepayment penalty and the basis of its legal authority for proposing that definition are in the section-by-section analysis for proposed § 1026.37(b)(4), below. As discussed in the section-by-section analysis for proposed § 1026.37(b)(4), the Bureau is coordinating the definition of ‘‘prepayment penalty’’ in proposed § 1026.37(b)(4) with the definitions in the Bureau’s other pending rulemakings under the DoddFrank Act concerning ability-to-repay requirements, high-cost mortgages under HOEPA, and mortgage servicing. The Bureau believes that, to the extent consistent with consumer protection objectives, adopting a consistent definition of ‘‘prepayment penalty’’ across its various pending rulemakings affecting closed-end mortgages will facilitate compliance. As an additional part of adopting a consistent regulatory definition of ‘‘prepayment penalty,’’ the Bureau is proposing certain conforming revisions to § 1026.18(k) and associated commentary. The Bureau recognizes that, with such conforming revisions to § 1026.18(k) and associated commentary, the revised definition of ‘‘prepayment penalty’’ will apply to both closed-end mortgage and non-mortgage transactions. In particular, the proposed conforming revisions to § 1026.18(k) define ‘‘prepayment penalty’’ with reference to a prepayment of ‘‘all or part of’’ the principal balance of a loan covered by the provision, while TILA section 128(a)(11) and current § 1026.18(k) and its associated commentary refer to prepayment ‘‘in full.’’ This revision may lead to an expansion of the set of instances that trigger disclosure under § 1026.18 of a E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51154 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules prepayment penalty for closed-end transactions. The Bureau believes that consumers entering into closed-end mortgage and non-mortgage transactions alike will benefit from the transparency associated with more frequent and consistent disclosure of prepayment penalties. Therefore, the Bureau is using its authority under TILA section 105(a) to make the proposed conforming revisions to § 1026.18(k) because they will effectuate the purposes of TILA by promoting the informed use of credit. Similarly, these revisions will help ensure that the features of these mortgage transactions are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand better the costs, benefits, and risks associated with mortgage transactions, in light of the facts and circumstances, consistent with Dodd-Frank Act section 1032(a). The revisions will also improve consumer awareness and understanding of residential mortgage loans, and are in the interest of consumers and the public, consistent with Dodd-Frank Act section 1405(b). The Bureau solicits comment on this approach to the definition of prepayment penalty. To conform with the proposed definition of prepayment penalty in § 1026.37(b)(4), proposed § 1026.18(k)(1) deletes the phrase ‘‘a statement indicating whether or not a penalty may be imposed if the obligation is prepaid in full’’ and replaces it with the phrase ‘‘a statement indicating whether or not a charge may be imposed for paying all or part of a transaction’s principal before the date on which the principal is due.’’ Proposed § 1026.18(k)(2) adds the phrase ‘‘or in part’’ at the end of the phrase ‘‘a statement indicating whether or not the consumer is entitled to a rebate of any finance charge if the obligation is prepaid in full.’’ Proposed revised comments 18(k)–1 through –3 insert the word ‘‘prepayment’’ before the words ‘‘penalty’’ and ‘‘rebate’’ when used, to standardize the terminology across Regulation Z (i.e., § 1026.32(d)(6) currently refers to ‘‘prepayment penalty,’’ and proposed § 1026.37(b)(4) uses the same phrase). Proposed revised comment 18(k)(1)–1 replaces the existing commentary text with the language from proposed comments 37(b)(4)–2 and –3. For further background on proposed comments 37(b)(4)–2 and –3, see the section-bysection analysis for proposed § 1026.37(b)(4), below. 18(r) Required Deposit If a creditor requires the consumer to maintain a deposit as a condition of the VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 specific transactions, § 1026.18(r) requires that the creditor disclose a statement that the APR does not reflect the effect of the required deposit. Comment 18(r)–6 provides examples of arrangements that are not considered required deposits and therefore do not trigger this disclosure. The Bureau is proposing to remove and reserve paragraph 6.vi, which states that an escrow of condominium fees need not be treated as a required deposit. In light of the changes to the coverage of § 1026.18 under this proposal, the only transactions to which this guidance could apply are reverse mortgages, which do not entail escrow accounts for condominium fees or any other recurring expenses. Accordingly, the Bureau believes that comment 18(r)–6.vi is rendered unnecessary by this proposal. The Bureau seeks comment, however, on whether any kind of transaction exists for which this guidance would continue to be relevant under § 1026.18, as amended by this proposal. 18(s) Interest Rate and Payment Summary for Mortgage Transactions Section 1026.18(s) currently requires the disclosure of an interest rate and payment summary table for transactions secured by real property or a dwelling, other than a transaction secured by a consumer’s interest in a timeshare plan. Under this proposal, however, § 1026.19(e) and (f) requires new, separate disclosures for transactions secured by real property, other than reverse mortgages. Generally, the disclosure requirements of § 1026.19(e) and (f) apply to transactions currently subject to current § 1026.18(s), except that reverse mortgages and transactions secured by dwellings that are personal property would be excluded. In addition, as discussed in the section-bysection analysis to proposed § 1026.19, transactions secured by a consumer’s interest in a timeshare plan are covered by the integrated disclosure requirements of § 1026.19(e) and (f), although such transactions are not currently subject to the requirements of § 1026.18(s). The new, integrated disclosures include a different form of projected payments table, under §§ 1026.37(c) and 1026.38(c), instead of the summary table under § 1026.18(s). Accordingly, the Bureau proposes to amend § 1026.18(s) to provide that it applies to transactions that are secured by real property or a dwelling, other than transactions that are subject to § 1026.19(e) and (f) (i.e. reverse mortgages and dwellings that are not secured by real property). The Bureau is proposing parallel revisions to PO 00000 Frm 00040 Fmt 4701 Sfmt 4702 comment 18(s)–1 to reflect this change in the scope of § 1026.18(s)’s coverage. The Bureau also proposes to add a new comment 18(s)–4 to explain that § 1026.18(s) governs only closed-end reverse mortgages and closed-end transactions secured by a dwelling that is personal property. 18(s)(3) Payments for Amortizing Loans 18(s)(3)(i)(C) Current § 1026.18(s)(3)(i)(C) requires creditors to disclose whether mortgage insurance is included in monthly escrow payments in the interest rate and payment summary. The Bureau understands that some government loan programs impose annual guarantee fees and that creditors typically collect a monthly escrow for the payment of such amounts. The Bureau has learned through industry inquiries that uncertainty exists regarding whether such guarantee fees should be disclosed as mortgage insurance under § 1026.18(s)(3)(i)(C) if the guarantee technically is not insurance under applicable law. One way to comply with § 1026.18(s) is to include such guarantee fees in the monthly payment amount, without using the check box for ‘‘mortgage insurance.’’ See comment 18(s)(3)(i)(C)–1 (escrowed amounts other than taxes and insurance may be included but need not be). Although the Bureau recognizes that government loan program guarantees may be legally distinguishable from mortgage insurance, they are functionally very similar. Moreover, such a technical, legal distinction is unlikely to be meaningful to most consumers. Therefore, the Bureau believes that the disclosure of such fees would be improved by including them in the monthly escrow payment amount and using the check box for ‘‘mortgage insurance.’’ For these reasons, pursuant to its authority under TILA section 105(a), Dodd-Frank Act section 1032(a), and, for residential mortgage loans, DoddFrank Act section 1405(b), the Bureau proposes to revise § 1026.18(s)(3)(i)(C) to provide that mortgage insurance or any functional equivalent must be included in the estimate of the amount of taxes and insurance, payable with each periodic payment. Proposed comment 18(s)(3)(i)(C)–2 is revised to conform to § 1026.18(s)(3)(i)(C). Specifically, the proposed comment clarifies that, for purposes of the interest rate and payment summary disclosure required by § 1026.18(s), ‘‘mortgage insurance or any functional equivalent’’ includes ‘‘mortgage guarantees’’ (such as a United States Department of Veterans E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules Affairs or United States Department of Agriculture guarantee) that provide coverage similar to mortgage insurance, even if not technically considered insurance under State or other applicable law. Since mortgage insurance and mortgage guarantee fees are functionally very similar, the Bureau believes that including both amounts in the estimate of taxes and insurance on the table required by § 1026.18(s) will promote the informed use of credit, thereby carrying out the purposes of TILA, consistent with TILA section 105(a). In addition, the proposed disclosure will ensure that more of the features of the mortgage transaction are fully, accurately, and effectively disclosed to consumers in a manner that will permit consumers to understand the costs, benefits, and risks associated with the mortgage transaction, consistent with Dodd-Frank Act section 1032(a), and will improve consumer awareness and understanding of residential mortgage loans and will be in the interest of consumers and the public, consistent with Dodd-Frank Act section 1405(b). Proposed comment 18(s)(3)(i)(C)–2 is consistent with the treatment of mortgage guarantee fees on the projected payments table required by proposed §§ 1026.37(c) and 1026.38(c). See proposed comment 37(c)(1)(i)(C)–1. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Section 1026.19 Certain Mortgage and Variable-Rate Transactions As discussed below, the Bureau proposes to amend § 1026.19 to define the scope of the proposed integrated disclosures and to establish the requirements for provision of those disclosures. Coverage of Integrated Disclosure Requirements For the reasons discussed in detail below, the Bureau proposes to require delivery of the integrated disclosures for closed-end consumer credit transactions secured by real property, other than reverse mortgages. As discussed above in part IV, section 1032(f) of the DoddFrank Act requires that ‘‘the Bureau shall propose for public comment rules and model disclosures that combine the disclosures required under [TILA] and sections 4 and 5 of [RESPA], into a single, integrated disclosure for mortgage loan transactions covered by those laws.’’ 12 U.S.C. 5532(f). In addition, sections 1098 and 1100A of the Dodd-Frank Act amended RESPA section 4(a) and TILA section 105(b), respectively, to require the Bureau to publish a ‘‘single, integrated disclosure for mortgage loan transactions (including real estate settlement cost VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 statements) which includes the disclosure requirements of [TILA and sections 4 and 5 of RESPA] that, taken together, may apply to a transaction that is subject to both or either provisions of law.’’ 12 U.S.C. 2604(a); 15 U.S.C. 1604(b). Accordingly, the Bureau is directed to establish the integrated disclosure requirements for ‘‘mortgage loan transactions’’ that are ‘‘subject to both or either provisions of’’ RESPA sections 4 and 5 (the statutory GFE and settlement statement requirements) and TILA.125 The Legal Authority discussion in part IV also notes that, notwithstanding this integrated disclosure mandate, the Dodd-Frank Act did not reconcile important differences between RESPA and TILA relating to the timing of delivery of the RESPA settlement statement and the TILA disclosure, as well as the persons and transactions on whom those disclosure requirements are imposed. Accordingly, to meet the integrated disclosure mandate, the Bureau believes that it must reconcile such statutory differences. In addition to those differences already noted, RESPA and TILA have certain differences in the types of transactions to which their respective disclosure requirements apply. The Bureau also recognizes that application of the integrated disclosure requirements to certain transaction types may be inappropriate, even though those transaction types are within the scopes of one or both statutes. These issues and the Bureau’s proposal for addressing them are discussed below. Differences in coverage of RESPA and TILA. RESPA applies generally to ‘‘federally related mortgage loans,’’ which means loans (other than temporary financing such as construction loans) secured by a lien on residential real property designed principally for occupancy by one to four families and that are (1) made by a lender with Federal deposit insurance; (2) made, insured, guaranteed, supplemented, or assisted in any way by any officer or agency of the Federal government; (3) intended to be sold to Fannie Mae, Ginnie Mae, or (directly or 125 In addition to, and at the same times as, provision of the GFE under RESPA section 5(c), section 5(d) also requires lenders to provide to mortgage applicants the home buying information booklet prepared by the Bureau pursuant to section 5(a). Although the Bureau is not proposing to integrate the booklet with the RESPA GFE and TILA disclosures, in the sense of building all of their contents into a single form, the Bureau is proposing to implement the booklet requirement in proposed § 1026.19(g), discussed below. The same considerations of coverage discussed here with respect to the integrated disclosures also apply for purposes of the booklet requirement. PO 00000 Frm 00041 Fmt 4701 Sfmt 4702 51155 through an intervening purchaser) Freddie Mac; or (4) made by a ‘‘creditor,’’ as defined under TILA, that makes or invests in real estate loans aggregating more than $1,000,000 per year, other than a State agency. 12 U.S.C. 2602(1), 2604.126 RESPA section 7(a) provides that RESPA does not apply to credit for business, commercial, or agricultural purposes or to credit extended to government agencies. Id. 2606(a). Thus, RESPA disclosures essentially are required for consumerpurpose loans that have some Federal nexus (or are made by a TILA creditor with sufficient volume) and that are secured by real property improved by single-family housing. Regulation X § 1024.5 implements these statutory provisions. Section 1024.5(a) provides that RESPA and Regulation X apply to federally related mortgage loans, which are defined by § 1024.2(b) to parallel the statutory definition described above. Section 1024.5(b) establishes certain exemptions from coverage, including loans on property of 25 acres or more; loans for a business, commercial, or agricultural purpose; temporary financing, such as construction loans, unless the loan is used to finance transfer of title or may be converted to permanent financing by the same lender; and loans on unimproved property, unless within two years from settlement the loan proceeds will be used to construct or place a residence on the land. 12 CFR 1024.5(b)(1) through (4). Unlike the others, the exemption for loans secured by properties of 25 acres or more is not statutory and is established by Regulation X only. TILA, on the other hand, applies generally to consumer credit transactions of all kinds, including unsecured credit and credit secured by nonresidential property. 15 U.S.C. 1602(f) (‘‘credit’’ defined as ‘‘the right granted by a creditor to a debtor to defer payment of debt or to incur debt and defer its payment’’). Similar to RESPA, TILA excludes, among others, extensions of credit primarily for business, commercial, or agricultural purposes, or to government or governmental agencies or instrumentalities, or to organizations. Id. 1603(1). In contrast with RESPA and Regulation X, however, TILA (and therefore Regulation Z) has no exclusion 126 Although section 4 of RESPA, 12 U.S.C. 2603, originally recited that it applied to federally related mortgage loans as well, as amended by the DoddFrank Act it no longer does so explicitly. The Bureau nevertheless regards the RESPA settlement statement requirement as continuing to apply to federally related mortgage loans, consistent with the rest of RESPA’s scope generally. E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51156 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules for property of 25 acres or more, temporary financing, or vacant land. Moreover, TILA applies only to transactions made by a person who ‘‘regularly extends’’ consumer credit. Id. 1602(g) (definition of creditor). Regulation Z §§ 1026.2(a)(14) and (17) and 1026.3(a) implement these statutory provisions. In particular, § 1026.2(a)(17) defines creditor in pertinent part as a person who regularly extends consumer credit, and § 1026.2(a)(17)(v) further provides that, for transactions secured by a dwelling (other than ‘‘high-cost’’ loans subject to HOEPA), a person ‘‘regularly extends’’ consumer credit if it extended credit more than five times in the preceding calendar year. Section 1026.3(a) implements the exclusion of credit extended primarily for a business, commercial, or agricultural purpose, as well as credit extended to other than a natural person, including government agencies or instrumentalities. Although TILA generally applies to consumer credit that is unsecured or secured by nonresidential property, Dodd-Frank Act section 1032(f), RESPA section 4(a), and TILA section 105(b) specifically limit the integrated disclosure requirement to ‘‘mortgage loan transactions.’’ The Dodd-Frank Act did not specifically define ‘‘mortgage loan transaction,’’ but did direct that the disclosures be designed to incorporate disclosure requirements that may apply to ‘‘a transaction that is subject to both or either provisions of the law.’’ As described above, five types of loans are currently covered by TILA or RESPA, but not both. Under the foregoing provisions, loans to finance home construction that do not finance transfer of title and for which the creditor will not extend permanent financing (construction-only loans), loans secured by unimproved land already owned by the consumer and on which a residence will not be constructed within two years (vacantland loans), and loans secured by land of 25 acres or more (25-acre loans) all are subject to TILA but are currently exempt from RESPA coverage. In addition, loans secured by dwellings that are not real property, such as mobile homes, houseboats, recreational vehicles, and similar dwellings that are not deemed real property under State law, (chattel-dwelling loans) could be considered ‘‘mortgage loan transactions,’’ and they also are subject to TILA but not RESPA. Meanwhile, federally related mortgage loans made by persons who are not creditors under TILA, because they make five or fewer such loans per year, are subject to RESPA but not TILA. In addition, some types of mortgage loan transactions are VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 covered by both statutes, but may warrant uniquely tailored disclosures because they involve terms or features that are so different from standard closed-end transactions that use of the same form may cause significant consumer confusion and compliance burden for industry. For the reasons discussed in detail below, the Bureau proposes to use its authority under TILA section 105(a), (b), and (f), RESPA sections 4(a) and 19(a), and Dodd-Frank Act sections 1032(a) and (f) and, for residential mortgage loans, 1405(b) to tailor the scope of this proposed rule so that the integrated disclosure requirements apply to all closed-end consumer credit transactions secured by real property, other than reverse mortgages. Doing so will ensure that, in most mortgage transactions, consumers receive integrated disclosure forms developed by the Bureau through extensive testing that will improve consumers’ understanding of the transaction. Furthermore, applying a consistent set of disclosure requirements to most mortgage transactions will facilitate compliance by industry. However, for a subset of mortgage transactions, the Bureau believes that application of the integrated disclosure requirements would not improve consumer understanding or facilitate compliance and that these transactions should therefore be exempted from those requirements. In some cases, the Bureau is proposing to exempt transactions that could arguably fall within Dodd-Frank Act sections 1032(f), 1098, and 1100A but are sufficiently different from other mortgage transactions that application of the integrated disclosure forms would neither improve consumer understanding nor facilitate compliance by industry (e.g., reverse mortgages, open-end transactions secured by real property or a dwelling, and closed-end transactions secured by a dwelling but not real property). These transactions will remains subject to the existing disclosure requirements under Regulations X and Z, as applicable, until the Bureau adopts integrated disclosures specifically tailored to their distinct features.127 In other cases, the Bureau is proposing to expand the scope of certain mortgage disclosure requirements in order to ensure that, in most mortgage 127 As discussed below, certain new mortgage disclosure requirements in the Dodd-Frank Act apply to these transactions, among others. Accordingly, transactions that are not subject to the proposed rule would be temporarily exempt from those requirements until the Bureau adopts a new disclosure scheme specific to those transactions. PO 00000 Frm 00042 Fmt 4701 Sfmt 4702 transactions, consumers receive a consistent set of disclosures, which the Bureau believes will improve consumer understanding and facilitate compliance. In particular, the proposed rule applies to certain transactions that are currently subject to Regulation Z but not Regulation X (construction-only loans, vacant-land loans, and 25-acre loans). In addition, many of the new Dodd-Frank Act mortgage disclosure requirements apply to ‘‘residential mortgage loans,’’ which—as noted above—are defined in section 1401 of the Dodd-Frank Act as any consumer credit transaction that is secured by a mortgage on a dwelling or on residential real property that includes a dwelling other than an open-end credit plan or an extension of credit secured by a consumer’s interest in a timeshare plan.128 Thus, in addition to narrowing the application of these disclosures to exempt temporarily reverse mortgages and transactions that are not secured by real property, the proposed rule expands the application of these disclosure requirements to apply to transactions secured by real property that does not contain a dwelling. Similarly, the proposed rule both narrows and expands the application of other Dodd-Frank Act mortgage disclosure requirements to improve consumer understanding and facilitate compliance.129 Accordingly, the Bureau believes adjusting the application of the provisions of TILA and RESPA is within its general mandate under Dodd-Frank 128 See, e.g., Dodd-Frank Act § 1402(a)(2) (requires disclosure of loan originator identifier) (codified at TILA § 129B(b)(1)(B)); Dodd-Frank Act § 1414(c) (requires disclosure of anti-deficiency protections) (codified at TILA § 129C(g)); DoddFrank Act § 1414(d) (requires disclosure of partial payment policy) (codified at TILA § 129C(h)); DoddFrank Act § 1419 (requires disclosure of certain aggregate amounts and wholesale rate of funds) (codified at TILA § 128(a)(17)); Dodd-Frank Act § 1419 (requires disclosure of loan originator compensation) (codified at TILA § 128(a)(18)); Dodd-Frank Act § 1419 (requires disclosure of total interest) (codified at TILA § 128(a)(19)). 129 See, e.g., Dodd-Frank Act § 1414(a) (requires negative amortization disclosure for open or closed end consumer credit plans secured by a dwelling or residential real property that includes a dwelling that provides or permits a payment plan that may result in negative amortization) (codified at TILA § 129C(f)); Dodd-Frank Act § 1419 (requires certain payment disclosures for variable rate residential mortgage loans for which an escrow account will be established) (codified at TILA § 128(a)(16)); Dodd-Frank Act §§ 1461(a), 1462, and 1465 (requires certain payment and escrow disclosures for consumer credit transactions secured by a first lien on the principal dwelling of the consumer, other than an open end credit plan or reverse mortgage) (codified at TILA § 129D(h) and (j) and 128(b)(4)); Dodd-Frank Act § 1475 (permits disclosure of appraisal management fees for federally related mortgage loans) (codified at RESPA § 4(c)). E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules Act section 1032(f) to prescribe integrated disclosures, which requires that the Bureau reconcile differences in coverage between the two statutes. The Bureau also believes that this approach is expressly authorized by sections 4(a) of RESPA and 105(b) of TILA because both provisions direct the Bureau to prescribe disclosures that ‘‘may apply to a transaction that is subject to both or either provisions of law.’’ (Emphasis added.) Those provisions authorize requiring the integrated disclosures for any transaction that is subject to either RESPA or TILA, and not only a transaction that is subject to both, precisely so that the Bureau has the flexibility necessary to reconcile those statutes’ coverage differences for purposes of the integrated disclosure mandate. Furthermore, the Bureau believes that applying the integrated disclosures to closed-end consumer credit transactions secured by real property other than reverse mortgages will carry out the purposes of TILA and RESPA, consistent with TILA section 105(a) and RESPA section 19(a), by promoting the informed use of credit and more effective advance disclosure of settlement costs, respectively. In addition, the proposed scope will ensure that the integrated disclosure requirements are applied only in circumstances where they will permit consumers to understand the costs, benefits, and risks associated with the mortgage transaction, consistent with Dodd-Frank Act section 1032(a), and will improve consumer awareness and understanding of residential mortgage loans, consistent with Dodd-Frank Act section 1405(b). Finally, the Bureau also proposes the exemption pursuant to TILA section 105(f). The Bureau has considered the factors in TILA section 105(f) and believes that an exemption is appropriate under that provision. Specifically, the Bureau believes that the proposed exemption is appropriate for all affected borrowers, regardless of their other financial arrangements and financial sophistication and the importance of the loan to them. Similarly, the Bureau believes that the proposed exemption is appropriate for all affected loans, regardless of the amount of the loan and whether the loan is secured by the principal residence of the consumer. Furthermore, the Bureau believes that, on balance, the proposed exemption will simplify the credit process without undermining the goal of consumer protection or denying important benefits to consumers. Based on these considerations, the results of the Bureau’s consumer testing, and the VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 analysis discussed elsewhere in this proposal, the Bureau believes that the proposed exemptions are appropriate. Coverage issues with HELOCs. Openend transactions secured by real property or a dwelling (home-equity lines of credit, or HELOCs) and reverse mortgages are within the statutory scope of both TILA and RESPA and also reasonably could be considered ‘‘mortgage loan transactions.’’ Nevertheless, both types of transaction are by their natures fundamentally different from other forms of mortgage credit. For the reasons discussed below, the Bureau is proposing to exclude these types of transaction from the coverage of the integrated disclosure requirement. HELOCs are open-end credit plans and therefore are appropriately subject to the open-end disclosure requirements in subpart B of Regulation Z. The Bureau looked to the closed-end content requirements under TILA section 128 in developing the integrated disclosures. It did so because the Dodd-Frank Act mandate to propose integrated disclosures includes section 5 of RESPA, which requires the GFE, and only closed-end transactions are subject to the parallel, early disclosure requirement under TILA section 128(b)(2)(A). Subjecting open-end transactions to the integrated disclosure requirements thus would result in consumers who are obtaining open-end credit receiving closed-end disclosures, many of which would be inapposite and therefore potentially confusing or even misleading. Further, in recognition of the distinct nature of open-end credit, Regulation X effectively exempts such plans from the RESPA disclosure requirements. Sections 1024.6(a)(2) and 1024.7(h) of Regulation X state that, for HELOCs, the requirements to provide the ‘‘special information booklet’’ regarding settlement costs and the GFE, respectively, are satisfied by delivery of the open-end disclosures required by Regulation Z. And Regulation X § 1024.8(a) exempts HELOCs from the settlement statement requirement altogether. The Bureau expects to address HELOCs through a separate, future rulemaking that will establish a distinct disclosure scheme tailored to their unique features, which will achieve more effectively the purposes of both RESPA and TILA.130 Coverage issues with reverse mortgages. The Bureau is aware that lenders and creditors face significant difficulties applying the disclosure 130 In 2009, the Board proposed significant revisions to the disclosure requirements for HELOCs. See 74 FR 43428 (Aug. 26, 2009). The Bureau is now responsible for this proposal. PO 00000 Frm 00043 Fmt 4701 Sfmt 4702 51157 requirements of RESPA and TILA to reverse mortgages, in light of those transactions’ unusual terms and features. The difficulties appear to stem from the fact that a number of the disclosed items under existing Regulations X and Z are not relevant to such transactions and therefore have no meaning. Moreover, the Bureau developed the proposed integrated disclosure forms for use in ‘‘forward’’ mortgage transactions and did not subject those forms, which implement essentially the same statutory disclosure requirements as do the current regulations, to any consumer testing using reverse mortgage transactions. The Bureau therefore is concerned that the use of the integrated disclosures for reverse mortgages may result in numerous disclosures of items that are not applicable, difficult to apply, or potentially even misleading or confusing for consumers.131 As with HELOCs, the Bureau expects to address reverse mortgages through a separate, future rulemaking process that will establish a distinct disclosure scheme.132 Coverage issues with chattel-dwelling loans. Chattel-dwelling loans (such as loans secured by mobile homes) do not involve real property, by definition. The Bureau estimates that approximately one-half of the closing-cost content of the integrated disclosures is not applicable to such transactions because they more closely resemble motor vehicle transactions than true mortgage transactions. Such transactions currently are not subject to RESPA and, unlike the transactions above that involve real property, generally are not consummated with ‘‘real estate settlements,’’ which are the basis of RESPA’s coverage. Thus, were these 131 In addition, many reverse mortgages are structured as open-end plans and therefore may be subject to the same concerns noted with respect to HELOCs. 132 The Board’s 2010 Mortgage Proposal included several provisions relating to reverse mortgages. See 75 FR 58539, 58638–59. Specifically, the Board proposed requiring creditors to use new forms of disclosures designed specifically for reverse mortgages, rather than the standard TILA disclosures. The 2010 Mortgage Proposal also proposed significant protections for reverse mortgage consumers, including with respect to advertising of reverse mortgages and cross-selling of reverse mortgages with other financial and insurance products. In addition, section 1076 of the Dodd-Frank Act required the Bureau to engage in a study of reverse mortgage transactions and instructed the Bureau to consider protections with respect to obtaining reverse mortgages for the purpose of funding investments, annuities, and other investment products and the suitability of a borrower in obtaining a reverse mortgage. The Bureau intends that its future rulemaking for reverse mortgages will address the issues identified in the Board’s 2010 Mortgage Proposal and the findings of the Bureau’s reverse mortgage study. E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51158 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules transactions subject to the integrated disclosures under this proposal, a significant portion of the disclosures’ content would be inapplicable. The Bureau believes that permitting those items to be omitted altogether could compromise the overall integrity of the disclosures, which were developed through consumer testing that never contemplated such extensive omissions, and the Bureau therefore has no basis for expecting that they would necessarily be as informative to consumers if so dramatically altered. The Bureau has similar concerns about keeping the overall forms intact but directing creditors to complete the inapplicable portions with ‘‘N/A’’ or simply to leave them blank. Moreover, the Bureau believes that such an approach would risk undermining consumers’ understanding of their transactions, which would be inconsistent with the purpose of this rulemaking, because they could be distracted by extensive blank or ‘‘N/A’’ disclosures from the relevant disclosures present on the form. Although chattel-dwelling loans are subject to TILA, excluding them from coverage of the integrated disclosures would not excuse them from TILA’s disclosure requirements. Rather, they would remain subject to the existing closed-end TILA disclosure requirements as implemented in § 1026.18. Thus, this approach preserves the current treatment of chattel-dwelling loans under both RESPA and TILA. The Bureau expects that it will undertake improvements to the § 1026.18 disclosures in the future, through a process similar to the one used in this proposal. The Bureau believes that the TILA disclosures resulting from that process would be more appropriate and more beneficial to consumers than the integrated disclosures under this proposal. Excluding chattel-dwellings from the integrated disclosure requirements means they would not be subjected by this rulemaking to certain new disclosure requirements added to TILA section 128(a) by the Dodd-Frank Act. As discussed under § 1026.1(c) above, certain new mortgage disclosure requirements established by the DoddFrank Act are being deferred until such requirements are implemented by regulations. Such regulations include, but are not limited to, the final rule that will be adopted under this proposal. As noted above, the Bureau plans to address chattel-dwellings, as well as reverse mortgages and HELOCs, in future rulemakings. Accordingly, pursuant to the authority discussed above, those transactions also are VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 subject to the temporary exemption in proposed § 1026.1(c) until those rulemakings are completed. The Bureau’s proposal. For the reasons discussed above, proposed § 1026.19(e) and (f), discussed further below, requires that the integrated disclosures be provided for closed-end consumer credit transactions secured by real property, other than a reverse mortgage subject to § 1026.33. Similarly, proposed § 1026.19(g) requires provision of the home buying information booklet for closed-end consumer credit transactions secured by real property and states in § 1026.19(g)(1)(iii)(C) that the requirement does not apply to reverse mortgages. Accordingly, constructiononly loans and vacant-land loans are subject to the proposed integrated disclosure and booklet requirements. On the other hand, chattel-dwelling loans are not subject to the proposed integrated disclosure or booklet requirements and, instead, remain subject to the existing disclosure requirements in § 1026.18. Finally, federally related mortgage loans extended by a person that is not a creditor, as defined in Regulation Z § 1026.2(a)(17), are not subject to the proposed integrated disclosure or booklet requirements because such transactions are not subject to Regulation Z at all. The Bureau believes that, although construction-only loans, vacant-land loans, and 25-acre loans all currently are exempt from RESPA coverage either by statute or regulation, consumers may benefit from the integrated disclosures in such transactions. If such transactions were not subjected to the integrated disclosure requirements, they would remain subject to the existing TILA disclosures under § 1026.18. The Bureau believes this treatment would deprive consumers in such transactions of the benefits of the enhanced disclosures developed for this proposal. Moreover, these types of transactions involve real property and, therefore, are amenable to disclosure of the information currently disclosed through the RESPA GFE and settlement statement requirements. Thus, the Bureau expects that creditors should be able to use existing systems to provide the integrated disclosures for such transactions. The Bureau solicits comment, however, on whether application of the integrated disclosures to these transactions will impose significant burdens on creditors. The Bureau also believes that, if a lender extends five or fewer consumer credit transactions secured by a consumer’s dwelling in a year, it should PO 00000 Frm 00044 Fmt 4701 Sfmt 4702 not be subject to TILA or Regulation Z. This treatment preserves the status of such transactions under existing Regulation Z. That is, currently, consumers do not receive Regulation Z disclosures from such lenders because they are not considered ‘‘creditors’’ pursuant to § 1026.2(a)(17)(v). The Bureau believes that eliminating this exemption could represent a significant expansion of TILA coverage and is unaware of any significant problems encountered by consumers obtaining credit from such small lenders that might justify such an expansion. Further, because such small creditors may lack the systems to comply with TILA, they may cease to extend credit if forced to establish compliance systems. Although preserving this exemption means that the integrated disclosures would not be received by consumers in such transactions, the Bureau expects the impact of such an exemption to be limited. Based on data reported for 2010 under the Home Mortgage Disclosure Act (HMDA), 12 U.S.C. 2801 et seq., the Bureau notes that 569 creditors (seven percent of all HMDA reporters) reported five or fewer originations and, more significantly, that their combined originations of 1399 loans equaled only 0.02 percent of all originations reported under HMDA for that year. These transactions would remain subject to the RESPA disclosure requirements under Regulation X. Provision of Current Disclosures Under TILA and RESPA TILA. Section 128(b)(2)(A) of TILA provides that for an extension of credit secured by a consumer’s dwelling, which is also subject to RESPA, good faith estimates of the disclosures in section 128(a) shall be made in accordance with regulations of the Bureau and shall be delivered or placed in the mail not later than three business days after the creditor receives the consumer’s written application. 15 U.S.C. 1638(b)(2)(A). Section 128(b)(2)(A) also requires these disclosures to be delivered at least seven business days before consummation. Regulation Z implements this provision in § 1026.19(a), which generally tracks the statute except that it does not apply to home equity lines of credit subject to § 1026.40 and mortgage transactions secured by a consumer’s interest in a timeshare plan subject to § 1026.19(a)(5). Section 128(b)(2)(A) and (D) of TILA states that, if the disclosures provided pursuant to section 128(b)(2)(A) contain an annual percentage rate that is no longer accurate, the creditor shall furnish an additional, corrected E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 statement to the borrower not later than three business days before the date of consummation of the transaction. 15 U.S.C. 1638(b)(2)(A), (D). Regulation Z implements TILA’s requirement that the creditor deliver corrected disclosures in § 1026.19(a)(2)(ii). RESPA. Section 5(c) of RESPA states that lenders shall provide, within three days of receiving the consumer’s application, a good faith estimate of the amount or range of charges for specific settlement services the borrower is likely to incur in connection with the settlement as prescribed by the Bureau.133 12 U.S.C. 2604(c). Section 3(3) of RESPA defines ‘‘settlement services’’ as: [A]ny service provided in connection with a real estate settlement including, but not limited to, the following: title searches, title examinations, the provision of title certificates, title insurance, services rendered by an attorney, the preparation of documents, property surveys, the rendering of credit reports or appraisals, pest and fungus inspections, services rendered by a real estate agent or broker, the origination of a federally related mortgage loan (including, but not limited to, the taking of loan applications, loan processing, and the underwriting and funding of loans), and the handling of the processing, and closing or settlement. 12 U.S.C. 2602(3). Section 1024.7(a)(1) of Regulation X currently provides that, not later than three business days after a lender receives an application, or information sufficient to complete an application, the lender must provide the applicant with the GFE. In contrast to the TILA and RESPA good faith estimate requirements, which apply to creditors, the RESPA settlement statement requirement generally applies to settlement agents. Specifically, section 4 of RESPA provides that the settlement statement must be completed and made available for inspection by the borrower at or 133 RESPA section 5(d) provides that ‘‘Each lender referred to in subsection (a) of this section shall provide the booklet described in such subsection to each person from whom it receives or for whom it prepares a written application to borrow money to finance the purchase of residential real estate. Such booklet shall be provided by delivering it or placing it in the mail not later than 3 business days after the lender receives the application, but no booklet need be provided if the lender denies the application for credit before the end of the 3-day period.’’ RESPA section 5(c) provides that ‘‘Each lender shall include with the booklet a good faith estimate of the amount or range of charges for specific settlement services the borrower is likely to incur in connection with the settlement as prescribed by the Bureau.’’ Thus, the lender must deliver the good faith estimate not later than three business days after receiving the consumer’s application. VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 before settlement by the person conducting the settlement. 12 U.S.C. 2603(b). Section 4 also provides that, upon the request of the borrower, the person who will conduct the settlement shall permit the borrower to inspect those items which are known to such person on the settlement statement during the business day immediately preceding the day of settlement. Id. These requirements are implemented in Regulation X § 1024.10(a). The Dodd-Frank Act. Sections 1098 and 1100A of the Dodd-Frank Act amended RESPA and TILA to require an integrated disclosure that ‘‘may apply to a transaction that is subject to both or either provisions of law.’’ Accordingly, as discussed below, the Bureau is proposing to integrate the TILA and RESPA good faith estimate requirements in a new § 1026.19(e). The Bureau is also proposing to integrate the TILA and RESPA settlement statement requirements in a new § 1026.19(f). Finally, as appropriate, the Bureau is proposing to incorporate related statutory and regulatory requirements into § 1026.19 and to make conforming amendments. 19(a) Reverse Mortgage Transactions Subject to RESPA As discussed above, the proposal narrows the scope of § 1026.19(a) so that all loans currently subject to § 1026.19(a), other than reverse mortgages, are instead subject to proposed § 1026.19(e) and (f). Pursuant to its authority under section 105(a) of TILA, the Bureau proposes to amend § 1026.19(a)(1)(i) to apply only to reverse mortgage transactions subject to both § 1026.33 and RESPA. This proposed amendment is consistent with TILA’s purpose in that it seeks to ensure meaningful disclosure of credit terms by requiring the integrated disclosures only with respect to the loans for which they were designed—mortgage loans secured by real property other than reverse mortgages. This modification will also be in the interest of consumers and the public because consumer understanding will be improved if consumers of reverse mortgages are not provided with inapplicable disclosures, consistent with Dodd-Frank Act section 1405(b). The Bureau also proposes to make conforming changes to § 1026.19(a)(1)(ii), to delete § 1026.19(a)(5), to delete comments 19(a)(5)(ii)–1 through –5, and to delete comments 19(a)(5)(iii)–1 and –2. PO 00000 Frm 00045 Fmt 4701 Sfmt 4702 51159 19(e) Mortgage Loans Secured by Real Property—Early Disclosures 19(e)(1) Provision 19(e)(1)(i) Creditor As discussed above, the Bureau is proposing to integrate the good faith estimate requirements in TILA section 128 and RESPA section 5 in § 1026.19(e)(1)(i), which provides that in a closed-end consumer credit transaction secured by real property, other than a reverse mortgage subject to § 1026.33, the creditor shall make good faith estimates of the disclosures listed in § 1026.37. Proposed comment 19(e)(1)(i)–1 explains that § 1026.19(e)(1)(i) requires early disclosure of credit terms in closed-end credit transactions that are secured by real property, other than reverse mortgages. These disclosures must be provided in good faith. Except as otherwise provided in § 1026.19(e), a disclosure is in good faith if it is consistent with the best information reasonably available to the creditor at the time the disclosure is provided. 19(e)(1)(ii) Mortgage Broker Currently, neither TILA’s nor RESPA’s disclosure requirements apply to mortgage brokers. The disclosure requirements of Regulation Z also do not apply to mortgage brokers. Section 1024.7(b) of Regulation X, however, currently permits mortgage brokers to deliver the GFE, provided that the mortgage broker otherwise complies with the relevant requirements of Regulation X, and provided that the lender remains responsible for ensuring that the mortgage broker does so. The Bureau recognizes that, in some cases, permitting mortgage brokers to deliver the integrated disclosure may benefit consumers. Some consumers may have better relationships with mortgage brokers than with creditors, which may enable mortgage brokers to assist those consumers with understanding the GFE more effectively and efficiently. However, there are concerns regarding the ability of mortgage brokers to provide the information required by the integrated Loan Estimate accurately and reliably. For example, it is not clear that mortgage brokers have the ability to inform the consumer whether the lender intends to service the consumer’s loan, or whether the lender will permit a person to assume the consumer’s loan on the original terms. Similarly, it is uncertain that mortgage brokers have the ability to estimate taxes and insurance, which is a new disclosure on the Loan Estimate that is not included on the current RESPA GFE, to the level E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51160 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules of specificity required for the Loan Estimate under proposed § 1026.19(e)(3). There is an additional concern that mortgage brokers do not have the technology necessary to comply with TILA’s requirements regarding delivery of estimates, delivery of revised disclosures, and recordkeeping. The Bureau proposes to exercise its authority under TILA section 105(a) and, with respect to residential mortgage loans, Dodd-Frank Act section 1405(b) to preserve the flexibility in current Regulation X by permitting the mortgage broker to provide the integrated Loan Estimate under § 1026.19(e)(1)(ii), subject to certain limitations. This proposed provision is consistent with TILA’s purpose in that consumers will be able to compare more readily the credit terms available if mortgage brokers and creditors are able to disclose available credit terms by use of the Loan Estimate. In addition, this modification will be in the interest of consumers and the public because consumer understanding and awareness will be improved if consumers can rely on the Loan Estimate regardless of whether it is provided by a creditor or mortgage broker, consistent with DoddFrank Act section 1405(b). Specifically, proposed § 1026.19(e)(1)(ii) provides that, in providing the Loan Estimate, the mortgage broker must act as the creditor in every respect, including complying with all of the requirements of proposed § 1026.19(e) and assuming all related responsibilities and obligations. The Bureau also seeks comment on the ability of mortgage brokers to comply with the requirements of TILA. In addition, the Bureau seeks comment on the ability of creditors to coordinate their operations with mortgage brokers in a manner that provides the same or better information to consumers than if the creditor alone were permitted to provide the disclosures. Proposed comment 19(e)(1)(ii)–1 explains that a mortgage broker may provide the disclosures required under § 1026.19(e)(1)(i) instead of the creditor. By assuming this responsibility, the mortgage broker becomes responsible for complying with all of the relevant requirements as if it were the creditor, meaning that ‘‘mortgage broker’’ should be read in the place of ‘‘creditor’’ for all the relevant provisions of § 1026.19(e), except where the context indicates otherwise. The creditor and mortgage broker must effectively communicate to ensure timely and accurate compliance with the requirements of § 1026.19(e). Proposed comment 19(e)(1)(ii)-2 provides further guidance on the mortgage broker’s responsibilities in the VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 event that the mortgage broker provides the disclosures required under § 1026.19(e), explaining that if a mortgage broker issues any disclosure under § 1026.19(e), the mortgage broker must comply with the requirements of § 1026.19(e). For example, if the mortgage broker receives sufficient information to complete an application, the mortgage broker must issue the disclosures required under § 1026.19(e)(1)(i) within three business days in accordance with § 1026.19(e)(1)(iii). If the broker subsequently receives information sufficient to establish that a disclosure provided under § 1026.19(e)(1)(i) must be reissued under § 1026.19(e)(3)(iv), then the mortgage broker is responsible for ensuring that a revised disclosure is provided. Proposed comment 19(e)(1)(ii)–3 discusses the creditor’s responsibilities in the event that a mortgage broker provides disclosures under § 1026.19(e). The proposed comment explains that if a mortgage broker issues any disclosure required under § 1026.19(e) in the creditor’s place, the creditor remains responsible under § 1026.19(e) for ensuring that the requirements of § 1026.19(e) have been satisfied. For example, the creditor must ensure that the broker provides the disclosures required under § 1026.19(e) not later than three business days after the mortgage broker received information sufficient to constitute an application, as defined in § 1026.2(a)(3)(ii). The creditor does not satisfy the requirements of § 1026.19(e) if it provides duplicative disclosures. For example, a creditor does not meet its burden by issuing disclosures required under § 1026.19(e) that mirror disclosures already issued by the broker for the purpose of demonstrating that the consumer received timely disclosures. If the broker provides an erroneous disclosure, the creditor is responsible and may not issue a revised disclosure correcting the error. The creditor is expected to maintain communication with the broker to ensure that the broker is acting in place of the creditor. This comment is consistent with guidance provided by HUD in the HUD RESPA FAQs p. 8–10, # 16, 26, 29 (‘‘GFE—General’’). Disclosures provided by a broker in accordance with § 1026.19(e)(1)(ii) satisfy the creditor’s obligation under § 1026.19(e)(1)(i). Proposed comment 19(e)(1)(ii)–4 discusses when mortgage brokers must comply with § 1026.19(e)(2)(ii), regarding the provision of preliminary written estimates specific to the consumer. The proposed comment PO 00000 Frm 00046 Fmt 4701 Sfmt 4702 explains that § 1026.19(e)(1)(ii) requires mortgage brokers to comply with § 1026.19(e)(2)(ii) if a mortgage broker provides any disclosures under § 1026.19(e). For example, if a mortgage broker never provides disclosures required by § 1026.19(e), the mortgage broker need not include the disclosure required by § 1026.19(e)(2)(ii) on written information provided to consumers. 19(e)(1)(iii) Timing Section 128(b)(2)(A) of TILA provides that good faith estimates of the disclosures under section 128(a) shall be delivered or placed in the mail not later than three business days after the creditor receives the consumer’s written application. 15 U.S.C. 1638(b)(2)(A). Section 128(b)(2)(A) also requires these disclosures to be delivered at least seven business days before consummation. RESPA requires lenders to provide the GFE not later than three business days after receiving the consumer’s application, but does not require provision at least seven business days before consummation. These requirements are implemented in § 1026.19(a)(1)(i) and (a)(2)(i) of Regulation Z and § 1024.7(a)(2) of Regulation X, respectively. The Bureau believes that, for the proposed rule to be consistent with the requirements of both statutes, both the three-business-day delivery requirement and the seven-business-day waiting period should apply to the integrated Loan Estimate. Although RESPA does not contain a seven-business-day waiting period, this waiting period is consistent with the purposes of RESPA, and adopting it for the integrated disclosures may best effectuate the purposes of both TILA and RESPA by enabling the informed use of credit and ensuring effective advance disclosure of settlement charges. Accordingly, pursuant to its authority under TILA section 105(a), RESPA section 19(a), Dodd-Frank Act section 1032(a), and, for residential mortgage loans, section 1405(b) of the Dodd-Frank Act, the Bureau proposes § 1026.19(e)(1)(iii), which provides that the creditor shall deliver the disclosures required by § 1026.19(e)(1)(i) not later than the third business day after the creditor receives the consumer’s application, as defined in proposed § 1026.2(a)(3)(ii), and that the creditor shall deliver these disclosures not later than the seventh business day before consummation of the transaction. This proposed provision is consistent with TILA’s purposes in that consumers will be able to compare more readily the various credit terms available and avoid the uninformed use of credit, thereby assuring a meaningful E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules disclosure of credit terms. This proposed regulation is consistent with section 19(a) of RESPA because it achieves the purposes of RESPA by requiring more effective advance disclosure to consumers of settlement costs. In addition, the Bureau is proposing this provision pursuant to its authority under Dodd-Frank Act section 1032(a) because the proposal ensures that the features of the credit transaction are fully, accurately, and effectively disclosed to the consumer in a manner that permits consumers to understand the costs, benefits, and risks associates with the mortgage loan by providing sufficient time to review, question, and understand the entire cost of the transaction, which is also in the best interest of consumers and the public, consistent with Dodd-Frank Act section 1405(b). Proposed comment 19(e)(1)(iii)–1 further clarifies this provision and provides illustrative examples. Proposed comment 19(e)(1)(iii)–2 discusses the waiting period, providing that the seven-business-day waiting period begins when the creditor delivers the disclosures or places them in the mail, not when the consumer receives or is presumed to have received the disclosures. For example, if a creditor delivers the early disclosures to the consumer in person or places them in the mail on Monday, June 1, consummation may occur on or after Tuesday, June 9, the seventh business day following delivery or mailing of the early disclosures, because, for the purposes of § 1026.19(e)(1)(iii), Saturday is a business day, pursuant to § 1026.2(a)(6). Proposed comment 19(e)(1)(iii)–3 relates to denied or withdrawn applications, explaining that the creditor may determine within the three-business-day period that the application will not or cannot be approved on the terms requested, such as when a consumer’s credit score is lower than the minimum score required for the terms the consumer applied for, or the consumer applies for a type or amount of credit that the creditor does not offer. In that case, or if the consumer withdraws the application within the three-business-day period, the creditor need not make the disclosures required under § 1026.19(e)(1)(i). If the creditor fails to provide early disclosures and the transaction is later consummated on the terms originally applied for, then the creditor violates § 1026.19(e)(1)(i). If, however, the consumer amends the application because of the creditor’s unwillingness to approve it on the terms originally applied for, no violation occurs for not providing disclosures VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 based on those original terms. But the amended application is a new application subject to § 1026.19(e)(1)(i). 19(e)(1)(iv) Delivery Section 128(b)(2)(E) of TILA provides that, if the disclosures are mailed to the consumer, the consumer is considered to have received them three business days after they are mailed. 15 U.S.C. 1638(b)(2)(E). RESPA provides that the GFE may be delivered either in person or by placing it in the mail. 12 U.S.C. § 2604(c) and (d). Regulation Z provides that if the disclosures are provided to the consumer by means other than delivery in person, the consumer is considered to have received the disclosures three business days after they are mailed or delivered. See § 1026.19(a)(1)(ii). Regulation X contains a similar provision. See § 1024.7(a)(4). To establish a consistent standard for the integrated Loan Estimate, pursuant to its authority under TILA section 105(a), RESPA section 19(a), DoddFrank Act section 1032(a), and, for residential mortgage loans, section 1405(b) of the Dodd-Frank Act, the Bureau proposes § 1026.19(e)(1)(iv), which states that, if the disclosures are provided to the consumer by means other than delivery in person, the consumer is presumed to have received the disclosures three business days after they are mailed or delivered to the address specified by the consumer. Proposed comment 19(e)(1)(iv)–1 explains that if any disclosures required under § 1026.19(e)(1)(i) are not provided to the consumer in person, the consumer is presumed to have received the disclosures three business days after they are mailed or delivered. This is a presumption which may be rebutted by providing evidence that the consumer received the disclosures earlier than three business days. The proposed comment also contains illustrative examples. Proposed comment 19(e)(1)(iv)–2 clarifies that the presumption established in § 1026.19(e)(1)(iv) applies to methods of electronic delivery, such as email. However, creditors using electronic delivery methods, such as email, must also comply with § 1026.17(a)(1). The proposed comment also contains illustrative examples. 19(e)(1)(v) Consumer’s Waiver of Waiting Period Before Consummation Section 128(b)(2)(F) of TILA provides that the consumer may waive or modify the timing requirements for disclosures to expedite consummation of a transaction, if the consumer determines that the extension of credit is needed to PO 00000 Frm 00047 Fmt 4701 Sfmt 4702 51161 meet a bona fide personal financial emergency. Section 128(b)(2)(F) further provides that: (1) the term ‘‘bona fide personal financial emergency’’ may be further defined in regulations issued by the Bureau; (2) the consumer must provide the creditor with a dated, written statement describing the emergency and specifically waiving or modifying the timing requirements, which bears the signature of all consumers entitled to receive the disclosures; and (3) the creditor must provide, at or before the time of waiver or modification, the final disclosures. 15 U.S.C. 1638(b)(2)(F). This provision is implemented in § 1026.19(a)(3) of Regulation Z. Neither RESPA nor Regulation X contains a similar provision. Although the Bureau understands that waivers based on a bona fide personal financial emergency are rare, this exception serves an important purpose: consumers should be able to waive the protection afforded by the waiting period if, in the face of a financial emergency, the waiting period does more harm than good. Accordingly, pursuant to its authority under TILA section 105(a) and RESPA section 19(a) the Bureau is proposing § 1026.19(e)(1)(v), which allows a consumer to waive the seven-businessday waiting period in the event of a bona fide personal financial emergency. In addition, the Bureau seeks comment on the nature of waivers based on bona fide personal financial emergencies. The Bureau also seeks comment on whether the bona fide personal financial emergency exception is needed more in some contexts than in others (e.g., in refinance transactions or purchase money transactions). Proposed comment 19(e)(1)(v)–1 explains that a consumer may modify or waive the right to the seven-businessday waiting period required by § 1026.19(e)(1)(iii) only after the creditor makes the disclosures required by § 1026.19(e)(1)(i). The consumer must have a bona fide personal financial emergency that necessitates consummating the credit transaction before the end of the waiting period. Whether these conditions are met is determined by the individual facts and circumstances. The imminent sale of the consumer’s home at foreclosure, where the foreclosure sale will proceed unless loan proceeds are made available to the consumer during the waiting period, is one example of a bona fide personal financial emergency. Each consumer who is primarily liable on the legal obligation must sign the written statement for the waiver to be effective. Proposed comment 19(e)(1)(v)–2 E:\FR\FM\23AUP2.SGM 23AUP2 51162 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 provides illustrative examples of this requirement. 19(e)(1)(vi) Shopping for Settlement Service Providers Neither TILA nor RESPA nor Regulation Z requires creditors to inform consumers about settlement service providers for whom the consumer may shop. However, as explained above, Regulation X provides that where a lender or mortgage broker permits a borrower to shop for third party settlement services, the lender or broker must provide the borrower with a written list of settlement services providers at the time the GFE is provided on a separate sheet of paper. 12 CFR part 1024 app. C. HUD intended this requirement to enable consumers to shop for settlement service providers, thereby enhancing market competition and lowering settlement service costs for consumers. See 73 FR at 14030. The Bureau agrees that the written list of settlement service providers may benefit consumers by fostering settlement service shopping. Therefore, the Bureau proposes § 1026.19(e)(1)(vi). As an initial matter, proposed § 1026.19(e)(1)(vi)(A) provides that a creditor permits a consumer to shop for a settlement service if the creditor permits the consumer to select the provider of that service, subject to reasonable minimum requirements regarding the qualifications of the provider. Comment 19(e)(1)(vi)–1 provides examples of minimum requirements that are and are not reasonable. For example, the creditor may require that a settlement agent chosen by the consumer must be appropriately licensed in the relevant jurisdiction. In contrast, a creditor may not require the consumer to choose a provider from a list provided by creditor. This comment also clarifies that the requirements of § 1026.19(e)(1)(vi)(B) and (C) do not apply if the creditor does not permit the consumer to shop. Proposed § 1026.19(e)(1)(vi)(B) provides that the creditor shall identify the services for which the consumer is permitted to shop in the Loan Estimate. Comment 19(e)(1)(vi)–2 clarifies that § 1026.37(f)(3) contains the content and format requirements for this disclosure. Proposed § 1026.19(e)(1)(vi)(C) provides that, if the creditor permits a consumer to shop for a settlement service, the creditor shall provide the consumer with a written list identifying available providers of that service and stating that the consumer may choose a different provider for that service. It further requires that the list be provided separately from the Loan Estimate but in VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 accordance with the timing requirements for that disclosure (i.e., within three days after application). Comment 19(e)(1)(vi)–3 explains that the settlement service providers identified on the written list must correspond to the settlement services for which the consumer may shop, as disclosed on the Loan Estimate pursuant to § 1026.37(f)(3). It also refers to the model list provided in form H–27. Comment 19(e)(1)(vi)–4 clarifies that a creditor does not comply with the requirement in § 1026.19(e)(1)(vi)(C) to ‘‘identify’’ providers unless it provides sufficient information to allow the consumer to contact the provider, such as the name under which the provider does business and the provider’s address and telephone number. It also clarifies that a creditor does not comply with the availability requirement in § 1026.19(e)(1)(vi)(C) if it provides a written list consisting of only settlement service providers that are no longer in business or that do not provide services where the consumer or property is located. However, if the creditor determines that there is only one available settlement service provider, the comment clarifies that the creditor need only identify that provider on the written list of providers. The guidance regarding availability is consistent with guidance provided by HUD in the HUD RESPA FAQs p. 15, # 7 (‘‘GFE—Written list of providers’’). Comment 19(e)(1)(vi)–5 refers to form H–27 for an example of a statement that the consumer may choose a provider that is not included on that list. Comment 19(e)(1)(vi)–6 clarifies that the creditor may include a statement on the written list that the listing of a settlement service provider does not constitute an endorsement of that service provider. It further clarifies that the creditor may also identify in the written list providers of services for which the consumer is not permitted to shop, provided that the creditor expressly and clearly distinguishes those services from the services for which the consumer is permitted to shop. This may be accomplished by placing the services under different headings. Finally, comment 19(e)(1)(vi)–7 discusses how proposed § 1026.19(e)(1)(vi) relates to the requirements of RESPA and Regulation X. The proposed comment explains that § 1026.19 does not prohibit creditors from including affiliates on the written list under § 1026.19(e)(1)(vi). However, a creditor that includes affiliates on the written list must also comply with § 1024.15 of Regulation X. This comment is consistent with guidance PO 00000 Frm 00048 Fmt 4701 Sfmt 4702 provided by HUD in its RESPA FAQs p. 16, # 9 (‘‘GFE—Written list of providers’’). The proposed comment also explains that the written list is a ‘‘referral’’ under § 1024.14(f). This comment is consistent with guidance provided by HUD in the HUD RESPA FAQs p. 14, # 4 (‘‘GFE—Written list of providers’’). In addition to these proposed regulations and comments, the Bureau solicits comment regarding whether the final rule should provide more detailed requirements for the written list of providers. The Bureau also solicits comment regarding whether the final rule should include additional guidance regarding the content and format of the provider list. This proposal is made pursuant to the Bureau’s authority under sections 105(a) of TILA, 19(a) of RESPA, and, for residential mortgage loans, sections 129B(e) of TILA and 1405(b) of the Dodd-Frank Act. This proposed provision is consistent with TILA’s purposes in that it will increase consumer awareness of the costs of the transaction by informing consumers that settlement costs can be influenced by shopping, thereby promoting the informed use of credit. This provision is consistent with section 129B(e) of TILA because failing to inform borrowers of available settlement service providers increases the difficulty of shopping for those services, which is not in the interest of the borrower. It achieves the purposes of RESPA because disclosure of available settlement service providers encourages consumer shopping and settlement service provider competition, which will result in the elimination of kickbacks, referral fees, and other practices that tend to increase unnecessarily the costs of certain settlement services. In addition, the requirements in proposed § 1026.19(e)(1)(vi) are in the interest of consumers and in the public interest because they will improve consumer understanding and awareness of the mortgage loan transaction through the use of disclosure by informing consumers about shopping for settlement service providers and making consumers aware of different settlement service providers available for the transaction, consistent with Dodd-Frank Act section 1405(b). 19(e)(2) Pre-Disclosure Activity 19(e)(2)(i) Imposition of Fees on Consumer 19(e)(2)(i)(A) Fee Restriction Section 128(b)(2)(E) of TILA provides that the ‘‘consumer shall receive the disclosures required under [TILA E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules section 128(b)] before paying any fee to the creditor or other person in connection with the consumer’s application for an extension of credit that is secured by the dwelling of a consumer.’’ 15 U.S.C. 1638(b)(2)(E). This provision is implemented in § 1026.19(a)(1)(ii). Although RESPA does not expressly contain a similar provision, Regulation X does. See § 1024.7(a)(4). However, unlike Regulation Z, Regulation X prohibits a consumer from paying a fee until the consumer indicates an intent to proceed with the transaction after receiving the disclosures. Id. As discussed below, both Regulation Z and Regulation X provide an exception only for the cost of obtaining a credit report. Thus, Regulation X requires consumers to take an additional affirmative step before new fees may be charged. The Bureau believes that the goals of the integrated disclosure are best served by adopting the approach under Regulation X. The Bureau intends for consumers to use the integrated disclosure to make informed financial decisions. This goal may also be inhibited if fees are imposed on consumers before a consumer indicates intent to proceed. For example, after reviewing the Loan Estimate a consumer may be uncertain that the disclosed terms are in the consumer’s best interest or that the disclosed terms are those for which the consumer originally asked. If fees may be imposed before the consumer decides to proceed with a particular loan, consumers may not take additional time to understand the costs and evaluate the risks of the disclosed loan. The Bureau also intends for consumers to use the integrated disclosure to compare loan products from different creditors. If creditors can impose fees on consumers once the Loan Estimate is delivered, but before the consumer indicates intent to proceed, shopping may be inhibited. For example, after reviewing the Loan Estimate a consumer may be uncertain that the disclosed terms are the most favorable terms the consumer could receive in the market. If fees may be imposed before the consumer decides to proceed with a particular loan, consumers may determine that too much cost has been expended on a particular Loan Estimate to continue shopping, even though the consumer believes more favorable terms could be obtained from another creditor. Or, consumers may determine that obtaining a Loan Estimate from multiple creditors is too costly if each creditor can impose fees for each Loan Estimate. Accordingly, pursuant to its authority under TILA section 105(a) and RESPA VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 section 19(a), the Bureau proposes § 1026.19(e)(2)(i)(A), which provides that no person may impose a fee on a consumer in connection with the consumer’s application before the consumer has received the disclosures required by § 1026.19(e)(1)(i) and indicated to the creditor an intent to proceed with the transaction described by those disclosures. This proposed regulation carries out the purposes of TILA because requiring the specific identification of the fee imposed assures meaningful disclosures of credit terms, consistent with section 105(a) of TILA, and it achieves the purposes of RESPA because the more specific identification of the fee is a more effective method of advance disclosure, consistent with section 19(a) of RESPA. Proposed comment 19(e)(2)(i)(A)–1 explains that a creditor or other person may not impose any fee, such as for an application, appraisal, or underwriting, until the consumer has received the disclosures required by § 1026.19(e)(1)(i) and indicated an intent to proceed with the transaction. The only exception to the fee restriction allows the creditor or other person to impose a bona fide and reasonable fee for obtaining a consumer’s credit report, pursuant to § 1026.19(e)(2)(i)(B). Proposed comment 19(e)(2)(i)(A)–2 explains that the consumer may indicate intent to proceed in any manner the consumer chooses, unless a particular manner of communication is required by the creditor, provided that the creditor does not assume silence is indicative of intent. The creditor must document this communication to satisfy the requirements of § 1026.25. The proposed comment also includes illustrative examples. Proposed comment 19(e)(2)(i)(A)–3 discusses the collection of fees and provides that at any time prior to delivery of the required disclosures, the creditor may impose a credit report fee as provided in § 1026.19(e)(2)(i)(B). However, the consumer must receive the disclosures required by § 1026.19(e)(1)(i) and indicate an intent to proceed with the mortgage loan transaction before paying or incurring any other fee imposed by a creditor or other person in connection with the consumer’s application for a mortgage loan that is subject to § 1026.19(e)(1)(i). Proposed comment 19(e)(2)(i)(A)–4 provides illustrative examples regarding these requirements. Proposed comment 19(e)(2)(i)(A)–5 discusses determining when a particular charge is ‘‘imposed by’’ a person. The proposed comment provides that, for purposes of § 1026.19(e), a fee is ‘‘imposed by’’ a person if the person PO 00000 Frm 00049 Fmt 4701 Sfmt 4702 51163 requires a consumer to provide a method for payment, even if the payment is not made at that time. For example, a creditor may not require the consumer to provide a $500 check to pay a ‘‘processing fee’’ before the consumer receives the disclosures required by § 1026.19(e)(1)(i) and the consumer subsequently indicates intent to proceed. The creditor in this example does not comply even if the creditor does not deposit the check until after the disclosures required by § 1026.19(e)(1)(i) are received by the consumer and the consumer subsequently indicates intent to proceed. Similarly, a creditor may not require the consumer to provide a credit card number before the consumer receives the disclosures required by § 1026.19(e)(1)(i) and the consumer subsequently indicates intent to proceed, even if the creditor promises not to charge the consumer’s credit card for the $500 processing fee until after the disclosures required by § 1026.19(e)(1)(i) are received by the consumer and the consumer subsequently indicates intent to proceed. In contrast, a creditor complies with § 1026.19(e)(2) if the creditor requires the consumer to provide a credit card number before the consumer receives the disclosures required by § 1026.19(e)(1)(i) and subsequently indicates intent to proceed if the consumer’s authorization is only to pay for the cost of a credit report. This is so even if the creditor maintains the consumer’s credit card number on file and charges the consumer a $500 processing fee after the disclosures required by § 1026.19(e)(1)(i) are received and the consumer subsequently indicates intent to proceed, provided that the creditor requested and received a separate authorization for the processing fee charge from the consumer after the consumer received the disclosures required by § 1026.19(e)(1)(i). 19(e)(2)(i)(B) Exception to Fee Restriction Section 1026.19(a)(1)(iii) of Regulation Z currently provides that a person may impose a fee for obtaining a consumer’s credit history prior to providing the good faith estimates, which is the lone exception to the general rule established by § 1026.19(a)(1)(ii) that fees may not be imposed prior to the consumer’s receipt of the disclosures. Section 1024.7(a)(4) of Regulation X contains a similar exception, but it differs in two important respects. First, Regulation Z provides that the fee may be imposed for a consumer’s ‘‘credit history,’’ while E:\FR\FM\23AUP2.SGM 23AUP2 51164 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Regulation X specifies that the fee must be for the consumer’s ‘‘credit report.’’ The Regulation Z provision could be read as permitting a broader range of activity than just acquiring a consumer’s credit report. The Bureau believes that the purposes of the integrated disclosure are better served by adopting the terminology used by Regulation X. Consumers should be able to receive a reliable estimate of mortgage loan costs with as little up-front expense and burden as possible, while creditors should be able to receive sufficient information from the credit report alone to develop a reasonably accurate estimate of costs. Another issue stems from existing commentary under Regulation Z, which provides that the fee charged pursuant to § 1026.19(a)(1)(iii) may be described or referred to as an ‘‘application fee,’’ provided the fee meets the other requirements of § 1026.19(a)(1)(iii). The Bureau believes that the better approach, for purposes of the integrated disclosure, is to require a fee for a credit report to be disclosed with the more precise label. Consumers may be more likely to understand that a credit report fee is imposed if a fee for the purpose of obtaining a credit report is clearly described as such. Additionally, compliance costs are generally reduced when regulatory requirements are standardized. Accordingly, the Bureau proposes § 1026.19(e)(2)(i)(B), which provides that a person may impose a bona fide and reasonable fee for obtaining the consumer’s credit report before the consumer has received the disclosures required by § 1026.19(e)(1)(i). Proposed comment 19(e)(2)(i)(B)–1 clarifies that a creditor or other person may impose a fee before the consumer receives the required disclosures if it is for purchasing a credit report on the consumer, provided that such fee is bona fide and reasonable in amount. Also, the creditor must accurately describe or refer to this fee, for example, as a ‘‘credit report fee.’’ 19(e)(2)(ii) Written Information Provided to Consumer The Bureau understands that consumers often request written estimates of loan terms before receiving the RESPA GFE. The Bureau recognizes that these written estimates may be helpful to consumers. However, the Bureau is concerned that consumers may confuse such written estimates, which are not subject to the good faith requirements of TILA section 128(b)(2)(A) and RESPA section 5 and may be unreliable, with the disclosures required under § 1026.19(e)(1)(i), which must be made in good faith. The Bureau VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 is also concerned that unscrupulous creditors may use formatting and language similar to the disclosures required under § 1026.19(e)(1)(i) to deceive consumers into believing that the creditor’s unreliable written estimate is actually the disclosure required under § 1026.19(e)(1)(i). These concerns are particularly important in light of section 1405(b) of the DoddFrank Act, which places emphasis on improving ‘‘consumer awareness and understanding of transactions involving residential mortgage loans through the use of disclosures.’’ Creditors may choose to issue, and consumers may want, preliminary written estimates based on less information than is needed to issue the disclosures required under § 1026.19(e)(1)(i). However, mortgage loan costs are often highly sensitive to the information that triggers the disclosures. Thus, the disclosures required under § 1026.19(e)(1)(i) may be more accurate indicators of cost than preliminary written estimates. Consumers may better understand the sensitivity of mortgage loan costs to information about the consumer’s creditworthiness and collateral value if consumers are aware of the difference between preliminary written estimates and disclosures required under § 1026.19(e)(1)(i). Additionally, section 1032(a) of the Dodd-Frank Act authorizes the Bureau to prescribe rules to ensure the full, accurate, and effective disclosure of mortgage loan costs in a manner that permits consumers to understand the associated risks. Consumers may not appreciate that preliminary written estimates, which are not subject to the good faith requirements, may not constitute a full, accurate, and effective description of costs, as opposed to relying on the disclosures required under § 1026.19(e)(1)(i), which must be made in good faith. The Bureau seeks to foster consumer understanding of the reliability of the cost information provided, while permitting the use of preliminary written estimates which may be beneficial to consumers. Accordingly, pursuant to its authority under section 105(a) of TILA, section 1032(a) of the Dodd-Frank Act, and, for residential mortgage loans, sections 129B(e) of TILA and 1405(b) of the Dodd-Frank Act, the Bureau proposes to require creditors to distinguish between preliminary written estimates of mortgage loan costs, which are not subject to the good faith requirements under TILA and RESPA, and the disclosures required under § 1026.19(e)(1)(i), which are. Proposed § 1026.19(e)(2)(ii) would require PO 00000 Frm 00050 Fmt 4701 Sfmt 4702 creditors to provide consumers with a disclosure indicating that the written estimate is not the Loan Estimate required by RESPA and TILA, if a creditor provides a consumer with a written estimate of specific credit terms or costs before the consumer receives the disclosures under § 1026.19(e)(1)(i) and subsequently indicates an intent to proceed with the mortgage loan transaction. This proposed provision is consistent with section 105(a) of TILA in that it will increase consumer awareness of the costs of the transaction by informing consumers of the risk of relying on preliminary written estimates, thereby assuring a meaningful disclosure of credit terms and promoting the informed use of credit. This proposed provision is consistent with section 129B(e) of TILA because permitting creditors to provide borrowers with a preliminary written estimate and the Loan Estimate required by TILA and RESPA without a disclosure indicating the difference between the two is not in the interest of the borrower. Proposed comment 19(e)(2)(ii)–1 explains that this requirement applies only to written information specific to the consumer. For example, if the creditor provides a document showing the estimated monthly payment for a mortgage loan, and the estimate was based on the estimated loan amount and the consumer’s estimated credit score, then the creditor must include a notice on the document. In contrast, if the creditor provides the consumer with a preprinted list of closing costs common in the consumer’s area, the creditor need not include the warning. The proposed comment also clarifies that this requirement does not apply to an advertisement, as defined in § 1026.2(a)(2). This proposed comment also contains a reference to comment 19(e)(1)(ii)–4 regarding mortgage broker provision of written estimates specific to the consumer. 19(e)(2)(iii) Verification of Information Section 1024.7(a)(5) of Regulation X currently provides that a creditor may collect any information from the consumer deemed necessary, but the creditor may not require the consumer to provide documentation verifying any information the consumer provided in connection with the application. In order to minimize the cost to consumers of obtaining Loan Estimates, the Bureau believes that this provision should apply to the integrated disclosure. The Bureau proposes § 1026.19(e)(2)(iii), which provides that a creditor shall not require a consumer to submit documents verifying information related E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 to the consumer’s application before providing the disclosures required by § 1026.19(e)(1)(i). The Bureau makes this proposal pursuant to its authority under section 105(a) of TILA, section 19(a) of RESPA, and, for residential mortgage loans, section 129B(e) of TILA. The proposed regulation will effectuate the purposes of TILA by reducing the burden to consumers associated with obtaining different offers of available credit terms, thereby facilitating consumers’ ability to compare credit terms, consistent with section 105(a) of TILA. This proposed provision is consistent with section 129B(e) of TILA because requiring documentation to verify the information provided in connection with an application increases the burden on borrowers associated with obtaining different offers of available credit terms, which is not in the interest of the borrower. This proposed regulation will enable consumers to receive information about the mortgage loan without imposing costs or burdens on the consumer, which will facilitate shopping, thereby effecting changes in the settlement process that will result in the elimination of kickbacks, referral fees, and other practices that tend to increase unnecessarily the costs of certain settlement services, consistent with the Bureau’s authority under section 19(a) of RESPA. Proposed comment 19(e)(2)(iii)–1 explains that the creditor may collect from the consumer any information that it requires prior to providing the early disclosures, including information not listed in § 1026.2(a)(3)(ii). However, the creditor is not permitted to require, before providing the disclosures required by § 1026.19(e)(1)(i), that the consumer submit documentation to verify the information provided by the consumer. For example, the creditor may ask for the names, account numbers, and balances of the consumer’s checking and savings accounts, but the creditor may not require the consumer to provide bank statements, or similar documentation, to support the information the consumer provides orally before providing the disclosures required by § 1026.19(e)(1)(i). 19(e)(3) Good Faith Determination for Estimates of Closing Costs Background As noted above, section 102(a) of TILA provides: ‘‘The Congress finds that economic stabilization would be enhanced and the competition among the various financial institutions and other firms engaged in the extension of VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 consumer credit would be strengthened by the informed use of credit. The informed use of credit results from an awareness of the cost thereof by consumers.’’ 15 U.S.C. 1601(a). This section further provides that the purpose of TILA is ‘‘to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit.’’ Id. To further these goals, TILA requires creditors to disclose certain information about the cost of credit. In the context of certain mortgage loans, the disclosures required under section 128(a) of TILA generally are either costs imposed in connection with the extension of credit, or measures of such costs, such as the annual percentage rate. 15 U.S.C. 1638(b). Examples of items that affect the APR are fees and charges imposed by creditors, such as points and underwriting fees. Section 128(b)(2)(A) provides that these disclosures must be delivered not later than three business days after the creditor receives the consumer’s written application. Section 128(b)(2)(D) requires the creditor to inform the consumer, no later than three business days before consummation, if the costs of the mortgage loan, as reflected in the annual percentage rate, change from what was originally disclosed. 15 U.S.C. 1638(b)(2)(A), (D). TILA contains tolerances for determining whether an estimated disclosure is accurate. For example, section 106(f) provides that the finance charge is not accurate if the estimated finance charge disclosed to the consumer changes by more than a certain amount. 15 U.S.C. 1605(f). If disclosures such as these become inaccurate, TILA requires creditors to provide revised disclosures with the corrected amounts. 15 U.S.C. 1638(b)(2)(D). TILA also permits the creation of new tolerances if the Bureau deems them necessary. Specifically, section 121(d) provides that the ‘‘Bureau shall determine whether tolerances for numerical disclosures other than the annual percentage rate are necessary to facilitate compliance with [TILA], and if it determines that such tolerances are necessary to facilitate compliance, it shall by regulation permit disclosures within such tolerances.’’ 15 U.S.C. 1631(d). Section 121(d) further provides that the ‘‘Bureau shall exercise its authority to permit tolerances for numerical disclosures other than the annual percentage rate so that such tolerances are narrow enough to prevent such tolerances from resulting in misleading disclosures or disclosures PO 00000 Frm 00051 Fmt 4701 Sfmt 4702 51165 that circumvent the purposes of [TILA].’’ Id. Historically, TILA has generally focused on the costs imposed by creditors alone. In contrast, RESPA, in broadly focusing on all costs associated with real estate transactions, was designed to address market failures in the real estate settlement services industry. Echoing TILA, Congress enacted RESPA to ‘‘[e]nsure that consumers throughout the Nation are provided with greater and more timely information on the nature and costs of the settlement process and are protected from unnecessarily high settlement charges caused by certain abusive practices.’’ 12 U.S.C. 2601(a). Congress identified ‘‘more effective advance disclosure to home buyers and sellers of settlement costs’’ as a specific purpose of RESPA. Id. RESPA requires early disclosure of settlement costs to further Congress’s stated purpose that consumers should receive effective advance disclosures of such costs. As discussed above, RESPA requires lenders to provide consumers with good faith estimates of settlement costs, which include most fees charged in connection with a real property settlement, within three days of receiving a consumer’s application for a mortgage loan. 12 U.S.C. 2602(3), 2604(c), (d). Regulation Z also contains a good faith estimate requirement, which implements the requirements of TILA section 128(b)(2)(A), in the context of certain mortgage loans. Section 1026.19(a)(1)(i) of Regulation Z provides that ‘‘the creditor shall make good faith estimates of the disclosures required by § 1026.18 and shall deliver or place them in the mail not later than the third business day after the creditor receives the consumer’s written application.’’ Section 1026.18 includes several disclosures related to the cost of credit, such as the amount financed, finance charge, and annual percentage rate. Section 1026.18(c)(3) also provides that the itemization of amount financed need not be delivered if the RESPA GFE is provided. After a 10-year investigatory process, HUD amended Regulation X to establish new regulatory requirements surrounding the content, accuracy, and delivery of the GFE. HUD’s 2008 RESPA Final Rule added ‘‘tolerance’’ categories limiting the variation between the estimated amounts of settlement charges included on the GFE and the actual amounts included on the RESPA settlement statement. Section 1024.7(e)(1) of Regulation X provides that the actual charges at settlement may not exceed the amounts included on the E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51166 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules GFE for (1) the origination charge, (2) while the borrower’s interest rate is locked, the credit or charge for the interest rate chosen, (3) while the borrower’s interest rate is locked, the adjusted origination charge; and (4) transfer taxes. Section 1024.7(e)(2) provides that the sum of the charges at settlement for the following services may not be greater than 10 percent above the sum of the estimated charges for those services included on the GFE for (1) lender-required settlement services, where the lender selects the third party settlement service provider, (2) lender-required services, title services and required title insurance, and owner’s title insurance, when the borrower uses a settlement service provider identified by the loan originator, and (3) government recording charges. Section 1024.7(e)(3) provides that all other estimated charges may change by any amount prior to settlement. The 2008 RESPA Final Rule also provided that the estimates included on the GFE are binding, with certain limited exceptions and subject to variations permitted by the tolerance categories. 73 FR at 68218–19. Section 1024.7(f)(1) provides: ‘‘If changed circumstances result in increased costs for any settlement services such that the charges at settlement would exceed the tolerances for those charges, the loan originator may provide a revised GFE to the borrower.’’ Section 1024.7(f)(2) provides: ‘‘If changed circumstances result in a change in the borrower’s eligibility for the specific loan terms identified in the GFE, the loan originator may provide a revised GFE to the borrower.’’ ‘‘Changed circumstances’’ are defined as (1) acts of God, war, disaster, or other emergency; (2) information particular to the borrower or transaction that was relied on in providing the GFE and that changes or is found to be inaccurate after the GFE has been provided, which may include information about the credit quality of the borrower, the amount of the loan, the estimated value of the property, or any other information that was used in providing the GFE; (3) new information particular to the borrower or transaction that was not relied on in providing the GFE; or (4) other circumstances that are particular to the borrower or transaction, including boundary disputes, the need for flood insurance, or environmental problems. 12 CFR 1024.2(b). Changed circumstances, however, do not include the borrower’s name, the borrower’s monthly income, the property address, an estimate of the value of the property, the mortgage loan amount sought, and VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 any information contained in any credit report obtained by the loan originator prior to providing the GFE, unless the information changes or is found to be inaccurate after the GFE has been provided, or market price fluctuations by themselves. Id. Additionally, § 1024.7(f)(3) provides: ‘‘If a borrower requests changes to the mortgage loan identified in the GFE that change the settlement charges or the terms of the loan, the loan originator may provide a revised GFE to the borrower.’’ Section 1024.7(f)(4) provides: ‘‘If a borrower does not express an intent to continue with an application within 10 business days after the GFE is provided, or such longer time specified by the loan originator * * * the loan originator is no longer bound by the GFE.’’ The exception provided by § 1024.7(f)(4) relates to the ability of consumers to use the GFE to shop and compare mortgage loans, which is one of the primary purposes of the 2008 RESPA Final Rule. A related provision, § 1024.7(c), provides that ‘‘the estimate of the charges and terms for all settlement services must be available for at least 10 business days from when the GFE is provided, but it may remain available longer, if the loan originator extends the period of availability.’’ Section 1024.7(f)(5) provides: ‘‘If the interest rate has not been locked, or a locked interest rate has expired, the charge or credit for the interest rate chosen, the adjusted origination charges, per diem interest, and loan terms related to the interest rate may change. When the interest rate is later locked, a revised GFE must be provided showing the revised interest ratedependent charges and terms. All other charges and terms must remain the same as on the original GFE, except as otherwise provided [under] this section.’’ Section 1024.7(f)(6) provides: ‘‘In transactions involving new construction home purchases, where settlement is anticipated to occur more than 60 calendar days from the time a GFE is provided, the loan originator may provide the GFE to the borrower with a clear and conspicuous disclosure stating that at any time up until 60 calendar days prior to closing, the loan originator may issue a revised GFE. If no such separate disclosure is provided, the loan originator cannot issue a revised GFE, except as otherwise provided [under] this section.’’ Although settlement charges have historically been the subject of RESPA, section 1419 of the Dodd-Frank Act amended TILA section 128(a) to require creditors to disclose: ‘‘In the case of a PO 00000 Frm 00052 Fmt 4701 Sfmt 4702 residential mortgage loan, the aggregate amount of settlement charges for all settlement services provided in connection with the loan, the amount of charges that are included in the loan and the amount of such charges the borrower must pay at closing * * * and the aggregate amount of other fees or required payments in connection with the loan.’’ 15 U.S.C. 1638(a)(17). ‘‘Settlement charges’’ is not defined under TILA. This amendment expands the disclosure requirements of TILA section 128(a) beyond the cost of credit to include all charges imposed in connection with the mortgage loan. No distinction is made between whether those charges relate to the extension of credit or the real estate transaction, or whether those charges are imposed by the creditor or another party, so long as the charges arise in the context of the mortgage loan settlement. Furthermore, as discussed above, section 1032(f) of the Dodd-Frank Act requires integration of the disclosure provisions under TILA and RESPA. Sections 1098 and 1100A of the DoddFrank Act further provide that the purpose of the integrated disclosure is ‘‘to facilitate compliance with the disclosure requirements of [RESPA] and [TILA], and to aid the borrower or lessee in understanding the transaction by utilizing readily understandable language to simplify the technical nature of the disclosures.’’ 15 U.S.C. 1604(b), 12 U.S.C. 2603(a). These amendments require integration of the regulations related to the accuracy and delivery of the disclosures, as well as their content. Issues With Integrating Different Approaches to Good Faith Estimates, Tolerances, and Redisclosure As discussed above, TILA generally focused on redisclosure in response to changes in the cost of credit that occurred during the mortgage loan origination process. Over time, practices developed that diminished the value of the disclosures. Congress addressed these problems by revising TILA from time to time, seeking to ensure that consumers could use the disclosures to shop for credit.134 However, problems 134 In explaining the 1980 amendment to TILA, Congress stated that the amendment ‘‘would also make disclosures more meaningful to the consumer in mortgage transactions in two respects. First, the creditor would be required to give truth in lending disclosures within 3 days after receiving a consumer’s written application. * * * Under current law, Truth in Lending disclosures are provided for the first time at the real estate closing, making them all but useless for credit shopping.’’ S. Rep. No. 368, 96th Cong., 1st Sess. 1979, reprinted in 1980 U.S. Code Cong. & Ad. News 236, 266. Congress also amended the disclosure E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 in the market persisted, and evidence suggests that consumers were often surprised by the difference between their expectations of the cost of credit, based on the good faith estimates provided during the shopping phase, and the actual cost of credit revealed at settlement.135 The issues arising under TILA were even more pronounced under RESPA. HUD spent over ten years investigating problems in the settlement services industry.136 HUD found that the principles of RESPA were undermined by market forces operating against consumers.137 In the context of home purchases, consumers’ actual settlement costs were sometimes dramatically different from those originally estimated. Consumers did not realize this until immediately before settlement—the point in time where consumers are in the weakest bargaining position. As a result, consumers were often unable to challenge increases in settlement costs when confronted with requirements in 1994 to provide more extensive disclosure on high-cost mortgage loans. Riegle Community Development and Regulatory Improvement Act of 1994, Public Law 103–325, Title I, § 152(d), 108 Stat. 2191 (Sept. 23, 1994); 15 U.S.C. 1639(a). Congress amended the TILA disclosure requirements again in 1996 to provide disclosures related to variable-rate mortgage loans. Economic Growth and Regulatory Paperwork Reduction Act of 1996, Public Law 104–208, Title I, Subtitle A, § 2105, 110 Stat. 3009 (Sept. 30, 1996); 15 U.S.C. 1638(a). 135 ‘‘For refinancings and second mortgages that fall below the HOEPA triggers, the only required written disclosure of the APR and finance charge is usually given at closing on the TILA disclosure, after which the borrower has only the three day rescission period for price shopping, again too short a period to obtain competing offers.’’ Lauren E. Willis, Decisionmaking and the Limits of Disclosure: The Problem of Predatory Lending: Price, 65 Md. L. Rev. 707, 750 (2006). ‘‘[T]he prices on subprime loans often turned out to be a moving target. A lender or broker might have the customer apply for one type of loan, price A, say a fixed rate loan; changed the loan during underwriting to an adjustable rate mortgage, price B; and then finally change the loan at closing to something different at price C, say an interest only mortgage.’’ Federal Reserve Board Public Hearing Re: Building Sustainable Homeownership: Responsible Lending and Informed Consumer Choice, 155 (July 11, 2006) (testimony of Patricia McCoy), available at https:// www.federalreserve.gov/events/publichearings/ hoepa/2006/20060711/transcript.pdf. 136 Joint Report to the Congress Concerning Reform of the Truth in Lending Act and the Real Estate Settlement Procedures Act, (July 1998); 2000 HUD-Treasury Report; 2002 RESPA Proposal (67 FR 49134). 137 ‘‘Estimates appearing on the GFEs can be significantly lower than the amount ultimately charged at settlement and do not provide meaningful guidance on the costs borrowers will incur at settlement. While unforeseeable circumstances can drive up costs in particular circumstances, in most cases loan originators have the ability to estimate final settlement costs with great accuracy.’’ 73 FR 14030, 14039 (March 14, 2008). VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 them at the closing table.138 HUD found that these high closing costs were exacerbated by the fact that consumers rarely shopped for settlement service providers.139 Accordingly, settlement service providers were not accountable to the consumer, and creditors had little motivation to monitor the legitimacy of settlement costs because those costs were simply passed on to the consumer.140 These problems led HUD to the determination that a subjective requirement that estimates be made in ‘‘good faith’’ was not sufficient to achieve the purposes of RESPA. The tolerances included in the 2008 RESPA Final Rule established objective measures of good faith that were designed to ensure that consumers were provided with estimates more closely tied to the actual costs. The provisions related to redisclosure provided industry with the flexibility to revise the charges originally estimated when legitimate and unforeseen issues arose that affected the cost of settlement services, while also ensuring that consumers were not pressured into paying unwarranted costs. The 2008 RESPA Final Rule established a requirement that costs be available for at least 10 business days, along with requirements related to allowing consumers to shop for settlement service providers, sought to re-introduce competition into the markets for both mortgage loan origination and settlement service providers, in accordance with RESPA’s original principles. These revisions to Regulation X took effect in 2010. Some concerns were identified during the implementation process. In particular, concerns have been raised regarding the treatment of fees charged by affiliates of the 138 ‘‘After agreeing to the price of a house, too many families sit down at the settlement table and discover unexpected fees that can add hundreds, if not thousands, of dollars to the cost of their loan. And at that point, they have no other options. On the spot, the borrower is forced to make an impossible choice: either hand over the extra cash and sign, or lose either the house or the funds needed to refinance.’’ Reforming the Real Estate Settlement Procedure: Review of HUD’s proposed RESPA Rule, 107th Cong. (October 3, 2002) (testimony of Mel Martinez, Secretary of the U.S. Department of Housing and Urban Development). 139 See 73 FR 14030, 14034 (March 14, 2008). 140 ‘‘There is not always an incentive in today’s market for originators to control these costs. Too often, high third-party costs are simply passed through to the consumer.’’ U.S. Dep’t. of Housing and Urban Dev., Office of Pol’y Dev. and Research, RESPA: Regulatory Impact Analysis and Initial Regulatory Flexibility Analysis, FR–5180–F–02, Final Rule to Improve the Process of Obtaining Mortgages and Reduce Consumer Costs, iv (2008). See also Eskridge, supra note 83, at 1184–1185. PO 00000 Frm 00053 Fmt 4701 Sfmt 4702 51167 lender.141 Under the 2008 rule, affiliates’ fees are permitted to increase by as much as 10 percent prior to the real estate closing, in addition to increases based on changed circumstances and other similar events. Settlement service providers such as appraisal management companies and title companies may be affiliated with the creditor. Fees paid to these affiliates may constitute a large percentage of the total settlement service fees paid by consumers at consummation. Permitting these fees to vary by ten percent may significantly increase the actual cost of obtaining a mortgage loan. This variance is of particular concern given the nature of the relationship between creditors and their affiliates. Regulation X subjects fees paid to creditors to a zero percent tolerance because credit providers are expected to know their own costs. The same reasoning may apply to services provided by affiliates. An affiliate relationship between a creditor and a provider should facilitate greater communication and coordination than a relationship between independent entities acting at arm’s length. This is especially so given that the rules require precise estimates only of costs that are likely to occur and provide flexibility for cost revisions when an unexpected event occurs, such as a changed circumstance or a change requested by the consumer. Additional concerns about affiliate relationships stem from the fact that no justification is required if affiliate fees increase by as much as ten percent. Given that the affiliate relationship is beneficial to the creditor, this may create an incentive to increase fees at the real estate closing without justification, solely to obtain all money available under the tolerance. A rule that encourages such rent-seeking behavior could harm consumers by unjustifiably increasing settlement costs, which is contrary to the purposes of RESPA. Another concern with Regulation X centers on the ability of consumers to shop for settlement service providers. Regulation X requires loan originators to provide borrowers with a written list of providers in some cases.142 This provision was intended to enable consumers to shop for settlement 141 For purposes of this proposal, ‘‘affiliate’’ means any company that controls, is controlled by, or is under common control with another company, as set forth in the Bank Holding Company Act of 1956 (12 U.S.C. 1841 et seq.). 142 ‘‘Where a loan originator permits a borrower to shop for third party settlement services, the loan originator must provide the borrower with a written list of settlement services providers at the time of the GFE, on a separate sheet of paper.’’ 12 CFR 1024, app. C. E:\FR\FM\23AUP2.SGM 23AUP2 51168 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 service providers, based on the principle that such shopping would spur competition in the settlement service market, thereby reducing the incidence of unnecessarily high settlement service charges. However, concerns have been raised that, rather than simply providing consumers with lists of available settlement service providers to facilitate shopping, creditors have instead developed ‘‘closed’’ lists that include only the creditor’s ‘‘preferred’’ providers and are requiring consumers to select one of those providers. This practice effectively may limit competition among settlement service providers instead of promoting competition, contrary to the goals of the regulation. The Bureau’s Proposal An enhanced reliability standard. The Bureau believes that consumers would benefit from having more reliable estimates of costs. A meaningful ‘‘good faith’’ estimate should be based on the best information reasonably available to the person providing the estimate. In many cases, a creditor should be able to estimate costs with considerable precision based on its familiarity with its own underwriting process and its knowledge of the real estate settlement process. A creditor originating a loan in a geographical area with which it is unfamiliar, or using settlement service providers with whom it is not familiar, may not be able to estimate the settlement service costs as accurately. In cases such as these, the ten-percent tolerance currently provided by Regulation X may be appropriate. However, creditors who have affiliate relationships with service providers should have access to the providers’ data about the actual costs of those services, including how often changed circumstances occur, and the magnitude of resulting cost increases. Thus, in many cases, creditors may be able to provide accurate estimates of settlement costs for services provided by affiliates, and therefore should not need to rely on the ten-percent tolerance. In addition to the increased level of knowledge and communication suggested by the affiliate relationship, the frequency of business with a particular affiliate provides creditors with even more data, which may be used to develop more accurate estimates. It may be reasonable to expect creditors to use the significant amount of historical settlement cost data available to them, by virtue of the repeat business from affiliate relationships, to develop highly accurate estimates of costs. Accordingly, the Bureau proposes to include charges paid to affiliates of the creditor in the category of fees that VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 may not vary from the estimated amount disclosed, subject to legitimate reasons for revision such as changed circumstances and revisions requested by the consumer. The Bureau also believes that consumers would benefit from a more competitive market for settlement service providers. A list of service providers offers consumers the opportunity to speak with multiple providers and select the providers and services that best fit consumers’ needs. Although the Bureau understands the concerns regarding preferred provider lists identified above, such lists may be a natural outgrowth of creditors’ business and are not necessarily harmful to consumers. Indeed, it would be much more difficult for creditors to provide good faith estimates of settlement service charges without basing such estimates on charges imposed by actual settlement service providers in a particular area with whom the creditor has established relationships and regularly does business. Creditors that assemble preferred provider lists are in a superior position of knowledge with respect to the expected costs of the services of those providers, for reasons similar to those seemingly inherent in the creditoraffiliate relationship. The relationship between creditor and preferred provider suggests a level of communication and knowledge that is absent from a relationship between a creditor and a settlement service provider who do not regularly do business. The repeat business afforded by the preferred provider relationship should also give creditors access to statistically significant amounts of historical settlement charge data, with which the creditor can accurately predict the cost of a settlement service, in the absence of a valid reason for revision such as a changed circumstance. It may be reasonable to expect the creditor to use this relationship for the benefit of consumers in the form of more accurate initial estimates of costs. The creditor’s knowledge may be less certain with preferred providers, with whom the creditor has some preexisting relationship or agreement, than for affiliates, with whom the creditor has an actual control-based relationship. But this difference is countered when the creditor does not permit the consumer to shop independently for the settlement service. Such closed lists require consumers to choose providers preferred by the creditor and prohibit consumers from choosing more cost efficient, or perhaps higher quality, settlement service providers. Consumers PO 00000 Frm 00054 Fmt 4701 Sfmt 4702 presented with a closed list of preferred providers are neither benefitted by more accurate estimates nor able to protect their own financial interests. Consumers should have the ability to influence the quality and cost of settlement services related to what, for most consumers, will be the most significant financial obligation of their lives. If the creditor arrogates that opportunity, then the creditor should also take a greater responsibility for estimating accurately and assume some of the risk of underestimation if it does not. Thus, the Bureau proposes to include charges paid to non-affiliated third party service providers in the category of fees that may not vary from the estimated amount disclosed if the creditor does not permit the consumer to shop for those services, subject to legitimate reasons for revision such as changed circumstances and revisions requested by the consumer. This proposal seeks to strike the appropriate balance between consumers’ need for accurate, timely, and reliable information about the costs of a mortgage loan and industry’s need for flexibility for the wide range of unexpected issues that arise during the mortgage loan origination process. Creditors are routine participants in the mortgage market, but individual consumers are not. As a result, creditors have access to important cost data that are unavailable to consumers. It therefore may be reasonable to expect creditors to use this advantage to provide consumers with reasonably accurate estimates of the costs associated with a real estate settlement. This consideration is more compelling when creditors have pre-existing, and advantageous, relationships with affiliated and ‘‘preferred’’ settlement service providers. More reliable estimates are inherently beneficial because they enable consumers to make informed and responsible financial decisions, they promote honest competition among the majority of industry providers who want a fair and level playing field, and they prevent financial surprises at the real estate closing that may greatly harm consumers. More reliable estimates also make it more likely that consumers will shop for mortgage loans based on all relevant costs among multiple providers, furthering one of the key principles of TILA and RESPA. Encouraging consumers to shop for settlement services further facilitates a competitive market for those services, thereby preventing unnecessarily high settlement costs and achieving one of the key purposes of RESPA. This approach furthers the goals of the 2008 E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules RESPA Final Rule and the principles upon which TILA and RESPA are founded. Legal authority. The Bureau is proposing to adopt an enhanced reliability standard for settlement costs pursuant to its authority to prescribe standards for ‘‘good faith estimates’’ under TILA section 128 and RESPA section 5, as well as its general rulemaking, exception, and exemption authorities under TILA sections 105(a) and 121(d), RESPA section 19(a), section 1032(a) of the Dodd-Frank Act, and, for residential mortgage loans, section 1405(b) of the Dodd-Frank Act and section 129B(e) of TILA. The Bureau has considered the purposes for which it may exercise its authority under TILA section 105(a) and, based on that review, believes that the proposed adjustments and exceptions may be appropriate. The proposal is consistent with the statute’s purpose in that it seeks to ensure that the cost estimates are more meaningful and better inform consumers of the actual costs associated with obtaining credit. The proposal has the potential to effectuate the statute’s goals by ensuring more reliable estimates, which may increase the level of shopping for mortgage loans and foster honest competition for prospective consumers among financial institutions. The Bureau believes that technological advances in the mortgage loan origination market, coupled with the relationships that currently exist between creditors and the settlement service industry, may have improved the ability of creditors to provide accurate estimates, subject to reasonable exceptions. The proposal could also prevent potential circumvention or evasion of TILA by penalizing underestimation to gain a competitive advantage in situations where TILA requires good faith. Section 121(d) of TILA generally authorizes the Bureau to adopt tolerances necessary to facilitate compliance with the statute, provided such tolerances are narrow enough to prevent misleading disclosures or disclosures that circumvent the purposes of the statute. 15 U.S.C. 1631(d). The Bureau has considered the purposes for which it may exercise its authority under TILA section 121(d) and, based on that review, believes that the proposed tolerances may be appropriate. The proposal has the potential to facilitate compliance with the statute by providing bright line rules for the determination of ‘‘good faith’’ based on the knowledge of costs that creditors have, or reasonably should have. The narrowed tolerances may also VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 prevent misleading disclosures by forcing creditors who have access to accurate cost information through affiliate networks or exclusive provider arrangements, and today use such information strategically to underestimate cost estimates, to absorb any overages. The proposal also may prevent circumvention of TILA by preventing creditors from using the tolerances to capture rent through their affiliates, and thereby unnecessarily increasing the cost of credit. The proposed tolerances may be sufficiently narrow by focusing on areas where the creditor is, or reasonably should be, in a position of superior knowledge, while maintaining the existing tolerances in areas where the creditor is providing estimates based on less certain information, such as cost estimates for services provided by independent providers. In addition, the proposed regulation is consistent with Dodd-Frank Act section 1032(a) because requiring more accurate initial estimates of the costs of the transaction, thereby limiting the possibility of strategic underestimation to gain a competitive advantage, will ensure that the features of mortgage loan transactions and settlement services will be more fully, accurately, and effectively disclosed to consumer in a manner than permits consumers to understand the costs, benefits, and risks associated the mortgage loan. It is also in the interest of consumers and in the public interest, consistent with DoddFrank Act section 1405(b), because providing consumers with more accurate estimates of the cost of the mortgage loan transaction will improve consumer understanding and awareness of the mortgage loan transaction through the use of disclosure. Section 129B(e) of TILA generally authorizes the Bureau to adopt regulations prohibiting or conditioning terms, acts, or practices relating to residential mortgage loans that are not in the interest of the borrower. The Bureau has considered the purposes for which it may exercise its authority under TILA section 129B(e) and, based on that review, believes that the proposed regulations are appropriate because unreliable estimates are not in the interest of the borrower. Section 19(a) of RESPA authorizes the Bureau to prescribe regulations and make interpretations to carry out the purposes of RESPA, which include more effective advance disclosure of settlement costs. 12 U.S.C. 2601(a), 2617(a). The Bureau has considered the purposes for which it may exercise its authority under RESPA section 19(a) and, based on that review, believes that PO 00000 Frm 00055 Fmt 4701 Sfmt 4702 51169 the proposed rules and interpretations may be appropriate. The proposal has the potential to ensure more effective advance disclosure of settlement costs by requiring creditors to disclose accurate estimates when such creditors are in a position to do so. The Bureau solicits comment on all aspects of this proposal, including the cost, burden, and benefits to consumers and to industry regarding the proposed revisions to the good faith requirements. The Bureau solicits comment on the frequency, magnitude, and causes of settlement cost increases. The Bureau also requests comment on any alternatives to the proposal that would further the purposes of TILA, RESPA, and the Dodd-Frank Act and provide consumers with more useful disclosures. 19(e)(3)(i) General Rule Regulation X currently provides that the amounts imposed for the origination charge and transfer taxes may not exceed the amounts included on the RESPA GFE, unless certain exceptions are met. § 1024.7(e)(1). The items included under this category are generally limited to charges paid to lenders and brokers, in addition to transfer taxes. The Bureau is proposing to incorporate this provision in new § 1026.19(e)(3)(i). Furthermore, as discussed above, the Bureau is proposing to expand the scope of the current regulation. Under the proposed rule, the default rule is that any charge paid by the consumer that exceeds the amount originally estimated on the disclosures provided pursuant to § 1026.19(e)(1)(i) was not provided in good faith. This default rule is subject to legitimate cost revisions when an unexpected event occurs, such as a changed circumstance or a change requested by the consumer. Also, the charges for certain items are subject to exceptions allowing other increases as permitted under § 1026.19(e)(3)(ii) and (iii). Thus, the Bureau believes that the rule offers a level of flexibility similar to the current rules under Regulation X. The Bureau believes that the primary impact of adopting this bright line default rule will be to protect consumers from unnecessary increases in charges. Consequently, the Bureau proposes § 1026.19(e)(3)(i), which provides that the charges paid by or imposed on the consumer may not exceed the estimated amounts of those charges provided pursuant to § 1026.19(e)(1)(i), subject to permissible reasons for revision such as changed circumstances and revisions requested by the consumer, and except E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51170 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules as otherwise provided under § 1026.19(e)(3)(ii) and (iii). During the Small Business Panel Review process, several small entity representatives expressed concern about the unintended consequences that may result from applying the zero-percent tolerance rule currently under Regulation X to affiliates of the lender or mortgage broker and to providers selected by the lender. See Small Business Review Panel Report at 34, 37– 38, 40, 64, 67, and 71. The Small Business Review Panel recommended that the Bureau consider alternatives to expanding application of the zeropercent tolerance that would increase the reliability of cost estimates while minimizing the impacts on small entities. See id. at 29. The Bureau has given careful consideration to this recommendation, but has not yet identified any alternatives that would increase disclosure reliability while minimizing small entity impact. The Bureau solicits comment on any such alternatives. The Panel also recommended that the Bureau solicit comment on the effectiveness of the current tolerance rules. Id. Consistent with the Small Business Review Panel’s recommendation, the Bureau solicits comment on whether the current tolerance rules have sufficiently improved the reliability of the estimates that lenders give consumers, while preserving lenders’ flexibility to respond to unanticipated changes that occur during the loan process. Proposed comment 19(e)(3)(i)–1 explains that § 1026.19(e)(3)(i) imposes a general rule that an estimated charge disclosed pursuant to § 1026.19(e) is not in good faith if the charge paid by or imposed on the consumer exceeds the amount originally disclosed. Although § 1026.19(e)(3)(ii) and (e)(3)(iii) provide exceptions to the general rule for certain types of charges, those exceptions generally do not apply to (1) fees paid to the creditor; (2) fees paid to a broker; (3) fees paid to an affiliate of the creditor or a broker; (4) fees paid to an unaffiliated third party if the creditor did not permit the consumer to shop for a third party service provider; and (5) transfer taxes. Proposed comment 19(e)(3)(i)–2 provides guidance on the issue of whether an item is ‘‘paid to’’ a particular person. In the mortgage loan origination process, individuals often receive payments for services and subsequently pass those payments on to others. Similarly, individuals often pay for services in advance of the real estate closing and subsequently seek reimbursement from the consumer. This comment provides examples of how VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 situations such as these are treated for the purposes of § 1026.19. Proposed comment 19(e)(3)(i)–3 discusses when items are characterized as transfer taxes, as opposed to recording fees. Transfer taxes are analyzed under § 1026.19(e)(3)(i) for purposes of determining whether an estimate is provided in good faith. Recording fees are analyzed under § 1026.19(e)(3)(ii) for purposes of determining whether an estimate is provided in good faith. Proposed comment 19(e)(3)(i)–4 provides examples illustrating the good faith requirement in the context of specific credits, rebates, or reimbursements. An item identified, on the disclosures provided pursuant to § 1026.19(e), as a payment from a creditor to the consumer to pay for a particular fee, such as a credit, rebate, or reimbursement are not subject to the good faith determination requirements in § 1026.19(e)(3)(i) or (ii) if the increased specific credit, rebate, or reimbursement actually reduces the cost to the consumer. Specific credits, rebates, or reimbursements may not be disclosed or revised in a way that would otherwise violate the requirements of § 1026.19(e)(3)(i) and (ii). The proposed comment also provides illustrative examples of these requirements. Proposed comment 19(e)(3)(i)–5 discusses how to determine ‘‘good faith’’ in the context of lender credits. The proposed comment explains that the disclosure of ‘‘lender credits,’’ as identified in § 1026.37(g)(6)(ii), is required by § 1026.19(e)(1)(i). These are payments from the creditor to the consumer that do not pay for a particular fee on the disclosures provided pursuant to § 1026.19(e)(1)(i). These non-specific credits are negative charges to the consumer—as the lender credit decreases the overall cost to the consumer increases. Thus, an actual lender credit provided at the real estate closing that is less than the estimated lender credit provided pursuant to § 1026.19(e)(1)(i) is an increased charge to the consumer for purposes of determining good faith under § 1026.19(e)(3)(i). For example, if the creditor provides a $750 estimate for lender credits in the disclosures required by § 1026.19(e)(1)(i), but only a $500 lender credit is actually provided to the consumer at the real estate closing, the creditor does not comply with § 1026.19(e)(3)(i) because, although the actual lender credit was less than the estimated lender credit provided in the revised disclosures, the overall cost to the consumer increased and, therefore, did not comply with § 1026.19(e)(3)(i). See also PO 00000 Frm 00056 Fmt 4701 Sfmt 4702 § 1026.19(e)(3)(iv)(D) and comment 19(e)(3)(iv)(D)–1 for a discussion of lender credits in the context of interest rate dependent charges. 19(e)(3)(ii) Limited Increases Permitted for Certain Charges Regulation X § 1024.7(e)(2) currently provides that the sum of the amounts charged for all lender-required settlement services where the consumer does not independently choose a provider, title insurance, and recording charges may increase by as much as 10 percent prior to settlement, subject to revisions arising from exceptions such as changed circumstances. The Bureau believes that a more narrow regulation may be appropriate in this context. The Bureau therefore proposes § 1026.19(e)(3)(ii), which permits the sum of all charges for lender-required settlement services where the lender permits the consumer to shop for a provider other than those identified by the creditor and recording fees to increase by 10 percent for the purposes of determining good faith. As explained in the general discussion under § 1026.19(e)(3) above, the Bureau believes that the purposes of TILA and RESPA are better served by removing affiliate fees from this category and including other settlement services in this category only if the consumer is permitted to shop independently for a service provider. Proposed comment 19(e)(3)(ii)–1 explains that § 1026.19(e)(3)(ii) provides that certain estimated charges are in good faith if the sum of all such charges paid by or imposed on the consumer does not exceed the sum of all such charges disclosed pursuant to § 1026.19(e) by more than 10 percent. Section 1026.19(e)(3)(ii) permits this limited increase for only: (1) fees paid to an unaffiliated third party if the creditor permitted the consumer to shop for the service, consistent with § 1026.19(e)(1)(vi)(A), and (2) recording fees. Proposed comment 19(e)(3)(ii)–2 clarifies that pursuant to § 1026.19(e)(3)(ii), whether an individual estimated charge subject to § 1026.19(e)(3)(ii) is in good faith depends on whether the sum of all charges subject to § 1026.19(e)(3)(ii) increase by more than 10 percent, even if a particular charge does not increase by more than 10 percent. This proposed comment also clarifies that § 1026.19(e)(3)(ii) provides flexibility in disclosing individual fees by focusing on aggregate amounts, and provides illustrative examples. Proposed comment 19(e)(3)(ii)–3 discusses the determination of good E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 faith when a consumer is permitted to shop for a settlement service, but either does not select a settlement service provider, or chooses a settlement service provider identified by the creditor on the list required by § 1026.19(e)(1)(vi)(C). The proposed comment explains § 1026.19(e)(3)(ii), which provides that if the creditor requires a service in connection with the mortgage loan transaction, and permits the consumer to shop, then good faith is determined pursuant to § 1026.19(e)(3)(ii)(A), instead of § 1026.19(e)(3)(i) and subject to the other requirements in § 1026.19(e)(3)(ii)(B) and (C). For example, if, in the disclosures provided pursuant to § 1026.19(e)(1)(i), a creditor includes an estimated fee for an unaffiliated settlement agent and permits the consumer to shop for a settlement agent, but the consumer does not choose a settlement agent, or chooses an agent identified by the creditor on the list required by § 1026.19(e)(1)(vi)(C), then the estimated settlement agent fee is included with the fees that may, in aggregate, increase by no more than 10 percent for the purposes of § 1026.19(e)(3)(ii). If, however, the consumer chooses a provider that is not on the written list, then good faith is determined according to § 1026.19(e)(3)(iii). Proposed comment 19(e)(3)(ii)–4 discusses how the good faith determination requirements apply to recording fees. Recording fees are mandated by State or local law and paid to a government agency. Consequently, several of the requirements regarding good faith do not apply. The proposed comment explains that the condition specified in § 1026.19(e)(3)(ii)(B), that the charge not be paid to an affiliate of the creditor, is inapplicable in the context of recording fees. The condition specified in § 1026.19(e)(3)(ii)(C), that the creditor permits the consumer to shop for the service, is similarly inapplicable. Therefore, estimates of recording fees need only satisfy the condition specified in § 1026.19(e)(3)(ii)(A) (i.e., that the aggregate amount increased by no more than 10 percent) to meet the requirements of § 1026.19(e)(3)(ii). 19(e)(3)(iii) Variations Permitted for Certain Charges Section 1024.7(e)(3) of Regulation X currently provides that the amounts charged for services, other than those identified in § 1024.7(e)(1) and § 1024.7(e)(2), may change at settlement. The Bureau agrees that certain types of estimates, such as those for property insurance premiums, may change VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 significantly between the time that the original disclosures are provided and consummation. However, the Bureau believes that the regulation will be improved by specifically identifying which items are included in this category. Clear delineation of these items should facilitate compliance by reducing the need to question how to categorize those items. Thus, the Bureau proposes § 1026.19(e)(3)(iii), which provides that estimates of prepaid interest, property insurance premiums, amounts placed into an escrow, impound, reserve, or similar account, and charges paid to third-party service providers selected by the consumer consistent with § 1026.19(e)(1)(vi)(A) that are not on the list provided pursuant to § 1026.19(e)(1)(vi)(C) are in good faith regardless of whether the amount actually paid by the consumer exceeds the estimated amount disclosed, provided such estimates are consistent with the best information reasonably available to the creditor at the time the disclosures were made. Proposed comments 19(e)(3)(iii)–1, 19(e)(3)(iii)–2, and 19(e)(3)(iii)–3 explain that the disclosures for items subject to § 1026.19(e)(3)(iii) must be made in good faith, even though good faith is not determined pursuant to a comparison of estimated amounts and actual costs. The comments clarify that the disclosures must be made according to the best information reasonably available to the creditor at the time the disclosures are made. The Bureau is concerned that unscrupulous creditors may underestimate, or fail to include estimates for, the items subject to § 1026.19(e)(3)(iii) and mislead consumers into believing the cost of the mortgage loan is less than it actually is. This concern must be balanced against the fact that some items may change significantly and legitimately prior to consummation. Furthermore, while the creditor should include estimates for all fees ‘‘the borrower is likely to incur,’’ it may not be reasonable to expect the creditor to know every fee, no matter how uncommon, agreed to by the consumer, for example in the purchase and sale agreement, prior to providing the estimated disclosures. The proposal strikes a balance between these considerations by imposing a general good faith requirement. Thus, proposed comment 19(e)(3)(iii)–1 explains that estimates of prepaid interest, property insurance premiums, and impound amounts must be consistent with the best information reasonably available to the creditor at the time the disclosures are provided. Differences between the amounts of such charges disclosed PO 00000 Frm 00057 Fmt 4701 Sfmt 4702 51171 pursuant to § 1026.19(e)(1)(i) and the amounts of such charges paid by or imposed upon the consumer do not constitute a lack of good faith, so long as the original estimated charge, or lack of an estimated charge for a particular service, was based on the best information reasonably available to the creditor at the time the disclosure was provided. For example, if the creditor requires homeowner’s insurance but fails to include a homeowner’s insurance premium on the estimates provided pursuant to § 1026.19(e)(1)(i), then the creditor has not complied with § 1026.19(e)(3)(iii). However, if the creditor does not require flood insurance and the subject property is located in an area where floods frequently occur, but not located in a zone where flood insurance is required, failure to include flood insurance on the original estimates provided pursuant to § 1026.19(e)(1)(i) does not constitute a lack of good faith. Or, if the creditor knows that the loan must close on the 15th of the month but estimates prepaid interest to be paid from the 30th of that month, then the under-disclosure violates § 1026.19(e)(3)(iii). Proposed comment 19(e)(3)(iii)–2 discusses the good faith requirement for required services chosen by the consumer that has been permitted to shop consistent with § 1026.19(e)(1)(vi)(A). The proposed comment explains that, if a service is required by the creditor, the creditor permits the consumer to shop for that service consistent with § 1026.19(e)(1)(vi)(A), the creditor provides the list required by § 1026.19(e)(1)(vi)(C), and the consumer chooses a service provider that is not on the list to perform that service, then the actual amounts of such fees need not be compared to the original estimates for such fees to perform the good faith analysis required by § 1026.19(e)(3)(i) or (ii). Differences between the amounts of such charges disclosed pursuant to § 1026.19(e)(1)(i) and the amounts of such charges paid by or imposed on the consumer do not necessarily constitute a lack of good faith. However, the original estimated charge, or lack of an estimated charge for a particular service, must be made based on the best information reasonably available to the creditor at that time. For example, if the consumer informs the creditor that the consumer will choose a settlement agent not identified by the creditor, and the creditor subsequently discloses an unreasonably low estimated settlement agent fee, then the under-disclosure does not comply with § 1026.19(e)(3)(iii). The comment also E:\FR\FM\23AUP2.SGM 23AUP2 51172 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 clarifies that, if the creditor permits the consumer to shop consistent with § 1026.19(e)(1)(vi)(A) but fails to provide the list required by § 1026.19(e)(1)(vi)(C), good faith is determined pursuant to § 1026.19(e)(3)(ii) instead of § 1026.19(e)(3)(iii) regardless of the provider selected by the consumer, unless the provider is an affiliate of the creditor in which case good faith is determined pursuant to § 1026.19(e)(3)(i). Proposed comment 19(e)(3)(iii)–3 discusses the good faith requirement for non-required services chosen by the consumer. Differences between the amounts of estimated charges for services not required by the creditor disclosed pursuant to § 1026.19(e)(1)(i) and the amounts of such charges paid by or imposed on the consumer do not necessarily constitute a lack of good faith. For example, if the consumer informs the creditor that the consumer will obtain a type of inspection not required by the creditor, the creditor may include the charge for that item in the disclosures provided pursuant to § 1026.19(e)(1)(i), but the actual amount of the inspection fee need not be compared to the original estimate for the inspection fee to perform the good faith analysis required by § 1026.19(e)(3)(iii). However, the original estimated charge, or lack of an estimated charge for a particular service, must still be made based on the best information reasonably available to the creditor at the time that the estimate was provided. For example, if the subject property is located in a jurisdiction where consumers are customarily represented at the real estate closing by their own attorney, but the creditor fails to include a fee for the consumer’s attorney, or includes an unreasonably low estimate for such fee, on the original estimates provided pursuant to § 1026.19(e)(1)(i), then the creditor’s failure to disclose, or under-estimation, does not comply with § 1026.19(e)(3)(iii). 19(e)(3)(iv) Revised Estimates Regulation X § 1024.7(f) currently provides that the estimates included on the RESPA GFE are binding, subject to six exceptions. If the lender establishes one of these six exceptions, the RESPA GFE may be re-issued with revised estimates. The Bureau agrees that there are certain situations that may legitimately cause increases over the amounts originally estimated, and that the regulations should provide a clear mechanism for providing revised estimates in good faith. The Bureau proposes § 1026.19(e)(3)(iv), which provides that, for purposes of VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 determining good faith, a charge paid by or imposed on the consumer may exceed the originally estimated charge if the revision is caused by one of the six reasons identified in § 1026.19(e)(3)(iv)(A) through (F). Proposed comment 19(e)(3)(iv)–1 illustrates this provision. Consistent with current Regulation X,143 proposed comment 19(e)(3)(iv)–2 clarifies that, to satisfy the good faith requirement, revised estimates may increase only to the extent that the reason for revision actually caused the increase and provides illustrative examples of this requirement. Proposed comment 19(e)(3)(iv)–3 discusses the documentation requirements related to the provision of revised estimates. Regulation X § 1024.7(f) contains a separate regulatory provision related to documentation requirements. The Bureau believes that this requirement is encompassed within the requirements of § 1026.25. The proposed comment clarifies that the regulations include a documentation requirement related to the disclosures, but the requirements are located under § 1026.25, instead of § 1026.19. As discussed below, the Bureau is proposing to impose enhanced recordkeeping requirements under § 1026.25. 19(e)(3)(iv)(A) Changed Circumstance Affecting Settlement Charges In general. Regulation X § 1024.7(f)(1) currently provides that a revised RESPA GFE may be provided if changed circumstances result in increased costs for any settlement service such that charges at settlement would exceed the tolerances for those charges. The Bureau agrees that creditors should be able to provide revised estimates if certain situations occur that increase charges. The Bureau proposes § 1026.19(e)(3)(iv)(A), which provides that a valid reason for re-issuance exists when changed circumstances cause estimated charges to increase or, for those charges subject to § 1026.19(e)(3)(ii), cause the sum of all such estimated charges to increase by more than 10 percent. Proposed comment 19(e)(3)(iv)(A)–1 provides further explanation of this requirement and includes several practical examples. Changed circumstance. As explained in the general discussion under § 1026.19(e)(3) above, Regulation X § 1024.2 generally defines changed circumstances as information and events that warrant revision of the estimated amounts included on the RESPA GFE. The Bureau generally agrees with the information and events 143 See PO 00000 § 1024.7(f)(1), (2), (3), and (5). Frm 00058 Fmt 4701 Sfmt 4702 included in the current definition. However, the Bureau has received feedback that the current definition is confusing. Thus, the Bureau proposes, within § 1026.19(e)(3)(iv)(A), a new definition of changed circumstance, which provides that a changed circumstance is 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 disclosures and that was inaccurate or subsequently changed, or new information specific to the consumer or transaction that was not relied on when providing the disclosures. This proposed definition, most significantly, omits the fourth prong of the existing definition, which provides that: ‘‘[o]ther circumstances that are particular to the borrower or transaction, including boundary disputes, the need for flood insurance, or environmental problems’’ is considered a changed circumstance. The Bureau believes that this prong is not needed because it is covered elsewhere in the definition, and may be contributing to the current industry uncertainty surrounding what constitutes a changed circumstance. However, the Bureau seeks comment on whether this proposal is appropriate, and specifically on whether there are scenarios that should be considered a changed circumstance that would not be captured under any of the other three prongs. Proposed comment 19(e)(3)(iv)(A)–2 provides additional elaboration on this issue and provides several examples of changed circumstances. Proposed comment 19(e)(3)(iv)(A)–3 discusses how the definition of application under § 1026.2(a)(3) relates to the definition of changed circumstances under § 1026.19(e)(3)(iv)(A). The proposed comment explains that a creditor is not required to collect the consumer’s name, monthly income, or social security number to obtain a credit report, the property address, an estimate of the value of the property, or the mortgage loan amount sought. However, for purposes of determining whether an estimate is provided in good faith under § 1026.19(e)(1)(i), a creditor is presumed to have collected these six pieces of information. For example, if a creditor provides the disclosures required by § 1026.19(e)(1)(i) prior to receiving the property address from the consumer, the creditor cannot subsequently claim that the receipt of the property address is a E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules changed circumstance, under § 1026.19(e)(3)(iv)(A) or (B). 19(e)(3)(iv)(B) Changed Circumstance Affecting Eligibility Regulation X § 1024.7(f)(2) currently provides that a revised RESPA GFE may be provided if a changed circumstance affecting borrower eligibility results in increased costs for any settlement service such that charges at settlement would exceed the tolerances for those charges. The Bureau proposes § 1026.19(e)(3)(iv)(B), which provides that a valid reason for reissuance exists when a changed circumstance affecting the consumer’s creditworthiness or the value of the collateral causes the estimated charges to increase. Proposed comment 19(e)(3)(iv)(B)–1 explains that if changed circumstances cause a change in the consumer’s eligibility for specific loan terms disclosed pursuant to § 1026.19(e)(1)(i) and revised disclosures are provided reflecting such change, the actual amounts paid by the consumer may be measured against the revised estimated disclosures to determine if the actual fee has increased above the estimated fee. The proposed comment also provides several illustrative examples. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 19(e)(3)(iv)(C) Revisions Requested by the Consumer Regulation X § 1024.7(f)(3) currently provides that a revised RESPA GFE may be provided if a borrower requests changes to the mortgage loan identified in the GFE that change the settlement charges or the terms of the loan. The Bureau agrees that creditors should be able to provide revised estimates that increase charges from the original estimates due to revisions requested by the consumer. The Bureau proposes § 1026.19(e)(3)(iv)(C), which provides that a valid reason for reissuance exists when a consumer requests revisions to the credit terms or the settlement that cause estimated charges to increase. Proposed comment 19(e)(3)(iv)(C)–1 illustrates this requirement. 19(e)(3)(iv)(D) Interest Rate Dependent Charges Regulation X § 1024.7(f)(5) currently provides that, if the interest rate has not been locked, or a locked interest rate has expired, the charge or credit for the interest rate chosen, the adjusted origination charges, per diem interest, and loan terms related to the interest rate may change, provided, however, that when the interest rate is later locked, a revised GFE must be provided showing the revised interest ratedependent charges and terms. The Bureau agrees that disclosures related to VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 the interest rate should be able to fluctuate if the consumer’s rate has not been set. The Bureau also agrees that revised disclosures should be provided when the consumer’s rate is later set. However, the Bureau is concerned that this provision may be used to harm consumers. There is a possibility that unscrupulous creditors could use this provision to engage in rent-seeking behavior, or to attempt to circumvent the requirements of TILA or RESPA. The Bureau acknowledges these concerns, but the Bureau is unaware of any evidence that creditors are using current Regulation X § 1024.7(f)(5) to harm consumers or to circumvent RESPA. The Bureau believes that the correct balance may be to retain the current regulation while monitoring the market to determine if the regulation is being used to the detriment of consumers. Thus, the Bureau proposes § 1026.19(e)(3)(iv)(D), which provides that a valid reason for reissuance exists when a consumer’s rate is set, and also provides that revised disclosures must be provided reflecting the revised interest rate, bona fide discount points, and lender credits. Proposed comment 19(e)(3)(iv)(D)–1 illustrates this requirement. The Bureau also seeks comment on the frequency and magnitude of revisions to the interest rate dependent charges, the frequency of cancellations of contractual agreements related to interest rate dependent charges, such as rate lock agreements, and the reasons for such revisions and cancellations. 19(e)(3)(iv)(E) Expiration Regulation X § 1024.7(f)(4) currently provides that if a borrower does not express an intent to continue with the transaction within ten business days after the RESPA GFE is provided, or such longer time specified by the loan originator, then the loan originator is no longer bound by the RESPA GFE. The Bureau believes that consumers should be able to rely on the estimated charges for a sufficient period of time to permit shopping. The Bureau also believes that, if the consumer does not indicate intent to proceed within the ten-day period, creditors should be able to provide revised disclosures reflecting new charges. The Bureau proposes § 1026.19(e)(3)(iv)(E), which provides that a valid reason for reissuance exists when a consumer expresses an intent to proceed more than ten business days after the disclosures are provided. Proposed comment 19(e)(3)(iv)(E)–1 illustrates this requirement. PO 00000 Frm 00059 Fmt 4701 Sfmt 4702 51173 19(e)(3)(iv)(F) Delayed Settlement Date on a Construction Loan Regulation X § 1024.7(f)(6) currently provides that in transactions involving new construction home purchases, where settlement is expected to occur more than 60 calendar days from the time a GFE is provided, the loan originator cannot issue a revised GFE unless the loan originator provided the borrower with a clear and conspicuous disclosure stating that at any time up until 60 calendar days prior to the real estate closing, the loan originator may issue a revised GFE. The Bureau believes that the current law under Regulation X should apply to the integrated disclosures. The Bureau agrees that creditors should be able to issue revised disclosures for construction loans where consummation will not occur until well into the future, likely after construction is completed, provided that the consumer is aware of this fact. The Bureau proposes § 1026.19(e)(3)(iv)(F), which provides that a valid reason for revision exists on construction loans when consummation is scheduled to occur more than 60 days after delivery of the estimated disclosures, provided that the consumer was alerted to this fact when the estimated disclosures were provided. Proposed comment 19(e)(3)(iv)(F)–1 clarifies that a loan for the purchase of a home either to be constructed or under construction is considered a construction loan to purchase and build a home for the purposes of § 1026.19(e)(3)(iv)(F). For example, a loan to build a home that has yet to be constructed, or a loan to purchase a home on which construction is currently underway, is a construction loan to build a home for the purposes of § 1026.19(e)(3)(iv)(F). However, if a use and occupancy permit has been issued for the home prior to the issuance of the Loan Estimate, then the home is not considered to be under construction and the transaction would not be a construction loan to purchase and build a home for the purposes of § 1026.19(e)(3)(iv)(F). This comment is consistent with guidance provided by HUD in the HUD RESPA FAQs p. 21, #2 (‘‘GFE—New construction’’). 19(e)(4) Provision of Revised Disclosures Timing Requirements for Provision of Revised Disclosures TILA’s requirement that creditors provide corrected disclosures is not linked to the time when a creditor discovers that a correction is necessary. Instead, section 128(b)(2)(D) of TILA E:\FR\FM\23AUP2.SGM 23AUP2 51174 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 provides that the creditor shall furnish additional, corrected disclosures to the borrower not later than three business days before the date of consummation of the transaction, if the previously disclosed annual percentage rate is no longer accurate, as determined under TILA section 107(c). 15 U.S.C. 1638(b)(2)(D). Regulation Z implements this requirement in § 1026.19(a)(2)(ii). RESPA does not expressly address timing requirements for the delivery of revised GFEs, but Regulation X generally requires that a revised GFE must be provided within three business days of the creditor receiving information sufficient to establish a reason for revision.144 While both regulations contain redisclosure requirements, their approaches are different. Regulation Z ensures that the consumer is made aware of changes at a specific point in time before consummation, but does not require the creditor to keep the consumer informed of incremental changes during the loan origination process. In contrast, Regulation X ensures that the consumer is kept aware of certain changes during the process, but those changes may occur up to the day of settlement. These different approaches may stem from the underlying purposes of the respective statutes: TILA focuses primarily on the disclosure of high-level measures of the costs imposed by the creditor, such as the APR, while RESPA requires itemized disclosure of all charges associated with the settlement of a federally related mortgage loan and any underlying real estate transaction, regardless of who imposes the charge. The Bureau believes that the policy goals of both statutes are best served by adopting the Regulation X requirement that revised disclosures be delivered within three business days of the creditor establishing that a valid reason for revision exists. Intermittent redisclosure of the integrated Loan Estimate is necessary under RESPA because settlement service provider costs typically fluctuate during the mortgage loan origination process. Furthermore, intermittent redisclosure is consistent with the purposes of TILA because it promotes the informed use of 144 ‘‘If a revised GFE is to be provided, the loan originator must do so within 3 business days of receiving information sufficient to establish changed circumstances.’’ 12 CFR 1024.7(f)(1) and (2). ‘‘If a revised GFE is to be provided, the loan originator must do so within 3 business days of the borrower’s request.’’ 12 CFR 1024.7(f)(3). ‘‘The loan originator must provide the revised GFE within 3 business days of the interest rate being locked or, for an expired interest rate, re-locked.’’ 12 CFR 1024.7(f)(5). VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 credit by keeping the consumer apprised of changes in costs. Accordingly, the Bureau is proposing § 1026.19(e)(4)(i), which provides that, if a creditor delivers a revised Loan Estimate, the creditor must do so within three business days of establishing that a valid reason for revision exists. Proposed comment 19(e)(4)–1 provides illustrative examples of this requirement. The Bureau proposes this provision pursuant to its authority under TILA section 105(a), RESPA section 19(a), Dodd-Frank Act section 1032(a), and, for residential mortgage loans, sections 129B(e) of TILA and 1405(b) of the Dodd-Frank Act. This proposed provision is consistent with TILA’s purposes in that alerting consumers to significant settlement cost increases as they occur, rather than prior to consummation, increases consumer awareness during the mortgage loan origination process, enabling consumers to avoid the uninformed use of credit. This provision is consistent with section 129B(e) of TILA because failing to inform borrowers of significant settlement cost increases as they occur is not in the interest of the borrower. This also achieves RESPA’s purposes because informing consumers of significant settlement cost increases as they occur is a more effective method of advance disclosure of settlement costs than only informing consumers at or shortly prior to consummation. In addition, the proposed regulation is consistent with Dodd-Frank Act section 1032(a) because the features of mortgage loan transactions and settlement services will be more fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the mortgage loan and settlement services if consumers are made aware of significant settlement cost increases as they occur, rather than prior to consummation. It is also in the interest of consumers and in the public interest, consistent with Dodd-Frank Act section 1405(b), because alerting consumers to significant settlement cost increases during the process will improve consumer understanding and awareness of the mortgage loan transaction through the use of disclosure. Prohibition Against Delivering Early Disclosures at the Same Time as Final Disclosures As explained above, the purposes of RESPA and TILA include effective advance disclosure of settlement costs, and the informed use of credit by consumers. See TILA section 102; PO 00000 Frm 00060 Fmt 4701 Sfmt 4702 RESPA section 2. Section 105(a) of TILA also permits the Bureau to prescribe regulations that would improve consumers’ ability to understand the mortgage loan transaction. The DoddFrank Act enhances TILA’s focus by placing special emphasis on the requirement that disclosures must be made in a way that is clear and understandable to the consumer. Section 1405 of the Dodd-Frank Act focuses on improving ‘‘consumer awareness and understanding of transactions involving residential mortgage loans through the use of disclosures.’’ The Bureau is aware that, in some cases, creditors have provided a revised GFE at the real estate closing along with the RESPA settlement statement. The Bureau is concerned that this practice may be confusing for consumers and may diminish their awareness and understanding of the transaction. The Bureau recognizes that there are cases in which a consumer may not be confused by receiving good faith estimates on the same day, or even at the same time, as the consumer receives the actual settlement costs. However, because the estimated costs will match the actual costs, the Bureau is concerned that consumers may be confused by seemingly duplicative disclosures. The Bureau is also concerned that this duplication may contribute to information overload stemming from too many disclosures, which may, in turn, inhibit the consumer’s ability to understand the transaction. Accordingly, proposed § 1026.19(e)(4)(ii) prohibits creditors from providing a consumer with disclosures of estimated and actual costs at the same time. To draw a clear line to facilitate compliance, the creditor does not comply with the requirements of proposed § 1026.19(e) if the consumer receives revised versions of the disclosures required under § 1026.19(e)(1)(i) on the same business day as the consumer receives the disclosures required by § 1026.19(f)(1)(i). Accordingly, the Bureau is proposing § 1026.19(e)(4)(ii), which provides that the creditor shall deliver revised versions of the disclosures required by § 1026.19(e) in a manner that ensures such revised disclosures are not received on the same business day as the consumer receives the disclosures required by § 1026.19(f)(1)(i). The Bureau proposes this provision pursuant to its authority under TILA section 105(a), RESPA section 19(a), Dodd-Frank Act section 1032(a), and, for residential mortgage loans, DoddFrank Act section 1405(b). The E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules proposed provision is consistent with TILA’s purposes because prohibiting simultaneous provision of a revised Loan Estimate and the Closing Disclosure promotes the informed use of credit by reducing the potential for consumer confusion and information overload. Similarly, this provision achieves RESPA’s purposes because the receipt of settlement cost information on a single disclosure is a more effective method of advance disclosure of settlement costs. In addition, the proposed regulation is consistent with Dodd-Frank Act section 1032(a) because consumers will understand the costs, benefits, and risks associated with the mortgage loan and settlement services if the actual terms and costs of the transaction are disclosed on the Closing Disclosure only. It is also in the interest of consumers and in the public interest, consistent with Dodd-Frank Act section 1405(b), because ensuring that consumers do not receive duplicative disclosures will improve consumer understanding and awareness of the mortgage loan transaction through the use of disclosure. Proposed comment 19(e)(4)–2 discusses the requirement that revised disclosures may not be delivered at the same time as the final disclosures. The proposed comment explains that creditors comply with the requirements of § 1026.19(e)(4) if the revised disclosures are reflected in the disclosures required by § 1026.19(f)(1)(i) (i.e., the Closing Disclosure). This comment also includes illustrative examples of the requirement. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 19(f) Mortgage Loans Secured by Real Property—Final Disclosures As discussed in the preamble text introducing § 1026.19, TILA applies only to creditors and requires, for certain mortgage transactions, creditors to furnish a corrected disclosure to the borrower not later than three business days before the date of consummation of the transaction if the prior disclosed APR has become inaccurate. 15 U.S.C. 1638(b)(2)(A), (D). In contrast, RESPA generally applies to settlement agents and requires the person conducting the settlement (e.g., the settlement agent) to complete a settlement statement and make it available for inspection by the borrower at or before settlement. 12 U.S.C. 2603(b). RESPA also provides that, upon the request of the borrower, the person who conducts the settlement must permit the borrower to inspect those items which are known to such person on the settlement statement during the business day immediately preceding the day of settlement. Id. VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 Regulation Z implements TILA’s requirement that the creditor deliver corrected disclosures and provides that, if the annual percentage rate disclosed in the early TILA disclosure becomes inaccurate, the creditor shall provide corrected disclosures with all changed terms. § 1026.19(a)(2)(ii). Regulation Z further provides that the consumer must receive the corrected disclosures no later than three business days before consummation. Id. Regulation X provides that the settlement agent shall permit the borrower to inspect the RESPA settlement statement, completed to set forth those items that are known to the settlement agent at the time of inspection, during the business day immediately preceding settlement. § 1024.10(a). Section 1032(f) of the Dodd-Frank Act provides that the Bureau shall propose for public comment rules that combine the disclosures required under TILA and sections 4 and 5 of RESPA. As noted above, although the Dodd-Frank Act amended TILA and RESPA to reflect section 1032(f)’s mandate to integrate the rules under TILA and RESPA, Congress did not reconcile the timing requirements or amend the division of responsibilities between creditor and settlement agent in TILA and RESPA. 19(f)(1) Provision 19(f)(1)(i) Scope As discussed above, the integrated disclosure mandate requires the Bureau to reconcile what Congress did not. Thus, pursuant to its authority under sections 105(a) of TILA, 19(a) of RESPA, and 1032(f) of the Dodd-Frank Act, the Bureau is proposing to integrate the disclosure requirements in TILA section 128 and RESPA section 4 in § 1026.19(f)(1)(i). This section provides that in a closed-end consumer credit transaction secured by real property, other than a reverse mortgage subject to § 1026.33, the creditor shall provide the consumer with the disclosures in § 1026.38 reflecting the actual terms of the credit transaction. Proposed comment 19(f)(1)(i)–1 provides illustrative examples of this provision. 19(f)(1)(ii) Timing 19(f)(1)(ii)(A) In General The Bureau must determine when the integrated disclosures must be provided, given that the statutory requirements are not in sync. The Bureau believes that, to comply with both TILA and RESPA, the integrated disclosure must be delivered no later than three days before consummation. The Bureau recognizes that RESPA requires settlement agents to permit borrower inspection of the PO 00000 Frm 00061 Fmt 4701 Sfmt 4702 51175 settlement statement only one business day in advance of settlement, and even then RESPA requires disclosure of only the information to the extent that it is known to the settlement agent. However, the fact that Congress did not alter the timing requirements under RESPA does not imply that the timing requirements under TILA were eliminated. It can be safely presumed that Congress was aware of the requirement that creditors must deliver final disclosures three business days before consummation because Congress created the three-business-day waiting period in 2008. Furthermore, section 1098 of the Dodd-Frank Act, which amends RESPA section 4 to require integrated disclosures, specifically provides that such integrated disclosures shall ‘‘include real estate settlement cost statements.’’ This suggests that Congress intended creditors to deliver the settlement cost statements with the TILA disclosures required to be delivered no later than three business days before consummation, even though the language in RESPA section 4 related to settlement agent delivery remains.145 The expansion of the items required to be disclosed three business days prior to consummation also supports the Bureau’s interpretation. As discussed above, section 1419 of the Dodd-Frank Act also amended TILA by adding section 128(a)(17), which requires creditors to disclose the aggregate amount of settlement charges for all settlement services provided in connection with the loan and the aggregate amount of other fees or required payments in connection with the loan. The items included in this amendment are nearly all of the items that are included on the RESPA settlement statement, which suggests that Congress intended for creditors to disclose information that was traditionally known only to settlement agents in advance of consummation. This amendment, coupled with the fact that Regulation Z requires redisclosure of all changed terms three business days before consummation when the APR is inaccurate, implies that Dodd-Frank requires provision of the integrated 145 The language in section 4 of RESPA requiring settlement statement delivery one business day in advance of settlement was added in 1976. See section 3 of Public Law 94–205 (Jan. 2, 1976). Interpreting the recent amendments in a way that overrides the legacy language is consistent with Supreme Court precedent. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (‘‘[T]he meaning of one statute may be affected by other Acts, particularly where Congress has spoken subsequently and more specifically to the topic at hand.’’). E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51176 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules disclosure no later than three business days before consummation. The determination of how to integrate these conflicting statutory provisions also must be made in light of section 1405(b) of the Dodd-Frank Act, which focuses on improving ‘‘consumer awareness and understanding of transactions involving residential mortgage loans through the use of disclosures.’’ Consumers may be more aware of and better understand their transactions if consumers receive the disclosures reflecting all of the terms and costs associated with their transactions three days before consummation. This should afford consumers sufficient time to review, analyze, and question the information reflected in the disclosure, such that consumers are aware of and understand the transactions by the time consumers are required to obligate themselves. This should also provide consumers with sufficient time to identify and correct errors, discuss and negotiate cost increases, and have the necessary funds available. This may also eliminate the opportunity for bad actors to surprise consumers with unexpected costs at the closing table, when consumers are less able to question such costs. In addition, the Bureau is concerned that consumers would not receive the disclosures far enough in advance of consummation to review and understand the transaction under an alternate reading of the statute. As explained above, Regulation Z currently requires creditors to ensure that consumers receive the corrected TIL disclosures no later than three business days prior to consummation. A less stringent rule that allowed consumers to receive the disclosures on the day of consummation would be inconsistent with both TILA and the goals this proposal seeks to achieve. However, the Bureau is also concerned that it would be impractical to require delivery earlier than three business days before consummation. Thus, the Bureau believes that the proposal should provide flexibility to industry by requiring creditors to ensure that consumers receive the disclosures no later than the third business day before consummation. Under this approach, a creditor need not complete the disclosures until the third business day before consummation, provided it can ensure that the consumer will receive the disclosures that day, such as via electronic mail consistent with applicable requirements or hand delivery. As discussed above, the integrated disclosure mandate requires the Bureau to reconcile what Congress did not. VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 Section 105(a) of TILA authorizes the Bureau to modify and add requirements under certain circumstances, and the Bureau believes that requiring redisclosure in cases where it is not currently required under Regulation Z or Regulation X is necessary to effectively integrate the disclosures. Accordingly, the Bureau proposes § 1026.19(f)(1)(ii)(A), which provides that, except for transactions secured by timeshares, or as provided under § 1026.19(f)(2), the creditor shall ensure that the consumer receives the disclosures no later than three business days before consummation. Proposed comment 19(f)(1)(ii)–1 provides illustrations of this requirement. Proposed comment 19(f)(1)(ii)–2 explains the requirement that consumers must receive disclosures no later than three days in advance of consummation, and provides practical examples illustrating appropriate delivery methods. The Bureau informed the Small Business Review Panel that the Bureau was considering requiring reissuance if the APR increased by more than 1⁄8 of 1 percent, certain loan features were added, or if the amount needed to close increased beyond a certain tolerance. See Small Business Panel Review Report at 11. While this proposal includes the tolerance for the amount needed to close and would require reissuance if certain loan features are added, this proposal does not include an additional APR tolerance for reissuance. Based on further review, the Bureau believes that the $100 amount needed to close tolerance provides sufficient flexibility, thereby making an additional APR tolerance unnecessary. The Bureau was also concerned that the additional APR tolerance would harm consumers by allowing potentially large costs to change immediately prior to closing. Importantly, the Bureau believes that this proposal is substantially similar to the possibilities discussed with the Small Business Review Panel. In virtually all cases where the APR increases by more than 1⁄8 of 1 percent, the amount needed to close would also have increased by more than $100, requiring re-disclosure. However, the Bureau solicits comment on whether the use of an APR tolerance would provide any additional benefits. The Bureau recognizes that this modification would require redisclosure three days before consummation in circumstances that are not currently required under Regulation Z. This proposal removes the condition, provided for under TILA section 128(b)(2)(D), that corrected disclosures need not be delivered if the estimated PO 00000 Frm 00062 Fmt 4701 Sfmt 4702 APR included in the early TILA disclosure is accurate at the time of consummation. The Bureau has received extensive feedback indicating that APR estimates included in the early TILA disclosures are so rarely accurate that most creditors provide corrected disclosures as a standard business practice, instead of analyzing the accuracy of the disclosed APR. Thus, the Bureau believes that the benefit afforded by the condition under TILA section 128(b)(2)(D) is more illusory than real, and may, in fact, impose an unnecessary compliance burden on industry. In addition, the Bureau suspects that the expansion of the list of items included in the APR, pursuant to the proposed amendments to § 1026.4, may make it less likely that a creditor will be able to accurately estimate the APR within three business days of application. Therefore, this proposal does not condition disclosure prior to consummation on APR accuracy. These proposals are made pursuant to the Bureau’s legal authority under sections 105(a) of TILA, 19(a) of RESPA, 1032(a) of the Dodd-Frank Act, and, for residential mortgage transactions, sections 129B(e) of TILA and 1405(b) of the Dodd-Frank Act. The Bureau has considered the purposes for which it may exercise its authority under section 105(a) of TILA and, based on that review, believes that the proposed modifications are appropriate. The proposal may help consumers avoid the uninformed use of credit by ensuring that consumers receive disclosures of the actual terms and costs associated with the mortgage loan transaction early enough that consumers have sufficient time to become fully informed as to the cost of their credit. This provision is consistent with section 129B(e) of TILA because failing to provide borrowers with enough time to become fully informed of the actual terms and costs of the transaction is not in the interest of the borrower. The Bureau has also considered the purposes for which it may exercise its authority under section 19(a) of RESPA and, based on that review, believes that the proposed rules and interpretations are appropriate. The proposal has the potential to ensure more effective advance disclosure of settlement costs by requiring creditors to disclose the actual settlement costs associated with the transaction three business days before consummation. Proposed § 1026.19(f)(1)(ii)(A) is consistent with Dodd-Frank Act section 1032(a) because the features of mortgage loan transactions and settlement services will be more fully, accurately, and effectively disclosed to consumer in E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 a manner than permits consumers to understand the costs, benefits, and risks associated consumers will understand the costs and risks associated with the mortgage loan and settlement services if consumers receive the disclosures reflecting all of the terms and costs associated with their transactions three days before consummation. In addition, the Bureau has considered the purposes for which it may exercise its authority under section 1405(b) of the Dodd-Frank Act and, based on that review, believes that the proposed modifications are appropriate. The proposal may improve consumer awareness and understanding of the mortgage loan transaction by ensuring that consumers receive the disclosures reflecting all of the terms and costs associated with their transactions three days in advance of consummation. The proposal may also be in the interest of consumers and in the public interest because the proposal may eliminate the opportunity for bad actors to surprise consumers with unexpected costs at the closing table, when consumers are less able to question such costs. The Bureau recognizes that this is a change from current industry practice. During the Small Business Review process, several small entity representatives were opposed to this modification. See Small Business Review Panel report at 35, 38, 40, 45, 53–54, 59–60, 67–68, 72, and 77. The Small Business Review Panel recommended that the Bureau explore ways to mitigate the potential impact of the three business day requirement on small entities. See id at 29. Based on this feedback and consistent with the Small Business Review Panel’s recommendation, the Bureau solicits comment on alternative approaches, including any that can minimize the burden on industry, especially small entities, while serving the needs of consumers and effectively integrating the disclosures, as required by the Dodd-Frank Act. 19(f)(1)(ii)(B) Timeshares As explained above, in 2008 Congress amended TILA to require delivery of final disclosures three business days prior to consummation. However, Congress explicitly exempted mortgage loans secured by timeshares, as defined by 11 U.S.C. 101(53D), from the threeday requirement.146 Accordingly, pursuant to its authority under sections 105(a) of TILA, 19(a) of RESPA, and 1405(b) of the Dodd-Frank Act, the 146 Mortgage Disclosure Improvement of 2008, Public Law 110–289, Title V, § 2502(a)(6), 122 Stat. 2654, 2857 (July 30, 2008); 15 U.S.C. 1638(b)(2)(G). VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 Bureau proposes § 1026.19(f)(1)(ii)(B), which states that for transactions secured by a consumer’s interest in a timeshare plan described in 11 U.S.C. 101(53D), the creditor shall ensure that the consumer receives the disclosures required under paragraph (f)(1)(i) of this section as soon as reasonably practicable, but no later than consummation. This proposed regulation carries out the purposes of TILA and RESPA by ensuring meaningful disclosure of credit terms and effective advance disclosure of settlement costs, consistent with section 105(a) of TILA and 19(a) of RESPA, respectively. Also, this proposed regulation will improve consumer awareness and understanding of transactions involving residential mortgage loans by requiring effective disclosure within a timeframe appropriate for loans secured by a timeshare, which will be in the best interest of consumers and the public consistent with Dodd-Frank Act section 1405(b). Proposed comment 19(f)(1)(ii)–3 explains that for loans secured by timeshares, as defined under 11 U.S.C. 101(53D), § 1026.19(f)(1)(ii)(B) requires a creditor to ensure that the consumer receives the disclosures required under § 1026.19 (f)(1)(i) as soon as reasonably practicable, but no later than consummation. The proposed comment also includes illustrative examples of this requirement. 19(f)(1)(iii) Delivery Section 128(b)(2)(E) of TILA provides that, if the disclosures are mailed to the consumer, the consumer is considered to have received them three business days after they are mailed. 15 U.S.C. 1638(b)(2)(E). RESPA does not expressly address delivery requirements. Regulation Z provides that if the disclosures are provided to the consumer by means other than delivery in person, the consumer is deemed to have received the disclosures three business days after they are mailed or delivered. See § 1026.19(a)(1)(ii). Regulation X provides that the settlement agent shall deliver the completed RESPA settlement statement at or before the settlement, except if the borrower waives the right to delivery of the completed RESPA settlement statement, in which case the completed RESPA settlement statement shall be mailed or delivered as soon as practicable after settlement. § 1024.10(b), (c). To establish a consistent standard for the integrated Closing Disclosure, pursuant to its authority under sections 105(a) of TILA, 19(a) of RESPA, and PO 00000 Frm 00063 Fmt 4701 Sfmt 4702 51177 1405(b) of the Dodd-Frank Act, the Bureau proposes to adopt § 1026.19(f)(1)(iii), which provides that, if any disclosures required under § 1026.19(f)(1)(i) are not provided to the consumer in person, the consumer is presumed to have received the disclosures three business days after they are mailed or delivered to the address specified by the consumer. Proposed comment 19(f)(1)(iii)–1 explains that if any disclosures required under § 1026.19(f)(1)(i) are not provided to the consumer in person, the consumer is presumed to have received the disclosures three business days after they are mailed or delivered. This is a presumption which may be rebutted by providing evidence that the consumer received the disclosures earlier than three business days. The proposed comment also contains illustrative examples. Proposed comment 19(f)(1)(iii)–2 clarifies that the presumption established in § 1026.19(f)(1)(iii) applies to methods of electronic delivery, such as email. However, creditors using electronic delivery methods, such as email, must also comply with § 1026.17(a)(1). This proposed comment also contains illustrative examples. The Bureau recognizes that this requirement is different than the current requirement in Regulation Z. As explained above, the current rules deem corrected disclosures mailed or delivered to the consumer by a method other than in-person delivery to be received three business days after mailing or delivery. In contrast, the proposed rule instead creates a presumption that the disclosures are received three business days after they are mailed or delivered to the address provided by the consumer. While the current rule may be appropriate for the disclosures provided under § 1026.19(a), the Bureau is concerned that the current rule may not be appropriate for the integrated Closing Disclosure, which contains much more information than the final TILA disclosures subject to the current rule, and therefore will require more time to review and understand. It therefore may be appropriate to create a presumption of receipt, which would provide additional encouragement for lenders to ensure that the disclosures are received in a timely manner. However, the Bureau solicits feedback regarding whether the proposed rules will create uncertainty regarding compliance. The Bureau also solicits comment on whether the rules should be analogous to the current rule under § 1026.19(a)(2), which uses ‘‘deem’’ instead of ‘‘presume.’’ Finally, the Bureau seeks feedback regarding E:\FR\FM\23AUP2.SGM 23AUP2 51178 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules whether § 1026.19(a) should be modified to reflect § 1026.19(f)(1)(iii), if the final rule adopts the presumption of receipt. This proposed provision is consistent with section 105(a) of TILA in that it may help consumers avoid the uninformed use of credit by ensuring that consumers receive disclosures of the actual terms and costs associated with the mortgage loan transaction early enough that consumers have sufficient time to become fully informed as to the cost of credit. This proposed provision is also consistent with section 19(a) of RESPA because it has the potential to ensure more effective advance disclosure of settlement costs by requiring creditors to make sure that the disclosures are delivered to the address specified by the consumer three business days before consummation. In addition, the proposal is consistent with section 1405(b) of the Dodd-Frank Act because the proposal may improve consumer awareness and understanding of the mortgage loan transaction by ensuring that disclosures reflecting all of the terms and costs associated with their transactions are delivered to the address specified by the consumer three business days in advance of consummation. Ensuring that consumers receive disclosures in a timely manner is also in the interest of consumers and in the public interest because the proposal may allow consumers to receive the disclosure early enough to question and understand their mortgage loan transaction. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 19(f)(1)(iv) Consumer’s Waiver of Waiting Period Before Consummation Section 128(b)(2)(F) of TILA provides that the consumer may waive or modify the timing requirements for disclosures to expedite consummation of a transaction, if the consumer determines that the extension of credit is needed to meet a bona fide personal financial emergency. Section 128(b)(2)(F) further provides that: (1) The term ‘‘bona fide personal financial emergency’’ may be further defined in regulations issued by the Bureau; (2) the consumer must provide the creditor with a dated, written statement describing the emergency and specifically waiving or modifying the timing requirements, which bears the signature of all consumers entitled to receive the disclosures; and (3) the creditor must provide, at or before the time of waiver or modification, the final disclosures. 15 U.S.C. 1638(b)(2)(F). This provision is implemented in § 1026.19(a)(3) of Regulation Z. Neither RESPA nor VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 Regulation X contains a similar provision. Although the Bureau understands that waivers based on a bona fide personal financial emergency are rare, this exception serves an important purpose: consumers should be able to waive the protection afforded by the waiting period if, in the face of a financial emergency, the waiting period does more harm than good. Accordingly, the Bureau is proposing § 1026.19(f)(1)(iv), which allows a consumer to waive the three-business-day waiting period in the event of a bona fide personal financial emergency. In addition, the Bureau seeks comment on the nature of waivers based on bona fide personal financial emergencies. The Bureau also seeks comment on whether the bona fide personal financial emergency exception is needed more in some contexts than in others (e.g., in refinance transactions or purchase money transactions). Proposed comment 19(f)(1)(iv)–1 states that, a consumer may modify or waive the right to the three-business-day waiting period required by § 1026.19(f)(1)(ii) only after the creditor makes the disclosures required by § 1026.19(f)(1)(i). This comment is modeled after comment 19(a)(3)–1, which is based on the same statutory text, and is consistent with commentary on waiving the rescission period and the pre-consummation waiting period required for certain high-cost mortgage transactions. The consumer must have a bona fide personal financial emergency that necessitates consummating the credit transaction before the end of the waiting period. Whether these conditions are met is determined by the facts surrounding individual situations. The imminent sale of the consumer’s home at foreclosure, where the foreclosure sale will proceed unless loan proceeds are made available to the consumer during the waiting period, is one example of a bona fide personal financial emergency. Each consumer who is primarily liable on the legal obligation must sign the written statement for the waiver to be effective. Alternative—Proposed 19(f)(1)(v) Settlement Agent As discussed above, neither TILA nor Regulation Z contain requirements related to settlement agents, but RESPA and Regulation X generally apply to settlement agents with respect to closing disclosure requirements. Section 1032(f) of the Dodd-Frank Act requires the Bureau to propose for public comment rules that combine the disclosures required under TILA and sections 4 and 5 of RESPA. The Dodd-Frank Act amended TILA and RESPA to reflect PO 00000 Frm 00064 Fmt 4701 Sfmt 4702 section 1032(f)’s mandate to integrate the rules under TILA and RESPA, but Congress did not reconcile the division of responsibilities between creditor and settlement agent in TILA and RESPA. The Bureau recognizes that people who conduct settlements, such as settlement agents and closing attorneys, play a valuable role in the real estate settlement process. The Bureau also believes that settlement agents may be able to assist consumers with issues that arise during a real estate settlement as, or perhaps more, effectively than creditors. However, the Bureau is concerned that, in the context of providing disclosures, settlement agents may not be able to fulfill the obligations imposed by TILA. The Bureau is also concerned that consumers will receive duplicative, inaccurate, or unreliable disclosures if the responsibility to provide disclosures is divided. As discussed above, proposed § 1026.19(f)(1)(i) makes the creditor solely responsible for the provision of the disclosures required by § 1026.19(f). Although this may be the appropriate solution, an alternative approach that permits creditors and settlement agents to split responsibility may also be appropriate. This alternative would require the creditor and settlement agent to agree on a division of responsibilities regarding the delivery of the disclosures. Accordingly, pursuant to its authority under sections 105(a) of TILA, 19(a) of RESPA, and 1405(b) of the Dodd-Frank Act, the Bureau proposes alternative § 1026.19(f)(1)(v), which provides that a settlement agent may provide a consumer with the disclosures required under § 1026.19(f)(1)(i), provided the settlement agent complies with all requirements of § 1026.19(f) as if it were the creditor. As discussed under proposed alternative comment 19(f)(1)(v)–3 below, this proposed regulation is not intended to relieve the creditor’s responsibility under TILA. The creditor would remain responsible for ensuring that disclosures are provided in accordance with the requirements of § 1026.19(f). Disclosures provided by a settlement agent in accordance with the requirements of § 1026.19(f) satisfy the creditor’s obligation under § 1026.19(f)(1)(i). As discussed under proposed alternative comment 19(f)(1)(v)–3 below, this proposed regulation is not intended to relieve the creditor’s responsibility under TILA. The creditor would remain responsible for ensuring that disclosures are provided in accordance with the requirements of § 1026.19(f). Disclosures provided by a settlement agent in accordance with the requirements of § 1026.19(f) satisfy the creditor’s E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules obligation under § 1026.19(f)(1)(i). In addition, the Bureau invites comment on other methods of dividing responsibility between creditors and settlement service providers, provided that such other methods ensure that consumers are provided with prompt, accurate, and reliable disclosures. The Bureau informed the Small Business Review Panel that the Bureau was considering an alternate proposal where the lender would be responsible for preparing the TILA-required information, the settlement agent would be responsible for preparing the RESPArequired information, and the lender and settlement agent would be jointly responsible for providing the consumer with an integrated Closing Disclosure three business days before closing. See Small Business Panel Review Report at 12. While the alternate proposal in this proposed rule permits shared responsibility, it does not delineate responsibility between RESPA and TILA content. Based on further review, the Bureau determined that such a division would be impracticable. There is significant overlap between the disclosures required by the statutes, and creditors and settlement agents have access to both RESPA and TILA information. The Bureau believes that the better approach is to permit shared responsibility, but allow creditors and settlement agents to decide how to most effectively divide that responsibility. However, the Bureau solicits comment on the benefits and costs associated with this alternative, especially regarding any impact on small businesses that was not raised during the Small Business Review process. This proposed regulation carries out the purposes of TILA because requiring the involvement of a settlement agent could result in increased consumer awareness and more meaningful disclosure of credit terms, consistent with section 105(a) of TILA. This proposed regulation could also achieve the purposes of RESPA by resulting in more effective advance disclosure of settlement costs, consistent with section 19(a) of RESPA. This proposed regulation could also improve consumer understanding and awareness of the transaction by permitting the form to be completed and provided by settlement agents, who often assist consumers during a real estate closing, which is in the interest of consumers and in the public interest, consistent with DoddFrank Act section 1405(b). Proposed alternative comment 19(f)(1)(v)–1 clarifies that a settlement agent may provide the disclosures required under § 1026.19(f)(1)(i) instead of the creditor. By assuming this VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 responsibility, the settlement agent becomes responsible for complying with all of the relevant requirements as if it were the creditor, meaning that ‘‘settlement agent’’ should be read in the place of ‘‘creditor’’ for all the relevant provisions of § 1026.19(f), except where the context indicates otherwise. The creditor and settlement agent must effectively communicate to ensure timely and accurate compliance with the requirements of this section. Proposed alternative comment 19(f)(1)(v)–2 clarifies that if a settlement agent issues any disclosure under § 1026.19(f), the settlement agent must comply with the requirements of § 1026.19(f). This proposed alternative comment also clarifies that the settlement agent may assume the responsibility to provide some or all of the disclosures required by § 1026.19(f), provides that the consumer receives one single disclosure form containing all of the information required to be disclosed pursuant to § 1026.19(f)(1)(i), in accordance with the other requirements in § 1026.19(f), such as requirements related to timing and delivery. The comment also includes illustrative examples. Proposed alternative comment 19(f)(1)(v)–3 explains that if a settlement agent provides disclosures required under § 1026.19(f) in the creditor’s place, the creditor remains responsible under § 1026.19(f) for ensuring that the requirements of § 1026.19(f) have been satisfied. For example, the creditor does not comply with § 1026.19(f) if the settlement agent does not provide the disclosures required under § 1026.19(f)(1)(i), or if the consumer receives the disclosures later than three business days before consummation. The proposed comment also clarifies that the creditor does not satisfy the requirements of § 1026.19(f) if it provides duplicative disclosures. For example, a creditor does not satisfy its obligation by issuing disclosures required under § 1026.19(f) that mirror ones already issued by the settlement agent for the purpose of demonstrating that the consumer received timely disclosures. The creditor is expected to maintain communication with the settlement agent to ensure that the settlement agent is acting in place of the creditor. Disclosures provided by a settlement agent in accordance with § 1026.19(f)(1)(v) satisfy the creditor’s obligation under § 1026.19(f)(1)(i). Proposed alternative comment 19(f)(1)(v)–4 clarifies that the settlement agent may assume the responsibility to provide some or all of the disclosures required by § 1026.19(f). However, the consumer must receive one single PO 00000 Frm 00065 Fmt 4701 Sfmt 4702 51179 disclosure form containing all of the information required to be disclosed pursuant to § 1026.19(f)(1)(i), in accordance with the other requirements in § 1026.19(f), such as requirements related to timing and delivery. The proposed alternative comment also includes illustrative examples. 19(f)(2) Subsequent Changes There are several circumstances where the strict application of the threeday-waiting period required by § 1026.19(f)(1)(ii) may operate to the consumer’s detriment. The Bureau seeks to provide flexibility where doing so would benefit the consumer. Thus, the Bureau is proposing § 1026.19(f)(2), which provides that creditors need not comply with the timing requirements in § 1026.19(f)(1)(ii) if the disclosure provided pursuant to § 1026.19(f)(1)(i) is subsequently revised for any of the reasons described in § 1026.19(f)(2)(i) through (v). The Bureau proposes § 1026.19(f)(2) pursuant to its authority under sections 105(a) of TILA and 19(a) of RESPA. As explained in more detail below, the Bureau believes that these proposed regulations will carry out the purposes of TILA and RESPA by ensuring meaningful disclosure of credit terms, more effective advance disclosure of settlement costs, and will result in the elimination of kickbacks, referral fees, and other practices that tend to increase unnecessarily the costs of certain settlement services, consistent with sections 105(a) of TILA and 19(a) of RESPA, respectively. 19(f)(2)(i) Changes Due to Consumer and Seller Negotiations The Bureau recognizes that sellers and buyers frequently alter the terms of the real estate transaction based on the condition of the house at the time of the walk-though inspection, which is often the day before the scheduled real estate closing, and in some cases even continue to negotiate the deal at the closing table. These negotiations may affect items included on the Closing Disclosure, which, under the proposal, must be delivered three days prior to consummation. The Bureau believes that the regulations should provide flexibility to address this common occurrence, so that these changes do not trigger an additional three-day-waiting period. Thus, pursuant to its authority under section 105(a) of TILA and section 19(a) of RESPA, the Bureau proposes § 1026.19(f)(2)(i), which states that if, after the creditor provides the consumer with the disclosures, the consumer and the seller agree to make changes to the transaction that affect E:\FR\FM\23AUP2.SGM 23AUP2 51180 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 items disclosed, the creditor shall deliver revised disclosures reflecting such changes at or before consummation. Proposed comment 19(f)(2)(i)–1 provides illustrative examples of this requirement. This proposed regulation will carry out the purposes of TILA by ensuring meaningful disclosure of credit terms and enable the informed use of credit by enabling buyers and sellers to conduct final negotiations informed by the final credit terms provided in the disclosures, and by ensuring that the disclosures can be modified to reflect such negotiations immediately prior to the real estate closing, consistent with section 105(a) of TILA. This will also help to achieve the purposes of RESPA by enabling more effective advance disclosure of settlement costs, and will result in the elimination of kickbacks, referral fees, and other practices that tend to increase unnecessarily the costs of certain settlement services, by enabling buyers and sellers to conduct final negotiations informed by the final credit terms provided in the disclosures, and by ensuring that the disclosures can be modified to reflect such negotiations immediately prior to the real estate closing, consistent with section 19(a) of RESPA. 19(f)(2)(ii) Changes to the Amount Actually Paid by the Consumer The Bureau does not believe that small miscalculations or minor changes to the transaction should result in closing delays. Therefore, the Bureau proposes § 1026.19(f)(2)(ii), which provides that, if the amount actually paid by the consumer does not exceed the amount disclosed under § 1026.38(d)(1) by more than $100, the creditor shall deliver revised disclosures at or before consummation. The Bureau believes that $100 may be the correct tolerance based on feedback received regarding the items most likely to change prior to consummation. The Bureau seeks comment on whether the threshold to accommodate small miscalculations or minor changes prior to consummation should be higher or lower than the proposed $100. The Bureau proposes § 1026.19(f)(2)(ii) pursuant to its authority under section 105(a) of TILA and section 19(a) of RESPA. This proposed regulation will carry out the purposes of TILA by ensuring meaningful disclosure of credit terms and enable the informed use of credit by permitting minor underestimation in the final amount paid by the consumer, which will lessen the likelihood that creditors will overestimate the final amount paid by the consumer, VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 consistent with section 105(a) of TILA. This will also help to achieve the purposes of RESPA by enabling more effective advance disclosure of settlement costs, and will result in the elimination of kickbacks, referral fees, and other practices that tend to increase unnecessarily the costs of certain settlement services by permitting minor underestimation in the final amount paid by the consumer, which will lessen the likelihood that creditors will unnecessarily increase the cost of settlement services by overestimating the final amount paid by the consumer, consistent with section 19(a) of RESPA. Proposed comment 19(f)(2)(ii)–1 discusses the requirements of § 1026.19(f)(2)(ii), which states that the creditor may provide revised disclosures without regard to the timing requirements in § 1026.19(f)(1)(ii) if the amount actually paid by the consumer does not exceed the amount disclosed pursuant to § 1026.38(d)(1) by more than $100, provided that the creditor delivers revised disclosures at or before consummation. This proposed comment also includes illustrative examples of these requirements. Proposed comment 19(f)(2)(ii)–2 clarifies that revised disclosures provided at consummation may reflect adjustments pursuant to both § 1026.19(f)(2)(i) and § 1026.19(f)(2)(ii). Thus, although § 1026.19(f)(2)(ii) limits the difference between the amount disclosed pursuant to § 1026.19(f)(1)(i) and the amount actually paid at the real estate closing by the consumer to $100, the amount actually paid by the consumer at the real estate closing may vary by more than $100, to the extent permitted by § 1026.19(f)(2)(i). This proposed comment also includes illustrative examples of this provision. 19(f)(2)(iii) Changes Due to Events Occurring After Consummation The Bureau is aware that some costs are not known with absolute certainty until the documents are recorded. For example, it is possible that a locality could change its schedule of recording fees, without advance notice, the day after the consumer signs the mortgage loan documents, but before the documents are recorded. The regulations need to provide sufficient flexibility to accommodate issues, such as these, when such changes are caused by a government entity. Thus, pursuant to its authority under section 105(a) of TILA and section 19(a) of RESPA, the Bureau proposes § 1026.19(f)(2)(iii), which provides that, if an event occurs after consummation that causes the disclosures to become inaccurate, and such inaccuracy results solely from PO 00000 Frm 00066 Fmt 4701 Sfmt 4702 payments to a government entity in connection with the transaction, the creditor shall deliver revised disclosures to the consumer no later than the third business day after the event occurs, provided the consumer receives the corrected disclosures no later than 30 days after consummation. This proposed regulation will prevent circumvention and evasion of, and will facilitate compliance with, TILA, by ensuring that consumers receive correct disclosures of the final terms and costs of the transaction, consistent with section 105(a) of TILA. This proposed regulation is also made pursuant to the Bureau’s authority to implement section 4 of RESPA, consistent with section 19(a) of RESPA. Proposed comment 19(f)(2)(iii)–1 clarifies that this provision applies to payments imposed by government entities, such as taxes, recording fees, and other taxes related to the real estate transaction, and provides several illustrative examples. The Bureau also solicits feedback on whether changes, other than payments to government entities, may occur after the real estate closing, and whether the regulation should provide additional flexibility for such changes. 19(f)(2)(iv) Changes Due to Clerical Errors Regulation X § 1024.8(c) provides that an inadvertent or technical error in completing the HUD–1 or HUD–1A shall not be deemed a violation of section 4 of RESPA if a revised HUD– 1 or HUD–1A is provided within 30 calendar days after settlement. Section 130 of TILA has a similar provision, with respect to civil liability, which relieves creditors of civil liability under certain circumstances, including if, within 60 days of identifying an error, the creditor notifies the person concerned and makes whatever adjustments are necessary.147 There is no similar provision in RESPA or Regulation Z. Pursuant to its authority under section 105(a) of TILA and 19(a) of RESPA, the Bureau proposes 147 ‘‘A creditor or assignee has no liability under this section or section 108 or section 112 for any failure to comply with any requirement imposed under this chapter or chapter 5, if within sixty days after discovering an error, whether pursuant to a final written examination or notice issued under section 108(e)(1) or through the creditor’s or assignee’s own procedures, and prior to the institution of an action under this section or the receipt of written notice of the error from the obligor, the creditor or assignee notifies the person concerned of the error and makes whatever adjustments in the appropriate account are necessary to assure that the person will not be required to pay an amount in excess of the charge actually disclosed, or the dollar equivalent of the annual percentage rate actually disclosed, whichever is lower.’’ 15 U.S.C. 1640(b). E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 § 1026.19(f)(2)(iv), which provides that a creditor does not violate § 1026.19(f)(1)(i) if the disclosures contain non-numeric clerical errors, provided the creditor delivers corrected disclosures as soon as reasonably practicable and no later than 30 days after consummation. Proposed comment 19(f)(2)(iv)–1 clarifies that clerical errors are errors such as typographical errors, or other minor errors that do not affect the amount owed by the consumer. This proposed regulation will prevent circumvention and evasion of, and will facilitate compliance with, TILA, by ensuring that consumers receive correct disclosures consistent with section 105(a) of TILA. This proposed regulation will also result in the elimination of kickbacks, referral fees, and other practices that tend to increase unnecessarily the costs of certain settlement services by ensuring that the consumers’ records correctly reflect the terms, payments, and entities involved in the transaction, consistent with section 19(a) of RESPA. The Bureau also solicits feedback on whether the regulations should provide flexibility for numeric clerical errors, and how such flexibility could be provided without undermining the reliability of the disclosures provided to consumers at or before consummation. 19(f)(2)(v) Refunds Related to the Good Faith Analysis Neither RESPA nor Regulation Z expressly require creditors to refund money to the consumer based on variations between the disclosed estimated costs of settlement services and the amounts for such settlement services actually paid by the consumer. Section 1024.7(i) of Regulation X, however, provides that a lender or mortgage broker violates section 5 of RESPA if any charges at settlement exceed the charges listed on the GFE by more than the permitted tolerances, provided, however, that the loan originator may cure the tolerance violation by reimbursing to the borrower the amount by which the tolerance was exceeded at settlement or within 30 calendar days after settlement. As noted above, section 130 of TILA has a similar provision, with respect to civil liability, which relieves creditors of civil liability under certain circumstances, including if, within 60 days of identifying an error, the creditor notifies the person concerned and makes whatever adjustments are necessary to assure that the person will not be required to pay an amount in excess of the charge actually disclosed. Accordingly, pursuant to its authority under sections 105(a) of TILA, 19(a) of VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 RESPA, and 1405(b) of the Dodd-Frank Act, the Bureau proposes § 1026.19(f)(2)(v), which provides that, if amounts paid by the consumer exceed the amounts specified under § 1026.19(e)(3)(i) or (ii), the creditor complies with § 1026.19(e)(1)(i) if the creditor refunds the excess to the consumer as soon as reasonably practicable and no later than 30 days after consummation, and the creditor complies with § 1026.19(f)(1)(i) if the creditor provides revised disclosures that reflect such refund as soon as reasonably practicable and no later than 30 days after consummation. This proposed regulation will enable meaningful disclosure of credit terms, prevent circumvention and evasion of TILA, and will facilitate compliance with TILA by enabling creditors to refund amounts collected in excess of the good faith requirements, consistent with TILA section 105(a). This will also result in the meaningful advance disclosure of settlement costs and the elimination of kickbacks, referral fees, and other practices that tend to increase unnecessarily the costs of certain settlement services by enabling creditors to refund amounts collected in excess of the good faith requirements, thereby furthering the meaningfulness and reliability of the estimated disclosures, consistent with section 19(a) of RESPA. Proposed comment 19(f)(2)(v)–1 discusses refunds related to the good faith analysis. The proposed comment explains the requirement under § 1026.19(f)(2)(v) providing that, if amounts paid by the consumer exceed the amounts specified under § 1026.19(e)(3)(i) or (ii) of this section, the creditor does not violate § 1026.19(e)(1)(i) if the creditor delivers disclosures revised to reflect the refund of such excess as soon as reasonably practicable and no later than 30 days after consummation. This proposed comment also includes illustrative examples of these requirements. 19(f)(3) Charges Disclosed 19(f)(3)(i) Actual Charge Neither TILA nor Regulation Z addresses the amounts paid to settlement service providers for settlement services. However, section 4 of RESPA provides that the settlement statement shall contain the amount imposed upon the consumer in connection with the settlement. 12 U.S.C. 2603(a). Section 1024.8(b)(1) of Regulation X provides the general rule that the settlement agent shall state the actual charges paid by the borrower and seller on the HUD–1, or by the borrower on the HUD–1A. Pursuant to its PO 00000 Frm 00067 Fmt 4701 Sfmt 4702 51181 authority under section 105(a) of TILA, section 19(a) of RESPA, Dodd-Frank Act section 1032(a), and, for residential mortgage loans, Dodd-Frank Act section 1405(b), the Bureau proposes § 1026.19(f)(3)(i), which provides that the amount imposed upon the consumer for any settlement service shall not exceed the amount actually received by the service provider for that service, except if the charge is an average charge, as provided under § 1026.19(f)(3)(ii). This proposed regulation will prevent circumvention and evasion of, and will facilitate compliance with, TILA by requiring disclosure of the actual terms and costs of the transaction, consistent with section 105(a) of TILA. The proposed regulation implements the requirements of RESPA section 4, pursuant to the Bureau’s implementation authority under RESPA section 19(a). This will also result in the elimination of kickbacks, referral fees, and other practices that tend to increase unnecessarily the costs of certain settlement services, consistent with RESPA sections 2(b) and 8. This will also ensure that the features of the consumer’s mortgage loan are fully and accurately disclosed to the consumer, consistent with Dodd-Frank Act section 1032(a). The proposed regulation will also improve consumer awareness and understanding of transactions involving residential mortgage loans and is in the interest of consumers and in the public interest, consistent with Dodd-Frank Act section 1405(b). Proposed comment 19(f)(3)(i)–1 explains that § 1026.19(f)(3)(i) provides the general rule that the amount imposed upon the consumer for any settlement service shall not exceed the amount actually received by the service provider for that service. Except as otherwise provided in § 1026.19(f)(3)(ii), a creditor violates § 1026.19(f)(3)(i) if the amount imposed upon the consumer exceeds the amount actually received by the service provider for that service. 19(f)(3)(ii) Average Charge As part of the 2008 RESPA Final Rule, HUD adopted a limited exception to the requirement that the settlement statement shall contain the amount imposed on the consumer, which shall not be more than the amount received by the settlement service provider. 12 U.S.C. 2603(a), 2607(b). A lender or settlement service provider may charge more for a settlement service than the amount paid for that service if the charge is an average charge. Specifically, Regulation X § 1024.8(b) provides that the average charge for a settlement service shall be no more than the average amount paid for a settlement E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51182 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules service by one settlement service provider to another settlement service provider on behalf of borrowers and sellers for a particular class of transactions involving federally related mortgage loans, and that the total amounts paid by borrowers and sellers for a settlement service based on the use of an average charge may not exceed the total amounts paid to the providers of that service for the particular class of transactions. Section 1024.8(b)(2) also provides that, the settlement service provider shall define the particular class of transactions for purposes of calculating the average charge as all transactions involving federally related mortgage loans for a period of time as determined by the settlement service provider, but not less than 30 calendar days and not more than 6 months, a geographic area as determined by the settlement service provider, and a type of loan as determined by the settlement service provider. Regulation X also requires a settlement service provider to use an average charge in the same class of transactions for which the charge was calculated, and if the settlement service provider uses the average charge for any transaction in the class, then the settlement service provider must use the same average charge in every transaction within that class for which a GFE was provided. Id. Regulation X prohibits the use of an average charge for any settlement service if the charge for the service is based on the loan amount or property value, such as transfer taxes, interest charges, reserves or escrow, or any type of insurance, including mortgage insurance, title insurance, or hazard insurance, and also requires the settlement service provider to retain all documentation used to calculate the average charge for a particular class of transactions for at least three years after any settlement for which that average charge was used. Id. Pursuant to its authority under section 105(a) of TILA and 19(a) of RESPA, the Bureau proposes § 1026.19(f)(3)(ii), which provides that a creditor or settlement service provider may charge a consumer or seller the average charge for a settlement service if the average charge is no more than the average amount paid for that service by or on behalf of all consumers and sellers for a class of transactions, the creditor or settlement service provider defines the class of transactions based on an appropriate period of time, geographic area, and type of loan, the creditor or settlement service provider uses the same average charge for every transaction within the defined class, and the creditor or settlement service VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 provider does not use an average charge for any type of insurance, for any charge based on the loan amount or property value, or if doing so is otherwise prohibited by law. HUD adopted average-charge pricing pursuant to its authority under section 19(a) of RESPA after finding that average-charge pricing would benefit consumers by lowering settlement costs and enabling more effective advance disclosure of such costs, consistent with RESPA sections 2(b), 4, 5, 8(c)(5), and 19(a).148 In addition to this authority, the Bureau finds that proposed § 1026.19(f)(3)(ii) will prevent circumvention and evasion of, and will facilitate compliance with, TILA, consistent with section 105(a) of TILA. This proposed regulation will also improve consumer awareness and understanding of the transaction, which will be in the interest of consumers and in the public interest, consistent with Dodd-Frank Act section 1405(b). Proposed comment 19(f)(3)(ii)–1 explains that average-charge pricing is the exception to the rule in § 1026.19(f)(3)(i) that consumers shall not pay more than the exact amount charged by a settlement service provider for the performance of that service. If the creditor develops representative samples of specific settlement costs for a particular class of transactions, the creditor may charge the average cost for that settlement service instead of the actual cost for such transactions. An average-charge program may not be used in a way that inflates the cost for settlement services overall. Proposed comment 19(f)(3)(ii)–2 explains how an appropriate period of time, geographic area, and type of loan may be defined, and provides illustrative examples of issues a person may encounter when defining an appropriate geographic area and an appropriate type of loan. Proposed comment 19(f)(3)(ii)–3 provides further explanation related to the requirement that if a creditor chooses to use an average charge for a settlement service for a particular loan within a class, then the creditor must use that average charge for that service on all loans within the class. Proposed comment 19(f)(3)(ii)–3 also provides practical examples illustrating the uniform use requirement. Proposed comment 19(f)(3)(ii)–4 illustrates the requirement that the average charge must be calculated 148 See 73 FR 14030, 14051–14052 (March 14, 2008). Section 8(c)(5) of RESPA provided that: ‘‘Nothing in this section shall be construed as prohibiting * * * such other payments or classes of payments or other transfers as are specified in regulations prescribed by the Secretary.’’ 12 U.S.C. 2607(c)(5)(2008). PO 00000 Frm 00068 Fmt 4701 Sfmt 4702 according to the average amount paid for a settlement service in a prior period, and clarifies that updates to the average charge may be delayed for an amount of time sufficient to re-calculate the average charge, provided that such delays are applied uniformly from one time period to the next. Proposed comment 19(f)(3)(ii)–5 discusses the requirement that the total amount of average charges paid by consumers for settlement services may not exceed the total amount paid for those settlement services overall. The Bureau has received extensive feedback from industry that this requirement, which currently exists under RESPA and Regulation X, has impeded industry adoption of average-charge pricing. Prohibiting industry from collecting more money than is actually paid to settlement service providers means that industry cannot actually average costs over time, and must instead operate at a loss in the long term if industry chooses to use average-charge pricing. The Bureau believes that the use of average-charge pricing promotes greater reliability for consumers. Therefore, the Bureau seeks to address this concern to facilitate the adoption of average-charge pricing. Proposed comment 19(f)(3)(ii)– 5 addresses this issue and discusses the ways in which a person may comply with this requirement. A person may refund the excess amounts collected or may factor in the excesses when determining the average charge for the next period. A person may also comply by establishing a rolling monthly period of re-evaluation. A person complies by re-calculating the average amount every month, and will be deemed to be in compliance with Sections 4 and 8 of RESPA if the person uses this method, even if the person collects more for settlement services than the total amount paid for those settlement services over time. Proposed comment 19(f)(3)(ii)–6 explains that adjustments to the average charge based on prospective analysis are permitted if the creditor or settlement service provider develops a statistically accurate and reliable method for doing so. However, the Bureau is concerned that prospective adjustments may not be practicable in the context of determining average charges. Accordingly, the Bureau seeks comment on whether such a provision is appropriate. Proposed comment 19(f)(3)(ii)–7 discusses the requirement that average charges may not be used for insurance premiums or for items that vary according to the loan amount or property value, such as transfer taxes. Proposed comment 19(f)(3)(ii)–8 E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 clarifies that an average charge may not be used where prohibited by any applicable State or local law. Proposed comment 19(f)(3)(ii)–9 explains how the recordkeeping requirements in § 1026.25 apply to the documents related to the calculation of average charge. 19(f)(4) Transactions Involving a Seller Neither TILA nor Regulation Z contain requirements related to the seller. Section 4 of RESPA provides that the integrated disclosure shall conspicuously and clearly itemize all charges imposed upon the seller in connection with the settlement. 12 U.S.C. 2603(a). Regulation X states that the settlement agent shall provide a completed HUD–1 to any seller at or before the settlement, unless the borrower waives the right to delivery of the HUD–1 at or before settlement, in which case the HUD–1 shall be mailed to the seller as soon as practicable after settlement. § 1024.10(b) and (c). Pursuant to its authority under sections 105(a) of TILA, 19(a) of RESPA, DoddFrank Act section 1032(a), and, for residential mortgage loans, Dodd-Frank Act section 1405(b), the Bureau proposes § 1026.19(f)(4)(i), (ii), and (iii). Proposed § 1026.19(f)(4)(i) provides that in a closed-end consumer credit transaction secured by real property, other than a reverse mortgage subject to § 1026.33, the person conducting the settlement shall provide the seller with the disclosures in § 1026.38 that relate to the seller. Proposed § 1026.19(f)(4)(ii) provides that the person conducting the settlement shall provide these disclosures no later than the day of consummation. If an event occurs after consummation that causes such disclosures to become inaccurate, and such inaccuracy results solely from payments to a government entity, the person conducting the real estate closing shall deliver revised disclosures to the seller no later than 30 days after consummation. Proposed § 1026.19(f)(4)(iii) provides that the amount imposed upon the seller for any settlement service shall not exceed the amount actually received by the service provider for that service, except for average charges calculated pursuant to § 1026.19(f)(3)(ii). This proposed regulation will prevent circumvention and evasion of, and will facilitate compliance with, TILA, consistent with section 105(a) of TILA. The proposed regulation implements the requirements of RESPA section 4, pursuant to the Bureau’s implementation authority under RESPA section 19(a). This proposed regulation will also result in the meaningful VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 advance disclosure of settlement costs and the elimination of kickbacks, referral fees, and other practices that tend to increase unnecessarily the costs of certain settlement services by ensuring that the terms of the transaction that relate to the seller, which include amounts owed to the seller, are fully and accurately disclosed to the seller, consistent with RESPA sections 8 and 19(a). Receipt of the integrated disclosures in accordance with this proposed regulation will also ensure that the features of the transaction and settlement services will be more fully and accurately disclosed to the consumer in a manner that permits sellers to understand the costs of the transaction, consistent with Dodd-Frank Act section 1032(a). The proposed regulation, by requiring sellers to receive the integrated disclosure, will also improve seller’s awareness and understanding of the seller’s transaction, which involves a residential mortgage loan, which is in the interest of consumers and in the public interest, consistent with Dodd-Frank Act section 1405(b). Proposed comment 19(f)(4)(ii)–1 explains that, if an event occurs after consummation that causes such disclosures to become inaccurate and such inaccuracy results solely from payments to a government entity, the person conducting the real estate closing shall deliver revised disclosures to the seller no later than 30 days after consummation. Section 1026.19(f)(4)(i) requires disclosure of the items that relate to the seller’s transaction. Thus, the person conducting the real estate closing need only provide revised disclosures if an item related to the seller’s transaction becomes inaccurate and such inaccuracy results solely from payments to a government entity. The proposed comment also provides illustrative examples of this requirement. 19(f)(5) No Fee Although TILA does not address fees related to the preparation of disclosures, RESPA provides that no fee may be imposed on any person, as a part of settlement costs or otherwise, by a lender in connection with a federally related mortgage loan made by such lender for the preparation or delivery of the settlement statement required by section 4 of RESPA or for statements required by TILA. 12 U.S.C. 2610. Although Regulation Z does not contain a similar requirement, § 1024.12 of Regulation X implements RESPA’s requirement. Pursuant to its authority under sections 105(a) of TILA and 19(a) of RESPA, the Bureau proposes PO 00000 Frm 00069 Fmt 4701 Sfmt 4702 51183 § 1026.19(f)(5), which provides that no fee may be imposed on any person, as a part of settlement costs or otherwise, by a creditor or by a servicer for the preparation or delivery of the disclosures required under § 1026.19(f)(1)(i), escrow account statements required pursuant to section 10 of RESPA, or other statements required by TILA. This proposed regulation will strengthen the informed use of credit by ensuring that consumers are not informed that consumers must pay fees prohibited by law, and enhance competition by ensuring that creditors do not attempt to gain a competitive advantage by charging prohibited fees, both of which are consistent with section 105(a) of TILA. This proposal is also made pursuant to the Bureau’s authority to implement section 10 of RESPA, consistent with section 19(a) of RESPA. This proposed regulation will also result in the meaningful advance disclosure of settlement costs and the elimination of kickbacks, referral fees, and other practices that tend to increase unnecessarily the costs of certain settlement services by ensuring that illegal fees are not included on the disclosures, consistent with section 19(a) of RESPA. 19(g) Special Information Booklet at Time of Application Section 1024.6 of Regulation X contains the provisions related to the Special Information Booklet, which is required by section 5 of RESPA. 12 U.S.C. 2604. The Bureau plans to update the booklet consistent with the amendments to section 5 of RESPA in section 1450 of the Dodd-Frank Act and to reflect the integrated disclosures, once those disclosures are finalized. Pursuant to its authority under TILA section 105(a) and RESPA section 19(a), the Bureau proposes § 1026.19(g), which is substantially similar to the existing requirements in Regulation X, but modified to conform to the usage associated with TILA. The Bureau also solicits feedback on whether the CHARM booklet, required under § 1026.19(b)(1), should be incorporated into the Special Information Booklet. This proposed provision is consistent with TILA’s purposes in that it will increase consumer awareness of the costs of the transaction by informing consumers that settlement costs can be influenced by shopping, thereby promoting the informed use of credit. This proposed regulation will enhance consumers’ ability to shop for a mortgage loan, which will effect changes in the settlement process that will result in the elimination of kickbacks, referral fees, and other E:\FR\FM\23AUP2.SGM 23AUP2 51184 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules practices that tend to increase unnecessarily the costs of certain settlement services, consistent with the Bureau’s authority under section 19(a) of RESPA. Proposed comment 19(g)(1)–1 provides that the Bureau may, after publishing a notice in the Federal Register, issue a revised or separate special information booklet that addresses transactions subject to § 1026.19(g). The Bureau may also choose to permit the forms or booklets of other Federal agencies, in which case the availability of the booklet or alternate materials for these transactions will be set forth in a notice in the Federal Register. Proposed comment 19(g)(1)–2 clarifies that when two or more persons apply together for a loan, the creditor complies with § 1026.19(g) if the creditor provides a copy of the booklet to one of the persons applying. Proposed comment 19(g)(2)–1 explains that the special information booklet may be reproduced in any form, provided that no changes are made, except as otherwise provided under § 1026.19(g). Provision of the special information booklet as a part of a larger document does not satisfy the requirements of § 1026.19(g). Any color, size and quality of paper, type of print, and method of reproduction may be used so long as the booklet is clearly legible. Proposed comment 19(g)(2)–2 clarifies that the special information booklet may be translated into languages other than English. Section 1026.22 Determination of Annual Percentage Rate mstockstill on DSK4VPTVN1PROD with PROPOSALS2 22(a) Accuracy of Annual Percentage Rate The Bureau is proposing conforming amendments to § 1026.22 to reflect the fact that proposed § 1026.38(o)(2) sets forth finance charge tolerances for mortgage transactions subject to § 1026.19(f), as discussed below. The tolerances set forth in § 1026.18(d)(1) continue to apply to closed-end transactions that are not subject to proposed § 1026.19(f). Accordingly, the Bureau proposes to revise § 1026.22(a)(4) and (5) and comment 22(a)(4)–1 to add references to § 1026.38(o)(2). Section 1026.24—Advertising 24(d) Advertisement of Terms That Require Additional Disclosures 24(d)(2) Additional Terms Comment 24(d)(2)–2 currently provides guidance on how to state the terms of repayment in an advertisement, as required in § 1026.24(d)(2)(ii). The VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 Bureau is proposing to exercise its authority under TILA section 105(a) to revise the comment to conform with the additional forms of repayment term disclosures that may apply to various types of mortgage transactions under this proposal. Proposed comment 24(d)(2)–2 clarifies that, in advertisements for closed-end credit secured by real property or a dwelling, the repayment terms disclosed in the interest rate and payment summary table or the projected payments table in §§ 1026.18(s) or 1026.37(c) and 1026.38(c), as applicable, can be provided in an advertisement pursuant to § 1026.24(d)(2)(ii). The use of either the payment schedule described in § 1026.18(g) or the interest rate and payments summary table described in § 1026.18(s) to state the terms of repayment can be provided for transactions secured by real property or a dwelling under comment 24(d)(2)–2. In light of the existence of the interest rate and payment summary table described in § 1026.18(s) and the addition of the projected payments table described in §§ 1026.37(c) and 1026.38(c) of this proposed rule, the Bureau believes that the format of disclosure applicable to a particular transaction is also the most appropriate format for advertising purposes. Comment 24(d)(2)–2 would therefore be revised to clarify that disclosing the terms of repayment in the interest rate and payment summary table and the projected payment tables described in § 1026.18(s) or §§ 1026.37(c) and 1026.38(c), as applicable, satisfies the requirements in § 1026.24(d)(2)(ii). These revisions would also make clear that the payment schedule described in § 1026.18(g) is not the only permissible disclosure under § 1026.24(d)(2)(ii). Section 1026.25 Record Retention As discussed below, the Bureau proposes to amend § 1026.25 to apply the recordkeeping requirements currently under Regulation X to the proposed integrated disclosures and to require creditors to keep such records in an electronic, machine readable format. 25(a) General Rule The Bureau proposes to amend § 1026.25(a) to exempt the requirements of §§ 1026.19(e) and (f). Instead, the record retention requirements for compliance with these sections will be established under a new § 1026.25(c)(1). PO 00000 Frm 00070 Fmt 4701 Sfmt 4702 25(c) Records Related to Certain Requirements for Mortgage Loans 25(c)(1) Records Related to Requirements for Loans Secured by Real Property 25(c)(1)(i) General Rule Neither TILA nor RESPA contain record retention requirements. Section 1026.25 of Regulation Z requires creditors to retain evidence of compliance with TILA for two years after the date disclosures are required to be made or action is required to be taken. Section 1024.7(f) of Regulation X requires lenders to retain documentation of any reason for providing a revised GFE for no less than three years after settlement. Furthermore, § 1024.10(e) of Regulation X requires lenders to retain each completed RESPA settlement statement and related documents for five years after settlement, unless the lender disposes of its interest in the mortgage and does not service the mortgage. The Bureau proposes to reconcile these provisions by generally requiring a creditor to retain evidence of compliance with the requirements of § 1026.19(e) and (f) for three years. The Bureau recognizes that extending the record retention requirement from two years, as currently provided in Regulation Z, to three years may increase costs. However, the Bureau is unaware of any issues related to complying with the three year period currently required by Regulation X. Creditors may be able to use existing recordkeeping systems to maintain the integrated disclosure data at no additional cost. Additionally, several sections of RESPA are subject to a three year statute of limitations.149 Adopting a document retention period of less than three years may affect legal actions brought under RESPA. Thus, it may be appropriate to require creditors to maintain records related to compliance for three years, as opposed to the two year requirement currently under Regulation Z. Pursuant to its authority under section 105(a) of TILA and section 19(a) of RESPA, the Bureau proposes § 1026.25(c)(1)(i), which states that, except as provided under § 1026.25(c)(1)(ii), a creditor shall retain evidence of compliance with the requirements of § 1026.19(e) and (f) for three years after the later of the date of consummation, the date disclosures are 149 ‘‘[A]ctions [under sections 6, 8, or 9] brought by the Bureau, the Secretary, the Attorney General of any State, or the insurance commissioner of any State may be brought within 3 years from the date of the occurrence of the violation.’’ RESPA section 16, 12 U.S.C. 2614. E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 required to be made, or the date the action is required to be taken. The Bureau believes that this proposed modification will ensure that records associated with the integrated disclosures are kept long enough to facilitate compliance with both TILA and RESPA, which is necessary to both prevent circumvention of and facilitate compliance with TILA and RESPA. The Bureau also solicits comment on whether the three year period is appropriate, whether the retention requirement should be extended to five years to match the recordkeeping requirement in proposed § 1026.25(c)(1)(ii), and whether a shorter time period would conflict with the statute of limitations under section 16 of RESPA. Proposed comment 25(c)(1)(i)–1 applies guidance currently applicable under § 1026.25(a) to proposed § 1026.25(c). The proposed comment clarifies that the creditor must retain evidence that it performed the required actions as well as made the required disclosures. This includes, for example, evidence that the creditor properly differentiated between affiliated and independent third party settlement service providers for determining good faith under § 1026.19(e)(3); evidence that the creditor properly documented the reason for revisions under § 1026.19(e)(3)(iv); or evidence that the creditor properly calculated average cost under § 1026.19(f)(3)(ii). Proposed comment 25(c)(1)(i)–2 provides a crossreference to § 1026.19(e)(1)(ii), which imposes responsibilities on mortgage brokers in some situations and may implicate § 1026.25(c). 25(c)(1)(ii) Closing Disclosures As noted above, while § 1026.25 of Regulation Z generally requires creditors to retain evidence of compliance with TILA for two years after the date disclosures are required to be made or action is required to be taken, § 1024.10(e) of Regulation X requires lenders to retain each completed RESPA settlement statement and related documents for five years after settlement, unless the lender disposes of its interest in the mortgage and does not service the mortgage. If the lender disposes of its interest and does not service the mortgage, § 1024.10(e) requires the lender to provide the lender’s copy of the RESPA settlement statement to the owner or servicer of the mortgage as part of the transfer of the loan file. The owner or servicer to whom the files are transferred must retain the RESPA settlement statement for the remainder of the five-year period. VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 Because the Closing Disclosure contains the settlement information that is currently provided on the RESPA settlement statement, the Bureau proposes to adopt the five-year requirement. This information serves an important purpose as both the record of all fees associated with the transaction and as part of the official disbursement record. As such, this information may be needed for more than two years after the transaction. For example, State and local laws related to transactions involving real property may depend on the information being available for five years. Additionally, the current fiveyear recordkeeping requirement under Regulation X has been in effect since 1992.150 The Bureau is unaware of any problems caused by the five year requirement and does not believe the time period should be shortened without evidence that the rule is not operating as intended, is unnecessary, or otherwise harms consumers. Thus, it appears that requiring creditors to retain copies of the Closing Disclosure for five years is appropriate. Pursuant to its authority under section 105(a) of TILA and section 19(a) of RESPA, the Bureau proposes § 1026.25(c)(1)(ii). Proposed § 1026.25(c)(1)(ii)(A) states that the creditor shall retain each completed disclosure required under § 1026.19(f)(1)(i) and (f)(4)(i), and all documents related to such disclosures, for five years after settlement. The Bureau believes that this proposed modification will ensure that records associated with the integrated disclosures are kept long enough to facilitate compliance with both TILA and RESPA, which is necessary to both prevent circumvention of and facilitate compliance with TILA. The proposed recordkeeping requirement will also enable accurate supervision, which will result in the more effective advance disclosure of settlement costs, consistent with section 19(a) of RESPA. Proposed § 1026.25(c)(1)(ii)(B) provides that, if a creditor sells, transfers, or otherwise disposes of its interest in a mortgage and does not service the mortgage, the creditor shall provide a copy of the disclosures required under § 1026.19(f)(1)(i) or (f)(4)(i) to the owner or servicer of the mortgage as a part of the transfer of the loan file. Such owner or servicer shall retain such disclosures for the remainder of the five-year period. Proposed § 1026.25(c)(1)(ii)(C) provides that the Bureau shall have the right to require provision of copies of records related to the disclosures 150 57 PO 00000 FR 49600, 49607 (Nov. 2, 1992). Frm 00071 Fmt 4701 Sfmt 4702 51185 required under § 1026.19(f)(1)(i) or (f)(4)(i). The Bureau recognizes that this proposal is different from the current requirements under Regulation X, which does not require a creditor to maintain these documents if the creditor disposes of its interest in the mortgage loan and does not service the mortgage loan. However, the Bureau believes that the current requirement provides little practical benefit to creditors, because other provisions of Regulations Z and X require creditors to maintain records of compliance for several years, even if the creditor transfers, sells, or otherwise disposes of its interest in the mortgage loan. The Bureau solicits feedback regarding whether it is appropriate for creditors that transfer, sell, or otherwise dispose of their interest in the mortgage loan, and do not service the mortgage loan, to keep these records for the fiveyear period. The Bureau also requests feedback on the additional costs that would result from such a requirement. 25(c)(1)(iii) Electronic Records Issues Related to Adopting a Standard, Machine Readable, Electronic Data Format. Neither TILA nor RESPA address electronic recordkeeping. Regulation Z permits, but does not require, electronic recordkeeping. Comment 25(a)–2 provides that records can be maintained by any method that reproduces disclosures accurately, including computer programs. Regulation X also permits, but does not require, electronic records. See § 1024.23 and HUD RESPA FAQs p.3, #4 (‘‘GFE—General’’). The Bureau has sought information regarding the costs of keeping records in an electronic, machine readable format. ‘‘Machine readable’’ means a format where the individual data elements comprising the record can be transmitted, analyzed, and processed by a computer program, such as a spreadsheet or database program. Data formats for image reproductions (e.g., PDF) or document text, such as those used by word processing programs, are not machine readable for purposes of this proposal. Based on these discussions, including information learned from the Small Entity Representatives participating in the Small Business Review Panel process, the Bureau recognizes that requiring records in an electronic, machine readable format will impose new costs on industry. Industry would incur costs for either acquiring a system to create records in electronic, machine readable format, or for modifying their current systems to use a standard format required by regulation. See Small E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51186 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules Business Review Panel Report at 30. However, feedback provided to the Small Business Review Panel indicates that creditors currently rely on electronic systems for most aspects of the mortgage loan origination process, which include electronic record creation and storage. See id. Thus, any new costs caused by a machine readable recordkeeping requirement would be limited to the up-front costs of upgrading existing computer systems and additional, ongoing data storage costs. In contrast, the benefits of keeping records in machine readable format may be significant. A prescribed electronic format may reduce costs across the entire mortgage loan origination industry due to efficiency gains associated with a standardized data format. Information received by the Bureau suggests that creditors, mortgage brokers, title companies, investors, and other mortgage technology providers use systems with proprietary data formats. As a result, data must be translated between formats as it is transmitted from one point to another throughout the mortgage loan origination process. A standard electronic record format may eliminate these multiple data formats, thereby increasing efficiency in the origination process, reducing industry costs in the long term, and reducing costs to consumers. Also, the Bureau is aware that many firms currently face significant internal costs for maintaining multiple internal technological systems. A single data format may lower overall and long-term costs by enabling creditors to migrate from older data formats to a single, standard data format. Other benefits may be realized from a standard, electronic, machine readable format. A standard format may facilitate innovation in the financial services industry by making it easier for technology companies to create new programs that improve the mortgage origination process and lower industry costs, instead of tailoring programs to each firm’s unique proprietary data format. A standard machine readable format may also facilitate industry adoption of mortgage documentation technology. Such developments would reduce industry’s reliance on paper files, which would lower ongoing costs while reducing the paperwork burden on both industry and consumers. Furthermore, electronic, machine readable records may allow regulators to monitor some aspects of compliance remotely. Remote examinations may benefit creditors by easing the burden associated with devoting staff time and resources to on-site examinations. All of VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 these benefits may reduce industry cost and burden in the long run, thereby reducing costs to consumers as well. The Bureau believes that the benefits of a standard, machine readable electronic data format may outweigh the costs associated with adopting and maintaining such a format. Thus, pursuant to its authority under section 105(a) of TILA, the Bureau proposes § 1026.25(c)(1)(iii), which provides that a creditor shall retain evidence of compliance in electronic, machine readable format. The Bureau believes that this proposed requirement will ensure that records associated with the integrated disclosures are readily available for examination, which is necessary to both prevent circumvention of and facilitate compliance with TILA. This proposed regulation may also facilitate compliance with TILA by easing the burden of examinations and ensuring that all entities subject to TILA keep records in a standard format. Proposed comment 25(c)(1)(iii)–1 clarifies that the requirements of § 1026.25(c)(1)(iii) are in addition to any other formats that may be required by administrative agencies responsible for enforcing the regulation. The Bureau solicits comment on this approach, including the costs associated with such a requirement. As discussed in the Initial Regulatory Flexibility Analysis, section VIII.B.4.b below, the proposed electronic recordkeeping requirement may not be appropriate for certain classes of entities, such as small creditors that do not currently have such electronic filing systems or use vendor software. The upfront and ongoing costs of such a requirement on small creditors may outweigh any benefits. However, the Bureau does not have sufficient data to determine whether and which small creditors should be exempt from the requirements. Accordingly, pursuant to its authority under section 105(f) of TILA, the Bureau proposes that, as an alternative to requiring electronic records, that a class of entities consisting of small creditors be exempted based on either entity size or the number of loans originated. The Bureau has considered the factors in TILA section 105(f) and believes that an exception could be appropriate under that provision if the costs imposed on small entities outweigh the benefits to consumers. In such circumstances, an exemption would be appropriate for all affected borrowers who receive mortgage loans from small entities, regardless of their other financial arrangements and financial sophistication and the importance of the loan to them. Similarly, an exemption PO 00000 Frm 00072 Fmt 4701 Sfmt 4702 would be appropriate for all affected loans issued by exempt small entities, regardless of the amount of the loan and whether the loan is secured by the principal residence of the consumer. Furthermore, on balance, the proposed exemption would simplify the credit process for small entities without undermining the goal of consumer protection or denying important benefits to consumers. The Bureau recognizes that its exemption and exception authorities apply to a class of transactions, and proposes to apply these authorities to the loans covered under the proposal of the entities proposed for potential exemption. Consistent with the recommendation of the Small Business Review Panel, the Bureau solicits comment on whether a small business exemption is appropriate, whether such small business exemption should be based on entity size or the number of loans originated, and the appropriate exemption threshold in terms of institution size or the number of loans originated, respectively. The Bureau solicits feedback on whether such an exemption for depository institutions should be different than an exemption for non-depository institutions. The Bureau also solicits feedback on small business’ current technology costs, and how such costs might be affected by an electronic recordkeeping requirement. Based on the Bureau’s discussions with industry regarding machine readable data formats, the Bureau believes that XML may be the most appropriate format for electronic recordkeeping. However, the Bureau solicits comment on the costs and challenges associated with adopting an XML format. The Bureau also solicits feedback on other data formats that may be more appropriate than XML. Smart Disclosure. ‘‘Smart disclosure’’ generally refers to a requirement that data be kept in standard, machine readable format that is also available to the public. In the context of mortgage loans, any regulation implementing smart disclosure would require creditors to provide consumers with data related to the loan origination process. Smart disclosure can facilitate intelligent decision-making by consumers and encourage innovation. For example, if consumers were provided with Loan Estimates in electronic format, computer programs and applications may be developed to allow consumers to compare Loan Estimates between different creditors. Or, programs may be developed that assist consumers in assessing the ongoing costs, risks, and affordability of a single Loan Estimate for the individual consumer. E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 The Bureau recognizes that smart disclosures may encourage the informed use of credit and promote innovation in the consumer financial services industry. While the Bureau supports these goals, the Bureau is not proposing a smart disclosure requirement at this time. The Bureau intends to continue monitoring the consumer financial services market and will revisit this issue if, in the future, the Bureau determines that such a requirement is appropriate. Section 1026.28 Effect on State Laws TILA preempts State laws to the extent of their inconsistency with that statute and permits States, creditors, and other interested parties to request a determination by the Bureau regarding such inconsistency. Specifically, section 111(a)(1) states that the provisions of chapters 1 (General Provisions), 2 (Credit Transactions), and 3 (Credit Advertising and Limits on Credit Card Fees) of TILA do not annul, alter, or affect the laws of any State relating to the disclosure of information in connection with credit transactions, except to the extent that those laws are inconsistent with the provisions of TILA and then only to the extent of the inconsistency. 15 U.S.C. 1610(a)(1). Upon its own motion or upon the request of any creditor, State, or other interested party that is submitted in accordance with procedures prescribed in regulations of the Bureau, the Bureau shall determine whether any such inconsistency exists. Id. If the Bureau determines that a State-required disclosure is inconsistent, creditors located in that State may not make disclosures using the inconsistent term or form, and shall incur no liability under the State law for failure to use such term or form, notwithstanding that such determination is subsequently amended, rescinded, or determined by judicial or other authority to be invalid for any reason. Id. Section 111(b) generally provides that TILA does not otherwise annul, alter, or effect in any manner the meaning, scope, or applicability of the laws of any State, including, but not limited to, laws relating to the types, amounts, or rates of charges, or any elements of charges, permissible under such laws in connection with the extension or use of credit, and neither does TILA extend the applicability of those laws to any class of persons or transactions to which they would not otherwise apply. 15 U.S.C. 1610(b). Regulation Z § 1026.28 implements TILA section 111. Section 1026.28(a) provides that State law requirements that are inconsistent with the VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 requirements contained in chapters 1 through 3 of TILA and the implementing provisions of Regulation Z are preempted to the extent of the inconsistency.151 Under § 1026.28(a), a State law is inconsistent with a TILA provision if it requires a creditor to make disclosures or take actions that contradict the requirements of TILA. A State law contradicts a requirement of TILA if it requires the use of the same term to represent a different amount or a different meaning than TILA, or if it requires the use of a term different from that required in TILA to describe the same item. A creditor, State, or other interested party may request the Bureau to determine whether a State law requirement is inconsistent, and if the Bureau makes such a determination a creditor may not make disclosures using the inconsistent term or form.152 The specific procedures for requesting a State law preemption determination are set forth in § 1026.28(c) and appendix A to part 1026. Appendix A states, among other things, that the Bureau reserves the right to reverse a determination for any reason bearing on the coverage or effect of State or Federal law. Current Regulation Z commentary provides further guidance on the TILA preemption rules. Comment 28(a)–2 includes examples of State laws that would be preempted (e.g., a State law requiring use of the term ‘‘finance charge’’ but defining the term to include fees that TILA excludes, or to exclude fees that TILA includes). Comment 28(a)–3 explains that State law requirements calling for disclosure of items not covered by TILA or that require more detailed disclosures generally do not contradict the TILA requirements, provides examples of State laws that would not be preempted, and gives guidance as to whether a State law requiring itemization of the amount financed would be preempted. Comment 28(a)–4 explains that a creditor, prior to a preemption 151 There are different rules regarding preemption of State laws relating to the disclosure of credit information in any credit or charge card application or solicitation that is subject to the requirements of section 127 of TILA and the correction of billing errors, but those rules are outside the scope of this rulemaking. See § 1026.28(a)(2), (d). 152 TILA section 111(a)(2) and § 1026.28(b) generally permit a creditor, State, or other interested party to request that the Bureau determine whether a State-required disclosure is substantially the same in meaning as a TILA disclosure, and if the Bureau makes such a determination, creditors in the State can provide the State-required disclosure in lieu of the TILA disclosure. Comment 28(b)–1 clarifies that under § 1026.28, a State disclosure can be substituted for a Federal disclosure only after a determination of substantial similarity. State exemptions are addressed in more detail under § 1026.29 and associated commentary. PO 00000 Frm 00073 Fmt 4701 Sfmt 4702 51187 determination, may either (1) give the State disclosures or (2) apply the preemption standards to a State law, conclude that it is inconsistent, and choose not to give the State-required disclosures (but that no immunity is given under § 1026.28(a) for violations of State law if the creditor chooses not to make State disclosures and the Bureau later determines that the State law is not preempted). The comment also states that the Bureau will give sufficient time to creditors to revise their forms and procedures as necessary to conform with its preemption determinations. Comments 28(a)–8 through –15 discuss prior determinations made by the Federal Reserve Board prior to July 21, 2011, and recognized by the Bureau unless and until the Bureau makes and publishes any contrary determinations, to preempt certain State laws. For example, comment 28(a)–15 notes that, in Wisconsin, disclosure of the annual percentage rate under the particular State law referenced in the comment is preempted, because while the statute refers to ‘‘annual percentage rate,’’ it requires disclosure of a different amount than under TILA. Section 18 of RESPA and Regulation X § 1024.13 provide that State laws that are inconsistent with RESPA or Regulation X are preempted to the extent of the inconsistency. 12 U.S.C. 2616; 12 CFR 1024.13. RESPA and Regulation X do not annul, alter, affect, or exempt any person subject to their provisions from complying with the laws of any State with respect to settlement practices, except to the extent of the inconsistency. Id. Upon request by any person, the Bureau is authorized to determine whether such inconsistencies exist, and the Bureau may not determine that any State law is inconsistent with any provision of RESPA if the Bureau determines that such law or regulation gives greater protection to the consumer. 12 CFR 1024.13(b). In making this determination, the Bureau must consult with ‘‘appropriate Federal agencies.’’ Id.; see also 12 U.S.C. 2616. Section 1024.13(c) sets forth the process by which the Bureau makes a preemption determination. Unlike Regulation Z, Regulation X does not list any State laws preempted by RESPA, and the Bureau is not aware of any. The preemption provisions in TILA and RESPA and their implementing regulations thus contain similar language as far as scope of the preemption (i.e., in both cases State laws generally are preempted only ‘‘to the extent of the inconsistency’’), but include different authority and E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51188 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules procedures for determining whether State laws are preempted. For example, unlike Regulation X, § 1026.28 provides a regulatory standard for determining ‘‘inconsistency’’ (i.e., disclosures or actions that contradict Federal law requirements) along with detailed commentary. RESPA, but not TILA, requires the preemption determination to be made by the Bureau in consultation with other appropriate Federal agencies. Moreover, while the Regulation Z provision addresses the relationship between Federal and State laws governing credit transactions, § 1024.13 refers to laws regarding settlement practices. As noted previously, section 1032(f) of the Dodd-Frank Act requires the Bureau to propose rules and forms that combine the disclosures required under TILA and sections 4 and 5 of RESPA into a single, integrated disclosure for mortgage loan transactions covered by those laws. In addition, the Dodd-Frank Act amended sections 105(b) of TILA and 4(a) of RESPA, respectively, to require the integration of those disclosure requirements. However, the Dodd-Frank Act did not specify whether the TILA or the RESPA State law preemption provision applies to the provision of the integrated mortgage disclosures. In order to meet the DoddFrank Act’s mandate, the proposed rule must reconcile the differences regarding these State law preemption regimes. Furthermore, there are certain transactions subject to TILA, but not RESPA, for which the integrated mortgage disclosures must be delivered under the proposed rule. Pursuant to § 1026.19(e) and (f), the proposed rule covers all closed-end consumer credit transactions secured by real property, other than reverse mortgages. Some of these transactions are not subject to RESPA (i.e., if they are not a federally related mortgage loan as defined in Regulation X § 1024.2), but consumers in such transactions will receive integrated mortgage disclosures containing certain content mandated by RESPA. This may create confusion as to which preemption provision controls were a State law preemption question to arise with respect to the RESPAmandated content on the integrated mortgage disclosures. Accordingly, Dodd-Frank Act section 1032(f), TILA section 105(b), and RESPA section 19(a) provide the Bureau with authority to reconcile the provisions of TILA and RESPA to carry out the integrated disclosure requirement. Based on such authority and the Bureau’s authority under TILA section 105(a) and RESPA section 19(a) to make rules consistent with the VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 purposes of those statutes, the Bureau is proposing to require that the State law preemption provisions of Regulation Z, § 1026.28, apply to any State law preemption question arising with respect to the requirements of sections 4 and 5 of RESPA (other than the RESPA section 5(c) requirements regarding provision of a list of certified homeownership counselors), and §§ 1026.19(e) and (f), 1026.37, and 1026.38. By applying the Regulation Z State law preemption provision to any State law preemption question arising with respect to the requirements of §§ 1026.19(e) and (f), 1026.37, and 1026.38, this requirement encompasses all closed-end consumer credit transactions secured by real property that are covered by the proposed rule, regardless of whether they are independently subject to RESPA. However, § 1024.13 applies to State law preemption questions arising with respect to other aspects of RESPA and Regulation X, including the RESPA section 5(c) requirements regarding provision of a list of certified homeownership counselors. To effectuate this change, the Bureau is proposing two modifications to § 1026.28 and its associated commentary. First, the proposed rule modifies § 1026.28(a) to provide that a determination of whether a State law is inconsistent with the requirements of sections 4 and 5 of RESPA (other than the RESPA section 5(c) requirements regarding provision of a list of certified homeownership counselors) and proposed §§ 1026.19(e) and (f), 1026.37, and 1026.38 shall be made in accordance with § 1026.28 and not Regulation X § 1024.13. Second, the proposed rule adds text to comment 28(a)–1 providing that, to the extent applicable to a transaction subject to § 1026.19(e) and (f), any reference to ‘‘creditor’’ in § 1026.28 includes a creditor, a mortgage broker, or a closing agent, as applicable. This change coincides with the alternative proposed § 1026.19(f)(1)(v), which permits the closing agent to deliver the Closing Disclosure in place of the creditor. If the alternative permitting the closing agent to deliver the Closing Disclosure is not adopted, the closing agent reference in the proposed edit to comment 28(a)–1 will not be adopted. The Bureau notes that proposed § 1026.28 and associated commentary do not incorporate the language in RESPA section 18 and Regulation X § 1024.13(b) providing that the Bureau may not determine that any State law is inconsistent with any RESPA provision if the Bureau determines that such law or regulation gives greater protection to PO 00000 Frm 00074 Fmt 4701 Sfmt 4702 the consumer. However, the Bureau believes that proposed § 1026.28 is consistent with RESPA section 18. Specifically, a State disclosure is likely to confuse consumers if it uses the same term to represent a different amount or a different meaning than, or if it requires the use of a different term to describe the same item as, the integrated mortgage disclosures developed in this rulemaking through extensive consumer testing. Accordingly, for purposes of this rulemaking, the Bureau believes that such State disclosures generally do not provide greater protection for consumers. Nevertheless, the Bureau intends to take a cautious case-by-case approach to evaluating inconsistency under RESPA section 18. The Bureau also intends to consult with other Federal agencies, as appropriate, within the scope of RESPA concerning any evaluations of inconsistency under RESPA section 18. Furthermore, the Bureau emphasizes that nothing in this proposed rule is intended to preempt State laws that offer greater substantive consumer protections than those provided under sections 4 and 5 of RESPA 153 and §§ 1026.19(e) and (f), 1026.37, and 1026.38 (e.g., a State law imposing stricter limits on closing cost increases or requiring disclosures of the final closing costs seven days before consummation). A more protective State law would not be inconsistent with such RESPA and Regulation Z provisions, and therefore would not be preempted by § 1026.28, because a creditor’s compliance with the more protective State law would also satisfy the requirements of such RESPA and Regulation Z provisions. The Bureau believes that the proposed revisions to the regulatory text and commentary to § 1026.28 effectively specify whether the Regulation Z or RESPA State law preemption provision applies to any State law preemption question arising with respect to the requirements of sections 4 and 5 of RESPA (other than the RESPA section 5(c) requirements regarding provision of a list of certified homeownership counselors) and proposed §§ 1026.19(e) and (f), 1026.37, and 1026.38. Section 1026.29 State Exemptions TILA has several provisions that permit the Bureau to grant State exemptions from certain TILA disclosure provisions. Section 111(a)(2) allows the Bureau, upon its own motion 153 As discussed above, proposed revised § 1026.28 and associated commentary do not govern State law preemption questions arising under the RESPA section 5(c) requirements for provision of a list of certified homeownership counselors. E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 or upon the request of any creditor, State, or other interested party that is submitted in accordance with procedures prescribed in regulations of the Bureau, to determine whether any disclosure required under any State law is substantially the same in meaning as a disclosure required under TILA. 15 U.S.C. 1610(a)(2). If the Bureau makes such a determination, TILA section 111(a)(2) provides that creditors located in that State may make such disclosure in compliance with such State law in lieu of the TILA disclosure, except that (1) the annual percentage rate and finance charge must be disclosed as required by section 122 of TILA, and (2) State-required disclosures may not be made in lieu of the high-cost mortgage disclosures under section 129 of TILA. Section 123 of TILA allows the Bureau by regulation to exempt any class of credit transactions within any State from the requirements of chapter 2 of TILA (Credit transactions) if the Bureau determines that the law of the State subjects the class of transactions to requirements substantially similar to those imposed under chapter 2 of TILA, and that there is adequate provision for enforcement.154 15 U.S.C. 1633. Regulation Z § 1026.29 and appendix B to part 1026 implement the TILA State exemption provisions.155 Pursuant to § 1026.29(a), a State may apply to the Bureau to exempt a class of transactions within the State from the requirements of chapter 2 (Credit transactions) or chapter 4 (Credit billing) of TILA and the corresponding provisions of Regulation Z. The Bureau shall grant an exemption if it determines that (1) the State law is substantially similar to the Federal law or, in the case of chapter 4 of TILA, affords the consumer greater protection than the Federal law, and (2) there is adequate provision for enforcement. Comment 29(a)–2 clarifies that State law is ‘‘substantially similar’’ for purposes of § 1026.29(a) if the State statutory or regulatory provisions and State interpretations of those provisions are generally the same as TILA and Regulation Z. Comment 29(a)–3 clarifies that, generally, there is adequate 154 Section 171(b) of TILA also addresses State exemptions and contains nearly identical language to section 123, but section 171(b) applies with respect to TILA chapter 4 (credit billing), which is not affected by this rulemaking. 15 U.S.C. 1661j(b). 155 As noted earlier, § 1026.28(b) generally permits a creditor, State, or other interested party to request that the Bureau determine whether a State-required disclosure is substantially the same in meaning as a TILA disclosure, and if the Bureau makes such a determination, creditors in the State can provide the State-required disclosure in lieu of the TILA disclosure. Comment 28(b)–1 clarifies that under § 1026.28, a State disclosure can be substituted for a Federal disclosure only after a determination of substantial similarity. VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 provision for enforcement if appropriate State officials are authorized to enforce the State law through procedures and sanctions comparable to those available to Federal enforcement agencies. Comment 29(a)–4 states that the Bureau recognizes certain TILA exemptions granted by the Federal Reserve Board to Maine, Connecticut, Massachusetts, Wyoming, and Oklahoma prior to July 21, 2011, until and unless the Bureau makes and publishes any contrary determination. Comment 29(a)–4.i through –4.v currently provides, in relevant part, that credit transactions in these five States that are subject to the State consumer credit codes or truth in lending acts enumerated in such comment are exempt from the requirements of chapter 2 of TILA, which sets forth, among other provisions, the disclosure requirements for closed-end mortgages. The specific procedures for requesting a State exemption are set forth in § 1026.29(c) and appendix B to part 1026. Appendix B states, among other things, that the Bureau reserves the right to revoke an exemption if at any time it determines that the standards required for an exemption are not met. Unlike TILA, RESPA does not contain a State exemption provision for credit transactions subject to RESPA. Rather, as discussed above with respect to § 1026.28, section 18 of RESPA and Regulation X § 1024.13 provide that State laws that are inconsistent with RESPA or Regulation X are preempted to the extent of the inconsistency. 12 U.S.C. 2616; 12 CFR 1024.13. As noted above, sections 1032(f), 1098, and 1100A of the Dodd-Frank Act require the Bureau to propose for public comment, rules and forms that combine the disclosures required under TILA and sections 4 and 5 of RESPA into a single, integrated disclosure for mortgage loan transactions covered by those laws. However, the Dodd-Frank Act did not address a number of inconsistencies between TILA and RESPA that affect the provision of the integrated mortgage disclosures, including inconsistent provisions regarding the application of State law. In order to meet the Dodd-Frank Act’s mandate, the proposed rule must reconcile the State exemption provisions. Accordingly, pursuant to its authority under Dodd-Frank Act section 1032(f), TILA section 105(b), and RESPA section 19(a) as well as its authority under TILA section 105(a) and RESPA section 19(a) to make rules consistent with the purposes of those statutes, the Bureau is proposing to require that the TILA State exemption provision apply to PO 00000 Frm 00075 Fmt 4701 Sfmt 4702 51189 transactions subject to proposed § 1026.19(e) and (f) (i.e., all closed-end consumer credit transactions secured by real property, other than a reverse mortgage). By applying the TILA State exemption provision to transactions subject to § 1026.19(e) and (f), rather than the RESPA State preemption provision (which is silent as to the granting of State exemptions under RESPA), this requirement would cover all closed-end consumer credit transactions secured by real property that are covered by the proposed rule, including those subject to RESPA. The Bureau believes this is consistent with the intent of TILA’s State exemption provision and the integrated disclosure mandate in Dodd-Frank Act section 1032(f), TILA section 105(b), and RESPA section 19(a) because it allows States to maintain their existing exemptions so long as consumers receive disclosures and protections that are substantially similar to those in the proposed rule. Furthermore, using the TILA State law exemption provision for transactions subject to § 1026.19(e) and (f) will facilitate compliance with the disclosure requirements of TILA and RESPA and promote the informed use of credit and more effective advance notice of settlement costs since creditors, consistent with TILA section 105(a) and RESPA section 19(a), by applying a consistent standard to those transactions. To effectuate this change, the Bureau is proposing two substantive modifications to the commentary to § 1026.29, in addition to relabeling some of the section numbering and lettering. First, proposed revised comment 29(a)– 2 modifies the guidance regarding the ‘‘substantially similar’’ standard set forth in § 1026.29(a)(1) (i.e., one of the two preconditions to the granting of an exemption). Proposed revised comment 29(a)–2 clarifies that, in order for transactions that would otherwise be subject to the integrated disclosures required by § 1026.19(e) and (f) to be exempt from those disclosure requirements, the State statutory or regulatory provisions and State interpretations of those provisions must require disclosures that are generally the same as those prescribed by § 1026.19(e) and (f), in the forms prescribed by §§ 1026.37 and 1026.38. This means that, in order for an existing State exemption to be maintained, the State’s law must require disclosures that are generally the same as the integrated disclosures, including the RESPA content. Second, proposed revised comment 29(a)–4 states that, although RESPA and Regulation X do not provide procedures E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51190 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules for State exemptions, for transactions subject to § 1026.19(e) and (f), compliance with the requirements of §§ 1026.19(e) and (f), 1026.37, and 1026.38 satisfies the requirements of sections 4 and 5 of RESPA (other than the RESPA section 5(c) requirements regarding provision of a list of certified homeownership counselors). Furthermore, the proposed revised comment states that if the transaction is subject to a previously-granted State exemption, then compliance with the requirements of any State laws and regulations incorporating the requirements of §§ 1026.19(e) and (f), 1026.37, and 1026.38 likewise satisfies the requirements of sections 4 and 5 of RESPA (other than the RESPA section 5(c) requirements regarding provision of a list of certified homeownership counselors). Thus, in Maine, Connecticut, Massachusetts, Oklahoma, and Wyoming, creditors, mortgage brokers, and settlement agents, as applicable, may satisfy sections 4 and 5 of RESPA (other than the RESPA section 5(c) requirements regarding provision of a list of certified homeownership counselors) through compliance with State law so long as the ‘‘substantially similar’’ State statutory and regulatory provisions (i.e., the State consumer codes or truth in lending acts enumerated in comment 29(a)–4.1 through –4.v, as applicable) expressly mandate delivery of the integrated mortgage disclosures required by the Dodd-Frank Act and implemented by the proposed rule. The Bureau believes that the proposed revisions to the commentary to § 1026.29 effectively reconcile the conflicting TILA and RESPA provisions by clarifying the standards for the Bureau’s granting of exemptions from certain relevant TILA and RESPA provisions going forward. The proposed revisions also clarify how compliance with sections 4 and 5 of RESPA (other than the RESPA section 5(c) requirements regarding provision of a list of certified homeownership counselors) may be accomplished with respect to transactions subject to the previously-granted TILA exemptions in light of the Dodd-Frank Act’s mandate to integrate the mortgage disclosures under TILA and sections 4 and 5 of RESPA. Finally, the proposed revisions do not change the existing language in comment 29(a)–4 and appendix B to part 1026 reserving the Bureau’s right to make and publish any contrary determination regarding State exemptions previously granted by the Federal Reserve Board and, more generally, to revoke State exemptions if VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 the standards for granting them are no longer met. The Bureau understands these proposed changes will likely require some of the five States previously granted State exemptions under 12 CFR 226.29, the predecessor to § 1026.29, to change their laws and/or regulations, which may be a lengthy process.156 This is because to the extent the ‘‘substantially similar’’ State laws and regulations underlying the TILA State exemptions do not currently require the integrated disclosures mandated by the Dodd-Frank Act (specifically, the portions mandated by RESPA), there is a gap in these States’ current statutory and regulatory regimes that must be filled in order to maintain the State exemptions. As such, the Bureau hereby solicits comment on the amount of time that will be needed for these States to change their laws and/or regulations. Section 1026.37 Content of Disclosures for Certain Mortgage Transactions (Loan Estimate) Proposed § 1026.37 sets forth the required content of the integrated Loan Estimate disclosures, required by proposed § 1026.19(e) to be provided to a consumer within three business days of the creditor’s receipt of the consumer’s application. As discussed above, the Loan Estimate integrates the disclosures currently provided in the RESPA GFE and the early TILA disclosure. In addition, the Loan Estimate integrates several disclosures that would otherwise be provided separately under various Federal laws. The Bureau believes the three-page Loan Estimate integrates at least seven pages of disclosures. Specifically, the Loan Estimate incorporates: (i) three pages of the RESPA GFE; (ii) two pages typically used for the early TILA disclosure; (iii) one page typically used for the appraisal notification provided under ECOA section 701(e); and (iv) one page typically used for the servicing disclosure provided under RESPA section 6. In addition, the Loan Estimate incorporates the disclosure of: (i) The total interest percentage under TILA section 128(a)(19), which was added by section 1419 of the Dodd-Frank Act; (ii) the aggregate amount of loan charges and closing costs the consumer must 156 While these proposed changes may require some of these five States to change their laws and/ or regulations, others incorporate TILA and Regulation Z into their State laws and/or regulations by reference. Therefore, the Bureau anticipates that these other States should not have to take any action to maintain their existing exemptions directly as a result of this proposed rule. PO 00000 Frm 00076 Fmt 4701 Sfmt 4702 pay at consummation under TILA section 128(a)(17), which was added by section 1419 of the Dodd-Frank Act; (iii) for refinance transactions, the antideficiency protection notice under TILA section 129C(g)(3), which was added by section 1414(c) of the Dodd-Frank Act; and (iv) the homeowner’s insurance disclosure in TILA section 106(c) and § 1026.4(d)(2)(i), which is required to exclude homeowner’s insurance premiums from the finance charge. In absence of the Bureau’s integration of the early TILA disclosure and the RESPA GFE, some these new disclosures would have been added to the early TILA disclosure, which potentially could have increased that disclosure’s typical two pages to three pages. Proposed § 1026.37 provides that the information set forth in § 1026.37(a) through (n) shall be disclosed ‘‘as applicable.’’ The Bureau is proposing a new comment 37–1 to clarify that a disclosure that is not applicable to a transaction generally may be eliminated entirely or may be included but marked ‘‘not applicable’’ or ‘‘N/A.’’ As discussed below, proposed § 1026.37(o) provides rules for the form of the disclosures required by § 1026.37(a) through (n). Proposed comment 37–2 directs creditors to § 1026.37(o) and its commentary for guidance on format and permissible modifications to the form of the disclosures. 37(a) General Information The Bureau proposes § 1026.37(a), which combines and modifies disclosures currently provided under Regulations X and Z and adds additional disclosures in the Loan Estimate for transactions subject to proposed § 1026.19(e). For the reasons discussed below and consistent with TILA section 105(a), RESPA section 19(a), and the purposes of those statutes, proposed § 1026.37(a) will promote the informed use of credit and more effective advance disclosure of settlement costs. In addition, proposed § 1026.37(a) will enable consumers to better understand the costs, benefits, and risks associated with mortgage transactions, consistent with DoddFrank Act section 1032(a). Furthermore, proposed § 1026.37(a) will improve consumer awareness and understanding of transactions involving residential mortgage loans and is therefore in the interest of consumers and the public, consistent with Dodd-Frank Act section 1405(b). E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 37(a)(1) Form Title Although the Dodd-Frank Act requires the Bureau to combine the TILA and RESPA mortgage disclosures that are currently provided to consumers within three business days after application, the Act does not prescribe a title for the integrated form. Under § 1024.2(b) of Regulation X, the form providing consumers with the RESPA good faith estimate of settlement charges they are likely to incur is called the ‘‘Good Faith Estimate’’ or ‘‘GFE.’’ Regulation Z does not prescribe a name for the TILA good faith estimate required by § 1026.19(a)(1), although comment 17(a)(1)–5.ix permits the creditor to provide ‘‘[a] brief caption identifying the disclosures’’ and provides as examples of acceptable titles, ‘‘Federal Truth in Lending Disclosures’’ and ‘‘Real Estate Loan Disclosures.’’ Proposed § 1026.37(a)(1) requires the creditor to use the term ‘‘Loan Estimate’’ as the title of the integrated disclosures creditors provide pursuant to proposed § 1026.19(e). The Bureau believes the adoption of a standardized form name may eliminate confusion for consumers seeking to compare estimates for different loans and thereby promote the informed use of credit and more effective advance notice of settlement costs, consistent with TILA section 105(a) and RESPA section 19(a), and will enable consumers to better understand the costs, benefits, and risks associated with mortgage transactions, consistent with Dodd-Frank Act section 1032(a). In addition, the use of standard terminology for the integrated disclosures will facilitate compliance for industry, which is a purpose of this rulemaking under Dodd-Frank Act sections 1098 and 1100A. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 37(a)(2) Form Purpose Proposed § 1026.37(a)(2) requires the creditor to include a statement regarding one of the primary uses of the Loan Estimate for consumers, which is to compare with the Closing Disclosure to verify the loan terms and costs. Specifically, proposed § 1026.37(a)(2) requires the creditor to provide the following statement at the top of all Loan Estimates, ‘‘Save this Loan Estimate to compare with your Closing Disclosure.’’ The proposed language may benefit consumers and promote the informed use of credit by encouraging consumers to use the Loan Estimate as a tool to help them readily identify any changes to the loan transaction or costs that may have occurred between issuance of the initial Loan Estimate and the Closing Disclosure. VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 Requiring creditors to disclose the purpose for the Loan Estimate and related disclosures is not a new requirement. Appendix C of Regulation X currently requires specific language regarding the purpose of the GFE.157 And while the Bureau’s proposed language differs from that prescribed by HUD, the Bureau believes that the disclosure in proposed § 1026.37(a)(2) accomplishes the same goal in a clearer and more succinct manner. Accordingly, this disclosure promotes the informed use of credit and more effective advance notice of settlement costs, consistent with TILA section 105(a) and RESPA section 19(a), and will enable consumers to better understand the costs, benefits, and risks associated with mortgage transactions, consistent with Dodd-Frank Act section 1032(a). 37(a)(3) Creditor TILA section 128(a)(1) requires disclosure of the ‘‘identity of the creditor required to make [the] disclosure.’’ 15 U.S.C. 1638(a)(1). Regulation Z § 1026.18(a) implements TILA section 128(a)(1) and requires for each transaction the identity of the creditor making the disclosure. HUD imposed a similar requirement in appendix C to Regulation X, requiring the name and contact information for the ‘‘loan originator.’’ Pursuant to TILA section 105(a), RESPA section 19(a), and Dodd-Frank Act section 1032(a), proposed § 1026.37(a)(3) mirrors § 1026.18(a) and requires the name of the creditor making the disclosure. By allowing the consumer to identify the name of the creditor providing the Loan Estimate, this disclosure will promote the informed use of credit and more effective advance notice of settlement costs and will enable consumers to better understand the costs, benefits, and risks associated with mortgage transactions. Proposed comment 1026.37(a)(3)–1 cross-references § 1026.17(d) and comment 17(d)–1 and clarifies that, in transactions with multiple creditors, only the creditor making the disclosure must be identified. Proposed comment 37(a)(3)–2 states that, in transactions where the loan is originated by a mortgage broker, the name of the 157 Appendix C to Regulation X requires the following statement on the GFE under the heading ‘‘Purpose’’: ‘‘This GFE gives you an estimate of your settlement charges and loan terms if you are approved for this loan. For more information, see HUD’s Special Information Booklet on settlement charges, your Truth-in-Lending Disclosures, and other consumer information at www.hud.gov/respa. If you decide you would like to proceed with this loan, contact us.’’ PO 00000 Frm 00077 Fmt 4701 Sfmt 4702 51191 creditor, if known, must still be provided even if the mortgage broker provides the disclosure to the consumer. 37(a)(4) Date Issued Appendix C to Regulation X requires creditors to provide the date of the GFE. Proposed § 1026.37(a)(4) mirrors this requirement by mandating disclosure of the date the Loan Estimate is mailed or delivered to the consumer. Proposed comment 1026.37(a)–1 clarifies that the ‘‘date issued’’ is the date the creditor delivers the Loan Estimate to the consumer and is not affected by the creditor’s method of delivery. The Bureau is proposing this requirement pursuant to its authority under TILA section 105(a) and RESPA section 19(a) because disclosure of the date the Loan Estimate is issued will promote the informed use of credit and more effective advance disclosure of settlement costs, which are purposes of TILA and RESPA respectively, by enabling consumers to compare the Loan Estimate with any revised Loan Estimates that may be issued. In addition, this comparison will enable consumers to identify changes in loan terms and costs and thereby understand the costs, benefits, and risks associated with the mortgage transaction, consistent with Dodd-Frank Act section 1032(a). 37(a)(5) Applicants Appendix C to Regulation X requires disclosure of the name of the applicants for the mortgage loan transaction. Similarly, pursuant to TILA section 105(a), RESPA section 19(a), and DoddFrank Act section 1032(a), proposed § 1026.37(a)(5) requires creditors to disclose the name of the applicants for the loan transaction. By enabling consumers to confirm that the Loan Estimate is intended for them, this disclosure will promote the informed use of credit and more effective advance notice of settlement costs and will enable consumers to better understand the costs, benefits, and risks associated with mortgage transactions. Proposed comment 37(a)(5)–1 clarifies that the names of all applicants for the mortgage loan must be disclosed on the form and that if the form cannot accommodate the names of all the applicants, the creditor may attach to the back of the form a separate page listing the remaining applicants. 37(a)(6) Property Appendix C to Regulation X requires at the top of the GFE the ‘‘address or location of the property’’ for which the financing is sought. The Bureau proposes to use its authority in TILA E:\FR\FM\23AUP2.SGM 23AUP2 51192 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 section 105(a), RESPA section 19(a), and section 1032(a) of the Dodd-Frank Act to impose a similar requirement for the Loan Estimate required by proposed § 1026.19(e). The Bureau believes that, by providing the consumer with basic information about the property that is the subject of the loan transaction, this disclosure will promote the informed use of credit and more effective advance notice of settlement costs and will enable consumers to better understand the costs, benefits, and risks associated with mortgage transactions. Accordingly, proposed § 1026.37(a)(6) requires the creditor to disclose the street address or location of the property that secures the transaction that is the subject of the Loan Estimate. Proposed comment 37(a)(6)–1 instructs creditors to provide a legal description or other locator for the property in cases where there is no street address. The proposed comment also clarifies that a zip code would be required in all instances. 37(a)(7) Sale Price Proposed § 1026.37(a)(7)(i) requires disclosure of the contract sale price for the property identified in proposed § 1026.37(a)(6). For transactions that do not involve a seller, proposed § 1026.37(a)(7)(ii) requires disclosure of the estimated value for the property identified in proposed § 1026.37(a)(6). Proposed comment 37(a)(7)–1 provides guidance regarding the requirement to provide the estimated value of the property, if a creditor has performed its own estimate or obtained an appraisal or valuation of the property. The disclosure of the contract sale price and estimated property value, as applicable, is a new requirement, which the Bureau proposes pursuant to its authority under TILA section 105(a), RESPA section 19(a), and section 1032(a) of the Dodd-Frank Act for transactions subject to proposed § 1026.19(e). The Bureau believes that including the contract sales price or estimated property value in the Loan Estimate will help promote the informed use of credit and more effective advance notice of settlement costs and will enable consumers to better understand the costs, benefits, and risks associated with mortgage transactions by ensuring that consumers have in a single location all the information needed to decide whether to enter into a legal obligation. 37(a)(8) Loan Term Existing appendix C to Regulation X requires the loan originator to disclose the loan term as part of the ‘‘Summary of Your Loan’’ disclosure. Regulation Z does not have a similar requirement, VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 although TILA provides for such a disclosure.158 Proposed § 1026.37(a)(8) essentially mirrors appendix C to Regulation X and requires the creditor to disclose the term to maturity of the credit. The prototype mortgage disclosures used at the Bureau’s consumer testing displayed this in terms of years, and consumers were able to understand and evaluate easily the term to maturity. The Bureau believes that this unit of time provides a frame of reference to consumers that they use more regularly and that is easier to understand than months, which may result in large numbers that are unfamiliar to consumers, such as 180 or 360 months. Accordingly, proposed § 1026.37(a)(8) requires the loan term to be expressed in years. The Bureau understands from industry feedback provided in connection with the Bureau’s stakeholder outreach that some adjustable rate loans may be structured so that the periodic principal and interest payment is fixed and increases in the interest rate increase the loan term instead of the payment. Accordingly, proposed comment 37(a)(8)–1 provides guidance regarding compliance with the requirement of proposed § 1026.37(a)(8) if the term to maturity is adjustable under the terms of the legal obligation. The Bureau proposes § 1026.37(a)(8) pursuant to its authority under TILA section 105(a), RESPA section 19(a), and section 1032(a) of the Dodd-Frank Act to implement TILA section 128(a)(6) and because disclosing the loan term will help promote the informed use of credit and more effective advance notice of settlement costs and will enable consumers to better understand the costs, benefits, and risks associated with mortgage transactions. 37(a)(9) Purpose Neither Regulation Z nor Regulation X currently requires disclosure of the purpose of the loan. With the number of loan products available on the market, some of which are targeted for a particular purpose, inclusion of this information on the Loan Estimate will promote the informed use of credit and more effective advance notice of 158 TILA section 128(a)(6) requires disclosure of the ‘‘number, amount, and due dates or period’’ of periodic payments which, in effect, makes disclosure of the loan term a statutory requirement. Section 1026.18(g) implements TILA section 128(a)(6) for non-mortgage transactions, but there is no corresponding disclosure requirement for mortgage loan transactions in existing § 1026.18(s). In this proposal, the Bureau intends to implement TILA section 128(a)(6) by requiring disclosure of the loan term for mortgages in proposed § 1026.37(a)(8). PO 00000 Frm 00078 Fmt 4701 Sfmt 4702 settlement costs and will enable consumers to better understand the costs, benefits, and risks associated with mortgage transactions. Accordingly, the Bureau proposes to use its authority under TILA section 105(a), RESPA section 19(a), and section 1032(a) of the Dodd-Frank Act to require creditors to disclose the intended purpose of the extension of credit. Under proposed § 1026.37(a)(9), the creditor is required to disclose as the purpose of the loan one of the following: (1) Purchase; (2) refinance; (3) construction; or (4) home equity loan. Proposed comment 37(a)(9)–1 provides general guidance on identifying the most accurate loan purpose and clarifies that, in disclosing the loan purpose, the creditor must consider all relevant information available to the creditor at the time of the disclosure and that, if there is uncertainty, the creditor may rely on the consumer’s stated purpose. The Bureau seeks comment on whether additional loan purposes should be added to § 1026.37(a)(9). 37(a)(9)(i) Purchase If the credit is to finance the acquisition of the property that is the subject of the loan transaction, proposed § 1026.37(a)(9)(i) requires the creditor to disclose that the loan is a ‘‘Purchase.’’ Proposed comment 37(a)(9)–1.i clarifies the meaning of the term ‘‘purchase.’’ 37(a)(9)(ii) Refinance Proposed § 1026.37(a)(9)(ii) requires the creditor to disclose that the loan is for a ‘‘Refinance’’ if, consistent with § 1026.20(a) other than with regard to the identity of the creditor, the credit is to refinance an existing obligation already secured by the property that is the subject of the transaction. Like § 1026.20(a), whether a transaction is a refinancing under proposed § 1026.37(a)(9)(ii) depends on whether the original obligation has been satisfied or extinguished and replaced by a new obligation, based on the parties’ contract and applicable law. This may include an obligation under which amounts other than principal remain due under the existing obligation and are to be paid with the new obligation to satisfy the existing obligation. Proposed comment 37(a)(9)–1.ii clarifies the meaning of the term ‘‘refinance’’ and that the consumer may or may not receive cash from the transaction. Proposed comment 37(a)(9)(ii)–1.ii also provides a description of a refinancing with and without cash provided and provides an example of how a consumer may use cash received in a refinancing transaction with cash provided. Proposed comment 37(a)(9)–2 also E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules clarifies that proposed § 1026.37(a)(9)(ii), unlike § 1026.20(a), applies to all such transactions even if the refinancing is undertaken by a new creditor. 37(a)(9)(iii) Construction If the extension of credit is to finance the construction of a dwelling on the property, proposed § 1026.37(a)(9)(iii) requires the creditor to disclose that the loan is for ‘‘Construction.’’ Proposed comment 37(a)(9)–1.iii clarifies that the creditor is required to disclose that the loan is for ‘‘construction’’ both in transactions where the extension of credit is to cover the costs of a construction project only (‘‘construction-only’’ loan), whether it is a new construction or a renovation project, and in transactions where a multiple advance loan may be permanently financed by the same creditor (‘‘construction-to-permanent’’ loan). The proposed comment also clarifies that, in construction-only transactions, the consumer may be required to make interest-only payments during the construction phase of the project with the loan balance due at the completion of the construction project. Finally, proposed comment 37(a)(9)– 1.iii cross-references § 1026.17(c)(6)(ii) and comments 17(c)(6)–2 and –3 for further guidance regarding constructionto-permanent transactions. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 37(a)(9)(iv) Home Equity Loan If the extension of credit does not involve the purchase of real property as described in proposed § 1026.37(a)(9)(i) or the construction of a dwelling as described in proposed § 1026.37(a)(9)(iii) and will not be used to refinance an existing obligation as described in proposed § 1026.37(a)(9)(ii), proposed § 1026.37(a)(9)(iv) requires the creditor to state that the extension of credit is for a ‘‘Home Equity Loan.’’ Proposed comment 37(a)(9)(iv)–1.iv clarifies that the home equity loan disclosure applies whether the transaction will be secured by a first or subordinate lien on the property. 37(a)(10) Product Pursuant to TILA section 128(b)(2)(C)(ii), under existing § 1026.18(s), the creditor is required to provide certain information about the interest rate and payments, which is based on the loan product. In proposed § 1026.37(a)(10), the Bureau requires a description of the loan product. The Bureau proposes this new requirement pursuant to its authority under TILA section 105(a), RESPA section 19(a), section 1032(a) of the Dodd-Frank Act, VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 and section 1405(b) of the Dodd-Frank Act with respect to residential mortgage loans. The Bureau believes that requiring the disclosure of the loan product on the Loan Estimate promotes the informed use of credit and more effective advance disclosure of settlement charges by providing consumers with key loan terms early in the transaction and in a clear and conspicuous manner. This disclosure also enables consumers to better understand the costs, benefits, and risks associated with mortgage transactions. In addition, the disclosure of the loan product may improve consumer awareness and understanding of transactions involving residential mortgage loans through the use of disclosures, and is in the interest of consumers and in the public interest. Specifically, proposed § 1026.37(a)(10)(i) requires the creditor to identify the type of loan product for which the consumer has applied and proposed § 1026.37(a)(10)(ii) requires a description of certain loan features added to the loan product that may change the consumer’s periodic payment. Proposed § 1026.37(a)(10)(iii) provides instructions on how to disclose loan products that contain one or more loan features, states that the creditor may disclose only one loan feature, and cross-references proposed § 1026.37(a)(10)(ii) as establishing the following hierarchy to be adhered to when disclosing a loan product with more than one loan feature: (1) Negative amortization; (2) interest-only; (3) step payment; and (4) balloon payment. Proposed § 1026.37(a)(10)(iv) requires that the disclosure of any loan product or loan feature be preceded by any introductory rate periods, adjustable features, and applicable time periods. This aspect of the proposal would not apply to fixed rate loans with no additional features. Finally, comments to proposed § 1026.37(a)(10) provide further descriptions and examples of the loan products and features to be disclosed, as discussed below. 37(a)(10)(i) Proposed § 1026.37(a)(10)(i) requires disclosure of one of the following as the product for which the consumer has applied: 37(a)(10)(i)(A) Adjustable Rate If the annual percentage rate may increase after consummation, but the rates that will apply or the periods for which they will apply are not known at consummation, proposed § 1026.37(a)(10)(i)(A) requires that the loan be disclosed as an ‘‘Adjustable Rate.’’ Proposed comment 37(a)(10)–1.i PO 00000 Frm 00079 Fmt 4701 Sfmt 4702 51193 clarifies the proper format for disclosure of an adjustable-rate product. 37(a)(10)(i)(B) Step Rate Under proposed § 1026.37(a)(10)(i)(B), the loan product is required to be disclosed as a ‘‘Step Rate’’ if the interest rate will change after consummation and the applicable rates and the periods for the applicable rates are known. Proposed comment 37(a)(10)–1.ii clarifies that the proper format for disclosure of a step-rate product. 37(a)(10)(i)(C) Fixed Rate Proposed § 1026.37(a)(10)(i)(C) requires the creditor to disclose the loan product as a ‘‘Fixed Rate’’ if the product is neither an Adjustable Rate nor a Step Rate, as described in § 1026.37(a)(10)(i)(A) and (B), respectively. Proposed comment 37(a)(10)–1.iii provides guidance regarding the disclosure required by § 1026.37(a)(10)(i)(C). 37(a)(10)(ii) Proposed § 1026.37(a)(10)(ii) requires the disclosure of loan features that may change the consumer’s periodic payment. As noted above, although structured differently, § 1026.18(s) requires a similar disclosure. Proposed § 1026.37(a)(10)(ii) requires the consumer to disclose one of the following features, as applicable: Negative amortization, interest-only, step payment, balloon payment, or seasonal payment. Proposed comment 37(a)(10)–2 clarifies the requirements of § 1026.37(a)(10)(iii) and (iv) with respect to the feature that is disclosed and the time period or the length of the introductory period and the frequency of the adjustment periods, as applicable, that preceded the feature. For example: an adjustable-rate product with an introductory rate that is interest-only for the first five years and then adjusts every three years starting in year six would be disclosed as ‘‘5 Year Interest Only, 5/3 Adjustable Rate’’; a step-rate product with an introductory interest rate that lasts for seven years, and adjusts every year thereafter for the next five years at a predetermined rate would be disclosed as ‘‘7/1 Step Rate’’; and a fixed rate product that is interest-only for ten years with a balloon payment due at the end of the ten-year period would be disclosed as ‘‘10 Year Interest Only, Fixed Rate.’’ The balloon payment feature, however, would be disclosed elsewhere on the form as described in the section-by-section analysis of proposed § 1026.37(b) and (c). E:\FR\FM\23AUP2.SGM 23AUP2 51194 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 37(a)(10)(ii)(A) Negative Amortization Proposed § 1026.37(a)(10)(ii)(A) requires that the creditor disclose a ‘‘Negative Amortization’’ loan feature if, under the terms of the legal obligation, the loan balance may increase. Proposed comment 37(a)(10)–2.i provides an example of the disclosure of a loan product with a negative amortization feature. 37(a)(10)(ii)(B) Interest Only Proposed § 1026.37(a)(10)(ii)(B) requires that the creditor disclose an ‘‘Interest Only’’ loan feature if, under the legal obligation, one or more regular periodic payments may be applied only to interest accrued and not to the loan principal. Proposed comment 37(a)(10)– 2.ii provides an example of the disclosure of a loan product with an interest only feature. 37(a)(10)(ii)(C) Step Payment Proposed § 1026.37(a)(10)(ii)(C) requires that the creditor disclose a ‘‘Step Payment’’ loan feature if the terms of the legal obligation include a feature that involves scheduled variations in the periodic payment during the term of the loan that are not caused by changes in the interest rate. Proposed comment 37(a)(10)–2.iii clarifies that the term ‘‘step payment’’ is sometimes also called a ‘‘graduated payment’’ and provides an example and guidance on the format to be used when disclosing a loan product with a Step Payment feature. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 37(a)(10)(ii)(D) Balloon Payment Proposed § 1026.37(a)(10)(ii)(D) requires that the creditor disclose a ‘‘Balloon Payment’’ loan feature if the transaction includes a balloon payment as defined in proposed § 1026.37(b)(5). Proposed comment 37(a)(10)–2.iv clarifies that the term ‘‘balloon payment’’ has the same meaning as in proposed § 1026.37(b)(5) and provides further guidance on the format to be used when disclosing a loan product with a balloon payment feature. 37(a)(10)(ii)(E) Seasonal Payment Proposed § 1026.37(a)(10)(ii)(E) requires that the creditor disclose whether the terms of the legal obligation expressly provide that regular periodic payments are not scheduled for specified unit-periods on a regular basis, disclosed as a ‘‘Seasonal Payment’’ feature. The Bureau understands from industry feedback provided in connection with the Bureau’s stakeholder outreach that some loans, which may be more prevalent in the community bank market, may be structured so that periodic principal and interest payments are not scheduled to VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 be made by the consumer in between specified unit-periods on a regular basis. For example, such a loan may be structured so that payments are not required to be made by the consumer during the months of June through August each year of the loan term. These loans are sometimes called ‘‘teacher loans.’’ Accordingly, proposed § 1026.37(a)(10)(ii)(E) provides for the disclosure of such a product feature. Proposed comment 37(a)(10)–2.v provides guidance regarding this requirement. 37(a)(10)(iii) Proposed § 1026.37(a)(10)(iii) requires that if more than one loan feature is applicable to the transaction, the creditor disclose only the first applicable loan feature from the order in which they are presented in proposed § 1026.37(a)(10)(ii). This proposed order of loan features prioritizes the loan features to ensure that consumers receive information about potential costs and risks in a readily visible format, understanding that consumers will receive information about some applicable features elsewhere in the Loan Estimate. For example, the existence of a balloon payment is also disclosed under both proposed § 1026.37(b) and (c), and thus, is later in the order of loan features under proposed § 1026.37(a)(10)(iii). In addition, seasonal payments do not pose as great a risk to consumers as do negatively amortizing or non-amortizing payments, and thus, disclosure of these features is earlier than seasonal payments in the order under proposed § 1026.37(a)(10)(iii). 37(a)(10)(iv) Finally, proposed § 1026.37(a)(10)(iv) requires the creditor to include in the disclosures required by § 1026.37(a)(10)(i) and (ii) information regarding any introductory rate period, adjustment period, or time period, as applicable, and that this information should precede both the loan product and any features disclosed, as applicable. For example, if the consumer applies for an adjustable-rate loan that includes a scheduled regular periodic payment that results in negative amortization in years one through three, interest-only payments in years four and five, and an interest rate that adjusts every two years after year three, the creditor would disclose the product as ‘‘3 Year Negative Amortization, 3/2 Adjustable Rate.’’ 37(a)(11) Loan Type Existing appendix A to Regulation X requires disclosure of the loan type in PO 00000 Frm 00080 Fmt 4701 Sfmt 4702 section B of the RESPA settlement statement. The Bureau proposes to use its authority under TILA section 105(a), RESPA section 19(a), and Dodd-Frank Act 1032(a) to require a similar disclosure. The types of transactions disclosed under proposed § 1026.37(a)(11) may include different cost structures or underwriting requirements. The disclosure of the type of transaction enables consumers to evaluate whether it is the type of transaction that is best suited for their personal situation. The Bureau believes that including information regarding the type of transaction for which the consumer has applied will promote the informed use of credit and more effective advance disclosure of closing costs, and will enable consumers to better understand the costs, benefits, and risks associated with mortgage transactions by providing consumers with information regarding important characteristics of the loan early in the transaction. Accordingly, under proposed § 1026.37(a)(11), creditors are required to disclose one of the following loan types: Conventional, FHA, VA, or Other. 37(a)(11)(i) Conventional If the loan is not guaranteed or insured by a Federal or State government agency, proposed § 1026.37(a)(11)(i) requires the creditor to disclose that the loan is a ‘‘Conventional.’’ 37(a)(11)(ii) FHA If the loan is insured by the Federal Housing Administration, proposed § 1026.37(a)(11)(ii) requires the creditor to disclose that the loan is a ‘‘FHA.’’ 37(a)(11)(iii) VA If the loan is guaranteed by the U.S. Department of Veterans Affairs, proposed § 1026.37(a)(11)(iii) requires the creditor to disclose that the loan is a ‘‘VA.’’ 37(a)(11)(iv) Other For federally-insured or guaranteed loans that do not fall within the categories described in proposed § 1026.37(a)(11)(i) through (iii) and loans insured or guaranteed by a State agency or other entity, proposed § 1026.37(a)(11)(iv) requires the creditor to disclose the loan type as ‘‘Other’’ and provide a brief description of the loan. Proposed comment 1026.37(a)(11)–1 provides details on the type of loans that would be categorized as ‘‘Other’’ and an example of an acceptable description of a loan that falls within that category. E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 37(a)(12) Loan Identification Number (Loan ID #) Appendix A to Regulation X requires the settlement agent to provide the ‘‘loan number’’ in the RESPA settlement statement. The Bureau proposes to use its authority in TILA section 105(a), RESPA section 19(a), and Dodd-Frank Act section 1032(a) to require disclosure of the loan number on the Loan Estimate. The Bureau believes that including this information in a prominent position on the Loan Estimate will promote the informed use of credit and more effective advance disclosure of settlement costs and will enable consumers to better understand the costs, benefits, and risks associated with mortgage transactions by providing consumers with access to information they may use repeatedly throughout the transaction. Accordingly, proposed § 1026.37(a)(12) requires the creditor to provide a unique number that may be used by the lender, consumer, and other parties to identify the loan transaction, labeled as ‘‘Loan ID #.’’ Proposed comment 37(a)(12)–1 clarifies that the lender has the discretion to create the unique loan identification number and that different and unrelated loan transactions with the same creditor may not share the same loan identification number. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 37(a)(13) Rate Lock Existing appendix C to Regulation X requires the loan originator to disclose information regarding the expiration date for the interest rate, charges, and related terms offered by the originator in the GFE. The Bureau believes that this information is critical to the consumer’s ability to understand the transaction and avoid the uninformed use of credit. Furthermore, disclosure of this information promotes more effective advance disclosure of settlement costs and will enable consumers to better understand the costs, benefits, and risks associated with mortgage transactions. Thus, the Bureau proposes to use its authority under TILA section 105(a), RESPA section 19(a), and Dodd-Frank Act section 1032(a) to require creditors to provide the rate lock information currently provided in the RESPA GFE. Consistent with this requirement, proposed § 1026.37(a)(13) requires the creditor to disclose whether the interest rate identified under proposed § 1026.37(b)(2) has been locked by the consumer and, if set, proposed § 1026.37(a)(13)(i) requires disclosure of the date and time (including the applicable time zone) the locked rate would expire. Proposed VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 § 1026.37(a)(13)(ii) states that the ‘‘rate lock’’ statement required by proposed § 1026.37(a)(13) is to be accompanied by a statement notifying the consumer that the interest rate, points, and lender credits provided in the Loan Estimate are subject to change unless the rate has been set by the consumer and the date and time (including the applicable time zone) all estimated closing costs provided in the Loan Estimate will expire. Proposed comment 37(a)(13)–1 clarifies that for purposes of proposed § 1026.37(a)(13), a disclosed interest rate is set for a specific period of time even if subject to conditions set forth in the rate-lock agreement between the creditor and consumer. Proposed comment 37(a)(13)–2 clarifies that the information provided under proposed § 1026.37(a)(13) is required whether or not the transaction is consummated or the terms are otherwise not accepted or extended. Proposed comment 37(a)(13)– 3 states that all times provided in the disclosure must reference the applicable time zone and provides an example of an appropriate disclosure of the applicable time zone. 37(b) Loan Terms To shop for and understand the cost of credit, consumers must be able to identify and understand the key loan terms offered to them. As discussed below, the Bureau’s consumer testing suggests that the following are key loan terms that consumers recognize and expect to see on closed-end mortgage disclosures, together with their settlement charges: Loan amount; interest rate; periodic principal and interest payment; whether the loan amount, interest rate, or periodic payment can increase; and whether the loan has a prepayment penalty or balloon payment. TILA requires the disclosure of some of these key loan terms, but not all. Notably, the loan amount and interest rate are currently not specifically required to be disclosed by TILA section 128. 15 U.S.C. 1638. Although Regulation Z currently requires the interest rate to be disclosed in the payment schedule required by § 1026.18(s), it does not require the loan amount to be disclosed for non-HOEPA loans, and does not require a summary table identifying these key loan terms for closed-end credit secured by real property. 12 CFR 1026.18. For federally related mortgage loans, § 1024.7(d) of Regulation X currently requires the GFE to contain a table on page 1, labeled ‘‘Summary of your loan terms,’’ which contains the following information: (i) Initial loan amount; (ii) loan term; (iii) initial interest rate; (iv) initial monthly PO 00000 Frm 00081 Fmt 4701 Sfmt 4702 51195 amount owed for principal, interest, and mortgage insurance; (v) whether the interest rate can rise, and if so, the maximum interest rate and the date of the first interest rate change; (vi) whether the loan balance can rise, and if so, the maximum loan balance; (vii) whether the monthly amount owed for principal, interest, and mortgage insurance can rise, and if so, the payment amount at the first change and the maximum payment; (viii) whether the loan has a prepayment penalty and the maximum prepayment penalty; and (xi) whether the loan has a balloon payment, the amount, and when it is due. 12 CFR 1024.7(d). Pursuant to its authority under TILA section 105(a), RESPA section 19(a), and Dodd-Frank Act section 1032(a), the Bureau proposes to require creditors to provide the key loan terms described above in a summary table as part of the integrated Loan Estimate required by proposed § 1026.19(e) for closed-end transactions secured by real property (other than reverse mortgages). At the Bureau’s consumer testing, participants were able to use the summary table to identify and compare easily the key loan terms for different loans. Based on its consumer testing, the Bureau believes that a concise loan summary table will improve consumer understanding of the loan terms presented, such as an understanding of whether the consumer can afford the loan, enable comparisons of different credit terms offered by the same or multiple creditors, and enable consumers to verify information about the loan provided by the creditor orally or in some other form, such as a worksheet. The Bureau believes that this disclosure will effectuate the purposes of TILA by promoting the informed use of credit and assuring a meaningful disclosure to consumers, including more effective advance disclosure of settlement costs. Furthermore, consistent with section 1032(a) of the Dodd-Frank Act, this disclosure would ensure that the features of consumer credit transactions secured by real property are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the product or service, in light of the facts and circumstances. The table appears under the heading ‘‘Loan Terms’’ to enhance visibility. The individual items of information in the table are also labeled to enhance visibility. The format provides consumers with a bold ‘‘yes’’ or ‘‘no’’ answer to the questions of whether the loan amount, interest rate, or periodic payment can increase, and whether the loan has a prepayment penalty or E:\FR\FM\23AUP2.SGM 23AUP2 51196 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 balloon payment. The format of the Loan Terms table will help consumers quickly and easily identify their key loan terms. The Bureau proposes comment 37(b)– 1 to provide additional guidance to creditors regarding the Loan Terms table. Proposed comment 37(b)–1 clarifies that the Loan Terms table should reflect the terms of the legal obligation that the consumer will enter into, based on information the creditor knows or reasonably should know. A discussion of the specific items included in the table follows. 37(b)(1) Loan Amount Neither TILA nor RESPA specifically requires the disclosure of the loan amount for the transaction. TILA section 128(a)(2) requires disclosure of the amount financed, of which the principal amount of the loan is the most significant component, but the section does not require a separate disclosure of the principal amount of the loan. 15 U.S.C. 1638(a)(2). Regulation Z § 1026.32(c)(5) currently requires the disclosure of the total amount the consumer will borrow, as reflected by the face amount of the note, for loans subject to HOEPA. For federally related mortgage loans under RESPA, § 1024.7(d) of Regulation X currently requires the disclosure of the loan amount in the summary table on page 1 of the GFE with the text, ‘‘Your initial loan amount is.’’ The Bureau believes, based on its consumer testing, that the loan amount is important to consumers to understand readily, compare, and verify the amount of credit offered to them. The principal amount of the loan is a basic element of the transaction that should be disclosed to consumers. Pursuant to its authority under TILA section 105(a), Dodd-Frank Act section 1032(a), and RESPA section 19(a), the Bureau proposes to require a disclosure of the principal amount of the transaction for closed-end transactions secured by real property (other than reverse mortgages). The Bureau proposes this requirement to effectuate the purposes of TILA to promote the informed use of credit and ensure a meaningful disclosure of credit terms to consumers. In addition, consistent with section 1032(a) of the Dodd-Frank Act, the Bureau believes that the disclosure of the loan amount in the Loan Terms table may ensure that the features of consumer credit transactions secured by real property are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the product or service, VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 in light of the facts and circumstances. Further, like HUD, the Bureau believes the loan amount is necessary to understanding the transaction and its disclosure would effectuate the purposes of RESPA. Proposed § 1026.37(b)(1) requires creditors to disclose the ‘‘loan amount,’’ which is defined as the amount of credit to be extended under the terms of the legal obligation. This disclosure is labeled ‘‘Loan Amount’’ to enhance visibility. Disclosing the loan amount may also alert the consumer to fees that are financed in addition to the amount of credit sought for the consumer’s purchase, refinance, or other purpose. 37(b)(2) Interest Rate TILA section 128(a)(3) and (4) requires disclosure of the finance charge and the annual percentage rate, for which the interest rate is a factor in the calculation. 15 U.S.C. 1638(a)(3), (4).159 However, the statute does not require a separate disclosure of the interest rate. Currently, Regulation Z requires creditors to disclose the interest rate only in the interest rate and payment summary table required by § 1026.18(s). For federally related mortgage loans, § 1024.7(d) of Regulation X requires that the GFE state the interest rate with the text ‘‘your initial interest rate is’’ in the summary table on page 1. The Bureau believes that the interest rate is an important loan term that consumers should be able to locate readily on the disclosure, because it is the basis for the periodic payments of principal and interest that the consumer will be obligated to make. Participants in the Bureau’s consumer testing used the interest rate as one of the primary factors when evaluating, comparing, and verifying loan terms. The Bureau proposes to use its authority under TILA section 105(a) to require disclosure of the interest rate for the transaction to effectuate the purposes of TILA to promote the informed use of credit and ensure a meaningful disclosure of credit terms to consumers. In addition, consistent with section 1032(a) of the Dodd-Frank Act, the Bureau believes that the disclosure of the interest rate in the Loan Terms table may ensure that the features of consumer credit transactions secured by real property are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the product or service, 159 As discussed below, the finance charge disclosure is implemented in proposed § 1026.38(o)(2). The APR disclosure is implemented in proposed §§ 1026.37(l)(2) and 1026.38(o)(4). PO 00000 Frm 00082 Fmt 4701 Sfmt 4702 in light of the facts and circumstances. Further, like HUD, which required disclosure of the interest rate in its good faith estimate form, the Bureau proposes to use its authority under RESPA section 19(a) to require disclosure of the interest rate, because the interest rate is important to consumer understanding of the transaction. Proposed § 1026.37(b)(2) requires disclosure of the initial interest rate that will be applicable to the transaction, labeled the ‘‘Interest Rate.’’ If the initial interest rate may adjust based on an index, the creditor must disclose the fully-indexed rate, which is defined within that paragraph. Proposed comment 37(b)(2)–1 provides guidance regarding how to calculate the fullyindexed rate to be disclosed. 37(b)(3) Principal and Interest Payment TILA section 128(a)(6) requires disclosure of the number, amount, and due dates or period of payments scheduled to repay the loan. 15 U.S.C. 1638(a)(6). TILA section 128(b)(2)(C)(ii) requires the maximum principal and interest payment and examples of other potential principal and interest payments to be disclosed when the ‘‘annual rate of interest is variable * * * or the regular payments may otherwise be variable.’’ 15 U.S.C. 1638(b)(2)(C)(ii). Currently, for closed-end transactions secured by real property or a dwelling, Regulation Z requires creditors to disclose the periodic principal and interest payment only in the interest rate and payment summary table required by § 1026.18(s). For federally related mortgage loans, § 1024.7(d) of Regulation X requires the GFE to contain the initial periodic payment for principal and interest and mortgage insurance with the text ‘‘Your initial monthly amount owed for principal, interest, and any mortgage insurance is.’’ The Bureau believes that, like the interest rate, the periodic principal and interest payment is a key loan term that consumers should be able to locate readily on the form. The Bureau’s consumer testing indicates that consumers use the periodic principal and interest payment of the loan as a primary factor in evaluating and comparing a loan. The Bureau believes that a specific disclosure of the periodic principal and interest payment in the Loan Terms table will assist consumers in readily evaluating, comparing, and verifying possible loan terms. This payment enables consumers to compare loans of one or multiple creditors based on the same measure, rather than a payment that may include estimates for escrow payments for property costs or E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mortgage insurance. Accordingly, the Bureau proposes § 1026.37(b)(3) to require the Loan Terms table to include the periodic principal and interest payment simply labeled ‘‘Principal & Interest,’’ with an indication of the applicable unit-period. If the initial periodic payment may adjust based on changes to an index, the payment disclosed is required to be based on the fully-indexed rate disclosed under proposed § 1026.37(b)(2). The unitperiod that is applicable to a transaction is currently described in appendix J to Regulation Z. Proposed comment 37(b)(3)–1 clarifies that the label of the periodic principal and interest payment should reflect the appropriate unitperiod for the transaction. Proposed comment 37(b)(3)–2 provides guidance regarding how to calculate the payment to be disclosed if the initial interest rate is adjustable based on an index. The Bureau believes that the total periodic payment the consumer would be responsible to make to the creditor, including any required mortgage insurance and escrow payments, is also important for the consumer to consider when evaluating a loan offer. This amount allows a consumer to determine the affordability of the credit transaction and underlying real estate transaction. Accordingly, the Bureau proposes to include with the principal and interest payment a statement referring the consumer to the total periodic payment, including estimated amounts for any escrow and mortgage insurance payments, which is disclosed in the Projected Payments table under proposed § 1026.37(c), immediately below the Loan Terms table. The Bureau proposes to use its authority under TILA section 105(a) to require disclosure of the periodic principal and interest payment, along with a reference to the total periodic payment, in the Loan Terms table to effectuate the purposes of TILA to promote the informed use of credit and ensure a meaningful disclosure of credit terms to consumers. In addition, consistent with section 1032(a) of the Dodd-Frank Act, the Bureau believes that this disclosure may ensure that the features of consumer credit transactions secured by real property are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the product or service, in light of the facts and circumstances. Further, the Bureau proposes to use its authority under RESPA section 19(a) to require this disclosure because the disclosure will improve consumer understanding of the transaction, including settlement costs. VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 The Bureau also proposes this requirement pursuant to its authority under section 1405(b) of the Dodd-Frank Act. The Bureau believes this disclosure may improve consumer awareness and understanding of transactions involving residential mortgage loans through the use of disclosures, and is in the interest of consumers and in the public interest. 37(b)(4) Prepayment Penalty Currently, TILA section 128(a)(11), 15 U.S.C. 1638(a)(11), and Regulation Z § 1026.18(k)(1) require the creditor to disclose whether or not a penalty may be imposed if the obligation is prepaid in full for a transaction that includes a finance charge computed from time to time by application of a rate to the unpaid principal balance. For federally related mortgage loans, § 1024.7(d) of Regulation X requires the summary table on page 1 of the GFE to state whether or not the loan has a prepayment penalty with the text, ‘‘Does your loan have a prepayment penalty?’’ The Bureau’s consumer testing indicates that consumers use the existence of a prepayment penalty as an important factor in understanding and evaluating loan offers. Accordingly, because of the importance to consumers of prepayment penalties, proposed § 1026.37(b)(4) requires disclosure of whether the loan has a prepayment penalty in the Loan Terms table, labeled ‘‘Prepayment Penalty.’’ As discussed below, under proposed § 1026.37(b)(7), the existence or non-existence of a prepayment penalty provision in the loan contract is indicated by an affirmative or negative answer (designed as a simple ‘‘yes’’ or ‘‘no’’) to the question, ‘‘Does the loan have these features?’’ In the Bureau’s consumer testing, consumers were able to use this disclosure to determine easily if the loan had a prepayment penalty. The Bureau proposes to require disclosure of whether the transaction includes a prepayment penalty under TILA section 128(a)(11), its implementation authority under TILA section 105(a), and RESPA section 19(a). The Bureau believes this additional information will promote consumer understanding of the cost of credit and more effective disclosure of the terms of the credit. Definition of Prepayment Penalty TILA establishes certain disclosure requirements for transactions for which a penalty is imposed upon prepayment, but does not define the term ‘‘prepayment penalty.’’ TILA section 128(a)(11) requires that the transactionspecific disclosures for closed-end consumer credit transactions disclose PO 00000 Frm 00083 Fmt 4701 Sfmt 4702 51197 whether (1) a consumer is entitled to a rebate of any finance charge upon refinancing or prepayment in full pursuant to acceleration or otherwise, if the obligation involves a precomputed finance charge, and (2) a ‘‘penalty’’ is imposed upon prepayment in full if the obligation involves a finance charge computed from time to time by application of a rate to the unpaid principal balance. 15 U.S.C. 1638(a)(11). Also, TILA section 128(a)(12) requires that the transaction-specific disclosures state that the consumer should refer to the appropriate contract document for information regarding certain loan terms or features, including ‘‘prepayment rebates and penalties.’’ 15 U.S.C. 1638(a)(12). Section 1026.18(k) implements (and largely mirrors) TILA section 128(a)(11). Section 1026.18(k)(1) provides that ‘‘when an obligation includes a finance charge computed from time to time by application of a rate to the unpaid principal balance,’’ the creditor must disclose ‘‘a statement indicating whether or not a penalty may be imposed if the obligation is prepaid in full.’’ Comment 18(k)(1)–1 clarifies that such a ‘‘penalty’’ includes, for example, ‘‘interest charges for any period after prepayment in full is made’’ and a minimum finance charge, but does not include, for example, loan guarantee fees. Section 1026.18(k)(2) provides for the disclosure of a statement indicating whether or not the consumer is entitled to a rebate of any finance charge if the obligation is prepaid in full when an obligation includes a finance charge other than the finance charge described in § 1026.18(k)(1). Comment 18(k)(2)–1 clarifies that § 1026.18(k)(2) applies to any finance charges that do not take account of each reduction in the principal balance of an obligation, such as recomputed finance charges and charges that take account of some but not all reductions in principal. In addition, TILA section 129(c)(1) limits the circumstances in which a high-cost mortgage may include a prepayment penalty where the consumer pays all or part of the principal before the date on which the principal is due. 15 U.S.C. 1639(c)(1)(A). In the high-cost mortgage context, any method of computing a refund of unearned scheduled interest is a prepayment penalty if it is less favorable than the actuarial method, as defined by section 933(d) of the Housing and Community Development Act of 1992. 15 U.S.C. 1639(c)(1)(B). Section 1026.32(d)(6) implements these TILA provisions. Although the disclosure requirements under current § 1026.18(k) apply to E:\FR\FM\23AUP2.SGM 23AUP2 51198 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 closed-end mortgage and non-mortgage transactions, in its 2009 Closed-End Proposal, the Board proposed to establish a new § 226.38(a)(5) for disclosure of prepayment penalties for closed-end mortgage transactions. See 74 FR at 43334, 43413. In proposed comment 38(a)(5)–2, the Board stated that examples of prepayment penalties include charges determined by treating the loan balance as outstanding for a period after prepayment in full and applying the interest rate to such ‘‘balance,’’ a minimum finance charge in a simple-interest transaction, and charges that a creditor waives unless the consumer prepays the obligation. 74 FR at 43413. In addition, the Board’s proposed comment 38(a)(5)–3 listed loan guarantee fees and fees imposed for preparing a payoff statement or other documents in connection with the prepayment as examples of charges that are not prepayment penalties. Id. The Board’s 2010 Mortgage Proposal included amendments to existing comment 18(k)(1)–1 and proposed comment 38(a)(5)–2 stating that prepayment penalties include ‘‘interest’’ charges after prepayment in full even if the charge results from interest accrual amortization used for other payments in the transaction. See 75 FR at 58756, 58781.160 Prepayment penalties were also addressed in the Board’s 2011 ATR Proposal implementing sections 1411, 1412, and 1414 of the Dodd-Frank Act (codified at 15 U.S.C. 1629c), which expand the scope of the ability-to-repay requirement under TILA and establish ‘‘qualified mortgage’’ standards for complying with such requirement. See 76 FR at 27482, 27491. Specifically, the Board’s proposed § 226.43(b)(10) generally followed the current Regulation Z guidance on prepayment penalties (i.e., comment 18(k)(1)–1) and the proposed definitions and guidance in the Board’s 2009 Closed-End Proposal and 2010 Mortgage Proposal. However, the Board’s 2011 ATR Proposal differed from the prior proposals and current guidance in the following respects: (1) Proposed § 226.43(b)(10) defined prepayment penalty with reference to a payment of ‘‘all or part of’’ the principal in a 160 The preamble to the Board’s 2010 Mortgage Proposal explained that the proposed revisions to current Regulation Z commentary and the proposed comment 38(a)(5) from the Board’s 2009 Closed-End Proposal regarding interest accrual amortization were in response to concerns about the application of prepayment penalties to certain Federal Housing Administration (FHA) and other loans (i.e., when a consumer prepays an FHA loan in full, the consumer must pay interest through the end of the month in which prepayment is made). See 75 FR at 58586. VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 transaction covered by the provision, while § 1026.18(k) and associated commentary and the Board’s 2009 Closed-End Proposal and 2010 Mortgage Proposal referred to payment ‘‘in full,’’ (2) the examples provided omitted reference to a minimum finance charge and loan guarantee fees,161 and (3) proposed § 226.43(b)(10) did not incorporate, and the Board’s 2011 ATR Proposal did not otherwise address, the language in § 1026.18(k)(2) and associated commentary regarding disclosure of a rebate of a precomputed finance charge. Based on the Bureau’s consideration of the existing statutory and regulatory definitions of ‘‘penalty’’ and ‘‘prepayment penalty’’ under TILA sections 128(a) and 129(c) and §§ 1026.18(k) and 1026.32(d)(6), the Board’s proposed definitions of prepayment penalty, and the Bureau’s authority under TILA section 105(a) and Dodd-Frank Act sections 1032(a) and, for residential mortgage transactions, 1405(b), the Bureau is proposing to define ‘‘prepayment penalty’’ in proposed § 1026.37(b)(4) for transactions subject to §§ 1026.19(e) and (f) as a charge imposed for paying all or part of a transaction’s principal before the date on which the principal is due. The proposed definition of prepayment penalty as applicable to the transactions subject to §§ 1026.19(e) and (f) broadens the existing statutory and regulatory definitions under TILA section 128(a)(11) and § 1026.18(k), and thereby may result in more frequent disclosures of prepayment penalties to consumers than would be made under the existing definitions. Therefore, the Bureau believes that the disclosures of prepayment penalties under proposed § 1026.37(b)(4) will effectuate the purposes of TILA and RESPA by facilitating the informed use of credit and more effective advance disclosure of settlement costs. In addition, the revised disclosures will ensure that the features of mortgage loan products initially and over their terms are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the loan products in light of the facts and circumstances, consistent with Dodd161 The preamble to the Board’s 2011 ATR Proposal addressed why the Board chose to omit these two items. The Board reasoned that a minimum finance charge need not be included as an example of a prepayment penalty because such a charge typically is imposed with open-end, rather than closed-end, transactions. The Board stated that loan guarantee fees are not prepayment penalties because they are not charges imposed for paying all or part of a loan’s principal before the date on which the principal is due. See 76 FR at 27416. PO 00000 Frm 00084 Fmt 4701 Sfmt 4702 Frank Act section 1032(a). Furthermore, these disclosures will improve consumers’ awareness and understanding of residential mortgage transactions, which is in the interest of consumers and the public, consistent with Dodd-Frank Act section 1405(b). Proposed comment 37(b)(4)–1 clarifies that the disclosure of the prepayment penalty under § 1026.37(b)(4) applies to transactions where the terms of the loan contract provide for a prepayment penalty, even though it is not certain at the time of the disclosure whether the consumer will, in fact, make a payment to the creditor that would cause imposition of the penalty. This proposed comment also clarifies that if the transaction includes a prepayment penalty, § 1026.37(b)(7) sets forth the information that must be disclosed under § 1026.37(b)(4). Proposed comment 37(b)(4)–2.i through –2.iv gives the following examples of prepayment penalties: (1) A charge determined by treating the loan balance as outstanding for a period of time after prepayment in full and applying the interest rate to such ‘‘balance,’’ even if the charge results from interest accrual amortization used for other payments in the transaction under the terms of the loan contract; (2) a fee, such as an origination or other loan closing cost, that is waived by the creditor on the condition that the consumer does not prepay the loan; (3) a minimum finance charge in a simple interest transaction; and (4) computing a refund of unearned interest by a method that is less favorable to the consumer than the actuarial method, as defined by section 933(d) of the Housing and Community Development Act of 1992, 15 U.S.C. 1615(d). Proposed comment 37(b)(4)–2.i further clarifies that ‘‘interest accrual amortization’’ refers to the method by which the amount of interest due for each period (e.g., month) in a transaction’s term is determined and notes, for example, that ‘‘monthly interest accrual amortization’’ treats each payment as made on the scheduled, monthly due date even if it is actually paid early or late (until the expiration of any grace period). The proposed comment also provides an example where a prepayment penalty of $1,000 is imposed because a full month’s interest of $3,000 is charged even though only $2,000 in interest was earned in the month during which the consumer prepaid. Proposed comment 37(b)(4)–3 clarifies that a prepayment penalty does not include: (1) Fees imposed for preparing and providing documents when a loan is paid in full, whether or not the loan is prepaid, such as a loan E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules payoff statement, a reconveyance document, or another document releasing the creditor’s security interest in the dwelling that secures the loan; or (2) loan guarantee fees. Proposed comment 37(b)(4)–4 clarifies that, with respect to an obligation that includes a finance charge that does not take into account each reduction in the principal balance of the obligation (e.g., precomputed finance charges), § 1026.37(b)(4) satisfies disclosure of whether or not the consumer is entitled to a rebate of any finance charge if the obligation is prepaid in full or part. The comment further clarifies that if the transaction involves both a precomputed finance charge and a finance charge computed by application of a rate to an unpaid balance, disclosures about both the prepayment rebate and the prepayment penalty are made under § 1026.37(b)(4) as one disclosure to the question required by § 1026.37(b)(7). For example, if in such a transaction, a portion of the precomputed finance charge will not be provided as a rebate and also a prepayment penalty based on the amount prepaid is provided for by the loan contract, both disclosures are made under § 1026.37(b)(4) as one aggregate amount, stating the maximum amount and time period under § 1026.37(b)(7). If the transaction instead provides a rebate of the precomputed finance charge upon prepayment, but imposes a prepayment penalty based on the amount prepaid, the disclosure required by § 1026.37(b)(4) is an affirmative answer and the information required by § 1026.37(b)(7). This proposed comment incorporates existing guidance in Regulation Z commentary regarding disclosure of whether the consumer is entitled to a rebate of finance charges that do not take into account each reduction in principal balance. See comments 18(k)-2 and -3 and 18(k)(2)-1. The definition of prepayment penalty in proposed § 1026.37(b)(4) and associated commentary substantially incorporates the definitions of and guidance on prepayment penalty from the Board’s 2009 Closed-End Proposal, 2010 Mortgage Proposal, and 2011 ATR Proposal and, as necessary, reconciles their differences. For example, the Bureau proposes that the prepayment penalty definition in § 1026.37(b)(4) refer to payment of ‘‘all or part of a covered transaction’s principal,’’ rather than merely payment ‘‘in full,’’ because knowledge of whether a partial prepayment triggers a penalty is important for consumers. Also, the Bureau is proposing to incorporate the language from the Board’s 2009 Closed- VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 End Proposal and 2010 Mortgage Proposal but omitted in the Board’s 2011 ATR Proposal listing a minimum finance charge as an example of a prepayment penalty and stating that loan guarantee fees are not prepayment penalties, because similar language is found in longstanding Regulation Z commentary. Based on the differing approaches taken by the Board in its recent mortgage proposals, however, the Bureau seeks comment on whether a minimum finance charge should be listed as an example of a prepayment penalty and whether loan guarantee fees should be excluded from the definition of prepayment penalty. The Bureau expects to coordinate the definition of prepayment penalty in proposed § 1026.37(b)(4) with the definitions in the Bureau’s other pending rulemakings mandated by the Dodd-Frank Act concerning ability-torepay, high-cost mortgages under HOEPA, and mortgage servicing. To the extent consistent with consumer protection objectives, the Bureau believes that adopting a consistent definition of ‘‘prepayment penalty’’ across its various pending rulemakings affecting closed-end mortgages will facilitate compliance. As an additional part of this effort to adopt a consistent regulatory definition of ‘‘prepayment penalty,’’ the Bureau is also proposing certain conforming revisions to § 1026.18(k) and associated commentary, as discussed earlier in the section-by-section analysis for the proposed revised § 1026.18(k). 37(b)(5) Balloon Payment TILA section 128(a)(6) requires disclosure of the number, amount, and due dates or period of payments scheduled to repay the loan. Currently, for closed-end transactions secured by real property or a dwelling, Regulation Z requires balloon payments to be disclosed only in connection with the interest rate and payment summary table required by § 1026.18(s). For federally related mortgage loans, § 1024.7(d) of Regulation X requires the GFE to state in the summary table on page 1 whether or not the loan has a balloon payment with the text, ‘‘Does your loan have a balloon payment?’’ Pursuant to its authority under TILA section 128(a)(6), TILA section 105(a), RESPA section 19(a), and Dodd-Frank Act section 1032(a), the Bureau proposes § 1026.37(b)(5), which requires disclosure of whether the credit transaction requires a balloon payment, as defined within the provision. This disclosure is provided in the Loan Terms table, labeled ‘‘Balloon Payment.’’ As discussed below, under PO 00000 Frm 00085 Fmt 4701 Sfmt 4702 51199 proposed § 1026.37(b)(7), the existence or non-existence of a balloon payment provision is indicated by a ‘‘yes’’ or ‘‘no’’ answer to the question, ‘‘Does the loan have these features?’’ In the Bureau’s consumer testing, consumers were able to determine readily whether a loan had a balloon payment. The Bureau’s consumer testing indicates that consumers consider whether a loan has a balloon payment to be an important factor in evaluating loans. The Bureau believes that this disclosure will effectuate the purposes of TILA and RESPA because it will promote the informed use of credit and assure a meaningful disclosure to consumers, and thus, will benefit consumers and the public and result in more effective advance disclosure. Definition of Balloon Payment Sections 1412 and 1432(b) of the Dodd-Frank Act both define ‘‘balloon payment’’ as ‘‘a scheduled payment that is more than twice as large as the average of earlier scheduled payments.’’ These definitions are incorporated into TILA sections 129C(b)(2)(A)(ii) and 129(e), respectively. 15 U.S.C. 1639c(b)(2)(A)(ii), 1639(e). Regulation Z § 1026.18(s)(5)(i), however, defines ‘‘balloon payment’’ as ‘‘a payment that is more than two times a regular periodic payment.’’ The Board’s 2011 ATR Proposal implementing section 1412 of the DoddFrank Act incorporates Regulation Z’s existing definition of ‘‘balloon payment’’ in § 1026.18(s)(5)(i) rather than the definition in section 1412. See proposed § 226.43(e)(2)(i)(C), 76 FR 27390, 27484. The Board noted that this definition is substantially similar to the statutory one, except that it uses as its benchmark any regular periodic payment rather than the average of earlier scheduled payments. 76 FR at 27455. The Board also reasoned that incorporating the Regulation Z, rather than Dodd-Frank Act, definition of ‘‘balloon payment’’ facilitates compliance by affording creditors a single definition of the term within Regulation Z. Id. at 27456. By defining ‘‘balloon payment’’ in the 2011 ATR Proposal based on the Regulation Z definition, the Board proposed to adjust the Dodd-Frank Act statutory definition. In doing so, the Board stated that it was relying on TILA section 105(a) authority to make such adjustments for all or any class of transactions as in the judgment of the Board are necessary or proper to facilitate compliance with TILA. Id.; 15 U.S.C. 1604(a). The class of transactions for which the adjustment was proposed encompassed all transactions covered E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51200 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules by the 2011 ATR Proposal, i.e., closedend consumer credit transactions that are secured by a dwelling. The Board, however, solicited comment on the appropriateness of the proposed adjustment. The Board also stated that the proposed adjustment was supported by the Board’s authority under TILA section 129B(e) to condition terms, acts, or practices relating to residential mortgage loans that the Board finds necessary or proper to facilitate compliance. 15 U.S.C. 1639b(e). In view of the different definitions of ‘‘balloon payment’’ between the DoddFrank Act and Regulation Z and the approach taken by the Board in the 2011 ATR Proposal, and based on the Bureau’s authority under TILA section 105(a) and Dodd-Frank Act sections 1032(a), and for residential mortgage loans, Dodd-Frank Act section 1405(b), the Bureau is proposing a definition of ‘‘balloon payment’’ in proposed § 1026.37(b)(5) that largely incorporates the existing Regulation Z definition in § 1026.18(s)(5)(i), i.e., a payment that is more than two times a regular periodic payment. For the reasons discussed below, the Bureau believes that the proposed definition will promote the informed use of credit and facilitate compliance with TILA, consistent with TILA section 105(a). In addition, this definition will enhance consumer understanding of the costs, benefits, and risks associated with the transaction in light of the facts and circumstances (consistent with Dodd-Frank Act section 1032(a)), and improve consumers’ awareness and understanding of residential mortgage transactions, which is in the interest of consumers and the public (consistent with Dodd-Frank Act section 1405(b)). The proposed definition in § 1026.37(b)(5) revises the current regulatory language to state that a balloon payment cannot be a regular periodic payment. This revision is intended to prevent a regular periodic payment following a scheduled or permitted payment increase under the terms of a loan contract (e.g., based on a rate adjustment under an adjustable rate loan) from being characterized as a balloon payment if it is more than two times a regular periodic payment occurring prior to the payment increase. Moreover, proposed commentary to § 1026.37(b)(5) clarifies the meaning of regular periodic payment and discusses how all regular periodic payments during the loan term are used to determine whether a particular payment is a balloon payment (i.e., if the particular payment is more than two times any one regular periodic payment during the loan term, it is disclosed as VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 a balloon payment under § 1026.37(b)(5) unless the particular payment itself is a regular periodic payment). These clarifications are intended to resolve ambiguity in the current regulatory definition and associated commentary, and thereby facilitate compliance.162 This definition applies to all transactions subject to proposed § 1026.19(e). The Bureau recognizes that this proposed definition deviates from that prescribed in the Dodd-Frank Act. However, for the reasons set forth in the 2011 ATR Proposal, the Bureau believes that adopting a consistent definition within Regulation Z will promote the informed use of credit and facilitate compliance and, therefore, will also benefit consumers and the public. See 76 FR at 27456. The Bureau recognizes that these additional clarifications may result in more payments being disclosed as balloon payments than under the current regulatory definition. The Bureau believes that more frequent disclosure of balloon payment terms facilitates the informed use of credit, ensures that the features of mortgage loan products initially and over their terms are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the loan products in light of the facts and circumstances, and improves consumers’ awareness and understanding of residential mortgage transactions, which is in the interest of consumers and the public. The Bureau seeks comment, however, on whether the definition of balloon payment in proposed § 1026.37(b)(5) should be revised to exclude any particular type of payment. Furthermore, the Bureau believes that a payment that is twice any one regular periodic payment using the regulatory definition, as revised in this proposed rule, would be equal to or less than a payment that is twice the average of earlier scheduled payments using the statutory definition. The Bureau notes that the range of scheduled payment amounts under the first approach is more limited and defined. For example, if the regular periodic payment is $200, a payment of greater than $400 would constitute a balloon payment. Under the 162 According to existing comment 32(d)(1)(i), a payment is a ‘‘regular periodic payment’’ if it is not more than twice the amount of other payments. This definition, which is essentially the mirror image of the balloon payment definition in § 1026.18(s)(5)(i) (i.e., a payment that is more than two times a regular periodic payment), leaves uncertainty as to how to determine whether a payment is a balloon payment when there are multiple regular periodic payments during the loan term (e.g., if the regularly scheduled payments increase due to an adjustable rate feature). PO 00000 Frm 00086 Fmt 4701 Sfmt 4702 statutory definition, however, the threshold amount for a balloon payment could be greater than $400 if, for example, the regular periodic payments were increased by $100 each year. Under this scenario, the amount constituting a ‘‘balloon payment’’ could increase with the incremental increase of the average of earlier scheduled payments. The Bureau believes that under the existing regulatory definition, as revised by the proposed rule, consumers would have a better understanding of the highest possible regular periodic payment in a repayment schedule and may experience less ‘‘payment shock’’ as a result. Therefore, the Bureau believes that the existing regulatory definition may better protect consumers and would be in their interest. In addition, the Bureau believes that the definition of ‘‘balloon payment’’ based on the existing regulatory definition would facilitate and simplify compliance by eliminating the need to average earlier scheduled payments. Proposed comment 37(b)(5)–1 clarifies that the ‘‘regular periodic payment’’ used to determine whether a payment is a ‘‘balloon payment’’ for purposes of § 1026.37(b)(5) is the payment of principal and interest (or interest only, depending on the loan features) payable under the terms of the loan contract for two or more unit periods in succession. The comment also clarifies that all regular periodic payments during the loan term are used to determine whether a particular payment is a balloon payment, regardless of whether the regular periodic payments change during the loan term due to rate adjustments or other payment changes permitted or required under the loan contract (i.e., if the particular payment is more than two times any one regular periodic payment during the loan term, it is disclosed as a balloon payment under § 1026.37(b)(5) unless the particular payment itself is a regular periodic payment). Proposed comment 37(b)(5)–1.i gives an example of a step-rate mortgage with two different regular periodic payment amounts. Proposed comment 37(b)(5)– 1.ii clarifies the definition of ‘‘regular periodic payment’’ in the context of a loan with an adjustable rate, where, under the terms of the loan contract, the regular periodic payments may increase after consummation, but the amounts of such payment increases (if any) are unknown at the time of consummation. In such instance, the proposed comment clarifies that the ‘‘regular periodic payments’’ are based on the fullyindexed rate, except as otherwise E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules determined by any premium or discounted rates, the application of any interest rate adjustment caps, or any other known, scheduled rates under the terms specified in the loan contract. The proposed comment also refers to the analogous guidance provided in current comments 17(c)(1)–8 and –10, and gives an example of an adjustable rate mortgage with two different periodic payment amounts. Proposed comment 37(b)(5)–1.iii clarifies that for a loan with a negative amortization feature, the ‘‘regular periodic payment’’ does not take into account the possibility that the consumer may exercise an option to make a payment greater than the minimum scheduled periodic payment. Proposed comment 37(b)(5)–1.iv clarifies that, for purposes of § 1026.37(c), § 1026.37(b)(5) governs the threshold determination of whether a loan has a balloon payment feature, but § 1026.37(c) governs the disclosure of balloon payments in the ‘‘Projected Payments’’ table under that section. The proposed definition of balloon payment in proposed § 1026.37(b)(5) includes the payments of a single or double payment transaction. Proposed comment 37(b)(5)–2 provides clarification regarding such single and double-payment transactions, which require a single payment due at maturity or only two payments during the loan term, and do not require regular periodic payments. A single payment transaction does not have regular periodic payments, because regular periodic payments must be made two or more unit periods in succession (see proposed comment 37(b)(5)–1, described above). And while a loan with only two scheduled payments, depending on the circumstances, may have regular periodic payments (e.g., if the two payments are made during the last month of years one and two of a two-year loan term), there is no third payment that could potentially be the balloon payment (i.e., a payment that is more than twice the amount of the regular periodic payments). The Bureau believes the payments of such transactions are essentially equivalent, economically and practically, from the perspective of a consumer, to a balloon payment. The comment clarifies that notwithstanding the fact that there is no regular periodic payment to compare such single or double payments to, any payment in a single payment transaction or a transaction with only two scheduled payments is a ‘‘balloon payment’’ under § 1026.37(b)(5). The Bureau is coordinating the definition of ‘‘balloon payment’’ in proposed § 1026.37(b)(5) with the VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 definitions of ‘‘balloon payment’’ in the Bureau’s other pending rulemakings under the Dodd-Frank Act concerning ability-to-repay and high-cost mortgages under HOEPA. To the extent consistent with consumer protection objectives, the Bureau believes that adopting a consistent definition of ‘‘balloon payment’’ across the Bureau’s DoddFrank Act rulemakings affecting closedend credit transactions will facilitate compliance, as discussed in part II above. 37(b)(6) Increases after Consummation TILA section 128(b)(2)(C)(ii) requires, for closed-end credit transactions secured by a dwelling in which the interest rate or payments may vary, the disclosure of examples of adjustments to the regular required payment based on changes in the interest rates, including the maximum payment amount of the regular required payments based on the maximum interest rate under the contract. TILA section 128(b)(2)(C)(ii) also requires the Bureau to conduct consumer testing so that consumers can easily understand the fact that the initial regular payments are for a specific time period and will end on a certain date and that payments will subsequently adjust to a potentially higher amount. Currently, Regulation Z’s disclosures for closed-end credit transactions secured by real property or a dwelling require information about whether the interest rate, periodic principal and interest payment, and loan amount can change. The disclosures are given in the interest rate and payment table required by § 1026.18(s). For federally related mortgage loans, § 1024.7(d) of Regulation X requires this information to be disclosed in the summary table on page 1 of the GFE, as affirmative or negative answers to the questions ‘‘Can your interest rate rise,’’ ‘‘Even if you make payments on time, can your loan balance rise,’’ and ‘‘Even if you make payments on time, can your monthly amount owed for principal, interest, and any mortgage insurance rise?’’ As discussed above, the Bureau conducted consumer testing of prototype mortgage disclosures over ten rounds. During each round of testing, consumers placed significant emphasis when evaluating loans on whether the loan amount, interest rate, or periodic principal and interest payment could increase, the amount and timing of such increases, and whether they were scheduled increases or only potential increases. Accordingly, the Bureau believes that this information should be disclosed so that consumers can easily find and understand it. PO 00000 Frm 00087 Fmt 4701 Sfmt 4702 51201 The Bureau proposes § 1026.37(b)(6) to require that this information be disclosed in the Loan Terms table. Specifically, proposed § 1026.37(b)(6) requires disclosure of whether the amounts required to be disclosed by proposed § 1026.37(b)(1) through (3) may increase. If those amounts may increase, the creditor must also disclose, as applicable: (i) The maximum principal balance for the transaction and the date when the last payment for which the principal balance is permitted to increase will occur; (ii) the frequency of interest rate adjustments, the date when the interest rate begins to adjust, the maximum interest rate under the terms of the transaction, and the first adjustment that could result in the maximum interest rate; (iii) the frequency of adjustments to the periodic principal and interest payment, the date when the principal and interest payment begins to adjust, the maximum principal and interest under the transaction, and the first adjustment that can result in the maximum principal and interest payment; and (iv) the periods of any features that permit the periodic principal and interest payment to adjust without an adjustment to the interest rate, such as information about interest-only periods. The Bureau also understands from industry feedback provided in connection with the Bureau’s stakeholder outreach that some adjustable rate loans, which may be more prevalent in the community bank market, may be structured so that the periodic principal and interest payment is fixed and increases in the interest rate increase the loan term instead of the payment. Accordingly, the information required by proposed § 1026.37(b)(6)(ii) also includes a statement of that fact for transactions that contain such a feature. The Bureau proposes a format that provides this information as affirmative or negative answers to one comprehensive question, ‘‘Can this amount increase after closing?’’ The answers to this question are capitalized and in bold text. In addition, bulletpointed text immediately to the right of these answers provides the maximum amounts, frequencies of changes, references to more detailed information disclosed elsewhere on the form, and other relevant information. Bold text will be used for important information in these statements, to enable consumers to see it quickly. Proposed form H–24 in appendix H of Regulation Z illustrates the disclosure of such information, including the bulletpointed text required and the portions of such text that are to be bolded. The Bureau tested prototype versions of this table in its consumer testing. E:\FR\FM\23AUP2.SGM 23AUP2 51202 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 During testing, consumers were able to understand and use this information in the proposed format when evaluating and comparing terms of credit. Based on these results, the Bureau believes that this format will enable consumers to find the information readily, to use it for evaluating and comparing terms of credit, and to understand the information. Accordingly, pursuant to TILA section 128(b)(2)(C)(ii) and the Bureau’s authority under TILA section 105(a), RESPA section 19(a), Dodd-Frank Act section 1032(a), and Dodd-Frank Act 1405(b), the Bureau proposes § 1026.37(b)(6) to require this information in the Loan Terms table and in the format required to be used by proposed § 1026.37(o). The Bureau believes that this disclosure will effectuate the purposes of TILA because it will promote the informed use of credit and assure a meaningful disclosure to consumers, and thus, will benefit consumers and the public. The Bureau believes this information improves consumer awareness and understanding of residential mortgage loans and is in the interest of consumers and the public, consistent with DoddFrank Act section 1405(b). The Bureau also believes that, consistent with DoddFrank Act section 1032(a), this requirement may ensure that the features of any consumer financial product or service, both initially and over the term of the product or service, are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the product or service, in light of the facts and circumstances. In addition, like HUD, the Bureau believes this information is important to consumer understanding of the transaction and as a result, will promote more effective advance disclosure of settlement costs and should be provided on the disclosure. 37(b)(7) Details about Prepayment Penalty and Balloon Payment Currently, for closed-end credit transactions secured by real property or a dwelling, § 1026.18(k) of Regulation Z does not require the disclosure of the maximum prepayment penalty that may be charged. While § 1026.18(s) currently requires the balloon payment that may be charged on a loan to be disclosed, it is not required to be disclosed with other key terms of the transaction. For federally related mortgage loans, § 1024.7(d) of Regulation X currently requires the maximum prepayment penalty and balloon payment in the summary table on page 1 of the GFE VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 with the text, ‘‘your maximum prepayment penalty is $l and ‘‘you have a balloon payment of $l due in l years.’’ Proposed § 1026.37(b)(7) requires the information in proposed § 1026.37(b)(4) and (5) to be disclosed as an affirmative or negative answer to the question ‘‘Does the loan have these features?’’ The section also requires disclosure of the maximum prepayment penalty, the period in which a prepayment penalty may be imposed, the amounts of any balloon payments and the dates of such payments. Like the information required to be disclosed by proposed § 1026.37(b)(6), the format required for this information by proposed § 1026.37(o) emphasizes the maximum amounts by using bold text, to enable consumers to find these amounts quickly. In the Bureau’s consumer testing, consumers were able to use this disclosure to determine easily if the loan had a prepayment penalty, the maximum amount, and the period during which the penalty applied, and the amount and time of a balloon payment. The Bureau’s consumer testing has indicated that consumers place significant emphasis when evaluating loans on the potential for large balloon or prepayment penalty amounts. The Bureau proposes to use its authority under TILA sections 105(a), Dodd-Frank Act section 1032(a), and RESPA section 19(a) to require disclosure of this information in the Loan Terms table of the Loan Estimate. The Bureau believes that placing these details about prepayment penalties and balloon payments in the summary table with bold text for the maximum amounts allows consumers to find this information easily, enabling consumers to understand and evaluate loans, promoting meaningful disclosure of credit terms to consumers. The Bureau believes that this disclosure will effectuate the purposes of TILA because it will promote the informed use of credit and assure a meaningful disclosure to consumers, and thus, will benefit consumers and the public. In addition, like HUD, the Bureau believes this information is important to consumer understanding of the transaction and as a result, will promote more effective advance disclosure of settlement costs and should be provided on the disclosure. Proposed comment 37(b)(7)(i)-1 provides guidance regarding calculating the maximum amount of the prepayment penalty. PO 00000 Frm 00088 Fmt 4701 Sfmt 4702 37(b)(8) Timing The Bureau’s consumer testing indicated the references to the dates required to be disclosed by proposed § 1026.37(b)(6) and (7) are easily understood by consumers if disclosed in whole years. The prototype mortgage disclosures used at the Bureau’s consumer testing displayed these dates as years, and consumers were able to understand and evaluate the risks posed by these maximum amounts. The Bureau believes that this unit of time provides a frame of reference to consumers that they use more regularly and that is easier to understand than ‘‘payments’’ or high-number values of ‘‘months,’’ such as 60 months. Accordingly, pursuant to its authority under TILA section 105(a), Dodd-Frank section 1032(a), and RESPA section 19(a), proposed § 1026.37(b)(8) requires the information required to be disclosed by paragraphs (b)(6) and (7) to be disclosed by stating the number of the year in which the payment or adjustment occurs, counting from the date that interest for the regularly scheduled periodic payment begins to accrue. Proposed comment 37(b)(8)–1 provides examples of how to disclose dates using the timing rules of proposed § 1026.37(b)(8). The Bureau believes this disclosure provides a meaningful disclosure of credit terms, promotes the informed use of credit by consumers, and may ensure that the features of consumer credit transactions secured by real property are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the product or service, in light of the facts and circumstances. 37(c) Projected Payments Statutory Requirements TILA section 128(a)(6) requires creditors to disclose the number, amount, and due dates or period of payments scheduled to repay the total of payments. 15 U.S.C. 1638(a)(6). TILA section 128(b)(2)(C)(ii) requires the disclosure of certain payment-related information for closed-end variable-rate transactions, or transactions where the regular payment may otherwise be variable, that are secured by a dwelling, including examples of payments. 15 U.S.C. 1638(b)(2)(C)(ii). Specifically, creditors must provide examples of adjustments to the regular required payment on the extension of credit based on the change in the interest rates specified by the contract for such extension of credit. Id. Among the examples required is an example that reflects the maximum payment amount E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules of the regular required payments on the extension of credit, based on the maximum interest rate allowed under the contract. Id. TILA section 128(b)(2)(C)(i) also provides that these examples must be in conspicuous type size and format and that the payment schedule be labeled ‘‘Payment Schedule: Payments Will Vary Based on Interest Rate Changes.’’ Section 128(b)(2)(C)(ii) requires the Bureau to conduct consumer testing to determine the appropriate format for providing the disclosures to consumers so that the disclosures can be easily understood. In addition, TILA section 128(a)(16)(A), added to TILA by section 1419 of the Dodd-Frank Act, provides that, for variable-rate residential mortgage loans for which an escrow account will be established, the creditor must disclose both the initial monthly principal and interest payment, and the initial monthly principal and interest payment including any amount deposited in an escrow account for the payment of applicable taxes, insurance, and assessments. 15 U.S.C. 1638(a)(16)(A). New TILA section 128(a)(16)(B) also requires that, for variable-rate residential mortgage loans for which an escrow account will be established, the creditor disclose the amount of the fully-indexed monthly payment due under the loan for the payment of principal and interest, and the fully-indexed monthly payment including any amount deposited in an escrow account for the payment of applicable taxes, insurance, and assessments. 15 U.S.C. 1638(a)(16)(B). TILA section 128(b)(4)(A), added by section 1465 of the Dodd-Frank Act, provides that, in the case of any consumer credit transaction secured by a first mortgage on the principal dwelling of the consumer, other than an open-end credit plan or reverse mortgage, for which an escrow account has been or will be established, the disclosures required by TILA section 128(a)(6) must take into account the amount of any monthly payment to such account, in accordance with section 10(a)(2) of RESPA.163 15 U.S.C. 1638(b)(4)(A); 12 U.S.C. 2609(a)(2). New TILA section 128(b)(4)(B) generally requires creditors to take into account the taxable assessed value of the property during the first year after 163 Section 10(a)(2) of RESPA prohibits the lender, over the life of the escrow account, from requiring the borrower to make payments to an escrow account that exceed one-twelfth of the total annual escrow disbursements that the lender reasonably anticipates paying from the escrow account during the year, plus the amount necessary to maintain a one-sixth cushion. 12 U.S.C. 2609(a)(2). VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 consummation, including the value of any improvements constructed or to be constructed on the property, if known, and the replacement costs of the property for hazard insurance, when disclosing taxes and insurance escrows pursuant to TILA section 128(b)(4)(A). 15 U.S.C. 1638(b)(4)(B). Current Rules Current § 1026.18(s) implements the requirements of TILA sections 128(a)(6) and 128(b)(2)(C) for all closed-end transactions secured by real property or a dwelling, other than transactions secured by the consumer’s interest in a timeshare plan described in 11 U.S.C. 101(53D). Section 1026.18(s) requires creditors to disclose the contract interest rate, regular periodic payment, and any balloon payment. For adjustable-rate or step-rate amortizing mortgages, the creditor must disclose up to three interest rates and corresponding periodic payments. If payments are scheduled to increase independent of an interest-rate adjustment, the creditor must disclose the increased payment. If a borrower may make one or more payments of interest only, all payment amounts disclosed must be itemized to show the amount that will be applied to interest and the amount that will be applied to principal. Current § 1026.18(s) requires special interest rate and payment disclosures for loans that permit negative amortization. Also under current § 1026.18(s), creditors must separately itemize an estimate of the amount for taxes and insurance, including mortgage insurance, if the creditor will establish an escrow account for the payment of such amounts. The Board adopted this requirement pursuant to its authority under TILA section 105(a), based on consumer testing which indicated that consumers compare loans based on the monthly payment amount and that escrow payment information is necessary for consumers to understand the monthly amount they will pay. MDIA Interim Rule, 75 FR at 58476–77. Current § 1026.18(s) also requires the disclosure of total periodic payments. Creditors must provide the information about interest rates and payments in the form of a table, and creditors are not permitted to include other, unrelated information in the table. Current § 1026.18(s) expands the scope of TILA section 128(b)(2)(C) to all closed-end transactions secured by real property or a dwelling, other than transactions secured by the consumer’s interest in a timeshare plan, including transactions in which the interest rate and regular payments do not vary and those that are secured by real property PO 00000 Frm 00089 Fmt 4701 Sfmt 4702 51203 that does not include a dwelling. The Board adjusted the scope of this provision pursuant to its authority under TILA section 105(a). The Board reasoned that providing examples of increased interest rates and payments will help consumers understand the risks involved in certain loans, and that consistent disclosure requirements for all mortgage-secured, closed-end consumer credit transactions, whether or not they include a dwelling, would ease compliance burden for mortgage creditors. MDIA Interim Rule, 75 FR at 58473–74. The Board also stated that applying § 1026.18(s) to transactions where the interest rate or regular payments do not vary would simplify compliance for creditors and make it easier for consumers to compare different loan products. For all other closed-end credit transactions, § 1026.18(g) provides the rules for disclosing the payment schedule. The Bureau’s Proposal Pursuant to its authority under TILA section 105(a) and Dodd-Frank Act sections 1032(a) and 1405(b), the Bureau proposes to incorporate the requirements of current § 1026.18(s) into new § 1026.37(c), for closed-end mortgages subject to proposed § 1026.19(e), with certain adjustments that are outlined below. The Bureau believes that these requirements are necessary and proper to effectuate the purposes of TILA by promoting the informed use of credit. Accordingly, proposed § 1026.37(c) implements the requirements of TILA sections 128(a)(6) and 128(b)(2)(C), and also implements the requirements of new TILA sections 128(a)(16) and (b)(4), for closed-end mortgages subject to proposed § 1026.19(e). For all other closed-end transactions, § 1026.18(g) and (s) would continue to apply. Like existing § 1026.18(s), proposed § 1026.37(c) requires creditors to disclose, in a separate table, an itemization of each separate periodic payment or range of payments required after consummation under the terms of the legal obligation. Proposed § 1026.37(c) also requires disclosure of an estimate of taxes, insurance, and assessments and the payments to be made with escrow account funds. Specifically, the table required by proposed § 1026.37(c) must contain the projected principal and interest, mortgage insurance, estimated escrowed taxes and insurance, estimated total monthly payment, and estimated taxes, insurance, and assessment disclosures, required by § 1026.37(c)(1) through (4). Pursuant to proposed § 1026.37(o) and form H–24, the table required by E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51204 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules proposed § 1026.37(c) will appear on the first page of the Loan Estimate. The Bureau proposes that, as under § 1026.18(s), the table required by proposed § 1026.37(c) must be disclosed in all transactions subject to proposed § 1026.19(e), even in transactions where the interest rate will not vary and those that are secured by real property that does not include a dwelling. Unlike current § 1026.18(s), the projected payment table required by proposed § 1026.37(c) applies to transactions secured by the consumer’s interest in a timeshare plan but does not apply to transactions secured by a dwelling that is not real property, for the reasons discussed in the section-by-section analysis to proposed § 1026.19. The Bureau proposes to exercise its authority under TILA section 105(a), Dodd-Frank Act 1032(a), and, for residential mortgage loans, Dodd-Frank Act section 1405(b) to require the information disclosed pursuant to proposed § 1026.37(c) to appear under the heading ‘‘Projected Payments.’’ As discussed above, TILA section 128(b)(2)(C)(i) requires the payment schedule to be labeled ‘‘Payment Schedule: Payments Will Vary Based on Interest Rate.’’ The Bureau believes that ‘‘Projected Payments’’ conveys the same substantive meaning, in plainer and simpler language, and is a more accurate heading for the table required by proposed § 1026.37(c) since payment amounts may vary for reasons other than interest rate, such as in graduatedpayment plans or the termination of mortgage insurance under applicable law. The heading also performed well in consumer testing. Using the table under the heading ‘‘Projected Payments,’’ participants in the Bureau’s consumer testing were able to readily identify that their monthly payments might change in the future. Furthermore, the Bureau believes that the Loan Terms table required by proposed § 1026.37(b) effectively discloses when payments and interest rate will vary, and that consumers will not benefit from disclosure of that information in multiple places on the disclosure. Accordingly, this proposed adjustment promotes the informed use of credit, improves consumer awareness and understanding of transactions involving residential mortgage loans, and is in the interest of consumers and the public, consistent with the purpose of TILA and with Dodd-Frank Act section 1405(b). In addition, the Bureau believes that this disclosure would ensure that the features of consumer credit transactions secured by real property are fully, accurately, and effectively disclosed to VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the product or service, in light of the facts and circumstances, consistent with section 1032(a) of the Dodd-Frank Act. Proposed comment 37(c)–1 provides that, for purposes of proposed § 1026.37(c), the terms ‘‘adjustable rate,’’ ‘‘fixed rate,’’ ‘‘negative amortization,’’ and ‘‘interest-only’’ have the meanings prescribed in § 1026.37(a)(10). 37(c)(1) Periodic Payment or Range of Payments 37(c)(1)(i) Proposed § 1026.37(c)(1)(i) provides rules regarding the separate periodic payments or ranges of payments to be disclosed on the table required by § 1026.37(c). Specifically, proposed § 1026.37(c)(1)(i) provides that the initial periodic payment or range of payments is a separate periodic payment or range of payments and, except as otherwise provided in § 1026.37(c)(1)(ii), the following events require the disclosure of additional separate periodic payments or ranges of payments: (A) periodic principal and interest payment or range of such payments may change; (B) a scheduled balloon payment; and (C) the creditor must automatically terminate mortgage insurance coverage, or any functional equivalent, under applicable law. Proposed comments 37(c)(1)(i)–1, 37(c)(1)(i)(A)–1 through –3, 37(c)(1)(i)(B)–1, and 37(c)(1)(i)(C)–1 through –3 provide guidance to creditors on the events requiring the disclosure of a separate periodic payment or range of payments. Proposed comment 37(c)(1)(i)–1 clarifies that, for purposes of § 1026.37(c)(1)(i), the periodic payment is the regularly scheduled payment of principal and interest, mortgage insurance, and escrow payments described in § 1026.37(c)(2) without regard to any final payment that differs from other payments because of rounding to account for payment amounts including fractions of cents. Proposed comment 37(c)(1)(i)(A)–1 provides that periodic principal and interest payments may change when the interest rate, applicable interest rate caps, required periodic principal and interest payments, or ranges of such payments may change. Minor payment variations resulting solely from the fact that months have different numbers of days are not changes to periodic principal and interest payments. For a loan that permits negative amortization, proposed comment 37(c)(1)(i)(A)–2 clarifies that periodic principal and interest PO 00000 Frm 00090 Fmt 4701 Sfmt 4702 payments may change at the time of a scheduled recast of the mortgage loan and when the consumer must begin making fully amortizing payments of principal and interest. The comment also provides that the disclosure should be based on the assumption that the consumer will make only the minimum payment required under the terms of the legal obligation, for the maximum amount of time permitted, taking into account changes to interest rates that may occur under the terms of the legal obligation, and that the table required by § 1026.37(c) should reflect any balloon payment that would result from making the minimum payment required under the terms of the legal obligation. In a loan that permits payment of only interest for a specified period, proposed comment 37(c)(1)(i)(A)–3 clarifies that periodic principal and interest payments may change for purposes of § 1026.37(c)(1)(i)(A) when the consumer must begin making fully amortizing periodic payments of principal and interest. Proposed comment 37(c)(1)(i)(B)–1 states that, for purposes of § 1026.37(c)(1)(i)(B), whether a balloon payment occurs is determined pursuant to § 1026.37(b)(5) and its commentary. Although the existence of a balloon payment is determined pursuant to § 1026.37(b)(5) and its commentary, balloon payment amounts to be disclosed under § 1026.37(c) are calculated in the same manner as periodic principal and interest payments under § 1026.37(c). For example, for a balloon payment amount that can change depending on previous interest rate adjustments that are based on the value of an index at the time of the adjustment, the balloon payment amounts are calculated using the assumptions for minimum and maximum interest rates described in § 1026.37(c)(1)(iii) and its commentary, and should be disclosed as a range of payments. Proposed comments 37(c)(1)(i)(C)–1 through –3 provide guidance to creditors regarding the disclosure of mortgage insurance. Proposed comment 37(c)(1)(i)(C)–1 states that ‘‘mortgage insurance’’ means insurance against the nonpayment of, or default on, an individual mortgage, and that, for purposes of proposed § 1026.37(c), ‘‘mortgage insurance or any functional equivalent’’ includes any mortgage guarantee that provides coverage similar to mortgage insurance (such as a United States Department of Veterans Affairs or United States Department of Agriculture guarantee), even if not technically considered insurance under State or other applicable law. The Bureau E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules understands that some governmental loan programs impose an annual guarantee fee, and that creditors typically collect a monthly escrow for the payment of such amounts. Current § 1026.18(s) requires creditors to disclose whether mortgage insurance is included in monthly escrow payments, but industry uncertainty exists as to whether it is permissible to identify such guarantees as mortgage insurance on the disclosure required by § 1026.18(s). Although the Bureau recognizes that such guarantees are legally distinguishable from mortgage insurance, they are functionally very similar. Accordingly, proposed comment 37(c)(1)(i)(C)–1 clarifies that creditors should disclose any mortgage guarantee that provides coverage similar to mortgage insurance, even if not considered insurance under State or other applicable law, as mortgage insurance on the disclosure required by § 1026.37(c). Proposed comment 37(c)(1)(i)(C)–1 is consistent with the treatment of mortgage guarantee fees under proposed comment 18(s)(3)(i)(C)– 2. Proposed comment 37(c)(1)(i)(C)–2 gives guidance to creditors on the calculation and termination of mortgage insurance premiums by providing that, for purposes of proposed § 1026.37(c)(1)(i)(C), mortgage insurance premiums should be calculated based on the declining principal balance that will occur as a result of changes to the interest rate and payment amounts, assuming the fully-indexed rate at consummation, taking into account any introductory rates. Finally, proposed comment 37(c)(1)(i)(C)–3 clarifies that the table required by proposed § 1026.37(c) reflects the consumer’s mortgage insurance payments until the date on which the creditor must automatically terminate coverage under applicable law, even though the consumer may have a right to request that the insurance be cancelled earlier. Unlike termination of mortgage insurance, a subsequent decline in the consumer’s mortgage insurance premiums is not, by itself, an event that requires the disclosure of additional separate periodic payments or ranges of payments in the table required by § 1026.37(c). For example, some mortgage insurance programs annually adjust premiums based on the declining loan balance. Such annual adjustment to the amount of premiums would not require a separate disclosure of a periodic payment or range payments. 37(c)(1)(ii) Proposed § 1026.37(c)(1)(ii) contains special rules for the disclosure of VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 separate periodic payments or ranges of payments described in § 1026.37(c)(1)(i). Specifically, proposed § 1026.37(c)(1)(ii) provides that the table required by § 1026.37(c) shall not disclose more than four separate periodic payments or ranges of payments. For all events requiring disclosure of additional separate periodic payments or ranges of payments described in § 1026.37(c)(1)(i) after the second to occur, the separate periodic payments or ranges of payments shall be disclosed as a single range of payments, subject to the special rules listed in proposed § 1026.37(c)(1)(ii)(A) through (C). Proposed § 1026.37(c)(1)(ii)(A) contains a special rule for final balloon payments. That section would require that a final balloon payment shall always be disclosed as a separate periodic payment or range of payments and that, if a final balloon payment is disclosed, no more than three other separate periodic payments or ranges of payments are disclosed. Proposed comment 37(c)(1)(ii)(A)–1 clarifies that § 1026.37(c)(1)(ii)(A) is an exception to the general rule in § 1026.37(c)(1)(ii), and requires that a balloon payment that is scheduled as a final payment under the terms of the legal obligation is always disclosed as a separate periodic payment or range of payments. Balloon payments that are not final payments, such as a balloon payment due at the scheduled recast of a loan that permits negative amortization, are disclosed pursuant to the general rule in § 1026.37(c)(1)(ii). Proposed § 1026.37(c)(1)(ii)(B) provides a special rule for disclosure of mortgage insurance premiums, requiring that the automatic termination of mortgage insurance, or any functional equivalent, under applicable law shall be disclosed as a separate periodic payment or range of payments only if the total number of events that require disclosure of additional separate periodic payments or ranges of payments described in § 1026.37(c)(1)(i), other than the termination of mortgage insurance or any functional equivalent, does not exceed two. Finally, proposed § 1026.37(c)(1)(ii)(C) provides a special rule for events that require additional separate periodic payments or ranges of payments that occur during the same year. Under proposed § 1026.37(c)(1)(ii)(C), if changes to periodic principal and interest payments described in § 1026.37(c)(1)(i)(A) would require more than one separate disclosure during a single year, such periodic payments must be disclosed as a single range of payments. PO 00000 Frm 00091 Fmt 4701 Sfmt 4702 51205 37(c)(1)(iii) Proposed § 1026.37(c)(1)(iii) provides rules for the disclosure of ranges of payments. A range of payments is disclosed when the periodic principal and interest payment may adjust based on index rates at the time an interest rate adjustment may occur or multiple events are combined in a range of payments pursuant to proposed § 1026.37(c)(1)(ii). When a range of payments is required, the creditor must disclose the minimum and maximum possible payment amount for both the principal and interest payment under proposed § 1026.37(c)(2)(i) and the total periodic payment under proposed § 1026.37(c)(2)(iv). In the case of an interest rate adjustment, the maximum payment amounts are determined by assuming that the interest rate in effect throughout the loan term is the maximum possible interest, and the minimum payment amounts are determined by assuming that the interest rate in effect throughout the loan term is the minimum possible interest rate. Proposed comment 37(c)(1)(iii)–1 clarifies that a range of payments must be disclosed when the periodic principal and interest payments are not known at the time the disclosure is provided because they are subject to changes based on index rates at the time of an interest rate adjustment or when multiple events are disclosed as a range of payments pursuant to § 1026.37(c)(1)(ii). For such transactions, proposed § 1026.37(c)(3)(iii) requires the creditor to disclose both the minimum and maximum periodic principal and interest payments, expressed as a range. In disclosing the maximum possible interest rate for purposes of § 1026.37(c), the creditor assumes that the interest rate will rise as rapidly as possible after consummation, taking into account the terms of the legal obligation, including any applicable caps on interest rate adjustments and lifetime interest rate cap. For a loan with no lifetime interest rate cap, the maximum rate is determined by reference to other applicable laws, such as State usury law. In disclosing the minimum possible interest rate for purposes of § 1026.37(c), the creditor assumes that the interest rate will decrease as rapidly possible after consummation, taking into account any introductory rates, caps on interest rate adjustments, and lifetime interest rate floor. For an adjustable rate mortgage based on an index that has no lifetime interest rate floor, the minimum interest rate is equal to the margin. Proposed comment E:\FR\FM\23AUP2.SGM 23AUP2 51206 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 37(c)(1)(iii)–2 clarifies that, when a range of payments is required, the amount required to be disclosed for mortgage insurance premiums pursuant to § 1026.37(c)(2)(ii) and the amount payable into escrow pursuant to § 1026.37(c)(2)(iii) shall not be disclosed as a range. Proposed comment 37(c)(1)(iii)–3 provides guidance to creditors on the disclosure of ranges of payments in adjustable rate mortgages. 37(c)(2) Itemization Proposed § 1026.37(c)(2) requires that each separate periodic payment or range of payments included in the table required by proposed § 1026.37(c) must be itemized to include the following: (1) The amount payable for principal and interest, labeled as ‘‘Principal & Interest,’’ including the term ‘‘only interest’’ if the payment or range of payments includes any interest-only payment; (2) the maximum amount payable for mortgage insurance premiums corresponding to the principal and interest payment disclosed pursuant to § 1026.37(c)(2)(i), labeled ‘‘Mortgage Insurance’’; (3) the amount payable into an escrow account to pay for some or all of the charges described in § 1026.37(c)(4)(ii)(A) through (E), labeled ‘‘Estimated Escrow,’’ including a statement that the amount disclosed can increase over time; and (4) the total periodic payment, calculated as the sum of the amounts disclosed pursuant to § 1026.37(c)(2)(i) through (iii), labeled ‘‘Total Monthly Payment.’’ As discussed in the Kleimann Testing Report, the Bureau’s consumer testing indicates that consumers understand the table and can identify the components of their total monthly payment using this itemization of payments. Proposed comment 37(c)(2)(ii)–1 clarifies that mortgage insurance payments should be reflected on the disclosure required by § 1026.37(c) even if no escrow account is established for the payment of mortgage insurance premiums. If the consumer is not required to purchase mortgage insurance, the creditor discloses the mortgage insurance premium as ‘‘0’’. Proposed comment 37(c)(2)(ii)–2 clarifies that the creditor must disclose mortgage insurance pursuant to § 1026.37(c)(2)(ii) on the same periodic basis that payments for principal and interest are disclosed pursuant to § 1026.37(c)(2)(i), even if mortgage insurance premiums are actually paid on some other periodic basis. The Bureau proposes to require creditors to disclose the amount of estimated escrow payments pursuant to its authority under TILA sections VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 128(a)(16), 128(b)(4)(A), and 105(a), Dodd-Frank Act section 1032(a), and, for residential mortgage loans, DoddFrank Act section 1405(b). As discussed above, TILA section 128(a)(16) requires that, for variable-rate residential mortgage loans for which an escrow account will be established, the creditor must disclose the initial total monthly payment, including escrow payments for taxes and insurance. The Bureau proposes to modify this requirement to cover all transactions subject to proposed § 1026.19(e) for which an escrow account will be established, including fixed-rate loans. Additionally, TILA section 128(b)(4)(A) requires that, for any consumer credit transaction secured by a first lien on the principal dwelling of the consumer for which an escrow account will be established, the creditor must take into account escrow payments when making the disclosures required by TILA section 128(a)(6). The Bureau also proposes to modify the scope of this requirement to cover all transactions subject to proposed § 1026.19(e) for which an escrow account will be established, pursuant to its authority under TILA sections 128(a)(16), 128(b)(4)(A), and 105(a), Dodd-Frank Act section 1032(a), and, for residential mortgage loans, DoddFrank Act section 1405(b). These modifications are consistent with the purposes of TILA, as they may promote the informed use of credit by allowing consumers to more readily compare loans. Further, applying a single disclosure rule to all transactions subject to proposed § 1026.19(e) may ease compliance burden for creditors. Accordingly, these modifications will improve consumer awareness and understanding of residential mortgage loans and are in the interest of consumers and the public, consistent with Dodd-Frank Act section 1405(b). In addition, consistent with section 1032(a) of the Dodd-Frank Act, this disclosure would ensure that the features of consumer credit transactions secured by real property are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the product or service, in light of the facts and circumstances. Further, the Bureau proposes to require creditors to disclose the maximum periodic payment for mortgage insurance premiums corresponding to the periodic principal and interest payment disclosed pursuant to § 1026.37(c)(2)(i), separately from other escrowed amounts, pursuant to its authority under TILA section PO 00000 Frm 00092 Fmt 4701 Sfmt 4702 105(a), Dodd-Frank Act section 1032(a), and, for residential mortgage loans, Dodd-Frank Act section 1405(b), even if no escrow account is established for the payment of such amounts. Current § 1026.18(s) requires creditors to include mortgage insurance in the disclosure of the amounts required to be paid into escrow. However, § 1026.18(s) does not require creditors to separately disclose payments for mortgage insurance. The Bureau believes that consumers would benefit from disclosure of the periodic amount of mortgage insurance payments required by the creditor, and believes that consumers would benefit from the disclosure of any required mortgage insurance payments even if no escrow account for the payment of such amounts will be established. Requiring such disclosure in all cases may facilitate comparison between loans and improve overall understanding of credit terms. Accordingly, the Bureau believes this requirement promotes the informed use of credit, will improve consumer awareness and understanding of transactions involving residential mortgage loans, and is in the interest of consumers and the public, consistent with the purpose of TILA and with Dodd-Frank Act section 1405(b). Further, consistent with section 1032(a) of the Dodd-Frank Act, this disclosure would ensure that the features of consumer credit transactions secured by real property are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the product or service, in light of the facts and circumstances. In addition, the Bureau understands that some mortgage insurance plans are structured such that periodic mortgage insurance payments decrease over time. Accordingly, the Bureau proposes to require creditors to disclose the maximum amount payable for mortgage insurance premiums, or any functional equivalent, corresponding to the periodic principal and interest payment disclosed pursuant to § 1026.37(c)(2)(i). The Bureau believes this disclosure will enhance consumer understanding of and facilitate comparison between loans by more accurately reflecting the amount of mortgage insurance payments over time. Proposed comment 37(c)(2)(iii)–1 clarifies that the disclosure of taxes and insurance described in § 1026.37(c)(2)(iii) is required only if the creditor will establish an escrow account for the payment of the amounts described in § 1026.37(c)(4)(ii)(A) through (E), consistent with TILA E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules section 128(b)(4)(A) and current § 1026.18(s). mstockstill on DSK4VPTVN1PROD with PROPOSALS2 37(c)(3) Subheadings Proposed § 1026.37(c)(3)(i) provides that the labels required pursuant to § 1026.37(c)(2) must be listed under the subheading ‘‘Payment Calculation.’’ Proposed § 1026.37(c)(3)(ii) provides that each separate, itemized periodic payment or range of payments to be disclosed under § 1026.37(c) must be disclosed under a subheading that states the number of years of the loan during which that payment or range of payments will apply. The subheadings must be stated in a sequence of whole years from the date that the first such payment is due. Proposed comment 37(c)(3)(ii)–1 provides additional guidance on the disclosure of the number of years of the loan during which the payment or range of payments will apply, and proposed comment 37(c)(3)(ii)–2 provides guidance on disclosure of the years of the loan for transactions with variable terms, such as transactions where the loan term may increase based on an adjustment of the interest rate. 37(c)(4) Taxes, Insurance, and Assessments As discussed above, the Bureau is proposing to require creditors in transactions subject to proposed § 1026.19(e) to disclose estimated payments to escrow accounts pursuant to its authority under TILA sections 128(a)(16), 128(b)(4)(A), and 105(a), Dodd-Frank Act section 1032(a), and, for residential mortgage loans, DoddFrank Act section 1405(b). The Bureau also proposes § 1026.37(c)(4) pursuant to this authority. Proposed § 1026.37(c)(4)(i) provides that creditors must disclose the label ‘‘Estimated Taxes, Insurance & Assessments.’’ Proposed § 1026.37(c)(4)(ii) requires creditors to disclose the sum of property taxes, mortgage-related insurance premiums required by the creditor other than amounts payable for mortgage insurance premiums, homeowner’s association, condominium or cooperative fees, ground rent or leasehold payments, and special assessments, as applicable, expressed as a monthly amount. The creditor must disclose this amount even if no escrow account for the payment of some or any such charges will be established. Proposed comments 37(c)(4)(ii)–1 and –2 provide guidance to creditors on the meaning of mortgage-related insurance premiums and special assessments. Proposed § 1026.37(c)(4)(iii) requires creditors to state that the amount disclosed pursuant to § 1026.37(c)(4)(ii) VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 can increase over time. Proposed § 1026.37(c)(4)(iv) requires creditors to state whether the amount disclosed pursuant to § 1026.37(c)(4)(ii) includes payments for property taxes, hazard insurance, and other amounts described in § 1026.37(c)(4)(ii), along with a description of any such amounts, and an indication of whether such amounts will be paid by the creditor using escrow account funds. Proposed § 1026.37(c)(4)(v) requires creditors to provide a statement that the consumer must pay separately any amounts described in § 1026.37(c)(4)(ii) that are not paid by the creditor using escrow funds. Finally, proposed § 1026.37(c)(4)(vi) requires creditors to provide a reference to the information disclosed pursuant to § 1026.37(g)(3). Under proposed § 1026.37(c)(4), the disclosure of estimated taxes, insurance, and assessments is required even where no escrow account will be established for the payment some or any such amounts. The Bureau proposes this requirement pursuant to its authority under TILA section 105(a), Dodd-Frank Act section 1032(a), and, for residential mortgage loans, Dodd-Frank Act section 1405(b). As discussed in the Kleimann Testing Report, consumer testing indicates that consumers view the total monthly payment amount as a key piece of information and look for this amount when shopping for mortgages. Even when no escrow account is established for the payment of taxes and insurance, this is an important measure of the consumer’s ability to afford the transaction. For this reason, the Bureau believes that consumers would benefit from the disclosure of the amounts that will required to be paid for taxes, insurance, and assessments, even if no escrow account will be established for the payment of such amounts. Absent such a disclosure, consumers may not fully comprehend the cost of their home loan on a periodic basis, and may not be as readily able to compare credit terms and make an informed decision about whether to proceed with the transaction. Accordingly, the Bureau believes this modification is consistent with the purpose of TILA to promote the informed use of credit, and will improve consumer awareness and understanding of residential mortgage loans and is in the interest of consumers and the public, consistent with Dodd-Frank Act section 1405(b). In addition, consistent with section 1032(a) of the Dodd-Frank Act, this disclosure would ensure that the features of consumer credit transactions secured by real property are fully, accurately, and effectively disclosed to consumers in a manner that PO 00000 Frm 00093 Fmt 4701 Sfmt 4702 51207 permits consumers to understand the costs, benefits, and risks associated with the product or service, in light of the facts and circumstances. 37(c)(5) Calculation of Taxes and Insurance As previously discussed, section 1465 of the Dodd-Frank Act added to TILA new section 128(b)(4)(A), which provides that, in the case of any consumer credit transaction secured by a first mortgage on the principal dwelling of the consumer, other than an open-end credit plan or reverse mortgage, for which an escrow account has been or will be established in connection with the transaction for the payment of property taxes, homeowner’s (also referred to and including hazard) and flood insurance premiums, as applicable, or other periodic payments with respect to the property, the disclosures required by TILA section 128(a)(6) must take into account the amount of any monthly payment to such account, in accordance with section 10(a)(2) of RESPA. In addition, new TILA section 128(b)(4)(B) requires that the amount taken into account under TILA section 128(b)(4)(A) for the payment of property taxes, hazard or flood insurance premiums, or other periodic payments or premiums with respect to the property shall reflect the taxable assessed value of the real property securing the transaction after consummation of the transaction. That amount must include the value of any improvements on the property or to be constructed on the property, if known, even if such construction costs are not financed from the proceeds of the transaction, and the replacement costs of the property for hazard insurance, in the initial year after the transaction. Pursuant to the Bureau’s implementation authority under TILA section 105(a), proposed § 1026.37(c)(5) implements this requirement for transactions subject to § 1026.19(e) and requires that the estimated escrow and estimated taxes, insurance, and assessments disclosures required pursuant to § 1026.37(c)(2)(iii) and (4)(ii), respectively, reflect (1) the taxable assessed value of the real property securing the transaction after consummation, including the value of any improvements on the property or to be constructed on the property, whether or not such construction will be financed from the proceeds of the transaction, if known, for property taxes; and (2) the replacement costs of the property during the initial year after the transaction, for hazard and flood insurance. E:\FR\FM\23AUP2.SGM 23AUP2 51208 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules Pursuant to its authority under TILA section 105(a) and Dodd-Frank Act sections 1032(a) and 1405(b), the Bureau proposes to expand the requirements of TILA section 128(b)(4)(A) and (B) to cover all transactions subject to proposed § 1026.19(e), including transactions where no escrow account will be established for the payment of property taxes or hazard insurance, transactions that are secured by real property that does not include the principal dwelling of the consumer, and transactions secured by subordinate liens. These modifications appear to be consistent with the purposes of TILA, as they may promote the informed use of credit by allowing consumers to more readily compare loans. Further, applying a single disclosure rule to all transactions subject to proposed § 1026.19(e) may ease compliance burden for creditors. Accordingly, these modifications will improve consumer awareness and understanding of residential mortgage loans and are in the interest of consumers and the public, consistent with Dodd-Frank Act section 1405(b). In addition, consistent with section 1032(a) of the Dodd-Frank Act, the proposed disclosure would ensure that the features of consumer credit transactions secured by real property are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the product or service, in light of the facts and circumstances. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 37(d) Cash to Close Pursuant to its authority under TILA section 105(a) and Dodd-Frank section 1032(a), the Bureau proposes to require creditors to provide the estimated total closing costs imposed upon the consumer and the estimated amount of cash needed at consummation from the consumer. This disclosure will effectuate the purposes of TILA by promoting the informed use of credit and will ensure the features of the mortgage transaction are fully, accurately and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the mortgage transaction, in light of the facts and circumstances, because it will indicate to the consumer the amount the consumer will have to pay at consummation of the credit transaction and closing of the real estate transaction. Accordingly, proposed § 1026.37(d) requires the disclosure of an estimate of the cash needed from the consumer at consummation of the transaction, with a breakdown of the VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 amounts of loan costs and other costs associated with the transaction. Under § 1026.37(d)(1), the dollar amount due from the consumer is the same amount as calculated in accordance with proposed § 1026.37(h)(4) and is disclosed under the heading of ‘‘Cash to Close’’ and labeled ‘‘Estimated Cash to Close.’’ The total dollar amount of the loan costs to be paid by the consumer at closing as calculated under proposed § 1026.37(f)(4) is disclosed under proposed § 1026.37(d)(2). The total dollar amount of the other costs to be paid by the consumer at closing as calculated under proposed § 1026.37(g)(5) is disclosed under proposed § 1026.37(d)(3). The amount of lender credits disclosed under § 1026.37(g)(6)(ii) is disclosed under § 1026.37(d)(4). The sum of the amounts disclosed under proposed § 1026.37(d)(2), through 1026.37(d)(4) is disclosed with a description of ‘‘Closing Costs’’ under § 1026.37(d)(5). A statement directing the consumer to refer to the location of the Loan Estimate that contains the tables required under § 1026.37(f) and (g) is required under § 1026.37(d)(6). 37(e) Web Site Reference Appendix C to Regulation X includes a statement in the RESPA GFE that directs consumers to HUD’s Web site and other sources of additional information, stating the following, ‘‘For more information, see HUD’s Special Information Booklet on settlement charges, your Truth-in-Lending Disclosures, and other consumer information at www.hud.gov/respa.’’ Regulation Z does not contain a similar provision. The Bureau proposes to use its authority under TILA section 105(a), RESPA section 19(a), and Dodd-Frank Act section 1032(a) to require disclosure of the Bureau’s Web site in proposed § 1026.37(e). The Bureau believes that a disclosure in the Loan Estimate directing consumers to additional information and tools on its Web site may help consumers understand the mortgage process and the various loan products in the market, and consequently better understand their loan transaction and make informed decisions about whether to enter into a loan transaction or which loan product best meets their needs. Accordingly, this disclosure will effectuate the purposes of TILA and RESPA by promoting the informed use of credit and more effective advance notice of settlement costs, consistent with TILA section 105(a) and RESPA section 19(a), and will ensure that the features of the mortgage transactions are fully, PO 00000 Frm 00094 Fmt 4701 Sfmt 4702 accurately, and effectively disclosed to consumers in a manner that permits consumers to better understand the costs, benefits, and risks associated with mortgage transactions, in light of the facts and circumstances, consistent with Dodd-Frank Act section 1032(a). Therefore, proposed § 1026.37(e) requires creditors to include a statement notifying the consumer that additional information and tools regarding mortgage loans may be found at the Bureau’s Web site. Proposed § 1026.37(e) also requires a reference to the link/uniform resource locator (URL) address for the Bureau’s Web site. 37(f) Closing Cost Details; Loan Costs Under section 5(c) of RESPA creditors must provide mortgage loan applicants with a good faith estimate of the amount or range of charges for specific settlement services the applicant is likely to incur in connection with the consummation of the loan. 12 U.S.C. 2604(c). Section 1024.7 of Regulation X implements this mandate by requiring creditors and mortgage brokers to provide the RESPA GFE, which must be completed in accordance with the instructions in appendix C to Regulation X. Appendix C sets out specific instructions for the information that must be disclosed on the RESPA GFE, including the loan costs that must be included and how to identify those costs on the disclosure. As discussed above, Dodd-Frank Act section 1032(f) requires the Bureau to combine these RESPA disclosures with the disclosures required by TILA. In addition to existing TILA disclosure requirements, section 1419 of the DoddFrank Act amended TILA section 128(a) to require, in the case of a residential mortgage loan, disclosure of the aggregate amount of settlement charges for all settlement services provided in connection with the loan and the aggregate amount of other fees or required payments in connection with the loan. 15 U.S.C. 1638(a)(17). Pursuant to its authority under TILA section 105(a), RESPA section 19(a), and Dodd-Frank Act sections 1032(f) and, for residential mortgage loans, 1405(b), the Bureau proposes to require creditors to provide the loan costs and other costs imposed upon the consumer in tables as part of the integrated Loan Estimate. Proposed § 1026.37(f) and (g) implement these early disclosure requirements of TILA and RESPA by setting out details relating to the costs for consummating the mortgage loan, including loan costs and other costs. Based on its consumer testing, the Bureau believes that early disclosure of estimated loan costs and other costs, as set forth in proposed E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 § 1026.37(f) and (g), will improve consumer understanding of the credit and property transactions. The Bureau believes that these disclosures will effectuate the purpose of TILA by promoting the informed use of credit and assuring a meaningful disclosure to consumers. The Bureau believes that the disclosures will also satisfy the RESPA requirement to provide a consumer with a good faith estimate of the amount or range of charges for specific settlement services the consumer is likely to incur in connection with the closing. In addition, these disclosures will ensure that the features of the mortgage transactions are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the mortgage transaction, in light of the facts and circumstances, consistent with DoddFrank Act section 1032(a). In particular, proposed § 1026.37(f) requires the creditor to itemize, as ‘‘Loan Costs,’’ its fees and other charges to the consumer for extending the credit or that compensate a mortgage broker for originating the transaction. The creditor must disclose the individual itemized charges, along with subtotals for prescribed categories of those itemized charges, and the total of all such itemized charges. In general, these charges are currently required to be disclosed—as itemized or aggregate charges and amounts—on the RESPA GFE, the RESPA settlement statement, or both.164 164 On June 20, 2012, HUD’s Office of Policy Development and Research and the Urban Institute released a study entitled ‘‘What Explains Variation in Title Charges? A Study of Five Large Markets,’’ https://www.huduser.org/portal/publications/hsgfin/ title_charges_2012.html, based on HUD–1 settlement statements of FHA loans from 2001. See p. 13. The study discusses, among other things, that an observed positive association between the number of items listed and net service fees was statistically significant after taking home prices into account. See p. 29. However, the report could not determine whether this indicates additional value to the consumer or additional costs to the settlement agent due to limitations of the data. Id. The study states that ‘‘there is no way to ascertain from the data whether an itemized cost is an attempt to confuse consumers or the provision of an additional, valuable service that the homebuyer is willing to pay for. Both interpretations are plausible.’’ Id. Under this proposal, itemization is permitted on the Loan Estimate, but highly visible subtotals in gray shading and bold font are displayed above the itemized charges for specific categories of costs. Based on its consumer testing, the Bureau believes the highly visible subtotals, along with the highly visible ‘‘Services You Can Shop For’’ subcategory of Closing Costs on the Loan Estimate, will inform consumers that they can shop for their own service providers and provide them with, along with the itemization, readily comparable cost categories to shop between creditors and service providers. Such shopping for settlement service providers, according to the study, VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 Proposed comment 37(f)–1 explains that the items disclosed as Loan Costs pursuant to § 1026.37(f) are those that the creditor or mortgage broker require for consummation. Proposed comment 37(f)–2 provides a cross-reference to the commentary under § 1026.19(e)(1)(ii), which discusses the requirements and responsibilities of mortgage brokers that provide the disclosures required under § 1026.19(e) and § 1026.37(f). 37(f)(1) Origination Charges Under proposed § 1026.37(f)(1), charges included on the Loan Estimate under the subheading of ‘‘Origination Charges’’ are those that the consumer will pay to the creditor and any loan originator for originating and extending the credit. The points that the consumer will pay to the creditor to reduce the interest rate are specifically identified and itemized as the first item under this subheading. As discussed above in part II.F, the Bureau currently is engaged in six other rulemakings that relate to mortgage credit and intends that the rulemakings function collectively as a whole. Accordingly, the Bureau may have to modify aspects of this proposed rule not only in response to public comment on this proposal, but also to maintain consistency with final determinations made after opportunity for public comment in the other, related rulemakings. For example, Dodd-Frank Act section 1403 amended TILA section 129B(c)(2) to prohibit an origination fee or charge that is paid to a mortgage originator by any person other than the consumer, unless the mortgage originator does not receive compensation directly from the consumer and the consumer does not make an upfront payment of discount points, origination points, or fees (other than certain third-party fees). 15 U.S.C. 1639b(c)(2)(B). Amended TILA section 129B(c)(2) also provides the Bureau with the authority to waive or create exemptions from this prohibition with respect to the clause against the consumer making an upfront payment of discount points, origination points, or fees, where doing so is in the interest of consumers and in the public interest. Id. As discussed in the materials distributed for the Small Business Review Panel convened for the Residential Mortgage Loan Origination could provide ‘‘significant benefits to consumers.’’ See p. 28. The study suggests that future research using more detailed data on costs incurred by settlement agents would be valuable. See p. 29. The Bureau welcomes additional comments and studies on the issue of itemization of costs on the Loan Estimate and Closing Disclosure during the comment period. PO 00000 Frm 00095 Fmt 4701 Sfmt 4702 51209 Standards rulemaking implementing amended TILA section 129B(c)(2), the Bureau is considering exercising its waiver or exemption authority in that rulemaking.165 The Bureau will coordinate these rulemakings and, if applicable and appropriate, will modify the disclosure of origination charges under § 1026.37(f)(1) for consistency with the final rule implementing amended TILA section 129B(c)(2). The Bureau invites comment on how, in light of amended TILA section 129B(c)(2), the Bureau should refine or modify the way in which origination charges are disclosed under proposed § 1026.37(f)(1). The public will also have the opportunity to comment on the Bureau’s implementation of amended TILA section 129B(c)(2) when a proposed rule is published later this summer. The Bureau expects the comment period for the proposal set forth in this notice will still be open at that time. TILA section 128(a)(18), as added by Dodd-Frank Act section 1419, requires the creditor to disclose, for residential mortgage loans, the aggregate amount of fees paid to the mortgage originator in connection with the loan, the amount of such fees paid directly by the consumer, and any additional amount received by the originator from the creditor. In the discussion of proposed § 1026.37(l) below, the Bureau notes that research regarding consumer comprehension and behavior and the results of the Bureau’s consumer testing suggest that an effective disclosure regime minimizes the risk of consumer distraction and information overload by providing only information that will assist most consumers. The Bureau has evaluated the usefulness to consumers and others at early stages of the loan process of the disclosures required by TILA section 128(a)(18), as added by Dodd-Frank Act section 1419. Based on that evaluation, and as discussed further below, the Bureau is proposing to use its authority under TILA section 105(a) and (f), RESPA section 19(a), and, for residential mortgage loans, Dodd-Frank Act section 1405(b), to exempt transactions subject to proposed § 1026.19(e) from certain of the itemized disclosures required by TILA section 128(a)(18). In particular, for transactions subject to proposed § 1026.19(e), proposed § 1026.37(f)(1) requires the creditor to disclose the amounts of origination fees paid by the consumer to creditors and loan 165 Small Business Review Panel for Residential Mortgage Loan Origination Standards Rulemaking: Outline of Proposals Under Consideration and Alternatives Considered (May 19, 2012), available at https://files.consumerfinance.gov/f/201205_cfpb_ MLO_SBREFA_Outline_of_Proposals.pdf. E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51210 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules originators in connection with the loan, but not any amounts received by a loan originator from the creditor. However, as discussed below with respect to proposed § 1026.38(f)(1), the full disclosure required by TILA section 128(a)(18) is included in the disclosure requirements for transactions subject to proposed § 1026.19(f). In other words, although certain TILA section 128(a)(18) disclosures would not be included in the Loan Estimate, they would be provided in the Closing Disclosure. The RESPA GFE currently required by Regulation X aggregates all compensation paid to all loan originators and includes a separate item that reflects as a ‘‘credit’’ to the consumer fees received by mortgage brokers from the creditor rather than the consumer. A major goal of the RESPA GFE disclosure requirements was to provide consumers with a clear disclosure of any rate-based payments being made by creditors to mortgage brokers who may be working with the consumer. Regulation X provides generally that lender and mortgage broker origination charges are to be included on page 2 of the RESPA GFE, in Block 1 (‘‘Our origination charge’’), Block 2 (‘‘Your credit or charge (points) for the specific interest rate chosen’’), and Line A (Your Adjusted Origination Charges’’). See 12 CFR part 1024, appendix C (instructions for ‘‘Your Adjusted Origination Charges’’). Under the disclosure requirements in Regulation X, all charges for services related to the creation of the mortgage loan are to be included on the RESPA GFE in the single amount stated in Block 1 and the single amount in Block 2, as applicable. The RESPA GFE disclosure requirements prohibit creditors and mortgage brokers from charging any fees for getting the loan that are in addition to the amounts included in Blocks 1 and 2. Id. (instructions for ‘‘Block 1’’). The requirements related to the disclosures in Blocks 1 and 2 of the GFE have been a source of uncertainty for creditors, mortgage brokers, and consumers. HUD provided informal guidance to address some of the uncertainty in a number of its HUD RESPA FAQs and HUD RESPA Roundups, much of which involved where and how to disclose compensation paid directly and indirectly to mortgage brokers. In 2010, subsequent to the issuance of HUD’s 2008 RESPA Final Rule, the Board established by regulation in § 1026.36 of Regulation Z restrictions on the compensation of loan originators, VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 including mortgage brokers.166 The Board adopted these restrictions only after concluding that disclosure of creditor-paid compensation did not provide sufficient protection for consumers.167 Section 1403 of the Dodd-Frank Act codified similar restrictions. 15 U.S.C. 1639b(c). As a result of these additional consumer protections and based on consumer testing, the Bureau believes that consumers may not benefit from any additional disclosure of rate-based compensation when shopping for and considering the costs of a mortgage loan. Therefore, in proposed § 1026.37(f)(1), the Bureau proposes to eliminate the separate GFE Blocks 1 and 2 disclosures, thereby eliminating the need to follow different instructions for loans involving a mortgage broker than for loans originated without one. Consistent with Dodd-Frank section 1405(b), disclosure of only the direct charges the consumer will pay will reduce both consumer confusion and the possibility of information overload, improve consumer understanding of the Loan Estimate form, and make it easier for creditors or mortgage brokers to complete the estimates of closing costs, which is in the interest of consumers and in the public interest. In addition, consistent with TILA section 105(a) and RESPA section 19(a), the proposed disclosure will effectuate the purposes of TILA and RESPA by promoting the informed use of credit and more effective disclosure of settlement costs by allowing consumers to focus only on the amounts they will pay. Furthermore, consistent with section 1032(a) of the Dodd-Frank Act, proposed § 1026.37(f) would ensure that the origination costs for consumer credit transactions secured by real property are fully, accurately, and effectively disclosed to consumers 166 75 FR 58509 (Sept. 24, 2010) (Board’s 2010 Compensation Final Rule). 167 The Board’s 2010 Compensation Final Rule discussed the history of efforts by the Board to address concerns regarding consumers’ understanding of fees received by mortgage brokers from creditors. Before issuing that final rule, the Board considered proposed disclosures of such compensation, but had withdrawn the proposed disclosures because of concern that they could confuse consumers and undermine their decisionmaking rather than improve it. 75 FR at 58511. A 2008 study referenced in the Board’s 2010 Compensation Final Rule indicated additional disclosures may not help consumers understand and avoid financial incentives for loan originators that may be contrary to consumer interests. Id. The study found that consumers were confused by, and in some cases did not appropriately apply, the information provided in disclosures about mortgage broker compensation arrangements. Macro International, Consumer Testing of Mortgage Broker Disclosures (July 10, 2008), available at https:// www.federalreserve.gov/newsevents/press/bcreg/ 20080714regzconstest.pdf. PO 00000 Frm 00096 Fmt 4701 Sfmt 4702 in a manner that permits consumers to understand the costs, benefits, and risks associated with the product or service, in light of the facts and circumstances. As noted above, § 1026.37(f) is also proposed pursuant to the Bureau’s exemption authority under TILA section 105(f). The Bureau has considered the factors in TILA section 105(f) and believes that, for the reasons discussed above, an exception is appropriate under that provision. Specifically, the Bureau believes that the proposed exemption is appropriate for all affected borrowers, regardless of their other financial arrangements and financial sophistication and the importance of the loan to them. Similarly, the Bureau believes that the proposed exemption is appropriate for all affected loans, regardless of the amount of the loan and whether the loan is secured by the principal residence of the consumer. Furthermore, the Bureau believes that, on balance, the proposed exemption will simplify the credit process without undermining the goal of consumer protection or denying important benefits to consumers. Accordingly, the Bureau is proposing to exempt the disclosures required pursuant to § 1026.19(e) from the requirement in TILA section 128(a)(18) to itemize fees received by loan originators from the creditor. The Bureau invites comment on whether the final rule should require that fees received by loan originators from the creditor be included in the Loan Estimate. In addition, because the foregoing analysis under TILA section 105(f) and the Bureau’s other exemption authorities may apply to the disclosure of creditor-paid compensation on the Closing Disclosure pursuant to proposed § 1026.38(f)(1), the Bureau solicits comments on whether the disclosure should be omitted there as well. While a goal of the proposed forms and requirements is to develop clear disclosures that help consumers understand the credit transaction and closing costs, another goal is to facilitate consumer comparison of the actual charges at consummation with the charges estimated soon after application. If, as proposed, the amounts received by loan originators from the creditor are not itemized in the Loan Estimate, the consumercomparison purpose of the disclosure forms is not advanced by itemizing those amounts in the Closing Disclosure. In fact, itemizing amounts in the Closing Disclosure that are not itemized on the Loan Estimate may add to consumer confusion without any offsetting benefit. The Bureau believes, however, that certain additional information about E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules origination costs may benefit consumers at early stages of the loan process. In its 2008 RESPA Final Rule, HUD explained its reason for limiting to lump-sum amounts certain disclosures, such as for origination and title charges, as avoiding consumer confusion resulting from a proliferation of itemized fees. HUD described the RESPA GFE that was in place before the effective date of the 2008 RESPA final rule as ‘‘not inform[ing] consumers what the major costs are so that they can effectively shop and compare mortgage offers among different loan originators.’’ 73 FR at 68260. Therefore HUD sought to simplify the mortgage loan origination process by consolidating costs into a few major cost categories on the RESPA GFE. Id. The Bureau understands HUD’s reasoning in its 2008 RESPA final rule for establishing revised requirements for the disclosure of origination-related charges in the RESPA GFE form. The Bureau notes, however, that HUD did not specifically test the effect of separating the lump sum amounts for major categories of loan costs into component charges.168 As discussed in the Kleimann Testing Report, in several rounds of testing, the Bureau examined the effect of such itemization of loan costs on consumers’ understanding of the loan transaction and their tendency and ability to shop. As a result of its testing, the Bureau proposes to modify the requirements for disclosing origination-related items on the Loan Estimate. As discussed in the Kleimann Testing Report, at the Bureau’s consumer testing, participants were more likely to question loan costs when they were presented in an itemized format, rather than as only an aggregate or lump sum of those costs. While participants commented favorably on lump-sum totals, they also asked for more detail about the fees that were included in the lump sum, especially when the total was a significant amount, such as for origination charges or title fees. Further, as discussed in the Kleimann Testing Report, participants more often indicated a desire to negotiate origination charges and shop for thirdparty services when provided the additional details about these closing costs. Itemized closing costs also prompted participants to ask more questions about the other costs in the Loan Estimate. Although participants 168 See, U.S. Dep’t. of Hous. and Urban Dev., Summary Report: Consumer Testing of the Good Faith Estimate Form (GFE), prepared by Kleimann Communications Group, Inc. (2008), available at https://www.huduser.org/publications/pdf/ Summary_Report_GFE.pdf. VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 also responded favorably to lump-sum disclosures, without the additional information about the cost category they were less likely to indicate a desire to negotiate costs, shop for providers, and ask for additional detail about a large cost. As discussed in the Kleimann Testing Report, testing indicates that descriptive, itemized listings of the component charges in a category of closing costs related to improved performance of the participants in understanding both the underlying services provided and the amounts imposed for those services. In addition, testing participants stated that they felt more comfortable with the transaction when provided with additional detail, in part because they believed they were more responsible consumers when they were more informed. The morecomplete information also may help a consumer determine whether to shop for a particular service or services. During its outreach efforts, the Bureau heard anecdotal reports that creditors are often prepared to provide consumers with additional detail about aggregate amounts disclosed on the RESPA GFE, in any event. State law also may require creditors to provide such additional detail about certain categories of costs by consummation or before accepting a fee,169 or to retain such detail in their loan files.170 Therefore, proposed § 1026.37(f)(1) does not limit the disclosure of origination-related closing costs to an aggregate amount with two lines under predefined headings (as is the case with the RESPA GFE). Instead, proposed § 1026.37(f)(1) requires that the Loan Estimate include a subtotal of the amounts for all ‘‘Origination Charges,’’ but permits the creditor to list up to 13 component items. The creditor must use a descriptive label for each component fee or charge, and must disclose the amount of that fee or charge. Proposed § 1026.37(f)(1) requires the creditor to include under the subheading ‘‘Origination Charges’’ the percentage of the loan amount, and the resulting calculation of the dollar amount, that is charged to the consumer as points to lower the interest rate. The Loan Estimate form H–24, in appendix H to Regulation Z, includes a line for this disclosure immediately under the 169 See, e.g., Tex. Ins. Code Ann. § 2702.053 (title charges); Ga. Comp. R. & Regs. 80–11–1–.01 (origination charges). 170 See, e.g., North Carolina Commissioner of Banks Memorandum, Disclosure of Origination Fees under HUD’s New RESPA Rules (December 3, 2010), available at https://www.nccob.gov/public/ docs/Financial%20Institutions/Mortgage/OCOB_ Letter_Regarding_Disclosure_of_Origination_Fees_ under_HUDs_new_RESPA_Rules.pdf. PO 00000 Frm 00097 Fmt 4701 Sfmt 4702 51211 subheading ‘‘Origination Charges.’’ The line’s label reads: ‘‘l% of Loan Amount (Points),’’ and the blank before the percentage sign is to be filled in with the applicable number. The Bureau does not propose to eliminate the disclosure of a single total amount of origination charges from the Loan Estimate form, however. The RESPA GFE currently shows a subtotal of the origination charges on Line A (‘‘Your Adjusted Origination Charges’’). Pursuant to § 1026.37(f)(1), the Bureau proposes to show in the Loan Estimate a similar subtotal accompanying the subheading ‘‘Origination Charges.’’ The Bureau’s testing of the Loan Estimate forms indicates that consumers can easily find and use this subtotal of the origination charges to evaluate and compare loans, as discussed in the Kleimann Testing Report. Further, the testing indicates that consumers easily understand that the subtotal represents the sum of the itemized fees and charges. The Bureau is proposing the requirements in § 1026.37(f)(1) pursuant to its implementation authority under TILA section 105(a) and RESPA section 19(a) because disclosure of the points, component charges, and total origination charges will promote the informed use of credit and more effective advance disclosure of settlement costs, which are purposes of TILA and RESPA respectively. DoddFrank Act sections 1032(a) and 1405(b) are also sources of authority for the proposed requirements in § 1026.37(f)(1). The information disclosed under § 1026.37(f)(1) will enable consumers to understand and negotiate fees, shop for origination services, and compare the Loan Estimate with any revised Loan Estimate and the Closing Disclosure, thereby ensuring that the features of the mortgage transactions are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the mortgage transaction, in light of the facts and circumstances, consistent with DoddFrank Act section 1032(a). Furthermore, for the reasons stated above, the proposed rule is in the interest of consumers and in the public interest, consistent with Dodd-Frank Act section 1405(b). The Bureau is aware of concerns that permitting itemization may encourage creditors to list numerous component charges that the RESPA GFE currently requires to be consolidated into one E:\FR\FM\23AUP2.SGM 23AUP2 51212 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules charge.171 Based on its testing, however, the Bureau believes that proposed § 1026.37(f)(1), which permits some itemization but also requires disclosure of the subtotal of origination charges, provides consumers with information they want without encumbering their ability to compare credit offers among different creditors. The Bureau invites comment on whether other limits on itemization, in addition to the proposed limits on the number of charges that may be itemized pursuant to § 1026.37(f)(1), should be included in the final rule and, if so, what those limits should be. Proposed comment 37(f)(1)–1 clarifies that charges that are included under the subheading ‘‘Origination Charges’’ pursuant to § 1026.37(f)(1) are those charges paid by the consumer for which the amount is paid to the creditor or loan originator for originating and extending the mortgage credit. The comment includes cross-references to § 1026.37(o)(4) for rules on rounding amounts disclosed, comment 19(e)(3)(i)–2 for a discussion of when a fee is considered to be ‘‘paid to’’ a person, and comment 36(a)–1 for a discussion of the meaning of ‘‘loan originator.’’ Proposed comment 37(f)(1)– 2 clarifies that only loan originator charges paid directly by the consumer are included in the items listed pursuant to § 1026.37(f)(1), but notes that charges paid by the creditor through the interest rate are disclosed on the Closing Disclosure pursuant to § 1026.38(f)(1). Proposed comment 37(f)(1)–3 provides examples of the items that might be disclosed as ‘‘Origination Charges’’ on the Loan Estimate. Proposed comment 37(f)(1)–4 explains that if the consumer is not charged any points for the loan, the creditor may leave blank the percentage of points required by § 1026.37(f)(1)(i), but must disclose the dollar amount of ‘‘$0.’’ Proposed comment 37(f)(1)–5 clarifies that the creditor may decide the level of itemization of origination charges that is appropriate, subject to the limitations in § 1026.37(f)(1)(ii) on the number of lines. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 37(f)(2) Services You Cannot Shop For The fees and charges listed under the subheading ‘‘Services You Cannot Shop For’’ pursuant to proposed 171 In its 2008 RESPA Final Rule, HUD stated that: ‘‘Current RESPA regulations have led to a proliferation of charges that makes consumer shopping and the mortgage settlement process both difficult and confusing, even for the most informed shoppers. Long lists of charges certainly do not highlight the bottom-line costs so consumers can shop and compare mortgage offers among different originators.’’ 73 FR 68204, 68267 (Nov. 17, 2008). VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 § 1026.37(f)(2) are for services that the creditor would require in connection with the transaction, but that would be provided by persons other than the creditor or mortgage broker. Only items for which the creditor does not permit the consumer to shop in accordance with § 1026.19(e)(1)(vi)(A) are listed under this subheading. As discussed above, § 1026.19(e)(3)(ii) applies the same criterion in determining whether an estimated charge is subsequently permitted to increase by a limited amount, absent other considerations set out in § 1026.19(e)(3). Currently, Regulation X provides that third-party services required by the creditor and for which the creditor does not permit the consumer to shop are to be included, as applicable, in Blocks 3 (‘‘Required services that we select’’) and 4 (‘‘Title services and lender’s title insurance’’) on the RESPA GFE. Regulation X also provides that charges for title services, like charges for origination services, are not itemized on the RESPA GFE, but are disclosed only as a total. See appendix C to Regulation X (instructions for Blocks 3, 4 (‘‘all fees for title searches, examinations, and endorsements, for example, would be included in this total’’), and 6). As discussed in connection with proposed § 1026.37(f)(1), consumer testing performed on Loan Estimate forms indicated that itemization related to improved performance of the participants in understanding both the services provided and the charges imposed for those services. Participants appeared more likely to negotiate fees and shop for services when provided additional details that helped them to understand the nature of the services and the potential value of shopping for a particular service. Pursuant to § 1026.37(f)(2) and (3), the Bureau proposes to show in the Loan Estimate subtotals and itemized amounts for loan costs, including for title-related services, on the highlighted lines with the subheadings ‘‘Services You Cannot Shop For’’ and ‘‘Services You Can Shop For.’’ The Bureau’s testing of the forms indicates that consumers can easily find and appropriately use the subtotals of these amounts, as discussed in the Kleimann Testing Report. Pursuant to § 1026.37(f)(2), each item disclosed under the subheading ‘‘Services You Cannot Shop For’’ must include a descriptive name and the estimated charge, and the creditor must provide a subtotal of all such items. All items for which the charges relate to the provision of title insurance and the handling of the closing must be identified beginning with ‘‘Title—.’’ The creditor may use up to 13 lines to PO 00000 Frm 00098 Fmt 4701 Sfmt 4702 itemize charges under the subheading for ‘‘Services You Cannot Shop For.’’ The Bureau is proposing the requirements in § 1026.37(f)(2) pursuant to its authority under TILA section 105(a) and RESPA section 19(a) because disclosure of third-party services required by a creditor for consummation of the loan, their component and total charges, and the fact that the creditor will limit the choice of providers for those services will promote the informed use of credit and more effective advance disclosure of settlement costs, which are purposes of TILA and RESPA respectively. DoddFrank Act sections 1032(a) and 1405(b) are also sources of authority for the proposed requirements in § 1026.37(f)(2). The information disclosed under § 1026.37(f)(2) will enable consumers to understand and negotiate fees, shop for a mortgage loan, and compare the Loan Estimate with any revised Loan Estimate and the Closing Disclosure, thereby ensuring that the features of the mortgage transactions are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the mortgage transaction, in light of the facts and circumstances, consistent with DoddFrank Act section 1032(a). Furthermore, for the reasons stated above, the proposed disclosure is in the interest of consumers and in the public interest, consistent with Dodd-Frank Act section 1405(b). As discussed above, the Bureau is aware of concerns that permitting itemization may encourage creditors to list numerous component charges that the RESPA GFE currently requires to be consolidated. The Bureau invites comment on whether other limits on itemization, in addition to the proposed limits on the number of charges that may be itemized pursuant to § 1026.37(f)(2), should be included in the final rule and, if so, what those limits should be. Proposed comment 37(f)(2)–1 crossreferences comments 19(e)(1)(iv)–1, 19(3)(i)–1, and 19(e)(3)(iv)–1 through –3 for discussions of the factors relevant to determining whether a consumer is permitted to shop and whether a creditor has exercised good faith in providing estimates of charges. Proposed comment 37(f)(2)–2 provides examples of the services that might be listed under ‘‘Services You Cannot Shop For.’’ Proposed comment 37(f)(2)–3 provides examples of services that would be listed using a phrase beginning with ‘‘Title—.’’ Proposed comment 37(f)(2)–4 clarifies that the E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules amount listed for the lender’s title insurance coverage is the amount of the premium without any adjustment that might be made for the simultaneous purchase of an owner’s title insurance policy, and it cross-references comment 37(g)(4)–1 for the disclosure of the premium for owner’s title insurance. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 37(f)(3) Services You Can Shop For The fees and charges listed under the subheading ‘‘Services You Can Shop For’’ pursuant to proposed § 1026.37(f)(3) are for services that the creditor would require in connection with its decision to make the loan, but that would be provided by persons other than the creditor or mortgage broker. Only items for which the creditor permits the consumer to shop in accordance with § 1026.19(e)(1)(vi)(A) are listed under this subheading. Thus, all Loan Costs that are not paid to the creditor or mortgage broker are itemized exclusively under either this subheading or the subheading ‘‘Services You Cannot Shop For.’’ Currently, Regulation X provides that third-party services required by the creditor but for which the creditor permits the consumer to shop are to be included, as applicable, in Blocks 4 (‘‘Title services and lender’s title insurance’’) and 6 (‘‘Required services that you can shop for’’) on the RESPA GFE. Regulation X also provides that charges for title services, like charges for origination services, are not itemized on the RESPA GFE, but are disclosed only as a total. See appendix C to Regulation X (instructions for Blocks 3, 4 (‘‘all fees for title searches, examinations, and endorsements, for example, would be included in this total’’), and 6). As discussed in connection with proposed § 1026.37(f)(1) and (2), consumer testing performed on Loan Estimate forms indicated that itemization related to improved performance of the participants in understanding both the services charged and the costs of those services. Participants appeared more likely to negotiate fees and shop for services when provided additional details that helped them to understand the nature of the services and the potential value of shopping for a particular service. Pursuant to § 1026.37(f)(2) and (3), the Bureau proposes to show in the Loan Estimate subtotals and itemized amounts for loan costs, including for title-related services, on the highlighted lines with the subheadings ‘‘Services You Cannot Shop For’’ and ‘‘Services You Can Shop For.’’ The Bureau’s testing of the forms indicates that consumers can easily find and VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 appropriately use the subtotals of these amounts. Pursuant to § 1026.37(f)(3), each item disclosed under the subheading ‘‘Services You Can Shop For’’ must include a descriptive name and the estimated charge, and the creditor must provide a subtotal of all such items. All items for which the fees and charges relate to the provision of title insurance and the handling of the closing must be identified beginning with ‘‘Title—.’’ The creditor may use up to 14 lines to itemize charges under this subheading. The Bureau is proposing the requirements in § 1026.37(f)(3) pursuant to its authority under TILA section 105(a) and RESPA section 19(a) because disclosure of third-party services required by a creditor for consummation of the loan, their component and total charges, and the fact that the creditor will permit the consumer to choose the providers for those services will promote the informed use of credit and more effective advance disclosure of settlement costs, which are purposes of TILA and RESPA respectively. DoddFrank Act sections 1032(a) and 1405(b) are also sources of authority for the proposed requirements in § 1026.37(f)(3). The information disclosed under § 1026.37(f)(3) will enable consumers to understand and negotiate fees, shop for a mortgage loan, and compare the Loan Estimate with any revised Loan Estimate and the Closing Disclosure, thereby ensuring that the features of the mortgage transactions are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the mortgage transaction, in light of the facts and circumstances, consistent with DoddFrank Act section 1032(a). Furthermore, for the reasons stated above, the proposed disclosure is in the interest of consumers and in the public interest, consistent with Dodd-Frank Act section 1405(b). As discussed above, the Bureau is aware of concerns that itemization may encourage creditors to list numerous component charges that the RESPA GFE currently requires to be consolidated. The Bureau invites comment on whether other limits on itemization, in addition to the proposed limits on the number of charges that may be itemized pursuant to § 1026.37(f)(3), should be included in the final rule and, if so, what those limits should be. Proposed comment 37(f)(3)–1 provides cross-references to comments 19(e)(3)(ii)–1 through –3, 19(e)(3)(iii)–2, and 19(e)(3)(iv)–1 through –3 for discussions of determining good faith in PO 00000 Frm 00099 Fmt 4701 Sfmt 4702 51213 estimating the costs for required services when the consumer is permitted to choose the provider of those services. Proposed comment 37(f)(3)–2 provides examples of the services that might be listed under ‘‘Services You Can Shop For.’’ Proposed comment 37(f)(3)–3 provides crossreferences to comments 37(f)(2)–3 and –4 for guidance on services that would be labeled beginning with ‘‘Title—’’ and on calculating the amount disclosed for lender’s title insurance, and it crossreferences comment 37(g)(4)–1 for the disclosure of the premium for owner’s title insurance. 37(f)(4) Total Loan Costs Proposed § 1026.37(f)(4) requires the creditor to disclose, labeled ‘‘Total Loan Costs,’’ the sum of the subtotals disclosed under § 1026.37(f)(1) through (3) for Origination Charges, Services You Cannot Shop For, and Services You Can Shop For, respectively. This total represents all costs that the creditor and mortgage broker impose in connection with the transaction. Although a comparable total is not required to be stated on the current RESPA GFE, the same costs are included in other subtotals on the RESPA GFE. The Bureau believes that grouping and subtotaling these items in this way will provide better information to the consumer about costs that are specific to obtaining the mortgage loan from the creditor. Other costs that the consumer may encounter as part of the transfer of ownership of the property are generally related to items and requirements for which the amounts are controlled by other entities or persons, including governmental jurisdictions and the consumer, and are addressed in proposed § 1026.37(g). Accordingly, disclosure of this information will promote the informed use of credit and more effective advance notice of settlement costs, consistent with TILA section 105(a) and RESPA section 19(a). It will also ensure that the features of the mortgage transactions are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to better understand the costs, benefits, and risks associated with mortgage transactions, in light of the facts and circumstances, consistent with Dodd-Frank Act section 1032(a). Furthermore, for the reasons stated above, the proposed disclosure is in the interest of consumers and in the public interest, consistent with Dodd-Frank Act section 1405(b). 37(f)(5) Item Descriptions and Ordering Proposed § 1026.37(f)(5) requires the creditor to use terminology that briefly E:\FR\FM\23AUP2.SGM 23AUP2 51214 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 and clearly describes each item disclosed under § 1026.37(f). Except for the item for points that the consumer will pay, which must be listed as the first item under the subheading ‘‘Origination Charges,’’ all items must be listed in alphabetical order under the applicable subheading. The current RESPA GFE and early TILA disclosure do not include a similar requirement. The Bureau believes that a consistent listing of the costs that appear on the Loan Estimate and the Closing Disclosure will facilitate the consumer’s comparison of the two disclosure documents and understanding of the transaction as a whole. Accordingly, this requirement will effectuate the purposes of TILA and RESPA by promoting the informed use of credit and more effective advance notice of settlement costs, consistent with TILA section 105(a) and RESPA section 19(a), and will ensure that the features of the mortgage transactions are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to better understand the costs, benefits, and risks associated with mortgage transactions, in light of the facts and circumstances, consistent with Dodd-Frank Act section 1032(a). 37(f)(6) Use of Addenda Proposed § 1026.37(f)(6) provides that addenda may not be used to itemize disclosures required by § 1026.37(f)(1) or (2). If the creditor is not able to itemize all of the charges required to be disclosed in the number of lines provided under § 1026.37(f)(1)(ii) and (f)(2)(ii), the remaining charges must be disclosed as an aggregate amount in the last line permitted under the applicable paragraph. An addendum may be used to itemize disclosures required by § 1026.37(f)(3), or any remaining charges may be disclosed as an aggregate amount in the last line permitted under paragraph (f)(3). The Bureau is proposing the requirements in § 1026.37(f)(6) pursuant to its authority under TILA section 105(a) and RESPA section 19(a) because standardization of the information provided on the disclosures required under § 1026.19(e) will provide consistent information that consumers will be able to use to better understand the mortgage transaction, shop for loans, and compare the Loan Estimate with any revised Loan Estimate and the Closing Disclosure, thereby promoting the informed use of credit and more effective advance disclosure of settlement costs, which are purposes of TILA and RESPA respectively. This standardization will also ensure that the features of the mortgage transactions are fully, accurately, and effectively VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 disclosed to consumers in a manner that permits consumers to more readily understand the costs, benefits, and risks associated with the mortgage transaction, in light of the facts and circumstances, consistent with DoddFrank Act section 1032(a), which is also a source of authority for the proposed requirements. Proposed comment 37(f)(6)–1 clarifies that a creditor is permitted to provide additional disclosures that are required by State law, as long as those disclosures are provided on a document whose pages are separate from, and are not presented as part of, the disclosures provided in accordance with § 1026.37(f). Proposed comment 37(f)(6)–2 provides an example of a label that may be used to reference an addendum as permitted under § 1026.37(f)(6)(ii). 37(g) Closing Cost Details; Other Costs Under section 5(c) of RESPA, creditors must provide mortgage loan applicants with a good faith estimate of the amount or range of charges for specific settlement services the applicant is likely to incur in connection with the consummation of the loan. 12 U.S.C. 2604(c). Section 1024.7 of Regulation X implements this mandate by requiring creditors and mortgage brokers to provide the GFE, which must be completed in accordance with the instructions in appendix C to Regulation X. Appendix C sets out specific instructions for the information that must be disclosed on the GFE, including which loan costs must be included and how to identify those costs on the GFE. As discussed above, Dodd-Frank Act section 1032(f) requires the Bureau to combine these RESPA disclosures with the pre-consummation disclosures required by TILA. In addition to existing TILA disclosure requirements, section 1419 of the Dodd-Frank Act amended TILA section 128(a) to require, in the case of a residential mortgage loan, disclosure of the aggregate amount of settlement charges for all settlement services provided in connection with the loan and the aggregate amount of other fees or required payments in connection with the loan. 15 U.S.C. 1638(a)(17). Pursuant to its authority under DoddFrank Act section 1032(f), TILA section 105(a), and RESPA section 19(a), the Bureau proposes to require creditors to disclose the loan costs and other costs imposed upon the consumer in tables as part of the integrated Loan Estimate. Proposed § 1026.37(f) and (g) implement the early disclosure requirements in TILA and RESPA by setting out details PO 00000 Frm 00100 Fmt 4701 Sfmt 4702 relating to the costs for consummating the mortgage loan, including loan costs and other costs. Based on its consumer testing, the Bureau believes that early disclosure of estimated loan costs and other costs, as set forth in proposed § 1026.37(f) and (g), will improve consumer understanding of the credit and property transactions. The Bureau believes that these disclosures will effectuate the purpose of TILA by promoting the informed use of credit and assuring a meaningful disclosure to consumers. The Bureau believes that the disclosures will also satisfy the RESPA requirement to provide a consumer with a good faith estimate of the amount or range of charges for specific settlement services the consumer is likely to incur in connection with the closing. DoddFrank Act sections 1032(a) and 1405(b) are also sources of authority for the proposed rule. These disclosures will ensure that the features of the mortgage transactions are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the mortgage transaction, in light of the facts and circumstances, consistent with DoddFrank Act section 1032(a). Furthermore, for the reasons stated above, the proposed rule is in the interest of consumers and in the public interest, consistent with Dodd-Frank Act section 1405(b). Proposed § 1026.37(g) requires creditors to disclose as ‘‘Other Costs’’ on the Loan Estimate certain items that are in addition to the Loan Costs that are specifically required by the creditor before consummation of a credit transaction and are disclosed pursuant to § 1026.37(f). The ‘‘Other Costs’’ disclosed pursuant to § 1026.37(g) are necessary to complete the real estate closing. These items usually concern payments for governmental requirements, insurance premiums, and items that are charged by parties to the property transaction other than the creditor. The creditor must disclose under four subheadings individual itemized charges, along with subtotals for categories of those itemized charges. Consumer feedback from the Bureau’s consumer testing indicated that clear amounts for the total costs of the loan and real estate closing were also important to consumers’ understanding of the complete transaction. Consistent with that feedback, under two additional subheadings, the creditor must disclose the total of Other Costs and the total of Loan Costs plus Other Costs. In general, all of these charges are currently required to be disclosed—as itemized or aggregate charges and E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 amounts—on the RESPA GFE, the RESPA settlement statement, or both. Combining these charges and totals into the disclosures required by § 1026.19(e) will enable consumers to understand the services and charges related to the loan and property transactions, shop for the loan and certain services, and compare the Loan Estimate with any revised Loan Estimate and the Closing Disclosure, thereby ensuring that the features of the mortgage transactions are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the mortgage transaction, in light of the facts and circumstances, consistent with Dodd-Frank Act section 1032(a). Proposed comment 37(g)–1 describes the kinds of charges that are disclosed under § 1026.37(g). Proposed comment 37(g)–2 clarifies that items that are paid at or before closing under the real estate contract are not disclosed on the Loan Estimate, except to the extent the creditor is aware of those charges at the time the Loan Estimate is issued. These items will be disclosed, however, in the Closing Disclosure pursuant to § 1026.38(f), (g), (j) and (k). 37(g)(1) Taxes and Other Government Fees Proposed § 1026.37(g)(1) requires the disclosure of taxes and other government fees for recording of documents and transfer taxes assessed against the purchase price of a real estate contract or the loan amount. Recording fees differ from transfer taxes because recording fees are based on the nature or physical characteristics of the document being recorded and are not based on the sales price or loan amount. The Bureau is proposing the requirements in § 1026.37(g)(1) pursuant to its authority under TILA section 105(a) and RESPA section 19(a) because disclosure of taxes and government fees required to be paid in the real estate closing will educate consumers about costs they must be prepared to pay in the transaction, thereby promoting the informed use of credit and more effective advance disclosure of settlement costs, which are purposes of TILA and RESPA respectively. DoddFrank Act sections 1032(a) and 1405(b) are also sources of authority for the proposed requirements in § 1026.37(g)(1). This information also ensures that the features of the mortgage transactions are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the mortgage transaction, in light of the facts and VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 circumstances, consistent with DoddFrank Act section 1032(a). Furthermore, for the reasons stated above, the proposed disclosure is in the interest of consumers and in the public interest, consistent with Dodd-Frank Act section 1405(b). Proposed comment 37(g)(1)–1 clarifies that recording fees are assessed by a government authority in order to record and index documents related to property transfers under State or local law. Proposed comment 37(g)(1)–2 clarifies that government charges that are not transfer taxes are disclosed with recording fees under § 1026.37(g)(1)(i). Proposed comment 37(g)(1)–3 explains that, in general, transfer taxes are State and local government fees on mortgages and home sales that are based on the loan amount or sales price. Proposed comment 37(g)(1)–4 clarifies that the only transfer taxes disclosed under § 1026.37(g)(1) are transfer taxes imposed on the consumer, as determined under State or local law, and that if unpaid transfer taxes can result in a lien being placed on the property of the consumer, the transfer tax is disclosed under § 1026.37(g)(1). The comment further clarifies that if State or local law is unclear, or does not specifically attribute the transfer tax, the creditor may use common practice in the locality of the property to apportion the amount of the transfer tax disclosed as paid by the consumer under § 1026.37(g)(1). This comment is consistent with guidance provided by HUD in the HUD RESPA FAQs p.34, #2 (‘‘GFE-Block 8’’). Proposed comment 37(g)(1)–5 explains that although transfer taxes paid by the seller in a purchase transaction are not disclosed pursuant to § 1026.37(g), they will be disclosed on the Closing Disclosure under § 1026.38(g)(1)(ii). Proposed comment 37(g)(1)–6 clarifies that the lines and labels required under § 1026.37(g)(1) may not be deleted, and that additional items may not be listed under the subheading. 37(g)(2) Prepaids Proposed § 1026.37(g)(2) requires the disclosure of prepaid charges for real estate property taxes, insurance premiums, and other items that must be paid to insure the property or satisfy real estate tax obligations, as well as other charges that must be satisfied before consummation of the credit transaction and the real estate closing. Proposed § 1026.37(g)(2) also prescribes some of the items, and additional information about those items, that must be included under the subheading ‘‘Prepaids.’’ The Bureau is proposing the requirements in § 1026.37(g)(2) pursuant PO 00000 Frm 00101 Fmt 4701 Sfmt 4702 51215 to its authority under TILA section 105(a) and RESPA section 19(a) because disclosure of charges that must be satisfied as part of the mortgage transaction will educate consumers about costs they must be prepared to pay, thereby promoting the informed use of credit and more effective advance disclosure of settlement costs, which are purposes of TILA and RESPA respectively. Dodd-Frank Act sections 1032(a) and 1405(b) are also sources of authority for the proposed requirements. This information ensures that the features of the mortgage transactions are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the transaction, in light of the facts and circumstances, consistent with DoddFrank Act section 1032(a). Furthermore, for the reasons stated above, the proposed disclosure is in the interest of consumers and in the public interest, consistent with Dodd-Frank Act section 1405(b). Proposed comment 37(g)(2)–1 provides examples of other periodic charges that are required to be paid at consummation and are disclosed under § 1026.37(g)(2). Proposed comment 37(g)(2)–2 clarifies that the interest rate disclosed under § 1026.37(g)(2)(iii) is the same interest rate that is disclosed under § 1026.37(b)(2). Proposed comment 37(g)(2)–3 clarifies that the terms ‘‘property taxes,’’ ‘‘homeowner’s insurance,’’ and ‘‘mortgage insurance’’ have the same meaning as those terms are used under § 1026.37(c) and its commentary. Proposed comment 37(g)(2)–4 clarifies that the lines and labels required under § 1026.37(g)(2) may not be deleted. 37(g)(3) Initial Escrow Payment at Closing Proposed § 1026.37(g)(3) requires the disclosure of the initial payments to establish an escrow account to pay for future recurring charges. Disclosure of these amounts is required under § 1024.7 and § 1024.17 of Regulation X, and the items and amounts must be disclosed in Block 9 of the RESPA GFE. Proposed § 1026.37(g)(3) also prescribes some of the items, and additional information about those items, that must be included under the subheading ‘‘Initial Escrow Payment at Closing.’’ The Bureau is proposing the requirements in § 1026.37(g)(3) pursuant to its authority under TILA section 105(a) and RESPA section 19(a) because disclosure of initial payments that consumers are required to make to establish escrow accounts for future recurring charges will educate E:\FR\FM\23AUP2.SGM 23AUP2 51216 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 consumers about costs they must be prepared to pay in the mortgage transaction, thereby promoting the informed use of credit and more effective advance disclosure of settlement costs, which are purposes of TILA and RESPA respectively. DoddFrank Act sections 1032(a) and 1405(b) are also sources of authority for the proposed requirements. This information ensures that the features of the mortgage transactions are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the transaction, in light of the facts and circumstances, consistent with DoddFrank Act section 1032(a). Furthermore, for the reasons stated above, the proposed disclosure is in the interest of consumers and in the public interest, consistent with Dodd-Frank Act section 1405(b). Proposed comment 37(g)(3)–1 clarifies that for any item required to be listed that is not charged to the consumer, the monthly payment amount and time period may be left blank, but the dollar amount for the item must be shown as zero. Proposed comment 37(g)(3)–2 clarifies that the aggregate escrow account adjustment required for the HUD–1 settlement statement under Regulation X § 1024.17(d)(2) is not included on the Loan Estimate, but is included on the Closing Disclosure under § 1026.38(g)(3). Proposed comment 38(g)(3)–3 clarifies that ‘‘property taxes,’’ ‘‘homeowner’s insurance,’’ and ‘‘mortgage insurance’’ have the same meaning as those terms are used under § 1026.37(c) and its commentary. Proposed comment 37(g)(3)–4 clarifies that the lines and labels required under § 1026.37(g)(3) may not be deleted. 37(g)(4) Other Proposed § 1026.37(g)(4) requires the disclosure of any other items that the consumer has become legally obligated to pay in connection with the transaction, to the extent that the existence of these items is known by the creditor at the time the Loan Estimate is issued. The label for any item that is a component of title insurance must include the description ‘‘Title—’’ at the beginning. The label for all items for which the amounts disclosed are premiums for separate optional insurance, warranty, guarantee, or event-coverage products must include the parenthetical ‘‘(optional)’’ at the end. The items disclosed under proposed § 1026.37(g)(4) are not required by the creditor. These items are also not additional coverage or VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 endorsements added to products required by the creditor. Accordingly, they are not disclosed under other paragraphs of proposed § 1026.37(f) or (g) and are disclosed under the subheading ‘‘Other.’’ These items are voluntary products that the consumer may be likely or may have already elected to purchase, and of which the creditor knows or is aware. The Bureau is proposing the requirements in § 1026.37(g)(4) pursuant to its authority under TILA section 105(a) and RESPA section 19(a) because disclosure of payments that consumers are likely to pay in a mortgage transaction will educate consumers about costs they must be prepared to pay at closing, thereby promoting the informed use of credit and more effective advance disclosure of settlement costs, which are purposes of TILA and RESPA respectively. Dodd-Frank Act sections 1032(a) and 1405(b) are also sources of authority for the proposed requirements. This information ensures that the features of the mortgage transactions are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the transaction in light of the facts and circumstances, consistent with DoddFrank Act section 1032(a). Furthermore, for the reasons stated above, the proposed disclosure is in the interest of consumers and in the public interest, consistent with Dodd-Frank Act section 1405(b). Proposed comment 37(g)(4)–1 clarifies that any owner’s title insurance policy premium disclosed under § 1026.37(g)(4) is based on a basic rate, and not an ‘‘enhanced’’ premium. This comment is consistent with guidance provided in the HUD RESPA FAQs p.33, #3 (‘‘GFE-Block 5’’). Proposed comment 37(g)(4)–1 also provides an example of a label for owner’s title insurance and cross-references comment 37(f)(2)–4 for disclosure of the premium for lender’s title insurance. Proposed comment 37(g)(4)–2 clarifies that any title insurance policy disclosed on the Loan Estimate based on a simultaneous issuance calculation must be disclosed by adding the full owner’s title insurance premium plus the simultaneous issuance premium, and then deducting the amount of the lender’s title at the full premium rate. Proposed comment 37(g)(4)–3 provides examples of products to which the description ‘‘(optional’’) applies and cross-references comments 4(b)(7) and (b)(8)–1 through –3 and comments 4(b)(10)–1 and –2 for descriptions and guidance concerning disclosure of PO 00000 Frm 00102 Fmt 4701 Sfmt 4702 premiums for credit life, debt suspension, and debt cancellation coverage. Proposed comment 37(g)(4)–4 provides examples of other items that are disclosed under § 1026.37(g)(4) if known by the creditor at the time the Loan Estimate is issued and refers to comment 19(e)(3)(iii)–3 concerning application of the good faith requirement for services that are not required by the creditor. 37(g)(5) Total Other Costs Proposed § 1026.37(g)(5) requires disclosure under the subheading ‘‘Total Other Costs’’ of the sum of the subtotals disclosed pursuant to paragraphs (g)(1) through (g)(4). The Bureau is proposing the requirements in § 1026.37(g)(5) pursuant to its authority under TILA section 105(a) and RESPA section 19(a) because disclosure of the total of the charges consumers must pay, in addition to charges for consummating the loan, will promote the informed use of credit and more effective advance disclosure of settlement costs, which are purposes of TILA and RESPA respectively. Dodd-Frank Act sections 1032(a) and 1405(b) are also sources of authority for the proposed requirements. This information ensures that the features of the mortgage transactions are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the mortgage transaction in light of the facts and circumstances, consistent with Dodd-Frank Act section 1032(a). Furthermore, for the reasons stated above, the proposed disclosure is in the interest of consumers and in the public interest, consistent with Dodd-Frank Act section 1405(b). 37(g)(6) Total Closing Costs Proposed § 1026.37(g)(6) requires the disclosure under the subheading ‘‘Total Closing Costs’’ of a subtotal of the items disclosed as ‘‘Total Loan Costs’’ and ‘‘Total Other Costs’’ pursuant to paragraphs (f)(4) and (g)(5); the amount of any generalized lender credits to be provided at consummation, stated as a negative number; and the sum of the subtotal of loan and other costs and the (negative) amount of lender credits. The Bureau is proposing the requirements in § 1026.37(g)(6) pursuant to its authority under TILA section 105(a) and RESPA section 19(a) because disclosure of the total amounts consumers must pay to consummate the loan and close the property transaction will promote the informed use of credit and more effective advance disclosure of settlement costs, which are purposes of TILA and RESPA respectively. Dodd- E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Frank Act sections 1032(a) and 1405(b) are also sources of authority for the proposed requirements. This information ensures that the features of the mortgage transactions are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the mortgage transaction in light of the facts and circumstances, consistent with Dodd-Frank Act section 1032(a). Furthermore, for the reasons stated above, the proposed disclosure is in the interest of consumers and in the public interest, consistent with Dodd-Frank Act section 1405(b). Proposed comment 37(g)(6)(iii)–1 clarifies that generalized lender credits not associated with a particular service are disclosed under § 1026.37(g)(6)(iii), but lender credits for specific items disclosed on the Loan Estimate are disclosed as paid by others on the Closing Disclosure under § 1026.38(f) and (g), as applicable. 37(g)(7) Item Descriptions and Ordering In identifying the items listed as Other Costs, the creditor is required to use terminology that briefly and clearly describes the item. All items must be listed in alphabetical order following the items prescribed to be included under the subheading. The current RESPA GFE and early TILA disclosure do not include a similar requirement. The Bureau is proposing the requirements in § 1026.37(g)(7) pursuant to its authority under TILA section 105(a) and RESPA section 19(a) because a consistent listing of the costs that appear on the Loan Estimate and the Closing Disclosure will facilitate the consumer’s comparison of the two disclosure documents and understanding of the transaction as a whole, thereby promoting the informed use of credit and more effective advance disclosure of settlement costs, which are purposes of TILA and RESPA respectively. This requirement also will ensure that the features of the mortgage transactions are fully, accurately, and effectively disclosed to consumers in a manner that permit consumers to understand the costs, benefits, and risks associated with the mortgage transaction in light of the facts and circumstances, consistent with Dodd-Frank Act section 1032(a). 37(g)(8) Use of Addenda Proposed § 1026.37(g)(8) provides that addenda may not be used to itemize disclosures required by § 1026.37(g). If the creditor is not able to itemize all of the charges required to be disclosed in the number of lines provided under a subheading, the remaining charges must VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 be disclosed as an aggregate amount in the last line permitted under the applicable subheading. The Bureau is proposing the requirements in § 1026.37(g)(8) pursuant to its authority under TILA section 105(a) and RESPA section 19(a) because standardization of the information provided on the disclosures required under § 1026.19(e) will provide consistent information that consumers will be able to use to better understand the mortgage transaction, shop for loans, and compare the Loan Estimate with any revised Loan Estimate and the Closing Disclosure, thereby promoting the informed use of credit and more effective advance disclosure of settlement costs, which are purposes of TILA and RESPA respectively. This standardization will also ensure that the features of the mortgage transactions are fully, accurately, and effectively disclosed to consumers in a manner that permit consumers to more readily understand the costs, benefits, and risks associated with the mortgage transaction in light of the facts and circumstances, consistent with Dodd-Frank Act section 1032(a), which is also a source of authority for the proposed requirements. Proposed comment 37(g)(8)–1 clarifies that a creditor is permitted to provide additional disclosures that are required by State law, as long as those disclosures are provided on a separate document whose pages are physically separate from, and are not presented as part of, the disclosures provided in accordance with § 1026.37. 37(h) Calculating Cash To Close Pursuant to its authority under TILA section 105(a) and Dodd-Frank Act section 1032(a), the Bureau proposes § 1026.37(h), which requires the disclosure of the calculation of an estimate of the cash needed from the consumer at consummation of the transaction. In addition to promoting the informed use of credit (which is a purpose of TILA), this disclosure would ensure that the features of the transaction are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the product, in light of the facts and circumstances, consistent with section 1032(a) of the Dodd-Frank Act. Proposed comment 37(h)-1 clarifies that the labels to be used on the Loan Estimate for each amount must match their description in proposed § 1026.37(h)(1) to (7). PO 00000 Frm 00103 Fmt 4701 Sfmt 4702 51217 37(h)(1) Total Closing Costs 37(h)(2) Closing Costs To Be Financed Under § 1026.37(h)(1), the total closing costs would be disclosed as calculated under § 1026.37(g)(6) as a positive number. Under § 1026.37(h)(2), the amount of the closing costs to be paid from loan proceeds would be disclosed as a negative number. 37(h)(3) Downpayment and Other Funds From Borrower Under § 1026.37(h)(3), the amount of the downpayment and other funds from consumer at consummation would be disclosed as a positive number. In a purchase transaction the downpayment would be calculated as the difference between the purchase price of the property and the principal amount of the credit. In all other transactions, the funds from the consumer would be calculated under § 1026.37(h)(5). 37(h)(4) Deposit Under proposed § 1026.37(h)(4), the amount that is paid to the seller or held in trust or escrow by a third party pursuant to the terms of a contract for sale of real estate disclosed as a negative number. Proposed comment 37(h)(4)–1 clarifies that in any transaction other than a purchase transaction, the amount disclosed under proposed § 1026.37(h)(4) must be $0. 37(h)(5) Funds for Borrower Under proposed § 1026.37(h)(5), the amounts to be disclosed under both § 1026.37(h)(3) and § 1026.37(h)(5) are calculated by subtracting the amount of debt being satisfied by the real estate transaction and the amount of the credit extended by the new loan, excluding any amount under § 1026.37(h)(2) since that amount of the credit extended has already been accounted for in the cash to close calculation by inclusion in § 1026.37(h)(2). Funds for Borrower’’ is intended to generally represent the amount anticipated to be disbursed to the consumer or used at consumer’s discretion at consummation of the transaction, such as in cash-out refinance transactions. The determination of whether the transaction will result in ‘‘Funds for Borrower’’ is made under proposed § 1026.37(h)(5). When the result of the calculation is positive, that amount is disclosed under § 1026.37(h)(3), and $0.00 is disclosed under § 1026.37(h)(5). When the result of the calculation is negative, that amount is disclosed under § 1026.37(h)(5), and $0.00 is disclosed under § 1026.37(h)(3). When the result is $0.00, $0.00 is disclosed in both §§ 1026.37(h)(3) and 1026.37(h)(5). E:\FR\FM\23AUP2.SGM 23AUP2 51218 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 37(h)(6) Seller Credits Under proposed § 1026.37(h)(6), the amount of any seller credit, to the extent known by the creditor, is disclosed as a negative number. Proposed comment 37(6)–1 clarifies that seller credits known by the creditor at the time of application are disclosed under § 1026.37(h)(6), and that seller credits that are not known by the creditor are not disclosed under § 1026.37(h)(6). 37(h)(7) Adjustments and Other Credits Under proposed § 1026.37(h)(7) the amount of other credits for all loan costs and other costs, to the extent known, that are to be paid by persons other than the loan originator, creditor, consumer, or seller disclosed as a negative number. Proposed comment 37(h)(7)–1 clarifies that amounts expected to be paid by third parties not involved in the transaction, such as gifts from family members and not otherwise identified under § 1026.37(h), would be included in this amount to the extent known by the creditor. Proposed comment 37(h)(7)–2 clarifies that the term ‘‘persons’’ as used in § 1026.37(h)(7) includes all individuals and any entity, regardless of the legal structure of such entity. Proposed comment 37(h)(7)–3 clarifies that only credits from parties other than the creditor or seller can be disclosed pursuant to § 1026.37(h)(7). Seller credits and credits from the creditor are disclosed pursuant to § 1026.37(h)(6) and § 1026.37(g)(6)(ii), respectively. Proposed comment 37(h)(7)–4 clarifies that other credits known by the creditor at the time of application are disclosed under § 1026.37(h)(7), and that other credits that are not known by the creditor are not disclosed under § 1026.37(h)(6). mstockstill on DSK4VPTVN1PROD with PROPOSALS2 37(h)(8) Estimated Cash To Close Under proposed § 1026.37(h)(8) the total of the amounts disclosed under proposed § 1026.37(h)(1) to (7) is disclosed. Proposed comment 37(h)(8)-1 clarifies that the sum total of § 1026.37(h)(1) through (7) must be disclosed pursuant to § 1026.37(h)(8) as either a positive number, a negative number, or zero. A positive number indicates the estimated amount that the consumer can be expected to pay at consummation to complete the transaction. A negative number indicates the estimated amount that the consumer can receive from the transaction at consummation. A result of zero indicates that the consumer is anticipated to neither need to pay any amount or receive any amount from the transaction at consummation. VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 37(i) Adjustable Payment Table For certain credit transactions secured by a dwelling, TILA section 128(b)(2)(C)(ii) requires the disclosure of examples of adjustments to the regular required payment on the extension of credit based on the change in the interest rates specified by the contract. Among the examples must be the maximum regular required payment based on the maximum interest rate allowed under the contract. While this section requires examples based on changes to the interest rates, the requirement is triggered if either the interest rate may change or the ‘‘regular payments may otherwise be variable.’’ 15 U.S.C. 1638(b)(2)(C)(ii). TILA section 128(b)(2)(C)(ii) does not, however, require the disclosure of the existence of loan terms that may cause the periodic payment to adjust without a change to the interest rate. The Bureau believes that, to promote the informed use of credit, loan terms that may cause the periodic principal and interest payment to adjust without a change to the interest rate (such as an optional payment loan) or include a period during which the payment may not pay principal (such as an interestonly period) or is not required to make payments should be clearly disclosed to consumers. In the Bureau’s consumer testing, participants generally were able to use this information to evaluate the credit terms of the loan disclosed. For example, the Bureau provided mortgage disclosures for interest-only loans to participants using a prototype of an ‘‘adjustable payment table’’ at its consumer testing. The table displayed whether the loan had an interest-only, optional-payment, or step-payment period; the length of such period; the amount of the periodic principal and interest payment at the first adjustment; the frequency and amounts of subsequent adjustments; and the maximum possible principal and interest payment under the terms of the loan. Participants were able to use this table to determine the presence of the interest-only period and the length of the period, as well as how the principal and interest payments would change as a result. Also, participants were able to understand that the purpose of the table generally was to inform them about such features. They were able to determine from the prototype table that the credit terms did not include one of the other features, such as an optionalpayment or step-payment period. Proposed § 1026.37(i) requires an Adjustable Payment (AP) table to disclose examples of the required periodic principal and interest payment, PO 00000 Frm 00104 Fmt 4701 Sfmt 4702 including the maximum possible required principal and interest payment, for loans with terms that allow the principal and interest payment to adjust not based on adjustments to the interest rate. In contrast, proposed § 1026.37(j) requires provision of an Adjustable Interest Rate table for credit transactions with terms that permit the interest rate to adjust after consummation. Proposed § 1026.37(i)(1) through (3) requires the disclosure to state affirmatively or negatively whether the loan has an interest-only, payment-option, or steppayment period, and the length of such period. Proposed § 1026.37(i)(4) also requires the disclosure to state affirmatively or negatively whether the loan has a seasonal payment feature and the period during which periodic payments are affected by such feature. As discussed above with respect to proposed § 1026.37(a)(10), the Bureau understands that some loans may be structured so that periodic principal and interest payments are not required to be made by the consumer in between specified unit-periods on a regular basis. The format of the table as required by proposed § 1026.37(o), and as illustrated by form H–24 in appendix H to Regulation Z, provides the affirmative or negative statement in bold text in the form of a question and answer. In addition, the examples of the periodic principal and interest payments are set apart from these answers by a subheading in bold text. The Bureau believes, based on consumer testing, that this format displays the information in a readily visible, clear, and understandable manner for consumers. The Bureau proposes these requirements pursuant to TILA section 128(b)(2)(C)(ii), and its authority under TILA section 105(a), section 1032(a) of the Dodd-Frank Act, and, for residential mortgage loans, section 1405(b) of the Dodd-Frank Act. The Bureau proposes to use its authority under TILA section 105(a) to require this information to be disclosed for all transactions subject to § 1026.19(e) and (f). The Bureau believes this information may effectuate the purposes of TILA by allowing consumers to compare more readily the different loan terms available to them, and specifically, whether they contain such adjustable or seasonal payment terms. In addition, consistent with section 1032(a) of the Dodd-Frank Act, this disclosure would ensure that the features of the transaction are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks. In addition, the Bureau believes this information may improve consumer awareness and E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules understanding of transactions involving residential mortgage loans and is in the interest of consumers and the public interest. Proposed comment 37(i)–1 clarifies that under § 1026.37(i), the AP table may only be disclosed if the periodic principal and interest payment may change after consummation based on an adjustment that is not an adjustment to the interest rate, or if the transaction is a seasonal payment product as described in proposed § 1026.37(a)(10)(ii)(E). The creditor is not permitted to disclose the table if the loan terms do not meet these requirements, even if the table is left blank or disclosed with an ‘‘N/A’’ within each row. The Bureau believes that the inclusion of the AP table in such cases would be unduly distracting and confusing to a consumer and could contribute to information overload— especially if an entire table is included only to be marked ‘‘not applicable.’’ As the information within the table must be determined dynamically, depending on each transaction’s terms, the Bureau believes a requirement that it be omitted when not applicable is unlikely to be a significant additional burden. This comment references proposed comment 37–1, which clarifies the general permission in proposed § 1026.37 to provide the required disclosures ‘‘as applicable’’ is subject to the more specific prohibition in proposed § 1026.37(i), which does not permit disclosure of the AP table when it is not applicable. As the two tables’ numbers of rows and columns are determined dynamically, depending on each transaction’s terms, the Bureau believes a requirement that they be omitted when not applicable is unlikely to be a significant additional burden. The Bureau seeks comment on whether this dynamic inclusion/exclusion requirement would be unduly burdensome for creditors. Proposed comment 37(i)–2 provides guidance and examples of how the information required by proposed § 1026.37(i)(1) through (4) should be disclosed. Proposed comment 37(i)(5)–1 clarifies that the applicable unit-period should be disclosed in the subheading required by proposed § 1026.37(i)(5). Proposed comment 38(i)(5)–2 provides guidance on how to disclose the first payment adjustment required to be disclosed by proposed § 1026.37(i)(5)(i) when the exact payment number is unknown at the time of the disclosure. Proposed comment 38(i)(5)–3 provides guidance regarding how to disclose the frequency of adjustments to the periodic principal and interest payment after the initial adjustment, as required by VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 proposed § 1026.37(i)(5)(ii). Proposed comment 37(i)(5)–4 provides guidance regarding how to calculate the maximum periodic principal and interest payment for purposes of the disclosure required by proposed § 1026.37(i)(5)(iii). The format required by proposed § 1026.37(o), and illustrated by forms H–24(b) and (c) in appendix H to this part, provides the information required by proposed § 1026.37(i) in a concise, organized table. This table appears immediately adjacent to the Adjustable Interest Rate (AIR) Table required by proposed § 1026.37(j) for loans that also permit the interest rate to adjust after consummation. The table uses bold text for the questions and capitalized ‘‘yes’’ and ‘‘no’’ text for the answers required by proposed § 1026.37(i)(1), (2), (3), and (4). The AP table also uses bold text for the subheading required by proposed § 1026.37(i)(5). Based on its testing, the Bureau believes this format displays the information in a clear, readily visible, and understandable manner for consumers. 37(j) Adjustable Interest Rate Table Currently, TILA does not expressly require disclosure of the interest rate for closed-end credit. However, as noted above, for closed-end credit secured by a dwelling, TILA section 128(b)(2)(C)(ii) requires disclosure of examples of the periodic principal and interest payment based on changes to the interest rate, including the maximum principal and interest payment during the life of the loan. 15 U.S.C. 1638(b)(2)(C)(ii). Regulation Z § 1026.18(s) currently requires, for closed-end credit transactions with adjustable interest rates secured by real property or a dwelling, disclosure of examples of the interest rate and periodic principal and interest payments, including the maximum of these amounts under the terms of the loan. For federally related mortgage loans, § 1024.7(d) of Regulation X currently requires the summary table on page one of the RESPA GFE to disclose the initial interest rate, labeled ‘‘Your initial interest rate is.’’ Then below another row of the summary table stating the initial monthly payment, the RESPA GFE states whether the interest rate is adjustable as an affirmative or negative answer, labeled ‘‘Can your interest rate rise?’’ If the answer is affirmative, the RESPA GFE states the maximum interest rate and when the first change in the interest rate will occur within the following sentence: ‘‘It can rise to a maximum of __%. The first change will be in _____.’’ PO 00000 Frm 00105 Fmt 4701 Sfmt 4702 51219 The Bureau believes that loan terms that can cause the interest rate to adjust should be clearly disclosed to consumers. At the Bureau’s consumer testing, participants generally stated that information regarding potential changes to the interest rate was important in their evaluation of a loan. Participants generally understood that the interest rate affected the amount of interest due under the loan and used the information regarding potential changes to the interest rate to evaluate loans. Although proposed § 1026.37(b)(2) provides key information about interest rate adjustments, the Bureau believes more detail regarding an adjustable interest rate is important because it would provide consumers with additional detail regarding potential changes to the interest and periodic payments that may be useful in evaluating and comparing loans. The Bureau provided mortgage disclosures for adjustable interest rate loans to participants using a prototype of an ‘‘Adjustable Interest Rate Table’’ at its consumer testing. The table displayed information about the index and margin applicable to the loan, the initial interest rate, the minimum and maximum interest rates during the life of the loan, the frequency of changes to the interest rate, and limits on the interest rate changes. Participants were able to understand that the purpose of the table generally was to inform them about the adjustable interest rate terms under the loan and often used the table to compare adjustable-rate loans. The table enabled consumers to determine the interest rate terms of the transaction and to compare two adjustable-rate loans with different terms. Therefore, the Bureau proposes to use its authority under TILA section 105(a), section 1032(a) of the Dodd-Frank Act, and, for residential mortgage loans, section 1405(b) of the Dodd-Frank Act to require more detailed information regarding the terms of an adjustable interest rate to be disclosed in a separate table, called the Adjustable Interest Rate (AIR) Table, under proposed § 1026.37(j). The information regarding the index and margin applicable to the interest rate changes, the lifetime cap and floor on the interest rate, and limits on interest rate adjustments are not currently provided together to consumers in a clear, readily visible, and understandable manner. Consumers can find this information within the promissory note, but they typically do not receive the promissory note until they are at the closing table. Disclosure of this information in the Loan Estimate and Closing Disclosure will enable consumers to verify whether these terms E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51220 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules have changed during the loan process. This is especially important if the index and margin have changed or the lifetime maximum interest rate has changed, because such changes can significantly affect the amounts of periodic payments over the life of the loan. As described above, participants in the Bureau’s consumer testing used much of this information and generally considered interest rate information to be an important factor in evaluating a loan. Participants were able to compare this information between loans and between the disclosures provided after application and prior to loan closing. The Bureau believes this information may enable consumers to understand and compare credit terms more readily, effectuating the purposes of TILA. For similar reasons, the Bureau believes this disclosure will ensure that the features of the transactions are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks, in light of the facts and circumstances, consistent with section 1032(a) of the Dodd-Frank Act. The Bureau also believe this information will improve consumer awareness and understanding of transactions involving residential mortgage loans through the use of disclosures, and is in the interest of consumers and in the public interest. Proposed § 1026.37(j) requires disclosure of the index and margin for an adjustable rate loan for which the interest rate will adjust according to an external index. For a loan with an interest rate that changes based on scheduled or pre-determined interest rate adjustments and does not also change based on the adjustment of an external index, such as a ‘‘step-rate’’ product, proposed § 1026.37(j) requires disclosure of the amount of any adjustments to the interest rate that are scheduled and their frequency. The table also requires disclosure of: (i) The interest rate at consummation of the loan transaction; (ii) the minimum and maximum possible interest rates after the introductory rate expires; (iii) the maximum possible change for the first adjustment of the interest rate; (iv) the maximum possible change for subsequent adjustments of the interest rate; (v) the number of months after interest for the first regularly scheduled periodic principal and interest payment begins to accrue when the interest rate may first change; and (vi) the frequency of subsequent interest rate adjustments. Proposed comment 37(j)–1 clarifies that the table required by proposed § 1026.37(j) may only be provided in the Loan Estimate when the interest rate may change after consummation. The VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 creditor is not permitted to disclose the table in the Loan Estimate if the interest rate will remain fixed, even if the table is left blank or disclosed with an ‘‘N/A’’ within each row. As with the AP table, the Bureau believes that the inclusion of the AIR table in such cases would be unduly distracting and confusing to a consumer and potentially cause information overload—especially if an entire table is included only to be marked ‘‘not applicable.’’ As the information within the table must be determined dynamically, depending on each transaction’s terms, the Bureau believes a requirement that it be omitted when not applicable is unlikely to be a significant additional burden. In the discussion of proposed § 1026.37(i) above, the Bureau seeks comment on whether this dynamic inclusion/ exclusion requirement would be unduly burdensome for creditors. Proposed comment 37(j)(1)–1 provides guidance regarding how the name of the index may be shortened. Proposed comment 37(j)(2)–1 clarifies that the table discloses the information required by proposed § 1026.37(j)(2) only if the loan does not also permit the interest rate to adjust according to an external index. Proposed comment 37(j)(3)–1 provides guidance regarding the initial interest rate that must be disclosed. Proposed comment 37(j)(4)–1 clarifies how the minimum interest rate should be disclosed if the legal obligation does not state a minimum rate. Proposed comment 37(j)(4)–2 clarifies how the maximum interest rate should be disclosed if the legal obligation does not state a maximum interest rate. While § 1026.30 currently provides that a creditor must include a maximum interest rate in any closedend consumer credit contract secured by a dwelling for which the annual percentage rate may increase after consummation, that section applies only to transactions secured by a dwelling. The disclosure required by proposed § 1026.37(j)(4) applies to transactions subject to § 1026.19(e), which includes consumer credit transactions secured by real property, which may not include a dwelling. Proposed comment 37(j)(5)–1 clarifies that if the exact month of the first adjustment to the interest rate is not known at the time the disclosure is provided, the earliest possible month must be disclosed under proposed § 1026.37(j)(6). Proposed comment 37(j)(6)–1 clarifies that when more than one limit applies to subsequent adjustments to the interest rate, the largest amount must be disclosed under proposed § 1026.37(j)(6). PO 00000 Frm 00106 Fmt 4701 Sfmt 4702 The format required by proposed § 1026.37(o), and illustrated by proposed form H–24(C) in appendix H to this part, provides the information required by proposed § 1026.37(j) in a concise, single table. This table appears immediately adjacent to the AP table required by proposed § 1026.37(i) for loans that permit the periodic principal and interest payment to adjust based on an adjustment other than an adjustment to the interest rate. The table uses concise labels and bold subheadings for disclosures of the frequency of interest rate changes and the limits on interest rate changes. Based on its testing, the Bureau believes this format displays the information in a clear, readily visible, and understandable manner for consumers. 37(k) Contact Information Under TILA section 128(a)(1) and Regulation Z § 1026.18(a), the TILA disclosures must include the identity of the creditor. Comment 18(a)–1 clarifies that the ‘‘identity’’ of the creditor must include the name of the creditor, but may also include the creditor’s address and/or telephone number. As stated in appendix C to Regulation X, the RESPA GFE must include the name, address, phone number, and email address (if any) of the loan originator. TILA, RESPA, and their implementing regulations do not currently require the disclosure of contact information for the individual loan officer, however. Therefore, the Bureau is proposing to require that the Loan Estimate contain certain contact information for the loan officer as set forth in proposed § 1026.37(k) based on its authority under TILA section 105(a), RESPA section 19(a), Dodd-Frank Act section 1032(a), and, for residential mortgage loans, Dodd-Frank Act section 1405(b). The Bureau believes that this contact information will effectuate the purposes of TILA and RESPA by facilitating the informed use of credit and ensuring that consumers are provided with greater and more timely information on the costs of the settlement process. Providing consumers with multiple types of contact information for the loan officers with whom they interact on the transaction will allow consumers easier access to information relevant to the transaction (including costs), which in turn ensures that the features of the transaction are fully, accurately, and effectively disclosed to consumers in a matter that permits consumers to understand the costs, benefits, and risks associated with the transaction in light of the facts and circumstances, consistent with Dodd-Frank Act section 1032(a). The Bureau also believes such E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules disclosure will improve consumers’ awareness and understanding of residential mortgage transactions, which is in the interest of consumers and the public, consistent with Dodd-Frank Act section 1405(b). In light of the differing requirements under TILA and RESPA with regard to the types of contact information disclosed on the early TILA disclosure and RESPA GFE, respectively, the Bureau also is proposing § 1026.37(k) based on its mandate under sections 1032(f), 1098, and 1100A of the DoddFrank Act to propose rules and forms that combine the disclosures required under TILA and sections 4 and 5 of RESPA into a single, integrated disclosure for mortgage loan transactions covered by those laws. As discussed above, appendix C to Regulation X states that the RESPA GFE must include the name, address, phone number, and email address (if any) of the loan originator. Thus, as part of the Bureau’s statutory mandate to integrate the TILA and RESPA disclosures, the Bureau must integrate the disclosures currently required under Regulation X with the TILA-mandated disclosures of the creditor’s identity, discussed above. Furthermore, TILA section 129B(b)(1)(B), 15 U.S.C. 1639b(b)(1)(B), which was added by section 1402(a)(2) of the Dodd-Frank Act, mandates that each mortgage originator include on all loan documents any unique identifier of the mortgage originator provided by the Nationwide Mortgage Licensing System and Registry (NMLSR or NMLS). TILA section 129B(b)(1)(B) will be implemented in a separate rulemaking. The Bureau proposes to use its authority under TILA section 105(a) and DoddFrank Act sections 1032(a) and, for residential mortgage loans, 1405(b) of the Dodd-Frank Act to propose § 1026.37(k) for transactions subject to proposed § 1026.19(e). Proposed § 1026.37(k) requires creditors to provide certain contact and licensing information for themselves, the mortgage broker, and their respective loan officers, as applicable. The Bureau expects to harmonize this proposal with the rulemaking implementing TILA section 129B(b)(1)(B). The Bureau believes that requiring on the Loan Estimate the disclosure of the name and NMLSR identification number (NMLSR ID) number, if any, for the creditor, mortgage broker, and the loan officers employed by such entities, as applicable (or, if none, the license number or other unique identifier, if any, issued by the applicable State, locality, or other regulatory body with responsibility for licensing and/or registering such entity’s or individual’s VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 business activities) may provide consumers with the information they need to conduct the due diligence necessary to ensure that any creditor, mortgage broker, and associated loan officer selected to originate the loan are appropriately licensed. Having this information may help consumers assess the risks associated with services and service providers retained in connection with the transaction, which in turn promotes the informed use of credit (consistent with TILA section 105(a)), ensures that consumers are provided with greater and more timely information on the costs of the settlement process (consistent with RESPA section 19(a)), ensures that the features of the transaction are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the transaction in light of the facts and circumstances (consistent with DoddFrank Act section 1032(a)), and improves consumers’ awareness and understanding of residential mortgage transactions, which is in the interest of consumers and the public (consistent with Dodd-Frank Act section 1405(b)). Thus, under the master heading ‘‘Additional Information About This Loan,’’ proposed § 1026.37(k)(1) requires the name and NMLSR ID, if any, for the creditor and the mortgage broker, if applicable. Proposed § 1026.37(k)(2) requires the name and NMLSR ID for the loan officer associated with the creditor and mortgage broker identified in proposed § 1026.37(k)(1), if applicable. In the event the creditor, mortgage broker, or individual loan officer has not been assigned an NMLSR ID, proposed § 1026.37(k)(1) and (2) require the license number or other unique identifier issued by the applicable jurisdiction or regulating body with which the creditor or mortgage broker is licensed and/or registered to be disclosed, if any. Proposed § 1026.37(k)(3) requires an email address and phone number for each loan officer identified in proposed § 1026.37(k)(2). Proposed comment 37(k)–1 provides a description of the NMLSR ID. Proposed comment 37(k)–1 also references provisions of the Secure and Fair Enforcement for Mortgage Licensing Act of 2008 (SAFE Act) requiring individuals to register or obtain a license through the NMLSR, and clarifies that the information required in § 1026.37(k)(1) and (2) must be provided for any creditor, mortgage broker, and loan officer that has obtained an NMLSR ID. Proposed comment 37(k)–2 provides PO 00000 Frm 00107 Fmt 4701 Sfmt 4702 51221 clarification as to the nature of the license or other unique identifier that is to be disclosed in the event the creditor, mortgage broker, or individual loan officer has not been assigned an NMLSR ID. Proposed comment 37(k)–3 clarifies that the loan officer is the individual who interacts most frequently with the consumer and who has an NMLSR identification number or, if none, a license number, or other unique identifier to be disclosed under proposed § 1026.37(k)(2), as applicable. 37(l) Comparisons TILA generally focuses on disclosing the long-term cost of credit. However, many of the disclosures required by the statute have proven confusing for consumers. As discussed below and in part II above, Federal agencies have long recognized that certain statutorilyrequired disclosures, such as the finance charge and amount financed, are not effective for communicating the cost of credit to consumers and that, in some cases, the disclosures hinder consumers’ ability to understand their credit terms. One problem with the TILA disclosures is consumer confusion between common contract terms, such as interest rate and loan amount, and the required statutory disclosures. For example, as discussed below, consumer testing conducted by the Board indicates that consumers are confused about the difference between the required TILA disclosure of the ‘‘amount financed’’ and the amount of their loan or sale price of the property. Similarly, the Board-HUD Joint Report and consumer testing conducted by the Board and the Bureau indicates consumer confusion over the difference between the contract interest rate and the APR, in part because both are expressed in the form of a rate and in part because of the difficulty in communicating to consumers the meaning of the APR. Third, the TILA disclosures focus on the cost of credit over the entire life of the loan, which is of limited use in the context of mortgage lending since consumers generally do not hold those loans for the entire loan term. As discussed below and in part III above, the results of the Bureau’s consumer testing is consistent with these concerns. The Bureau believes that providing consumers with useful tools to compare loans is critical to carrying out the purposes of TILA, RESPA, and the Dodd-Frank Act. Accordingly, for the reasons described below, the Bureau is proposing to group several key metrics together on the first page of the Loan Estimate and shift others to the last page of the Loan Estimate. In addition, the E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51222 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules Bureau is proposing to provide certain items only on the Closing Disclosure because they are less useful to consumers early in the lending process and create the risk of undermining the effectiveness of the Loan Estimate. The Bureau proposes this approach to the TILA disclosures because consumer testing conducted by the Bureau, as well as prior testing conducted by the Board, strongly indicates that consumers benefit from a disclosure that highlights loan terms that are useful to consumers in evaluating the cost of credit and consumers’ ability to afford those costs, such as the interest rate, monthly payment amount, and amount of cash needed to close the loan, and deemphasizes terms that have proven confusing or unhelpful to consumers. The proposed rule shifts some statutorily required disclosures from the first page because the Bureau’s consumer testing shows that consumers benefit from this approach. The proposed forms focus on presenting the basic loan terms and risk features to consumers first, because these disclosures are critical to evaluating affordability and facilitating comparison of loans. The Bureau’s consumer testing confirms that consumers are able to locate the longer-term measures of the cost of credit, notwithstanding the fact that the proposed forms shift those disclosures from the first page of the disclosure. Moreover, the Bureau’s consumer testing suggests that moving the disclosure of the APR away from the disclosure of the loan’s contract interest rate and placing the APR with other long-term metrics may reduce consumer confusion and highlight the APR as a special tool for comparing costs over time. Accordingly, proposed § 1026.37(l) requires creditors to disclose, under the master heading ‘‘Additional Information About This Loan,’’ information required by TILA section 128(a)(4), (5), (8), and (19) in a separate table under the heading ‘‘Comparisons,’’ along with the statement, ‘‘Use these measures to compare this loan with other loans.’’ Specifically, the table required by proposed § 1026.37(l) must contain the total payments (of principal, interest, mortgage insurance, and loan costs) a consumer will have made through the end of the 60th month after the due date of the first periodic payment (In 5 Years), the annual percentage rate (APR), and the total interest percentage (TIP), as described in § 1026.37(l)(1) through (3). Pursuant to proposed § 1026.37(o) and proposed form H–24, the table required by proposed § 1026.37(l) will appear on the final page of the Loan Estimate, apart from VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 the key loan terms identified on the first page of the Loan Estimate. Based on research regarding consumer comprehension and behavior and the results of the Bureau’s consumer testing, as discussed above, the Bureau believes that the disclosure of these calculations on the final page of the Loan Estimate and apart from the key loan terms may enhance the overall understanding of the disclosures. 37(l)(1) In Five Years TILA section 128(a)(5) and (8) requires creditors to disclose the sum of the amount financed and the finance charge using the term ‘‘Total of Payments,’’ and a descriptive explanation of that term. 15 U.S.C. 1638(a)(5), (8). Current § 1026.18(h) implements these statutory provisions by requiring creditors to disclose the ‘‘total of payments,’’ using that term, and a descriptive explanation that the figure represents the amount the consumer will have paid after making all scheduled payments. Current comment 18(h)–2 provides that creditors calculate the total of payments amount for transactions subject to current § 1026.18(s) using the rules in current § 1026.18(g) and associated commentary and, for adjustable-rate transactions, comments 17(c)(1)–8 and –10. Current comment 18(g)–1 provides guidance to creditors on the amounts to be included in the total of payments calculation. Current comment 18(h)–1 allows creditors to revise the total of payments descriptive statement for variable-rate transactions to convey that the disclosed amount is based on the annual percentage rate and may change. In addition, current comments 18(h)–3 and –4 permit creditors to omit the total of payments disclosure in certain singlepayment transactions and for demand obligations that have no alternate maturity rate. The total of payments disclosure has historically been confusing for consumers. For example, consumer testing conducted for purposes of the Board’s 2009 Closed-End Proposal found that many consumers did not understand the total of payments disclosure and that, even when consumers understood the meaning, most did not consider it important in their decision-making process. Macro 2009 Closed-End Report at 11, v. Based on the Board’s testing and prior research about the total of payment disclosure, the Bureau considered alternative metrics that might prove more useful to consumers. As discussed above, one problem with the TILA-required disclosures is that they are calculated over the entire length of the loan, PO 00000 Frm 00108 Fmt 4701 Sfmt 4702 although the Bureau understands that consumers may typically only hold mortgage loans for five to seven years before selling the property or refinancing. Accordingly, the total of payments over the life of the loan is such a large number that consumers often find it overwhelming or unrealistic, and therefore not a meaningful disclosure of the cost of credit. Furthermore, the total of payments over the life of the loan does not provide an accurate basis for identifying the lowest cost loan for the time a consumer will realistically hold the loan. Since the Board’s testing has already shown that consumers do not understand the total of payments disclosure, the Bureau’s testing focused on expressions of dollar amounts that are more likely to be understood and used by consumers. The Bureau also recognized that simply providing one disclosure would not give consumers an accurate view of how much their payments actually reduce the principal balance of the loan, which would help consumers pick the loan that puts them in the best financial position after the five to seven year mark if they do not sell the property or refinance. Accordingly, the Bureau developed a two-element disclosure. First, proposed § 1026.37(l)(1)(i) requires the creditor to disclose the dollar amount of the total principal, interest, mortgage insurance, and loan costs (disclosed pursuant to proposed § 1026.37(f)) scheduled to be paid through the end of the 60th month after the due date of the first periodic payment, expressed as a dollar amount, along with the statement ‘‘Total you will have paid in principal, interest, mortgage insurance, and loan costs.’’ Proposed comment 37(l)(1)(i)–1 clarifies that the amount disclosed pursuant to § 1026.37(l)(1)(i) is the sum of principal, interest, mortgage insurance, and loan costs scheduled to be paid through the end of the 60th month after the due date of the first periodic payment. The comment also clarifies that, for purposes of § 1026.37(l)(1)(i), interest is calculated using the fully-indexed rate at consummation and includes any prepaid interest. The comment further provides that, for purposes of § 1026.37(l)(1)(i), the creditor assumes that the consumer makes payments as scheduled and on time. In addition, proposed comment 37(l)(1)(i)–1 provides that, for purposes of § 1026.37(l)(1)(i), mortgage insurance is defined pursuant to comment 37(c)(1)(i)(C)–1, and includes prepaid or escrowed mortgage insurance, and that loan costs are those costs disclosed E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules pursuant to paragraph 1026.37(f). Proposed comment 37(l)(1)(i)–2 provides guidance to creditors on calculating principal and interest disclosures for loans with negative amortization features. Second, proposed § 1026.37(l)(1)(ii) requires the creditor to disclose the dollar amount of principal scheduled to be paid through the end of the 60th month after the due date of the first periodic payment, expressed as a dollar amount, along with the statement ‘‘Principal you will have paid off.’’ Proposed comment 37(l)(1)(ii)–1 clarifies that the disclosure required by proposed § 1026.37(l)(1)(ii) is calculated in the same manner as the disclosure required by proposed § 1026.37(l)(1)(i), provided, however, that the disclosed amount reflects only the total payments to principal through the end of the 60th month after the due date of the first periodic payment. Proposed § 1026.37(l)(1)(i) implements the requirements of TILA section 128(a)(5) and (8) for transactions subject to proposed § 1026.19(e). The Bureau proposes to modify the total of payments disclosure to reflect the total payments over five years, rather than the life of the loan, on the Loan Estimate provided to consumers near the time of application. The Bureau proposes this modification pursuant to its authority under TILA section 105(a), Dodd-Frank Act 1032(a), and, for residential mortgage loans, Dodd-Frank Act section 1405(b). By reducing the scope of the total of payments disclosure to five years after the due date of the first periodic payment, the disclosure more accurately reflects the typical life of a mortgage loan, thus effectuating the purposes of TILA by enhancing consumer understanding of mortgage transactions. For this same reason, the proposed modification will ensure that the features of the mortgage transaction are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the mortgage transaction, in light of the facts and circumstances, consistent with Dodd-Frank Act section 1032(a), and will improve consumer awareness and understanding of residential mortgage loans and is in the interest of consumers and the public, consistent with DoddFrank Act section 1405(b). As discussed in the Kleimann Testing Report, consumer testing conducted by the Bureau indicates that consumers can use the ‘‘In 5 Years’’ disclosure to compare loans they are considering and that, in some instances, these disclosures increase consumers’ understanding of loan costs. For VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 example, some consumers who did not understand from page one of the Loan Estimate that a loan provided for interest-only payments for a specified period were able to recognize that they would be making interest-only payments as a result of the principal paid ‘‘In 5 Years’’ disclosure. Consumer participants understood the relationship of principal and interest and generally wanted to choose loans with more principal paid off during the first five years. Industry feedback provided in response to the Bureau’s Small Business Review Panel Outline stated that implementation of the ‘‘In 5 Years’’ disclosure will require additional training and systems changes, and that it is unclear that the disclosure will assist consumers. The Bureau has considered this feedback but, in light of the research and consumer testing results discussed above, nevertheless believes that the ‘‘In 5 Years’’ disclosure will provide important benefits to consumers by disclosing the total of payments over a period that more accurately reflects the typical life of a mortgage loan. The Bureau also proposes to exercise its authority under TILA section 105(a), Dodd-Frank Act section 1032(a), and, for residential mortgage loans, DoddFrank Act section 1405(b) to include mortgage insurance and other loan costs in the ‘‘In 5 Years’’ calculation. TILA section 128(a)(5) defines the total of payments as the sum of the amount financed and the finance charge. However, the Bureau believes including mortgage insurance and other loan costs, rather than the finance charge, in the calculation may enhance consumer understanding of mortgage transactions because consumers can cross-reference other sections of the Loan Estimate to determine what costs are actually included in the ‘‘In 5 Years’’ disclosure, permitting consumers to more readily compare loans, consistent with the purposes of TILA. In contrast, as discussed below, consumers have no way to know which costs are included in the finance charge. For these same reasons, the Bureau believes that the proposed modification will ensure that the features of consumer credit transactions secured by real property are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the product or service, in light of the facts and circumstances, consistent with section 1032(a) of the Dodd-Frank Act, and will improve consumer awareness and understanding of residential mortgage loans and be in the interest of PO 00000 Frm 00109 Fmt 4701 Sfmt 4702 51223 consumers and the public, consistent with Dodd-Frank Act section 1405(b). Proposed § 1026.37(l)(1)(ii) requires creditors to disclose the dollar amount of principal scheduled to be paid through the end of the 60th month after the due date of the first periodic payment. The Bureau proposes this additional requirement pursuant to its authority under TILA section 105(a) and Dodd-Frank Act section 1032(a). As discussed above, the Bureau believes the proposed disclosure will enhance consumer understanding of the allocation of their payments between principal and interest and help consumers pick the loan that puts them in the best financial position after the five to seven year mark if they do not sell the property or refinance, consistent with the purposes of TILA. For these same reasons, consistent with section 1032(a) of the Dodd-Frank Act, the Bureau believes that the disclosure would ensure that the features of consumer credit transactions secured by real property are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the product or service, in light of the facts and circumstances. The Bureau recognizes, however, that the total of payments disclosure is commonly used by creditors and supervisory agencies for compliance purposes, as well as consumer advocates. Therefore, under the proposal, creditors would be required to disclose a modified total of payments over the loan’s full term in the Closing Disclosure provided to consumers at least three days prior to consummation. See proposed § 1026.38(o)(1). 37(l)(2) Annual Percentage Rate TILA section 128(a)(4) and (8) requires creditors to disclose the annual percentage rate, together with a brief descriptive statement of the annual percentage rate. 15 U.S.C. 1638(a)(4), (a)(8). Current § 1026.18(e) implements these statutory provisions by requiring creditors to disclose the ‘‘annual percentage rate,’’ using that term, and a brief description such as ‘‘the cost of your credit as a yearly rate.’’ In addition, TILA section 122(a) requires that the annual percentage rate be more conspicuous than other disclosures, except the disclosure of the creditor’s identity. 15 U.S.C. 1632(a). This requirement is also implemented in current § 1026.18(e). Concerns have been raised repeatedly over the last two decades that consumers are confused by what the APR represents and do not use it for its intended purpose: to compare loans. E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51224 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules The Board-HUD Joint Report noted that consumers generally do not understand what the APR represents or how to use it, and that some consumers mistake the APR with the interest rate. Board-HUD Joint Report at 10. Consumer testing conducted for purposes of the Board’s 2009 Closed-End Proposal revealed these same problems with the APR. 74 FR at 43296. The Board tested alternative descriptions and formats for the APR, but the APR continued to confuse consumers. Id. The Board’s consumer testing also indicated that consumers did not use the APR to compare loans but, instead, focused on the interest rate, monthly payment amount, and settlement costs when comparing loan offers. Id. at 43296–97. As discussed in the Kleimann Testing Report, the Bureau’s consumer testing similarly indicates consumer confusion regarding the APR disclosure and that consumers do not use the APR when comparing loans. Like the prior testing, the Bureau’s consumer testing indicates that consumers do not grasp the concept of the APR and often confuse it with the loan’s interest rate. Most consumers confused the APR with the interest rate and misinterpreted the meaning of the disclosure. In Round 3 of the Bureau’s consumer testing, the statement ‘‘This is not your interest rate’’ was added to the description of the APR to reduce consumer confusion between the interest rate and the APR. While most consumer participants understood from that statement that the interest rate and APR were separate items, they still had trouble understanding what the APR means, how it relates to the interest rate, and how it is useful as a comparison. Participants also misunderstood the APR in other ways, such as the average interest rate of other loans, an interest rate imposed once a year, and an interest rate listed by the creditor to mislead the consumer. Pursuant to its implementation authority under TILA section 105(a), the Bureau proposes § 1026.37(l)(2) to implement the requirements of TILA section 128(a)(4) and (8) for transactions subject to proposed § 1026.19(e) by requiring creditors to disclose the ‘‘annual percentage rate’’ and the abbreviation ‘‘APR,’’ together with the following statement: ‘‘Your costs over the loan term expressed as a rate. This is not your interest rate.’’ Further, in light of consumer confusion over the APR and the fact that consumers do not appear to use the APR in comparing loan offers, the Bureau proposes to exercise its authority under TILA section 105(a) and (f), Dodd-Frank Act section 1032(a) and, for residential mortgage loans, Dodd-Frank Act section VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 1405(b), to except transactions subject to § 1026.19(e) from the requirement of TILA section 122(a) that the annual percentage rate disclosure be more conspicuous than other disclosures, except the disclosure of the creditor’s identity. As discussed above, testing conducted by the Board and the Bureau consistently indicate consumer confusion over the APR. When the Bureau added the statement ‘‘this is not your interest rate’’ to the descriptive explanation of the APR during its consumer testing, although confusion was reduced, participants still did not understand how to use the APR. Instead, participants used measures they readily understood, such as the maximum interest rates, maximum periodic payments, and closing cost details to evaluate, compare, and verify loan terms. Participants were able to use these measures to evaluate and compare loans, making sophisticated trade-offs, often based on rationales involving their personal circumstances. Accordingly, the Bureau believes the proposed exemption may enhance consumer understanding by separating the APR disclosure from the interest rate disclosure, which could prevent consumer confusion over the two rates and reduce the possibility of information overload for consumers attempting to compare loan terms, consistent with the purposes of TILA. The Bureau believes that grouping the APR with the ‘‘In 5 Years’’ and Total Interest Percentage disclosures will also enhance consumer understanding by emphasizing that the APR is a special metric created specifically for comparison purposes that may help consumers think about their costs over their life of the loan. In addition, the purpose of the integrated disclosure under TILA section 105(b) and RESPA section 4(a) is to ‘‘aid the borrower * * * in understanding the transaction by utilizing readily understandable language to simplify the technical nature of the disclosures.’’ The Bureau believes that placing measures that are readily understandable to consumers on the first page of the Loan Estimate, and complex measures that consumers find confusing on latter pages, meets this statutory objective. The Bureau has also considered the factors in TILA section 105(f) and believes that an exception is appropriate under that provision. Specifically, the Bureau believes that the proposed exemption is appropriate for all affected borrowers, regardless of their other financial arrangements and financial sophistication and the importance of the loan to them. Similarly, the Bureau believes that the proposed exemption is PO 00000 Frm 00110 Fmt 4701 Sfmt 4702 appropriate for all affected loans, regardless of the amount of the loan and whether the loan is secured by the principal residence of the consumer. Furthermore, the Bureau believes that, on balance, the proposed exemption will simplify the credit process without undermining the goal of consumer protection or denying important benefits to consumers. As discussed above, consumer testing and historical research indicate that consumers do not understand the APR and do not use it when shopping for a loan. Highlighting the APR on the disclosure form contributes to overall consumer confusion and information overload, complicates the mortgage lending process, and hinders consumers’ ability to understand important loan terms. As such, the Bureau believes that the proposed exemption from the requirement that the APR be disclosed more conspicuously than other disclosures will not undermine the goal of consumer protection but, instead, will improve consumer understanding of the loans. For all these reasons, the Bureau believes that the proposed APR disclosure will improve consumer awareness and understanding of residential mortgage loans and is in the interest of consumers and the public, consistent with Dodd-Frank Act section 1405(b), and that, consistent with section 1032(a) of the Dodd-Frank Act, the disclosure would ensure that the features of consumer credit transactions secured by real property are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the product or service, in light of the facts and circumstances. In response to the Bureau’s Small Business Review Panel Outline, some consumer advocacy groups expressed concern about disclosing the APR on the final page of the Loan Estimate and, as discussed below, on the final page of the Closing Disclosure. Specifically, this feedback stated that the APR is a widely recognized disclosure that is a useful tool for consumers in comparing and understanding mortgage loans, and that deemphasizing the APR is not the most effective way of dealing with known problems with the APR disclosure. Instead, these groups suggested that the APR disclosure can be improved through an all-in APR, better descriptive language of the APR, or by supplementing the APR with other disclosures. For example, consumer advocacy groups recommended that the APR be more prominent than the E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 interest rate on the Loan Estimate and to be disclosed in a graphic format. The Bureau has considered this feedback, but based on the long history of consumer confusion of the APR, the Board’s prior efforts to improve the APR disclosure, and the Bureau’s testing of various descriptive statements of the APR, described above, the Bureau believes that the proposed approach to the APR could provide important benefits to consumers by emphasizing the difference between the APR and the contract interest rate. The Bureau is, however, proposing to improve the APR disclosure through a more inclusive definition of the finance charge, as discussed above, and a descriptive statement that clearly distinguishes the APR from the interest rate. The Bureau also intends to develop supplemental educational materials in booklets and its Web site that will further explain how the APR differs from the interest rate, how it provides a good way of comparing the entire costs of the loan over the entire term, and why consumers may want to use both the ‘‘In 5 Years’’ and APR figures to think about their financial futures. 37(l)(3) Total Interest Percentage The Dodd-Frank Act amended TILA to add new section 128(a)(19), which requires that, in the case of a residential mortgage loan, the creditor disclose the total amount of interest that the consumer will pay over the life of the loan as a percentage of the principal of the loan. That section also requires that the disclosure be computed assuming the consumer makes each monthly payment in full and on time, and does not make any over-payments. The Bureau proposes § 1026.37(l)(3) to implement TILA section 128(a)(19) by requiring creditors to disclose the total interest percentage, using that term and the abbreviation ‘‘TIP,’’ and requiring creditors to disclose the descriptive statement ‘‘The total amount of interest that you will pay over the loan term as a percentage of your loan amount.’’ Proposed § 1026.37(l)(3) also provides that the ‘‘total interest percentage’’ is the total amount of interest that the consumer will pay over the life of the loan, expressed as a percentage of the principal of the loan. Proposed comments 37(l)(3)–1 through –3 provide further guidance to creditors on calculation of the total interest percentage. Proposed comment 37(l)(3)– 1 provides that, when calculating the total interest percentage, the creditor assumes that the consumer will make each payment in full and on time, and will not make any additional payments. Proposed comment 37(l)(3)–2 provides VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 that, for adjustable-rate mortgages, § 1026.37(l)–(3) requires that the creditor compute the total interest percentage using the fully-indexed rate and that, for step-rate mortgages, § 1026.37(l)(3) requires that the creditor compute the total interest percentage in accordance with § 1026.17(c)(1) and its commentary. Proposed comment 37(l)(3)–3 provides that, for loans that permit negative amortization, § 1026.37(l)(3) requires that the creditor compute the total interest percentage using the minimum payment amount until the consumer must begin making fully amortizing payments under the terms of the legal obligation. As discussed in the Kleimann Testing Report, the Bureau’s consumer testing indicates that consumers are able to use the total interest percentage to compare loans, and can generally recognize that better loans disclose a lower total interest percentage. Along with the ‘‘In Five Years’’ disclosure, total interest percentage was cited as the most useful comparative tool. However, some consumers did not understand the total interest disclosure and questioned why it is included on the form. Even consumers who used the total interest percentage disclosure generally did not understand the more technical aspects of the total interest percentage disclosure, such as the difficulty of using the measure in an adjustable-rate loan. Concerns were also raised during the Bureau’s Small Business Review Panel, by industry in feedback provided in response to the Small Business Review Panel Outline, and in feedback received through the Bureau’s Web site that the total interest percentage could be difficult to calculate and explain to consumers, and would not likely be helpful to consumer. See, e.g., Small Business Review Panel Report at 20. In light of the Bureau’s testing of the total interest percentage disclosure and the concerns about consumers’ ability to understand the disclosure, the Bureau proposes to require creditors to disclose the descriptive statement, ‘‘The total amount of interest that you will pay over the loan term as a percentage of your loan amount.’’ The Bureau proposes this pursuant to its authority under TILA section 105(a), Dodd-Frank Act section 1032(a), and, for residential mortgage loans, Dodd-Frank Act section 1405(b). Based on consumer testing, the Bureau believes that consumer understanding of the total interest percentage disclosure may be enhanced through the descriptive statement of the total interest percentage, consistent with the purposes of TILA, and that the proposed descriptive statement is in the interest of consumers and the public, PO 00000 Frm 00111 Fmt 4701 Sfmt 4702 51225 consistent with section 1405(b) of the Dodd-Frank Act. For these reasons, the Bureau also believes that the disclosure of the descriptive statement regarding the total interest percentage may ensure that the features of consumer credit transactions secured by real property are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the product or service, in light of the facts and circumstances, consistent with section 1032(a) of the Dodd-Frank Act. Notwithstanding the proposed modifications, based on concerns raised by the Small Business Review Panel, industry feedback, and its own consumer testing, the Bureau remains concerned that the total interest percentage may not be a useful tool for consumers and could create confusion and contribute to information overload. In light of these concerns, the Bureau alternatively proposes to use its exception and modification authority under TILA section 105(a) and (f), Dodd-Frank Act section 1032(a), and, for residential mortgage loans, DoddFrank Act section 1405(b) to exempt transactions subject to proposed § 1026.19(e) and (f) from the requirements of TILA section 128(a)(19). The Bureau believes the proposed exemption will carry out the purposes of TILA, consistent with TILA section 105(a), by avoiding consumer confusion and information overload, thereby promoting the informed use of credit. For these same reasons, the proposed exemption will help ensure that the features of the mortgage transaction are fully, accurately and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the mortgage transaction, in light of the facts and circumstances, consistent with Dodd-Frank Act section 1032(a), and will improve consumer awareness and understanding of residential mortgage loans and is in the interest of consumers and the public, consistent with DoddFrank Act section 1405(b). Finally, the Bureau has considered the factors in TILA section 105(f) and believes that, for the reasons discussed above, an exception may be appropriate under that provision. Specifically, the Bureau believes that the proposed exemption is appropriate for all affected borrowers, regardless of their other financial arrangements and financial sophistication and the importance of the loan to them. Similarly, the Bureau believes that the proposed exemption is appropriate for all affected loans, regardless of the amount of the loan and E:\FR\FM\23AUP2.SGM 23AUP2 51226 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 whether the loan is secured by the principal residence of the consumer. Furthermore, the Bureau believes that, on balance, the proposed exemption will simplify the credit process without undermining the goal of consumer protection or denying important benefits to consumers. Based on these considerations, the results of the Bureau’s consumer testing, and the analysis discussed elsewhere in this proposal, the Bureau believes that the proposed exemption may be appropriate. The Bureau solicits comment on the proposed exemption and, alternatively, whether the Bureau should implement the total interest percentage disclosure only in the Closing Disclosure. Other Statutory Disclosures As discussed above, the research regarding consumer comprehension and behavior and the results of the Board’s and the Bureau’s consumer testing suggest that an effective disclosure regime minimizes the risk of consumer distraction and information overload by providing only information that will assist most consumers. The Bureau therefore carefully evaluated each statutory element required under TILA, whether the element has been required for decades or is newly imposed by Dodd-Frank, as to its usefulness to consumers and others at early stages of the loan process, during the real estate closing process, and as general reference information over the life of the loan. Based on that analysis, the Bureau is proposing to use its authority under TILA section 105(a) and (f), Dodd-Frank Act section 1032(a), and, for residential mortgage loans, Dodd-Frank Act section 1405(b), to except from and modify the timing requirements for certain disclosures required by TILA section 128. Specifically, those disclosures are: The amount financed (TILA section 128(a)(2)), the finance charge (TILA section 128(a)(3)), a statement that the creditor is taking a security interest in the consumer’s property (TILA section 128(a)(9)), a statement that the consumer should refer to the appropriate contract document for information about their loan (TILA section 128(a)(12)), a statement regarding certain tax implications (TILA section 128(a)(15)), and the creditor’s cost of funds (TILA section 128(a)(17)). The Bureau believes the proposed exemptions discussed above will carry out the purposes of TILA, consistent with TILA section 105(a), by avoiding consumer confusion and information overload, thereby promoting the informed use of credit, as discussed above. For these same reasons, the VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 proposed exemptions will help ensure that the features of the mortgage transaction are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the mortgage transaction, consistent with Dodd-Frank Act section 1032(a), and will improve consumer awareness and understanding of residential mortgage loans and are in the interest of consumers and the public, consistent with Dodd-Frank Act section 1405(b). The Bureau has considered the factors in TILA section 105(f) and believes that, for the reasons discussed above, an exception is appropriate under that provision. Specifically, the Bureau believes that the proposed exemption is appropriate for all affected borrowers, regardless of their other financial arrangements and financial sophistication and the importance of the loan to them. Similarly, the Bureau believes that the proposed exemption is appropriate for all affected loans, regardless of the amount of the loan and whether the loan is secured by the principal residence of the consumer. Furthermore, the Bureau believes that, on balance, the proposed exemption will simplify the credit process without undermining the goal of consumer protection or denying important benefits to consumers. Based on these considerations, the results of the Bureau’s consumer testing, and the analysis discussed elsewhere in this proposal, the Bureau believes that the proposed exemptions are appropriate. The proposed exclusion of the finance charge and the amount financed from the Loan Estimate is discussed at length below. Finance charge. TILA section 128(a)(3) and (8) requires creditors to disclose the ‘‘finance charge’’ and a brief descriptive statement of the finance charge. 15 U.S.C. 1638(a)(3), (a)(8). For transactions subject to RESPA, TILA section 128(b)(2)(A) requires creditors to provide this disclosure not later than three business days after the creditor receives the consumer’s application, and at least seven business days before consummation. 15 U.S.C. 1638(b)(2)(A). Current § 1026.18(d) implements TILA section 128(a)(3) and (8) by requiring creditors to disclose the ‘‘finance charge,’’ using that term, and a brief description such as ‘‘the dollar amount the credit will cost you.’’ For transactions subject to RESPA, current § 1026.19(a) requires creditors to provide the finance charge disclosure not later than the third business day after the creditor receives the consumer’s application. PO 00000 Frm 00112 Fmt 4701 Sfmt 4702 Federal agency research has long recognized consumer confusion over the finance charge. The Board-HUD Joint Report found that TILA disclosures fall short of meeting their goal of informing consumers about the cost of credit, in part because of consumer confusion over the finance charge. Board-HUD Joint Report at III. Evidence of consumer confusion over the finance charge was echoed in the Board’s 2009 Closed-End Proposal. 74 FR at 43307–08. The Board’s consumer testing indicates that consumers often fail to understand that the finance charge contains both interest and fees,172 and that consumers place very little value on the finance charge when making decisions regarding their loan.173 The report stated that ‘‘[testing] participants * * * generally disregarded the finance charge when reading their TILA statements.’’174 For these reasons, the Bureau proposes to exercise its authority under TILA section 105(a) and (f) and DoddFrank sections 1032(a) and, for residential mortgage loans, 1405(b), to except transactions subject to proposed § 1026.19(e) from the requirements of TILA section 128(a)(3) and (8) as it applies to the Loan Estimate provided to consumers within three business days of application. As discussed above, the Bureau believes that the proposed exclusion of the finance charge disclosure from the Loan Estimate effectuates the purposes of TILA by avoiding consumer confusion and information overload historically associated with the finance charge disclosure, thereby improving the informed use of credit. The Bureau has considered the factors in TILA section 105(f) and believes that, for the reasons discussed above, an exception is appropriate under that provision. Specifically, the Bureau believes that the proposed exemption is appropriate for all affected borrowers, regardless of their other financial arrangements and financial sophistication and the importance of the loan to them. Similarly, the Bureau believes that the proposed exemption is appropriate for all affected loans, regardless of the amount of the loan and whether the loan is secured by the principal 172 Macro 2009 Closed-End Report at 11, 41 (stating that, in Round 8 of the testing, ‘‘[m]ost [participants] thought the finance charges were equal to the amount of interest that the borrower would pay over time; only a few understood the finance charges shown on the form included fees as well as interest’’). 173 For example, only one of the nine participants in one round of the Board’s testing found the finance charge useful. Id. at 35. In another round, most participants said that they would not use the finance charge in their decision-making. Id. at 28. 174 Id. at 41. E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules residence of the consumer. Furthermore, the Bureau believes that, on balance, the proposed exemption will simplify the credit process without undermining the goal of consumer protection or denying important benefits to consumers. Based on these considerations, the results of the Bureau’s consumer testing, and the analysis discussed above, the Bureau believes that the proposed exemption is appropriate. Specifically, the Bureau does not believe that disclosure of the finance charge on the Loan Estimate provides a meaningful benefit to consumers in the form of useful information or protection. Rather, the Bureau believes that disclosure of the finance charge to consumers early in the lending process actually complicates and hinders the process of mortgage lending because consumers do not understand the disclosure. Removing the finance charge disclosure from the Loan Estimate that consumers receive early in the lending process may assure meaningful disclosure of credit terms, facilitate consumer comparison of credit terms, and improve the informed use of credit by avoiding information overload and improving consumer understanding of loan terms, consistent with the purposes of TILA and with section 1405(b) of the Dodd-Frank Act. As consumer testing indicates that consumers generally do not use the finance charge when shopping for a loan, the absence of the finance charge from the Loan Estimate should not detract from consumers’ understanding of their credit terms but, instead, will permit consumers to focus on other important terms. In addition, consistent with Dodd-Frank Act section 1032(a), removal of the finance charge from the Loan Estimate would help ensure that the features of consumer credit transactions secured by real property are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the product or service, in light of the facts and circumstances. The Bureau recognizes that creditors, consumer advocates, and State and Federal supervisory agencies use the finance charge when calculating or verifying the calculation of the APR, determining compliance with certain price thresholds, and for a range of other purposes, including the right of rescission pursuant to TILA section 125. 15 U.S.C. 1635. Accordingly, to preserve the finance charge disclosure for these purposes, proposed § 1026.38(o)(2) requires creditors to disclose the finance charge on the Closing Disclosure provided to consumers at least three days prior to prior to consummation. VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 Although concerns regarding consumer distraction and information overload persist at the stage of the transaction where the consumer receives the Closing Disclosure, the Bureau believes that disclosing the finance charge with other loan calculations on the final page of the Closing Disclosure as a general reference for the consumer after closing will mitigate these concerns. In addition, though the finance charge is not disclosed on the Loan Estimate, creditors must, in order to comply with the record retention requirements in § 1026.25, document the finance charge used to calculate the APR disclosed on the Loan Estimate. As discussed above, the Bureau is proposing conforming amendments to § 1026.22 to reflect the accuracy standards applicable to the finance charge disclosed on the Closing Disclosure under proposed § 1026.38(o)(2). The Bureau seeks comment on whether the final rule should contain similar accuracy standards for the finance charge used in the APR calculation for the Loan Estimate. Amount financed. TILA section 128(a)(2) and (8) requires creditors to disclose the ‘‘amount financed,’’ using that term, and a brief descriptive statement of the amount financed. 15 U.S.C. 1638(a)(2), (a)(8). Current § 1026.18(b) implements this requirement and requires creditors to disclose the amount financed, using that term, together with a brief description that the amount financed represents the amount of credit of which the consumer has actual use. Like the finance charge disclosure, for transactions subject to RESPA, TILA section 128(b)(2)(A) requires that creditors provide a good faith estimate of this disclosure not later than three business days after the creditor receives the consumer’s application, and at least seven business days before consummation. 15 U.S.C. 1638(b)(2)(A). This requirement is implemented in current § 1026.19(a). Like the finance charge, the amount financed disclosure has historically been viewed as confusing for consumers. The Board-HUD Joint Report recommended removing the amount financed from consumer disclosures altogether because it ‘‘is probably not a useful disclosure for mortgage lending.’’ 175 The Board-HUD Joint Report found that the primary use of the ‘‘amount financed’’ is to help supervisory agencies confirm APR calculations, and is not a useful shopping tool for consumers.176 The Board’s consumer testing in connection 175 Board-HUD Joint Report at 16. at 17. 176 Id. PO 00000 Frm 00113 Fmt 4701 Sfmt 4702 51227 with the 2009 Closed-End Proposal also indicated consumer confusion about the ‘‘amount financed.’’ Some testing participants incorrectly assumed that the ‘‘amount financed’’ was their loan amount or the sale price of the home.177 Based on this testing, the Board concluded that the ‘‘amount financed’’ disclosure detracted from, rather than enhanced, consumers’ understanding of other disclosures 178 and that consumers ‘‘would not consider the amount financed when shopping for a mortgage or evaluating competing loan offers.’’ 179 The Board also found that ‘‘requiring creditors to disclose the amount financed in the loan summary with other key loan terms would add unnecessary complexity and result in ‘information overload.’ ’’ 180 For these reasons, the Bureau proposes to exercise its authority under TILA section 105(a) and (f), Dodd-Frank section 1032(a), and, for residential mortgage loans, Dodd-Frank Act section 1405(b), to modify and except transactions subject to proposed § 1026.19(e) from the requirements of TILA section 128(a)(2) and (8) as it applies to the Loan Estimate provided to consumers within three business days of application. As discussed above, the Bureau believes that the proposed exclusion of the amount financed disclosure from the Loan Estimate effectuates the purposes of TILA by avoiding consumer confusion and information overload historically associated with the disclosure, thereby improving the informed use of credit. In addition, the Bureau has considered the factors in TILA section 105(f) and 177 Macro 2009 Closed-End Report at v. For example, in Round 8 of testing, participants were ‘‘confused about the difference between the ‘loan amount’ and the ‘amount financed.’’’ Id. at 26. In Round 9, participants gave a variety of incorrect explanations of the term, including that it was ‘‘how much escrow they would have,’’ the amount they would have to pay back, or the amount that they borrowed. Id. at 35. In both of these rounds, some participants believed the ‘‘amount financed’’ was equal to the amount of money they would be borrowing. Id. at 40. In Round 11, the ‘‘amount financed’’ was moved to the second page, under the heading ‘‘Total Payments’’ in the ‘‘More Information About Your Payments’’ section. Id. at 51. As in previous rounds, no participant was able to explain the meaning of ‘‘amount financed.’’ Id. at 55. In Round 12, with the ‘‘amount financed’’ in the same place on the second page, two participants incorrectly believed they were borrowing the ‘‘amount financed.’’ Id. at 55. In the final round of testing, none of the participants understood the meaning of ‘‘amount financed.’’ Id. at 72. 178 74 FR at 43308. For example, ‘‘sample disclosures were used to try to explain that the difference between the loan amount and amount financed is attributable to prepaid finance charges, but this explanation did not appear to improve consumer comprehension.’’ Id. 179 Id. 180 Id. E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51228 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules believes that, for the reasons discussed above, an exception is appropriate under that provision. Specifically, the Bureau believes that the proposed exemption is appropriate for all affected borrowers, regardless of their other financial arrangements and financial sophistication and the importance of the loan to them. Similarly, the Bureau believes that the proposed exemption is appropriate for all affected loans, regardless of the amount of the loan and whether the loan is secured by the principal residence of the consumer. Furthermore, the Bureau believes that, on balance, the proposed exemption will simplify the credit process without undermining the goal of consumer protection or denying important benefits to consumers. Based on these considerations, the results of the Bureau’s consumer testing, and the analysis discussed above, the Bureau believes that the proposed exemption is appropriate. The Bureau does not believe that disclosure of the amount financed on the Loan Estimate provides a meaningful benefit to consumers in the form of useful information or protection. Rather, the Bureau believes that disclosure of the amount financed to consumers early in the lending process actually complicates and hinders the process of mortgage lending because consumers do not understand the disclosure. Removing the amount financed from the Loan Estimate may improve the informed use of credit by avoiding information overload and improving consumer understanding of loan terms, consistent with the purposes of TILA and will be in the interest of consumers and the public, consistent with section 1405(b) of the Dodd-Frank Act. Enhanced consumer understanding of mortgage transactions is also in the interest of consumers and the public. In addition, consistent with Dodd-Frank Act section 1032(a), removal of the amount financed from the Loan Estimate would help ensure that the features of consumer credit transactions secured by real property are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the product or service, in light of the facts and circumstances. However, the Bureau recognizes that, like the finance charge, the amount financed is commonly used by creditors and supervisory agencies for compliance purposes, as well as by consumer advocates. Therefore, under the proposal, creditors would be required to disclose the amount financed in the Closing Disclosure VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 provided to consumers at least three business days prior to consummation. Like the finance charge, the Bureau believes that disclosing the amount financed with other loan calculations on the final page of the Closing Disclosure as a general reference for the consumer after closing will mitigate concerns about consumer distraction and information overload at the Closing Disclosure stage. 37(m) Other Considerations Under proposed § 1026.37(m), creditors disclose certain information pertaining to: (1) The consumer’s right to receive copies of appraisals; (2) future assumability of the loan; (3) at the creditor’s option, homeowner’s insurance requirements; (4) the creditor’s late payment policy; (5) loan refinancing; (6) loan servicing, and (7) in refinance transactions, the consumer’s liability for deficiency after foreclosure. This information is provided under the master heading ‘‘Additional Information About This Loan’’ required by § 1026.37(k) and under the heading ‘‘Other Considerations.’’ As set forth below, consumers already receive most of these disclosures at or after application or prior to consummation. Thus, by incorporating all of these disclosures into the Loan Estimate, the proposed rule will reduce the number of separate disclosures that consumers receive. Instead, consumers will receive these disclosures in a single, integrated document, which will reduce the potential for information overload, promote the informed use of credit by the consumer, and facilitate compliance by industry. 37(m)(1) Appraisal Prior to the Dodd-Frank Act, ECOA section 701(e) required creditors to provide to applicants, upon written request, a copy of the appraisal report used in connection with the consumer’s application for a loan secured by a lien on residential real property. Section 1474 of the Dodd-Frank Act amended ECOA section 701(e) to remove the provision requiring consumers to request a copy of their appraisal. That section now requires the creditor to provide the consumer with a copy of any written appraisal or valuation developed in connection with an application for a loan that is or will be secured by a first lien on a dwelling promptly upon completion, and no later than three days prior to the closing of the loan, even if the creditor denies the consumer’s application or the application is incomplete or withdrawn. 15 U.S.C. 1691(e)(1). Under ECOA PO 00000 Frm 00114 Fmt 4701 Sfmt 4702 section 701(e)(5), the creditor must notify the consumer in writing at the time of application of the right to receive a copy of any appraisal or valuation. 15 U.S.C. 1691(e)(5). In addition, section 1471(a) of the Dodd-Frank Act added to TILA new appraisal requirements for higher-risk mortgages. Specifically, new TILA section 129H(c) requires creditors to provide consumers, at least three days prior to closing, a copy of any appraisal prepared in connection with a higherrisk mortgage. 15 U.S.C. 1639h(c). Section 1471(f) of the Dodd-Frank Act defines the term ‘‘higher-risk mortgage’’ generally as a residential mortgage loan, other than a reverse mortgage, that is secured by a principal dwelling with an APR that exceeds the average prime offer rate for a comparable transaction by a specified percentage. 15 U.S.C. 1639h(f). New TILA section 129H(d) contains a disclosure requirement that creditors must provide consumers, at the time of the initial mortgage application, a statement that any appraisal prepared for the mortgage is for the creditor’s sole use and that the consumer may choose to have a separate appraisal conducted at his or her own expense. 15 U.S.C. 1639h(d). ECOA section 701(e), as amended by the Dodd-Frank Act, and new TILA section 129H(c) and (d) will be implemented in separate Bureau and joint interagency rulemakings, respectively. However, the Bureau proposes to use its authority under TILA section 105(a) and Dodd-Frank Act section 1032(a) to include on the Loan Estimate disclosure of the new requirements regarding the consumer’s right to appraisal copies for loans subject to ECOA section 701(e)(5) or TILA section 129H(c) and (d). In the integrated TILA–RESPA final rule, the Bureau will harmonize this proposal with its rulemaking implementing amended ECOA section 701(e) and the interagency rulemaking implementing new TILA section 129H(c) and (d), so that creditors may satisfy the ECOA section 701(e)(5) and TILA section 129H requirements in a single disclosure. Proposed § 1026.37(m)(1) applies only to closed-end credit transactions subject to proposed § 1026.19(e) and ECOA section 701(e) or TILA section 129H, as implemented in Regulation B, 12 CFR part 1002, and Regulation Z, respectively. For such transactions, proposed § 1026.37(m)(1) requires the disclosure under the label ‘‘Appraisal.’’ The disclosure may be omitted for other transactions. Proposed § 1026.37(m)(1)(i) requires the disclosure to state that the creditor may order an appraisal to determine the E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 value of the property that is the subject of the transaction and may charge the consumer the cost for any such appraisal. Proposed § 1026.37(m)(1)(ii) requires the disclosure to state that the creditor will promptly provide the consumer a copy of the appraisal, even if the transaction is not consummated. Finally, proposed § 1026.37(m)(1)(iii) requires the disclosure to state that the consumer has the right to order an additional appraisal of the property for the consumer’s own use. Proposed comment 37(m)(1)–1 clarifies that if a transaction subject to proposed § 1026.19(e) is not also subject to either ECOA section 701(e) or TILA section 129H, as implemented in Regulations B and Z, respectively, the disclosure required by proposed § 1026.37(m)(1) may be omitted from the Loan Estimate. The Bureau believes that including these appraisal disclosures on the Loan Estimate is consistent with the purposes of TILA and will reduce burden on industry. Rather than requiring two separate appraisal disclosures in addition to the Loan Estimate consumers will receive after application, the Bureau believes one integrated disclosure will facilitate compliance for creditors, promote the informed use of credit by consumers, and ensure effective disclosure to consumers, consistent with the purposes of TILA and TILA section 105(a). In addition, the Bureau believes that incorporating the appraisal disclosures into the Loan Estimate in a way that is consistent with the presentation of other disclosures will ensure that the features of the transaction are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the mortgage transaction, in light of the facts and circumstances, consistent with DoddFrank Act section 1032(a). 37(m)(2) Assumption TILA section 128(a)(13) requires the creditor to disclose, in any residential mortgage transaction, a statement indicating whether a subsequent purchaser may be permitted to assume the remaining loan obligation on its original terms. 15 U.S.C. 1638(a)(13). This provision is currently implemented in § 1026.18(q), and applies only to residential mortgage transactions. TILA section 103(x) defines ‘‘residential mortgage transaction’’ as a ‘‘transaction in which a mortgage, deed of trust, purchase money security interest arising under an installment sales contract, or equivalent consensual security interest is created or retained against the VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 consumer’s dwelling to finance the acquisition or initial construction of a dwelling.’’ 15 U.S.C. 1602(x). Proposed § 1026.37(m)(2) implements TILA section 128(a)(13) for all transactions subject to § 1026.19(e) by requiring the creditor to disclose whether a subsequent purchaser of the property may be permitted to assume the remaining loan obligation on its original terms. Proposed comment 37(m)(2)–1 clarifies that the creditor must disclose whether or not a third party may be allowed to assume the loan on its original terms if the property is sold or transferred by the consumer. Proposed comment 37(m)(2)–1 also notes that in many mortgages, the creditor may be unable to determine whether the loan is assumable at the time the Loan Estimate is provided and cites to the Federal National Mortgage Association and the Federal Home Loan Mortgage Corporation as examples of entities that as a common practice condition assumability on a number of factors such as the subsequent borrower’s creditworthiness. Proposed comment 37(m)(2)–1 clarifies that, if the creditor can determine that such assumption is not permitted, the creditor complies with § 1026.37(m)(2) by disclosing that the loan is not assumable. In all other situations, including where assumption of a loan is permitted or is dependent on certain conditions or factors, or uncertainty exists as to the future assumability of a mortgage, the creditor complies with § 1026.37(m)(2) by disclosing that, under certain conditions, the creditor may allow a third party to assume the loan on its original terms. Proposed comment 37(m)(2)–2 clarifies that the phrase ‘‘original terms’’ as used in § 1027.37(m)(2) does not preclude an assumption fee but may represent different terms, and provides an example of a modified term. The Bureau proposes § 1026.37(m)(2) to implement TILA section 128(a)(13) for transactions subject to § 1026.19(e), pursuant to its authority under TILA section 105(a), Dodd-Frank Act section 1032(a), and, for residential mortgage loans, Dodd-Frank Act section 1405(b). In addition, the Bureau proposes to modify the scope of TILA section 128(a)(13), pursuant to its authority under TILA section 105(a) and DoddFrank Act sections 1032(a) and 1405(b), to apply to all transactions subject to proposed § 1026.19(e), even if not a ‘‘residential mortgage transaction’’ as defined in TILA section 103(x). The Bureau believes that consumers in transactions secured by real property would benefit from the disclosure, even if the property does not contain a PO 00000 Frm 00115 Fmt 4701 Sfmt 4702 51229 dwelling. Accordingly, the proposed modification promotes the informed use of credit, consistent with the purposes of TILA. For this same reason, the proposed modification will ensure that the features of the transaction are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the mortgage transaction, in light of the facts and circumstances, consistent with Dodd-Frank Act section 1032(a), and will improve consumer awareness and understanding of residential mortgage loans and is in the interest of consumers and the public, consistent with DoddFrank Act section 1405(b). Transactions subject to the disclosure requirements of § 1026.18 continue to be subject to § 1026.18(q). 37(m)(3) Homeowner’s Insurance TILA section 106(c) provides that premiums for homeowner’s insurance written in connection with any consumer credit transaction shall be included in the finance charge unless a clear and specific statement in writing is furnished by the creditor to the person to whom credit is extended, setting forth the cost of the insurance if obtained from or through the creditor, and stating that the person to whom credit is extended may choose the insurance provider. 15 U.S.C. 1605(c). Current §§ 1026.4(d)(2)(i) and 1026.18(n) implement this provision. The Bureau understands that many creditors provide consumers the disclosure described in TILA section 106(c) and § 1026.4(d)(2)(i) in order to exclude homeowner’s insurance premiums from the finance charge. To reduce the number of individual disclosures provided to consumers and facilitate compliance for creditors, the Bureau proposes § 1026.37(m)(3) which provides that, at the creditor’s option, the creditor may disclose a statement of whether homeowner’s insurance is required on the property and whether the consumer may choose the insurance provider, labeled ‘‘Homeowner’s Insurance.’’ Proposed comment 37(m)(3)–1 clarifies that the disclosure required in § 1026.37(m)(3) is optional. Proposed comment 37(m)(3)–2 clarifies that a creditor satisfies the condition for excluding homeowner’s insurance premiums from the finance charge described in § 1026.4(d)(2)(i) by disclosing the statement described in § 1026.37(m)(3). The Bureau proposes § 1026.37(m)(3) pursuant to its authority under TILA section 105(a), Dodd-Frank Act section 1032(a), and, for residential mortgage loans, Dodd-Frank Act section 1405(b). E:\FR\FM\23AUP2.SGM 23AUP2 51230 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 The Bureau believes that combining the optional disclosure regarding homeowner’s insurance premiums with the other disclosures on the Loan Estimate may avoid information overload and therefore promote the informed use of credit, consistent with the purposes of TILA. In addition, the proposed disclosure will help ensure that the features of the transaction are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the mortgage transaction, consistent with Dodd-Frank Act section 1032(a), and will improve consumer awareness and understanding of residential mortgage loans, in the interest of consumers and the public, consistent with Dodd-Frank Act section 1405(b). 37(m)(4) Late Payment TILA section 128(a)(10) requires disclosure of ‘‘any dollar charge or percentage amount which may be imposed by a creditor solely on account of a late payment.’’ 15 U.S.C. 1638(a)(10). This requirement is currently implemented in § 1026.18(l), which requires a statement detailing any ‘‘dollar or percentage charge that may be imposed before maturity due to a late payment.’’ Proposed § 1026.37(m)(4) implements TILA section 128(a)(10) for transactions subject to § 1026.19(e) and requires the creditor to disclose a statement detailing any charge that may be imposed on the consumer for a late payment and the number of days a payment must be late before a penalty for late payment may be assessed. Proposed comment 37(m)(4)–1 clarifies that the late payment disclosure is required if charges are added to an individual delinquent installment of a transaction that remains ongoing on its original terms. Proposed comment 37(m)(4)–1 also clarifies which charges and creditor actions under the legal obligation do not qualify as a late payment charge and that an increase in the interest rate is a late payment charge to the extent of the increase. Comment 37(m)(4)–2 clarifies that the creditor may make changes to the disclosure to reflect the requirements imposed and alternatives allowed under State law. The Bureau proposes § 1026.37(m)(4) to implement TILA section 128(a)(10) for transactions subject to § 1026.19(e), pursuant to its implementation authority under TILA section 105(a). In addition, the Bureau proposes to require creditors to disclose the number of days that a payment must be late to trigger the late payment charge pursuant to its authority under TILA section 105(a) and Dodd-Frank Act section 1032(a). The VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 Bureau believes the additional disclosure enhances the late payment disclosure by describing the conditions that may trigger a late payment charge and therefore promotes the informed use of credit, consistent with the purpose of TILA. For this same reason, the Bureau believes the proposed disclosure will ensure that the features of the transaction are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the mortgage transaction, in light of the facts and circumstances, consistent with DoddFrank Act section 1032(a). 37(m)(5) Refinance TILA section 128(b)(2)(C)(ii) requires that, for variable-rate transactions or transactions where the regular payment may otherwise be variable and that are secured by the consumer’s dwelling, the borrower be provided with a disclosure that there is no guarantee to refinance to a lower amount. Current § 1026.18(t) implements this provision by requiring creditors to disclose a statement that there is no guarantee that the consumer may refinance to lower the interest rate or monthly payment. Current § 1026.18(t) also expands the noguarantee-to-refinance disclosure to apply to, not only variable-rate or variable-payment transactions, but all closed-end transactions secured by real property or a dwelling, other than transactions secured by the consumer’s interest in a timeshare. The Bureau proposes § 1026.37(m)(5) to implement TILA section 128(b)(2)(C)(ii) for transactions subject to proposed § 1026.19(e). Based on the results of several rounds of consumer testing of language regarding the refinance disclosure, § 1026.37(m)(5) specifically requires disclosure of the following statement: ‘‘Refinancing this loan will depend on your future financial situation, the property value, and market conditions. You may not be able to refinance this loan.’’ As discussed in the Kleimann Testing Report, consumers in the Bureau’s consumer testing understood this language to mean that they are permitted to try, but may not be able to refinance their loan in the future. In implementing TILA section 128(b)(2)(C)(ii), the Bureau proposes to use its authority under section TILA section 105(a) and Dodd-Frank Act sections 1032(a) and 1405(b) to expand the requirement to all transactions subject to § 1026.19(e). Like the Board, the Bureau is concerned that some consumers may accept loan terms that could present refinancing problems PO 00000 Frm 00116 Fmt 4701 Sfmt 4702 similar to those experienced by consumers in variable-rate or variablepayment transactions (e.g., a three-year fixed rate mortgage with a balloon payment), and that all consumers would benefit from a statement that encourages consideration of possible future market rate increases on refinancing. See 2009 Closed-End Proposal, 74 FR at 43310. Accordingly, the Bureau believes the proposed disclosure effectuates the purpose of TILA to help consumers avoid the uninformed use of credit. In addition, the proposed disclosure helps to ensure that the features of mortgage transactions are fully and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with a financial product, in light of the facts and circumstances, consistent with Dodd-Frank Act section 1032(a), and will improve consumer awareness and understanding of residential mortgage loans, which is in is the interest of consumers and the public, consistent with Dodd-Frank Act section 1405(b). Transactions subject to the disclosure requirements of § 1026.18 continue to be subject to § 1026.18(t). 37(m)(6) Servicing RESPA section 6(a) requires disclosures to loan applicants concerning the assignment, sale, or transfer of the servicing of the loan to another party. 12 U.S.C. 2605(a). Current appendix C to Regulation X implements RESPA section 6(a) and requires a statement in the GFE regarding loan servicing under the section ‘‘If your loan is sold in the future,’’ albeit using relatively generic language that does not express the creditor’s actual intent.181 Proposed § 1026.37(m)(6) requires the creditor to disclose in the Loan Estimate whether it intends to service the loan directly or transfer its servicing. Proposed comment 37(m)(6)–1 clarifies that the disclosure required in proposed § 1026.37(m)(6) requires only that the creditor state its intent at the time the disclosure is issued. For transactions subject to RESPA, the Bureau proposes § 1026.37(m)(6) to implement RESPA section 6(a), pursuant to its authority under RESPA section 19(a). For transactions subject the requirements of proposed § 1026.19(e) but that are not subject to RESPA, the Bureau proposes to require creditors to provide the servicing disclosure described in § 1026.37(m)(6) 181 The standard RESPA GFE form in appendix C to Regulation X reads as follows: ‘‘Some lenders may sell your loan after settlement. Any fees lenders receive in the future cannot change the loan you receive or the charges you paid at settlement.’’ E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 pursuant to its authority under TILA section 105(a) and Dodd-Frank Act 1032(a). The Bureau believes that requiring the disclosure regarding loan servicing in these transactions will improve consumer understanding and avoid the uninformed use of credit, consistent with the purposes of TILA, and that the disclosure will ensure that the features of the transaction are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the mortgage transaction, in light of the facts and circumstances, consistent with Dodd-Frank Act section 1032(a). 37(m)(7) Liability After Foreclosure Section 1414(c) of the Dodd-Frank Act created new TILA section 129C(g), which establishes certain requirements for residential mortgage loans subject to protection under a State anti-deficiency law. 15 U.S.C. 1639c(g). TILA section 129C(g)(2) requires that, prior to consummation, the creditor or mortgage originator provide a written notice to the consumer describing the protection provided by the anti-deficiency law and the significance to the consumer of the loss of such protection. TILA section 129C(g)(3) requires that any creditor or mortgage originator that provides an application to a consumer or receives an application from a consumer, for any type of refinancing for such loan that would cause the loan to lose the protection of an anti-deficiency law, the creditor or mortgage originator shall provide a written notice to the consumer describing the protection provided by the anti-deficiency law and the significance for the consumer of the loss of such protection before any agreement for refinancing is consummated. TILA section 129C(g)(1) defines anti-deficiency law to mean the law of any State which provides that, in the event of foreclosure on the residential property of a consumer securing a mortgage, the consumer is not liable, in accordance with the terms and limitations of such State law, for any deficiency between the sale price obtained from a foreclosure sale and the outstanding balance of the mortgage. Proposed § 1026.37(m)(7) implements TILA section 129C(g)(3), which applies to refinance transactions. Specifically, proposed § 1026.37(m)(7) provides that, if the credit is to refinance an extension of credit as described in § 1026.37(a)(9)(ii) or (iii), the creditor must disclose a brief statement that certain State law protections against liability for any deficiency after foreclosure may be lost upon refinancing, the potential consequences VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 of the loss of such protections, and a statement that the consumer should consult an attorney for additional information, labeled ‘‘Liability after Foreclosure.’’ The Bureau proposes this requirement pursuant to its implementation authority under TILA section 105(a). TILA section 129C(g)(3) requires creditors to provide the anti-deficiency disclosure prior to consummation. The Bureau believes that consumers would benefit from receiving the disclosure in the Loan Estimate provided three days after application since the disclosure informs consumers of the potentially significant consequences of refinancing and is therefore an important consideration for a consumer evaluating whether to proceed with the loan. Further, the Bureau believes that the anti-deficiency disclosure is appropriately tied to the submission of the consumer’s application since TILA section 129C(g)(3) requires creditors to provide the disclosure to all consumers to whom it provides an application or from whom it receives an application. The Bureau does not believe that it is feasible to require the disclosure to be provided to any consumer to whom the creditor ‘‘provides’’ a loan application because, as discussed above in the section-by-section analysis of proposed § 1026.2(a)(3), ‘‘application’’ is defined by proposed § 1026.2(a)(3) as the consumer’s submission of certain specific information to a creditor. The requirements of TILA section 129C(g)(2) are implemented in proposed § 1026.38(p)(3). 37(n) Signature Statement TILA section 128(b)(2)(B)(i) requires the following statement in transactions that are also subject to RESPA and where the extension of credit is secured by the consumer’s dwelling, other than timeshares: ‘‘You are not required to complete this agreement merely because you have received these disclosures or signed a loan application.’’ 15 U.S.C. 1638(b)(2)(B)(i). Current § 1026.19(a)(4) implements this provision by requiring, for transactions subject to RESPA that are secured by the consumer’s dwelling (other than home equity lines of credit subject to § 1026.5(b) and timeshares), the statement required by TILA section 128(b)(2)(B)(i) in the good faith estimates and corrected disclosures provided pursuant to § 1026.19(a)(1) and(2). The Bureau proposes to implement the signature requirement of TILA section 128(b)(2)(B)(i) in proposed § 1026.37(n), for all transactions subject to proposed § 1026.19(e). Proposed § 1026.37(n)(1) states that, at the PO 00000 Frm 00117 Fmt 4701 Sfmt 4702 51231 creditor’s option, lines for the signatures of the consumers in the transaction may be provided. The optional signatures lines would be located under the master heading ‘‘Additional Information About This Loan’’ required by proposed § 1026.37(k) and under the heading ‘‘Confirm Receipt.’’ Proposed § 1026.37(n)(1) also states that if the creditor includes a line for the consumer’s signature, the creditor is required to disclose to that, by signing the Loan Estimate, the consumer is only confirming receipt of the form and is not required to accept the loan. For transactions where the creditor does not include a line for the consumer’s signature, proposed § 1026.37(n)(2) requires disclosure of the statement that the consumer does not have to accept the loan because the consumer received or signed the Loan Estimate. The statement required by proposed § 1026.37(n)(2) is located under the heading ‘‘Other Considerations’’ required by proposed § 1026.37(m), labeled ‘‘Loan Acceptance.’’ Proposed comment 37(n)–1 clarifies that it is at the creditor’s discretion whether to provide a signature line for the consumer’s signature, but if a signature line is provided, the statement in proposed § 1026.37(n)(1) must be provided. Proposed comment 37(n)–2 clarifies that, if there is more than one consumer in the transaction, the first consumer signs as the applicant and each additional consumer signs as a ‘‘co-applicant.’’ Proposed comment 37(n)–2 also clarifies that the creditor may add an additional signature page to the back of the form if additional signature lines are necessary to accommodate the number of consumers in the transaction. The Bureau proposes to modify the signature language required by TILA section 128(b)(2)(B)(i) pursuant to its authority under TILA section 105(a), Dodd-Frank Act section 1032(a), and, for residential mortgage loans, DoddFrank Act section 1405(b). While the substance of the disclosure required by proposed § 1026.37(n) is the same as the statutory language, as discussed in the Kleimann Testing Report, the Bureau’s consumer testing indicated that consumers more easily understand from the proposed language that a signature does not bind them to accept the loan. Accordingly, the proposed modification promotes the informed use of credit, consistent with the purposes of TILA. For this same reason, the proposed modification will ensure that the features of the transaction are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, E:\FR\FM\23AUP2.SGM 23AUP2 51232 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 benefits, and risks associated with the mortgage transaction, consistent with Dodd-Frank Act section 1032(a), and will improve consumer awareness and understanding of residential mortgage loans and is in the interest of consumers and the public, consistent with DoddFrank Act section 1405(b). The Bureau also proposes to use its authority under TILA section 105(a), Dodd-Frank Act section 1032(a), and, for residential mortgage loans, DoddFrank Act section 1405(b) to expand the scope of TILA section 128(b)(2)(B)(i) to apply to all transactions subject to proposed § 1026.19(e). As discussed above, TILA section 128(b)(2)(B)(i) applies only to transactions subject to both TILA and RESPA that are secured by the consumer’s dwelling, and excludes transactions secured by the consumer’s interest in a timeshare. However, the Bureau believes that consumers in all transactions subject to proposed § 1026.19(e) will benefit from the disclosure because it ensures that consumers understand they are not obligated to complete the loan transaction just because they signed or received the Loan Estimate. Accordingly, the proposed disclosure promotes the informed use of credit, consistent with the purposes of TILA. For these same reasons, the Bureau believes that the proposed disclosure will ensure that the features of the transaction are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the mortgage transaction, consistent with Dodd-Frank Act section 1032(a), and will improve consumer awareness and understanding of residential mortgage loans and is in the interest of consumers and the public, consistent with Dodd-Frank Act section 1405(b). 37(o) Form of Disclosures TILA section 122(a) provides that the information required to be disclosed under TILA shall be disclosed clearly and conspicuously, in accordance with regulations of the Bureau. 15 U.S.C. 1632(a). TILA section 128(b)(1) provides that the disclosures required by sections 128(a) and 106(b) through (d) generally shall be conspicuously segregated from all other terms, data, or information provided in connection with a transaction, including any computations or itemization. Id. 1638(b)(1). Regulation Z currently implements these requirements for closed-end transactions in § 1026.17(a)(1), which provides that the disclosures shall be made clearly and conspicuously in writing, in a form that the consumer VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 may keep. Section 1026.17(a)(1) further provides that the disclosures shall be grouped together, shall be segregated from everything else, and shall not contain any information not directly related to the disclosures under § 1026.18 (and § 1026.47 for private education loans). As discussed above, the Bureau is proposing to exclude transactions subject to § 1026.19(e) and (f) from the coverage of § 1026.17(a) and (b). Consequently, the requirements of TILA sections 122(a) and 128(b)(1) must be implemented elsewhere. The Bureau, pursuant to its implementation authority under TILA section 105(a), therefore proposes to implement the statutory segregation and clear and conspicuous requirements of TILA sections 122(a) and 128(b)(1) for those disclosures in new §§ 1026.37(o) and 1026.38(t). The Bureau believes these requirements will effectuate the purposes of TILA by assuring a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit. In addition, § 1026.37(o) establishes a standard form requirement for transactions subject to RESPA and provides flexibility for certain aspects of the integrated disclosures. 37(o)(1) General Requirements Proposed § 1026.37(o)(1)(i) establishes the requirements that the disclosures required by § 1026.37 be clear and conspicuous, in writing, and grouped together, segregated from everything else, and provided on separate pages that are not commingled with any other documents or disclosures, including any other disclosures required by State or other laws. Proposed comment 37(o)–1 clarifies that the clear and conspicuous standard requires that the disclosures be legible and in a readily understandable form. This guidance is adopted from existing comment 17(a)(1)–1. The comment also clarifies that proposed § 1026.37(o)(1)(i) requires that the disclosures required by § 1026.37 be provided in a form that is physically separate from any other documents or disclosures, including any other disclosures required by State or other laws. This requirement is stricter than the guidance found in existing comment 17(a)(1)–2, which provides that the disclosures may be grouped together and segregated from other information in a variety of ways other than a separate piece of paper. The Bureau recognizes that, in certain credit sale and other non-mortgage, closed-end credit transactions, creditors PO 00000 Frm 00118 Fmt 4701 Sfmt 4702 include the disclosures required by § 1026.18 in the loan contract or some other document and ensure that they are grouped together and segregated by outlining them in a box or other means authorized by comment 17(a)(1)–2. The Bureau understands, however, that this approach is virtually never employed for mortgage credit, for which the new disclosures under proposed §§ 1026.19(e) and 1026.37, rather than § 1026.18 disclosures, are required. Mortgage creditors generally use a standardized note that cannot accommodate dynamically generated, transaction-specific disclosures, and they almost universally employ the model disclosure forms provided in appendix H to Regulation Z as standalone, separate documents for providing required TILA disclosures. The RESPA GFE and RESPA settlement statement forms required by RESPA for federally related mortgage loans currently are delivered as separate documents, in accordance with the standard form requirements of Regulation X. Moreover, the forms in this proposal were developed as stand-alone documents through an extensive outreach and consumer testing process, as discussed above, and the Bureau is concerned that much of the informative benefit of the forms could be lost or compromised if they were permitted to be included within other documents. For these reasons, it appears that requiring the § 1026.37 disclosures to be delivered as a separate document maximizes the benefits of the forms and does not present any significant new obligation that mortgage creditors do not already effectively observe. The Bureau seeks comment, however, on whether there currently are transactions subject to proposed § 1026.19(e) that may be burdened by the adoption of this requirement. Proposed § 1026.37(o)(1)(ii) also provides that, except as provided in § 1026.37(o)(5), the disclosures shall contain only the information required by § 1026.37(a) through (n) and that they generally shall be made in the same order, and positioned relative to the master headings, headings, subheadings, labels, and similar designations in the same manner, as shown in form H–24. Proposed comment 37(o)(1)–2 clarifies that, even if a creditor elects not to use the form as a model (when so permitted because the transaction is not a federally related mortgage loan, as discussed above), failure to comply with these requirements, to designate as ‘‘estimated’’ all disclosures designated as such in the form, or to use letter size paper as shown in form H–24 E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules constitutes noncompliance with the requirement of § 1026.37(o)(3)(ii) that the disclosures be made with headings, content, and format substantially similar to the model form. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 37(o)(2) Estimated Disclosures Proposed § 1026.37(o)(2) provides that, wherever form H–24 discloses the required master heading, heading, subheading, label, or similar designation for a disclosure as ‘‘estimated,’’ that corresponding master heading, heading, subheading, label, or similar designation required by § 1026.37 must contain the word ‘‘estimated,’’ even if the provision requiring such headings, label, or similar designation does not. As noted below under § 1026.38, many of the disclosure items required by that section cross-reference their estimated counterparts in § 1026.37, although the same items may not be estimates as required by § 1026.19(f). To avoid confusion over which items are estimates and which are not, the content provisions of § 1026.37 do not qualify any of the master headings, headings, subheadings, labels, and similar designations of the items disclosed as ‘‘estimated.’’ Instead, proposed § 1026.37(o)(2) incorporates by reference the ‘‘estimated’’ designations reflected on form H–24, and as discussed below, proposed § 1026.38(t)(2) incorporates by reference the ‘‘estimated’’ designations reflected on form H–25. 37(o)(3) Form Proposed § 1026.37(o)(3)(i) also provides that, for a transaction that is a federally related mortgage loan, as defined in Regulation X, the disclosures must be made using form H–24, set forth in appendix H to Regulation Z. The Bureau is proposing to require that creditors use a standard form (form H– 24 of appendix H) for federally related mortgage loans pursuant to RESPA section 4, as amended by the DoddFrank Act. 12 U.S.C. 2603(a). Section 4 has long authorized the use of standard forms. As discussed above, the DoddFrank Act amended section RESPA section 4(a) to require the integrated disclosures that are the subject of this proposal, which specifically include both the settlement statement under section 4 and the good faith estimate under section 5(c). Although the DoddFrank Act eliminated one reference in section 4(a) to a ‘‘standard’’ form, it left another reference in place, as well as another reference to a ‘‘standard’’ form in section 4(c). And by including the cross-reference to section 5(c) in section 4 in relation to the integrated disclosure mandate, Congress effectively extended RESPA’s existing standard-form VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 authority to the good faith estimate as well as the settlement statement requirement. More notably, in amending section 4(a), Congress did not include an explicit prohibition of a mandatoryuse form as is found in TILA section 105(b).182 For this reason, the Bureau does not believe that Congress intended to eliminate standard-form authority from RESPA section 4. The Bureau also proposes a mandatory form pursuant to its authority under RESPA section 19(a) to prescribe such rules and regulations as may be necessary to achieve RESPA’s purposes. 12 U.S.C. 2617(a). RESPA’s purposes include the establishment of more effective advance disclosure to home buyers and sellers of settlement costs. Id. 2601(b)(1). The Bureau believes, based on consumer testing results, that the purpose of more effective advance disclosure of settlement costs is better achieved if all lenders provide those disclosures in a standardized format that consumers can recognize and understand. Moreover, the credit terms included in the Loan Estimate facilitate and enhance the consumer’s ability to shop for the bestpriced loan, including settlement charges, which have a direct relationship to, and can overlap with, credit terms. Disclosure of the settlement costs alone, without the context provided by the credit terms, is therefore far less effective. This is consistent with HUD’s rationale in HUD’s 2008 RESPA Final Rule for including credit terms in its good faith estimate form. See 73 FR 68204, 68214– 15 (Nov. 17, 2008). Accordingly, the Bureau is authorized under section 19(a) to require the standard form for the disclosure of all of the information it contains, both settlement costs and credit terms alike. Certain closed-end consumer credit transactions are subject to the requirements of proposed § 1026.19(e) but do not fall within the Regulation X definition of ‘‘federally related mortgage loan.’’ These include construction-only loans with terms of less than two years that do not finance the transfer of title to the borrower and loans secured by vacant land on which a home will not be constructed or placed using the loan proceeds within two years after settlement of the loan. See § 1024.5(b)(3) and (4). In addition, transactions subject to proposed § 1026.19(e) but not subject to RESPA would include loans secured by non-residential real property, 182 TILA section 105(b) states that ‘‘nothing in this title may be construed to require a creditor or lessor to use any such model form or clause prescribed by the Bureau under this section.’’ 15 U.S.C. 1604(b). PO 00000 Frm 00119 Fmt 4701 Sfmt 4702 51233 provided they have a consumer purpose as required by § 1026.1(c)(1)(iv). See § 1024.2, definition of ‘‘federally related mortgage loan,’’ paragraph (1)(i) (requiring that the securing property be ‘‘residential real property’’). For such transactions that are subject to proposed § 1026.19(e) because they are subject to TILA and are secured by real property, but that are not subject to RESPA, the Bureau does not mandate the use of form H–24 as a standard form. As noted above, TILA section 105(b) explicitly provides that nothing in TILA may be construed to require a creditor to use any model form or clause prescribed by the Bureau under that section. Accordingly, proposed § 1026.37(o)(3)(ii) provides that, for transactions subject to § 1026.37 that are not federally related mortgage loans, the disclosures must be made with headings, content, and format substantially similar to form H–24 but does not mandate the use of that form. Consistent with TILA section 105(b), proposed comment 37(o)(3)–1 explains that, although use of the form as a standard form is not mandatory for such transactions, its use as a model form, if properly completed with accurate content, constitutes compliance with the clear and conspicuous and segregation requirements of § 1026.37(o). In consideration of the recommendation of the Small Business Review Panel, the Bureau seeks comment on the advantages, such as cost-saving benefits, and disadvantages of requiring a standard form for the Loan Estimate for federally related mortgage loans and model forms for other credit transactions subject to proposed § 1026.19(e). See Small Business Review Panel Report at 28. Proposed § 1026.37(o)(3)(iii) also provides that the disclosures may be provided in electronic form, subject to compliance with the Electronic Signatures in Global and National Commerce Act (15 U.S.C. 7001 et seq.). This provision parallels existing § 1026.17(a)(1). 37(o)(4) Rounding The prototype disclosure forms used in the Bureau’s consumer testing displayed rounded numbers for certain information required to be disclosed by proposed § 1026.37. For example, rounded numbers were disclosed for the information required by proposed § 1026.37(b)(6) and (7), (c)(1)(iii), (c)(2)(ii) and (iii), (c)(4)(ii), (f), (g), (h), (i), and (l). In addition, the total monthly payment required by proposed § 1026.37(c)(2)(iv) was rounded if any of its component amounts were required to be rounded. The loan amount required E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51234 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules to be disclosed by proposed § 1026.37(b)(1) and percentage amounts required to be disclosed by proposed § 1026.37(b)(2) and (6), (f)(1)(i), (g)(2)(iii), (j), and (l)(2) and (3) that did not contain cents or fractional amounts were disclosed without decimal places. In the Bureau’s consumer testing, using rounded numbers in this manner, consumers were able to see and evaluate the information required by the abovementioned paragraphs of proposed § 1026.37 quickly. The Bureau is concerned that a large number of exact dollar amounts and percentages has the potential to cause information overload and reduce the overall effectiveness of the disclosure. The Bureau believes that rounding certain amounts on the Loan Estimate reduces the quantity of numbers on the form and the complexity of information about potential risks. For example, participants at the Bureau’s testing were able to evaluate the risks of maximum payments and interest rates in the Loan Terms table using rounded numbers, as well as evaluate the rounded closing cost estimates, enhancing the utility of the disclosure for consumers. The Bureau believes the exact number of cents or decimal places for information required to be disclosed by the abovementioned paragraphs of proposed § 1026.37 at the time the Loan Estimate is provided would not provide a benefit to consumers that would outweigh the risk of information overload. Accordingly, the Bureau proposes to use its implementation authority under TILA section 105(a), its authority under section 1032(a) of the Dodd-Frank Act, and its authority under section 1405(b) of the Dodd-Frank Act with respect to residential mortgage loans, to require only rounded numbers and percentages without fractional amounts to be disclosed without decimal places for certain information on the Loan Estimate. Whole dollar and certain whole percentage amounts appear to be sufficient to inform consumers of the estimated periodic payment amounts, estimated closing costs, financial risks posed by maximum amounts, and ensure a meaningful disclosure of credit terms. In addition, the disclosure of exact amounts could suggest to consumers a degree of accuracy that may not be warranted for some of the estimated figures. The Bureau believes this requirement ensures the meaningful disclosure of credit terms to consumers and promotes the informed use of credit. In addition, the Bureau believes this requirement may ensure that the features of any consumer financial product or service, both initially and over the term of the product or service, VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the product or service, in light of the facts and circumstances. Further, the Bureau believes this requirement may improve consumer awareness and understanding of transactions involving residential mortgage loans and is in the interest of consumers and in the public interest. Proposed § 1026.37(o)(4)(i)(A) requires only rounded numbers for the information disclosed pursuant to proposed § 1026.37(b)(6) and (7), (c)(1)(iii), (c)(2)(ii) and (iii), (c)(4)(ii), (f), (g), (h), (i), and (l). Proposed § 1026.37(o)(4)(i)(B) requires the loan amount disclosed pursuant to proposed § 1026.37(b)(1) to be disclosed without decimal places denoting cents if the amount of cents are zero. Proposed § 1026.37(o)(4)(i)(C) requires the total monthly payment disclosed pursuant to proposed § 1026.37(c)(2)(iv) to be disclosed as a rounded number if any of its component amounts are required to be rounded. Proposed § 1026.37(o)(4)(ii) requires percentages without fractional amounts that are disclosed pursuant to proposed § 1026.37(b)(2) and (6), (f)(1)(i), (g)(2)(iii), (j), and (l)(2) and (3) to be disclosed without decimal places. Proposed comment 37(o)(4)–1 provides clarifies that consistent with § 1026.2(b)(4) all numbers are to be disclosed as exact numbers, unless required to be rounded by proposed § 1026.37(o)(4). Proposed comments 37(o)(4)–2, 37(o)(4)(i)(A)–1, 37(o)(4)(i)(B)–1, and 37(o)(4)(ii)–1 provide guidance regarding rounding amounts on the Loan Estimate. 37(o)(5) Exceptions The Bureau’s consumer testing has indicated that the format of information on the disclosures required by proposed § 1026.37 substantially affects the way in which a consumer interacts with and understands the information disclosed. In addition, the Bureau understands that credit and real estate transactions involve significant variability and believes that it is important to provide industry with clear guidance regarding permissible changes to the format requirements to accommodate this variability. Accordingly, the Bureau believes it must specify the changes to the format that are required and permissible, to ensure the disclosures provided to consumers convey the information required by proposed § 1026.37 in a clear, understandable, and effective manner for consumers. As described above, pursuant to RESPA section 19(a), 12 U.S.C. 2617(a), PO 00000 Frm 00120 Fmt 4701 Sfmt 4702 § 1024.7 of Regulation X currently requires the use of a standard from to provide the disclosures required by section 5 of RESPA, 12 U.S.C. 2604. In contrast, TILA section 105(b), 15 U.S.C. 1604(b), provides for model disclosures instead of a standard form. However, TILA permits creditors to delete information not required under the statute, other than numerical disclosures, and rearrange the format, only if doing so does not affect the substance, clarity, or meaningful sequence of the disclosure. Pursuant to its authority under RESPA section 19(a), its implementation authority under TILA section 105(a), and its authority under section 1032(a) of the Dodd-Frank Act, the Bureau proposes § 1026.37(o)(5), which sets forth the required changes to the format required to be used by proposed § 1026.37(o)(3), illustrated by form H–24 in appendix H to Regulation Z, and the permissible changes that do not affect the substance, clarity, or meaningful sequence of the disclosure. In addition, consistent with section 1032(a) of the Dodd-Frank Act, providing specified changes to the form would ensure that the features of consumer credit transactions secured by real property are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the product or service, in light of the facts and circumstances. The Bureau believes providing for only specified changes to the form effectuates the purposes of TILA set forth in TILA section 102(a) and the purpose of the integrated disclosure set forth in TILA section 105(b), because it would ensure meaningful disclosure of credit terms to consumers, promote the informed use of credit, and facilitate compliance by providing flexibility where warranted. In addition, the Bureau believes this requirement would effectuate the purposes of RESPA by promoting more effective advance disclosure of settlement costs. Accordingly, proposed § 1026.37(o)(5) specifies certain changes to form H–24 that are required or that do not affect the substance, clarity, or meaningful sequence of the disclosure and therefore are permissible. Proposed § 1026.37(o)(5)(i) requires the substitution of the words ‘‘month’’ or ‘‘monthly’’ on the form H–24, where used to designate the frequency of payments or the applicable unit-period of the transaction, with a different word representing the frequency of payments or unit-period under the transaction’s actual terms, if different from monthly. Proposed § 1026.37(o)(5)(ii) permits the E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 deletion of lender credits from the Cash to Close table, required by proposed § 1026.37(d)(4), if the amount is zero. Proposed § 1026.37(o)(5)(iii) permits the use of a logo for, or addition of a slogan with, the information required by proposed § 1026.37(a)(3), and requires the information disclosed pursuant to § 1026.37(a)(3), if no logo is used, to be disclosed in a similar format as form H– 24 of appendix H to Regulation Z. Proposed § 1026.37(o)(5)(iv) permits the attachment of a business card over the information required by proposed § 1026.37(a)(3). Proposed § 1026.37(o)(5)(v) permits the insertion of administrative information above the information required to be disclosed by proposed § 1026.37(a)(2) and adjacent to the information required to be disclosed by proposed § 1026.37(a)(3) to assist in the identification of the form or the information contained on the form. Proposed § 1026.37(o)(5)(vi) permits the form to be translated into languages other than English. The Bureau understands that some State laws require versions of the disclosures required under TILA and RESPA to be provided to consumers in a language other than English when the negotiation of the transaction is conducted in that language.183 In addition, some of the regulatory authorities in these States publish their own translations of these disclosures for use by the public.184 The Bureau’s consumer testing included two rounds of testing with Spanish-speaking consumers of Spanish-language prototype disclosure forms to determine whether co-development of a nonEnglish version of the disclosure would be beneficial to consumers.185 The Bureau determined that co-development of a separate non-English version of the disclosures would likely yield little benefit to consumers, because any differences in performance with the Spanish prototypes during testing were caused more by translation than design and structure issues. This may be due, in part, because the Bureau 183 See Cal. Civ. Code §§ 1632, 1632.5, Or. Rev. Stat. § 86A.198. 184 The California Department of Corporations has translated the RESPA GFE into Chinese, Korean, Tagalog, and Vietnamese, available at https:// www.corp.ca.gov/Forms/Default.asp. The Oregon Division of Finance and Corporate Securities provides version of the RESPA GFE and early TILA disclosure in Russian, Spanish, and Vietnamese, available at https://www.cbs.state.or.us/dfcs/ml/ mortgage_disclosures_translations.html. 185 According to the U.S. Census Bureau, based on data from the 2007 American Community Survey, 55.4 million people spoke a language other than English at home, and of those people, 62 percent spoke Spanish. U.S. Census Bureau, Language Use in the United States: 2007, ACS–12 (Apr. 2010), available at https://www.census.gov/ hhes/socdemo/language/data/acs/ACS–12.pdf. VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 intentionally pursued a more graphic than textual design for the Loan Estimate with as few words as possible. This design highlights key information and allows consumers to quickly recognize and find the key information about the transaction without large amounts of text. The differences in language did not necessitate changes to the design of the disclosure. Accordingly, the proposed rule only includes English-language disclosure forms and permits the translation of these forms. The Bureau plans to review issues surrounding translations of the integrated disclosures after issuance of this proposal. As discussed below with respect to appendix H, the Bureau solicits comment on whether the final rule should include sample Spanishlanguage or other non-English language forms. Proposed comment 37(o)(5)–1 clarifies that creditors making any changes that are not expressly permitted may lose their protection from civil liability under TILA. Proposed comment 37(o)(5)–2 clarifies that the form may be completed by hand, typewriter, computer, or other word processing device, as long as the method produces clear and legible text and uses the required formatting, including bold font where shown on form H–24. Such completion by hand or typewriter would not exempt the creditor from the requirement to keep records in an electronic, machine readable format under proposed § 1026.25. Proposed comment 1026.37(o)(5)–3 clarifies that if there are multiple creditors or mortgage brokers for a transaction, a creditor may alter the space provided on form H–24 and add labels to disclose additional contact information under proposed § 1026.37(m), or disclose the additional information on a separate page with an appropriate cross-reference, if the space provided does not accommodate the information to be disclosed on the page. Proposed comment 1026.37(o)(5)–4 clarifies that a creditor may add signature lines to form H–24 under the ‘‘Confirm Receipt’’ heading required by proposed § 1026.37(n), or an additional page with an appropriate crossreference, if the space provided by form H–24 cannot accommodate the signature lines for multiple applicants. Proposed comment 1026.37(o)(5)–5 clarifies the requirements of proposed § 1026.37(o) as they apply to the use of a separate page. PO 00000 Frm 00121 Fmt 4701 Sfmt 4702 51235 Section 1026.38 Content of Disclosures for Certain Mortgage Transactions (Closing Disclosure) Proposed § 1026.38 sets forth the required content of the integrated Closing Disclosure, required by proposed § 1026.19(f) to be provided to a consumer no later than three business days prior to consummation. As discussed above, the Closing Disclosure integrates the disclosures currently provided in the RESPA settlement statement and the final TILA disclosure. In addition, the Closing Disclosure integrates several disclosures, including new disclosures under the Dodd-Frank Act, that otherwise would likely have been provided separately. The Bureau believes that the five-page Closing Disclosure integrates at least nine pages of disclosures. Specifically, the Closing Disclosure incorporates: (i) Three pages of the RESPA settlement statement; (ii) two pages typically used for the final TILA disclosure; (iii) one page for the negative amortization statement under TILA section 129C(f), which was added by section 1414(a) of the Dodd-Frank Act; (iv) one page for the anti-deficiency protection notice under TILA section 129C(g)(2), which was added by section 1414(c) of the Dodd-Frank Act; (v) one page for the partial payment policy disclosure under TILA section 129C(h), which was added by section 1414(d) of the Dodd-Frank Act; and (vi) one page for the escrow account disclosures under TILA sections 129D(h) and (j), which were added by sections 1461 and 1462 of the Dodd-Frank Act. In addition, the Closing Disclosure incorporates the disclosure of: (i) The total interest percentage under TILA section 128(a)(19), which was added by section 1419 of the Dodd-Frank Act; (ii) the approximate amount of the wholesale rate of funds in connection with the loan under TILA section 128(a)(17), which was added by section 1419 of the Dodd-Frank Act; and (iii) the aggregate amount of settlement charges for all settlement services provided in connection with the loan and the aggregate amount of other fees or required payments in connection with the loan under TILA section 128(a)(17), which was added by section 1419 of the Dodd-Frank Act. In absence of the Bureau’s integration of the final TILA disclosure and the RESPA settlement statement, these disclosures would have been added to the final TILA disclosure, which potentially could have increased that disclosure’s typical two pages to three pages. As in the case of the disclosure content required by proposed § 1026.37, E:\FR\FM\23AUP2.SGM 23AUP2 51236 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules discussed above, § 1026.38 provides that the information set forth in proposed § 1026.38(a) through (s) shall be disclosed ‘‘as applicable.’’ Accordingly, the Bureau is proposing parallel commentary under § 1026.38 to that proposed under § 1026.37. Thus, proposed comment 38–1 clarifies that a disclosure that is not applicable to a transaction generally may be eliminated entirely or may be included and marked ‘‘not applicable’’ or ‘‘N/A.’’ mstockstill on DSK4VPTVN1PROD with PROPOSALS2 38(a) General Information As with the Loan Estimate in proposed § 1026.37(a), the Bureau proposes to use its authority under TILA section 105(a), and its authority under RESPA section 19(a), Dodd-Frank Act sections 1032(a) and (f), 1098, and 1100A, and for residential mortgage loans, Dodd-Frank Act section 1405(b), to combine and modify disclosures and related requirements currently provided under Regulations X and Z and add additional disclosures in the Closing Disclosure for transactions subject to proposed § 1026.19(f). 38(a)(1) Form Title Like the integrated disclosure provided three business days after application, TILA, RESPA, and the Dodd-Frank Act do not expressly prescribe a title for the form that must be provided in connection with a settlement. RESPA refers to the form as the ‘‘uniform settlement statement,’’ although § 1024.8 of Regulation X uses the titles HUD–1 and HUD–1A to refer to the forms used to document settlement charges in connection with the purchase of a property or refinancing of an existing mortgage loan, respectively. Regulation Z, however, does not prescribe a title for the disclosures that must be provided to the consumer three business days prior to settlement. Proposed § 1026.38(a)(1) requires the creditor to use the term ‘‘Closing Disclosure’’ as the name of the integrated disclosures provided to consumers three business days prior to settlement pursuant to proposed § 1026.19(f). The Bureau believes the adoption of a standardized form name will effectuate the purposes of TILA and RESPA by promoting the informed use of credit and more effective advance notice of settlement costs, consistent with TILA section 105(a) and RESPA section 19(a), and will ensure that the features of the transaction are fully, accurately and effectively disclosed to consumers in a manner that permits consumers to better understand the costs, benefits, and risks associated with mortgage transactions in light of the VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 facts and circumstances, consistent with Dodd-Frank Act section 1032(a). In addition, the use of standard terminology for the integrated disclosures will facilitate compliance for industry, which is a purpose of this rulemaking under Dodd-Frank Act sections 1098 and 1100A. The Bureau also believes that, consistent with section 1405(b) of the Dodd-Frank Act, the requirement of a standard form name may improve consumer awareness and understanding of transactions involving residential mortgage loans through the use of disclosures, and is in the interest of consumers and in the public interest. 38(a)(2) Form Purpose Proposed § 1026.38(a)(2) requires the creditor to include a statement regarding the purpose of the Closing Disclosure. Specifically, proposed § 1026.38(a)(2) requires creditors to provide the following statement: ‘‘This form is a statement of final loan terms and closing costs. Compare this document with your Loan Estimate.’’ Providing the purpose of the Closing Disclosure is a new requirement, as neither creditors nor settlement agents are currently required to provide this type of information in the disclosures required by TILA, RESPA, and their implementing regulations. Nonetheless, this disclosure will benefit consumers and promote the informed use of credit by encouraging consumers to use both the Loan Estimate and Closing Disclosure as tools to identify changes in costs and terms that may have occurred after issuance of the Loan Estimate. Accordingly, this disclosure will benefit consumers and effectuate the purposes of TILA and RESPA by promoting the informed use of credit and more effective advance notice of settlement costs, consistent with TILA section 105(a) and RESPA section 19(a), and will ensure that the features of the transaction are fully, accurately and effectively disclosed to consumers in a manner that permits consumers to better understand the costs, benefits, and risks associated with mortgage transactions, in light of the facts and circumstances, consistent with Dodd-Frank Act section 1032(a). 38(a)(3) Closing Information Appendix A to Regulation X currently requires the settlement agent to include in the RESPA settlement statement basic information about the settlement process, including the name of the settlement agent, the place of settlement, the property location, and the settlement date. In addition to this information, with the exception of the place of settlement, proposed PO 00000 Frm 00122 Fmt 4701 Sfmt 4702 § 1026.38(a)(3) requires creditors to disclose: (1) The date the Closing Disclosure is issued; (2) the dates funds are disbursed to the seller and consumer, as applicable; (3) the sale price of the property that is the subject of the transaction; and (4) the file number assigned to the transaction by the closing agent. All of the aforementioned information would be located under the heading ‘‘Closing Information.’’ The Bureau believes that this information and the additional information discussed below effectuate the purposes of TILA and RESPA by promoting the informed use of credit and more effective advance notice of settlement costs, consistent with TILA section 105(a) and RESPA section 19(a), and will ensure that the features of the transaction are fully, accurately and effectively disclosed to consumers in a manner that permits consumers to better understand the costs, benefits, and risks associated with mortgage transactions, in light of the facts and circumstances, consistent with Dodd-Frank Act section 1032(a). 38(a)(3)(i) Date Issued Proposed § 1026.38(a)(3)(i) requires the creditor to disclose the date the disclosures required for transactions subject to § 1026.19(f) are issued to the consumer, labeled ‘‘Date Issued.’’ Proposed comment § 1026.38(a)(3)(i)–1 cross-references the commentary to proposed § 1026.37(a)(4). 38(a)(3)(ii) Closing Date Proposed § 1026.38(a)(3)(ii) requires the creditor to disclose the consummation date for the mortgage loan transaction, labeled ‘‘Closing Date.’’ 38(a)(3)(iii) Disbursement Date Proposed § 1026.38(a)(3)(iii) requires the disclosure of the date the amounts disclosed pursuant to proposed § 1026.38(j)(3)(iii) and (k)(3)(iii) are expected to be paid to the consumer and seller, respectively, labeled ‘‘Disbursement Date.’’ 38(a)(3)(iv) Agent Proposed § 1026.38(a)(3)(iv) requires the identity of the settlement agent conducting the closing, labeled ‘‘Agent.’’ Proposed comment 38(a)(3)(iv)–1 clarifies that the name of the agency that employs the settlement agent should be provided in the disclosure required by § 1026.38(a)(3)(iv) and that the name of the individual conducting the closing is not required. E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 38(a)(3)(v) File Number Proposed § 1026.38(a)(3)(v) requires disclosure of the number assigned to the transaction by the closing agent for identification purposes, labeled ‘‘File #.’’ 38(a)(3)(vi) Property Proposed § 1026.38(a)(3)(vi) requires the street address of the property required to be disclosed under proposed § 1026.37(a)(6), labeled ‘‘Property.’’ Proposed comment 38(a)(3)(iv)–1 crossreferences the commentary to § 1026.37(a)(6), which provides guidance regarding the information that must be provided in response to this requirement when a standard property address is unavailable. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 38(a)(3)(vii) Sale Price In credit transactions where there is a seller, proposed § 1026.38(a)(3)(vii)(A) requires disclosure of the contract sale price for the property identified in proposed § 1026.38(a)(3)(vi), labeled ‘‘Sale Price.’’ In transactions where there is no seller, proposed § 1026.38(a)(3)(vii)(B) requires disclosure of the appraised value of the property in proposed § 1026.38(a)(3)(vi), labeled ‘‘Appraised Prop. Value.’’ Proposed comment 38(a)(3)(vii)–1 provides guidance regarding disclosing the property value when there is no seller that is a party to the transaction. 38(a)(4) Transaction Information Proposed § 1026.38(a)(4) requires the creditor to disclose the names and addresses of the parties to the transaction: The borrower, seller, and lender, as applicable. This information would appear under the heading ‘‘Transaction Information.’’ These disclosures are currently provided in the RESPA settlement statement. See appendix A to Regulations X. In addition, TILA section 128(a)(1) and Regulation Z § 1026.18(a) require disclosure of the identity of the creditor. The Bureau believes that these disclosures effectuate the purposes of TILA and RESPA by promoting the informed use of credit and more effective advance notice of settlement costs, consistent with TILA section 105(a) and RESPA section 19(a), and will ensure that the features of the transaction are fully, accurately and effectively disclosed to consumers in a manner that permits consumers to better understand the costs, benefits, and risks associated with mortgage transactions, in light of the facts and circumstances, consistent with Dodd-Frank Act section 1032(a). Proposed comment 38(a)(4)–1 clarifies that the name and address for each VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 consumer and seller must be provided and refers creditors to the commentary to proposed § 1026.37(a)(5) for further guidance. Proposed comment 38(a)(4)–1 also clarifies that the name and address of each consumer must be provided and that if the form does not provide enough space to include the required information for each seller, an additional page with that information may be appended to the end of the form, provided the creditor is in compliance with proposed § 1026.38(t)(3). Proposed comment 38(a)(5)–2 clarifies that, in transactions where there is no seller such as in a refinancing or home equity loan, the creditor must provide the name of the person or persons primarily liable under the obligation or who have a right of rescission. Finally, proposed comment 38(a)(4)–3 cross-references the commentary to proposed § 1026.37(a)(3) for information regarding the identification of multiple creditors. 38(a)(5) Loan Information Proposed § 1026.38(a)(5) requires the creditor to provide certain information about the mortgage loan that is the subject of the transaction. With the exception of the mortgage insurance case number required by proposed § 1026.38(a)(5)(vi), all of the disclosures required under proposed § 1026.38(a)(5) mirror the disclosures required by proposed § 1026.37(a)(8) through (12). The Bureau believes that these disclosures effectuate the purposes of TILA and RESPA by promoting the informed use of credit and more effective advance notice of settlement costs, consistent with TILA section 105(a) and RESPA section 19(a), and will ensure that the features of the transaction are fully, accurately and effectively disclosed to consumers in a manner that permits consumers to better understand the costs, benefits, and risks associated with mortgage transactions, in light of the facts and circumstances, consistent with Dodd-Frank Act section 1032(a). Proposed comment 38(a)(5)–1 refers the creditor to the commentary to proposed § 1026.37(a)(9) through (11) for further guidance on the general requirements and definitions applicable to proposed § 1026.38(a)(5)(i) through (v). The disclosures required by proposed § 1026.38(a)(5) appear under the heading ‘‘Loan Information.’’ 51237 38(a)(5)(ii) Purpose Proposed § 1026.38(a)(5)(ii) requires disclosure of the purpose of the loan, consistent with proposed § 1026.37(a)(9) and labeled ‘‘Purpose.’’ 38(a)(5)(iii) Product Proposed § 1026.38(a)(5)(iii) requires disclosure of the loan product, consistent with proposed § 1026.37(a)(10) and labeled ‘‘Product.’’ 38(a)(5)(iv) Loan Type Proposed § 1026.38(a)(5)(iv) requires disclosure of the loan type, consistent with proposed § 1026.37(a)(11) and labeled ‘‘Loan Type.’’ 38(a)(5)(v) Loan Identification Number Proposed § 1026.38(a)(5)(v) requires disclosure of the loan identification number, consistent with proposed § 1026.37(a)(12) and labeled ‘‘Loan ID #.’’ 38(a)(5)(vi) Mortgage Insurance Case Number The mortgage insurance case number currently is disclosed in section B of the RESPA settlement statement. See appendix A to Regulation X. Proposed § 1026.38(a)(5)(vi) incorporates this disclosure into the Closing Disclosure, labeled ‘‘MIC #.’’ 38(a)(5)(i) Loan Term 38(b) Loan Terms For transactions subject to proposed § 1026.19(f), proposed § 1026.38(b) implements the requirements of TILA section 128(a)(6), (a)(11), and (b)(2)(C)(ii) by requiring creditors to disclose on the Closing Disclosure the table of key loan terms provided on the Loan Estimate pursuant to proposed § 1026.37(b). This information includes the loan amount; interest rate; periodic principal and interest payment; whether the loan amount, interest rate, or periodic payment may increase; and whether the loan has a prepayment penalty or balloon payment. For a detailed description of the Bureau’s implementation of these statutory provisions and its legal authority for this proposal, see the section-by-section analysis to proposed § 1026.37(b). The requirements of proposed § 1026.38(b) generally mirror those of proposed § 1026.37(b). Accordingly, proposed comment 38(b)–1 directs creditors to the commentary to proposed § 1026.37(b) for guidance on the disclosures required by proposed § 1026.38(b). Proposed § 1026.38(a)(5)(i) requires disclosure of the term of the loan, consistent with proposed § 1026.37(a)(8) and labeled ‘‘Loan Term.’’ 38(c) Projected Payments Proposed § 1026.38(c) implements the requirements of TILA section 128(a)(6), (a)(16), (b)(2)(C), and (b)(4) for PO 00000 Frm 00123 Fmt 4701 Sfmt 4702 E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51238 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules transactions subject to proposed § 1026.19(f), by requiring creditors to disclose on the Closing Disclosure the periodic payment or range of payments, together with an estimate of the taxes, insurance, and assessments and the payments to be made with escrow account funds. 15 U.S.C. 128(a)(6), (a)(16), (b)(2)(C), (b)(4). The requirements of proposed § 1026.38(c) generally mirror those of proposed § 1026.37(c), with certain exceptions which are discussed below. Accordingly, proposed comment 38(c)– 1 directs creditors to § 1026.37(c) and its commentary for guidance on the disclosures required by § 1026.38(c). For a detailed description of the Bureau’s implementation of these statutory provisions and its legal authority for this proposal, see the section-by-section analysis to proposed § 1026.37(c) above. As discussed below in the section-bysection analysis to proposed § 1026.38(t), the items required to be disclosed pursuant to § 1026.38 will be actual terms and costs, as required by § 1026.19(f). Proposed § 1026.38(c) differs from proposed § 1026.37(c) in several ways. First, proposed § 1026.38(c)(2) requires an additional reference to the information required by proposed § 1026.38(l)(7). The Bureau believes, based on consumer testing, that this additional reference will help consumers to understand the specific payment amounts to be made with escrow funds and those that must be paid separately by the consumer. Second, proposed § 1026.38(c) contains different rules for estimating escrow payments. As discussed in the sectionby-section analysis to proposed § 1026.37(c), the Dodd-Frank Act amended TILA to add new requirements regarding the disclosure of escrow payments in consumer credit transactions secured by a first mortgage on the principal dwelling of the consumer, other than an open-end credit plan or reverse mortgage. Specifically, TILA section 128(b)(4)(A) provides that the disclosures required by TILA section 128(a)(6) must take into account the amount of any monthly payment to an escrow account, in accordance with section 10(a)(2) of RESPA. 15 U.S.C. 1638(b)(4)(A); 12 U.S.C. 2609(a)(2). In addition, new TILA section 128(b)(4)(B) generally requires creditors to take into account the taxable assessed value of the property during the first year after consummation, including the value of any improvements constructed or to be constructed on the property, if known, and the replacement costs of the VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 property for hazard or flood insurance, when disclosing estimated escrow payments pursuant to TILA section 128(b)(4)(A). 15 U.S.C. 1638(b)(4)(B). For the Loan Estimate provided to consumers near the time of application, proposed § 1026.37(c) generally incorporates these statutory provisions, but expands the requirements to all transactions subject to § 1026.37(c). However, the Bureau believes that separate treatment is required for the Closing Disclosure because the statutory requirements may conflict with certain provisions of Regulation X, which implements the provisions of RESPA sections 6(g) and 10, regarding the administration of escrow accounts. 12 U.S.C. 2605(g); 2609. Regulation X § 1024.17(c)(7) specifies how a creditor conducting an escrow account analysis must estimate disbursement amounts. If the creditor knows the charge for a particular escrow item, the creditor must use that amount in estimating the disbursement. If the charge is unknown, the creditor may base the estimate on the preceding year’s charge, but may adjust the estimate to account for inflation. The Regulation X requirement that the creditor use actual charges, if known, in estimating escrow payment amounts may conflict with the TILA section 128(b)(4)(B) requirement that the creditor take into account the replacement costs of the property for hazard insurance when determining the estimated escrow amount. Under the plain language of TILA section 128(b)(4)(B), a creditor must base estimated escrows for hazard insurance on the replacement costs of the property, even if it knows that the actual charges will be different. While the Bureau believes that the TILA requirement for estimating escrow payments is appropriate for the Loan Estimate because it requires creditors to use a uniform standard for estimates and therefore facilitates comparison, the disclosure of actual payment amounts, when known, is appropriate for the Closing Disclosure. Accordingly, the Bureau proposes to use its authority under TILA section 105(a), Dodd-Frank Act section 1032(a), and, for residential mortgage loans, Dodd-Frank Act section 1405(b) to modify the requirements of TILA section 128(b)(4)(B) for the estimation of escrow payment amounts on the Closing Disclosure. Proposed § 1026.38(c) provides that, in disclosing estimated escrow payments as described in § 1026.37(c)(2)(iii) and (4)(ii), the amount disclosed on the Closing Disclosure: (1) For transactions subject to RESPA, is determined under the PO 00000 Frm 00124 Fmt 4701 Sfmt 4702 escrow account analysis described in Regulation X, 12 CFR 1024.17, and (2) for transactions not subject to RESPA, may be determined under the escrow account analysis described in Regulation X, 12 CFR 1024.17, or in the manner set forth in § 1026.37(c)(5). Comment 38(c)(1)–1 clarifies that the amount of estimated escrow payments disclosed on the Closing Disclosure is accurate if it differs from the estimated escrow payment disclosed on the Loan Estimate due to the escrow account analysis described in Regulation X, 12 CFR 1024.17. The Bureau believes the proposed modification will effectuate the purposes of TILA by promoting the informed use of credit by allowing disclosure of actual escrow amounts for hazard insurance, when known. Additionally, the proposed modification will ease compliance burden for creditors. In particular, permitting creditors in transactions not subject to RESPA to rely on the accounting rules described in Regulation X, 12 CFR 1024.17, to calculate the escrow payment disclosure will avoid requiring creditors to follow a separate disclosure requirement for the relatively small number of transactions that are subject to TILA but not RESPA. The proposed modification will also improve consumer awareness and understanding of residential mortgage loans and is in the interest of consumers and the public, consistent with Dodd-Frank Act section 1405(b). The Bureau also believes that the disclosure ensures that the features of consumer credit transactions secured by real property are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the product or service, in light of the facts and circumstances, consistent with Dodd-Frank Act section 1032(a). 38(d) Cash To Close Pursuant to its authority under TILA section 105(a) and Dodd-Frank section 1032(a), the Bureau proposes to require creditors to provide the actual total closing costs imposed upon the consumer and the amount of the cash required at consummation from the consumer. This disclosure will promote the informed use of credit and consumer understanding of the costs, benefits, and risks associated with the loan because it will indicate to the consumer the amount the consumer will pay at consummation of the credit transaction and closing of the real estate transaction. Accordingly, proposed § 1026.38(d) requires the disclosure of the cash required from the consumer at consummation of the transaction, with a E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules breakdown of the amounts of loan costs and other costs associated with the transaction. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 38(d)(1) to (d)(6) Under proposed § 1026.38(d)(1), the dollar amount due from the consumer is the same amount as calculated in accordance with proposed § 1026.38(j)(3)(iii) and is disclosed under a heading of ‘‘Cash to Close’’ and labeled ‘‘Cash to Close.’’ The total dollar amount of the loan costs to be paid by the consumer at closing as calculated under proposed § 1026.38(f)(4) is disclosed under proposed § 1026.38(d)(2). The total dollar amount of the other costs to be paid by the consumer at closing as calculated under proposed § 1026.38(g)(5) is disclosed under proposed § 1026.38(d)(3). The amount of lender credits disclosed under § 1026.38(h)(3) is disclosed under § 1026.38(d)(4). The sum of the amounts disclosed under § 1026.38(d)(2), 1026.38(d)(3), and 1026.38(d)(4) is disclosed with a description of ‘‘Closing Costs’’ under § 1026.38(d)(5). A statement directing the consumer to refer to the page of the Closing Disclosure that contains the tables required under § 1026.38(f) and (g) is required under § 1026.38(d)(6). 38(f),(g), and (h) Closing Cost Details Currently, RESPA section 4(a) requires that the forms published by the Bureau ‘‘* * * shall conspicuously and clearly itemize all charges imposed upon the borrower and all charges imposed upon the seller in connection with the settlement * * *.’’ 12 U.S.C. 2603(a). The current RESPA settlement statement used in residential real estate transactions is promulgated under Regulation X § 1024.8, with instructions in appendix A of Regulation X. As discussed above, Dodd-Frank Act section 1032(f) requires the Bureau to combine these RESPA disclosures with the disclosures required by TILA. However, section 1419 of the DoddFrank Act amended TILA section 128(a) to also require, in the case of a residential mortgage loan, disclosure of the aggregate amount of settlement charges for all settlement services provided in connection with the loan and the aggregate amount of other fees or required payments in connection with the loan. 15 U.S.C. 1638(a)(17). Pursuant to its authority under DoddFrank Act section 1032(a) and (f), TILA section 105(a), and RESPA section 19(a), the Bureau proposes to require creditors to provide the loan costs and other costs imposed upon the consumer and the seller in tables as part of the integrated Closing Disclosure for closed-end VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 transactions secured by real property (other than reverse mortgages). Based on its consumer testing, the Bureau believes that the disclosure of loan costs and other costs in the format illustrated in proposed form H–25 of appendix H to Regulation Z may improve consumer understanding of the loan costs and other costs being imposed. The Bureau tested several different prototype formats for disclosing actual closing costs on the Closing Disclosure, including prototypes that were similar in format to the current RESPA settlement statement, with a similar three-and four-digit line numbering system, and other prototypes that more closely matched the Loan Estimate. Consumer participants at the Bureau’s consumer testing performed better at identifying closing costs, including whether closing costs had changed between the estimated and actual amounts, when using a format for closing costs that closely matched that of the Loan Estimate. Participants gained a familiarity with the organization of closing costs on the Loan Estimate and benefited from this experience when engaging with the Closing Disclosure. In addition, consumer participants often placed the Loan Estimate and Closing Disclosure prototypes side-by-side to compare the closing costs, and this method of comparing the two disclosures was better enabled and assisted by a closely matching organization of closing costs between them. Accordingly, the Bureau is proposing a format for the disclosure of closing cost information required by proposed § 1026.38(f) and (g) that closely matches the format and organization of the closing cost information on the Loan Estimate, as required by proposed § 1026.38(t) and illustrated by proposed form H–25. This format of form H–25 also uses a different line numbering system than that of the current RESPA settlement statement. Both consumer and industry participants at the Bureau’s testing stated that line numbers would be useful to facilitate conversations between consumers, creditors, and other participants in the credit and underlying real estate transaction. However, consumer participants at the Bureau’s testing appeared overwhelmed by the three-and four-digit line numbers on the prototypes similar to the current RESPA settlement statement, and performed worse with prototypes containing that system. As discussed above in part III, the Bureau is particularly mindful of the potential risk of information overload for consumers, given the amount of numbers and PO 00000 Frm 00125 Fmt 4701 Sfmt 4702 51239 complexity involved in the credit transaction and the underlying real estate transaction. The Bureau tested prototypes with a two-digit line numbering system, which performed better with both consumer and industry participants at the Bureau’s testing, with some industry participants at the Bureau’s testing preferring it over the system of the current RESPA settlement statement. Accordingly, the format for the information required by proposed § 1026.38(f) and (g), as required by proposed § 1026.38(t) and illustrated by form H–25, also contains a two-digit line numbering system that is different than the current RESPA settlement statement. The Bureau believes that this disclosure may effectuate the purpose of TILA by promoting the informed use of credit and assuring a meaningful disclosure to consumers. The Bureau believes that this disclosure may also satisfy the purpose of RESPA to provide more effective advanced disclosure of settlement costs to both the consumer and the seller in the real estate transaction. In addition, consistent with section 1032(a) of the Dodd-Frank Act, this disclosure may ensure that the features of consumer credit transactions secured by real property are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the product or service, in light of the facts and circumstances. As discussed below, proposed § 1026.38(f), (g), and (h) require the creditor or closing agent to disclose the details of the closing costs at closing and totals of those costs. The costs related to the consummation of the credit transaction and the closing of the real estate transaction would be disclosed under § 1026.38(f), (g), and (h), as discussed below, regardless of the person responsible for paying the cost.186 During the Small Business Review Panel, several settlement agents and one mortgage company requested that the 186 The permitted itemization of closing costs under § 1026.38(f) and (g) allows creditors to provide itemizations required by State law without using additional pages. See, e.g., Indiana Department of Insurance, Title Insurance Division ‘‘New RESPA Rules and Indiana Code FAQs’’ (May 1, 2010) available at https://www.in.gov/idoi/files/ Indiana_Department_of_Insurance_FAQs.pdf; North Carolina Commissioner of Banks Memorandum ‘‘Disclosure of Origination Fees under HUD’s New RESPA Rules’’ (December 3, 2010) available at https://www.nccob.gov/public/ docs/Financial%20Institutions/Mortgage/ OCOB_Letter_Regarding_Disclosure_ of_Origination_Fees_under_HUDs_new_RESPA _Rules.pdf; Tex. Ins. Code Ann. art. § 2702.053 (West 2005). E:\FR\FM\23AUP2.SGM 23AUP2 51240 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules line numbers from the current RESPA settlement statement be retained, stating that using the revised line numbers in the prototype integrated Closing Disclosure would significantly increase programming costs. See Small Business Review Panel Report at 20, 28–9. Based on this feedback, the Bureau seeks comment on whether the use of line numbers will lower software-related costs on industry, and the exact amount of the savings given the rest of the changes in the integrated closing disclosure contemplated by this proposal, while improving consumer understanding of the loan terms and costs at the consummation of the credit transaction and the closing of the real estate transaction. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 38(f) Closing Cost Details; Loan Costs Under proposed § 1026.38(f), the closing cost details are disclosed under a master heading of ‘‘Closing Cost Details’’ with columns stating whether the charge is paid at or before consummation by the consumer or the seller, or paid by others. All loan costs in the credit transaction would be disclosed in a table under a heading of ‘‘Loan Costs’’ in three subcategories. 38(f)(1) Origination Charges The first subcategory of loan costs would be disclosed under the label ‘‘Origination Charges,’’ which encompasses the same items as disclosed on the Loan Estimate under proposed § 1026.37(f)(1) together with any compensation of a loan originator paid by the creditor. Each cost would be disclosed in the appropriate column designated borrower-paid at or before closing, seller-paid at or before closing, or paid by others. Proposed comment 38(f)(1)–1 clarifies that comments 37(f)(1)–1, –2 and –3 provide additional guidance for the charges listed under § 1026.38(f)(1). Proposed comment 38(f)(1)–2 clarifies that all compensation paid to a loan originator must be provided under § 1026.38(f)(1), that compensation from the creditor to a loan originator must be disclosed in the paid by others column, and that compensation from both the consumer and the creditor to the loan originator is prohibited under § 1026.36(d)(2). Proposed comment 38(f)(1)–3 clarifies that any amount disclosed as paid from the creditor to the loan originator is calculated as the dollar value of all compensation to the loan originator and refers to comments 36(d)(1)–1, –2, –3 and –6 for further guidance on the components of compensation a to loan originator. The Bureau believes that the origination charges disclosed under § 1026.38(f)(1) satisfies Dodd-Frank Act VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 section 1419, which amended section 128(a) of TILA to add paragraph (18), requiring disclosure of the aggregate amount of fees paid to the mortgage originator, amount of those fees paid directly by the consumer, and any additional amount received by the originator from the creditor. As discussed above in part II.F, the Bureau currently is engaged in six other rulemakings that relate to mortgage credit and intends that the rulemakings function collectively as a whole. Accordingly, the Bureau may have to modify aspects of this proposed rule for consistency with determinations made in the other rulemakings. For example, the Bureau would modify the disclosure of origination charges under § 1026.38(f)(1) as appropriate for consistency with other rulemakings related to permissible mortgage loan originator compensation. Alternatively, the Bureau invites comment on whether it should require itemization in the Closing Disclosure of fees received by loan originators from the creditor, and whether it should require itemization of any compensation paid by consumers to loan originators, which does not include creditors, in the Loan Estimate and Closing Disclosure. As discussed above with respect to proposed § 1026.37(f)(1), the Bureau is proposing to use its authority under TILA section 105(a) and (f), RESPA section 19(a), and Dodd-Frank Act section 1405(b) to exempt the disclosures required by proposed § 1026.19(e) from the TILA section 128(a)(18) requirement that creditors disclose the amount of origination fees received by loan originators from the creditor. The Bureau solicits comment on whether a similar exemption should be applied here. 38(f)(2) Services Borrower Did Not Shop For The second subcategory of loan costs would be disclosed under the label ‘‘Services Borrower Did Not Shop For.’’ The costs of services that were required by the creditor and provided by persons other than the creditor for which the consumer could not or did not shop would disclosed under § 1026.38(f)(2). All items that were required to be disclosed under § 1026.37(f)(2), plus those items that would be disclosed under § 1026.37(f)(3) when the consumer did not shop for the service under § 1026.19(e)(1)(vi). Any additional items that were required by the creditor but were not disclosed on the Loan Estimate under § 1026.37(f)(2) would be disclosed under § 1026.38(f)(2) when the consumer did not shop for the service under PO 00000 Frm 00126 Fmt 4701 Sfmt 4702 § 1026.19(e)(1)(vi). Each cost would be disclosed in the appropriate column designated borrower-paid at or before closing, seller-paid charges at or before closing, or paid by others. Proposed comment 38(f)(2)–1 refers to comments 37(f)(2)–1, through –4 to provide additional guidance for the charges listed under § 1026.38(f)(2). 38(f)(3) Services Borrower Did Shop For The third subcategory of loan costs would be disclosed under the label ‘‘Services Borrower Did Shop For.’’ The services required by the creditor but for which the consumer independently shopped are disclosed under § 1026.38(f)(3). Each cost is disclosed in the appropriate column for borrowerpaid at or before closing, seller-paid at or before closing, or paid by others. Proposed comment 38(f)(3)–1 clarifies that all items that were disclosed under § 1026.37(f)(3) that the consumer did not shop for the service under § 1026.19(e)(1)(vi) are disclosed under § 1026.38(f)(2), and not under § 1026.38(f)(3). 38(f)(4) and (5) Total Loan Costs and Subtotal of Loan Costs With the label ‘‘Total Loan Costs (Borrower-Paid),’’ the total costs designated borrower-paid charges at closing and borrower-paid charges before closing would be disclosed under § 1026.38(f)(4). The costs disclosed under § 1026.38(f)(1), (2), and (3) would be subtotaled and disclosed in the appropriate column designated borrower-paid at or before closing under § 1026.38(f)(5). Proposed comment 38(f)(5)–1 clarifies that costs that are seller-paid at or before closing, or paid by others, are not subtotaled under § 1026.38(f)(5), and that the subtotal of charges that are seller-paid at or before closing, or paid by others, would be disclosed under § 1026.38(h)(2). 38(g) Closing Cost Details; Other Costs Under proposed § 1026.38(g), all other costs in the credit transaction and the real estate transaction are disclosed in a table under the heading of ‘‘Other Costs’’ in four subcategories. Proposed comment 38(g)–1 would refer to comment 38(f)–1 and comment 37(g)–1 to provide guidance related to § 1026.38(g). 38(g)(1) Taxes and Other Government Fees The first subcategory is disclosed under the label ‘‘Taxes and Other Government Fees.’’ The amount of recording fees and an itemization of transfer taxes would be disclosed under § 1026.38(g)(1). Proposed comment E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules relating to the instructions to complete the current RESPA settlement statement section 1000. 38(g)(2) Prepaids The second subcategory is disclosed under the label ‘‘Prepaids.’’ The items that were identified under are stated with the actual costs in the applicable columns is disclosed under § 1026.38(g)(2). Proposed comment 38(g)(2)–1 refers to comment 37(g)(2)–1 to provide guidance on disclosures required under § 1026.38(g)(2). Proposed comment 38(g)(2)–2 clarifies that the amount of prepaid interest can be disclosed as a negative number if the calculation of prepaid interest results in a negative number. Proposed comment 38(g)(2)–3 clarifies that if interest is not collected for a portion of a month or other period between closing and the date from which interest will be collected with the first monthly payment, then $0.00 must be disclosed under § 1026.38(g)(2) for prepaid interest. This guidance is consistent with instructions for RESPA settlement statement line 901 in appendix A of Regulation X. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 38(g)(1)–1 refers to comments 37(g)(1)– 1, –2, –3 and –4 for guidance on disclosures required under § 1026.38(g)(1). The fourth subcategory would be disclosed under the label ‘‘Other.’’ The services required to be performed or are to be obtained in the real estate closing by the consumer, seller, or other party are described and the costs for the services disclosed under § 1026.38(g)(4). The label for any cost that is a component of title insurance must include the description ‘‘Title—’’. The label for costs of premiums for separate insurance, warranty, guarantee, or event-coverage products must include the parenthetical ‘‘(optional)’’ at the end. Proposed comment 38(g)(4)–1 clarifies that the charges disclosed under § 1026.38(g)(4) include all real estate brokerage fees, homeowner’s or condominium association charges paid at closing, home warranties, inspection fees, and other fees that are part of the real estate transaction but not required by the creditor or disclosed elsewhere in § 1026.38. Proposed comment 38(g)(4)– 2 clarifies that any owner’s title insurance premium disclosed under § 1026.38(g)(4) in a jurisdiction that permits simultaneous issuance title insurance rates is calculated by using the full owner’s title insurance premium, adding any simultaneous issuance premium for issuance of lender’s coverage, and then deducting the full premium for lender’s coverage disclosed under § 1026.38(f)(2) or (f)(3) and that the cost of a premium for an owner’s title insurance policy will be always labeled with ‘‘Title—’’ at the beginning, and labeled ‘‘(optional)’’ at the end when designated borrower-paid at or before closing. Proposed comment 38(g)(4)–3 refers to comment 37(g)(4)–3 for additional guidance on the use of the parenthetical ‘‘(optional)’’ at the end of label on a cost under § 1026.38(g)(4)(ii). 38(g)(3) Initial Escrow Payment at Closing The third subcategory is disclosed under the subheading ‘‘Initial Escrow Payment at Closing.’’ The items that were identified under § 1026.37(g)(3) are stated with their actual cost and the applicable aggregate adjustment required under 12 CFR 1024.17(d)(2) and disclosed under § 1026.38(g)(3). Proposed comment 38(g)(3)–1 clarifies that the creditor would be required to state the amount that it would require the consumer to place into a reserve or escrow account at consummation to be applied to recurring charges for property taxes, homeowner’s and similar insurance, mortgage insurance, homeowner’s association dues, condominium dues, and other periodic charges. Each charge identified would be disclosed with a relevant label, monthly payment amount, and number of months collected at consummation. Proposed comment 38(g)(3)–2 clarifies that the method used to determine the aggregate adjustment for purposes of establishing the reserve or escrow account is described in Regulation X § 1024.17(d)(2), that examples of the calculation methodology can be found in appendix E of Regulation X, and that the result of the calculation will always be a negative number or zero, except for amounts due to rounding. This comment incorporates guidance provided in appendix A to Regulation X VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 38(g)(4) Other 51241 are other costs seller-paid at closing, seller-paid before closing, or paid by others are not disclosed under § 1026.38(g)(6), but are subtotaled under § 1026.38(h)(2). 38(h) Closing Cost Totals 38(h)(1) and (2) 38(g)(5) Total Other Costs Subtotals of closing costs and total closing costs paid by the consumer must be disclosed under proposed § 1026.38(h). With the label ‘‘Total Closing Costs (Borrower-Paid),’’ the total amount of consumer paid closing costs would be disclosed under § 1026.38(h)(1). With a description of ‘‘Closing Costs Subtotal (Loan Costs + Other Costs),’’ the subtotal of all charges disclosed under § 1026.38(f) and (g) in each column described in § 1026.38(f) would be disclosed under § 1026.38(h)(2). Comment 38(h)(2)–1 clarifies that the loan costs and other costs that are seller-paid at closing, seller-paid before closing, and paid by others are also subtotaled under § 1026.38(h)(2). The Bureau proposes § 1026.38(h) pursuant to its authority under TILA section 105(a) and Dodd-Frank Act section 1032(a) because disclosure of this closing cost information will promote the informed use of credit and consumer understanding of the costs, benefits, and risks associated with the mortgage transaction. Furthermore, for the reasons stated above, the proposed rule is in the interest of consumers and in the public interest, consistent with Dodd-Frank Act section 1405(b). In addition, proposed § 1026.38(h) implements Dodd-Frank Act Section 1419, which amended section 128(a) of TILA to add a new paragraph (17) requiring disclosure of, among other amounts, the amount of settlement charges the borrower must pay at closing and the aggregate amount of all settlement charges for all settlement services provided in connection with the loan. 38(g)(6) Subtotal of Costs 38(h)(3) With the label ‘‘Total Other Costs (Borrower-Paid),’’ the total of the consumer paid charges at closing and the consumer paid charges before closing would be disclosed under proposed § 1026.38(g)(5). The costs disclosed under § 1026.38(g)(1) through (4) are be subtotaled and disclosed in the appropriate column designated borrower-paid at or before closing under § 1026.38(g)(6). Proposed comment 38(g)(6)–1 would clarify that the only costs subtotaled under § 1026.38(g)(6) are those that are designated borrowerpaid at or before closing. Charges that Section 1026.38(h)(3) requires the creditor to disclose the amount of credits provided by the creditor to the consumer at consummation. Proposed comment 38(h)(3)–1 provides a cross reference to guidance provided in comments 17(c)(1)–19, 19(e)(3)(i)–4, and 19(e)(3)(i)–5 concerning the disclosure of lender credits, including those that are disclosed under § 1026.37(g)(6). Proposed comment 38(h)(3)–2 clarifies that any amounts disclosed under § 1026.38(h)(3) can also be used for disclosing any credits from the creditor to remediate excess costs determined PO 00000 Frm 00127 Fmt 4701 Sfmt 4702 E:\FR\FM\23AUP2.SGM 23AUP2 51242 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules under § 1026.19(e)(3)(i) or (e)(3)(ii). This comment incorporates guidance provided in the HUD RESPA Roundup dated April 2010. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 38(h)(4) Section 1026.38(h)(4) requires the creditor to use terminology describing the charges on the Closing Disclosure in a manner that is consistent with the descriptions used for charges disclosed on the Loan Estimate under § 1026.37. The creditor would also be required to list the charges on the Closing Disclosure in the same sequential order on the Loan Estimate under § 1026.37. Proposed comment 38(h)(4)–1 clarifies that the creditor would be required to use the same terminology and order to make it easier for the consumer to compare charges listed on the Loan Estimate and Closing Disclosure. Also, if charges move between subheadings under § 1026.38(f)(2) and (3), listing the charges in alphabetical order in each subheading category would be considered to be in compliance with § 1026.38(h)(4). 38(i) Calculating Cash To Close As discussed above, the total amount of cash or other funds that the consumer must provide at consummation is commonly known as the ‘‘cash to close.’’ Prior to the enactment of the Dodd-Frank Act, neither TILA nor Regulation Z expressly required disclosure of the cash to close amount or its critical components. The DoddFrank Act added section 128(a)(17) to TILA, which requires the disclosure of ‘‘the aggregate amount of settlement charges for all settlement services provided in connection with the loan, the amount of charges that are included in the loan and the amount of such charges the borrower must pay at closing * * * and the aggregate amount of other fees or required payments in connection with the loan.’’ 15 U.S.C. 1638(a)(17). The ‘‘Summary of Borrower’s Transaction’’ on page 1 of the RESPA settlement statement, line 303, includes a box that shows the amount of cash due to or from the consumer. See appendix A to Regulation X. Page 3 of the RESPA settlement statement also includes a chart entitled ‘‘Comparison of Good Faith Estimate (GFE) and HUD–1 Charges,’’ which highlights any changes between the estimated and actual amounts for settlement service charges that are subject to the limitations on increases under 12 CFR 1024.7(e). However, these settlement service charges comprise only a portion of the total amount of funds that the consumer would need to consummate the VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 transaction. Thus, the cash to close box on line 303 and the comparison chart on page 3 of the RESPA settlement statement together provide an incomplete picture of how the cash to close amount is calculated and whether it is different than the consumer expects based on the GFE. Consequently, and based on its authority under TILA section 105(a), RESPA section 19(a), and Dodd-Frank Act sections 1032(a) and, for residential mortgage loans, 1405(b), the Bureau is proposing to require that the Closing Disclosure contain a ‘‘Calculating Cash to Close’’ table that highlights the cash to close amount and its critical components and compares those amounts to the corresponding disclosures shown on the Loan Estimate under § 1026.37(h). The Bureau believes that this disclosure will effectuate the purposes of TILA and RESPA by facilitating the informed use of credit and ensuring that consumers are provided with greater and timelier information on the costs of the closing process. Providing consumers with information about the cash to close amount, its critical components, and how such amounts changed from the estimated amounts disclosed on the Loan Estimate helps ensure that the features of the transaction are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to better understand the costs, benefits, and risks associated with the transaction, in light of the facts and circumstances, consistent with DoddFrank Act section 1032(a). The Bureau also believes such disclosure will improve consumers’ awareness and understanding of residential mortgage transactions, which is in the interest of consumers and the public, consistent with Dodd-Frank Act section 1405(b). The ‘‘Calculating Cash to Close’’ table in the Closing Disclosure under proposed § 1026.38(i) mirrors the format of, and updates the amounts shown on, the ‘‘Calculating Cash to Close’’ table in the Loan Estimate under proposed § 1026.37(h). The Bureau believes that including separate ‘‘Calculating Cash to Close’’ tables on both the Loan Estimate and the Closing Disclosure will aid the consumer in ascertaining whether the cash to close amount and its critical components changed between the Loan Estimate and the Closing Disclosure, and by how much. The two tables are similar in format and designed to be used in tandem when the consumer is reviewing the Closing Disclosure and comparing its content to that shown on the Loan Estimate. However, the table on the Closing Disclosure includes additional information under the PO 00000 Frm 00128 Fmt 4701 Sfmt 4702 subheading ‘‘Did this change?’’ which is intended to assist the consumer in identifying and understanding the reasons for any such changes. The Bureau’s consumer testing indicated that consumers were able to use the detailed comparison table to understand how and why the actual cash to close amount on the Closing Disclosure differs from the estimated amounts shown on the Loan Estimate. During testing, consumers tended to use the ‘‘Calculating Cash to Close’’ table in conjunction with the ‘‘Closing Cost Details’’ tables showing itemized charges and subtotals on the Closing Disclosure, to identify the differences between the estimated and actual cash to close amount and its critical components and to gain a better understanding of the numbers underlying the cash to close amount. The consumers also benefited from the ‘‘Did this change?’’ subheading containing statements that components of the cash to close changed and simple explanations as to why. The Bureau has incorporated this feedback into the design of the table and its choice of language to be used under the ‘‘Did this change?’’ subheading, as applicable. Requiring disclosure of the ‘‘Calculating Cash to Close’’ table also complements proposed § 1026.19(f)(1)(ii), which requires delivery of the Closing Disclosure three business days prior to consummation. TILA section 128(b)(2)(D) requires that a corrected TILA disclosure be given to the consumer not later than three business days prior to consummation if the APR as initially disclosed becomes inaccurate, and the Bureau understands that the annual percentage rate changes triggering the redisclosure obligation occur so frequently that many creditors currently provide the corrected TILA disclosure as a matter of course even if redisclosure is not required. RESPA section 4 provides that the RESPA settlement statement be provided ‘‘at or before closing,’’ however, and the Bureau understands that it typically is given the day of closing. As discussed above, proposed § 1026.19(f)(1)(ii) merges the two provisions by requiring that consumers be given the integrated disclosures three business days prior to consummation. During this threebusiness-day period, the consumer can review the Closing Disclosure, contact the creditor with questions regarding the information contained on the Closing Disclosure, and correct any errors prior to consummation. Disclosing the cash to close amount and how it was calculated three business days in advance of consummation generally provides the consumer with a E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules three-business-day window to make arrangements to have the necessary funds available for the consummation. This will help alleviate concerns that, in some cases, consumers may not know until shortly before consummation—or even the day of consummation—how much of their own funds they will be expected to bring to the closing table. The ‘‘Calculating Cash to Close’’ table to be disclosed on the Closing Disclosure under § 1026.38(i) consists of four columns and nine rows. The first column, which does not have a subheading, includes labels for the amounts of cash to close (listed in the final row of the table, in more prominent fashion) and its critical components. Total closing costs, which are listed in the first row, is the sum total of creditor, third party settlement service, and other transaction-related charges disclosed on the ‘‘Closing Cost Details’’ tables on the Closing Disclosure. Subsequent rows list other components of the cash to close amount, such as the closing costs paid before consummation, closing costs financed, and the deposit. These component amounts are discussed in more detail under § 1026.38(i)(1) through (8), below. The second column, under the subheading ‘‘Estimate,’’ includes the estimated amounts of cash to close and its components. These amounts match the estimates given on the ‘‘Calculating Cash to Close’’ table in the Loan Estimate, which are shown to the nearest whole dollar amount. The third column, under the subheading ‘‘Final,’’ includes the actual amounts of the cash to close and its components without rounding. In both the second and the third columns, the amounts that increase the total cash to close amount are shown as positive numbers, and the amounts that reduce the total cash to close amount are shown as negative numbers. The fourth column, under the subheading ‘‘Did this change?’’ contains in each row (1) a statement, more prominent than other disclosures under proposed § 1026.38(i), as to whether the actual amount is different from or increased above the estimated amount and (2) if the actual amount is different from or increased over the estimated amount, a simple explanation for the difference or increase along with crossreferences to other relevant information disclosed on the Closing Disclosure, as applicable. Proposed comment 38(i)–1 discusses how, under each subparagraph (iii) of § 1026.38(i)(1) through (i)(8), the statement as to whether the ‘‘Final’’ amount disclosed under each subparagraph (ii) of §§ 1026.38(i)(1) through (i)(8) is greater than, equal to, VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 or less than the corresponding ‘‘Estimate’’ amount disclosed under each subparagraph (i) of §§ 1026.38(i)(1) through (i)(8) is disclosed more prominently than the other disclosures under § 1026.38(i). The proposed comment clarifies that this more prominent statement can take the form, for example, of a ‘‘Yes’’ or ‘‘No’’ disclosed in capital letters and boldface font, as shown on the Closing Disclosure form H–25 set forth in appendix H to this part, the standard form or model form, as applicable, pursuant to § 1026.38(t). The comment also discusses how, in the event a difference or an increase in costs has occurred, certain words within the narrative text that are included under the subheading ‘‘Did this change?’’ are displayed more prominently than other disclosures, and gives an example of such a prominent statement. Proposed comment 38(i)–2 describes how a final amount shown to two decimal places on the ‘‘Calculating Cash to Close’’ table disclosed under § 1026.38(i) could appear to be a larger number than its corresponding estimate shown to the nearest dollar when, in fact, the apparent increase is due solely to rounding. The comment further clarifies that any statement disclosed under the subheading ‘‘Did this change?’’ as to whether an actual amount is higher than its corresponding estimated amount is based on the actual, non-rounded estimate that would have been disclosed on the Loan Estimate under § 1026.37(h) if it had been shown to two decimal places rather than a whole dollar amount. The proposed comment also provides an example of how a contrary rule could result in inaccurate disclosures of increases. The proposed comment reflects the Bureau’s intention that the statements of increases to be disclosed under each subparagraph (iii) under § 1026.38(i)(1) through (i)(8) capture true increases rather than increases due solely to rounding rules. Proposed comments 38(i)–3 and 4 provide guidance regarding the statements required by each of § 1026.38(i)(4)(iii)(A), 1026.38(i)(5)(iii)(A), 1026.38(i)(6)(iii)(A), 1026.38(i)(7)(iii)(A), and 1026.38(i)(8)(iii)(A) that the consumer should see the details disclosed pursuant to another subsection or other subsections within § 1026.38, or that an amount has increased or decreased from an estimated amount, as applicable. The comments note that, for example, § 1026.38(i)(7)(iii)(A) requires a statement that the consumer should see the details disclosed pursuant to PO 00000 Frm 00129 Fmt 4701 Sfmt 4702 51243 § 1026.38(j)(2)(v), and, as shown on Closing Disclosure form H–25, that statement can read: ‘‘See Seller Credits in Section L.’’ These comments also provide guidance regarding the required statements that are not illustrated as samples in form H–25 in appendix H. 38(i)(1) Total Closing Costs Proposed § 1026.38(i)(1)(i) and (ii) requires the disclosure of a comparison of the consumer’s estimated and actual ‘‘Total Closing Costs’’ amounts. The estimated ‘‘Total Closing Costs’’ amount is the same amount that is disclosed on the Loan Estimate in the ‘‘Calculating Cash to Close’’ table under proposed § 1026.37(h)(1). This amount also matches the ‘‘Total Closing Costs’’ amount that is disclosed on the Loan Estimate under proposed § 1026.37(g)(6). The actual ‘‘Total Closing Costs’’ amount is the same amount disclosed on the Closing Disclosure under § 1026.38(h)(1), reduced by the amount of any lender credits disclosed under § 1026.38(h)(3). Proposed comment 38(i)(1)(i)–1 provides guidance regarding the requirement under § 1026.38(i)(1)(i) that the amount disclosed is labeled ‘‘Total Closing Costs’’ and that such label is accompanied by a reference to the disclosure of ‘‘Total Closing Costs’’ under § 1026.38(h)(1). Proposed § 1026.38(i)(1)(iii)(A) specifies that if the actual amount of ‘‘Total Closing Costs’’ is different than the estimated amount of such costs as shown on the Loan Estimate (unless the difference is due to rounding), the creditor or closing agent must state, under the subheading ‘‘Did this change?’’, that the consumer should see the total loan costs and total other costs subtotals disclosed on the Closing Disclosure under § 1026.38(f)(4) and (g)(5), and must include a reference to such disclosures, as applicable. This language is intended to direct the consumer to the more detailed itemization on the Closing Disclosure of the costs that comprise the ‘‘Total Closing Costs.’’ Under proposed § 1026.38(i)(1)(iii)(A), the creditor or closing agent must also state the dollar amount of any excess amount of closing costs above the limitations on increases in closing costs under § 1026.19(e)(3), if applicable, along with language stating that the increase exceeds the legal limits by the dollar amount of the excess. The dollar amount to be disclosed must reflect the different methods of calculating such excess amounts under § 1026.19(e)(3)(i) and (ii). Proposed comment 38(i)(1)(iii)(A)–1 contains examples of how to calculate such excess amounts E:\FR\FM\23AUP2.SGM 23AUP2 51244 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 and clarifies that because certain closing costs, individually, are subject to the limitations on increases in closing costs under § 1026.19(e)(3)(i) (e.g., origination fees, transfer taxes, charges paid by the consumer to an affiliate of the creditor), while other closing costs are collectively subject to the limitations on increases in closing costs under § 1026.19(e)(3)(ii) (e.g., recordation fees, fees paid to an unaffiliated third party if the creditor permitted the consumer to shop for the service provider), the creditor or closing agent calculates subtotals for each type of excess amount, and then adds such subtotals together to yield the dollar amount to be disclosed in the table. The proposed comment also clarifies that the calculation of the excess amounts above the limitations on increases in closing costs takes into account the fact that the itemized, estimated closing costs disclosed on the Loan Estimate will not result in charges to the consumer if the service is not actually provided at or before consummation, and that certain itemized charges listed on the Loan Estimate under the subheading ‘‘Services You Can Shop For’’ may be subject to different limitations depending on the circumstances. Proposed comments 38(i)(1)(iii)(A)–2.i through –2.iii complement commentary to proposed § 1026.19(e)(3). Pursuant to proposed § 1026.19(f)(2)(v), the creditor or closing agent must refund to the consumer any such excess amounts at consummation or within thirty days thereafter. Accordingly, this disclosure may help the consumer identify when a refund may be required, and this information can be used by the consumer to request that the creditor or closing agent provide such refund at consummation or within thirty days thereafter. 38(i)(2) Closing Costs Subtotal Paid Before Closing Proposed § 1026.38(i)(2) requires the disclosure of a comparison of the estimated and actual amounts of the ‘‘Total Closing Costs’’ that are paid before consummation of the transaction. The estimated ‘‘Closing Costs Subtotal Paid Before Closing’’ must be disclosed as $0. Proposed comment 38(i)(2)(i)–1 clarifies that this requirement is because the Loan Estimate does not have an equivalent disclosure under proposed § 1026.37(h). The actual ‘‘Closing Costs Subtotal Paid Before Closing’’ is the sum of the amount disclosed on the Closing Disclosure under proposed § 1026.38(h)(2) and designated ‘‘Borrower-Paid Before Closing.’’ Proposed § 1026.38(i)(2)(iii) specifies that if the actual amount of ‘‘Closing Costs Subtotal Paid Before Closing’’ is VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 different than the estimated amount, in this case $0 (unless the difference is due to rounding), the creditor or closing agent must state under the subheading ‘‘Did this change?’’ that the consumer paid such costs before consummation. This language is intended to remind the consumer that he or she paid certain transaction closing costs prior to consummation and that such costs will be subtracted from the actual cash to close amount. Proposed comment 38(i)(2)(iii)(B)–1 provides guidance regarding the requirement to disclose whether the estimated and final amounts are equal. 38(i)(3) Closing Costs Financed Proposed § 1026.38(i)(3) requires the disclosure of a comparison of the estimated and actual amounts of the ‘‘Total Closing Costs’’ that are financed. The estimated ‘‘Closing Costs Financed’’ amount is the same amount that is disclosed in the ‘‘Calculating Cash to Close’’ table in the Loan Estimate under proposed § 1026.37(h)(2). The actual ‘‘Closing Costs Financed’’ amount reflects any changes to the amount previously disclosed on the Loan Estimate. Proposed § 1026.38(i)(3)(iii) specifies that if the actual amount of ‘‘Closing Costs Financed’’ is different than the estimated amount (unless the excess is due to rounding), the creditor or closing agent must state under the subheading ‘‘Did this change?’’ that the consumer included these closing costs in the loan amount, which increased the loan amount. The Bureau believes this explanatory language will be particularly helpful to consumers for two reasons. First, an increase in closing costs financed may trigger a sizeable decrease in the cash to close, which in turn could create a false impression that the overall transaction costs to the consumer decreased. Second, during consumer testing, when consumers were presented with a scenario involving a loan amount that increased after delivery of the Loan Estimate, some of the consumers had difficultly isolating the increase in closing costs financed as the reason for the increased loan amount. The Bureau believes this disclosure may assist consumers in understanding that the financed portion of the closing costs are paid for through the loan proceeds. 38(i)(4) Downpayment/Funds From Borrower Proposed § 1026.38(i)(4) requires the disclosure of a comparison of the estimated and actual amounts of the ‘‘Downpayment/Funds from Borrower.’’ Downpayment and funds from borrower are related concepts, but downpayment PO 00000 Frm 00130 Fmt 4701 Sfmt 4702 is applicable to a transaction that is a purchase as defined in proposed § 1026.37(a)(9)(i), while funds from borrower relates to a transaction other than a purchase. Under proposed § 1026.38(i)(4)(i), the estimated ‘‘Downpayment/Funds from Borrower’’ amount is the same amount that is disclosed on the ‘‘Calculating Cash to Close’’ table in the Loan Estimate under proposed § 1026.37(h)(3). Under proposed § 1026.38(i)(4)(ii)(A), in a transaction that is a purchase as defined in proposed § 1026.37(a)(9)(i), the actual amount of the ‘‘Downpayment/Funds from Borrower’’ is the actual amount of the difference between the purchase price of the property and the principal amount of the credit extended, stated as a positive number. Under proposed § 1026.38(i)(4)(ii)(B), in a transaction other than a purchase as defined in proposed § 1026.37(a)(9)(i), the actual amount of ‘‘Funds from Borrower’’ is determined in accordance with § 1026.38(i)(6)(iv), by subtracting from the total amount of all existing debt being satisfied in the real estate closing and disclosed under § 1026.38(j)(1)(v) (except to the extent the satisfaction of such existing debt is disclosed under § 1026.38(g)) the principal amount of the credit extended. If such calculation yields a positive number, then the positive number is disclosed under proposed § 1026.38(i)(4)(ii)(B); otherwise, $0.00 is disclosed. Proposed comment 38(i)(4)(ii)(A)–1 provides an example of the downpayment changing in a particular transaction. Proposed comment 38(i)(4)(ii)(B)–1 provides further clarification about how the actual ‘‘Funds from Borrower’’ amount is determined under § 1026.38(i)(6)(iv), and gives an example of when that actual amount may change from the corresponding estimated amount. Proposed § 1026.38(i)(4)(iii)(A) specifies that if the actual amount of ‘‘Downpayment/Funds from Borrower’’ is different than the estimated amount (unless the difference is due to rounding), the creditor or closing agent must state under the subheading ‘‘Did this change?’’ that the consumer increased or decreased the payment, as applicable, and also state that the consumer should see the details disclosed under § 1026.38(j)(1) or (j)(2), as applicable. This language is intended to remind the consumer that he or she will be contributing a different amount of his or her own funds toward the cash to close, and therefore must make arrangements prior to the date of consummation to procure any necessary funds. Comment 38(i)(4)(iii)(A)–1 clarifies the requirement under E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules § 1026.38(i)(4)(iii)(A) that a statement be given that the consumer has increased or decreased this payment, as applicable, along with a statement that the consumer should see the details disclosed under § 1026.38(j)(1) or (j)(2), as applicable. The comment notes that, in the event the purchase price of the property increased, that statement can read, for example: ‘‘You increased this payment. See details in Section K.’’ In the event the loan amount decreased, that statement can read, for example, ‘‘You increased this payment. See details in Section L.’’ This language is intended to direct the consumer to the section within the Closing Disclosure containing the information that accounts for the increase in the ‘‘Downpayment/Funds from Borrower’’ amount. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 38(i)(5) Deposit Proposed § 1026.38(i)(5) requires the disclosure of a comparison of the estimated and actual amounts of the ‘‘Deposit.’’ The estimated ‘‘Deposit’’ amount is the same amount that is disclosed in the ‘‘Calculating Cash to Close’’ table on the Loan Estimate under proposed § 1026.37(h)(4). The actual ‘‘Deposit’’ amount is the same amount that is disclosed on the Closing Disclosure under proposed § 1026.38(j)(2)(ii). Proposed § 1026.38(i)(5)(iii) specifies that if the actual amount of ‘‘Deposit’’ is different than the estimated amount (unless the difference is due to rounding), the creditor or closing agent must state, under the subheading ‘‘Did this change?’’, that the consumer increased or decreased this payment, as applicable, and should see the details disclosed under § 1026.38(j)(2)(ii). This language is intended to direct the consumer to the section within the Closing Disclosure containing the itemization of the deposit in the Closing Disclosure. 38(i)(6) Funds for Borrower Proposed § 1026.38(i)(6) requires the disclosure of a comparison of the estimated and actual amounts of the ‘‘Funds for Borrower.’’ Like proposed § 1026.37(h)(5), this amount is intended to generally represent the amount to be disbursed to the consumer or used at consumer’s discretion at consummation of the transaction, such as in cash-out refinance transactions. The determination of whether the transaction will result in ‘‘Funds for Borrower’’ is made under proposed § 1026.38(i)(6)(iv). The estimated ‘‘Funds for Borrower’’ amount disclosed under § 1026.38(i)(6)(i) is the same amount that is disclosed in the VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 ‘‘Calculating Cash to Close’’ table in the Loan Estimate under proposed § 1026.37(h)(5). Proposed § 1026.38(i)(6)(ii) provides that the actual ‘‘Funds for Borrower’’ amount disclosed is determined pursuant to § 1026.38(i)(6)(iv), by subtracting from the total amount of all existing debt being satisfied in the real estate closing and disclosed under § 1026.38(j)(1)(v) (except to the extent the satisfaction of such existing debt is disclosed under § 1026.38(g)) the principal amount of the credit extended (excluding any amount disclosed under § 1026.38(i)(3)(ii)). The exclusion of any amount disclosed under § 1026.38(i)(3)(ii) is necessary since that amount of the credit extended has already been accounted for in the cash to close calculation by inclusion in § 1026.38(i)(3)(ii). If such calculation yields a negative number, then the negative number is disclosed under proposed § 1026.38(i)(6)(ii); otherwise, $0.00 is disclosed. Proposed comment 38(i)(6)(ii)–1 provides further clarification about how the actual ‘‘Funds for Borrower’’ amount is determined under § 1026.38(i)(6)(iv), and to whom such amount is disbursed. Proposed § 1026.38(i)(6)(iii) clarifies that, if the actual amount of ‘‘Funds for Borrower’’ is different than the estimated amount (unless the difference is due to rounding), the creditor or closing agent must state in the subheading ‘‘Did this change?’’ that the consumer’s available funds from the loan amount have increased or decreased, as applicable. This language is intended to remind the consumer that a different amount of loan proceeds will be available following payoff of existing loans. 38(i)(7) Seller Credits Proposed § 1026.38(i)(7) requires the disclosure of a comparison of the estimated and actual amounts of the ‘‘Seller Credits.’’ ‘‘Seller Credits’’ are described in proposed 1026.38(j)(2)(v) and corresponding commentary. The estimated ‘‘Seller Credits’’ amount is the same amount that is disclosed on the ‘‘Calculating Cash to Close’’ table in the Loan Estimate under proposed § 1026.37(h)(6). The actual ‘‘Seller Credits’’ amount is the same amount disclosed on the Closing Disclosure under proposed § 1026.38(j)(2)(v). Proposed comment 38(i)(7)(ii)–1 clarifies that the ‘‘Final’’ amount reflects any change, following the delivery of the Loan Estimate, in the amount of funds given by the seller to the consumer for generalized credits for closing costs or for allowances for items purchased separately, as distinguished PO 00000 Frm 00131 Fmt 4701 Sfmt 4702 51245 from payments by the seller for items attributable to periods of time prior to consummation (which are considered ‘‘Adjustments and Other Credits’’ separately disclosed under proposed § 1026.38(i)(8)). Proposed § 1026.38(i)(7)(iii) specifies that, if the actual amount of ‘‘Seller Credits’’ is different than the estimated amount (unless the difference is due to rounding), the creditor or closing agent must state that fact under the subheading ‘‘Did this change?,’’ and state that the consumer should see the details disclosed under § 1026.38(j)(2)(v). This language is intended to direct the consumer to the section within the Closing Disclosure containing the itemization of seller credits. 38(i)(8) Adjustments and Other Credits Proposed § 1026.38(i)(8) requires the disclosure of a comparison of the estimated and actual amounts of the ‘‘Adjustments and Other Credits.’’ ‘‘Adjustments and Other Credits’’ are described in proposed § 1026.38(j)(2)(vi) through (xi) and corresponding commentary. The estimated ‘‘Adjustments and Other Credits’’ amount is the same amount that is disclosed on the ‘‘Calculating Cash to Close’’ table in the Loan Estimate under proposed § 1026.37(h)(7). The actual ‘‘Adjustments and Other Credits’’ amount is equal to the total amount of the adjustments and other credits due from the consumer at consummation (i.e., the amounts disclosed on the Closing Disclosure under §§ 1026.38(j)(1)(v) through (x)), reduced by the total amount of the adjustments and other credits paid already by or on behalf of the consumer at consummation (i.e., the amounts disclosed on the Closing Disclosure under §§ 1026.38(j)(2)(vi) through (xi)). Proposed § 1026.38(i)(8)(iii) specifies that if the actual amount of ‘‘Adjustments and Other Credits’’ is different than the estimated amount (unless the difference is due to rounding), the creditor or closing agent must state that fact under the subheading ‘‘Did this change?,’’ and state that the consumer should see the details disclosed under §§ 1026.38(j)(1)(v) through (x) and (j)(2)(vi) through (xi). This language is intended to direct the consumer to the sections within the Closing Disclosure containing the itemization of the adjustments and other credits. Proposed comment 38(i)(8)(ii)–1 gives examples of items that may be adjustments and other credits, and clarifies that if the calculation required by § 1026.38(i)(8)(ii) yields a negative E:\FR\FM\23AUP2.SGM 23AUP2 51246 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules number, the creditor or closing agent discloses it as such. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 38(i)(9) Cash To Close Proposed § 1026.38(i)(9) requires the disclosure of a comparison of the estimated and actual amounts of the ‘‘Cash to Close.’’ The estimated ‘‘Cash to Close’’ amount is the same amount that is disclosed on the ‘‘Calculating Cash to Close’’ table in the Loan Estimate under proposed § 1026.37(h)(8) as ‘‘Estimated Cash to Close.’’ The actual ‘‘Cash to Close’’ amount is the sum of the amounts disclosed under proposed §§ 1026.38(i)(1) through (8). The label ‘‘Cash to Close’’ and the estimated and actual amounts listed in the table are disclosed more prominently than other disclosures in § 1026.38(i), as a means of emphasizing the importance of the cash to close amount. Proposed comment 38(i)(9)(ii)–1 clarifies that the ‘‘Final’’ amount of ‘‘Cash to Close’’ disclosed under § 1026.38(i)(9)(ii) equals the amount disclosed on the Closing Disclosure as ‘‘Cash to Close’’ under § 1026.38(j)(3)(iii). The proposed comment also clarifies that if the calculation required by § 1026.38(i)(9)(ii) yields a negative number, the creditor or closing agent discloses it as such. Proposed comment 38(i)(9)(ii)–2 discusses how the disclosure of the ‘‘Final’’ amount of ‘‘Cash to Close’’ under § 1026.38(i)(9)(ii) is more prominent than the other disclosures under § 1026.38(i) and clarifies that this more prominent disclosure can take the form, for example, of boldface font, as shown on the Closing Disclosure form H–25. 38(j) and (k) Summaries of Borrower’s and Seller’s Transactions Currently, RESPA section 4 requires the settlement agent to clearly and conspicuously itemize all charges imposed upon the borrower and seller in connection with the settlement. See 12 U.S.C. 2603. Regulation X implements these requirements by requiring the settlement agent to provide summaries of the consumer’s and seller’s transactions on the RESPA settlement statement. See Regulation X § 1024.8 and appendix A. Dodd-Frank Act section 1032(f) requires that the Bureau propose disclosures that combine the disclosures required under TILA and RESPA sections 4 and 5 into a single, integrated disclosure for mortgage loan transactions covered under TILA and RESPA. In addition to effectuating DoddFrank Act section 1032(f), the Bureau believes that including on the Closing Disclosure summaries of the consumer’s and seller’s transactions will effectuate VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 the purposes of TILA and RESPA by promoting the informed use of credit and more effective advance notice to home buyers and sellers of settlement costs, respectively. The summaries will assist consumers in understanding of the resolution of their legal obligations to sellers under the terms of the sales contract for the property which will be used to secure the credit extended to facilitate the purchase. The summaries will also assist sellers in understanding the charges they are required to pay under the sales contract. In addition, consistent with section 1032(a) of the Dodd-Frank Act, the addition of the summaries of the consumer’s and seller’s transactions would ensure that the features of consumer credit transactions secured by real property are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the product or service, in light of the facts and circumstances. Therefore, the Bureau proposes to exercise its authority under TILA section 105(a), RESPA section 19(a), and Dodd-Frank Act section 1032(a) to require the creditor or closing agent to provide the summaries of the consumer’s and seller’s transactions that are currently provided in the RESPA settlement statement. The required information regarding the consumer’s transaction would be set forth in § 1026.38(j) and the required information regarding the seller’s transaction would be set forth in § 1026.38(k). Furthermore, for the reasons stated above, the proposed rule is in the interest of consumers and in the public interest, consistent with Dodd-Frank Act section 1405(b). The Bureau is not proposing to alter the current method for calculating these summaries as currently provided in appendix A to Regulation X except as specifically described below. However, based on the results of consumer testing, the Bureau is proposing to revise the wording of headings, labels, and references to make them more understandable for consumers. In addition, the format required by proposed § 1026.38(t), as illustrated by proposed form H–25 of appendix H to Regulation Z, for the information required by proposed § 1026.38(j) and (k) contains a two-digit line numbering system, in contrast to the three-digit line numbering system for this information on the current RESPA settlement statement. At the Bureau’s consumer testing, consumer participants appeared overwhelmed by the three- and fourdigit line numbers on prototypes that contained line numbers similar to the PO 00000 Frm 00132 Fmt 4701 Sfmt 4702 current RESPA settlement statement. As described above in part III, the Bureau is also mindful of the risks of information overload to consumers. The Bureau believes that the increased amount of numbers on the page from the three- and four-digit line numbering system may significantly detract from the consumer’s ability to engage with the Closing Disclosure. The prototypes that the Bureau tested that contained only a two-digit line numbering system performed better with consumers, and were more effective at enabling them to understand their actual closing costs and the differences between the estimated and actual amounts. In addition, as described above in the analysis of proposed § 1026.38(f) and (g), the use of this two-digit line numbering system for the information required by proposed § 1026.38(f) and (g) allows the Loan Estimate and Closing Disclosure to match more closely, which the Bureau’s consumer testing indicates better enables consumers to understand their transaction. See the analysis of proposed § 1026.38(f) and (g) for more detail regarding the two-digit line numbering system. During the Small Business Review Panel, several settlement agents and one mortgage company requested that the line numbers from the current RESPA settlement statement be retained, stating that using the revised line numbers in the prototype integrated Closing Disclosure would significantly increase programming costs. See Small Business Review Panel Report at 20, 28. Based on this feedback, the Bureau seeks comment on whether the use of line numbers will lower software-related costs on industry, and the exact amount of the savings given the rest of the changes contemplated by this proposal, while improving consumer understanding of the loan terms and costs at the consummation of the credit transaction and the closing of the real estate transaction. 38(j) Summary of Borrower’s Transaction Proposed § 1026.38(j) requires that the creditor or closing agent provide the summaries of the consumer’s and seller’s transactions in separate tables under the heading ‘‘Summaries of Transactions’’ with a statement that the purpose of the table is to summarize the transaction. Proposed § 1026.38(j) also lists the information that must be provided under the subheading ‘‘Borrower’s Transaction.’’ Proposed comment 38(j)–1 clarifies that it is permissible to give two separate Closing Disclosures to the consumer and seller. This comment incorporates guidance E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 provided in the HUD RESPA FAQs p. 44, #4 (‘‘HUD–1—‘‘General’’). Comment 38(j)–2 clarifies that additional lines can be added to the Closing Disclosure to show customary recitals and information used locally in real estate closings. This comment incorporates guidance provided in HUD RESPA FAQs p. 44, #5 and #10 (‘‘HUD–1— General’’). Proposed comment 38(j)–3 clarifies that the amounts disclosed under the following provisions of § 1026.38(j) are the same as the amounts disclosed under the corresponding provisions of § 1026.38(k): § 1026.38(j)(1)(ii) and § 1026.38(k)(1)(ii); § 1026.38(j)(1)(iii) and § 1026.38(k)(1)(iii); if the amount disclosed under § 1026.38(j)(1)(v) is attributable to contractual adjustments between the consumer and seller, § 1026.38(j)(1)(v) and § 1026.38(k)(1)(iv); § 1026.38(j)(1)(vii) and § 1026.38(k)(1)(vi); § 1026.38(j)(1)(viii) and § 1026.38(k)(1)(vii); § 1026.38(j)(1)(ix) and § 1026.38(k)(1)(viii); § 1026.38(j)(1)(x) and § 1026.38(k)(1)(ix); § 1026.38(j)(2)(iv) and § 1026.38(k)(2)(iv); § 1026.38(j)(2)(v) and § 1026.38(k)(2)(vii); § 1026.38(j)(2)(viii) and § 1026.38(k)(2)(x); § 1026.38(j)(2)(ix) and § 1026.38(k)(2)(xi); § 1026.38(j)(2)(x) and § 1026.38(k)(2)(xii); and § 1026.38(j)(2)(xi) and § 1026.38(k)(2)(xiii). 38(j)(1) Itemization of Amount Due From Borrower Proposed § 1026.38(j)(1)(i) requires the creditor or closing agent to disclose the label ‘‘Due from Borrower at Closing’’ and the total amount due from the consumer at closing, calculated as the sum of items required to be disclosed under § 1026.38(j)(1)(ii) through (x), excluding items paid from funds other than closing funds defined under § 1026.38(j)(4)(i). Below this label § 1026.38(j)(ii) requires the creditor or closing agent to provide a reference to the sale price of the property and the amount of the contract sales price of the property being sold, excluding the price of any items of tangible personal property if the consumer and seller have agreed to a separate price for such items. In addition, below the same label, a reference to the subtotal of closing costs paid at closing by the consumer with adjustments for items paid by the seller in advance must also be provided by the creditor or closing agent. Proposed comment 38(j)(1)(ii)–1 clarifies that, for purposes of this disclosure, personal property is defined by state law, but could include such items as carpets, drapes, and appliances. Manufactured homes are not considered personal VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 property for purposes of § 1026.38(j)(1)(ii). This comment incorporates guidance currently provided in the instructions for RESPA settlement statement line 102 in appendix A to Regulation X. Proposed § 1026.38(j)(1)(iii) requires the creditor or closing agent to provide a reference to the sales price of any tangible personal property included in the sale that are not included in the sales price disclosed under § 1026.38(j)(1)(ii). Proposed § 1026.38(j)(1)(iv) requires the creditor or closing agent to provide a reference to the subtotal of closing costs paid at closing by the consumer and to disclose the amount of closing costs paid by the consumer at closing. Proposed § 1026.38(j)(1)(v) requires the creditor or closing agent to describe and disclose the amount of any additional items that the seller has already paid but are attributable to a time after closing and therefore will be used by the consumer. Also, proposed § 1026.38(j)(1)(v) requires a description and the cost of any other items owed by the consumer not otherwise disclosed under proposed § 1026.38(f), (g), or (j). Proposed comment 38(j)(1)(v)–1 clarifies that items described and disclosed under § 1026.38(j)(v) can include: any balance in the seller’s reserve account held in connection with an existing loan, if assigned to the consumer in a loan assumption case; any rent the consumer would collect after closing for a time period prior to closing; or to show the treatment of a security deposit. Proposed comment 38(j)(1)(v)–2 clarifies costs owed by the consumer not otherwise disclosed under § 1026.38(f), (g), or (j) will not have a parallel amount disclosed under proposed § 1026.38(k)(1)(iv). Proposed § 1026.38(j)(1)(vi) requires the creditor or closing agent to provide a reference to adjustments paid by seller in advance. Proposed § 1026.38(j)(1)(vii) requires the creditor or closing agent to provide a reference to city/town taxes, the time period that the consumer is responsible to reimburse the seller for any such prepaid taxes, and the prorated amount of any such prepaid taxes due from the consumer at closing. Proposed § 1026.38(j)(1)(viii) requires the creditor or closing agent to provide a reference to county taxes, the time period that the consumer is responsible for reimbursing the seller for any such prepaid taxes, and the prorated amount of any such prepaid taxes due from the consumer at closing. Proposed § 1026.38(j)(1)(ix) requires the creditor or closing agent to provide a reference to assessments, the time period that the consumer is responsible for reimbursing the seller for any such prepaid PO 00000 Frm 00133 Fmt 4701 Sfmt 4702 51247 assessments, and the prorated amount of any such prepaid assessment due from the consumer at closing. Proposed § 1026.38(j)(1)(x) requires the creditor or closing agent to provide a description and amount of any additional items paid by the seller prior to closing that are due from the consumer at closing. Proposed comment 38(j)(1)(x)–1 clarifies that amounts disclosed under § 1026.38(j)(1)(x) could be for additional taxes not disclosed under § 1026.38(j)(1)(vii) and (viii), flood and hazard insurance premiums where the consumer is being substituted as an insured under the same policy, mortgage insurance in loan assumptions, planned unit development or condominium association assessments paid in advance, fuel or other supplies on hand purchased by the seller which the consumer will use when consumer takes possession of the property, and ground rent paid in advance. This comment incorporates instructions for RESPA settlement statement lines 106–112 in appendix A to Regulation X. 38(j)(2) Itemization of Amounts Already Paid by or on Behalf of Borrower Proposed § 1026.38(j)(2)(i) requires the creditor or closing agent to disclose the label ‘‘Paid Already by or on Behalf of Borrower at Closing’’ and the total amount paid by or on behalf of the consumer prior to closing, calculated as the sum of items required to be disclosed under § 1026.38(j)(2)(ii) through (xi), excluding items paid from funds other than closing funds defined under § 1026.38(j)(4)(i). Below this label, § 1026.38(j)(2)(ii) requires the creditor or closing agent to provide a reference to the amount of the deposit, the consumer’s loan amount, the existing loans assumed or taken subject to at closing, seller credit, other credits, and adjustments for items unpaid by seller. Proposed comment 38(j)(2)(ii)–1 clarifies that the deposit is any amount paid into a trust account by the consumer under the contract of sale for real estate. This is a change from the current definition of deposit in the instructions for RESPA settlement statement line 201 in appendix A to Regulation X, that define the deposit as any amount paid against the sales price prior to settlement, because the amount of the downpayment or funds from the consumer disclosed under § 1026.38(i)(4) may also be paid prior to closing. To differentiate between the downpayment amount and the deposit amount in § 1026.38(i)(4), the amount of the deposit needs to be specified separately from other payments by the consumer against the sales price prior to E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51248 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules closing. Proposed comment 38(j)(2)(ii)– 2 clarifies that the amount of the deposit should be reduced by a commensurate amount if any of the deposit is used to pay for a closing cost before closing. Instead, the charge for the closing cost paid from the deposit will be designated as borrower-paid before closing under § 1026.38(f)(1) or (g)(1), as applicable. Proposed § 1026.38(j)(2)(iii) requires the creditor or closing agent to provide a reference to the principal amount of the consumer’s new loan and the amount of the new loan made by the creditor or the amount of the first user loan. Proposed comment 38(j)(2)(iii)–1 clarifies that first user loan amount disclosed under § 1026.38(j)(2)(iii) is used to finance construction of a new structure or purchase of a manufactured home and that how to disclose a first user loan will depend on whether it is known if the manufactured home will be considered real property at the time of consummation. This comment incorporates guidance currently provided in the instructions for RESPA settlement statement line 202 in appendix A to Regulation X and HUD RESPA FAQs p. 47, #2 (‘‘HUD–1—200 series’’). Proposed § 1026.38(j)(2)(iv) requires the creditor or closing agent to provide a reference to existing loans assumed or taken subject at closing to by the consumer and the amount of those loans. Proposed comment 38(j)(2)(iv)–1 clarifies that the amount disclosed under § 1026.38(j)(2)(iv) is the outstanding amount of any loan that the consumer is assuming, or subject to which the consumer is taking title to the property, must be disclosed under § 1026.38(j)(2)(iv). This comment incorporates guidance currently provided in the instructions for RESPA settlement statement line 203 in appendix A to Regulation X. Proposed § 1026.38(j)(2)(v) requires the creditor or closing agent to provide a reference to seller credits and the total amount of money that the seller will provide in a lump sum at closing for closing costs, designated borrower-paid at or before closing, as disclosed under § 1026.38(f)(1) and (g)(1), as applicable. Proposed comment 38(j)(2)(v)–1 clarifies that any amount disclosed under § 1026.38(j)(2)(v) is for generalized seller credits, and that seller credits attributable to a specific closing cost would be reflected with a seller-paid designation under § 1026.38(f)(1) or (g)(1), as applicable. Proposed comment 38(j)(2)(v)–2 clarifies that any other obligations of the seller to be paid directly to the consumer, such as for issues identified at a walk-through of VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 the property prior to closing, are disclosed under § 1026.38(j)(2)(v). Proposed § 1026.38(j)(2)(vi) requires the creditor or closing agent to provide a reference to other credits and the amount of items paid by or on behalf of the consumer and not otherwise disclosed under § 1026.38(j)(2), (f)(1), (g)(1), or (h)(3). Proposed comment 38(j)(2)(vi)–1 clarifies that any amounts disclosed under § 1026.38(j)(2)(vi) are for other credits from parties other than the seller or creditor, but credits attributable to a specific closing cost closing would be reflected with a paid by other party designation under § 1026.38(f)(1) or (g)(1). For example, a credit from a real estate agent would be listed as a credit along with a description of the rebate and include the name of the party giving the credit. This comment incorporates guidance provided by HUD RESPA FAQs p. 47– 48, #4 (‘‘HUD–1—200 series’’). Proposed comment 38(j)(2)(vi)–2 clarifies that any amounts disclosed under § 1026.38(j)(2)(vi) can also be used for disclosing subordinate financing proceeds. For subordinate financing, the principal amount of the loan must be disclosed with a brief explanation. If the net proceeds of the loan are less than the principal amount, the net proceeds may be listed on the same lines as the principal amount. This comment incorporates guidance provided by the instructions for RESPA settlement statement lines 204 to 209 in appendix A to Regulation X and the HUD RESPA Roundup dated December 2010. Proposed comment 38(j)(2)(vi)–3 clarifies that any amounts disclosed under § 1026.38(j)(2)(vi) can also be used for the disclosure of satisfaction of existing subordinate liens by the consumer. Any amounts paid to satisfy existing subordinate liens by the consumer with funds outside of closing funds must be disclosed with a statement that such amounts were paid outside of closing under § 1026.38(j)(4). This comment incorporates guidance provided by the instructions for completing the RESPA settlement disclosure lines 204 to 209 in appendix A to Regulation X and the HUD RESPA Roundup dated September 2010. Proposed comment 38(j)(2)(vi)–4 clarifies that any amounts disclosed under § 1026.38(j)(2)(vi) can also be used for disclosing a transferred escrow balance in a refinance transaction as a credit along with a description of the transferred escrow balance. This comment incorporates guidance provided by the HUD RESPA FAQs p. 47, #3 (‘‘HUD–1—200 series’’). Proposed comment 38(j)(2)(vi)–5 clarifies that any PO 00000 Frm 00134 Fmt 4701 Sfmt 4702 amounts disclosed under § 1026.38(j)(2)(vi) can also be used for gift funds provided on the consumer’s behalf by parties not otherwise associated with the transaction. Proposed § 1026.38(j)(2)(vii) requires the creditor or closing agent to provide a reference to adjustments for items unpaid by seller. Proposed § 1026.38(j)(2)(viii) requires the creditor or closing agent to provide a reference to city/town taxes, the time period that the seller is responsible for the payment of any such unpaid taxes, and the prorated amount of any such taxes dues from the seller at closing. Proposed § 1026.38(j)(2)(ix) requires the creditor or closing agent to provide a reference to county taxes, the time period that the seller is responsible for the payment of any such unpaid taxes, and the prorated amount of any such unpaid taxes due from the seller at closing. Proposed § 1026.38(j)(2)(x) requires the creditor or closing agent to provide a reference to assessments, the time period that the seller is responsible for paying any such unpaid taxes, and the prorated amount of any such unpaid assessments due from the seller at closing. Proposed § 1026.38(j)(2)(xi) requires the creditor or closing agent to provide a description and the amount of any additional items which have not yet been paid and which the consumer is expected to pay, but which are attributable to a period of time prior to closing. Proposed comment 38(j)(2)(xi)– 1 clarifies that any amounts disclosed under § 1026.38(j)(2)(xi) are for other items not paid by the seller, such as utilities used by the seller, rent collected in advance by the seller from a tenant for a period extending beyond the closing date, and interest on loan assumptions. 38(j)(3) Calculation of Borrower’s Transaction Proposed § 1026.38(j)(3) requires the creditor or closing agent to disclose the label ‘‘Calculation.’’ Proposed § 1026.38(j)(3)(i) requires the creditor or closing agent to provide a reference to the total amount due from the consumer at closing under § 1026.38(j)(1)(i). Proposed § 1026.38(j)(3)(ii) requires the creditor or closing agent to provide a reference to the total amount paid already by or on behalf of the consumer at closing as a negative number under § 1026.38(j)(2)(i). Proposed § 1026.38(j)(3)(iii) requires the creditor or closing agent to provide a reference to cash to close, a statement of whether the disclosed amount is due from or to the consumer, and the amount due from or to the consumer at closing. Proposed comment 38(j)(3)(iii)– E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 1 clarifies that the creditor or closing agent must state either the cash required from the consumer at closing, or cash payable to the consumer at closing. Proposed comment 38(j)(3)(iii)–2 clarifies that the amount disclosed under § 1026.38(j)(3)(iii) is the sum of the amounts disclosed under § 1026.38(j)(3)(i) and (ii). If the result is positive, the amount is due from the consumer. If the result is negative, the amount is due to the consumer. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 38(j)(4) Items Paid Outside of Closing Funds Proposed § 1026.38(j)(4)(i) requires the creditor or closing agent to state amounts paid outside of closing with the phrase ‘‘paid outside closing’’ or ‘‘P.O.C.’’ Proposed comment 38(j)(4)(i)– 1 clarifies that any charges not paid from closing funds but otherwise disclosed under § 1026.38(j) must be marked with the designation ‘‘paid outside of closing’’ or ‘‘P.O.C.’’ with a designation of the party making the payment. This comment incorporates guidance provided by the general instructions for the RESPA settlement statement in appendix A to Regulation X. Proposed comment 38(j)(4)(i)–2 clarifies that charges paid outside of closing funds are not included in computing totals under § 1026.38(j). Proposed § 1026.38(j)(4)(ii) would define closing funds to mean fund collected and disbursed at closing for purposes of § 1026.38(j). 38(k) Summary of Seller’s Transaction Proposed § 1026.38(k) would require that the creditor or closing agent provide the summaries of the seller’s transaction in a separate tables under the heading ‘‘Summaries of Transactions’’ required under § 1026.38(j). Proposed § 1026.38(k) also lists the information that must be provided under the subheading ‘‘Seller’s Transaction.’’ Proposed comment 38(k)– 1 clarifies that § 1026.38(k) does not apply in transaction where there is no seller, such as a refinance transaction. Proposed comment 38(k)–2 clarifies that § 1026.38(k) refers to comment 38(j)–2 related to the use of addendums to the Closing Disclosure. Proposed comment 38(k)–3 refers to comment 38(j)–3 for guidance on the amounts disclosed under certain provisions of § 1026.38(k) that are the same as the amounts disclosed under certain provisions of § 1026.38(j). 38(k)(1) Itemization of Amounts Due to Seller Proposed § 1026.38(k)(1)(i) requires the creditor or closing agent to disclose the label ‘‘Due to Seller at Closing’’ and VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 the total amount due to the seller at closing, calculated as the sum of items required to be disclosed under § 1026.38(k)(1)(ii) through (ix), excluding items paid from funds other than closing funds as described in § 1026.38(k)(4)(i). Below this label, § 1026.38(k)(1)(ii) requires the creditor or closing agent to provide a reference to the sale price of the property and the amount of the real estate contract sales price of the property being sold, excluding the price of any items of tangible personal property if the consumer and seller have agreed to a separate price for such items. In addition, below the same subheading, a reference for adjustments for items paid by seller in advance must also be provided by the creditor or closing agent. Proposed § 1026.38(k)(1)(iii) requires the creditor or closing agent to provide a reference to the sale price of any personal property included in the sale and the amount of the sale price of any personal property excluded from the contract sales price under § 1026.38(k)(ii). Proposed comment 38(k)(1)(iii)–1 clarifies that guidance regarding the classification of personal property is provided at § 1026.38(j)(1)(ii) and comment 38(j)(1)(ii)–1. Proposed § 1026.38(k)(1)(iv) requires the creditor or closing agent to provide a description and the amount of other items to be paid to the seller by the consumer under the contract of sale or other agreement, such as charges that were not listed on the Loan Estimate or items paid by the seller prior to closing but reimbursed by the consumer at consummation. Proposed § 1026.38(k)(1)(v) requires the creditor or closing agent to provide a reference to adjustments for items paid by the seller in advance. Proposed § 1026.38(k)(1)(vi) requires the creditor or closing agent to provide a reference to city/town taxes, the time period that the consumer is responsible for reimbursing the seller for any such prepaid taxes, and the prorated amount of any such prepaid taxes due from the consumer at closing. Proposed § 1026.38(k)(1)(vii) requires the creditor or closing agent to provide a reference to county taxes, the time period that the consumer is responsible for reimbursing the seller for any such prepaid taxes, and the prorated amount of any such prepaid taxes due from the consumer at closing. Proposed § 1026.38(k)(1)(viii) requires the creditor or closing agent to provide a reference to assessments, the time period that the consumer is responsible for reimbursing the seller for any such prepaid assessments, and the prorated PO 00000 Frm 00135 Fmt 4701 Sfmt 4702 51249 amount of any such assessments due from the consumer at closing. Proposed § 1026.38(k)(1)(ix) requires the creditor or closing agent to provide a description and amount of additional items paid by the seller prior to closing that are reimbursed by the consumer at closing. 38(k)(2) Itemization of Amounts Due From Seller Proposed § 1026.38(k)(2)(i) requires the creditor or closing agent to disclose label ‘‘Due from Seller at Closing’’ and the total amount due from the seller at closing, calculated as the sum of items required to be disclosed under § 1026.38(k)(2)(ii) through (xiii), excluding items paid from funds other than closing funds as described in § 1026.38(k)(4)(i). Below this label, § 1026.38(k)(2)(ii) would require the creditor or closing agent to provide a reference to the amount of excess deposit, the consumer’s loan amount, the existing loans assumed or taken subject to at closing, the payoff amount of first mortgage loan, the payoff of second mortgage loan, seller credit, and adjustments for items unpaid by seller. Proposed comment 38(k)(2)(ii)–1 clarifies that any excess deposit disbursed to the seller by a party other than the closing agent must be disclosed under § 1026.38(k)(2)(ii) if the party will provide the excess deposit directly to the seller. Proposed comment 38(k)(2)(ii)–2 clarifies that any amounts of the deposit that were disbursed to the seller prior to closing must be disclosed under § 1026.38(k)(2)(ii). Proposed § 1026.38(k)(2)(iii) requires the creditor or closing agent to provide a reference and amount of the subtotal closing costs paid at closing by seller as calculated under § 1026.38(h)(1). Proposed § 1026.38(k)(2)(iv) requires the creditor or closing agent to provide a reference to existing loans assumed or taken subject to by the consumer and the amount of those loans. Proposed comment 38(k)(2)(iv)–1 clarifies that the amount of the outstanding balance of any lien that the consumer is assuming or taking title subject and is to be deducted from the sales price must be disclosed under § 1026.38(k)(2)(iv). Proposed § 1026.38(k)(2)(v) would require the creditor or closing agent to provide a reference to the payoff of the first mortgage loan and the amount of any first loan that will be paid off as part of closing. Proposed § 1026.38(k)(2)(vi) would require the creditor or closing agent to provide a reference to the payoff of the second mortgage loan and the amount of any second loan that will be paid off as part of closing. Proposed § 1026.38(k)(2)(vii) requires the creditor or closing agent to provide E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51250 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules a reference to seller credits and the total amount of money that the seller will provide as a lump sum at closing to pay for loan costs and other costs, designated borrower-paid at or before closing, as disclosed under § 1026.38(f)(1) and (g)(1), as applicable. Any costs disclosed as seller-paid at or before closing under § 1026.38(f)(1) and (g)(1) are not disclosed under § 1026.38(k)(vii). Proposed comment (k)(2)(vii)–1 clarifies that any other obligations of the seller to be paid directly to the consumer, such as credits for issues identified at a walk-through of the property prior to closing, are disclosed under § 1026.38(k)(2)(vii). Proposed § 1026.38(k)(2)(viii) requires the creditor or closing agent to provide a description and the amount or any and all other obligations required to be paid by the seller at closing, including any lien-related payoffs, fees, or obligations. Proposed comment 38(k)(2)(viii)–1 clarifies that amounts that must be paid in order to satisfy other seller obligations to clear title to the property must be disclosed under § 1026.38(k)(2)(viii). Proposed comment 38(k)(2)(viii)–2 clarifies that the satisfaction of existing liens by the consumer that are not deducted from the sales price are disclosed under § 1026.38(k)(2)(viii) and must be disclosed as paid outside of closing under § 1026.38(k)(4)(i). This guidance tracks comment 38(j)(2)(vi)–2, and incorporates guidance provided by the HUD RESPA Roundup dated December 2010. Proposed comment 38(k)(2)(viii)– 3 clarifies that escrowed funds held by the closing agent for payment of invoices related to repairs, water, fuel, or other utility bills received after closing that cannot be prorated are disclosed under § 1026.38(k)(2)(viii), and that subsequent disclosure of the amounts paid after consummation is optional. This guidance is consistent with the instructions for RESPA settlement statement lines 506 to 509 in appendix A to Regulation X. Proposed § 1026.38(k)(2)(ix) requires the creditor or closing agent to provide a reference to adjustments for items unpaid by seller. Proposed § 1026.38(k)(2)(x) requires the creditor or closing agent to provide a reference to city/town taxes, the time period that the seller is responsible for payment of any such unpaid taxes, and the prorated amount of any such unpaid taxes due from the seller at closing. Proposed § 1026.38(k)(2)(xi) requires the creditor or closing agent to provide a reference to county taxes, the time period that the seller is responsible for the payment of any such unpaid taxes, and the prorated amount of any such unpaid assessments VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 due from the seller at closing. Proposed § 1026.38(k)(2)(xii) requires the creditor or closing agent to provide a reference to assessments, the time period that the seller is responsible for payment of any such unpaid assessments, and the prorated amount of any such unpaid assessments due from the seller at closing. Proposed § 1026.38(k)(2)(xiii) would require the creditor or closing agent to provide a description and the amount of any additional items that have not yet been paid, and which the seller is expected to pay at closing, but which are attributable in part to a period of time prior to the closing. 38(k)(3) Calculation of Seller’s Transaction 38(k)(4) Items Paid Outside of Closing Funds Proposed § 1026.38(k)(4)(i) requires the creditor or closing agent to state amounts paid outside of closing with the phrase ‘‘paid outside closing’’ or ‘‘P.O.C.’’ and that closing funds are funds collected and disbursed at consummation by the creditor or closing agent. Proposed § 1026.38(k)(4)(ii) would define closing funds to mean funds collected and disbursed at consummation for purposes of § 1026.38(k). Frm 00136 Fmt 4701 Sfmt 4702 As discussed below, TILA requires that creditors provide consumers with a variety of disclosures prior to consummation regarding requirements in or arising from the legal obligation: Assumption, demand feature, late payment, negative amortization, partial payment policy, security interest, and escrow account information. For purposes of the integrated disclosure form required by proposed § 1026.19(f), these disclosure requirements must be grouped together under the master heading ‘‘Additional Information About This Loan’’ and under the heading ‘‘Loan Disclosures.’’ 38(l)(1) Assumption Proposed § 1026.38(k)(3) would require the creditor or closing agent to disclose the subheading ‘‘Calculation.’’ Proposed § 1026.38(k)(3)(i) requires the creditor or closing agent to provide a reference to total due to seller at closing and the amount described under § 1026.38(k)(1)(i). Proposed § 1026.38(ii) requires the creditor or closing agent to provide a reference to total due from seller at closing and the amount described as a negative number under § 1026.38(k)(2)(i). Proposed § 1026.38(k)(3)(iii) requires the creditor or closing agent to provide a reference to cash, a statement of whether the disclosed amount is due from or to the seller, and the amount due from or to the seller at closing. Proposed comment 38(k)(3)(iii)–1 clarifies that the creditor or closing agent must state either the cash required from the seller at closing, or the cash payable to the seller at closing. Comment 38(k)(3)(iii)–2 clarifies that the amount disclosed under § 1026.38(k)(3)(iii) is the sum of the amounts disclosed under § 1026.38(k)(3)(i) and the amount disclosed under § 1026.38(k)(ii). If the result is positive, the amount is due to the seller. If the result is negative, the amount is due from the seller. PO 00000 38(l) Loan Disclosures Proposed § 1026.38(l)(1) implements TILA section 128(a)(13) for transactions subject to § 1026.19(f) by requiring the creditor to disclose the statement required by § 1026.37(m)(2), which describes whether a subsequent purchaser may be permitted to assume the remaining loan obligation. For a detailed description of the Bureau’s implementation of TILA section 128(a)(13) and the legal authority for this proposal, see the section-by-section analysis to proposed § 1026.37(m)(2). 38(l)(2) Demand Feature TILA section 128(a)(12) requires the creditor to disclose a statement that the consumer should refer to the appropriate contract document for information about certain loan features, including the right to accelerate the maturity of the debt. 15 U.S.C. 1638(a)(12). Current § 1026.18(p) implements TILA section 128(a)(12) by requiring, among other things, a statement that the consumer should refer to the appropriate contract document for information about nonpayment, default, and the right to accelerate the maturity of the obligation, and prepayment rebates and penalties. In addition, current § 1026.18(i) requires the creditor to disclose whether the legal obligation includes a demand feature and, if the disclosures are based on the assumed maturity of one year as described in § 1026.17(c)(5), the creditor must state that fact. Pursuant to the Bureau’s implementation authority under TILA section 105(a), proposed § 1026.38(l)(2) incorporates certain of the requirements of current § 1026.18(i) and (p) for transactions subject to § 1026.19(f) by requiring that the creditor disclose whether the legal obligation permits the creditor to demand early repayment of the loan and, if so, a statement that the consumer should review the loan E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules document for more details. The information required by proposed § 1026.38(l)(2) must be labeled ‘‘Demand Feature.’’ Proposed comment 38(l)(3)–1 provides a cross-reference to comment 18(i)–2 for a description of demand features that would trigger the disclosure requirement in proposed § 1026.38(l)(2). Pursuant to its authority under TILA section 105(a) and (f), Dodd-Frank Act section 1032(a), and, for residential mortgage loans, Dodd-Frank Act section 1405(b), the Bureau does not propose to incorporate into § 1026.38(l)(2) the special disclosure requirement regarding assumed maturity of one year in current § 1026.18(i) or the optional contract reference disclosures in current § 1026.18(p). By exempting disclosure of information that will not be useful to consumers, the disclosure effectuates the purposes of TILA by enhancing consumer understanding of mortgage transactions, consistent with TILA section 105(a). Similarly, the Bureau has considered the factors in TILA section 105(f) and believes that an exception is appropriate under that provision. Specifically, the Bureau believes that the proposed exemption is appropriate for all affected borrowers, regardless of their other financial arrangements and financial sophistication and the importance of the loan to them. Similarly, the Bureau believes that the proposed exemption is appropriate for all affected loans, regardless of the amount of the loan and whether the loan is secured by the principal residence of the consumer. Furthermore, the Bureau believes that, on balance, the proposed exemption will simplify the credit process without undermining the goal of consumer protection or denying important benefits to consumers. Furthermore, the proposed exemption will ensure that the features of the mortgage transaction are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the mortgage transaction, in light of the facts and circumstances, consistent with Dodd-Frank Act section 1032(a), and will improve consumer awareness and understanding of residential mortgage loans, which is in the interest of consumers and the public, consistent with Dodd-Frank Act section 1405(b). 38(l)(3) Late Payment TILA section 128(a)(10) requires disclosure of any dollar charge or percentage amount which may be imposed by a creditor due to a late payment, other than a deferral or extension charge. 15 U.S.C. 1638(a)(10). VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 This requirement is currently implemented in § 1026.18(l). Proposed § 1026.38(l)(3) implements TILA section 128(a)(10) for loans subject to § 1026.19(f) by requiring the creditor to disclose the statement required by § 1026.37(m)(4), which details any charge that may be imposed for a late payment, stated as a dollar amount or percentage charge of the late payment amount, and the number of days that a payment may be late to trigger the late payment fee. For a detailed description of the Bureau’s implementation of TILA section 128(a)(10) and the legal authority for this proposal, see the section-by-section analysis to proposed § 1026.37(m)(4). 38(l)(4) Negative Amortization New TILA section 129C(f), which was added by section 1414(a) of the DoddFrank Act, provides that no creditor may extend credit to a borrower in connection with a transaction secured by a dwelling or residential real property that includes a dwelling, other than a reverse mortgage, that provides for or permits a payment plan that may result in negative amortization unless the creditor provides the consumer with a notice that the transaction may or will result in negative amortization. 15 U.S.C. 1639c(f). Under TILA section 129C(f), before consummation of the transaction, the creditor must provide the consumer with a statement that: (1) The pending transaction will or may, as applicable, result in negative amortization; (2) describes negative amortization in the manner prescribed by the Bureau; (3) negative amortization increases the loan balance; and (4) negative amortization decreases the consumer’s equity in the property. 15 U.S.C. 1639c(f)(1). Although TILA section 129C(f) is new, both Regulations Z and X currently contain disclosure requirements for loan products that may negatively amortize. In Regulation Z, if the loan product contains features that may cause the loan amount to increase, § 1026.18(s)(4)(C) requires a statement that warns the consumer that the minimum payment covers only some interest, does not repay any principal, and will cause the loan amount to increase, for closed-end transactions secured by real property or a dwelling. Current appendix A to Regulation X requires a similar statement in the ‘‘Loan Terms’’ section of the RESPA settlement statement, which discloses whether the loan balance may increase even if loan payments are made on time. The Bureau proposes § 1026.38(l)(4) to implement TILA section 129C(f) for transactions subject to § 1026.19(f), PO 00000 Frm 00137 Fmt 4701 Sfmt 4702 51251 pursuant to its implementation authority under TILA section 105(a). Specifically, proposed § 1026.38(l)(4) requires a statement of whether the regular periodic payment may cause the principal balance to increase. If the regular periodic payment does not cover all of the interest due, proposed § 1026.38(l)(4)(i) requires a statement that the principal balance will increase, that the principal balance will likely exceed the original loan amount, and that increases in the principal balance will lower the consumer’s equity in the property. In transactions in which the consumer has the option of making regular periodic payments that do not cover all of the interest accrued that month, proposed § 1026.38(l)(4)(ii) requires a statement that, if the consumer chooses a periodic payment option that does not cover all of the interest due, the principal balance may exceed the original loan amount and that increases in the principal balance decrease the consumer’s equity in the property. The statements required by proposed § 1026.38(l)(4)(i) and (ii) are located under the subheading ‘‘Negative Amortization (Increase in Loan Amount).’’ 38(l)(5) Partial Payment Policy TILA section 129C(h), added by section 1414(d) of the Dodd-Frank Act, provides that, in any residential mortgage loan, the creditor must disclose, prior to consummation or at the time such person becomes the creditor for an existing loan, the creditor’s policy regarding the acceptance of partial payments, and if partial payments are accepted, how such payments will be applied to the mortgage and whether such payments will be placed in escrow. 15 U.S.C. 1631c(h). The Bureau proposes § 1026.38(l)(5) to implement the pre-consummation disclosure requirements of TILA section 129C(h), pursuant to its implementation authority under TILA section 105(a).187 Specifically, § 1026.38(l)(5) requires the creditor to disclose, under the subheading ‘‘Partial Payment Policy,’’ a statement of whether it will accept monthly payments that are less than the full amount due and that, if the loan is sold, the new creditor may have a different policy. If partial payments are accepted, the creditor must also provide a brief description of its partial payment policy, including the manner and order in which any partial payments are applied to the principal, interest, or an 187 The disclosure requirements of TILA section 129C(h) that apply after consummation are implemented in proposed § 1026.39. E:\FR\FM\23AUP2.SGM 23AUP2 51252 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 escrow account for partial payments and whether any penalties apply. 38(l)(6) Security Interest TILA section 128(a)(9) requires the creditor to provide a statement that a security interest has been taken in the property that secures the transaction or in property not purchased as part of the transaction by item or type. 15 U.S.C. 1638(a)(9). This requirement is implemented in current § 1026.18(m), which requires disclosure of the fact that the creditor has or will acquire a security interest in the property purchased as part of the transaction, or in other property identified by item or type. The Bureau proposes § 1026.38(l)(6) to implement TILA section 128(a)(9) for transactions subject to § 1026.19(f), pursuant to its implementation authority under TILA section 105(a). Specifically, if the creditor will take a security interest in the property that is the subject of a mortgage loan transaction, proposed § 1026.38(l)(6) requires the creditor to disclose that the consumer is granting it a security interest in that property, the address of the property, and a statement that the consumer may lose the property if the consumer fails to make payments or satisfy other requirements of the legal obligation. The information required by proposed § 1026.38(l)(6) is located under the subheading ‘‘Security Interest.’’ The Bureau proposes to require creditors to disclose the address of the property in which a security interest will be taken and a statement that the consumer may lose the property if he does not make payments or satisfy other requirements, pursuant to its authority under TILA section 105(a) and DoddFrank Act section 1032(a). The Bureau believes the proposed disclosures promote the informed use of credit, which is a purpose of TILA, by clearly disclosing the property in which a security interest is being granted and informing consumers of the potential consequences of the creditor’s security interest in the property. In addition, the Bureau believes the proposed disclosures will ensure that the features of the mortgage transaction are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the mortgage transaction, in light of the facts and circumstances, consistent with Dodd-Frank Act section 1032(a). 38(l)(7) Escrow Account Sections 1461 and 1462 of the DoddFrank Act amended TILA to create a VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 new section 129D, which establishes certain requirements for escrow accounts for consumer credit transactions secured by a first lien on a consumer’s principal dwelling (other than a consumer credit transaction under an open-end credit plan or a reverse mortgage). 15 U.S.C. 1639d(a) through (j). In particular, new TILA section 129D(h) and (j) require certain disclosures when an escrow account is established and certain other disclosures when an escrow account is refused or cancelled by the consumer, respectively. Under TILA section 129D(b), however, application of the mandatory escrow requirements is limited to the following situations: (1) Where an escrow account is required by Federal or State law; (2) where the loan is made, guaranteed, or insured by a Federal or State agency; (3) where the transaction’s APR exceeds the average prime offer rate by prescribed margins; and (4) where an escrow account is required by regulation. As discussed above, the Board’s 2011 Escrows Proposal proposed to implement the new TILA escrow requirements. Although the Bureau expects to implement most aspects of that proposal in a separate rulemaking, there are certain key disclosures in the Board’s 2011 Escrows Proposal that complement the integrated Closing Disclosure. Thus, the Bureau proposes to implement those disclosure requirements in proposed § 1026.38(l)(7). Like the Board’s 2011 Escrows Proposal, the Bureau proposes to apply the TILA section 129D escrow requirements to all transactions subject to proposed § 1026.19(f) even if the disclosures are not mandated by TILA section 129D(b). In doing so, the Bureau relies on its authority under TILA section 105(a), Dodd-Frank Act section 1032(a), and, for residential mortgage loans, Dodd-Frank Act section 1405(b). The Bureau believes that requiring disclosures regarding the establishment of an escrow account, as well as the non-establishment of an escrow account, will provide consumers with information needed to evaluate the costs and fees associated with mortgage loans and to understand their ongoing monthly obligations regardless of whether the transaction would include an escrow account. Disclosure of this information will ensure that consumers have the facts needed to understand a key requirement of their mortgage loan and avoid the uninformed use of credit, consistent with the purposes of TILA. In addition, the Bureau believes that the proposed disclosures will ensure that the features of the mortgage transaction PO 00000 Frm 00138 Fmt 4701 Sfmt 4702 are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the mortgage transaction, in light of the facts and circumstances, consistent with Dodd-Frank Act section 1032(a), and will improve consumer awareness and understanding of residential mortgage loans, which is in the interest of consumers and the public, consistent with Dodd-Frank Act section 1405(b). Accordingly, the Bureau proposes to implement the disclosure requirements of TILA section 129D(h) and (j) in proposed § 1026.38(l)(7), pursuant to its authority under TILA section 105(a), Dodd-Frank Act section 1032(a), and, for residential mortgage loans, DoddFrank Act section 1405(b). Under the subheading ‘‘Escrow Account,’’ proposed § 1026.38(l)(7) requires the creditor to disclose whether the consumer’s loan will have an escrow account, and certain details about the payments made using escrow account funds and those the consumer must make directly. Under the ‘‘Escrow Account’’ subheading and under the reference ‘‘For now,’’ proposed § 1026.38(l)(7)(i) requires a statement that an escrow account may also be called an ‘‘impound’’ or ‘‘trust’’ account and a statement of whether the creditor has or will establish an escrow account at or before consummation. Proposed § 1026.38(l)(7)(i)(A) requires the following disclosures under the ‘‘For now’’ reference: (1) A statement that the creditor may be liable for penalties and interest if it fails to make a payment for any costs for which the escrow account has been established, (2) a statement that the consumer would be required to pay such costs directly if no account is established, and (3) a table titled ‘‘Escrow’’ that contains, if an escrow account is or will be established, an itemization of the following: (i) The total amount the consumer will be required to pay into an escrow account over the first year after consummation for payment of the charges described in § 1026.37(c)(4)(ii), labeled ‘‘Escrowed Property Costs over Year 1,’’ together with a descriptive name of each such charge, calculated as the amount disclosed under § 1026.38(l)(7)(i)(A)(4) multiplied by the number of periodic payments scheduled to be made to the escrow account during the first year after consummation; (ii) the estimated amount the consumer is likely to pay during the first year after consummation for charges described in § 1026.37(c)(4)(ii) that are known to the creditor and that will not be paid using escrow account funds, labeled ‘‘Non- E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules Escrowed Property Costs over Year 1,’’ together with a descriptive name of each such charge and a statement that the consumer may have to pay other costs that are not listed; (iii) the total amount disclosed pursuant to § 1026.37(g)(3), a statement that the payment is a cushion for the escrow account, labeled ‘‘Initial Payment,’’ and a reference to the information disclosed pursuant to § 1026.38(g)(3); and (iv) the amount the consumer will be required to pay into the escrow account with each periodic payment during the first year after consummation for payment of the charges described in § 1026.37(c)(4)(ii), labeled ‘‘Monthly Payment.’’ Proposed § 1026.38(l)(7)(i)(A)(5) provides that a creditor complies with the requirements of § 1026.38(l)(7)(i)(A)(1) and (l)(7)(i)(A)(4) if the creditor bases the numerical disclosures required by those paragraphs on amounts derived from the escrow account analysis required under Regulation X, 12 CFR 1024.17. Proposed comment 38(l)(7)(i)(A)(2)–1 and 38(l)(7)(i)(A)(4)–1 provide guidance to creditors on the calculation of the itemized amounts disclosed pursuant to § 1026.38(l)(7)(i)(A). Proposed § 1026.38(l)(7)(i)(B) requires a statement of whether the loan will not have an escrow account and the reason the loan will not have an escrow account. For example, if the loan will not have an escrow account because either the consumer declined to have one or the creditor does not require or offer them, the disclosure must state that fact. Proposed § 1026.38(l)(7)(i)(B) also requires a statement that the consumer must pay all property costs, such as taxes and homeowner’s insurance, directly, as well as a statement that the consumer may contact the creditor to inquire about the availability of an escrow account. Finally, proposed § 1026.38(l)(7)(i)(B) requires a table titled ‘‘No Escrow,’’ that contains, if an escrow account will not be established, an itemization of the following: (1) The estimated total amount the consumer will pay directly for charges described in § 1026.37(c)(4)(ii) during the first year after consummation that are known to the creditor and a statement that, without an escrow account, the consumer must pay the identified costs, possibly in one or two large payments, labeled as ‘‘Estimated Property Costs over Year 1,’’ and (2) the amount of any fee that the creditor may impose for not establishing an escrow account, labeled ‘‘Escrow Waiver Fee.’’ The disclosures required in § 1026.38(l)(7)(i)(B) are under the ‘‘For now’’ reference required in § 1026.38(l)(7)(i). Proposed comment VerDate Mar<15>2010 22:45 Aug 22, 2012 Jkt 226001 38(l)(7)(i)(B)(1)–1 provides guidance to creditors on calculation of the amounts required to be disclosed pursuant to § 1026.38(l)(7)(i)(B). Under the subheading ‘‘Escrow Account’’ required by proposed § 1026.38(l)(7) and under the reference ‘‘In the future,’’ proposed § 1026.38(l)(7)(ii) requires information about future requirements for property costs. Specifically, proposed § 1026.38(l)(7)(ii)(A) requires a statement that the consumer’s property costs may change and, as a result, the consumer’s escrow amount may change. Proposed § 1026.38(l)(7)(ii)(B) requires a statement that the consumer may be able to cancel an established escrow account, but if the account is cancelled the consumer would be required to pay those costs directly unless a new escrow account is established. Proposed § 1026.38(l)(7)(ii)(C) requires a description of the consequences of failing to pay the property costs, including the imposition of fines and penalties or imposition of a tax lien by the consumer’s State and local government, and possible actions by the creditor, such as adding the outstanding amounts to the loan balance, adding an escrow account for the loan, or purchasing property insurance on the consumer’s behalf (with the statement that it is likely to be more expensive and provide fewer benefits than what the consumer could purchase directly). 38(m) Adjustable Payment Table For transactions subject to proposed § 1026.19(f), the Bureau proposes § 1026.38(m) pursuant to TILA section 128(b)(2)(C)(ii), its implementation authority under TILA section 105(a), and its authority under section 1032(a) of the Dodd-Frank Act and RESPA section 19(a). Proposed § 1026.38(m) requires creditors to disclose on the Closing Disclosure the Adjustable Payment table required by proposed § 1026.37(i) if, under the terms of the legal obligation, the principal and interest payment may adjust without a corresponding adjustment to the interest rate or if the loan is a seasonal payment product under § 1026.38(a)(5)(iii). The information required to be disclosed in the table includes: The periodic payment at the first adjustment of the payment; the number of the earliest number payment that could reflect an adjustment to the amount of the periodic payment; the maximum possible principal and interest payment; the number of the earliest payment that could reflect the maximum possible periodic payment; an affirmative or negative statement of whether the loan has an interest-only, payment-option, PO 00000 Frm 00139 Fmt 4701 Sfmt 4702 51253 step-payment period, or seasonal payment period; and the length of such a period and the payments affected. For a detailed description of the Bureau’s implementation of TILA section 128(b)(2)(C)(ii) and use of its authority under TILA section 105(a), Dodd-Frank Act section 1032(a), and RESPA section 19(a), see the section-by-section analysis to proposed § 1026.37(i). The requirements of proposed § 1026.38(m) mirror those of proposed § 1026.37(i). Accordingly, proposed comment 38(m)–1 directs creditors to the commentary to proposed § 1026.37(i) for guidance on the disclosures required by proposed § 1026.38(m). Proposed comment 38(m)–2 clarifies that, although the disclosure required by proposed § 1026.38(m) is to be presented under a different master heading than the disclosure required by proposed § 1026.37(i), the other requirements applicable to proposed § 1026.37(i) apply to proposed § 1026.38(m). Proposed comment 38(m)–3 clarifies that the prohibition against presenting the table required by proposed § 1026.37(i) except if the conditions of that paragraph are satisfied applies to proposed § 1026.38(m). Proposed comment 38(m)–4 clarifies that the final terms that will apply to the credit transaction must be disclosed pursuant to proposed § 1026.38(m). 38(n) Adjustable Interest Rate Table For transactions subject to proposed § 1026.19(f), proposed § 1026.38(n) uses the implementation authority of TILA section 105(a), and the authority of Dodd-Frank Act section 1032(a) and RESPA section 19(a) to require creditors to disclose on the Closing Disclosure the Adjustable Interest Rate table required by proposed § 1026.37(j) if, under the final terms of the legal obligation, the interest rate may adjust after consummation. The information required to be disclosed in the table includes: (i) The index and margin for an adjustable rate loan for which the interest rate will adjust according to an index that is beyond the control of the creditor; (ii) for a loan with an interest rate that changes based on something other than such an index, such as a ‘‘step-rate’’ product, the amount of the scheduled adjustments and their frequency; (iii) the interest rate at consummation; (iv) the minimum and maximum possible interest rates after consummation of the loan, after any introductory or teaser rate expires; (v) the maximum possible change in the interest rate at the first adjustment; (vi) the maximum possible change for subsequent adjustments of the interest E:\FR\FM\23AUP2.SGM 23AUP2 51254 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules rate; (vii) the month after consummation when the interest rate may first change, counted from the date that interest begins to accrue for the first periodic principal and interest payment; and (viii) the frequency of subsequent interest rate adjustments after consummation. For a detailed description of the Bureau’s implementation of these rules and use of TILA section 105(a), Dodd-Frank Act section 1032(a), and RESPA section 19(a) authority, see the section-bysection analysis to proposed § 1026.37(j) above. The requirements of proposed § 1026.38(n) mirror those of proposed § 1026.37(j). Accordingly, proposed comment 38(n)–1 directs creditors to the commentary to proposed § 1026.37(j) for guidance on the disclosures required by proposed § 1026.38(n). Proposed comment 38(n)–4 clarifies that, although the disclosure required pursuant to proposed § 1026.38(n) is to be presented under a different master heading than the disclosure required by proposed § 1026.37(j), the other requirements applicable to proposed § 1026.37(j) apply to proposed § 1026.38(n). Proposed comment 38(n)–3 clarifies that the prohibition against presenting the table required by proposed § 1026.37(j) if the interest rate will not change after consummation applies to proposed § 1026.38(n). Proposed comment 38(n)– 4 clarifies that the final terms that will apply to the credit transaction must be disclosed pursuant to proposed § 1026.38(n). mstockstill on DSK4VPTVN1PROD with PROPOSALS2 38(o) Loan Calculations Proposed § 1026.38(o) requires creditors to disclose in a separate table under the heading ‘‘Loan Calculations,’’ certain information required by TILA section 128(a)(2) through (5), (8), (17), and (19). Specifically, the table required by proposed § 1026.38(o) must contain the total of payments, finance charge, amount financed, annual percentage rate, total interest percentage, and the approximate cost of funds disclosures described in proposed § 1026.38(o)(1) through (6). Pursuant to proposed § 1026.38(t) and form H–25, the table required by proposed § 1026.38(o) will appear on the final page of the Closing Disclosure, apart from key loan terms identified on the first page of the Closing Disclosure. Based on research regarding consumer comprehension and behavior and the results of the Bureau’s consumer testing, the Bureau believes that the disclosure of these calculations on the final page of the Closing Disclosure and apart from key loan terms may reduce information overload VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 and enhance the overall understanding of the Closing Disclosure. As discussed above, research suggests that consumers can process only a finite amount of information when making complex decisions. As a result, an effective disclosure regime minimizes the risk of distraction and overload by emphasizing information that is important to consumer comprehension, while placing less emphasis on disclosures that are less useful to consumers. Consumer testing conducted by the Bureau for purposes of developing the Closing Disclosure and by the Board for purposes of its 2009 Closed-End Proposal indicates that consumer understanding is enhanced if the loan calculations in proposed § 1026.38(o) are disclosed together and less prominently than disclosures that are most important to consumers’ understanding of their mortgage transactions, such as interest rate and monthly payment. 74 FR at 43293–98, 43306–09. The Bureau requests comment on whether the disclosures in § 1026.38(o) enhance consumers’ ability to understand their loan transactions or serve other important purposes and, if not, whether the Bureau should use its authority under TILA section 105(a) and (f) and Dodd-Frank Act sections 1032(a) and 1405(b) to exempt transactions subject to § 1026.19(f) from certain of these requirements, as set forth below. 38(o)(1) Total of Payments TILA section 128(a)(5) and (8) requires creditors to disclose the sum of the amount financed and the finance charge using the term ‘‘Total of Payments,’’ and a descriptive explanation of that term. 15 U.S.C. 1638(a)(5), (8). Current § 1026.18(h) implements these statutory provisions by requiring creditors to disclose the ‘‘total of payments,’’ using that term, and a descriptive explanation that the figure represents the amount the consumer will have paid after making all scheduled payments. Current comment 18(h)–2 provides that creditors must calculate the total of payments amount for transactions subject to § 1026.18(s) using the rules in § 1026.18(g) and associated commentary and, for adjustable-rate transactions, comments 17(c)(1)–8 and –10. Current comment 18(g)–1 provides guidance to creditors on the amounts to be included in the total of payments calculation. Current comment 18(h)–1 allows creditors to revise the total of payments descriptive statement for variable-rate transactions to convey that the disclosed amount is based on the annual percentage rate and may change. In addition, current comments 18(h)–3 and PO 00000 Frm 00140 Fmt 4701 Sfmt 4702 –4 permit creditors to omit the total of payments disclosure in certain singlepayment transactions and for demand obligations that have no alternate maturity rate. Proposed § 1026.38(o)(1) implements the requirements of TILA section 128(a)(5) and (8) for transactions subject to proposed § 1026.19(f), pursuant to the Bureau’s implementation authority under TILA section 105(a). Specifically, proposed § 1026.38(o)(1) requires creditors to disclose on the Closing Disclosure the term ‘‘Total of Payments,’’ and the statement that the disclosure is the total you will have paid after you make all payments of principal, interest, mortgage insurance, and loan costs, as scheduled. Proposed comment 38(o)(1)–1 clarifies that, for purposes of § 1026.18(o)(1), the total of payments is calculated in the same manner as the ‘‘In 5 Years’’ disclosure pursuant to § 1026.37(l)(1)(i), except that the disclosed amount reflects the total payments through the end of the loan term. The comment also refers creditors to comment 37(1)(1)(i)–1 for guidance on the amounts included in the total of payments calculation. As discussed in the section-by-section analysis to proposed § 1026.37(l), consumers have historically misunderstood the total of payments disclosure and do not use it when evaluating their loan. Accordingly, for the reasons set forth in the section-bysection analysis to proposed § 1026.37(l)(1)(i), the Bureau proposes to modify the requirement of TILA section 128(a)(5) that the total of payments disclose the sum of the amount financed and the finance charge. Instead, the Bureau proposes to include in the total of payments calculation principal, interest, mortgage insurance (including any prepaid or escrowed mortgage insurance), and loan costs disclosed pursuant to proposed § 1026.37(f). The Bureau proposes this modification pursuant to TILA section 105(a), DoddFrank Act section 1032(a), and, for residential mortgage loans, Dodd-Frank Act section 1405(b). The Bureau believes that this modification will enhance consumer understanding of mortgage transactions because including loan costs, rather than the finance charge, in the total of payments calculation will allow consumers to identify the costs that are included in the total of payments calculation. Consumers can refer to other parts of the Closing Disclosure to determine which loan costs are included in the total of payments disclosure, in contrast to the components of the finance charge, which the consumer has no way to identify. Further, the Bureau believes E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 that including the same costs and fees in the total of payments disclosure as are in the ‘‘In 5 Years’’ disclosure pursuant to proposed § 1026.37(l)(1)(i) will ease compliance burden for creditors. The Bureau believes this proposed modification will improve consumer awareness and understanding of residential mortgage loans, which is in the interest of consumers and the public, consistent with Dodd-Frank Act section 1405(b). In addition, the Bureau believes that the disclosure ensures that the features of consumer credit transactions secured by real property are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the product or service, in light of the facts and circumstances, consistent with Dodd-Frank Act section 1032(a). The proposed rule does not allow creditors to modify the descriptive statement that accompanies the total of payments disclosure for variable-rate transactions or to omit the total of payments disclosure in single-payment transactions and for demand obligations that have no alternate maturity rate, in contrast to current comments 18(h)–1, –3, and –4. The Bureau believes that consistent disclosures will better enhance consumer understanding of credit terms and will ease compliance burden for creditors. 38(o)(2) Finance Charge TILA section 128(a)(3) and (8) requires creditors to disclose the ‘‘finance charge’’ and a brief descriptive statement of the finance charge. 15 U.S.C. 1638(a)(3), (8). Current § 1026.18(d) implements these provisions by requiring creditors to disclose the ‘‘finance charge,’’ using that term, and a brief description such as ‘‘the dollar amount the credit will cost you.’’ Current comment 18(d)–1 allows creditors to modify the descriptive statement for variable rate transactions with a phrase indicating that the disclosed amount is subject to change. In addition, current § 1026.17(a)(2), which implements TILA section 122(a), requires creditors to disclose the finance charge more conspicuously than any other required disclosure, except the creditor’s identity. The rules addressing which charges must be included in the finance charge are set forth in TILA section 106, and are discussed more fully above with respect to proposed § 1026.4. The Bureau proposes § 1026.38(o)(2) to implement TILA section 128(a)(3) and (8) for transactions subject to § 1026.19(f), pursuant to its implementation authority under TILA VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 section 105(a). Proposed § 1026.38(o)(2) requires creditors to disclose the finance charge, using that term, and the descriptive statement ‘‘the dollar amount the loan will cost you,’’ in the table required by proposed § 1026.38(o). Proposed comments 38(o)(2)–1 and –2 provide guidance to creditors on how to disclose and calculate the finance charge. The proposed rule does not allow creditors to modify the descriptive statement that accompanies the finance charge disclosure for variable-rate transactions, in contrast to current comment 18(d)–1, because the Bureau believes that consistent disclosures will better enhance consumer understanding of credit terms and will ease compliance burden for creditors. Proposed § 1026.38(o)(2) also provides that the disclosed finance charge and other disclosures affected by the disclosed finance charge (including the amount financed and the annual percentage rate) shall be treated as accurate if the amount disclosed as the finance charge is understated by no more than $100 or is greater than the amount required to be disclosed. However, as discussed in the section-bysection analysis to proposed § 1026.4 above, the Bureau solicits comment on whether and the amount by which this tolerance should be raised in light of the expanded definition of the finance charge for closed-end transactions secured by real property or a dwelling. The Bureau proposes to exercise its authority under TILA section 105(a) and (f), Dodd-Frank Act section 1032(a), and, for residential mortgage loans, Dodd-Frank Act section 1405(b) to except transactions subject to proposed § 1026.19(f) from the requirement under TILA section 122(a) that the finance charge be disclosed more conspicuously than other disclosures. The Bureau has considered the purposes for which it may exercise its authority under TILA section 105(a) and, based on that review, believes that the proposed exception is appropriate. Here, the proposed exception from the TILA section 122(a) requirement that the finance charge be more conspicuously disclosed than other disclosures effectuates TILA’s purpose of achieving a meaningful disclosure of credit terms for transactions subject to proposed § 1026.19(f). As discussed in the section-by-section analysis to proposed § 1026.37(l), consumers generally do not understand the finance charge and do not use it when making decisions about their loan. Accordingly, the Bureau believes that consumer understanding is enhanced by disclosing the finance charge with other loan calculations, PO 00000 Frm 00141 Fmt 4701 Sfmt 4702 51255 such as total of payments, amount financed, and total interest percentage, for transactions subject to proposed § 1026.19(f), and that a more prominent disclosure of the finance charge may not provide a meaningful benefit to consumers. Rather, disclosure of the finance charge separately from the information that is important to consumer understanding of credit terms may enhance consumer understanding by avoiding information overload. The Bureau also proposes this exception pursuant to its authority under TILA section 105(f). 15 U.S.C. 1604(f)(1). The Bureau has considered the factors in TILA section 105(f) and believes that, for the reasons discussed above, an exception is appropriate under that provision. Specifically, the Bureau believes that the proposed exemption is appropriate for all affected borrowers, regardless of their other financial arrangements and financial sophistication and the importance of the loan to them. Similarly, the Bureau believes that the proposed exemption is appropriate for all affected loans, regardless of the amount of the loan and whether the loan is secured by the principal residence of the consumer. Furthermore, the Bureau believes that, on balance, the proposed exemption will simplify the credit process without undermining the goal of consumer protection or denying important benefits to consumers. Highlighting the finance charge on the disclosure form contributes to overall consumer confusion and information overload, complicates the mortgage lending process, and hinders consumers’ ability to understand important loan terms. For these same reasons, the Bureau believes that the proposed disclosure of the finance charge would ensure that the features of consumer credit transactions secured by real property are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the product or service, in light of the facts and circumstances, consistent with 1032(a) of the Dodd-Frank Act, and will improve consumer awareness and understanding of residential mortgage loans, which is in the interest of consumers and the public, consistent with Dodd-Frank Act section 1405(b). 38(o)(3) Amount Financed TILA section 128(a)(2) and (8) requires creditors to disclose the ‘‘amount financed,’’ using that term, and a brief descriptive statement. 15 U.S.C. 1638(a)(2), (8). Current § 1026.18(b) implements this provision by requiring creditors to disclose the amount E:\FR\FM\23AUP2.SGM 23AUP2 51256 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 financed, using that term, together with a brief description that the amount financed represents the amount of credit of which the consumer has actual use. The Bureau proposes new § 1026.38(o)(3) to implement TILA section 128(a)(2) and (8) for transactions subject to proposed § 1026.19(f), pursuant to its implementation authority under TILA section 105(a). Proposed § 1026.38(o)(3) requires creditors to disclose the amount financed, using that term, together with the descriptive statement, ‘‘the loan amount available after paying your upfront finance charge.’’ Based on consumer testing, the Bureau believes this approach is appropriate to serve TILA’s purpose of assuring a meaningful disclosure of credit terms. Proposed comment 38(o)(3)–1 clarifies that, for purposes of § 1026.38(o)(3), the amount financed disclosure is calculated in accordance with the requirements of § 1026.18(b) and its commentary. 38(o)(4) Annual Percentage Rate TILA section 128(a)(4) and (8) requires creditors to disclose the annual percentage rate, together with a brief descriptive statement. 15 U.S.C. 1638(a)(4), (8). Current § 1026.18(e) implements this requirement by requiring creditors to disclose the ‘‘annual percentage rate,’’ using that term, and a brief description such as ‘‘the cost of your credit as a yearly rate.’’ 15 U.S.C. 1632(a). In addition, TILA section 122(a) requires that the annual percentage rate be more conspicuous than other disclosures, except the disclosure of the creditor’s identity. This requirement is implemented in current § 1026.18(e). Proposed § 1026.38(o)(4) implements the requirements of TILA section 128(a)(4) and (8) for transactions subject to § 1026.19(f) by requiring creditors to disclose the ‘‘annual percentage rate’’ and the abbreviation ‘‘APR,’’ together with the following statement: ‘‘Your costs over the loan term expressed as a rate. This is not your interest rate.’’ For the reasons discussed in the section-bysection analysis to proposed § 1026.37(l)(2), the Bureau proposes to exercise its authority under TILA section 105(a) and (f), Dodd-Frank Act section 1032(a), and, for residential mortgage loans, Dodd-Frank Act section 1405(b) to except the annual percentage rate from the conspicuous disclosure requirement under TILA section 122(a), for transactions subject to proposed § 1026.19(f). As discussed in the section-by-section analysis to proposed § 1026.37(l), in response to the Bureau’s Small Business Review Panel Outline, some consumer VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 advocates expressed concern about disclosing the APR on the final page of the Closing Disclosure and suggested that the APR should be more prominently displayed on the disclosure. The Bureau has considered this feedback, but for the reasons discussed above, believes that the proposed approach to the APR could provide important benefits to consumers by emphasizing the difference between the APR and the contract interest rate and by deemphasizing historically confusing disclosures that contribute to information overload, and that other possible approaches to improving the APR would be less effective at improving the disclosure. 38(o)(5) Total Interest Percentage As discussed in the section-by-section analysis to proposed § 1026.37(l)(3), section 1419 of the Dodd-Frank Act amended TILA to add new section 128(a)(19), which requires that, in the case of a residential mortgage loan, the creditor disclose the total amount of interest that the consumer will pay over the life of the loan as a percentage of the principal of the loan. 15 U.S.C. 1638(a)(19). TILA section 128(a)(19) also requires that the amount be computed assuming the consumer makes each monthly payment in full and on time, and does not make any overpayments. Pursuant to the Bureau’s implementation authority under TILA section 105(a), proposed § 1026.38(o)(5) implements this new statutory requirement by requiring creditors to disclose the ‘‘total interest percentage,’’ using that term and the abbreviation ‘‘TIP.’’ For guidance on disclosure and calculation of the total interest percentage on the Closing Disclosure, proposed comment 38(o)(5)–1 refers creditors to the disclosure of the total interest percentage on the Loan Estimate, found in § 1026.37(l)(3) and its commentary. In addition, for the reasons discussed in the section-by-section analysis to proposed § 1026.37(l)(3), the Bureau proposes to exercise its authority under TILA section 105(a), Dodd-Frank Act section 1032(a), and, for residential mortgage loans, DoddFrank Act section 1405(b) to require creditors to disclose the following descriptive statement of the total interest percentage: ‘‘This rate is the total amount of interest that you will pay over the loan term as a percentage of your loan amount.’’ Concerns were raised during the Small Business Review Panel, by industry feedback provided in response to the Small Business Review Panel Outline, and in feedback received through the Bureau’s Web site that the PO 00000 Frm 00142 Fmt 4701 Sfmt 4702 total interest percentage would be difficult to calculate and explain to consumers, would not likely be helpful to consumers, and may distract consumers from more important disclosures. See Small Business Review Panel Report at 20. In particular, industry feedback provided in response to the Bureau’s Small Business Review Panel Outline noted that the disclosure will always be inaccurate in an adjustable-rate loan and in any loan that is paid off before final maturity. Based on this feedback and consistent with the Small Business Review Panel’s recommendation, the Bureau alternatively proposes to use its authority under TILA section 105(a) and (f) and Dodd-Frank Act sections 1032(a) and 1405(b) to remove the total interest percentage from the Closing Disclosure required by proposed § 1026.19(f). The Bureau’s rationale for the proposed exemption is found in the section-bysection analysis to proposed § 1026.37(l)(3). The Bureau solicits comment on the proposed exemption. 38(o)(6) Approximate Cost of Funds The Dodd-Frank Act amended TILA to add new section 128(a)(17). 15 U.S.C. 1638(a)(17). Among other things, that section requires creditors to disclose, in the case of residential mortgage loans, ‘‘the approximate amount of the wholesale rate of funds in connection with the loan.’’ The Bureau notes several interpretive challenges in TILA section 128(a)(17). First, the statute refers to an ‘‘amount’’ of a ‘‘rate,’’ whereas amounts are typically absolute, while rates are typically expressed as percentages. Second, the intended meaning of the phrase ‘‘wholesale rate of funds’’ is unclear. Wholesale transactions have historically had a ‘‘wholesale rate,’’ which is generally the rate at which a wholesale lender is willing to extend credit to a particular consumer, before any increase to recoup compensation paid to a mortgage broker. The resulting increased rate is the ‘‘retail rate’’ paid by the consumer. However, there are other components of overall pricing such as discount points and other up-front charges, which calls into question the use of the term ‘‘wholesale rate’’ as a meaningful disclosure. The Bureau is unaware of the phrase ‘‘wholesale rate of funds’’ having a known standard usage in the mortgage industry. ‘‘Wholesale’’ generally is used by industry participants to refer to loans made through mortgage brokers, as opposed to loans made directly by the creditor through its own employees, which are commonly referred to as ‘‘retail’’ originations. Yet, there is E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules nothing in TILA section 128(a)(17) limiting its applicability to wholesale transactions. In addition, the meaning of the term ‘‘rate of funds’’ is unclear. In light of these uncertainties, the Bureau proposes to interpret the ‘‘wholesale rate of funds’’ to mean the actual cost of borrowing funds for use in mortgage lending. As discussed in the Kleimann Testing Report, the Bureau conducted consumer testing using the terms ‘‘lender cost of funds,’’ ‘‘average cost of funds,’’ and ‘‘approximate cost of funds,’’ along with descriptive statements of these terms. First, the Bureau conducted consumer testing using the phrase ‘‘lender cost of funds,’’ which was the actual cost of funds used to make mortgage loans. Consumers were generally unable to understand or use this disclosure, and the Bureau received significant negative feedback about this disclosure from industry representatives. Second, the Bureau conducted consumer testing using the phrase ‘‘average cost of funds,’’ which is an average or approximate cost of funds in lieu of the creditor’s actual costs. Again, consumers were unable to use or understand this disclosure, and the Bureau received negative industry feedback. In all cases, experienced and non-experienced consumers that participated in the Bureau’s consumer testing of the cost of funds disclosure questioned the disclosure and were unable to articulate how to use the information. During five rounds of consumer testing, only one consumer showed any interest in the disclosure, stating that it was ‘‘interesting,’’ but did not use it to evaluate the loan. All other consumers were either confused by the disclosure or simply did not find it helpful. Several consumers expressed a feeling of offense in reaction to the cost of funds. Industry participants also believed that consumers would be confused by the cost of funds disclosure. Accordingly, the Bureau is soliciting comment on both ‘‘lender cost of funds’’ and ‘‘average cost of funds’’ pursuant to its authority under TILA section 105(a), Dodd-Frank Act section 1032(a), and, for residential mortgage loans, DoddFrank Act section 1405(b). Proposed § 1026.38(o)(6) requires creditors to disclose the ‘‘approximate cost of funds,’’ using that term and the abbreviation ‘‘ACF’’ and expressed as a percentage, and the statement ‘‘The approximate cost of funds used to make this loan. This is not a direct cost to you.’’ For purposes of proposed § 1026.38(o)(6), ‘‘approximate cost of funds’’ means either the most recent ten-year Treasury constant maturity rate or the creditor’s actual cost of borrowing VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 the funds used to extend the credit, at the creditor’s option. The Bureau solicits comment on whether another index, such as the London Interbank Offer Rate (LIBOR), would be a more appropriate measure of the approximate cost of funds. The Bureau also solicits comment on what would be required for creditors to disclose their actual costs of funds. Based on consumer testing, the Bureau believes that consumer understanding of the cost of funds disclosure will be enhanced through the descriptive statement, consistent with the purposes of TILA, and will improve consumer awareness and understanding of residential mortgage loans, which is in the interest of consumers and the public, consistent with section 1405(b) of the Dodd-Frank Act. For these reasons, the Bureau also believes that the disclosure of the descriptive statement of the cost of funds disclosure may ensure that the features of consumer credit transactions secured by real property are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the product or service, in light of the facts and circumstances, consistent with section 1032(a) of the Dodd-Frank Act. Notwithstanding these proposed modifications, consumer testing conducted by the Bureau suggests that consumers do not understand the disclosure and that it does not provide a meaningful benefit to consumers. In addition, based on concerns raised by the Small Business Review Panel, industry feedback provided in response to the Bureau’s Small Business Review Panel Outline, and feedback provided through the Bureau’s Web site, the Bureau believes that the disclosure may be very burdensome for creditors to calculate and explain, and that consumers would not find the disclosures helpful. See Small Business Review Panel Report at 20. Accordingly, the Bureau remains concerned that the cost of funds disclosure may not be a useful tool for consumers and could create confusion and contribute to information overload. Consistent with the recommendation of the Small Business Review Panel, the Bureau alternatively proposes to use its exception and modification authority under TILA section 105(a) and (f), Dodd-Frank Act section 1032(a), and, for residential mortgage loans, DoddFrank Act section 1405(b) to exempt transactions subject to proposed § 1026.19(e) and (f) from the cost of funds disclosure requirement in TILA section 128(a)(17). The Bureau believes PO 00000 Frm 00143 Fmt 4701 Sfmt 4702 51257 the proposed exemption will carry out the purposes of TILA, consistent with TILA section 105(a), by avoiding consumer confusion and information overload, thereby promoting the informed use of credit. For these same reasons, the proposed exemption will help ensure that the features of the transaction are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to better understand the costs, benefits, and risks associated with the mortgage transaction, in light of the facts and circumstances, consistent with DoddFrank Act section 1032(a), and will improve consumer awareness and understanding of residential mortgage loans, which is in the interest of consumers and the public, consistent with Dodd-Frank Act section 1405(b). Finally, the Bureau has considered the factors in TILA section 105(f) and believes that, for the reasons discussed above, an exception is appropriate under that provision. Specifically, the Bureau believes that the proposed exemption is appropriate for all affected borrowers, regardless of their other financial arrangements and financial sophistication and the importance of the loan to them. Similarly, the Bureau believes that the proposed exemption is appropriate for all affected loans, regardless of the amount of the loan and whether the loan is secured by the principal residence of the consumer. Furthermore, the Bureau believes that, on balance, the proposed exemption will simplify the credit process without undermining the goal of consumer protection or denying important benefits to consumers. Based on these considerations, the results of the Bureau’s consumer testing, and the analysis discussed elsewhere in this proposal, the Bureau believes that the proposed exemption may be appropriate. The Bureau solicits comment on this proposed exemption. 38(p) Other Disclosures As discussed below, proposed § 1026.38(p) implements statutory provisions requiring creditors to disclose information regarding appraisals, contract details, liability after foreclosure, refinancing, and tax deductions. Under the proposal, these disclosures would be provided under the heading ‘‘Other Disclosures.’’ 38(p)(1) Appraisal As noted above in the discussion of proposed § 1026.37(m)(1), the DoddFrank Act amended ECOA to require creditors to provide consumers with a copy of any written appraisal conducted for a loan that is or will be secured by E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51258 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules a first lien on a dwelling, and also added a requirement that creditors disclose that right to consumers at the time of application. ECOA section 701(e); 15 U.S.C. 1691(e). In addition, the Dodd-Frank Act amended TILA to require creditors to provide consumers with an appraisal copy at least three days prior to consummation of certain ‘‘higher-risk’’ mortgages. TILA section 129H(c)–(d); 15 U.S.C. 1639h(c)–(d). As discussed above, these provisions are being implemented in separate Bureau and joint interagency rulemakings, respectively. Although the Bureau is not implementing these statutory provisions through this proposed rule, the Bureau is proposing appraisal disclosures similar to those required by the statutes to be included on the Loan Estimate in transactions subject to either ECOA section 701(e) or TILA section 129H, as implemented in Regulations B and Z, respectively, pursuant to its authority under TILA section 105(a) and DoddFrank Act section 1032(a). The Bureau intends to harmonize these requirements with the final rules implementing the statutory appraisal disclosure requirements at the time it issues a rule finalizing this proposal. In addition, the Bureau is proposing, pursuant to its authority under TILA section 105(a) and Dodd-Frank Act section 1032(a), that creditors provide a disclosure regarding the right to receive an appraisal on the Closing Disclosure the consumer receives three days prior to consummation. Like § 1026.37(m)(1), this disclosure requirement applies only to transactions subject to either ECOA section 701(e) or TILA section 129H, as implemented in Regulations B and Z, respectively. Specifically, proposed § 1026.38(p)(1)(i) requires the creditor to disclose that, if there was an appraisal of the property in connection with the loan, the creditor is required to provide the consumer with a copy of such appraisal at no additional cost to the consumer at least three days prior to consummation. Proposed § 1026.38(p)(1)(ii) requires the creditor to disclose that, if the consumer has not yet received a copy of the appraisal, the consumer should contact the creditor using the information disclosed pursuant to proposed § 1026.38(r). Proposed § 1026.38(p)(1) requires these disclosures to be provided under the subheading ‘‘Appraisal.’’ Proposed comment 38(p)(1)–1 provides guidance regarding the applicability of proposed § 1026.38(p)(1). The comment states that if a transaction is not subject to either ECOA section 701(e) or TILA section 129H, as implemented in Regulations B and Z, respectively, the disclosure VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 required by proposed § 1026.38(p)(1) may be omitted from the Closing Disclosure. The Bureau believes the additional disclosure reminding consumers of their right to receive a copy of an appraisal conducted for their loan will promote the informed use of credit by consumers, consistent with TILA section 105(a), and ensure that the features of mortgage transactions are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the loans, in light of the facts and circumstances, consistent with DoddFrank Act section 1032(a). 38(p)(2) Contract Details TILA section 128(a)(12) requires the creditor to provide a statement that ‘‘[t]he consumer should refer to the appropriate document for any information such document provides about nonpayment, default, the right to accelerate the maturity of the debt, and prepayment rebates and penalties.’’ 15 U.S.C. 1638(a)(12). This requirement is currently implemented in § 1026.18(p), which requires the creditor to provide a statement that the consumer should refer to the appropriate contract document for information pertaining to nonpayment, default, the right to accelerate the maturity of the loan obligation, and prepayment rebates and penalties. Section 1026.18(p) also provides the creditor the option to disclose a reference to the contract document for information regarding security interests and assumption of the legal obligation. The Bureau proposes § 1026.18(p)(2) to implement TILA section 128(a)(12) for transactions subject to § 1026.19(f), pursuant to its implementation authority under TILA section 105(a). Like current § 1026.18(p), proposed § 1026.38(p)(2) requires the creditor to disclose a statement that the consumer should review the loan contract for additional information about loan terms. Specifically, under proposed § 1026.38(p)(2), the creditor is required to state that the consumer should refer to the appropriate loan document and security instrument for information about nonpayment, what constitutes a default under the legal obligation, circumstances under which the creditor may accelerate the maturity of the obligation, and prepayment rebates and penalties. Proposed § 1026.38(p)(2) requires this information to be disclosed is under the subheading ‘‘Contract Details.’’ PO 00000 Frm 00144 Fmt 4701 Sfmt 4702 38(p)(3) Liability After Foreclosure As discussed in the section-by-section analysis to proposed § 1026.37(m)(7), section 1414(c) of the Dodd-Frank Act created new TILA section 129C(g), which establishes certain requirements for residential mortgage loans subject to protection under a State’s antideficiency law. 15 U.S.C. 1639c(g). TILA section 129C(g)(2) generally requires the creditor to provide a written notice to the consumer describing the protection provided by the applicable State’s antideficiency law and the significance for the consumer of the loss of such protection. For refinance transactions only, TILA section 129C(g)(3) generally requires creditors that receive from or provide to the consumer an application for refinancing that would cause the loan to lose the protection of an antideficiency law to provide a written notice to the consumer describing the protection provided by the antideficiency law and the significance for the consumer of the loss of such protection. As discussed above, TILA section 129C(g)(3), which applies to refinance transactions only, is implemented in proposed § 1026.37(m)(7). Proposed § 1026.38(p)(3) implements the requirements of TILA section 129C(g)(2) for transactions subject to § 1026.19(f), pursuant to the Bureau’s implementation authority under TILA section 105(a). Specifically, under proposed § 1026.38(p)(3), if State law may offer consumers protection from liability, the creditor must disclose a brief statement that State law may protect the consumer from liability for the unpaid balance. The statement must also advise the consumer that any protection afforded under State law may be lost if the consumer refinances the loan or incurs additional debt on the property and that the consumer should consult an attorney for additional information. However, if State law does not protect the consumer from liability for the unpaid balance, proposed § 1026.38(p)(3) requires the creditor to disclose that fact. The information required by proposed § 1026.38(p)(3) is provided under the subheading ‘‘Liability after Foreclosure.’’ Proposed comment 38(p)(3)–1 clarifies that whether the consumer is afforded protection from liability in a foreclosure varies by State and that proposed § 1026.38(p)(3) requires the creditor to provide a general description of the applicable State’s requirements. Proposed comment 38(p)(3)–1 also clarifies that any type of protection afforded by State law, other than a statute of limitations, requires a E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules statement that State law may protect the consumer from liability for the unpaid balance. Pursuant to its authority under TILA section 105(a), Dodd-Frank Act section 1032(a), and, for residential mortgage loans, Dodd-Frank Act section 1405(b), the Bureau proposes to modify the statutory requirement that the creditor or loan originator must describe the protection provided by the applicable State’s anti-deficiency law, for all transactions subject to proposed § 1026.19(f). The Bureau believes that the more generalized anti-deficiency disclosure required by proposed § 1026.38(p)(3) is effective at informing consumers about the existence or absence of State anti-deficiency laws, and that a more detailed state-specific disclosure could be confusing for consumers and costly and burdensome to implement. The Bureau recognizes that significant State law variations exist regarding anti-deficiency protection. For this reason, proposed § 1026.38(p)(3) requires creditors to disclose a statement that consumers should consult a lawyer for more information about any applicable anti-deficiency laws. The Bureau believes the proposed modification will ensure that the features of the transaction are fully, accurately and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the mortgage transaction, consistent with Dodd-Frank Act section 1032(a), and will improve consumer awareness and understanding of residential mortgage loans, which is in the interest of consumers and the public, consistent with Dodd-Frank Act section 1405(b). mstockstill on DSK4VPTVN1PROD with PROPOSALS2 38(p)(4) Refinance Proposed § 1026.38(p)(4) implements TILA section 128(b)(2)(C)(ii) for transactions subject to § 1026.19(f) by requiring the creditor to disclose the statement required by proposed § 1026.37(m)(5), regarding the consumer’s future ability to refinance their loan. For a detailed discussion of the Bureau’s proposed implementation of TILA section 128(b)(2)(C)(ii), see the section-by-section analysis to proposed § 1026.37(m)(5). 38(p)(5) Tax Deductions The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (Bankruptcy Act) amended TILA to add new section 128(a)(15), 15 U.S.C. 1638(a)(15), which requires that, in the case of a consumer credit transaction that is secured by the principal dwelling of the consumer in which the extension of credit may exceed the fair market VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 value of the collateral, the creditor must disclose certain tax implications for the consumer. Public Law 109–8,119 Stat. 23. The Board stated its intent to implement the Bankruptcy Act amendments in an advance notice of proposed rulemaking published in October 2005 as part of its ongoing review of Regulation Z. 70 FR 60235 (Oct. 17, 2005). The issue was addressed again in the Board’s 2009 Closed-End Proposal, although a final rule was not adopted. 74 FR 43232, 43310. In the 2009 Closed-End Proposal, the Board proposed to implement TILA section 128(a)(15) by requiring creditors to provide the disclosure required by TILA section 128(a)(15) for transactions secured by a dwelling. 74 FR at 43310– 11. The proposed rule permitted, but did not require, creditors to provide the disclosure in transactions secured by real property that does not include a dwelling, even though the statute limits the disclosure to transactions secured by the principal dwelling of the consumer. Id. The Board reasoned that it would be unnecessarily burdensome to require creditors to create separate disclosures for transactions secured by real property and those secured by a dwelling and proposed that the creditor be permitted, but not required, to provide disclosures regarding Federal tax implications for transactions secured by real property. Id. Proposed § 1026.38(p)(5) implements the requirements of TILA section 128(a)(15) for transactions subject to proposed § 1026.19(f), including transactions secured by real property that does not include a dwelling, pursuant to its authority under TILA section 105(a), Dodd-Frank Act section 1032(a), and, for residential mortgage loans, Dodd-Frank Act section 1405(b). Specifically, for all transactions subject to § 1026.19(f), proposed § 1026.38(p)(5) requires creditors to state that, if the consumer borrows more than the value of the property, the interest on the loan amount above the market value is not deductible from Federal income taxes. Proposed § 1026.38(p)(5) also requires a statement advising the consumer to consult a tax professional for additional information. The Bureau believes that the proposed disclosure promotes the informed use of credit in all transactions subject to § 1026.19(f), and is therefore consistent with the purposes of TILA. Moreover, requiring the disclosure for all transactions subject to proposed § 1026.19(f), whether secured by the consumer’s principal dwelling or other real property, facilitates industry compliance by reducing the time and resources that would be expended to determine whether a loan transaction is PO 00000 Frm 00145 Fmt 4701 Sfmt 4702 51259 subject to the disclosure requirements regarding the deductibility of Federal income taxes. In addition, the Bureau believes that the proposed disclosure ensures that the features of mortgage transactions are disclosed in manner that ensures that the features of the transaction are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the cost, benefits, and risks associated with the transaction, consistent with Dodd-Frank Act section 1032(a) and will improve consumer awareness and understanding of residential mortgage loans, which is in the interest of consumers and the public, consistent with Dodd-Frank Act section 1405(b). 38(q) Questions Notice Proposed § 1026.38(q) requires the creditor or closing agent to provide a statement that the consumer should contact the creditor with any questions about the disclosures required under § 1026.19(f), a reference to the Bureau’s Web site to obtain more information or to make a complaint, and a prominent question mark. Although this notice is not currently expressly required by TILA, RESPA, or their implementing regulations, the Bureau is proposing to require that the Closing Disclosure contain such a notice based on its authority under TILA section 105(a), RESPA section 19(a), and Dodd-Frank Act section 1032(a). The Bureau believes that this disclosure will effectuate the purposes of TILA and RESPA by facilitating the informed use of credit and ensuring that consumers are provided with greater and timelier information on the costs of the closing process, and will also ensure that the features of the transaction are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to better understand the costs, benefits, and risks associated with the transaction in light of the facts and circumstances, consistent with DoddFrank Act section 1032(a). Requiring disclosure of this notice complements proposed § 1026.19(f)(1)(ii), which requires delivery of the Closing Disclosure three business days prior to consummation. TILA section 128(b)(2)(D) requires that a corrected TILA disclosure be given to the consumer three business days prior to consummation if the APR as initially disclosed becomes inaccurate, and the Bureau understands that because of the high frequency of annual percentage rate changes triggering the corrected TILA disclosure obligation, many creditors currently provide the corrected TILA disclosure as a matter of course E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51260 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules even if it is not required. RESPA section 4 requires that the RESPA settlement statement be provided ‘‘at or before closing,’’ however, and the Bureau understands that it is typically given at closing. Proposed § 1026.19(f)(1)(ii) reconciles the two provisions by requiring that consumers be given all of the RESPA- and TILA-mandated disclosures three business days prior to consummation. During this threebusiness-day period, the consumer can review the Closing Disclosure, contact the creditor with questions regarding the information contained on the Closing Disclosure, and correct any errors prior to consummation. Under proposed § 1026.38(q), the required notice includes a statement directing the consumer to contact the creditor with any questions about the disclosures required under § 1026.19(f). If the alternative language proposed in § 1026.19(f)(1)(v) is adopted in a final rule, however, the closing agent may provide the disclosures required under § 1026.19(f) instead of the creditor. Notwithstanding this fact, the Bureau believes the notice required under proposed § 1026.38(q) should in all cases reference the creditor, rather than the closing agent, because the creditor is better positioned to answer the consumer’s questions relating to the disclosures provided under § 1026.19(f). The creditor is familiar with the loan terms and is responsible for disclosing the aggregate amount of closing costs under TILA section 128(a)(17). Moreover, it is more likely that the creditor will have been in communication with the consumer previously. The Bureau seeks comment, however, on whether the notice required under proposed § 1026.38(q) should include a statement directing the consumer to contact the creditor or the closing agent with questions, or a statement directing the consumer to contact the closing agent, if the disclosures required under § 1026.19(f) are provided by the closing agent. Moreover, the Bureau’s Web site will offer important information and useful tools that consumers can access at key points in the mortgage origination process, including during the threebusiness-day period between the consumer’s receipt of the Closing Disclosure and consummation. Directing consumers to this Web site therefore promotes consumer understanding of credit terms and closing costs and of benefits and risks associated with the transaction in light of the facts and circumstances. The notice required under proposed § 1026.38(q) also includes a prominent question mark. This prominent question VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 mark is an aspect of the Closing Disclosure form H–25 set forth in appendix H to Regulation Z, the standard form or model form, as applicable, pursuant to § 1026.38(t). Consumer testing by the Bureau indicated that use of the prominent question mark icon in the questions notice drew consumers’ attention to the notice. 38(r) Contact Information Under TILA section 128(a)(1) and Regulation Z § 1026.18(a), the TILA disclosures must include the identity of the creditor. Comment 18(a)–1 clarifies that the ‘‘identity’’ of the creditor must include the name of the creditor, but may also include the creditor’s address and/or telephone number. As stated in appendix C to Regulation X, the RESPA GFE must include the name, address, phone number, and email address (if any) of the loan originator. As stated in appendix A to Regulation X, the RESPA settlement statement must include the name and mailing address of the lender and the name, address, and phone number of the settlement agent. Moreover, TILA section 129B(b)(1)(B), which was added to TILA by section 1402 of the Dodd-Frank Act, provides that each mortgage originator must include on all loan documents any unique identifier of the mortgage originator provided by the Nationwide Mortgage Licensing System and Registry. However, TILA, RESPA, and their implementing regulations currently do not expressly require the disclosure of: (1) The email address of the creditor (unless the creditor is also the loan originator, in which case it must be disclosed on the GFE but not on the RESPA settlement statement); (2) the name, email address, and phone number of the primary contact with the creditor; (3) the email address of the closing agent; (4) the name, email address, and phone number of the consumer’s and seller’s real estate brokers, if any; or (5) the license number or other unique identifier issued by the applicable jurisdiction or regulating body with which a closing agent or real estate broker is licensed and/or registered, if any. The Bureau received feedback from the public through its Know Before You Owe initiative that requested contact information on the disclosure to appear only on one part of the Closing Disclosure. Based on this feedback, the Bureau tested a prototype design with contact information for the creditor, mortgage broker, and other parties related to the transaction in one table. During consumer testing, consumers and industry participants found the PO 00000 Frm 00146 Fmt 4701 Sfmt 4702 contact information table useful and easy to follow, and indicated that it contained the basic information they needed to follow up with the various parties related to the transaction. Therefore, the Bureau is proposing to require that the Closing Disclosure contain a contact information table as set forth in proposed § 1026.38(r) based on its authority under TILA section 105(a), RESPA section 19(a), DoddFrank Act section 1032(a) and, for residential mortgage loans, Dodd-Frank Act section 1405(b). The Bureau believes that the contact information table required to be disclosed under proposed § 1026.38(r) will effectuate the purposes of TILA and RESPA by facilitating the informed use of credit and ensuring that consumers are provided with greater and more timely information on the costs of the closing process. Providing consumers with multiple types of contact information for the critical non-seller parties participating in the transaction will allow consumers easier access to information relevant to the transaction (including costs), which in turn enhances consumer understanding of the costs, benefits, and risks associated with the transaction in light of the facts and circumstances (which is consistent with Dodd-Frank Act section 1032(a)). The Bureau also believes such disclosure will improve consumers’ awareness and understanding of residential mortgage transactions, which is in the interest of consumers and the public (which is consistent with DoddFrank Act section 1405(b)). Moreover, the Bureau is proposing § 1026.38(r) based on its mandate under sections 1032(f), 1098, and 1100A of the Dodd-Frank Act to propose rules and forms that combine the disclosures required under TILA and sections 4 and 5 of RESPA into a single, integrated disclosure for mortgage loan transactions covered by those laws. As discussed above, appendix C to Regulation X states that the RESPA GFE must include the name, address, phone number, and email address (if any) of the loan originator, and pursuant to appendix A to Regulation X, the RESPA settlement statement must include the name and mailing address of the lender and the name, address, and phone number of the settlement agent. Thus, as part of the Bureau’s statutory mandate to integrate the TILA and RESPA disclosures, the Bureau must integrate the disclosures currently required under Regulation X with the TILA-mandated disclosures of the creditor’s identity, discussed above. As noted above, TILA section 129B(b)(1)(B), as added by section 1402 E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules of the Dodd-Frank Act, provides that each mortgage originator must include on all loan documents any unique identifier of the mortgage originator provided by NMLSR. New TILA section 129B(b)(1)(B) will be implemented in a separate Bureau rulemaking concerning mortgage loan origination compensation. However, the Bureau is proposing to use its authority under TILA section 105(a), Dodd-Frank Act section 1032(a) and, for residential mortgage loans, Dodd-Frank section 1405(b) to include in the contact information table to be disclosed under § 1026.38(r) the NMLSR identification number for the creditors, mortgage brokers, and the individual persons employed by such entities, as applicable, since the additional information of the NMLSR and license numbers for State regulated settlement service providers will improve consumer awareness and understanding of transactions involving residential mortgage loans and is therefore in the interest of consumers and the public by providing the consumer with information about the licensing of the settlement service providers. In the integrated TILA–RESPA final rule, the Bureau expects to harmonize this proposal with its rulemaking implementing TILA section 129B(b)(1)(B). The Bureau also believes that the disclosure of contact information in a tabular format as required by proposed § 1026.38(r) complements proposed § 1026.19(f)(1)(ii), which requires delivery of the Closing Disclosure three business days prior to consummation. As noted above, proposed § 1026.19(f)(1)(ii) reconciles the TILA and RESPA timing provisions by requiring that consumers be given the integrated disclosures three business days prior to consummation. During this three-business-day period, the consumer can review the Closing Disclosure, contact the creditor, closing agent, mortgage broker, and real estate brokers with questions regarding the information contained on the Closing Disclosure, and correct any errors prior to consummation. Thus, the contact information table required under proposed § 1026.38(r) makes it easier for consumers to contact the critical nonseller parties participating in the transaction during the three-businessday period prior to consummation. The inclusion of primary contact email addresses in the table facilitates efficient communication between the consumer and the other parties. As applicable, the table required by proposed § 1026.38(r) would include contact information for the creditor, the VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 mortgage broker, the consumer’s real estate broker, the seller’s real estate broker, and the closing agent. The table would include the following contact information for each party, as applicable: Name, address, NMLSR identification/license number, name of primary contact, NMLSR identification/ license number of the primary contact, email address of primary contact, and phone number of primary contact. Proposed comments 38(r)–1 through –6 provide additional guidance regarding these required disclosures. For instance, proposed comment 38(r)– 3 clarifies that the address disclosed in the contact information table is the identified party’s place of business where the primary contact for the transaction is located (usually the local office), rather than a general corporate headquarters address. Similarly, proposed comment 38(r)–6 clarifies that the primary contact working at the identified party is the individual who interacts most frequently with the consumer and who has an NMLSR identification number or, if none, a license number, or other unique identifier to be disclosed under proposed § 1026.38(r)(3) and (5), as applicable, and provides examples of the primary contact to be disclosed in a given transaction. 38(s) Signature Statement For the reasons and based on the legal authority set forth in the section-bysection analysis to proposed § 1026.37(n), proposed § 1026.38(s) implements the requirements of TILA section 128(b)(2)(B)(i) for transactions subject to § 1026.19(f). The disclosure requirements in proposed § 1026.38(s) mirror the requirements in proposed § 1026.37(n). Proposed comment 38(s)– 1 cross-references the commentary to proposed § 1026.37(n) for guidance regarding optional signature requirements and signature lines for multiple consumers. During the Bureau’s Small Business Review Panel, some industry participants expressed concern that consumers might be confused about the effect of signing the Closing Disclosure to acknowledge receipt. Small Business Review Panel Report at 29. Based on this feedback, the Panel recommended that the Bureau consider whether to revise the signature statement on the prototype form, or whether additional guidance should be provided to clarify the effect of a signature line on the consumer’s legal obligation. Id. The Bureau has considered the Panel’s recommendation and believes, based on several rounds of consumer testing, that consumers understand the disclosure in PO 00000 Frm 00147 Fmt 4701 Sfmt 4702 51261 proposed § 1026.38(s) to mean that they are not obligated to complete the loan transaction just because they signed the Closing Disclosure. As a result, the Bureau believes that the proposed disclosure is appropriate, but solicits comment on this issue. 38(t) Form of Disclosures As discussed above, the Bureau is proposing to exclude transactions subject to proposed § 1026.19(f) from the coverage of § 1026.17(a) and (b). Consequently, the implementation of TILA sections 122(a) and 128(b)(1) in § 1026.17(a)(1), requiring that the disclosures be clear and conspicuous and that they be segregated from everything else, does not apply to the integrated disclosures set forth in § 1026.38 under this proposal. As described in the analysis of proposed § 1026.37(o), the Bureau, pursuant to its implementation authority under TILA section 105(a), proposes to implement the statutory segregation and clear and conspicuous requirements of TILA sections 122(a) and 128(b)(1) for the disclosure required by proposed § 1026.38 in new § 1026.38(t). The Bureau believes these requirements will assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit. 38(t)(1) General Requirements Similar to proposed § 1026.37(o)(1), proposed § 1026.38(t)(1) establishes the requirements that the disclosures required by § 1026.38 be clear and conspicuous, in writing, and grouped together, segregated from everything else, and provided on separate pages that are not commingled with any other documents or disclosures, including any other disclosures required by State or other laws. Proposed comment 38(t)–1 clarifies that the clear and conspicuous standard requires that the disclosures be legible and in a readily understandable form. This guidance is adopted from existing comment 17(a)(1)–1. The comment also clarifies that proposed § 1026.37(o)(1) requires that the disclosures be grouped together, segregated from everything else, and provided on separate pages that are not commingled with any other documents or disclosures, including any other disclosures required by State or other laws. This requirement is stricter than the guidance found in existing comment 17(a)(1)–2, which provides that the disclosures may be grouped together and segregated from other information in a variety of ways other than a separate piece of paper. E:\FR\FM\23AUP2.SGM 23AUP2 51262 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 The Bureau recognizes that, in certain credit sale and other non-mortgage, closed-end credit transactions, creditors include the disclosures required by § 1026.18 in the loan contract or some other document and ensure that they are grouped together and segregated by outlining them in a box or other means authorized by comment 17(a)(1)–2. However, as described above in the discussion of proposed § 1026.37(o), the Bureau believes that this approach is virtually never employed for mortgage credit, for which the new disclosures under proposed §§ 1026.19(f) and 1026.38, rather than § 1026.18 disclosures, are required. For the reasons stated in that discussion, the Bureau believes that requiring the § 1026.38 disclosures to be delivered as a separate document does not present any significant new obligation that mortgage creditors do not already effectively observe and maximizes the benefits of the forms. The Bureau seeks comment, however, on whether there currently are transactions subject to § 1026.19(f) that may be burdened by the adoption of this requirement. Also, similar to proposed § 1026.37(o)(1)(ii), proposed § 1026.38(t)(1)(ii) provides that the disclosures shall contain only the information required by § 1026.38(a) through (s) and that they generally shall be made in the same order, and positioned relative to the master headings, headings, subheadings, labels, and similar designations in the same manner, as shown in form H–25. Proposed comment 38(t)–2 clarifies that the treatment of balloon payment loans with leasing characteristics. 38(t)(2) Estimated Disclosures Similar to proposed § 1026.37(o)(2), proposed § 1026.38(t)(2) provides that, wherever form H–25 designates the required master heading, heading, subheading, label, or similar designation for a disclosure as ‘‘estimated,’’ that corresponding master heading, heading, subheading, label, or similar designation required by § 1026.38 must include the word ‘‘estimated,’’ even if the provision requiring such heading, label, or similar designation does not contain the word. Many of the items that are required to be only good faith estimates when included in the § 1026.37 disclosures, in accordance with § 1026.19(e), will be actual terms and costs when stated in the § 1026.38 disclosures, as required by § 1026.19(f). As noted above in the section-by-section analysis of proposed § 1026.37(o), many of the disclosure items required by § 1026.38 crossreference their counterparts in § 1026.37. To avoid confusion over VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 which items must be designated as ‘‘estimates,’’ the content provisions of § 1026.37 do not include in any of the master headings, headings, subheadings, labels, and similar designations the word ‘‘estimated.’’ Instead, proposed § 1026.37(o)(2) effectively incorporates by reference the ‘‘estimated’’ designations reflected on form H–24 of appendix H to this part. Accordingly, proposed § 1026.38(t)(2) also incorporates by reference the ‘‘estimated’’ designations reflected on form H–25 of appendix H to this part. Proposed comment 38(t)(2)–1 provides guidance regarding the requirement to disclose certain amounts as estimated amounts based on the designations within form H–25. 38(t)(3) Form Similar to proposed § 1026.37(o)(3), proposed § 1026.38(t)(3) also provides that, for a transaction that is a federally related mortgage loan, as defined in Regulation X, the disclosures must be made using form H–25 of appendix H to this part. Certain closed-end consumer credit transactions are subject to the requirements of proposed § 1026.19(f) but do not fit the Regulation X definition of ‘‘federally related mortgage loan.’’ These include construction-only loans with terms of less than two years that do not finance the transfer of title to the consumer and loans secured by vacant land on which a home will not be constructed or placed using the loan proceeds within two years after settlement of the loan. See § 1024.5(b)(3) and (4). In addition, transactions subject to proposed § 1026.19(f) but not subject to RESPA would include loans secured by non-residential real property, provided they have a consumer purpose as required by § 1026.1(c)(1)(iv). See § 1024.2, definition of ‘‘federally related mortgage loan, paragraph (1)(i) (requiring that the securing property be ‘‘residential real property’’). As with transactions subject to proposed § 1026.19(e), for such transactions that are subject to proposed § 1026.19(f), because they are subject to TILA and are secured by real property, but that are not subject to RESPA, the Bureau is not mandating the use of form H–25 as a standard form. TILA section 105(b) provides that nothing in TILA may be construed to require a creditor to use any model form or clause prescribed by the Bureau under that section. Accordingly, proposed § 1026.38(t)(3) provides that, for transactions subject to § 1026.38 that are not federally related mortgage loans, the disclosures must be made with headings, content, and format substantially similar to form H–25 but PO 00000 Frm 00148 Fmt 4701 Sfmt 4702 does not mandate the use of that form. Consistent with TILA section 105(b), proposed comment 38(t)(3)–1 explains that, although use of the form as a standard form is not mandatory for such transactions, its use as a model form, if properly completed with accurate content, constitutes compliance with the clear and conspicuous and segregation requirements of § 1026.38(t)(1). As discussed in the analysis of proposed § 1026.37(o)(3), the Bureau is proposing the requirement that creditors use the standard form for federally related mortgage loans pursuant to RESPA section 4(a), as amended by the Dodd-Frank Act. 12 U.S.C. 2603(a). As discussed above, although the DoddFrank Act eliminated one reference in RESPA section 4(a) to a ‘‘standard’’ form, it left the other such reference in place, as well as another such reference in section 4(c). More notably, in amending section 4(a), Congress did not include an explicit prohibition of a mandatory-use form. For this reason, the Bureau does not believe that Congress intended to eliminate standard-form authority from RESPA section 4. The Bureau also proposes the mandatory form pursuant to its authority in RESPA section 19(a) to prescribe such rules and regulations as may be necessary to achieve RESPA’s purposes. 12 U.S.C. 2617(a). RESPA’s purposes include the establishment of more effective advance disclosure to home buyers and sellers of settlement costs. Id. 2601(b)(1). The Bureau believes, based on consumer testing results, that the purpose of more effective advance disclosure of settlement costs is better achieved if all lenders provide those disclosures in a standardized format. In the Bureau’s consumer testing, participants were able to compare the costs disclosed on the Loan Estimate and Closing Disclosure more easily when they were provided in a format that matched closely. In addition, participants better understood the costs disclosed in the Closing Disclosure after gaining experience using the matching format of the Loan Estimate. Further, disclosure of settlement costs alone, without the context provided by the credit terms, is far less effective in aiding consumer understanding of the transaction. This is consistent with HUD’s rationale for including credit terms in the required GFE, in HUD’s 2008 RESPA Final Rule. See 73 FR 68204, 68214–15 (Nov. 17, 2008). This is also the stated purpose of the integrated disclosure under RESPA section 4(a). Accordingly, the Bureau is authorized under section 19(a) to require the E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 standard form for the disclosure of all of the information it contains, both settlement costs and credit terms alike. The Bureau uses this authority to require a standard form for federally related mortgage loans under proposed § 1026.38(t)(3)(i). As described above, for transactions subject to proposed § 1026.19(f), proposed § 1026.38(t)(3)(ii) uses the authority TILA section 105(b) to establish a model disclosure for credit transactions subject to TILA and not RESPA. For a detailed description of the Bureau’s implementation of these rules and use of TILA section 105(a) authority, see the section-by-section analysis of proposed § 1026.37(o)(3). During the Small Business Review Panel, several settlement agents requested that the Bureau require the use of a standard integrated disclosure form. The settlement agents stated that if the forms were only models, creditors would establish inconsistent requirements, which would be more expensive for small settlement agents. See Small Business Review Panel Report at 19. Feedback requesting both standard and model forms was also submitted by industry trade associations in response to the Small Business Review Panel Outline. In consideration of the recommendation of the Small Business Review Panel, the Bureau seeks comment on the advantages, such as cost-saving benefits, and disadvantages of requiring a standard form for the Closing Disclosure for federally related mortgage loans and model forms for other credit transactions subject to proposed § 1026.19(f). Id. at 28. Similar to proposed § 1026.37(o)(3)(iii), proposed § 1026.38(t)(3)(iii) also provides that the disclosures may be provided in electronic form, subject to compliance with the Electronic Signatures in Global and National Commerce Act (15 U.S.C. 7001 et seq.). This provision parallels existing § 1026.17(a)(1). 38(t)(4) Rounding Similar to proposed § 1026.37(o)(4), proposed § 1026.38(t)(4) requires certain numerical amounts on the Closing Disclosure to be rounded. The Bureau proposes this requirement for the same reasons as the requirements of proposed § 1026.37(o)(4), namely to reduce information overload, aid in consumer understanding of the transaction, prevent misconceptions regarding the accuracy of certain estimated amounts (e.g., estimated property costs over the life of the loan), and ensure a meaningful disclosure of credit terms. For a detailed description of the Bureau’s use of its authority under TILA VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 section 105(a), RESPA section 19(a), and section 1405(b) of the Dodd-Frank Act in requiring rounded numbers on the integrated disclosures, see the analysis of proposed § 1026.37(o)(4). Proposed comment 38(t)(4)–1 clarifies that consistent with § 1026.2(b)(4) all numbers are to be disclosed as exact numbers, unless required to be rounded by proposed § 1026.38(t)(4). Proposed comment 38(t)(4)–2 refers to commentary to proposed § 1026.37(o)(4) for guidance. 38(t)(5) Exceptions The Bureau believes it must specify the changes to the format of the Closing Disclosure that are required and permissible, to ensure the disclosures provided to consumers convey the information required by proposed § 1026.38 in a clear, understandable, and effective manner for consumers. Accordingly, pursuant to its authority under RESPA section 19(a), TILA section 105(a), and section 1032(a) of the Dodd-Frank Act, the Bureau proposes § 1026.38(t)(5) to provide for a specific list of exceptions to the format of the Closing Disclosure, as illustrated in form H–25 of appendix H to Regulation Z. For a detailed description of the Bureau’s use of its authority under TILA section 105(a), RESPA section 19(a), and section 1405(b) of the Dodd-Frank Act in providing for a list of exceptions to the required format, see the analysis of proposed § 1026.37(o)(5). The requirements of proposed § 1026.38(t)(5) mirror those of proposed § 1026.37(o)(5), with appropriate differences for the different format, timing, and use of the two disclosures. Like proposed § 1206.37(o), proposed § 1026.38(t)(5)(i) requires modification to indicate the frequency of payment or applicable unit-period for the transaction; proposed § 1026.38(t)(5)(ii) permits lender credits to be deleted from the Cash to Close disclosure required by proposed § 1026.38(d); proposed § 1026.38(t)(5)(iii) permits the addition of administrative information in certain space on the form; and proposed § 1026.38(t)(5)(ix) permits translation of the form into languages other than English. In contrast to proposed § 1026.37(o), unlike proposed § 1026.37(o)(5)(iii), proposed § 1026.38(t)(5) does not permit the font size or type to be altered from, or a slogan or logo to be provided for or with, the creditor information required by proposed § 1026.38(a)(4)(iii). While proposed § 1026.37(o)(5) does not permit the deletion of lines from the proposed form H–24 in appendix H to Regulation Z for the information required to be disclosed by proposed PO 00000 Frm 00149 Fmt 4701 Sfmt 4702 51263 § 1026.37(f) and (g), proposed § 1026.38(t)(5)(iv) does permit the deletions of lines in certain circumstances from proposed form H– 25 in appendix H to Regulation Z. While proposed § 1026.37(o) does not permit the use of additional pages for closing cost details on the Loan Estimate, except for the services for which a consumer can shop under proposed § 1026.37(f)(3), proposed § 1026.38(t)(5)(v) does permits the expansion of the information required by proposed § 1026.38(f), (g), and (h) over two pages in certain circumstances to accommodate the closing costs and itemization required on the Closing Disclosure, provided that the Loan Costs and Other Costs under proposed § 1026.38(f) and (g), respectively, are each disclosed on a single page. In addition, the Bureau understands that the Closing Disclosure may be provided to parties other than consumers, unlike the Loan Estimate. In light of privacy considerations that may arise, proposed § 1026.38(t)(5)(vi) permits the creditor or settlement agent preparing the disclosure to leave certain information regarding the consumer’s transaction blank in the disclosure provided to the seller and vice versa. Similarly, proposed § 1026.38(t)(5)(vii) permits the creditor or settlement agent preparing the disclosure to delete certain information regarding the consumer’s transaction from the disclosure provided to a seller or third party. For example, proposed § 1026.38(t)(5)(vii) permits the disclosures regarding the consumer’s credit transaction required by proposed § 1026.38(l) through (s) to be deleted from the form provided to a seller. An illustration of such form is provided in proposed form H–25(I) in appendix H to Regulation Z. Further, considering that some credit transactions may not involve sellers, proposed § 1026.38(t)(5)(viii) also permits use of a modified version of the form for credit transactions that do not involve a seller, such as a refinance transaction, which is illustrated in proposed form H–25(J). Proposed § 1026.38(t)(5)(x) also permits the addition of a page for customary recitals and information used locally in real estate settlements. Proposed comment 38(t)(5)–1 clarifies that any changes not specified in proposed § 1026.38(t)(5) may affect the substance, clarity, or meaningful sequence of the disclosure and cause the creditor to lose protection from civil liability under TILA. Similar to proposed comments 37(o)(t)–2 through –5, proposed comments 38(t)(5)–2 through –5 provide guidance regarding manual completion of the form, E:\FR\FM\23AUP2.SGM 23AUP2 51264 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 modifications to accommodate additional contact information, the addition of signature lines, and the formatting of additional pages permitted by § 1026.38(t)(5). In addition, because certain disclosures required by proposed § 1026.38 are permitted by proposed § 1026.38(t) to be disclosed over two pages, even though they are illustrated on form H–25 of appendix H to this part as disclosed on one page, proposed comment 38(t)(5)–6 permits modifications to the page number references illustrated on form H–25 accordingly. Proposed comment 38(t)(5)(iv)–1 provides guidance regarding the deletion and addition of line numbers on form H–25 for the disclosures requirements of § 1026.38(f) through (h). Proposed comments 38(t)(5)(v)–1 and –2 provide guidance regarding the permission to disclose the information required by proposed § 1026.38(f) through (h) over two pages. Proposed comments 38(t)(5)(viii)–1 and –2 provide guidance regarding the effect of the modifications permitted by proposed § 1026.38(t)(5)(viii) on the Calculating Cash to Close table required by proposed § 1026.38(t)(i) and with respect to the disclosure required by proposed § 1026.38(a)(3)(vii)(B). Proposed comment 38(t)(5)(x)–1 provides guidance regarding the permission to add an additional page for customary recitals and information. Section 1026.39 Mortgage Transfer Disclosures Section 1414(d) of the Dodd-Frank Act amended TILA section 129C to add section 129C(h), which requires at the time a person becomes a creditor of an existing residential mortgage loan, disclosure of the following: (i) The creditor’s policy regarding the acceptance of partial payments; and (ii) if they are accepted, how such payments will be applied to the mortgage loan and if such payments will be placed in escrow. 15 U.S.C. 1639c(h). This requirement is in addition to the identical disclosure required before settlement that was added to TILA by section 1414(d) of the Dodd-Frank Act, which the Bureau proposes to implement in proposed § 1026.38(l)(5) pursuant to its authority under TILA section 105(a), as described above. Section 1401 of the Dodd-Frank Act amended TILA section 103 to define ‘‘residential mortgage loan’’ as essentially closed-end credit transactions secured by a dwelling or residential real property with a dwelling. Specifically, the definition includes any consumer credit transaction that is secured by a VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 mortgage, deed of trust, or other equivalent consensual security interest on a dwelling, or residential real property that includes a dwelling, other than a consumer credit transaction under an open credit plan or, for purposes of certain sections of TILA, including TILA section 129C, timeshare plans described in section 101(53D) of title 11 of the United States Code. 15 U.S.C. 1602(cc)(5). On May 20, 2009, the Helping Families Save Their Homes Act of 2009 was signed into law.188 Section 404(a) of the Helping Families Save Their Homes Act of 2009 amended TILA to establish a new requirement for notifying consumers of the sale or transfer of their mortgage loans. The creditor that is the new owner or assignee of a mortgage loan must provide the required disclosures no later than 30 days after the date on which it acquired the loan. This provision is contained in TILA section 131(g), 15 U.S.C. 1641(g), and applies to any consumer credit transaction secured by the principal dwelling of a consumer. The Board implemented TILA section 131(g) in Regulation Z § 1026.39.189 Scope of Coverage The disclosures required by TILA sections 129C(h) and 131(g) must be provided in connection with the transfer or assignment of a mortgage loan generally. However, the disclosures apply to different types of mortgage loans. The requirements in TILA section 131(g) apply to both closed-end credit transactions and open-end home equity lines of credit secured by the principal dwelling of a consumer. But the requirement of TILA section 129C(h) applies to closed-end credit secured by a dwelling or residential real property with a dwelling, which is broader than a consumer’s principal dwelling, but specifically excludes open-end credit. Further, the TILA section 131(g) disclosure is specifically required by statute to be provided no later than 30 days after the date on which a mortgage loan is sold or otherwise transferred or assigned to a third party. TILA section 129C(h), on the other hand, simply provides that a new creditor of an existing residential mortgage loan must disclose its partial payment policy at the time the person becomes a creditor. In other words, TILA section 129C(h) requires the disclosure when the person acquires the loan. The Bureau believes that combining the partial payment policy disclosure required after consummation with the 188 Public 189 75 PO 00000 Law 111–22, 123 Stat. 1632 (2009). FR 58489 (Sept. 24, 2010). Frm 00150 Fmt 4701 Sfmt 4702 mortgage loan transfer disclosure currently required by § 1026.39, and adjusting the scope of the mortgage loan transfer disclosure to include credit transactions secured by all dwellings, rather than principal dwellings only, would promote the informed use of credit by consumers and facilitate compliance by persons covered by these requirements. The disclosures regarding the identity of a consumer’s new creditor, and the new creditor’s partial payment policy, would be just as useful to a consumer whose closed-end credit transaction is secured by a second or vacation home as it would to a consumer whose closed-end loan is secured by a principal dwelling. In addition, adjustment of the scope of § 1206.39 to include closed-end credit transactions secured by a dwelling would eliminate much of the analysis that covered persons would have to undertake to determine whether and which disclosures would be triggered when a closed-end transaction secured by a dwelling is transferred. The Bureau also proposes to adjust the scope of the current mortgage loan transfer disclosure to include closedend credit transactions subject to proposed § 1026.19(f) (i.e., closed-end transactions secured by real estate other than reverse mortgage transactions subject to § 1026.33 of this part), as well as closed-end transactions secured by a dwelling. This adjustment would expand the coverage of the mortgage loan transfer disclosure, and the postconsummation partial payment policy disclosure, to the same types of property covered by the pre-consummation partial payment policy disclosure, which includes closed-end transactions secured by real estate but not a dwelling. The Bureau believes that requiring the post-consummation partial payment policy disclosure for the same loans as the pre-consummation partial payment policy disclosure would promote the informed use of credit, because consumers who receive the disclosure before consummation would be informed if the policy has changed with the new ownership of the loan. In addition, the Bureau believes disclosures regarding the identity of a consumer’s new creditor, and the new creditor’s partial payment policy, would be just as useful to a consumer whose closed-end consumer credit transaction is secured by real estate that does not include a dwelling, or non-residential real estate, as it would to a consumer whose closed-end loan is secured by a dwelling. This adjustment to the scope does not exclude reverse mortgage transactions subject to § 1026.33, as does E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules § 1026.19(f), as such transactions are not currently excluded from coverage under § 1026.39 generally. However, reverse mortgage transactions do not require consumers to make regular periodic payments to the creditor, and thus, the Bureau proposes to exclude reverse mortgage transactions subject to § 1026.33 from the requirement to disclose a partial payment policy. The Bureau believes this exclusion of reverse mortgage transactions from the partial payment disclosure is appropriate and facilitates compliance with the statute. In addition, although the scope also does not contain the specific exclusion for credit transactions relating to timeshare plans as described in 11 U.S.C. 101(53D), as defined by section 1401 of the Dodd-Frank Act, that the definition of ‘‘residential mortgage loan’’ does under TILA section 103, such transactions would generally be covered by proposed § 1026.19(f) as transactions secured by real estate. The Bureau believes that a new creditor’s partial payment policy would be just as useful to a consumer whose closed-end credit transaction is secured by a such a timeshare plan as to a consumer of a principal-dwelling secured transaction. The Bureau proposes the aforementioned adjustments pursuant to its authority under TILA section 105(a) to effectuate the purposes of TILA and Regulation Z and facilitate compliance with the statute. The Bureau believes this adjustment effectuates the purposes of TILA under TILA section 102(a), because it would ensure meaningful disclosure of credit terms to consumers and facilitate compliance with the statute. In addition, consistent with section 1032(a) of the Dodd-Frank Act, this adjustment would ensure that the features of consumer credit transactions secured by real property are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the product or service, in light of the facts and circumstances. Further, the Bureau proposes this modification of the disclosure requirements for residential mortgage loans on its authority under Dodd-Frank Act section 1405(b), as it believes the modification may improve consumer awareness and understanding of transactions involving residential mortgage loans through the use of disclosures, and is in the interest of consumers and in the public interest. 39(a) Scope For the reasons discussed above, the Bureau proposes amendments to § 1026.39(a) to expand the coverage of VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 the disclosures required when ownership of a mortgage loan is transferred to closed-end credit transactions secured by a dwelling or real property. The Bureau proposes to retain the scope for open-end credit transactions to those secured by the consumer’s principal dwelling. The Bureau is not proposing to change the scope of the term ‘‘covered person’’ under § 1026.39(a)(1). When the Board promulgated § 1026.39, it applied the section to ‘‘covered persons,’’ rather than ‘‘creditors’’ as defined under TILA and Regulation Z.190 The Board stated that Congress did not intend the word ‘‘creditor’’ under section 404(a) of the Helping Families Save Their Homes Act of 2009 to have the same meaning as ‘‘creditor’’ under TILA and Regulation Z.191 The term ‘‘creditor’’ generally refers to a person to whom the credit obligation is initially made payable and that regularly engages in extending consumer credit. 15 U.S.C. 1602(g); 12 CFR 1026.2(a)(17). However, as described above, the requirement of section 404(a) of the Helping Families Save Their Homes Act of 2009 applies to a ‘‘creditor that is the new owner or assignee of the debt.’’ 192 The Board concluded that ‘‘to give effect to the legislative purpose, the term ‘creditor’ in Section 404(a) must be construed to refer to the owner of the debt following the sale, transfer or assignment, without regard to whether that party would be a ‘creditor’ for other purposes under TILA or Regulation Z.’’ 193 Similar to section 404(a) of the Helping Families Save Their Homes Act of 2009, the postconsummation disclosure requirement of TILA section 129C(h) applies to persons who become creditors after the transaction is consummated. The requirement under TILA section 129C applies to ‘‘a person becoming a creditor with respect to an existing residential mortgage loan.’’ 194 The Bureau believes that, for the same reasons cited by the Board in implementing TILA section 131(g), to give effect to the legislative purpose of section 1414(d) of the DoddFrank Act, the post-consummation disclosure requirement of TILA section 129C(h) should apply without regard to whether the person would be a ‘‘creditor’’ under TILA and Regulation Z.195 For these reasons, the Bureau proposes to retain the term ‘‘covered 190 Id. 191 Id. at 58490–1. Law 111–22, § 404(a); 15 U.S.C. 192 Public 1641(g). 193 75 FR 58489, 58490–1. 194 15 U.S.C. 1639c(h). 195 See 75 FR 58489, 58490–1. PO 00000 Frm 00151 Fmt 4701 Sfmt 4702 51265 person’’ under § 1026.39(a)(1) and its definition. 39(d) Content of Required Disclosure As discussed above, the Bureau believes the adjustment to the scope of § 1026.39 may promote the informed use of credit and facilitate compliance with the statute. The Bureau proposes amendments to § 1026.39(d) to add the additional requirement of TILA section 129C(h) to the disclosure required by that section. Pursuant to its authority under TILA Section 105(a), the Bureau proposes to integrate the timing of this disclosure requirement with the disclosure required by TILA section 131(g). The Bureau believes that consumers may be better informed regarding the transfer of ownership of their mortgage loans if the required disclosures integrated the information applicable to the new creditor into one single disclosure, rather than consumer having to receive separate mailings at different times. In addition, consistent with section 1032(a) of the Dodd-Frank Act, the integration of these disclosure requirements would ensure that the features of consumer credit transactions secured by real property are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the product or service, in light of the facts and circumstances. The Bureau believes this integrated mortgage transfer disclosure will also facilitate compliance with the statute. Covered persons will have to analyze the timing requirements and scope of only one transfer disclosure, rather than two separate disclosures for one transfer of a mortgage loan. However, because the partial payment policy disclosure required by TILA section 129C(h) is not required for open-end credit transactions, and the pre-consummation partial payment policy disclosure as implemented by proposed § 1026.38(l)(5) for loans subject to proposed § 1026.19(f) is not required for closed-end credit reverse mortgage transactions subject to § 1026.33, and for the aforementioned reasons, the partial payment policy disclosure requirement under proposed § 1026.39(d) is not required for these types of transactions. The proposed amendments also add comment 39(d)–2, which clarifies that the partial payment policy disclosure is required only for closed-end mortgage loans secured by a dwelling or real property, other than reverse mortgage transactions subject to § 1026.33. Proposed comment 39(d)(5)–1 clarifies that covered persons are permitted to use the format for the disclosure that is E:\FR\FM\23AUP2.SGM 23AUP2 51266 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 illustrated in proposed form H–25 of appendix H to Regulation Z for the information required to be disclosed by proposed § 1026.38(l)(5), with appropriate modifications that do not affect the substance, clarity, or meaningful sequence of the disclosure. Appendix D—Multiple Advance Construction Loans Currently, appendix D to Regulation Z provides guidance concerning the disclosure of multiple-advance construction loans, including such loans that may be permanently financed by the same creditor. Dodd-Frank Act section 1032(f) requires that the Bureau propose rules and forms that combine the disclosures required under TILA and RESPA sections 4 and 5 into a single, integrated disclosure for mortgage loan transactions covered under TILA and RESPA. The Bureau proposes to exercise its authority under TILA section 105(a) and Dodd-Frank Act section 1405(b) to amend appendix D to Regulation Z by revising the guidance provided in that appendix D to assist in the integration of these disclosures. In addition to effectuating Dodd-Frank Act section 1032(f), the Bureau believes that these proposed revisions are necessary and proper to effectuate the purposes of TILA by promoting the informed use of credit because the proposed revisions assist consumers’ understanding of their legal obligations to the creditor. In addition, consistent with section 1405(b) of the Dodd-Frank Act, these revisions will improve consumer awareness and understanding of transactions involving residential mortgage loans and are therefore in the interest of consumers and the public. Proposed revisions to part II of appendix D exclude loans that are subject to § 1026.19(e) and (f) from the guidance provided under paragraph A.1 of part II, but include those loans in the guidance provided under paragraph A.2 of part II. Proposed revised comment app. D–6 clarifies that some home construction loans that are secured by a dwelling are subject to § 1026.18(s) and not § 1026.18(g), with a reference to proposed comment app. D–7. One illustration of the application of appendix D to transactions subject to § 1026.18(s) also clarifies that, where interest is payable on the amount actually advanced for the time it is outstanding, the construction phase must be disclosed pursuant to appendix D, part II.C.1, and the interest rate and payment summary table disclosed under § 1026.18(s) in such cases must reflect only the permanent phase of the transaction. VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 Proposed comment app. D–7 clarifies that some home construction loans that are secured by real property are subject to §§ 1026.37(c) and 1026.38(c) and not § 1026.18(g). Under § 1026.17(c)(6)(ii), when a multiple-advance construction loan may be permanently financed by the same creditor, the construction phase and the permanent phase may be treated as either one transaction or more than one transaction. Two illustrations further clarify the application of appendix D to transactions subject to §§ 1026.37(c) and 1026.38(c). The first illustration clarifies that, if a creditor uses appendix D and elects pursuant to § 1026.17(c)(6)(ii) to disclose the construction and permanent phases as separate transactions, the construction phase must be disclosed according to the rules in §§ 1026.37(c) and 1026.38(c). Under §§ 1026.37(c) and 1026.38(c), the creditor must disclose the periodic payments during the construction phase in a projected payments table. The provision in appendix D, part I.A.3, which allows the creditor to omit the number and amounts of any interest payments ‘‘in disclosing the payment schedule under § 1026.18(g)’’ does not apply because the transaction is governed by §§ 1026.37(c) and 1026.38(c) rather than § 1026.18(g). The creditor determines the amount of the interest-only payment to be made during the construction phase using the assumption in appendix D, part I.A.1. Also, because the construction phase is being disclosed as a separate transaction and its terms do not repay all principal, the creditor must disclose the construction phase transaction as a balloon product, pursuant to §§ 1026.37(a)(10)(ii)(D) and 1026.38(a)(5)(iii), in addition to reflecting the balloon payment in the projected payments table. The second illustration clarifies that, if the creditor elects to disclose the construction and permanent phases as a single transaction, the repayment schedule must be disclosed pursuant to appendix D, part II.C.2. Under appendix D, part II.C.2, the projected payments table must reflect the interest-only payments during the construction phase in a first column, followed by the appropriate column(s) reflecting the amortizing payments for the permanent phase. The creditor determines the amount of the interest-only payment to be made during the construction phase using the assumption in appendix D, part II.A.1. Appendix H—Closed-End Forms and Clauses The Bureau proposes to add forms H– 24, H–25, H–26, and H–27 to appendix PO 00000 Frm 00152 Fmt 4701 Sfmt 4702 H to Regulation Z. Forms H–24 and H– 25 provide blank forms for the Loan Estimate and Closing Disclosure illustrating the inclusion or exclusion of information as required, prohibited, or applicable under §§ 1026.37 and 1026.38. In addition, form H–24 provides examples of completed Loan Estimates in whole or in relevant part for a fixed-rate transaction, an interest only adjustable-rate transaction, a refinance with a prepayment penalty, a loan with a balloon payment, and a loan with negative amortization. Form H–25 provides examples of completed Closing Disclosures in whole or in relevant part for a fixed-rate transaction, a purchase transaction with funds from a second loan, a transaction in which a second loan is satisfied outside of closing, samples of a refinance transaction, and examples of the modifications to the Closing Disclosure permitted pursuant to proposed § 1026.38(t)(5)(v) through (viii). The Bureau proposes forms H–24 and H–25 pursuant to the authority and for the reasons described above with respect to §§ 1026.37(o) and 1026.38(t). Specifically, the Bureau proposes forms H–24 and H–25 as standard forms that are required for transactions that are subject to proposed § 1026.19(e) and (f) and are federally related mortgage loans, as defined in Regulation X. For transactions that are subject to proposed § 1026.19(e) and (f) but are not federally related mortgage loans, the forms in H– 24 and H–25 are models for compliance with the applicable requirements of §§ 1026.19, 1026.37, and 1026.38.196 Transactions subject to § 1026.19(e) are subject to additional disclosure requirements under proposed § 1026.19(e)(1)(vi), (2)(ii), and (3)(ii)(C). Form H–26 provides a model for compliance with the statement required by proposed § 1026.19(e)(2)(ii) if a creditor provides a written estimate of terms or costs specific to a consumer before the consumer receives the disclosures required under § 1026.19(e)(1)(i) and indicates intent to proceed with the transaction. Consistent with § 1026.19(e)(2)(ii), this statement must be placed at the top of the front of the first page of the estimate in a font size that is no smaller than 12-point font. Form H–27(A) provides a model for the written list of settlement service providers required by proposed § 1026.19(e)(1)(vi) and the statement required by § 1026.19(e)(3)(ii)(C) that 196 For these transactions, the Bureau also proposes these forms pursuant to its authority to publish model forms under TILA section 105(b) and (c). E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules the consumer may select a settlement service provider that is not on the list. Forms H–27(B) and (C) are samples for this form. The Bureau proposes forms H–26 and H–27 pursuant to its authority to publish model forms under TILA section 105(b) and (c). The Bureau also proposes to make conforming amendments to samples H–13 and H–15 and their associated comments pursuant to its authority to publish model forms under TILA section 105(b) and (c). As noted above, during the Small Business Review Panel, several small business representatives requested that the Bureau provide detailed guidance on how to complete the integrated forms, including, as appropriate, samples of completed forms for a variety of loan transactions. See Small Business Review Panel Report at 28. Similar feedback was also submitted by several industry trade associations in response to the Small Business Review Panel Outline. Based on this feedback and consistent with the Small Business Review Panel’s recommendation, the Bureau has proposed the examples described above, which of course, have added significant length to the proposed rule. The Bureau seeks comment on whether the number and types of examples are beneficial to industry or whether certain examples should be added to or deleted from the rule, including sample forms in other languages, such as Spanish. The Bureau has also received feedback from industry stakeholders during its outreach that samples of a construction-only transaction and a transaction with both a construction and permanent financing phase would be beneficial to industry. The Bureau has proposed amendments to appendix D to Regulation Z and its commentary, as described above, that relate to such construction financing and provide guidance regarding its disclosure on the Loan Estimate. The Bureau believes the proposed Forms H–24(C) and (E) provide the necessary illustration for such financing, because these samples contain the interest-only period and final balloon payment, respectively, which, as described above, are product features that would be disclosed in connection with such construction financing. The Bureau notes that one difference for the disclosure of such financing is that the purpose of the transaction disclosed under proposed §§ 1026.37(a)(9) and 1026.38(a)(5)(ii) would be ‘‘Construction.’’ The Bureau seeks comment on whether, in light of the proposed amendments to appendix D and its commentary, additional samples for a construction-only or VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 construction with permanent financing would be beneficial to industry. VII. Section 1022(b)(2) Analysis In developing the proposed rule, the Bureau has considered potential benefits, costs, and impacts, and has consulted or offered to consult with the prudential regulators, the Department of Housing and Urban Development, and the Federal Trade Commission, including regarding consistency with any prudential, market, or systemic objectives administered by such agencies.197 The Bureau also held discussions with or solicited feedback from the United States Department of Agriculture Rural Housing Service, the Farm Credit Administration, the Federal Housing Administration, the Federal Housing Finance Agency, and the Department of Veterans Affairs regarding the potential impacts of the proposed rule on those entities’ loan programs. The Bureau is proposing to implement section 1032(f) of the DoddFrank Act by proposing rules and forms combining the pre-consummation TILA and RESPA disclosures for loans subject to either law or to both laws by July 21, 2012. Sections 1098 and 1100A of the Dodd-Frank Act, which revise RESPA and TILA, respectively, to mandate the integrated disclosures, state that the purposes of the disclosures are to facilitate compliance with the statutes and ‘‘to aid the borrower or lessee in understanding the transaction by utilizing readily understandable language to simplify the technical nature of the disclosures.’’ The Bureau is also proposing to implement several new disclosure requirements added to TILA and RESPA by the Dodd-Frank Act. In addition, the Bureau is proposing to revise current regulations implementing the pre-consummation disclosure requirements of TILA and RESPA to improve consumer understanding of mortgage transactions and upfront disclosure of loan costs and terms, consistent with the purposes of TILA and RESPA. TILA and RESPA currently require creditors and settlement agents to give consumers who take out mortgage loans different but overlapping disclosure forms regarding the loan’s terms and costs. This duplication has long been 197 Specifically, section 1022(b)(2)(A) of the Dodd-Frank Act calls for the Bureau to consider the potential benefits and costs of a regulation to consumers and covered persons, including the potential reduction of access by consumers to consumer financial products or services; the impact on depository institutions and credit unions with $10 billion or less in total assets as described in section 1026 of the Dodd-Frank Act; and the impact on consumers in rural areas. PO 00000 Frm 00153 Fmt 4701 Sfmt 4702 51267 recognized as inefficient and confusing for consumers and industry. Prior to the creation of the Bureau, the Board and HUD independently took steps to address these shortcomings, but neither agency had the authority to combine the duplicative disclosures. On July 21, 2011, the Dodd-Frank Act transferred authority over TILA and RESPA to the Bureau. As noted above, the Act specifically directs the Bureau to combine the TILA and RESPA mortgage disclosures. A. Provisions To Be Analyzed The proposal contains both specific proposed provisions with regulatory or commentary language (proposed provisions) as well as requests for comment on modifications where regulatory or commentary language was not specifically included (additional proposed modifications). The analysis below considers the benefits, costs, and impacts of the following major proposed provisions and the additional proposed modifications: 1. The integration of the initial and closing disclosures (the Loan Estimate and Closing Disclosure, respectively), 2. The definition of application, 3. The disclaimer on pre-application written estimates, 4. Permissible changes to settlement costs and re-disclosure of initial disclosures, 5. Provision of the Closing Disclosure, 6. Recordkeeping, 7. The definition of the finance charge, and 8. Implementation of new disclosures mandated by the Dodd-Frank Act. With respect to each provision, the analysis considers the benefits and costs to consumers and covered persons. The analysis also addresses certain alternative provisions that were considered by the Bureau in the development of the rule. The Bureau requests comments and data on the potential benefits, costs, and impacts of the proposal. B. Baseline for Analysis The analysis examines the benefits, costs, and impacts of the major provisions of the proposed rule against a pre-statutory baseline. To the extent there are benefits, costs, or other relevant impacts emanating from the relevant provisions of the Dodd-Frank Act, those costs are combined with the benefits, costs, and impact of the regulation itself in conducting this analysis. The Bureau has discretion in future rulemakings to choose the most appropriate baseline for that particular rulemaking. E:\FR\FM\23AUP2.SGM 23AUP2 51268 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules C. Coverage of the Proposal The proposed rule requires provision of the integrated disclosures for closedend consumer credit transactions secured by real property, other than a reverse mortgage subject to § 1026.33. As discussed in part VI above, sectionby-section analysis for proposed § 1026.19, the Dodd-Frank Act generally directs the Bureau to establish an integrated disclosure for ‘‘mortgage loan transactions’’ that are ‘‘subject to both or either provisions of’’ RESPA sections 4 and 5 and TILA. However, TILA and RESPA differ in the types of transactions to which their respective disclosure requirements apply. The proposed scope of the integrated disclosure provisions reconciles these differences, recognizing that certain transaction types may be inappropriate for the integrated disclosure. Notably, the integrated disclosure provisions of the proposed rule do not apply to reverse mortgages and HELOCs, which are within the statutory scope of TILA and RESPA, because those transactions are fundamentally different from other types of mortgage credit. The integrated disclosure provisions also do not apply to dwellings that are not secured by real property, which are subject to TILA but not RESPA, nor to creditors that originate fewer than five loans in a year, who are subject to RESPA but not TILA. The integrated disclosure provisions do, however, apply to construction-only loans, vacant-land loans, and loans secured by more than 25 acres, although these transactions are currently exempt from RESPA coverage, because the Bureau believes that excluding these transactions would deprive consumers of the benefit of enhanced disclosures. The proposed revisions to the definition of finance charge, discussed below and in part VI, section-by-section analysis for § 1026.4, apply to all closed-end credit transactions secured by real property or a dwelling. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 D. Potential Benefits and Costs to Consumers and Covered Persons 1. Integrated Initial and Closing Disclosures The proposed rule requires that the Loan Estimate be provided to consumers within three business days after receipt of the consumer’s application, to replace the early TILA disclosure and RESPA GFE, and that the Closing Disclosure be provided to consumers at least three business days prior to consummation, to replace the final TILA disclosure and RESPA settlement statement. As discussed above, TILA authorizes the Bureau to publish model forms for the VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 TILA disclosures, while RESPA authorizes the Bureau to require the use of standard forms (e.g., the prescribed RESPA GFE and settlement statement forms). Accordingly, the Bureau is proposing to require the use of standard Loan Estimate and Closing Disclosure forms for mortgage loan transactions that are subject to RESPA, other than reverse mortgages. For transactions that are subject only to TILA, however, the forms would be model disclosures, consistent with the provisions of that statute. The proposed rule also incorporates prior informal guidance regarding compliance with HUD’s 2008 Final RESPA Rule into Regulation Z and official commentary, as necessary and appropriate. In considering the benefits and costs of the Loan Estimate and Closing Disclosure, the Bureau notes that the costs associated with the proposal would likely be one-time costs associated with adjusting to the new requirements while the benefits would persist over time. Some of the benefits— the benefits to consumers of reduced mortgage costs—may actually grow over time as more consumers pay off existing mortgages and take out new mortgages. The Bureau believes that because the proposed disclosures would likely lead to consumers making more informed choices, some of them would obtain mortgages that were lower cost than, or in some other way preferable to, the mortgages they would obtain otherwise. In particular, if consumers do obtain mortgages at a lower cost, these benefits accrue over time; as more borrowers take out loans with the new disclosures, the share of all mortgage borrowers receiving these benefits would grow. a. Benefits to Consumers i. The Loan Estimate. The integration of the early TILA disclosure and the RESPA GFE into the Loan Estimate would have several benefits to consumers. The Bureau believes that the Loan Estimate would facilitate consumer understanding of the loan terms and closing costs of possible loans. The Loan Estimate would also make it easier for consumers to compare different loans, either different products from a single creditor or loans from different creditors. In addition, the harmonization of the Loan Estimate and Closing Disclosure forms would make it easier for consumers to compare the estimated information they initially receive from creditors with the actual costs of the loan. The benefits of this third effect are discussed below, in the section on the benefits of the Closing Disclosure. PO 00000 Frm 00154 Fmt 4701 Sfmt 4702 The Loan Estimate would make it easier for consumers to understand their loan in several ways. First, the Loan Estimate would make it easier for consumers to understand the loan terms and closing costs of potential loans. The Loan Estimate emphasizes information that is important to consumer understanding of the mortgage transaction, and deemphasizes information that is either confusing or unhelpful to consumers, such as the APR, which current TILA disclosures focus on as a measure of the cost of credit. As discussed in part VI above, section-by-section analysis for proposed § 1026.37(l), research conducted by the Board and HUD, as well as consumer testing conducted by the Board and Bureau, indicate that consumers do not understand the APR or how to use it when comparing loans and often confuse the APR with the loan’s interest rate. Instead, the Bureau’s testing indicates that consumers focus on other information that is less prominently disclosed on current Federal disclosures than the APR, or that is not required on current Federal disclosures. See Macro 2009 Closed-End Report at iv–v. Accordingly, the Bureau developed the proposed Loan Estimate to prioritize and clearly display the information that consumers readily understand and is most important to them in understanding the loan and the underlying transaction, such as the interest rate, monthly payment amount, and settlement costs. The design displays this key information in a manner that enables consumers to locate it quickly on the form by using highly visible headings and labels and limiting the amount of text on the form. Based on the results of its consumer testing and outreach, described in part III above and in the Kleimann Testing Report, the Bureau believes the Loan Estimate is easier for consumers to use and understand. The Loan Estimate may also make it easier for consumers to understand the risks associated with a loan because the form emphasizes risk factors that are either less prominently disclosed or are not found on current Federal disclosures. For example, the first page of the Loan Estimate clearly discloses whether a loan will or may experience future changes to the interest rate, monthly payment amount, or to the loan’s principal balance as a result of negative amortization, by using simple text and highly visible capitalized type in a bold font to indicate the possibility of such changes. These disclosures would help reduce the likelihood that consumers will experience payment E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules shock due to future payment changes. In addition, unlike current Federal forms, the Loan Estimate prominently discloses total monthly payment amounts, including estimated amounts for taxes, insurance, and assessments, whether or not an escrow account would be established for the payment of such amounts. This disclosure would make it easier for consumers to consider the loan and underlying real estate transaction’s overall affordability, as compared to current Federal forms. The integration of the forms would also reduce the sheer volume of paper that consumers receive, mitigating ‘‘information overload’’ and making it easier for consumers to identify important information. With the current Federal disclosures, consumers need to work through four separate forms to compare two loan products, which amount to a total of ten pages. But with the Loan Estimate, consumers need to work with only two forms to compare two loan products, and only six total pages. In addition, because the format of the Loan Estimate prioritizes the information that consumers actually use to understand and compare loans, placing it on the first page, consumers could potentially compare two loans using only the first page of the Loan Estimate for each. The Bureau therefore believes that the Loan Estimate would be substantially more understandable for consumers than the current TILA disclosure and RESPA GFE and would enable consumers to make more informed choices when they are considering a mortgage. Better understanding of closing costs and loan terms would benefit consumers in several ways. It would help consumers to make better decisions about whether to take out a loan at all, which type of loan to take out, and which creditor to borrow from. Some consumers, such as those who may benefit slightly from refinancing or for whom whether to rent or buy is a difficult decision, will be close to the margin of taking out a loan or not taking out a loan. Improved understanding of the costs of borrowing will allow those consumers to make a more informed decision about whether to borrow. For consumers that are borrowing, a better understanding of closing costs and loan terms will enable them to better pick the loan product that suits their needs and circumstances. It may also enable consumers to identify loans with features that are only suitable for some consumers, such as negative amortization or balloon payments, and evaluate whether those features make sense for them. The Bureau is concerned that, prior to the mortgage crisis, some VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 consumers entered into loans with such features when they were not suited to them because they were unaware of such features or the risk they posed. The forms may also facilitate shopping amongst loan offers and creditors, affecting both the evaluation of different offers and the number of offers consumers obtain. Existing research suggests that consumers arguably do not shop extensively when selecting a mortgage. Surveys of mortgage borrowers suggest that roughly 20–30 percent of borrowers contact one creditor and a similar fraction consider only two creditors.198 Further, available evidence indicates that some mortgage borrowers may have difficulty understanding or at least recalling details of their mortgage, particularly the terms and features of adjustable-rate mortgages.199 Making the terms of a given loan easier to understand would make it easier for consumers to compare loans. As noted above, the Loan Estimate prioritizes on the first page the information that consumers generally use to compare loans (e.g., interest rate, monthly payment, and closing costs). As discussed in part III, above, the Bureau conducted extensive qualitative consumer testing of the Loan Estimate to ensure that forms enable consumers to understand and compare the terms and costs of various loans. During the testing process, consumers were able to use the form to compare loans and select the loan that best met their preferences (e.g., a fixed rate or lower closing costs). In addition, Regulation Z currently uses model forms and language, not standard forms and language, so it does not ensure that consumers are presented information about loan terms and costs in the same way across multiple loans and multiple creditors. The proposed regulation would require that all creditors use a standard format for transactions that are subject to RESPA, which the Bureau understands to be the majority of mortgage transactions, making comparisons easier. Making it easier for consumers to compare products may have two effects. It may make shopping more effective, 198 Jinkook Lee and Jeanne M. Hogarth, Consumer Information Search for Home Mortgages: Who, What, How Much, and What Else?, Fin. Services Rev. 9, 277–293 (2000), available at https://www2. stetson.edu/fsr/abstracts/vol_9_num3_p277.pdf; see also Lacko and Pappalardo, Improving Consumer Mortgage Disclosure, available at https://www.ftc. gov/os/2007/06/P025505MortgageDisclosureReport. pdf. 199 See Bucks and Pence, Do Homeowners Know Their House Values and Mortgage Terms, available at https://www.federalreserve.gov/Pubs/feds/2006/ 200603/200603pap.pdf; see also Lacko and Pappalardo. PO 00000 Frm 00155 Fmt 4701 Sfmt 4702 51269 leading consumers to make better choices for themselves amongst a given set of loans. It may also lead to more shopping, because the task of comparing loans is simpler. The estimated benefits of shopping for mortgages and for settlement services are substantial. Hall and Woodward estimate that the borrowers who obtain loans through mortgage brokers could save roughly $1,000 on the transaction through additional search.200 In addition to providing consumers with clear information about important loan terms and closing costs, the Loan Estimate makes clear to consumers which settlement services they can shop for. To the extent that consumers use this information to shop for some settlement services, they may identify service providers that offer better prices or better suit their needs than settlement service providers selected by the creditor. In a recently released study of title services and title insurance based on RESPA settlement statements for FHA loans, HUD and the Urban Institute estimate that borrowers in some jurisdictions could save several hundred dollars if they searched for title services and title insurance.201 ii. The Closing Disclosure. The Bureau believes that the integration of the final TILA disclosure and the RESPA settlement statement would benefit consumers by allowing them to better understand the actual terms of their loan and the other costs of the loan transaction. As with the Loan Estimate, the Bureau developed the integrated Closing Disclosure through several rounds of form design and testing. The Bureau believes that the Closing Disclosure is more understandable for consumers than the current TILA disclosure and RESPA settlement statement and, as described below, the proposal would include a requirement that the Closing Disclosure be provided to consumers three business days prior to closing, giving consumers time to review the Closing Disclosure. 200 Hall and Woodward, Diagnosing Consumer Confusion and Sub-Optimal Shopping Effort: Theory and Mortgage-Market Evidence (2012), available at https://www.stanford.edu/∼rehall/ DiagnosingConsumerConfusionJune2012. In the data used in the paper, yield spread premiums are common. As a result, the results may overstate some of the current savings from changes in shopping behavior. However, these results only include settlement charges retained by the broker and therefore any savings on other charges are additive to these. 201 U.S. Department of Housing and Urban Development and The Urban Institute, What Explains Variation in Title Charges? A Study of Five Large Markets (2012) (HUD Title Charge Study), available at https://www.huduser.org/portal/ publications/hsgfin/title_charges_2012.html. E:\FR\FM\23AUP2.SGM 23AUP2 51270 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 The Bureau also believes the Closing Disclosure would improve the ability of consumers to compare the terms and costs on the Loan Estimate with the actual loan terms and closing costs. The Bureau designed the Loan Estimate and Closing Disclosure to work together; the two forms use consistent formatting and language to facilitate consumers’ ability to identify any changes that occurred during the underwriting process. For example, the first page of the Loan Estimate, where key loan terms are disclosed to consumers, is nearly identical to the first page of the Closing Disclosure, and the first page of the Closing Disclosure specifically directs consumers to compare the two forms. The second page of the Loan Estimate and Closing Disclosure also use the same order and groupings of costs, making it easier for consumers to identify changes. At the Bureau’s consumer testing, consumers were able to use the second pages of the Loan Estimate and Closing Disclosure together to identify changes in individual costs, often placing the forms side by side, which was enabled by the matching order and groupings. In addition, page three of the Closing Disclosure contains a table that identifies categories of costs that changed from the time the Loan Estimate was issued to the time of issuance of the Closing Disclosure. The Bureau believes these features would improve consumers’ ability to understand their actual loan terms and costs, and compare early and final disclosures and identify changes in loan terms, which may better enable consumers to recognize and question changes in settlement costs or loan terms from the Loan Estimate. This may encourage all creditors to take care to ensure that Loan Estimates are accurate and may discourage unscrupulous creditors from attempting to ‘‘bait and switch’’ consumers with initial Loan Estimates that have better loan terms or lower settlement costs than the final transaction. b. Magnitude of the Benefits to Consumers of the Revised Disclosures Quantifying the magnitude of the benefits of the new Loan Estimate or Closing Disclosure would be very challenging. With regard to the Loan Estimate, important factors in the magnitude of the benefits to consumers would include: (1) How many consumers avoid loans that do not suit their needs; (2) how much more consumers shop; (3) how much more effective that shopping would be; and (4) how those changes in behavior would translate into changes in the VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 overall market for mortgage loans. The Bureau is unaware of data that would make possible reliable estimates of these effects. There is some evidence showing that slight increases in shopping—just contacting one more creditor or loan originator—can lead to substantial savings for a consumer. See Hall and Woodward. This evidence is based on market conditions with current consumer shopping behavior, however, so it is difficult to project to the effects of shopping if many consumers shopped more. Similarly, quantifying the magnitude of the benefits of the integrated Closing Disclosure would also be very challenging. The Bureau is unaware of any data that can provide reliable market-wide estimates of the prevalence of changes between early TILA disclosures and RESPA GFEs and final loan terms and closing costs. As described below, however, the Bureau may obtain a substantial sample of these forms from several lenders prior to finalizing the proposal. This would provide the Bureau with better information about this phenomenon. Other important factors affecting the consumer benefits of improved final disclosures include how much the Closing Disclosure would affect whether consumers recognize those changes or how they react to them and the effects on creditors’ and settlement service providers’ behavior. Despite the challenges to quantifying the benefits of the Loan Estimate or Closing Disclosure, simple hypothetical calculations demonstrate that, because the mortgage market is so large, even very small effects on improving consumers’ ability to make informed decisions or small effects on prices from greater shopping would lead to large savings for consumers. For example, if the new disclosures only affect ten percent of consumers, and only lower their interest rates by .125% (1⁄8 of a percentage point, the smallest typical unit of price difference in the mortgage market), this would lead to an annual savings of $1,250,000,000 for mortgage borrowers if all mortgages were originated with the proposed disclosures and total outstanding mortgage balances were to remain at their current level of roughly $10 trillion. If consumers were to benefit from a reduction in costs like this, some of the savings would come from reduced profits to creditors and brokers, as creditors and brokers receive lower prices from better-informed consumers, while other savings would come from a shift of business from less efficient to more efficient creditors and brokers. The reallocation to more efficient PO 00000 Frm 00156 Fmt 4701 Sfmt 4702 creditors and brokers that can originate loans at lower cost represents a savings to society in terms of the total resources used to originate loans. A similar hypothetical can illustrate the potential effects of the improved ability of consumers to better understand closing costs. Bankrate.com collects information on average closing costs, as estimated on creditor RESPA GFEs, by State, for a $200,000 mortgage. It shows that average closing costs on such a mortgage, including lender fees, vary from roughly $2,300 to roughly $5,000. Taking average closing costs of $3,000, for example, if a consumer was able to use the Loan Estimate to shop more effectively for loans that came with lower closing costs or to shop for the various settlement services themselves and thereby obtain a loan with closing costs five percent lower, this would translate into savings of $150. This assumption seems reasonable, given the HUD and Urban Institute estimates that borrowers in some jurisdictions could save several hundred dollars by shopping for these services. See HUD Title Charge Study. The most recent year for which detailed mortgage origination information is available is 2010. The Bureau estimates that there were a total of about 8,000,000 mortgages originated that year. If ten percent of consumers saved $150 each, it would translate into roughly $120,000,000 per year. As with any savings on loan costs, these savings would come from a mix of reduced profits to settlement service providers and from shifting demand from less efficient to more efficient providers. c. Costs to Consumers The Bureau does not believe that adoption of the integrated Loan Estimate or Closing Disclosure would impose any direct costs on consumers. Consumers may bear some costs of the disclosures if lenders or loan originators pass through some or all of the costs that would be imposed on them by the proposal. However, the Bureau estimates that any increased cost per origination would be small and that, after one-time costs are absorbed, the proposal would likely reduce the cost per origination. Therefore, the Bureau does not anticipate any material adverse effect on credit access in the long or short term. Over the longer term, the rule could increase credit access if the expected cost savings materialize and competition forces lenders to pass the savings to consumers. Requiring the use of standard Loan Estimate and Closing Disclosure forms has the potential to impose costs on some consumers if it supplants forms E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 that are currently in use by creditors or mortgage brokers that are more effective at conveying information to consumers than the proposed forms, or if the requirement to use the forms prevents the development of more effective forms. The Bureau does not believe that there is a substantial risk of this occurring. Current Regulation X prescribes a standard form for the RESPA GFE and settlement statement. Although Regulation Z provides model forms and language rather than standard forms, the Bureau understands that many creditors do not provide disclosures that differ significantly from the model forms and language in Regulation Z due to the complexity of the Regulation Z disclosure requirements and the safe harbor provision in TILA section 105(b). Therefore, creditors are limited in their ability to develop forms that are substantially better at conveying information to consumers. The Bureau is unaware of any efforts by creditors of the scale undertaken by the Bureau to develop and test disclosures. And creditors that do believe that they can communicate loan terms or other important information more effectively than the required forms would not be prevented from doing so, so long as they also provide the required forms and communicate that information separately from the required forms. d. Benefits to Covered Persons The integration of the early TILA disclosure and the RESPA GFE, and the revised TILA disclosure and the RESPA settlement statement, may benefit creditors, mortgage brokers, and settlement agents that provide the disclosures. It will reduce the number of disclosures that covered persons need to prepare and provide and the number of disclosure-provision systems and processes that covered persons need to maintain. In addition, the three-page Loan Estimate would replace a threepage RESPA GFE, a two-page early TILA disclosure, a one-page appraisal notification provided under ECOA section 701(e), and a one-page servicing disclosure provided under RESPA section 6, as well as incorporating other new disclosure requirements in the Dodd-Frank Act that might otherwise be provided as separate documents. Most small entities that participated in the Small Business Review Panel process stated that the integrated forms would make it easier to explain transactions to consumers. One letter from several small entity settlement agents indicated that the new forms could actually lead to more questions during a closing; however, the Bureau is VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 alternatively proposing and soliciting comment on removing from the integrated forms certain disclosures, such as the total interest percentage and cost of funds, which may be difficult to explain to consumers. Information submitted by several settlement agents indicates that requiring the use of standard forms and providing clearer regulatory guidance could save as much as 30 minutes per closing by standardizing practices across lenders and reducing confusion. Based on industry estimates, the typical hourly wage of a settlement agent is $31 per hour; therefore, this translates into a dollar savings from the simplified closing forms of $16.50 per closing. Some portion of these savings would likely be passed on to the consumers. The integrated disclosures also permit creditors to consolidate certain numerical calculations. For example, Regulations Z and X currently require two different calculations for the disclosure of monthly payment information on the early TILA disclosure and the RESPA GFE. The integrated Loan Estimate consolidates these calculations into one monthly payment disclosure, which may facilitate compliance and ease burden on covered persons. Other examples of overlapping but potentially different numerical disclosures required under Regulations Z and X include information about balloon payments and prepayment penalties. e. Costs to Covered Persons As just described, the Bureau believes that the ongoing costs of compliance with the proposed disclosure requirements would likely be equal to or less than current ongoing compliance costs. The integrated Loan Estimate and the Closing Disclosure, however, would result in certain one-time costs to revise software and compliance systems. The Bureau believes that many of the costs of complying with these requirements would be common across the two disclosures, and therefore discusses them together here. Under the proposal, responsibility for delivering the Loan Estimate would lie with the creditor. The Bureau believes that in some circumstances the Loan Estimate may be delivered by a mortgage broker acting on behalf of the creditor, as is currently the case with the RESPA GFE. The Bureau believes the costs would be similar for Loan Estimates delivered by brokers, and the estimates presented here are based on the assumption that the creditor delivers the Loan Estimate. The Bureau is proposing two alternatives for the provision of the Closing Disclosure. Under the first alternative, the creditor PO 00000 Frm 00157 Fmt 4701 Sfmt 4702 51271 would be solely responsible for providing the disclosure to the consumer. Under the second alternative, the creditor and the settlement agent would be jointly responsible. For the purposes of this analysis, the Bureau is assuming that the creditor will bear the costs of revising software and compliance systems. If, instead, settlement agents bore those costs, the costs would likely be similar, although borne by different parties.202 The Bureau requests comment on this approach to estimating costs, including whether mortgage brokers and settlement agents would incur costs that are substantially different from those incurred by creditors if they were responsible for providing the disclosures. Creditors would need to adapt their software and compliance systems to produce the new forms. In addition to changing the format of the required forms, the new proposed forms would include numerous new disclosures that are required by the Dodd-Frank Act. The Bureau believes that this additional information would be added to the forms as part of the process of adapting software and compliance systems to produce the new forms, and therefore does not provide separate estimates for the costs of this additional information. Based on information provided by creditors and by software vendors, the Bureau believes that, in general, larger creditors develop and maintain their own compliance software and systems, while smaller creditors primarily rely on software and compliance systems provided by outside vendors. Based on industry feedback, the Bureau believes that roughly the top 20 mortgage originators maintain their own systems, while 95 percent of smaller creditors (those outside the top 50) rely on vendors. Mid-size creditors (those roughly ranked between 20 and 50 in origination volume) are served by a range of vendors, and in some cases have 202 As described below, two major vendors currently provide software services to the vast majority of small mortgage originators to produce the RESPA GFE and initial TILA disclosures. RESPA settlement statements are currently issued by settlement agents using software provided by a different, but similarly small, set of vendors; however, the Bureau understands that the originators’ systems are capable of producing the RESPA settlement statements. As a result, the Bureau believes that it is reasonable to measure costs assuming that the originators’ vendors will provide both the Loan Estimate and the Closing Disclosure to their clients under existing contracts. Were the current software providers for settlement agents to have to update their systems (under the second alternative or under other contractual arrangements), those vendors would have to incur the stated costs. E:\FR\FM\23AUP2.SGM 23AUP2 51272 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 customized systems provided by these vendors. For the purposes of this analysis, the Bureau treats all creditors outside the top 20 the same. The use of vendors by smaller creditors will substantially mitigate the costs of revising software and compliance systems, as the efforts of a single vendor would address the needs of a large number of creditors. There are two primary vendors of this software to mortgage creditors outside the top 50. Based on discussions with vendors that provide software and compliance systems to mortgage lenders, the Bureau estimates that each of these vendors would spend roughly $500,000 to $2,000,000 to determine what changes need to be made to come into compliance and to update the software that they provide to creditors. Based on discussions with a leading origination technology provider, the Bureau believes that these updates, however, would likely be included in regular annual updates, and therefore the costs would not be directly passed on to the client creditors.203 As many as 95 percent of creditors outside the top 20, therefore, would not pay directly for software updates to comply with the new rules. Based on estimates from small entities that participated in the Small Business Review Panel process, the Bureau estimates that the small fraction of smaller creditors that maintain their own compliance software and systems would incur costs of roughly $100,000 to update their systems to comply with the proposal. Firms are expected to amortize this cost over a period of years. In this analysis, all costs are amortized over five years, using a simple straightline amortization. Thus, about five percent of smaller creditors are expected to incur a cost of $20,000 per year. The Bureau estimates that there were a total of 14,374 banks, savings institutions, credit unions, and mortgage companies that originated mortgages in 2010,204 the most recent year for which complete data are available, for a total of 14,354 outside the top 20.205 The total one-time cost for the roughly five percent of smaller creditors that maintain their own compliance software and systems 203 Note that the vendors themselves are not covered persons. 204 As discussed above, this analysis assumes that the creditor, rather than a mortgage broker, delivers the Loan Estimate and that the creditor also delivers the Closing Disclosure, rather than sharing responsibility for delivery with a settlement agent. Accordingly, the Bureau excludes mortgage brokers and settlement agents from this calculation. 205 Creditors and originator estimates based on analysis of HMDA, SNL Call Reports, NCUA Call Reports, and NMLS Call Reports. See part VIII below for additional details. VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 is therefore $100,000 * 14,354 * 5% = $71,800,000 (rounded to the nearest $100,000). Amortized over five years, the estimated total annual cost for this small fraction of small creditors to update compliance systems is about $14,360,000 for all small creditors combined. The largest 20 mortgage creditors would need to revise their compliance software and systems. Based on information from conversations with large creditors and with software vendors, the costs to these creditors of updating compliance software and systems would vary considerably with the size and complexity of the institution. The Bureau estimates that on average the cost per creditor for this category of creditor would be $1,000,000, for a total of $20,000,000. Amortized over five years, the estimated annual cost for large creditors to update compliance systems is $4,000,000 for the largest 20 mortgage creditors combined. Covered persons would incur onetime costs associated with training employees to use new forms and any new compliance software and systems. The Bureau estimates that each loan officer or other loan originator will need to receive two hours of training, and that one trainer could train ten loan officers at a time, for an additional one hour of trainer time per ten hours of trainee time. The Bureau estimates that there are approximately 83,000 loan officers and other originators that would need training. Based on data from the Bureau of Labor Statistics, the Bureau estimates that the average total compensation is $46 per hour for a loan officer and $39 per hour for a trainer, for a total training cost of (83,000 * 2 * $46) + (8,300 * 2 * $39) = $8,300,000 (rounded to the nearest $100,000). Amortized over five years, this is an annual cost of $1,660,000 for all mortgage creditors combined. Taken together, the Bureau estimates that the total one-time costs of complying with the proposed Loan Estimate and Closing Disclosure would be roughly $100,100,000. Amortized over five years, this is an annual cost of $20,020,000 for all mortgage creditors combined. For additional perspective, there were approximately 8,000,000 mortgage originations in 2010. The estimated one-time cost, annualized using a five-year amortization, is therefore less than three dollars per origination. Note that these costs would not recur, and the Bureau expects that ongoing costs would be equal to or less than current compliance costs. The proposed rule also requires itemization of certain settlement charges PO 00000 Frm 00158 Fmt 4701 Sfmt 4702 that are not permitted to be itemized on the current RESPA GFE and settlement statement forms, which may lead to increased costs for covered persons. In its 2008 RESPA Final Rule, HUD predicted that removing itemization from the disclosures would relieve creditors from preparing lengthy lists of fees and addressing consumer questions about such fees. 73 FR at 68276. However, the Bureau understands that creditors and settlement agents often provide this itemization on separate disclosures currently to comply with State law or investor requirements, which mitigates any increased costs associated with itemization. 2. Definition of Loan Application The proposed rule revises the regulatory definition of loan application to encourage earlier provision of the Loan Estimate to consumers. Under TILA and RESPA, a creditor or mortgage broker is not required to provide the good faith estimates of loan terms and settlement costs in the early TILA disclosure and RESPA GFE until it has received an ‘‘application.’’ As discussed more fully in part VI above, section-by-section analysis for proposed § 1026.2(a)(3), under current regulations, the receipt of the following information by the creditor or mortgage broker constitutes receipt of an ‘‘application’’: (1) Borrower’s name; (2) monthly income; (3) social security number to obtain a credit report; (4) the property address; (5) an estimate of the value of the property; (6) loan amount sought; and (7) any other information deemed necessary by the lender. The seventh item could allow creditors and mortgage brokers to delay providing the integrated Loan Estimate until relatively late in the loan process by delaying collection of information deemed ‘‘necessary.’’ The Bureau understands that some creditors currently provide non-binding written estimates of loan terms or settlement charges prior to issuing the early TILA disclosure or RESPA GFE. The current rules encourage creditors and mortgage brokers to provide the good faith estimates early in the loan process by prohibiting creditors from collecting any fees from a consumer (other than a credit report fee) until the estimates are provided. To further encourage early provision of estimates, the proposed rule removes the seventh item (‘‘any other information deemed necessary by the lender’’) from the definition of ‘‘application.’’ a. Benefits to Consumers The Bureau believes that the proposed rule may benefit consumers by ensuring E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules that consumers receive Loan Estimates early enough in the lending process to use them in shopping for their loan. Removing the seventh item may allow consumers to receive Loan Estimates that are subject to the limitations on increases discussed above with respect to proposed § 1026.19(e)(3) earlier in the lending process, whereas today consumers may receive only informal estimates that are not subject to those protections. Improved consumer shopping for mortgages may result in lower costs to consumers. As described above, the Bureau cannot estimate the magnitude of the benefits of improved shopping, but believes that they could be very large. The Bureau also believes that the Loan Estimate is a better shopping tool for consumers than informal estimates provided to consumers prior to receipt of the consumers’ application, both because it was developed through an extensive testing and design process and because certain costs disclosed in the Loan Estimate are subject to limitations on increases, described below. The Bureau believes that lenders will be able to provide reliable estimates based on the six items that together would constitute an application under the proposal and that, by receiving more reliable cost estimates earlier in the mortgage lending process, consumers would be less frequently surprised by increases in costs near the time of closing. However, the Bureau seeks input and information on whether the proposed change to the definition of application would result in less accurate estimates, or in more frequent re-disclosures that could cause consumer confusion. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 b. Costs to Consumers The Bureau does not believe that eliminating the seventh item in the definition of application would lead to costs to consumers beyond any costs that are passed through to consumers by creditors or loan originators. c. Costs to Covered Persons The Bureau understands that eliminating creditors’ and mortgage brokers’ ability to wait to provide a good faith estimate until after they receive ‘‘any other information deemed necessary’’ could increase the burden on creditors and mortgage brokers to the extent that it causes them to issue more Loan Estimates than they would under the current definition of application. If a creditor or mortgage broker obtains additional information from the consumer after the Loan Estimate has been issued that affects the costs of the settlement service for the loan, the creditor may need to issue a revised VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 Loan Estimate. The Bureau is unaware of information that would allow it to estimate how often this would occur. The Bureau believes, however, if this were to impose substantial costs, creditors and mortgage brokers would mitigate this by adjusting their business practices surrounding the receipt of applications to gather other important information prior to, or at the same time as, they obtain the six items that together constitute an ‘‘application.’’ As discussed in section F, below, the Bureau is working to obtain such data prior to issuing a final rule and is seeking comment on its plans for data analysis, as well as additional data and comment relevant to this issue. In developing the proposed rule, the Bureau also considered removing additional items from the regulatory definition of ‘‘application.’’ However, the Bureau does not believe the other items in the current definition of application raise similar concerns regarding creditors’ ability to delay provision of the early disclosures. Furthermore, the Bureau believes that many or all of the six items may be necessary for a creditor to provide reliable estimates in many circumstances. 3. Disclaimer on Pre-Application Estimates The Bureau is proposing to require that any pre-application, consumerspecific written estimate of loan terms or settlement charges contain a prominent disclaimer indicating that the document is not the Loan Estimate required by TILA and RESPA. This requirement would not apply to general advertisements. a. Benefits to Consumers The Bureau believes that the disclaimer may benefit consumers by clearly distinguishing disclosures that are subject to TILA and RESPA protections from those that are not. b. Costs to Consumers This new disclosure requirement could impose costs on consumers, in the form of reduced information about mortgage loan options, if it makes creditors or mortgage brokers less willing to provide written preapplication estimates of loan terms. The Bureau believes, however, that any such effect on creditors or mortgage brokers would be small or non-existent, especially when they are acting in good faith. c. Costs to Covered Persons To the extent covered persons currently provide such pre-application PO 00000 Frm 00159 Fmt 4701 Sfmt 4702 51273 written estimates to consumers they would bear the costs of adding a disclaimer to those communications. However, the Bureau expects such costs to be de minimis since the Bureau is proposing a brief, standard statement for use by creditors, which should not require significant redesign of existing estimate materials or require additional pages. 4. Changes in Settlement Costs/ Redisclosures The proposed rule revises current rules regarding the circumstances in which a consumer may be charged more at closing for settlement services than the creditor estimated in the disclosure provided to the consumer three business days after application. As discussed more fully in part VI, section-by-section analysis for proposed § 1026.19(e)(3), HUD’s 2008 RESPA Final Rule limits the circumstances in which a creditor can charge the consumer more at consummation for settlement services than the creditor estimated in the RESPA GFE provided to the consumer three business days after application. These rules generally place charges into three categories: The creditor’s charges for its own services, which cannot exceed the creditor’s estimates unless an exception applies (‘‘zero tolerance’’); charges for settlement services provided by third parties, which cannot exceed estimated amounts by more than ten percent unless an exception applies (‘‘ten percent tolerance’’); and other charges that are not subject to any limitation on increases (‘‘no tolerance’’). The rule permits certain limited exceptions in which higher charges are permitted, such as when the consumer requests a change, when the RESPA GFE expires, or when valid changes in circumstance occur. The Bureau is aware of concerns that HUD’s 2008 RESPA Final Rule is both too lax and too restrictive, and also that the rule is difficult to understand. The proposed rule attempts to address these concerns by balancing the objective of improving the reliability of the estimates creditors give consumers shortly after application with the objective of preserving creditors’ flexibility to respond to unanticipated changes that occur during the loan process. Specifically, the proposed rule applies the zero tolerance category to a larger range of charges, including fees charged by an affiliate of the creditor and charges for services for which the creditor does not permit the consumer to shop. A service provider would be considered selected by the creditor if consumers are required to choose only from a list of service providers prepared E:\FR\FM\23AUP2.SGM 23AUP2 51274 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 by the creditor (i.e., if consumers are not permitted to shop for their own provider). In developing the proposed rule, the Bureau considered narrowing the exceptions permitting increases in settlement charges in order to restrict the ability of a creditor to charge more for its own services or for third-party settlement services than the creditor initially estimated. However, the Bureau is concerned that this approach could prevent creditors from increasing settlement charges to reflect justifiable increases in costs. The Bureau also considered preserving HUD’s 2008 RESPA Final Rule in its entirety. However, as discussed above, the Bureau believes that the rule can likely be improved by requiring creditors to provide consumers with more accurate estimates of settlement charges and reducing compliance burden for industry. a. Benefits to Consumers The Bureau believes that consumers may benefit when fewer fees are permitted to change from the Loan Estimate. Consumers that rely on the Loan Estimate to shop for a loan would be able to make decisions based on estimated costs that more closely reflect the actual costs they would bear, making shopping more effective. For some consumers, such as those considering a refinancing that they may or may not decide to take out, more reliable information may allow them to make a better-informed decision about whether to take out a loan at all. Firmer fee estimates may also reduce ‘‘gaming’’ by unscrupulous creditors that provide low-ball initial estimates and then impose new or different charges near the time of consummation. The Bureau cannot quantify the magnitude of these benefits. The Bureau is unaware of any data that can provide reliable market-wide estimates of the prevalence of changes between early TILA disclosures and RESPA GFEs and final loan terms and closing costs or of the causes for those changes that occur. As noted above, the Bureau may obtain data on a sample of TILA disclosures and RESPA GFEs from several lenders, which would provide additional information about this issue. For a sense of the scale of the potential impact, it is worth considering an extreme hypothetical example where all of the settlement services move from the ten percent tolerance category to the zero tolerance category. This is unlikely to happen in practice, but illustrates the largest possible effect of the regulatory change. For a loan with a total of $3,000 in settlement costs, the maximum effect VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 of the proposal would be that the creditor could not pass on $300 in cost increases that occurred without an exception allowing the increase to be passed on to the consumer. Expanding the set of costs covered by the zero tolerance may also benefit consumers by giving creditors an incentive to control the costs imposed by third parties. Currently, creditors have limited incentives to control thirdparty costs. By applying the zero tolerance category to a larger range of charges, including charges by affiliates of the creditor, creditors are required to absorb more increases in costs (when no exception applies), and may seek to minimize the chance that these increases would occur. Creditors are in a better position than consumers to control these costs, as they are much more familiar with these markets than are typical consumers, and they are likely to have ongoing relationships with settlement service providers that give them some ability to encourage these providers not to charge more than the initial estimate. b. Costs to Consumers The expansion of the set of costs that are subject to a zero tolerance could impose costs on some consumers. The restriction on changes to these costs may cause some creditors to provide higher initial estimates, making shopping less effective as consumers rely on less accurate information. The Bureau believes, however, that these effects are likely to be mitigated by competitive pressures that encourage brokers and creditors not to inflate cost estimates. c. Benefits to Covered Persons Covered persons may benefit from the proposed rule because it reduces compliance burden by resolving current regulatory ambiguities. For example, the proposed rule makes clear that creditors need not reissue Loan Estimates unless and until the costs that are subject to the ten percent tolerance standard increase based on valid changes in circumstance by more than ten percent in total. The proposed rule also revises the rule and provides more guidance to facilitate use of average cost pricing and reconciles certain inconsistencies between RESPA and TILA terminology. The proposed rule further streamlines and clarifies HUD’s 2008 RESPA Final Rule by incorporating prior HUD guidance into Regulation Z and its commentary, as necessary and appropriate. Further, to the extent the proposed rule reduces unnecessary redisclosure of the RESPA content currently provided on the GFE, the rule would decrease costs to PO 00000 Frm 00160 Fmt 4701 Sfmt 4702 creditors, although the extent to which the proposed rule would have such an effect is unknown. Reducing unnecessary redisclosure may also benefit consumers, to the extent that redisclosures lead to consumer confusion. The Bureau is unaware of reliable data showing how often creditors are providing additional disclosures that are not required by the current rule and that they would no longer send if the rules were clarified. As discussed in section F, below, the Bureau is working to obtain such data prior to issuing a final rule and is seeking comment on its plans for data analysis, as well as additional data and comment relevant to this issue. Some creditors, however, have reported that additional clarity regarding redisclosure requirements for the RESPA GFE and average cost pricing would reduce the cost of compliance, in part, by reducing confusion over when redisclosure is permitted or required, and thereby reducing the need for legal advice. To the extent that restricting certain changes in fees reduces bait-and-switch tactics by some creditors, this provision may also benefit honest creditors that do not use these tactics. d. Costs to Covered Persons The Bureau understands that covered persons may experience increased costs as a result of a rule that applied the zero tolerance category to a larger range of charges. Since the proposed rule would expand the circumstances in which creditors could not pass increased costs to consumers when the initial estimate is lower than the actual costs but there is not a legitimate change in circumstances or other exception, creditors may be required to absorb more costs. This impact should be mitigated to the extent creditors are in a position to know the typical charges of affiliated firms and firms they engage repeatedly and require consumers to use, and can therefore provide estimates that are accurate when there is no changed circumstance. As discussed above, the Bureau is unaware of any data that can provide reliable marketwide estimates of the prevalence of changes between early TILA disclosures and RESPA GFEs and final loan terms and closing costs, and the causes of those changes. Therefore, the Bureau cannot provide estimates of how often creditors would have to absorb higher than expected costs that cannot be attributed to a changed circumstance. The discussion of average settlement costs provided in the ‘‘Consumer Benefits’’ section applies here, as well, E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules suggesting that these costs to creditors would be quite modest. The Bureau also understands that the proposed rule may result in increased use of affiliated service providers, so that creditors can more directly control changes in settlement costs, which could have a negative impact on independent providers. Some have argued that the negative impact on independent providers could lead to reduced competition for settlement services and ultimately higher costs. The Bureau is unaware of any evidence that the ultimate increase in costs is likely to occur. Alternatively, the proposed rule may encourage creditors to allow consumers to choose settlement service providers that are not on a list provided to the consumer (although in this case the creditor would be required to provide consumers with a list of settlement service providers that the consumers could use, if they so choose), so that the zero tolerance requirement would not apply. This would appear to benefit independent service providers, or at least be neutral relative to current practices. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 5. Provision of Closing Disclosure The proposed rule requires delivery of the integrated Closing Disclosure three business days before consummation in all cases. However, the Bureau is proposing two alternative approaches for assigning responsibility for providing the integrated Closing Disclosure to the consumer. Alternative 1 places sole responsibility for provision of the Closing Disclosure on the creditor, while Alternative 2 makes the creditor and settlement agent jointly responsible for providing the Closing Disclosure. a. Timing of Closing Disclosure Provision TILA and RESPA establish different timing requirements for disclosing final loan terms and costs to consumers. As discussed more fully in part VI, sectionby-section analysis for proposed § 1026.19(f), TILA generally provides that, if the early disclosures contain an APR that is no longer accurate, the creditor shall furnish an additional, corrected disclosure to the consumer not later than three business days before consummation. RESPA, on the other hand, requires that the final statement of loan costs and terms is provided to the consumer at or before settlement. To meet the Dodd-Frank Act’s mandate to integrate the disclosures required by TILA and RESPA, and to better facilitate consumer understanding of the costs, the proposed rule would require delivery of the integrated Closing VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 Disclosure three business days before closing in all circumstances. However, to prevent unnecessary closing delays, the proposed rule would permit limited changes after provision of the Closing Disclosure to reflect common adjustments, such as changes to recording fees. In addition, reissuance of the Closing Disclosure and an additional three-business day waiting period would not be required if, during the three business days after issuance of the Closing Disclosure, the amount needed to close shown on the Closing Disclosure increases by $100 or less. i. Benefits to Consumers. Consumers may benefit from the proposed rule because it would ensure that consumers receive the disclosures far enough in advance of consummation that they can review the final details of the transaction. Together with the improved clarity of the Closing Disclosure and the comparability of the Loan Estimate and the Closing Disclosure, this should allow consumers to have a better understanding of the final terms of the transaction and how and whether those terms have changed since the consumer received the Loan Estimate. Improved ability to compare early and final disclosures and identify changes in loan terms may better enable consumers to recognize and challenge increased settlement costs or loan terms that are different from the initial disclosure. This may encourage all creditors to take greater care to ensure that Loan Estimates are accurate and may discourage unscrupulous creditors from attempting to ‘‘bait and switch’’ consumers with initial Loan Estimates that have better loan terms or lower settlement costs than the final transaction. Some of these changes are not permissible under the current or revised regulation, but making it easier for consumers to identify these changes may provide an additional incentive for creditors to avoid such changes. The Bureau cannot quantify the magnitude of the benefits of the threeday period for consumers to review the integrated Closing Disclosure. The Bureau is unaware of any data that can provide reliable market-wide estimates of the prevalence of changes between early TILA disclosures and RESPA GFEs and final loan terms and closing costs. The Bureau also does not know how much the three-day period would improve consumers’ ability to recognize those changes or how consumers would react to changes, or the effects on creditors’ behavior. ii. Costs to Consumers. The proposal to require provision of the Closing Disclosure three business days prior to consummation in all circumstances may PO 00000 Frm 00161 Fmt 4701 Sfmt 4702 51275 result in closing delays, which could come at a cost to consumers. In extreme cases, such delays could cause a transaction to fall through if a consumer is under a contractual obligation to close by a certain date. Creditors and closing agents, however, currently coordinate to provide RESPA closing documents at closing. Both closing agents and creditors would have incentives to complete closings as scheduled, and therefore the Bureau believes that they would adjust their business practices such that the Closing Disclosure could be provided in a timely manner and closing problems would be infrequent. iii. Costs to Covered Persons. If the requirement does lead to delayed or canceled closings, this would impose costs on covered persons as well. Such closing delays could result in loss of revenue for transactions that fall through due to a delay. The proposed rule may also create legal and reputational risks for creditors or settlement agents that are unable to close loans as planned. iv. Alternatives Considered. In developing the proposed rule, the Bureau considered requiring provision of the Closing Disclosure three business days before closing only when the APR in the Loan Estimate increases beyond a tolerance or certain risky features are added to the loan. In all other circumstances, the Closing Disclosure would have been provided at or before closing. However, the Bureau is concerned that this approach would allow significant increases in the cash needed to close the transaction without sufficient notice to consumers. Further, the Bureau has received feedback indicating that the APR estimates included in the early TILA disclosures typically change by more than 1⁄8 of 1 percent, such that most creditors provide corrected disclosures as a standard business practice, rather than analyzing the accuracy of the disclosed APR. Therefore, the Bureau believes that any additional burden associated with requiring the disclosure three business days before closing in all cases is small given current creditor practices. In addition, the Bureau considered expanding current rules allowing consumers to waive the three-business day waiting period in cases of bona fide personal financial emergency. However, the Bureau is concerned that such an expansion would be subject to abuse. b. Responsibility for Providing the Closing Disclosure TILA and RESPA require that different parties provide the final disclosures to consumers. Specifically, TILA requires the creditor to provide E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51276 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules the TILA disclosures to consumers, while RESPA requires that the person conducting the settlement provide the final statement of settlement costs to the consumer. However, section 1419 of the Dodd-Frank Act amended TILA to make creditors responsible for disclosing settlement cost information. See TILA section 128(a)(17). To reconcile these statutory differences and implement TILA section 128(a)(17), the Bureau is proposing two alternative approaches for assigning responsibility for provision of the integrated Closing Disclosure to consumers. Under Alternative 1, the creditor would be solely responsible for delivering the Closing Disclosure to the consumer. Under Alternative 2, the creditor and settlement agent would be jointly responsible for providing the consumer with an integrated Closing Disclosure three business days before closing. i. Benefits and Costs to Consumers. The Bureau believes that consumer benefits and costs would not differ between the two proposals, so long as disclosures are accurate and provided in a timely manner. ii. Benefits to Covered Persons. Because the difference between Alternatives 1 and 2 is about which party would be responsible for providing a disclosure, the relative benefits of each proposal to different covered persons are likely to consist of avoided costs. The most useful way to consider these alternatives, therefore, is to consider their respective costs. iii. Costs to Covered Persons— Alternative 1. Alternative 1 would likely place increased costs on creditors. As discussed above, RESPA and current Regulation X require that the person conducting the settlement provide the RESPA-required disclosures to consumers at or before consummation. Since, under Alternative 1, the creditor would be responsible for provision of both the TILA and RESPA content to the consumer, the creditor would incur additional logistical burden and legal risk. Creditors and settlement agents may incur one-time legal fees under Alternative 1, since those entities may need to contractually stipulate their respective duties or amend existing contractual arrangements in light of the rule. Creditors may also need to hire additional staff to handle the increased workload associated with collecting the settlement costs and coordinating with the settlement agents and third party service providers and preparing the disclosures. However, since the current regulatory scheme of split responsibility, as well as the different roles of creditors and settlement agents in the transaction, already requires a VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 great deal of coordination, it is not clear that giving the creditor sole responsibility for providing the disclosures would impose much additional burden. As a general matter, shifting responsibility for delivery of final RESPA disclosures from settlement agents to creditors may change the role of settlement agents, though the exact impact of such a rule is unclear. Settlement agents play a unique role in working through local real estate transaction requirements and practices, which creditors may be unlikely to take on. iv. Costs to Covered Persons— Alternative 2. The costs to creditors and to settlement agents under the proposed alternative that gives joint responsibility for provision of the Closing Disclosure to creditors and settlement agents would depend on how creditors and settlement agents go about fulfilling the joint requirement. Joint provision would likely require coordination on the part of creditors and settlement agents similar to what is done today. One additional cost, however, may entail reworking that coordination to adjust to the new forms and timing requirement (discussed above). v. Alternative Considered. In developing the proposed rule, the Bureau also considered an alternative under which the settlement agent would have sole responsibility for providing the Closing Disclosure to the consumer. However, the Bureau is concerned that settlement agents do not have access to much of the information regarding loan terms that must be included in the Closing Disclosure. In addition, in response to industry feedback, the Bureau considered an approach that would bifurcate the Closing Disclosure into TILA-required and RESPA-required disclosures. However, the Bureau is concerned that such an approach would be confusing for consumers, would be impracticable and result in additional regulatory burden because of the amount of overlap between TILA and RESPA disclosures, and is inconsistent with the Dodd-Frank Act requirement to integrate the disclosures. 6. Recordkeeping of Machine Readable Data The proposed rule imposes new data retention requirements for the Loan Estimate and the Closing Disclosure by requiring creditors to maintain evidence of compliance in machine readable, electronic format. The proposed retention period is three years for the Loan Estimates and five years for the Closing Disclosures. See proposed § 1026.25. PO 00000 Frm 00162 Fmt 4701 Sfmt 4702 a. Benefits to Consumers The proposed rule may benefit consumers because comprehensive data on the extent to which settlement costs and loan terms change between the initial and final disclosures may improve the ability of the Bureau and other regulators to monitor compliance with applicable requirements and to evaluate whether the rules adequately protect consumers against impermissible changes in settlement costs and loan terms. b. Costs to Consumers The Bureau does not believe the recordkeeping requirements would lead to costs to consumers, beyond any costs that are passed through to consumers by creditors or loan originators. c. Benefits to Covered Persons A prescribed electronic format may reduce costs across the entire mortgage loan origination industry due to the efficiency gains associated with a standardized data format. Based on industry feedback, the Bureau understands that creditors, mortgage brokers, title companies, investors, and other mortgage technology providers use systems with proprietary data formats. As a result, data must be translated between formats as it is transmitted from one point to another throughout the mortgage loan origination process. A standard format should lower those coordination costs. In addition, a standard format may also facilitate innovation in the financial services industry by making it easier for technology companies to create new programs that improve the mortgage origination process and lower industry costs, instead of tailoring programs to each firm’s unique proprietary data format; may lower ongoing costs by facilitating industry adoption of mortgage documentation technology and reducing industry’s reliance on paper files; and may ease the burden of staff time and resources devoted to onsite supervisory examinations by allowing for remote examinations of compliance. All of these benefits may reduce industry cost and burden in the long run, thereby reducing costs to consumers as well. The Bureau is aware that there are various efforts currently underway to standardize the format for storage and transmission of mortgage originationrelated data. To the extent that the Bureau’s proposal may advance these efforts toward a standard electronic record format, the proposal may help eliminate multiple data formats, thereby increasing efficiency in the origination E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 process, reducing industry costs in the long term, and reducing costs to consumers. Also, the Bureau is aware that many firms currently face significant internal costs for maintaining multiple internal technological systems. To the extent the Bureau’s efforts reduce uncertainly regarding the eventual standard, a single data format specified by the Bureau may lower costs by enabling creditors to migrate from older data formats to a single, standard data format. d. Costs to Covered Persons The proposed rule may result in costs to covered persons. Under current rules, creditors must retain evidence of compliance with the disclosure requirements in Regulation X (i.e., a copy of the RESPA settlement statement) and Regulation Z (i.e., evidence of compliance generally) for five years and two years, respectively, but are not required to maintain such evidence an electronic, readable format. 12 CFR 1024.10(e); 1026.25. Based on industry feedback, the Bureau understands that firms currently rely on electronic systems for most aspects of the mortgage loan origination process, including electronic record creation and storage. Not all lenders currently maintain data in a machine-readable format, and those who do may not retain it in the format that may ultimately be adopted. To comply with the proposed record retention provisions, therefore, creditors may be required to reconfigure existing document production and retention systems. For creditors that maintain their own compliance systems and software, the Bureau does not believe that adding the capacity to maintain data in a standard machine readable format will impose a substantial burden, as the only requirement will be to output existing data to a new format and then store that data. The Bureau believes that the primary cost will be one-time systems changes that could be accomplished at the same time that systems changes are carried out to comply with the new proposed Loan Estimate and Closing Disclosure. Similarly, creditors that rely on vendors would likely rely on vendor software and systems to comply with the data retention requirement; at least one vendor already offers indefinite data storage to customers that use their Webbased origination services. The Bureau estimates that creditors with existing electronic storage systems would need to expend 40 hours of software and IT staff time to develop the ability to export data from existing systems to a standardized format. This would apply to the creditors that VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 maintain their own systems—the 20 largest and five percent of other creditors (14,354*0.05 = 718, rounded to the nearest whole entity)—for a total of (718+20)*40 = 29,520 hours. Assuming an hourly labor cost of software and IT staff of $54, based on information from the Bureau of Labor Statistics, gives a total dollar cost of 29,520*$54 = $1,600,000 (rounded to nearest $100,000). Amortized over five years, this is an annual cost of roughly $320,000 for all mortgage creditors combined. Compared to total mortgage originations of 8,000,000 per year, this amounts to pennies per origination. The Bureau understands that requiring standardized, electronic records may be a significant burden for covered persons that do not currently have such electronic filing systems. To reduce the burden on small entities, the Bureau is considering an exemption from the electronic data retention requirements. See part VI, section-bysection analysis for proposed § 1026.25. 7. Expanded Definition of Finance Charge The proposed rule expands the definition of the finance charge for closed-end transactions secured by real property or a dwelling, consistent with the Board’s 2009 Closed-End Proposal. As discussed more fully in part VI, section-by-section analysis for proposed § 1026.4, TILA and current Regulation Z exclude many types of charges from the finance charge, particularly for mortgage transactions. Concerns have long been raised that these exclusions undermine the potential usefulness of the finance charge and corresponding APR as a tool for consumers to compare the total cost of one loan to another. In addition, these exclusions create compliance burden and litigation risk for creditors and may encourage creditors to shift the cost of credit to excluded fees, a practice that is inefficient. a. Proposed Definition of Finance Charge and Other Federal Regulation The Bureau recognizes that the proposed more inclusive finance charge could affect coverage under other laws, such as higher-priced mortgage loan and HOEPA protections, and that a more inclusive finance charge has implications for the HOEPA, Escrows, Appraisals, and Ability to Repay rulemakings identified in part II.F above. Absent further action by the Bureau, the more inclusive finance charge would: • Cause more closed-end loans to trigger HOEPA protections for high-cost PO 00000 Frm 00163 Fmt 4701 Sfmt 4702 51277 loans.206 The protections include special disclosures, restrictions on certain loan features and lender practices, and strengthened consumer remedies. The more inclusive finance charge would affect both the points and fees test (which currently uses the finance charge as its starting point) and the APR test (which under Dodd-Frank will depend on comparisons to the average prime offer rate (APOR)) for defining what constitutes a high-cost loan. • Cause more loans to trigger DoddFrank Act requirements to maintain escrow accounts for first-lien higherpriced mortgage loans. Coverage depends on comparing a transaction’s APR to the applicable APOR. • Cause more loans to trigger DoddFrank Act requirements to obtain one or more interior appraisals for ‘‘higherrisk’’ mortgage loans. Coverage depends on comparing a transaction’s APR to the applicable APOR. • Reduce the number of loans that would otherwise be ‘‘qualified mortgages’’ under the Dodd-Frank Act Ability to Repay requirements, given that qualified mortgages cannot have points and fees in excess of three 206 Under the Dodd-Frank Act, a loan is defined as a high-cost mortgage, subject to HOEPA protections, if the total points and fees payable in connection with the transaction exceed specified thresholds (points and fees coverage test); the transaction’s APR exceeds the applicable APOR by a specified threshold (APR coverage test); or if the transaction has certain prepayment penalties. First, under the points and fees coverage test, the definition of points and fees includes, as its starting point, all items included in the finance charge. Therefore, a potential consequence of the more inclusive finance charge is that more loans might exceed HOEPA’s points and fees threshold because new categories of charges would be included in the calculation of total points and fees for purposes of that coverage test. In addition, under the APR coverage test, the more inclusive finance charge could result in some additional loans being covered as high-cost mortgages because closed-end loans would have higher APRs. There are currently some differences between APR and the average prime offer rate, which is generally calculated using data that includes only contract interest rate and points but not other origination fees. See 75 FR 58660– 58662. The current APR includes not only discount points and origination fees but also other charges the creditor retains and certain third-party charges. The more inclusive finance charge, which would also include most third-party charges, would widen the disparity between the APR and APOR and cause more closed-end loans to qualify as a high-cost mortgage. The Bureau notes that substantially similar implications would apply to each respective rulemaking in which coverage depends on comparing a transaction’s APR to the applicable APOR. In addition, the Bureau notes that the DoddFrank Act expands HOEPA to apply to more types of mortgage transactions, including purchase money mortgage loans and open-end credit plans secured by a consumer’s principal dwelling. However, the proposed more inclusive finance charge applies only to closed-end loans. Therefore, the Bureau notes that the more inclusive finance charge would not affect the potential coverage of open-end credit plans under HOEPA. E:\FR\FM\23AUP2.SGM 23AUP2 51278 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 percent of the loan amount. Also, more loans could be required to comply with separate underwriting requirements applicable to higher-priced balloon loans, and could be ineligible for certain exceptions authorizing creditors to offer prepayment penalties on fixed-rate, non-higher-priced qualified mortgage loans.207 Again, status as a higherpriced mortgage loan depends on comparing APR to APOR. As discussed above in part VI, section-by-section analysis for proposed § 1026.4, and below in section F, the Bureau is seeking data to model the impact of the more expansive definition of finance charge on coverage of each of these regulatory regimes or the impact of potential modifications that the Bureau could make to the triggers to more closely approximate existing coverage levels prior to issuing a final rule and is seeking comment on its plans for data analysis, as well as additional data and comment on the potential impacts of a broader finance charge definition and potential modifications to the triggers.208 The Board previously proposed to address these effects by adopting an adjusted points and fees definition and a new metric for determining coverage 207 Specifically, the Dodd-Frank Act generally prohibits prepayment penalties on closed-end, dwelling-secured mortgage loans, except on fixedrate qualified mortgages that are not higher-priced mortgage loans. For balloon loans, the Dodd-Frank Act generally requires creditors to assess consumers’ ability to repay a higher-priced loan with a balloon payment using the scheduled payments required under the terms of the loan including any balloon payment, and based on income and assets other than the dwelling itself. Only consumers with substantial income or assets would likely qualify for such a loan. A separate Dodd-Frank Act provision authorizing balloon loans made by creditors that operate predominantly in rural or underserved areas is not affected by the finance charge issue. 208 In its 2009 proposal, the Board relied on a 2008 survey of closing costs conducted by Bankrate.com that contains data for hypothetical $200,000 loans in urban areas. Based on that data, the Board estimated that the share of first-lien refinance and home improvement loans that are subject to HOEPA would increase by .6 percent if the definition of finance charge was expanded, and that the share of first-lien loans in the range of typical home purchases or refinancings ($175,000 to $225,000) that qualified as higher-priced mortgage loans would increase by 3 percent. The Board also looked at the impact on two states and the District of Columbia because their anti-predatory lending laws had triggers below the level of the historical HOEPA APR threshold, which is benchmarked to U.S. Treasury securities. The Board concluded that the percentage of first-lien loans subject to those laws would increase by 2.5 percent in the District of Columbia and 4.0 percent in Illinois, but would not increase in Maryland. The Bureau is considering the 2010 version of the Bankrate.com survey, but as described in this notice the Bureau is also seeking additional data that would provide more representative information regarding closing and settlement costs that would allow for a more refined analysis of the proposals. VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 under APR thresholds, known as the ‘‘transaction coverage rate’’ (TCR). The TCR would be based on a modified prepaid finance charge that would include only finance charges retained by the creditor, mortgage broker, or their affiliates, and would therefore more closely approximate existing coverage levels than a more inclusive finance charge. See 76 FR 27390, 27411–12 (May 11, 2011); 76 FR 11598, 11608–09 (Mar. 2, 2011); 75 FR 58539, 58660–61 (Sept. 24, 2010).209 The Bureau has incorporated these measures into its 2012 HOEPA Proposal, and is seeking comment both in that proposal and this rulemaking on additional trigger modifications that could approximate coverage levels under the existing definition of finance charge, such as adjusting the numeric percentage point triggers for APR under HOEPA or other regimes. If the adjusted points and fees definition, the TCR, or other trigger modifications were adopted in the other rules, the more inclusive finance charge definition would have little or no effect on coverage under those rules although there might still be effects from the expanded definition of finance charge on the coverage of various State mortgage laws and regulations. In addition, because the TCR excludes fees to unaffiliated third-parties, the TCR might result in some loans not triggering one or more of the regulatory regimes discussed above that would qualify under an APR threshold using the current definition of finance charge.210 The discussion of the costs and benefits of a more inclusive definition of finance charge, below, assumes that the Bureau does not adopt the adjusted points and fees definition, the TCR, or other methods of addressing the impact of a more inclusive approach to the finance charge in the other rulemakings. If the Bureau does adopt those measures, the 209 The wording of the Board’s proposed definition of ‘‘transaction coverage rate’’ varied slightly between the 2010 Mortgage Proposal and the 2011 Escrows Proposal as to treatment of charges retained by mortgage broker affiliates. In its 2012 HOEPA Proposal, the Bureau proposes to use the 2011 Escrows Proposal version, which would include charges retained by broker affiliates. 210 As discussed above in part VI, section-bysection analysis for proposed § 1026.4, the Bureau believes that the margin of differences between the TCR and current APR is significantly smaller than the margin between the current APR and the APR calculated using the expanded finance charge definition because relatively few third-party fees would be excluded by the TCR that are not already excluded under current rules. The Bureau is considering ways to supplement the data analysis described above to better assess this issue, and seeks comment and data regarding the potential impacts of the TCR relative to APR calculated using the current and proposed definitions of finance charge. PO 00000 Frm 00164 Fmt 4701 Sfmt 4702 effects of the proposed definition of finance charge would be muted. For instance, the benefits of a simpler APR calculation may be lessened if creditors are required to use different metrics for purposes of disclosure and for determining coverage under various regulatory regimes, although as discussed below with regard to transaction coverage rate both metrics would be easier to calculate than APR using the existing definition of finance charge. In addition, the effects (both benefits and costs) through expanded coverage of those other rules would be eliminated or (in the case of TCR) somewhat reduced. b. Benefits to Consumers The proposed rule may benefit consumers by making the finance charge and corresponding APR more meaningful disclosures of the cost of credit for closed-end transactions secured by real property or a dwelling. Certain limitations on the usefulness of APR as a price comparison tool, however, such as the assumption in the calculation that the loan will be paid as according to the note to maturity and not pre-paid, may limit this benefit. Consumers may benefit from the expanded finance charge definition to the extent it discourages the proliferation of certain ‘‘junk fees,’’ such as fees for preparing loan-related documents, which are currently excluded from the finance charge. As discussed above, if the expanded definition of finance charge is adopted without modifications to the triggers, the more inclusive finance charge definition would cause more loans to be classified as high-cost mortgages under HOEPA, higher-priced mortgage loans under the Escrows and Ability to Repay rulemakings, and/or higher-risk mortgage loans under the Appraisals rulemaking. The more inclusive finance charge could also affect the number of mortgages that meet the definition of a qualified mortgage under the Ability to Repay rulemaking. Absent modifications to the triggers, this would result in more consumers receiving the benefits of one or more of the regulatory regimes described above. In the context of the HOEPA rulemaking, the benefits to consumers could include, for example, a better understanding of the risks associated with the loan through additional disclosures (which, in turn, may reduce the likelihood a consumer takes out a mortgage he or she cannot afford), better loan terms due to increased shopping, and an absence of loan features whose associated risks may be difficult for consumers to understand. Consumers E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules could also benefit from more loans being classified as higher-priced under the Escrows or Ability to Repay rulemakings. Under the Escrows rulemaking, more transactions would be required to include escrow accounts for the payment of recurring costs such as taxes and hazard insurance, which could assist more consumers in planning for such costs. Under the Ability to Repay rulemaking, fewer loans could be permitted to have prepayment penalties whose associated risks may be difficult for consumers to understand, more loans could be subject to the separate underwriting standards required for higher-priced balloon loans, which could help to ensure consumers’ ability to repay such loans, and fewer loans would be classified as ‘‘qualified mortgages.’’ Finally, in the Appraisals rulemaking, an increase in the number of loans classified as higher-risk could benefit consumers because more transactions would be subject to the requirement that creditors obtain one or more interior appraisals before extending credit. Alternatively, the expanded definition of finance charge may benefit consumers if creditors lower the fees or interest rate on the loan a consumer receives so as to maintain eligibility as a qualified mortgage or to avoid coverage by those other consumer protection laws. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 c. Costs to Consumers Without modifications to the triggers, the proposed more inclusive finance charge could impose direct costs on some consumers. For instance, the cost of obtaining an initial interior appraisal may be passed on to consumers under the Dodd-Frank Act requirements for higher-risk mortgages. The additional protections required under the various regulations may also lead to higher cost of credit for some consumers or reduced access to credit if creditors choose not to make loans that would be classified as high-cost, higher-priced, or higherrisk, or if consumers cannot qualify for credit as a result of the separate underwriting standards that could apply to higher-priced balloon loans. d. Benefits to Covered Persons The proposed rule may benefit covered persons by easing regulatory burden and litigation risk associated with the current complex rules for determining which fees are part of the finance charge. Because the current rules for determining which fees are part of the finance charge are complicated and unclear, creditors will benefit from a simpler, more inclusive definition. In particular, feedback VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 received by the Bureau and comments on a similar proposal issued by the Board in the 2009 indicate that, because a failure to calculate the finance charge and the APR accurately gives rise to the right of rescission, creditors incur substantial compliance costs attempting to make accurate calculations and incur substantial litigation costs defending against claims of inaccurate calculations. e. Costs to Covered Persons To comply with the proposed rule, creditors may be required to update compliance systems to reflect changes to the finance charge calculation. These updates may involve one-time costs associated with software updates, legal expenses, and personnel training time. As discussed above, if the Bureau adopts the proposal, it expects to provide an implementation period that would coincide either with implementation of the disclosure modifications or with implementation of certain changes to coverage of HOEPA and other regulatory regimes that would be affected by the change in definition. Accordingly, the Bureau believes that software changes and other expenses would be incurred as part of the overall software and compliance system revisions required to comply with the other simultaneous changes, and therefore would not impose a substantial additional burden. As discussed above, the proposed rule if it were implemented without modifications to the triggers for various regulatory regimes might cause more loans to cross Federal and State highcost or high-priced loan thresholds based on APR or points and fees. With respect to the HOEPA and Appraisals rulemakings, creditors may incur costs associated with generating and providing HOEPA and appraisal disclosures for additional loans. Creditors may incur additional costs in the context of the Appraisals rulemaking because the Dodd-Frank Act prohibits creditors from charging consumers for second appraisals conducted in connection with certain properties that have been sold in the last 180 days. Similarly, in the context of the Escrows rulemaking, creditors may incur costs associated with maintaining escrow accounts on more transactions if not subject to other exceptions provided by the Dodd-Frank Act. With respect to the Ability to Repay rulemaking, creditors may incur costs associated with making fewer loans with prepayment penalties, or may incur costs from the additional underwriting requirements and/or liability associated with making more loans that are higher- PO 00000 Frm 00165 Fmt 4701 Sfmt 4702 51279 priced balloon loans or that are not qualified mortgages. In addition, a small number of creditors may also lose a very small fraction of revenue if they are reluctant to make high-cost, higher-priced, or higher-risk mortgage loans and cannot offer alternatives that are as profitable as those loans. As discussed in more detail in the 2012 HOEPA Proposal, modifying the triggers would require some one-time implementation costs and would create some additional compliance complexity if creditors must use different metrics for disclosure purposes and for determining coverage under particular regulatory regimes. However, with regard to the TCR, the Bureau believes that such impacts would be addressed by the fact that both TCR and APR using the expanded definition of finance charge would be easier to calculate than APR under the current definition. On balance, the Bureau believes adoption of the proposed trigger modifications would reduce the economic impacts on creditors of the more expansive definition of finance charge. 8. Implementation of New Disclosures Mandated by the Dodd-Frank Act The proposed rule exempts creditors temporarily from compliance with certain new disclosure requirements added to TILA and RESPA by the DoddFrank Act until the TILA–RESPA rule takes effect. As discussed more fully in part V.B, above, title XIV of the Dodd-Frank Act adds new disclosure requirements to TILA and RESPA for mortgage transactions. Although the Dodd-Frank Act does not specifically require inclusion of all of these new disclosures in the Loan Estimate and the Closing Disclosure, the Bureau believes these disclosures should be included in the integrated forms because doing so would improve the overall effectiveness of the integrated disclosure, which may benefit consumers and covered persons, and also reduce burden on covered persons. Finalizing the rules implementing these title XIV disclosures simultaneously with the final TILA–RESPA rule would avoid unnecessary regulatory burden by preventing creditors from having to implement multiple rounds of disclosure rules. The Bureau does not anticipate additional costs to covered persons as a result of delayed implementation of the new disclosure requirements, although, as noted above, covered persons may incur additional recurring costs associated with calculating and disclosing this E:\FR\FM\23AUP2.SGM 23AUP2 51280 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules additional information to consumers once the implementing rules take effect. 9. Other Costs of Complying with the Proposed Regulation Covered persons will need to learn about the requirements of the regulation and determine what changes to their business practices they would be required to make to come into compliance. These costs will vary considerably across institutions, depending on the size and complexity of their operations. In addition, some firms will rely on their own staff to conduct this analysis, while others will rely on outside counsel, industry sources, or compliance firms. Firms that use compliance systems provided by outside vendors, especially smaller creditors, will likely rely in large part on those vendors to determine what changes they need to make, reducing the burden on those creditors. E. Potential Specific Impacts of the Proposed Rule mstockstill on DSK4VPTVN1PROD with PROPOSALS2 1. Depository Institutions and Credit Unions with $10 Billion or Less in Total Assets, As Described in Section 1026 Other than as noted here, the Bureau believes that the impact of the rule on depository institutions and credit unions with $10 billion or less in total assets will be similar to those for creditors as a whole. The primary difference in the impact on these institutions is likely to come from differences in the compliance systems and software of these institutions. As discussed above, based on information provided by creditors and by software vendors, the Bureau believes that, in general, larger creditors develop and maintain their own compliance software and systems, while 95 prercent of smaller creditors, which includes the vast majority of those with assets less than $10 billion, primarily rely on software and compliance systems provided by outside vendors. As described above, the use of vendors by smaller creditors will substantially mitigate the costs of revising software and compliance systems, as vendor software updates would likely be included in regular annual updates, and therefore the costs would not be directly passed on to the client creditors. As discussed above, based on small entities that participated in the Small Business Review Panel process, the Bureau estimates that the small fraction of smaller creditors that maintain their own compliance software and systems would incur costs of roughly $100,000 to update their systems to comply with the proposal. The Bureau estimates that VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 there were a total of 11,749 banks, savings institutions, and credit unions with assets less than $10 billion that originated mortgages in 2010, the most recent year for which complete data are available, and that all but one of them was outside the top twenty mortgage originators.211 The total estimated cost for these few smaller creditors that maintain their own compliance software and systems is therefore $100,000*11,749*5% = $58,700,000 (rounded to the nearest $100,000). Amortized over five years, the annual costs are $11,750,000 for all smaller depository mortgages lenders and credit unions that make mortgages combined. The one creditor in the largest 20 mortgage creditors that is a depository institution and has assets under $10,000,000 would need to revise its compliance software and systems. The Bureau estimates that the cost for this creditor would be $1,000,000; amortized over five years this is an annual cost of $200,000. Covered persons would incur onetime costs associated with training employees to use new forms and any new compliance software and systems. The Bureau estimates that each loan officer or other loan originator will need to receive two hours of training, and, as described above, each ten hours of trainee time would require an additional hour of trainer time. Assuming the same ratio of loan officers to originations at these institutions as for the industry as a whole, the Bureau estimates that there are roughly 28,000 loan officers that would need training at these institutions.212 Based on data from the Bureau of Labor Statistics, the Bureau estimates that the average total compensation is $46 per hour for a loan officer and $39 per hour for a trainer, for a total training cost of (28,000*2*$46)+(2,800*2*$39) = 2,800,000 (rounded to the nearest $100,000). Amortized over five years, this is an annual cost of $560,000 for all smaller depository mortgage lenders and credit unions that make mortgage loans combined. Taken together, the Bureau estimates that the total one-time costs of complying with the proposed Loan Estimate and Closing Disclosure for these institutions would be roughly $62,500,000. Amortized over five years, this is an annual cost of $12,500,000 for all smaller depository mortgage lenders and credit unions that make mortgage 211 Estimate based on analysis of HMDA, SNL Call Reports, NCUA Call Reports, and NMLS Call Reports. 212 Originations estimates based on analysis of HMDA, SNL Call Reports, NCUA Call Reports, and NMLS Call Reports. PO 00000 Frm 00166 Fmt 4701 Sfmt 4702 loans combined. The Bureau estimates that these creditors made roughly 2.6 million originations in 2010. The estimated one-time cost is therefore less than $5.00 per origination. As discussed above, to comply with the proposed record retention provisions, creditors may be required to reconfigure existing document production and retention systems. The Bureau estimates that creditors with existing electronic storage systems would need to expend 40 hours of software and IT staff time to develop the ability to export data from existing systems to a standardized format. This would apply to the creditors that maintain their own systems—the one depository institution with assets less than $10 billion that is one of the 20 largest mortgage creditors and five percent of other institutions, for a total of 40+(11,749*.05*40) = 23,538 hours. Assuming an hourly labor cost for software and IT staff of $54, based on information from the Bureau of Labor Statistics, gives a total dollar cost of 23,538*$54 = $1,300,000 (rounded to nearest $100,000). Amortized over five years, this is an annual cost of $260,000 for all smaller depository mortgage lenders and credit unions that make mortgage loans combined. The Bureau understands that requiring standardized, electronic records may be a significant burden for covered persons that do not currently have such electronic filing systems. To reduce the burden on small entities, which will include some depository institutions and credit unions with $10 billion or less in total assets, the Bureau is considering an exemption from the electronic data retention requirements. See part VI, section-by-section analysis for proposed § 1026.25. 2. Impact of the Proposed Provisions on Consumers in Rural Areas Consumers in rural areas may experience benefits and costs from the proposed rule that are different in certain respects to those experienced by consumers in general. The extent to which rural consumers shop for mortgages and the ways in which they shop may differ than the extent to which other consumers shop, which may affect the benefits of the revised Loan Estimate. The Bureau is unaware of information on these differences, however. To the extent that the impacts of the proposal on creditors differ by type of creditor, this may affect the costs and benefits of the proposal on consumers in rural areas. The Bureau will further consider the impact of the proposed rule on consumers in rural areas. The Bureau E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 therefore asks interested parties to provide data, research results and other factual information on the impact of the proposed rule on consumers in rural areas. F. Additional Analysis Being Considered and Request for Information The Bureau will further consider the benefits, costs, and impacts of the proposed provisions before finalizing the proposal. As noted above, there are a number of areas where additional information would allow the Bureau to better estimate the benefits, costs, and impacts of this proposal and more fully inform the rulemaking. In particular, the Bureau seeks additional data to analyze the frequency, magnitude, and type of differences between initial estimates of settlement costs and actual costs. This will enable the Bureau to better estimate the effects of the various aspects of this proposal that relate to settlement costs and how they change between the initial RESPA GFE and closing. In addition, the Bureau asks interested parties to provide general information, data, and research results on: • How consumers might respond to better mortgage costs disclosures; • The benefits to consumers of clearer information about their mortgages; • The potential impact on the functioning of the market and on creditors if consumers better understood their loan; • The potential impact on creditors of the elimination of the ten percent tolerance for cost changes for certain settlement fees; • The effects on the role of different market participants of various aspects of the proposal, such as the elimination of the ten percent tolerance for cost changes on certain settlement fees and the alternative proposal that creditors be solely responsible for the provision of the Closing Disclosure; • The effects of adopting a more inclusive finance charge, including with respect to the rulemakings on HOEPA, Escrows, Appraisals, and Ability to Repay; • The costs to covered persons of complying with the proposal, such as revising compliance software and systems; • How often creditors or mortgage brokers obtain additional information from the consumer after the Loan Estimate has been issued that affects the costs of settlement services for the loan and that may cause the creditor or broker to issue a revised Loan Estimate; and • How often creditors are providing additional disclosures that are not required by the current rules and that VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 they would no longer send if the rules are clarified. To supplement the information discussed in this preamble and any information that the Bureau may receive from commenters, the Bureau is currently working to gather additional data that may be relevant to this and other mortgage related rulemakings. These data may include additional data from Nationwide Mortgage Licensing System and Registry and the NMLS Mortgage Call Report, loan file extracts from various lenders, and data from the pilot phases of the National Mortgage Database. The Bureau expects that each of these datasets will be confidential. This section now describes each dataset in turn. First, as the sole system supporting licensure/registration of mortgage companies for 53 agencies for states and territories and mortgage loan originators under the SAFE Act, NMLS contains basic identifying information for nondepository mortgage loan origination companies. Firms that hold a State license or State registration through NMLS are required to complete either a standard or expanded Mortgage Call Report (MCR). The Standard MCR includes data on each firm’s residential mortgage loan activity including applications, closed loans, individual mortgage loan originator (MLO) activity, line of credit and other data repurchase information by State. It also includes financial information at the company level. The expanded report collects more detailed information in each of these areas for those firms that sell to Fannie Mae or Freddie Mac.213 To date, the Bureau has received basic data on the firms in the NMLS and de-identified data and tabulations of data from the Mortgage Call Report. These data were used, along with HMDA data, to help estimate the number and characteristics of nondepository institutions active in various mortgage activities. In the near future, the Bureau may receive additional data on loan activity and financial information from the NMLS including loan activity and financial information for identified lenders. The Bureau anticipates that these data will provide additional information about the number, size, type, and level of activity for nondepository lenders engaging in various mortgage origination and servicing activities. As such, it supplements the Bureau’s current data for nondepository institutions reported in HMDA and the 213 More information about the Mortgage Call Report can be found at https://mortgage.nationwide licensingsystem.org/slr/common/mcr/Pages/ default.aspx. PO 00000 Frm 00167 Fmt 4701 Sfmt 4702 51281 data already received from NMLS. For example, these new data will include information about the number and size of closed-end first and second loans originated, fees earned from origination activity, levels of servicing, revenue estimates for each firm and other information. The Bureau may compile some simple counts and tabulations and conduct some basic statistical modeling to better model the levels of various activities at various types of firms. In particular, the information from the NMLS and the MCR may help the Bureau refine its estimates of benefits, costs, and impacts for each of the revisions to the RESPA GFE and settlement statement forms, changes to the HOEPA thresholds, changes to requirements for appraisals, updates to loan originator compensation rules, proposed new servicing requirements, and the new ability to repay standards. Second, the Bureau is working to obtain a random selection of loan-level data from several lenders. The Bureau intends to request loan file data from lenders of various sizes and geographic locations to construct a representative dataset. In particular, the Bureau will request a random sample of RESPA GFE and RESPA settlement statement forms from loan files for closed-end loans. These forms include data on some or all loan characteristics including settlement charges, origination charges, appraisal fees, flood certifications, mortgage insurance premiums, homeowner’s insurance, title charges, balloon payments, prepayment penalties, origination charges, and credit charges or points. Through conversations with industry, the Bureau believes that such loan files exist in standard electronic formats allowing for the creation of a representative sample for analysis. The Bureau may use these data to further measure the impacts of certain proposed changes. Calculations of various categories of settlement and origination charges may help the Bureau calculate the various impacts of proposed changes to the definition of finance charge and other aspects of the proposal, including proposed changes in the number and characteristics of loans that exceed the HOEPA thresholds, loans that would meet the high rate or high risk definitions mandating additional consumer protections, and loans that meet the points and fees thresholds contained in the ability to repay provisions of Dodd-Frank. Third, the Bureau may also use data from the pilot phases of the National Mortgage Database (NMDB) to refine its proposals and/or its assessments of the benefits, costs, and impacts of these proposals. The NMDB is a E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51282 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules comprehensive database, currently under development, of loan-level information on first lien single-family mortgages. It is designed to be a nationally representative sample (1 percent) and contains data derived from credit reporting agency data and other administrative sources along with data from surveys of mortgage borrowers. The first two pilot phases, conducted over the past two years, vetted the data development process, successfully pretested the survey component and produced a prototype dataset. The initial pilot phases validated that sampled credit repository data are both accurate and comprehensive and that the survey component yields a representative sample and a sufficient response rate. A third pilot is currently being conducted with the survey being mailed to holders of five thousand newly originated mortgages sampled from the prototype NMDB. Based on the 2011 pilot, a response rate of fifty percent or higher is expected. These survey data will be combined with the credit repository information of nonrespondents, and then de-identified. Credit repository data will be used to minimize non-response bias, and attempts will be made to impute missing values. The data from the third pilot will not be made public. However, to the extent possible, the data may be analyzed to assist the Bureau in its regulatory activities and these analyses will be made publically available. The survey data from the pilots may be used by the Bureau to analyze consumers’ shopping behavior regarding mortgages. For instance, the Bureau may calculate the number of consumers who use brokers, the number of lenders contacted by borrowers, how often and with what patterns potential borrowers switch lenders, and other behaviors. Questions may also assess borrowers’ understanding of their loan terms and the various charges involved with origination. Tabulations of the survey data for various populations and simple regression techniques may be used to help the Bureau with its analysis. The Bureau requests commenters to submit data and to provide suggestions for additional data to assess the issues discussed above and other potential benefits, costs, and impacts of the proposed rule. The Bureau also requests comment on the use of the data described above. VIII. Regulatory Flexibility Act The Regulatory Flexibility Act (RFA), as amended by SBREFA, requires each agency to consider the potential impact of its regulations on small entities, including small businesses, small VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 governmental units, and small not-forprofit organizations. 5 U.S.C. 601 et seq. The RFA generally requires an agency to conduct an initial regulatory flexibility analysis (IRFA) and a final regulatory flexibility analysis (FRFA) of any rule subject to notice-and-comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. 5 U.S.C. 603, 604. The Bureau also is subject to certain additional procedures under the RFA involving the convening of a panel to consult with small business representatives prior to proposing a rule for which an IRFA is required. 5 U.S.C. 609. The Bureau has not certified that the proposed rule would not have a significant economic impact on a substantial number of small entities within the meaning of the RFA. Accordingly, the Bureau convened and chaired a Small Business Review Panel to consider the impact of the proposed rule on small entities that would be subject to that rule and to obtain feedback from representatives of such small entities. The Small Business Review Panel for this rulemaking is discussed below in part VIII.A. The Bureau is publishing an IRFA. Among other things, the IRFA estimates the number of small entities that will be subject to the proposed rule and describe the impact of that rule on those entities. The IRFA for this rulemaking is set forth below in part VIII.B. A. Small Business Review Panel Under section 609(b) of the RFA, as amended by SBREFA and the DoddFrank Act, the Bureau seeks, prior to conducting the IRFA, information from representatives of small entities that may potentially be affected by its proposed rules to assess the potential impacts of that rule on such small entities. 5 U.S.C. 609(b). Section 609(b) sets forth a series of procedural steps with regard to obtaining this information. The Bureau first notifies the Chief Counsel for Advocacy (Chief Counsel) of the U.S. Small Business Administration (SBA) and provides the Chief Counsel with information on the potential impacts of the proposed rule on small entities and the types of small entities that might be affected. 5 U.S.C. 609(b)(1). Not later than 15 days after receipt of the formal notification and other information described in section 609(b)(1) of the RFA, the Chief Counsel then identify individuals representative of affected small entities for the purpose of obtaining advice and recommendations from those individuals about the potential impacts PO 00000 Frm 00168 Fmt 4701 Sfmt 4702 of the proposed rule (the small entity representatives, or SERs). 5 U.S.C. 609(b)(2). The Bureau convenes a review panel for such rule consisting wholly of full time Federal employees of the office within the Bureau responsible for carrying out the proposed rule, the Office of Information and Regulatory Affairs (OIRA) within the U.S. Office of Management and Budget (OMB), and the Chief Counsel (collectively, the Small Business Review Panel or Panel). 5 U.S.C. 609(b)(3). The Panel reviews any material the Bureau has prepared in connection with the SBREFA process and collects advice and recommendations of each individual small entity representative identified by the Bureau after consultation with the Chief Counsel on issues related to sections 603(b)(3) through (b)(5) and 603(c) of the RFA.214 5 U.S.C. 609(b)(4). Not later than 60 days after the date the Bureau convenes the Small Business Review Panel, the Panel reports on the comments of the SERs and its findings as to the issues on which the Panel consulted with the SERs, and the report is made public as part of the rulemaking record. 5 U.S.C. 609(b)(5). Where appropriate, the Bureau modifies the rule or the IRFA in light of the foregoing process. 5 U.S.C. 609(b)(6). On February 7, 2012, the Bureau provided the Chief Counsel with the formal notification and other information required under section 609(b)(1) of the RFA. To obtain feedback from small entity representatives to inform the Panel pursuant to sections 609(b)(2) and 609(b)(4) of the RFA, the Bureau, in consultation with the Chief Counsel, identified six categories of small entities that may be subject to the proposed rule for purposes of the IRFA: commercial banks/savings institutions, credit unions, mortgage brokers, mortgage companies (non-bank lenders), settlement (closing) agents, and nonprofit organizations. These are the categories of entities that may be required to provide, and maintain 214 As described in the IRFA in part VIII.B, below, sections 603(b)(3) through (b)(5) and 603(c) of the RFA, respectively, require a description of and, where feasible, provision of an estimate of the number of small entities to which the proposed rule will apply; a description of the projected reporting, recordkeeping, and other compliance requirements of the proposed rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record; an identification, to the extent practicable, of all relevant Federal rules which may duplicate, overlap, or conflict with the proposed rule; and a description of any significant alternatives to the proposed rule which accomplish the stated objectives of applicable statutes and which minimize any significant economic impact of the proposed rule on small entities. 5 U.S.C. 603(b)(3)– (5), 603(c). E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 related records on, the integrated mortgage disclosures, either because they may make mortgage loans subject to the proposed rule or because they may be responsible for completing or providing required disclosures. Part VIII.B.3, below, describes in greater detail the Bureau’s analysis of the number and types of entities that may be affected by the proposed rule. Having identified the categories of small entities that may be subject to the proposed rule for purposes of an IRFA, the Bureau, in consultation with the Chief Counsel, selected 16 SERs to participate in the SBREFA process. As described in chapter 7 of the Panel’s report (described below), the SERs included representatives from each of the categories identified by the Bureau and comprised a diverse group of individuals with regard to geography and type of locality (i.e., rural, urban, or suburban areas). On February 21, 2012, the Bureau convened the Panel pursuant to section 609(b)(3) of the RFA. To collect the advice and recommendations of the SERs under section 609(b)(4) of the RFA, the Panel held an outreach meeting/teleconference with the SERs on March 6, 2012 (the Panel Outreach Meeting). To help the SERs prepare for the Panel Outreach Meeting, the Panel circulated briefing materials prepared in connection with section 609(b)(4) of the RFA that summarized the proposals under consideration at that time, posed discussion issues, and provided information about the SBREFA process generally.215 All 16 SERs participated in the Panel Outreach Meeting either in person or by telephone. The Panel also provided the SERs with an opportunity to submit written feedback. In response, the Panel received written feedback from 12 of the representatives.216 On April 23, 2012, the Panel submitted to the Director of the Bureau, Richard Cordray, a written report (the Small Business Review Panel Report) that includes the following: background information on the proposals under consideration at the time; information on the types of small entities that would be subject to those proposals and on the SERs who were selected to advise the Panel; a summary of the Panel’s outreach to obtain the advice and 215 The Bureau posted these materials on its Web site and invited the public to email remarks on the materials. See https://www.consumerfinance.gov/ pressreleases/consumer-financial-protectionbureau-convenes-small-business-panel-for-knowbefore-you-owe-mortgage-disclosures/ (the materials are accessible via the links within this document). 216 This written feedback is attached as appendix A to the written report of the Panel, discussed below. VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 recommendations of those SERs; a discussion of the comments and recommendations of the SERs; and a discussion of the Panel findings, focusing on the statutory elements required under section 603 of the RFA. 5 U.S.C. 609(b)(5).217 In preparing this proposed rule and the IRFA, the Bureau has carefully considered the feedback from the SERs participating in the SBREFA process and the findings and recommendations in the Small Business Review Panel Report. The section-by-section analysis of the proposed rule in part VI, above, and the IRFA discuss this feedback and the specific findings and recommendations of the Panel, as applicable. The SBREFA process provided the Panel and the Bureau with an opportunity to identify and explore opportunities to minimize the burden of the rule on small entities while achieving the rule’s purposes. It is important to note, however, that the Panel prepared the Small Business Review Panel Report at a preliminary stage of the proposal’s development and that the Panel Report—in particular, the Panel’s findings and recommendations—should be considered in that light. Also, the Small Business Review Panel Report expressly stated that options it identified for reducing the proposed rule’s regulatory impact on small entities were subject to further consideration, analysis, and data collection by the Bureau to determine if the options identified were practicable, enforceable, and consistent with TILA, RESPA, the Dodd-Frank Act, and their statutory purposes. The proposed rule and the IRFA reflect further consideration, analysis, and data collection by the Bureau. B. Initial Regulatory Flexibility Analysis Under section 603(a) of the RFA, an IRFA ‘‘shall describe the impact of the proposed rule on small entities.’’ 5 U.S.C. 603(a). Section 603(b) of the RFA sets forth the required elements of the IRFA. Section 603(b)(1) requires the IRFA to contain a description of the reasons why action by the agency is being considered. 5 U.S.C. 603(b)(1). Section 603(b)(2) requires a succinct statement of the objectives of, and the legal basis for, the proposed rule. 5 U.S.C. 603(b)(2). The IRFA further must contain a description of and, where feasible, provision of an estimate of the number of small entities to which the 217 Final Report of the Small Business Review Panel on the CFPB’s Proposals Under Consideration for Integration of TILA and RESPA Mortgage Disclosure Requirements, dated April 23, 2012. As discussed above, this report is available on the Bureau’s Web site. PO 00000 Frm 00169 Fmt 4701 Sfmt 4702 51283 proposed rule will apply. 5 U.S.C. 603(b)(3). Section 603(b)(4) requires a description of the projected reporting, recordkeeping, and other compliance requirements of the proposed rule, including an estimate of the classes of small entities that will be subject to the requirement and the types of professional skills necessary for the preparation of the report or record. 5 U.S.C. 603(b)(4). In addition, the Bureau must identify, to the extent practicable, all relevant Federal rules which may duplicate, overlap, or conflict with the proposed rule. 5 U.S.C. 603(b)(5). The Bureau, further, must describe any significant alternatives to the proposed rule which accomplish the stated objectives of applicable statutes and which minimize any significant economic impact of the proposed rule on small entities. 5 U.S.C. 603(b)(6). Finally, as amended by the Dodd-Frank Act, section 603(d) of the RFA requires that the IRFA include a description of any projected increase in the cost of credit for small entities, a description of any significant alternatives to the proposed rule which accomplish the stated objectives of applicable statutes and which minimize any increase in the cost of credit for small entities (if such an increase in the cost of credit is projected), and a description of the advice and recommendations of representatives of small entities relating to the cost of credit issues. 5 U.S.C. 603(d)(1); Dodd-Frank Act section 1100G(d)(1). 1. Description of the Reasons Why Agency Action Is Being Considered As discussed in part II, above, for more than 30 years, TILA and RESPA have required lenders and settlement agents to give to consumers who take out a mortgage loan different but overlapping disclosure forms regarding the loan’s terms and costs. This duplication has long been recognized as inefficient and confusing for consumers and industry. The following two paragraphs briefly summarize the statutory differences, which are described in more detail in part I and part II, above. a. TILA/Regulation Z In connection with any closed-end credit transaction secured by a consumer’s dwelling and subject to RESPA, TILA and Regulation Z require creditors to provide good faith estimates of loan terms (such as the APR) within three business days after receiving the consumer’s mortgage application (i.e., the early TILA disclosure). If the APR on the early TILA disclosure becomes inaccurate, TILA requires the creditor to E:\FR\FM\23AUP2.SGM 23AUP2 51284 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 provide a corrected disclosure at least three business days before closing (i.e., the corrected TILA disclosure). TILA requires that the disclosures be provided in final form at the time of consummation (i.e., the final TILA disclosure). See part II.C, above. b. RESPA/Regulation X In connection with any federally related mortgage loan, RESPA and Regulation X require that lenders provide a good faith estimate of the amount or range of charges for certain settlement services the borrower is likely to incur in connection with the settlement (such as fees for an appraisal or a title search) and related loan information within three business days after receiving the consumer’s application (i.e., the RESPA GFE). RESPA also requires that ‘‘the person conducting the settlement’’ (typically, the settlement or closing agent) provide the consumer with a completed, itemized statement of settlement charges at or before settlement (i.e., the RESPA settlement statement). See part II.B above. Furthermore, the recent mortgage crisis highlighted deficiencies in consumer understanding of mortgage transactions, which may be attributed in part to shortcomings in mortgage disclosures. Part II.A above discusses in greater detail the background of the mortgage market. Prior to the creation of the Bureau, other government agencies took steps to address these shortcomings. Specifically, HUD, which was previously responsible for implementing RESPA, finalized rules in 2008 that substantially revised the RESPA mortgage disclosures (i.e., HUD’s 2008 RESPA Final Rule). In addition, the Board, which was previously responsible for TILA, proposed rules in 2009 that would have substantially revised the TILA mortgage disclosures (i.e., the Board’s 2009 Closed-End Proposal). However, neither HUD nor the Board had the authority to combine the TILA and RESPA disclosures. As noted above, the Dodd-Frank Act consolidated rulemaking authority for RESPA and TILA in the Bureau. In addition, the Dodd-Frank Act amended both statutes to mandate specifically that the Bureau propose rules and forms combining the TILA and RESPA disclosures for mortgage loans subject to either law or both laws by July 21, 2012. Dodd-Frank Act sections 1032(f), 1098, 1100A. The Dodd-Frank Act establishes two goals for the consolidation: to improve consumer understanding of mortgage loan transactions; and to facilitate industry compliance with VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 TILA and RESPA. The Dodd-Frank Act also made several amendments to the disclosure requirements in TILA and RESPA. In particular, the Dodd-Frank Act amended TILA to require the creditor to disclose in the early and final TILA disclosures the aggregate amount of settlement charges provided in connection with the loan, which was previously disclosed only by the settlement agent in the RESPA settlement statement.218 The proposed rule, therefore, both follows on the prior efforts of HUD and the Board to address shortcomings in the mortgage market with regard to mortgage disclosures and effectuates Congress’s specific mandate to the Bureau to integrate the mortgage disclosures under TILA and RESPA. For a further description of the reasons why agency action is being considered, see the background discussion for the proposed rule in part II, above. 2. Statement of the Objectives of, and Legal Basis for, the Proposed Rule As described above, the proposed rule effectuates Congress’s mandate to integrate the mortgage disclosures required under TILA and RESPA. In particular, sections 1098 and 1100A of the Dodd-Frank Act state that the purposes of the integrated disclosures are to facilitate compliance with TILA and RESPA and ‘‘to aid the borrower or lessee in understanding the transaction by utilizing readily understandable language to simplify the technical nature of the disclosures.’’ The integrated disclosures also effectuate the underlying statutory purposes of RESPA and TILA. One of the statutory purposes of RESPA is ‘‘more effective advance disclosure to home buyers and sellers of settlement costs.’’ 12 U.S.C. 2601(b)(1). And one statutory purpose of TILA is to ‘‘to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit.’’ 15 U.S.C. 1601(a). Furthermore, this rulemaking promotes consumer comprehension of financial disclosures. Section 1021(b) of the Dodd-Frank Act authorizes the Bureau to exercise its authorities to ensure that, with respect to consumer financial products and services, ‘‘consumers are provided with timely and understandable information to make responsible decisions about financial transactions.’’ 12 U.S.C. 5511(b). Section 1032(a) of the DoddFrank Act provides the Bureau with the 218 Section 1419 of the Dodd-Frank Act, adding section 128(a)(17) to TILA. PO 00000 Frm 00170 Fmt 4701 Sfmt 4702 authority to ‘‘prescribe rules to ensure that the features of any consumer financial product or service, both initially and over the term of the product or service, are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the product or service, in light of the facts and circumstances.’’ 12 U.S.C. 5532(a). The proposed rule also is intended to provide other benefits for consumers. First, the new prototype disclosure forms are simpler and more comprehensible, and their design has been refined to incorporate extensive consumer and industry feedback gathered through online tools and oneon-one testing across the country. See part III, above. By conveying information on key loan terms clearly, the redesigned disclosure forms may improve the ability of consumers to shop for and compare mortgage terms across loan offers and improve their understanding of mortgage loan transactions. Second, the proposed rule seeks to improve consumers’ ability to shop by more clearly delineating between estimates regulated by TILA and RESPA and non-binding preapplication estimates. Third, the proposed rule may reduce the magnitude and frequency of changes in costs between application and consummation and may decrease the likelihood that consumers will face unexpected changes in costs due to ‘‘bait and switch’’ tactics.219 Lastly, the Bureau is seeking to reconcile differences in the scope, terminology, and requirements of TILA, RESPA, and their current implementing regulations. As discussed above, the Dodd-Frank Act did not reconcile a number of statutory differences between TILA and RESPA (e.g., the different requirements on the timing of disclosures and which party is responsible for providing the disclosures), which the Bureau needs to do in order to satisfy the mandate to integrate the disclosures. Moreover, the proposed rule clarifies and streamlines aspects of the current rules that have been identified as confusing by lenders, mortgage brokers, mortgage companies, and settlement agents, as well as for consumers who receive the disclosures. The Bureau believes that these clarifications will resolve ambiguities, eliminate redundant or unnecessary disclosures, and more effectively 219 This discussion of the proposed rule’s benefits to consumers is intended to be illustrative, not exhaustive. Additional consumer benefits that may result from the proposed rule are discussed in other sections of the proposed rule. E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules disclose mortgage loan terms and costs to consumers. The legal basis for the proposed rule is discussed in detail in the legal authority analysis in part IV and in the section-by-section analysis in part VI, above. 3. Description and, Where Feasible, Provision of an Estimate of the Number of Small Entities to Which the Proposed Rule Will Apply As discussed in the Small Business Review Panel Report, for purposes of assessing the impacts of the proposed rule on small entities, ‘‘small entities’’ is defined in the RFA to include small businesses, small nonprofit organizations, and small government jurisdictions. 5 U.S.C. 601(6). A ‘‘small business’’ is determined by application of SBA regulations and reference to the North American Industry Classification System (NAICS) classifications and size standards.220 5 U.S.C. 601(3). Under such standards, banks and other mstockstill on DSK4VPTVN1PROD with PROPOSALS2 220 The current SBA size standards are found on SBA’s Web site at https://www.sba.gov/content/ table-small-business-size-standards. VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 depository institutions are considered ‘‘small’’ if they have $175 million or less in assets, and for other financial businesses, the threshold is average annual receipts (i.e., annual revenues) that do not exceed $7 million.221 During the Small Business Review Panel process, the Bureau identified six categories of small entities that may be subject to the proposed rule for purposes of the RFA. These are the categories of entities that may be required to provide, and maintain related records on, the integrated disclosures, either because they may make residential mortgage loans or because they may be responsible for completing or providing required disclosures. The categories and the SBA small entity thresholds for those categories are: (1) Commercial banks 222 221 See id. purposes of the Bureau’s Small Business Review Panel Outline circulated in advance of the Panel Outreach Meeting, the categories of commercial banks and savings institutions were combined under the label ‘‘commercial banks.’’ The list of SERs identified in chapter 7 of the Small Business Review Panel Report includes one representative of a savings institution. 222 For PO 00000 Frm 00171 Fmt 4701 Sfmt 4702 51285 with up to $175,000,000 in assets, (2) credit unions with up to $175,000,000 in assets, (3) mortgage brokers with up to $7,000,000 in annual revenue, (4) mortgage companies (non-bank lenders) with up to $7,000,000 in annual revenue, (5) settlement (closing) agents with up to $7,000,000 in annual revenue, and (6) nonprofit organizations that are not for profit, independently owned and operated, and not dominant in the field. Since the time the Small Business Review Panel Report was completed, some of the data sources that the Bureau used to estimate the numbers of small entities of different types have released updated information and the Bureau has revised some aspects of the estimation procedure. The following table provides the Bureau’s revised estimates of the number and types of entities that may be affected by the proposed rule: 223 223 In the Small Business Review Panel Report, chapter 9.1, a preliminary estimate of affected entities and small entities was included in a similar format (a chart with clarifying notes). See Small Business Review Panel Report at 26–27. E:\FR\FM\23AUP2.SGM 23AUP2 VerDate Mar<15>2010 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00172 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.999</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51286 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 4. Projected Reporting, Recordkeeping, and Other Compliance Requirements of the Proposed Rule, Including an Estimate of the Classes of Small Entities Which Will Be Subject to the Requirement and the Type of Professional Skills Necessary for the Preparation of the Report The proposed rule does not impose new reporting requirements. The proposed rule does, however, impose new recordkeeping and compliance requirements on certain small entities. The requirements to integrate the TILA and RESPA disclosures and the imposition of new disclosure requirements under the Dodd-Frank Act, title XIV, appear specifically in the Dodd-Frank Act, while the recordkeeping requirements do not. Thus, to a large extent, the impacts discussed below are impacts of the statute, not of the regulation per se— that is, the Bureau discusses impacts against a pre-statute baseline. a. Reporting Requirements The proposed rule does not impose new reporting requirements. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 b. Recordkeeping Requirements The proposed rule imposes new data retention requirements for the Loan Estimate and the Closing Disclosure by requiring creditors to maintain evidence of compliance in machine readable, electronic format. The proposed retention period is three years for the Loan Estimates and five years for the Closing Disclosures. See part VI above, section-by-section analysis for proposed § 1026.25. i. Benefits to Small Entities A prescribed electronic format may reduce costs across the entire mortgage loan origination industry due to the efficiency gains associated with a standardized data format. Based on industry feedback, the Bureau understands that creditors, mortgage brokers, title companies, investors, and other mortgage technology providers use systems with proprietary data formats. As a result, data must be translated between formats as it is transmitted from one point to another throughout the mortgage loan origination process. A standard format should lower those coordination costs. In addition, a standard format may also facilitate innovation in the financial services industry by making it easier for technology companies to create new programs that improve the mortgage origination process and lower industry costs, instead of tailoring programs to each firm’s unique proprietary data format; may lower ongoing costs by VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 facilitating industry adoption of mortgage documentation technology and reducing industry’s reliance on paper files; and may ease the burden of staff time and resources devoted to onsite supervisory examinations by allowing for remote examinations of compliance. All of these benefits may reduce industry cost and burden in the long run, thereby reducing costs to consumers as well. The Bureau is aware that there are various efforts currently underway to standardize the format for storage and transmission of mortgage origination related data. To the extent that the Bureau’s proposal may advance these efforts toward a standard electronic record format, the proposal may help eliminate multiple data formats, thereby increasing efficiency in the origination process, reducing industry costs in the long term, and reducing costs to consumers. Also, the Bureau is aware that many firms currently face significant internal costs for maintaining multiple internal technological systems. To the extent the Bureau’s efforts reduce uncertainly regarding the eventual standard, a single data format specified by the Bureau may lower costs by enabling creditors to migrate from older data formats to a single, standard data format. ii. Costs to Small Entities The proposed rule may result in costs to small entities. Under current rules, creditors must retain evidence of compliance with the disclosure requirements in Regulation X (i.e., a copy of the RESPA settlement statement) and Regulation Z (i.e., evidence of compliance generally) for five years and two years, respectively, but are not required to maintain such evidence an electronic, machine readable format. 12 CFR 1024.10(e); 1026.25. Based on industry feedback, the Bureau understands that firms currently rely on electronic systems for most aspects of the mortgage loan origination process, including electronic record creation and storage. Not all small creditors currently maintain data in a machine-readable format, however, and those who do may not retain it in the format that may ultimately be adopted. To comply with the proposed record retention provisions, therefore, creditors may be required to reconfigure existing document production and retention systems. For small creditors that maintain their own compliance systems and software, the Bureau does not believe that adding the capacity to maintain data in a standard machine readable format will impose a substantial burden, as the only PO 00000 Frm 00173 Fmt 4701 Sfmt 4702 51287 requirement will be to output existing data to a new format and then store that data. The Bureau believes that the primary cost will be one-time systems changes that could be accomplished at the same time that systems changes are carried out to comply with the new proposed Loan Estimate and Closing Disclosure. Similarly, small creditors that rely on vendors would likely rely on vendor software and systems to comply with the data retention requirement; at least one vendor already offers indefinite data storage to customers that use their web-based compliance tool. The Bureau understands, however, that requiring standardized, electronic records may be a significant burden for small creditors that do not currently have such electronic filing systems or use vendor software. To reduce the burden on small entities, the Bureau is considering an exemption from the electronic data retention requirements. See part VI above, section-by-section analysis for proposed § 1026.25. c. Compliance Requirements The proposal contains both specific proposed provisions with regulatory or commentary language (proposed provisions) as well as requests for comment on modifications where regulatory or commentary language was not specifically included (additional proposed modifications). The analysis below considers the benefits, costs, and impacts of the following major proposed provisions and the additional proposed modifications on small entities: 1. The integration of the initial and closing disclosures (the Loan Estimate and Closing Disclosure, respectively), 2. The definition of application, 3. The disclaimer on pre-application written estimates, 4. Permissible changes to settlement costs and re-disclosure of initial disclosures, 5. Provision of the Closing Disclosure, 6. The definition of the finance charge, and 7. Implementation of new disclosures mandated by the Dodd-Frank Act. The analysis examines the benefits, costs, and impacts of the major provisions of the proposed rule against a pre-statutory baseline. This means that to the extent there are benefits, costs, or other relevant impacts emanating from the relevant provisions of the DoddFrank Act, those are combined with the benefits, costs, and impact of the regulation itself in conducting this analysis. The Bureau has discretion in future rulemakings to choose the most appropriate baseline for that particular rulemaking. E:\FR\FM\23AUP2.SGM 23AUP2 51288 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 The Bureau generally requests comment on the proposed provisions and additional proposed modifications and on the Bureau’s assessment of the benefits, costs, and impacts on small entities of the major proposed provisions and additional proposed modifications. i. Integrated Initial and Closing Disclosures The proposed rule requires that the Loan Estimate be provided to consumers within three business days after receipt of the consumer’s application, to replace the early TILA disclosure and RESPA GFE, and that the Closing Disclosure be provided to consumers at least three business days prior to consummation, to replace the final TILA disclosure and RESPA settlement statement. As discussed above, TILA authorizes the Bureau to publish model forms for the TILA disclosures, while RESPA authorizes the Bureau to require the use of standard forms (e.g., the prescribed RESPA GFE and settlement statement forms). Accordingly, the Bureau is proposing to require the use of standard Loan Estimate and Closing Disclosure forms for mortgage loan transactions that are subject to RESPA, other than reverse mortgages. For transactions that are subject only to TILA, however, the forms would be model disclosures, consistent with the provisions of that statute. The proposed rule also incorporates prior informal guidance regarding compliance with HUD’s 2008 Final RESPA Rule into Regulation Z and official commentary, as necessary and appropriate. Benefits to Small Entities. The integration of the early TILA disclosure and the RESPA GFE, and the revised TILA disclosure and the RESPA settlement statement, may benefit small entities, including small creditors, mortgage brokers, and settlement agents that provide the disclosures. It will reduce the number of disclosures that covered persons need to prepare and provide and the number of disclosureprovision systems and processes that covered persons need to maintain. In addition, the three-page Loan Estimate would replace a three-page RESPA GFE and two-page early TILA disclosure, as well as incorporate other new disclosure requirements in the Dodd-Frank Act that might otherwise be provided separately. Most small entities that participated in the Small Business Review Panel process stated that the integrated forms would make it easier to explain transactions to consumers. One letter from several small entity settlement agents indicated that the new forms VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 could actually lead to more questions during a closing; however, the Bureau is alternatively proposing and soliciting comment on removing from the integrated forms certain disclosures, such as the total interest percentage and costs of funds, which may be difficult to explain to consumers. Information submitted by several settlement agents indicates that requiring the use of standard forms and providing clearer regulatory guidance could save as much as 30 minutes per closing by standardizing practices across lenders and reducing confusion. Based on an industry estimate of a typical hourly wage of a settlement agent of $31 per hour, this translates into a dollar savings from the simplified closing forms of $16.50 per closing. Some portion of these savings would likely be passed on to the consumers. The integrated disclosures also permit creditors to consolidate certain numerical calculations. For example, Regulations Z and X currently require two different calculations for the disclosure of monthly payment information on the early TILA disclosure and the RESPA GFE. The integrated Loan Estimate consolidates these calculations into one monthly payment disclosure, which may facilitate compliance and ease burden on small entities. Other examples of overlapping but potentially different numerical disclosures required under Regulations Z and X include information about balloon payments and prepayment penalties. Costs to Small Entities. The integrated Loan Estimate and the Closing Disclosure would result in certain compliance costs to small entities. The Bureau believes that many of the costs of complying with these requirements would be common across the two disclosures, and therefore discusses them together here. In addition, the Bureau believes that these costs would consist primarily of one-time costs to revise software and compliance systems, as other costs of compliance should not vary significantly from the costs of complying with existing regulations. Small entities would need to adapt their software and compliance systems to produce the new forms. In addition to changing the format of the required forms, the new proposed forms would include several new disclosures that are required by the Dodd-Frank Act. The Bureau believes that this additional information would be added to the forms as part of the process of adapting software and compliance systems to produce the new forms, and therefore does not provide separate estimates for the costs of this additional information. PO 00000 Frm 00174 Fmt 4701 Sfmt 4702 Based on information provided by creditors and by software vendors, the Bureau believes that, in general, small creditors primarily rely on software and compliance systems provided by outside vendors. Based on industry feedback, the Bureau believes that that 95 percent of creditors outside the top 20 rely on vendors, and it is likely the case that the percentage of small creditors using vendors is even higher than this. The use of vendors by small creditors will substantially mitigate the costs of revising software and compliance systems, as the efforts of a single vendor would address the needs of a large number of creditors. Based on discussions with a leading mortgage origination technology provider, the Bureau believes that these updates would likely be included in regular annual updates, and therefore the costs would not be directly passed on to the client creditors. More than 95 percent of small creditors, therefore, would not pay directly for software updates to comply with the new rules. Based on small entities that participated in the Small Business Review Panel process, the Bureau estimates that smaller creditors that maintain their own compliance software and systems would incur costs of roughly $100,000 to determine what changes need to be made and to update their systems to comply with the proposal.224 The total cost for these smaller creditors that maintain their own compliance software and systems is therefore $100,000*9,807*5%=$49,000,000 (rounded to the nearest $100,000). As noted above, the share of small entities that maintain their own compliance software and systems is likely less than five percent, so this is likely an overestimate of the costs of revising these systems. Covered persons would incur onetime costs associated with training employees to use new forms and any new compliance software and systems. The Bureau estimates that each loan officer or other loan originator will need to receive two hours of training, and that one trainer would be needed for each ten trainees. Assuming the same ratio of loan officers to originations at small creditors as for the industry as a whole, the Bureau estimates that there are 20,000 loan officers that would need training at these institutions.225 Based 224 Small entities that participated in the Small Business Review Panel process provided a wide range of estimates. See Small Business Review Panel Report at 17–20. 225 Originations estimates based on analysis of HMDA, SNL Call Reports, NCUA Call Reports, and NMLS Call Reports. E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 on data from the Bureau of Labor Statistics, the Bureau estimates that the average total compensation is $46 per hour for a loan officer and $39 per hour for a trainer, for a total training cost of (20,000*2*$46)+(2,000*2*$39) = $2,000,000 (rounded to the nearest 100,000). Taken together, the Bureau estimates that the total one-time costs for small entities of complying with the proposed Loan Estimate and Closing Disclosure would be roughly $51,000,000. As discussed above, firms are expected to amortize this cost over a period of years and in this analysis all costs are amortized over five years, using a simple straight-line amortization. Amortizing this one-time cost of compliance over five years yields an annual cost of $10,200,000. The Bureau estimates that these creditors made roughly 1.4 million originations in 2010. The estimated annualized one-time cost is therefore less than $8 per origination. ii. Definition of Loan Application The proposed rule revises the regulatory definition of loan application to encourage earlier provision of the Loan Estimate to consumers. Under TILA and RESPA, a creditor or mortgage broker is not required to provide the good faith estimates of loan terms and settlement costs in the early TILA disclosure and RESPA GFE until it has received an ‘‘application.’’ As discussed more fully in part VI above, section-by-section analysis for proposed § 1026.2(a)(3), under current regulations, the receipt of the following information by the creditor or mortgage broker constitutes receipt of an ‘‘application’’: (1) Borrower’s name; (2) monthly income; (3) social security number to obtain a credit report; (4) the property address; (5) an estimate of the value of the property; (6) loan amount sought; and (7) any other information deemed necessary by the lender. The seventh item could allow creditors and mortgage brokers to delay providing the integrated Loan Estimate until relatively late in the loan process by delaying collection of information deemed ‘‘necessary.’’ The Bureau understands that some creditors currently provide non-binding written estimates of loan terms or settlement charges prior to issuing the early TILA disclosure or RESPA GFE. The current rules encourage creditors and mortgage brokers to provide the good faith estimates early in the loan process by prohibiting creditors from collecting any fees from a consumer (other than a credit report fee) until the estimates are provided. To further encourage early provision of estimates, the proposed VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 rule removes the seventh item (‘‘any other information deemed necessary by the lender’’) from the definition of ‘‘application.’’ Costs to Small Entities. The Bureau understands that eliminating creditors’ and mortgage brokers’ ability to wait to provide a good faith estimate until after they receive ‘‘any other information deemed necessary’’ could increase the burden on small creditors and mortgage brokers to the extent that it causes them to issue more Loan Estimates than they would under the current definition of application. If a creditor or mortgage broker obtains additional information from the consumer after the Loan Estimate has been issued that affects the costs of the settlement service for the loan, the creditor may need to issue a revised Loan Estimate. The Bureau is unaware of information that would allow it to estimate how often this would occur. The Bureau believes, however, if this were to impose substantial costs, creditors and mortgage brokers would mitigate this by adjusting their business practices surrounding the receipt of applications to gather other important information prior to, or at the same time as, they obtain the six items that together constitute an ‘‘application.’’ As discussed in part VII.F, above, the Bureau is working to obtain such data prior to issuing a final rule and is seeking comment on its plans for data analysis, as well as additional data and comment relevant to this issue. iii. Disclaimer on Pre-Application Estimates The Bureau is proposing to require that any pre-application, consumerspecific written estimate of loan terms or settlement charges contain a prominent disclaimer indicating that the document is not the Loan Estimate required by TILA and RESPA. This requirement would not apply to general advertisements. Costs to Small Entities. To the extent small creditors and mortgage brokers currently provide such pre-application written estimates to consumers they would bear the costs of adding a disclaimer to those communications. However, the Bureau expects such costs to be de minimis since the Bureau is proposing a brief, standard statement for use by creditors, which should not require significant redesign of existing estimate materials or require additional pages. iv. Changes in Settlement Costs/ Redisclosures The proposed rule revises current rules regarding the circumstances in PO 00000 Frm 00175 Fmt 4701 Sfmt 4702 51289 which a consumer may be charged more at closing for settlement services than the creditor estimated in the disclosure provided to the consumer three business days after application. As discussed more fully in part VI, section-by-section analysis for proposed § 1026.19(e)(3), HUD’s 2008 RESPA Final Rule limits the circumstances in which a creditor can charge the consumer more at consummation for settlement services than the creditor estimated in the RESPA GFE provided to the consumer three business days after application. These rules generally place charges into three categories: the creditor’s charges for its own services, which cannot exceed the creditor’s estimates unless an exception applies (‘‘zero tolerance’’); charges for settlement services provided by third parties, which cannot exceed estimated amounts by more than ten percent unless an exception applies (‘‘ten percent tolerance’’); and other charges that are not subject to any limitation on increases (‘‘no tolerance’’). The rule permits certain limited exceptions in which higher charges are permitted, such as when the consumer requests a change, when the RESPA GFE expires, or when valid changes in circumstance occur. The Bureau is aware of concerns that HUD’s 2008 RESPA Final Rule is both too lax and too restrictive, and also that the rule is difficult to understand. The proposed rule attempts to address these concerns by balancing the objective of improving the reliability of the estimates creditors give consumers shortly after application with the objective of preserving creditors’ flexibility to respond to unanticipated changes that occur during the loan process. Specifically, the proposed rule applies the zero tolerance category to a larger range of charges, including fees charged by an affiliate of the creditor and charges for services for which the creditor does not permit the consumer to shop. A service provider would be considered selected by the creditor if consumers are required to choose only from a list of service providers prepared by the creditor (i.e., if consumers are not permitted to shop for their own provider). For a sense of the scale of the potential impact, it is worth considering an extreme hypothetical example where all of the settlement services move from the ten percent tolerance category to the zero tolerance category. This is unlikely to happen in practice, but illustrates the largest possible effect of the regulatory change. For a loan with a total of $3,000 in settlement costs the maximum effect of the proposal would be that the creditor could not pass on $300 in cost E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51290 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules increases that occurred without an exception allowing the increase to be passed on the consumers. Benefits to Small Entities. Small entities may benefit from the proposed rule because it reduces compliance burden by resolving current regulatory ambiguities. For example, the proposed rule makes clear that creditors need not reissue Loan Estimates unless and until the costs that are subject to the ten percent tolerance standard increase based on valid changes in circumstance by more than ten percent in total. The proposed rule also revises the rule and provides more guidance to facilitate use of average cost pricing and reconciles certain inconsistences between RESPA and TILA terminology. The proposed rule further streamlines and clarifies HUD’s 2008 RESPA Final Rule by incorporating prior HUD guidance into Regulation Z and its commentary, as necessary and appropriate. Further, to the extent the proposed rule reduces unnecessary redisclosure of the RESPA content currently provided on the GFE, the rule would decrease costs to creditors, although the extent to which the proposed rule would have such an effect is unknown. Reducing unnecessary redisclosure may also benefit consumers, to the extent that redisclosures lead to consumer confusion. The Bureau is not aware of reliable data showing how often creditors are providing additional disclosures that are not required by the current rule and that they would no longer send if the rules are clarified. As discussed in part VII.F, above, the Bureau is working to obtain such data prior to issuing a final rule and is seeking comment on its plans for data analysis, as well as additional data and comment relevant to this issue. Some creditors, however, have reported that additional clarity regarding redisclosure requirements for the RESPA GFE and average cost pricing would reduce the cost of compliance, in part, by reducing confusing over when redisclosure is permitted or required, and thereby reducing the need for legal advice. Costs to Small Entities. The Bureau understands that small entities may experience increased costs as a result of the proposal to apply the zero tolerance category to a larger range of charges. Since the proposed rule would expand the circumstances in which creditors could not pass increased costs to consumers when the initial estimate is lower than the actual costs but there is not a legitimate change in circumstances or other exception, creditors may be required to absorb more costs. This impact should be mitigated to the extent VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 creditors are in a position to know the typical charges of affiliated firms and firms they engage repeatedly and require consumers to use, and can therefore provide estimates that are accurate when there is no changed circumstance. As discussed above, the Bureau is unaware of any data that can provide reliable market-wide estimates of the prevalence of changes between early TILA disclosures and RESPA GFEs and final loan terms and closing costs, and the causes of those changes. Therefore, the Bureau cannot provide estimates of how often creditors would have to absorb higher than expected costs that cannot be attributed to a changed circumstance. As discussed above, however, even in circumstances where settlement costs increase substantially and the creditor is unable to pass those charges on to the consumer, the difference between a ten percent tolerance and a zero tolerance will be limited. The Bureau also understands that the proposed rule may result in increased use of affiliated service providers, so that creditors can more directly control changes in settlement costs, which could have a negative impact on independent providers who are typically small entities. Some have argued that the negative impact on independent providers could lead to reduced competition for settlement services and ultimately higher costs. The Bureau is unaware of any evidence to suggest that costs are likely to increase in this way. Alternatively, the proposed rule may encourage creditors to allow consumers to choose settlement service providers that are not on a list provided to the consumer (although in this case the creditor would be required to provide consumers with a list of settlement service providers that the consumers could use, if they so choose), so that the zero tolerance requirement would not apply. This would appear to benefit independent service providers, or at least be neutral relative to current practices. v. Provision of Closing Disclosure The proposed rule requires delivery of the integrated Closing Disclosure three business days before consummation in all cases. However, the Bureau is proposing two alternative approaches for assigning responsibility for providing the integrated Closing Disclosure to the consumer. Alternative 1 places sole responsibility for provision of the Closing Disclosure on the creditor, while Alternative 2 makes the creditor and settlement agent jointly responsible for providing the Closing Disclosure. PO 00000 Frm 00176 Fmt 4701 Sfmt 4702 Timing of Closing Disclosure Provision TILA and RESPA establish different timing requirements for disclosing final loan terms and costs to consumers. As discussed more fully in part VI above, section-by-section analysis for proposed § 1026.19(f), TILA generally provides that, if the early disclosures contain an APR that is no longer accurate, the creditor shall furnish an additional, corrected disclosure to the consumer not later than three business days before consummation. RESPA, on the other hand, requires that the final statement of loan costs and terms is provided to the consumer at or before settlement. To meet the Dodd-Frank Act’s mandate to integrate the disclosures required by TILA and RESPA, and to better facilitate consumer understanding of the costs, the proposed rule would require delivery of the integrated Closing Disclosure three business days before closing in all circumstances. However, to prevent unnecessary closing delays, the proposed rule would permit limited changes after provision of the Closing Disclosure to reflect common adjustments, such as changes to recording fees. In addition, reissuance of the Closing Disclosure and an additional three-business day waiting period would not be required if, during the three business days after issuance of the Closing Disclosure, the amount needed to close shown on the Closing Disclosure increases by $100 or less. Costs to Small Entities. The proposal to require provision of the Closing Disclosure three business days prior to consummation in all circumstances may result in closing delays. In extreme cases, such delays could cause a transaction to fall through if a consumer is under a contractual obligation to close by a certain date. Creditors and closing agents, however, currently coordinate to provide RESPA closing documents at closing. Both closing agents and creditors would have incentives to complete closings as scheduled, and therefore the Bureau believes that they would adjust their business practices such that the Closing Disclosure could be provided in a timely manner and closing problems would be infrequent. If the requirement does lead to delayed or canceled closings, this would impose costs on small entities. Such closing delays could result in loss of revenue for transactions that fall through due to a delay. The proposed rule may also create legal and reputational risks for creditors or settlement agents that are unable to close loans as planned. E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules Responsibility for Providing the Closing Disclosure mstockstill on DSK4VPTVN1PROD with PROPOSALS2 TILA and RESPA require that different parties provide the final disclosures to consumers. Specifically, TILA requires the creditor to provide the TILA disclosures to consumers, while RESPA requires that the person conducting the settlement provide the final statement of settlement costs to the consumer. However, section 1419 of the Dodd-Frank Act amended TILA to make creditors responsible for disclosing settlement cost information. See TILA section 128(a)(17). To reconcile these statutory differences and implement TILA section 128(a)(17), the Bureau is proposing two alternative approaches for assigning responsibility for provision of the integrated Closing Disclosure to consumers. Under Alternative 1, the creditor would be solely responsible for delivering the Closing Disclosure to the consumer. Under Alternative 2, the creditor and settlement agent would be jointly responsible for providing the consumer with an integrated Closing Disclosure three business days before closing. Benefits to Small Entities. Because the difference between Alternatives 1 and 2 is about which party would be responsible for providing a disclosure, the relative benefits of each proposal to different small entities are likely to consist of avoided costs. The most useful way to consider these alternatives, therefore, is to consider their respective costs. Costs to Small Entities—Alternative 1. Alternative 1 would likely place increased costs on creditors, including small creditors. As discussed above, RESPA and current Regulation X require that the person conducting the settlement provide the RESPA-required disclosures to consumers at or before consummation. Since, under Alternative 1, the creditor would be responsible for provision of both the TILA and RESPA content to the consumer, the creditor would incur additional logistical burden and legal risk.226 Small creditors and 226 As described in part VII, above, two major vendors currently provide software services to the vast majority of small mortgage originators to produce the RESPA GFE and initial TILA disclosures. RESPA settlement statements are currently issued by settlement agents using software provided a different, but similarly small, set of vendors; however, the Bureau understands that the originators’ systems are capable of producing the RESPA settlement statements. As a result, the Bureau believes that it is reasonable to measure costs assuming that the originators’ vendors will provide both the Loan Estimate and the Closing Disclosure to their clients under existing contracts. Were the current software providers for settlement agents to have to update their systems (under the second alternative or under other contractual VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 settlement agents may incur one-time legal fees under Alternative 1, since those entities may need to contractually stipulate their respective duties or amend existing contractual arrangements in light of the rule. Small creditors may also need to hire additional staff to handle the increased workload associated with collecting the settlement costs and coordinating with the settlement agents and third party service providers and preparing the disclosures. Since the current regulatory scheme of split responsibility, as well as the different roles of creditors and settlement agents in the transaction, already requires a great deal of coordination, it is not clear that giving the creditor sole responsibility for providing the disclosures would impose much additional burden. As a general matter, shifting responsibility for delivery of final RESPA disclosures from settlement agents to creditors may change the role of settlement agents, though the exact impact of such a rule is unclear. Settlement agents play a unique role in working through local real estate transaction requirements and practices, which creditors may be unlikely to take on. Costs to Small Entities—Alternative 2. The costs to creditors and to settlement agents under the proposed alternative that gives joint responsibility for provision of the Closing Disclosure to creditors and settlement agents would depend on how creditors and settlement agents go about fulfilling the joint requirement. Joint provision would likely require coordination on the part of creditors and settlement agents similar to what is done today. One additional cost, however, may entail reworking that coordination to adjust to the new forms and timing requirement (discussed above). vi. Expanded Definition of Finance Charge The proposed rule expands the definition of the finance charge for closed-end transactions secured by real property or a dwelling, consistent with the Board’s 2009 Closed-End Proposal. As discussed more fully in part VI above, section-by-section analysis for proposed § 1026.4, TILA and current Regulation Z exclude many types of charges from the finance charge, particularly for mortgage transactions. Concerns have long been raised that these exclusions undermine the potential usefulness of the finance charge and corresponding APR as a tool for consumers to compare the total cost arrangements), those vendors would have to incur the stated costs. PO 00000 Frm 00177 Fmt 4701 Sfmt 4702 51291 of one loan to another. In addition, these exclusions create compliance burden and litigation risk for creditors and may encourage creditors to shift the cost of credit to excluded fees, a practice that is inefficient. The Bureau recognizes that the proposed more inclusive finance charge could affect coverage under other laws, such as such as higher-priced mortgage loan and HOEPA protections, and that a more inclusive finance charge has implications for the HOEPA, Escrows, Appraisals, and Ability to Repay rulemakings identified in part II.F above. Absent further action by the Bureau, the more inclusive finance charge would: • Cause more closed-end loans to trigger HOEPA protections for high-cost loans.227 The protections include special disclosures, restrictions on certain loan features and lender practices, and strengthened consumer remedies. The more inclusive finance charge would affect both the points and fees test (which currently uses the finance charge as its starting point) and the APR test (which under Dodd-Frank will depend on comparisons to APOR) for defining what constitutes a high-cost loan. • Cause more loans to trigger DoddFrank Act requirements to maintain escrow accounts for first-lien higherpriced mortgage loans. Coverage depends on comparing a transaction’s APR to the applicable APOR. • Cause more loans to trigger DoddFrank Act requirements to obtain one or more interior appraisals for ‘‘higherrisk’’ mortgage loans. Coverage depends on comparing a transaction’s APR to the applicable APOR. • Reduce the number of loans that would otherwise be ‘‘qualified mortgages’’ under the Dodd-Frank Act Ability to Repay requirements, given that qualified mortgages cannot have points and fees in excess of three percent of the loan amount. Also, more loans could be required to comply with separate underwriting requirements applicable to higher-priced balloon loans, and could be ineligible for certain exceptions authorizing creditors to offer prepayment penalties on fixed-rate, non-higher-priced qualified mortgage loans.228 Again, status as a higher227 See part VII.D.7 above, for a detailed description of the potential effects of an expanded finance charge on the HOEPA rulemaking. 228 Specifically, the Dodd-Frank Act generally prohibits prepayment penalties on closed-end, dwelling-secured mortgage loans, except on fixedrate qualified mortgages that are not higher-priced mortgage loans. For balloon loans, the Dodd-Frank Act generally requires creditors to assess E:\FR\FM\23AUP2.SGM Continued 23AUP2 51292 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 priced mortgage loan depends on comparing APR to APOR. As discussed above in part VI, section-by-section analysis for proposed § 1026.4 and in part VII, the Bureau is seeking data to model the impact of the more expansive definition of finance charge on coverage of each of these regulatory regimes or the impact of potential modifications that the Bureau could make to the triggers to more closely approximate existing coverage levels.229 The Bureau is working to obtain such data prior to issuing a final rule and is seeking comment on its plans for data analysis, as well as additional data and comment on the potential impacts of a broader finance charge definition and potential modifications to the triggers. The Board previously proposed to address these effects by adopting an adjusted points and fees definition and a new metric for determining coverage under APR thresholds, known as the ‘‘transaction coverage rate’’ (TCR). The TCR would be based on a modified prepaid finance charge that would include only finance charges retained by the creditor, mortgage broker, or their affiliates, and would therefore more closely approximate existing coverage levels than a more inclusive finance charge. See 76 FR 27390, 27411–12 (May 11, 2011); 76 FR 11598, 11608–09 (Mar. 2, 2011); 75 FR 58539, 58660–61 consumers’ ability to repay a higher-priced loan with a balloon payment using the scheduled payments required under the terms of the loan including any balloon payment, and based on income and assets other than the dwelling itself. Only consumers with substantial income or assets would likely qualify for such a loan. A separate Dodd-Frank Act provision authorizing balloon loans made by creditors that operate predominantly in rural or underserved areas is not affected by the finance charge issue. 229 In its 2009 proposal, the Board relied on a 2008 survey of closing costs conducted by Bankrate.com that contains data for hypothetical $200,000 loans in urban areas. Based on that data, the Board estimated that the share of first-lien refinance and home improvement loans that are subject to HOEPA would increase by .6 percent if the definition of finance charge was expanded, and that the share of first-lien loans in the range of typical home purchases or refinancings ($175,000 to $225,000) that qualified as higher-priced mortgage loans would increase by 3 percent. The Board also looked at the impact on two states and the District of Columbia because their anti-predatory lending laws had triggers below the level of the historical HOEPA APR threshold, which is benchmarked to U.S. Treasury securities. The Board concluded that the percentage of first-lien loans subject to those laws would increase by 2.5 percent in the District of Columbia and 4.0 percent in Illinois, but would not increase in Maryland. The Bureau is considering the 2010 version of the Bankrate.com survey, but as described in this notice, the Bureau is also seeking additional data that would provide more representative information regarding closing and settlement costs that would allow for a more refined analysis of the proposals. VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 (Sept. 24, 2010).230 The Bureau has incorporated these measures into its 2012 HOEPA Proposal, and is seeking comment both in that proposal and this rulemaking on additional trigger modifications that could approximate coverage levels under the existing definition of finance charge, such as adjusting the numeric percentage point triggers for APR under HOEPA or other regimes. If the adjusted points and fees definition, the TCR, or other trigger modifications were adopted in the other rules, the more inclusive finance charge definition would have little or no effect on coverage under those rules although there might still be effects from the expanded definition of finance charge on the coverage of various State mortgage laws and regulations. In addition, because the TCR excludes fees to unaffiliated third parties, the TCR might result in some loans not triggering one or more of the regulatory regimes discussed above that would qualify under an APR threshold using the current definition of finance charge.231 The discussion of the costs and benefits of a more inclusive definition of finance charge, below, assumes that the Bureau does not adopt the adjusted points and fees definition, the TCR, or other methods of addressing the impact of a more inclusive approach to the finance charge in the other rulemakings. If the Bureau does adopt those measures, the effects of the proposed definition of finance charge would be muted. For instance, the benefits of a simpler APR calculation may be lessened if creditors are required to use different metrics for purposes of disclosure and for determining coverage under various regulatory regimes, although as discussed below with regard to transaction coverage rate both metrics would be easier to calculate than APR using the existing definition of finance 230 The wording of the Board’s proposed definition of ‘‘transaction coverage rate’’ varied slightly between the 2010 Mortgage Proposal and the 2011 Escrows Proposal as to treatment of charges retained by mortgage broker affiliates. In its 2012 HOEPA Proposal, the Bureau proposes to use the 2011 Escrows Proposal version, which would include charges retained by broker affiliates. 231 As discussed above in part VI, section-bysection analysis for proposed § 1026.4, the Bureau believes that the margin of differences between the TCR and current APR is significantly smaller than the margin between the current APR and the APR calculated using the expanded finance charge definition because relatively few third-party fees would be excluded by the TCR that are not already excluded under current rules. The Bureau is considering ways to supplement the data analysis described above to better assess this issue, and seeks comment and data regarding the potential impacts of the TCR relative to APR calculated using the current and proposed definitions of finance charge. PO 00000 Frm 00178 Fmt 4701 Sfmt 4702 charge. In addition, the effects (both benefits and costs) through expanded coverage of those other rules would be eliminated or (in the case of TCR) somewhat reduced. Benefits to Small Entities The proposed rule may benefit small entities by easing regulatory burden and litigation risk associated with the current complex rules for determining which fees are part of the finance charge. Because the current rules for determining which fees are part of the finance charge are complicated and unclear, creditors will benefit from a simpler, more inclusive definition. In particular, feedback received by the Bureau and comments on a similar proposal issued by the Board in the 2009 indicate that, because a failure to calculate the finance charge and the APR accurately gives rise to the right of rescission, creditors incur substantial compliance costs attempting to make accurate calculations and incur substantial litigation costs defending against claims of inaccurate calculations. Costs to Small Entities To comply with the proposed rule, small entities may be required to update compliance systems to reflect changes to the finance charge calculation. These updates may involve one-time costs associated with software updates, legal expenses, and personnel training time. As discussed above, if the Bureau adopts the proposal, it expects to provide an implementation period that would coincide either with implementation of the disclosure modifications or with implementation of certain changes to coverage of HOEPA and other regulatory regimes that would be affected by the change in definition. Accordingly, the Bureau believes that software changes and other expenses would be incurred as part of the overall software and compliance system revisions required to comply with the other simultaneous changes, and therefore would not impose a substantial additional burden. As discussed above, the proposed rule if it were implemented without modifications to the triggers for various regulatory regimes might cause more loans to cross Federal and State high cost or high priced loan thresholds based on APR or points and fees. With respect to the HOEPA and Appraisals rulemakings, creditors may incur costs associated with generating and providing HOEPA and appraisal disclosures for additional loans. Creditors may incur additional costs in the context of the Appraisals E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 rulemaking because the Dodd-Frank Act prohibits creditors from charging consumers for second appraisals conducted in connection with certain properties that have been sold in the last 180 days. Similarly, in the context of the Escrows rulemaking, creditors may incur costs associated with maintaining escrow accounts on more transactions if not subject to other exceptions provided by the Dodd-Frank Act. With respect to the Ability to Repay rulemaking, creditors may incur costs associated with making fewer loans with prepayment penalties, or may incur costs from the additional underwriting requirements and/or liability associated with making more loans that are higherpriced balloon loans or that are not qualified mortgages. In addition, a small number of creditors may also lose a very small fraction of revenue if they are reluctant to make high-cost, higher-priced, or higher-risk mortgage loans and cannot offer alternatives that are as profitable as those loans. As discussed in more detail in the 2012 HOEPA Proposal, modifying the triggers would require some one-time implementation costs and would create some additional compliance complexity if creditors must use different metrics for disclosure purposes and for determining coverage under particular regulatory regimes. However, with regard to the transaction coverage rate, the Bureau believes that such impacts would be addressed by the fact that both TCR and APR using the expanded definition of finance charge would be easier to calculate than APR under the current definition. On balance, the Bureau believes adoption of the proposed trigger modifications would reduce the economic impacts on small entities of the more expansive definition of finance charge. vii. Implementation of New Disclosures Mandated by the Dodd-Frank Act The proposed rule exempts creditors temporarily from compliance with certain new disclosure requirements added to TILA and RESPA by the DoddFrank Act until the TILA–RESPA rule takes effect. As discussed more fully in part V.B, above, title XIV of the Dodd-Frank Act adds new disclosure requirements to TILA and RESPA for mortgage transactions. Although the Dodd-Frank Act does not specifically require inclusion of all of these new disclosures in the Loan Estimate and the Closing Disclosure, the Bureau believes these disclosures should be included in the integrated forms because doing so would improve the overall effectiveness VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 of the integrated disclosure, which may benefit consumers and covered persons, and also reduce burden on covered persons. Finalizing the rules implementing these title XIV disclosures simultaneously with the final TILA–RESPA rule would avoid unnecessary regulatory burden by preventing creditors from having to implement multiple rounds of disclosure rules. The Bureau does not anticipate additional costs to covered persons as a result of delayed implementation of the new disclosure requirements, although, as noted above, small entities may incur additional recurring costs associated with calculating and disclosing this additional information to consumers once the implementing rules take effect. viii. Costs Associated with Reviewing the Regulation Small entities will need to learn about the requirements of the regulation and determine what changes to their business practices they would be required to make to come into compliance. These costs will vary considerably across institutions, depending on the size and complexity of their operations. In addition, some firms will rely on their own staff to conduct this analysis, while others will rely on outside counsel, industry sources, or compliance firms. Firms that use compliance systems provided by outside vendors, especially smaller creditors, will likely rely in large part on those vendors to determine what changes they need to make, reducing the burden on those creditors. d. Estimate of the Classes of Small Entities Which Will Be Subject to the Requirement and the Type of Professional Skills Necessary for the Preparation of the Report or Record Section 603(b)(4) of the RFA requires an estimate of the classes of small entities which will be subject to the requirement. The classes of small entities which will be subject to the recordkeeping and compliance requirements of the proposed rule are the same classes of small entities that are identified above in part VIII.B.3. Section 603(b)(4) of the RFA also requires an estimate of the type of professional skills necessary for the preparation of the reports or records. The Bureau does not anticipate that, except in certain rare circumstances, any professional skills will be required for recordkeeping and other compliance requirements of this proposed rule that are not otherwise required in the ordinary course of business of the small entities affected by the proposed rule. PO 00000 Frm 00179 Fmt 4701 Sfmt 4702 51293 Part VIII.B.4.b and 4.c summarize the recordkeeping and compliance requirements of the proposed rule that would affect small entities. With regard to the proposed recordkeeping requirements, the SERs reported that they generally use vendorsupplied computer systems to prepare the TILA and RESPA disclosures and retain scanned images of those disclosures electronically, but they do not retain those records in a machine readable format.232 As discussed above, however, the Bureau believes that vendors will update their software and provide small creditors with the ability to retain the required data. The one situation in which a small entity would require professional skills that are not otherwise required in the ordinary course of business would be if a small creditor does not use computerized systems to store loan information and therefore will either need to hire staff with the ability to implement a machine-readable data retention system or contract with one of the vendors that provides this service. With regard to the proposed compliance requirements, as discussed above, the Bureau understands that, based on feedback from the SERs, the small entities that will be affected by the proposed rule will continue to perform the basic functions that they perform today: generating disclosure forms (and answering consumers’ questions about them), taking loan applications, redisclosing estimates of settlement costs, providing final disclosures, maintaining recordkeeping systems that store documents electronically (but not necessarily in a machine readable format), and maintaining systems to calculate the APR. The major elements of the proposed rule, described earlier in this part VIII, relate to these continuing functions. Therefore, the Bureau believes that small entities will have the professional skills necessary to comply with the proposed rule. Specifically with regard to the requirement to use the integrated disclosure forms, the SERs identified potentially significant one-time costs associated with changing software systems to produce the forms and provided a wide range of estimates of one-time costs of training staff and related parties to use the new integrated forms and update systems and processes.233 The SERs also reported that they typically contract out to third party software vendors the design of the disclosure forms provided to consumers, and pay annual fees to such 232 See 233 See E:\FR\FM\23AUP2.SGM Small Business Review Panel Report at 25. id. at 18. 23AUP2 51294 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 vendors for upgrades. The SERs did not express any concerns that the design and implementation of the forms or the use of the integrated disclosure forms on an ongoing basis would require their staff to possess a different set of professional skills than that required in the ordinary course of business currently. Furthermore, while the SERs identified potential upfront and ongoing training costs as a result of the proposals under consideration at the time, the Bureau believes efforts to train small entity staff on the updated software and compliance systems would be reinforcing existing professional skills sets above those needed in the ordinary course of business and to comply with HUD’s 2008 Final RESPA Rule (which, as discussed above, significantly overhauled the design and content of the RESPA GFE and settlement statement disclosures given to consumers). In addition, although the Bureau acknowledges the possibility that certain small entities may have to hire additional staff as a result of certain aspects of the proposed rule, the Bureau has no evidence that such additional staff will have to possess a qualitatively different set of professional skills than small entity staff employed currently. The Bureau presumes that additional staff that small entities may need to hire would generally be of the same professional skill set as current staff. For example, if the Bureau were to adopt the Alternative 1 proposal regarding responsibility for who provides the Closing Disclosure (i.e. making creditors responsible), small creditors may need to hire additional staff to handle the increased work load resulting from the reallocation of existing responsibilities between creditors and settlement agents. As a more general matter, to the extent the proposed rule adds new disclosures that will need to be generated and explained to consumers, the Bureau anticipates that any incremental increase in the complexity of such tasks for small entity staff will be counterbalanced by the regulatory streamlining and clearer guidance provided by the proposed rule. 5. Identification, to the Extent Practicable, of All Relevant Federal Rules which May Duplicate, Overlap, or Conflict with the Proposed Rule. The proposed rule is intended to consolidate the overlapping and, in some cases, duplicative mortgage disclosure regulations under TILA and RESPA into a single set of requirements and to resolve conflicts between the two. The Bureau is not aware of any other Federal regulations that currently VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 duplicate, overlap, or conflict with the proposed rule. However, the Bureau is currently developing other proposed or final rules required by title XIV of the Dodd-Frank Act, including rules addressing abilityto-pay standards for qualified mortgages, mortgage loan originator compensation, mortgage loans subject to HOEPA, mortgage servicing, and appraisal practices. As discussed above, the Bureau is aware of concerns that aspects of the proposed rule could affect the Bureau’s rulemakings concerning HOEPA, Escrows, Appraisals, and Ability-to-Repay. In particular, some SERs expressed concern that an unintended consequence of a more inclusive approach to the finance charge could be that more loans would qualify as high-cost loans subject to additional requirements under HOEPA or similar State statutes that use the finance charge or the APR as a trigger.234 As a result, the SERs generally requested that the Bureau adjust these thresholds, to the extent possible, to account for the more inclusive finance charge. In response to this feedback, the Panel recommended in the Small Business Review Panel Report that, before issuing a final rule, the Bureau consider the impact of the more inclusive finance charge on its other rulemakings, and that it adopt any alternatives or adjustments in the final rule or the Bureau’s other rulemakings that would reduce burden on small entities while still accomplishing the goals of the more inclusive finance charge. Based on this feedback and consistent with the Small Business Review Panel’s recommendation, the Bureau has considered the requirements of TILA section 129 (high-cost mortgages) and TILA section 129C (qualified mortgages), including the Dodd-Frank Act amendments to those provisions, as well as State predatory lending laws, in proposing the amendments to § 1026.4. For example, the Board previously proposed two means of reconciling an expanded definition of the finance charge with existing thresholds for loan APR and points and fees. The Bureau believes that it is helpful to analyze any threshold adjustments on a rule-by-rule basis, so in addition to seeking general comment in this rulemaking it has incorporated these adjustments into its 2012 HOEPA Proposal and is seeking comment on additional adjustments that could approximate coverage levels under the existing definition of finance charge, such as adjusting the numeric 234 The Bureau acknowledged this possible effect in the Small Business Review Panel Outline. PO 00000 Frm 00180 Fmt 4701 Sfmt 4702 percentage point triggers for APR under HOEPA. The Bureau will consider any final or proposed rules implementing the regulatory regimes that rely on APR and points and fees triggers prior to issuing a final rule on definition of finance charge. As discussed above, the Bureau believes that it would be preferable to make any change to the definition of finance charge and any related adjustments in regulatory triggers take effect at the same time, in order to provide for consistency and efficient systems modification, and is seeking comment on the best sequencing for implementation periods in light of the related rulemakings. In addition, title XIV of the DoddFrank Act amends TILA and RESPA to add new disclosures that must be provided in the Loan Estimate or Closing Disclosure (e.g., disclosure of escrow payment amounts and aggregate settlement charges). In addition, title XIV adds other new mortgage disclosure requirements (e.g., warnings regarding negative amortization and State antideficiency laws). Although the DoddFrank Act does not specifically mandate inclusion of these new disclosures in the Loan Estimate and Closing Disclosure, the Bureau is proposing that, to avoid duplication, overlaps, and conflicts, these new disclosures be included in the integrated forms. See part V.B above for further discussion. 6. Description of Any Significant Alternatives to the Proposed Rule which Accomplish the Stated Objectives of Applicable Statutes and Minimize Any Significant Economic Impact of the Proposed Rule on Small Entities. a. Initial and Final Disclosures As noted above, under the proposed rule, the Loan Estimate would be provided to consumers within three business days after application and replace the early TILA disclosure and RESPA GFE, and the Closing Disclosure would be provided to consumers at least three business days prior to the closing of the loan transaction and replace the final TILA disclosure and RESPA settlement statement. In the Small Business Review Panel Report, the Panel made a number of recommendations regarding the Loan Estimate and Closing Disclosure that could potentially reduce the impact of the proposed rule on small entities, while accomplishing the stated objectives of applicable statutes. i. Prototype Forms As discussed in the Small Business Review Panel Report, on the whole, the E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 SERs strongly preferred the Bureau’s prototype integrated disclosure forms to the current TILA and RESPA disclosure forms, but expressed concerns about the one-time costs and ongoing costs associated with generating the prototype integrated forms. In particular, the SERs anticipated significant one-time software upgrade and training costs, though their estimates varied greatly. (These costs are described in greater detail in part VIII.B.4.c.i, above.) SERs generally stated that these costs would be less burdensome if the Bureau provided a substantial compliance period to upgrade systems and to train staff, but SERs requested a variety of periods. The Panel recommended that the Bureau provide a compliance period that permits sufficient time for small entities to make necessary system upgrades and provide training, and that the Bureau solicit public comment on the amount of time needed for such upgrades and training. In part V.A, above, the Bureau discusses the mandatory compliance period for the proposed rule and notes that, although Bureau wishes to make the rule effective as soon as possible because it will provide important benefits to consumers, the Bureau understands that the final rule will require lenders, mortgage brokers, and, under Alternative 2 regarding provision of the Closing Disclosure, settlement agents to make extensive revisions to their software and to retrain their staff. The Bureau is seeking comment on how much time industry needs to make these changes, and specifically requests details on the required updates and changes to systems and other measures that would be required to implement the rule and the amount of time needed to make those changes. Furthermore, with respect to small entities, the Bureau is following the Panel’s recommendation and soliciting comment on whether small entities affected by the rule should have additional time to comply with the final rule. ii. Testing As discussed in the Small Business Review Panel Report, the SERs suggested that the prototype forms could be further improved through testing on actual loan transactions. The Panel recognized that the Bureau has developed the prototype forms through qualitative, one-on-one testing with consumers, lenders, mortgage brokers, and settlement agents and that the Bureau has solicited extensive public feedback on the prototype forms through its Web site, but recommended that the Bureau explore the feasibility of conducting such testing before issuing a VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 final rule. Based on this recommendation, the Bureau plans to explore the feasibility of conducting such testing before issuing a final rule. iii. Clear Guidance As discussed in the Small Business Review Panel Report, the Bureau indicated in the Small Business Review Panel Outline that it was considering proposing to require the use of standard forms for mortgage loan transactions that are subject to RESPA and to promulgate model forms for TILA-only transactions, and sought feedback from the SERs regarding their preference for promulgation of standard or model disclosure forms. Moreover, the Bureau indicated that it was considering providing additional guidance regarding compliance with the regulations affecting mortgage disclosures. On both issues, however, the Bureau sought feedback from SERs. As discussed in the Small Business Review Panel Report, the SERs generally stated a preference for standard forms and clearer guidance. In response to this feedback, the Panel recommended that the Bureau provide more detailed guidance on how to complete the integrated forms (including, as appropriate, samples of completed forms for a variety of loan transactions) and that the Bureau consider whether mandating use of the integrated forms would result in more consistent disclosures for consumers while also easing the compliance burden on small entities. The Panel also recommended that, in the proposed rule, the Bureau solicit public comment on mandating use of the integrated forms. As discussed above, the Bureau is proposing to require the use of standard forms for mortgage loan transactions that are subject to RESPA, but for transactions that are subject only to TILA, the forms would be models, consistent with the provisions of that statute. iv. Total Interest Percentage and Average Cost of Funds As discussed in the Small Business Review Panel Report, the SERs expressed concerns that the total interest percentage and average cost of funds disclosures required under the Dodd-Frank Act would be difficult to calculate, difficult to explain to consumers, and likely not helpful to consumers.235 The Panel recognized 235 However, as the Small Business Review Panel Report notes on page 28, the SERs did not provide specific estimates of the costs to calculate these amounts or to explain these amounts to consumers, nor did they provide evidence to support the claim that this information would be unhelpful to consumers. PO 00000 Frm 00181 Fmt 4701 Sfmt 4702 51295 that these disclosures are required by the Dodd-Frank Act, but recommended that the Bureau consider revisions to these disclosures that would minimize the burden on small entities while still ensuring that consumers receive important information about mortgage transactions. The Panel also recommended that the Bureau solicit comment on whether these disclosures would be helpful to consumers and the costs, if any, these disclosures would impose on small entities. The prototype disclosure forms appended to the proposed rule include the total interest percentage and average cost of funds disclosures. However, following the Panel’s recommendation, the Bureau is alternatively proposing to exempt transactions subject to this proposal from disclosing the total interest percentage disclosure and the lender cost of funds, as discussed in part VI above, section-by-section analysis for proposed §§ 1026.37(l)(3) and 1026.38(o)(5) and (6). v. Use of Line Numbers As discussed in the Small Business Review Panel Report, several SERs stated that removing the current RESPA settlement statement line numbers from the integrated Closing Disclosure would significantly increase the cost of software upgrades. The Panel recognized that the prototype Closing Disclosure was developed through consumer testing to enable consumers to compare the final costs to those provided in the Loan Estimate and that the proposed form of the Closing Disclosure would necessitate reordering and relabeling of many of the line numbers on the current disclosures (e.g., due to the proposed revisions being considered to the tolerance rules). The Panel recommended that the Bureau solicit comment on whether an alternative design or numbering format (including incorporating the current RESPA settlement statement line numbers to the extent consistent with the proposals) would impose a lower amount of software-related costs on lenders, mortgage brokers, mortgage companies, and settlement agents while enabling consumers to compare loan terms to the same extent as the current prototype forms. Following the Panel’s recommendation, the Bureau is soliciting comment on these issues in part VI above, section-by-section analysis for proposed § 1026.37(f). vi. Optional Signature Line As discussed in the Small Business Review Panel Report, page five of the prototype Closing Disclosure includes a signature block for the consumer to E:\FR\FM\23AUP2.SGM 23AUP2 51296 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules acknowledge receipt of the Closing Disclosure. Some SERs were concerned that consumers might be confused about the effect of signing to acknowledge receipt of the Closing Disclosure. In response to these concerns, the Panel recommended that the Bureau consider whether the language on the prototype forms should be revised, or whether additional guidance should be provided to clarify the effect of a signature on the consumer’s legal obligations. Following the Panel’s recommendation, the Bureau is soliciting comment on such issues in part VI above, section-by-section analysis for proposed § 1026.38(s). mstockstill on DSK4VPTVN1PROD with PROPOSALS2 b. Definition of Loan Application As discussed in the Small Business Review Panel Report, the Bureau has considered eliminating the seventh element of the application definition and replacing it with additional items that would, along with the six specific items in the current definition that the Bureau proposes to retain, enable the creditor or mortgage broker to provide a reasonably accurate Loan Estimate. The Panel recognized that the SERs disagreed about whether the seventh item in the application definition was necessary to provide a reasonably accurate Loan Estimate, and there was a lack of consensus among the SERs who opposed elimination of the seventh item about what additional information would be needed. Following the Panel’s recommendation, the Bureau is soliciting public comment in part VI above, section-by-section analysis for the proposed § 1026.2(a)(3) on what, if any, additional specific information beyond the six specific items included under the proposed definition of application is needed to provide a reasonably accurate Loan Estimate. c. Changes in Settlement Costs; Redisclosure As discussed in the Small Business Review Panel Report, the Bureau indicated in the Small Business Review Panel Outline that it has considered preserving HUD’s 2008 RESPA Final Rule in its entirety. However, as mentioned in such materials and as discussed further in part VI above, section-by-section analysis for proposed § 1026.19(e), above, the Bureau believes that the current rules can likely be improved by requiring creditors to provide consumers with more accurate estimates of settlement charges and reducing compliance burden for industry. As discussed in the Small Business Review Panel Report, the SERs generally expressed concern about the potential unintended consequences of applying VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 the proposed zero percent tolerance standard (instead of the current ten percent tolerance) to affiliate fees and fees charged by creditor-selected providers. However, the SERs generally supported additional clarifications and guidance regarding the current tolerance rules. In response to this feedback, the Panel recommended that the Bureau consider alternatives to expanding application of the zero percent tolerance that would increase the reliability of cost estimates while minimizing the impacts on small entities. The Panel also recommended that the Bureau solicit comment on whether the current tolerance rules have sufficiently improved the reliability of the estimates that creditors give consumers, while preserving creditors’ flexibility to respond to unanticipated changes that occur during the loan process. The Bureau has adopted these recommendations in the proposed rule. See part VI, section-by-section analysis for proposed § 1026.19(e). As discussed in the Small Business Review Panel Report, the Bureau also considered narrowing the exceptions permitting increases in settlement charges in order to restrict the ability of a creditor to charge more for its own services or for third-party settlement services than the creditor initially estimated. Such an approach, if adopted, would have likely reduced the ability of creditors, including small entity creditors, to pass on changes in settlement costs to consumers and, accordingly, increased the extent to which creditors bore the associated risk. However, the Bureau chose not to incorporate this approach into the proposal because of its concern that it could prevent creditors from increasing settlement charges to reflect justifiable increases in costs. d. Provision of the Closing Disclosure As discussed in the Small Business Review Panel Report, the Bureau has also considered requiring provision of the Closing Disclosure three business days before closing only when, after the Loan Estimate is given, the APR in the Loan Estimate increases by more than one-eighth of one percent or an adjustable-rate feature is added to the loan. In all other circumstances, the Closing Disclosure would have been provided at or before consummation. However, the Bureau is concerned that this approach would allow significant increases in the cash needed to close without sufficient notice to the consumer. In addition, the Bureau has considered expanding the current rules allowing consumers to waive the three- PO 00000 Frm 00182 Fmt 4701 Sfmt 4702 business-day waiting period in cases of bona fide personal financial emergency. However, the Bureau is concerned that such an expansion would enable creditors to pressure consumers into waiving the waiting period because consumers may be unwilling or unable to challenge a cost increase that occurs shortly before consummation. As noted in the Small Business Review Panel Report, the SERs generally opposed requiring provision of the integrated Closing Disclosure three business days before consummation. The Panel acknowledged this feedback, but recognized that statutory requirements limit the discretion of the Bureau to shorten the three-businessday waiting period. Therefore, the Panel recommended that the Bureau continue to explore whether the potential impact of the three-business-day requirement on small entities can be mitigated while maintaining the benefits to consumers by, for example, permitting limited changes after provision of the Closing Disclosure. Following the Panel’s recommendation, the Bureau has included in proposed § 1026.19(f)(2) a list of permitted changes after provision of the Closing Disclosure. Regarding which party is responsible for providing the Closing Disclosure to the consumer, the Bureau has also considered making the settlement agent solely responsible for this task. However, the Bureau understands that settlement agents may not have access to much of the information regarding loan terms that must be disclosed in the Closing Disclosure. e. Recordkeeping and Data Collection The issues regarding the Bureau’s proposed record retention requirements and the alternatives the Bureau has considered (i.e., a small entity exemption) are discussed in part VIII.B.4.b, above. f. Annual Percentage Rate As discussed in the Small Business Review Panel Report, most lender SERs supported the more-inclusive definition of finance charge, but some expressed concern about including taxes and insurance that are required to be paid to an escrow account in the finance charge. In response to this feedback, the Panel recommended that the Bureau consider excluding escrowed taxes and insurance from the more inclusive finance charge, unless those amounts would otherwise be considered finance charges under the expanded definition. The Bureau has proposed a revised definition of finance charge in § 1026.4 that incorporates the Panel’s recommendation. E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Moreover, the Panel recommended that, before issuing a final rule to integrate the TILA and RESPA mortgage disclosure requirements, the Bureau consider the impact of the more inclusive finance charge on its other rulemakings, and that it adopt any alternatives or adjustments in the final TILA–RESPA rule or the Bureau’s other rulemakings that would reduce burden on small entities while still accomplishing the goals of the more inclusive finance charge. As discussed above in part II.F, in the section-bysection analysis for proposed § 1026.4 in part VI, and in part VIII.B.5, the Bureau has carefully considered alternatives that would mitigate the impact of the more inclusive finance charge on all entities subject to the proposed rule, including small entities. Addition discussion will be provided in other proposed and final rules issues by the Bureau. Furthermore, the Bureau will carefully consider the comments received on this issue and perform further analysis prior to issuing a final rule. 7. Discussion of Impact on Cost of Credit for Small Entities Section 603(d) of the RFA requires the Bureau to consult with small entities regarding the potential impact of the proposed rule on the cost of credit for small entities and related matters. 5 U.S.C. 603(d). To satisfy these statutory requirements, the Bureau provided notification to the Chief Counsel on February 7, 2012, that the Bureau would collect the advice and recommendations of the same small entity representatives identified in consultation with the Chief Counsel through the Small Business Review Panel process concerning any projected impact of the proposed rule on the cost of credit for small entities.236 The Bureau sought to collect the advice and recommendations of the small entity representatives during the Small Business Review Panel Outreach Meeting regarding the potential impact on the cost of business credit because, as small financial service providers, the SERs could provide valuable input on any such impact related to the proposed rule.237 At the time the Bureau circulated the Small Business Review Panel Outline to the SERs in advance of the Panel Outreach Meeting, it had no evidence that the proposals then-under 236 See 5 U.S.C. 603(d)(2)(A). The Bureau provided this notification as part of the notification and other information provided to the Chief Counsel with respect to the Small Business Review Panel process pursuant to section 609(b)(1) of the RFA. 237 See 5 U.S.C. 603(d)(2)(B). VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 consideration would result in an increase in the cost of business credit for small entities. Instead, the summary of the proposals stated that the proposals would apply to only mortgage loans obtained by consumers primarily for personal, family, or household purposes, and the proposals would not apply to loans obtained primarily for business purposes.238 At the Panel Outreach Meeting, the Bureau asked the SERs a series of questions regarding cost of business credit issues.239 The questions were focused on two areas. First, the SERs from commercial banks/savings institutions, credit unions, and mortgage companies were asked whether, and how often, they extend to their customers closed-end mortgage loans to be used primarily for personal, family, or household purposes but that are used secondarily to finance a small business, and whether the proposals then-under consideration would result in an increase in their customers’ cost of credit. Second, the Bureau inquired as to whether, and how often, the SERs themselves take out closed-end, homesecured loans to be used primarily for personal, family, or household purposes and use them secondarily to finance their small businesses, and whether the proposals under consideration would increase the SERs’ cost of credit. In general, the lender SERs reported making few mortgage loans that are used primarily for personal, family, or household purposes (and therefore are covered by TILA and RESPA) but that are used, secondarily, to finance a small business. In addition, the few loans they described making would appear to fall within the TILA and RESPA exceptions for loans made primarily for business purposes,240 and therefore would not be subject to the proposed rule. The Bureau recognizes that some mortgages, especially second lien mortgages or cash-out refinancings, may be used in part or in whole to finance small businesses, without the knowledge of the creditor. Based on the overall impact of the proposal, however, the Bureau does not believe that the proposal would lead to an increase in the cost of mortgage lending. As discussed above in part VII, the Bureau estimates that the most burdensome aspect of the proposal, the systems revision required to provide the new 238 See TILA section 104(1); RESPA section 7(a)(1). 239 See the Small Business Review Panel Report at appendix D, 154–155 (PowerPoint slides from the Panel Outreach Meeting, ‘‘Topic 7: Impact on the Cost of Business Credit’’). 240 See TILA section 104(1); RESPA section 7(a)(1). PO 00000 Frm 00183 Fmt 4701 Sfmt 4702 51297 Loan Estimate and Closing Disclosure, would lead to a one-time cost that, on an annualized basis, is equivalent to less than $3 dollars per mortgage origination. The proposal, therefore would not lead to an increase in the cost of credit to small businesses even if small businesses were to use closed-end mortgages credit for financing. As discussed in the Small Business Review Panel Report, the Bureau considered various alternatives regarding the regulatory definition of application, permissible changes in settlement costs, timing and provision of the Closing Disclosure, and recordkeeping requirements, and consulted with the Small Business Review Panel on those alternatives. See Small Business Review Panel Report at 9–12. For example, the Bureau considered an exemption for small entities from the electronic data recordkeeping requirements in proposed § 1026.25. Id. at 12. The Bureau consulted on alternatives that would achieve the statutory objectives while minimizing the cost of credit for small entities. IX. Paperwork Reduction Act The collection of information contained in this notice of proposed rulemaking, and identified as such, will be submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (Paperwork Reduction Act or PRA). Under the PRA, the Bureau may not conduct or sponsor, and a person is not required to respond to, this information collection unless the information collection displays a currently valid control number. This proposed rule would amend 12 CFR part 1024 (Regulation X) and 12 CFR part 1026 (Regulation Z). Both Regulations X and Z currently contain collections of information approved by OMB. The Bureau’s OMB control number for Regulation X is 3170–0016 and for Regulation Z is 3170–0015. As described below, the proposed rule would amend the collections of information currently in Regulation X and Regulation Z. As previously discussed, the Dodd-Frank Act amended TILA and RESPA to mandate specifically that the Bureau propose rules and forms combining the TILA and RESPA disclosures for mortgage loans subject to either law or both laws. Dodd-Frank Act sections 1098, 1100A. The Dodd-Frank Act requires the Bureau to publish proposed rules and forms combining the disclosures by July 21, 2012. Dodd-Frank Act section 1032(f). The Dodd-Frank Act also made E:\FR\FM\23AUP2.SGM 23AUP2 51298 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 several amendments to the disclosure requirements in TILA and RESPA. Based on the specific statutory mandate to combine the disclosures under TILA and RESPA, the Bureau is proposing to amend Regulation X and Regulation Z to establish new disclosure requirements and forms in Regulation Z for closedend consumer credit transactions secured by real property, other than reverse mortgages. Accordingly, the proposed rule requires that an integrated Loan Estimate be provided to consumers within three business days after receipt of the consumer’s application to replace the early TILA disclosure and RESPA GFE, and that an integrated Closing Disclosure be provided to consumers at least three business days prior to consummation to replace the final TILA disclosure and RESPA settlement statement. The proposed rule also contains new electronic recordkeeping requirements. The information collection in the proposed rule is required to provide benefits for consumers and would be mandatory. See 15 U.S.C. 1601 et seq.; 12 U.S.C. 2601 et seq., 5532(f). Because the Bureau does not collect any information under the proposed rule, no issue of confidentiality arises. The likely respondents would be commercial banks/savings institutions, credit unions, mortgage companies (non-bank lenders), mortgage brokers, and settlement agents 241 that would be required under the proposed amendments to Regulations Z and X, to provide to consumers, and maintain related electronic records on, the integrated TILA–RESPA mortgage disclosures, either because they make mortgage loans subject to the proposed rule or because they may be responsible for completing or providing required disclosures.242 Under the proposed rule, the Bureau would account for the entire paperwork burden for respondents under Regulation X. The Bureau generally would also account for the paperwork burden associated with Regulation Z for the following respondents pursuant to 241 Although respondents under PRA for Regulation Z also include mortgage brokers and settlement agents, for purposes of the PRA analysis, the Bureau assumes that the creditor takes on the obligation to deliver the Loan Estimate and Closing Disclosure. Accordingly, there is minimal burden attributed to brokers and settlement agents. 242 For purposes of this PRA analysis, references to ‘‘creditors’’ or ‘‘lenders’’ shall be deemed to refer collectively to commercial banks, savings institutions, credit unions, and mortgage companies (i.e., nondepository lenders), unless otherwise stated. Moreover, reference to ‘‘respondents’’ shall generally mean all categories of entities identified in the sentence to which this footnote is appended, except as otherwise stated or if the context indicates otherwise. VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 its administrative enforcement authority: insured depository institutions with more than $10 billion in total assets, their depository institution affiliates, and certain nondepository institutions. The Bureau and the FTC generally both have enforcement authority over nondepository institutions for Regulation Z. Accordingly, the Bureau has allocated to itself half of the estimated burden to nondepository institutions. Other Federal agencies are responsible for estimating and reporting to OMB the total paperwork burden for the institutions for which they have administrative enforcement authority. They may, but are not required to, use the Bureau’s burden estimation methodology. For purposes of this analysis, the Bureau assumes that any burden increase associated with the proposed rule is allocated to Regulation Z. As discussed in part IX.B.2, below, under the proposed rule there would be no burden increase associated with Regulation X, and in fact there is a burden reduction attributed to Regulation X because the RESPA GFE and settlement statement disclosures would be eliminated for all of the mortgage market, other than reverse mortgages, and replaced by the Loan Estimate and Closing Disclosures, under Regulation Z. Using the Bureau’s burden estimation methodology, the total estimated burden for the approximately 14,354 banks, savings institutions, credit unions, and mortgage companies subject to the proposed rule,243 including Bureau respondents, would be approximately 2.12 million hours for one-time changes and 2.35 million hours annually. The estimates presented in this part IX represent weighted averages across respondents. The Bureau expects that the amount of time required to implement each of the proposed changes for a given institution may vary based on the size, complexity, and practices of the respondent. A. Information Collection Requirements The Bureau believes the following aspects of the proposed rule would be information collection requirements under the PRA: (1) The development, implementation, and continuing use of new, integrated Loan Estimate and Closing Disclosure forms required for closed-end mortgage transactions subject to the proposed rule and the generation and provision of additional Loan Estimates in particular transactions as a result of increases in 243 For the reasons described above, this figure excludes mortgage brokers and settlement agents. PO 00000 Frm 00184 Fmt 4701 Sfmt 4702 the closing costs that were included in the initial Loan Estimate,244 and (2) the imposition of new requirements to maintain evidence of compliance in standardized, machine readable, electronic format.245 1. Initial and Final Disclosures As discussed above in part VII, the integrated Loan Estimate and the Closing Disclosure would result in certain compliance costs to covered persons. The Bureau believes that many of the costs of complying with these requirements would be common across the two disclosures, and therefore discusses them together here. Under the proposal, responsibility for delivering the Loan Estimate would lie with the creditor. The Bureau believes that in some circumstances the Loan Estimate may be delivered by a mortgage broker acting on behalf of the creditor. The Bureau believes the costs would be similar for Loan Estimates delivered by creditors and brokers, and the estimates presented here are based on the assumption that the creditor delivers the Loan Estimate. Similarly, the Bureau is proposing two alternatives with respect to the responsibility to deliver the Closing Disclosure. Under the first alternative, the creditor would be solely responsible for delivering the Closing Disclosure; under the second alternative, the creditor and settlement agent would be jointly responsible. These estimates assume that the creditor takes on the obligation to deliver the Closing Disclosure. The Bureau believes 244 The proposal also provides that, if the creditor permits a consumer to shop for a settlement service, the creditor shall provide the consumer with a written list identifying available providers of that service and stating that the consumer may choose a different provider for that service. Accordingly, creditors must comply with this additional requirement in certain transactions where consumers are permitted to shop for settlement services. This is an existing requirement under current Regulation X, 12 CFR part 1024 app. C, but is not specifically itemized as a separate information collection under Regulation X. Because the timing of this requirement coincides with the provision of the initial Loan Estimate to consumers, the burden associated with the written list of providers requirement under the proposed rule is included in the burden calculation for the Loan Estimate. 245 Under the proposal, these information collections apply to closed-end transactions secured by real property, other than reverse mortgages subject to § 1026.33. As discussed in part VI, section-by-section analysis for § 1026.19, above, construction-only loans, vacant-land loans, and loans secured by more than 25 acres, are subject to the integrated disclosure provisions although these transactions are currently exempt from RESPA coverage, because the Bureau believes that excluding these transactions would deprive consumers of the benefit of enhanced disclosures. However, the Bureau believes that the number of such transactions is negligible as compared to the entire mortgage market. E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules that if settlement agents were to take on a substantial portion of the responsibility for delivering the Closing Disclosure the costs would be similar, although they may be borne by different parties. 246 In addition to changing the format of the required forms, the new proposed forms include numerous new disclosures that are required by the Dodd-Frank Act. The Bureau believes that this additional information would be added to the forms as part of the process of adapting software and compliance systems to produce the new forms, and therefore does not provide separate estimates for the costs of adding this additional information. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 a. One-Time Costs Covered persons would incur onetime costs associated with training and reviewing the regulation. In addition, covered persons who maintain their own software and compliance systems would incur one-time costs to adapt their software and compliance systems to produce the new forms.246 Based on information provided by creditors and by software vendors, the Bureau believes that, in general, larger creditors develop and maintain their own compliance software and systems, while smaller creditors primarily rely on software and compliance systems provided by outside vendors. The Bureau estimates that the top 20 creditors typically maintain their own systems, while 95 percent of smaller creditors rely on vendors. The use of vendors would substantially mitigate the costs of revising software and compliance systems, as the efforts of a single vendor would address the needs of a large number of creditors. Based on discussions with a leading mortgage origination technology provider, the Bureau believes that these updates, however, would likely be included in regular annual updates, and therefore the costs would not be directly passed on to the client creditors. Based on small entities that participated in the Small Business Review Panel process, the Bureau estimates that creditors that maintain their own compliance software and systems would incur costs of roughly $100,000 to determine what changes need to be made and to update their systems to comply with the proposal. Larger creditors with proprietary systems would need to revise their compliance software and systems. Based on information from conversations with large creditors and with software vendors, the Bureau estimates that the cost per creditor for this category of creditor would be $1,000,000. Covered persons would incur onetime costs associated with training employees to use new forms and any new compliance software and systems. The Bureau estimates that each loan officer or other loan originator will need to receive two hours of training. The Bureau further estimates that a trainer will spend an hour for every ten hours of trainee time. The Bureau estimates that, for each covered person, one attorney and one compliance officer would each take seven hours to read and review the sections of the proposed regulation that describe the contents of the Loan Estimate and Closing Disclosure requirements, based on the length of each of the sections. The Bureau estimates the total onetime costs of reading the relevant sections of the Federal Register, revising systems to provide the new disclosures, and training personnel for the Bureau respondents to be approximately $30.9 million, which corresponds to approximately 574,600 hours. Annualized over five years, this is an annual cost of $6.2 million. The Bureau estimates the one-time costs to the 128 depository institutions (including their depository affiliates) that are mortgage originator respondents of the Bureau under Regulation Z 247 would be $20.1 million, or 391,000 hours. For the estimated 2,515 nondepository institutions that are subject to the Bureau’s administrative enforcement authority, the Bureau is taking the burden of half of those nondepository institutions for purposes of this PRA analysis.248 The Bureau 247 There are 154 depository institutions (and their depository affiliates) that are subject to the Bureau’s administrative enforcement authority. For purposes of this PRA analysis, the Bureau has calculated its burden hours and costs based on the estimated 128 depository institutions subject to Regulation Z that are mortgage originators. 248 Unless otherwise specified, all references to burden hours and costs for the Bureau respondents VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00185 Fmt 4701 Sfmt 4702 51299 estimates the one-time costs would be $10.8 million, or 183,700 hours.249 b. Ongoing Costs In addition to one-time costs to revise systems and train employees, covered persons will have ongoing costs from providing the disclosures. Based on industry feedback, the Bureau understands that most disclosures will be generated by automated systems that use data collected by covered entities in the normal course of business. The Bureau believes that a small number of the disclosures in the Loan Estimate and Closing Disclosure would be generated using data that may not otherwise be collected in the normal course of business, and has considered this in calculating the ongoing burden associated with the information collection. However, the Bureau may adjust its calculation in a final rule if it determines that such information is collected in the normal course of business or that automated sources of such data exist that would make any burden associated with collecting that data negligible. The Bureau’s estimates also account for the time covered persons would spend to review the forms for accuracy. In calculating the total burden of providing Loan Estimates and Closing Disclosures, the Bureau assumes that Loan Estimates will be provided in response to applications for mortgages and Closing Disclosures will be provided three business days before mortgages are consummated. The Bureau further estimates entities will reissue on average two Loan Estimates per loan originated. Table 2 summarizes these ongoing costs, which total an estimated $68.4 million per year. This represents an average cost of approximately $15 per origination.250 are based on a calculation of half of the estimated 2,515 nondepository institutions. 249 For additional information, please see the proposed amended Supporting Statement for OMB Control Number 3170–0016, available at www.reginfo.gov. 250 Bureau respondents are estimated to originate approximately 4.8 million mortgages per year that would be subject to these information collections. E:\FR\FM\23AUP2.SGM 23AUP2 51300 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules The proposed rule imposes new data retention requirements on certain respondents. As discussed above in part VII, the proposed rule will require creditors and mortgage brokers to retain evidence of compliance with the Loan Estimate and Closing Disclosure requirements in machine readable,251 electronic format. The proposed retention period is three years for the Loan Estimates and five years for the Closing Disclosures. See part VI above, section-by-section analysis for proposed § 1026.25. The proposed rule may result in costs to covered persons. Under current rules, creditors must retain evidence of compliance with the disclosure requirements in Regulation X (i.e., a copy of the RESPA settlement statement) and Regulation Z (i.e., evidence of compliance generally), but are not required to maintain such evidence an electronic, machine readable format. 12 CFR 1024.10(e); 1026.25. Based on industry feedback, the Bureau understands that firms currently rely on electronic systems for most aspects of the mortgage loan origination process, including electronic record creation and storage. Not all creditors currently maintain data in a machine-readable format, and those who do may not retain it in the format that may ultimately be adopted. To comply with the proposed record retention provisions, therefore, creditors may be required to reconfigure existing document production and retention systems. For creditors that maintain their own compliance systems and software, the Bureau does not believe that adding the capacity to maintain data in a standard machine readable format will impose a substantial burden, as the only requirement will be to output existing data to a new format and then store that data. The Bureau believes that the primary cost will be one-time systems changes that could be accomplished at the same time that systems changes are carried out to comply with the new proposed Loan Estimate and Closing Disclosure. The Bureau estimates that creditors that maintain their own compliance systems will need to expend 40 hours of software and IT staff time to develop the capacity to export data from existing data formats to the standard format. As discussed above, the Bureau estimates that 2,643 creditors are its respondents for purposes of the PRA, of which 152 creditors maintain their own compliance systems. At 40 hours each, the one-time burden is an estimated 6,080 hours. Additionally, for each covered person, the Bureau estimates that one attorney and one compliance officer would each take 7.5 minutes to read and review the portion of the regulation pertaining to data retention, based on the length of that section. Accordingly, the total onetime burden associated with the data retention provision of the proposed rule would be 6,400 hours, or $376,400. Creditors that rely on vendors would likely rely on vendor software and systems to comply with the data retention requirement; at least one vendor already offers indefinite data storage to customers that use their webbased origination services. The Bureau understands that requiring standardized, electronic records may be a significant burden for covered persons that do not currently have such electronic filing systems. To reduce the burden on small entities, the Bureau is considering an exemption from the electronic data retention requirements. See part VI above, section-by-section analysis for proposed § 1026.25. In addition, the proposed rule requires creditors and mortgage brokers to retain documentation sufficient to show their supervisory agencies that one of the exceptions applies whenever a cost for a service provided by a company that is owned by or affiliated with the creditor proves to be higher than estimated in the Loan Estimate, similar to the current document retention requirements under Regulation X for when the RESPA GFE is reissued. This retention requirement may result in additional cost to respondents that are creditors and mortgage brokers. 251 As discussed in part VI, section-by-section analysis for proposed § 1026.25(c), ‘‘machine readable’’ means a format where the individual data elements comprising the record can be transmitted, analyzed, and processed by a computer program, such as a spreadsheet or database program. Data formats for image reproductions (e.g., PDF) or document text, such as those used by word processing programs, are not machine readable for purposes of this proposal. VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00186 Fmt 4701 Sfmt 4702 B. Summary of Burden Hours 1. Regulation Z The below table summarizes the one time and annual burdens under Regulation Z associated with information collections affected by the proposal for Bureau respondents under the PRA. E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.998</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 2. Recordkeeping Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 51301 early, revised, and final TILA disclosures nor limit burden hours to mortgage transactions (but, instead, estimate for closed-end credit, generally). However, the total PRA burden associated with the new integrated disclosures for all institutions subject to Regulation Z is estimated to be 2.35 million hours annually. These changes reflect the decrease in the number of mortgages originated, increased systems automation, changes in methodology for calculating burden under the PRA, and the effects of the proposal. collections of information are necessary for the proper performance of the functions of the Bureau, including whether the information will have practical utility; (ii) the accuracy of the estimated burden associated with the proposed collections of information; (iii) how to enhance the quality, utility, and clarity of the information to be collected; and (iv) how to minimize the burden of complying with the proposed collections of information, including the application of automated collection techniques or other forms of information technology. Comments on the collection of information requirements should be sent to the Office of Management and Budget (OMB), Attention: Desk Officer As discussed above, by integrating the TILA and RESPA disclosures, the proposal eliminates the majority of the ongoing PRA burden under Regulation X for the RESPA GFE and settlement statement disclosures, while simultaneously creating ongoing burden attributable to the integrated disclosures in Regulation Z. On a market-wide basis, annual PRA burden in Regulation X decreases by approximately 10.8 million hours. The Bureau cannot similarly quantify the change in ongoing burden under Regulation Z, because current burden estimates neither itemize the burden hours attributable to the 252 The annual burdens attributed to the RESPA GFE and settlement statement (HUD–1/HUD–1A) are 3,612,500 hours and 7,250,000 hours, respectively. See Supporting Statement for OMB VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 C. Comments Comments are specifically requested concerning: (i) Whether the proposed Control Number 3170–0016, available at https:// www.reginfo.gov/public/do/PRAViewICR?ref_nbr= 201110-3170-013 (CFPB); Supporting Statement for OMB Control Number 2502–0265, available at PO 00000 Frm 00187 Fmt 4701 Sfmt 4702 https://www.reginfo.gov/public/do/PRAView Document?ref_nbr=200810-2502-001 (HUD). E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.996</GPH> burden associated with these disclosures in Regulation X would total approximately 62,400 hours, assuming no change in the time required to respond. The below table summarizes the annual burdens under Regulation X associated with information collections affected by the proposal. EP23AU12.997</GPH> settlement statement disclosures account for approximately 10.9 million annual burden hours.252 Under the proposal, the majority of this burden would be eliminated, with only reverse mortgage transactions remaining subject to the RESPA GFE and settlement statement requirements. The remaining 3. Net Effect on PRA Estimates of Ongoing Burden mstockstill on DSK4VPTVN1PROD with PROPOSALS2 2. Regulation X The proposal does not increase PRA burden associated with Regulation X, and instead removes the majority of the burden associated with two information collections: (i) The RESPA GFE and (ii) the RESPA settlement statement. Currently, the RESPA GFE and 51302 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules for the Consumer Financial Protection Bureau, Office of Information and Regulatory Affairs, Washington, DC 20503, or by the internet to https:// oira_submission@omb.eop.gov, with copies to the Bureau at the Consumer Financial Protection Bureau (Attention: PRA Office), 1700 G Street NW., Washington, DC 20552, or by the internet to CFPB_Public_PRA@cfpb.gov. List of Subjects 12 CFR Part 1024 Condominiums, Consumer protection, Housing, Mortgage servicing, Mortgages, Recordkeeping requirements, Reporting. 12 CFR Part 1026 Advertising, Consumer protection, Credit, Credit unions, Mortgages, National banks, Recordkeeping requirements, Reporting, Savings associations, Truth in lending. Text of Proposed Revisions Certain conventions have been used to highlight the proposed revisions. New language is shown inside bold arrows, and language that would be deleted is shown inside bold brackets. Authority and Issuance For the reasons set forth in the preamble, the Bureau proposes to amend Regulation X, 12 CFR part 1024, and Regulation Z, 12 CFR part 1026, as set forth below: PART 1024—REAL ESTATE SETTLEMENT PROCEDURES (REGULATION X) 1. The authority citation for part 1024 continues to read as follows: Authority: 12 U.S.C. 2603–2605, 2607, 2609, 2617, 5512, 5581. 2. Section 1024.5 is amended by revising paragraph (a), removing and reserving paragraph (b)(1), and adding paragraph (c), to read as follows: mstockstill on DSK4VPTVN1PROD with PROPOSALS2 § 1024.5 Coverage of RESPA. (a) Applicability. RESPA and this part apply to øall¿ federally related mortgage loans, except ﬂasﬁ øfor the exemptions¿ provided in paragraphﬂsﬁ (b) ﬂand (c)ﬁ of this section. (b) Exemptions. (1) ﬂ[Reserved]ﬁ øA loan on property of 25 acres or more.¿ * * * * * ﬂ(c) Partial exemptions for certain mortgage loans. Sections 1024.6, 1024.7, 1024.8, 1024.10, and 1024.21(b) and (c) do not apply to a federally related mortgage loan: (1) That is subject to the special disclosure requirements for certain VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 consumer credit transactions secured by real property set forth in Regulation Z, 12 CFR 1026.19(e) and (f); or (2) That satisfies the criteria in Regulation Z, 12 CFR 1026.3(h).ﬁ 3. Appendix A to part 1024 is revised to read as follows: Appendix A to Part 1024—Instructions for Completing HUD–1 and HUD–1A Settlement Statements; Sample HUD–1 and HUD–1A Statements The following are instructions for completing the HUD–1 settlement statement, required under section 4 of RESPA and 12 CFR part 1024 (Regulation X) of the Bureau of Consumer Financial Protection (Bureau) regulations. This form is to be used as a statement of actual charges and adjustments paid by the borrower and the seller, to be given to the parties in connection with the settlement. The instructions for completion of the HUD–1 are primarily for the benefit of the settlement agents who prepare the statements and need not be transmitted to the parties as an integral part of the HUD–1. There is no objection to the use of the HUD– 1 in transactions in which its use is not legally required. Refer to the definitions section of the regulations (12 CFR 1024.2) for specific definitions of many of the terms that are used in these instructions. General Instructions Information and amounts may be filled in by typewriter, hand printing, computer printing, or any other method producing clear and legible results. Refer to the Bureau’s regulations (Regulation X) regarding rules applicable to reproduction of the HUD–1 for the purpose of including customary recitals and information used locally in settlements; for example, a breakdown of payoff figures, a breakdown of the Borrower’s total monthly mortgage payments, check disbursements, a statement indicating receipt of funds, applicable special stipulations between Borrower and Seller, and the date funds are transferred. The settlement agent shall complete the HUD–1 to itemize all charges imposed upon the Borrower and the Seller by the loan originator and all sales commissions, whether to be paid at settlement or outside of settlement, and any other charges which either the Borrower or the Seller will pay at settlement. Charges for loan origination and title services should not be itemized except as provided in these instructions. For each separately identified settlement service in connection with the transaction, the name of the person ultimately receiving the payment must be shown together with the total amount paid to such person. Items paid to and retained by a loan originator are disclosed as required in the instructions for lines in the 800-series of the HUD–1 (and for per diem interest, in the 900-series of the HUD–1). As a general rule, charges that are paid for by the seller must be shown in the seller’s column on page 2 of the HUD–1 (unless paid outside closing), and charges that are paid for by the borrower must be shown in the borrower’s column (unless paid outside PO 00000 Frm 00188 Fmt 4701 Sfmt 4702 closing). However, in order to promote comparability between the charges on the GFE and the charges on the HUD–1, if a seller pays for a charge that was included on the GFE, the charge should be listed in the borrower’s column on page 2 of the HUD–1. That charge should also be offset by listing a credit in that amount to the borrower on lines 204–209 on page 1 of the HUD–1, and by a charge to the seller in lines 506–509 on page 1 of the HUD–1. If a loan originator (other than for no-cost loans), real estate agent, other settlement service provider, or other person pays for a charge that was included on the GFE, the charge should be listed in the borrower’s column on page 2 of the HUD–1, with an offsetting credit reported on page 1 of the HUD–1, identifying the party paying the charge. Charges paid outside of settlement by the borrower, seller, loan originator, real estate agent, or any other person, must be included on the HUD–1 but marked ‘‘P.O.C.’’ for ‘‘Paid Outside of Closing’’ (settlement) and must not be included in computing totals. However, indirect payments from a lender to a mortgage broker may not be disclosed as P.O.C., and must be included as a credit on Line 802. P.O.C. items must not be placed in the Borrower or Seller columns, but rather on the appropriate line outside the columns. The settlement agent must indicate whether P.O.C. items are paid for by the Borrower, Seller, or some other party by marking the items paid for by whoever made the payment as ‘‘P.O.C.’’ with the party making the payment identified in parentheses, such as ‘‘P.O.C. (borrower)’’ or ‘‘P.O.C. (seller)’’. In the case of ‘‘no cost’’ loans where ‘‘no cost’’ encompasses third party fees as well as the upfront payment to the loan originator, the third party services covered by the ‘‘no cost’’ provisions must be itemized and listed in the borrower’s column on the HUD–1/1A with the charge for the third party service. These itemized charges must be offset with a negative adjusted origination charge on Line 803 and recorded in the columns. Blank lines are provided in section L for any additional settlement charges. Blank lines are also provided for additional insertions in sections J and K. The names of the recipients of the settlement charges in section L and the names of the recipients of adjustments described in section J or K should be included on the blank lines. Lines and columns in section J which relate to the Borrower’s transaction may be left blank on the copy of the HUD–1 which will be furnished to the Seller. Lines and columns in section K which relate to the Seller’s transaction may be left blank on the copy of the HUD–1 which will be furnished to the Borrower. Line Item Instructions Instructions for completing the individual items on the HUD–1 follow. Section A. This section requires no entry of information. Section B. Check appropriate loan type and complete the remaining items as applicable. Section C. This section provides a notice regarding settlement costs and requires no additional entry of information. Sections D and E. Fill in the names and current mailing addresses and zip codes of E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules the Borrower and the Seller. Where there is more than one Borrower or Seller, the name and address of each one is required. Use a supplementary page if needed to list multiple Borrowers or Sellers. Section F. Fill in the name, current mailing address and zip code of the Lender. Section G. The street address of the property being sold should be listed. If there is no street address, a brief legal description or other location of the property should be inserted. In all cases give the zip code of the property. Section H. Fill in name, address, zip code and telephone number of settlement agent, and address and zip code of ‘‘place of settlement.’’ Section I. Fill in date of settlement. Section J. Summary of Borrower’s Transaction. Line 101 is for the contract sales price of the property being sold, excluding the price of any items of tangible personal property if Borrower and Seller have agreed to a separate price for such items. Line 102 is for the sales price of any items of tangible personal property excluded from Line 101. Personal property could include such items as carpets, drapes, stoves, refrigerators, etc. What constitutes personal property varies from State to State. Manufactured homes are not considered personal property for this purpose. Line 103 is used to record the total charges to Borrower detailed in section L and totaled on Line 1400. Lines 104 and 105 are for additional amounts owed by the Borrower, such as charges that were not listed on the GFE or items paid by the Seller prior to settlement but reimbursed by the Borrower at settlement. For example, the balance in the Seller’s reserve account held in connection with an existing loan, if assigned to the Borrower in a loan assumption case, will be entered here. These lines will also be used when a tenant in the property being sold has not yet paid the rent, which the Borrower will collect, for a period of time prior to the settlement. The lines will also be used to indicate the treatment for any tenant security deposit. The Seller will be credited on Lines 404–405. Lines 106 through 112 are for items which the Seller had paid in advance, and for which the Borrower must therefore reimburse the Seller. Examples of items for which adjustments will be made may include taxes and assessments paid in advance for an entire year or other period, when settlement occurs prior to the expiration of the year or other period for which they were paid. Additional examples include flood and hazard insurance premiums, if the Borrower is being substituted as an insured under the same policy; mortgage insurance in loan assumption cases; planned unit development or condominium association assessments paid in advance; fuel or other supplies on hand, purchased by the Seller, which the Borrower will use when Borrower takes possession of the property; and ground rent paid in advance. Line 120 is for the total of Lines 101 through 112. Line 201 is for any amount paid against the sales price prior to settlement. VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 Line 202 is for the amount of the new loan made by the Lender when a loan to finance construction of a new structure constructed for sale is used as or converted to a loan to finance purchase. Line 202 should also be used for the amount of the first user loan, when a loan to purchase a manufactured home for resale is converted to a loan to finance purchase by the first user. For other loans covered by 12 CFR Part 1024 (Regulation X) which finance construction of a new structure or purchase of a manufactured home, list the sales price of the land on Line 104, the construction cost or purchase price of manufactured home on Line 105 (Line 101 would be left blank in this instance) and amount of the loan on Line 202. The remainder of the form should be completed taking into account adjustments and charges related to the temporary financing and permanent financing and which are known at the date of settlement. ﬂFor reverse mortgage transactions, the amount disclosed on Line 202 is the initial principal limit.ﬁ Line 203 is used for cases in which the Borrower is assuming or taking title subject to an existing loan or lien on the property. Lines 204–209 are used for other items paid by or on behalf of the Borrower. Lines 204–209 should be used to indicate any financing arrangements or other new loan not listed in Line 202. For example, if the Borrower is using a second mortgage or note to finance part of the purchase price, whether from the same lender, another lender or the Seller, insert the principal amount of the loan with a brief explanation on Lines 204–209. Lines 204–209 should also be used where the Borrower receives a credit from the Seller for closing costs, including seller-paid GFE charges. They may also be used in cases in which a Seller (typically a builder) is making an ‘‘allowance’’ to the Borrower for items that the Borrower is to purchase separately. ﬂFor reverse mortgages, the amount of any initial draw at settlement is disclosed on Line 204.ﬁ Lines 210 through 219 are for items which have not yet been paid, and which the Borrower is expected to pay, but which are attributable in part to a period of time prior to the settlement. In jurisdictions in which taxes are paid late in the tax year, most cases will show the proration of taxes in these lines. Other examples include utilities used but not paid for by the Seller, rent collected in advance by the Seller from a tenant for a period extending beyond the settlement date, and interest on loan assumptions. Line 220 is for the total of Lines 201 through 219. Lines 301 and 302 are summary lines for the Borrower. Enter total in Line 120 on Line 301. Enter total in Line 220 on Line 302. Line 303 must indicate either the cash required from the Borrower at settlement (the usual case in a purchase transaction), or cash payable to the Borrower at settlement (if, for example, the Borrower’s earnest money exceeds the Borrower’s cash obligations in the transaction or there is a cash-out refinance). Subtract Line 302 from Line 301 and enter the amount of cash due to or from the Borrower at settlement on Line 303. The appropriate box should be checked. If the PO 00000 Frm 00189 Fmt 4701 Sfmt 4702 51303 Borrower’s earnest money is applied toward the charge for a settlement service, the amount so applied should not be included on Line 303 but instead should be shown on the appropriate line for the settlement service, marked ‘‘P.O.C. (Borrower)’’, and must not be included in computing totals. Section K. Summary of Seller’s Transaction. Instructions for the use of Lines 101 and 102 and 104–112 above, apply also to Lines 401–412. Line 420 is for the total of Lines 401 through 412. Line 501 is used if the Seller’s real estate broker or other party who is not the settlement agent has received and holds a deposit against the sales price (earnest money) which exceeds the fee or commission owed to that party. If that party will render the excess deposit directly to the Seller, rather than through the settlement agent, the amount of excess deposit should be entered on Line 501 and the amount of the total deposit (including commissions) should be entered on Line 201. Line 502 is used to record the total charges to the Seller detailed in section L and totaled on Line 1400. Line 503 is used if the Borrower is assuming or taking title subject to existing liens which are to be deducted from sales price. Lines 504 and 505 are used for the amounts (including any accrued interest) of any first and/or second loans which will be paid as part of the settlement. Line 506 is used for deposits paid by the Borrower to the Seller or other party who is not the settlement agent. Enter the amount of the deposit in Line 201 on Line 506 unless Line 501 is used or the party who is not the settlement agent transfers all or part of the deposit to the settlement agent, in which case the settlement agent will note in parentheses on Line 507 the amount of the deposit that is being disbursed as proceeds and enter in the column for Line 506 the amount retained by the above-described party for settlement services. If the settlement agent holds the deposit, insert a note in Line 507 which indicates that the deposit is being disbursed as proceeds. Lines 506 through 509 may be used to list additional liens which must be paid off through the settlement to clear title to the property. Other Seller obligations should be shown on Lines 506–509, including charges that were disclosed on the GFE but that are actually being paid for by the Seller. These Lines may also be used to indicate funds to be held by the settlement agent for the payment of either repairs, or water, fuel, or other utility bills that cannot be prorated between the parties at settlement because the amounts used by the Seller prior to settlement are not yet known. Subsequent disclosure of the actual amount of these postsettlement items to be paid from settlement funds is optional. Any amounts entered on Lines 204–209 including Seller financing arrangements should also be entered on Lines 506–509. Instructions for the use of Lines 510 through 519 are the same as those for Lines 210 to 219 above. Line 520 is for the total of Lines 501 through 519. E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51304 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules Lines 601 and 602 are summary lines for the Seller. Enter the total in Line 420 on Line 601. Enter the total in Line 520 on Line 602. Line 603 must indicate either the cash required to be paid to the Seller at settlement (the usual case in a purchase transaction), or the cash payable by the Seller at settlement. Subtract Line 602 from Line 601 and enter the amount of cash due to or from the Seller at settlement on Line 603. The appropriate box should be checked. Section L. Settlement Charges. Line 700 is used to enter the sales commission charged by the sales agent or real estate broker. Lines 701–702 are to be used to state the split of the commission where the settlement agent disburses portions of the commission to two or more sales agents or real estate brokers. Line 703 is used to enter the amount of sales commission disbursed at settlement. If the sales agent or real estate broker is retaining a part of the deposit against the sales price (earnest money) to apply towards the sales agent’s or real estate broker’s commission, include in Line 703 only that part of the commission being disbursed at settlement and insert a note on Line 704 indicating the amount the sales agent or real estate broker is retaining as a ‘‘P.O.C.’’ item. Line 704 may be used for additional charges made by the sales agent or real estate broker, or for a sales commission charged to the Borrower, which will be disbursed by the settlement agent. Line 801 is used to record ‘‘Our origination charge,’’ which includes all charges received by the loan originator, except any charge for the specific interest rate chosen (points). This number must not be listed in either the buyer’s or seller’s column. The amount shown in Line 801 must include any amounts received for origination services, including administrative and processing services, performed by or on behalf of the loan originator. Line 802 is used to record ‘‘Your credit or charge (points) for the specific interest rate chosen,’’ which states the charge or credit adjustment as applied to ‘‘Our origination charge,’’ if applicable. This number must not be listed in either column or shown on page one of the HUD–1. For a mortgage broker originating a loan in its own name, the amount shown on Line 802 will be the difference between the initial loan amount and the total payment to the mortgage broker from the lender. The total payment to the mortgage broker will be the sum of the price paid for the loan by the lender and any other payments to the mortgage broker from the lender, including any payments based on the loan amount or loan terms, and any flat rate payments. For a mortgage broker originating a loan in another entity’s name, the amount shown on Line 802 will be the sum of all payments to the mortgage broker from the lender, including any payments based on the loan amount or loan terms, and any flat rate payments. In either case, when the amount paid to the mortgage broker exceeds the initial loan amount, there is a credit to the borrower and it is entered as a negative amount. When the VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 initial loan amount exceeds the amount paid to the mortgage broker, there is a charge to the borrower and it is entered as a positive amount. For a lender, the amount shown on Line 802 may include any credit or charge (points) to the Borrower. Line 803 is used to record ‘‘Your adjusted origination charges,’’ which states the net amount of the loan origination charges, the sum of the amounts shown in Lines 801 and 802. This amount must be listed in the columns as either a positive number (for example, where the origination charge shown in Line 801 exceeds any credit for the interest rate shown in Line 802 or where there is an origination charge in Line 801 and a charge for the interest rate (points) is shown on Line 802) or as a negative number (for example, where the credit for the interest rate shown in Line 802 exceeds the origination charges shown in Line 801). In the case of ‘‘no cost’’ loans, where ‘‘no cost’’ refers only to the loan originator’s fees, the amounts shown in Lines 801 and 802 should offset, so that the charge shown on Line 803 is zero. Where ‘‘no cost’’ includes third party settlement services, the credit shown in Line 802 will more than offset the amount shown in Line 801. The amount shown in Line 803 will be a negative number to offset the settlement charges paid indirectly through the loan originator. Lines 804–808 may be used to record each of the ‘‘Required services that we select.’’ Each settlement service provider must be identified by name and the amount paid recorded either inside the columns or as paid to the provider outside closing (‘‘P.O.C.’’), as described in the General Instructions. Line 804 is used to record the appraisal fee. Line 805 is used to record the fee for all credit reports. Line 806 is used to record the fee for any tax service. Line 807 is used to record any flood certification fee. Lines 808 and additional sequentially numbered lines, as needed, are used to record other third party services required by the loan originator. These Lines may also be used to record other required disclosures from the loan originator. Any such disclosures must be listed outside the columns. Lines 901–904. This series is used to record the items which the Lender requires to be paid at the time of settlement, but which are not necessarily paid to the lender (e.g., FHA mortgage insurance premium), other than reserves collected by the Lender and recorded in the 1000-series. Line 901 is used if interest is collected at settlement for a part of a month or other period between settlement and the date from which interest will be collected with the first regular monthly payment. Enter that amount here and include the per diem charges. If such interest is not collected until the first regular monthly payment, no entry should be made on Line 901. Line 902 is used for mortgage insurance premiums due and payable at settlement, including any monthly amounts due at settlement and any upfront mortgage insurance premium, but not including any reserves collected by the Lender and PO 00000 Frm 00190 Fmt 4701 Sfmt 4702 recorded in the 1000-series. If a lump sum mortgage insurance premium paid at settlement is included on Line 902, a note should indicate that the premium is for the life of the loan. Line 903 is used for homeowner’s insurance premiums that the Lender requires to be paid at the time of settlement, except reserves collected by the Lender and recorded in the 1000-series. Lines 904 and additional sequentially numbered lines are used to list additional items required by the Lender (except for reserves collected by the Lender and recorded in the 1000-series), including premiums for flood or other insurance. These lines are also used to list amounts paid at settlement for insurance not required by the Lender. Lines 1000–1007. This series is used for amounts collected by the Lender from the Borrower and held in an account for the future payment of the obligations listed as they fall due. Include the time period (number of months) and the monthly assessment. In many jurisdictions this is referred to as an ‘‘escrow,’’ ‘‘impound,’’ or ‘‘trust’’ account. In addition to the property taxes and insurance listed, some Lenders may require reserves for flood insurance, condominium owners’ association assessments, etc. The amount in line 1001 must be listed in the columns, and the itemizations in lines 1002 through 1007 must be listed outside the columns. After itemizing individual deposits in the 1000 series, the servicer shall make an adjustment based on aggregate accounting. This adjustment equals the difference between the deposit required under aggregate accounting and the sum of the itemized deposits. The computation steps for aggregate accounting are set out in 12 CFR 1024.17(d). The adjustment will always be a negative number or zero (–0–), except for amounts due to rounding. The settlement agent shall enter the aggregate adjustment amount outside the columns on a final line of the 1000 series of the HUD–1 or HUD–1A statement. Appendix E to this part sets out an example of aggregate analysis. Lines 1100–1108. This series covers title charges and charges by attorneys and closing or settlement agents. The title charges include a variety of services performed by title companies or others, and include fees directly related to the transfer of title (title examination, title search, document preparation), fees for title insurance, and fees for conducting the closing. The legal charges include fees for attorneys representing the lender, seller, or borrower, and any attorney preparing title work. The series also includes any settlement, notary, and delivery fees related to the services covered in this series. Disbursements to third parties must be broken out in the appropriate lines or in blank lines in the series, and amounts paid to these third parties must be shown outside of the columns if included in Line 1101. Charges not included in Line 1101 must be listed in the columns. Line 1101 is used to record the total for the category of ‘‘Title services and lender’s title insurance.’’ This amount must be listed in the columns. E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules Line 1102 is used to record the settlement or closing fee. Line 1103 is used to record the charges for the owner’s title insurance and related endorsements. This amount must be listed in the columns. Line 1104 is used to record the lender’s title insurance premium and related endorsements. Line 1105 is used to record the amount of the lender’s title policy limit. This amount is recorded outside of the columns. Line 1106 is used to record the amount of the owner’s title policy limit. This amount is recorded outside of the columns. Line 1107 is used to record the amount of the total title insurance premium, including endorsements, that is retained by the title agent. This amount is recorded outside of the columns. Line 1108 used to record the amount of the total title insurance premium, including endorsements, that is retained by the title underwriter. This amount is recorded outside of the columns. Additional sequentially numbered lines in the 1100-series may be used to itemize title charges paid to other third parties, as identified by name and type of service provided. Lines 1200–1206. This series covers government recording and transfer charges. Charges paid by the borrower must be listed in the columns as described for lines 1201 and 1203, with itemizations shown outside the columns. Any amounts that are charged to the seller and that were not included on the Good Faith Estimate must be listed in the columns. Line 1201 is used to record the total ‘‘Government recording charges,’’ and the amount must be listed in the columns. Line 1202 is used to record, outside of the columns, the itemized recording charges. Line 1203 is used to record the transfer taxes, and the amount must be listed in the columns. Line 1204 is used to record, outside of the columns, the amounts for local transfer taxes and stamps. Line 1205 is used to record, outside of the columns, the amounts for State transfer taxes and stamps. Line 1206 and additional sequentially numbered lines may be used to record specific itemized third party charges for government recording and transfer services, but the amounts must be listed outside the columns. Line 1301 and additional sequentially numbered lines must be used to record required services that the borrower can shop for, such as fees for survey, pest inspection, or other similar inspections. These lines may also be used to record additional itemized settlement charges that are not included in a specific category, such as fees for structural and environmental inspections; pre-sale inspections of heating, plumbing or electrical equipment; or insurance or warranty coverage. The amounts must be listed in either the borrower’s or seller’s column. Line 1400 must state the total settlement charges as calculated by adding the amounts within each column. VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 Page 3 Comparison of Good Faith Estimate (GFE) and HUD–1/1A Charges The HUD–1/1–A is a statement of actual charges and adjustments. The comparison chart on page 3 of the HUD–1 must be prepared using the exact information and amounts for the services that were purchased or provided as part of the transaction, as that information and those amounts are shown on the GFE and in the HUD–1. If a service that was listed on the GFE was not obtained in connection with the transaction, pages 1 and 2 of the HUD–1 should not include any amount for that service, and the estimate on the GFE of the charge for the service should not be included in any amounts shown on the comparison chart on Page 3 of the HUD– 1. The comparison chart is comprised of three sections: ‘‘Charges That Cannot Increase’’, ‘‘Charges That Cannot Increase More Than 10%’’, and ‘‘Charges That Can Change’’. ‘‘Charges That Cannot Increase’’. The amounts shown in Blocks 1 and 2, in Line A, and in Block 8 on the borrower’s GFE must be entered in the appropriate line in the Good Faith Estimate column. The amounts shown on Lines 801, 802, 803 and 1203 of the HUD–1/1A must be entered in the corresponding line in the HUD–1/1A column. The HUD–1/1A column must include any amounts shown on page 2 of the HUD–1 in the column as paid for by the borrower, plus any amounts that are shown as P.O.C. by or on behalf of the borrower. If there is a credit in Block 2 of the GFE or Line 802 of the HUD–1/1A, the credit should be entered as a negative number. ‘‘Charges That Cannot Increase More Than 10%’’. A description of each charge included in Blocks 3 and 7 on the borrower’s GFE must be entered on separate lines in this section, with the amount shown on the borrower’s GFE for each charge entered in the corresponding line in the Good Faith Estimate column. For each charge included in Blocks 4, 5 and 6 on the borrower’s GFE for which the loan originator selected the provider or for which the borrower selected a provider identified by the loan originator, a description must be entered on a separate line in this section, with the amount shown on the borrower’s GFE for each charge entered in the corresponding line in the Good Faith Estimate column. The loan originator must identify any third party settlement services for which the borrower selected a provider other than one identified by the loan originator so that the settlement agent can include those charges in the appropriate category. Additional lines may be added if necessary. The amounts shown on the HUD– 1/1A for each line must be entered in the HUD–1/1A column next to the corresponding charge from the GFE, along with the appropriate HUD–1/1A line number. The HUD–1/1A column must include any amounts shown on page 2 of the HUD–1 in the column as paid for by the borrower, plus any amounts that are shown as P.O.C. by or on behalf of the borrower. The amounts shown in the Good Faith Estimate and HUD–1/1A columns for this section must be separately totaled and PO 00000 Frm 00191 Fmt 4701 Sfmt 4702 51305 entered in the designated line. If the total for the HUD–1/1A column is greater than the total for the Good Faith Estimate column, then the amount of the increase must be entered both as a dollar amount and as a percentage increase in the appropriate line. ‘‘Charges That Can Change’’. The amounts shown in Blocks 9, 10 and 11 on the borrower’s GFE must be entered in the appropriate lines in the Good Faith Estimate column. Any third party settlement services for which the borrower selected a provider other than one identified by the loan originator must also be included in this section. The amounts shown on the HUD–1/ 1A for each charge in this section must be entered in the corresponding line in the HUD–1/1A column, along with the appropriate HUD–1/1A line number. The HUD–1/1A column must include any amounts shown on page 2 of the HUD–1 in the column as paid for by the borrower, plus any amounts that are shown as P.O.C. by or on behalf of the borrower. Additional lines may be added if necessary. Loan Terms This section must be completed in accordance with the information and instructions provided by the lender. The lender must provide this information in a format that permits the settlement agent to simply enter the necessary information in the appropriate spaces, without the settlement agent having to refer to the loan documents themselves. ﬂFor reverse mortgages, the initial monthly amount owed for principal, interest, and any mortgage insurance must read ‘‘N/A’’ and the loan term is disclosed as ‘‘N/A’’ when the loan term is conditioned upon the occurrence of a specified event, such as the death of the borrower or the borrower no longer occupying the property for a certain period of time. Additionally, for reverse mortgages the question ‘‘Even if you make payments on time, can your loan balance rise?’’ must be answered as ‘‘Yes’’ and the maximum amount disclosed as ‘‘Unknown.’’ For reverse mortgages that establish an arrangement for the payment of property taxes, homeowner’s insurance, or other recurring charges through draws from the principal limit, the second box in the ‘‘Total monthly amount owed including escrow payments’’ section must be checked. The blank following the first $ must be completed with ‘‘0’’ and an asterisk, and all items that will be paid using draws from the principal limit, such as for property taxes, must also be indicated. An asterisk must also be placed in this section with the following statement: ‘‘Paid by or through draws from the principal limit.’’ Reverse mortgage transactions are not considered to be balloon transactions for the purposes of the loan terms disclosed on page 3 of the HUD–1.ﬁ Instructions for Completing HUD–1A Note: The HUD–1A is an optional form that may be used for refinancing and subordinatelien federally related mortgage loans, as well as for any other one-party transaction that does not involve the transfer of title to residential real property. The HUD–1 form may also be used for such transactions, by E:\FR\FM\23AUP2.SGM 23AUP2 51306 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules utilizing the borrower’s side of the HUD–1 and following the relevant parts of the instructions as set forth above. The use of either the HUD–1 or HUD–1A is not mandatory for open-end lines of credit (home-equity plans), as long as the provisions of Regulation Z are followed. Background The HUD–1A settlement statement is to be used as a statement of actual charges and adjustments to be given to the borrower at settlement, as defined in this part. The instructions for completion of the HUD–1A are for the benefit of the settlement agent who prepares the statement; the instructions are not a part of the statement and need not be transmitted to the borrower. There is no objection to using the HUD–1A in transactions in which it is not required, and its use in open-end lines of credit transactions (home-equity plans) is encouraged. It may not be used as a substitute for a HUD–1 in any transaction that has a seller. Refer to the ‘‘definitions’’ section (§ 1024.2) of 12 CFR part 1024 (Regulation X) for specific definitions of terms used in these instructions. General Instructions Information and amounts may be filled in by typewriter, hand printing, computer printing, or any other method producing clear and legible results. Refer to 12 CFR 1024.9 regarding rules for reproduction of the HUD–1A. Additional pages may be attached to the HUD–1A for the inclusion of customary recitals and information used locally for settlements or if there are insufficient lines on the HUD–1A. The settlement agent shall complete the HUD–1A in accordance with the instructions for the HUD–1 to the extent possible, including the instructions for disclosing items paid outside closing and for no cost loans. Blank lines are provided in section L for any additional settlement charges. Blank lines are also provided in section M for recipients of all or portions of the loan proceeds. The names of the recipients of the settlement charges in section L and the names of the recipients of the loan proceeds in section M should be set forth on the blank lines. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Line-Item Instructions Page 1 The identification information at the top of the HUD–1A should be completed as follows: The borrower’s name and address is entered in the space provided. If the property securing the loan is different from the borrower’s address, the address or other location information on the property should be entered in the space provided. The loan number is the lender’s identification number for the loan. The settlement date is the date of settlement in accordance with 12 CFR 1024.2, not the end of any applicable rescission period. The name and address of the lender should be entered in the space provided. Section L. Settlement Charges. This section of the HUD–1A is similar to section L of the HUD–1, with minor changes or omissions, VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 including deletion of lines 700 through 704, relating to real estate broker commissions. The instructions for section L in the HUD– 1 should be followed insofar as possible. Inapplicable charges should be ignored, as should any instructions regarding seller items. Line 1400 in the HUD–1A is for the total settlement charges charged to the borrower. Enter this total on line 1601. This total should include section L amounts from additional pages, if any are attached to this HUD–1A. Section M. Disbursement to Others. This section is used to list payees, other than the borrower, of all or portions of the loan proceeds (including the lender, if the loan is paying off a prior loan made by the same lender), when the payee will be paid directly out of the settlement proceeds. It is not used to list payees of settlement charges, nor to list funds disbursed directly to the borrower, even if the lender knows the borrower’s intended use of the funds. For example, in a refinancing transaction, the loan proceeds are used to pay off an existing loan. The name of the lender for the loan being paid off and the pay-off balance would be entered in section M. In a home improvement transaction when the proceeds are to be paid to the home improvement contractor, the name of the contractor and the amount paid to the contractor would be entered in section M. In a consolidation loan, or when part of the loan proceeds is used to pay off other creditors, the name of each creditor and the amount paid to that creditor would be entered in section M. If the proceeds are to be given directly to the borrower and the borrower will use the proceeds to pay off existing obligations, this would not be reflected in section M. Section N. Net Settlement. Line 1600 normally sets forth the principal amount of the loan as it appears on the related note for this loan. In the event this form is used for an open-ended home equity line whose approved amount is greater than the initial amount advanced at settlement, the amount shown on Line 1600 will be the loan amount advanced at settlement. Line 1601 is used for all settlement charges that both are included in the totals for lines 1400 and 1602, and are not financed as part of the principal amount of the loan. This is the amount normally received by the lender from the borrower at settlement, which would occur when some or all of the settlement charges were paid in cash by the borrower at settlement, instead of being financed as part of the principal amount of the loan. Failure to include any such amount in line 1601 will result in an error in the amount calculated on line 1604. Items paid outside of closing (P.O.C.) should not be included in Line 1601. Line 1602 is the total amount from line 1400. Line 1603 is the total amount from line 1520. Line 1604 is the amount disbursed to the borrower. This is determined by adding together the amounts for lines 1600 and 1601, and then subtracting any amounts listed on lines 1602 and 1603. PO 00000 Frm 00192 Fmt 4701 Sfmt 4702 Page 2 This section of the HUD–1A is similar to page 3 of the HUD–1. The instructions for page 3 of the HUD–1 should be followed insofar as possible. The HUD–1/1A Column should include any amounts shown on page 1 of the HUD–1A in the column as paid for by the borrower, plus any amounts that are shown as P.O.C. by the borrower. Inapplicable charges should be ignored. 4. Appendix B to part 1024 is amended by revising paragraph 12 to read as follows: Appendix B to Part 1024—Illustrations of Requirements of RESPA * * * * * 12. Facts. A is a mortgage broker who provides origination services to submit a loan to a lender for approval. The mortgage broker charges the borrower a uniform fee for the total origination services, as well as a direct up-front charge for reimbursement of credit reporting, appraisal services, or similar charges. Comment. The mortgage broker’s fee must be ﬂreflectedﬁ øitemized¿ in the Good Faith Estimate and on the HUD–1 Settlement Statement. Other charges which are paid for by the borrower and paid in advance are listed as P.O.C. on the HUD–1 Settlement Statement, and reflect the actual provider charge for such services. øAlso, any other fee or payment received by the mortgage broker from either the lender or the borrower arising from the initial funding transaction, including a servicing release premium or yield spread premium, is to be noted on the Good Faith Estimate and listed in the 800 series of the HUD–1 Settlement Statement.¿ 5. Appendix C to part 1024 is revised to read as follows: Appendix C to Part 1024—Instructions for Completing Good Faith Estimate (GFE) Form The following are instructions for completing the GFE required under section 5 of RESPA and 12 CFR 1024.7 of the Bureau regulations. The standardized form set forth in this Appendix is the required GFE form and must be provided exactly as specified; provided, however, preparers may replace HUD’s OMB approval number listed on the form with the Bureau’s OMB approval number when they reproduce the GFE form. The instructions for completion of the GFE are primarily for the benefit of the loan originator who prepares the form and need not be transmitted to the borrower(s) as an integral part of the GFE. The required standardized GFE form must be prepared completely and accurately. A separate GFE must be provided for each loan where a transaction will involve more than one mortgage loan. General Instructions The loan originator preparing the GFE may fill in information and amounts on the form by typewriter, hand printing, computer printing, or any other method producing clear and legible results. Under these instructions, the ‘‘form’’ refers to the required E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules standardized GFE form. Although the standardized GFE is a prescribed form, Blocks 3, 6, and 11 on page 2 may be adapted for use in particular loan situations, so that additional lines may be inserted there, and unused lines may be deleted. All fees for categories of charges shall be disclosed in U.S. dollar and cent amounts. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Specific Instructions Page 1 Top of the Form—The loan originator must enter its name, business address, telephone number, and email address, if any, on the top of the form, along with the applicant’s name, the address or location of the property for which financing is sought, and the date of the GFE. ‘‘Purpose.’’—This section describes the general purpose of the GFE as well as additional information available to the applicant. ‘‘Shopping for your loan.’’—This section requires no loan originator action. ‘‘Important dates.’’—This section briefly states important deadlines after which the loan terms that are the subject of the GFE may not be available to the applicant. In Line 1, the loan originator must state the date and, if necessary, time until which the interest rate for the GFE will be available. In Line 2, the loan originator must state the date until which the estimate of all other settlement charges for the GFE will be available. This date must be at least 10 business days from the date of the GFE. In Line 3, the loan originator must state how many calendar days within which the applicant must go to settlement once the interest rate is locked. In Line 4, the loan originator must state how many calendar days prior to settlement the interest rate would have to be locked, if applicable. ‘‘Summary of your loan.’’—In this section, for all loans the loan originator must fill in, where indicated: (i) The initial loan amount; (ii) The loan term; and (iii) The initial interest rate. ﬂFor reverse mortgage transactions: (i) The initial loan amount disclosed on the GFE is the amount of the initial principal limit of the loan; (ii) The loan term is disclosed as ‘‘N/A’’ when the loan term is conditioned upon the occurrence of a specified event, such as the death of the borrower or the borrower no longer occupying the property for a certain period of time; and (iii) The initial interest rate is the interest rate indicated on the legal obligation.ﬁ The loan originator must fill in the initial monthly amount owed for principal, interest, and any mortgage insurance. The amount shown must be the greater of: (1) The required monthly payment for principal and interest for the first regularly scheduled payment, plus any monthly mortgage insurance payment; or (2) the accrued interest for the first regularly scheduled payment, plus any monthly mortgage insurance payment. ﬂFor reverse mortgage transactions where there are no regular payment periods, the loan originator must disclose ‘‘Not Applicable’’ or ‘‘N/A’’ for the VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 initial monthly amount owed for principal, interest, and any mortgage insurance.ﬁ The loan originator must indicate whether the interest rate can rise, and, if it can, must insert the maximum rate to which it can rise over the life of the loan. The loan originator must also indicate the period of time after which the interest rate can first change. The loan originator must indicate whether the loan balance can rise even if the borrower makes payments on time, for example in the case of a loan with negative amortization. If it can, the loan originator must insert the maximum amount to which the loan balance can rise over the life of the loan. For Federal, State, local, or tribal housing programs that provide payment assistance, any repayment of such program assistance should be excluded from consideration in completing this item. If the loan balance will increase only because escrow items are being paid through the loan balance, the loan originator is not required to check the box indicating that the loan balance can rise. ﬂFor reverse mortgage transactions, the loan originator must indicate that the loan balance can rise even if the borrower makes payments on time and the maximum amount to which the loan balance can rise must be disclosed as ‘‘Unknown.’’ﬁ The loan originator must indicate whether the monthly amount owed for principal, interest, and any mortgage insurance can rise even if the borrower makes payments on time. If the monthly amount owed can rise even if the borrower makes payments on time, the loan originator must indicate the period of time after which the monthly amount owed can first change, the maximum amount to which the monthly amount owed can rise at the time of the first change, and the maximum amount to which the monthly amount owed can rise over the life of the loan. The amount used for the monthly amount owed must be the greater of: (1) The required monthly payment for principal and interest for that month, plus any monthly mortgage insurance payment; or (2) the accrued interest for that month, plus any monthly mortgage insurance payment. ﬂFor reverse mortgage transactions, the loan originator must disclose that the monthly amount owed for principal, interest, and any mortgage insurance cannot rise.ﬁ The loan originator must indicate whether the loan includes a prepayment penalty, and, if so, the maximum amount that it could be. The loan originator must indicate whether the loan requires a balloon payment and, if so, the amount of the payment and in how many years it will be due. ﬂReverse mortgage transactions are not considered to be balloon transactions for the purposes of this disclosure on the GFE.ﬁ ‘‘Escrow account information.’’—The loan originator must indicate whether the loan includes an escrow account for property taxes and other financial obligations. The amount shown in the ‘‘Summary of your loan’’ section for ‘‘Your initial monthly amount owed for principal, interest, and any mortgage insurance’’ must be entered in the space for the monthly amount owed in this section. ﬂFor reverse mortgage transactions where the lender will establish an arrangement to pay for such items as PO 00000 Frm 00193 Fmt 4701 Sfmt 4702 51307 property taxes and homeowner’s insurance through draws from the principal limit, the loan originator must indicate that an escrow account is included and the amount shown in this section must be disclosed as ‘‘N/A.’’ﬁ ‘‘Summary of your settlement charges.’’— On this line, the loan originator must state the Adjusted Origination Charges from subtotal A of page 2, the Charges for All Other Settlement Services from subtotal B of page 2, and the Total Estimated Settlement Charges from the bottom of page 2. Page 2 ‘‘Understanding your estimated settlement charges.’’—This section details 11 settlement cost categories and amounts associated with the mortgage loan. For purposes of determining whether a tolerance has been met, the amount on the GFE should be compared with the total of any amounts shown on the HUD–1 in the borrower’s column and any amounts paid outside closing by or on behalf of the borrower. ‘‘Your Adjusted Origination Charges.’’ Block 1, ‘‘Our origination charge.’’—The loan originator must state here all charges that all loan originators involved in this transaction will receive, except for any charge for the specific interest rate chosen (points). A loan originator may not separately charge any additional fees for getting this loan, including for application, processing, or underwriting. The amount stated in Block 1 is subject to zero tolerance, i.e., the amount may not increase at settlement. Block 2, ‘‘Your credit or charge (points) for the specific interest rate chosen.’’—For transactions involving mortgage brokers, the mortgage broker must indicate through check boxes whether there is a credit to the borrower for the interest rate chosen on the loan, the interest rate, and the amount of the credit, or whether there is an additional charge (points) to the borrower for the interest rate chosen on the loan, the interest rate, and the amount of that charge. Only one of the boxes may be checked; a credit and charge cannot occur together in the same transaction. For transactions without a mortgage broker, the lender may choose not to separately disclose in this block any credit or charge for the interest rate chosen on the loan; however, if this block does not include any positive or negative figure, the lender must check the first box to indicate that ‘‘The credit or charge for the interest rate you have chosen’’ is included in ‘‘Our origination charge’’ above (see Block 1 instructions above), must insert the interest rate, and must also insert ‘‘0’’ in Block 2. Only one of the boxes may be checked; a credit and charge cannot occur together in the same transaction. For a mortgage broker, the credit or charge for the specific interest rate chosen is the net payment to the mortgage broker from the lender (i.e., the sum of all payments to the mortgage broker from the lender, including payments based on the loan amount, a flat rate, or any other computation, and in a table funded transaction, the loan amount less the price paid for the loan by the lender). When the net payment to the mortgage broker from the lender is positive, there is a credit to the borrower and it is entered as a negative E:\FR\FM\23AUP2.SGM 23AUP2 51308 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 amount in Block 2 of the GFE. When the net payment to the mortgage broker from the lender is negative, there is a charge to the borrower and it is entered as a positive amount in Block 2 of the GFE. If there is no net payment (i.e., the credit or charge for the specific interest rate chosen is zero), the mortgage broker must insert ‘‘0’’ in Block 2 and may check either the box indicating there is a credit of ‘‘0’’ or the box indicating there is a charge of ‘‘0’’. The amount stated in Block 2 is subject to zero tolerance while the interest rate is locked, i.e., any credit for the interest rate chosen cannot decrease in absolute value terms and any charge for the interest rate chosen cannot increase. (Note: An increase in the credit is allowed since this increase is a reduction in cost to the borrower. A decrease in the credit is not allowed since it is an increase in cost to the borrower.) Line A, ‘‘Your Adjusted Origination Charges.’’—The loan originator must add the numbers in Blocks 1 and 2 and enter this subtotal at highlighted Line A. The subtotal at Line A will be a negative number if there is a credit in Block 2 that exceeds the charge in Block 1. The amount stated in Line A is subject to zero tolerance while the interest rate is locked. In the case of ‘‘no cost’’ loans, where ‘‘no cost’’ refers only to the loan originator’s fees, Line A must show a zero charge as the adjusted origination charge. In the case of ‘‘no cost’’ loans where ‘‘no cost’’ encompasses third party fees as well as the upfront payment to the loan originator, all of the third party fees listed in Block 3 through Block 11 to be paid for by the loan originator (or borrower, if any) must be itemized and listed on the GFE. The credit for the interest rate chosen must be large enough that the total for Line A will result in a negative number to cover the third party fees. ‘‘Your Charges for All Other Settlement Services’’ There is a 10 percent tolerance applied to the sum of the prices of each service listed in Block 3, Block 4, Block 5, Block 6, and Block 7, where the loan originator requires the use of a particular provider or the borrower uses a provider selected or identified by the loan originator. Any services in Block 4, Block 5, or Block 6 for which the borrower selects a provider other than one identified by the loan originator are not subject to any tolerance and, at settlement, would not be included in the sum of the charges on which the 10 percent tolerance is based. Where a loan originator permits a borrower to shop for third party settlement services, the loan originator must provide the borrower with a written list of settlement services providers at the time of the GFE, on a separate sheet of paper. Block 3, ‘‘Required services that we select.’’—In this block, the loan originator must identify each third party settlement service required and selected by the loan originator (excluding title services), along with the estimated price to be paid to the provider of each service. Examples of such third party settlement services might include provision of credit reports, appraisals, flood checks, tax services, and any upfront VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 mortgage insurance premium. The loan originator must identify the specific required services and provide an estimate of the price of each service. Loan originators are also required to add the individual charges disclosed in this block and place that total in the column of this block. The charge shown in this block is subject to an overall 10 percent tolerance as described above. Block 4, ‘‘Title services and lender’s title insurance.’’—In this block, the loan originator must state the estimated total charge for third party settlement service providers for all closing services, regardless of whether the providers are selected or paid for by the borrower, seller, or loan originator. The loan originator must also include any lender’s title insurance premiums, when required, regardless of whether the provider is selected or paid for by the borrower, seller, or loan originator. All fees for title searches, examinations, and endorsements, for example, would be included in this total. The charge shown in this block is subject to an overall 10 percent tolerance as described above. Block 5, ‘‘Owner’s title insurance.’’—In this block, for all purchase transactions the loan originator must provide an estimate of the charge for the owner’s title insurance and related endorsements, regardless of whether the providers are selected or paid for by the borrower, seller, or loan originator. For nonpurchase transactions, the loan originator may enter ‘‘NA’’ or ‘‘Not Applicable’’ in this Block. The charge shown in this block is subject to an overall 10 percent tolerance as described above. Block 6, ‘‘Required services that you can shop for.’’—In this block, the loan originator must identify each third party settlement service required by the loan originator where the borrower is permitted to shop for and select the settlement service provider (excluding title services), along with the estimated charge to be paid to the provider of each service. The loan originator must identify the specific required services (e.g., survey, pest inspection) and provide an estimate of the charge of each service. The loan originator must also add the individual charges disclosed in this block and place the total in the column of this block. The charge shown in this block is subject to an overall 10 percent tolerance as described above. Block 7, ‘‘Government recording charge.’’— In this block, the loan originator must estimate the State and local government fees for recording the loan and title documents that can be expected to be charged at settlement. The charge shown in this block is subject to an overall 10 percent tolerance as described above. Block 8, ‘‘Transfer taxes.’’—In this block, the loan originator must estimate the sum of all State and local government fees on mortgages and home sales that can be expected to be charged at settlement, based upon the proposed loan amount or sales price and on the property address. A zero tolerance applies to the sum of these estimated fees. Block 9, ‘‘Initial deposit for your escrow account.’’—In this block, the loan originator must estimate the amount that it will require the borrower to place into a reserve or escrow PO 00000 Frm 00194 Fmt 4701 Sfmt 4702 account at settlement to be applied to recurring charges for property taxes, homeowner’s and other similar insurance, mortgage insurance, and other periodic charges. The loan originator must indicate through check boxes if the reserve or escrow account will cover future payments for all tax, all hazard insurance, and other obligations that the loan originator requires to be paid as they fall due. If the reserve or escrow account includes some, but not all, property taxes or hazard insurance, or if it includes mortgage insurance, the loan originator should check ‘‘other’’ and then list the items included. Block 10, ‘‘Daily interest charges.’’—In this block, the loan originator must estimate the total amount that will be due at settlement for the daily interest on the loan from the date of settlement until the first day of the first period covered by scheduled mortgage payments. The loan originator must also indicate how this total amount is calculated by providing the amount of the interest charges per day and the number of days used in the calculation, based on a stated projected closing date. Block 11, ‘‘Homeowner’s insurance.’’—The loan originator must estimate in this block the total amount of the premiums for any hazard insurance policy and other similar insurance, such as fire or flood insurance that must be purchased at or before settlement to meet the loan originator’s requirements. The loan originator must also separately indicate the nature of each type of insurance required along with the charges. To the extent a loan originator requires that such insurance be part of an escrow account, the amount of the initial escrow deposit must be included in Block 9. Line B, ‘‘Your Charges for All Other Settlement Services.’’—The loan originator must add the numbers in Blocks 3 through 11 and enter this subtotal in the column at highlighted Line B. Line A+B, ‘‘Total Estimated Settlement Charges.’’—The loan originator must add the subtotals in the right-hand column at highlighted Lines A and B and enter this total in the column at highlighted Line A+B. Page 3 ‘‘Instructions.’’ ‘‘Understanding which charges can change at settlement.’’—This section informs the applicant about which categories of settlement charges can increase at closing, and by how much, and which categories of settlement charges cannot increase at closing. This section requires no loan originator action. ‘‘Using the tradeoff table.’’—This section is designed to make borrowers aware of the relationship between their total estimated settlement charges on one hand, and the interest rate and resulting monthly payment on the other hand. The loan originator must complete the left hand column using the loan amount, interest rate, monthly payment figure, and the total estimated settlement charges from page 1 of the GFE. The loan originator, at its option, may provide the borrower with the same information for two alternative loans, one with a higher interest rate, if available, and one with a lower E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules interest rate, if available, from the loan originator. The loan originator should list in the tradeoff table only alternative loans for which it would presently issue a GFE based on the same information the loan originator considered in issuing this GFE. The alternative loans must use the same loan amount and be otherwise identical to the loan in the GFE. The alternative loans must have, for example, the identical number of payment periods; the same margin, index, and adjustment schedule if the loans are adjustable rate mortgages; and the same requirements for prepayment penalty and balloon payments. If the loan originator fills in the tradeoff table, the loan originator must show the borrower the loan amount, alternative interest rate, alternative monthly payment, the change in the monthly payment from the loan in this GFE to the alternative loan, the change in the total settlement charges from the loan in this GFE to the alternative loan, and the total settlement charges for the alternative loan. If these options are available, an applicant may request a new GFE, and a new GFE must be provided by the loan originator. ‘‘Using the shopping chart.’’—This chart is a shopping tool to be provided by the loan originator for the borrower to complete, in order to compare GFEs. ‘‘If your loan is sold in the future.’’—This section requires no loan originator action. PART 1026—TRUTH IN LENDING (REGULATION Z) 6. The authority citation for part 1026 is revised to read as follows: Authority: 12 U.S.C. ﬂ2601; 2603–2605, 2607, 2609, 2617, 5511,ﬁ 5512, ﬂ5532,ﬁ 5581; 15 U.S.C. 1601 et seq. 7. Section 1026.1 is amended by revising paragraphs (a), (b), (c)(5), (d)(5), and (e) to read as follows: mstockstill on DSK4VPTVN1PROD with PROPOSALS2 § 1026.1 Authority, purpose, coverage, organization, enforcement, and liability. (a) Authority. This part, known as Regulation Z, is issued by the Bureau of Consumer Financial Protection to implement the Federal Truth in Lending Act, which is contained in title I of the Consumer Credit Protection Act, as amended (15 U.S.C. 1601 et seq.). This part also implements title XII, section 1204 of the Competitive Equality Banking Act of 1987 (Pub. L. 100–86, 101 Stat. 552). ﬂFurthermore, this part implements certain provisions of the Real Estate Settlement Procedures Act of 1974, as amended (12 U.S.C. 2601 et seq.).ﬁ Information-collection requirements contained in this part have been approved by the Office of Management and Budget under the provisions of 44 U.S.C. 3501 et seq. and have been assigned OMB No. 3170–0015 ﬂ(Truth in Lending)ﬁ. (b) Purpose. The purpose of this part is to promote the informed use of consumer credit by requiring disclosures about its terms and costﬂ, VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 to ensure that consumers are provided with greater and more timely information on the nature and costs of the residential real estate settlement process, and to result in a more effective advance disclosure to home buyers and sellers of settlement costsﬁ. The regulation also includes substantive protections. It gives consumers the right to cancel certain credit transactions that involve a lien on a consumer’s principal dwelling, regulates certain credit card practices, and provides a means for fair and timely resolution of credit billing disputes. The regulation does not generally govern charges for consumer credit, except that several provisions in subpart G set forth special rules addressing certain charges applicable to credit card accounts under an open-end (not home-secured) consumer credit plan. The regulation requires a maximum interest rate to be stated in variable-rate contracts secured by the consumer’s dwelling. It also imposes limitations on home-equity plans that are subject to the requirements of § 1026.40 and mortgages that are subject to the requirements of § 1026.32. The regulation prohibits certain acts or practices in connection with credit secured by a dwelling in § 1026.36, and credit secured by a consumer’s principal dwelling in § 1026.35. The regulation also regulates certain practices of creditors who extend private education loans as defined in § 1026.46(b)(5). ﬂIn addition, it imposes certain limitations on increases in costs for mortgage transactions subject to § 1026.19(e) and (f).ﬁ (c) Coverage. * * * ﬂ(5) No person is required to provide the disclosures required by sections 128(a)(16) through (19), 128(b)(4), 129C(f)(1), 129C(g)(2) and (3), 129C(h), 129D(h), or 129D(j)(1)(A) of the Truth in Lending Act or section 4(c) of the Real Estate Settlement Procedures Act.ﬁ (d) Organization. * * * (5) Subpart E contains special rules for mortgage transactions. Section 1026.32 requires certain disclosures and provides limitations for closed-end loans that have rates or fees above specified amounts. Section 1026.33 requires special disclosures, including the total annual loan cost rate, for reverse mortgage transactions. Section 1026.34 prohibits specific acts and practices in connection with closed-end mortgage transactions that are subject to § 1026.32. Section 1026.35 prohibits specific acts and practices in connection with closed-end higher-priced mortgage loans, as defined in § 1026.35(a). Section 1026.36 prohibits specific acts and practices in connection with an extension of credit secured by a PO 00000 Frm 00195 Fmt 4701 Sfmt 4702 51309 dwelling. ﬂSections 1026.37 and 1026.38 set forth the special disclosure requirements for certain closed-end transactions secured by real property, as required by § 1026.19(e), (f), and (g).ﬁ * * * * * (e) Enforcement and liability. Section 108 of the ﬂTruth in Lendingﬁ Act contains the administrative enforcement provisions ﬂfor that Actﬁ. Sections 112, 113, 130, 131, and 134 contain provisions relating to liability for failure to comply with the requirements of the ﬂTruth in Lendingﬁ Act and the regulation. Section 1204(c) of title XII of the Competitive Equality Banking Act of 1987, Pub. L. 100–86, 101 Stat. 552, incorporates by reference administrative enforcement and civil liability provisions of sections 108 and 130 of the ﬂTruth in Lendingﬁ Act. ﬂSection 19 of the Real Estate Settlement Procedures Act contains the administrative enforcement provisions for that Act.ﬁ 8. Section 1026.2 is amended by revising paragraphs (a)(3), (a)(6), and (a)(25) to read as follows: § 1026.2 Definitions and rules of construction. (a) Definitions. For purposes of this regulation, the following definitions apply: * * * * * ﬂ(3)(i) Application means the submission of a consumer’s financial information for the purposes of obtaining an extension of credit. (ii) Except for purposes of subpart B, subpart F, and subpart G of this part, an application consists of the submission of the consumer’s name, the consumer’s income, the consumer’s social security number to obtain a credit report, the property address, an estimate of the value of the property, and the mortgage loan amount sought.ﬁ * * * * * (6) Business day means a day on which the creditor’s offices are open to the public for carrying on substantially all of its business functions. However, for purposes of rescission under §§ 1026.15 and 1026.23, and for purposes of §§ 1026.19(a)(1)(ii), 1026.19(a)(2), ﬂ1026.19(e)(1)(iii), 1026.19(e)(1)(iv), 1026.19(e)(2)(i)(A), 1026.19(f)(1)(ii), 1026.19(f)(1)(iii),ﬁ 1026.31, and 1026.46(d)(4), the term means all calendar days except Sundays and the legal public holidays specified in 5 U.S.C. 6103(a), such as New Year’s Day, the Birthday of Martin Luther King, Jr., Washington’s Birthday, Memorial Day, Independence Day, Labor Day, E:\FR\FM\23AUP2.SGM 23AUP2 51310 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules Columbus Day, Veterans Day, Thanksgiving Day, and Christmas Day. * * * * * (25) Security interest means an interest in property that secures performance of a consumer credit obligation and that is recognized by State or Federal law. It does not include incidental interests such as interests in proceeds, accessions, additions, fixtures, insurance proceeds (whether or not the creditor is a loss payee or beneficiary), premium rebates, or interests in after-acquired property. For purposes of disclosures under §§ 1026.6ﬂ,ﬁ øand¿ 1026.18, ﬂ1026.19(e) and (f), and 1026.38(l)(6),ﬁ the term does not include an interest that arises solely by operation of law. However, for purposes of the right of rescission under §§ 1026.15 and 1026.23, the term does include interests that arise solely by operation of law. * * * * * 9. Section 1026.3 is amended by revising the introductory text and adding new paragraph (h) to read as follows: mstockstill on DSK4VPTVN1PROD with PROPOSALS2 § 1026.3 Exempt transactions. ﬂThe following transactions are not subject to this part or, if the exemption is limited to specified provisions of this part, are not subject to those provisionsﬁ øThis part does not apply to the following¿: * * * * * ﬂ(h) Partial exemption for certain mortgage loans. The special disclosure requirements in § 1026.19(e), (f), and (g) do not apply to a transaction that satisfies all of the following criteria: (1) The transaction is secured by a subordinate lien; (2) The transaction is for the purpose of: (i) Downpayment, closing costs, or other similar homebuyer assistance, such as principal or interest subsidies; (ii) Property rehabilitation assistance; (iii) Energy efficiency assistance; or (iv) Foreclosure avoidance or prevention; (3) The credit contract does not require the payment of interest; (4) The credit contract provides that repayment of the amount of credit extended is: (i) Forgiven either incrementally or in whole, at a date certain, and subject only to specified ownership and occupancy conditions, such as a requirement that the consumer maintain the property as the consumer’s principal dwelling for five years; (ii) Deferred for a minimum of 20 years; VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 (iii) Deferred until sale of the property securing the transaction; or (iv) Deferred until the property securing the transaction is no longer the principal dwelling of the consumer; (5) The total of closing costs payable by the consumer in connection with the transaction is less than one percent of the amount of credit extended and includes no charges other than: (i) Fees for recordation of security instruments, deeds, and similar documents; (ii) A bona fide and reasonable application fee; and (iii) A bona fide and reasonable fee for housing counseling services; and (6) The creditor complies with all other applicable requirements of this part in connection with the transaction, including without limitation the disclosures required by § 1026.18 even if the creditor would not otherwise be subject to the disclosure requirements of § 1026.18.ﬁ 10. Section 1026.4 is amended by revising paragraphs (a)(2), (c) introductory text, (d)(1), (d)(2), (d)(3), and (e), and adding new paragraph (g), to read as follows: § 1026.4 Finance charge. (a) * * * (2) Special rule; closing agent charges. ﬂExcept as provided in § 1026.4(g), feesﬁ øFees¿ charged by a third party that conducts the loan closing (such as a settlement agent, attorney, or escrow or title company) are finance charges only if the creditor: (i) Requires the particular services for which the consumer is charged; (ii) Requires the imposition of the charge; or (iii) Retains a portion of the thirdparty charge, to the extent of the portion retained. * * * * * (c) Charges excluded from the finance charge. ﬂExcept as provided in § 1026.4(g), theﬁ øThe¿ following charges are not finance charges: * * * * * (d) Insurance and debt cancellation and debt suspension coverage. (1) Voluntary credit insurance premiums. ﬂExcept as provided in § 1026.4(g), premiumsﬁ øPremiums¿ for credit life, accident, health, or loss-of-income insurance may be excluded from the finance charge if the following conditions are met: (i) The insurance coverage is not required by the creditor, and this fact is disclosed in writing. (ii) The premium for the initial term of insurance coverage is disclosed in writing. If the term of insurance is less PO 00000 Frm 00196 Fmt 4701 Sfmt 4702 than the term of the transaction, the term of insurance also shall be disclosed. The premium may be disclosed on a unit-cost basis only in open-end credit transactions, closed-end credit transactions by mail or telephone under § 1026.17(g), and certain closedend credit transactions involving an insurance plan that limits the total amount of indebtedness subject to coverage. (iii) The consumer signs or initials an affirmative written request for the insurance after receiving the disclosures specified in this paragraph, except as provided in paragraph (d)(4) of this section. Any consumer in the transaction may sign or initial the request. (2) Property insurance premiums. Premiums for insurance against loss of or damage to property, or against liability arising out of the ownership or use of property, including single interest insurance if the insurer waives all right of subrogation against the consumer, may be excluded from the finance charge if the following conditions are met: (i) The insurance coverage may be obtained from a person of the consumer’s choice, and this fact is disclosed. (A creditor may reserve the right to refuse to accept, for reasonable cause, an insurer offered by the consumer.) (ii) If the coverage is obtained from or through the creditor ﬂor from an affiliate of the creditor,ﬁ the premium for the initial term of insurance coverage shall be disclosed. If the term of insurance is less than the term of the transaction, the term of insurance shall also be disclosed. The premium may be disclosed on a unit-cost basis only in open-end credit transactions, closed-end credit transactions by mail or telephone under § 1026.17(g), and certain closedend credit transactions involving an insurance plan that limits the total amount of indebtedness subject to coverage. (3) Voluntary debt cancellation or debt suspension fees. ﬂExcept as provided in § 1026.4(g), chargesﬁ øCharges¿ or premiums paid for debt cancellation coverage for amounts exceeding the value of the collateral securing the obligation or for debt cancellation or debt suspension coverage in the event of the loss of life, health, or income or in case of accident may be excluded from the finance charge, whether or not the coverage is insurance, if the following conditions are met: (i) The debt cancellation or debt suspension agreement or coverage is not E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules required by the creditor, and this fact is disclosed in writing; (ii) The fee or premium for the initial term of coverage is disclosed in writing. If the term of coverage is less than the term of the credit transaction, the term of coverage also shall be disclosed. The fee or premium may be disclosed on a unit-cost basis only in open-end credit transactions, closed-end credit transactions by mail or telephone under § 1026.17(g), and certain closed-end credit transactions involving a debt cancellation agreement that limits the total amount of indebtedness subject to coverage; (iii) The following are disclosed, as applicable, for debt suspension coverage: That the obligation to pay loan principal and interest is only suspended, and that interest will continue to accrue during the period of suspension. (iv) The consumer signs or initials an affirmative written request for coverage after receiving the disclosures specified in this paragraph, except as provided in paragraph (d)(4) of this section. Any consumer in the transaction may sign or initial the request. * * * * * (e) Certain security interest charges. ﬂExcept as provided in § 1026.4(g), ifﬁ øIf¿ itemized and disclosed, the following charges may be excluded from the finance charge: * * * * * ﬂ(g) Special rule for closed-end mortgage transactions. Paragraphs (a)(2) and (c) through (e) of this section, other than paragraphs (c)(2), (c)(5), (c)(7)(v), and (d)(2), do not apply to closed-end transactions secured by real property or a dwelling.ﬁ 11. Section 1026.17 is amended by adding introductory text to paragraph (a) and revising paragraphs (b), (f) introductory text, (g) introductory text, and (h) introductory text to read as follows: mstockstill on DSK4VPTVN1PROD with PROPOSALS2 § 1026.17 General disclosure requirements. (a) Form of disclosures. ﬂExcept for the disclosures required by § 1026.19(e), (f), and (g):ﬁ * * * * * (b) Time of disclosures. The creditor shall make disclosures before consummation of the transaction. In certain residential mortgage transactions, special timing requirements are set forth in § 1026.19(a). In certain variable-rate transactions, special timing requirements for variable-rate disclosures are set forth in § 1026.19(b) and § 1026.20(c). For private education VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 51311 loan disclosures made in compliance with § 1026.47, special timing requirements are set forth in § 1026.46(d). In certain transactions involving mail or telephone orders or a series of sales, the timing of disclosures may be delayed in accordance with paragraphs (g) and (h) of this section. ﬂThis paragraph (b) does not apply to the disclosures required by § 1026.19(e), (f), and (g).ﬁ * * * * * (f) Early disclosures. Except for private education loan disclosures made in compliance with § 1026.47, if disclosures required by this subpart are given before the date of consummation of a transaction and a subsequent event makes them inaccurate, the creditor shall disclose before consummation (subject to the provisions of § 1026.19(a)(2)ﬂ, (e), and (f)):ﬁ øand § 1026.19(a)(5)(iii)):¿ * * * * * (g) Mail or telephone orders—delay in disclosures. Except for private education loan disclosures made in compliance with § 1026.47 ﬂand mortgage disclosures made in compliance with § 1026.19(a), (e), and (f)ﬁ, if a creditor receives a purchase order or a request for an extension of credit by mail, telephone, or facsimile machine without face-to-face or direct telephone solicitation, the creditor may delay the disclosures until the due date of the first payment, if the following information for representative amounts or ranges of credit is made available in written form or in electronic form to the consumer or to the public before the actual purchase order or request: * * * * * (h) Series of sales—delay in disclosures. ﬂExcept for mortgage disclosures made in compliance with § 1026.19(a), (e), and (f), ifﬁ øIf¿ a credit sale is one of a series made under an agreement providing that subsequent sales may be added to an outstanding balance, the creditor may delay the required disclosures until the due date of the first payment for the current sale, if the following two conditions are met: * * * * * 12. Section 1026.18 is amended by revising the introductory text and paragraphs (k), (s) introductory text, (s)(3)(i)(C), and (t)(1) to read as follows: (k) Prepayment. (1) When an obligation includes a finance charge computed from time to time by application of a rate to the unpaid principal balance, a statement indicating whether or not a ﬂchargeﬁ øpenalty¿ may be imposed ﬂfor paying all or part of a loan’s principal balance before the date on which the principal is due.ﬁ øif the obligation is prepaid in full.¿ (2) When an obligation includes a finance charge other than the finance charge described in paragraph (k)(1) of this section, a statement indicating whether or not the consumer is entitled to a rebate of any finance charge if the obligation is prepaid in full ﬂor in partﬁ. * * * * * (s) Interest rate and payment summary for mortgage transactions. For a closed-end transaction secured by real property or a dwelling, other than a transaction ﬂthat is subject to § 1026.19(e) and (f)ﬁ øsecured by a consumer’s interest in a timeshare plan described in 11 U.S.C. 101(53D)¿, the creditor shall disclose the following information about the interest rate and payments: * * * * * (3) Payments for amortizing loans. (i) Principal and interest payments. * * * (C) If an escrow account will be established, an estimate of the amount of taxes and insurance, including any mortgage insurance ﬂor any functional equivalentﬁ, payable with each periodic payment; and * * * * * (t) ‘‘No-guarantee-to-refinance’’ statement. (1) Disclosure. For a closedend transaction secured by real property or a dwelling, other than a transaction ﬂthat is subject to § 1026.19(e) and (f)ﬁ øsecured by a consumer’s interest in a timeshare plan described in 11 U.S.C. 101(53D)¿, the creditor shall disclose a statement that there is no guarantee the consumer can refinance the transaction to lower the interest rate or periodic payments. * * * * * 13. Section 1026.19 is amended by revising paragraph (a)(1)(i) and (ii), removing paragraph (a)(5), and adding new paragraphs (e), (f), and (g), to read as follows: § 1026.18 § 1026.19 Certain mortgage and variablerate transactions. Content of disclosures. For each transaction ﬂother than a mortgage transaction subject to § 1026.19(e) and (f)ﬁ, the creditor shall disclose the following information as applicable: * * * * * PO 00000 Frm 00197 Fmt 4701 Sfmt 4702 (a) ﬂReverse mortgageﬁ øMortgage¿ transactions subject to RESPA. (1)(i) Time of disclosures. In a ﬂreverseﬁ mortgage transaction subject to ﬂboth § 1026.33 andﬁ the Real Estate Settlement Procedures Act (12 U.S.C. E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51312 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 2601 et seq.) that is secured by the consumer’s dwelling, øother than a home equity line of credit subject to § 1026.40 or mortgage transaction subject to paragraph (a)(5) of this section,¿ the creditor shall make good faith estimates of the disclosures required by § 1026.18 and shall deliver or place them in the mail not later than the third business day after the creditor receives the consumer’s written application. (ii) Imposition of fees. Except as provided in paragraph (a)(1)(iii) of this section, neither a creditor nor any other person may impose a fee on a consumer in connection with the consumer’s application for a ﬂreverseﬁ mortgage transaction subject to paragraph (a)(1)(i) of this section before the consumer has received the disclosures required by paragraph (a)(1)(i) of this section. If the disclosures are mailed to the consumer, the consumer is considered to have received them three business days after they are mailed. (iii) Exception to fee restriction. A creditor or other person may impose a fee for obtaining the consumer’s credit history before the consumer has received the disclosures required by paragraph (a)(1)(i) of this section, provided the fee is bona fide and reasonable in amount. * * * * * ø(5) Timeshare plans. In a mortgage transaction subject to the Real Estate Settlement Procedures Act (12 U.S.C. 2601 et seq.) that is secured by a consumer’s interest in a timeshare plan described in 11 U.S.C. 101(53(D)): (i) The requirements of paragraphs (a)(1) through (a)(4) of this section do not apply; (ii) The creditor shall make good faith estimates of the disclosures required by § 1026.18 before consummation, or shall deliver or place them in the mail not later than three business days after the creditor receives the consumer’s written application, whichever is earlier; and (iii) If the annual percentage rate at the time of consummation varies from the annual percentage rate disclosed under paragraph (a)(5)(ii) of this section by more than 1⁄8 of 1 percentage point in a regular transaction or more than 1⁄4 of 1 percentage point in an irregular transaction, as defined in § 1026.22, the creditor shall disclose all the changed terms no later than consummation or settlement.¿ * * * * * ﬂ(e) Mortgage loans secured by real property—Early disclosures. (1) Provision. (i) Creditor. In a closed-end consumer credit transaction secured by real property, other than a reverse VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 mortgage subject to § 1026.33, the creditor shall make good faith estimates of the disclosures in § 1026.37. (ii) Mortgage broker. A mortgage broker may provide a consumer with the disclosures required under paragraph (e)(1)(i) of this section, provided the broker complies with all requirements of this paragraph (e) as if it were the creditor. The creditor shall ensure that disclosures are provided in accordance with the requirements of this paragraph (e). Disclosures provided by a broker in accordance with the requirements of this paragraph (e) satisfy the creditor’s obligation under paragraph (e)(1)(i) of this section. (iii) Timing. The creditor shall deliver the disclosures required under paragraph (e)(1)(i) of this section not later than the third business day after the creditor receives the consumer’s application, as defined in § 1026.2(a)(3). The creditor shall deliver the disclosures required under paragraph (e)(1)(i) of this section not later than the seventh business day before consummation of the transaction. (iv) Delivery. If any disclosures required under paragraph (e)(1)(i) of this section are not provided to the consumer in person, the consumer is presumed to have received the disclosures three business days after they are mailed or delivered to the address specified by the consumer. (v) Consumer’s waiver of waiting period before consummation. If the consumer determines that the extension of credit is needed to meet a bona fide personal financial emergency, the consumer may modify or waive the seven-business-day waiting period for early disclosures required under paragraph (e)(1)(iii) of this section, after receiving the disclosures required under paragraph (e)(1)(i) of this section. To modify or waive a waiting period, the consumer shall give the creditor a dated written statement that describes the emergency, specifically modifies or waives the waiting period, and bears the signature of all the consumers who are primarily liable on the legal obligation. Printed forms for this purpose are prohibited. (vi) Shopping for settlement service providers. (A) Shopping permitted. A creditor permits a consumer to shop for a settlement service if the creditor permits the consumer to select the provider of that service, subject to reasonable requirements. (B) Disclosure of services. The creditor shall identify the services for which the consumer is permitted to shop in the disclosures provided pursuant to paragraph 19(e)(1)(i) of this section. PO 00000 Frm 00198 Fmt 4701 Sfmt 4702 (C) Written list of providers. If the consumer is permitted to shop for a settlement service, the creditor shall provide the consumer with a written list identifying available providers of that settlement service and stating that the consumer may choose a different provider for that service. The creditor shall provide this written list of settlement service providers separately from the disclosures required by paragraph (e)(1)(i) of this section but in accordance with the timing requirements in paragraph (e)(1)(iii) of this section. (2) Pre-disclosure activity. (i) Imposition of fees on consumer. (A) Fee restriction. Except as provided in paragraph (e)(2)(i)(B) of this section, neither a creditor nor any other person may impose a fee on a consumer in connection with the consumer’s application for a mortgage transaction subject to paragraph (e)(1)(i) of this section before the consumer has received the disclosures required under paragraph (e)(1)(i) of this section and indicated to the creditor an intent to proceed with the transaction described by those disclosures. (B) Exception to fee restriction. A creditor or other person may impose a bona fide and reasonable fee for obtaining the consumer’s credit report before the consumer has received the disclosures required under paragraph (e)(1)(i) of this section. (ii) Written information provided to consumer. If a creditor provides a consumer with a written estimate of terms or costs specific to that consumer before the consumer receives the disclosures required under paragraph (e)(1)(i) of this section and indicates intent to proceed with the transaction, the creditor shall clearly and conspicuously state at the top of the front of the first page of the estimate in a font size that is no smaller than 12point font: ‘‘Your actual rate, payment, and costs could be higher. Get an official Loan Estimate before choosing a loan.’’ (iii) Verification of information. The creditor shall not require a consumer to submit documents verifying information related to the consumer’s application before providing the disclosures required by paragraph (e)(1)(i) of this section. (3) Good faith determination for estimates of closing costs. (i) General rule. An estimated closing cost is in good faith if the charge paid by or imposed on the consumer does not exceed the amount disclosed under paragraph (e)(1)(i) of this section, except as otherwise provided in paragraph (e)(3)(ii) through (iv) of this section. E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules (ii) Limited increases permitted for certain charges. An estimate of a charge for a third-party service or a recording fee is in good faith if: (A) The aggregate amount of charges for third-party services and recording fees paid by or imposed on the consumer does not exceed the aggregate amount of such charges disclosed under paragraph (e)(1)(i) of this section by more than 10 percent; (B) The charge is not paid to an affiliate of the creditor; and (C) The creditor permits the consumer to shop for the service, consistent with paragraph (e)(1)(vi)(A) of this section. (iii) Variations permitted for certain charges. An estimate of the following charges is in good faith if it is consistent with the best information reasonably available to the creditor at the time it is disclosed, regardless of whether the amount actually paid by the consumer exceeds the amount disclosed under paragraph (e)(1)(i) of this section: (A) Prepaid interest; (B) Property insurance premiums; (C) Amounts placed into an escrow, impound, reserve, or similar account; and (D) Charges paid to third-party service providers selected by the consumer consistent with paragraph (e)(1)(vi)(A) of this section that are not on the list provided pursuant to paragraph (e)(1)(vi)(C) of this section. (iv) Revised estimates. For the purpose of determining good faith under paragraph (e)(3)(i) and (ii) of this section, a charge paid by or imposed on the consumer may exceed the originally estimated charge if the revision is due to one of the following reasons: (A) Changed circumstance affecting settlement charges. Changed circumstances cause the estimated charges to increase or, in the case of estimated charges identified in paragraph (e)(3)(ii) of this section, cause the aggregate amount of such charges to increase by more than 10 percent. For purposes of this paragraph, ‘‘changed circumstance’’ means: (1) An extraordinary event beyond the control of any interested party or other unexpected event specific to the consumer or transaction; (2) Information specific to the consumer or transaction that the creditor relied upon when providing the disclosures required under paragraph (e)(1)(i) of this section and that was inaccurate or changed after the disclosures were provided; or (3) New information specific to the consumer or transaction that the creditor did not rely on when providing the original disclosures. VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 (B) Changed circumstance affecting eligibility. The consumer is ineligible for an estimated charge previously disclosed because a changed circumstance, as defined under paragraph (e)(3)(iv)(A) of this section, affected the consumer’s creditworthiness or the value of the security for the loan. (C) Revisions requested by the consumer. The consumer requests revisions to the credit terms or the settlement that cause an estimated charge to increase. (D) Interest rate dependent charges. The points or lender credits change because the interest rate was not set when the disclosures required under paragraph (e)(1)(i) of this section were provided. On the date the interest rate is set, the creditor shall provide revised disclosures under paragraph (e)(1)(i) of this section to the consumer with the revised interest rate, bona fide discount points, and lender credits. (E) Expiration. The consumer expresses an intent to proceed with the transaction more than ten business days after the disclosures required under paragraph (e)(1)(i) of this section are provided. (F) Delayed settlement date on a construction loan. In transactions involving new construction, where the creditor reasonably expects that settlement will occur more than 60 days after the disclosures required under paragraph (e)(1)(i) of this section are originally provided, the creditor may provide revised disclosures to the consumer if the original disclosures state clearly and conspicuously that at any time prior to 60 days before consummation, the creditor may issue revised disclosures. If no such statement is provided, the creditor may not issue revised disclosures, except as otherwise provided in paragraph (f) of this section. (4) Provision of revised disclosures. (i) Except as provided in paragraph (e)(4)(ii) of this section, if a creditor provides a revised disclosure pursuant to paragraph (e)(3)(iv) of this section, the creditor shall provide such revised disclosure within three business days of receiving information sufficient to establish that one of the reasons for revision provided under paragraph (e)(3)(iv)(A) through (F) of this section applies. (ii) The creditor shall not deliver a revised disclosure pursuant to paragraph (e)(3)(iv) of this section on or after the date on which the creditor delivers the disclosures required under paragraph (f)(1)(i) of this section. The consumer must receive a revised version of the disclosure required under paragraph (e)(1)(i) of this section no PO 00000 Frm 00199 Fmt 4701 Sfmt 4702 51313 later than four days prior to consummation. Alternative 1—Paragraph (f)(1) (f) Mortgage loans secured by real property—Final disclosures. (1) Provision. (i) Scope. In a closed-end consumer credit transaction secured by real property, other than a reverse mortgage subject to § 1026.33, the creditor shall provide the consumer with the disclosures in § 1026.38 reflecting the actual terms of the transaction. (ii) Timing. (A) In general. Except as provided in paragraph (f)(1)(ii)(B) or (f)(2) of this section, the creditor shall ensure that the consumer receives the disclosures required under paragraph (f)(1)(i) of this section no later than three business days before consummation. (B) Timeshares. For transactions secured by a consumer’s interest in a timeshare plan described in 11 U.S.C. 101(53D), the creditor shall ensure that the consumer receives the disclosures required under paragraph (f)(1)(i) of this section no later than consummation. (iii) Delivery. If any disclosures required under paragraph (f)(1)(i) of this section are not provided to the consumer in person, the consumer is presumed to have received the disclosures three business days after they are mailed or delivered to the address specified by the consumer. (iv) Consumer’s waiver of waiting period before consummation. If the consumer determines that the extension of credit is needed to meet a bona fide personal financial emergency, the consumer may modify or waive the three-business-day waiting period for the disclosures required under paragraph (f)(1)(ii) of this section, after receiving the disclosures required under paragraph (f)(1)(i) of this section. To modify or waive a waiting period, the consumer shall give the creditor a dated written statement that describes the emergency, specifically modifies or waives the waiting period, and bears the signature of all consumers who are primarily liable on the legal obligation. Printed forms for this purpose are prohibited. Alternative 2—Paragraph (f)(1) (f) Mortgage loans secured by real property—Final disclosures. (1) Provision. (i) Scope. In a closed-end consumer credit transaction secured by real property, other than a reverse mortgage subject to § 1026.33, the creditor shall provide the consumer with the disclosures in § 1026.38 reflecting the actual terms of the transaction. E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51314 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules (ii) Timing. (A) In general. Except as provided in paragraph (f)(1)(ii)(B) or (f)(2) of this section, the creditor shall ensure that the consumer receives the disclosures required under paragraph (f)(1)(i) of this section no later than three business days before consummation. (B) Timeshares. For transactions secured by a consumer’s interest in a timeshare plan described in 11 U.S.C. 101(53D), the creditor shall ensure that the consumer receives the disclosures required under paragraph (f)(1)(i) of this section no later than consummation. (iii) Delivery. If any disclosures required under paragraph (f)(1)(i) of this section are not provided to the consumer in person, the consumer is presumed to have received the disclosures three business days after they are mailed or delivered to the address specified by the consumer. (iv) Consumer’s waiver of waiting period before consummation. If the consumer determines that the extension of credit is needed to meet a bona fide personal financial emergency, the consumer may modify or waive the three-business-day waiting period for the disclosures required under paragraph (f)(1)(ii) of this section, after receiving the disclosures required under paragraph (f)(1)(i) of this section. To modify or waive a waiting period, the consumer shall give the creditor a dated written statement that describes the emergency, specifically modifies or waives the waiting period, and bears the signature of all consumers who are primarily liable on the legal obligation. Printed forms for this purpose are prohibited. (v) Settlement agent. A settlement agent may provide a consumer with the disclosures required under paragraph (f)(1)(i) of this section, provided the settlement agent complies with all requirements of this paragraph (f) as if it were the creditor. The creditor shall ensure that disclosures are provided in accordance with the requirements of this paragraph (f). Disclosures provided by a settlement agent in accordance with the requirements of this paragraph (f) satisfy the creditor’s obligation under paragraph (f)(1)(i) of this section. (2) Subsequent changes. If the disclosure provided pursuant to paragraph (f)(1)(i) of this section is subsequently revised for any of the reasons described in this paragraph (f)(2), a creditor need not comply with the timing requirements in paragraph (f)(1)(ii) of this section when providing a revised disclosure: (i) Changes due to consumer and seller negotiations. If, after the creditor provides the consumer with the disclosures required under paragraph VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 (f)(1)(i) of this section, the consumer and the seller agree to make changes to the transaction that affect items disclosed pursuant to paragraph (f)(1)(i) of this section, the creditor shall deliver revised disclosures reflecting such changes at or before consummation. (ii) Changes to the amount actually paid by the consumer. If the amount actually paid by the consumer does not exceed the amount disclosed pursuant to § 1026.38(d)(1) by more than one hundred dollars the creditor shall deliver revised disclosures at or before consummation. (iii) Changes due to events occurring after consummation. If an event occurs after consummation that causes disclosures required under paragraph (f)(1)(i) of this section to become inaccurate, and such inaccuracy results solely from payments to a government entity in connection with the transaction, the creditor shall deliver revised disclosures to the consumer not later than the third business day after the event occurs, provided the consumer receives the revised disclosures no later than 30 days after consummation. (iv) Changes due to clerical errors. A creditor does not violate section (f)(1)(i) if the disclosures provided under (f)(1)(i) contain non-numeric clerical errors, provided the creditor delivers revised disclosures as soon as reasonably practicable and no later than 30 days after consummation. (v) Refunds related to the good faith analysis. If amounts paid by the consumer exceed the amounts specified under paragraph (e)(3)(i) or (ii) of this section, the creditor complies with paragraph (e)(1)(i) of this section if the creditor refunds the excess to the consumer as soon as reasonably practicable and no later than 30 days after consummation, and the creditor complies with paragraph (f)(1)(i) of this section if the creditor delivers revised disclosures that reflect such refund as soon as reasonably practicable and no later than 30 days after consummation. (3) Charges disclosed. (i) Actual charge. The amount imposed upon the consumer for any settlement service shall not exceed the amount actually received by the service provider for that service, except as otherwise provided in paragraph (f)(3)(ii) of this section. (ii) Average charge. A creditor or settlement service provider may charge a consumer or seller the average charge for a settlement service if the following conditions are satisfied: (A) The average charge is no more than the average amount paid for that service by or on behalf of all consumers and sellers for a class of transactions; PO 00000 Frm 00200 Fmt 4701 Sfmt 4702 (B) The creditor or settlement service provider defines the class of transactions based on an appropriate period of time, geographic area, and type of loan; (C) The creditor or settlement service provider uses the same average charge for every transaction within the defined class; and (D) The creditor or settlement service provider does not use an average charge: (1) For any type of insurance; (2) For any charge based on the loan amount or property value; or (3) If doing so is otherwise prohibited by law. (4) Transactions involving a seller. (i) Provision to seller. In a closed-end consumer credit transaction secured by real property that involves a seller, other than a reverse mortgage subject to § 1026.33, the person conducting the real estate closing shall provide the seller with the disclosures in § 1026.38 that relate to the seller’s transaction. (ii) Timing. The person conducting the real estate closing shall provide the disclosures required under paragraph (f)(4)(i) of this section no later than the day of consummation. If an event occurs after consummation that causes disclosures required under paragraph (f)(4)(i) of this section to become inaccurate, and such inaccuracy results solely from payments to a government entity, the person conducting the real estate closing shall deliver revised disclosures to the seller no later than 30 days after consummation. (iii) Charges disclosed. The amount imposed on the seller for any settlement service shall not exceed the amount actually received by the service provider for that service, except as otherwise provided in paragraph (f)(3)(ii) of this section. (5) No fee. No fee may be imposed on any person, as a part of settlement costs or otherwise, by a creditor or by a servicer (as that term is defined under 12 U.S.C. 2605(i)(2)) for the preparation or delivery of the disclosures required under paragraph (f)(1)(i) of this section, escrow account statements required pursuant to section 10 of RESPA (12 U.S.C. 2609), or statements required by the Truth in Lending Act, 15 U.S.C. 1601 et seq. (g) Special information booklet at time of application. (1) Creditor to provide special information booklet. Except as provided in paragraphs (g)(1)(ii) and (iii) of this section, the creditor shall provide a copy of the special information booklet to a consumer who applies for a consumer credit transaction secured by real property. E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules (i) The creditor shall deliver the special information booklet to the consumer not later than three business days after the application is received. However, if the creditor denies the consumer’s application for credit before the end of the three-day period, the creditor need not provide the booklet. If a consumer uses a mortgage broker, the mortgage broker shall provide the special information booklet and the creditor need not do so. (ii) In the case of a home equity line of credit subject to § 1026.40, a creditor or mortgage broker that provides the consumer with a copy of the brochure entitled ‘‘When Your Home is On the Line: What You Should Know About Home Equity Lines of Credit,’’ or any successor brochure issued by the Bureau, is deemed to be in compliance with this section. (iii) The creditor or mortgage broker need not provide the booklet to the consumer for the following types of transactions: (A) Refinancing transactions; (B) Closed-end loans when the lender takes a subordinate lien; (C) Reverse mortgages; and (D) Any other consumer credit transaction secured by real property whose purpose is not the purchase of a one-to-four family residential property. (2) Permissible changes. No changes to, deletions from, or additions to the special information booklet shall be made other than the permissible changes specified in paragraphs (g)(2)(i) through (iv) of this section. (i) In the Complaints section of the booklet, it is a permissible change to substitute ‘‘the Bureau of Consumer Financial Protection’’ for ‘‘HUD’s Office of RESPA’’ and ‘‘the RESPA office.’’ (ii) In the Avoiding Foreclosure section of the booklet, it is a permissible change to inform homeowners that homeowners may find information on and assistance in avoiding foreclosures at https://www.consumerfinance.gov. The deletion of the reference to the HUD Web page, https://www.hud.gov/ foreclosure/, in the Avoiding Foreclosure section of the booklet is not a permissible change. (iii) In the No Discrimination Section of the Appendix to the booklet, it is a permissible change to substitute ‘‘the Bureau of Consumer Financial Protection’’ for the reference to the ‘‘Board of Governors of the Federal Reserve System.’’ In the Contact Information section of the Appendix to the booklet, it is a permissible change to add the following contact information for the Bureau: ‘‘Bureau of Consumer Financial Protection, 1700 G Street NW., Washington, DC 20552; VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 www.consumerfinance.gov/learnmore.’’ It is also a permissible change to remove the contact information for HUD’s Office of RESPA and Interstate Land Sales from the Contact Information section of the Appendix to the booklet. (iv) The cover of the booklet may be in any form and may contain any drawings, pictures or artwork, provided that the words ‘‘settlement costs’’ are used in the title. Names, addresses, and telephone numbers of the lender or others and similar information may appear on the cover, but no discussion of the matters covered in the booklet shall appear on the cover. References to HUD on the cover of the booklet may be changed to references to the Bureau.ﬁ 14. Section 1026.22 is amended by revising paragraphs (a)(4)(ii)(A) and (a)(5) to read as follows: § 1026.22 Determination of annual percentage rate. (a) Accuracy of annual percentage rate. * * * (4) Mortgage loans. If the annual percentage rate disclosed in a transaction secured by real property or a dwelling varies from the actual rate determined in accordance with paragraph (a)(1) of this section, in addition to the tolerances applicable under paragraphs (a)(2) and (3) of this section, the disclosed annual percentage rate shall also be considered accurate if: (i) The rate results from the disclosed finance charge; and (ii)(A) The disclosed finance charge would be considered accurate under § 1026.18(d)(1) ﬂor 1026.38(o)(2), as applicableﬁ; or (B) For purposes of rescission, if the disclosed finance charge would be considered accurate under § 1026.23(g) or (h), whichever applies. (5) Additional tolerance for mortgage loans. In a transaction secured by real property or a dwelling, in addition to the tolerances applicable under paragraphs (a)(2) and (3) of this section, if the disclosed finance charge is calculated incorrectly but is considered accurate under § 1026.18(d)(1)ﬂ or 1026.38(o)(2), as applicable,ﬁ or § 1026.23(g) or (h), the disclosed annual percentage rate shall be considered accurate: (i) If the disclosed finance charge is understated, and the disclosed annual percentage rate is also understated but it is closer to the actual annual percentage rate than the rate that would be considered accurate under paragraph (a)(4) of this section; (ii) If the disclosed finance charge is overstated, and the disclosed annual percentage rate is also overstated but it is closer to the actual annual percentage PO 00000 Frm 00201 Fmt 4701 Sfmt 4702 51315 rate than the rate that would be considered accurate under paragraph (a)(4) of this section. * * * * * 15. Section 1026.25 is amended by revising paragraph (a) and adding new paragraph (c) to read as follows: § 1026.25 Record retention. (a) General rule. A creditor shall retain evidence of compliance with this part (other than advertising requirements under §§ 1026.16 and 1026.24ﬂ, and other than the requirements under § 1026.19(e) and (f)ﬁ) for ø2¿ﬂtwoﬁ years after the date disclosures are required to be made or action is required to be taken. The administrative agencies responsible for enforcing the regulation may require creditors under their jurisdictions to retain records for a longer period if necessary to carry out their enforcement responsibilities under section 108 of the Act. * * * * * ﬂ(c) Records related to certain requirements for mortgage loans. (1) Records related to requirements for loans secured by real property. (i) General rule. Except as provided under paragraph (c)(1)(ii) of this section, a creditor shall retain evidence of compliance with the requirements of § 1026.19(e) and (f) for 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 taken. (ii) Closing Disclosures. (A) A creditor shall retain each completed disclosure required under § 1026.19(f)(1)(i) or (f)(4)(i), and all documents related to such disclosures, for five years after consummation. (B) If a creditor sells, transfers, or otherwise disposes of its interest in a mortgage and does not service the mortgage, the creditor shall provide a copy of the disclosures required under § 1026.19(f)(1)(i) or (f)(4)(i) to the owner or servicer of the mortgage as a part of the transfer of the loan file. Such owner or servicer shall retain such disclosures for the remainder of the five-year period described under paragraph (c)(1)(ii)(A) of this section. (C) The Bureau shall have the right to require provision of copies of records related to the disclosures required under § 1026.19(f)(1)(i) and (f)(4)(i). (iii) Electronic records. A creditor shall retain evidence of compliance in electronic, machine readable format. (2) [Reserved]ﬁ 16. Section 1026.28 is amended by revising paragraph (a)(1) to read as follows: E:\FR\FM\23AUP2.SGM 23AUP2 51316 § 1026.28 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules Effect on State laws. (a) Inconsistent disclosure requirements. (1) Except as provided in paragraph (d) of this section, State law requirements that are inconsistent with the requirements contained in chapter 1 (General Provisions), chapter 2 (Credit Transactions), or chapter 3 (Credit Advertising) of the Act and the implementing provisions of this part are preempted to the extent of the inconsistency. A State law is inconsistent if it requires a creditor to make disclosures or take actions that contradict the requirements of the Federal law. A State law is contradictory if it requires the use of the same term to represent a different amount or a different meaning than the Federal law, or if it requires the use of a term different from that required in the Federal law to describe the same item. A creditor, State, or other interested party may request the Bureau to determine whether a State law requirement is inconsistent. After the Bureau determines that a State law is inconsistent, a creditor may not make disclosures using the inconsistent term or form. ﬂA determination as to whether a State law is inconsistent with the requirements of sections 4 and 5 of RESPA (other than the RESPA section 5(c) requirements regarding provision of a list of certified homeownership counselors) and §§ 1026.19(e) and (f), 1026.37, and 1026.38 shall be made in accordance with this section and not 12 CFR 1024.13.ﬁ * * * * * 17. New § 1026.37 is added to read as follows: mstockstill on DSK4VPTVN1PROD with PROPOSALS2 ﬂ§ 1026.37 Content of disclosures for certain mortgage transactions (Loan Estimate). For each transaction subject to § 1026.19(e), the creditor shall disclose the information in this section, as applicable: (a) General information. (1) Form title. The title of the form, ‘‘Loan Estimate,’’ using that term. (2) Form purpose. The statement, ‘‘Save this Loan Estimate to compare with your Closing Disclosure.’’ (3) Creditor. The name and address of the creditor making the disclosure. (4) Date issued. The date the disclosures are mailed or delivered to the consumer by the creditor, labeled ‘‘Date Issued.’’ (5) Applicants. The consumer’s name and mailing address, labeled ‘‘Applicants.’’ (6) Property. The street address or location of the property that secures the transaction, labeled ‘‘Property.’’ VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 (7) Sale price. (i) For credit transactions that involve a seller, the contract sale price of the property identified in paragraph (a)(6) of this section, labeled ‘‘Sale Price.’’ (ii) For credit transactions that do not involve a seller, the estimated value of the property identified in paragraph (a)(6), labeled ‘‘Est. Prop. Value.’’ (8) Loan term. The term to maturity of the credit transaction, stated in years, labeled ‘‘Loan Term.’’ (9) Purpose. The consumer’s intended use for the credit, labeled ‘‘Purpose,’’ using one of the following terms: (i) Purchase. If the credit is to finance the acquisition of the property identified in paragraph (a)(6) of this section, the creditor shall disclose that the loan is for a ‘‘Purchase.’’ (ii) Refinance. The creditor shall disclose that the loan is for a ‘‘Refinance’’ if the credit is a refinance of an existing obligation, consistent with § 1026.20(a), by any creditor, that is secured by the property identified in paragraph (a)(6) of this section. (iii) Construction. If the credit will be used to finance the construction of a dwelling on the property identified in paragraph (a)(6) of this section, the creditor shall disclose that the loan is for ‘‘Construction.’’ (iv) Home equity loan. If the credit is not for one of the purposes described in paragraphs (a)(9)(i)–(iii) of this section, the creditor shall disclose that the loan is for a ‘‘Home Equity Loan.’’ (10) Product. A description of the loan product, labeled ‘‘Product.’’ (i) The description of the loan product shall include one of the following terms, as applicable: (A) Adjustable rate. If the interest rate may increase after consummation, but the rates that will apply or the periods for which they will apply are not known at consummation, the creditor shall disclose the loan product as an ‘‘Adjustable Rate.’’ (B) Step rate. If the interest rate will change after consummation, and the rates that will apply and periods for which they will apply are known at consummation, the creditor shall disclose the loan product as a ‘‘Step Rate.’’ (C) Fixed rate. If the loan product is not an Adjustable Rate or a Step Rate, as described in paragraphs (a)(10)(i)(A) and (B) of this section, respectively, the creditor shall disclose the loan product as a ‘‘Fixed Rate.’’ (ii) The description of the loan product shall include the features that may change the periodic payment, using the following terms as required by paragraph (a)(10)(iii), as applicable: PO 00000 Frm 00202 Fmt 4701 Sfmt 4702 (A) Negative amortization. If the principal balance may increase due to the addition of accrued interest to the principal balance, the creditor shall disclose that the loan product has a ‘‘Negative Amortization’’ feature. (B) Interest only. If one or more regular periodic payments may be applied only to interest accrued and not to the loan principal, the creditor shall disclose that the loan product has an ‘‘Interest Only’’ feature. (C) Step payment. If scheduled variations in regular periodic payment amounts occur that are not caused by changes to the interest rate during the loan term, the creditor shall disclose that the loan product has a ‘‘Step Payment’’ feature. (D) Balloon payment. The creditor shall disclose that the loan has a ‘‘Balloon Payment’’ feature if the transaction includes a ‘‘balloon payment,’’ as that term is defined in § 1026.37(b)(5). (E) Seasonal payment. If the terms of the legal obligation expressly provide that regular periodic payments are not scheduled in between specified unitperiods on a regular basis, the creditor shall disclose that the loan product has a ‘‘Seasonal Payment’’ feature. (iii) The disclosure of a loan feature under paragraph (a)(10)(ii) of this section shall precede the disclosure of the loan product under paragraph (a)(10)(i) of this section. If a transaction has more than one of the loan features described in paragraph (a)(10)(ii) of this section, the creditor shall disclose only the first applicable feature in the order the features are listed in paragraph (a)(10)(ii) of this section. (iv) The disclosures required by paragraphs (a)(10)(i) and (ii) of this section must each be preceded by a description of any introductory rate period, adjustment period, or other time period, as applicable. (11) Loan type. The type of loan, labeled ‘‘Loan Type,’’ offered to the consumer using one of the following terms, as applicable: (i) Conventional. If the loan is not guaranteed or insured by a Federal or State government agency, the creditor shall disclose that the loan is a ‘‘Conventional.’’ (ii) FHA. If the loan is insured by the Federal Housing Administration, the creditor shall disclose that the loan is an ‘‘FHA.’’ (iii) VA. If the loan is guaranteed by the U.S. Department of Veterans Affairs, the creditor shall disclose that the loan is a ‘‘VA.’’ (iv) Other. For federally-insured or guaranteed loans other than those described in paragraphs (a)(11)(ii) and E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules (iii) of this section and loans insured or guaranteed by a State agency, the creditor shall disclose the loan type as ‘‘Other,’’ and provide a brief description of the loan type. (12) Loan identification number (Loan ID #). A unique number that may be used by the creditor, consumer, and other parties to identify the transaction, labeled as ‘‘Loan ID #.’’ (13) Rate lock. A statement of whether the interest rate disclosed pursuant to paragraph (b)(2) of this section is set for a specific period of time, labeled ‘‘Rate Lock.’’ (i) For transactions in which the interest rate is set for a specific period of time, the creditor must provide the date and time (including the applicable time zone) when that period ends. (ii) The ‘‘Rate Lock’’ statement required by this paragraph (a)(13) shall be accompanied by a statement that the interest rate, any points, and any lender credits may change unless the interest rate has been set, and the date and time (including the applicable time zone) at which estimated closing costs expire. (b) Loan terms. A separate table labeled ‘‘Loan Terms’’ that includes the following information and satisfies the following requirements: (1) Loan amount. The amount of credit to be extended under the terms of the legal obligation, labeled the ‘‘Loan Amount.’’ (2) Interest rate. The initial interest rate that will be applicable to the transaction, labeled the ‘‘Interest Rate.’’ If the initial interest rate may adjust based on an index, the amount disclosed shall be the fully-indexed rate, which, for purposes of this paragraph, means the interest rate calculated using the index value and margin at the time of consummation. (3) Principal and interest payment. The initial periodic payment amount that will be due under the terms of the legal obligation, labeled ‘‘Principal & Interest,’’ immediately preceded by the applicable unit-period, and a statement referring to the payment amount that includes any mortgage insurance and escrow payments that is required to be disclosed pursuant to paragraph (c) of this section. If the initial periodic payment amount may adjust based on an index, the amount disclosed shall be calculated using the fully-indexed rate disclosed under paragraph (b)(2) of this section. (4) Prepayment penalty. A statement of whether the transaction includes a prepayment penalty, labeled ‘‘Prepayment Penalty.’’ For purposes of this paragraph (b)(4), ‘‘prepayment penalty’’ means a charge imposed for paying all or part of a transaction’s VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 principal before the date on which the principal is due. (5) Balloon payment. A statement of whether the transaction includes a balloon payment, labeled ‘‘Balloon Payment.’’ For purposes of this paragraph (b)(5), ‘‘balloon payment’’ means a payment that is more than two times a regular periodic payment and is not itself a regular periodic payment. ‘‘Balloon payment’’ includes the payment or payments under a transaction that requires only one or two payments during the loan term. (6) Adjustments after consummation. For each amount required to be disclosed by paragraphs (b)(1) through (3) of this section, a statement of whether the amount may increase after consummation as an affirmative or negative answer to the question ‘‘Can this amount increase after closing?’’ and, if in the case of an affirmative answer, the following additional information, as applicable: (i) Adjustment in loan amount. The maximum principal balance for the transaction and the due date of the last payment that may cause the principal balance to increase. The disclosure shall indicate whether the maximum principal balance is potential or is scheduled to occur under the terms of the legal obligation using the phrase ‘‘Can go as high as’’ or ‘‘Will go as high as,’’ respectively. (ii) Adjustment in interest rate. The frequency of interest rate adjustments, the date when the interest rate may first adjust, the maximum interest rate, and the first date when the interest rate can reach the maximum interest rate, followed by a reference to the disclosure required by paragraph (j) of this section. If the loan term, as defined under paragraph (a)(8) of this section, may increase based on an adjustment of the interest rate, the disclosure required by this paragraph (b)(6)(ii) shall also state that fact and the maximum possible loan term. (iii) Increase in periodic payment. The scheduled frequency of adjustments to the periodic principal and interest payment, the due date of the first adjusted principal and interest payment, the maximum possible periodic principal and interest payment, and the date when the periodic principal and interest payment may first equal the maximum principal and interest payment. If any adjustments to the principal and interest payment are not the result of a change to the interest rate, a reference to the disclosure required by paragraph (i) of this section. If there is a period during which only interest is required to be paid, the disclosure required by this paragraph (b)(6)(iii) PO 00000 Frm 00203 Fmt 4701 Sfmt 4702 51317 shall also state that such periodic payments will include ‘‘only interest’’ and ‘‘no principal’’ and the due date of the last periodic payment of such period. (7) Details about prepayment penalty and balloon payment. The information required to be disclosed by paragraphs (b)(4) and (5) of this section shall be disclosed as an affirmative or negative answer to the question ‘‘Does the loan have these features?’’ If an affirmative answer for a prepayment penalty or balloon payment is required to be disclosed, the following information, as applicable: (i) The maximum amount of the prepayment penalty that may be imposed and the date when the period under which the penalty may be imposed terminates; and (ii) The maximum amount of the balloon payment(s) and the due date(s). (8) Timing. The dates required to be disclosed by paragraphs (b)(6) and (7) of this section shall be disclosed as the year in which the date occurs, counting from the date that interest for the first scheduled periodic payment begins to accrue after consummation. (c) Projected payments. In a separate table under the heading ‘‘Projected Payments,’’ an itemization of each separate periodic payment or range of payments, together with an estimate of taxes, insurance, and assessments and the payments to be made with escrow account funds. (1) Periodic payment or range of payments. (i) The initial periodic payment or range of payments is a separate periodic payment or range of payments and, except as otherwise provided in paragraph (c)(1)(ii) of this section, the following events require the disclosure of additional separate periodic payments or ranges of payments: (A) The periodic principal and interest payment or range of such payments may change; (B) A scheduled balloon payment; and (C) The creditor must automatically terminate mortgage insurance coverage, or any functional equivalent, under applicable law. (ii) The table required by this paragraph (c) shall not disclose more than four separate periodic payments or ranges of payments. For all events requiring disclosure of additional separate periodic payments or ranges of payments described in paragraph (c)(1)(i) of this section after the second to occur, the separate periodic payments or ranges of payments shall be disclosed as a single range of payments, subject to the following exceptions: E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51318 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules (A) A final balloon payment shall always be disclosed as a separate periodic payment or range of payments, in which case no more than three other separate periodic payments or ranges of payments are disclosed. (B) The automatic termination of mortgage insurance coverage, or any functional equivalent, under applicable law shall require disclosure of a separate periodic payment or range of payments only if the total number of events that require disclosure of additional separate periodic payments or ranges of payments described in paragraph (c)(1)(i) of this section, other than the termination of mortgage insurance, or any functional equivalent, does not exceed two. (C) If changes to periodic principal and interest payments described in paragraph (c)(1)(i)(A) of this section would require more than one separate disclosure during a single year, such periodic payments shall be disclosed as a single range of payments. (iii) A range of payments is required under this paragraph (c)(1) when the periodic principal and interest payment may adjust based on index rates at the time an interest rate adjustment may occur or multiple events are combined in a range of payments pursuant to paragraph (c)(1)(ii) of this section. When a range of payments is required, the creditor must disclose the minimum and maximum amount for both the principal and interest payment under paragraph (c)(2)(i) of this section and the total periodic payment under paragraph (c)(2)(iv) of this section. In the case of an interest rate adjustment, the maximum payment amounts are determined by assuming that the interest rate in effect throughout the loan term is the maximum possible interest rate, and the minimum payment amounts are determined by assuming that the interest rate in effect throughout the loan term is the minimum possible interest rate. (2) Itemization. Each separate periodic payment or range of payments included in the table required by this paragraph (c) shall be itemized as follows: (i) The amount payable for principal and interest, labeled ‘‘Principal & Interest,’’ including the term ‘‘only interest’’ if the payment or range of payments includes any interest-only payment; (ii) The maximum amount payable for mortgage insurance premiums corresponding to the principal and interest payment disclosed pursuant to paragraph (c)(2)(i) of this section, labeled ‘‘Mortgage Insurance’’; (iii) The amount payable into an escrow account to pay some or all of the VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 charges described in paragraphs (c)(4)(ii)(A) through (E) of this section, as applicable, labeled ‘‘Estimated Escrow,’’ together with a statement that the amount disclosed can increase over time; and (iv) The total periodic payment, calculated as the sum of the amounts disclosed pursuant to paragraphs (c)(2)(i) through (iii) of this section, labeled ‘‘Total Monthly Payment.’’ (3) Subheadings. (i) The labels required pursuant to paragraph (c)(2) of this section must be listed under the subheading ‘‘Payment Calculation.’’ (ii) Each separate periodic payment or range of payments to be disclosed under this paragraph (c) must be disclosed under a subheading that states the number of years of the loan during which that payment or range of payments will apply. The subheadings must be stated in a sequence of whole years from the date that the first such payment is due. (4) Taxes, insurance, and assessments. Under the information required by paragraphs (c)(1) through (3) of this section: (i) The label ‘‘Estimated Taxes, Insurance & Assessments’’; (ii) The sum of the following charges, if applicable, expressed as a monthly amount, even if no escrow account for the payment of some or any of such charges will be established: (A) Property taxes; (B) Mortgage-related insurance premiums required by the creditor, other than amounts payable for mortgage insurance premiums; (C) Homeowner’s association, condominium, or cooperative fees; (D) Ground rent or leasehold payments; and (E) Special assessments; (iii) A statement that the amount disclosed pursuant to paragraph (c)(4)(ii) of this section can increase over time; (iv) A statement of whether the amount disclosed pursuant to paragraph (c)(4)(ii) of this section includes payments for property taxes, homeowner’s insurance, and other amounts described in paragraph (c)(4)(ii) of this section, along with a description of any such other amounts, and an indication of whether such amounts will be paid by the creditor using escrow account funds; (v) A statement that the consumer must pay separately any amounts described in paragraph (c)(4)(ii) of this section that are not paid by the creditor using escrow account funds; and (vi) A reference to the information disclosed pursuant to paragraph (g)(3) of this section. PO 00000 Frm 00204 Fmt 4701 Sfmt 4702 (5) Calculation of taxes and insurance. For purposes of paragraphs (c)(2)(iii) and (4)(ii) of this section, estimated property taxes and homeowner’s insurance shall reflect: (i) The taxable assessed value of the real property securing the transaction after consummation, including the value of any improvements on the property or to be constructed on the property, if known, whether or not such construction will be financed from the proceeds of the transaction, for property taxes; and (ii) The replacement costs of the property during the initial year after the transaction, for homeowner’s insurance. (d) Cash to close. In a separate table, under the heading ‘‘Cash to Close’’: (1) The dollar amount as calculated in accordance with paragraph (h)(8) of this section, labeled ‘‘Estimated Cash to Close’’; (2) The dollar amount calculated in accordance with paragraph (f)(4) of this section, described as ‘‘Loan Costs’’; (3) The dollar amount calculated in accordance with paragraph (g)(5) of this section, described as ‘‘Other Costs’’; (4) The dollar amount disclosed pursuant to paragraph (g)(6)(ii) of this section, described as ‘‘Lender Credits’’; (5) The sum of the amounts disclosed pursuant to paragraphs (d)(2), (d)(3) and (d)(4) of this section, described as ‘‘Closing Costs’’; and (6) A statement referring the consumer to the location where tables required pursuant to paragraphs (f) and (g) of this section are provided for details. (e) Web site reference. A statement that the consumer may obtain additional information and tools at the Web site of the Bureau, and the link/URL address to the Web site: www.consumerfinance.gov/learnmore. (f) Closing cost details; loan costs. Under the master heading ‘‘Closing Cost Details,’’ in a table under the heading ‘‘Loan Costs,’’ all loan costs associated with the transaction. The table shall contain the items and amounts listed under four subheadings, described in paragraphs (f)(1) through (4) of this section. (1) Origination charges. Under the subheading ‘‘Origination Charges,’’ an itemization of each amount, and a subtotal of all such amounts, that the consumer will pay to each creditor and loan originator for originating and extending the credit. (i) The points that the consumer will pay to the creditor to reduce the interest rate shall be separately itemized, as both a percentage of the amount of credit extended and a dollar amount, and labeled ’’ __% of Loan Amount E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules (Points).’’ If points are not paid by the consumer, the disclosure required by this paragraph (f)(1)(i) shall show the amount as zero. (ii) The number of items disclosed under this paragraph (f)(1), including the points disclosed under paragraph (f)(1)(i) of this section, shall not exceed 13. (2) Services you cannot shop for. Under the subheading ‘‘Services You Cannot Shop For,’’ an itemization of each amount, and a subtotal of all such amounts, for services for which the consumer cannot shop in accordance with § 1026.19(e)(1)(vi)(A) and that are provided by persons other than the creditor or mortgage broker. (i) For any item that is a component of title insurance or is for conducting the closing, the introductory description ‘‘Title—’’ shall appear at the beginning of the label for that item. (ii) The number of items disclosed under this paragraph (f)(2) shall not exceed 13. (3) Services you can shop for. Under the subheading ‘‘Services You Can Shop For,’’ an itemization of each amount, and a subtotal of all such amounts, for services for which the consumer can shop in accordance with § 1026.19(e)(1)(vi)(A) and that are provided by persons other than the creditor or mortgage broker. (i) For any item that is a component of title insurance or is for conducting the closing, the introductory description ‘‘Title—’’ shall appear at the beginning of the label for that item. (ii) The number of items disclosed under this paragraph (f)(3) shall not exceed 14. (4) Total loan costs. Under the subheading ‘‘Total Loan Costs,’’ the sum of the subtotals disclosed under paragraphs (f)(1) through (3) of this section. (5) Item descriptions and ordering. The items listed as loan costs pursuant to this paragraph (f) shall be labeled using terminology that briefly and clearly describes each item, subject to the requirements of paragraphs (f)(1)(i), (f)(2)(i), and (f)(3)(i) of this section. (i) The item prescribed in paragraph (f)(1)(i) of this section for points shall be the first item listed in the disclosure pursuant to paragraph (f)(1) of this section. (ii) All other items must be listed in alphabetical order by their labels under the applicable subheading. (6) Use of addenda. (i) An addendum to a form of disclosures prescribed by § 1026.37(o) may not be used for items required to be disclosed by paragraph (f)(1) or (2) of this section. If the creditor is not able to itemize all of the charges VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 required to be disclosed in the number of lines provided by paragraph (f)(1)(ii) or (2)(ii) of this section, the remaining charges shall be disclosed as an aggregate amount in the last line permitted under paragraph (f)(1)(ii) or (2)(ii), as applicable, using the label ‘‘Additional Charges’’ to describe such charges. (ii) An addendum to a form of disclosures prescribed by § 1026.37(o) may be used for items required to be disclosed by paragraph (f)(3) of this section. If the creditor is not able to itemize all of the charges required to be disclosed in the number of lines provided by paragraph (f)(3)(ii), the remaining charges shall be disclosed as follows: (A) Label the last line permitted under paragraph (f)(3)(ii) with an appropriate reference to an addendum and list the remaining items on the addendum in accordance with the requirements in paragraphs (f)(3) and (5) of this section; or (B) Disclose the remaining charges as an aggregate amount in the last line permitted under paragraph (f)(3)(ii), using the label ‘‘Additional Charges.’’ (g) Closing cost details; other costs. Under the master heading ‘‘Closing Cost Details,’’ costs associated with the transaction that are in addition to the costs disclosed under § 1026.37(f), listed in a table under the heading ‘‘Other Costs.’’ The table consists of the items and amounts listed under six subheadings, described in paragraphs (g)(1) through (6) of this section. (1) Taxes and other government fees. Under the subheading ‘‘Taxes and Other Government Fees,’’ the amounts to be paid to State and local governments for taxes and other government fees, and the subtotal of all such amounts, as follows: (i) On the first line, using the label ‘‘Recording Fees and Other Taxes,’’ the sum of all recording fees and other government fees and taxes, except for transfer taxes. (ii) On the second line, using the label ‘‘Transfer Taxes,’’ the sum of all transfer taxes. (iii) If an amount for recording fees or transfer taxes is not charged to the consumer, the dollar amount disclosed on the applicable line required by this paragraph (g)(1) must be zero. (2) Prepaids. Under the subheading ‘‘Prepaids,’’ an itemization of the amounts to be paid by the consumer in advance of the first scheduled payment, and the subtotal of all such amounts, as follows: (i) On the first line, using the label ‘‘Homeowner’s Insurance Premium (l months),’’ the number of months for PO 00000 Frm 00205 Fmt 4701 Sfmt 4702 51319 which homeowner’s premiums are to be paid by the consumer at consummation and the total dollar amount to be paid. (ii) On the second line, using the label ‘‘Mortgage Insurance Premium (l months),’’ the number of months for which mortgage insurance premiums are to be paid by the consumer at consummation and the total dollar amount to be paid. (iii) On the third line, using the label ‘‘Prepaid Interest (ll per day for l days @ l%),’’ the amount of interest to be paid per day, the number of days for which prepaid interest will be collected, the interest rate, and the total dollar amount to be paid. (iv) On the fourth line, using the label ‘‘Property Taxes,’’ the number of months for which property taxes are to be paid by the consumer and the total dollar amount to be paid. (v) If an amount is not charged to the consumer for any item for which this paragraph (g)(2) prescribes a label, the dollar amount disclosed on that line must be zero. (vi) A maximum of three additional items may be disclosed under this paragraph (g)(2), and each additional item must be identified and include the applicable time period covered by the amount to be paid by the consumer at consummation and the total amount to be paid. (3) Initial escrow payment at closing. Under the subheading ‘‘Initial Escrow Payment at Closing,’’ an itemization of the amounts that the consumer will be expected to place into a reserve or escrow account at consummation to be applied to recurring periodic charges, and the subtotal of all such amounts, as follows: (i) On the first line, using the label ‘‘Homeowner’s Insurance $l per month for l mo.,’’ the amount escrowed per month, the number of months covered by an escrowed amount collected at consummation, and the total amount to be paid into the escrow account by the consumer to insure the property against hazards. (ii) On the second line, using the label ‘‘Mortgage Insurance $l per month for l mo.,’’ the amount escrowed per month, the number of months covered by an escrowed amount collected at consummation, and the total amount to be paid by the consumer for mortgage insurance. (iii) On the third line, using the label ‘‘Property Taxes $l per month for l mo.,’’ the amount escrowed per month, the number of months covered by an escrowed amount collected at consummation, and the total amount to be paid by the consumer for property taxes. E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51320 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules (iv) If an amount is not charged to the consumer for any item for which this paragraph (g)(3) prescribes a label, the dollar amount disclosed on that line must be zero. (v) A maximum of five additional items may be disclosed under this paragraph (g)(3), and each additional item must be identified and include the applicable amount per month, the number of months collected at consummation, and the total amount to be paid. (4) Other. Under the subheading ‘‘Other,’’ an itemization of any other amounts the consumer is likely to pay or has contracted with a person other than the creditor or loan originator to pay at closing and of which the creditor is aware at the time of issuing the Loan Estimate, and the subtotal of all amounts itemized. (i) For any item that is a component of title insurance, the introductory description ‘‘Title—’’ shall appear at the beginning of the label for that item. (ii) The parenthetical description ‘‘(optional)’’ shall appear at the end of the label for items disclosing any premiums paid for separate insurance, warranty, guarantee, or event-coverage products. (iii) The number of items disclosed under this paragraph (g)(4) shall not exceed five. (iv) If there are no such amounts, this table must be left blank. (5) Total other costs. With the label ‘‘Total Other Costs,’’ the sum of the amounts disclosed pursuant to paragraphs (g)(1) through (4) of this section. (6) Total closing costs. With the label ‘‘Total Closing Costs,’’ the component amounts and their sum, as follows: (i) The sum of the amounts disclosed as Loan Costs and Other Costs under paragraphs (f)(4) and (g)(5) of this section, disclosed with the label ‘‘D + I’’; (ii) The amount of any lender credits, disclosed as a negative number with the label ‘‘Lender Credits’’; and (iii) Add the amount calculated under paragraph (g)(6)(i) and the (negative) amount disclosed under paragraph (g)(6)(ii) and disclose this sum as ‘‘Total Closing Costs.’’ (7) Item descriptions and ordering. In identifying the items listed as Other Costs pursuant to this paragraph (g), the creditor must use terminology that briefly and clearly describes the item. (i) The items prescribed in paragraphs (g)(1)(i) and (ii), (g)(2)(i) through (iv), and (g)(3)(i) through (iii) of this section must be listed in the order prescribed as the initial items under the applicable subheading, with any additional items to follow. VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 (ii) All additional items must be listed in alphabetical order under the applicable subheading. (8) Use of addenda. An addendum to a form of disclosures prescribed by § 1026.37(o) may not be used for items required to be disclosed by this paragraph (g). If the creditor is not able to itemize all of the charges required to be disclosed in the number of lines provided by paragraph (g)(2)(vi), (3)(v), or (4)(iii) of this section, the remaining charges shall be disclosed as an aggregate amount in the last line permitted under paragraph (g)(2)(vi), (3)(v), or (4)(iii), as applicable, using the label ‘‘Additional Charges.’’ (h) Calculating cash to close. In a separate table, under the master heading ‘‘Closing Cost Details,’’ required by paragraph (f) of this section, under the heading ‘‘Calculating Cash to Close,’’ the total amount of cash or other funds that must be provided by the consumer at consummation must be disclosed, with an itemization of that amount into the following component amounts: (1) Total closing costs. The amount disclosed under paragraph (g)(6)(iii) of this section, disclosed as a positive number; (2) Closing costs to be financed. The amount of any closing costs to be paid out of loan proceeds, disclosed as a negative number; (3) Downpayment and other funds from borrower. (i) In a purchase transaction, as defined in § 1026.37(a)(9)(i), the actual amount of the difference between the purchase price of the property and the principal amount of the loan, disclosed as a positive number; or (ii) In all other transactions, the estimated ‘‘Funds from Borrower,’’ labeled using that term, as determined in accordance with paragraph (h)(5) of this section; (4) Deposit. The amount that is paid to the seller or held in trust or escrow by an attorney or other party under the terms of the agreement for the sale of the property, disclosed as a negative number; (5) Funds for borrower. The amount of ‘‘Funds from Borrower,’’ to be disclosed under paragraph (h)(3)(ii) of this section, and of ‘‘Funds for Borrower,’’ disclosed under this paragraph (h)(5) of this section, are determined by subtracting the principal amount of the credit extended (excluding any amount disclosed pursuant to paragraph (h)(2) of this section) from the total amount of all existing debt being satisfied in the transaction (except to the extent the satisfaction of such existing debt is disclosed under paragraph (g) of this section). PO 00000 Frm 00206 Fmt 4701 Sfmt 4702 (i) If the calculation under this paragraph (h)(5) of this section yields an amount that is a positive number, such amount shall be disclosed under paragraph (h)(3)(ii) of this section, and $0.00 shall be disclosed under paragraph (h)(5) of this section. (ii) If the calculation under this paragraph (h)(5) yields an amount that is a negative number, such amount shall be disclosed under paragraph (h)(5) of this section as a negative number, and $0.00 shall be disclosed under paragraph (h)(3)(ii) of this section. (iii) If the calculation under this paragraph (h)(5) of this section yields $0.00, then $0.00 shall be disclosed pursuant to paragraph (h)(3)(ii) of this section and pursuant to paragraph (h)(5) of this section. (6) Seller credits. Seller credits are the total amount of money that the seller will provide to pay for total loan costs as determined by paragraph (f)(4) of this section and total other costs as determined by paragraph (g)(5) of this section, to the extent known, disclosed as a negative number; (7) Adjustments and other credits. Other credits include all loan costs and other costs, to the extent known, that are paid by persons other than the loan originator, creditor, consumer, or seller, disclosed as a negative number; and (8) Estimated Cash to Close. The total of the amounts disclosed by paragraphs (h)(1) thorough (h)(7). (i) Adjustable payment table. If the periodic principal and interest payment may change after consummation but not based on an adjustment to the interest rate, or if the transaction is a seasonal payment product as described in § 1026.37(a)(10)(ii)(E), a separate table under the master heading ‘‘Closing Cost Details’’ required by paragraph (f) of this section and under the heading ‘‘Adjustable Payment (AP) Table’’ that includes the following information and satisfies the following requirements: (1) Interest-only payments. Whether the transaction is an interest only product pursuant to paragraph (a)(10)(ii)(B) of this section as an affirmative or negative answer to the question ‘‘Interest Only Payments?’’ and, if an affirmative answer is disclosed, the period during which interest-only periodic payments are scheduled. (2) Optional payments. Whether the terms of the legal obligation expressly provide that the consumer may elect to pay a specified periodic principal and interest payment other than the scheduled amount of the payment, as an affirmative or negative answer to the question ‘‘Optional Payments?’’ and, if an affirmative answer is disclosed, the E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules period during which the consumer may elect to make such payments. (3) Step payments. Whether the transaction is a step payment product pursuant to paragraph (a)(10)(ii)(C) of this section as an affirmative or negative answer to the question ‘‘Step Payments?’’ and, if an affirmative answer is disclosed, the period during which the regular periodic payments are scheduled to increase. (4) Seasonal payments. Whether the transaction is a seasonal payment product pursuant to paragraph (a)(10)(ii)(E) of this section as an affirmative or negative answer to the question ‘‘Seasonal Payments?’’ and, if an affirmative answer is disclosed, the period during which periodic payments are not scheduled. (5) Principal and interest payments. Under the subheading ‘‘Principal and Interest Payments,’’ which subheading is immediately preceded by the applicable unit period, the following information: (i) The number of the payment of the first periodic principal and interest payment that may change under the terms of the legal obligation disclosed under this paragraph (i), counting from the first periodic payment due after consummation, and the amount or range of the periodic principal and interest payment for such payment, labeled, ‘‘First Change/Amount’’; (ii) The frequency of subsequent changes to the periodic principal and interest payment; and (iii) The maximum periodic principal and payment that may occur during the term of the transaction, and the first periodic principal and interest payment that can reach such maximum, counting from the first periodic payment due after consummation. (j) Adjustable interest rate table. If the interest rate may increase after consummation, a separate table under the master heading ‘‘Closing Cost Details’’ required by paragraph (f) of this section and under the heading ‘‘Adjustable Interest Rate (AIR) Table’’ that includes the following information and satisfies the following requirements: (1) Index and margin. If the interest rate may adjust, the index upon which the adjustments to the interest rate are based and the margin that is added to the index to determine the interest rate, if any, labeled ‘‘Index + Margin.’’ (2) Increases in interest rate. If the product type is a ‘‘Step Rate’’ and not also an ‘‘Adjustable Rate’’ under paragraph (a)(10) of this section, the maximum amount of any adjustments to the interest rate that are scheduled and pre-determined, labeled ‘‘Interest Rate Adjustments.’’ VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 (3) Initial interest rate. The interest rate at consummation of the loan transaction. (4) Minimum and maximum interest rate. The minimum and maximum interest rates for the loan, after any introductory period expires. (5) Frequency of adjustments. The following information, under the subheading ‘‘Change Frequency’’: (i) The month when the interest rate after consummation may first change, calculated from the date interest begins to accrue for the first regular periodic principal and interest payment, labeled ‘‘First Change’’; and (ii) The frequency of interest rate adjustments after the initial adjustment to the interest rate, labeled, ‘‘Subsequent Changes.’’ (6) Limits on interest rate changes. The following information, under the subheading ‘‘Limits on Interest Rate Changes’’: (i) The maximum possible change for the first adjustment of the interest rate after consummation, labeled ‘‘First Change’’; and (ii) The maximum possible change for subsequent adjustments of the interest rate after consummation, labeled ‘‘Subsequent Changes.’’ (k) Contact information. Under the master heading, ‘‘Additional Information About This Loan,’’ the following information: (1) The name and Nationwide Mortgage Licensing System and Registry identification number (NMLSR ID) (labeled ‘‘NMLS ID/License #’’) for the creditor (labeled ‘‘Lender’’) and the mortgage broker (labeled ‘‘Mortgage Broker’’), if any, together with the name of a primary contact for the consumer of the lender or mortgage broker. In the event the creditor or the mortgage broker has not been assigned an NMLSR ID, the license number or other unique identifier issued by the applicable jurisdiction or regulating body with which the creditor or mortgage broker is licensed and/or registered shall be disclosed, if any; (2) The name and NMLSR ID of the individual loan officer (labeled ‘‘Loan Officer’’ and ‘‘NMLS ID/License #,’’ respectively) who is primary contact for the consumer. In the event the individual loan officer has not been assigned an NMLSR ID, the license number or other unique identifier issued by the applicable jurisdiction or regulating body with which the creditor or mortgage broker is licensed and/or registered shall be disclosed, if any; and (3) The email address and telephone number of the loan officer (labeled ‘‘Email’’ and ‘‘Phone,’’ respectively). PO 00000 Frm 00207 Fmt 4701 Sfmt 4702 51321 (l) Comparisons. Under the master heading, ‘‘Additional Information About This Loan,’’ in a separate table under the heading ‘‘Comparisons’’ along with the statement ‘‘Use these measures to compare this loan with other loans’’: (1) In five years. Using the label ‘‘In 5 Years’’: (i) The total principal, interest, mortgage insurance, and loan costs scheduled to be paid through the end of the 60th month after the due date of the first periodic payment, expressed as a dollar amount, along with the statement ‘‘Total you will have paid in principal, interest, mortgage insurance, and loan costs’’; and (ii) The principal scheduled to be paid through the end of the 60th month after the due date of the first periodic payment, expressed as a dollar amount, along with the statement ‘‘Principal you will have paid off.’’ (2) Annual percentage rate. The ‘‘Annual Percentage Rate,’’ using that term and the abbreviation ‘‘APR’’ and expressed as a percentage, and the following statement: ‘‘Your costs over the loan term expressed as a rate. This is not your interest rate.’’ (3) Total interest percentage. The ‘‘Total Interest Percentage,’’ using that term and the abbreviation ‘‘TIP’’ and expressed as a percentage, and the statement ‘‘The total amount of interest that you will pay over the loan term as a percentage of your loan amount.’’ The total interest percentage is the total amount of interest that the consumer will pay over the life of the loan, expressed as a percentage of the amount of credit extended. (m) Other considerations. Under the master heading ‘‘Additional Information About This Loan’’ required by paragraph (k) of this section and under the heading ‘‘Other Considerations’’: (1) Appraisal. For transactions subject to 15 U.S.C. 1639h or 1691(e), as implemented in this part or Regulation B, 12 CFR part 1002, respectively, a statement, labeled ‘‘Appraisal,’’ that: (i) The creditor may order an appraisal to determine the value of the property identified in paragraph (a)(6) of this section and may charge the consumer for that appraisal; (ii) The creditor will promptly provide the consumer a copy of any completed appraisal, even if the transaction is not consummated; and (iii) The consumer may choose to pay for an additional appraisal of the property for the consumer’s use. (2) Assumption. A statement of whether a subsequent purchaser of the property may be permitted to assume the remaining loan obligation on its original terms, labeled ‘‘Assumption.’’ E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51322 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules (3) Homeowner’s insurance. At the option of the creditor, a statement of whether homeowner’s insurance is required on the property and whether the consumer may choose the insurance provider, labeled ‘‘Homeowner’s Insurance.’’ (4) Late payment. A statement detailing any charge that may be imposed for a late payment, stated as a dollar amount or percentage charge of the late payment amount, and the number of days that a payment must be late to trigger the late payment fee, labeled ‘‘Late Payment.’’ (5) Refinance. The following statement, labeled ‘‘Refinance,’’ ‘‘Refinancing this loan will depend on your future financial situation, the property value, and market conditions. You may not be able to refinance this loan.’’ (6) Servicing. A statement of whether the loan will be serviced by the creditor or transferred to another servicer, labeled ‘‘Servicing.’’ (7) Liability after foreclosure. If the purpose of the credit transaction is to refinance an extension of credit as described in paragraph (a)(9)(ii) of this section, a brief statement that certain State law protections against liability for any deficiency after foreclosure may be lost, the potential consequences of the loss of such protections, and a statement that the consumer should consult an attorney for additional information, labeled ‘‘Liability after Foreclosure.’’ (n) Signature statement. (1) At the creditor’s option, under the master heading required by paragraph (k) of this section and under the heading ‘‘Confirm Receipt,’’ a line for the signatures of the consumers in the transaction. If the creditor includes a line for the consumer’s signature, the creditor must disclose the following below the signature line: ‘‘By signing, you are only confirming that you have received this form. You do not have to accept this loan because you have signed or received this form.’’ (2) If the creditor does not include a line for the consumer’s signature, the creditor must disclose the following statement under the heading ‘‘Other Considerations’’ required by paragraph (m) of this section, labeled ‘‘Loan Acceptance’’: ‘‘You do not have to accept this loan because you have received this form or signed a loan application.’’ (o) Form of disclosures. (1) General requirements. (i) The creditor shall make the disclosures required by this section clearly and conspicuously in writing, in a form that the consumer may keep. The disclosures also shall be grouped together, segregated from VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 everything else, and provided on separate pages that are not commingled with any other documents or disclosures, including any other disclosures required by State or other laws. (ii) Except as provided in paragraph (o)(5) of this section, the disclosures shall contain only the information required by paragraphs (a) through (n) of this section and shall be made in the same order, and positioned relative to the master headings, headings, subheadings, labels, and similar designations in the same manner, as shown in form H–24, set forth in appendix H to this part. (2) Estimated disclosures. If a master heading, heading, subheading, label, or similar designation contains the word ‘‘estimated’’ in form H–24, set forth in appendix H to this part, that heading, label, or similar designation shall contain the word ‘‘estimated.’’ (3) Form. Except as provided in paragraph (o)(5) of this section: (i) For a transaction subject to this section that is a federally related mortgage loan, as defined in Regulation X, 12 CFR 1024.2, the disclosures must be made using form H–24, set forth in appendix H to this part. (ii) For any other transaction subject to this section, the disclosures must be made with headings, content, and format substantially similar to form H– 24, set forth in appendix H to this part. (iii) The disclosures required by this section may be provided to the consumer in electronic form, subject to compliance with the consumer consent and other applicable provisions of the Electronic Signatures in Global and National Commerce Act (E-Sign Act) (15 U.S.C. 7001 et seq.). (4) Rounding. (i) Nearest dollar. (A) The dollar amounts required to be disclosed by paragraphs (b)(6) and (7), (c)(1)(iii), (c)(2)(ii) and (iii), (c)(4)(ii), (f), (g), (h), (i), and (l) of this section shall be rounded to the nearest whole dollar. (B) The dollar amount required to be disclosed by paragraph (b)(1) of this section shall be disclosed as an exact number, except that decimal places shall not be disclosed if the amount of cents is zero. (C) The dollar amounts required to be disclosed by paragraph (c)(2)(iv) of this section shall be rounded to the nearest whole dollar, if any of the component amounts are required by paragraph (o)(4)(i)(A) of this section to be rounded to the nearest whole dollar. (ii) Percentages. The percentage amounts required to be disclosed under paragraphs (b)(2) and (6), (f)(1)(i), (g)(2)(iii), (j), and (l)(3) of this section shall be disclosed as an exact number PO 00000 Frm 00208 Fmt 4701 Sfmt 4702 up to two or three decimal places. The percentage amount required to be disclosed under paragraph (l)(2) of this section shall be disclosed up to three decimal places. Decimal places shall not be disclosed if the amount is a whole number. (5) Exceptions. (i) Unit-period. Wherever the form or this section uses ‘‘monthly’’ to describe the frequency of any payments or uses ‘‘month’’ to describe the applicable unit-period, the creditor shall substitute the appropriate term to reflect the fact that the transaction’s terms provide for other than monthly periodic payments, such as bi-weekly or quarterly payments. (ii) Lender credits. The amount required to be disclosed by paragraph (d)(4) of this section may be omitted from the form if the amount is zero. (iii) Logo or slogan. The creditor providing the form may use a logo for, and include a slogan with, the information required by paragraph (a)(3) of this section in any font size or type, provided that such logo or slogan does not cause the information required by paragraph (a)(3) of this section to exceed the space provided for that information, as illustrated in form H–24(a) in appendix H to this part. If the creditor does not use a logo for the information required by paragraph (a)(3) of this section, the information shall be disclosed in a similar format as form H– 24. (iv) Business card. The creditor may physically attach a business card over the information required to be disclosed by paragraph (a)(3) of this section. (v) Administrative information. The creditor may insert immediately above the information required to be disclosed by paragraph (a)(2) of this section and adjacent to the information required to be disclosed by paragraph (a)(3) of this section any administrative information, text, or codes that assist in identification of the form or the information disclosed on the form, provided that the space provided on form H–24 of appendix H to this part for the information required by paragraph (a)(3) of this section is not altered. (vi) Translation. The form may be translated into languages other than English.ﬁ 18. New § 1026.38 is added to read as follows: ﬂ§ 1026.38 Content of disclosures for certain mortgage transactions (Closing Disclosure). For each transaction subject to § 1026.19(f), the creditor shall disclose the information in this section, as applicable: E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules (a) General information. (1) Form title. The title of the form, ‘‘Closing Disclosure,’’ using that term. (2) Form purpose. The following statement: ‘‘This form is a statement of final loan terms and closing costs. Compare this document with your Loan Estimate.’’ (3) Closing information. Under the heading ‘‘Closing Information’’: (i) Date issued. The date the disclosures required by this section are delivered to the consumer, labeled ‘‘Date Issued.’’ (ii) Closing date. The date of consummation, labeled ‘‘Closing Date.’’ (iii) Disbursement date. The date the amounts disclosed pursuant to paragraphs (j)(3)(iii) and (k)(3)(iii) of this section are expected to be paid to the consumer and seller, respectively, as applicable, labeled ‘‘Disbursement Date.’’ (iv) Agent. The name of the settlement agent conducting the closing, labeled ‘‘Agent.’’ (v) File number. The number assigned to the transaction by the settlement agent for identification purposes, labeled ‘‘File #.’’ (vi) Property. The street address or location of the property required to be disclosed under § 1026.37(a)(6), labeled ‘‘Property.’’ (vii) Sale price. (A) In credit transactions where there is a seller, the contract sale price of the property identified in paragraph (a)(3)(vi) of this section, labeled ‘‘Sale Price.’’ (B) In credit transactions where there is no seller, the appraised value of the property identified in paragraph (a)(3)(vi) of this section, labeled ‘‘Appraised Prop. Value.’’ (4) Transaction information. Under the heading ‘‘Transaction Information’’: (i) Borrower. The consumer’s name and mailing address, labeled ‘‘Borrower.’’ (ii) Seller. Where applicable, the seller’s name and mailing address, labeled ‘‘Seller.’’ (iii) Lender. The name of the creditor making the disclosure, labeled ‘‘Lender.’’ (5) Loan information. Under the heading ‘‘Loan Information’’: (i) Loan term. The information required to be disclosed under § 1026.37(a)(8), labeled ‘‘Loan Term.’’ (ii) Purpose. The information required to be disclosed under § 1026.37(a)(9), labeled ‘‘Purpose.’’ (iii) Product. The information required to be disclosed under § 1026.37(a)(10), labeled ‘‘Product.’’ (iv) Loan type. The information required to be disclosed under § 1026.37(a)(11), labeled ‘‘Loan Type.’’ VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 (v) Loan identification number. The information required to be disclosed under § 1026.37(a)(12), labeled ‘‘Loan ID #.’’ (vi) Mortgage insurance case number. The case number for any mortgage insurance policy, if required by the creditor, labeled ‘‘MIC #.’’ (b) Loan terms. A separate table under the heading ‘‘Loan Terms’’ that includes the information required by § 1026.37(b). (c) Projected payments. A separate table, under the heading ‘‘Projected Payments,’’ that includes and satisfies the following information and requirements: (1) Projected payments or range of payments. The information required to be disclosed pursuant to § 1026.37(c)(1) through (4), other than § 1026.37(c)(4)(vi). In disclosing estimated escrow payments as described in § 1026.37(c)(2)(iii) and (4)(ii), the amount disclosed on the Closing Disclosure: (i) For transactions subject to RESPA, is determined under the escrow account analysis described in Regulation X, 12 CFR 1024.17; (ii) For transactions not subject to RESPA, may be determined under the escrow account analysis described in Regulation X, 12 CFR 1024.17 or in the manner set forth in § 1026.37(c)(5). (2) Estimated taxes, insurance, and assessments. A reference to the disclosure required by § 1026.38(l)(7). (d) Cash to close. In a separate table, under the heading ‘‘Cash to Close’’: (1) The sum of the dollar amounts calculated in accordance with paragraph (j)(3)(iii) of this section, labeled ‘‘Cash to Close’’; (2) The dollar amount of loan costs that are disclosed as borrower-paid at closing calculated in accordance with paragraph (f)(4) of this section, described as ‘‘Loan Costs’’; (3) The dollar amount of other costs that are disclosed as borrower-paid at closing and calculated in accordance with paragraph (g)(5) of this section, described as ‘‘Other Costs’’; (4) The dollar amount disclosed pursuant to paragraph (h)(3) of this section, described as ‘‘Lender Credit’’; (5) The sum of the amounts disclosed pursuant to paragraphs (d)(2), (d)(3), and (d)(4) of this section, described as ‘‘Closing Costs’’; and (6) A statement referring the consumer to the tables required pursuant to paragraphs (f) and (g) of this section for details. (e) [Reserved] (f) Closing cost details; loan costs. Under the master heading ‘‘Closing Cost Details’’ with columns stating whether PO 00000 Frm 00209 Fmt 4701 Sfmt 4702 51323 the charge was borrower-paid at or before closing, seller-paid at or before closing, or paid by others, all loan costs associated with the transaction, listed in a table under the heading ‘‘Loan Costs.’’ The table consists of the items and amounts listed under five labels, described in paragraphs (f)(1) through (5) of this section. (1) Origination charges. Under the label ‘‘Origination Charges,’’ an itemization of the items described in § 1026.37(f)(1) and compensation paid by the creditor to a loan originator in the applicable column and the total of all such itemized amounts that are designated borrower-paid at or before closing. (2) Services borrower did not shop for. Under the label ‘‘Services Borrower Did Not Shop For,’’ an itemization of the costs for services required by the creditor and provided by persons other than the creditor or mortgage broker in the applicable column, and the total of all such itemized amounts that are designated borrower-paid at or before closing. Items that were disclosed pursuant to § 1026.37(f)(3) must be disclosed under this paragraph (f)(2) when the consumer was provided a written list under § 1026.19(e)(1)(vi)(C) and the consumer selected a provider contained on that written list. (3) Services borrower did shop for. Under the label ‘‘Services Borrower Did Shop For,’’ an itemization of the costs for services required by the creditor and provided by persons other than the creditor or mortgage broker where the consumer was provided a written list under § 1026.19(e)(1)(vi)(C) and the consumer did not select a provider contained on that written list, and the total of all such itemized costs that are designated borrower-paid at or before closing. (4) Total loan costs. The total of the amounts disclosed under § 1026.38(f)(5) with the label ‘‘Total Loan Costs (Borrower-Paid).’’ (5) Subtotal of loan costs. The sum of loan costs, calculated by totaling the amounts described in paragraphs (f)(1), (2), and (3) of this section for costs designated borrower-paid at or before closing, with the label ‘‘Loan Costs Subtotal.’’ (g) Closing cost details; other costs. Under the master heading ‘‘Closing Cost Details’’ disclosed pursuant to paragraph (f) of this section, all other costs associated with the transaction listed in a table with a heading disclosed as ‘‘Other Costs.’’ The table comprises items and amounts listed under five labels, described in paragraphs (g)(1) through (6) of this section. E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51324 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules (1) Taxes and other government fees. Under the label ‘‘Taxes and Other Government Fees,’’ each amount that is expected to be paid to State and local governments for taxes and government fees and the total of all such itemized amounts that are designated borrowerpaid at or before closing, as follows: (i) Recording fees and the amounts paid in the applicable columns; and (ii) An itemization of transfer taxes and the amounts paid in the applicable columns. (2) Prepaids. Under the subheading ‘‘Prepaids,’’ the charges disclosed pursuant to § 1026.37(g)(2) with the actual costs in the applicable columns, and the total of all such itemized amounts that are designated borrowerpaid at or before closing. (3) Initial escrow payment at closing. Under the label ‘‘Initial escrow payment at closing,’’ the items described in § 1026.37(g)(3) with their actual costs, the applicable aggregate adjustment pursuant to 12 CFR 1024.17(d)(2), and the total of all such itemized amounts that are designated borrower-paid at or before closing. (4) Other. Under the label ‘‘Other,’’ identify and state any other actual costs for services that are required or obtained in the real estate closing by the consumer, the seller, or other party, and the total of all such itemized amounts that are designated borrower-paid at or before closing. (i) For any actual cost that is a component of title insurance, the introductory description ‘‘Title—’’ shall appear at the beginning of the label for that actual cost. (ii) The parenthetical description ‘‘(optional)’’ shall appear at the end of the label for actual costs designated borrower-paid at or before closing for any premiums paid for separate insurance, warranty, guarantee, or event-coverage products. (5) Total other costs. With the label ‘‘Total Other Costs (Borrower-Paid),’’ the sum of the amounts disclosed pursuant to paragraphs (g)(6) of this section. (6) Subtotal of costs. The sum of other costs, calculated by totaling the costs disclosed in paragraphs (g)(1) through (4) of this section designated borrowerpaid at or before closing, labeled ‘‘Other Costs Subtotal.’’ (h) Closing cost totals. (1) The total of the costs designated borrower-paid at or before closing that are disclosed pursuant to paragraph (h)(2) of this section, labeled ‘‘Total Closing Costs (Borrower-Paid).’’ (2) The total of the amounts disclosed in paragraphs (f)(5) and (g)(6) of this section and the total of the costs VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 designated seller-paid at or before closing, or paid by others are disclosed pursuant to paragraphs (f) and (g) of this section, and the sum of the amount disclosed in (h)(3) of this section and the amounts designated borrower-paid at closing, labeled ‘‘Closing Costs Subtotal (Loan Costs + Other Costs).’’ (3) The amount disclosed pursuant to § 1026.37(g)(6)(ii) as a negative number, with the label ‘‘Lender Credit’’ and designated borrower-paid at closing. (4) The creditor must use descriptions for the charges disclosed pursuant to paragraphs (f) and (g) of this section on the Closing Disclosure in a manner that are consistent with the descriptions used for the charges disclosed on the Loan Estimate pursuant to § 1026.37 of this part. The creditor must also list the charges on the Closing Disclosure in the same sequential order as on the Loan Estimate pursuant to § 1026.37. (i) Calculating cash to close. In a separate table, under the heading ‘‘Calculating Cash to Close,’’ together with the statement ‘‘Use this table to see what has changed from your Loan Estimate’’: (1) Total closing costs. (i) Under the subheading ‘‘Estimate,’’ the ‘‘Total Closing Costs’’ disclosed on the Loan Estimate under § 1026.37(h)(1), labeled using that term together with a reference to the disclosure of ‘‘Total Closing Costs’’ under paragraph (h)(1) of this section. (ii) Under the subheading ‘‘Final,’’ the amount disclosed under paragraph (h)(1) of this section, reduced by the amount of any lender credits disclosed under § 1026.38(h)(3). (iii) Disclosed more prominently than the other disclosures under this paragraph (i), under the subheading ‘‘Did this change?’’: (A) If the amount disclosed under paragraph (i)(1)(ii) of this section is different than the amount disclosed under paragraph (i)(1)(i) of this section (unless the difference is due to rounding): (1) A statement of that fact; (2) If the difference in the ‘‘Total Closing Costs’’ is attributable to differences in itemized charges that are included in either or both subtotals, a statement that the consumer should see the total loan costs and total other costs subtotals disclosed under paragraphs (f)(4) and (g)(5) of this section (together with references to such disclosures), as applicable; and (3) If the increase exceeds the limitations on increases in closing costs under § 1026.19(e)(3), a statement that such increase exceeds the legal limits by the dollar amount of the excess. Such dollar amount shall equal the sum total PO 00000 Frm 00210 Fmt 4701 Sfmt 4702 of all excesses of the limitations on increases in closing costs under § 1026.19(e)(3), taking into account the different methods of calculating excesses of the limitations on increases in closing costs under § 1026.19(e)(3)(ii) and (iii). (B) If the amount disclosed under paragraph (i)(1)(ii) of this section is equal to the amount disclosed under paragraph (i)(1)(i) of this section, a statement of that fact. (2) Closing costs subtotal paid before closing. (i) Under the subheading ‘‘Estimate,’’ the dollar amount ‘‘$0,’’ labeled ‘‘Closing Costs Subtotal Paid Before Closing.’’ (ii) Under the subheading ‘‘Final,’’ the amount of ‘‘Total Closing Costs’’ disclosed under paragraph (h)(2) of this section and designated as borrower-paid before closing, stated as a negative number. (iii) Disclosed more prominently than the other disclosures under this paragraph (i), under the subheading ‘‘Did this change?’’: (A) If the amount disclosed under paragraph (i)(2)(ii) of this section is different than the amount disclosed under paragraph (i)(2)(i) of this section (unless the difference is due to rounding), a statement of that fact, along with a statement that the consumer paid such amounts prior to consummation of the transaction; or (B) If the amount disclosed under paragraph (i)(2)(ii) of this section is equal to the amount disclosed under paragraph (i)(2)(i) of this section, a statement of that fact. (3) Closing costs financed. (i) Under the subheading ‘‘Estimate,’’ the amount disclosed under § 1026.37(h)(2), labeled ‘‘Closing Costs Financed.’’ (ii) Under the subheading ‘‘Final,’’ the actual amount of the closing costs that are to be paid out of loan proceeds, stated as a negative number. (iii) Disclosed more prominently than the other disclosures under this paragraph (i), under the subheading ‘‘Did this change?’’: (A) If the amount disclosed under paragraph (i)(3)(ii) of this section is different than the amount disclosed under paragraph (i)(3)(i) of this section (unless the difference is due to rounding), a statement that the amount is different, along with a statement that the consumer included the closing costs in the loan amount, which increased the loan amount; or (B) If the amount disclosed under paragraph (i)(3)(ii) of this section is equal to the amount disclosed under paragraph (i)(3)(i) of this section, a statement of that fact. E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules (4) Downpayment/funds from borrower. (i) Under the subheading ‘‘Estimate,’’ the amount disclosed under § 1026.37(h)(3), labeled ‘‘Downpayment/ Funds from Borrower.’’ (ii) Under the subheading ‘‘Final’’: (A) In a transaction that is a purchase as defined in § 1026.37(a)(9)(i), the actual amount of the difference between the purchase price of the property and the principal amount of the credit extended, stated as a positive number, labeled using the term ‘‘Downpayment/ Funds from Borrower’’; or (B) In a transaction other than the one described in paragraph (i)(4)(ii)(A) of this section, the ‘‘Funds from Borrower’’ as determined in accordance with paragraph (i)(6)(iv) of this section, labeled using the term ‘‘Downpayment/ Funds from Borrower.’’ (iii) Disclosed more prominently than the other disclosures under this paragraph (i), under the subheading ‘‘Did this change?’’: (A) If the amount disclosed under paragraph (i)(4)(ii) of this section is different than the amount disclosed under paragraph (i)(4)(i) of this section (unless the difference is due to rounding), a statement of that fact, along with a statement that the consumer increased or decreased this payment and that the consumer should see the details disclosed under paragraph (j)(1) or (j)(2) of this section, as applicable; or (B) If the amount disclosed under paragraph (i)(4)(ii) of this section is equal to the amount disclosed under paragraph (i)(4)(i) of this section, a statement of that fact. (5) Deposit. (i) Under the subheading ‘‘Estimate,’’ the amount disclosed under § 1026.37(h)(4), labeled ‘‘Deposit.’’ (ii) Under the subheading ‘‘Final,’’ the amount disclosed under paragraph (j)(2)(ii) of this section, stated as a negative number. (iii) Disclosed more prominently than the other disclosures under this paragraph (i), under the subheading ‘‘Did this change?’’: (A) If the amount disclosed under paragraph (i)(5)(ii) of this section is different than the amount disclosed under paragraph (i)(5)(i) of this section (unless the difference is due to rounding), a statement of that fact, along with a statement that the consumer increased or decreased this payment, as applicable, and that the consumer should see the details disclosed under paragraph (j)(2)(ii) of this section; or (B) If the amount disclosed under paragraph (i)(5)(ii) of this section is equal to the amount disclosed under paragraph (i)(5)(i) of this section, a statement of that fact. VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 (6) Funds for borrower. (i) Under the subheading ‘‘Estimate,’’ the amount disclosed under § 1026.37(h)(5), labeled ‘‘Funds for Borrower.’’ (ii) Under the subheading ‘‘Final,’’ the ‘‘Funds for Borrower,’’ labeled using that term, as determined in accordance with paragraph (i)(6)(iv) of this section. (iii) Disclosed more prominently than the other disclosures under this paragraph (i), under the subheading ‘‘Did this change?’’: (A) If the amount disclosed under paragraph (i)(6)(ii) of this section is different than the amount disclosed under paragraph (i)(6)(i) of this section (unless the difference is due to rounding), a statement of that fact, along with a statement that the consumer’s available funds from the loan amount have increased or decreased, as applicable; or (B) If the amount disclosed under paragraph (i)(6)(ii) of this section is equal to the amount disclosed under paragraph (i)(6)(i) of this section, a statement of that fact. (iv) The ‘‘Funds from Borrower’’ to be disclosed under paragraph (i)(4)(ii)(B) of this section and ‘‘Funds for Borrower’’ to be disclosed under paragraph (i)(6)(ii) of this section are determined by subtracting the principal amount of the credit extended (excluding any amount disclosed pursuant to paragraph (i)(3)(ii) of this section) from the total amount of all existing debt being satisfied in the real estate closing and disclosed under § 1026.38(j)(1)(v) (except to the extent the satisfaction of such existing debt is disclosed under § 1026.38(g)). (A) If the calculation under this paragraph (i)(6)(iv) yields an amount that is a positive number, such amount shall be disclosed under paragraph (i)(4)(ii)(B) of this section, and $0.00 shall be disclosed under paragraph (i)(6)(ii) of this section. (B) If the calculation under this paragraph (i)(6)(iv) yields an amount that is a negative number, such amount shall be disclosed under paragraph (i)(6)(ii) of this section, stated as a negative number, and $0.00 shall be disclosed under paragraph (i)(4)(ii)(B) of this section. (C) If the calculation under this paragraph (i)(6)(iv) yields $0.00, $0.00 shall be disclosed under paragraph (i)(4)(ii)(B) of this section and under paragraph (i)(6)(ii) of this section. (7) Seller credits. (i) Under the subheading ‘‘Estimate,’’ the amount disclosed under § 1026.37(h)(6), labeled ‘‘Seller Credits.’’ (ii) Under the subheading ‘‘Final,’’ the amount disclosed under paragraph (j)(2)(v) of this section, stated as a negative number. PO 00000 Frm 00211 Fmt 4701 Sfmt 4702 51325 (iii) Disclosed more prominently than the other disclosures under this paragraph (i), under the subheading ‘‘Did this change?’’: (A) If the amount disclosed under paragraph (i)(7)(ii) of this section is different than the amount disclosed under paragraph (i)(7)(i) of this section (unless the difference is due to rounding), a statement of that fact, along with a statement that the consumer should see the details disclosed under paragraph (j)(2)(v) of this section; or (B) If the amount disclosed under paragraph (i)(7)(ii) of this section is equal to the amount disclosed under paragraph (i)(7)(i) of this section, a statement of that fact. (8) Adjustments and other credits. (i) Under the subheading ‘‘Estimate,’’ the amount disclosed on the Loan Estimate under § 1026.37(h)(7) rounded to the nearest whole dollar, labeled ‘‘Adjustments and Other Credits.’’ (ii) Under the subheading ‘‘Final,’’ the amount equal to the total of the amounts disclosed under paragraphs (j)(1)(v) through (x) of this section reduced by the total of the amounts disclosed under paragraphs (j)(2)(vi) through (xi) of this section. (iii) Disclosed more prominently than the other disclosures under this paragraph (i), under the subheading ‘‘Did this change?’’: (A) If the amount disclosed under paragraph (i)(8)(ii) of this section is different than the amount disclosed under paragraph (i)(8)(i) of this section (unless the difference is due to rounding), a statement of that fact, along with a statement that the consumer should see the details disclosed under paragraphs (j)(1)(v) through (x) and (j)(2)(vi) through (xi) of this section; or (B) If the amount disclosed under paragraph (i)(8)(ii) of this section is equal to the amount disclosed under paragraph (i)(8)(i) of this section, a statement of that fact. (9) Cash to close. (i) Under the subheading ‘‘Estimate,’’ the amount disclosed on the Loan Estimate under § 1026.37(h)(8), labeled ‘‘Cash to Close’’ and disclosed more prominently than the other disclosures under this paragraph (i). (ii) Under the subheading ‘‘Final,’’ the sum of the amounts disclosed under paragraphs (i)(1) through (i)(8) of this section, and disclosed more prominently than the other disclosures under this paragraph (i). (j) Summary of borrower’s transaction. Under the heading ‘‘Summaries of Transactions,’’ with a statement to ‘‘Use this table to see a summary of your transaction,’’ two separate tables are disclosed. The first E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51326 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules table shall include, under the subheading ‘‘Borrower’s Transaction,’’ the following information and shall satisfy the following requirements: (1) Itemization of amount due from borrower. (i) The total amount due from the consumer at closing, calculated as the sum of items required to be disclosed by paragraph (j)(1)(ii) through (x) of this section, excluding items paid from funds other than closing funds as described in paragraph (j)(4)(i) of this section, labeled ‘‘Due from Borrower at Closing’’; (ii) The amount of the contract sales price of the property being sold in a purchase real estate transaction, excluding the price of any tangible personal property if the consumer and seller have agreed to a separate price for such items, labeled ‘‘Sale Price of Property’’; (iii) The amount of the sales price of any tangible personal property excluded from the contract sales price pursuant to paragraph (j)(1)(ii) of this section, labeled ‘‘Sale Price of Any Personal Property Included in Sale’’; (iv) The total amount of closing costs disclosed that are designated borrowerpaid at closing, calculated pursuant to paragraph (h)(1) of this section, the labeled ‘‘Subtotal Closing Costs Paid at Closing by Borrower’’; (v) A description and the amount of any additional items that the seller has paid prior to the real estate closing, but reimbursed by the consumer at the real estate closing, and a description and the amount of any other items owed by the consumer at the real estate closing not otherwise disclosed pursuant to paragraph (f), (g), or (j) of this section; (vi) The description ‘‘Adjustments for Items Paid by Seller in Advance’’; (vii) The time period that the consumer is responsible for reimbursing the seller for any prepaid taxes, and the prorated amount of any prepaid taxes due from the consumer at the real estate closing, labeled ‘‘City/Town Taxes’’; (viii) The time period that the consumer is responsible for reimbursing the seller for any prepaid taxes, and the prorated amount of any prepaid taxes due from the consumer at the real estate closing, labeled ‘‘County Taxes’’; (ix) The time period that the consumer is responsible for reimbursing the seller for any prepaid assessments, and the prorated amount of any prepaid assessments due from the consumer at the real estate closing, labeled ‘‘Assessments’’; and (x) A description and the amount of any additional items paid by the seller prior to the real estate closing that are due from the consumer at the real estate closing. VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 (2) Itemization of amounts already paid by or on behalf of borrower. (i) The sum of the amounts disclosed in this paragraphs (j)(2)(ii) through (xi) of this section, excluding items paid from funds other than closing funds as described in paragraph (j)(4)(i) of this section, labeled ‘‘Paid Already by or on Behalf of Borrower at Closing’’; (ii) Any amount that is paid to the seller or held in trust or escrow by an attorney or other party under the terms of the agreement for the sale of real estate, labeled ‘‘Deposit’’; (iii) The amount of the consumer’s new loan or first user loan as disclosed pursuant to paragraph (b)(1) of this section, labeled ‘‘Borrower’s Loan Amount’’; (iv) The amount of those existing loans assumed or taken subject to by the consumer, labeled ‘‘Existing Loan(s) Assumed or Taken Subject to’’; (v) The total amount of money that the seller will provide at the real estate closing as a lump sum to pay for loan costs as determined by paragraph (f) of this section and other costs as determined by paragraph (g) of this section and any other obligations of the seller to be paid directly to the consumer, labeled ‘‘Seller Credit’’; (vi) The amount of other items paid by or on behalf of the consumer and not otherwise disclosed pursuant to paragraphs (f), (g), (h), and (j)(2) of this section, labeled ‘‘Other Credits’’; (vii) The description ‘‘Adjustments for Items Unpaid by Seller’’; (viii) The time period that the seller is responsible for the payment of any unpaid taxes, and the prorated amount of any unpaid taxes due from the seller at the real estate closing, labeled ‘‘City/ Town Taxes’’; (ix) The time period that the seller is responsible for the payment of any unpaid taxes, and the prorated amount of any unpaid taxes due from the seller at the real estate closing, labeled ‘‘County Taxes’’; (x) The time period that the seller is responsible for the payment of any unpaid assessments, and the prorated amount of any unpaid assessments due from the seller at the real estate closing, labeled ‘‘Assessments’’; and (xi) A description and the amount of any additional items which have not yet been paid and which the consumer is expected to pay after the real estate closing, but which are attributable in part to a period of time prior to the real estate closing. (3) Calculation of borrower’s transaction. Under the label ‘‘Calculation’’: PO 00000 Frm 00212 Fmt 4701 Sfmt 4702 (i) The amount disclosed pursuant to paragraph (j)(1)(i) of this section, labeled ‘‘Total Due from Borrower at Closing’’; (ii) The amount disclosed pursuant to paragraph (j)(2)(i) of this section, disclosed as a negative number, labeled ‘‘Total Paid Already by or on Behalf of Borrower at Closing’’; and (iii) A statement that the disclosed amount is due from or to the consumer, and the amount due from or to the consumer at the real estate closing, calculated by the sum of the amounts disclosed under paragraphs (j)(3)(i) and (j)(3)(ii) of this section, labeled ‘‘Cash to Close.’’ (4) Items paid outside of closing funds. (i) Costs that are not paid from closing funds but that would otherwise be disclosed in the table required pursuant to paragraph (j) of this section, should be marked with the phrase ‘‘Paid Outside of Closing’’ or the abbreviation ‘‘P.O.C.’’ and include the name of the party making the payment. (ii) For purposes of this paragraph (j), ‘‘closing funds’’ means funds collected and disbursed at closing. (k) Summary of seller’s transaction. Under the heading required by paragraph (j) of this section, a second table under the subheading ‘‘Seller’s Transaction,’’ that includes the following information and satisfies the following requirements: (1) Itemization of amounts due to seller. (i) The total amount due to the seller at the real estate closing, calculated as the sum of items required to be disclosed pursuant to paragraph (k)(1)(ii) through (ix) of this section, excluding items paid from funds other than closing funds as described in paragraph (k)(4)(i) of this section, labeled ‘‘Due to Seller at Closing’’; (ii) The amount of the contract sales price of the property being sold, excluding the price of any tangible personal property if the consumer and seller have agreed to a separate price for such items, labeled ‘‘Sale Price of Property’’; (iii) The amount of the sales price of any tangible personal property excluded from the contract sales price pursuant to paragraph (k)(1)(ii) of this section, labeled ‘‘Sale Price of Any Personal Property Included in Sale’’; (iv) A description and the amount of other items paid to the seller by the consumer pursuant to the contract of sale or other agreement, such as charges that were not disclosed pursuant to § 1026.37 on the Loan Estimate or items paid by the seller prior to the real estate closing but reimbursed by the consumer at the real estate closing; (v) The description ‘‘Adjustments for Items Paid by Seller in Advance’’; E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules (vi) The time period that the consumer is responsible for reimbursing the seller for any prepaid taxes, and the prorated amount of any prepaid taxes due from the consumer at the real estate closing, labeled ‘‘City/Town Taxes’’; (vii) The time period that the consumer is responsible for reimbursing the seller for any prepaid taxes, and the prorated amount of any prepaid taxes due from the consumer at the real estate closing, labeled ‘‘County Taxes’’; (viii) The time period that the consumer is responsible for reimbursing the seller for any prepaid assessments, and the prorated amount of any prepaid assessments due from the consumer at the real estate closing, labeled ‘‘Assessments’’; and (ix) A description and the amount of additional items paid by the seller prior to the real estate closing that are reimbursed by the consumer at the real estate closing. (2) Itemization of amounts due from seller. (i) The total amount due from the seller at the real estate closing, calculated as the sum of items required to be disclosed pursuant to paragraph (k)(2)(ii) through (xiii) of this section, excluding items paid from funds other than closing funds as described in paragraph (k)(4)(i) of this section, labeled ‘‘Due from Seller at Closing’’; (ii) The amount of any excess deposit retained by the seller at the time of the real estate closing, labeled ‘‘Excess Deposit’’; (iii) The amount of closing costs designated seller-paid at closing disclosed pursuant to paragraph (h)(1) of this section, labeled ‘‘Subtotal Closing Costs Paid at Closing by Seller’’; (iv) The amount of those existing loans assumed or taken subject to at the real estate closing by the consumer, labeled ‘‘Existing Loan(s) Assumed or Taken Subject to’’; (v) The amount of any first loan secured by the property that will be paid off as part of the real estate closing, labeled ‘‘Payoff of First Mortgage Loan’’; (vi) The amount of any second loan secured by the property that will be paid off as part of the real estate closing, labeled ‘‘Payoff of Second Mortgage Loan’’; (vii) The total amount of money that the seller will provide at the real estate closing as a lump sum to pay for loan costs as determined by paragraph (f) of this section and other costs as determined by paragraph (g) of this section and any other obligations of the seller to be paid directly to the consumer, labeled ‘‘Seller Credit’’; (viii) A description and amount of any and all other obligations required to be paid by the seller at the real estate VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 closing, including any lien-related payoffs, fees, or obligations; (ix) The description ‘‘Adjustments for Items Unpaid by Seller’’; (x) The time period that the seller is responsible for the payment of any unpaid taxes, and the prorated amount of any unpaid taxes due from the seller at the real estate closing, labeled ‘‘City/ Town Taxes’’; (xi) The time period that the seller is responsible for the payment of any unpaid taxes, and the prorated amount of any unpaid taxes due from the seller at the real estate closing, labeled ‘‘County Taxes’’; (xii) The time period that the seller is responsible for the payment of any unpaid assessments, and the prorated amount of any unpaid assessments due from the seller at the real estate closing, labeled ‘‘Assessments’’; and (xiii) A description and the amount of any additional items which have not yet been paid and which the consumer is expected to pay after the real estate closing, but which are attributable in part to a period of time prior to the real estate closing. (3) Calculation of seller’s transaction. Under the label ‘‘Calculation’’: (i) The amount described in paragraph (k)(1)(i) of this section, labeled ‘‘Total Due to Seller at Closing’’; (ii) The amount described in paragraph (k)(2)(i) of this section, disclosed as a negative number, labeled ‘‘Total Due from Seller at Closing’’; and (iii) A statement that the disclosed amount is due from or to the seller, and the amount due from or to the seller at closing, calculated by the sum of the amounts disclosed pursuant to paragraphs (k)(3)(i) and (k)(3)(ii) of this section, labeled ‘‘Cash.’’ (4) Items paid outside of closing funds. (i) Charges that are not paid from closing funds but that would otherwise be disclosed in the table described in paragraph (k) of this section, should be marked with the phrase ‘‘Paid Outside of Closing’’ or the acronym ‘‘P.O.C.’’ and include a statement of the party making the payment. (ii) For purposes of this paragraph (k), ‘‘closing funds’’ are defined as funds collected and disbursed at closing. (l) Loan disclosures. Under the master heading ‘‘Additional Information About This Loan’’ and under the heading ‘‘Loan Disclosures’’: (1) Assumption. Under the subheading ‘‘Assumption,’’ the information required by § 1026.37(m)(2). (2) Demand feature. Under the subheading ‘‘Demand Feature,’’ a statement of whether the legal obligation permits the creditor to demand early repayment of the loan PO 00000 Frm 00213 Fmt 4701 Sfmt 4702 51327 and, if the statement is affirmative, a reference to the note or other loan contract for details. (3) Late payment. Under the subheading ‘‘Late Payment,’’ the information required by § 1026.37(m)(4). (4) Negative amortization. Under the subheading ‘‘Negative Amortization (Increase in Loan Amount),’’ a statement of whether the regular periodic payments may cause the principal balance to increase. (i) If the regular periodic payments do not cover all of the interest due, the creditor must provide a statement that the principal balance will increase, such balance will likely become larger than the original loan amount, and increases in such balance lower the consumer’s equity in the property. (ii) If the consumer may make regular periodic payments that do not cover all of the interest due, the creditor must provide a statement that, if the consumer chooses a monthly payment option that does not cover all of the interest due, the principal balance may become larger than the original loan amount and the increases in the principal balance lower the consumer’s equity in the property. (5) Partial payment policy. Under the subheading ‘‘Partial Payment Policy’’: (i) A statement whether the creditor will accept monthly payments that are less than the full amount due and that, if the loan is sold, the new creditor may have a different policy; and (ii) If partial payments are permitted, a brief description of the creditor’s partial payment policy, including the manner and order in which the partial payment would be applied to the principal, interest, or an escrow account for partial payments and whether any penalties apply. (6) Security interest. Under the subheading ‘‘Security Interest,’’ a statement that the creditor will acquire a security interest in the property securing the transaction, the property address, and a statement that the consumer may lose the property if the consumer does not make the required payments or satisfy other requirements under the legal obligation. (7) Escrow account. Under the subheading ‘‘Escrow Account’’: (i) Under the reference ‘‘For now,’’ a statement that an escrow account may also be called an impound or trust account, a statement of whether the creditor has established or will establish, at or before consummation, an escrow account in connection with the transaction for the costs that will be paid using escrow account funds described in paragraph (l)(7)(i)(A)(1) of this section: E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51328 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules (A) A statement that the creditor may be liable for penalties and interest if it fails to make a payment for any cost for which the escrow account is established, a statement that the consumer would have to pay such costs directly in the absence of the escrow account, and a table, titled ‘‘Escrow’’ that contains, if an escrow account is or will be established, an itemization of the following: (1) The total amount the consumer will be required to pay into an escrow account over the first year after consummation for payment of the charges described in § 1026.37(c)(4)(ii), labeled ‘‘Escrowed Property Costs over Year 1,’’ together with a descriptive name of each such charge, calculated as the amount disclosed under paragraph (l)(7)(i)(A)(4) of this section multiplied by the number of periodic payments scheduled to be made to the escrow account during the first year after consummation; (2) The estimated amount the consumer is likely to pay during the first year after consummation for charges described in § 1026.37(c)(4)(ii) that are known to the creditor and that will not be paid using escrow account funds, labeled ‘‘Non-Escrowed Property Costs over Year 1,’’ together with a descriptive name of each such charge and a statement that the consumer may have to pay other costs that are not listed; (3) The total amount disclosed pursuant to paragraph (g)(3) of this section, a statement that the payment is a cushion for the escrow account, labeled ‘‘Initial Payment,’’ and a reference to the information disclosed pursuant to paragraph (g)(3) of this section; (4) The amount the consumer will be required to pay into the escrow account with each periodic payment during the first year after consummation for payment of the charges described in § 1026.37(c)(4)(ii), labeled ‘‘Monthly Payment.’’ (5) A creditor complies with the requirements of paragraphs (l)(7)(i)(A)(1) and (l)(7)(i)(A)(4) of this section if the creditor bases the numerical disclosures required by those paragraphs on amounts derived from the escrow account analysis required under Regulation X, 12 CFR 1024.17. (B) A statement of whether the consumer will not have an escrow account, the reason why an escrow account will not be established, a statement that the consumer must pay all property costs, such as taxes and homeowner’s insurance, directly, a statement that the consumer may contact the creditor to inquire about the VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 availability of an escrow account, and a table, titled ‘‘No Escrow,’’ that contains, if an escrow account will not be established, an itemization of the following: (1) The estimated total amount the consumer will pay directly for charges described in § 1026.37(c)(4)(ii) during the first year after consummation that are known to the creditor and a statement that, without an escrow account, the consumer must pay the identified costs, possibly in one or two large payments, labeled as ‘‘Estimated Property Costs over Year 1’’; and (2) The amount of any fee the creditor imposes on the consumer for not establishing an escrow account in connection with the transaction, labeled ‘‘Escrow Waiver Fee.’’ (ii) Under the reference ‘‘In the future’’: (A) A statement that the consumer’s property costs may change and that, as a result, the consumer’s escrow payments may change; (B) A statement that the consumer may be able to cancel any escrow account that has been established, but that the consumer is responsible for directly paying all property costs in the absence of an escrow account; and (C) A description of the consequences if the consumer fails to pay property costs, including the actions that a State or local government may take if property taxes are not paid and the actions the creditor may take if the consumer does not pay some or all property costs, such as adding amounts to the loan balance, adding an escrow account to the loan, or purchasing a property insurance policy on the consumer’s behalf that may be more expensive and provide fewer benefits than what the consumer could obtain directly. (m) Adjustable payment table. Under the master heading ‘‘Additional Information About This Loan’’ required by paragraph (l) of this section, and under the heading ‘‘Adjustable Payment (AP) Table,’’ the table required to be disclosed by § 1026.37(i). (n) Adjustable interest rate table. Under the master heading ‘‘Additional Information About This Loan’’ required by paragraph (l) of this section, and under the heading ‘‘Adjustable Interest Rate (AIR) Table,’’ the table required to be disclosed by § 1026.37(j). (o) Loan calculations. In a separate table under the heading ‘‘Loan Calculations’’: (1) Total of payments. The ‘‘Total of Payments,’’ using that term and expressed as a dollar amount, and a statement that the disclosure is the total the consumer will have paid after PO 00000 Frm 00214 Fmt 4701 Sfmt 4702 making all payments of principal, interest, mortgage insurance, and loan costs, as scheduled. (2) Finance charge. The ‘‘Finance Charge,’’ using that term and expressed as a dollar amount, and the following statement: ‘‘The dollar amount the loan will cost you.’’ The disclosed finance charge and other disclosures affected by the disclosed financed charge (including the amount financed and the annual percentage rate) shall be treated as accurate if the amount disclosed as the finance charge: (i) is understated by no more than $100; or (ii) is greater than the amount required to be disclosed. (3) Amount financed. The ‘‘Amount Financed,’’ using that term and expressed as a dollar amount, and the following statement: ‘‘The loan amount available after paying your upfront finance charge.’’ (4) Annual percentage rate. The ‘‘Annual Percentage Rate,’’ using that term and the abbreviation ‘‘APR’’ and expressed as a percentage, and the following statement: ‘‘Your costs over the loan term expressed as a rate. This is not your interest rate.’’ (5) Total interest percentage. The ‘‘Total Interest Percentage,’’ using that term and the abbreviation ‘‘TIP’’ and expressed as a percentage, and the following statement: ‘‘The total amount of interest that you will pay over the loan term as a percentage of your loan amount.’’ (6) Approximate cost of funds. The ‘‘Approximate Cost of Funds,’’ using that term and the abbreviation ‘‘ACF’’ and expressed as a percentage, and the following statement: ‘‘The approximate cost of funds used to make this loan. This is not a direct cost to you.’’ For purposes of this paragraph (o)(6), ‘‘approximate cost of funds’’ means either the most recent ten-year Treasury constant maturity rate or the creditor’s actual cost of borrowing the funds used to extend the credit, at the creditor’s option. (p) Other disclosures. Under the heading ‘‘Other Disclosures’’: (1) Appraisal. For transactions subject to 15 U.S.C. 1639h or 1691(e), as implemented in this part or Regulation B, 12 CFR part 1002, respectively, under the subheading ‘‘Appraisal,’’ that: (i) If there was an appraisal of the property in connection with the loan, the creditor is required to provide the consumer with a copy at no additional cost to the consumer at least three days prior to consummation; and (ii) If the consumer has not yet received a copy of the appraisal, the consumer should contact the creditor E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules using the information disclosed pursuant to paragraph (r) of this section. (2) Contract details. A statement that the consumer should refer to the appropriate loan document and security instrument for information about nonpayment, what constitutes a default under the legal obligation, circumstances under which the creditor may accelerate the maturity of the obligation, and prepayment rebates and penalties, under the subheading ‘‘Contract Details.’’ (3) Liability after foreclosure. A brief statement of whether, and the conditions under which, the consumer may remain responsible for any deficiency after foreclosure under applicable State law, a brief statement that certain protections may be lost if the consumer refinances or incurs additional debt on the property, and a statement that the consumer should consult an attorney for additional information, under the subheading ‘‘Liability after Foreclosure.’’ (4) Refinance. Under the subheading ‘‘Refinance,’’ the statement required by § 1026.37(m)(5). (5) Tax deductions. Under the subheading ‘‘Tax Deductions,’’ a statement that, if the extension of credit exceeds the fair market value of the property, the interest on the portion of the credit extension that is greater than the fair market value of the property is not tax deductible for Federal income tax purposes and a statement that the consumer should consult a tax adviser for further information. (q) Questions notice. In a separate notice labeled ‘‘Questions?’’: (1) A statement that the consumer should contact the creditor with any questions about the disclosures required pursuant to § 1026.19(f); (2) A reference to the Bureau’s Web site to obtain more information or to make a complaint; and (3) A prominent question mark. (r) Contact information. In a separate table, under the heading ‘‘Contact Information,’’ the following information for each creditor (under the subheading ‘‘Lender’’), mortgage broker (under the subheading ‘‘Mortgage Broker’’), consumer’s real estate broker (under the subheading ‘‘Real Estate Broker (B)’’), seller’s real estate broker (under the subheading ‘‘Real Estate Broker (S)’’), and closing agent (under the subheading ‘‘Closing Agent’’) participating in the transaction: (1) Name of the person, labeled ‘‘Name’’; (2) Address, using that label; (3) Nationwide Mortgage Licensing System & Registry identification number or, if none, license number or other VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 unique identifier issued by the applicable jurisdiction or regulating body with which the person is licensed and/or registered, for the persons identified in paragraph (r)(1) of this section, labeled ‘‘NMLS/License ID’’; (4) Name of the natural person who is the primary contact for the consumer with the person identified in paragraph (r)(1) of this section, labeled ‘‘Contact’’; (5) Nationwide Mortgage Licensing System & Registry identification number or, if none, license number or other unique identifier issued by the applicable jurisdiction or regulating body with which the person is licensed and/or registered, for the natural person identified in paragraph (r)(4) of this section, labeled ‘‘Contact NMLS/License ID’’; (6) Email address for the person identified in paragraph (r)(4) of this section, labeled ‘‘Email’’; and (7) Telephone number for the person identified in paragraph (r)(4) of this section, labeled ‘‘Phone.’’ (s) Signature statement. (1) At the creditor’s option, under the heading ‘‘Confirm Receipt,’’ a line for the signatures of the consumers in the transaction. If the creditor provides a line for the consumer’s signature, the creditor must disclose the statement required to be disclosed under § 1026.37(n)(1). (2) If the creditor does not provide a line for the consumer’s signature under the heading ‘‘Other Disclosures’’ required by paragraph (p) of this section, the statement required to be disclosed under § 1026.37(n)(2). (t) Form of disclosures. (1) General requirements. (i) The creditor shall make the disclosures required by this section clearly and conspicuously in writing, in a form that the consumer may keep. The disclosures also shall be grouped together, segregated from everything else, and provided on separate pages that are not commingled with any other documents or disclosures, including any other disclosures required by State or other laws. (ii) Except as provided in paragraph (t)(5), the disclosures shall contain only the information required by paragraphs (a) through (s) of this section and shall be made in the same order, and positioned relative to the master headings, headings, subheadings, labels, and similar designations in the same manner, as shown in form H–25, set forth in appendix H to this part. (2) Estimated disclosures. If a master heading, heading, subheading, label, or similar designation contains the word ‘‘estimated’’ in form H–25, set forth in appendix H to this part, that heading, PO 00000 Frm 00215 Fmt 4701 Sfmt 4702 51329 label, or similar designation shall contain the word ‘‘estimated.’’ (3) Form. Except as provided in paragraph (t)(5) of this section: (i) For a transaction subject to this section that is a federally related mortgage loan, as defined in Regulation X, 12 CFR 1024.2, the disclosures must be made using form H–25, set forth in appendix H to this part. (ii) For any other transaction subject to this section, the disclosures must be made with headings, content, and format substantially similar to form H– 25, set forth in appendix H to this part. (iii) The disclosures required by this section may be provided to the consumer in electronic form, subject to compliance with the consumer consent and other applicable provisions of the Electronic Signatures in Global and National Commerce Act (E-Sign Act) (15 U.S.C. 7001 et seq.). (4) Rounding. (i) Nearest dollar. The following dollar amounts are required to be rounded to the nearest whole dollar: (A) The dollar amounts required to be disclosed by paragraph (b) of this section that are required to be rounded by § 1026.37(o)(4)(i)(A) when disclosed under § 1026.37(b)(6) and (7); (B) The dollar amounts required to be disclosed by paragraph (c) of this section that are required to be rounded by § 1026.37(o)(4)(i)(A) when disclosed under § 1026.37(c)(1)(iii); (C) The dollar amounts required to be disclosed by paragraph (i) of this section under the subheading ‘‘Estimate’’; (D) The dollar amounts required to be disclosed by paragraph (m) of this section; and (E) The dollar amounts required to be disclosed by paragraph (c) of this section that are required to be rounded by § 1026.37(o)(4)(i)(B) when disclosed under § 1026.37(c)(2)(iv). (ii) Percentages. The percentage amounts required to be disclosed under paragraphs (b), (f)(1)(i), (g)(2)(iii), (l), (n), and (o)(5) and (6) of this section shall be disclosed as an exact number up to two or three decimal places. The percentage amount required to be disclosed under paragraph (o)(4) of this section shall be disclosed up to three decimal places. Decimal places shall not be disclosed if the amount is a whole number. (5) Exceptions. (i) Unit-period. Wherever the form or this section uses ‘‘monthly’’ to describe the frequency of any payments or uses ‘‘month’’ to describe the applicable unit-period, the creditor shall substitute the appropriate term to reflect the fact that the transaction’s terms provide for other than monthly periodic payments, such as bi-weekly or quarterly payments. E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51330 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules (ii) Lender credits. The amount required to be disclosed by paragraph (d)(4) of this section may be omitted from the form if the amount is zero. (iii) Administrative information. The creditor may insert immediately above the information required to be disclosed by paragraph (a)(2) of this section and adjacent to the information required to be disclosed by paragraph (a)(3) of this section any administrative information, text, or codes that assist in identification of the form or the information disclosed on the form. (iv) Line numbers (Closing Cost Details). Line numbers provided on form H–25 in Appendix H to this part for the disclosure of the information required by paragraphs (f)(1), (2), and (3) and (g)(1), (2), (3), and (4) of this section that are not used may be deleted and the deleted line numbers added to the space provided for any other of those paragraphs as necessary to accommodate the disclosure of additional items. (v) Additional page (Closing Cost Details). The information required to be disclosed by paragraphs (f), (g), and (h) of this section may be disclosed on two pages if form H–25 in appendix H to this part, as altered pursuant to paragraph (t)(5)(iv) of this section, does not accommodate an itemization of all of the information required to be disclosed by paragraphs (f), (g), and (h) on one page, provided that the information required by paragraph (f) is disclosed on a page separate from the information required by paragraph (g). The information required by paragraph (g), if disclosed on a page separate from paragraph (f), shall be disclosed on the same page as the information required by paragraph (h). (vi) Separation of consumer and seller information. The creditor or settlement agent preparing the form may use form H–25 in appendix H to this part for the disclosure provided to both the consumer and the seller, with the following modifications to separate the information of the consumer and seller, as necessary: (A) The information required to be disclosed by paragraphs (j) and (k) of this section may be disclosed on separate pages to the consumer and the seller, respectively, with the information required by the other paragraph left blank. The information disclosed to the consumer pursuant to paragraph (j) of this section must be disclosed on the same page as the information required by paragraph (i) of this section. (B) The information required to be disclosed by paragraphs (f) and (g) of this section with respect to costs paid by VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 the consumer may be left blank on the disclosure provided to the seller. (C) The information required by paragraphs (a)(2), (a)(4)(iii), (a)(5), (b) through (d), (i), (l) through (p), (r) with respect to the creditor and mortgage broker, and (s)(2) of this section may be left blank on the disclosure provided to the seller. (vii) Modified version of the form for a seller or third-party. The information required by paragraphs (a)(2), (a)(4)(iii), (a)(5), (b) through (d), (f) and (g) with respect to costs paid by the consumer, (i), (j), (l) through (p), (q)(1), (r) with respect to the creditor and mortgage broker, and (s) of this section may be deleted from the form provided to the seller or a third-party, as illustrated by form H–25(I) in appendix H to this part. (viii) Transaction without a seller. The following modifications to form H– 25 in appendix H to this part may be made for a transaction that does not involve a seller, as illustrated by form H–25(J) in appendix H to this part: (A) The information required by paragraphs (a)(4)(ii), (f), (g), and (h) with respect to costs paid by the seller, and (k) of this section may be deleted. (B) A table under the master heading ‘‘Closing Cost Details’’ required by paragraph (f) of this section may be added with the heading ‘‘Disbursements to Others’’ that itemizes the amounts of payments made at closing to other parties from the credit extended to the consumer or funds provided by the consumer in connection with the transaction, including designees of the consumer; the payees of such disbursements under the subheading ‘‘To’’; and the total amount of such payments labeled ‘‘Total Disbursements to Others.’’ (C) The information required by paragraphs (i)(5), (7), and (8) of this section may be deleted from the table required by paragraph (i) of this section. These deletions must be factored into the calculation and disclosure required by paragraph (i)(9) of this section. (D) The tables required to be disclosed by paragraphs (j) and (k) of this section may be deleted. (ix) Translation. The form may be translated into languages other than English. (x) Customary recitals and information. An additional page may be attached to the form for the purpose of including customary recitals and information used locally in real estate settlements.ﬁ 19. Section 1026.39 is amended by revising paragraphs (a)(2) and (d) and adding new paragraph (d)(5) to read as follows: PO 00000 Frm 00216 Fmt 4701 Sfmt 4702 § 1026.39 Mortgage transfer disclosures. (a) Scope. The disclosure requirements of this section apply to any covered person except as otherwise provided in this section. For purposes of this section: * * * * * (2) A ‘‘mortgage loan’’ means ﬂ: (i) An open-end consumer credit transaction that is secured by the principal dwelling of a consumer; and (ii) A closed-end consumer credit transaction secured by a dwelling or real property.ﬁ * * * * * (d) Content of required disclosures. The disclosures required by this section shall identify the loan that was sold, assigned or otherwise transferred, and state the following ﬂ, except that the information required by paragraph (d)(5) of this section shall be stated only for a mortgage loan that is a closed-end consumer credit transaction other than a reverse mortgage transaction subject to § 1026.33 of this partﬁ: * * * * * ﬂ(5) The following statements, labeled ‘‘Partial Payment Policy’’: (i) Whether the covered person will accept payments that are less than the amount due; (ii) If such payments are accepted, a description of how the covered person will apply such payments to the amount due, including whether such payments will be placed in an escrow account; and (iii) A statement that, if the loan is sold, the new covered person, using the term ‘‘lender,’’ may have a different policy.ﬁ * * * * * 20. Appendix D to part 1026 is amended by revising paragraph C of part II to read as follows: Appendix D to Part 1026—Multiple Advance Construction Loans * * * * * Part II—Construction and Permanent Financing Disclosed as One Transaction * * * * * C. The creditor shall disclose the repayment schedule as follows: 1. For loans under paragraph A.1 of part II, ﬂother than loans that are subject to § 1026.19(e) and (f),ﬁ without reflecting the number or amounts of payments of interest only that are made during the construction period. The fact that interest payments must be made and the timing of such payments shall be disclosed. 2. For loans under paragraph A.2 of part II ﬂand loans under paragraph A.1 of part II that are subject to § 1026.19(e) and (f)ﬁ, including any payments of interest only that are made during the construction period. * E:\FR\FM\23AUP2.SGM * * 23AUP2 * * Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 21. Appendix H to part 1026 is amended by revising H–13 and H–15, adding new H–24 through H–27, and revising and adding their respective entries to the table of contents at the beginning of the appendix in numerical order as follows: Appendix H to Part 1026—Closed-End øModel¿ Forms and Clauses * * * * H–13 ﬂClosed-Endﬁ øMortgage¿ Transaction With Demand Feature Sample * * * * * H–15 ﬂClosed-Endﬁ Graduated-Payment øMortgage¿ ﬂTransactionﬁ Sample * * * * * mstockstill on DSK4VPTVN1PROD with PROPOSALS2 ﬂH–24(A) Mortgage Loan Transaction Loan Estimate—Blank H–24(B) Mortgage Loan Transaction Loan Estimate—Fixed-Rate Loan Sample H–24(C) Mortgage Loan Transaction Loan Estimate—Interest Only Adjustable-Rate Loan Sample H–24(D) Mortgage Loan Transaction Loan Estimate—Refinance Sample * * * VerDate Mar<15>2010 * * * * * * BILLING CODE 4810–25–P H–13 ﬂClosed-End Transactionﬁ øMortgage¿ With Demand Feature Sample H–15 ﬂClosed-Endﬁ Graduated Payment ﬂTransactionﬁ øMortgage¿ Sample * 22:03 Aug 22, 2012 H–25(I) Mortgage Loan Transaction Closing Disclosure—Modification to Closing Disclosure for Disclosure Provided to Seller H–25(J) Mortgage Loan Transaction Closing Disclosure—Modification to Closing Disclosure for Transaction Not Involving Seller H–26(A) Mortgage Loan Transaction—PreLoan Estimate Statement H–26(B) Mortgage Loan Transaction—PreLoan Estimate Statement on Worksheet H–27(A) Mortgage Loan Transaction— Written List of Providers H–27(B) Mortgage Loan Transaction—Sample of Written List of Providers H–27(C) Mortgage Loan Transaction—Sample of Written List of Providers With Services You Cannot Shop Forﬁ Jkt 226001 PO 00000 Frm 00217 Fmt 4701 Sfmt 4702 E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.000</GPH> * H–24(E) Mortgage Loan Transaction Loan Estimate—Balloon Payment Sample H–24(F) Mortgage Loan Transaction Loan Estimate—Negative Amortization Sample H–25(A) Mortgage Loan Transaction Closing Disclosure—Blank H–25(B) Mortgage Loan Transaction Closing Disclosure—Fixed-Rate Loan Sample H–25(C) Mortgage Loan Transaction Closing Disclosure—Sample of Borrower Funds From Second-Lien Loan in Summaries of Transactions H–25(D) Mortgage Loan Transaction Closing Disclosure—Sample of Borrower Satisfaction of Seller’s Second-Lien Loan Outside of Closing in Summaries of Transactions H–25(E) Mortgage Loan Transaction Closing Disclosure—Sample of Refinance Transaction H–25(F) Mortgage Loan Transaction Closing Disclosure—Sample of Refinance Transaction (19(e)(3) violation) H–25(G) Mortgage Loan Transaction Closing Disclosure—Sample of Refinance Transaction With Financed Closing Costs H–25(H) Mortgage Loan Transaction Closing Disclosure—Modification to Closing Cost Details 51331 51332 * * * ﬂH–24(A) Mortgage Loan Transaction Loan Estimate—Blank * mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Description: This is a blank Loan Estimate that illustrates the application of the content VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00218 Fmt 4701 Sfmt 4702 requirements in § 1026.37. This form provides two variations of page one, four variations of page two, and eight variations of page three, reflecting the variable content requirements in § 1026.37. E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.001</GPH> * Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00219 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 51333 EP23AU12.002</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules VerDate Mar<15>2010 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00220 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.003</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51334 VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00221 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 51335 EP23AU12.004</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules VerDate Mar<15>2010 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00222 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.005</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51336 VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00223 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 51337 EP23AU12.006</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules VerDate Mar<15>2010 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00224 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.007</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51338 VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00225 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 51339 EP23AU12.008</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules VerDate Mar<15>2010 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00226 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.009</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51340 VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00227 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 51341 EP23AU12.010</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules VerDate Mar<15>2010 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00228 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.011</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51342 VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00229 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 51343 EP23AU12.012</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules VerDate Mar<15>2010 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00230 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.013</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51344 VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00231 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 51345 EP23AU12.014</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 H–24(B) Mortgage Loan Transaction Loan Estimate—Fixed-Rate Loan Sample Description: This is an example of a completed Loan Estimate for a fixed-rate VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 loan. This loan is for the purchase of property at a sale price of $180,000 and has a loan amount of $162,000, a 30-year loan term, and a fixed interest rate of 3.875 PO 00000 Frm 00232 Fmt 4701 Sfmt 4702 percent. The consumer has elected to lock the interest rate. The creditor requires an escrow account and that the consumer pay for private mortgage insurance. E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.015</GPH> 51346 VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00233 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 51347 EP23AU12.016</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules VerDate Mar<15>2010 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00234 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.017</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51348 H–24(C) Mortgage Loan Transaction Loan Estimate—Interest Only Adjustable-Rate Loan Sample Description: This is an example of a completed Loan Estimate for an adjustablerate loan with interest-only payments. This loan is for the purchase of property at a sale VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 price of $240,000 and has a loan amount of $211,000 and a 30-year loan term. For the first five years of the loan term, the scheduled payments cover only interest and the loan has an adjustable interest rate that is fixed at 4.375 percent. After five years, the payments include principal and the interest PO 00000 Frm 00235 Fmt 4701 Sfmt 4702 51349 rate adjusts every three years based on the value of the London Interbank Offered Rate plus a margin of 4.00 percent. The consumer has elected to lock the interest rate. The creditor requires an escrow account and that the consumer pay for private mortgage insurance. E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.018</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules VerDate Mar<15>2010 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00236 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.019</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51350 VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00237 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 51351 EP23AU12.020</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 H–24(D) Mortgage Loan Transaction Loan Estimate—Refinance Sample Description: This is an example of a completed Loan Estimate for a transaction VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 that is for a refinance and includes a prepayment penalty equal to 2.00 percent of the principal amount prepaid for the first two years after consummation of the transaction. PO 00000 Frm 00238 Fmt 4701 Sfmt 4702 The consumer estimated the balance of the existing loan to be $121,000. E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.021</GPH> 51352 VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00239 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 51353 EP23AU12.022</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules VerDate Mar<15>2010 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00240 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.023</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51354 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 (c) for a transaction with a loan term of 7 years that includes a final balloon payment. PO 00000 Frm 00241 Fmt 4701 Sfmt 4702 E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.024</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 H–24(E) Mortgage Loan Transaction Loan Estimate—Balloon Payment Sample Description: This is an example of the information required by § 1026.37(a) through 51355 51356 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00242 Fmt 4701 Sfmt 4702 E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.025</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 H–24(F) Mortgage Loan Transaction Loan Estimate—Negative Amortization Sample Description: This is an example of the information required by § 1026.37(a) and (b) for a transaction with negative amortization. Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 requirements in § 1026.38. This form provides two variations of page one, one page two, one page three, four variations of page four, and two variations of page five, PO 00000 Frm 00243 Fmt 4701 Sfmt 4702 reflecting the variable content requirements in § 1026.38. This form does not reflect modifications permitted under § 1026.38(t). E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.026</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 H–25(A) Mortgage Loan Transaction Closing Disclosure—Blank Description: This is a blank Closing Disclosure that illustrates the content 51357 VerDate Mar<15>2010 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00244 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.027</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51358 VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00245 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 51359 EP23AU12.028</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules VerDate Mar<15>2010 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00246 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.029</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51360 VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00247 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 51361 EP23AU12.030</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules VerDate Mar<15>2010 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00248 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.031</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51362 VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00249 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 51363 EP23AU12.032</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules VerDate Mar<15>2010 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00250 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.033</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51364 VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00251 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 51365 EP23AU12.034</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules VerDate Mar<15>2010 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00252 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.035</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51366 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 rate loan illustrated by form H–24(B). The purpose, sale price, loan amount, loan term, and interest rate have not changed from the estimates provided on the Loan Estimate. The PO 00000 Frm 00253 Fmt 4701 Sfmt 4702 creditor requires an escrow account and that the consumer pay for private mortgage insurance for the transaction. E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.036</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 H–25(B) Mortgage Loan Transaction Closing Disclosure—Fixed-Rate Loan Sample Description: This is an example of a completed Closing Disclosure for the fixed- 51367 VerDate Mar<15>2010 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00254 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.037</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51368 VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00255 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 51369 EP23AU12.038</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules VerDate Mar<15>2010 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00256 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.039</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51370 VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00257 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 51371 EP23AU12.040</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 H–25(C) Mortgage Loan Transaction Closing Disclosure—Sample of Borrower Funds From Second-Lien Loan in Summaries of Transactions Description: This is an example of the information required on the Closing VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 Disclosure by § 1026.38(j) for disclosure of consumer funds from a simultaneous secondlien credit transaction not otherwise disclosed pursuant to § 1026.38(j)(2)(iii) or (iv) that is used to finance part of the PO 00000 Frm 00258 Fmt 4701 Sfmt 4702 purchase price of the property subject to the transaction. E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.041</GPH> 51372 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 Disclosure by § 1026.38(j) and (k) for the satisfaction of a junior-lien transaction by the consumer, which was not paid from closing funds. PO 00000 Frm 00259 Fmt 4701 Sfmt 4702 E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.042</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 H–25(D) Mortgage Loan Transaction Closing Disclosure—Sample of Borrower Satisfaction of Seller’s Second-Lien Loan Outside of Closing in Summaries of Transactions Description: This is an example of the information required on the Closing 51373 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 H–25(E) Mortgage Loan Transaction Closing Disclosure—Sample of Refinance Transaction Description: This is an example of a completed Closing Disclosure for the VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 refinance transaction illustrated by form H– 24(D). The purpose, loan amount, loan term, interest rate, and prepayment penalty have not changed from the estimates provided on PO 00000 Frm 00260 Fmt 4701 Sfmt 4702 the Loan Estimate. The creditor requires an escrow account and that the consumer pay for private mortgage insurance for the transaction. E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.043</GPH> 51374 VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00261 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 51375 EP23AU12.044</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules VerDate Mar<15>2010 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00262 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.045</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51376 VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00263 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 51377 EP23AU12.046</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules VerDate Mar<15>2010 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00264 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.047</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51378 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 refinance transaction illustrated by form H– 24(D). The Closing Costs have increased in violation of § 1026.19(e)(3) by $100, for which the creditor has provided a credit. PO 00000 Frm 00265 Fmt 4701 Sfmt 4702 E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.048</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 H–25(F) Mortgage Loan Transaction Closing Disclosure—Sample of Refinance Transaction (19(e)(3) violation) Description: This is an example of a completed Closing Disclosure for the 51379 VerDate Mar<15>2010 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00266 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.049</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51380 VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00267 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 51381 EP23AU12.050</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules VerDate Mar<15>2010 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00268 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.051</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51382 VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00269 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 51383 EP23AU12.052</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 H–25(G) Mortgage Loan Transaction Closing Disclosure—Sample of Refinance Transaction With Financed Closing Costs Description: This is an example of a completed Closing Disclosure for the VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 refinance transaction illustrated by form H– 24(D). The consumer has financed $4,500 of the Closing Costs in the Loan Amount. PO 00000 Frm 00270 Fmt 4701 Sfmt 4702 E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.053</GPH> 51384 VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00271 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 51385 EP23AU12.054</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules VerDate Mar<15>2010 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00272 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.055</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51386 VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00273 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 51387 EP23AU12.056</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules VerDate Mar<15>2010 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00274 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.057</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51388 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 51389 VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00275 Fmt 4701 Sfmt 4702 E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.058</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 H–25(H) Mortgage Loan Transaction Closing Disclosure—Modification to Closing Cost Details Description: This is an example of the modification to Closing Cost Details permitted by § 1026.38(t)(5)(v). VerDate Mar<15>2010 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00276 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.059</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51390 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 51391 VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00277 Fmt 4701 Sfmt 4702 E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.060</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 H–25(I) Mortgage Loan Transaction Closing Disclosure—Modification to Closing Disclosure for Disclosure Provided to Seller Description: This is an example of the modification permitted by § 1026.38(t)(5)(vii). VerDate Mar<15>2010 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00278 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.061</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51392 51393 H–25(J) Mortgage Loan Transaction Closing Disclosure—Modification to Closing Disclosure for Transaction Not Involving Seller Description: This is an example of the modification permitted by § 1026.38(t)(5)(viii). VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00279 Fmt 4701 Sfmt 4702 E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.062</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules VerDate Mar<15>2010 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00280 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.063</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51394 VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00281 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 51395 EP23AU12.064</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules VerDate Mar<15>2010 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00282 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.065</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51396 VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00283 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 51397 EP23AU12.066</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules VerDate Mar<15>2010 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00284 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.067</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51398 VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00285 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 51399 EP23AU12.068</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules VerDate Mar<15>2010 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00286 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.069</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51400 VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 PO 00000 Frm 00287 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUP2.SGM 23AUP2 51401 EP23AU12.070</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 51402 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 EP23AU12.072</GPH> H–26(B) Mortgage Loan Transaction— Disclaimer on Worksheet Description: This is an example of the placement of the disclaimer required by § 1026.19(e)(2)(ii) on the first page of a consumer-specific worksheet for which a creditor uses a format similar to the Loan Estimate in H–24 of this appendix. PO 00000 Frm 00288 Fmt 4701 Sfmt 4702 E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.071</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 H–26(A) Mortgage Loan Transaction— Disclaimer Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 by § 1026.19(e)(1)(vi) and the statement required by § 1026.19(e)(1)(vi)(C) that the consumer may select a settlement service provider that is not on the list. PO 00000 Frm 00289 Fmt 4701 Sfmt 4702 E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.073</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 H–27(A) Mortgage Loan Transaction— Written List of Providers Description: This is a model for the written list of settlement service providers required 51403 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 H–27(B) Mortgage Loan Transaction—Sample of Written List of Providers Description: This is a sample of the Written List of Providers for the transaction in the VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 sample Loan Estimate illustrated by form H– 24(B) of this appendix. PO 00000 Frm 00290 Fmt 4701 Sfmt 4702 E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.074</GPH> 51404 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 providers selected by the creditor for the charges disclosed pursuant to § 1026.37(f)(2). PO 00000 Frm 00291 Fmt 4701 Sfmt 4702 E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.075</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 H–27(C) Mortgage Loan Transaction—Sample of Written List of Providers With Services You Cannot Shop For Description: This is a sample of the Written List of Providers with information about the 51405 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules ﬁ mstockstill on DSK4VPTVN1PROD with PROPOSALS2 BILLING CODE 4810–25–C 22. In Supplement I to Part 1026: A. Under Section 1026.1—Authority, Purpose, Coverage, Organization, Enforcement and Liability, subheading 1(c) Coverage, the subheading Paragraph 1(c)(5) and paragraph 1. under that subheading are added. B. Under Section 1026.2—Definitions and Rules of Construction: i. The subheading 2(a)(3) Application and paragraphs 1., 2., and 3. under that subheading are added. ii. Under subheading 2(a)(6) Business day, paragraph 2. is revised. VerDate Mar<15>2010 22:54 Aug 22, 2012 Jkt 226001 iii. Under subheading 2(a)(25) Security interest, paragraph 2. is revised. C. Under Section 1026.3—Exempt Transactions: i. Under subheading 3(a) Business, commercial, agricultural, or organizational credit, paragraphs 9. and 10. are revised. ii. The subheading 3(h) Partial exemption for certain mortgage loans and paragraphs 1. and 2. under that subheading are added. D. Under Section 1026.4—Finance Charge: i. Under subheading 4(a) Definition, paragraph 6. is added. PO 00000 Frm 00292 Fmt 4701 Sfmt 4702 ii. Under subheading 4(a)(2) Special rule; closing agent charges, paragraph 3. is added. iii. Under subheading 4(b) Examples of finance charges, paragraph 1. is revised. iv. Under subheading 4(c) Charges excluded from the finance charge: a. Under subheading Paragraph 4(c)(1), paragraph 1. is revised. b. Under subheading 4(c)(7) Realestate related fees, paragraphs 1. and .3 are revised. v. Under subheading 4(d) Insurance and debt cancellation and debt suspension coverage, paragraphs 8. and 12. are revised. E:\FR\FM\23AUP2.SGM 23AUP2 EP23AU12.076</GPH> 51406 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules vi. Under subheading 4(e) Certain security interest charges, paragraph 1. is revised. vii. The subheading 4(g) Special rule for closed-end mortgage transactions and paragraphs 1., 2., and 3. under that subheading are added. E. Under Section 1026.17—General Disclosure Requirements: i. Paragraph 1. is added. ii. Under subheading 17(a) Form of disclosures, subheading Paragraph 17(a)(1), paragraph 7. is revised. iii. Under subheading 17(c) Basis of disclosures and use of estimates: a. Under subheading Paragraph 17(c)(1), paragraphs 1., 2., 3., 4., 5., 8., 10., 11., and 12. are revised and paragraph 19. is added. b. Under subheading Paragraph 17(c)(2)(i), paragraphs 1., 2., and 3. are revised. c. Under subheading Paragraph 17(c)(2)(ii), paragraph 1. is revised. d. Under subheading Paragraph 17(c)(4), paragraph 1. is revised. e. Under subheading Paragraph 17(c)(5), paragraphs 2., 3., and 4. are revised. iv. Under subheading 17(d) Multiple creditors; multiple consumers, paragraph 2. is revised. v. Under subheading 17(e) Effect of subsequent events, paragraph 1. is revised. vi. Under subheading 17(f) Early disclosures, paragraphs 1., 2., 3., and 4. are revised. vii. Under subheading 17(g) Mail or telephone orders—delay in disclosures, paragraph 1. is revised. viii. Under subheading 17(h) Series of sales—delay in disclosures, paragraph 1. is revised. F. Under Section 1026.18—Content of Disclosures: i. Paragraph 3. is added. ii. Under subheading 18(b) Amount financed: a. Paragraph 2. is removed. b. Under subheading Paragraph 18(b)(2), paragraph 1. is revised. iii. Under subheading 18(c) Itemization of amount financed: a. Paragraph 4. is revised. b. Under subheading Paragraph 18(c)(1)(iv), paragraph 2. is revised. iv. Under subheading 18(f) Variable rate, subheading Paragraph 18(f)(1)(iv), paragraph 2. is revised. v. Under subheading 18(g) Payment schedule: a. Paragraphs 4. and 6. are revised. b. Paragraph 5. is removed and reserved. c. Under subheading Paragraph 18(g)(2), paragraphs 1. and 2. are revised. vi. Under subheading 18(k) Prepayment: VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 a. Paragraphs 1., 2., and 3. are revised. b. Under subheading Paragraph 18(k)(1), paragraph 1. is revised and paragraph 2. is added. c. Under subheading Paragraph 18(k)(2), paragraph 1. is revised. vii. Under subheading 18(r) Required deposit, paragraph 6.vi is removed and reserved. viii. Under subheading 18(s) Interest rate and payment summary for mortgage transactions: a. Paragraph 1. is revised and paragraph 4. is added. b. Under subheading 18(s)(3) Payments for amortizing loans, subheading Paragraph 18(s)(3)(i)(C), paragraph 2. is revised. G. Under Section 1026.19—Certain Mortgage and Variable-Rate Transactions: i. Under subheading 19(a)(1)(i) Time of disclosures, paragraph 1. is revised. ii. Under subheading 19(a)(5) Timeshare plans: a. The subheading 19(a)(5) Timeshare plans is removed. b. The subheading Paragraph 19(a)(5)(ii) and paragraphs 1., 2., 3., 4., and 5. under that subheading are removed. c. The subheading Paragraph 19(a)(5)(iii) and paragraphs 1. and 2. under that subheading are removed. iii. New 19(e) Mortgage loans secured by real property—Early disclosures, 19(f) Mortgage loans secured by real property—Final disclosures, and 19(g) Special information booklet at time of application are added. H. Under Section 1026.22— Determination of Annual Percentage Rate, subheading 22(a) Accuracy of annual percentage rate, subheading 22(a)(4) Mortgage loans, paragraph 1. is revised. I. Under Section 1026.24— Advertising, 24(d) Advertisement of terms that require additional disclosures, subheading 24(d)(2) Additional terms, paragraph 2. is revised. J. Under Section 1026.25—Record Retention: i. The subheading 25(c) Records related to certain requirements for mortgage loans is added. ii. The subheading 25(c)(1) Records related to requirements for loans secured by real property and paragraphs 1. and 2. under that subheading are added. iii. The subheading 25(c)(1)(iii) Electronic records and paragraph 1. under that subheading are added. K. Under Section 1026.28—Effect on State Laws, subheading 28(a) Inconsistent disclosure requirements, paragraph 1. is revised. PO 00000 Frm 00293 Fmt 4701 Sfmt 4702 51407 L. Under Section 1026.29—State Exemptions, subheading 29(a) General rule, paragraphs 2. and 4. are revised. M. New Section 1026.37—Content of Disclosures for Certain Mortgage Transactions (Loan Estimate) is added. N. New Section 1026.38—Content of Disclosures for Certain Mortgage Transactions (Closing Disclosure) is added. O. Under Section 1026.39—Mortgage transfer disclosures, subheading 39(d) Content of required disclosures: i. Paragraph 2. is added. ii. The subheading Paragraph 39(d)(5) and paragraph 1. under that subheading are added. The revisions and additions read as follows: Supplement I to Part 1026—Official Interpretations * * * * * SUBPART A—GENERAL Section 1026.1—Authority, Purpose, Coverage, Organization, Enforcement and Liability 1(c) Coverage * * * * * ﬂParagraph 1(c)(5). 1. Temporary exemption. Section 1026.1(c)(5) implements sections 128(a)(16) through (19), 128(b)(4), 129C(f)(1), 129C(g)(2) and (3), 129C(h), 129D(h), and 129D(j)(1)(A) of the Truth in Lending Act and section 4(c) of the Real Estate Settlement Procedures Act, by exempting persons from the disclosure requirements of those sections. These exemptions are intended to be temporary, lasting only until regulations implementing the integrated disclosures required by section 1032(f) of the Dodd-Frank Act (12 U.S.C. 5532(f)) becomes mandatory. Section 1026.1(c)(5) does not exempt any person from any other requirement of this part, Regulation X (12 CFR part 1024), the Truth in Lending Act, or the Real Estate Settlement Procedures Act.ﬁ * * * * * Section 1026.2—Definitions and Rules of Construction * * * * * ﬂ2(a)(3) Application. 1. In general. An application means the submission of a consumer’s financial information for purposes of obtaining an extension of credit. Except for purposes of subpart B, subpart F, and subpart G, the term consists of the consumer’s name, the consumer’s income, the consumer’s social security number to obtain a credit report, the property address, an estimate of the value of the property, and the mortgage loan amount sought. This definition E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51408 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules does not prevent a creditor from collecting whatever additional information it deems necessary in connection with the request for the extension of credit. However, once a creditor has received these six pieces of information, it has an application for purposes of the requirements of Regulation Z. A submission may be in written or electronic format and includes a written record of an oral application. The following examples are illustrative of this provision: i. Assume a creditor provides a consumer with an application form containing 20 questions about the consumer’s credit history and the collateral value. The consumer submits answers to nine of the questions and informs the creditor that the consumer will contact the creditor the next day with answers to the other 11 questions. Although the consumer provided nine pieces of information, the consumer did not provide a social security number. The creditor has not yet received an application for purposes of § 1026.2(a)(3). ii. Assume a creditor requires all applicants to submit 20 pieces of information. The consumer submits only six pieces of information and informs the creditor that the consumer will contact the creditor the next day with answers to the other 14 questions. The six pieces of information provided by the consumer were the consumer’s name, income, social security number, property address, estimate of the value of the property, and the mortgage loan amount sought. Even though the creditor requires 14 additional pieces of information to process the consumer’s request for a mortgage loan, the creditor has received an application for the purposes of § 1026.2(a)(3) and therefore must comply with the relevant requirements under § 1026.19. 2. Social security number to obtain a credit report. If a consumer does not have a social security number, the creditor may substitute whatever unique identifier the creditor uses to obtain a credit report on the consumer. For example, a creditor has obtained a social security number to obtain a credit report for purposes of § 1026.2(a)(3)(ii) if the creditor collects a Tax Identification Number from a consumer who does not have a social security number, such as a foreign national. 3. Receipt of credit report fees. Section 1026.19(a)(1)(iii) permits the imposition of a fee to obtain the consumer’s credit history prior to the delivery of the disclosures required under § 1026.19(a)(1)(i). Section 1026.19(e)(2)(i)(B) permits the imposition of a fee to obtain the VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 consumer’s credit report prior to the delivery of the disclosures required under § 1026.19(e)(1)(i). Whether, or when, such fees are received does not affect whether an application has been received for the purposes of the definition in § 1026.2(a)(3) and the timing requirements in § 1026.19(a)(1)(i) and (e)(1)(iii). For example, if, in a transaction subject to § 1026.19(e)(1)(i), a creditor receives the six pieces of information identified under § 1026.2(a)(3)(ii) on Monday, June 1, but does not receive a credit report fee from the consumer until Tuesday, June 2, the creditor does not comply with § 1026.19(e)(1)(iii) if it provides the disclosures required under § 1026.19(e)(1)(i) after Thursday, June 4. The three-business-day period begins on Monday, June 1, the date the creditor received the six pieces of information. The waiting period does not begin on Tuesday, June 2, the date the creditor received the credit report fee.ﬁ * * * * * 2(a)(6) Business day. * * * * * 2. Rule for rescission, disclosures for certain mortgage transactions, and private education loans. A more precise rule for what is a business day (all calendar days except Sundays and the Federal legal holidays specified in 5 U.S.C. 6103(a)) applies when the right of rescission, the receipt of disclosures for certain dwelling-secured mortgage transactions under §§ 1026.19(a)(1)(ii), 1026.19(a)(2), ﬂ1026.19(e)(1)(iii), 1026.19(e)(1)(iv), 1026.19(e)(2)(i)(A), 1026.19(f)(1)(ii), 1026.19(f)(1)(iii),ﬁ 1026.31(c), or the receipt of disclosures for private education loans under § 1026.46(d)(4) is involved. Four Federal legal holidays are identified in 5 U.S.C. 6103(a) by a specific date: New Year’s Day, January 1; Independence Day, July 4; Veterans Day, November 11; and Christmas Day, December 25. When one of these holidays (July 4, for example) falls on a Saturday, Federal offices and other entities might observe the holiday on the preceding Friday (July 3). In cases where the more precise rule applies, the observed holiday (in the example, July 3) is a business day. * * * * * 2(a)(25) Security interest. * * * * * 2. Exclusions. The general definition of security interest excludes three groups of interests: Incidental interests, interests in after-acquired property, and interests that arise solely by operation of law. These interests may not be disclosed with the disclosures required under ﬂ§ ﬁ§ 1026.18, ﬂ1026.19(e) and (f), and 1026.38(l)(6)ﬁ, but the PO 00000 Frm 00294 Fmt 4701 Sfmt 4702 creditor is not precluded from preserving these rights elsewhere in the contract documents, or invoking and enforcing such rights, if it is otherwise lawful to do so. If the creditor is unsure whether a particular interest is one of the excluded interests, the creditor may, at its option, consider such interests as security interests for Truth in Lending purposes. * * * * * Section 1026.3—Exempt Transactions * * * * * 3(a) Business, commercial, agricultural, or organizational credit. * * * * * 9. Organizational credit. The exemption for transactions in which the borrower is not a natural person applies, for example, to loans to corporations, partnerships, associations, churches, unions, and fraternal organizations. The exemption applies regardless of the purpose of the credit extension and regardless of the fact that a natural person may guarantee or provide security for the credit. ﬂBut see comment 3(a)–10 concerning credit extended to trusts.ﬁ 10. ﬂTrusts. Credit extended for consumer purposes to certain trusts is considered to be credit extended to a natural person rather than credit extended to an organization. Specifically: i. Trusts for tax or estate planning purposes. In some instances, a creditor may extend credit for consumer purposes to a trust that a consumer has created for tax or estate planning purposes (or both). Consumers sometimes place their assets in trust with themselves as trustee(s), and with themselves or themselves and their families or other prospective heirs as beneficiaries, to obtain certain tax benefits and to facilitate the future administration of their estates. During their lifetimes, however, such consumers continue to use the assets of such trusts as their property. A creditor extending credit to finance the acquisition of, for example, a consumer’s dwelling that is held in such a trust, or to refinance existing debt secured by such a dwelling, may prepare the note, security instrument, and similar loan documents for execution by the consumer either in both the consumer’s individual capacity and as trustee or in only one capacity or the other. Regardless of the capacity or capacities in which the consumer executes the loan documents, assuming the transaction is for personal, family, or household purposes, the transaction is subject to the regulation because in E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules substance (if not form) consumer credit is being extended. ii. ﬁLand trusts. øCredit extended for consumer purposes to a land trust is considered to be credit extended to a natural person rather than credit extended to an organization.¿ In some jurisdictions, a financial institution financing a residential real estate transaction for an individual uses a land trust mechanism. Title to the property is conveyed to the land trust for which the financial institution itself is trustee. The underlying installment note is executed by the financial institution in its capacity as trustee and payment is secured by a trust deed, reflecting title in the financial institution as trustee. In some instances, the consumer executes a personal guaranty of the indebtedness. The note provides that it is payable only out of the property specifically described in the trust deed and that the trustee has no personal liability on the note. Assuming the transactions are for personal, family, or household purposes, these transactions are subject to the regulation because in substance (if not form) consumer credit is being extended. * * * * * ﬂ3(h) Partial exemption for certain mortgage loans. 1. Partial exemption. Section 1026.3(h) exempts certain transactions from only the disclosures required by § 1026.19(e), (f), and (g), and not from any of the other applicable requirements of this part. As provided by § 1026.3(h)(6), creditors must comply with all other applicable requirements of this part. In addition, the creditor must provide the disclosures required by § 1026.18, even if the creditor would not otherwise be subject to the disclosure requirements of § 1026.18. The consumer also has the right to rescind the transaction under § 1026.23, to the extent that provision is applicable. 2. Requirements of exemption. The conditions that the transaction not require the payment of interest under § 1026.3(h)(3) and that repayment of the amount of credit extended be forgiven or deferred in accordance with § 1026.3(h)(4) is determined by the terms of the credit contract. The other requirements of § 1026.3(h) need not be reflected in the credit contract, but the creditor must retain evidence of compliance with those provisions, as required by § 1026.25(a). In particular, because the exemption from § 1026.19(e), (f), and (g) means the consumer will not receive the disclosures of closing costs under § 1026.37 or § 1026.38, the creditor must VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 have information reflecting that the total of closing costs imposed in connection with the transaction is less than one percent of the amount of credit extended and include no charges other than recordation, application, and housing counseling fees, in accordance with § 1026.3(h)(5). Unless an itemization of the amount financed sufficiently details this requirement, the creditor must establish compliance with § 1026.3(h)(5) by some other written document and retain it in accordance with § 1026.25(a).ﬁ Section 1026.4—Finance Charge 4(a) Definition. * * * * * ﬂ6. Transactions with no seller. In a transaction where there is no seller, such as a refinancing of an existing extension of credit described in § 1026.20(a), there is no comparable cash transaction. Thus, the exclusion from the finance charge for charges of a type payable in a comparable cash transaction does not apply to such transactions.ﬁ * * * * * 4(a)(2) Special rule; closing agent charges. * * * * * ﬂ3. Closed-end mortgage transactions. Comments 4(a)(2)–1 and 4(a)(2)–2 do not apply to closed-end transactions secured by real property or a dwelling, pursuant to § 1026.4(g).ﬁ * * * * * 4(b) Examples of finance charges. 1. Relationship to other provisions. Charges or fees shown as examples of finance charges in § 1026.4(b) may be excludable under § 1026.4(c), (d), or (e). For example ø: i. Premiums¿ﬂ, premiumsﬁ for credit life insurance, shown as an example of a finance charge under § 1026.4(b)(7), may be excluded if the requirements of § 1026.4(d)(1) are met. ﬂThey may not be excluded, however, in closed-end transactions secured by real property or a dwelling, pursuant to § 1026.4(g).ﬁ øii. Appraisal fees mentioned in § 1026.4(b)(4) are excluded for real property or residential mortgage transactions under § 1026.4(c)(7).¿ * * * * * 4(c) Charges excluded from the finance charge. Paragraph 4(c)(1). 1. Application fees. An application fee that is excluded from the finance charge is a charge to recover the costs associated with processing applications for credit. The fee may cover the costs of services such as credit reports, credit investigations, and appraisals. The PO 00000 Frm 00295 Fmt 4701 Sfmt 4702 51409 creditor is free to impose the fee in only certain of its loan programs, such as ﬂautomobileﬁ ømortgage¿ loans. However, if the fee is to be excluded from the finance charge under § 1026.4(c)(1), it must be charged to all applicants, not just to applicants who are approved or who actually receive credit. * * * * * 4(c)(7) Real-estate related fees. 1. Real estate or residential mortgage transaction charges. The list of charges in ø§ 1026.4(c)(7)¿ ﬂ§ 1026.4(c)(7)(i) through (iv)ﬁ applies ﬂonly to openend credit plans secured by real property and open-end residential mortgage transactions because § 1026.4(g) makes them inapplicable to closed-end transactions secured by real property or a dwelling. The exclusion of escrowed amounts under § 1026.4(c)(7)(v), on the other hand, applies to allﬁ øboth to¿ residential mortgage transactions (which may include, for example, the purchase of a mobile home) and to other transactions secured by real estate. The fees are excluded from the finance charge even if the services for which the fees are imposed are performed by the creditor’s employees rather than by a third party. In addition, the cost of verifying or confirming information connected to the item is also excluded. For example, credit-report fees cover not only the cost of the report but also the cost of verifying information in the report. In all cases, charges excluded under § 1026.4(c)(7) must be bona fide and reasonable. * * * * * 3. Charges assessed during the loan term. ﬂChargesﬁ øReal estate or residential mortgage transaction charges¿ excluded under § 1026.4(c)(7) are those charges imposed solely in connection with the initial decision to grant credit. This would include, for example, a fee to search for tax liens on the property or to determine if flood insurance is required. The exclusion does not apply to fees for services to be performed periodically during the loan term, regardless of when the fee is collected. For example, a fee for one or more determinations during the loan term of the current tax-lien status or flood-insurance requirements is a finance charge, regardless of whether the fee is imposed at closing, or when the service is performed. If a creditor is uncertain about what portion of a fee to be paid at consummation or loan closing is related to the initial decision to grant credit, the entire fee may be treated as a finance charge. E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51410 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 4(d) Insurance and debt cancellation and debt suspension coverage. * * * * * 8. Property insurance. To exclude property insurance premiums or charges from the finance charge, the creditor must allow the consumer to choose the insurer and disclose that fact. This disclosure must be made whether or not the property insurance is available from or through the creditor. The requirement that an option be given does not require that the insurance be readily available from other sources. The premium or charge must be disclosed only if the consumer elects to purchase the insurance from ﬂor throughﬁ the creditor; in such a case, the creditor must also disclose the term of the property insurance coverage if it is less than the term of the obligation. ﬂInsurance is available ‘‘from or through a creditor’’ only if it is available from the creditor or the creditor’s affiliate, as defined under the Bank Holding Company Act, 12 U.S.C. 1841(k).ﬁ * * * * * 12. Initial term; alternative. i. General. A creditor has the option of providing cost disclosures on the basis of one year of insurance or debt cancellation or debt suspension coverage instead of a longer initial term (provided the premium or fee is clearly labeled as being for one year) if: A. The initial term is indefinite or not clear, or B. The consumer has agreed to pay a premium or fee that is assessed periodically but the consumer is under no obligation to continue the coverage, whether or not the consumer has made an initial payment. ii. Open-end plans. For open-end plans, a creditor also has the option of providing unit-cost disclosure on the basis of a period that is less than one year if the consumer has agreed to pay a premium or fee that is assessed periodically, for example monthly, but the consumer is under no obligation to continue the coverage. iii. Examples. To illustrate: A. A credit life insurance policy providing coverage for a ﬂfour-year automobileﬁ ø30-year mortgage¿ loan has an initial term of ﬂfourﬁ ø30¿ years, even though premiums are paid monthly and the consumer is not required to continue the coverage. Disclosures may be based on the initial term, but the creditor also has the option of making disclosures on the basis of coverage for an assumed initial term of one year. * * * * * 4(e) Certain security interest charges. VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 1. Examples. i. Excludable charges. Sums must be actually paid to public officials to be excluded from the finance charge under § 1026.4(e)(1) and (e)(3). Examples are charges or other fees required for filing or recording security agreements, mortgages ﬂ(for open-end credit; but see § 1026.4(g) regarding closed-end mortgage credit)ﬁ, continuation statements, termination statements, and similar documents, as well as intangible property or other taxes even when the charges or fees are imposed by the state solely on the creditor and charged to the consumer (if the tax must be paid to record a security agreement). See comment 4(a)–5 regarding the treatment of taxes, generally. * * * * * ﬂ4(g) Special rule for closed-end mortgage transactions. 1. Applicability of commentary to mortgages. The commentary to § 1026.4(a)(2) and (c) through (e), other than that under § 1026.4(c)(2), (c)(5), (c)(7) (to the extent it relates to escrowed items as described in paragraph (c)(7)(v) of that section), and (d) (to the extent it relates to property insurance premiums described in paragraph (d)(2) of that section), does not apply to closed-end transactions secured by real property or a dwelling. Commentary under § 1026.4(a) (other than paragraph (a)(2) of that section), (c)(2), (c)(5), (c)(7) (to the extent it relates to escrowed items as described in paragraph (c)(7)(v) of that section), and (d) (to the extent it relates to property insurance premiums described in paragraph (d)(2) of that section), however, does apply to such transactions. 2. Third-party charges. Charges imposed by third parties are included in the finance charge if they meet the general definition under § 1026.4(a). Thus, if a third-party charge is payable directly or indirectly by the consumer and imposed directly or indirectly by the creditor as an incident to the extension of credit, it is a finance charge unless it would be payable in a comparable cash transaction. For example, appraisal and credit report fees are included in the finance charge because they meet the definition in § 1026.4(a). This test generally does not depend on whether the creditor requires the service for which the charge is imposed. In addition, charges imposed by closing agents, if the creditor requires that a closing agent conduct the loan closing, generally are included in the finance charge unless otherwise excluded. Insurance premiums generally are included in the finance PO 00000 Frm 00296 Fmt 4701 Sfmt 4702 charge, whether imposed by a closing agent or another insurer, although premiums for property insurance are excluded if § 1026.4(d)(2) is satisfied. Premiums for credit insurance (or fees for debt cancellation or debt suspension agreements) and premiums for lender’s coverage under a title insurance policy are included in the finance charge because they are imposed as an incident to the extension of credit. In contrast, premiums for owner’s title insurance coverage are not included in the finance charge because they are not imposed as an incident to the extension of credit. 3. Charges in comparable cash transactions. While the exclusions in § 1026.4(c) through (e), other than § 1026.4(c)(2), (c)(5), (c)(7)(v), and (d)(2), are inapplicable to closed-end transactions secured by real property or a dwelling, charges in connection with such transactions that are payable in a comparable cash transaction are not included in the finance charge. See comment 4(a)–1. For example, property taxes imposed to record the deed evidencing transfer from the seller to the buyer of title to the property are not included in the finance charge because they would be paid even if no credit were extended to finance the purchase. In contrast, fees or taxes imposed to record the mortgage, deed of trust, or other security instrument evidencing the creditor’s security interest in the property securing transaction are included in the finance charge because they would not be incurred in a cash transaction.ﬁ * * * * * Subpart C—Closed-End Credit Section 1026.17—General Disclosure Requirementsﬂ 1. Rules for certain mortgage disclosures. Section 1026.17(a) and (b) does not apply to the disclosures required by § 1026.19(e), (f), and (g). For those disclosures, rules regarding the disclosures’ form are found in §§ 1026.19(g), 1026.37(o), and 1026.38(t) and rules regarding timing are found in § 1026.19(e), (f), and (g).ﬁ 17(a) Form of disclosures. Paragraph 17(a)(1). * * * * * 7. Balloon payment financing with leasing characteristics. In certain credit sale or loan transactions, a consumer may reduce the dollar amount of the payments to be made during the course of the transaction by agreeing to make, at the end of the loan term, a large final payment based on the expected residual value of the property. The consumer may have a number of options with respect to the final payment, including, E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules among other things, retaining the property and making the final payment, refinancing the final payment, or transferring the property to the creditor in lieu of the final payment. Such transactions may have some of the characteristics of lease transactions subject to Regulation M (12 CFR Part 1013), but are considered credit transactions where the consumer assumes the indicia of ownership, including the risks, burdens and benefits of ownership upon consummation. These transactions are governed by the disclosure requirements of this part instead of Regulation M. Creditors should not include in the segregated Truth in Lending disclosures additional information. Thus, disclosures should show the large final payment in the payment schedule ﬂor interest rate and payment summary table under § 1026.18(g) or (s), as applicable,ﬁ and should not, for example, reflect the other options available to the consumer at maturity. * * * * * 17(c) Basis of disclosures and use of estimates. Paragraph 17(c)(1). 1. Legal obligation. The disclosures shall reflect the øcredit¿ terms to which the øparties¿ ﬂconsumer and creditorﬁ are legally bound as of the outset of the transaction. In the case of disclosures required under § 1026.20(c), the disclosures shall reflect the credit terms to which the øparties¿ ﬂconsumer and creditorﬁ are legally bound when the disclosures are provided. The legal obligation is determined by applicable State law or other law. ﬂDisclosures based on the assumption that the consumer will abide by the terms of the legal obligation throughout the term of the transaction comply with § 1026.17(c)(1).ﬁ (Certain transactions are specifically addressed in this commentary. See, for example, the discussion of buydown transactions elsewhere in the commentary to § 1026.17(c).) The fact that a term or contract may later be deemed unenforceable by a court on the basis of equity or other grounds does not, by itself, mean that disclosures based on that term or contract did not reflect the legal obligation. 2. Modification of obligation. The legal obligation normally is presumed to be contained in the note or contract that evidences the agreement ﬂbetween the consumer and the creditorﬁ. But this presumption is rebutted if another agreement between the øparties¿ ﬂconsumer and creditorﬁ legally modifies that note or contract. If the øparties¿ ﬂconsumer and creditorﬁ VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 informally agree to a modification of the legal obligation, the modification should not be reflected in the disclosures unless it rises to the level of a change in the terms of the legal obligation. For example: * * * * * 3. Third-party buydowns. In certain transactions, a seller or other third party may pay an amount, either to the creditor or to the consumer, in order to reduce the consumer’s payments øor buy down the interest rate¿ for all or a portion of the credit term. For example, a consumer and a bank agree to a mortgage with an interest rate of 15% and level payments over 25 years. By a separate agreement, the seller of the property agrees to subsidize the consumer’s payments for the first two years of the mortgage, giving the consumer an effective rate of 12% for that period. i. If the ølower rate¿ ﬂthird-party buydownﬁ is reflected in the credit contract between the consumer and the bank, the ﬂfinance charge and all other disclosures affected by itﬁ ødisclosures¿ must take the buydown into account ﬂas an amendment to the contract’s interest rate provisionﬁ. For example, the annual percentage rate must be a composite rate that takes account of both the lower initial rate and the higher subsequent rate, and the øpayment schedule disclosures¿ ﬂdisclosures required under §§ 1026.18(g), 1026.18(s), 1026.37(c), and 1026.38(c), as applicable,ﬁ must reflect the two payment levelsﬂ, except as otherwise provided in those paragraphsﬁ. However, the amount paid by the seller would not be specifically reflected in the ﬂdisclosure of the finance charge and other disclosures affected by itﬁ ødisclosures¿ given by the bank, since that amount constitutes seller’s points and thus is not part of the finance charge. ﬂThe seller-paid amount is disclosed, however, as a credit from the seller in the summaries of transactions disclosed pursuant to § 1026.38(j) and (k).ﬁ ii. If the ølower rate¿ ﬂthird-party buydownﬁ is not reflected in the credit contract between the consumer and the bank and the consumer is legally bound to the 15% rate from the outset, the ﬂdisclosure of the finance charge and other disclosures affected by itﬁ ødisclosures¿ given by the bank must not reflect the seller buydown in any way. For example, the annual percentage rate and øpayment schedule¿ ﬂdisclosures required under §§ 1026.18(g), 1026.18(s), 1026.37(c), and 1026.38(c), as applicable,ﬁ would PO 00000 Frm 00297 Fmt 4701 Sfmt 4702 51411 not take into account the reduction in the interest rate and payment level for the first two years resulting from the buydown. ﬂThe seller-paid amount is, however, disclosed as a credit from the seller in the summaries of transactions disclosed pursuant to § 1026.38(j) and (k).ﬁ 4. Consumer buydowns. In certain transactions, the consumer may pay an amount to the creditor to reduce the payments øor obtain a lower interest rate¿ on the transaction. Consumer buydowns must be reflected ﬂas an amendment to the contract’s interest rate provisionﬁ in the ﬂ disclosure of the finance charge and other disclosures affected by it ﬁ ødisclosures¿ given for that transaction. To illustrate, in a mortgage transaction, the creditor and consumer agree to a note specifying a 14 percent interest rate. However, in a separate document, the consumer agrees to pay an amount to the creditor at consummation in return for øa reduction in the interest rate to 12 percent¿ ﬂlower paymentsﬁ for a portion of the mortgage term. The amount paid by the consumer may be deposited in an escrow account or may be retained by the creditor. Depending upon the buydown plan, the consumer’s prepayment of the obligation may or may not result in a portion of the amount being credited or refunded to the consumer. In the ﬂ disclosure of the finance charge and other disclosures affected by it ﬁ ødisclosures¿ given for the mortgage, the creditor must reflect the terms of the buydown agreement. i. For example: * * * * * C. The øpayment schedule¿ ﬂdisclosures under §§ 1026.18(g) and (s), 1026.37(c), and 1026.38(c), as applicable,ﬁ must reflect the multiple ﬂrate andﬁ payment levels resulting from the buydown, ﬂexcept as otherwise provided in those sections. Further, for example, the transaction is disclosed as a step rate product under §§ 1026.37(a)(10) and 1026.38(a)(5)(iii).ﬁ ii. The rules regarding consumer buydowns do not apply to transactions known as ‘‘lender buydowns.’’ In lender buydowns, a creditor pays an amount (either into an account or to the party to whom the obligation is sold) to reduce the consumer’s payments or interest rate for all or a portion of the credit term. Typically, these transactions are structured as a buydown of the interest rate during an initial period of the transaction with a higher than usual rate for the remainder of the term. The ﬂdisclosure of the finance charge and other disclosures affected by itﬁ E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51412 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules ødisclosures¿ for lender buydowns should be based on the terms of the legal obligation between the consumer and the creditor. See comment 17(c)(1)– 3 for the analogous rules concerning third-party buydowns. 5. Split buydowns. In certain transactions, a third party (such as a seller) and a consumer both pay an amount to the creditor to reduce the interest rate. The creditor must include the portion paid by the consumer in the finance charge and disclose the corresponding multiple payment levelsﬂ, except as otherwise provided in §§ 1026.18(s), 1026.37(c), and 1026.38(c),ﬁ and composite annual percentage rate. The portion paid by the third party and the corresponding reduction in interest rate, however, should not be reflected in the ﬂdisclosure of the finance charge and other disclosures affected by it ﬁ ødisclosures¿ unless the lower rate is reflected in the credit contract. See the discussion on third-party and consumer buydown transactions elsewhere in the commentary to § 1026.17(c). * * * * * 8. Basis of disclosures in variable-rate transactions. ﬂExcept as otherwise provided in §§ 1026.18(s), 1026.37 and 1026.38, as applicable, theﬁ øThe¿ disclosures for a variable-rate transaction must be given for the full term of the transaction and must be based on the terms in effect at the time of consummation. Creditors should base the disclosures only on the initial rate and should not assume that this rate will increaseﬂ, except as otherwise provided in §§ 1026.18(s), 1026.37 and 1026.38ﬁ. For example, in a loan with an initial rate of 10 percent and a 5 percentage points rate cap, creditors should base the disclosures on the initial rate and should not assume that this rate will increase 5 percentage points. However, in a variable-rate transaction with a seller buydown that is reflected in the credit contract, a consumer buydown, or a discounted or premium rate, disclosures should not be based solely on the initial terms. In those transactions, the disclosed annual percentage rate should be a composite rate based on the rate in effect during the initial period and the rate that is the basis of the variable-rate feature for the remainder of the term. See the commentary to § 1026.17(c) for a discussion of buydown, discounted, and premium transactions and the commentary to § 1026.19(a)(2) ﬂ, (e), and (f)ﬁ for a discussion of the redisclosure in certain mortgage transactions with a variable-rate feature. ﬂSee §§ 1026.37(c) and 1026.38(c) for VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 rules regarding disclosure of variablerate transactions in the projected payments table for transactions subject to § 1026.19(e) and (f).ﬁ * * * * * 10. Discounted and premium variable-rate transactions. * * * i. When creditors use an initial interest rate that is not calculated using the index or formula for later rate adjustments, the disclosures should reflect a composite annual percentage rate based on the initial rate for as long as it is charged and, for the remainder of the term, the rate that would have been applied using the index or formula at the time of consummation. The rate at consummation need not be used if a contract provides for a delay in the implementation of changes in an index value. For example, if the contract specifies that rate changes are based on the index value in effect 45 days before the change date, creditors may use any index value in effect during the 45 day period before consummation in calculating a composite annual percentage rate. ii. The effect of the multiple rates must also be reflected in the calculation and disclosure of the finance charge, total of payments, and øpayment schedule¿ ﬂthe disclosures required under §§ 1026.18(g) and (s), 1026.37(c), and 1026.38(c), as applicableﬁ. * * * * * v. Examples of discounted variablerate transactions include: A. A 30-year loan for $100,000 with no prepaid finance charges and rates determined by the Treasury bill rate plus two percent. Rate and payment adjustments are made annually. Although the Treasury bill rate at the time of consummation is 10 percent, the creditor sets the interest rate for one year at 9 percent, instead of 12 percent according to the formula. The disclosures should reflect a composite annual percentage rate of 11.63 percent based on 9 percent for one year and 12 percent for 29 years. Reflecting those two rate levels, the payment schedule ﬂdisclosed pursuant to § 1026.18(g)ﬁ should show 12 payments of $804.62 and 348 payments of $1,025.31. ﬂSimilarly, the disclosures required by §§ 1026.18(s), 1026.37(c), and 1026.38(c) should reflect the effect of this calculation.ﬁ The finance charge should be $266,463.32 andﬂ, for transactions subject to § 1026.18,ﬁ the total of payments $366,463.32. B. Same loan as above, except with a two-percent rate cap on periodic adjustments. The disclosures should reflect a composite annual percentage rate of 11.53 percent based on 9 percent PO 00000 Frm 00298 Fmt 4701 Sfmt 4702 for the first year, 11 percent for the second year, and 12 percent for the remaining 28 years. Reflecting those three rate levels, the payment schedule ﬂdisclosed pursuant to § 1026.18(g)ﬁ should show 12 payments of $804.62, 12 payments of $950.09, and 336 payments of $1,024.34. ﬂSimilarly, the disclosures required by §§ 1026.18(s), 1026.37(c), and 1026.38(c) should reflect the effect of this calculation.ﬁ The finance charge should be $265,234.76 andﬂ, for transactions subject to § 1026.18,ﬁ the total of payments $365,234.76. C. Same loan as above, except with a 71⁄2 percent cap on payment adjustments. The disclosures should reflect a composite annual percentage rate of 11.64 percent, based on 9 percent for one year and 12 percent for 29 years. Because of the payment cap, five levels of payments should be reflected. The payment schedule ﬂdisclosed pursuant to § 1026.18(g)ﬁ should show 12 payments of $804.62, 12 payments of $864.97, 12 payments of $929.84, 12 payments of $999.58, and 312 payments of $1,070.04. ﬂSimilarly, the disclosures required by §§ 1026.18(s), 1026.37(c), and 1026.38(c) should reflect the effect of this calculation.ﬁ The finance charge should be $277,040.60, andﬂ, for transactions subject to § 1026.18,ﬁ the total of payments $377,040.60. * * * * * 11. Examples of variable-rate transactions. Variable-rate transactions include: * * * * * v. ‘‘Price level adjusted mortgages’’ or other indexed mortgages that have a fixed rate of interest but provide for periodic adjustments to payments and the loan balance to reflect changes in an index measuring prices or inflation. Disclosures are to be based on the fixed interest rateﬂ, except as otherwise provided in §§ 1026.18(s), 1026.37, and 1026.38, as applicableﬁ. 12. Graduated payment adjustable rate mortgages. These mortgages involve both a variable interest rate and scheduled variations in payment amounts during the loan term. For example, under these plans, a series of graduated payments may be scheduled before rate adjustments affect payment amounts, or the initial scheduled payment may remain constant for a set period before rate adjustments affect the payment amount. In any case, the initial payment amount may be insufficient to cover the scheduled interest, causing negative amortization from the outset of the transaction. In these transactions, ﬂexcept as otherwise provided in E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules §§ 1026.18(s), 1026.37(c), and 1026.38(c)ﬁ, the disclosures should treat these features as follows: * * * * * iv. The øschedule of payments discloses¿ ﬂdisclosures required by § 1026.18(g) and (s) reflectﬁ the amount of any scheduled initial payments followed by an adjusted level of payments based on the initial interest rate. Since some mortgage plans contain limits on the amount of the payment adjustment, the øpayment schedule¿ ﬂdisclosures required by § 1026.18(g) and (s)ﬁ may require several different levels of payments, even with the assumption that the original interest rate does not increase. ﬂFor transactions subject to § 1026.19(e) and (f), see § 1026.37(c) and its commentary for a discussion of different rules for graduated payment adjustable rate mortgages.ﬁ * * * * * ﬂ19. Rebates and loan premiums. In a loan transaction, the creditor may offer a premium in the form of cash or merchandise to prospective borrowers. Similarly, in a credit sale transaction, a seller’s or manufacturer’s rebate may be offered to prospective purchasers of the creditor’s goods or services. Such premiums and rebates must be reflected in accordance with the terms of the legal obligation between the consumer and the creditor. Thus, if the creditor is legally obligated to provide the premium or rebate to the consumer as part of the credit transaction, the disclosures should reflect its value in the manner and at the time the creditor is obligated to provide it.ﬁ Paragraph 17(c)(2)(i). 1. Basis for estimates. ﬂExcept as otherwise provided in §§ 1026.19, 1026.37, and 1026.38, disclosuresﬁ øDisclosures¿ may be estimated when the exact information is unknown at the time disclosures are made. Information is unknown if it is not reasonably available to the creditor at the time the disclosures are made. The ‘‘reasonably available’’ standard requires that the creditor, acting in good faith, exercise due diligence in obtaining information. For example, the creditor must at a minimum utilize generally accepted calculation tools, but need not invest in the most sophisticated computer program to make a particular type of calculation. The creditor normally may rely on the representations of other parties in obtaining information. For example, the creditor might look to the consumer for the time of consummation, to insurance companies for the cost of insurance, or to realtors for taxes and escrow fees. The creditor may utilize VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 estimates in making disclosures even though the creditor knows that more precise information will be available by the point of consummation. However, new disclosures may be required under § 1026.17(f) or § 1026.19. ﬂFor purposes of § 1026.17(c)(2)(i), creditors must provide the actual amounts of the information required to be disclosed pursuant to § 1026.19(e) and (f), subject to the estimation and redisclosure rules in those provisions.ﬁ 2. Labeling estimates. Estimates must be designated as such in the segregated disclosures. ﬂFor the disclosures required by § 1026.19(e), use of the Loan Estimate form H–24 in appendix H to this part, pursuant to § 1026.37(o), satisfies the requirement that the disclosure state clearly that the disclosure is an estimate. For all other disclosures, even though theyﬁ øEven though other disclosures¿ are based on the same assumption on which a specific estimated disclosure was based, the creditor has øsome¿ flexibility in labeling the estimates. Generally, only the particular disclosure for which the exact information is unknown is labeled as an estimate. However, when several disclosures are affected because of the unknown information, the creditor has the option of labeling either every affected disclosure or only the disclosure primarily affected. For example, when the finance charge is unknown because the date of consummation is unknown, the creditor must label the finance charge as an estimate and may also label as estimates the total of payments and the payment schedule. When many disclosures are estimates, the creditor may use a general statement, such as ‘‘all numerical disclosures except the late payment disclosure are estimates,’’ as a method to label those disclosures as estimates. 3. Simple-interest transactions. If consumers do not make timely payments in a simple-interest transaction, some of the amounts calculated for Truth in Lending disclosures will differ from amounts that consumers will actually pay over the term of the transaction. Creditors may label disclosures as estimates in these transactionsﬂ, except as otherwise provided by § 1026.19ﬁ. For example, because the finance charge and total of payments may be larger than disclosed if consumers make late payments, creditors may label the finance charge and total of payments as estimates. On the other hand, creditors may choose not to label disclosures as estimatesﬂ. In all cases, creditorsﬁ øand may¿ ﬂcomply with § 1026.17(c)(2)(i) by basingﬁ øbase all¿ disclosures on the assumption that PO 00000 Frm 00299 Fmt 4701 Sfmt 4702 51413 payments will be made on time ﬂand in the amounts required by the terms of the legal obligationﬁ, disregarding any possible øinaccuracies¿ ﬂdifferencesﬁ resulting from consumers’ payment patterns. Paragraph 17(c)(2)(ii). 1. Per-diem interest. Section 1026.17(c)(2)(ii) applies to any numerical amount (such as the finance charge, annual percentage rate, or payment amount) that is affected by the amount of the per-diem interest charge that will be collected at consummation. If the amount of per-diem interest used in preparing the disclosures for consummation is based on the information known to the creditor at the time the disclosure document is prepared, the disclosures are considered accurate under this rule, and affected disclosures are also considered accurate, even if the disclosures are not labeled as estimates. For example, if the amount of per-diem interest used to prepare disclosures is less than the amount of per-diem interest charged at consummation, and as a result the finance charge is understated by $200, the disclosed finance charge is considered accurate even though the understatement is not within the $100 tolerance of § 1026.18(d)(1), and the finance charge was not labeled as an estimate. In this example, if in addition to the understatement related to the perdiem interest, a $90 fee is incorrectly omitted from the finance charge, causing it to be understated by a total of $290, the finance charge is considered accurate because the $90 fee is within the tolerance in § 1026.18(d)(1). ﬂFor purposes of transactions subject to § 1026.19(e) and (f), the creditor shall disclosure the actual amount of per diem interest that will be collected at consummation, subject only to the disclosure rules in those sections.ﬁ * * * * * Paragraph 17(c)(4). 1. Payment schedule irregularities. When one or more payments in a transaction differ from the others because of a long or short first period, the variations may be ignored in disclosing the payment schedule ﬂ pursuant to § 1026.18(g) or the disclosures required pursuant to §§ 1026.18(s), 1026.37(c), or 1026.38(c)ﬁ, finance charge, annual percentage rate, and other terms. For example: * * * * * Paragraph 17(c)(5). * * * * * 2. Future event as maturity date. An obligation whose maturity date is E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51414 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules determined solely by a future event, as for example, a loan payable only on the sale of property, is not a demand obligation. Because no demand feature is contained in the obligation, demand disclosures under § 1026.18(i) are inapplicable ﬂand demand disclosures under § 1026.38(l)(2) are answered in the negativeﬁ. The disclosures should be based on the creditor’s estimate of the time at which the specified event will occur and ﬂ, except as otherwise provided in § 1026.19(e) and (f),ﬁ may indicate the basis for the creditor’s estimate, as noted in the commentary to § 1026.17(a). 3. Demand after stated period. Most demand transactions contain a demand feature that may be exercised at any point during the term, but certain transactions convert to demand status only after a fixed period. øFor example, in States prohibiting due-on-sale clauses, the Federal National Mortgage Association (FNMA) requires mortgages that it purchases to include a call option rider that may be exercised after 7 years. These mortgages are generally written as long-term obligations, but contain a demand feature that may be exercised only within a 30-day period at 7 years.¿ The disclosures for øthese transactions¿ ﬂa transaction that converts to demand status after a fixed periodﬁ should be based upon the legally agreed-upon maturity date. Thus, ﬂfor example,ﬁ if a mortgage containing øthe 7-year FNMA call option¿ ﬂa call option that the creditor may exercise during the first 30 days of the eighth year after loan originationﬁ is written as a 20-year obligation, the disclosures should be based on the 20-year term, with the demand feature disclosed under § 1026.18(i)ﬂor § 1026.38(l)(2), as applicableﬁ. 4. Balloon mortgages. Balloon payment mortgages, with payments based on a long-term amortization schedule and a large final payment due after a shorter term, are not demand obligations unless a demand feature is specifically contained in the contract. For example, a mortgage with a term of five years and a payment schedule based on 20 years would not be treated as a mortgage with a demand feature, in the absence of any contractual demand provisions. In this type of mortgage, disclosures should be based on the fiveyear term. ﬂSee §§ 1026.37(c) and 1026.38(c) and their commentary for projected payment disclosures for balloon payment mortgages.ﬁ * * * * * 17(d) Multiple creditors; multiple consumers. * * * * * VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 2. Multiple consumers. When two consumers are joint obligors with primary liability on an obligation, the disclosures may be given to either one of them. If one consumer is merely a surety or guarantor, the disclosures must be given to the principal debtor. In rescindable transactions, however, separate disclosures must be given to each consumer who has the right to rescind under § 1026.23, although the disclosures required under § 1026.19(b) need only be provided to the consumer who expresses an interest in a variablerate loan program. ﬂIn addition, the early disclosures required by § 1026.19(a), (e), or (g), as applicable, may be provided to any consumer with primary liability on the obligation. Material disclosures, as defined in § 1026.23(a)(3)(ii), under § 1026.23(a) and the notice of the right to rescind required by § 1026.23(b), however, must be given before consummation to each consumer who has the right to rescind, even if such consumer is not an obligor. See §§ 1026.2(a)(11), 1026.17(b), 1026.19(a), 1026.19(f), and 1026.23(b).ﬁ 17(e) Effect of subsequent events. 1. Events causing inaccuracies. ﬂSubject to § 1026.19(e) and (f), inaccuraciesﬁ øInaccuracies¿ in disclosures are not violations if attributable to events occurring after the disclosures are made. For example, when the consumer fails to fulfill a prior commitment to keep the collateral insured and the creditor then provides the coverage and charges the consumer for it, such a change does not make the original disclosures inaccurate. The creditor may, however, be required to make new disclosures under § 1026.17(f) or § 1026.19 if the events occurred between disclosure and consummation or under § 1026.20 if the events occurred after consummation. ﬂFor rules regarding permissible changes to the information required to be disclosed by § 1026.19(e) and (f), see § 1026.19(e)(3) and (f)(4) and their commentary.ﬁ 17(f) Early disclosures. 1. Change in rate or other terms. Redisclosure is required for changes that occur between the time disclosures are made and consummation if the annual percentage rate in the consummated transaction exceeds the limits prescribed in øthis section,¿ ﬂ§ 1026.17(f)ﬁ even if the øinitial¿ ﬂpriorﬁ disclosures would be considered accurate under the tolerances in § 1026.18(d) or 1026.22(a). To illustrate: i. øGeneral.¿ ﬂTransactions not secured by real property.ﬁ A. ﬂFor transactions not secured by real PO 00000 Frm 00300 Fmt 4701 Sfmt 4702 property, ifﬁ øIf¿ disclosures are made in a regular transaction on July 1, the transaction is consummated on July 15, and the actual annual percentage rate varies by more than 1⁄8 of 1 percentage point from the disclosed annual percentage rate, the creditor must either redisclose the changed terms or furnish a complete set of new disclosures before consummation. Redisclosure is required even if the disclosures made on July 1 are based on estimates and marked as such. B. In a regular transaction ﬂnot secured by real property ﬁ, if early disclosures are marked as estimates and the disclosed annual percentage rate is within 1⁄8 of 1 percentage point of the rate at consummation, the creditor need not redisclose the changed terms (including the annual percentage rate). øii. Nonmortgage loan.¿ ﬂC.ﬁ If disclosures ﬂfor transactions not secured by real propertyﬁ are made on July 1, the transaction is consummated on July 15, and the finance charge increased by $35 but the disclosed annual percentage rate is within the permitted tolerance, the creditor must at least redisclose the changed terms that were not marked as estimates. See § 1026.18(d)(2) of this part. øiii.¿ ﬂii. Reverse mortgages.ﬁøMortgage loan¿. øAt¿ ﬂIn a transaction subject to § 1026.19(a) and not § 1026.19(e) and (f), atﬁ the time øTILA disclosures¿ ﬂthe disclosures required by § 1026.19(a)ﬁ are prepared in July, the loan closing is scheduled for July 31 and the creditor does not plan to collect per-diem interest at consummation. Consummation actually occurs on August 5, and per-diem interest for the remainder of August is collected as a prepaid finance charge. øAssuming there were no other changes requiring redisclosure, the¿ ﬂTheﬁ creditor may rely on the disclosures prepared in July that were accurate when they were prepared. However, if the creditor prepares new disclosures in August that will be provided at consummation, the new disclosures must take into account the amount of the per-diem interest known to the creditor at that time. ﬂiii. Mortgages other than reverse mortgages and mortgage loans not secured by real property. For transactions secured by real property other than reverse mortgages, at the time the disclosures required by § 1026.19(e) are prepared in July, the loan closing is scheduled for July 31 and the creditor does not plan to collect per-diem interest at consummation. Consummation actually occurs on August 5, and per-diem interest for the remainder of August is collected as a E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules prepaid finance charge. The creditor must make the disclosures required by § 1026.19(f) three days before consummation, and the disclosures required by § 1026.19(f) must take into account the amount of per-diem interest that will be collected at consummation.ﬁ 2. Variable rate. The addition of a variable rate feature to the credit terms, after early disclosures are given, requires new disclosures. ﬂSee § 1026.19(e) and (f) to determine when new disclosures are required for transactions secured by real property.ﬁ 3. Content of new disclosures. ﬂExcept as provided by § 1026.19(e) and (f), ifﬁøIf¿ redisclosure is required, the creditor has the option of either providing a complete set of new disclosures, or providing disclosures of only the terms that vary from those originally disclosed. See the commentary to § 1026.19(a)(2). 4. Special rules. In mortgage transactions subject to § 1026.19 ﬂ(a)ﬁ, the creditor must redisclose if, between the delivery of the required early disclosures and consummation, the annual percentage rate changes by more than a stated tolerance. When subsequent events occur after consummation, new disclosures are required only if there is a refinancing or an assumption within the meaning of § 1026.20. * * * * * 17(g) Mail or telephone orders—delay in disclosures. 1. Conditions for use. ﬂExcept for extensions of credit subject to § 1026.19(a) or (e), (f), and (g), whenﬁ øWhen¿ the creditor receives a mail or telephone request for credit, the creditor may delay making the disclosures until the first payment is due if the following conditions are met: * * * * * 17(h) Series of sales—delay in disclosures. 1. Applicability. ﬂExcept for extensions of credit covered by § 1026.19(a) or (e), (f), and (g), the ﬁ [The] creditor may delay the disclosures for individual credit sales in a series of such sales until the first payment is due on the current sale, assuming the two conditions in this paragraph are met. If those conditions are not met, the general timing rules in § 1026.17(b) apply. * * * * * Section 1026.18—Content of Disclosures * * * * * ﬂ3. Scope of coverage. i. Section 1026.18 applies to closedend consumer credit transactions, other than transactions that are subject to VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 § 1026.19(e) and (f). Section 1026.19(e) and (f) applies to closed-end consumer credit transactions that are secured by real property, other than reverse mortgages subject to § 1026.33. Accordingly, the disclosures required by § 1026.18 apply only to closed-end consumer credit transactions that are: A. Unsecured; B. Secured by personal property that is not a dwelling; C. Secured by personal property that is a dwelling and is not also secured by real property; or D. Reverse mortgages subject to § 1026.33. ii. Of the foregoing transactions that are subject to § 1026.18, the creditor discloses a payment schedule pursuant to § 1026.18(g) for those described in paragraphs i.A and i.B of this comment. For transactions described in paragraphs i.C and i.D of this comment, the creditor discloses an interest rate and payment summary table pursuant to § 1026.18(s). See also comments 18(g)–6 and 18(s)–4 for additional guidance on the applicability to different transaction types of §§ 1026.18(g) or (s) and 1026.19(e) and (f). iii. Because § 1026.18 does not apply to transactions secured by real property, other than reverse mortgages, references in the section and its commentary to ‘‘mortgages’’ refer only to transactions described in paragraphs i.C and i.D of this comment, as applicable.ﬁ * * * * * 18(b) Amount financed. * * * * * ø2. Rebates and loan premiums. In a loan transaction, the creditor may offer a premium in the form of cash or merchandise to prospective borrowers. Similarly, in a credit sale transaction, a seller’s or manufacturer’s rebate may be offered to prospective purchasers of the creditor’s goods or services. At the creditor’s option, these amounts may be either reflected in the Truth in Lending disclosures or disregarded in the disclosures. If the creditor chooses to reflect them in the § 1026.18 disclosures, rather than disregard them, they may be taken into account in any manner as part of those disclosures.¿ * * * * * Paragraph 18(b)(2). 1. Adding other amounts. Fees or other charges that are not part of the finance charge and that are financed rather than paid separately at consummation of the transaction are included in the amount financed. Typical examples are øreal estate settlement charges and premiums for voluntary credit life and disability insurance¿ ﬂgovernment recording fees PO 00000 Frm 00301 Fmt 4701 Sfmt 4702 51415 for deeds and premiums for insurance against loss of or damage to propertyﬁ excluded from the finance charge under § 1026.4. This paragraph does not include any amounts already accounted for under § 1026.18(b)(1), such as taxes, tag and title fees, or the costs of accessories or service policies that the creditor includes in the cash price. * * * * * 18(c) Itemization of amount financed. * * * * * 4. RESPA transactions. The Real Estate Settlement Procedures Act (RESPA) requires creditors to provide a good faith estimate of closing costs and a settlement statement listing the amounts paid by the consumer. ﬂReverse mortgagesﬁ øTransactions¿ subject to RESPA ﬂand § 1026.18ﬁ are exempt from the requirements of § 1026.18(c) if the creditor complies with RESPA’s requirements for a good faith estimate and settlement statement. The itemization of the amount financed need not be given, even though the content and timing of the good faith estimate and settlement statement under RESPA differ from the requirements of §§ 1026.18(c) and 1026.19(a)(2). If a creditor chooses to substitute RESPA’s settlement statement for the itemization when redisclosure is required under § 1026.19(a)(2), the statement must be delivered to the consumer at or prior to consummation. The disclosures required by §§ 1026.18(c) and 1026.19(a)(2) may appear on the same page or on the same document as the good faith estimate or the settlement statement, so long as the requirements of § 1026.17(a) are met. * * * * * Paragraph 18(c)(1)(iv). * * * * * 2. Prepaid mortgage insurance premiums. ﬂRegulation X underﬁ RESPAﬂ, 12 CFR 1024.8,ﬁ requires creditors to give consumers a settlement statement disclosing the costs associated with ﬂreverseﬁ mortgage loan transactions. Included on the settlement statement are mortgage insurance premiums collected at settlement, which are prepaid finance charges. In calculating the total amount of prepaid finance charges, creditors should use the amount for mortgage insurance listed on the line for mortgage insurance on the settlement statement (line 1003 on HUD–1 or HUD 1–A), without adjustment, even if the actual amount collected at settlement may vary because of RESPA’s escrow accounting rules. Figures for mortgage insurance disclosed in conformance with RESPA E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51416 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules shall be deemed to be accurate for purposes of Regulation Z. * * * * * 18(f) Variable rate. * * * * * Paragraph 18(f)(1)(iv). * * * * * 2. Hypothetical example not required. The creditor need not provide a hypothetical example in the following transactions with a variable-rate feature: i. Demand obligations with no alternate maturity date. ii. Private education loans as defined in § 1026.46(b)(5). øiii. Multiple-advance construction loans disclosed pursuant to Appendix D, Part I.¿ * * * * * 18(g) Payment schedule. * * * * * 4. Timing of payments. i. General rule. * * * ii. Exception. In a limited number of circumstances, the beginning-payment date is unknown and difficult to determine at the time disclosures are made. For example, a consumer may become obligated on a credit contract that contemplates the delayed disbursement of funds based on a contingent event, such as the completion of [home] repairs. Disclosures may also accompany loan checks that are sent by mail, in which case the initial disbursement and repayment dates are solely within the consumer’s control. In such cases, if the beginning-payment date is unknown the creditor may use an estimated date and label the disclosure as an estimate pursuant to § 1026.17(c). Alternatively, the disclosure may refer to the occurrence of a particular event, for example, by disclosing that the beginning payment is due ‘‘30 days after the first loan disbursement.’’ This information also may be included with an estimated date to explain the basis for the creditor’s estimate. See comment 17(a)(1)–5.iii. 5. ﬂøReserved¿ﬁøMortgage insurance. The payment schedule should reflect the consumer’s mortgage insurance payments until the date on which the creditor must automatically terminate coverage under applicable law, even though the consumer may have a right to request that the insurance be cancelled earlier. The payment schedule must reflect the legal obligation, as determined by applicable State or other law. For example, assume that under applicable law, mortgage insurance must terminate after the 130th scheduled monthly payment, and the creditor collects at closing and places in escrow two months of premiums. If, VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 under the legal obligation, the creditor will include mortgage insurance premiums in 130 payments and refund the escrowed payments when the insurance is terminated, the payment schedule should reflect 130 premium payments. If, under the legal obligation, the creditor will apply the amount escrowed to the two final insurance payments, the payment schedule should reflect 128 monthly premium payments. (For assumptions in calculating a payment schedule that includes mortgage insurance that must be automatically terminated, see comments 17(c)(1)–8 and 17(c)(1)–10.)¿ 6. Mortgage transactions. Section 1026.18(g) applies øonly¿ to closed-end transactions, other than transactions that are subject to § 1026.18(s)ﬂor § 1026.19(e) and (f)ﬁ. Section 1026.18(s) applies to closed-end transactions secured by real property or a dwellingﬂ, unless they are subject to § 1026.19(e) and (f). Section 1026.19(e) and (f) applies to closed-end transactions secured by real property, other than reverse mortgagesﬁ. Thus, if a closed-end consumer credit transaction is secured by real property or a dwelling ﬂand the transaction is a reverse mortgage or the dwelling is personal propertyﬁ, the creditor discloses an interest rate and payment summary table in accordance with § 1026.18(s) øand does not observe¿. ﬂSee comment 18(s)–4. If a closed-end consumer credit transaction is secured by real property and is not a reverse mortgage, the creditor discloses a projected payments table in accordance with §§ 1026.37(c) and 1026.38(c), as required by § 1026.19(e) and (f). In all such cases, the creditor is not subject toﬁ the requirements of § 1026.18(g). On the other hand, if a closed-end consumer credit transaction is not secured by real property or a dwelling ﬂ(for example, if it is unsecured or secured by an automobile)ﬁ, the creditor discloses a payment schedule in accordance with § 1026.18(g) and ødoes not observe¿ ﬂis not subject toﬁ the requirements of § 1026.18(s) ﬂor §§ 1026.37(c) and 1026.38(c)ﬁ. * * * * * Paragraph 18(g)(2). 1. Abbreviated disclosure. The creditor may disclose an abbreviated payment schedule when the amount of each regularly scheduled payment (other than the first or last payment) includes an equal amount to be applied on principal and a finance charge computed by application of a rate to the decreasing unpaid balance. øThis option is also available when mortgageguarantee insurance premiums, paid PO 00000 Frm 00302 Fmt 4701 Sfmt 4702 either monthly or annually, cause variations in the amount of the scheduled payments, reflecting the continual decrease or increase in the premium due.¿ In addition, in transactions where payments vary because interest and principal are paid at different intervals, the two series of payments may be disclosed separately and the abbreviated payment schedule may be used for the interest payments. For example, in transactions with fixed quarterly principal payments and monthly interest payments based on the outstanding principal balance, the amount of the interest payments will change quarterly as principal declines. In such cases the creditor may treat the interest and principal payments as two separate series of payments, separately disclosing the number, amount, and due dates of principal payments, and, using the abbreviated payment schedule, the number, amount, and due dates of interest payments. This option may be used when interest and principal are scheduled to be paid on the same date of the month as well as on different dates of the month. The creditor using this alternative must disclose the dollar amount of the highest and lowest payments and make reference to the variation in payments. 2. Combined payment schedule disclosures. Creditors may combine the option in this paragraph with the general payment schedule requirements in transactions where only a portion of the payment schedule meets the conditions of § 1026.18(g)(2). For example, in a ﬂtransactionﬁ øgraduated payment mortgage¿ where payments rise sharply for five years and then decline over the next 25 years øbecause of decreasing mortgage insurance premiums¿, the first five years would be disclosed under the general rule in § 1026.18(g) and the next 25 years according to the abbreviated schedule in § 1026.18(g)(2). * * * * * 18(k) Prepayment. 1. Disclosure required. The creditor must give a definitive statement of whether or not a ﬂprepaymentﬁ penalty will be imposed or a ﬂprepaymentﬁ rebate will be given. i. The fact that no ﬂprepaymentﬁ penalty will be imposed may not simply be inferred from the absence of a ﬂprepaymentﬁ penalty disclosure; the creditor must indicate that prepayment will not result in a ﬂprepaymentﬁ penalty. ii. If a ﬂprepaymentﬁ penalty or ﬂprepaymentﬁ refund is possible for one type of prepayment, even though not for all, a positive disclosure is E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules required. This applies to any type of prepayment, whether voluntary or involuntary as in the case of prepayments resulting from acceleration. iii. Any difference in ﬂprepaymentﬁ rebate or ﬂprepaymentﬁ penalty policy, depending on whether prepayment is voluntary or not, must not be disclosed with the segregated disclosures. 2. Rebate-penalty disclosure. A single transaction may involve both a precomputed finance charge and a finance charge computed by application of a rate to the unpaid balance (for example, mortgages with mortgageguarantee insurance). In these cases, disclosures about both prepayment rebates and ﬂprepaymentﬁ penalties are required. Sample form H–15 in appendix H to this part illustrates a mortgage transaction in which both rebate and penalty disclosures are necessary. 3. Prepaid finance charge. The existence of a prepaid finance charge in a transaction does not, by itself, require a disclosure under § 1026.18(k). A prepaid finance charge is not considered a ﬂprepaymentﬁ penalty under § 1026.18(k)(1), nor does it require a disclosure under § 1026.18(k)(2). At its option, however, a creditor may consider a prepaid finance charge to be under § 1026.18(k)(2). If a disclosure is made under § 1026.18(k)(2) with respect to a prepaid finance charge or other finance charge, the creditor may further identify that finance charge. For example, the disclosure may state that the borrower ‘‘will not be entitled to a refund of the prepaid finance charge’’ or some other term that describes the finance charge. Paragraph 18(k)(1).ﬂ 1. Examples of prepayment penalties. For purposes of § 1026.18(k)(1), the following are examples of prepayment penalties: i. A charge determined by treating the loan balance as outstanding for a period of time after prepayment in full and applying the interest rate to such ‘‘balance,’’ even if the charge results from interest accrual amortization used for other payments in the transaction under the terms of the loan contract. ‘‘Interest accrual amortization’’ refers to the method by which the amount of interest due for each period (e.g., month) in a transaction’s term is determined. For example, ‘‘monthly interest accrual amortization’’ treats each payment as made on the scheduled, monthly due date even if it is actually paid early or late (until the expiration of any grace period). Thus, under the terms of a loan contract VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 providing for monthly interest accrual amortization, if the amount of interest due on May 1 for the preceding month of April is $3,000, the loan contract will require payment of $3,000 in interest for the month of April whether the payment is made on April 20, on May 1, or on May 10. In this example, if the consumer prepays the loan in full on April 20 and if the accrued interest as of that date is $2,000, then assessment of a charge of $3,000 constitutes a prepayment penalty of $1,000 because the amount of interest actually earned through April 20 is only $2,000. ii. A fee, such as an origination or other loan closing cost, that is waived by the creditor on the condition that the consumer does not prepay the loan. iii. A minimum finance charge in a simple interest transaction. 2. Fees that are not prepayment penalties. For purposes of § 1026.18(k)(1), fees which are not prepayment penalties include, for example: i. Fees imposed for preparing and providing documents when a loan is paid in full, whether or not the loan is prepaid, such as a loan payoff statement, a reconveyance document, or another document releasing the creditor’s security interest in the dwelling that secures the loan. ii. Loan guarantee fees.ﬁ ø1. Penalty. This applies only to those transactions in which the interest calculation takes account of all scheduled reductions in principal, as well as transactions in which interest calculations are made daily. The term penalty as used here encompasses only those charges that are assessed strictly because of the prepayment in full of a simple-interest obligation, as an addition to all other amounts. Items which are penalties include, for example: i. Interest charges for any period after prepayment in full is made. (See the commentary to § 1026.17(a)(1) regarding disclosure of interest charges assessed for periods after prepayment in full as directly related information.) ii. A minimum finance charge in a simple-interest transaction. (See the commentary to § 1026.17(a)(1) regarding the disclosure of a minimum finance charge as directly related information.) Items which are not penalties include, for example, loan guarantee fees.¿ Paragraph 18(k)(2). 1. Rebate of finance charge. i. This applies to any finance charges that do not take account of each reduction in the principal balance of an obligation. This category includes, for example: A. Precomputed finance charges such as add-on charges. ﬂThis includes PO 00000 Frm 00303 Fmt 4701 Sfmt 4702 51417 computing a refund of unearned finance charge, such as precomputed interest, by a method that is less favorable to the consumer than the actuarial method, as defined by section 933(d) of the Housing and Community Development Act of 1992, 15 U.S.C. 1615(d). For purposes of computing a refund of unearned interest, if using the actuarial method defined by applicable State law results in a refund that is greater than the refund calculated by using the method described in section 933(d) of the Housing and Community Development Act of 1992, creditors should use the State law definition in determining if a refund is a prepayment penalty.ﬁ B. Charges that take account of some but not all reductions in principal, such as mortgage guarantee insurance assessed on the basis of an annual declining balance, when the principal is reduced on a monthly basis. ii. No description of the method of computing earned or unearned finance charges is required or permitted as part of the segregated disclosures under this section. * * * * * 18(r) Required deposit. * * * * * 6. Examples of amounts excluded. The following are among the types of deposits that need not be treated as required deposits: i. Requirement that a borrower be a customer or a member even if that involves a fee or a minimum balance. ii. Required property insurance escrow on a mobile home transaction. iii. Refund of interest when the obligation is paid in full. iv. Deposits that are immediately available to the consumer. v. Funds deposited with the creditor to be disbursed (for example, for construction) before the loan proceeds are advanced. vi. ﬂøReserved¿ﬁ øEscrow of condominium fees.¿ vii. Escrow of loan proceeds to be released when the repairs are completed. 18(s) Interest rate and payment summary for mortgage transactions. 1. In general. Section 1026.18(s) prescribes format and content for disclosure of interest rates and monthly (or other periodic) payments for ﬂreverse mortgages and certain transactions secured by dwellings that are personal propertyﬁ ømortgage loans¿. The information in § 1026.18(s)(2) through (4) is required to be in the form of a table, except as otherwise provided, with headings and format substantially similar to model clause H–4(E), H–4(F), H–4(G), or H– E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51418 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 4(H) in appendix H to this part. A disclosure that does not include the shading shown in a model clause but otherwise follows the model clause’s headings and format is substantially similar to that model clause. Where § 1026.18(s)(2) through (4) or the applicable model clause requires that a column or row of the table be labeled using the word ‘‘monthly’’ but the periodic payments are not due monthly, the creditor should use the appropriate term, such as ‘‘bi-weekly’’ or ‘‘quarterly.’’ In all cases, the table should have no more than five vertical columns corresponding to applicable interest rates at various times during the loan’s term; corresponding payments would be shown in horizontal rows. Certain loan types and terms are defined for purposes of § 1026.18(s) in § 1026.18(s)(7). * * * * * ﬂ4. Scope of coverage in relation to § 1026.19(e) and (f). Section 1026.18(s) applies to transactions secured by a real property or a dwelling, other than transactions that are subject to § 1026.19(e) and (f). Those provisions apply to closed-end transactions secured by real property, other than reverse mortgages. Accordingly, § 1026.18(s) governs only closed-end reverse mortgages and closed-end transactions secured by a dwelling that is personal property (such as a mobile home that is not deemed real property under State or other applicable law).ﬁ * * * * * 18(s)(3) Payments for amortizing loans. * * * * * Paragraph 18(s)(3)(i)(C). * * * * * 2. Mortgage insurance ﬂor any functional equivalentﬁ. ﬂFor purposes of § 1026.18(s), ‘‘mortgage insurance’’ means insurance against the nonpayment of, or default on, an individual mortgage. ‘‘Mortgage guarantees’’ (such as a United States Department of Veterans Affairs or United States Department of Agriculture guarantee) provide coverage similar to mortgage insurance, even if not technically considered insurance under State or other applicable law. For purposes of § 1026.18(s), ‘‘mortgage insurance or any functional equivalent’’ includes any mortgage guarantee.ﬁ Payment amounts under § 1026.18(s)(3)(i) should reflect the consumer’s mortgage insurance payments ﬂor any functionally equivalent feeﬁ until the date on which the creditor must automatically terminate coverage under applicable law, even though the consumer may VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 have a right to request that the insurance be cancelled earlier. The payment amount must reflect the terms of the legal obligation, as determined by applicable State or other law. For example, assume that under applicable law, mortgage insurance must terminate after the 130th scheduled monthly payment, and the creditor collects at closing and places in escrow two months of premiums. If, under the legal obligation, the creditor will include mortgage insurance premiums in 130 payments and refund the escrowed payments when the insurance is terminated, payment amounts disclosed through the 130th payment should reflect premium payments. If, under the legal obligation, the creditor will apply the amount escrowed to the two final insurance payments, payments disclosed through the 128th payment should reflect premium payments. The escrow amount reflected on the disclosure should include mortgage insurance premiums even if they are not escrowed and even if there is no escrow account established for the transaction. * * * * * Section 1026.19—Certain Mortgage and Variable-Rate Transactions 19(a)(1)(i) Time of disclosures. 1. Coverage. This section requires early disclosure of credit terms in ﬂreverseﬁ mortgage transactions ﬂsubject to § 1026.33ﬁ that are secured by a consumer’s dwelling ø(other than home equity lines of credit subject to § 1026.40 or mortgage transactions secured by an interest in a timeshare plan)¿ that are also subject to the Real Estate Settlement Procedures Act (RESPA) and its implementing Regulation X. To be covered by § 1026.19ﬂ(a)ﬁ, a transaction must be a Federally related mortgage loan under RESPA. ‘‘Federally related mortgage loan’’ is defined under RESPA (12 U.S.C. 2602) and Regulation X (12 CFR 1024.2), and is subject to any interpretations by the Bureau. * * * * * ø19(a)(5) Timeshare plans. Paragraph 19(a)(5)(ii). 1. Timing. A mortgage transaction secured by a consumer’s interest in a ‘‘timeshare plan,’’ as defined in 11 U.S.C. 101(53D), that is also a Federally related mortgage loan under RESPA is subject to the requirements of § 1026.19(a)(5) instead of the requirements of § 1026.19(a)(1) through § 1026.19(a)(4). See comment 19(a)(1)(i)–1. Early disclosures for transactions subject to § 1026.19(a)(5) must be given (a) before consummation or (b) within three business days after PO 00000 Frm 00304 Fmt 4701 Sfmt 4702 the creditor receives the consumer’s written application, whichever is earlier. The general definition of ‘‘business day’’ in § 1026.2(a)(6)—a day on which the creditor’s offices are open to the public for substantially all of its business functions—applies for purposes of § 1026.19(a)(5)(ii). See comment 2(a)(6)–1. These timing requirements are different from the timing requirements under § 1026.19(a)(1)(i). Timeshare transactions covered by § 1026.19(a)(5) may be consummated any time after the disclosures required by § 1026.19(a)(5)(ii) are provided. 2. Use of estimates. If the creditor does not know the precise credit terms, the creditor must base the disclosures on the best information reasonably available and indicate that the disclosures are estimates under § 1026.17(c)(2). If many of the disclosures are estimates, the creditor may include a statement to that effect (such as ‘‘all numerical disclosures except the late-payment disclosure are estimates’’) instead of separately labeling each estimate. In the alternative, the creditor may label as an estimate only the items primarily affected by unknown information. (See the commentary to § 1026.17(c)(2).) The creditor may provide explanatory material concerning the estimates and the contingencies that may affect the actual terms, in accordance with the commentary to § 1026.17(a)(1). 3. Written application. For timeshare transactions, creditors may rely on comment 19(a)(1)(i)–3 in determining whether a ‘‘written application’’ has been received. 4. Denied or withdrawn applications. For timeshare transactions, creditors may rely on comment 19(a)(1)(i)–4 in determining that disclosures are not required by § 1026.19(a)(5)(ii) because the consumer’s application will not or cannot be approved on the terms requested or the consumer has withdrawn the application. 5. Itemization of amount financed. For timeshare transactions, creditors may rely on comment 19(a)(1)(i)–5 in determining whether providing the good faith estimates of settlement costs required by RESPA satisfies the requirement of § 1026.18(c) to provide an itemization of the amount financed. Paragraph 19(a)(5)(iii). * * * * * 1. Consummation or settlement. For extensions of credit secured by a consumer’s timeshare plan, when corrected disclosures are required, they must be given no later than ‘‘consummation or settlement.’’ E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules ‘‘Consummation’’ is defined in § 1026.2(a). ‘‘Settlement’’ is defined in Regulation X (12 CFR 1024.2(b)) and is subject to any interpretations issued by the Bureau. In some cases, a creditor may delay redisclosure until settlement, which may be at a time later than consummation. If a creditor chooses to redisclose at settlement, disclosures may be based on the terms in effect at settlement, rather than at consummation. For example, in a variable-rate transaction, a creditor may choose to base disclosures on the terms in effect at settlement, despite the general rule in comment 17(c)(1)–8 that variable-rate disclosures should be based on the terms in effect at consummation. 2. Content of new disclosures. Creditors may rely on comment 19(a)(2)(ii)–2 in determining the content of corrected disclosures required under § 1026.19(a)(5)(iii).¿ * * * * * ﬂ19(e) Mortgage loans secured by real property—Early disclosures. 19(e)(1)(i) Creditor. 1. Requirements. Section 1026.19(e)(1)(i) requires early disclosure of credit terms in closed-end credit transactions that are secured by real property, other than reverse mortgages. These disclosures must be provided in good faith. Except as otherwise provided in § 1026.19(e), a disclosure is in good faith if it is consistent with the best information reasonably available to the creditor at the time the disclosure is provided. 19(e)(1)(ii) Mortgage broker. 1. Requirements. A mortgage broker may provide the disclosures required under § 1026.19(e)(1)(i) instead of the creditor. By assuming this responsibility, the mortgage broker becomes responsible for complying with all of the relevant requirements as if it were the creditor, meaning that ‘‘mortgage broker’’ should be read in the place of ‘‘creditor’’ for all the relevant provisions of § 1026.19(e), except to the extent that such a reading would create responsibility for mortgage brokers under § 1026.19(f). For example, comment 19(e)(4)–2 states that creditors comply with the requirements of § 1026.19(e)(4) if the revised disclosures are reflected in the disclosures required by § 1026.19(f)(1)(i). ‘‘Mortgage broker’’ could not be read in place of ‘‘creditor’’ in comment 19(e)(4)–2 because the mortgage brokers are not responsible for the disclosures required by § 1026.19(f)(1)(i). 2. Broker responsibilities. If a mortgage broker issues any disclosure under § 1026.19(e), the mortgage broker VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 must comply with the requirements of § 1026.19(e). For example, if the mortgage broker receives sufficient information to complete an application, the mortgage broker must issue the disclosures required under § 1026.19(e)(1)(i) within three business days in accordance with § 1026.19(e)(1)(iii). If the mortgage broker subsequently receives information sufficient to establish that a disclosure provided under § 1026.19(e)(1)(i) must be reissued under § 1026.19(e)(3)(iv), then the mortgage broker is responsible for ensuring that a revised disclosure is provided. If a mortgage broker issues any disclosure under § 1026.19(e), the mortgage broker must also comply with the requirements of § 1026.25. For example, if a mortgage broker issues the disclosure required under § 1026.19(e)(1)(i), it must maintain records for three years, in compliance with § 1026.25(c)(1)(i), and must maintain such records in an electronic, machine-readable format, in compliance with § 1026.25(c)(1)(iii). 3. Creditor responsibilities. If a mortgage broker issues any disclosure required under § 1026.19(e) in the creditor’s place, the creditor remains responsible under § 1026.19(e) for ensuring that the requirements of § 1026.19(e) have been satisfied. For example, the creditor must ensure that the broker provides the disclosures required under § 1026.19(e) not later than three business days after the mortgage broker received information sufficient to constitute an application, as defined in § 1026.2(a)(3)(ii). The creditor does not satisfy the requirements of § 1026.19(e) if it provides duplicative disclosures. For example, a creditor does not meet its burden by issuing disclosures required under § 1026.19(e) that mirror ones already issued by the broker for the purpose of demonstrating that the consumer received timely disclosures. If the broker provides an erroneous disclosure, the creditor is responsible and may not issue a revised disclosure correcting the error. The creditor is expected to maintain communication with the broker to ensure that the broker is acting in place of the creditor. Disclosures provided by a broker in accordance with § 1026.19(e)(1)(ii) satisfy the creditor’s obligation under § 1026.19(e)(1)(i). 4. Broker provision of preliminary written estimates specific to the consumer. Section 1026.19(e)(2)(ii) requires creditors to provide consumers with a disclosure indicating that the written estimate is not the Loan Estimate required by RESPA and TILA, PO 00000 Frm 00305 Fmt 4701 Sfmt 4702 51419 if a creditor provides a consumer with certain written estimates of specific credit terms or costs. Section 1026.19(e)(1)(ii) states that, if a mortgage broker provides any disclosure required by § 1026.19(e), the mortgage broker must comply with the requirements in § 1026.19(e) related to such disclosure. Thus, § 1026.19(e)(1)(ii) requires mortgage brokers to comply with § 1026.19(e)(2)(ii) if a mortgage broker provides any disclosures under § 1026.19(e). For example, if a mortgage broker never provides disclosures required by § 1026.19(e), the mortgage broker need not include the disclosure required by § 1026.19(e)(2)(ii) on written information provided to consumers. 19(e)(1)(iii) Timing. 1. Timing and use of estimates. The disclosures required by § 1026.19(e)(1)(i) must be delivered not later than three business days after the creditor receives the consumer’s application. For example, if an application is received on Monday, the creditor satisfies this requirement by either hand delivering the disclosures on or before Thursday, or placing them in the mail on or before Thursday, assuming each weekday is a business day. For purposes of § 1026.19(e)(1)(iii), the term ‘‘business day’’ means all calendar days except Sundays and legal public holidays referred to in § 1026.2(a)(6). See comment 2(a)(6)–2. If the creditor does not know the precise credit terms, the creditor must base the disclosures on the best information reasonably available. 2. Waiting period. The sevenbusiness-day waiting period begins when the creditor delivers the disclosures or places them in the mail, not when the consumer receives or is presumed to have received the disclosures. For example, if a creditor delivers the early disclosures to the consumer in person or places them in the mail on Monday, June 1, consummation may occur on or after Tuesday, June 9, the seventh business day following delivery or mailing of the early disclosures, because, for the purposes of § 1026.19(e)(1)(iii), Saturday is a business day, pursuant to § 1026.2(a)(6). 3. Denied or withdrawn applications. The creditor may determine within the three-business-day period that the application will not or cannot be approved on the terms requested, such as when a consumer’s credit score is lower than the minimum score required for the terms the consumer applied for, or the consumer applies for a type or amount of credit that the creditor does not offer. In that case, or if the consumer withdraws the application within the E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51420 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules three-business-day period, the creditor need not make the disclosures required under § 1026.19(e)(1)(i). If the creditor fails to provide early disclosures and the transaction is later consummated on the terms originally applied for, then the creditor does not comply with § 1026.19(e)(1)(i). If, however, the consumer amends the application because of the creditor’s unwillingness to approve it on the terms originally applied for, no violation occurs for not providing disclosures based on those original terms. But the amended application is a new application subject to § 1026.19(e)(1)(i). 19(e)(1)(iv) Delivery. 1. Mail delivery. Section 1026.19(e)(1)(iv) provides that, if any disclosures required under § 1026.19(e)(1)(i) are not provided to the consumer in person, the consumer is presumed to have received the disclosures three business days after they are mailed or delivered to the address specified by the consumer. This presumption may be rebutted by providing evidence that the consumer received the disclosures earlier than three business days. For example, if the creditor sends the disclosures via overnight mail on Monday, and the consumer signs for receipt of the overnight delivery on Tuesday, the creditor could demonstrate that the disclosures were received on Tuesday, thereby rebutting the presumption that the disclosures were received on Thursday, three business days after the disclosures were sent. 2. Electronic delivery. The presumption established in § 1026.19(e)(1)(iv) applies to methods of electronic delivery, such as email. For example, if a creditor sends a disclosure required under § 1026.19(e) via email on Monday, pursuant to § 1026.19(e)(1)(iv) the consumer is presumed to have received the disclosure on Thursday, three business days later. However, the creditor may rebut the presumption by providing evidence that the consumer received the emailed disclosures earlier. Creditors using electronic delivery methods, such as email, must also comply with § 1026.17(a)(1). For example, if a creditor delivers the disclosures required by § 1026.19(e)(1)(i) to a consumer via email, but the creditor did not obtain the consumer’s consent to receive disclosures via email prior to delivering the disclosures, then the creditor does not comply with § 1026.17(a)(1), and the creditor does not comply with § 1026.19(e)(1)(i), assuming the disclosures were not provided in a different manner in accordance with the VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 timing requirements of § 1026.19(e)(1)(iii). 19(e)(1)(v) Consumer’s waiver of waiting period before consummation. 1. Modification or waiver. A consumer may modify or waive the right to the seven-business-day waiting period required by § 1026.19(e)(1)(iii) only after the creditor makes the disclosures required by § 1026.19(e)(1)(i). The consumer must have a bona fide personal financial emergency that necessitates consummating the credit transaction before the end of the waiting period. Whether these conditions are met is determined by the facts surrounding individual situations. The imminent sale of the consumer’s home at foreclosure, where the foreclosure sale will proceed unless loan proceeds are made available to the consumer during the waiting period, is one example of a bona fide personal financial emergency. Each consumer who is primarily liable on the legal obligation must sign the written statement for the waiver to be effective. 2. Examples of waivers within the seven-business-day waiting period. If the early disclosures are delivered to the consumer in person on Monday, June 1, the seven-business-day waiting period ends on Tuesday, June 9. If on Monday, June 1, the consumer executes a waiver of the seven-business-day waiting period, the final disclosures required by § 1026.19(f)(1)(i) could then be delivered three days before consummation, as required by § 1026.19(f)(1)(ii), on Tuesday, June 2, and the loan can be consummated on Friday, June 5. 19(e)(1)(vi) Shopping for settlement service providers. 1. Permission to shop. Section 1026.19(e)(1)(vi)(A) states that the creditor may impose reasonable minimum requirements regarding the qualifications of the provider. For example, the creditor may require that a settlement agent chosen by the consumer must be appropriately licensed in the relevant jurisdiction. Similarly, the creditor may require that the homeowner’s insurance carrier chosen by the consumer have a minimum rating by an independent insurance rating service. In contrast, a creditor does not permit a consumer to shop for purposes of § 1026.19(e)(1)(vi) if the creditor requires the consumer to choose a provider from a list provided by creditor. The requirements of § 1026.19(e)(1)(vi)(B) and (C) do not apply if the creditor does not permit the consumer to shop consistent with § 1026.19(e)(1)(vi)(A). 2. Disclosure of services for which the consumer may shop. Section PO 00000 Frm 00306 Fmt 4701 Sfmt 4702 1026.19(e)(1)(vi)(C) requires the creditor to identify the services for which the consumer is permitted to shop in the disclosures provided pursuant to § 1026.19(e)(1)(i). See § 1026.37(f)(3) regarding the content and format for this disclosure. 3. Written list of providers. If the creditor permits the consumer to shop for a settlement service, § 1026.19(e)(1)(vi)(C) requires the creditor to provide the consumer with a written list identifying available providers of that service and stating that the consumer may choose a different provider for that service. The settlement service providers identified on such written list must correspond to the settlement services for which the consumer may shop, disclosed pursuant to § 1026.37(f)(3). See form H–27 in appendix H to this part for a model list. See also comment 19(e)(1)(ii)–4 regarding mortgage broker provision of the written list of settlement service providers. 4. Identification of available providers. Section 1026.19(e)(1)(vi)(C) provides that the creditor must identify settlement service providers that are available to the consumer. A creditor does not comply with the identification requirement in § 1026.19(e)(1)(vi)(C) unless it provides sufficient information to allow the consumer to contact the provider, such as the name under which the provider does business and the provider’s address and telephone number. Similarly, a creditor does not comply with the availability requirement in § 1026.19(e)(1)(vi)(C) if it provides a written list consisting of only settlement service providers that are no longer in business or that do not provide services where the consumer or property is located. If the creditor determines that there is only one available settlement service provider, the creditor need only identify that provider on the written list. 5. Statement that consumer may choose different provider. Section 1026.19(e)(1)(vi)(C) requires the creditor to include in the written list a statement that the consumer may choose a provider that is not included on that list. See form H–27 in appendix H to this part for an example of such a statement. 6. Additional information on written list. The creditor may include a statement on the written list that the listing of a settlement service provider does not constitute an endorsement of that service provider. The creditor may also identify in the written list providers of services for which the consumer is not permitted to shop, provided that the creditor clearly and expressly E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules distinguishes those services from the services for which the consumer is permitted to shop. This may be accomplished by placing the services under different headings. For example, if the list provided pursuant to § 1026.19(e)(1)(vi)(C) identifies providers of pest inspections, homeowner’s insurance, and surveys, but the consumer may select a provider, other than those identified on the list, for only the homeowner’s insurance carrier and surveyor, then the list must specifically inform the consumer that the consumer is permitted to select a provider, other than a provider identified on the list, for only the homeowner’s insurance carrier and the surveyor. 7. Relation to RESPA and Regulation X. Section 1026.19 does not prohibit creditors from including affiliates on the written list under § 1026.19(e)(1)(vi). However, a creditor that includes affiliates on the written list must also comply with 12 CFR 1024.15. Furthermore, the written list is a ‘‘referral’’ under 12 CFR 1024.14(f). 19(e)(2) Pre-disclosure activity. 19(e)(2)(i) Imposition of fees on consumer. 19(e)(2)(i)(A) Fee restriction. 1. Fees restricted. A creditor or other person may not impose any fee, such as for an application, appraisal, or underwriting, until the consumer has received the disclosures required by § 1026.19(e)(1)(i) and indicated an intent to proceed with the transaction. The only exception to the fee restriction allows the creditor or other person to impose a bona fide and reasonable fee for obtaining a consumer’s credit report, pursuant to § 1026.19(e)(2)(i)(B). 2. Intent to proceed. A consumer may indicate intent to proceed with a transaction in any manner the consumer chooses, unless a particular manner of communication is required by the creditor, provided that the creditor does not assume silence is indicative of intent. The creditor must document this communication to satisfy the requirements of § 1026.25. For example, oral communication in person immediately upon delivery of the disclosures required by § 1026.19(e)(1)(i) is sufficiently indicative of intent. Oral communication over the phone, written communication via email, or signing a pre-printed form are also sufficiently indicative of intent if such actions occur after receipt of the disclosures required by § 1026.19(e)(1)(i). However, a creditor may not deliver the disclosures, wait for some period of time for the consumer to respond, and then charge the consumer a fee for an appraisal if VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 the consumer does not respond, even if the creditor disclosed that it would do so. 3. Timing of fees. At any time prior to delivery of the required disclosures, the creditor may impose a credit report fee as provided in § 1026.19(e)(2)(i)(B). The consumer must receive the disclosures required by this section and indicate an intent to proceed with the mortgage loan transaction before paying or incurring any other fee imposed by a creditor or other person in connection with the consumer’s application for a mortgage loan that is subject to § 1026.19(e)(1)(i). 4. Collection of fees. A creditor complies with § 1026.19(e)(2)(i)(A) if: i. The creditor receives a consumer’s written application directly from the consumer and does not collect any fee, other than a fee for obtaining a consumer’s credit report, until the consumer receives the early mortgage loan disclosure and indicates an intent to proceed. ii. A third party submits a consumer’s written application to a creditor and both the creditor and third party do not collect any fee, other than a fee for obtaining a consumer’s credit report, until the consumer receives the early mortgage loan disclosure from the creditor and indicates an intent to proceed. iii. A third party submits a consumer’s written application to a creditor following a different creditor’s denial of the consumer’s application (or following the consumer’s withdrawal of that application), and, if a fee already has been assessed, the new creditor or third party does not collect or impose any additional fee until the consumer receives an early mortgage loan disclosure from the new creditor and indicates an intent to proceed. 5. Fees ‘‘imposed by’’ a person. For purposes of § 1026.19(e), a fee is ‘‘imposed by’’ a person if the person requires a consumer to provide a method for payment, even if the payment is not made at that time. For example, if a creditor requires the consumer to provide a $500 check to pay for a ‘‘processing fee’’ before the consumer receives the disclosures required by § 1026.19(e)(1)(i) and the consumer subsequently indicates intent to proceed, then the creditor does not comply with § 1026.19(e)(2), even if the creditor states that the check will not be cashed until after the disclosures required by § 1026.19(e)(1)(i) are received by the consumer and the consumer indicates intent to proceed. Similarly, a creditor does not comply with the requirements of § 1026.19(e)(2) if the creditor requires the consumer to provide a credit card number before the PO 00000 Frm 00307 Fmt 4701 Sfmt 4702 51421 consumer receives the disclosures required by § 1026.19(e)(1)(i) and the consumer subsequently indicates intent to proceed, even if the creditor promises not to charge the consumer’s credit card for the $500 processing fee until after the disclosures required by § 1026.19(e)(1)(i) are received by the consumer and the consumer subsequently indicates intent to proceed. In contrast, a creditor complies with § 1026.19(e)(2) if the creditor requires the consumer to provide a credit card number before the consumer receives the disclosures required by § 1026.19(e)(1)(i) and subsequently indicates intent to proceed if the consumer’s authorization is only to pay for the cost of a credit report. This is so even if the creditor maintains the consumer’s credit card number on file and charges the consumer a $500 processing fee after the disclosures required by § 1026.19(e)(1)(i) are received and the consumer subsequently indicates intent to proceed, provided that the creditor requested and received a separate authorization for the processing fee from the consumer after the consumer received the disclosures required by § 1026.19(e)(1)(i). 19(e)(2)(i)(B) Exception to fee restriction. 1. Requirements. A creditor or other person may impose a fee before the consumer receives the required disclosures if it is for purchasing a credit report on the consumer. The fee also must be bona fide and reasonable in amount. For example, a creditor may collect a fee for obtaining a credit report if it is in the creditor’s ordinary course of business to obtain a credit report. If the criteria in § 1026.19(e)(2)(i)(B) are met, the creditor must accurately describe or refer to this fee, for example, as a ‘‘credit report fee.’’ 19(e)(2)(ii) Written information provided to consumer. 1. Requirements. Section 1026.19(e)(2)(ii) requires the creditor to include a notice on certain written estimates provided to the consumer before the disclosures required by § 1026.19(e)(1)(i) are provided. The requirement applies only to written information specific to the consumer. For example, if the creditor provides a document showing the estimated monthly payment for a mortgage loan, and the estimate was based on the estimated loan amount and the consumer’s estimated credit score, then the creditor must include the warning on the document. In contrast, if the creditor provides the consumer with a preprinted list of closing costs common in the consumer’s area, the creditor E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51422 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules need not include the warning. Similarly, the warning would not be required on a preprinted list of available rates for different loan products. This requirement does not apply to an advertisement, as defined in § 1026.2(a)(2). See also comment 19(e)(1)(ii)–4 regarding mortgage broker provision of written estimates specific to the consumer. 19(e)(2)(iii) Verification of information. 1. Requirements. The creditor may collect from the consumer any information that it requires prior to providing the early disclosures, including information not listed in § 1026.2(a)(3)(ii). However, the creditor is not permitted to require, before providing the disclosures required by § 1026.19(e)(1)(i), that the consumer submit documentation to verify the information provided by the consumer. For example, the creditor may ask for the names, account numbers, and balances of the consumer’s checking and savings accounts, but the creditor may not require the consumer to provide bank statements, or similar documentation, to support the information the consumer provides orally before providing the disclosures required by § 1026.19(e)(1)(i). See also § 1026.2(a)(3) and the related commentary regarding the definition of application. 19(e)(3) Good faith determination for estimates of closing costs. 19(e)(3)(i) General rule. 1. Requirement. Section 1026.19(e)(3)(i) provides the general rule that an estimated charge disclosed pursuant to § 1026.19(e) is not in good faith if the charge paid by or imposed upon the consumer exceeds the amount originally disclosed. Although § 1026.19(e)(3)(ii) and (iii) provide exceptions to the general rule, the charges that remain subject to § 1026.19(e)(3)(i) include, but are not limited to, the following: i. Fees paid to the creditor. ii. Fees paid to a mortgage broker. iii. Fees paid to an affiliate of the creditor or a mortgage broker. iv. Fees paid to an unaffiliated third party if the creditor did not permit the consumer to select a third party service provider, other than those providers identified on the written list provided pursuant to § 1026.19(e)(1)(vi). v. Transfer taxes. 2. Fees ‘‘paid to’’ a person. For purposes of § 1026.19(e), a fee is not considered ‘‘paid to’’ a person if the person does not retain the fee, or if the person retains the fee as reimbursement for an amount it has already paid to another party. For example, if a VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 consumer pays the creditor an appraisal fee in advance of the real estate closing and the creditor subsequently uses those funds to pay another party for an appraisal, then the appraisal fee is not ‘‘paid to’’ the creditor for the purposes of § 1026.19(e). Similarly, if a creditor pays for an appraisal in advance of the real estate closing and the consumer pays the creditor an appraisal fee at the real estate closing, then the fee is not ‘‘paid to’’ the creditor for the purposes of § 1026.19(e), even though the creditor retains the fee, because the payment is a reimbursement for an amount already paid. 3. Transfer taxes and recording fees. See comments 37(g)(1)–1, –2, –3 and –4 for a discussion of the difference between transfer taxes and recording fees. 4. Specific credits, rebates, or reimbursements. An item identified, on the disclosures provided pursuant to § 1026.19(e), as a payment from a creditor to the consumer to pay for a specific fee, such as a credit, rebate, or reimbursement, is not subject to the good faith determination requirements in § 1026.19(e)(3)(i) or (ii) if the increased specific credit, rebate, or reimbursement actually reduces the cost to the consumer. Specific credits, rebates, or reimbursements may not be disclosed or revised in a way that achieves what would otherwise violate the requirements of § 1026.19(e)(3)(i) and (ii). For example, assume the creditor originally disclosed a $100 pest inspection fee credit to cover the cost of a $100 pest inspection fee paid to an affiliated provider and subject to § 1026.19(e)(3)(i). If the pest inspection fee subsequently increases to $150, and the creditor increases the amount of the pest inspection fee credit from $100 to $150 to pay for the increase, the credit is not being revised in a way that would otherwise violate the requirements of § 1026.19(e)(3)(i) because, although the disclosed amount increased, the amount paid by the consumer did not. However, if the creditor disclosed a $150 pest inspection fee credit to cover the cost of a $150 pest inspection fee paid to an affiliated provider and subject to § 1026.19(e)(3)(i), and the creditor subsequently decreases the pest inspection fee credit from $150 to $100, even though the pest inspection fee remained at $150, then the requirements of § 1026.19(e)(3)(i) have been violated because, although the disclosed amount did not increase, the amount paid by the consumer for this service did increase. 5. Lender credits. The disclosure of ‘‘lender credits,’’ as identified in § 1026.37(g)(6)(ii), is required by § 1026.19(e)(1)(i). These are payments PO 00000 Frm 00308 Fmt 4701 Sfmt 4702 from the creditor to the consumer that do not pay for a particular fee on the disclosures provided pursuant to § 1026.19(e)(1)(i). These non-specific credits are negative charges to the consumer—as the lender credit decreases, the overall cost to the consumer increases. Thus, an actual lender credit provided at the real estate closing that is less than the estimated lender credit provided pursuant to § 1026.19(e)(1)(i) is an increased charge to the consumer for purposes of determining good faith under § 1026.19(e)(3)(i). For example, if the creditor provides a $750 estimate for lender credits in the disclosures required by § 1026.19(e)(1)(i), but only a $500 lender credit is actually provided to the consumer at the real estate closing, the creditor has not complied with § 1026.19(e)(3)(i) because, although the actual lender credit was less than the estimated lender credit provided in the revised disclosures, the overall cost to the consumer increased and, therefore, did not comply with § 1026.19(e)(3)(i). See also § 1026.19(e)(3)(iv)(D) and comment 19(e)(3)(iv)(D)–1 for a discussion of lender credits in the context of interest rate dependent charges. 19(e)(3)(ii) Limited increases permitted for certain charges. 1. Requirements. Section 1026.19(e)(3)(ii) provides that certain estimated charges are in good faith if the sum of all such charges paid by or imposed on the consumer does not exceed the sum of all such charges disclosed pursuant to § 1026.19(e) by more than ten percent. Section 1026.19(e)(3)(ii) permits this limited increase for only the following items: i. Fees paid to an unaffiliated third party if the creditor permitted the consumer to select a settlement service provider that is not on the list provided pursuant to § 1026.19(e)(1)(vi) and discloses that the consumer may do so on that list. ii. Recording fees. 2. Aggregate increase limited to ten percent. Pursuant to § 1026.19(e)(3)(ii), whether an individual estimated charge subject to § 1026.19(e)(3)(ii) is in good faith depends on whether the sum of all charges subject to § 1026.19(e)(3)(ii) increase by more than ten percent, even if a particular charge does not increase by more than ten percent. For example, if, in the disclosures provided pursuant to § 1026.19(e)(1)(i), the creditor includes a $300 estimated fee for a settlement agent, the settlement agent fee is included in the category of charges subject to § 1026.19(e)(3)(ii), and the sum of all charges subject to § 1026.19(e)(3)(ii) (including the E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules settlement agent fee) equals $1,000, then the creditor does not violate § 1026.19(e)(3)(ii) if the actual settlement agent fee exceeds ten percent (i.e., exceeds $330), provided that the sum of all such charges does not exceed ten percent (i.e., $1,100). Section 1026.19(e)(3)(ii) also provides flexibility in disclosing individual fees by focusing on aggregate amounts. For example, assume that, in the disclosures provided pursuant to § 1026.19(e)(1)(i), the sum of all estimated charges subject to § 1026.19(e)(3)(ii) equals $1,000. If the creditor does not include an estimated charge for a notary fee but a $10 notary fee is charged to the consumer, and the notary fee is subject to § 1026.19(e)(3)(ii), then the creditor does not violate § 1026.19(e)(1)(i) if the sum of all amounts charged to the consumer subject to § 1026.19(e)(3)(ii) does not exceed $1,100, even though an individual notary fee was not included in the estimated disclosures provided pursuant to § 1026.19(e)(1)(i). 3. Services for which the consumer may, but does not, select a settlement service provider. Good faith is determined pursuant to § 1026.19(e)(3)(ii), instead of § 1026.19(e)(3)(i), if the creditor permits the consumer to shop for a settlement service provider, consistent with § 1026.19(e)(1)(vi)(A). Section 1026.19(e)(3)(ii) provides that if the creditor requires a service in connection with the mortgage loan transaction, and permits the consumer to shop for that service consistent with § 1026.19(e)(1)(vi)(A), but the consumer either does not select a settlement service provider or chooses a settlement service provider identified by the creditor on the list, then good faith is determined pursuant to § 1026.19(e)(3)(ii)(A), instead of § 1026.19(e)(3)(i) and subject to the other requirements in § 1026.19(e)(3)(ii)(B) and (C). For example, if, in the disclosures provided pursuant to §§ 1026.19(e)(1)(i) and 1026.37(f)(3), a creditor discloses an estimated fee for an unaffiliated settlement agent and permits the consumer to shop for that service, but the consumer either does not choose a provider, or chooses a provider identified by the creditor on the written list provided pursuant to § 1026.19(e)(1)(vi)(C), then the estimated settlement agent fee is included with the fees that may, in aggregate, increase by no more than ten percent for the purposes of § 1026.19(e)(3)(ii). If, however, the consumer chooses a provider that is not on the written list, VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 then good faith is determined according to § 1026.19(e)(3)(iii). 4. Recording fees. Section 1026.19(e)(3)(ii) provides that an estimate of recording fees is in good faith if the conditions specified in § 1026.19(e)(3)(ii)(A), (B), and (C) are satisfied. However, the condition specified in § 1026.19(e)(3)(ii)(B), that the charge not be paid to an affiliate of the creditor, is inapplicable for recording fees. The condition specified in § 1026.19(e)(3)(ii)(C), that the creditor permits the consumer to shop for the service, is similarly inapplicable. Therefore, estimates of recording fees need only satisfy the condition specified in § 1026.19(e)(3)(ii)(A) to meet the requirements of § 1026.19(e)(3)(ii). 19(e)(3)(iii) Variations permitted for certain charges. 1. Good faith requirement for prepaid interest, property insurance premiums, and impound amounts. Estimates of prepaid interest, property insurance premiums, and impound amounts must be consistent with the best information reasonably available to the creditor at the time the disclosures are provided. Differences between the amounts of such charges disclosed under § 1026.19(e)(1)(i) and the amounts of such charges paid by or imposed on the consumer do not necessarily constitute a lack of good faith, so long as the original estimated charge, or lack of an estimated charge for a particular service, was based on the best information reasonably available to the creditor at the time the disclosure was provided. For example, if the creditor requires homeowner’s insurance but fails to include a homeowner’s insurance premium on the estimates provided pursuant to § 1026.19(e)(1)(i), then the creditor’s failure to disclose does not comply with § 1026.19(e)(3)(iii). However, if the creditor does not require flood insurance and the subject property is located in an area where floods frequently occur, but not specifically located in a zone where flood insurance is required, failure to include flood insurance on the original estimates provided pursuant to § 1026.19(e)(1)(i) does not constitute a lack of good faith under § 1026.19(e)(3)(iii). Or, if the creditor knows that the loan must close on the 15th of the month but estimates prepaid interest to be paid from the 30th of that month, then the under-disclosure does not comply with § 1026.19(e)(3)(iii). 2. Good faith requirement for required services chosen by the consumer. If a service is required by the creditor, the creditor permits the consumer to shop for that service consistent with § 1026.19(e)(1)(vi)(A), the creditor PO 00000 Frm 00309 Fmt 4701 Sfmt 4702 51423 provides the list required by § 1026.19(e)(1)(vi)(C), and the consumer chooses a service provider that is not on that list to perform that service, then the actual amounts of such fees need not be compared to the original estimates for such fees to perform the good faith analysis required by § 1026.19(e)(3)(i) or (ii). Differences between the amounts of such charges disclosed pursuant to § 1026.19(e)(1)(i) and the amounts of such charges paid by or imposed on the consumer do not necessarily constitute a lack of good faith. However, the original estimated charge, or lack of an estimated charge for a particular service, must be made based on the best information reasonably available to the creditor at that time. For example, if the consumer informs the creditor that the consumer will choose a settlement agent not identified by the creditor on the written list provided pursuant to § 1026.19(e)(1)(vi)(C), and the creditor subsequently discloses an unreasonably low estimated settlement agent fee, then the under-disclosure does not comply with § 1026.19(e)(3)(iii). If the creditor permits the consumer to shop consistent with § 1026.19(e)(1)(vi)(A) but fails to provide the list required by § 1026.19(e)(1)(vi)(C), good faith is determined pursuant to § 1026.19(e)(3)(ii) instead of § 1026.19(e)(3)(iii) regardless of the provider selected by the consumer, unless the provider is an affiliate of the creditor in which case good faith is determined pursuant to § 1026.19(e)(3)(i). 3. Good faith requirement for nonrequired services chosen by the consumer. Differences between the amounts of estimated charges for services not required by the creditor disclosed pursuant to § 1026.19(e)(1)(i) and the amounts of such charges paid by or imposed on the consumer do not necessarily constitute a lack of good faith. For example, if the consumer informs the creditor that the consumer will obtain a type of inspection not required by the creditor, the creditor may include the charge for that item in the disclosures provided pursuant to § 1026.19(e)(1)(i), but the actual amount of the inspection fee need not be compared to the original estimate for the inspection fee to perform the good faith analysis required by § 1026.19(e)(3)(iii). However, the original estimated charge, or lack of an estimated charge for a particular service, must still be made based on the best information reasonably available to the creditor at the time that the estimate was provided. For example, if the subject property is located in a jurisdiction where E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51424 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules consumers are customarily represented at closing by their own attorney, but the creditor fails to include a fee for the consumer’s attorney, or includes an unreasonably low estimate for such fee, on the original estimates provided pursuant to § 1026.19(e)(1)(i), then the creditor’s failure to disclose, or underestimation, does not comply with § 1026.19(e)(3)(iii). 19(e)(3)(iv) Revised estimates. 1. Requirement. Pursuant to § 1026.19(e)(3)(i) and (ii), good faith is determined by calculating the difference between the estimated charges originally provided pursuant to § 1026.19(e)(1)(i) and the actual charges paid by the consumer. Section 1026.19(e)(3)(iv) provides the exception to this rule. Pursuant to § 1026.19(e)(3)(iv), a charge paid by or imposed on the consumer may exceed the originally estimated charge if the revision is due to one of the reasons specified in § 1026.19(e)(3)(iv)(A) through (F). 2. Actual increase. The revised disclosures may reflect increased charges only to the extent that the reason for revision, as identified in § 1026.19(e)(3)(iv)(A) through (F), actually increased the particular charge. For example, if a consumer requests a rate lock extension, then the revised disclosures may reflect a new rate lock extension fee, but the fee may be no more than the rate lock extension fee charged by the creditor in its usual course of business, and other charges unrelated to the rate lock extension may not change. 3. Documentation requirement. In order to comply with § 1026.25, creditors must retain records demonstrating compliance with the requirements of § 1026.19(e). For example, if revised disclosures are provided because of a changed circumstance under § 1026.19(e)(3)(iv)(A) affecting settlement costs, the creditor must be able to show compliance with § 1026.19(e) by documenting the original estimate of the cost at issue, explaining the reason for revision and how it affected settlement costs, showing that the corrected disclosure increased the estimate only to the extent that the reason for revision actually increased the cost, and showing that the timing requirements of § 1026.19(e)(4) were satisfied. However, the documentation requirement does not require separate corrected disclosures for each change. A creditor may provide corrected disclosures reflecting multiple changed circumstances, provided that the creditor’s documentation demonstrates that each correction VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 complies with the requirements of § 1026.19(e). 19(e)(3)(iv)(A) Changed circumstance affecting settlement charges. 1. Requirement. Except for the items identified in § 1026.19(e)(3) (iii), revised charges are compared to actual charges if the revision was caused by a changed circumstance. See also comment 19(e)(3)(iv)(A)–2 regarding the definition of a changed circumstance. The following examples illustrate the application of this provision: i. Assume a creditor provides a $200 estimated appraisal fee pursuant to § 1026.19(e)(1)(i), which will be paid to an affiliated appraiser and therefore may not increase for purposes of determining good faith under § 1026.19(e)(3)(i), except as provided in § 1026.19(e)(3)(iv). The estimate was based on information provided by the consumer at application, which included information indicating that the subject property was a single-family dwelling. Upon arrival at the subject property, the appraiser discovers that the property is actually a single-family dwelling located on a farm. A different schedule of appraisal fees applies to residences located on farms. A changed circumstance has occurred (i.e., information provided by the consumer is found to be inaccurate after the disclosures required under § 1026.19(e)(1)(i) were provided), which caused an increase in the cost of the appraisal. Therefore, if the creditor issues revised disclosures with the corrected appraisal fee, the actual appraisal fee of $400 paid at the real estate closing by the consumer will be compared to the revised appraisal fee of $400 to determine if the actual fee has increased above the estimated fee. However, if the creditor failed to provide revised disclosures, then the actual appraisal fee of $400 must be compared to the originally disclosed estimated appraisal fee of $200. ii. Assume a creditor provides a $400 estimate of title fees, which are included in the category of fees which may not increase by more than ten percent for the purposes of determining good faith under § 1026.19(e)(3)(ii), except as provided in § 1026.19(e)(3)(iv). An unreleased lien is discovered and the title company must perform additional work to release the lien. However, the additional costs amount to only a five percent increase over the sum of all fees included in the category of fees which may not increase by more than ten percent. A changed circumstance has occurred (i.e., new information), but costs have not increased by more than ten percent. Therefore, if the creditor issues revised disclosures, when the PO 00000 Frm 00310 Fmt 4701 Sfmt 4702 disclosures required by § 1026.19(f)(1)(i) are delivered, the actual title fees of $500 may not be compared to the revised title fees of $500; they must be compared to the originally estimated title fees of $400. 2. Changed circumstance. A changed circumstance may be an extraordinary event beyond the control of any interested party. For example, a war or a natural disaster would be an extraordinary event beyond the control of an interested party. A changed circumstance may also be an unexpected event specific to the consumer or the transaction. For example, if the creditor provided an estimate of title insurance on the disclosures required under § 1026.19(e)(1)(i), but the title insurer goes out of business during underwriting, then this unexpected event specific to the transaction is a changed circumstance. A changed circumstance may also be information specific to the consumer or transaction that the creditor relied upon when providing the disclosures required under § 1026.19(e)(1)(i) and that was inaccurate or changed after the disclosures were provided. For example, if the creditor relied on the consumer’s income when providing the disclosures required under § 1026.19(e)(1)(i), and the consumer represented to the creditor that the consumer had an annual income of $90,000, but underwriting determines that the consumer’s annual income is only $80,000, then this inaccuracy in information relied upon is a changed circumstance. Or, assume two co-applicants applied for a mortgage loan. One applicant’s income was $30,000, while the other applicant’s income was $50,000. If the creditor relied on the combined income of $80,000 when providing the disclosures required under § 1026.19(e)(1)(i), but the applicant earning $30,000 becomes unemployed during underwriting, thereby reducing the combined income to $50,000, then this change in information relied upon is a changed circumstance. A changed circumstance may also be the discovery of new information specific to the consumer or transaction that the creditor did not rely on when providing the original disclosures. For example, if the creditor relied upon the value of the property in providing the disclosures required under § 1026.19(e)(1)(i), but during underwriting a neighbor of the seller, upon learning of the impending sale of the property, files a claim contesting the boundary of the property to be sold, then this new information specific to E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules the transaction is a changed circumstance. 3. Six pieces of information presumed collected, but not required. Section 1026.19(e)(1)(iii) requires creditors to deliver the disclosures not later than the third business day after the creditor receives the consumer’s application, which § 1026.2(a)(3)(ii) defines as six pieces of information. A creditor is not required to collect the consumer’s name, monthly income, or social security number to obtain a credit report, the property address, an estimate of the value of the property, or the mortgage loan amount sought. However, for purposes of determining whether an estimate is provided in good faith under § 1026.19(e)(1)(i), a creditor is presumed to have collected these six pieces of information. For example, if a creditor provides the disclosures required by § 1026.19(e)(1)(i) prior to receiving the property address from the consumer, the creditor cannot subsequently claim that the receipt of the property address is a changed circumstance pursuant to § 1026.19(e)(3)(iv)(A) or (B). 19(e)(3)(iv)(B) Changed circumstance affecting eligibility. 1. Requirement. If changed circumstances cause a change in the consumer’s eligibility for specific loan terms disclosed pursuant to § 1026.19(e)(1)(i) and revised disclosures are provided reflecting such change, the final amounts paid by the consumer may be compared to the revised estimated disclosures to determine if the actual fee has increased above the estimated fee. For example, assume that, prior to providing the disclosures required by § 1026.19(e)(1)(i), the creditor believed that the consumer was eligible for a loan program that did not require an appraisal. The creditor then provides the estimated disclosures required by § 1026.19(e)(1)(i), which do not include an estimated charge for an appraisal. During underwriting it is discovered that the consumer was delinquent on mortgage loan payments in the past, making the consumer ineligible for the loan program originally identified on the estimated disclosures, but the consumer remains eligible for a different program that requires an appraisal. If the creditor provides revised disclosures reflecting the new program and including the appraisal fee, then the actual appraisal fee will be compared to the revised appraisal fee to determine if the actual fee has increased above the estimated fee. However, if the revised disclosures also include increased estimates for title fees, the actual title fees must be compared to the original estimates because the increased title VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 fees do not stem from the change in eligibility. See also § 1026.19(e)(3)(iv)(A) and comment 19(e)(3)(iv)(A)–2 regarding the definition of changed circumstances. 19(e)(3)(iv)(C) Revisions requested by the consumer. 1. Requirement. If the consumer requests revisions to the transaction that affect items disclosed pursuant to § 1026.19(e)(1)(i), and the creditor provides revised disclosures reflecting the consumer’s requested changes, the final disclosures are compared to the revised disclosures to determine whether the actual fee has increased above the estimated fee. For example, assume that the consumer decides to grant a power of attorney authorizing a family member to consummate the transaction on the consumer’s behalf after the disclosures required under § 1026.19(e)(1)(i) are provided. If the creditor provides revised disclosures reflecting the fee to record the power of attorney, then the actual charges will be compared to the revised charges to determine if the fees have increased. 19(e)(3)(iv)(D) Interest rate dependent charges. 1. Requirements. If the interest rate is not set when the disclosures required by § 1026.19(e)(1)(i) are delivered, a valid reason for revision exists when the interest rate is subsequently set, at which point § 1026.19(e)(3)(iv)(D) requires the creditor to issue a revised version of the disclosures required by § 1026.19(e)(1)(i) reflecting the revised interest rate, bona fide discount points, and lender credits. The following examples illustrate this requirement: i. Assume a creditor sets the interest rate by executing a rate lock agreement with the consumer. If such an agreement exists when the disclosures required by § 1026.19(e)(1)(i) are originally provided, then the actual bona fide discount points and lender credits are compared to the estimated bona fide discount points and lender credits included in the disclosures originally provided pursuant to § 1026.19(e)(1)(i) for the purpose of determining good faith pursuant to § 1026.19(e)(3)(i). If the consumer enters into a rate lock agreement with the creditor after the disclosures required by § 1026.19(e)(1)(i) were provided, then § 1026.19(e)(3)(iv)(D) requires the creditor to provide revised disclosures reflecting any revised bona fide discount points and lender credits, in which case the actual bona fide discount points and lender credits are compared to the revised bona fide discount points and lender credits for the purpose of determining good faith pursuant to § 1026.19(e)(3)(i). PO 00000 Frm 00311 Fmt 4701 Sfmt 4702 51425 ii. Assume a creditor does not offer rate lock agreements, but instead sets the interest rate on all mortgage loan transactions according to the interest rate in effect seven days prior to consummation. Section 1026.19(e)(3)(iv)(D) requires the creditor to issue a revised version of the disclosures required by § 1026.19(e)(1)(i) reflecting the set interest rate, bona fide discount points, and lender credits. The actual bona fide discount points and lender credits are compared to the revised bona fide discount points and lender credits for the purpose of determining good faith pursuant to § 1026.19(e)(3)(i). 19(e)(3)(iv)(E) Expiration. 1. Requirements. Section 1026.19(e)(3)(i) provides the general rule that the actual fees charged cannot exceed the fees disclosed pursuant to § 1026.19(e)(1)(i). An exception to that rule applies if the creditor provides revised versions of the disclosures required by § 1026.19(e)(1)(i) because the consumer indicates an intent to proceed with the transaction more than ten business days after the disclosures were originally provided. However, § 1026.19(e)(3)(iv)(E) requires no justification for the change other than the lapse of ten business days. For example, assume a creditor includes a $500 underwriting fee on the disclosures provided pursuant to § 1026.19(e)(1)(i) and the creditor delivers those disclosures on a Monday. If the consumer indicates intent to proceed 11 business days later, the creditor may provide new disclosures with a $700 underwriting fee. In this example § 1026.19(e) and § 1026.25 require the creditor to document that a new disclosure was provided pursuant to § 1026.19(e)(3)(iv)(E), but do not require the creditor to document a reason for the increase in the underwriting fee. 19(e)(3)(iv)(F) Delayed settlement date on a construction loan. 1. Requirements. A loan for the purchase of a home either to be constructed or under construction is considered a construction loan to build a home for the purposes of § 1026.19(e)(3)(iv)(F). For example, a loan to purchase and build a home that has yet to be constructed, or a loan to purchase a home on which construction is currently underway, is a construction loan to build a home for the purposes of § 1026.19(e)(3)(iv)(F). However, if a use and occupancy permit has been issued for the home prior to the issuance of the Loan Estimate, then the home is not considered to be under construction and the transaction would not be a construction loan to build a E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51426 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules home for the purposes of § 1026.19(e)(3)(iv)(F). 19(e)(4) Provision of revised disclosures. 1. Three-day requirement. Section 1026.19(e)(4) provides that the creditor must deliver revised disclosures within three business days of receiving information sufficient to establish that a reason for revision, as specified under § 1026.19(e)(3)(iv)(A) through (F), has occurred. The following examples illustrate these requirements: i. Assume a creditor requires a pest inspection. The unaffiliated pest inspection company informs the creditor on Monday that the subject property contains evidence of termite damage, requiring a further inspection, the cost of which will cause an increase in estimated settlement charges subject to § 1026.19(e)(3)(ii) by more than ten percent. The creditor must deliver revised disclosures by Thursday to comply with § 1026.19(e)(4)(i). ii. Assume a creditor receives information on Monday that, because of a changed circumstance under § 1026.19(e)(3)(iv)(A), the title fees will increase by an amount totaling six percent of the originally estimated settlement charges subject to § 1026.19(e)(3)(ii). The creditor had received information three weeks before that, because of a changed circumstance under § 1026.19(e)(3)(iv)(A), the appraisal fees increased by an amount totaling five percent of the originally estimated settlement charges subject to § 1026.19(e)(3)(ii). Thus, on Monday, the creditor has received sufficient information to establish a valid reason for revision and must provide revised disclosures reflecting the 11 percent increase by Thursday to comply with § 1026.19(e)(4)(i). iii. Assume a creditor requires an appraisal. The creditor receives the appraisal report, which indicates that the value of the home is significantly lower than expected. However, the creditor has reason to doubt the validity of the appraisal report. A reason for revision has not been established because the creditor reasonably believes that the appraisal report is incorrect. The creditor then chooses to send a different appraiser for a second opinion, but the second appraiser returns a similar report. At this point, the creditor has received information sufficient to establish that a reason for revision has, in fact, occurred, and must provide corrected disclosures within three business days of receiving the second appraisal report. In this example, in order to comply with § 1026.19(e)(3)(iv) and § 1026.25, the creditor must maintain records documenting the VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 creditor’s doubts regarding the validity of the appraisal to demonstrate that the reason for revision did not occur upon receipt of the first appraisal report. 2. Revised disclosures may not be delivered at the same time as the final disclosures. Creditors comply with the requirements of § 1026.19(e)(4) if the revised disclosures are reflected in the disclosures required by § 1026.19(f)(1)(i). For example, if the creditor is scheduled to meet with the consumer and provide the disclosures required by § 1026.19(f)(1)(i) on Wednesday, and the APR becomes inaccurate on Tuesday, the creditor would comply with the requirements of § 1026.19(e)(4) by providing the disclosures required by § 1026.19(f)(1)(i) reflecting the revised APR on Wednesday. However, the creditor would not comply with the requirements of § 1026.19(e)(4) if it provided both a revised version of the disclosures required by § 1026.19(e)(1)(i) reflecting the revised APR on Wednesday, and also provided the disclosures required by § 1026.19(f)(1)(i) on Wednesday. Or, if the creditor is scheduled to email the disclosures required by § 1026.19(f)(1)(i) to the consumer on Wednesday, and the consumer requests a change to the loan that would result in revised disclosures pursuant to § 1026.19(e)(3)(iv)(C) on Tuesday, the creditor would comply with the requirements § 1026.19(e)(4) by providing the disclosures required by § 1026.19(f)(1)(i) reflecting the consumer requested changes on Wednesday. However, the creditor would not comply if it provided both the disclosures required by § 1026.19(e)(1)(i) reflecting consumer requested changes and the disclosures required by § 1026.19(f)(1)(i) on Wednesday. Alternative 1—Paragraph (f)(1) 19(f) Mortgage loans secured by real property—Final disclosures. 19(f)(1) Provision. 19(f)(1)(i) Scope. 1. Requirements. Section 1026.19(f)(1)(i) requires disclosure of the actual terms of the credit transaction, and the actual costs associated with the settlement of that transaction, for closed-end credit transactions that are secured by real property, other than reverse mortgages subject to § 1026.33. For example, if the creditor requires the consumer to pay money into a reserve account for the future payment of taxes, the creditor must disclose to the consumer the exact amount that the consumer is required to pay into the reserve account. If the disclosures provided pursuant to PO 00000 Frm 00312 Fmt 4701 Sfmt 4702 § 1026.19(f)(1)(i) do not contain the actual terms of the transaction, the creditor does not violate § 1026.19(f)(1)(i) if the creditor provides new disclosures that contain the actual terms of the transaction and complies with the other requirements of § 1026.19(f), including the timing requirements in § 1026.19(f)(1)(ii). For example, if the creditor provides the disclosures required by § 1026.19(f)(1)(i) on Monday, June 1, but the consumer requests a change to the terms of the transaction on Tuesday, June 2, the creditor complies with § 1026.19(f)(1)(i) if it provides disclosures reflecting the revised terms of the transaction on or after Tuesday, June 2, assuming that the revised disclosures are also provided no later than three business days before consummation. 19(f)(1)(ii) Timing. 1. Timing. Except as provided in § 1026.19(f)(1)(ii)(B) or (f)(2), the disclosures required by § 1026.19(f)(1)(i) must be received by the consumer no later than three business days before consummation. For example, if consummation is scheduled for Thursday, the creditor satisfies this requirement by hand delivering the disclosures on Monday, assuming each weekday is a business day. For purposes of § 1026.19(f)(1)(ii), the term ‘‘business day’’ means all calendar days except Sundays and legal public holidays referred to in § 1026.2(a)(6). See comment 2(a)(6)–2. See comment 2(a)(6)–1. 2. Receipt of disclosures three business days before consummation. Section 1026.19(f)(1)(ii) provides that the consumer must receive the disclosures no later than three business days before consummation. To comply with this requirement, the creditor must arrange for delivery accordingly. For example, if the consummation is scheduled for Thursday, the creditor satisfies this requirement by delivering the disclosures on Monday by way of electronic mail, provided the requirements of § 1026.17(a)(1) relating to disclosures in electronic form are satisfied and assuming that each weekday is a business day. However, a creditor does not satisfy the requirements of § 1026.19(f)(1)(ii) in this example if the creditor places the disclosures in the mail on Monday. A creditor would satisfy the requirements of § 1026.19(f)(1)(ii) in this example if the creditor places the disclosures in the mail on Thursday of the previous week, because, for the purposes of § 1026.19(f)(1)(ii), Saturday as a business day, pursuant to § 1026.2(a)(6). 3. Timeshares. For loans secured by timeshares, as defined under 11 U.S.C. E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 101(53D), § 1026.19(f)(1)(ii)(B) requires a creditor to ensure that the consumer receives the disclosures required under § 1026.19(f)(1)(i) as soon as reasonably practicable, but no later than consummation. For example, if a consumer provides the creditor with an application, as defined by § 1026.2(a)(3), for a mortgage loan secured by a timeshare on Monday, June 1, the creditor may provide the consumer with the disclosures required by § 1026.19(e)(1)(i) on the same day, pursuant to § 1026.19(e)(1)(iii). If consummation of this transaction is scheduled for Friday, June 5, the creditor may provide the consumer with the disclosures required by § 1026.19(f)(1)(i) on Tuesday, June 2, if doing so is reasonably practicable. If, however, consummation is scheduled for Tuesday, June 2, then the creditor complies with § 1026.19(f)(1)(ii)(B) by providing the disclosures required by § 1026.19(f)(1)(i) on Tuesday, June 2, the day of consummation. If the consumer provides the creditor with an application, as defined by § 1026.2(a)(3), for a mortgage loan secured by a timeshare on Monday, June 1, and wishes to consummate the transaction on that same day, then the creditor complies with § 1026.19(e)(4)(ii) by providing the disclosures required by § 1026.19(f)(1)(i) instead of the disclosures required by § 1026.19(e)(1)(i) on Monday, June 1, and the creditor also complies with § 1026.19(f)(1)(ii)(B) by providing the disclosures required by § 1026.19(f)(1)(i) on Monday, June 1. 19(f)(1)(iii) Delivery. 1. Mail delivery. Section 1026.19(f)(1)(iii) provides that, if any disclosures required under § 1026.19(f)(1)(i) are not provided to the consumer in person, the consumer is presumed to have received the disclosures three business days after they are mailed or delivered to the address specified by the consumer. This is a presumption which may be rebutted by providing evidence that the consumer received the disclosures earlier than three business days. For example, if the creditor sends the disclosures via overnight mail on Monday, and the consumer signs for receipt of the overnight delivery on Tuesday, the creditor could demonstrate that the disclosures were received on Tuesday, thereby rebutting the presumption that the disclosures were received on Thursday, three business days after the disclosures were sent. 2. Electronic delivery. The presumption established in § 1026.19(f)(1)(iii) applies to methods of electronic delivery, such as email. For VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 example, if a creditor sends a disclosure required under § 1026.19(f) via email on Monday, pursuant to § 1026.19(f)(1)(iii) the consumer is presumed to have received the disclosure on Thursday, three business days later. However, the creditor may rebut the presumption by providing evidence that the consumer received the emailed disclosures earlier. Creditors using electronic delivery methods, such as email, must also comply with § 1026.17(a)(1). For example, if a creditor delivers the disclosures required by § 1026.19(f)(1)(i) to a consumer via email, but the creditor did not obtain the consumer’s consent to receive disclosures via email prior to delivering the disclosures, then the creditor does not comply with § 1026.17(a)(1), and the creditor does not comply with § 1026.19(f)(1)(i), assuming the disclosures were not provided in a different manner in accordance with the timing requirements of § 1026.19(f)(1)(ii). 19(f)(1)(iv) Consumer’s waiver of waiting period before consummation. 1. Modification or waiver. A consumer may modify or waive the right to the three-business-day waiting period required by § 1026.19(f)(1)(ii) only after the creditor makes the disclosures required by § 1026.19(f)(1)(i). The consumer must have a bona fide personal financial emergency that necessitates consummating the credit transaction before the end of the waiting period. Whether these conditions are met is determined by the facts surrounding individual situations. The imminent sale of the consumer’s home at foreclosure, where the foreclosure sale will proceed unless loan proceeds are made available to the consumer during the waiting period, is one example of a bona fide personal financial emergency. Each consumer who is primarily liable on the legal obligation must sign the written statement for the waiver to be effective. Alternative 2—Paragraph (f)(1) 19(f) Mortgage loans secured by real property—Final disclosures. 19(f)(1) Provision. 19(f)(1)(i) Scope. 1. Requirements. Section 1026.19(f)(1)(i) requires disclosure of the actual terms of the credit transaction, and the actual costs associated with the settlement of that transaction, for closed-end credit transactions that are secured by real property, other than reverse mortgages subject to § 1026.33. For example, if the creditor requires the consumer to pay money into a reserve account for the future payment of taxes, the creditor must disclose to the consumer the exact PO 00000 Frm 00313 Fmt 4701 Sfmt 4702 51427 amount that the consumer is required to pay into the reserve account. If the disclosures provided pursuant to § 1026.19(f)(1)(i) do not contain the actual terms of the transaction, the creditor does not violate § 1026.19(f)(1)(i) if the creditor provides new disclosures that contain the actual terms of the transaction and complies with the other requirements of § 1026.19(f), including the timing requirements in § 1026.19(f)(1)(ii). For example, if the creditor provides the disclosures required by § 1026.19(f)(1)(i) on Monday, June 1, but the consumer requests a change to the terms of the transaction on Tuesday, June 2, the creditor complies with § 1026.19(f)(1)(i) if it provides disclosures reflecting the revised terms of the transaction on or after Tuesday, June 2, assuming that the revised disclosures are also provided no later than three business days before consummation. 19(f)(1)(ii) Timing. 1. Timing. Except as provided in § 1026.19(f)(1)(ii)(B) or (f)(2), the disclosures required by § 1026.19(f)(1)(i) must be received by the consumer no later than three business days before consummation. For example, if consummation is scheduled for Thursday, the creditor satisfies this requirement by hand delivering the disclosures on Monday, assuming each weekday is a business day. For purposes of § 1026.19(f)(1)(ii), the term ‘‘business day’’ means all calendar days except Sundays and legal public holidays referred to in § 1026.2(a)(6). See comment 2(a)(6)–2. See comment 2(a)(6)–1. 2. Receipt of disclosures three business days before consummation. Section 1026.19(f)(1)(ii) provides that the consumer must receive the disclosures no later than three business days before consummation. To comply with this requirement, the creditor must arrange for delivery accordingly. For example, if the consummation is scheduled for Thursday, the creditor satisfies this requirement by delivering the disclosures on Monday by way of electronic mail, provided the requirements of § 1026.17(a)(1) relating to disclosures in electronic form are satisfied and assuming that each weekday is a business day. However, a creditor does not satisfy the requirements of § 1026.19(f)(1)(ii) in this example if the creditor places the disclosures in the mail on Monday. A creditor would satisfy the requirements of § 1026.19(f)(1)(ii) in this example if the creditor places the disclosures in the mail on Thursday of the previous week, because, for the purposes of E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51428 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules § 1026.19(f)(1)(ii), Saturday as a business day, pursuant to § 1026.2(a)(6). 3. Timeshares. For loans secured by timeshares, as defined under 11 U.S.C. 101(53D), § 1026.19(f)(1)(ii)(B) requires a creditor to ensure that the consumer receives the disclosures required under § 1026.19(f)(1)(i) as soon as reasonably practicable, but no later than consummation. For example, if a consumer provides the creditor with an application, as defined by § 1026.2(a)(3), for a mortgage loan secured by a timeshare on Monday, June 1, the creditor may provide the consumer with the disclosures required by § 1026.19(e)(1)(i) on the same day, pursuant to § 1026.19(e)(1)(iii). If consummation of this transaction is scheduled for Friday, June 5, the creditor may provide the consumer with the disclosures required by § 1026.19(f)(1)(i) on Tuesday, June 2, if doing so is reasonably practicable. If, however, consummation is scheduled for Tuesday, June 2, then the creditor complies with § 1026.19(f)(1)(ii)(B) by providing the disclosures required by § 1026.19(f)(1)(i) on Tuesday, June 2, the day of consummation. If the consumer provides the creditor with an application, as defined by § 1026.2(a)(3), for a mortgage loan secured by a timeshare on Monday, June 1, and wishes to consummate the transaction on that same day, then the creditor complies with § 1026.19(e)(4)(ii) by providing the disclosures required by § 1026.19(f)(1)(i) instead of the disclosures required by § 1026.19(e)(1)(i) on Monday, June 1, and the creditor also complies with § 1026.19(f)(1)(ii)(B) by providing the disclosures required by § 1026.19(f)(1)(i) on Monday, June 1. 19(f)(1)(iii) Delivery. 1. Mail delivery. Section 1026.19(f)(1)(iii) provides that, if any disclosures required under § 1026.19(f)(1)(i) are not provided to the consumer in person, the consumer is presumed to have received the disclosures three business days after they are mailed or delivered to the address specified by the consumer. This is a presumption which may be rebutted by providing evidence that the consumer received the disclosures earlier than three business days. For example, if the creditor sends the disclosures via overnight mail on Monday, and the consumer signs for receipt of the overnight delivery on Tuesday, the creditor could demonstrate that the disclosures were received on Tuesday, thereby rebutting the presumption that the disclosures were received on Thursday, three business days after the disclosures were sent. VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 2. Electronic delivery. The presumption established in § 1026.19(f)(1)(iii) applies to methods of electronic delivery, such as email. For example, if a creditor sends a disclosure required under § 1026.19(f) via email on Monday, pursuant to § 1026.19(f)(1)(iii) the consumer is presumed to have received the disclosure on Thursday, three business days later. However, the creditor may rebut the presumption by providing evidence that the consumer received the emailed disclosures earlier. Creditors using electronic delivery methods, such as email, must also comply with § 1026.17(a)(1). For example, if a creditor delivers the disclosures required by § 1026.19(f)(1)(i) to a consumer via email, but the creditor did not obtain the consumer’s consent to receive disclosures via email prior to delivering the disclosures, then the creditor does not comply with § 1026.17(a)(1), and the creditor does not comply with § 1026.19(f)(1)(i), assuming the disclosures were not provided in a different manner in accordance with the timing requirements of § 1026.19(f)(1)(ii). 19(f)(1)(iv) Consumer’s waiver of waiting period before consummation. 1. Modification or waiver. A consumer may modify or waive the right to the three-business-day waiting period required by § 1026.19(f)(1)(ii) only after the creditor makes the disclosures required by § 1026.19(f)(1)(i). The consumer must have a bona fide personal financial emergency that necessitates consummating the credit transaction before the end of the waiting period. Whether these conditions are met is determined by the facts surrounding individual situations. The imminent sale of the consumer’s home at foreclosure, where the foreclosure sale will proceed unless loan proceeds are made available to the consumer during the waiting period, is one example of a bona fide personal financial emergency. Each consumer who is primarily liable on the legal obligation must sign the written statement for the waiver to be effective. 19(f)(1)(v) Settlement agent 1. Requirements. A settlement agent may provide the disclosures required under § 1026.19(f)(1)(i) instead of the creditor. By assuming this responsibility, the settlement agent becomes responsible for complying with all of the relevant requirements as if it were the creditor, meaning that ‘‘settlement agent’’ should be read in the place of ‘‘creditor’’ for all the relevant provisions of § 1026.19(f), except where such a reading would create responsibility for settlement agent under § 1026.19(e). For example, comment PO 00000 Frm 00314 Fmt 4701 Sfmt 4702 19(f)(1)(ii)–3 states that, if a consumer provides the creditor with an application for a mortgage loan secured by a timeshare on Monday, June 1, the creditor may provide the consumer with the disclosures required by § 1026.19(e)(1)(i) on the same day, pursuant to § 1026.19(e)(1)(iii). ‘‘Settlement agent’’ could not be read in place of ‘‘creditor’’ in comment 19(f)(1)(ii)–3 because the settlement agents are not responsible for the disclosures required by § 1026.19(e)(1)(i). To ensure timely and accurate compliance with the requirements of this section, the creditor and settlement agent need to effectively communicate. 2. Settlement agent responsibilities. If a settlement agent issues any disclosure under § 1026.19(f), the settlement agent must comply with the requirements of § 1026.19(f). For example, the settlement agent must ensure that the consumer received the disclosures required under § 1026.19(f)(1)(i) no later than three business days before consummation in accordance with § 1026.19(f)(1)(ii). The settlement agent may assume the responsibility to provide some or all of the disclosures required by § 1026.19(f). For example, both the creditor and the settlement agent comply with the requirements of § 1026.19(f)(1)(v) if the settlement agent agrees to complete only the portion of the disclosures required by § 1026.19(f)(1)(i) related to closing costs for taxes, title fees, and insurance premiums, the creditor agrees to complete the remainder of the disclosures required by § 1026.19(f)(1)(i), and either the settlement agent or the creditor provides the consumer with one single disclosure form containing all of the information required to be disclosed pursuant to § 1026.19(f)(1)(i), in accordance with the other requirements in § 1026.19(f), such as requirements related to timing and delivery. 3. Creditor responsibilities. If a settlement agent provides disclosures required under § 1026.19(f) in the creditor’s place, the creditor remains responsible under § 1026.19(f) for ensuring that the requirements of § 1026.19(f) have been satisfied. For example, the creditor does not comply with § 1026.19(f) if the settlement agent does not provide the disclosures required under § 1026.19(f)(1)(i), or if the consumer receives the disclosures later than three business days before consummation, in accordance with § 1026.19(f)(1)(ii). The creditor does not satisfy the requirements of § 1026.19(f) if it provides duplicative disclosures. For example, a creditor does not satisfy its obligation by issuing disclosures E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules required under § 1026.19(f) that mirror ones already issued by the settlement agent for the purpose of demonstrating that the consumer received timely disclosures. The creditor is expected to maintain communication with the settlement agent to ensure that the settlement agent is acting in place of the creditor. Disclosures provided by a settlement agent in accordance with § 1026.19(f)(1)(v) satisfy the creditor’s obligation under § 1026.19(f)(1)(i). 4. Shared responsibilities permitted. The settlement agent may assume the responsibility to provide some or all of the disclosures required by § 1026.19(f). For example, the creditor complies with the requirements of § 1026.19(f)(1)(i) and the settlement agent complies with the requirements of § 1026.19(f)(1)(v) if the settlement agent agrees to complete only the portion of the disclosures required by § 1026.19(f)(1)(i) related to closing costs for taxes, title fees, and insurance premiums, the creditor agrees to complete the remainder of the disclosures required by § 1026.19(f)(1)(i), and either the settlement agent or the creditor provides the consumer with one single disclosure form containing all of the information required to be disclosed pursuant to § 1026.19(f)(1)(i), in accordance with the other requirements in § 1026.19(f), such as requirements related to timing and delivery. 19(f)(2) Subsequent changes. 19(f)(2)(i) Changes due to consumer and seller negotiations. 1. Requirements. Section 1026.19(f)(2)(i) provides that the creditor need not comply with the timing requirements in § 1026.19(f)(1)(ii) if the revisions reflect changes to the transaction due to negotiations between the seller and the consumer, and such changes occur after the creditor provides the consumer with the disclosures required by § 1026.19(f)(1)(i). For example: i . Assume consummation is scheduled for Thursday, the consumer received the disclosures required under § 1026.19(f)(1)(i) on Monday, and a walk-through inspection occurs on Wednesday morning. During the walkthrough the consumer discovers damage to the dishwasher. The seller agrees to credit the consumer $500 towards a new dishwasher. The creditor complies with the requirements of § 1026.19(f) if the creditor provides a revised disclosure at or before consummation on Thursday. ii. Assume consummation is scheduled for Friday and on Monday morning the creditor sends the disclosures via overnight delivery to the consumer, ensuring that the consumer receives the disclosures on Tuesday. On VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 Monday night, the seller agrees to sell certain household furnishings to the consumer for an additional $1,000, to be paid at the real estate closing, and the consumer immediately informs the creditor of the change. The creditor may deliver revised disclosures at or before consummation. The creditor does not violate § 1026.19(f) because the change to the transaction resulting from negotiations between the seller and consumer occurred after the creditor provided the final disclosures, regardless of the fact that the change occurred before the consumer had received the final disclosures. 19(f)(2)(ii) Changes to the amount actually paid by the consumer. 1. Requirements. Section 1026.19(f)(2)(ii) states that the creditor may provide revised disclosures without complying with the timing requirements in § 1026.19(f)(1)(ii) if the amount actually paid by the consumer does not exceed the amount disclosed pursuant to § 1026.19(f)(1)(i) by more than $100, provided that the creditor delivers revised disclosures at or before consummation. For example, assume the disclosures provided pursuant to § 1026.19(f)(1)(i) reflect $18,700 as the total amount the consumer must pay at the real estate closing. If the disclosures reflect a homeowner’s insurance premium of $800, but the premium is actually $850, the $50 understatement is not a violation of § 1026.19(f)(1)(i). In such case, the creditor complies with § 1026.19(f)(1)(i) by providing revised disclosures to the consumer at or before consummation, pursuant to § 1026.19(f)(2)(ii), reflecting the revised $850 homeowner’s insurance premium and the revised $18,750 as the total amount the consumer must pay at the real estate closing. See also comment 38(i)(9)(ii)–1. 2. Other adjustments permitted. Revised disclosures provided at consummation may reflect adjustments pursuant to both § 1026.19(f)(2)(i) and (f)(2)(ii). Thus, although § 1026.19(f)(2)(ii) limits the difference between the amount disclosed pursuant to § 1026.19(f)(1)(i) and the amount actually paid by the consumer to $100, the amount actually paid by the consumer may vary by more than $100 to the extent permitted by § 1026.19(f)(2)(i). For example, if the disclosures reflect a homeowner’s insurance premium of $800, but the premium is actually $850, the $50 understatement is not a violation of § 1026.19(f)(1)(i). If, in addition to this understatement, the total amount due from the buyer increases by $500 as a result of consumer and seller negotiations, the creditor complies with PO 00000 Frm 00315 Fmt 4701 Sfmt 4702 51429 § 1026.19(f)(1)(i) by providing revised disclosures reflecting the $550 increase to the consumer at or before closing, pursuant to § 1026.19(f)(2)(ii). However, to comply with § 1026.25, the creditor must maintain documentation demonstrating that $500 of the increase was due to negotiations between the consumer and the seller under § 1026.19(f)(2)(i), and that the remainder of the increase complied with § 1026.19(f)(2)(ii). 19(f)(2)(iii) Changes due to events occurring after consummation. 1. Requirements. Section 1026.19(f)(2)(iii) requires the creditor to deliver revised disclosures within three business days of an event that occurs after consummation that causes the disclosures to become inaccurate, provided such inaccuracy results solely from payments to a government entity in connection with the transaction. For example: i. Assume consummation occurs on a Monday and the security instrument is recorded on Tuesday, the day after consummation. If the fees charged by the recorder’s office differ from those disclosed pursuant to § 1026.19(f)(1)(i), the creditor complies with § 1026.19(f)(1)(i) by revising the disclosures accordingly and delivering or placing them in the mail no later than Friday, three business days after Tuesday. However, if the fees charged by the recorder’s office differ from those disclosed pursuant to § 1026.19(f)(1)(i), but the security instrument is not recorded until the 28th day after consummation, the creditor does not comply with § 1026.19(f)(1)(i) by placing the revised disclosures in the mail on that day, unless the creditor otherwise ensures that the consumer receives the revised disclosures by no later than 30 days after consummation, pursuant to § 1026.19(f)(2)(iii). ii. Assume consummation occurs on a Monday and the security instrument is recorded on Tuesday, the day after consummation. If the transfer taxes owed to the State differ from those disclosed pursuant to § 1026.19(f)(1)(i), then the creditor complies with § 1026.19(f)(1)(i) by revising the disclosures accordingly and delivering or placing them in the mail no later than Friday, three business days after Tuesday, and the consumer receives them no later than 30 days after consummation, pursuant to § 1026.19(f)(2)(iii). iii. Assume consummation occurs on a Monday and the security instrument is recorded on Tuesday, the day after consummation. During the recording process it is discovered that the property is subject to an unpaid $500 E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51430 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules nuisance abatement assessment, which was not disclosed pursuant to § 1026.19(f)(1)(i). The creditor complies with § 1026.19(f)(1)(i) by revising the disclosures accordingly and delivering or placing them in the mail no later than Friday, three business days after Tuesday, and the consumer receives them no later than 30 days after consummation, pursuant to § 1026.19(f)(2)(iii). iv. Assume consummation occurs on a Monday and the security instrument is recorded on Tuesday, the day after consummation. Assume further that ten days after consummation the municipality in which the property is located raises property taxes. Section 1026.19(f)(2)(iii) does not require the creditor to provide the consumer with a revised version of the disclosure required pursuant to § 1026.19(f)(1)(i), because the increase in property tax rates is not in connection with the consumer’s transaction. 19(f)(2)(iv) Changes due to clerical errors. 1. Requirements. Section 1026.19(f)(2)(iv) requires the creditor to deliver revised disclosures to the consumer if the disclosures provided pursuant to § 1026.19(f)(1)(i) contain non-numeric clerical errors. An error is considered clerical if it does not affect a numerical disclosure and does not affect requirements imposed by § 1026.19(e) or (f). For example, if the disclosure identifies the incorrect settlement service provider as the recipient of a payment, then § 1026.19(f)(2)(iv) requires the creditor to provide revised disclosures reflecting the corrected non-numeric disclosure as soon as reasonably practicable, but no later than 30 days after consummation. 19(f)(2)(v) Refunds related to the good faith analysis. 1. Requirements. Section 1026.19(f)(2)(v) provides that, if amounts paid at closing exceed the amounts specified under § 1026.19(e)(3)(i) or (ii), the creditor does not violate § 1026.19(e)(1)(i) if the creditor refunds the excess to the consumer as soon as reasonably practicable and no later than 30 days after consummation, and the creditor does not violate § 1026.19(f)(1)(i) if the creditor delivers disclosures revised to reflect the refund of such excess as soon as reasonably practicable and no later than 30 days after consummation. For example, assume that at closing the consumer must pay four itemized charges that are subject to the good faith determination under § 1026.19(e)(3)(i). If the actual amounts paid by the consumer for the four itemized charges subject to § 1026.19(e)(3)(i) exceeded VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 their respective estimates on the disclosures required under § 1026.19(e)(1)(i) by $30, $25, $25, and $10, then there would be a $90 excess amount above the limitations prescribed by § 1026.19(e)(3)(i). If, further, the amounts paid by the consumer for services that are subject to the good faith determination under § 1026.19(e)(3)(ii) totaled $1,190, but the respective estimates on the disclosures required under § 1026.19(e)(1)(i) totaled only $1,000, then there would be a $90 excess amount above the limitations prescribed by § 1026.19(e)(3)(ii). Consequently, to comply with § 1026.19(f)(1)(i), the creditor must provide revised disclosures to the consumer reflecting the $180 refund of the excess amount collected. See comment 38(h)(3)–2 for additional guidance on disclosing refunds such as these. 19(f)(3) Charges disclosed. 19(f)(3)(i) Actual charge. 1. Requirement. Section 1026.19(f)(3)(i) provides the general rule that the amount imposed on the consumer for any settlement service shall not exceed the amount actually received by the service provider for that service. Except as otherwise provided in § 1026.19(f)(3)(ii), a creditor violates § 1026.19(f)(3)(i) if the amount imposed upon the consumer exceeds the amount actually received by the service provider for that service. 19(f)(3)(ii) Average charge. 1. Requirements. Average-charge pricing is the exception to the rule in § 1026.19(f)(3)(i) that consumers shall not pay more than the exact amount charged by a settlement service provider for the performance of that service. See comment 19(f)(3)(i)–1. If the creditor develops representative samples of specific settlement costs for a particular class of transactions, the creditor may charge the average cost for that settlement service instead of the actual cost for such transactions. An averagecharge program may not be used in a way that inflates the cost for settlement services overall. 2. Defining the class of transactions. Section 1026.19(f)(3)(ii)(B) requires a creditor to use an appropriate period of time, appropriate geographic area, and appropriate type of loan to define a particular class of transaction. For purposes of § 1026.19(f)(3)(ii)(B), a period of time is appropriate if the sample size is sufficient to obtain a representative sample, provided that the period of time is not less than 30 days and not more than six months. For purposes of § 1026.19(f)(3)(ii)(B), a geographic area and loan type are appropriate if the sample size is PO 00000 Frm 00316 Fmt 4701 Sfmt 4702 sufficient to obtain a representative sample, provided that the area and loan type are not defined in a way that pools costs between dissimilar populations. For example: i. Assume a creditor defines a geographic area that contains two subdivisions, one with a median appraisal cost of $200, and the other with a median appraisal cost of $1,000. This geographic area would not satisfy the requirements of § 1026.19(f)(3)(ii) because the cost characteristics of the two populations are dissimilar. However, a geographic area would be appropriate if both subdivisions had a relatively normal distribution of appraisal costs, even if the distribution ranges from below $200 to above $1,000. ii. Assume a creditor defines a type of loan that includes two distinct rate products. The median recording fees for one product are $80, while the median recording fees for the other product are $130. This definition of loan type would not satisfy the requirements of § 1026.19(f)(3)(ii) because the cost characteristics of the two products are dissimilar. However, a type of loan would be appropriate if both products had a relatively normal distribution of recording fees, even if the distribution ranges from below $80 to above $130. 3. Uniform use. If a creditor chooses to use an average charge for a settlement service for a particular loan within a class, § 1026.19(f)(3)(ii)(C) requires the creditor to use that average charge for that service on all loans within the class. For example: i. Assume a creditor elects to use an average charge for appraisal fees. The creditor defines a class of transactions as all fixed-rate loans originated between January 1 and April 30 secured by real property located within a particular metropolitan statistical area. The creditor must then charge the average appraisal charge to all consumers obtaining fixed-rate loans originated between May 1 and August 30 secured by real property located within the same metropolitan statistical area. ii. The example in paragraph i of this comment assumes that a consumer would not be required to pay the average appraisal charge unless an appraisal was required on that particular loan. Using the example above, if a consumer applies for a loan within the defined class, but already has an appraisal report acceptable to the creditor from a prior loan application, the creditor may not charge the consumer the average appraisal fee because an acceptable appraisal report has already been obtained for the consumer’s application. Similarly, E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules although the creditor defined the class broadly to include all fixed-rate loans, the creditor may not require the consumer to pay the average appraisal charge if the particular fixed-rate loan program the consumer applied for does not require an appraisal. 4. Average amount paid. The average charge must correspond to the average amount paid by or imposed on consumers and sellers during the prior defined time period. For example, assume a creditor calculates an average tax certification fee based on four-month periods starting January 1 of each year. The tax certification fees charged to a consumer on May 20 may not exceed the average tax certification fee paid from January 1 through April 30. A creditor may delay the period by a reasonable amount of time if such delay is needed to perform the necessary analysis and update the affected systems, provided that each subsequent period is scheduled accordingly. For example, a creditor may define a fourmonth period from January 1 to April 30 and begin using the average charge from that period on May 15, provided the average charge is used until September 15, at which time the average charge for the period from May 1 to August 31 becomes effective. 5. Adjustments based on retrospective analysis required. Creditors using average charges must ensure that the total amount paid by or imposed on consumers for a service does not exceed the total amount paid to the providers of that service for the particular class of transactions. A creditor may find that, even though it developed an averagecost pricing program in accordance with the requirements of § 1026.19(f)(3)(ii), over time it has collected more from consumers than it has paid to settlement service providers. For example, assume a creditor defines a class of transactions and uses that class to develop an average charge of $135 for pest inspections. The creditor then charges $135 per transaction for 100 transactions from January 1 through April 30, but the actual average cost to the creditor of pest inspections during this period is $115. The creditor then decreases the average charge for the May to August period to account for the lower average cost during the January to April period. At this point, the creditor has collected $2,000 more than it has paid to settlement service providers for pest inspections. The creditor then charges $115 per transaction for 70 transactions from May 1 to August 30, but the actual average cost to the creditor of pest inspections during this period is $125. Based on the average cost to the creditor from the May to VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 August period, the average charge to the consumer for the September to December period should be $125. However, while the creditor spent $700 more than it collected during the May to August period, it collected $1,300 more than it spent from January to August. In cases such as these, the creditor remains responsible for ensuring that the amount collected from consumers does not exceed the total amounts paid for the corresponding settlement services over time. The creditor may develop a variety of methods that achieve this outcome. For example, the creditor may choose to refund the proportional overage paid to the affected consumers. Or the creditor may choose to factor in the excess amount collected to decrease the average charge for an upcoming period. Although any method may comply with this requirement, a creditor is deemed to have complied if it defines a six-month time period and establishes a rolling monthly period of reevaluation. For example, assume a creditor defines a six-month time period from January 1 to June 30 and the creditor uses the average charge starting July 1. If, at the end of July, the creditor recalculates the average cost from February 1 to July 31, and then uses the recalculated average cost for transactions starting August 1, the creditor complies with the requirements of § 1026.19(f)(3)(ii), even if the creditor actually collected more from consumers than was paid to providers over time. 6. Adjustments based on prospective analysis permitted, but not required. A creditor may prospectively adjust average charges if it develops a statistically reliable and accurate method for doing so. For example, assume a creditor calculates average charges based on two time periods: winter (October 1 to March 31), and summer (April 1 to September 30). If the creditor can demonstrate that the average cost of a particular settlement service is always at least 15 percent more expensive during the winter period than the summer period, the creditor may increase the average charge for the next winter period by 15 percent over the average cost for the current summer period, provided, however, that the creditor performs retrospective periodic adjustments, as explained in comment 19(f)(3)(ii)–5. 7. Charges that vary with loan amount or property value. An average charge may not be used for any charge that varies according to the loan amount or property value. For example, an average charge may not be used for a transfer tax if the transfer tax is calculated as a percentage of the loan amount or PO 00000 Frm 00317 Fmt 4701 Sfmt 4702 51431 property value. Average charges also may not be used for any insurance premium. For example, average charges may not be used for title insurance or for either the upfront premium or initial escrow deposit for hazard insurance. 8. Prohibited by law. An average charge may not be used where prohibited by any applicable State or local law. For example, a creditor may not impose an average charge for an appraisal if applicable law prohibits creditors from collecting any amount in excess of the actual cost of the appraisal. 9. Documentation required. To comply with § 1026.25, a creditor must retain all documentation used to calculate the average charge for a particular class of transactions for at least two years after any settlement for which that average charge was used. The documentation must support the components and methods of calculation. For example, if a creditor calculates an average charge for a particular county recording fee by simply averaging all of the relevant fees paid in the prior month, the creditor need only retain the receipts for the individual recording fees, a ledger demonstrating that the total amount received did not exceed the total amount paid over time, and a document detailing the calculation. However, if a creditor develops complex algorithms for determining averages, not only must the creditor maintain the underlying receipts and ledgers, but the creditor must maintain documentation sufficiently detailed to allow an examiner to verify the accuracy of the calculations. 19(f)(4) Transactions involving a seller. 19(f)(4)(ii) Timing. 1. Requirement. Section 1026.19(f)(4)(ii) provides that the person conducting the closing shall provide the disclosures required under § 1026.19(f)(4)(i) no later than the day of consummation. If an event occurs after consummation that causes such disclosures to become inaccurate and such inaccuracy results solely from payments to a government entity, the person conducting the closing shall deliver revised disclosures to the seller no later than 30 days after consummation. Section 1026.19(f)(4)(i) requires disclosure of the items that relate to the seller’s transaction. Thus, the person conducting the closing need only redisclose if an item related to the seller’s transaction becomes inaccurate and such inaccuracy results solely from payments to a government entity. For example, assume a transaction where the seller pays the transfer tax, the consummation occurs on Monday, and the security instrument is recorded on E:\FR\FM\23AUP2.SGM 23AUP2 51432 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Tuesday, the day after consummation. If the transfer taxes owed to the State differ from those disclosed pursuant to § 1026.19(f)(4)(i), the person conducting the settlement complies with § 1026.19(f)(4)(ii) by revising the disclosures accordingly and providing them to the seller no later than 30 days after consummation. 19(g) Special information booklet at time of application. 19(g)(1) Creditor to provide special information booklet. 1. Revision of booklet. The Bureau may, after publishing a notice in the Federal Register, issue a revised or separate special information booklet that addresses transactions subject to § 1026.19(g). The Bureau may also choose to permit the forms or booklets of other Federal agencies. In such an event, the availability of the booklet or alternate materials for these transactions will be set forth in a notice in the Federal Register. The current version of the booklet can be accessed on the Bureau’s Web site, www. consumerfinance.gov/learnmore. (2.) Multiple applicants. When two or more persons apply together for a loan, the creditor complies with § 1026.19(g) if the creditor provides a copy of the booklet to one of the persons applying. 19(g)(2) Permissible changes. 1. Reproduction. The special information booklet may be reproduced in any form, provided that no changes are made, except as otherwise provided under § 1026.19(g). Provision of the special information booklet as a part of a larger document does not satisfy the requirements of § 1026.19(g). Any color, size and quality of paper, type of print, and method of reproduction may be used so long as the booklet is clearly legible. 2. Other permissible changes. The special information booklet may be translated into languages other than English. Changes to the booklet, other those specified in § 1026.19(g)(2)(i) through (iv), do not comply with § 1026.19(g).ﬁ Section 1026.22—Determination of Annual Percentage Rate 22(a) Accuracy of annual percentage rate. * * * * * 22(a)(4) Mortgage loans. 1. Example. If a creditor improperly omits a $75 fee from the finance charge on a regular transaction, the understated finance charge is considered accurate under § 1026.18(d)(1) ﬂor 1026.38(o)(2), as applicableﬁ, and the annual percentage rate corresponding to that understated finance charge also is considered accurate even if it falls VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 outside the tolerance of 1⁄8 of 1 percentage point provided under § 1026.22(a)(2). Because a $75 error was made, an annual percentage rate corresponding to a $100 understatement of the finance charge would not be considered accurate. * * * * * Section 1026.24—Advertising * * * * * 24(d) Advertisement of terms that require additional disclosures. * * * * * 24(d)(2) Additional terms. * * * * * 2. Disclosure of repayment terms. The phrase ‘‘terms of repayment’’ generally has the same meaning as the ‘‘payment schedule’’ required to be disclosed under § 1026.18(g)ﬂ, the interest rate and payment summary table required to be disclosed pursuant to § 1026.18(s), or the projected payments table required to be disclosed pursuant to §§ 1026.37(c) and 1026.38(c), as applicableﬁ. Section 1026.24(d)(2)(ii) provides flexibility to creditors in making this disclosure for advertising purposes. Repayment terms may be expressed in a variety of ways in addition to an exact repayment schedule; this is particularly true for advertisements that do not contemplate a single specific transaction. Repayment terms, however, must reflect the consumer’s repayment obligations over the full term of the loan, including any balloon payment, see comment 24(d)(2)–3, not just the repayment terms that will apply for a limited period of time. For example: i. A creditor may use a unit-cost approach in making the required disclosure, such as ‘‘48 monthly payments of $27.83 per $1,000 borrowed.’’ ii. In an advertisement for credit secured by a dwelling, when any series of payments varies because of the inclusion of mortgage insurance premiums, a creditor may state the number and timing of payments, the fact that payments do not include amounts for mortgage insurance premiums, and that the actual payment obligation will be higher. iii. In an advertisement for credit secured by a dwelling, when one series of monthly payments will apply for a limited period of time followed by a series of higher monthly payments for the remaining term of the loan, the advertisement must state the number and time period of each series of payments, and the amounts of each of those payments. For this purpose, the creditor must assume that the consumer PO 00000 Frm 00318 Fmt 4701 Sfmt 4702 makes the lower series of payments for the maximum allowable period of time. * * * * * Subpart D—Miscellaneous Section 1026.25—Record Retention * * * * * ﬂ25(c) Records related to certain requirements for mortgage loans. 25(c)(1) Records related to requirements for loans secured by real property. 1. Evidence of required actions. The creditor must retain evidence that it performed the required actions as well as made the required disclosures. This includes, for example, evidence that the creditor properly differentiated between affiliated and independent third party settlement service providers for determining good faith under § 1026.19(e)(3); evidence that the creditor properly documented the reason for revisions under § 1026.19(e)(3)(iv); or evidence that the creditor properly calculated average cost under § 1026.19(f)(3)(ii). 2. Mortgage brokers. See comment 19(e)(1)(ii)–2 regarding instances where § 1026.19(e) imposes § 1026.25(c) responsibilities on mortgage brokers. 25(c)(1)(iii) Electronic records. (1.) Other recordkeeping formats may also be required. The requirements of § 1026.25(c)(1)(iii) are in addition to any other recordkeeping formats that may be required by administrative agencies responsible for enforcing the regulation.ﬁ * * * * * Section 1026.28—Effect on State Laws 28(a) Inconsistent disclosure requirements. 1. General. There are three sets of preemption criteria: one applies to the general disclosure and advertising rules of the regulation, and two apply to the credit billing provisions. Section 1026.28 also provides for Bureau determinations of preemption. ﬂFor purposes of determining whether a State law is inconsistent with the requirements of sections 4 and 5 of RESPA (other than the RESPA section 5(c) requirements regarding provision of a list of certified homeownership counselors) and §§ 1026.19(e) and (f), 1026.37, and 1026.38 under § 1026.28, any reference to ‘‘creditor’’ in § 1026.28 or this commentary includes a creditor, a mortgage broker, or a closing agent, as applicable.ﬁ * * * * * Section 1026.29—State Exemptions 29(a) General rule. * * * * * E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 2. Substantial similarity. The ‘‘substantially similar’’ standard requires that State statutory or regulatory provisions and State interpretations of those provisions be generally the same as the Federal Act and Regulation Z. This includes the requirement that State provisions for reimbursement to consumers for overcharges be at least equivalent to those required in section 108 of the Act. A State will be eligible for an exemption even if its law covers classes of transactions not covered by the Federal law. For example, if a State’s law covers agricultural credit, this will not prevent the Bureau from granting an exemption for consumer credit, even though agricultural credit is not covered by the Federal law. ﬂFor transactions subject to § 1026.19(e) and (f), § 1026.29(a)(1) requires that the State statutory or regulatory provisions and State interpretations of those provisions require disclosures that are generally the same as the disclosures required by § 1026.19(e) and (f), with form and content as prescribed by §§ 1026.37 and 1026.38.ﬁ * * * * * 4. Exemptions granted. ﬂi.ﬁ The Bureau recognizes exemptions granted by the Board of Governors of the Federal Reserve System prior to July 21, 2011, until and unless the Bureau makes and publishes any contrary determination. Effective October 1, 1982, the Board of Governors granted the following exemptions from portions of the revised Truth in Lending Act: øi.¿ ﬂA.ﬁ Maine. Credit or lease transactions subject to the Maine Consumer Credit Code and its implementing regulations are exempt from chapters 2, 4 and 5 of the Federal Act. (The exemption does not apply to transactions in which a Federally chartered institution is a creditor or lessor.) øii.¿ ﬂB.ﬁ Connecticut. Credit transactions subject to the Connecticut Truth in Lending Act are exempt from chapters 2 and 4 of the Federal Act. (The exemption does not apply to transactions in which a Federally chartered institution is a creditor.) øiii.¿ ﬂC.ﬁ Massachusetts. Credit transactions subject to the Massachusetts Truth in Lending Act are exempt from chapters 2 and 4 of the Federal Act. (The exemption does not apply to transactions in which a Federally chartered institution is a creditor.) øiv.¿ ﬂD.ﬁ Oklahoma. Credit or lease transactions subject to the Oklahoma Consumer Credit Code are exempt from chapters 2 and 5 of the VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 Federal Act. (The exemption does not apply to sections 132 through 135 of the Federal Act, nor does it apply to transactions in which a Federally chartered institution is a creditor or lessor.) øv.¿ ﬂE.ﬁ Wyoming. Credit transactions subject to the Wyoming Consumer Credit Code are exempt from chapter 2 of the Federal Act. (The exemption does not apply to transactions in which a Federally chartered institution is a creditor.) ﬂii. Although RESPA and its implementing Regulation X do not provide procedures for granting State exemptions, for transactions subject to § 1026.19(e) and (f), compliance with the requirements of §§ 1026.19(e) and (f), 1026.37, and 1026.38 satisfies the requirements of sections 4 and 5 of the Real Estate Settlement Procedures Act (RESPA) (other than the RESPA section 5(c) requirements regarding provision of a list of certified homeownership counselors). If such a transaction is subject to one of the State exemptions previously granted by the Board of Governors and noted in comment 29(a)– 4.i above, however, then compliance with the requirements of any State laws and regulations incorporating the requirements of §§ 1026.19(e) and (f), 1026.37, and 1026.38 likewise satisfies the requirements of sections 4 and 5 of RESPA (other than the RESPA section 5(c) requirements regarding provision of a list of certified homeownership counselors) and the provisions of Regulation X (12 CFR part 1024) implementing those sections of RESPA.ﬁ * * * * * ﬂSection 1026.37—Content of Disclosures for Certain Mortgage Transactions (Loan Estimate) 1. As applicable. The disclosures required by § 1026.37 are to be made only as applicable, except as otherwise provided in § 1026.37(o). A disclosure that is not applicable to a particular transaction generally may be eliminated entirely. For example, in a transaction for which the creditor does not require homeowner’s insurance, the disclosure required by § 1026.37(m)(3) need not be included. Alternatively, the creditor generally may include disclosures that are not applicable to the transaction and note that they are ‘‘not applicable’’ or ‘‘N/A.’’ As provided in § 1026.37(i) and (j), however, the adjustable payment and adjustable interest rate tables required by those paragraphs may be included only if those disclosures are applicable to the transaction and otherwise must be excluded. PO 00000 Frm 00319 Fmt 4701 Sfmt 4702 51433 2. Format. See § 1026.37(o) and its commentary for guidance on the proper format to be used in making the disclosures, as well as permissible modifications. 37(a) General information. 37(a)(3) Creditor. 1. Multiple creditors. For transactions with multiple creditors, see § 1026.17(d) and comment 17(d)–1 for further guidance. The creditor making the disclosures, however, must be identified as the creditor for purposes of § 1026.37(a)(3). 2. Mortgage broker as loan originator. In transactions involving a mortgage broker, the name of the creditor must be disclosed, if known, even if the mortgage broker provides the disclosures to the consumer. 37(a)(4) Date issued. 1. Applicable date. Section 1026.37(a)(4) requires disclosure of the date the creditor mails or delivers the Loan Estimate to the consumer. The creditor’s method of delivery does not affect the date issued. 37(a)(5) Applicants. 1. Multiple consumers. If there is more than one consumer applying for the credit, § 1026.37(a)(5) requires disclosure of the name and mailing address of each consumer on the Loan Estimate. If the number of consumers applying for the credit does not fit in the space allocated on the Loan Estimate, an additional page with that information may be appended to the end of the form. For additional information on permissible changes, see § 1026.37(o) and its commentary. 37(a)(6) Property. 1. Alternate property address. Section 1026.37(a)(6) requires disclosure of the street address, if available, and the city, state, and zip code for the property that secures the credit. If there is no street address, § 1026.37(a)(6) requires disclosure of a legal description or other location information for the property; however, disclosure of a zip code is required in all instances. 37(a)(7) Sale price. 1. Estimated property value. In transactions where there is no seller, such as in a refinancing, § 1026.37(a)(7)(ii) requires the creditor to disclose the estimated value of the property identified in § 1026.37(a)(6) at the time the disclosure is issued to the consumer. The creditor may use the estimate provided by the consumer at application, or if it has performed its own estimate of the property value by the time the disclosure is provided to the consumer, use that estimate. If the creditor has obtained any appraisals or valuations of the property for the application at the time the disclosure is E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51434 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules issued to the consumer, the value determined by the appraisal or valuation to be used during underwriting for the application is disclosed as the estimated property value. 37(a)(8) Loan term. 1. Adjustable loan term. Section 1026.37(a)(8) requires disclosure of the term to maturity of the credit transaction. If the term to maturity is adjustable, to comply with § 1026.37(a)(8), the possible range of the loan term, including the maximum number of years possible under the terms of the legal obligation, must be disclosed. For example, if the loan term depends on the value of interest rate adjustments during the term of the loan, to calculate the maximum loan term, the creditor should assume that the interest rate rises as rapidly as possible after consummation, taking into account the terms of the legal obligation, including any applicable caps on interest rate adjustments and lifetime interest rate cap. 37(a)(9) Purpose. 1. General. Section 1026.37(a)(9) requires disclosure of the consumer’s intended use of the credit extended. In ascertaining the consumer’s intended use, § 1026.37(a)(9) requires the creditor to consider all relevant information known to the creditor at the time of the disclosure. To the extent the purpose is not known, the creditor may rely on the consumer’s stated purpose. The following examples illustrate when each of the permissible purposes should be disclosed: i. Purchase. The consumer intends to use the credit to purchase the property. ii. Refinance. The consumer refinances an existing obligation already secured by the consumer’s dwelling to change the rate, term, or other loan features and may or may not receive cash from the transaction. For example, in a refinance with no cash provided, the new amount financed does not exceed the unpaid principal balance, any earned unpaid finance charge on the existing debt, and amounts attributed solely to the costs of the refinancing. Conversely, in a refinance with cash provided, the consumer refinances an existing mortgage obligation and receives money from the transaction that is in addition to the funds used to pay the unpaid principal balance, any earned unpaid finance charge on the existing debt, and amounts attributed solely to the costs of the refinancing. In such a transaction, the consumer may, for example, use the newly-extended credit to pay off the balance of the existing mortgage and VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 other consumer debt, such as a credit card balance. iii. Construction. Section 1026.37(a)(9)(iii) requires the creditor to disclose that the loan is for construction in transactions where the creditor extends credit to finance only the cost of construction (‘‘construction-only’’ loan), whether it is new construction or a renovation project, and in transactions where a multiple advance loan may be permanently financed by the same creditor (‘‘construction-to-permanent’’ loan). In a construction-only loan, the borrower may be required to make interest-only payments during the loan term with the balance commonly due at the end of the construction project. For additional guidance on disclosing construction-to-permanent loans, see § 1026.17(c)(6)(ii) and comments 17(c)(6)–2 and –3. iv. Home equity loan. The creditor is required to disclose that the credit is for a ‘‘home equity loan’’ if the creditor extends credit for any purpose other than a purchase, refinancing, or construction. This disclosure applies whether the property that secures the loan is a first or subordinate lien. 2. Refinance coverage. The disclosure requirements under § 1026.37(a)(9)(ii) apply to credit transactions that meet the definition of a refinancing under § 1026.20(a) but that are made by any creditor. This differs from § 1026.20(a), which applies only to refinancings undertaken by the original creditor or a holder or servicer of the original debt. 37(a)(10) Product. 1. No features. If the loan product disclosed pursuant to § 1026.37(a)(10) does not include any of the features described in § 1026.37(a)(10)(ii), only the product type and introductory and adjustment periods, if applicable, are disclosed. For example: i. Adjustable rate. When disclosing an adjustable rate product, the disclosure of the loan product must be preceded by the length of the introductory period and the frequency of the adjustment periods thereafter. Thus, for example, if the loan product is an adjustable rate with an introductory rate that remains the same for the first five years of the loan term and then adjusts every three years starting in year six, the disclosure required by § 1026.37(10)(i) is ‘‘5/3 Adjustable Rate.’’ ii. Step rate. If the loan product is a step rate with an introductory interest rate that lasts for ten years and adjusts every year thereafter for the next five years, and then adjusts every three years for the next 15 years, the disclosure required by § 1026.37(a)(10)(i) is ‘‘10/1/ 3 Step Rate.’’ PO 00000 Frm 00320 Fmt 4701 Sfmt 4702 iii. Fixed rate. If the loan product is not an adjustable rate or a step rate, as described in § 1026.37(a)(10)(i), even if an additional feature described in § 1026.37(a)(10)(ii) may change the consumer’s periodic payment, the disclosure required by § 1026.37(a)(10)(i) is ‘‘Fixed Rate.’’ 2. Additional features. When disclosing a loan product with at least one of the features described in § 1026.37(a)(10)(ii), § 1026.37(a)(10)(iii) and (iv) requires the disclosure of only the first applicable feature in the order of § 1026.37(a)(10)(ii) and that it be preceded by the time period or the length of the introductory period and the frequency of the adjustment periods, as applicable, followed by a description of the loan product and its time period as provided for in § 1026.37(a)(10)(i). For example: i. Negative amortization. Some loan products, such as payment-option loans, permit the borrower to make payments that are insufficient to cover all of the interest accrued, and the unpaid interest is added to the principal balance. Where the loan product includes a loan feature that may cause the loan balance to increase, the disclosure required by § 1026.37(a)(10)(ii)(A) is preceded by the time period that the negative amortization is permitted (e.g., ‘‘2 Year Negative Amortization’’), followed by the loan product type. Thus, a fixed-rate product with a step-payment feature for the first two years of the legal obligation that may negatively amortize is disclosed as ‘‘2 Year Negative Amortization, Fixed Rate.’’ ii. Interest only. When disclosing an ‘‘Interest Only’’ feature, as that term is defined in § 1026.18(s)(7)(iv), the applicable time period must precede the label ‘‘Interest Only.’’ Thus, a fixed rate loan with only interest due for the first five years of the loan term is disclosed as ‘‘5 Year Interest Only, Fixed Rate.’’ If the interest only feature fails to cover the total interest due then the disclosure must reference the negative amortization feature and not the interest-only feature (i.e., ‘‘5 Year Negative Amortization, Fixed Rate’’). iii. Step payment. When disclosing a step payment feature (which is sometimes also referred to as a graduated payment), the period of time over which the scheduled payments will increase must precede the label ‘‘Step Payment’’ (e.g., ‘‘5 Year Step Payment’’) followed by the name of the loan product. Thus, a fixed-rate mortgage subject to a 5-year steppayment plan is disclosed as a ‘‘5-Year Step Payment, Fixed Rate.’’ iv. Balloon payment. If a loan product includes a ‘‘balloon payment,’’ as that E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules term is defined in § 1026.37(b)(5), the disclosure of the balloon payment feature, including the year the payment is due, precedes the disclosure of the loan product. Thus, if the loan product is an adjustable rate with an introductory rate that lasts for three years and adjusts each year thereafter until the balloon payment is due in the seventh year of the loan term, the disclosure required is ‘‘Year 7 Balloon Payment, 3/1 Step Rate.’’ v. Seasonal payment. If a loan product includes a seasonal payment feature, § 1026.37(a)(10)(ii)(E) requires that the creditor disclose the feature. The feature is not, however, required to be disclosed with any preceding time period. Disclosure of the label ‘‘Seasonal Payment’’ without any preceding number of years satisfies this requirement. 37(a)(11) Loan type. 1. Other loan type. If the transaction is a type other than a conventional, FHA, or VA loan, § 1026.37(a)(11) requires the creditor to provide a name or brief description of the loan type. For example, a loan that is guaranteed or funded by the Federal government under the Rural Housing Service (RHS) of the U.S. Department of Agriculture is required to be disclosed under the subcategory ‘‘Other,’’ because it is guaranteed or funded by a Federal agency, and therefore is not ‘‘Conventional,’’ but is neither a ‘‘VA’’ nor an ‘‘FHA’’ loan. Section 1026.37(a)(11)(iv) requires a brief description of the loan type (e.g., ‘‘RHS’’). A loan that is insured or guaranteed by a State agency must also be disclosed as ‘‘Other.’’ 37(a)(12) Loan identification number (Loan ID #). 1. Unique identifier. The unique loan identification number is determined by the lender. Because the number must be unique under § 1026.37(a)(12), different, but related, loan transactions with a single creditor may not share the same loan identification number. 37(a)(13) Rate lock. 1. Interest rate. For purposes of § 1026.37(a)(13), the interest rate is set for a specific period of time if the rate will not vary during that period, other than under circumstances that are described in any rate-lock agreement between the creditor and consumer. 2. Expiration date. Whether or not the interest rate is set for a specific period of time, § 1026.37(a)(13) requires the creditor to provide the date and time the terms and costs disclosed in the Loan Estimate expire if the transaction is not yet consummated, or the terms and costs are not otherwise accepted or extended. VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 3. Time zone. The disclosures required by § 1026.37(13) requires the applicable time zone for all times provided, as determined by the creditor. For example, if the creditor is located in New York and determines that the Loan Estimate will expire at 5:00 p.m. in the time zone applicable to its location, while standard time is in effect, the disclosure must include a reference to the Eastern time zone (i.e., 5:00 p.m. EST). 37(b) Loan terms. 1. Legal obligation. The disclosures required by § 1026.37 must reflect good faith estimates of the credit terms to which the parties will be legally bound for the transaction. If certain terms of the transaction are known or reasonably should be known to the creditor, based on information such as the consumer’s selection of a product type or other information in the consumer’s application, § 1026.37 requires the creditor to disclose those credit terms. For example, if the consumer selects a product type with a prepayment penalty, the terms of the prepayment penalty known to the creditor at the time the disclosure is provided shall be set forth in the disclosure. 37(b)(2) Interest rate. 1. Initial interest rate if adjustable. The fully-indexed rate is defined in § 1026.37(b)(2) as the index plus the margin at consummation. Although § 1026.37(b)(2) refers to the index plus margin ‘‘at consummation,’’ if the index value that will be in effect at consummation is unknown at the time the disclosure is provided pursuant to § 1026.19(e), such as for the disclosure delivered within three business days after receipt of a consumer’s application, the fully-indexed rate disclosed under § 1026.37(b)(2) may be based on the index in effect at the time the disclosure is provided. The index in effect at consummation (or the time the disclosure is provided pursuant to § 1026.19(e)) need not be used if the contract provides for a delay in the implementation of changes in an index value. For example, if the contract specifies that rate changes are based on the index value in effect 45 days before the change date, creditors may use any index value in effect during the 45 days before consummation (or any earlier date of disclosure) in calculating the fully-indexed rate to be disclosed. 37(b)(3) Principal and interest payment. 1. Frequency of principal and interest payment. Pursuant to § 1026.37(o)(5)(i), if the contract provides for a unit-period of a month, such as a monthly payment schedule, the payment disclosed under § 1026.37(b)(3) should be labeled PO 00000 Frm 00321 Fmt 4701 Sfmt 4702 51435 ‘‘Monthly Principal & Interest.’’ If the contract requires bi-weekly payments of principal or interest, the payment should be labeled ‘‘Bi-Weekly Principal & Interest.’’ If a creditor voluntarily permits a payment schedule not provided for in the contract, such as an informal principal-reduction arrangement, the disclosure should reflect only the payment frequency provided for in the contract. See § 1026.17(c)(1). 2. Initial periodic payment if adjustable. Pursuant to § 1026.37(b)(3), the initial periodic payment amount that will be due under the terms of the legal obligation must be disclosed. If the initial periodic payment may vary based on an adjustment to an index, § 1026.37(b)(3) requires that the disclosure be based on the fully-indexed rate disclosed under § 1026.37(b)(2). See comment 37(b)(2)–1 for guidance regarding calculating the fully-indexed rate. 37(b)(4) Prepayment penalty. 1. Transaction includes a prepayment penalty. Section 1026.37(b)(4) requires disclosure of a statement of whether the transaction includes a prepayment penalty. If the transaction includes a prepayment penalty, § 1026.37(b)(7) sets forth the information that must be disclosed under § 1026.37(b)(4) (i.e., the maximum amount of the prepayment penalty that may be imposed under the terms of the loan contract and the date when the penalty will no longer be imposed). For an example of such disclosure, see form H–24 in appendix H to this part. The disclosure under § 1026.37(b)(4) would apply to transactions where the terms of the loan contract provide for a prepayment penalty, even though it is not certain at the time of the disclosure whether the consumer will, in fact, make a payment to the creditor that would cause imposition of the penalty. For example, if the monthly interest accrual amortization method described in comment 37(b)(4)–2.i is used such that interest is assessed on the balance for a full month even if the consumer makes a full prepayment before the end of the month, as discussed in comment 37(b)(4)–2.i, the transaction includes a prepayment penalty that must be disclosed pursuant to § 1026.37(b)(4). 2. Examples of prepayment penalties. For purposes of § 1026.37(b)(4), the following are examples of prepayment penalties: i. A charge determined by treating the loan balance as outstanding for a period of time after prepayment in full and applying the interest rate to such ‘‘balance,’’ even if the charge results from interest accrual amortization used E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51436 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules for other payments in the transaction under the terms of the loan contract. ‘‘Interest accrual amortization’’ refers to the method by which the amount of interest due for each period (e.g., month) in a transaction’s term is determined. For example, ‘‘monthly interest accrual amortization’’ treats each payment as made on the scheduled, monthly due date even if it is actually paid early or late (until the expiration of any grace period). Thus, under the terms of a loan contract providing for monthly interest accrual amortization, if the amount of interest due on May 1 for the preceding month of April is $3,000, the loan contract will require payment of $3,000 in interest for the month of April whether the payment is made on April 20, on May 1, or on May 10. In this example, if the consumer prepays the loan in full on April 20 and if the accrued interest as of that date is $2,000, then assessment of a charge of $3,000 constitutes a prepayment penalty of $1,000 because the amount of interest actually earned through April 20 is only $2,000. ii. A fee, such as an origination or other loan closing cost, that is waived by the creditor on the condition that the consumer does not prepay the loan. iii A minimum finance charge in a simple interest transaction. iv. Computing a refund of unearned interest by a method that is less favorable to the consumer than the actuarial method, as defined by section 933(d) of the Housing and Community Development Act of 1992, 15 U.S.C. 1615(d). For purposes of computing a refund of unearned interest, if using the actuarial method defined by applicable State law results in a refund that is greater than the refund calculated by using the method described in section 933(d) of the Housing and Community Development Act of 1992, creditors should use the State law definition in determining if a refund is a prepayment penalty. 3. Fees that are not prepayment penalties. For purposes of § 1026.37(b)(4), fees which are not prepayment penalties include, for example: i. Fees imposed for preparing and providing documents when a loan is paid in full, whether or not the loan is prepaid, such as a loan payoff statement, a reconveyance document, or another document releasing the creditor’s security interest in the dwelling that secures the loan. ii. Loan guarantee fees. 4. Rebate of finance charge. For an obligation that includes a finance charge that does not take into account each reduction in the principal balance of the VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 obligation, the disclosure under § 1026.37(b)(4) reflects whether or not the consumer is entitled to a rebate of any finance charge if the obligation is prepaid in full or part. Finance charges that do not take into account each reduction in the principal balance of an obligation may include precomputed finance charges. If any portion of an unearned precomputed finance charge will not be provided as a rebate upon full prepayment, the disclosure required by § 1026.37(b)(4) will be an affirmative answer, indicate the maximum amount of such precomputed finance charge that may not be provided as a rebate to the consumer upon any prepayment, and when the period during which a full rebate would not be provided terminates, as required by § 1026.37(b)(7). If, instead, there will be a full rebate of the precomputed finance charge and no other prepayment penalty imposed on the consumer, to comply with the requirements of § 1026.37(b)(4) and (7), the creditor states a negative answer only. If the transaction involves both a precomputed finance charge and a finance charge computed by application of a rate to an unpaid balance, disclosure about both the entitlement to any rebate of the finance charge upon prepayment and any other prepayment penalty are made as one disclosure under § 1026.37(b)(4), stating one affirmative or negative answer and an aggregated amount and time period for the information required by § 1026.37(b)(7). For example, if in such a transaction, a portion of the precomputed finance charge will not be provided as a rebate and the loan contract also provides for a prepayment penalty based on the amount prepaid, both disclosures are made under § 1026.37(b)(4) as one aggregate amount, stating the maximum amount and time period under § 1026.37(b)(7). If the transaction instead provides a rebate of the precomputed finance charge upon prepayment, but imposes a prepayment penalty based on the amount prepaid, to comply with § 1026.37(b)(4), the creditor states an affirmative answer and the information about the prepayment penalty, as required by § 1026.37(b)(7). For further guidance and examples of these types of charges, see comment 18(k)(2)–1. For analogous guidance, see comment 18(k)–2. For further guidance on prepaid finance charges generally, see comment 18(k)–3. 5. Additional guidance. For additional guidance generally on disclosures of prepayment penalties, see comment 18(k)–1. 37(b)(5) Balloon payment. 1. Regular periodic payment. The regular periodic payments used to PO 00000 Frm 00322 Fmt 4701 Sfmt 4702 determine whether a payment is a balloon payment under § 1026.37(b)(5) are the payments of principal and interest (or interest only, depending on the loan features) specified under the terms of the loan contract that are due from the consumer for two or more unit periods in succession. All regular periodic payments during the loan term are used to determine whether a particular payment is a balloon payment, regardless of whether the regular periodic payments have changed during the loan term due to rate adjustments or other payment changes permitted or required under the loan contract. If a specific payment is more than two times any one regular periodic payment during the loan term, then it is disclosed as a balloon payment under § 1026.37(b)(5) unless the specific payment itself is a regular periodic payment. i. For example, assume that, under a 15-year step-rate mortgage, the loan contract provides for scheduled monthly payments of $300 each during the years one through three and scheduled monthly payments of $700 each during years four through 15. If an irregular payment of $1,000 is scheduled during the final month of year 15, that payment is disclosed as a balloon payment under § 1026.37(b)(5), because it is more than two times the regular periodic payment amount of $300 during years one through three. This is the case even though the irregular payment is not more than two times the regular periodic payment of $700 per month during years four through fifteen. The $700 monthly payments during years four through fifteen are not balloon payments even though they are more than two times the regular periodic payments during years one through three, because they are regular periodic payments. ii. If the loan has an adjustable rate under which the regular periodic payments may increase after consummation, but the amounts of such payment increases (if any) are unknown at the time of consummation, then the regular periodic payments are based on the fully-indexed rate, except as otherwise determined by any premium or discounted rates, the application of any interest rate adjustment caps, or any other known, scheduled rates under the terms specified in the loan contract. For analogous guidance, see comments 17(c)(1)–8 and –10. For example, assume that, under a 30-year adjustable rate mortgage, (1) the loan contract requires monthly payments of $300 during years one through five, (2) the loan contract permits interest rate increases every three years starting in E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules the sixth year up to the fully-indexed rate, subject to caps on interest rate adjustments specified in the loan contract, (3) based on the application of the interest rate adjustment caps, the interest rate may increase to the fullyindexed rate starting in year nine, and (4) the monthly payment based on the fully-indexed rate is $700. The regular periodic payments during years one through five are $300 per month, because they are known and scheduled. The regular periodic payments during years six through eight are up to $700 per month, based on the fully-indexed rate but subject to the application of interest rate adjustment caps specified under the loan contract. The regular periodic payments during years nine through thirty are $700, based on the fully-indexed rate. Therefore, if an irregular payment of $1,000 is scheduled during the final month of year 30, that payment is disclosed as a balloon payment under § 1026.37(b)(5), because it is more than two times the regular periodic payment amount of $300 during years one through five. This is the case even though the irregular payment is not more than two times the regular periodic payment during years nine through thirty (i.e., based on the fully-indexed rate). However, the regular periodic payments during years six through thirty themselves are not balloon payments, even though they may be more than two times the regular periodic payments during years one through five. iii. For a loan with a negative amortization feature, the regular periodic payment does not take into account the possibility that the consumer may exercise an option to make a payment greater than the scheduled periodic payment specified under the terms of the loan contract, if any. iv. The disclosure of balloon payments in the ‘‘Projected Payments’’ table under § 1026.37(c) is governed by that section and its commentary, rather than § 1026.37(b)(5), except that the determination, as a threshold matter, of whether a payment disclosed under § 1026.37(c) is a balloon payment is made in accordance with § 1026.37(b)(5) and its commentary. 2. Single and double payment transactions. The definition of a ‘‘balloon payment’’ under § 1026.37(b)(5) includes the payments under transactions that require only one or two payments during the loan term, even though a single payment transaction does not require regular periodic payments, and a transaction with only two scheduled payments VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 during the loan term may not require regular periodic payments. 37(b)(7) Details about prepayment penalty and balloon payment. Paragraph 37(b)(7)(i). 1. Maximum prepayment penalty. Section 1026.37(b)(7)(i) requires disclosure of the maximum amount of the prepayment penalty that may be imposed under the terms of the legal obligation. The creditor complies with § 1026.37(b)(7)(i) when it assumes that the consumer prepays at a time when the prepayment penalty may be charged and that the consumer makes all payments prior to the prepayment on a timely basis and in the amount required by the terms of the legal obligation. The creditor must determine the maximum of each amount used in calculating the prepayment penalty. For example, if a transaction is fully amortizing and the prepayment penalty is two percent of the loan balance at the time of prepayment, the prepayment penalty amount should be determined by using the highest loan balance possible during the period in which the penalty may be imposed. If the loan is negatively amortizing and the prepayment penalty equals three percent of the loan balance in the first year and two percent in the second year during the first two years after loan origination, the creditor must determine the highest loan balance in each year and apply the respective two percent or three percent rate to such balance to determine the maximum amount. If more than one type of prepayment penalty applies, the creditor must aggregate the maximum amount of each type of prepayment penalty in the maximum penalty disclosed. 37(b)(8) Timing. 1. Timing. The timing of information required by § 1026.37(b)(8) starts with year number ‘‘1,’’ counting from the date that interest for the first scheduled periodic payment begins to accrue. For example, an interest rate that can first adjust at the beginning of the 13th month from the date that interest for the regularly scheduled periodic payment began to accrue would be disclosed as beginning to adjust in ‘‘year 2.’’ An interest rate that can first adjust at the beginning of the 61st month from the date that interest for the regularly scheduled periodic payment began to accrue would be disclosed as beginning to adjust in ‘‘year 6.’’ A monthly periodic principal and interest payment that begins to adjust at the 13th payment would be disclosed as beginning to adjust in ‘‘year 2.’’ 37(c) Projected payments. 1. Definitions. For purposes of § 1026.37(c), the terms ‘‘adjustable rate,’’ PO 00000 Frm 00323 Fmt 4701 Sfmt 4702 51437 ‘‘fixed rate,’’ ‘‘negative amortization,’’ and ‘‘interest-only’’ have the meanings in § 1026.37(a)(10). 37(c)(1) Periodic payment or range of payments. Paragraph 37(c)(1)(i). 1. Periodic payments. For purposes of § 1026.37(c)(1)(i), the periodic payment is the regularly scheduled payment of principal and interest, mortgage insurance, and escrow payments described in § 1026.37(c)(2) without regard to any final payment that differs from other payments because of rounding to account for payment amounts including fractions of cents. Paragraph 37(c)(1)(i)(A). 1. Periodic principal and interest payments. For purposes of § 1026.37(c)(1)(i)(A), periodic principal and interest payments may change when the interest rate, applicable interest rate caps, required periodic principal and interest payments, or ranges of such payments may change. Minor payment variations resulting solely from the fact that months have different numbers of days are not changes to periodic principal and interest payments. 2. Negative amortization. In a loan that permits negative amortization, periodic principal and interest payments may change at the time of a scheduled recast of the mortgage loan and when the consumer must begin making fully amortizing payments of principal and interest. The disclosure should be based on the assumption that the consumer will make only the minimum payment required under the terms of the legal obligation, for the maximum amount of time permitted, taking into account potential changes to the interest rate. The table required by § 1026.37(c) should also reflect any balloon payment that would result from making the minimum payment required under the terms of the legal obligation. 3. Interest-only. In a loan that permits payment of only interest for a specified period, periodic principal and interest payments may change for purposes of § 1026.37(c)(1)(i)(A) when the consumer must begin making fully amortizing periodic payments of principal and interest. Paragraph 37(c)(1)(i)(B). 1. Balloon payment. For purposes of § 1026.37(c)(1)(i)(B), whether a balloon payment occurs is determined pursuant to § 1026.37(b)(5) and its commentary. Although the existence of a balloon payment is determined pursuant to § 1026.37(b)(5) and its commentary, balloon payment amounts to be disclosed under § 1026.37(c) are calculated in the same manner as periodic principal and interest E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51438 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules payments under § 1026.37(c). For example, for a balloon payment amount that can change depending on previous interest rate adjustments that are based on the value of an index at the time of the adjustment, the balloon payment amounts are calculated using the assumptions for minimum and maximum interest rates described in § 1026.37(c)(1)(iii) and its commentary, and should be disclosed as a range of payments. Paragraph 37(c)(1)(i)(C). 1. General. ‘‘Mortgage insurance’’ means insurance against the nonpayment of, or default on, an individual mortgage. For purposes of § 1026.37(c), ‘‘mortgage insurance coverage or any functional equivalent’’ includes any mortgage guarantee that provides coverage similar to mortgage insurance (such as a United States Department of Veterans Affairs or United States Department of Agriculture guarantee), even if not technically considered insurance under State or other applicable law. The fees for such a guarantee are included in ‘‘mortgage insurance premiums.’’ 2. Calculation. For purposes of § 1026.37(c)(1)(i)(C), mortgage insurance premiums should be calculated based on the declining principal balance that will occur as a result of changes to the interest rate and payment amounts, assuming the fully-indexed rate applies at consummation, taking into account any introductory interest rates. 3. Disclosure. The table required by § 1026.37(c) should reflect the consumer’s mortgage insurance premiums until the date on which the creditor must automatically terminate coverage under applicable law, even though the consumer may have a right to request that the insurance be cancelled earlier. Unlike termination of mortgage insurance, a subsequent decline in the consumer’s mortgage insurance premiums is not, by itself, an event that requires the disclosure of additional separate periodic payments or ranges of payments in the table required by § 1026.37(c). For example, some mortgage insurance programs annually adjust premiums based on the declining loan balance. Such annual adjustment to the amount of premiums would not require a separate disclosure of a periodic payment or range payments. Paragraph 37(c)(1)(ii). Paragraph 37(c)(1)(ii)(A). 1. Balloon payments that are final payments. Section 1026.37(c)(1)(ii)(A) is an exception to the general rule in § 1026.37(c)(1)(ii), and requires that a balloon payment that is scheduled as a final payment under the terms of the VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 legal obligation is always disclosed as a separate periodic payment or range of payments. Balloon payments that are not final payments, such as a balloon payment due at the scheduled recast of a loan that permits negative amortization, are disclosed pursuant to the general rule in § 1026.37(c)(1)(ii). Paragraph 37(c)(1)(iii). 1. Calculation of minimum and maximum payments. A range of payments is disclosed under § 1026.37(c)(1)(iii) when the periodic principal and interest payments are not known at the time the disclosure is provided because they are subject to changes based on index rates at the time of an interest rate adjustment, or when multiple events are disclosed as a range of payments pursuant to § 1026.37(c)(1)(ii). For such transactions, § 1026.37(c)(1)(iii) requires the creditor to disclose both the minimum and maximum periodic principal and interest payments, expressed as a range. In disclosing the maximum possible interest rate under § 1026.37(c), the creditor assumes that the interest rate will rise as rapidly as possible after consummation, taking into account the terms of the legal obligation, including any applicable caps on interest rate adjustments and lifetime interest rate cap. For a loan with no lifetime interest rate cap, the maximum rate is determined by reference to other applicable laws, such as State usury law. In disclosing the minimum possible interest rate for purposes of § 1026.37(c), the creditor assumes that the interest rate will decrease as rapidly possible after consummation, taking into account any introductory rates, caps on interest rate adjustments, and lifetime interest rate floor. For an adjustable rate mortgage based on an index that has no lifetime interest rate floor, the minimum interest rate is equal to the margin. 2. Ranges of payments. When a range of payments is required, § 1026.37(c)(1)(iii) requires the creditor to disclose the minimum and maximum amount for both the principal and interest payment under § 1026.37(c)(2)(i) and the total periodic payment under § 1026.37(c)(2)(iv). The amount required to be disclosed for mortgage insurance premiums pursuant to § 1026.37(c)(2)(ii) and the amount payable into an escrow account pursuant to § 1026.37(c)(2)(iii) shall not be disclosed as a range. 3. Adjustable rate mortgages. For an adjustable rate mortgage, the periodic principal and interest payment at each time the interest rate may change will depend on the rate that applies at the time of the adjustment, which is not PO 00000 Frm 00324 Fmt 4701 Sfmt 4702 known at the time the disclosure is provided. As a result, the creditor discloses the minimum and maximum periodic principal and interest payment that could apply during each period disclosed pursuant to § 1026.37(c)(1) after the first period. 37(c)(2) Itemization. Paragraph 37(c)(2)(ii). 1. Mortgage insurance. Mortgage insurance premiums should be reflected on the disclosure required by § 1026.37(c) even if no escrow account is established for the payment of mortgage insurance premiums. If the consumer is not required to purchase mortgage insurance, the creditor shall disclose the mortgage insurance premium as ‘‘0’’. 2. Periodic payments. The creditor discloses mortgage insurance premiums pursuant to § 1026.37(c)(2)(ii) on the same periodic basis that payments for principal and interest are disclosed pursuant to § 1026.37(c)(2)(i), even if mortgage insurance premiums are actually paid on some other periodic basis. Paragraph 37(c)(2)(iii). 1. Escrow. The disclosure described in § 1026.37(c)(2)(iii) is required only if the creditor will establish an escrow account for the payment of some or all of the charges described in § 1026.37(c)(4)(ii)(A) through (E). 37(c)(3) Subheadings. Paragraph 37(c)(3)(ii). 1. Years. Section 1026.37(c)(3)(ii) requires that each periodic payment or range of payments be disclosed under a subheading that states the number of years during which that payment or range of payments will apply and that such subheadings be stated in a sequence of whole years. For purposes of § 1026.37(c), ‘‘year’’ is defined as the twelve-month interval beginning on the due date of the first periodic payment and each anniversary thereafter. For example, for a loan with a 30-year term that does not require mortgage insurance and requires interest-only payments for the first 60 months of the loan, then requires fixed, fully amortizing payments of principal and interest for the duration of the loan, the creditor would label the first disclosure of periodic payments as ‘‘Years 1–5’’ and the second disclosure of periodic payments or range of payments as ‘‘Years 6–30.’’ However, if that loan requires interest-only payments for the first 54 months of the loan, then requires fixed, fully amortizing payments of principal and interest for the duration of the loan, the creditor would label the first disclosure of periodic payments as ‘‘Years 1–4’’ and the second disclosure of periodic E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules payments or range of payments as ‘‘Years 5–30.’’ Finally, if the loan that requires interest-only payments for the first 54 months also requires mortgage insurance that would automatically terminate under applicable law after the 100th month of the loan’s term, the creditor would label the first disclosure of periodic payments as ‘‘Years 1–4,’’ the second disclosure of periodic payments or range of payments as ‘‘Years 5–8,’’ and the third disclosure of periodic payments or range of payments as ‘‘Years 9–30.’’ 2. Loans with variable terms. If the loan term may increase based on an adjustment of the interest rate, the creditor must disclose the maximum loan term possible under the legal obligation. To calculate the maximum loan term, the creditor assumes that the interest rate rises as rapidly as possible, taking into account the terms of the legal obligation, including any applicable caps on interest rate adjustments and lifetime interest rate cap. See comment 37(a)(8)–1. 37(c)(4) Taxes, insurance, and assessments. Paragraph 37(c)(4)(ii). 1. Mortgage-related insurance premiums. Mortgage-related insurance premiums required by the creditor are those described § 1026.35(b)(3)(i) and its commentary, except that, for purposes of § 1026.37(c)(4)(ii), mortgage-related insurance premiums do not include mortgage insurance premiums disclosed pursuant to § 1026.37(c)(2)(ii). A creditor need not include premiums for mortgage-related insurance that are not required as part of the legal obligation or under applicable law, such as optional earthquake insurance or credit insurance, or fees for optional debt suspension and debt cancellation agreements. 2. Special assessments. Special assessments are imposed on the consumer at or before consummation, such as a one-time homeowners’ association fee that will not be paid by the consumer in full at or before consummation. 37(f) Closing cost details; loan costs. 1. General description. The items disclosed under § 1026.37(f) include services that the creditor or mortgage broker require for consummation, such as underwriting, appraisal, and title services. 2. Mortgage broker. Official commentary under § 1026.19(e)(1)(ii) discusses the requirements and responsibilities of mortgage brokers that provide the disclosures required by § 1026.19(e), which include the disclosures set forth in § 1026.37(f). 37(f)(1) Origination charges. VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 1. Origination charges. Charges included under the subheading ‘‘Origination Charges’’ pursuant to § 1026.37(f)(1) are those charges paid by the consumer to the creditor and each loan originator for originating and extending the credit, regardless of how such fees are denominated. In accordance with § 1026.37(o)(4), the dollar amounts disclosed under § 1026.37(f)(1) must be rounded to the nearest whole dollar and the percentage amounts must be disclosed as an exact number up to three decimal places, except that decimal places shall not be disclosed if the percentage is a whole number. See comment 19(e)(3)(i)–2 for a discussion of when a fee is considered to be ‘‘paid to’’ a person. See comment 36(a)–1 for a discussion of the meaning of ‘‘loan originator’’ in connection with limits on compensation in a consumer credit transaction secured by a dwelling. 2. Indirect loan originator compensation. Only charges paid directly by the consumer to compensate a loan originator are included in the amounts listed under § 1026.37(f)(1). Compensation of a loan originator paid indirectly by the creditor through the interest rate is not itemized on the Loan Estimate required by § 1026.19(e). However, pursuant to § 1026.38(f)(1) such compensation is itemized on the Closing Disclosure required by § 1026.19(f). 3. Description of charges. Other than for points that the consumer will pay to the creditor to reduce the interest rate, for which specific language must be used, the creditor may use a general description to identify each service that is disclosed as an origination charge pursuant to § 1026.37(f)(1). Items that are listed under the subheading ‘‘Origination Charges’’ may include, for example, application fee, origination fee, underwriting fee, processing fee, verification fee, and rate-lock fee. 4. Points. If the consumer is not charged any points to reduce the interest rate, the creditor may leave blank the percentage of points disclosed under § 1026.37(f)(1)(i), but must disclose a dollar amount of ‘‘$0.’’ 5. Itemization. Creditors determine the level of itemization of ‘‘Origination Charges’’ that is appropriate under § 1026.37(f)(1), subject to the limitations in § 1026.37(f)(1)(ii). 37(f)(2) Services you cannot shop for. 1. Services disclosed. Items included under the subheading ‘‘Services You Cannot Shop For’’ pursuant to § 1026.37(f)(2) are for those services that the creditor requires in connection with the transaction that would be provided by persons other than the creditor or mortgage broker and for which the PO 00000 Frm 00325 Fmt 4701 Sfmt 4702 51439 creditor does not permit the consumer to shop in accordance with § 1026.19(e)(1)(vi)(A). Comment 19(e)(1)(iv)–1 clarifies that a consumer is not permitted to shop if the consumer must choose a provider from a list provided by the creditor. Comment 19(e)(3)(i)–1 addresses determining good faith in providing estimates under § 1026.19(e), including estimates for services for which the consumer cannot shop. Comments 19(e)(3)(iv)–1 through –3 discuss limits and requirements applicable to providing revised estimates for services for which the consumer cannot shop. 2. Examples of charges. Examples of the services to be disclosed pursuant to § 1026.37(f)(2) might include appraisal fee, appraisal management company fee, credit report fee, flood determination fee, lender’s attorney, tax status research fee, title—closing protection letter, and title—lender’s coverage. 3. Title insurance services. The services required to be labeled beginning with ‘‘Title—’’ pursuant to § 1026.37(f)(2) or (3) are those required for the issuance of title insurance policies to the creditor in connection with the consummation of the transaction. These services may include, for example: i. Examination and evaluation, based on relevant law and title insurance underwriting principles and guidelines, of the title evidence to determine the insurability of the title being examined and what items to include or exclude in any title commitment and policy to be issued; ii. Preparation and issuance of the title commitment or other document that discloses the status of the title as it is proposed to be insured, identifies the conditions that must be met before the policy will be issued, and obligates the insurer to issue a policy of title insurance if such conditions are met; iii. Resolution of underwriting issues and taking the steps needed to satisfy any conditions for the issuance of the policies; iv. Preparation and issuance of the policy or policies of title insurance; v. Premiums for any title insurance coverage for the benefit of the creditor; and vi. Conducting the closing. 4. Lender’s title insurance policy. The amount disclosed for lender’s title insurance coverage pursuant to § 1026.37(f)(2) or (3) is the amount of the premium without any adjustment that might be made for the simultaneous purchase of an owner’s title insurance policy. This amount should be disclosed as ‘‘Title—Premium for Lender’s Coverage,’’ or in any similar manner E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51440 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules that clearly indicates the amount of the premium disclosed pursuant to § 1026.37(f)(2) is for the lender’s title insurance coverage. See comment 37(g)(4)–1 for a discussion of the disclosure of the premium for owner’s title insurance coverage. 37(f)(3) Services you can shop for. 1. Services disclosed. Items included under the subheading ‘‘Services You Can Shop For’’ pursuant to § 1026.37(f)(3) are for those services: that the creditor requires in connection with its decision to make the loan; that would be provided by persons other than the creditor or mortgage broker; and for which the creditor allows the consumer to shop in accordance with § 1026.19(e)(1)(vi)(A). Comments 19(e)(3)(ii)–1 through –3 address the determination of good faith in providing estimates of charges for services for which the consumer can shop. Comment 19(e)(3)(iii)–2 discusses the determination of good faith when the consumer chooses a provider that is not on the list the creditor provides to the consumer when the consumer is permitted to shop consistent with § 1026.19(e)(1)(vi)(A). Comments 19(e)(3)(iv)–1 through –3 discuss limits and requirements applicable to providing revised estimates for services for which the consumer can shop. 2. Example of charges. Examples of the services to be listed under this subheading pursuant to § 1026.37(f)(3) might include pest inspection fee, survey fee, title—closing agent fee, and title—closing protection letter. 3. Title insurance. See comments 37(f)(2)–3 and –4 for guidance on services that are to be labeled beginning with ‘‘Title—’’ and on calculating and labeling the amount disclosed for lender’s title insurance pursuant to § 1026.37(f)(3). See comment 37(g)(4)–1 for a discussion of the disclosure of the premium for owner’s title insurance coverage. 37(f)(6) Use of addenda. 1. State law disclosures. If a creditor is required by State law to make additional disclosures that, pursuant to § 1026.37(f)(6)(i), cannot be included in the disclosures required under § 1026.37(f), the creditor may make those additional State law disclosures on a document whose pages are separate from, and are not presented as part of, the disclosures prescribed in § 1026.37. See comment 37(o)(1)–1. 2. Reference to addendum. If an addendum is used as permitted under § 1026.37(f)(6)(ii), an example of a label that would comply with the requirement for an appropriate reference on the last line is: ‘‘See attached page for additional items you can shop for.’’ VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 37(g) Closing cost details; other costs. 1. General description. The items listed under the heading of ‘‘Other Costs’’ pursuant to § 1026.37(g) include services that are ancillary to the creditor’s decision to evaluate the collateral and the consumer for the loan. The amounts disclosed for these items are: established by government action; determined by standard calculations applied to ongoing fixed costs; or based on an obligation incurred by the consumer independently of any requirement imposed by the creditor. Except for prepaid interest under § 1026.37(g)(2)(iii), the creditor does not retain any of the amounts or portions of the amounts disclosed as Other Costs, nor does the creditor use any of the services listed to evaluate the collateral and the consumer for the loan. 2. Charges pursuant to property contract. The creditor is required to disclose charges that are described in § 1026.37(g)(1) through (3). Other charges that are required to be paid at or before closing pursuant to the property contract for sale between the consumer and seller are not disclosed on the Loan Estimate, except to the extent the creditor is aware of those charges when it issues the Loan Estimate. See § 1026.37(g)(4) and comment 37(g)(4)–3. 37(g)(1) Taxes and other government fees. 1. Recording fees. Recording fees listed under § 1026.37(g)(1) are fees assessed by a government authority to record and index the loan and title documents as required under State or local law. Recording fees are assessed based on the type of document to be recorded or its physical characteristics, such as the number of pages. Unlike transfer taxes, recording fees are not based on the sales price of the property or loan amount. For example, a fee for recording a subordination agreement that is $20, plus $3 for each page over three pages, is a recording fee, but a fee of $1,250 based on 0.5% of the loan amount is a transfer tax, and not a recording fee. 2. Other government charges. Any charges or fees imposed by a State or local government that are not transfer taxes are aggregated with recording fees and disclosed under § 1026.37(g)(1)(i). 3. Transfer taxes—terminology. In general, transfer taxes listed under § 1026.37(g)(1) are State and local government fees on mortgages and home sales that are based on the loan amount or sales price, while recording fees are State and local government fees for recording the loan and title documents. The name that is used under State or local law to refer to these amounts is not PO 00000 Frm 00326 Fmt 4701 Sfmt 4702 determinative of whether they are disclosed as transfer taxes or as recording fees and other taxes under § 1026.37(g)(1). 4. Transfer taxes—consumer. Only transfer taxes imposed on the consumer are disclosed on the Loan Estimate pursuant to § 1026.37(g)(1). State and local government transfer taxes are governed by State or local law, which determines if the seller or consumer is ultimately responsible for paying the transfer taxes. For example, if State law indicates a lien can attach to the consumer’s acquired property if the transfer tax is not paid, the transfer tax is disclosed. If State or local law is unclear or does not specifically attribute transfer taxes to the seller or the consumer, the creditor is in compliance with requirements of § 1026.37(g)(1) as long as the amount of the transfer tax disclosed is not less than the amount apportioned to the consumer using common practice in the locality of the property. 5. Transfer taxes—seller. Transfer taxes paid by the seller in a purchase transaction are not disclosed on the Loan Estimate under § 1026.37(g)(1), but will be disclosed on the Closing Disclosure pursuant to § 1026.38(g)(1)(ii). 6. Deletion and addition of items. The lines and labels required by § 1026.37(g)(1) may not be deleted, even if recording fees or transfer taxes are not charged to the consumer. No additional items may be listed under the subheading in § 1026.37(g)(1). 37(g)(2) Prepaids. 1. Examples. Prepaid items required to be disclosed pursuant to § 1026.37(g)(2) include the interest due at consummation for the period of time before the first scheduled payment is due and certain periodic charges that are required by the creditor to be paid at consummation. Each periodic charge listed as a prepaid item indicates, as applicable, the time period that the charge will cover, the daily amount, the percentage used to calculate the charge, and the total dollar amount of the charge. Examples of periodic charges that the creditor may require the consumer to pay at consummation include: i. Real estate property taxes due within 60 days after consummation of the transaction; ii. Past-due real estate property taxes; iii. Mortgage insurance premiums; iv. Flood insurance premiums; and v. Homeowner’s insurance premiums. 2. Interest rate. The interest rate disclosed pursuant to § 1026.37(g)(2)(iii) is the same interest rate disclosed pursuant to § 1026.37(b)(2). E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 3. Terminology. As used in § 1026.37(g)(2), the terms ‘‘property taxes,’’ ‘‘homeowner’s insurance,’’ ‘‘mortgage insurance’’ have the same meaning as those terms are used in § 1026.37(c) and its commentary. 4. Deletion of items. The lines and labels required by paragraph (g)(2) may not be deleted, even if amounts for those labeled items are not charged to the consumer. If an amount for a labeled item is not charged to the consumer, the time period, daily amount, and percentage may be left blank. 37(g)(3) Initial escrow payment at closing. 1. Listed item not charged. Pursuant to § 1026.37(g)(3), each periodic charge to be included in the escrow or reserve account must be itemized under the ‘‘Initial Escrow Payment at Closing’’ subheading, with a relevant label, monthly payment amount, and number of months expected to be collected at consummation. If an item required to be listed under § 1026.37(g)(3)(i) through (iii) is not charged to the consumer, the monthly payment amount and time period may be left blank. 2. Aggregate escrow account calculation. The aggregate escrow account adjustment required under § 1026.38(g)(3) and 12 CFR 1024.17(d)(2) is not included on the Loan Estimate under § 1026.37(g)(3). 3. Terminology. As used in § 1026.37(g)(3), the terms ‘‘property taxes,’’ ‘‘homeowner’s insurance,’’ and ‘‘mortgage insurance’’ have the same meaning as those terms are used in § 1026.37(c) and its commentary. 4. Deletion of items. The lines and labels required by § 1026.37(g)(3) may not be deleted, even if amounts for those labeled items are not charged to the consumer. 37(g)(4) Other. 1. Basic owner’s policy rate. The amount disclosed for an owner’s title insurance premium pursuant to § 1026.37(g)(4) is based on a basic owner’s policy rate, and not on an ‘‘enhanced’’ title insurance policy premium. This amount should be disclosed as ‘‘Title—Owner’s Title Policy (optional),’’ or in any similar manner that includes the introductory description ‘‘Title—’’ at the beginning of the label for the item, the parenthetical description ‘‘(optional)’’ at the end of the label, and clearly indicates the amount of the premium disclosed pursuant to § 1026.37(g)(4) is for the owner’s title insurance coverage. See comment 37(f)(2)–4 for a discussion of the disclosure of the premium for lender’s title insurance coverage. 2. Simultaneous title insurance premium rate in purchase transactions. VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 The premium for an owner’s title insurance policy for which a special rate may be available based on the simultaneous issuance of a lender’s and an owner’s policy is calculated and disclosed pursuant to § 1026.37(g)(4) as follows: i. The title insurance premium for a lender’s title policy is based on the full premium rate, consistent with § 1026.37(f)(2) or (f)(3). ii. The owner’s title insurance premium is calculated by taking the full owner’s title insurance premium, adding the simultaneous issuance premium for the lender’s coverage, and then deducting the full premium for lender’s coverage. 3. Designation of optional items. Products disclosed under § 1026.37(g)(4) for which the parenthetical description ‘‘(optional)’’ is included at the end of the label for the item include only items that are separate from any item disclosed on the Loan Estimate under paragraphs other than § 1026.37(g)(4). For example, such items may include owner’s title insurance, credit life insurance, debt suspension coverage, debt cancellation coverage, warranties of home appliances and systems, and similar products, when coverage is written in connection with a credit transaction that is subject to § 1026.19(e). However, because the requirement in § 1026.37(g)(4)(ii) applies to separate products only, additional coverage and endorsements on insurance otherwise required by the lender are not disclosed under § 1026.37(g)(4). See comments 4(b)(7) and (b)(8)–1 through –3 and comments 4(b)(10)–1 and –2 for descriptions of credit life insurance, debt suspension coverage, debt cancellation coverage, and similar coverage and for guidance on determining when such coverage is written in connection with a transaction subject to § 1026.19(e). 4. Examples. Examples of other items that are disclosed under § 1026.37(g)(4) if the creditor is aware of those items when it issues the Loan Estimate include commissions of real estate brokers or agents, additional payments to the seller to purchase personal property pursuant to the property contract, homeowner’s association and condominium charges associated with the transfer of ownership, and fees for inspections not required by the creditor but paid by the consumer pursuant to the property contract. Although the consumer is obligated for these costs, they are not imposed upon the consumer by the creditor or loan originator. Therefore, they are not disclosed with the parenthetical description ‘‘(optional)’’ at the end of PO 00000 Frm 00327 Fmt 4701 Sfmt 4702 51441 the label for the item, and they are disclosed pursuant to § 1026.37(g) rather than § 1026.37(f). Even if such items are not required to be disclosed on the Loan Estimate under § 1026.37(g)(4), however, they may be required to be disclosed on the Closing Disclosure pursuant to § 1026.38. Comment 19(e)(3)(iii)–3 discusses application of the good faith requirement for services chosen by the consumer that are not required by the creditor. 37(g)(6) Total closing costs. Paragraph 37(g)(6)(ii). 1. Lender credits. Section 1026.19(e)(1)(i) requires disclosure of lender credits as provided in § 1026.37(g)(6)(ii). Comment 19(e)(3)(i)– 5 describes such lender credits as payments from the creditor to the consumer that do not pay for a particular fee on the disclosures provided under § 1026.37. Comment 19(e)(3)(i)–4 addresses payments by a creditor to a consumer to pay for particular fees. 37(g)(8) Use of addenda. 1. State law disclosures. If a creditor is required by State law to make additional disclosures that, pursuant to § 1026.37(g)(8), cannot be included in the disclosures required under § 1026.37(g), the creditor may make those additional State law disclosures on a separate document whose pages are physically separate from, and are not presented as part of, the disclosures prescribed in § 1026.37. See comment 37(o)(1)–1. 37(h) Calculating cash to close. 1. Labels for amounts disclosed. Paragraph 37(h) describes the amounts that are used to calculate the estimated amount of cash or other form of payment that the consumer must provide at consummation. The labels used on the chart must correspond to the italicized descriptions of § 1026.37(h)(1) through (7). 37(h)(4) Deposit. 1. A deposit must be disclosed in a purchase transaction. In any other type of transaction, any deposit amount is disclosed under § 1026.37(h)(4) as $0. 37(h)(6) Seller credits. 1. Credits to be disclosed. The seller credits known to the creditor at the time of application are disclosed under § 1026.37(h)(6). Seller credits that are not known by the creditor at the time of application are not disclosed under § 1026.37(h)(6). 37(h)(7) Adjustments and other credits. 1. Other credits known at the time the Loan Estimate is issued. Amounts expected to be paid by third parties not involved in the transaction, such as gifts from family members and not otherwise E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51442 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules identified under § 1026.37(h), would be included in the amount disclosed pursuant to § 1026.37(h)(7) to the extent known by the creditor. 2. Persons. The term ‘‘persons’’ as used in § 1026.37(h)(7) includes all individuals and any entity, regardless of the legal structure of such entity. 3. Credits. Only credits from parties other than the creditor or seller can be disclosed pursuant to § 1026.37(h)(7). Seller credits and credits from the creditor are disclosed pursuant to § 1026.37(h)(6) and § 1026.37(g)(6)(ii), respectively. 4. Other credits to be disclosed. Other credits known to the creditor at the time of application are disclosed under § 1026.37(h)(7). Other credits that are not known by the creditor at the time of application are not disclosed under § 1026.37(h)(7). 37(h)(8) Estimated cash to close. 1. Result of cash to close calculation. The total of § 1026.37(h)(1) through (7) is disclosed under § 1026.37(h)(8) as either a positive number, a negative number, or zero. A positive number indicates the estimated amount that the consumer can be expected to pay at consummation. A negative number indicates the estimated amount that the consumer can receive at consummation. A result of zero indicates that the consumer is anticipated to neither pay any amount or receive any amount at consummation. 37(i) Adjustable payment table. 1. When table is not permitted to be disclosed. The disclosure described in § 1026.37(i) is required only if the periodic principal and interest payment may change after consummation based on a loan term other than a change to the interest rate, or the transaction contains a seasonal payment product feature as described in § 1026.37(a)(10)(ii)(E). If the transaction does not contain such loan terms, this table may not appear on the Loan Estimate. See comment 37–1. 2. Periods to be disclosed. Section 1026.37(i)(1) through (4) requires disclosure of the periods during which interest-only, optional payment, steppayment, and seasonal payment product features will be in effect. The periods required to be disclosed should be disclosed by describing the number of payments counting from the first periodic payment due after consummation. The period of seasonal payments required to be disclosed by § 1026.37(i)(4), to be clear and conspicuous, should be disclosed with a noun that identifies the unit-period, because such feature may apply on a regular basis during the loan term that VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 does not depend on when regular periodic payments begin. For example: i. Period from date of consummation. If a loan has an interest-only period for the first 60 regular periodic payments due after consummation, the disclosure states ‘‘for your first 60 payments.’’ ii. Period during middle of loan term. If the loan has an interest-only period between the 61st and 85th payments, the disclosure states ‘‘from your 61st to 85th payment.’’ iii. Multiple successive periods. If there are multiple periods during which a certain adjustable payment term applies, such as a period of step payments that occurs from the first to 12th payment, does not apply to the 13th through 24th payments, and occurs again from the 25th through 36th payments, the period disclosed is the entire span of all such periods. Accordingly, such period is disclosed as ‘‘for your first 36 payments.’’ iv. Seasonal payments. For a seasonal payment product with a unit-period of a month that does not require periodic payments for the months of June, July, and August each year during the loan term, because such feature depends on calendar months and not on when regular periodic payments begin, the period is disclosed as ‘‘from June to August.’’ For a transaction with a quarterly unit-period that does not require a periodic payment every third quarter during the loan term and does not depend on calendar months, the period is disclosed as ‘‘every third payment.’’ In the same transaction, if the seasonal payment feature ends after the twentieth quarter, the period is disclosed as ‘‘every quarter until the 20th quarter.’’ 37(i)(5) Principal and interest payments. 1. Statement of periodic payment frequency. The subheading required by § 1026.37(i)(5) must include the unitperiod of the transaction, such as ‘‘quarterly,’’ ‘‘bi-weekly,’’ or ‘‘annual.’’ This unit period should be the same as disclosed under § 1026.37(b)(3). See § 1026.37(o)(5)(i). 2. Initial payment adjustment unknown. The disclosure required by § 1026.37(i)(5) must state the number of the first payment for which the regular periodic principal and interest payment may change. This payment is typically set forth in the legal obligation. However, if the exact payment number of the first adjustment is not known at the time the creditor provides the Loan Estimate, the creditor must disclose the earliest possible payment that may change under the terms of the legal obligation, based on the information PO 00000 Frm 00328 Fmt 4701 Sfmt 4702 available to the creditor at the time, as the initial payment number and amount. 3. Subsequent changes. The disclosure required by § 1026.37(i)(5) must state the frequency of adjustments to the regular periodic principal and interest payment after the initial adjustment, if any, expressed in years, except if adjustments are more frequent than once every year, in which case the disclosure should be expressed as payments. If there is only one adjustment of the periodic payment under the terms of the legal obligation (for example, if the loan has an interestonly period for the first 60 payments and there are no adjustments to the payment after the end of the interestonly period), the disclosure should state: ‘‘No subsequent changes.’’ If the loan has graduated increases in the regular periodic payment every 12th payment, the disclosure should state: ‘‘Every year.’’ If the frequency of adjustments to the periodic payment may change under the terms of the legal obligation, the disclosure should state the smallest period of adjustments that may occur. For example, if an increase in the periodic payment is scheduled every sixth payment for 36 payments, and then every 12th payment for the next 24 payments, the disclosure should state: ‘‘Every 6th payment.’’ 4. Maximum payment. The disclosure required by § 1026.37(i)(5) must state the larger of the maximum scheduled or maximum potential amount of a regular periodic principal and interest payment under the terms of the legal obligation, as well as the payment number of the first periodic principal and interest payment that can reach such amount. If the disclosed payment is scheduled, § 1026.37(i)(5) requires that the disclosure state the payment number when such payment is reached with the preceding text, ‘‘starting at.’’ If the disclosed payment is only potential, as may be the case for a loan that permits optional payments, the disclosure states the earliest payment number when such payment can be reached with the preceding text, ‘‘as early as.’’ Section 1026.37(i)(5) requires that the first possible periodic principal and interest that can reach the maximum be disclosed. For example, for a fixed interest rate optional-payment loan with scheduled payments that result in negative amortization, the maximum periodic payment disclosed should be based on the consumer having elected to make the periodic payments that would increase the principal balance to the maximum amount at the latest time possible before the loan begins to fully amortize, which would cause the periodic principal and interest payment E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules to be the maximum possible. For example, if the earliest payment that could reach the maximum principal balance was the 41st payment at which time the loan would begin to amortize and the periodic principal and interest payment would be recalculated, but the last payment that permitted the principal balance to increase was the 60th payment, the disclosure required by § 1026.37(i)(5) must assume the consumer only reached the maximum principal balance at the 60th payment because this would result in the maximum possible principal and interest payment under the terms of the legal obligation. The disclosure must state the periodic principal and interest payment based on this assumption and state ‘‘as early as the 61st payment.’’ 5. Payments that do not pay principal. Although the label of the disclosure required by § 1026.37(i)(5) is ‘‘Principal and Interest Payments,’’ and the section refers to periodic principal and interest payments, it includes a scheduled periodic payment that only covers some or all of the interest that is due and not any principal (i.e., an interest-only or negatively amortizing payment). 37(j) Adjustable interest rate table. 1. When table is permitted to be disclosed. The disclosure described in § 1026.37(j) is only required if the interest rate may increase after consummation, either based on changes to an index or scheduled changes to the interest rate. If the legal obligation does not permit the interest rate to adjust after consummation, such as for a ‘‘Fixed Rate’’ product under § 1026.37(a)(10), this table is not permitted to appear on the Loan Estimate. The creditor may not disclose a blank table or a table with ‘‘N/A’’ inserted within each row. See comment 37–1. 37(j)(1) Index and margin. 1. Index and margin. The index disclosed pursuant to § 1026.37(j)(1) must be stated such that a consumer reasonably can identify it. A common abbreviation or acronym of the name of the index may be disclosed in place of the proper name of the index, if it is a commonly used public method of identifying the index. For example, ‘‘LIBOR’’ may be disclosed instead of London Interbank Offered Rate. The margin should be disclosed as a percentage. For example, if the contract determines the interest rate by adding 4.25 percentage points to the index, the margin should be disclosed as ‘‘4.25%.’’ 37(j)(2) Increases in interest rate. 1. Adjustments not based on an index. If the legal obligation includes both adjustments to the interest rate based on an external index and scheduled and VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 pre-determined adjustments to the interest rate, such as for a ‘‘Step Rate’’ product under § 1026.37(a)(10), the disclosure required by § 1026.37(j)(1), and not § 1026.37(j)(2), must be provided pursuant to § 1026.37(j)(2). The disclosure described in § 1026.37(j)(2) is stated only if the product type does not permit the interest rate to adjust based on an external index. 37(j)(3) Initial interest rate. 1. Interest rate at consummation. In all cases, the interest rate in effect at consummation must be disclosed as the initial interest rate, even if it will apply only for a short period, such as one month. 37(j)(4) Minimum and maximum interest rate. 1. Minimum interest rate. The minimum rate required to be disclosed by § 1026.37(j)(4) is the minimum interest rate that may occur at any time during the term of the transaction, after any introductory or ‘‘teaser’’ interest rate expires, under the terms of the legal obligation, such as an interest rate ‘‘floor.’’ If the terms of the legal obligation do not state a minimum interest rate, the minimum interest rate that applies to the transaction under applicable law must be disclosed. If the terms of the legal obligation do not state a minimum interest rate, and no other minimum interest rate applies to the transaction under applicable law, the amount of the margin is disclosed. 2. Maximum interest rate. The maximum interest rate required to be disclosed pursuant to § 1026.37(j)(4) is the maximum interest rate possible under the terms of the legal obligation, such as an interest rate ‘‘cap.’’ If the terms of the legal obligation do not specify a maximum interest rate, the maximum interest rate permitted by applicable law, such as State usury law, must be disclosed. 37(j)(5) Frequency of adjustments. 1. Exact month unknown. The disclosure required by § 1026.37(j)(5) must state the first month for which the interest rate may change. This month is typically scheduled in the terms of the legal obligation. However, if the exact month is not known at the time the creditor provides the Loan Estimate, the creditor must disclose the earliest possible month under the terms of the legal obligation, based on the information available to the creditor at the time. 37(j)(6) Limits on interest rate changes. 1. Different limits on subsequent interest rate adjustments. If more than one limit applies to the amount of adjustments to the interest rate after the PO 00000 Frm 00329 Fmt 4701 Sfmt 4702 51443 initial adjustment, the greatest limit on subsequent adjustments must be disclosed. For example, if the initial interest rate adjustment is capped at two percent, the second adjustment is capped at two and a half percent, and all subsequent adjustments are capped at three percent, the disclosure required by § 1026.37(j)(6)(ii) states ‘‘3%.’’ 37(k) Contact information. 1. NMLSR ID. Section 1026.37(k) requires the disclosure of an NMLSR identification (ID) number for each creditor, mortgage broker, and loan officer identified on the Loan Estimate. The NMLSR ID is a unique number or other identifier generally assigned by the Nationwide Mortgage Licensing System and Registry (NMLSR) to individuals registered or licensed through NMLSR to provide loan originating services. For more information, see the Secure and Fair Enforcement for Mortgage Licensing Act of 2008 (SAFE Act) sections 1503(3) and (12) and 1504 (12 U.S.C. 5102(3) and (12) and 5103), and its implementing regulations (i.e., 12 CFR 1007.103(a) and 1008.103(a)(2)). An entity may also have an NMLSR ID. Thus, if the creditor, mortgage broker, or loan officer has obtained an NMLSR ID, the NMLSR IDs must be provided in the disclosures required by § 1026.37(k)(1) and (2). 2. License number or unique identifier. Section 1026.37(k)(1) and (2) requires the disclosure of a license number or unique identifier for the creditor, mortgage broker, and loan officer if such entity or individual has not obtained an NMLSR ID. In such event, if the applicable State, locality, or other regulatory body with responsibility for licensing and/or registering such entity’s or individual’s business activities has issued a license number or other unique identifier to such entity or individual, that number is disclosed. 3. Contact. Section 1026.37(k)(2) requires the disclosure of the name and NMLSR ID of the loan officer for the consumer. The loan officer is generally the natural person employed by the person disclosed under § 1026.37(k)(2) who interacts most frequently with the consumer and who has an NMLSR ID or, if none, a license number or other unique identifier to be disclosed under § 1026.38(k)(2), as applicable. 37(l) Comparisons. 37(l)(1) In five years. 1. Loans with terms of less than five years. In transactions with a scheduled loan term of less than 60 months, to comply with § 1026.37(l)(1), the creditor discloses the amounts paid through the end of the loan term. Paragraph 37(l)(1)(i). E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51444 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 1. Calculation of total payments in five years. The amount disclosed pursuant to § 1026.37(l)(1)(i) is the sum of principal, interest, mortgage insurance, and loan costs scheduled to be paid through the end of the 60th month after the due date of the first periodic payment. For purposes of § 1026.37(l)(1)(i), interest is calculated using the fully-indexed rate at consummation and includes any prepaid interest. In addition, for purposes of § 1026.37(l)(1)(i), the creditor should assume that the consumer makes payments as scheduled and on time. For purposes of § 1026.37(l)(1)(i), mortgage insurance is defined pursuant to comment 37(c)(1)(i)(C)–1 and includes prepaid or escrowed mortgage insurance. Loan costs are those costs disclosed pursuant to § 1026.37(f). 2. Negative amortization loans. For loans that permit negative amortization, the creditor calculates the total payments in five years using the negatively amortizing payment amount until the consumer must begin making fully amortizing payments under the terms of the legal obligation. Paragraph 37(l)(1)(ii). 1. Calculation of principal paid in five years. The disclosure required by § 1026.37(l)(1)(ii) is calculated in the same manner as the disclosure required by § 1026.37(l)(1)(i), except that the disclosed amount reflects only the total payments to principal through the end of the 60th month after the due date of the first periodic payment. 37(l)(3) Total interest percentage. 1. General. When calculating the total interest percentage, the creditor assumes that the consumer will make each payment in full and on time, and will not make any additional payments. 2. Adjustable-rate and step-rate mortgages. For adjustable-rate mortgages, § 1026.37(1)(3) requires that the creditor compute the total interest percentage using the fully-indexed rate. For step-rate mortgages, § 1026.37(l)(3) requires that the creditor compute the total interest percentage in accordance with § 1026.17(c)(1) and its associated commentary. 3. Negative amortization loans. For loans that permit negative amortization, § 1026.37(l)(3) requires that the creditor compute the total interest percentage using the negatively amortizing payment amount until the consumer must begin making fully amortizing payments under the terms of the legal obligation. 37(m) Other considerations. 37(m)(1) Appraisal. 1. Applicability. Section 1026.37 requires the disclosures required by this VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 section to be made as applicable. The disclosure required by § 1026.37(m)(1) is only applicable to transactions subject to § 1026.19(e) that are also subject either to 15 U.S.C. 1639h or 1691(e), as implemented by this part or Regulation B, 12 CFR part 1002, respectively. Accordingly, if a transaction is not also subject to either of these provisions, the disclosure required by § 1026.37(m)(1) may be omitted from the Loan Estimate. 37(m)(2) Assumption. 1. Disclosure. Section 1026.37(m)(2) requires the creditor to disclose whether or not a third party may be allowed to assume the loan on its original terms if the property is sold or transferred by the consumer. In many cases, the creditor cannot determine, at the time the disclosure is made, whether a loan may be assumable at a future date on its original terms. For example, the assumption clause commonly used in mortgages sold to the Federal National Mortgage Association and the Federal Home Loan Mortgage Corporation conditions an assumption on a variety of factors, such as the creditworthiness of the subsequent borrower, the potential for impairment of the creditor’s security, and the execution of an assumption agreement by the subsequent borrower. If the creditor can determine that such assumption is not permitted, the creditor complies with § 1026.37(m)(2) by disclosing that the loan is not assumable. In all other situations, including where assumption of a loan is permitted or is dependent on certain conditions or factors, or uncertainty exists as to the future assumability of a mortgage, the creditor complies with § 1026.37(m)(2) by disclosing that, under certain conditions, the creditor may allow a third party to assume the loan on its original terms. 2. Original terms. For purposes of § 1026.37(m)(2), the phrase ‘‘original terms’’ does not preclude the imposition of an assumption fee, but a modification of the legal obligation, such as a change in the contract interest rate, represents different terms. 37(m)(3) Homeowner’s insurance. 1. Optional disclosure. Section 1026.37(m)(3) provides that creditors may, but are not required to, disclose a statement of whether homeowner’s insurance is required on the property and whether the consumer may choose the insurance provider, labeled ‘‘Homeowner’s Insurance.’’ 2. Relation to the finance charge. Section 1026.4(d)(2) describes the conditions under which a creditor may exclude premiums for homeowner’s insurance from the finance charge. A creditor satisfies § 1026.4(d)(2)(i) by PO 00000 Frm 00330 Fmt 4701 Sfmt 4702 disclosing the statement described in § 1026.37(m)(3). 37(m)(4) Late payment. 1. Definition. Section 1026.37(m)(4) requires a disclosure if charges are added to an individual delinquent installment by a creditor that otherwise considers the transaction ongoing on its original terms. Late payment charges do not include: (i) the right of acceleration; (ii) fees imposed for actual collection costs, such as repossession charges or attorney’s fees; (iii) referral and extension charges; or (iv) the continued accrual of simple interest at the contract rate after the payment due date. However, an increase in the interest rate on account of a late payment by the consumer is a late payment charge to the extent of the increase. 2. Applicability of State law. Many State laws authorize the calculation of late charges as either a percentage of the delinquent payment amount or a specified dollar amount, and permit the imposition of the lesser or greater of the two calculations. The language provided in the disclosure may reflect the requirements and alternatives allowed under State law. 37(m)(6) Servicing. 1. Creditor’s intent. Section 1026.37(m)(6) requires the creditor to disclose whether it intends to service the loan directly or transfer servicing to another servicer after closing. A creditor complies with § 1026.37(m)(6) if the disclosure reflects the creditor’s intent at the time the Loan Estimate is issued. 37(m)(7) Liability after foreclosure. 1. When statement is not permitted to be disclosed. The statement required by § 1026.37(m)(7) is permitted only under the condition specified by § 1026.37(m)(7), specifically, if the purpose of the credit transaction is a refinance under § 1026.37(a)(9). 37(n) Signature statement. 1. Signature line optional. Whether a signature line is provided under § 1026.37(n) is determined solely by the creditor. If a signature line is provided, however, the disclosure must include the statement required by § 1026.37(n)(1). 2. Multiple consumers. If there is more than one consumer in the transaction, the first consumer signs as the applicant and each additional consumer signs as a ‘‘co-applicant.’’ If there is not enough space under the heading ‘‘Confirm Receipt’’ to provide signature lines for every consumer in the transaction, the creditor may add additional signature pages, as needed, at the end of the form for the remaining consumers’ signatures. 37(o) Form of disclosures. 37(o)(1) General requirements. E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 1. Clear and conspicuous; segregation. The clear and conspicuous standard requires that the disclosures required by § 1026.37 be legible and in a readily understandable form. Section 1026.37(o)(1)(i) requires that the disclosures be grouped together, segregated from everything else, and provided on separate pages that are not commingled with any other documents or disclosures, including any other disclosures required by State or other laws. As required by § 1026.37(o)(3)(i), the disclosures for any transaction that is a federally related mortgage loan under Regulation X, 12 CFR 1024.2, must be made using the standard form H–24 in appendix H to this part. Accordingly, use of that form constitutes compliance with the clear and conspicuous and segregation requirements of § 1026.37(o). 2. Balloon payment financing with leasing characteristics. In certain credit sale or loan transactions, a consumer may reduce the dollar amount of the payments to be made during the transaction by agreeing to make, at the end of the loan term, a large final payment based on the expected residual value of the property. The consumer may have a number of options with respect to the final payment, including, among other things, retaining the property and making the final payment, refinancing the final payment, or transferring the property to the creditor in lieu of the final payment. Such transactions may have some of the characteristics of lease transactions subject to Regulation M (12 CFR part 1013), but are considered credit transactions where the consumer assumes the indicia of ownership, including the risks, burdens, and benefits of ownership, upon consummation. These transactions are governed by the disclosure requirements of this part instead of Regulation M. Under § 1026.37(o)(1)(ii), creditors may not include any additional information with the disclosures required by § 1026.37, except as provided in § 1026.37(o)(5). Thus, the disclosures must show the large final payment as a balloon payment in the projected payments table required by § 1026.37(c) and should not, for example, reflect the other options available to the consumer at maturity. 37(o)(2) Estimated disclosures. 1. Estimated amounts. Section 1026.37(o)(2) incorporates the ‘‘estimated’’ designations reflected on form H–24 in appendix H to this part into the disclosure requirements of § 1026.37, even if the relevant provision of § 1026.37 does not expressly require disclosure of the word ‘‘estimate.’’ For VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 example, § 1026.37(c)(2)(iv) requires disclosure of the total periodic payment labeled ‘‘Total Monthly Payment,’’ but the label on form H–24 contains the designation ‘‘Estimated’’ and thus, the label required by § 1026.37(c)(2)(iv) must contain the designation ‘‘Estimated.’’ Although many of the disclosures required by § 1026.38 crossreference their counterparts in § 1026.37, § 1026.38(t) incorporates the ‘‘estimated’’ designations reflected on form H–25, not form H–24. 37(o)(3) Form. 1. Non-federally related mortgage loans. For a non-federally related mortgage loan, the creditor is not required to use form H–24 in appendix H to this part, although its use as a model form for such transactions, if properly completed with accurate content, constitutes compliance with the clear and conspicuous and segregation requirements of § 1026.37(o)(1)(i). Even when the creditor elects not to use the model form, § 1026.37(o)(1) requires that the disclosures be grouped together and segregated from everything else; contain only the information required by § 1026.37(a) through (n); and be provided in the same order as they occur in form H–24, using the same relative positions of the headings, labels, and similar designations as shown in the form. In addition, § 1026.37(o)(2) requires that the creditor include the designation of ‘‘estimated’’ for all headings, subheading, labels, and similar designations required by § 1026.37 for which form H–24 contains the ‘‘estimated’’ designation in such heading, subheading, label, or similar designation. The disclosures required by this section comply with the requirement to be in a format substantially similar to form H–24 when provided on letter size (8.5″ × 11″) paper. 37(o)(4) Rounding. 1. Rounding. Consistent with § 1026.2(b)(4), except as otherwise provided in § 1026.37(o)(4), any amount required to be disclosed by § 1026.37 must be disclosed as an exact numerical amount using decimal places where applicable, unless otherwise provided. 2. Calculations. If a dollar amount that is required to be rounded by § 1026.37(o)(4)(i) on the Loan Estimate is a total of one or more dollar amounts that are not required to be rounded, the total amount must be rounded consistent with § 1026.37(o)(4)(i), but such component amounts used in the calculation must such exact numbers. In addition, if any such exact component amount is required to be disclosed under § 1026.37, consistent with PO 00000 Frm 00331 Fmt 4701 Sfmt 4702 51445 § 1026.2(b)(4), it should be disclosed as an exact number. If an amount that is required to be rounded by § 1026.37(o)(4)(i) on the Loan Estimate is a total of one or more components that are also required to be rounded by § 1026.37(o)(4)(i), the total amount must be calculated using such rounded amounts. For example, the subtotals required to be disclosed by § 1026.37(f)(1), (2), and (3) are calculated using the rounded amounts disclosed under those subsections. See comment 37(o)(4)(i)(C)–1. However, the amounts required to be disclosed by § 1026.37(l) reference actual amounts for their components, rather than other amounts disclosed under § 1026.37 and rounded pursuant to § 1026.37(o)(4)(i), and thus, they are calculated using exact numbers. 37(o)(4)(i) Nearest dollar. Paragraph 37(o)(4)(i)(A). 1. Rounding of dollar amounts. Section 1026.37(o)(4)(i)(A) requires that certain dollar amounts be rounded to the nearest whole dollar. For example, pursuant to § 1026.37(o)(4)(i)(A), if § 1026.37(c)(2)(ii) requires disclosure of periodic mortgage insurance payments of $164.50, the creditor would disclose $165. However, if the periodic mortgage insurance payment required to be disclosed by § 1026.37(c)(2)(ii) were $164.49, the creditor would disclose $164. Paragraph 37(o)(4)(i)(B). 1. Rounding of loan amount. Section 1026.37(o)(4)(i)(B) requires the loan amount to be disclosed without decimal places denoting cents if the amount of cents is zero. For example, if § 1026.37(b)(1) requires disclosure of a loan amount of $481,516.23, the creditor discloses the amount as $481,516.23. However, if the loan amount required to be disclosed were $481,516.00, the creditor would disclose $481,516. Paragraph 37(o)(4)(i)(C). 1. Rounding of the total monthly payment. Section 1026.37(o)(4)(i)(C) requires the total monthly payment amount disclosed under § 1026.37(c)(2)(iv) to be rounded if any of its components are rounded. For example, if the total monthly payment disclosed under disclosed under § 1026.37(c)(2)(iv) is composed of a $2,000.49 periodic principal and interest payment required to be disclosed by § 1026.37(c)(2)(i) and a $164.49 periodic mortgage insurance payment required to be disclosed by § 1026.37(c)(2)(ii), the creditor would calculate the total monthly payment by adding the exact periodic principal and interest payment of $2,000.49 and the rounded periodic mortgage insurance E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51446 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules payment of $164, round the total, and disclose $2,164. 37(o)(4)(ii) Percentages. 1. Decimal places. Section 1026.37(o)(4)(ii) requires the percentage amounts disclosed not to use decimal places, if the amount is a whole number. For example, a 7.005 percent annual percentage rate is disclosed in compliance with § 1026.37(o)(4)(ii) as ‘‘7.005%,’’ but a 7.000 percent annual percentage rate would be disclosed as ‘‘7%.’’ 37(o)(5) Exceptions. 1. Permissible changes. The changes required or permitted by § 1026.37(o)(5) do not affect the substance, clarity, or meaningful sequence of the disclosure and therefore, are permissible. Any changes to the disclosure not specified in § 1026.37(o)(5) or not permitted by other provisions of § 1026.37, may affect the substance, clarity, or meaningful sequence of the disclosure and therefore are not permissible. Creditors making any changes that affect substance, clarity, or meaningful sequence will lose their protection from civil liability under TILA. 2. Manual completion. Section 1026.37(o) does not require the creditor to use a computer, typewriter, or other word processor to complete the disclosure form. The person may fill in information and amounts required to be disclosed by § 1026.37 on form H–24 in appendix H to this part by hand printing or using any other method, provided the person produces clear and legible text and uses the formatting required by form H–24, including replicating bold font where required. Completion by hand or typewriter does not provide an exemption from the requirement to keep records in an electronic, machine readable format under § 1026.25. 3. Contact information. If a transaction involves more than one creditor or mortgage broker, the space provided on form H–24 in appendix H to this part for the contact information required by § 1026.37(m) may be altered to add additional labels to accommodate the additional information of such parties, provided that the information required by § 1026.37(l), (m), and (n) are disclosed on the same page as illustrated by form H–24. If the space provided on form H–24 in appendix H to this part does not allow for the disclosure of such contact and other information on the same page, an additional page may be added to provide the required contact information with an appropriate reference to the additional page. 4. Signature lines. Section 1026.37(o) does not restrict the addition of signature lines to the disclosure VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 required by § 1026.37, provided any signature lines appear only under the ‘‘Confirm Receipt’’ heading required by § 1026.37(n) as illustrated by form H–24 in appendix H to this part. If the number of signatures requested by the creditor requires space for signature lines in excess of that provided on form H–24, an additional page may be added to accommodate the additional signature lines with an appropriate reference to the additional page. Such additional page should also contain the heading and statement required by § 1026.37(n) in the format provided on form H–24. 5. Additional page. Information required or permitted to be disclosed by § 1026.37(o)(5) on a separate page should be formatted similarly to form H–24 in appendix H to this part, so as not affect the substance, clarity, or meaningful sequence of the disclosure. In addition, information provided on additional pages should be consolidated on as few pages as necessary to not affect the substance, clarity, or meaningful sequence of the disclosure. Section 1026.38—Content of Disclosures for Certain Mortgage Transactions (Closing Disclosure) 1. As applicable. The disclosures required by § 1026.38 are to be made only as applicable. A disclosure that is not applicable to a particular transaction generally may be eliminated entirely. For example, the disclosure required by § 1026.38(r) of the consumer or seller’s real estate brokers may be eliminated for a transaction that does not involve such real estate brokers, such as a refinance or home equity loan. Alternatively, the creditor generally may include disclosures that are not applicable to the transaction and note that they are ‘‘not applicable’’ or ‘‘N/A.’’ 2. Format. See § 1026.38(t) and its commentary for guidance on the proper format to be used in making the disclosures, as well as required and permissible modifications. 38(a) General information. 38(a)(3) Closing information. 38(a)(3)(i) Date issued. 1. Applicable date. For general guidance on identifying the date issued for the Closing Disclosure, see the commentary to § 1026.37(a)(4). 38(a)(3)(iv) Agent. 1. Agency name. Section 1026.38(a)(3)(iv) requires the name of the agency that employs the settlement agent. The name of the individual conducting the closing is not required. 38(a)(3)(vi) Property. 1. Alternative property location. For guidance on providing the location of a property that does not have a standard PO 00000 Frm 00332 Fmt 4701 Sfmt 4702 street address, see the commentary to § 1026.37(a)(6). 38(a)(3)(vii) Sale price. 1. No seller. In transactions where there is no seller, such as in a refinancing, § 1026.38(a)(3)(vii)(B) requires the creditor to disclose the appraised value of the property. To comply with this requirement, the creditor discloses the value determined by the appraisal or valuation used to determine approval of the credit transaction, or if a more recent appraisal or valuation has been obtain by the creditor, the value determined by the more recent appraisal or valuation. 38(a)(4) Transaction information. 1. Multiple borrowers and sellers. The name and address of each consumer and seller in the transaction must be provided under the heading ‘‘Transaction Information.’’ If the form does not provide enough space to include the required information for each seller, an additional page may be used and appended to the end of the form provided that the creditor complies with the requirements of § 1026.38(t)(3). For additional guidance on disclosing multiple borrowers, see the commentary to § 1026.37(a)(5). 2. No seller. In transactions where there is no seller, such as in a refinancing or home equity loan, this disclosure may be left blank. 3. Multiple creditors. See commentary to § 1026.37(a)(3) regarding identification requirements for multiple creditors. 38(a)(5) Loan information. 1. General. See commentary to § 1026.37(a)(8) through (12) for guidance on the general requirements and definitions applicable to § 1026.38(a)(5)(i) through (v). 38(b) Loan terms. 1. Guidance. See the commentary to § 1026.37(b) for guidance on the content of the disclosures required by § 1026.38(b). 38(c) Projected payments. 1. In general. For guidance on the disclosure of the projected payments table, see § 1026.37(c) and its commentary. 38(c)(1) Projected payments or range of payments. 1. Escrow account analysis. The amount of estimated escrow payments disclosed on the Closing Disclosure is accurate if it differs from the estimated escrow payment disclosed on the Loan Estimate because of the escrow account analysis described in Regulation X, 12 CFR 1024.17. 38(f) Closing cost details; loan costs. 38(f)(1) Origination charges. 1. Guidance in other comments. For a description of origination charges and E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules discount points, see comments 37(f)(1)– 1, 2 and 3 of this part. 2. Loan originator compensation. All compensation paid to a loan originator, as defined by § 1026.36(a)(1), associated with the transaction, regardless of the party that pays the compensation, must be disclosed pursuant to § 1026.38(f)(1). Compensation from the consumer to a loan originator will be designated as borrower-paid at or before closing, as applicable, on the Closing Disclosure. Compensation from the creditor to a loan originator will be designated as paid by others on the Closing Disclosure. Compensation to a loan originator from both the consumer and the creditor in the transaction is prohibited under § 1026.36(d)(2). 3. Calculating compensation to a loan originator from the creditor. The amount disclosed as paid from the creditor to a loan originator under § 1026.38(f)(1) is the dollar value of salaries, commissions, and any financial or similar compensation provided to a loan originator by the creditor. For additional guidance and examples on the calculation of compensation paid to the loan originator from the creditor, see comments 36(d)(1)–1, –2, –3 and –6. 38(f)(2) Services borrower did not shop for. 1. Guidance in other comments. For examples of services, costs, and their descriptions disclosed under § 1026.38(f)(2), see comments 37(f)(2)–1, 2, 3 and 4 of this part. 38(f)(3) Services borrower did shop for. 1. Provider on written list. Items that were disclosed pursuant to § 1026.37(f)(3) cannot be disclosed under this § 1026.38(f)(3) when the consumer selected a provider contained on the written list provided under § 1026.19(e)(1)(vi)(C). Instead, such costs are disclosed pursuant to § 1026.38(f)(2). 38(f)(5) Subtotal of loan costs. 1. Charges subtotaled. The only charges that are loan costs that are subtotaled pursuant to § 1026.38(f)(5) are those costs designated borrowerpaid at or before closing. Charges which are loan costs designated seller-paid at or before closing, or paid by others, are not subtotaled pursuant to § 1026.38(f)(5). The subtotal of charges that are seller-paid at or before closing or paid by others is disclosed under § 1026.38(h)(2). 38(g) Closing costs details; other costs. 38(g)(1) Taxes and other government fees. 1. Guidance. For additional guidance on taxes and other government fees, see comments 37(g)(1)–1, –2, –3 and –4. 38(g)(2) Prepaids. VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 1. Guidance. For additional guidance on prepaids, see comment 37(g)(2)–1. 2. Negative prepaid interest. The prepaid interest amount is disclosed as a negative number if the calculation of prepaid interest results in a negative number. 3. No prepaid interest. If interest is not collected for a portion of a month or other period between closing and the date from which interest will be collected with the first monthly payment, then $0 must be disclosed under § 1026.38(g)(2). 38(g)(3) Initial escrow payment at closing. 1. Initial escrow account itemization. The creditor must state the amount that it will require the consumer to place into a reserve or escrow account at consummation to be applied to recurring charges for property taxes, homeowner’s and similar insurance, mortgage insurance, homeowner’s association dues, condominium dues, and other periodic charges. Each periodic charge to be included in the escrow or reserve account must be itemized under the ‘‘Initial Escrow Payment at Closing’’ subheading, with a relevant label, monthly payment amount, and number of months collected at closing. 2. Aggregate accounting. The method used to determine the aggregate adjustment for the purposes of establishing the escrow account is described in 12 CFR 1024.17(d)(2). Examples of this calculation methodology can be found in appendix E to 12 CFR part 1024. 38(g)(4) Other. 1. Costs disclosed. The costs disclosed under § 1038(g)(4) include all real estate brokerage fees, homeowner’s or condominium association charges paid at consummation, home warranties, inspection fees, and other fees that are part of the real estate closing but not required by the creditor or disclosed elsewhere under § 1026.38. 2. Owner’s title insurance premium. In a jurisdiction where simultaneous issuance title insurance rates are permitted, any owner’s title insurance premium disclosed under § 1026.38(g)(4) is calculated by using the full owner’s title insurance premium, adding any simultaneous issuance premium for issuance of lender’s coverage, and then deducting the full premium for lender’s coverage disclosed under § 1026.38(f)(2) or (f)(3). Section 1026.38(g)(4)(i) requires that the disclosure of the cost of the premium for an owner’s title insurance policy must include ‘‘Title—’’ at the beginning of the label. In addition, § 1026.38(g)(4)(ii) requires that the disclosure of the cost PO 00000 Frm 00333 Fmt 4701 Sfmt 4702 51447 of the premium for an owner’s title insurance policy must include the parenthetical ‘‘(optional)’’ at the end of the label when designated borrowerpaid at or before closing. 3. Guidance. For additional guidance on the use of the term ‘‘(optional)’’ under § 1038(g)(4)(ii), see comment 37(g)(4)–3. 38(g)(6) Subtotal of costs. 1. Costs subtotaled. The only costs that are subtotaled pursuant to § 1026.38(g)(6) are those costs that are designated borrower-paid at or before closing. Costs that are other costs designated seller-paid at or before closing, or paid by others, are not subtotaled pursuant to § 1026.38(g)(6). The subtotal of charges that are designated seller-paid at or before closing or paid by others is disclosed under § 1026.38(h)(2). 38(h) Closing cost totals. Paragraph 38(h)(2). 1. Charges paid by seller and by others subtotaled. All loan costs and other costs that are designated sellerpaid at or before closing, or paid by others, are also totaled under § 1026.38(h)(2). Paragraph 38(h)(3). 1. General lender credits. When the consumer receives a generalized credit from creditor for closing costs, the amount of the credit must be disclosed. However, if such credit is attributable to a specific loan cost or other cost listed in the Closing Cost Details tables, pursuant to § 1026.38(f) or (g), that amount should be reflected in the paid by others column in the Closing Cost Details tables under § 1026.38(f) or (g). For a description of lender credits from the creditor, see comment 17(c)(1)–19. For a discussion of determining amounts of general lender credits, see comment 19(e)(3)(i)–5. For a discussion of lender credits for specific charges, see comment 19(3)(i)–4. 2. Credits for excess charges. Credits from the creditor to offset an amount charged in excess of the limitations described in § 1026.19(e)(ii) are disclosed pursuant to § 1026.38(h)(3), along with a statement that such amount was paid to offset an excess charge, with funds other than closing funds. If an excess charge is discovered after the revised Closing Disclosure has been provided, the revised form must be provided to the consumer and other appropriate parties, as described under § 1026.19(f)(2)(iii). Paragraph 38(h)(4). 1. Consistent terminology and order of charges. On the Closing Disclosure the creditor must use terminology that is consistent with that used on the Loan Estimate to identify each corresponding E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51448 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules loan cost and other cost. In addition, § 1026.38(h)(4) requires the creditor to list the costs disclosed under each subcategory of charges in a consistent order. If costs move between subheadings under § 1026.38(f)(2) and (f)(3) of this part, listing the costs in alphabetical order in each subheading category is considered to be in compliance with § 1026.38(h)(4). 38(i) Calculating cash to close. 1. More prominent disclosures. Sections 1026.38(i)(1)(iii), 1026.38(i)(2)(iii), 1026.38(i)(3)(iii), 1026.38(i)(4)(iii), 1026.38(i)(5)(iii), 1026.38(i)(6)(iii), 1026.38(i)(7)(iii), and 1026.38(i)(8)(iii) require that statements are given as to whether the ‘‘Final’’ amount disclosed under each subparagraph (ii) of §§ 1026.38(i)(1) through (i)(8) is different or equal to, and in some cases whether the amount is greater than or less than, the corresponding ‘‘Estimate’’ amount disclosed under each subparagraph (i) of §§ 1026.38(i)(1) through (i)(8). These statements are more prominent than the other disclosures under § 1026.38(i). The statement of whether the estimated and final amounts are different, stated as a ‘‘Yes’’ or ‘‘No’’ in capital letters and boldface font, under the subheading ‘‘Did this change?,’’ as shown on form H–25 in appendix H to this part, complies with the requirement to state whether the amounts are different more prominently. Such statement of ‘‘No’’ satisfies the requirement to state that the estimated and final amounts are equal, and these sections do not provide for any narrative text to be included with such statement. The prominence requirement also requires that, in the event an increase or decrease in costs has occurred, certain words within the narrative text to be included under the subheading ‘‘Did this change?’’ for a ‘‘Yes’’ answer are displayed more prominently than other disclosures. For example, under § 1026.38(i)(1)(iii)(A), this more prominent statement could take the form of the phrases ‘‘Total Loan Costs (D)’’ and ‘‘Total Other Costs (I)’’ being shown in boldface, as shown on form H–25 in appendix H to this part. See comments 38(i)–3 and –4 for further guidance regarding the prominence of such statements. 2. Statements of differences. The dollar amounts disclosed under § 1026.38 generally are shown to two decimal places unless otherwise stated. See comment 38(t)(4)–1. As a result, any ‘‘Final’’ amount that is disclosed in the ‘‘Calculating Cash to Close’’ table under § 1026.38(i) is shown to two decimal places unless otherwise stated. Pursuant to § 1026.38(t)(4)(i)(C), however, any ‘‘Estimate’’ amount that is disclosed in VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 the ‘‘Calculating Cash to Close’’ table under § 1026.38(i) is shown to the nearest dollar amount, and thus matches the corresponding estimated amount disclosed on the Loan Estimate’s ‘‘Calculating Cash to Close’’ table under § 1026.37(h), which is shown to the nearest whole dollar pursuant to § 1026.37(o)(4)(i)(A). For this reason, a ‘‘Final’’ amount shown to two decimal places could be a larger number than its corresponding ‘‘Estimate’’ amount shown to the nearest whole dollar, when, in fact, the apparent increase is due solely to rounding. Therefore, for purposes of §§ 1026.38(i)(1)(iii), 1026.38(i)(2)(iii), 1026.38(i)(3)(iii), 1026.38(i)(4)(iii), 1026.38(i)(5)(iii), 1026.38(i)(6)(iii), 1026.38(i)(7)(iii), and 1026.38(i)(8)(iii), each statement of a change between the amounts disclosed on the Loan Estimate and the Closing Disclosure is based on the actual, nonrounded estimate that would have been disclosed on the Loan Estimate under § 1026.37(h) if it had been shown to two decimal places rather than a whole dollar amount. For example, if the ‘‘Estimate’’ amount of ‘‘Total Closing Costs’’ disclosed under § 1026.38(i)(1)(i) is $12,500, and the ‘‘Final’’ amount of ‘‘Total Closing Costs’’ disclosed under § 1026.38(i)(1)(ii) is $12,500.35, then even though the table would appear to show a $0.35 increase in ‘‘Total Closing Costs,’’ no statement of such increase is given under § 1026.38(i)(1)(iii) so long as the actual, non-rounded estimate (i.e., the estimated amount of ‘‘Total Closing Costs’’ that would have been shown on the Loan Estimate to two decimal places) is equal to $12,500.35. 3. Statements that the consumer should see details. The provisions of § 1026.38(i)(4)(iii)(A), (i)(5)(iii)(A), (i)(7)(iii)(A), and (i)(8)(iii)(A) each require a statement that the consumer should see certain details of the closing costs disclosed under § 1026.38(j). Form H–25 in appendix H to this part contains examples of these statements. For example, § 1026.38(i)(7)(iii)(A) requires a statement that the consumer should see the details disclosed pursuant to § 1026.38(j)(2)(v), and, as shown on form H–25, the statement, ‘‘See Seller Credits in Section L,’’ in which the words ‘‘Section L’’ are boldface, complies with this provision. In addition, for example, § 1026.38(i)(5)(iii)(A) requires a statement that the consumer should see the details disclosed pursuant to § 1026.38(j)(2)(ii), and the following similar statement to that shown on form H–25 for § 1026.38(i)(7)(iii)(A), ‘‘See Deposit in Section L,’’ complies with this provision. PO 00000 Frm 00334 Fmt 4701 Sfmt 4702 4. Statements of increases or decreases. The statements of whether there is a difference between the final and estimated amounts under the subheading ‘‘Did this change?,’’ as required by § 1026.38(i). The provisions of § 1026.38(i)(4)(iii)(A), (i)(5)(iii)(A), and (i)(6)(iii)(A) each require a statement of whether the amount increased or decreased from the estimated amount. Form H–25 in appendix H to this part contains an example of the statement required by § 1026.38(i)(6)(iii)(A). For the provisions of § 1026.38(i)(4)(iii)(A) and (i)(5)(iii)(A), the statement, ‘‘You increased this payment,’’ in which the word ‘‘increased’’ is boldface and is replaced with the word ‘‘decreased’’ as applicable, complies with this provision. 38(i)(1) Total closing costs. Paragraph 38(i)(1)(i). 1. Reference to disclosure of total closing costs. Under § 1026.38(i)(1)(i), the amount disclosed is labeled ‘‘Total Closing Costs,’’ and such label is accompanied by a reference to the disclosure of ‘‘Total Closing Costs’’ under § 1026.38(h)(1). This reference may take the form, for example, of a cross-reference in parenthesis to the row on the table disclosed under § 1026.38(h) that includes the itemized amount for ‘‘Total Closing Costs,’’ as shown on form H–25 in appendix H to this part. Paragraph 38(i)(1)(iii)(A). 1. Statements and references regarding the total loan costs and total other costs. Under § 1026.38(i)(1)(iii)(A), the statements under the subheading ‘‘Did this change?’’ that the consumer should see the total loan costs and total other costs subtotals disclosed on the Closing Disclosure under § 1026.38(f)(4) and (g)(5) is made only if and to the extent the difference in the ‘‘Total Closing Costs’’ is attributable to differences in itemized charges that are included in either or both of such subtotals. i. For example, if an increase in the ‘‘Total Closing Costs’’ is attributable only to an increase in the appraisal fee (which is an itemized charge on the Closing Disclosure under the subheading ‘‘Services Borrower Did Not Shop For,’’ itself under the heading ‘‘Loan Costs’’), then a statement is given under the subheading ‘‘Did this change?’’ that the consumer should see the total loan costs subtotal disclosed on the Closing Disclosure under § 1026.38(f)(4). If the increase in ‘‘Total Closing Costs’’ is attributable only to an increase in recording fees (which is an itemized charge on the Closing Disclosure under the subheading ‘‘Taxes E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules and Other Government Fees,’’ itself under the heading ‘‘Other Costs’’), then a statement is given under the subheading ‘‘Did this change?’’ that the consumer should see the total other costs subtotal disclosed on the Closing Disclosure under § 1026.38(g)(5). If, however, the increase is attributable in part to an increase in the appraisal fee and in part to an increase in the recording fee, then a statement is given under the subheading ‘‘Did this change?’’ that the consumer should see the total loan costs and total other costs subtotals disclosed on the Closing Disclosure under § 1026.38(f)(4) and (g)(5). ii. For guidance regarding the requirement that this statement be accompanied by a reference to the disclosures of the total loan costs and total other costs under §§ 1026.38(f)(4) and (g)(5), see comment 38(i)(1)(i)–1. For an example of such reference, see form H–25 in appendix H to this part. 2. Disclosure of excess amounts above limitations on increases in closing costs. i. Because certain closing costs, individually, are subject to the limitations on increases in closing costs under § 1026.19(e)(3)(i) (e.g., fees paid to the creditor, transfer taxes, fees paid to an affiliate of the creditor), while other closing costs are collectively subject to the limitations on increases in closing costs under § 1026.19(e)(3)(ii) (e.g., recordation fees, fees paid to an unaffiliated third party identified by the creditor if the creditor permitted the consumer to shop for the service provider), § 1026.38(i)(1)(iii)(A) requires the creditor or closing agent to calculate subtotals for each type of excess amount, and then add such subtotals together to yield the dollar amount to be disclosed in the table. See commentary to § 1026.19(e)(3) for additional guidance on calculating excess amounts above the limitations on increases in closing costs under § 1026.19(e)(3). ii. Under § 1026.38(i)(1)(iii)(A), calculation of the excess amounts above the limitations on increases in closing costs takes into account that the itemized, estimated closing costs disclosed on the Loan Estimate will not result in charges to the consumer if the service is not actually provided at or before consummation. For example, if the Loan Estimate included under ‘‘Services You Cannot Shop For’’ a $30 charge for a ‘‘title courier fee,’’ but the title company elects to hand-deliver the title documents package to the creditor at no charge, the $30 fee is not factored into the calculation of the ‘‘Total Closing Costs’’ that are subject to the limitations on increases in closing costs. However, if the title courier fee was VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 assessed, but at only $15, the charge is factored into the calculation because the third party service was actually provided, albeit at a lower amount than estimated. iii. Under § 1026.38(i)(1)(iii)(A), calculation of the excess amounts above the limitations on increases in closing costs takes into account that certain itemized charges listed on the Loan Estimate under the subheading ‘‘Services You Can Shop For’’ may be subject to different limitations depending on the circumstances. Such a charge would be subject to the limitations under § 1026.19(e)(3)(i) if the consumer decided to use a provider affiliated with the creditor. However, the same charge would instead be subject to the limitations under § 1026.19(e)(3)(ii) if the consumer selected a third party service provider unaffiliated with but identified by the creditor, and the creditor permitted the consumer to shop for the service provider. See commentary to § 1026.19(e)(3) for additional guidance on calculating excess amounts above the limitations on increases in closing costs under § 1026.19(e)(3). 38(i)(2) Closing costs subtotal paid before closing. Paragraph 38(i)(2)(i). 1. Estimate of closing costs subtotal paid before closing. Under § 1026.38(i)(2)(i), the ‘‘Estimate’’ amount for ‘‘Closing Costs Subtotal Paid Before Closing’’ is always shown as ‘‘$0,’’ because an estimate of such amount is not disclosed on the Loan Estimate. Paragraph 38(i)(2)(iii)(B). 1. Equal amount. Under § 1026.38(i)(2)(iii)(B), the creditor or closing agent will give a statement that the ‘‘Final’’ amount disclosed under § 1026.38(i)(2)(ii) is equal to the ‘‘Estimate’’ amount disclosed under § 1026.38(i)(2)(i), only if the ‘‘Final’’ amount is $0, because the ‘‘Estimate’’ amount is always disclosed as $0 pursuant to § 1026.38(i)(2)(i). See comment 38(i)(2)(i)–1. 38(i)(4) Downpayment/funds from borrower. Paragraph 38(i)(4)(ii)(A). 1. Downpayment. Under § 1026.38(i)(4)(ii)(A), in a transaction that is a purchase as defined in § 1026.37(a)(9)(i), the ‘‘Final’’ amount disclosed for ‘‘Downpayment/Funds from Borrower’’ reflects any change, following delivery of the Loan Estimate, in the amount of down payment required of the consumer. This change might result, for example, from an increase in the purchase price of the property. Paragraph 38(i)(4)(ii)(B). PO 00000 Frm 00335 Fmt 4701 Sfmt 4702 51449 1. Funds from borrower. Section 1026.38(i)(4)(ii)(B) provides that, in a transaction other than a purchase as defined in § 1026.37(a)(9)(i), the ‘‘Final’’ amount disclosed for ‘‘Downpayment/ Funds from Borrower’’ is the amount of ‘‘Funds from Borrower’’ determined in accordance with § 1026.38(i)(6)(iv). Under § 1026.38(i)(6)(iv), the ‘‘Final’’ amount of ‘‘Funds from Borrower’’ to be disclosed under § 1026.38(i)(4)(ii)(B) is determined by subtracting from the total amount of all existing debt being satisfied in the real estate closing and disclosed under § 1026.38(j)(1)(v) (except to the extent the satisfaction of such existing debt is disclosed under § 1026.38(g)) the principal amount of the credit extended, and is disclosed either as a positive number or $0 depending on the result of the calculation. An increase in the ‘‘Final’’ amount of ‘‘Funds from Borrower’’ compared to the corresponding ‘‘Estimate’’ amount might result, for example, from a decrease in the amount of the credit extended or an increase in the payoff amount for the consumer’s existing debt that is secured by the property. For additional guidance regarding the determination of the ‘‘Funds from Borrower’’ amount, see comment 38(i)(6)(ii)–1. Paragraph 38(i)(4)(iii)(A). 1. Statement of differences. Section 1026.38(i)(4)(iii)(A) requires, as applicable, a statement that the consumer has increased or decreased this payment, along with a statement that the consumer should see the details disclosed under § 1026.38(j)(1) or (j)(2), as applicable. The applicable disclosure to be referenced corresponds to the label on the Closing Disclosure under which the information accounting for the increase in the ‘‘Downpayment/Funds from Borrower’’ amount is disclosed. For example, in a transaction that is a purchase as defined in § 1026.37(a)(9)(i), if the purchase price of the property has increased and therefore caused the ‘‘Downpayment’’ amount to increase, the statement, ‘‘You increased this payment. See details in Section K,’’ with the words ‘‘increased’’ and ‘‘Section K’’ in boldface text, complies with this requirement. In a purchase or refinancing transaction, in the event the amount of the credit extended by the creditor has decreased and therefore caused the ‘‘Funds from Borrower’’ amount to increase, the statement can read, for example, ‘‘You increased this payment. See details in Section L,’’ with the same boldface text. 38(i)(6) Funds for borrower. Paragraph 38(i)(6)(ii). 1. Final funds for borrower. Section 1026.38(i)(6)(ii) provides that the E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51450 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules ‘‘Final’’ amount for ‘‘Funds for Borrower’’ is determined in accordance with § 1026.38(i)(6)(iv). Under § 1026.38(i)(6)(iv), the ‘‘Final’’ amount of ‘‘Funds for Borrower’’ to be disclosed under § 1026.38(i)(6)(ii) is determined by subtracting from the total amount of all existing debt being satisfied in the transaction and disclosed under § 1026.38(j)(1)(v) (except to the extent the satisfaction of such existing debt is disclosed under § 1026.38(g)) the principal amount of the credit extended (excluding any amount disclosed under § 1026.38(i)(3)(ii), and is disclosed under § 1026.38(i)(6)(ii) either as a negative number or $0.00 depending on the result of the calculation. The ‘‘Final’’ amount of ‘‘Funds for Borrower’’ disclosed under § 1026.38(i)(6)(ii) is the amount to be disbursed to the consumer or a designee of the consumer at consummation, if any. 38(i)(7) Seller credits. Paragraph 38(i)(7)(ii). 1. Final seller credits. Under § 1026.38(i)(7)(ii), the ‘‘Final’’ amount of ‘‘Seller Credits’’ reflects any change, following the delivery of the Loan Estimate, in the amount of funds given by the seller to the consumer for generalized (i.e., lump sum) credits for closing costs or for allowances for items purchased separately (e.g., if the seller is a builder). Seller credits are distinguished from payments by the seller for items attributable to periods of time prior to consummation, which are among the ‘‘Adjustments and Other Credits’’ separately disclosed pursuant to § 1026.38(i)(8). For additional guidance regarding seller credits, see comments 38(j)(2)(v)–1 and –2. 38(i)(8) Adjustments and other credits. Paragraph 38(i)(8)(ii). 1. Adjustments and other credits. Under § 1026.38(i)(8)(ii), the ‘‘Final’’ amount for ‘‘Adjustments and Other Credits’’ would include, for example, prorations of taxes or homeowners’ association fees, utilities used but not paid for by the seller, rent collected in advance by the seller from a tenant for a period extending beyond the consummation, and interest on loan assumptions. This category also includes generalized credits toward closing costs given by parties other than the seller. For additional guidance regarding adjustments and other credits, see commentary to §§ 1026.37(h)(7), 1026.38(j)(2)(vi), and 1026.38(j)(2)(xi). If the calculation required by § 1026.38(i)(8)(ii) yields a negative number, the creditor or closing agent discloses the amount as a negative number. VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 38(i)(9) Cash to close. Paragraph 38(i)(9)(ii). 1. Final cash to close amount. The ‘‘Final’’ amount of ‘‘Cash to Close’’ disclosed under § 1026.38(i)(9)(ii) is the same as the amount disclosed on the Closing Disclosure as ‘‘Cash to Close’’ under § 1026.38(j)(3)(iii). If the calculation required by § 1026.38(i)(9)(ii) yields a negative number, the creditor or closing agent discloses the amount as a negative number. 2. More prominent disclosure. Section 1026.38(i)(9)(ii) requires that the disclosure of the ‘‘Final’’ amount of ‘‘Cash to Close’’ be more prominent than the other disclosures under § 1026.38(i). Such more prominent disclosure can take the form, for example, of boldface font, as shown on form H–25 in appendix H to this part. 38(j) Summary of borrower’s transaction. 1. In general. It is permissible to have two separate Closing Disclosures in a transaction: One that reflects the consumer’s costs and credits only, which is provided to the consumer, and one with the seller’s costs and credits only, which is provided to the seller. See § 1026.38(t)(5)(vii) and (viii). Some State laws may prohibit provision of information about the consumer to the seller and about the seller to the consumer. 2. Addendums. Additional pages may be attached to the Closing Disclosure to add lines, as necessary, to accommodate the complete listing of all items required to be shown on the Closing Disclosure, and for the purpose of including customary recitals and information used locally in real estate closings (for example, breakdown of payoff figures, a breakdown of the consumer‘s total monthly mortgage payments, an accounting of debits received and check disbursements, a statement stating receipt of funds, applicable special stipulations between consumer and seller, and the date funds are transferred). See § 1026.38(t)(5)(vi). 3. Identical amounts. The amounts disclosed under the following provisions of § 1026.38(j) are the same as the amounts disclosed under the corresponding provisions of § 1026.38(k): § 1026.38(j)(1)(ii) and § 1026.38(k)(1)(ii); § 1026.38(j)(1)(iii) and § 1026.38(k)(1)(iii); if the amount disclosed under § 1026.38(j)(1)(v) is attributable to contractual adjustments between the consumer and seller, § 1026.38(j)(1)(v) and § 1026.38(k)(1)(iv); § 1026.38(j)(1)(vii) and § 1026.38(k)(1)(vi); § 1026.38(j)(1)(viii) and § 1026.38(k)(1)(vii); § 1026.38(j)(1)(ix) and PO 00000 Frm 00336 Fmt 4701 Sfmt 4702 § 1026.38(k)(1)(viii); § 1026.38(j)(1)(x) and § 1026.38(k)(1)(ix); § 1026.38(j)(2)(iv) and § 1026.38(k)(2)(iv); § 1026.38(j)(2)(v) and § 1026.38(k)(2)(vii); § 1026.38(j)(2)(viii) and § 1026.38(k)(2)(x); § 1026.38(j)(2)(ix) and § 1026.38(k)(2)(xi); § 1026.38(j)(2)(x) and § 1026.38(k)(2)(xii); and § 1026.38(j)(2)(xi) and § 1026.38(k)(2)(xiii). 38(j)(1) Itemization of amounts due from borrower. Paragraph 38(j)(1)(ii). 1. Contract sales price and personal property. Section 1026.38(j)(1)(ii) requires disclosure of the contract sales price of the property being sold, excluding the price of any tangible personal property if the consumer and seller have agreed to a separate price for such items. Personal property is defined by state law, but could include such items as carpets, drapes, and appliances. Manufactured homes are not considered personal property under § 1026.38(j)(1)(ii). Paragraph 38(j)(1)(v). 1. Contractual adjustments. Section 1026.38(j)(1)(v) requires disclosure of amounts owed by the consumer that are not otherwise disclosed pursuant to § 1026.38(j). For example, the following items must be disclosed under § 1026.38(j), to the extent applicable: i. The balance in the seller’s reserve account held in connection with an existing loan, if assigned to the consumer in a loan assumption transaction; ii. Any rent that the consumer will collect after the real estate closing for a period of time prior to the real estate closing; or iii. The treatment of any tenant security deposit. 2. Other consumer charges. The amounts disclosed under § 1026.38(j)(1)(v) which are for charges owed by the consumer at the real estate closing not otherwise disclosed pursuant to § 1026.38(f), (g), and (j) will not have a corresponding credit in the summary of seller’s transaction under § 1026.38(k)(1)(iv). For example, the amounts paid to any existing holders of liens on the property in a refinance transaction, and any outstanding real estate property taxes are disclosed under § 1026.38(j)(1)(v) without a corresponding credit in the summary of seller’s transaction under § 1026.38(k)(1)(iv). Paragraph 38(j)(1)(x). 1. Additional adjustments. Examples of items for which adjustments may be made include taxes, other than those disclosed pursuant to § 1026.38(j)(1)(vii) and (viii), paid in advance for an entire year or other period, when the real E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules estate closing occurs prior to the expiration of the year or other period for which they were paid. Additional examples of items for which adjustments may be made include: i. Flood and hazard insurance premiums, if the consumer is being substituted as an insured under the same policy; ii. Mortgage insurance in loan assumptions; iii. Planned unit development or condominium association assessments paid in advance; iv. Fuel or other supplies on hand, purchased by the seller, which the consumer will use when consumer takes possession of the property; and v. Ground rent paid in advance. 38(j)(2) Itemization of amounts already paid by or on behalf of borrower. Paragraph 38(j)(2)(ii). 1. Deposit. All amounts paid into a trust account by the consumer pursuant to the contract of sale for real estate, any addenda thereto, or any other agreement between the consumer and seller must be disclosed under § 1026.38(j)(2)(ii). 2. Reduction of deposit when deposit used to pay for closing charges prior to closing. If the consumer’s deposit has been applied toward a charge for a closing cost, the amount applied should not be included in the amount disclosed pursuant to § 1026.38(j)(2)(ii), but instead should be shown on the appropriate line for the closing cost in the Closing Cost Detail tables pursuant to § 1026.38(f) or (g), designated borrower-paid before closing. Paragraph 38(j)(2)(iii). 1. First user loan. For purposes of § 1026.38(j), a first user loan is a loan to finance construction of a new structure or purchase of manufactured home that is known at the time of consummation to be real property under state law, where the structure was constructed for sale or the manufactured home was purchased for purposes of resale and the loan is used as or converted to a loan to finance purchase by the first user. For other loans subject to § 1026.19(f) that finance construction of a new structure or purchase of a manufactured home that is known at the time of consummation to be real property under State law, the sales price of the land and the construction cost or purchase price of the manufactured home should be disclosed separately and the amount of the loan in the current transaction must be disclosed. The remainder of the Closing Disclosure should be completed taking into account adjustments and charges related to the temporary financing and permanent financing that are known at the time of consummation. VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 Paragraph 38(j)(2)(iv). 1. Assumption of existing loan obligation of seller by consumer. The outstanding amount of any loan that the consumer is assuming, or subject to which the consumer is taking title to the property must be disclosed under § 1026.38(j)(2)(iv). Paragraph 38(j)(2)(v). 1. General seller credits. When the consumer receives a generalized credit from the seller for closing costs or where the seller (typically a builder) is making an allowance to the consumer for items to purchase separately, the amount of the credit must be disclosed. However, if the seller credit is attributable to a specific loan cost or other cost listed in the Closing Cost Details tables, pursuant to § 1026.38(f) or (g), that amount should be reflected in the seller-paid column in the Closing Cost Details tables under § 1026.38(f) or (g). 2. Other seller credits. Any other obligations of the seller to be paid directly to the consumer, such as for issues identified at a walk-through of the property prior to closing, are disclosed under § 1026.38(j)(2)(v). Paragraph 38(j)(2)(vi). 1. Credits from any party other than the seller or creditor. Section 1026.38(j)(2)(vi) requires disclosure of a description and the amount of items paid by or on behalf of the consumer and not disclosed elsewhere under § 1026.38(j)(2). For example, credits a consumer receives from a real estate agent or other third party, other than a seller or creditor, are disclosed pursuant to § 1026.38(j)(2)(vi). However, if the credit is attributable to a specific closing cost listed in the Closing Cost Details tables under § 1026.38(f) or (g), that amount should be reflected in the paid by others column on the Closing Cost Details tables and not in the disclosure required under § 1026.38(j)(2)(vi). Similarly, if a real estate agent rebates a portion of the agent’s commission to the consumer, the rebate should be listed as a credit along with a description of the rebate, which must include the name of the party giving the credit. 2. Subordinate financing proceeds. Any financing arrangements or other new loans not otherwise disclosed pursuant to § 1026.38(j)(2)(iii) or (iv) must also be disclosed pursuant to § 1026.38(j)(2)(vi). For example, if the consumer is using a second mortgage or note to finance part of the purchase price, whether from the same creditor, another creditor, or the seller, the principal amount of the loan disclosed with a brief explanation. If the net proceeds of a second loan are less than the principal amount of the second loan, PO 00000 Frm 00337 Fmt 4701 Sfmt 4702 51451 the net proceeds may be listed on the same line as the principal amount of the second loan. For an example, see form H–25 in appendix H to this part. 3. Satisfaction of existing subordinate liens by consumer. For payments to subordinate lien holders by or on behalf of the consumer, disclosure of any amounts paid with funds other than closing funds, as defined under § 1026.38(j)(4)(ii), in connection with the second mortgage payoff are required to be disclosed under § 1026.38(j)(2)(vi), with a statement that such amounts were paid outside of closing funds. 4. Transferred escrow balances. In a refinance transaction, any transferred escrow balance is listed as a credit pursuant to § 1026.38(j)(2)(vi), along with a description of the transferred escrow balance. 5. Gift funds. A credit must be disclosed for any money or other payments made by family members or third parties not otherwise associated with the transaction, along with a description of the nature of the funds provided under § 1026.38(j)(2)(vi). Paragraph 38(j)(2)(xi). 1. Examples. Examples of items that would be disclosed under § 1026.38(j)(2)(xi) include: i. Utilities used but not paid for by the seller; ii. Rent collected in advance by the seller from a tenant for a period extending beyond the closing date; and iii. Interest on loan assumptions. 38(j)(3) Calculation of borrower’s transaction. Paragraph 38(j)(3)(iii). 1. Stating if a mount is due to or from consumer. To comply with § 1026.38(j)(3)(iii), the creditor must state either the cash required from the consumer at consummation, or cash payable to the consumer at consummation, as described under § 1026.38(j)(2)(iii). 2. Methodology. To calculate the cash to close, total the amounts disclosed under § 1026.38(j)(3)(i) and (ii). If that calculation results in a positive amount, the amount is due from the consumer. If the calculation results in a negative amount, the amount is due to the consumer. 38(j)(4) Items paid outside of closing funds. Paragraph 38(j)(4)(i). 1. Charges not paid with closing funds. Section 1026.38(j)(4)(i) requires that any charges not paid from closing funds but that otherwise are disclosed pursuant to § 1026.38(j) be marked as ‘‘paid outside of closing’’ or ‘‘P.O.C.’’ The disclosure must include a statement of the party making the payment, such as the consumer, seller, loan originator, E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51452 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules real estate agent, or any other person. For an example of a disclosure of a charge not made from closing funds, see form H–25 in appendix H to this part. For an explanation of what constitutes closing funds, see § 1026.38(j)(4)(ii). 2. Items paid without closing funds not included in totals. Charges that are paid outside of closing funds under § 1026.38(j)(4)(i) should not be included in computing totals under § 1026.38(j)(1) and (j)(2). 38(k) Summary of seller’s transaction. 1. Transactions with no seller. Section 1026.38(k) does not apply in transactions where there is no seller, such as a refinance transaction. 2. Extra line items. For guidance regarding the use of an addendum, see comment 38(j)–2. 3. Identical amounts. For guidance regarding the amounts disclosed under certain provisions of § 1026.38(k) are the same as amounts disclosed under certain provisions of § 1026.38(j), see comment 38(j)–3. 38(k)(2) Itemization of amounts due from seller. Paragraph 38(k)(2)(ii). 1. Excess deposit disbursed to seller by party other than closing agent. If the seller’s real estate broker or other party who is not the closing agent has received and holds a deposit against the sales price (earnest money) which exceeds the fee or commission owed to that party, the excess deposit must be disclosed pursuant to § 1026.38(k)(2)(ii), if that party will provide the excess deposit directly to the seller, rather than through the closing agent. 2. Distributions of deposit to seller prior to consummation. If the deposit or any portion thereof has been disbursed to the seller prior to closing, only the amount of the deposit that has not been distributed to the seller must be disclosed under § 1026.38(k)(2)(ii). Paragraph 38(k)(2)(iv). 1. Assumption of existing loan obligation of seller by consumer. If the consumer is assuming or taking title subject to existing liens and the amounts of the outstanding balance of the lien are to be deducted from sales price, the amounts of the outstanding balance of the lien must be disclosed under § 1026.38(k)(2)(iv). 2. Other seller credits. Any other obligations of the seller to be paid directly to the consumer, such as credits for issues identified at a walk-through of the property prior to the real estate closing, are disclosed under § 1026.38(k)(2)(vii). Paragraph 38(k)(2)(viii). 1. Satisfaction of other seller obligations. Seller obligations, other than second liens, that must be paid off VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 to clear title to the property must be disclosed pursuant to § 1026.38(k)(2)(viii). Examples of disclosures pursuant to § 1026.38(k)(2)(viii) include the satisfaction of outstanding liens imposed due to Federal, State, or local income taxes, real estate property tax liens, judgments against the seller reduced to lien upon the property, or any other obligations the seller wishes the closing agent to pay from their proceeds at the real estate closing. 2. Consumer satisfaction of outstanding subordinate loans. If the consumer is satisfying existing liens which will not be deducted from the sales price, the amount of the outstanding balance of the loan must be disclosed under § 1026.38(k)(2)(viii). For example, the amount of any second lien which will be paid as part of the real estate closing that is not deducted from the seller’s proceeds under § 1026.38(k)(2)(iv), is disclosed under § 1026.38(k)(2)(viii). For payments to the subordinate lien holder, any amounts paid must be disclosed, and other amounts paid by or on behalf of the seller must be disclosed as paid outside of closing funds under § 1026.38(j)(2)(vi). For additional discussion, see comment 38(j)(2)(vi)–2. 3. Escrows held by closing agent for payment of invoices received after consummation. Funds to be held by the closing agent for the payment of either repairs, or water, fuel, or other utility bills that cannot be prorated between the parties at closing because the amounts used by the seller prior to closing are not yet known must be disclosed under § 1026.38(k)(2)(viii). Subsequent disclosure of the actual amount of these post-closing items to be paid from closing funds is optional. 38(k)(3) Calculation of seller’s transaction. 1. Stating if amount is due to or from seller. To comply with § 1026.38(k)(3)(iii), the creditor must state either the cash required from the seller at closing, or cash payable to the seller at closing, as described under § 1026.38(k)(2)(iii). 2. Methodology. To calculate the cash due to or from the consumer, total the amounts disclosed under § 1026.38(k)(3)(i) and (ii). If that calculation results in a positive amount, the amount is due to the seller. If the calculation results in a negative amount, the amount is due from the seller. 38(k)(4) Items paid outside of closing funds. 1. Guidance. For guidance regarding the disclosure of items paid with funds other than closing funds, see comments 38(j)(4)–1 and –2. PO 00000 Frm 00338 Fmt 4701 Sfmt 4702 38(l) Loan disclosures. 38(l)(2) Demand feature. 1. Covered features. See comment 18(i)–2 for a description of demand features triggering the disclosure requirements of § 1026.38(l)(2). 38(l)(3) Late payment. 1. Guidance. See the commentary to § 1026.37(m)(4) for guidance on disclosing late payment requirements under § 1026.38(l)(3). 38(l)(7) Escrow account. Paragraph 38(l)(7)(i)(A)(2). 1. Estimated costs not paid by escrow account funds. Section 1026.38(l)(7)(i)(A)(2) requires the creditor to estimate the amount the consumer is likely to pay during the first year after consummation for charges described in § 1026.37(c)(4)(ii) that are known to the creditor that will not be paid using escrow account funds. The creditor discloses this amount only if an escrow account will be established for the payment of any amounts described in § 1026.37(c)(4)(ii). The creditor complies with this provision by disclosing the amount of such charges used to calculate the estimated taxes, insurance, and assessments disclosed pursuant to § 1026.38(c)(1) as the total amount scheduled to be paid during the first year after consummation. Paragraph 38(l)(7)(i)(A)(4). 1. Estimated costs paid using escrow account funds. The amount the consumer will be required to pay into an escrow account with each periodic payment during the first year after consummation pursuant to § 1026.38(l)(7)(i)(A)(4) is the amount of estimated escrow payments disclosed pursuant to § 1026.38(c)(1). Paragraph 38(l)(7)(i)(B)(1). 1. Estimated costs paid directly by the consumer. The estimated total amount the consumer will pay directly for charges described in § 1026.37(c)(4)(ii) that are known to the creditor in the absence of an escrow account during the first year after consummation pursuant to § 1026.38(l)(7)(i)(B)(1) is the amount of estimated taxes, insurance, and assessments disclosed pursuant to § 1026.38(c)(1) as the estimated total amount scheduled to be paid during the first year after consummation. The creditor discloses this amount only if no escrow account will be established for the payment of amounts described in § 1026.37(c)(4)(ii). 38(m) Adjustable payment table. 1. Guidance. See the commentary to § 1026.37(i) for guidance regarding the disclosure required by § 1026.38(m). 2. Master heading. The disclosure required by § 1026.38(m) is required to be provided under a different master heading than the disclosure required by E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules § 1026.37(i), but all other requirements applicable to the disclosure required by § 1026.37(i) apply to the disclosure required by § 1026.38(m). 3. When table is not permitted to be disclosed. Like the disclosure required by § 1026.37(i), the disclosure required by § 1026.38(m) is permitted only if the periodic principal and interest payment may change after consummation based on a loan term other than on an adjustment to the interest rate or if the transaction is a seasonal payment product as described under § 1026.37(a)(10)(ii)(E). If the transaction does not contain these terms, this table is not permitted on the Closing Disclosure. See comments 37–1 and 37(i)–1. 4. Final loan terms. The disclosures required by § 1026.38(m) must include the information required by § 1026.37(i), as applicable, but the creditor must make the disclosure using the information that is known at the time the disclosure is required to be provided by § 1026.19(f). 38(n) Adjustable interest rate table. 1. Guidance. See the commentary to § 1026.37(j) for guidance regarding the disclosures required by § 1026.38(n). 2. Master heading. The disclosure required by § 1026.38(n) is required to be provided under a different master heading than the disclosure required by § 1026.37(j), but all other requirements applicable to the disclosure required by § 1026.37(j) apply to the disclosure required by § 1026.38(n). 3. When table is not permitted to be disclosed. Like the disclosure required by § 1026.37(j), the disclosure required by § 1026.38(n) is permitted only if the interest rate may change after consummation based on the terms of the legal obligation. If the interest rate will not change after consummation, this table is not permitted on the Closing Disclosure. See comments 37–1 and 37(j)–1. 4. Final loan terms. The disclosures required by § 1026.38(n) must include the information required by § 1026.37(j), as applicable, but the creditor must make the disclosure using the information that is known at the time the disclosure is required to be provided by § 1026.19(f). 38(o) Loan Calculations. 38(o)(1) Total of payments. 1. Calculation of total of payments. The total of payments is calculated in the same manner as the ‘‘In 5 Years’’ disclosure pursuant to § 1026.37(l)(1)(i), except that the disclosed amount reflects the total payments through the end of the loan term. For guidance on the amounts included in the total of VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 payments calculation, see comment 37(1)(1)(i)–1. 38(o)(2) Finance charge. 1. Calculation of finance charge. The finance charge is calculated in accordance with the requirements of § 1026.4 and its commentary and is expressed as a dollar amount. 2. Disclosure. The finance charge is disclosed as a total amount; the components of the finance charge are not itemized. 38(o)(3) Amount financed. 1. Calculation of amount financed. The amount financed is calculated in accordance with the requirements of § 1026.18(b) and its commentary. 38(o)(5) Total interest percentage. 1. In general. For guidance on calculation and disclosure of the total interest percentage, see § 1026.37(l)(3) and its commentary. 38(p) Other disclosures. 38(p)(1) Appraisal. 1. Applicability. Section 1026.38 provides that the disclosures must be made as applicable. The disclosure required by § 1026.38(p)(1) is only applicable to closed-end transactions subject to § 1026.19(f) that are also subject either to 15 U.S.C. 1639h or 1691(e), as implemented by this part or Regulation B, 12 CFR part 1002, respectively. Accordingly, if a transaction is not subject to either of those provisions, the disclosure required by § 1026.38(p)(1) may be omitted from the Closing Disclosure. 38(p)(3) Liability after foreclosure. 1. State law requirements. If the creditor forecloses on the property and the proceeds of the foreclosure sale are less than the unpaid balance on the loan, whether the consumer has continued or additional responsibility for the loan balance after foreclosure, and the conditions under which liability occurs, will vary by state. Section 1026.38(p)(3) requires the creditor to provide a brief description of the applicable State’s requirements. Any type of protection afforded by State law, other than a statute of limitations that only limits the timeframe in which a creditor may seek redress, requires a statement that State law may protect the consumer from liability for the unpaid balance. 38(q) Questions notice. Paragraph 38(q)(3). 1. Prominent question mark. The notice required under § 1026.38(q) includes a prominent question mark. This prominent question mark is an aspect of form H–25 in appendix H to this part, the standard form or model form, as applicable, pursuant to § 1026.38(t). If the creditor or closing agent deviates from the depiction of the PO 00000 Frm 00339 Fmt 4701 Sfmt 4702 51453 question mark as shown on form H–25, the creditor or closing agent complies with § 1026.38(q) if (1) the size and location of the question mark on the Closing Disclosure are substantially similar in size and location to the question mark shown on form H–25, and (2) the creditor or closing agent otherwise complies with § 1026.38(t)(5) regarding permissible changes to the form of the Closing Disclosure. 38(r) Contact information. 1. Each person to be identified. Form H–25 in appendix H to this part includes the contact information required to be disclosed under § 1026.38(r) generally in a five-column tabular format (i.e., there are columns from left to right that disclose the contact information for the creditor, mortgage broker, consumer’s real estate broker, seller’s real estate broker, and closing agent). Because § 1026.38 requires disclosures only to the extent applicable, columns are either left blank or filled in with ‘‘N/A’’ where no such person is participating in the transaction. For example, if there is no mortgage broker involved in the transaction, the column for the mortgage broker is either left blank or filled in with ‘‘N/A.’’ Conversely, in the event the transaction involves more than one of each such person (e.g., two seller’s real estate brokers splitting a commission), the contact information table may be altered to accommodate the information for such persons, provided that the other information is disclosed on the same page. If the format of the page does not accommodate the addition of such information, an additional table to accommodate the information may be provided on a separate page, with an appropriate reference to the additional table. See § 1026.38(t)(2)(x). A creditor or closing agent may also omit a column on the table that is inapplicable or, if necessary, replace an inapplicable column with the contact information for the additional person. 2. Name of person. Where § 1026.38(r)(1) calls for disclosure of the name of the person participating in the transaction, the person’s legal name (e.g., the name used for registration, incorporation, or chartering purposes), the person’s trade name, if any, or an abbreviation of the person’s legal name or the trade name is disclosed, so long as the disclosure is clear and conspicuous as required by § 1026.38(t)(1)(i). For example, if the creditor’s legal name is ‘‘Alpha Beta Chi Bank and Trust Company, N.A.’’ and its trade name is ‘‘ABC Bank,’’ then under § 1026.38(r)(1) the full legal name, the trade name, or an abbreviation such as E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51454 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules ‘‘ABC Bank & Trust Co.’’ may be disclosed. However, the abbreviation ‘‘Bank & Trust Co.’’ is not distinct as to enable a consumer to identify the person, and therefore would not be clear and conspicuous. If the creditor, mortgage broker, seller’s real estate broker, consumer’s real estate broker, or closing agent participating in the transaction is a natural person, the natural person’s name is listed in the § 1026.38(r)(1) and (r)(4) disclosures (assuming that such natural person is the primary contact for the consumer or seller, as applicable). 3. Address. The address disclosed under § 1026.38(r)(2) is the identified person’s place of business where the primary contact for the transaction is located (usually the local office), rather than a general corporate headquarters address. If a natural person’s name is to be disclosed under § 1026.38(r)(1), see comment 38(r)–2, the business address of such natural person is listed (assuming that such natural person is the primary contact for the consumer or seller, as applicable). 4. NMLSR ID. Section 1026.38(r)(3) and (5) requires the disclosure of an NMLSR identification (ID) number for each person identified in the table. The NMLSR ID is a unique number or other identifier that is generally assigned by the Nationwide Mortgage Licensing System & Registry (NMLSR) to individuals registered or licensed through NMLSR to provide loan originating services (for more information, see the Secure and Fair Enforcement for Mortgage Licensing Act of 2008 (SAFE Act) sections 1503(3) and (12) and 1504, 12 U.S.C. 5102(3) and (12) and 5103, and its implementing regulations (i.e., 12 CFR 1007.103(a) and 1008.103(a)(2)). An entity may also have an NMLSR ID. Thus, any NMLSR ID that is obtained by a creditor or mortgage broker entity disclosed under § 1026.38(r)(1), as applicable, or a natural person disclosed under § 1026.38(r)(4), either as required under the SAFE Act or otherwise, is disclosed. If the creditor, mortgage broker, or natural person has an NMLSR ID and a separate license number or unique identifier issued by the applicable State, locality, or other regulatory body with responsibility for licensing and/or registering such entity or person’s business activities, only the NMLSR ID is disclosed. Because § 1026.38 requires disclosures only to the extent applicable, the table is left blank, or ‘‘N/A’’ is entered, for these disclosures in the columns corresponding to persons that have no NMLSR ID and no license number or unique identifier to be disclosed under § 1026.38(r)(3) and VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 (5), see comment 38(r)–5; provided that, the creditor or closing agent may omit the column from the table or, if necessary, replace the column with the contact information for an additional person. See § 1026.38(t)(2)(xii) and comment 38(r)–1. 5. License number or unique identifier. Section 1026.38(r)(3) and (5) requires the disclosure of a license number or unique identifier for each person (including natural persons) identified in the table if the applicable State, locality, or other regulatory body with responsibility for licensing and/or registering such person’s business activities has issued a license number or other unique identifier to such person, and that person’s NMLSR ID number has not already been disclosed under § 1026.38(r)(3) and (5). See comment 38(r)–4. Because § 1026.38 requires disclosures only to the extent applicable, the table is either left blank or ‘‘N/A’’ is entered for these disclosures in the columns corresponding to persons who are not subject to the issuance of such a license number or unique identifier and who have not obtained an NMLSR ID to be disclosed under § 1026.38(r)(3) and (5) (see comment 38(r)–4); provided that, the creditor or closing agent may omit the column from the table or, if necessary, replace the column with the contact information for an additional person. See § 1026.38(t)(2)(xii) and comment 38(r)–1. 6. Contact. Section 1026.38(r)(4) requires the disclosure of the primary contact for the consumer. The primary contact is the natural person employed by the person disclosed under § 1026.38(r)(1) who interacts most frequently with the consumer and who has an NMLSR ID or, if none, a license number or other unique identifier to be disclosed under § 1026.38(r)(5), as applicable. See comments 38(r)–4 and –5. For example, if the senior loan officer employed by the creditor or mortgage broker disclosed under § 1026.38(r)(1) has an NMLSR ID, but the consumer meets with a different loan officer to complete the application and answer questions, the senior loan officer’s name is disclosed under § 1026.38(r)(4) unless the other loan officer also has an NMLSR ID, in which case the other loan officer’s name is disclosed. Further, if the sales agent employed by the consumer’s real estate broker disclosed under § 1026.38(r)(1) has a State-issued brokers’ license number, but the consumer meets with an associate sales agent to tour the property being purchased and complete the sales contract, the sale’s agent’s name is disclosed under § 1026.38(r)(4) PO 00000 Frm 00340 Fmt 4701 Sfmt 4702 unless the associate sales agent also has a State-issued license number, in which case the associate sales agent’s name is disclosed. Moreover, if the closing attorney employed by the closing agent disclosed under § 1026.38(r)(1) has a State-issued closing agent license number, but the consumer meets with a secretary to fill out any necessary documentation prior to the closing and to answer questions, the closing attorney’s name is disclosed under § 1026.38(r)(4) since a secretary is only performing clerical functions. 38(s) Signature statement. 1. General requirements. See the commentary to § 1026.37(n) for guidance regarding optional signature requirements and signature lines for multiple consumers. 38(t) Form of disclosures. 38(t)(1) General requirements. 1. Clear and conspicuous; segregation. The clear and conspicuous standard requires that the disclosures required by § 1026.38 be legible and in a readily understandable form. The disclosures also must be grouped together, segregated from everything else, and provided on separate pages that are not commingled with any other documents or disclosures, including any other disclosures required by State or other laws. As required by § 1026.38(t)(2), the disclosures for any transaction that is a federally related mortgage loan under Regulation X, 12 CFR 1024.2, must be made using the standard form H–25 in appendix H to this part. Accordingly, use of that form constitutes compliance with the clear and conspicuous and segregation requirements of § 1026.38(t). 2. Balloon payment financing with leasing characteristics. In certain credit sale or loan transactions, a consumer may reduce the dollar amount of the payments to be made during the course of the transaction by agreeing to make, at the end of the loan term, a large final payment based on the expected residual value of the property. The consumer may have a number of options with respect to the final payment, including, among other things, retaining the property and making the final payment, refinancing the final payment, or transferring the property to the creditor in lieu of the final payment. Such transactions may have some of the characteristics of lease transactions subject to Regulation M (12 CFR part 1013), but are considered credit transactions where the consumer assumes the indicia of ownership, including the risks, burdens and benefits of ownership, upon consummation. These transactions are governed by the disclosure requirements of this part instead of Regulation M. E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules Under § 1026.38(t)(2), creditors may not include any additional information in the disclosures required by § 1026.38. Thus, the disclosures must show the large final payment as a balloon payment in the projected payments table required by § 1026.38(c) and should not, for example, reflect the other options available to the consumer at maturity. 38(t)(2) Estimated disclosures. 1. Estimated amounts. Although certain amounts are estimated when provided on the disclosure required by § 1026.37, many of these amounts, must be actual amounts rather than estimates in accordance with the requirements of § 1026.19(f), even though the corresponding provision of § 1026.38 cross-references a counterpart in § 1026.37. Section 1026.38(t)(2) provides that, if a master heading, heading, subheading, label, or similar designation contains the word ‘‘estimated’’ in form H–25 in appendix H to this part, that heading, label, or similar designation shall contain the word ‘‘estimated.’’ Thus, § 1026.38(t)(2) incorporates the ‘‘estimated’’ designations reflected on form H–25 into the requirements of § 1026.38. See comment 37(o)(2)–1. 38(t)(3) Form. 1. Non-federally related mortgage loans. For a transaction that a nonfederally related mortgage loan, the creditor is not required to use form H– 25 in appendix H to this part, although its use as a model form for such transactions, if properly completed with accurate content, constitutes compliance with the clear and conspicuous and segregation requirements of § 1026.38(t)(1)(i). Even when the creditor elects not to use the model form, § 1026.38(t)(1)(ii) requires that the disclosures contain only the information required by § 1026.38(a) through (s), and that the creditor make the disclosures in the same order as they occur in H–25, use the same headings, labels, and similar designations as used in the form (many of which also are expressly required by § 1026.38(a) through (s)), and position the disclosures relative to those designations in the same manner as shown in the form. In order to be in a format substantially similar to form H– 25, the disclosures required by this section must be provided on letter size (8.5″ x 11″) paper. 38(t)(4) Rounding. 1. Generally. Consistent with § 1026.2(b)(4), any amount required to be disclosed by § 1026.38 must be disclosed as an exact numerical amount using decimal places where applicable, unless otherwise provided. For VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 example, § 1026.38(t)(4) requires that the loan amount be disclosed using decimal places even if the amount of cents is zero. Accordingly, in contrast to the amounts disclosed under § 1026.37(b)(1), loan amounts disclosed pursuant to § 1026.38(b) are disclosed with decimal places even if they denote zero cents. 2. Guidance. For guidance regarding the requirements of § 1026.38(t)(4), see the commentary to § 1026.37(o)(4). 38(t)(5) Exceptions. 1. Permissible changes. The changes required and permitted by § 1026.38(t)(5) do not affect the substance, clarity, or meaningful sequence of the disclosure and therefore, are permissible. Any changes to the disclosure not specified in § 1026.38(t)(5) or not permitted by other provisions of § 1026.38, may affect the substance, clarity, or meaningful sequence of the disclosure. Creditors making any changes that do not conform to these requirements will lose their protection from civil liability under TILA. 2. Manual completion. The creditor or settlement agent preparing the form is not required to use a computer, typewriter, or other word processor to complete the disclosure required by this section. The creditor or settlement may fill in information and amounts required to be disclosed by this section on form H–25 in appendix H to this part by hand printing or using any other method, provided the person produces clear and legible text and uses the formatting required by this section, including replicating bold font where required. Completion by hand or typewriter does not provide an exemption from the requirement to keep records in an electronic, machine readable format under § 1026.25. 3. Contact information. If a transaction involves more than one creditor or mortgage broker, the space provided on form H–25 in appendix H to this part for the contact information required by § 1026.38(r) may be altered to accommodate the information for such parties, provided that the information required by § 1026.38(o), (p), (q), (r), and (s) are disclosed on the same page as illustrated by form H–25. If the space provided on form H–25 does not allow for the disclosure of such contact and other information on the same page, an additional page may be added to provide the required contact information with an appropriate reference to the additional page. 4. Signature lines. Section 1026.38(t) does not restrict the addition of signature lines to the disclosure required by § 1026.38, provided any PO 00000 Frm 00341 Fmt 4701 Sfmt 4702 51455 signature lines for confirmations of receipt of the disclosure appear only under the ‘‘Confirm Receipt’’ heading required by § 1026.38(s) as illustrated by form H–25 in appendix H to this part. If the number of signatures requested by the creditor for confirming receipt of the disclosure requires space for signature lines in excess of that provided on form H–25, an additional page may be added to accommodate the additional signature lines with an appropriate reference to the additional page. Such additional page should also contain the heading and statement required by § 1026.38(s) in the format provided on form H–25. Signatures for a purpose other than confirming receipt of the form may be obtained on a separate page, and consistent with § 1026.38(t)(1)(i), not on the same page as the information required by § 1026.38. 5. Additional page. Information required or permitted to be disclosed by § 1026.38(t)(5) on a separate page should be formatted similarly to form H–25 in appendix H to this part, so as not affect the substance, clarity, or meaningful sequence of the disclosure. In addition, information provided on additional pages should be consolidated on as few pages as necessary to not affect the substance, clarity, or meaningful sequence of the disclosure. 6. Page numbers. References required by provisions of § 1026.38 to information disclosed pursuant to other provisions of the section, as illustrated on form H–25 in appendix H, may be altered to refer to the appropriate page number of the form containing such information. 38(t)(5)(iv) Line numbers (Closing Cost Details). 1. Line numbers; Closing Cost Details. Section 1026.38(t)(5)(iv) permits the deletion of unused lines from the disclosures required by § 1026.38(f)(1), (2) and (3) and (g)(1), (2), (3), and (4), if necessary to allow the addition of lines to other sections that require them for the required disclosures. This provision permits creditors and settlement agents to use the space gained from deleting unused lines for additional lines to accommodate all of the costs that are required to be itemized. For example, if the only origination charge required by § 1026.38(f)(1) is points, the remaining seven lines illustrated on form H–25 in appendix H to this part may be deleted and added to the disclosure required by § 1026.38(g)(4), if seven lines in addition to those provided on form H– 25 are necessary to accommodate such disclosure. E:\FR\FM\23AUP2.SGM 23AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 51456 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules 38(t)(5)(v) Additional page (Closing Cost Details). 1. Additional page; Closing Cost Details. Section 1026.38(t)(5)(v) permits the disclosure of the information required by § 1026.38(f), (g), and (h) over two pages, but only if form H–25 in appendix H to this part, as modified pursuant to § 1026.38(t)(5)(iv), does not accommodate all of the costs required to be disclosed on one page. If the deletion of unused lines and the addition of such lines to other sections permits the disclosures required by § 1026.38(f), (g), and (h) to fit on one page, modification pursuant to § 1026. 38(t)(5)(v) is not permissible. 2. Separate pages for Loan Costs and Other Costs. The modification permitted by § 1026.38(t)(5)(v) allows the information required by § 1026.38(f), (g), and (h) to be disclosed over two pages. Under this modification, the information required by § 1026.38(h) must remain on the same page as the information required by § 1026.38(g). Accordingly, the Loan Costs and Other Costs sections of form H–25 in appendix H to this part may each appear on their own page, but the Other Costs section must appear on the same page as the Total Closing Costs section. The modifications permitted by § 1026.38(t)(5)(iv) and (v) may be used in conjunction to ensure disclosure of § 1026.38(f) on one page and § 1026.38(g) and (h) on one separate page. 38(t)(5)(viii) Transaction without a seller. 1. Calculating Cash to Close. The modifications permitted by § 1026.38(t)(5)(viii)(C) to the table required to be disclosed by § 1026.38(i) should be factored into the calculation of the total amount required by § 1026.38(i)(9)(ii). In addition, the modifications should be factored into the disclosures required by § 1026.38(i) to be disclosed under the subheading ‘‘Estimate,’’ using the estimated amounts disclosed or used in calculating the disclosures under § 1026.37. 2. Appraised Property Value. The modifications permitted by § 1026.38(t)(5)(viii) do not specifically refer to the label required by § 1026.38(a)(3)(vii)(B) for transactions that do not involve a seller, because the label is required by that section and is a requirement and not considered a modification. As required by § 1026.38(a)(3)(vii)(B), a form used for a transaction that does not involve a seller and is modified pursuant to § 1026.38(t)(5)(viii) must contain the label ‘‘Appraised Prop. Value’’ and the VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 information required by § 1026.38(a)(3)(vii)(B). 38(t)(5)(x) Customary recitals and information. 1. Customary recitals and information. Section 1026.38(t)(5)(x) permits an additional page to be added to the disclosure for customary recitals and information used locally in real estate settlements. Examples of such information include breakdown of payoff figures, a breakdown of the consumer’s total monthly mortgage payments, check disbursements, a statement indicating receipt of funds, applicable special stipulations between buyer and seller, and the date funds are transferred.ﬁ Section 1026.39—Mortgage transfer disclosures. * * * * * 39(d) Content of required disclosures. * * * * * ﬂ2. Partial Payment Policy. The disclosures required by § 1026.39(d)(5) must identify whether the covered person accepts payments from the consumer that are less than the full amount due and, if so, provide a description of such policy. The disclosures required by § 1026.39(d)(5) apply only to a closed-end consumer credit transaction secured by a dwelling or real property, other than a reverse mortgage transaction subject to § 1026.33. For example, an open or closed-end consumer credit transaction secured by a principal dwelling is a mortgage loan under § 1026.39(a) and a covered person must provide the disclosures required by § 1026.39(d)(1) through (4). However, the covered person is only required to include the partial payment policy disclosure required by § 1026.39(d)(5) if the transaction is a closed-end non-reverse mortgage transaction. If the dwelling in the same transaction is not a principal dwelling (e.g., it is used solely for vacation purposes), the disclosure required by § 1026.39 is not required for an open-end credit transaction, because the transaction is not secured by a principal dwelling. If the transaction that is transferred is a non-reverse mortgage closed-end consumer credit transaction secured by nonresidential real property, the transaction is a mortgage loan requiring a covered person to provide the disclosures under § 1026.39(d)(1) through (5).ﬁ * * * * * ﬂParagraph 39(d)(5). 1. Format of Disclosure. Section 1026.39(d)(5) requires disclosure of the partial payment policy of covered persons for closed-end mortgage loans. PO 00000 Frm 00342 Fmt 4701 Sfmt 4702 A covered person may utilize the format of the disclosure illustrated by form H– 25 in appendix H to this part for the information required to be disclosed by § 1026.38(l)(5). For example, the statement required § 1026.39(d)(5)(iii) that a new covered person may have a different partial payments policy may be disclosed using the language illustrated by form H–25, which states ‘‘If this loan is sold, your new lender may have a different policy.’’ The text illustrated by form H–25 may be modified to suit the format of the covered person’s disclosure under § 1026.39. For example, the format illustrated by form H–25 begins with the text, ‘‘Your lender will,’’ which may not be suitable to the format of the covered person’s other disclosures under § 1026.39. This text may be modified to suit the format of the covered person’s integrated disclosure, using a phrase such as ‘‘We will’’ or ‘‘We are your new lender and have a different Partial Payment Policy than your previous lender. Under our policy we will.’’ Any modifications must be appropriate and not affect the substance, clarity, or meaningful sequence of the disclosure.ﬁ * * * * * Appendix D—Multiple-Advance Construction Loans * * * * * 6. Relation to § 1026.18(s). A creditor must disclose an interest rate and payment summary table for ﬂcertainﬁ transactions secured by øreal property or¿ a dwelling, pursuant to § 1026.18(s), instead of the general payment schedule required by § 1026.18(g). Accordingly, ﬂsomeﬁ home construction loans that are secured by øreal property or¿ a dwelling are subject to § 1026.18(s) and not § 1026.18(g). ﬂSee comment app. D–7 for a discussion of transactions that are subject to §§ 1026.37 and 1026.38.ﬁ Under § 1026.17(c)(6)(ii), when a multiple-advance construction loan may be permanently financed by the same creditor, the construction phase and the permanent phase may be treated as either one transaction or more than one transaction. ﬂFollowing are illustrations of the application of appendix D to transactions subject to § 1026.18(s), under each of these two alternatives:ﬁ i. If a creditor uses appendix D and elects pursuant to § 1026.17(c)(6)(ii) to disclose the construction and permanent phases as separate transactions, the construction phase must be disclosed according to the rules in § 1026.18(s). Under § 1026.18(s), the creditor must disclose the applicable interest rates and corresponding periodic payments during the construction phase in an interest rate and payment summary table. The provision in appendix D, part I.A.3, which allows the creditor to omit the number and amounts of any interest payments ‘‘in disclosing the payment schedule under § 1026.18(g)’’ does not apply because the transaction is governed E:\FR\FM\23AUP2.SGM 23AUP2 Federal Register / Vol. 77, No. 164 / Thursday, August 23, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 by § 1026.18(s) rather than § 1026.18(g). Also, because the construction phase is being disclosed as a separate transaction and its terms do not repay all principal, the creditor must disclose a balloon payment, pursuant to § 1026.18(s)(5). ii. On the other hand, if the creditor elects to disclose the construction and permanent phases as a single transaction, ﬂwhere interest is payable on the amount actually advanced for the time it is outstanding,ﬁ the construction phase must be disclosed pursuant to appendix D, part II.Cﬂ.1ﬁ, which provides that the creditor shall disclose the repayment schedule without reflecting the number or amounts of payments of interest only that are made during the construction phase. Appendix D also provides, however, that creditors must disclose (outside of the table) the fact that interest payments must be made and the timing of such payments. The interest rate and payment summary table disclosed under § 1026.18(s) ﬂin such casesﬁ must reflect only the permanent phase of the transaction. Therefore, in determining the rates and payments that must be disclosed in the columns of the table, creditors should apply the requirements of § 1026.18(s) to the permanent phase only. For example, under § 1026.18(s)(2)(i)(A) or § 1026.18(s)(2)(i)(B)(1), as applicable, the creditor should disclose the interest rate corresponding to the first installment due under the permanent phase and not any rate applicable during the construction phase. ﬂ7. Relation to §§ 1026.37 and 1026.38. A creditor must disclose a projected payments table for certain transactions secured by real property, pursuant to §§ 1026.37(c) and 1026.38(c), instead of the general payment schedule required by § 1026.18(g). Accordingly, some home construction loans that are secured by real property are subject to §§ 1026.37(c) and 1026.38(c) and not § 1026.18(g). See comment app. D–6 for a discussion of transactions that are subject to § 1026.18(s). Under § 1026.17(c)(6)(ii), when a multiple-advance construction loan may be permanently financed by the same creditor, the construction phase and the permanent phase may be treated as either one transaction or more than one transaction. Following are illustrations of the application VerDate Mar<15>2010 22:03 Aug 22, 2012 Jkt 226001 of appendix D to transactions subject to §§ 1026.37(c) and 1026.38(c), under each of these two alternatives: i. If a creditor uses appendix D and elects pursuant to § 1026.17(c)(6)(ii) to disclose the construction and permanent phases as separate transactions, the construction phase must be disclosed according to the rules in §§ 1026.37(c) and 1026.38(c). Under §§ 1026.37(c) and 1026.38(c), the creditor must disclose the periodic payments during the construction phase in a projected payments table. The provision in appendix D, part I.A.3, which allows the creditor to omit the number and amounts of any interest payments ‘‘in disclosing the payment schedule under § 1026.18(g)’’ does not apply because the transaction is governed by §§ 1026.37(c) and 1026.38(c) rather than § 1026.18(g). The creditor determines the amount of the interest-only payment to be made during the construction phase using the assumption in appendix D, part I.A.1. Also, because the construction phase is being disclosed as a separate transaction and its terms do not repay all principal, the creditor must disclose the construction phase transaction as a product with a balloon payment feature, pursuant to §§ 1026.37(a)(10)(ii)(D) and 1026.38(a)(5)(iii), in addition to reflecting the balloon payment in the projected payments table. ii. If the creditor elects to disclose the construction and permanent phases as a single transaction, the repayment schedule must be disclosed pursuant to appendix D, part II.C.2. Under appendix D, part II.C.2, the projected payments table must reflect the interest-only payments during the construction phase in a first column, followed by the appropriate column(s) reflecting the amortizing payments for the permanent phase. The creditor determines the amount of the interest-only payment to be made during the construction phase using the assumption in appendix D, part II.A.1.ﬁ * * * * * Appendix H—Closed-End øModel¿ Forms and Clauses * * * * * 16. Samples H–13 through H–15. These samples illustrate various ømortgage¿ PO 00000 Frm 00343 Fmt 4701 Sfmt 9990 51457 ﬂclosed-endﬁ transactions. ﬂSamples H– 13 and H–15 are for transactions subject to § 1026.17(a).ﬁ øThey assume that the mortgages are subject to the Real Estate Settlement Procedures Act (RESPA). As a result, no option regarding the itemization of the amount financed has been included in the samples, because providing the good faith estimates of settlement costs required by RESPA satisfies Truth in Lending’s amount financed itemization requirement. (See § 1026.18(c).)¿ ﬂSamples H–13 and H–15 do not illustrate the requirements of § 1026.18(c) or (p) regarding the itemization of the amount financed and a reference to contract documents. See form H–2 for a model for these requirements.ﬁ * * * * * 19. Sample H–15. This sample illustrates a graduated payment ømortgage¿ ﬂtransaction subject to § 1026.17(a)ﬁ with a 5-year graduation period and a 71⁄2 percent yearly increase in payments. The loan amount is $44,900, payable in 360 monthly installments at a simple interest rate of 14.75%. Two points ($898), as well as an initial ømortgage¿ guarantee insurance premium of $225.00, are included in the prepaid finance charge. The ømortgage¿ guarantee insurance premiums are calculated on the basis of 1⁄4 of 1% of the outstanding principal balance under an annual reduction plan. The abbreviated disclosure permitted under § 1026.18(g)(2) is used for the payment schedule for years 6 through 30. The prepayment disclosure refers to both penalties and rebates because information about penalties is required for the simple interest portion of the obligation and information about rebates is required for the ømortgage¿ ﬂguaranteeﬁ insurance portion of the obligation. * * * * * Dated: July 9, 2012. Richard Cordray, Director, Bureau of Consumer Financial Protection. [FR Doc. 2012–17663 Filed 8–6–12; 4:15 pm] BILLING CODE 4810–25–P E:\FR\FM\23AUP2.SGM 23AUP2

Agencies

BUREAU OF CONSUMER FINANCIAL PROTECTION

[Federal Register Volume 77, Number 164 (Thursday, August 23, 2012)]
[Proposed Rules]
[Pages 51115-51457]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-17663]



[[Page 51115]]

Vol. 77

Thursday,

No. 164

August 23, 2012

Part II





Bureau of Consumer Financial Protection





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12 CFR Parts 1024 and 1026





Integrated Mortgage Disclosures Under the Real Estate Settlement 
Procedures Act (Regulation X) and the Truth In Lending Act (Regulation 
Z); Proposed Rule

Federal Register / Vol. 77 , No. 164 / Thursday, August 23, 2012 / 
Proposed Rules

[[Page 51116]]


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BUREAU OF CONSUMER FINANCIAL PROTECTION

12 CFR Parts 1024 and 1026

[Docket No. CFPB-2012-0028]
RIN 3170-AA19


Integrated Mortgage Disclosures Under the Real Estate Settlement 
Procedures Act (Regulation X) and the Truth In Lending Act (Regulation 
Z)

AGENCY: Bureau of Consumer Financial Protection.

ACTION: Proposed rule with request for public comment.

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SUMMARY: Sections 1032(f), 1098, and 1100A of the Dodd-Frank Wall 
Street Reform and Consumer Protection Act (Dodd-Frank Act) direct the 
Bureau to issue proposed rules and forms that combine certain 
disclosures that consumers receive in connection with applying for and 
closing on a mortgage loan under the Truth in Lending Act and the Real 
Estate Settlement Procedures Act. Consistent with this requirement, the 
Bureau is proposing to amend Regulation X (Real Estate Settlement 
Procedures Act) and Regulation Z (Truth in Lending) to establish new 
disclosure requirements and forms in Regulation Z for most closed-end 
consumer credit transactions secured by real property. In addition to 
combining the existing disclosure requirements and implementing new 
requirements in the Dodd-Frank Act, the proposed rule provides 
extensive guidance regarding compliance with those requirements.

DATES: Comments regarding the proposed amendments to 12 CFR 1026.1(c) 
and 1026.4 must be received on or before September 7, 2012. For all 
other sections including proposed amendments, comments must be received 
on or before November 6, 2012.

ADDRESSES: You may submit comments, identified by Docket No. CFPB-2012-
0028 or RIN 3170-AA19, by any of the following methods:
     Electronic: https://www.regulations.gov. Follow the 
instructions for submitting comments.
     Mail/Hand Delivery/Courier: Monica Jackson, Office of the 
Executive Secretary, Consumer Financial Protection Bureau, 1700 G 
Street NW., Washington, DC 20552.
    Instructions: All submissions should include the agency name and 
docket number or Regulatory Information Number (RIN) for this 
rulemaking. Because paper mail in the Washington, DC area and at the 
Bureau is subject to delay, commenters are encouraged to submit 
comments electronically. In general, all comments received will be 
posted without change to https://www.regulations.gov. In addition, 
comments will be available for public inspection and copying at 1700 G 
Street NW., Washington, DC 20552, on official business days between the 
hours of 10 a.m. and 5 p.m. Eastern Time. You can make an appointment 
to inspect the documents by telephoning (202) 435-7275.
    All comments, including attachments and other supporting materials, 
will become part of the public record and subject to public disclosure. 
Sensitive personal information, such as account numbers or social 
security numbers, should not be included. Comments will not be edited 
to remove any identifying or contact information.

FOR FURTHER INFORMATION CONTACT: David Friend, Michael G. Silver and 
Priscilla Walton-Fein, Counsels; Andrea Pruitt Edmonds, Richard B. 
Horn, Joan Kayagil, and Thomas J. Kearney, Senior Counsels; Paul 
Mondor, Senior Counsel & Special Advisor; and Benjamin K. Olson, 
Managing Counsel, Office of Regulations, at (202) 435-7700.

SUPPLEMENTARY INFORMATION: 

I. Summary of Proposed Rule

A. Background

    For more than 30 years, Federal law has required lenders to provide 
two different disclosure forms to consumers applying for a mortgage. 
The law also has generally required two different forms at or shortly 
before closing on the loan. Two different Federal agencies developed 
these forms separately, under two Federal statutes: the Truth in 
Lending Act (TILA) and the Real Estate Settlement Procedures Act of 
1974 (RESPA). The information on these forms is overlapping and the 
language is inconsistent. Not surprisingly, consumers often find the 
forms confusing. It is also not surprising that lenders and settlement 
agents find the forms burdensome to provide and explain.
    The Dodd-Frank Wall Street Reform and Consumer Protection Act 
(Dodd-Frank Act) directs the Bureau to combine the forms. To accomplish 
this, the Bureau has engaged in extensive consumer and industry 
research and public outreach for more than a year.\1\ Based on this 
input, the Bureau is now proposing a rule with new, combined forms. The 
proposed rule also provides a detailed explanation of how the forms 
should be filled out and used.
---------------------------------------------------------------------------

    \1\ See part III below for a discussion of the Bureau's testing 
of the forms with more than 100 consumers, lenders, mortgage 
brokers, and settlement agents. This part also describes the 
Bureau's outreach efforts, including the panel convened by the 
Bureau to examine ways to minimize the burden of the proposed rule 
on small businesses.
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    The first new form (the Loan Estimate) is designed to provide 
disclosures that will be helpful to consumers in understanding the key 
features, costs, and risks of the mortgage for which they are applying. 
This form will be provided to consumers within three business days 
after they submit a loan application. The second form (the Closing 
Disclosure) is designed to provide disclosures that will be helpful to 
consumers in understanding all of the costs of the transaction. This 
form will be provided to consumers three business days before they 
close on the loan.
    The forms use clear language and design to make it easier for 
consumers to locate key information, such as interest rate, monthly 
payments, and costs to close the loan. The forms also provide more 
information to help consumers decide whether they can afford the loan 
and to compare the cost of different loan offers, including the cost of 
the loans over time.
    In developing the new Loan Estimate form and Closing Disclosure 
form, the Bureau has reconciled the differences between the existing 
forms and combined several other mandated disclosures. The Bureau also 
has responded to industry complaints of uncertainty about how to fill 
out the existing forms by providing detailed instructions on how to 
complete the new forms.\2\ This should reduce the burden on lenders and 
others in preparing forms in the future.
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    \2\ This guidance is provided in the proposed regulations and 
the proposed Official Interpretations, which are in Supplement I.
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B. Scope of the Proposed Rule

    The proposed rule applies to most closed-end consumer mortgages. 
The proposed rule does not apply to home-equity lines of credit, 
reverse mortgages, or mortgages secured by a mobile home or by a 
dwelling that is not attached to real property (in other words, land). 
The proposed rule also does not apply to loans made by a creditor who 
makes five or fewer mortgages in a year.\3\
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    \3\ For additional discussion of the scope of the proposed rule, 
see part VI below regarding section 1026.19, Coverage of Integrated 
Disclosure Requirements.
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C. The Loan Estimate

    The Loan Estimate form would replace two current Federal forms. It 
would replace the Good Faith Estimate designed by the Department of 
Housing

[[Page 51117]]

and Urban Development (HUD) under RESPA and the ``early'' Truth in 
Lending disclosure designed by the Board of Governors of the Federal 
Reserve System (the Board) under TILA.\4\ The proposed rule and the 
Official Interpretations (on which lenders can rely) contain detailed 
instructions as to how each line on the Loan Estimate form would be 
completed.\5\ There are sample forms for different types of loan 
products.\6\ The Loan Estimate form also incorporates new disclosures 
required by Congress under the Dodd-Frank Act.\7\
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    \4\ These disclosures are available at https://www.hud.gov/offices/hsg/rmra/res/gfestimate.pdf and https://ecfr.gpoaccess.gov/graphics/pdfs/ec27se91.024.pdf.
    \5\ The requirements for the Loan Estimate are in proposed Sec.  
1026.37. Additional discussion of this and other sections of the 
proposed rule is provided in the relevant portion of part VI below.
    \6\ Appendix H to the proposed rule provides examples of how to 
fill out these forms for a variety of different loans, including 
loans with fixed or adjustable rates or features such as balloon 
payments and prepayment penalties.
    \7\ For a discussion of these disclosures, see part V.B below.
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    Provision by mortgage broker. The lender may rely on a mortgage 
broker to provide the Loan Estimate form. However, the lender also 
remains responsible for the accuracy of the form.\8\
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    \8\ This provision is in proposed Sec.  1026.19(e)(1)(ii).
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    Timing. The lender or broker must give the form to the consumer 
within three business days after the consumer applies for a mortgage 
loan.\9\ The proposed rule contains a specific definition of what 
constitutes an ``application'' for these purposes.\10\
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    \9\ This provision is in proposed Sec.  1026.19(e)(1)(iii).
    \10\ The definition of ``application'' is in proposed Sec.  
1026.2(a)(3).
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    Limitation on fees. Consistent with current law, the lender 
generally cannot charge consumers any fees until after the consumers 
have been given the Loan Estimate form and the consumers have 
communicated their intent to proceed with the transaction. There is an 
exception that allows lenders to charge fees to obtain consumers' 
credit reports.\11\
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    \11\ This provision is in proposed Sec.  1026.19(e)(2)(i).
---------------------------------------------------------------------------

    Disclaimer on early estimates. Lenders and brokers may provide 
consumers with written estimates prior to application. The proposed 
rule requires that any such written estimates contain a disclaimer to 
prevent confusion with the Loan Estimate form. This disclaimer would 
not be required for advertisements.\12\
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    \12\ This provision is in proposed Sec.  1026.19(e)(2)(ii).
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D. The Closing Disclosure

    The Closing Disclosure form would replace the current form used to 
close a loan, the HUD-1, which was designed by HUD under RESPA. It 
would also replace the revised Truth in Lending disclosure designed by 
the Board under TILA.\13\ The proposed rule and the Official 
Interpretations (on which lenders can rely) contain detailed 
instructions as to how each line on the Closing Disclosure form would 
be completed.\14\ The Closing Disclosure form contains additional new 
disclosures required by the Dodd-Frank Act and a detailed accounting of 
the settlement transaction.
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    \13\ These disclosures are available at https://www.hud.gov/offices/adm/hudclips/forms/files/1.pdf and https://ecfr.gpoaccess.gov/graphics/pdfs/ec27se91.024.pdf.
    \14\ The requirements for the Closing Disclosure are in proposed 
Sec.  1026.38.
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    Timing. The lender must give consumers this Closing Disclosure form 
at least three business days before the consumer closes on the loan. 
Generally, if changes occur between the time the Closing Disclosure 
form is given and the closing, the consumer must be provided a new 
form. When that happens, the consumer must be given three additional 
business days to review that form before closing.\15\ However, the 
proposed rule contains an exception from the three-day requirement for 
some common changes. These include changes resulting from negotiations 
between buyer and seller after the final walk-through. There also is an 
exception for minor changes which result in less than $100 in increased 
costs.\16\ The Bureau seeks comment on whether to permit additional 
changes without requiring a new three-day period before closing.
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    \15\ This provision is in proposed Sec.  1026.19(f)(1)(ii).
    \16\ These exceptions are in proposed Sec.  1026.19(f)(2).
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    Provision. Currently, settlement agents are required to provide the 
HUD-1, while lenders are required to provide the revised Truth in 
Lending disclosure. The Bureau is proposing two alternatives for who is 
required to provide consumers with the new Closing Disclosure form. 
Under the first option, the lender would be responsible for delivering 
the Closing Disclosure form to the consumer. Under the second option, 
the lender may rely on the settlement agent to provide the form. 
However, under the second option, the lender would also remain 
responsible for the accuracy of the form.\17\ The Bureau seeks comment 
as to which alternative is preferable.
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    \17\ These alternatives are set forth in proposed Sec.  
1026.19(f)(1).
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E. Limits on Closing Cost Increases

    Similar to existing law, the proposed rule would restrict the 
circumstances in which consumers can be required to pay more for 
settlement services--the various services required to complete a loan, 
such as appraisals, inspections, etc.--than the amount stated on their 
Loan Estimate form. Unless an exception applies, charges for the 
following services could not increase: (1) The lender's or mortgage 
broker's charges for its own services; (2) charges for services 
provided by an affiliate of the lender or mortgage broker; and (3) 
charges for services for which the lender or mortgage broker does not 
permit the consumer to shop. Also unless an exception applies, charges 
for other services generally could not increase by more than 10 
percent.\18\
---------------------------------------------------------------------------

    \18\ The limitations and the exceptions discussed below are in 
proposed Sec.  1026.19(e)(3).
---------------------------------------------------------------------------

    The rule would provide exceptions, for example, when: (1) The 
consumer asks for a change; (2) the consumer chooses a service provider 
that was not identified by the lender; (3) information provided at 
application was inaccurate or becomes inaccurate; or (4) the Loan 
Estimate expires. When an exception applies, the lender generally must 
provide an updated Loan Estimate form within three business days.

F. Changes to APR

    The proposed rule redefines the way the Annual Percentage Rate or 
``APR'' is calculated. Under the rule, the APR will encompass almost 
all of the up-front costs of the loan.\19\ This will make it easier for 
consumers to use the APR to compare loans and easier for industry to 
calculate the APR.
---------------------------------------------------------------------------

    \19\ These revisions are in proposed Sec.  1026.4.
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G. Recordkeeping

    The proposed rule requires lenders to keep records of the Loan 
Estimate and Closing Disclosure forms provided to consumers in a 
standard electronic format.\20\ This will make it easier for regulators 
to monitor compliance. The Bureau seeks comment on whether smaller 
lenders should be exempt from this requirement.
---------------------------------------------------------------------------

    \20\ This provision is in proposed Sec.  1026.25.
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H. Effective Date

    The Bureau is seeking comment on when this final rule should be 
effective. Because the final rule will provide important benefits to 
consumers, the Bureau seeks to make it effective as soon as possible. 
However, the Bureau understands that the final rule will

[[Page 51118]]

require lenders, mortgage brokers, and settlement agents to make 
extensive revisions to their software and to retrain their staff. In 
addition, some entities will be required to implement other Dodd-Frank 
Act provisions, which are subject to separate rulemaking deadlines 
under the statute and will have separate effective dates. Therefore, 
the Bureau is seeking comment on how much time industry needs to make 
these changes. The Bureau is proposing to delay compliance with certain 
new disclosure requirements contained in the Dodd-Frank Act until the 
Bureau's final rule takes effect.\21\
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    \21\ For additional discussion, see part V below.
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II. Background

A. The Mortgage Market

Overview of the Market and the Mortgage Crisis
    The mortgage market is the single largest market for consumer 
financial products and services in the United States, with 
approximately $10.3 trillion in loans outstanding.\22\ During the last 
decade, the market went through an unprecedented cycle of expansion and 
contraction that was fueled in part by the securitization of mortgages 
and creation of increasingly sophisticated derivative products designed 
to mitigate accompanying risks. So many other parts of the American 
financial system were drawn into mortgage-related activities that when 
the bubble collapsed in 2008, it sparked the most severe recession in 
the United States since the Great Depression.
---------------------------------------------------------------------------

    \22\ Inside Mortgage Finance, Outstanding 1-4 Family Mortgage 
Securities, Mortgage Market Statistical Annual (2012).
---------------------------------------------------------------------------

    The expansion in this market is commonly attributed to both 
particular economic conditions and by changes within the industry. 
Interest rates dropped significantly--by more than 20 percent--from 
2000 through 2003.\23\ Housing prices increased dramatically--about 152 
percent--between 1997 and 2006.\24\ Driven by the decrease in interest 
rates and the increase in housing prices, the volume of refinances 
increased from about 2.5 million loans in 2000 to more than 15 million 
in 2003.\25\
---------------------------------------------------------------------------

    \23\ See U.S. Dep't. of Hous. and Urban Dev., An Analysis of 
Mortgage Refinancing, 2001-2003 (Nov. 2004), available at 
www.huduser.org/Publications/pdf/MortgageRefinance03.pdf; Souphala 
Chomsisengphet and Anthony Pennington-Cross, The Evolution of the 
Subprime Mortgage Market, Federal Reserve Bank of St. Louis Review, 
88(1), 31, 48 (Jan./Feb. 2006), available at https://research.stlouisfed.org/publications/review/article/5019.
    \24\ The Financial Crisis Inquiry Commission, The Financial 
Crisis Inquiry Report (Feb. 25, 2011) (FCIC Report) at 156, 
available at https://www.gpo.gov/fdsys/pkg/GPO-FCIC/pdf/GPO-FCIC.pdf.
    \25\ An Analysis of Mortgage Refinancing, 2001-2003, at 1.
---------------------------------------------------------------------------

    At the same time, advances in the securitization of mortgages 
attracted increasing involvement from financial institutions that were 
not directly involved in the extension of credit to consumers and from 
investors worldwide. Securitization of mortgages allows originating 
lenders to sell off their loans (and reinvest the funds earned in 
making new ones) to investors who want an income stream over time. 
Securitization had been pioneered by what are now called government 
sponsored enterprises (GSEs), such as the Federal National Mortgage 
Association (Fannie Mae) and the Federal Home Loan Mortgage Corporation 
(Freddie Mac). But by the early 2000s, large numbers of private 
financial institutions were deeply involved in creating increasingly 
sophisticated investment mortgage-related vehicles through securities 
and derivative products.
    Growth in the mortgage loan market was particularly pronounced in 
what are known as ``subprime'' and ``Alt-A'' products. Subprime 
products were sold both to borrowers with poor or no credit history, as 
well as to borrowers with good credit. The Alt-A category of loans 
permitted borrowers to provide little or no documentation of income or 
other repayment ability. Because these loans involved additional risk, 
they were typically more expensive to borrowers than so-called 
``prime'' mortgages, though many offered low introductory rates. In 
2003, subprime and Alt-A origination volume was about $400 billion. In 
2006, it had reached $830 billion.\26\
---------------------------------------------------------------------------

    \26\ Inside Mortgage Finance: Mortgage Market Statistical Annual 
2011.
---------------------------------------------------------------------------

    So long as housing prices were continuing to increase, it was 
relatively easy for borrowers to refinance their loans to avoid 
interest rate resets and other adjustments. However, housing prices 
began to decline as early as 2005, slowing the growth in 
refinances.\27\ At the same time, as the economy worsened the rates of 
serious delinquency (90 or more days past due or in foreclosure) for 
these subprime and Alt-A products began a steep increase from 
approximately 10 percent in 2006, to 20 percent in 2007, to over 40 
percent in 2010.\28\
---------------------------------------------------------------------------

    \27\ FCIC Report at 215.
    \28\ Id. at 217.
---------------------------------------------------------------------------

    The impact of this level of delinquencies on the private investors 
who purchased these loans from the mortgage originators was severe. 
Private securitizations of subprime loans peaked at $465 billion in 
2005, but were virtually eliminated in 2008. Private securitizations of 
Alt-A loans followed a similar trajectory.\29\ This effect was even 
felt by Fannie Mae and Freddie Mac, which were large purchasers of 
these securitizations, and it resulted in the Federal government in 
late 2008 placing the GSEs into conservatorship in order to support the 
collapsing mortgage market.
---------------------------------------------------------------------------

    \29\ Id. at 124.
---------------------------------------------------------------------------

    Four years later, the United States continues to grapple with the 
fallout. Home prices are down 35 percent from peak to trough on a 
national basis, and it is not clear whether the national market has 
reached bottom.\30\ The fall in housing prices is estimated to have 
resulted in about $7 trillion in household wealth losses.\31\ Moreover, 
mortgage markets continue to rely on extraordinary U.S government 
support. In addition, distressed homeownership and foreclosure rates 
remain at unprecedented levels. Approximately 5.8 million homeowners 
were somewhere between 30 days late on their mortgage and in the 
foreclosure process as of April 2012.\32\ Finally, the U.S. continues 
to face a stubbornly high unemployment rate, which was at 8.2 percent 
at the end of May 2012.\33\
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    \30\ S&P/Case-Shiller 20-City Composite accessed from Bloomberg, 
LP on June 6, 2012.
    \31\ Board of Governors of the Federal Reserve System, The U.S. 
Housing Market: Current Conditions and Policy Considerations (Jan. 
4, 2012), available at https://www.federalreserve.gov/publications/other-reports/files/housing-white-paper-20120104.pdf.
    \32\ Lender Processing Services April 2012 Mortgage Monitor.
    \33\ Bureau of Labor Statistics, accessed from Bloomberg, LP on 
June 6, 2012.
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    While there remains debate about which market issues definitively 
sparked this crisis, there were several mortgage origination issues 
that pervaded the mortgage lending system prior to the crisis and are 
generally accepted as having contributed to its collapse. First, the 
market experienced a steady deterioration of credit standards in 
mortgage lending, particularly evidenced by the growth of subprime and 
Alt-A loans, which consumers were often unable or unwilling to 
repay.\34\
---------------------------------------------------------------------------

    \34\ FCIC Report at 88.
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    Second, the mortgage market saw a proliferation of more complex 
mortgage products with terms that were often difficult for consumers to 
understand. These products included most notably 2/28 and 3/27 Hybrid 
Adjustable Rate Mortgages and Option ARM products.\35\

[[Page 51119]]

These products were often marketed to subprime and Alt-A customers. The 
appetite on the part of mortgage investors for such products often 
created inappropriate incentives for mortgage originators to originate 
these more expensive and profitable mortgage products.\36\
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    \35\ Id. at 106. ``Hybrid Adjustable Rate Mortgage'' is a term 
frequently used to describe adjustable rate mortgage loans that have 
a low fixed introductory rate for a certain period of time. ``Option 
ARM'' is a term frequently used to describe adjustable rate mortgage 
loans that have a scheduled loan payment that may result in negative 
amortization for a certain period of time, but that expressly permit 
specified larger payments in the contract or servicing documents, 
such as an interest-only payment or a fully amortizing payment. For 
these loans, the scheduled negatively amortizing payment was 
typically described in marketing and servicing materials as the 
``optional payment.''
    \36\ Id. at 109.
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    Third, responsibility for the regulation of consumer financial 
protection laws was spread across seven regulators including the Board, 
HUD, the Office of Thrift Supervision, the Federal Trade Commission, 
the Federal Deposit Insurance Corporation, the Office of the 
Comptroller of the Currency, and the National Credit Union 
Administration. Such a spread in responsibility may have hampered the 
government's ability to coordinate regulatory monitoring and response 
to such issues.\37\
---------------------------------------------------------------------------

    \37\ Id. at 111.
---------------------------------------------------------------------------

    In the wake of this financial crisis, Congress passed the Dodd-
Frank Act to address many of these concerns. In this Act, Congress 
created the Bureau and consolidated the rulemaking authority for many 
consumer financial protection statutes, including the two primary 
Federal consumer protection statutes governing mortgage origination, 
TILA and RESPA, in the Bureau.\38\ Congress also provided the Bureau 
with supervision authority for certain consumer financial protection 
statutes over certain entities, including insured depository 
institutions with total assets over $10 billion and their affiliates, 
and certain other non-depository entities.\39\
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    \38\ Sections 1011 and 1021 of title X of the Dodd-Frank Act, 
the ``Consumer Financial Protection Act,'' Public Law 111-203, 
sections 1001-1100H, codified at 12 U.S.C. 5491, 5511. The Consumer 
Financial Protection Act is substantially codified at 12 U.S.C. 
5481-5603.
    \39\ Sections 1024 through 1026 of title X of the Dodd-Frank 
Act, codified at 12 U.S.C. 5514-5516.
---------------------------------------------------------------------------

    At the same time, Congress significantly amended the statutory 
requirements governing mortgage practices with the intent to restrict 
the practices that contributed to the crisis. For example, in response 
to concerns that some lenders made loans to consumers without 
sufficiently determining their ability to repay, section 1411 of the 
Dodd-Frank Act amended TILA to require that creditors make a reasonable 
and good faith determination, based on verified and documented 
information, that the consumer will have a reasonable ability to repay 
the loan.\40\ Sections 1032(f), 1098, and 1100A of the Dodd-Frank Act 
address concerns that Federal mortgage disclosures did not adequately 
explain to consumers the terms of their loans (particularly complex 
adjustable rate or optional payment loans) by requiring new disclosure 
forms that will improve consumer understanding of mortgage transactions 
(which is the subject of this proposal).\41\ In addition, the Dodd-
Frank Act established other new standards concerning a wide range of 
mortgage lending practices, including compensation for mortgage 
originators \42\ and mortgage servicing.\43\ For additional 
information, see the discussion below in part II.F.
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    \40\ Section 1411 of the Dodd-Frank Act, codified at 15 U.S.C. 
1639c.
    \41\ 1032(f) of the Dodd-Frank Act, codified at 12 U.S.C. 
5532(f). Sections 1098 and 1100A of the Dodd-Frank Act amend RESPA 
and TILA, respectively.
    \42\ Sections 1402 through 1405 of the Dodd-Frank Act, codified 
at 15 U.S.C. 1639b.
    \43\ Sections 1418, 1420, 1463, and 1464 of the Dodd-Frank Act, 
codified at 12 U.S.C. 2605; 15 U.S.C. 1638, 1638a, 1639f, and 1639g.
---------------------------------------------------------------------------

Size of the Current Mortgage Origination Market
    Even with the economic downturn, approximately $1.28 trillion in 
mortgage loans were originated in 2011.\44\ In exchange for a mortgage 
loan, borrowers promise to make regular mortgage payments and provide 
their home or real property as collateral. The overwhelming majority of 
homebuyers use mortgage loans to pay for at least some of their 
property. In 2011, 93 percent of all new home purchases were financed 
with a mortgage loan.\45\
---------------------------------------------------------------------------

    \44\ Moody's Analytics, Credit Forecast (2012). Reflects first-
lien mortgage loans.
    \45\ Inside Mortgage Finance, New Homes Sold by Financing, 
Mortgage Market Statistical Annual (2012).
---------------------------------------------------------------------------

    Borrowers may take out mortgage loans in order to purchase a new 
home, to refinance an existing mortgage, or to access home equity. 
Purchase loans and refinances produced 6.3 million new mortgage loan 
originations in 2011 alone.\46\ The proportion of loans that are for 
purchases as opposed to refinances varies with the interest rate 
environment. In 2011, 65 percent of the market was refinance 
transactions and 35 percent was purchase loans, by volume.\47\ 
Historically the distribution has been more even. In 2000, refinances 
accounted for 44 percent of the market while purchase loans comprised 
56 percent, and in 2005 the two products were split evenly.\48\
---------------------------------------------------------------------------

    \46\ Moody's Analytics, Credit Forecast (2012). Reflects first-
lien mortgage loans.
    \47\ Inside Mortgage Finance, Mortgage Originations by Product, 
Mortgage Market Statistical Annual (2012). These percentages are 
based on the dollar amount of the loans.
    \48\ Inside Mortgage Finance, Mortgage Originations by Product, 
Mortgage Market Statistical Annual (2012). These percentages are 
based on the dollar amount of the loans.
---------------------------------------------------------------------------

    Using a home equity loan, a homeowner can use their equity as 
collateral in exchange for a loan. The loan proceeds can be used, for 
example, to pay for home improvements or to pay off other debts. These 
home equity loans resulted in an additional 1.3 million mortgage loan 
originations in 2011.\49\
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    \49\ Moody's Analytics, Credit Forecast (2012). Reflects open-
end and closed-end home equity loans.
---------------------------------------------------------------------------

Shopping for Mortgage Loans
    When shopping for a mortgage loan, research has shown that 
consumers are most concerned about the interest rate and their monthly 
payment.\50\ Consumers may underestimate the possibility that interest 
rates and payments can increase later on, or they may not fully 
understand that this possibility exists. They also may not appreciate 
other costs that could arise later, such as prepayment penalties.\51\ 
This focus on short term costs while underestimating long term costs 
may result in consumers taking out mortgage loans that are more costly 
than they realize.\52\
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    \50\ Bd. of Governors of the Fed. Reserve Sys., Summary of 
Findings: Design and Testing of Truth in Lending Disclosures for 
Closed-End Mortgages, prepared by Macro International, Inc. (July 
16, 2009), p. 6, available at https://www.federalreserve.gov/boarddocs/meetings/2009/20090723/Full%20Macro%20CE%20Report.pdf.; 
see also Kleimann Communication Group, Inc., Know Before You Owe: 
Evolution of the Integrated TILA-RESPA Disclosures (July 2012), 
available at https://files.consumerfinance.gov/f/201207_cfpb_report_tila-respa-testing.pdf.
    \51\ James Lacko and Janis Pappalardo, Improving Consumer 
Mortgage Disclosures: An Empirical Assessment of Current and 
Prototype Disclosure Forms, Federal Trade Commission, p. 26 (June 
2007) (finding borrowers had misunderstood key loan features, 
including the overall cost of the loan, future payment amount, 
ability to refinance, payment of up-front points and fees, whether 
the monthly payment included escrow for taxes and insurance, any 
balloon payment, whether the interest rate had been locked, whether 
the rate was adjustable or fixed, and any prepayment penalty), 
available at https://www.ftc.gov/os/2007/06/P025505MortgageDisclosureReport.pdf.
    \52\ Oren Bar-Gill, The Law, Economics and Psychology of 
Subprime Mortgage Contracts, 94 Cornell L. Rev. 1073, 1079 (2009) 
(discussing how subprime borrowers may not fully understand the loan 
costs due to product complexity and deferral of loan costs into the 
future); id. at 1133 (explaining that borrower underestimation of 
mortgage loan cost distorts their decision to take out a loan, 
resulting in excessive borrowing), available at https://legalworkshop.org/wp-content/uploads/2009/07/cornell-A23090727-bar-gill.pdf.

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[[Page 51120]]

    Research points to a relationship between consumer confusion about 
loan terms and conditions and an increased likelihood of adopting 
higher-cost, higher-risk mortgage loans in the years leading up to the 
mortgage crisis. A study of data from the 2001 Survey of Consumer 
Finances found that some adjustable-rate mortgage loan borrowers--
particularly those with below median income--underestimated or did not 
realize how much their interest rates could change.\53\ These findings 
are consistent with a 2006 Government Accountability Office study, 
which raised concerns that mortgage loan disclosure laws did not 
require specific disclosures for adjustable rate loans.\54\ This 
evidence suggests that borrowers who are not presented with clear, 
understandable information about their mortgage loan offer may lack an 
accurate understanding of the loan costs and risks.
---------------------------------------------------------------------------

    \53\ Brian K. Bucks and Karen M. Pence, Do Borrowers Know their 
Mortgage Terms?, J. of Urban Econ. (2008), available at https://works.bepress.com/karen_pence/5.
    \54\ U.S. Government Accountability Office, Alternative Mortgage 
Products: Impact on Default Remains Unclear, but Disclosure of Risks 
to Borrowers Could Be Improved (Sept. 20, 2006), available at https://www.gao.gov/new.items/d061112t.pdf.
---------------------------------------------------------------------------

The Mortgage Origination Process
    Borrowers must go through a mortgage origination process to take 
out a mortgage loan. During this process, borrowers have two 
significant factors to consider: the costs that they pay to close the 
loan, and the costs over the life of the loan. Both factors can vary 
tremendously, making the home purchase especially complex. Furthermore, 
there are many actors involved in a mortgage origination. In addition 
to the lender and the borrower, a single transaction may involve a 
seller, mortgage broker, real estate agent, settlement agent, 
appraiser, multiple insurance providers, and local government clerks 
and tax offices. These actors typically charge fees or commissions for 
the services they provide. Borrowers learn about the loan costs and the 
sources of those costs through a variety of sources, including 
disclosures provided throughout the mortgage origination process.
    Loan Terms. The loan terms affect how the loan is to be repaid, 
including the type of loan product,\55\ the interest rate, the payment 
amount, and the length of the loan term.
---------------------------------------------------------------------------

    \55\ Types of loan products include a fixed rate loan, 
adjustable rate loan, and interest-only loan.
---------------------------------------------------------------------------

    Among other things, the type of loan product determines whether the 
interest rate can change and, if so, when and by how much. A fixed rate 
loan sets the interest rate at origination, and the rate stays the same 
until the borrower pays off the loan. However, the interest rate on an 
adjustable rate loan is periodically reset based on an interest rate 
index. This shifting rate could change the borrower's monthly payment. 
Typically, an adjustable rate loan will combine both types of rates, so 
that the interest rate is fixed for a certain period of time before 
adjusting. For example, a 5/1 adjustable rate loan would have a fixed 
interest rate for five years, and then adjust every year until the loan 
ends. Any changes in the interest rate after the first five years would 
change the borrower's payments. Today, fixed rate mortgages are the 
most common mortgage product, accounting for 87 percent of the mortgage 
loan market in 2011.\56\ Adjustable rate mortgages accounted for only 
13 percent of the mortgage loan market in 2011, although they have been 
more popular in the past.\57\ Adjustable-rate mortgages accounted for 
30 percent of mortgage loan volume in 2000, and reached a recent high 
of 50 percent in 2004.\58\
---------------------------------------------------------------------------

    \56\ Inside Mortgage Finance, Mortgage Originations by Product, 
Mortgage Market Statistical Annual (2012). These percentages are 
based on the dollar amount of the loans.
    \57\ Inside Mortgage Finance, Mortgage Originations by Product, 
Mortgage Market Statistical Annual (2012). These percentages are 
based on the dollar amount of the loans.
    \58\ Inside Mortgage Finance, Mortgage Originations by Product, 
Mortgage Market Statistical Annual (2012). These percentages are 
based on the dollar amount of the loans.
---------------------------------------------------------------------------

    Borrowers are usually required to make payments on a monthly basis. 
These payments typically are calculated to pay off the entire loan 
balance by the time the loan term ends.\59\ The way a borrower's 
payments affect the amount of the loan balance over time is called 
amortization. Most borrowers take out fully amortizing loans, meaning 
that their payments are applied to both principal and interest so that 
the loan's principal balance will gradually decrease until it is 
completely paid off. The typical 30-year fixed rate loan has fully 
amortizing monthly payments that are calculated to pay off the loan in 
full over 30 years. However, loan amortization can take other forms. An 
interest-only loan would require the borrower to make regular payments 
that cover interest but not principal. In some cases, these interest-
only payments end after a period of time (such as five years) and the 
borrower must begin making significantly higher payments that cover 
both interest and principal to amortize the loan over the remaining 
loan term. In other cases, the entire principal balance must be paid 
when the loan becomes due.
---------------------------------------------------------------------------

    \59\ Some loans may require a large final payment (or 
``balloon'' payment) in addition to monthly payments.
---------------------------------------------------------------------------

    The time period that the borrower has to repay the loan is known as 
the loan term, and is specified in the mortgage contract. Many loans 
are set for a term of 30 years. Depending on the amortization type of 
the loan, it will either be paid in full or have a balance due at the 
end of the term.
    Closing Costs. Closing costs are the costs of completing a mortgage 
transaction, including origination fees, appraisal fees, title 
insurance, taxes, and homeowner's insurance. The borrower may pay an 
application or origination fee. Lenders generally also require an 
appraisal as part of the origination process in order to determine the 
value of the home. The appraisal helps the lender determine whether the 
home is valuable enough to act as collateral for the mortgage loan. The 
borrower is generally responsible for the appraisal fee, which may be 
paid at or before closing. Finally, lenders typically require borrowers 
to take out various insurance policies. Insurance protects the lender's 
collateral interest in the property. Homeowner's insurance protects 
against the risk that the home is damaged or destroyed, while title 
insurance protects the lender against the risk of claims against the 
borrower's legal right to the property. In addition, the borrower may 
be required to take out mortgage insurance which protects the lender in 
the event of default.
    Application. In order to obtain a mortgage loan, borrowers must 
first apply through a loan originator. There are two different kinds of 
loan originators. A retail originator works directly for a mortgage 
lender. A mortgage lender that employs retail originators could be a 
bank or credit union, or it could be a specialized mortgage finance 
company. The other kind of loan originator is a mortgage broker. 
Mortgage brokers work with many different lenders and facilitate the 
transaction for the borrower.
    A loan originator may help borrowers determine what kind of loan 
best suits their needs, and will collect their completed loan 
application. The application includes borrower credit and income 
information, along with information about the home to be purchased.
    Borrowers can apply to multiple loan originators in order to 
compare the loans that they are being offered. Once they have decided 
to move forward with the loan, the borrower must notify the loan 
originator. The loan originator will

[[Page 51121]]

typically wait to receive this notification before taking more 
information from the borrower and giving the borrower's application to 
a loan underwriter.
    Mortgage Processing. A loan underwriter uses the application and 
additional information to confirm initial information provided by the 
borrower. The underwriter will assess whether the lender should take on 
the risk of making the mortgage loan. In order to make this decision, 
the underwriter considers whether the borrower can repay the loan, and 
whether the home is worth enough to act as collateral for the loan. If 
the underwriter finds that the borrower and the home qualify, the 
underwriter will approve the borrower's mortgage application.
    Depending on the loan terms, as discussed above, lenders may 
require borrowers to retain title insurance, homeowner's insurance, 
private mortgage insurance, and other services. The lender may allow 
the borrower to shop for certain closing services on their own.
    Closing. After being accepted for a mortgage loan, completing any 
closing requirements, and receiving necessary disclosures, the borrower 
can close on the loan. Multiple parties participate at closing, 
including the borrower and the settlement agent.
    The settlement agent ensures that all the closing requirements are 
met, and that all fees are collected. The settlement agent also 
completes all of the closing documents. The settlement agent makes sure 
that the borrower signs these closing documents, including a promissory 
note and the security instrument. This promissory note is evidence of 
the loan debt, and documents the borrower's promise to pay back the 
loan. It states the terms of the loan, including the interest rate and 
length. The security instrument, in the form of a mortgage, provides 
the home as collateral for the loan. A deed of trust is similar to a 
mortgage, except that a trustee is named to hold title to the property 
as security for the loan. The borrower receives title to the property 
after the loan is paid in full. Both a mortgage and deed of trust allow 
the lender to foreclose and sell the home if the borrower does not 
repay the loan.
    In the case of a purchase loan, the funds to purchase the home and 
pay closing costs are distributed at closing or shortly thereafter. In 
the case of a refinance loan, the funds from the new loan are used to 
pay off the old loan, with any additional amount going to the borrower 
or to pay off other debts. Refinance loans also have closing costs, 
which may be paid by the borrower at closing or, in some cases, rolled 
into the loan amount. In home-equity loans, the borrower's funds and 
the closing costs are provided upon closing. A settlement agent makes 
sure that all amounts are given to the appropriate parties. After the 
closing, the settlement agent records the deed at the local government 
registry.

B. RESPA and Regulation X

    Congress enacted the Real Estate Settlement Procedures Act of 1974 
based on findings that significant reforms in the real estate 
settlement process were needed to ensure that consumers are provided 
with greater and more timely information on the nature and costs of the 
residential real estate settlement process and are protected from 
unnecessarily high settlement charges caused by certain abusive 
practices that Congress found to have developed. 12 U.S.C. 2601(a). 
With respect to RESPA's disclosure requirements, the Act's purpose is 
to provide ``more effective advance disclosure to home buyers and 
sellers of settlement costs.'' Id. 2601(b)(1). In addition to providing 
consumers with appropriate disclosures, the purposes of RESPA include 
effecting certain changes in the settlement process for residential 
real estate that will result in (1) the elimination of kickbacks or 
referral fees that Congress found to increase unnecessarily the costs 
of certain settlement services; and (2) a reduction in the amounts home 
buyers are required to place in escrow accounts established to insure 
the payment of real estate taxes and insurance. Id. 2601. In 1990, 
Congress amended RESPA by adding a new section 6 covering persons 
responsible for servicing mortgage loans and amending statutory 
provisions related to mortgage servicers' administration of borrowers' 
escrow accounts.\60\
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    \60\ Public Law 101-625, 104 Stat. 4079 (1990), sections 941-42.
---------------------------------------------------------------------------

    RESPA's disclosure requirements generally apply to ``settlement 
services'' for ``federally related mortgage loans.'' Under the statute, 
the term ``settlement services'' includes any service provided in 
connection with a real estate settlement. Id. 2602(3). The term 
``federally related mortgage loan'' is broadly defined to encompass 
virtually any purchase money or refinance loan, with the exception of 
temporary financing, that is ``secured by a first or subordinate lien 
on residential real property (including individual units of 
condominiums and cooperatives) designed principally for the occupancy 
of from one to four families * * *.'' Id. 2602(1).
    Section 4 of RESPA requires that, in connection with a ``mortgage 
loan transaction,'' a disclosure form that includes a ``real estate 
settlement cost statement'' be prepared and made available to the 
borrower for inspection at or before settlement.\61\ Id. 2603. The law 
further requires that form ``conspicuously and clearly itemize all 
charges imposed upon the borrower and all charges imposed upon the 
seller in connection with the settlement * * *.'' Id. 2603(a). Section 
5 of RESPA provides for a booklet to help consumers applying for loans 
to finance the purchase of residential real estate from lenders that 
make federally related mortgage loans to understand the nature and 
costs of real estate settlement services. Id. 2604(a). Further, each 
lender must ``include with the booklet a good faith estimate of the 
amount or range of charges for specific settlement services the 
borrower is likely to incur in connection with the settlement * * *.'' 
Id. 2604(c). The booklet and the good faith estimate must be provided 
not later than three business days after the lender receives an 
application, unless the lender denies the application for credit before 
the end of the three-day period. Id. 2604(d).
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    \61\ Prior to the Dodd-Frank Act, section 4 of RESPA applied to 
``all transactions in the United States which involve federally 
related mortgage loans.'' 12 U.S.C. 2603 (2009). However, section 
1098 of the Dodd-Frank Act deleted the reference to ``federally 
related mortgage loan'' in this section and replaced it with 
``mortgage loan transactions.'' The regulation implementing this 
statutory requirement has historically applied and continues to 
apply to ``federally related mortgage loans.'' See 12 CFR 1024.8; 24 
CFR 3500.8 (2010).
---------------------------------------------------------------------------

    Historically, Regulation X of the Department of Housing and Urban 
Development (HUD), 24 CFR part 3500, has implemented RESPA. On March 
14, 2008, after a 10-year investigatory process, HUD proposed extensive 
revisions to the good faith estimate and settlement forms required 
under Regulation X, as well as new accuracy standards with respect to 
the estimates provided to consumers. 73 FR 14030 (Mar. 14, 2008) (HUD's 
2008 RESPA Proposal).\62\ In November 2008, HUD finalized the proposed 
revisions in substantially the same form, including new standard good 
faith estimate and settlement forms, which lenders, mortgage brokers, 
and settlement agents were required to use beginning on January 1, 
2010. 73 FR 68204 (Nov. 17, 2008) (HUD's 2008 RESPA Final Rule). HUD's 
2008 RESPA Final Rule implemented significant changes to the

[[Page 51122]]

rules regarding the accuracy of the estimates provided to consumers. 
The final rule required re-disclosure of the good faith estimate form 
when the actual costs increased beyond a certain percentage of the 
estimated amounts, and permitted such increases only under certain 
specified circumstances. Id. at 68240 (amending 24 CFR 3500.7). HUD's 
2008 RESPA Final Rule also included significant changes to the RESPA 
disclosure requirements, including prohibiting itemization of certain 
amounts and instead requiring the disclosure of aggregate settlement 
costs; adding loan terms, such as whether there is a prepayment penalty 
and the borrower's interest rate and monthly payment; and requiring use 
of a standard form for the good faith estimate. Id. The standard form 
was developed through consumer testing conducted by HUD, which included 
qualitative testing consisting of one-on-one cognitive interviews.\63\ 
HUD issued informal guidance regarding the final rule on its Web site, 
in the form of frequently asked questions \64\ (HUD RESPA FAQs) and 
bulletins \65\ (HUD RESPA Roundups).
---------------------------------------------------------------------------

    \62\ During this 10-year period, in 2002, HUD published a 
proposed rule revising the good faith estimate forms and accuracy 
standards for cost estimates, which it never finalized. 67 FR 49134 
(July 29, 2002).
    \63\ U.S. Dep't. of Hous. and Urban Dev., Summary Report: 
Consumer Testing of the Good Faith Estimate Form (GFE), prepared by 
Kleimann Communication Group, Inc. (2008), available at https://www.huduser.org/publications/pdf/Summary_Report_GFE.pdf.
    \64\ New RESPA Rule FAQs, available at https://portal.hud.gov/hudportal/documents/huddoc?id=resparulefaqs422010.pdf.
    \65\ RESPA Roundup Archive, available at https://portal.hud.gov/hudportal/HUD?src=/program_offices/housing/rmra/res/resroundup.
---------------------------------------------------------------------------

    The Dodd-Frank Act (discussed further in part I.D, below) 
transferred rulemaking authority for RESPA to the Bureau, effective 
July 21, 2011. See sections 1061 and 1098 of the Dodd-Frank Act. 
Pursuant to the Dodd-Frank Act and RESPA, as amended, the Bureau 
published for public comment an interim final rule establishing a new 
Regulation X, 12 CFR part 1024, implementing RESPA. 76 FR 78978 (Dec. 
20, 2011). This rule did not impose any new substantive obligations but 
did make certain technical, conforming, and stylistic changes to 
reflect the transfer of authority and certain other changes made by the 
Dodd-Frank Act. The Bureau's Regulation X took effect on December 30, 
2011. RESPA section 5's requirements of an information booklet and good 
faith estimate of settlement costs (RESPA GFE) are implemented in 
Regulation X by Sec. Sec.  1024.6 and 1024.7, respectively. RESPA 
section 4's requirement of a real estate settlement statement (RESPA 
settlement statement) is implemented by Sec.  1024.8.

C. TILA and Regulation Z

    Congress enacted the Truth in Lending Act based on findings that 
the informed use of credit resulting from consumers' awareness of the 
cost of credit would enhance economic stability and would strengthen 
competition among consumer credit providers. 15 U.S.C. 1601(a). One of 
the purposes of TILA is to provide meaningful disclosure of credit 
terms to enable consumers to compare credit terms available in the 
marketplace more readily and avoid the uninformed use of credit. Id. 
TILA's disclosures differ depending on whether credit is an open-end 
(revolving) plan or a closed-end (installment) loan. TILA also contains 
procedural and substantive protections for consumers.
    TILA's disclosure requirements apply to a ``consumer credit 
transaction'' extended by a ``creditor.'' Under the statute, consumer 
credit means ``the right granted by a creditor to a debtor to defer 
payment of debt or to incur debt and defer its payment,'' where ``the 
party to whom credit is offered or extended is a natural person, and 
the money, property, or services which are the subject of the 
transaction are primarily for personal, family, or household 
purposes.'' Id. 1602(f), (i). A creditor generally is ``a person who 
both (1) regularly extends * * * consumer credit which is payable by 
agreement in more than four installments or for which the payment of a 
finance charge is or may be required, and (2) is the person to whom the 
debt arising from the consumer credit transaction is initially payable 
on the face of the evidence of indebtedness or, if there is no such 
evidence of indebtedness, by agreement.'' Id. 1602(g).
    TILA section 128 requires that, for closed-end credit, the 
disclosures generally be made ``before the credit is extended.'' Id. 
1638(b)(1). For closed-end transactions secured by a consumer's 
dwelling and subject to RESPA, good faith estimates of the disclosures 
are required ``not later than three business days after the creditor 
receives the consumer's written application, which shall be at least 7 
business days before consummation of the transaction.'' Id. 
1638(b)(2)(A). Finally, if the annual percentage rate (APR) disclosed 
in this early TILA disclosure statement becomes inaccurate, ``the 
creditor shall furnish an additional, corrected statement to the 
borrower, not later than 3 business days before the date of 
consummation of the transaction.'' Id. 1638(b)(2)(D).
    Historically, Regulation Z of the Board of Governors of the Federal 
Reserve System, 12 CFR part 226, has implemented TILA. TILA section 
128's requirement that the disclosure statement be provided before the 
credit is extended (final TILA disclosure) is implemented in Regulation 
Z by Sec.  1026.17(b). The requirements that a good faith estimate of 
the disclosure be provided within three business days after application 
and at least seven business days prior to consummation (early TILA 
disclosure) and that a corrected disclosure be provided at least three 
business days before consummation (corrected TILA disclosure), as 
applicable, are implemented by Sec.  1026.19(a). The contents of the 
TILA disclosures, as required by TILA section 128, are implemented by 
Sec.  1026.18.
    On July 30, 2008, Congress enacted the Mortgage Disclosure 
Improvement Act of 2008 (MDIA).\66\ MDIA, in part, amended the timing 
requirements for the early TILA disclosures, requiring that these TILA 
disclosures be provided within three business days after an application 
for a dwelling-secured closed-end mortgage loan also subject to RESPA 
is received and before the consumer has paid any fee (other than a fee 
for obtaining the consumer's credit history).\67\ Creditors also must 
mail or deliver these early TILA disclosures at least seven business 
days before consummation and provide corrected disclosures if the 
disclosed APR changes in excess of a specified tolerance. The consumer 
must receive the corrected disclosures no later than three business 
days before consummation. The Board implemented these MDIA requirements 
in final rules published May 19, 2009, which became effective July 30, 
2009, as required by the statute. 74 FR 23289 (May 19, 2009) (MDIA 
Final Rule).
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    \66\ MDIA is contained in sections 2501 through 2503 of the 
Housing and Economic Recovery Act of 2008, Public Law 110-289, 
enacted on July 30, 2008. MDIA was later amended by the Emergency 
Economic Stabilization Act of 2008, Public Law 110-343, enacted on 
October 3, 2008.
    \67\ MDIA codified some requirements previously adopted by the 
Board in a July 2008 final rule. 73 FR 44522 (July 30, 2008) (HOEPA 
Final Rule). To ease discussion, the description of MDIA's 
disclosure requirements includes the requirements of the 2008 HOEPA 
Final Rule.
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    MDIA also requires disclosure of payment examples if the loan's 
interest rate or payments can change, along with a statement that there 
is no guarantee the consumer will be able to refinance the transaction 
in the future. Under the statute, these provisions of MDIA became 
effective on January 30, 2011. The Board worked to implement these 
provisions of MDIA at the same time that it was completing work on a 
several

[[Page 51123]]

year review of Regulation Z's provisions concerning home-secured 
credit. As a result, the Board issued two sets of proposals 
approximately one year apart. On August 26, 2009, the Board published 
proposed amendments to Regulation Z containing comprehensive changes to 
the disclosures for closed-end credit secured by real property or a 
consumer's dwelling, including revisions to the format and content of 
the disclosures implementing MDIA's payment examples and refinance 
statement requirements, and several new requirements. 74 FR 43232 (Aug. 
26, 2009) (2009 Closed-End Proposal).
    For the 2009 Closed-End Proposal, the Board developed several new 
model disclosure forms through consumer testing consisting of focus 
groups and one-on-one cognitive interviews.\68\ In addition, the 2009 
Closed-End Proposal proposed an extensive revision to the definition of 
``finance charge'' that would replace the ``some fees in, some fees 
out'' approach for determining the finance charge with a simpler, more 
inclusive ``all-in'' approach. The proposed definition of ``finance 
charge'' would include a fee or charge if it is (1) ``payable directly 
or indirectly by the consumer'' to whom credit is extended, and (2) 
``imposed directly or indirectly by the creditor as an incident to or a 
condition of the extension of credit.'' The finance charge would 
continue to exclude fees or charges paid in comparable cash 
transactions.\69\
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    \68\ Bd. of Governors of the Fed. Reserve Sys., Summary of 
Findings: Design and Testing of Truth in Lending Disclosures for 
Closed-End Mortgages, prepared by Macro International, Inc. (July 
16, 2009) (Macro 2009 Closed-End Report), available at https://www.federalreserve.gov/boarddocs/meetings/2009/20090723/Full%20Macro%20CE%20Report.pdf.
    \69\ As discussed in the analysis of the proposed amendments to 
Sec.  1026.4 in part VI, in response to concerns about the effect of 
an ``all-in'' finance charge on the higher-priced and HOEPA coverage 
thresholds in Sec. Sec.  1026.35 and 1026.32, respectively, the 
Board proposed to implement a different ``transaction coverage 
rate'' for higher-priced coverage and to retain the existing ``some 
fees in, some fees out'' treatment of certain charges in the 
definition of points and fees for purposes of determining HOEPA 
coverage. See 76 FR 27390, 27411-12 (May 11, 2011); 76 FR 11598, 
11608-09 (Mar. 2, 2011); 75 FR 58539, 58636-38, 58660-61 (Sept. 24, 
2010).
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    On September 24, 2010, the Board published an interim final rule to 
implement MDIA's payment example and refinance statement requirements. 
75 FR 58470 (Sept. 24, 2010) (MDIA Interim Rule). The Board's MDIA 
Interim Rule effectively adopted those aspects of the 2009 Closed-End 
Proposal that implemented these MDIA requirements, without adopting 
that proposal's other provisions, which were not subject to the same 
January 30, 2011 statutory effective date. The Board later issued 
another interim final rule to make certain clarifying changes to the 
provisions of the MDIA Interim Rule. 75 FR 81836 (Dec. 29, 2010).
    On September 24, 2010, the Board also proposed further amendments 
to Regulation Z regarding rescission rights, disclosure requirements in 
connection with modifications of existing mortgage loans, and 
disclosures and requirements for reverse mortgage loans. This proposal 
was the second stage of the comprehensive review conducted by the Board 
of TILA's rules for home-secured credit. 75 FR 58539 (Sept. 24, 2010) 
(2010 Mortgage Proposal).
    The Board also began, on September 24, 2010, issuing proposals 
implementing the Dodd-Frank Act, which had been signed on July 21, 
2010. The Board issued a proposed rule implementing section 1461 of the 
Dodd-Frank Act, which, in part, adjusts the rate threshold for 
determining whether escrow accounts are required for ``jumbo loans,'' 
whose principal amounts exceed the maximum eligible for purchase by 
Freddie Mac.\70\ 75 FR 58505 (Sept. 24, 2010). On March 2, 2011, the 
Board proposed amendments to Regulation Z implementing other 
requirements of sections 1461 and 1462 of the Dodd-Frank Act, which 
added new substantive and disclosure requirements regarding escrow 
accounts to TILA. 76 FR 11598 (March 2, 2011) (2011 Escrows Proposal). 
Sections 1461 and 1462 of the Dodd-Frank Act create new TILA section 
129D, which substantially codifies requirements that the Board had 
previously adopted in Regulation Z regarding escrow requirements for 
higher-priced mortgage loans (including the revised rate threshold for 
``jumbo loans'' described above), but also adds disclosure 
requirements, and lengthens the period for which escrow accounts are 
required.
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    \70\ The Board finalized this proposal effective April 1, 2011. 
76 FR 11319 (Mar. 2, 2011).
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    On May 11, 2011, the Board proposed amendments to Regulation Z to 
implement section 1411 of the Dodd-Frank Act, which amends TILA to 
prohibit creditors from making mortgage loans without regard to the 
consumer's repayment ability. 76 FR 27390 (May 11, 2011) (2011 ATR 
Proposal). Section 1411 of the Dodd-Frank Act adds section 129C to 
TILA, codified at 15 U.S.C. 1639c, which prohibits a creditor from 
making a mortgage loan unless the creditor makes a reasonable and good 
faith determination, based on verified and documented information, that 
the consumer will have a reasonable ability to repay the loan, 
including any mortgage-related obligations (such as property taxes).
    Effective July 21, 2011, the Dodd-Frank Act transferred rulemaking 
authority for TILA to the Bureau.\71\ See sections 1061 and 1100A of 
the Dodd-Frank Act. Along with this authority, the Bureau assumed 
responsibility for the proposed rules discussed above. Pursuant to the 
Dodd-Frank Act and TILA, as amended, the Bureau published for public 
comment an interim final rule establishing a new Regulation Z, 12 CFR 
part 1026, implementing TILA (except with respect to persons excluded 
from the Bureau's rulemaking authority by section 1029 of the Dodd-
Frank Act). 76 FR 79768 (Dec. 22, 2011). This rule did not impose any 
new substantive obligations but did make certain technical, conforming, 
and stylistic changes to reflect the transfer of authority and certain 
other changes made by the Dodd-Frank Act. The Bureau's Regulation Z 
took effect on December 30, 2011.
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    \71\ Section 1029 of the Dodd-Frank Act excludes from this 
transfer of authority, subject to certain exceptions, any rulemaking 
authority over a motor vehicle dealer that is predominantly engaged 
in the sale and servicing of motor vehicles, the leasing and 
servicing of motor vehicles, or both. 12 U.S.C. 5519.
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D. The History of Integration Efforts

    For more than 30 years, TILA and RESPA have required creditors and 
settlement agents to give consumers who apply for and obtain a mortgage 
loan different but overlapping disclosure forms regarding the loan's 
terms and costs. This duplication has long been recognized as 
inefficient and confusing for both consumers and industry.
    Previous efforts to develop a combined TILA and RESPA disclosure 
form were fueled by the amount, complexity, and overlap of information 
in the disclosures. On September 30, 1996, Congress enacted the 
Economic Growth and Regulatory Paperwork Reduction Act of 1996,\72\ 
which required the Board and HUD to ``simplify and improve the 
disclosures applicable to the transactions under [TILA and RESPA], 
including the timing of the disclosures; and to provide a single format 
for such disclosures which will satisfy the requirements of each such 
Act with respect to such transactions.'' \73\ If the agencies found 
that legislative action might be necessary or appropriate to simplify 
and unify the disclosures, they were to submit a report to Congress 
containing recommendations for such action. In the same legislation, 
Congress added

[[Page 51124]]

exemption authority in TILA section 105(f) for classes of transactions 
for which, in the determination of the Board (now the Bureau), coverage 
under all or part of TILA does not provide a meaningful benefit to 
consumers in the form of useful information or protection.\74\
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    \72\ Public Law 104-208, 110 Stat. 3009 (1996).
    \73\ Id., section 2101.
    \74\ Id., section 2102(b).
---------------------------------------------------------------------------

    The Board and HUD did not propose an integrated disclosure pursuant 
to this legislation. Instead, in July 1998, the Board and HUD issued a 
``Joint Report to the Congress Concerning Reform to the Truth in 
Lending Act and the Real Estate Settlement Procedures Act'' (Board-HUD 
Joint Report).\75\ The Board-HUD Joint Report concluded that 
``meaningful change could come only through legislation'' and provided 
Congress with the Board's and HUD's recommendations for revising TILA 
and RESPA.
---------------------------------------------------------------------------

    \75\ Bd. of Governors of the Fed. Reserve Sys. And U.S. Dep't of 
Hous. and Urban Dev., Joint Report to the Congress Concerning Reform 
to the Truth in Lending Act and the Real Estate Settlement 
Procedures Act (1998), available at https://www.federalreserve.gov/boarddocs/rptcongress/tila.pdf.
---------------------------------------------------------------------------

    The agencies recommended a number of amendments to TILA and RESPA 
in the report, such as amendment of TILA's definition of ``finance 
charge'' to eliminate the ``some fees in, some fees out'' approach and 
instead include ``all costs the consumer is required to pay in order to 
close the loan, with limited exceptions''; the amendment of RESPA to 
require either the guaranteeing of closing costs on the GFE or 
estimates that are subject to an accuracy standard; and provision of 
the final TILA disclosure and settlement statement three days before 
closing, so that consumers would be able to study the disclosures in an 
unpressured environment.
    The Board-HUD Joint Report also recommended several additional 
changes to the TILA disclosures. In particular, the report recommended 
significant revisions to the ``Fed Box,'' which is the tabular 
disclosure provided to consumers in the early and final TILA 
disclosures under Regulation Z containing the APR, the finance charge 
(which is intended to be the cost of credit expressed as a dollar 
amount), the amount financed (which is intended to reflect the loan 
proceeds available to the consumer), and the total of payments (which 
is the dollar amount of the transaction over the loan term, including 
principal and finance charges).\76\ The report recommended, among other 
things, eliminating the amount financed from the disclosure for 
mortgage loans because it probably was not useful to consumers in 
understanding mortgage loans. The report also recommended adding 
disclosure of the total closing costs in the Fed Box, citing focus 
groups conducted by the Board in which participants stated that 
disclosure of the amount needed to close the loan would be useful.
---------------------------------------------------------------------------

    \76\ See, e.g., Regulation Z, 12 CFR part 1026 app. H-2 Loan 
Model Form.
---------------------------------------------------------------------------

    The Board-HUD Joint Report did not result in legislative action. 
Eleven years later, and four months before the revised RESPA 
disclosures under HUD's 2008 RESPA Final Rule were to become mandatory, 
the Board published the 2009 Closed-End Proposal, which proposed 
significant revisions to the TILA disclosures and stated that the Board 
would work with HUD towards integrating the two disclosure regimes. The 
proposal stated that ``the Board anticipates working with [HUD] to 
ensure that TILA and [RESPA] disclosures are compatible and 
complementary, including potentially developing a single disclosure 
form that creditors could use to combine the initial disclosures 
required under TILA and RESPA.'' \77\ The proposal stated that consumer 
testing would be used to ensure consumers could understand and use the 
combined disclosures. However, only ten months later in July 2010, the 
Dodd-Frank Act was enacted by Congress, which transferred rulemaking 
authority under both TILA and RESPA to the Bureau and mandated that the 
Bureau establish a single disclosure scheme under TILA and RESPA. Now, 
nearly 16 years after Congress first directed the Board and HUD to 
integrate the disclosures under TILA and RESPA, the Bureau publishes 
this proposed rule.
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    \77\ 74 FR 43232, 43233.
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E. The Dodd-Frank Act

    As noted above, RESPA and TILA historically have been implemented 
by regulations of HUD and the Board, respectively, and the Dodd-Frank 
Act consolidated this rulemaking authority in the Bureau. In addition, 
the Dodd-Frank Act amended both statutes to mandate that the Bureau 
establish a single disclosure scheme for use by lenders or creditors in 
complying comprehensively with the disclosure requirements discussed 
above. Section 1098(2) of the Dodd-Frank Act amended RESPA section 4(a) 
to require that the Bureau ``publish a single, integrated disclosure 
for mortgage loan transactions (including real estate settlement cost 
statements) which includes the disclosure requirements of this section 
and section 5, in conjunction with the disclosure requirements of 
[TILA] that, taken together, may apply to a transaction that is subject 
to both or either provisions of law.'' 12 U.S.C. 2603(a). Similarly, 
section 1100A(5) of the Dodd-Frank Act amended TILA section 105(b) to 
require that the Bureau ``publish a single, integrated disclosure for 
mortgage loan transactions (including real estate settlement cost 
statements) which includes the disclosure requirements of this title in 
conjunction with the disclosure requirements of [RESPA] that, taken 
together, may apply to a transaction that is subject to both or either 
provisions of law.'' 15 U.S.C. 1604(b).
    The amendments to RESPA and TILA mandating a ``single, integrated 
disclosure'' are among numerous conforming amendments to existing 
Federal laws found in subtitle H of the Consumer Financial Protection 
Act of 2010.\78\ Subtitle C of the Consumer Financial Protection Act, 
``Specific Bureau Authorities,'' codified at 12 U.S.C. chapter 53, 
subchapter V, part C, contains a similar provision. Specifically, 
section 1032(f) of the Dodd-Frank Act provides that, by July 21, 2012, 
the Bureau ``shall propose for public comment rules and model 
disclosures that combine the disclosures required under [TILA] and 
[sections 4 and 5 of RESPA] into a single, integrated disclosure for 
mortgage loan transactions covered by those laws, unless the Bureau 
determines that any proposal issued by the [Board] and [HUD] carries 
out the same purpose.'' 12 U.S.C. 5532(f). The Bureau is publishing 
this proposed rule pursuant to that mandate and the parallel mandates 
established by the conforming amendments to RESPA and TILA, discussed 
above.
---------------------------------------------------------------------------

    \78\ The Consumer Financial Protection Act is title X, ``Bureau 
of Consumer Financial Protection,'' of the Dodd-Frank Act, Public 
Law 111-203, 124 Stat. 1376 (2010), sections 1001-1100H. In the 
Consumer Financial Protection Act, Congress established the Bureau 
and its powers and authorities, transferred to the Bureau various 
existing functions of other agencies, mandated certain regulatory 
improvements, and prescribed other requirements and conforming 
amendments. Subtitle H, ``Conforming Amendments,'' is the last 
subtitle and consists of sections 1081-1100H. Certain titles of the 
Dodd-Frank Act are codified at 12 U.S.C. chapter 53. Subtitles A 
through G (but not H) of title X are codified at 12 U.S.C. chapter 
53, subchapter V, parts A through G. Thus, the Consumer Financial 
Protection Act is substantially codified at 12 U.S.C. 5481-5603.
---------------------------------------------------------------------------

F. Other Rulemakings

    In addition to this proposal, the Bureau currently is engaged in 
six other rulemakings relating to mortgage credit

[[Page 51125]]

to implement requirements of the Dodd-Frank Act:
     HOEPA: On the same day that this proposal is released by 
the Bureau, the Bureau is releasing a proposal to implement Dodd-Frank 
Act requirements expanding protections for ``high-cost'' mortgage loans 
under HOEPA, pursuant to TILA sections 103(bb) and 129, as amended by 
Dodd-Frank Act sections 1431 through 1433 (2012 HOEPA Proposal). 15 
U.S.C. 1602(bb) and 1639.\79\
---------------------------------------------------------------------------

    \79\ Available at https://www.consumerfinance.gov/notice-and-comment/.
---------------------------------------------------------------------------

     Servicing: The Bureau is in the process of developing a 
proposal to implement Dodd-Frank Act requirements regarding force-
placed insurance, error resolution, and payment crediting, as well as 
forms for mortgage loan periodic statements and ``hybrid'' adjustable-
rate mortgage reset disclosures, pursuant to sections 6 of RESPA and 
128, 128A, 129F, and 129G of TILA, as amended or established by Dodd-
Frank Act sections 1418, 1420, 1463, and 1464. The Bureau has publicly 
stated that in connection with the servicing rulemaking the Bureau is 
considering proposing rules on reasonable information management, early 
intervention for troubled and delinquent borrowers, and continuity of 
contact, pursuant to the Bureau's authority to carry out the consumer 
protection purposes of RESPA in section 6 of RESPA, as amended by Dodd-
Frank Act section 1463. 12 U.S.C. 2605; 15 U.S.C. 1638, 1638a, 1639f, 
and 1639g.
     Loan Originator Compensation: The Bureau is in the process 
of developing a proposal to implement provisions of the Dodd-Frank Act 
requiring certain creditors and mortgage loan originators to meet duty 
of care qualifications and prohibiting mortgage loan originators, 
creditors, and the affiliates of both from receiving compensation in 
various forms (including based on the terms of the transaction) and 
from sources other than the consumer, with specified exceptions, 
pursuant to TILA section 129B as established by Dodd-Frank Act sections 
1402 and 1403. 15 U.S.C. 1639b.
     Appraisals: The Bureau, jointly with Federal prudential 
regulators and other Federal agencies, is in the process of developing 
a proposal to implement Dodd-Frank Act requirements concerning 
appraisals for higher-risk mortgages, appraisal management companies, 
and automated valuation models, pursuant to TILA section 129H as 
established by Dodd-Frank Act section 1471, 15 U.S.C. 1639h, and 
sections 1124 and 1125 of the Financial Institutions Reform, Recovery, 
and Enforcement Act of 1989 (FIRREA) as established by Dodd-Frank Act 
sections 1473(f), 12 U.S.C. 3353, and 1473(q), 12 U.S.C. 3354, 
respectively. In addition, the Bureau is developing rules to implement 
section 701(e) of the Equal Credit Opportunity Act (ECOA), as amended 
by Dodd-Frank Act section 1474, to require that creditors provide 
applicants with a free copy of written appraisals and valuations 
developed in connection with applications for loans secured by a first 
lien on a dwelling (collectively, Appraisals Rulemaking). 15 U.S.C. 
1691(e).
     Ability to Repay: The Bureau is in the process of 
finalizing a proposal issued by the Board to implement provisions of 
the Dodd-Frank Act requiring creditors to determine that a consumer can 
repay a mortgage loan and establishing standards for compliance, such 
as by making a ``qualified mortgage,'' pursuant to TILA section 129C as 
established by Dodd-Frank Act sections 1411 and 1412 (Ability to Repay 
Rulemaking). 15 U.S.C. 1639c.
     Escrows: The Bureau is in the process of finalizing a 
proposal issued by the Board to implement provisions of the Dodd-Frank 
Act requiring certain escrow account disclosures and exempting from the 
higher-priced mortgage loan escrow requirement loans made by certain 
small creditors, among other provisions, pursuant to TILA section 129D 
as established by Dodd-Frank Act sections 1461 and 1462 (Escrows 
Rulemaking). 15 U.S.C. 1639d.
With the exception of the requirements being implemented in this 
rulemaking, the Dodd-Frank Act requirements referenced above generally 
will take effect on January 21, 2013 unless final rules implementing 
those requirements are issued on or before that date and provide for a 
different effective date. To provide an orderly, coordinated, and 
efficient comment process, the Bureau is generally setting the 
deadlines for comments on this and other proposed mortgage rules based 
on the date the proposal is issued, instead of the date this notice is 
published in the Federal Register. Specifically, as discussed below, it 
may be appropriate to finalize proposed Sec. Sec.  1026.1(c) and 1026.4 
in conjunction with the final rules adopted on or before January 21, 
2013. Therefore, the Bureau is providing 60 days for comment on those 
proposals (until September 7, 2012), which will ensure that the Bureau 
receives comments with sufficient time remaining to issue final rules 
by that date. For the other portions of this proposed rule (including 
the Paperwork Reduction Analysis in part IX below), the Bureau is 
providing 120 days (until November 6, 2012). Because the precise date 
this notice will be published cannot be predicted in advance, setting 
the deadlines based on the date of issuance will allow interested 
parties that intend to comment on multiple proposals to plan 
accordingly.
    The Bureau regards the foregoing rulemakings as components of a 
larger undertaking; many of them intersect with one or more of the 
others. Accordingly, the Bureau is coordinating carefully the 
development of the proposals and final rules identified above. Each 
rulemaking will adopt new regulatory provisions to implement the 
various Dodd-Frank Act mandates described above. In addition, each of 
them may include other provisions the Bureau considers necessary or 
appropriate to ensure that the overall undertaking is accomplished 
efficiently and that it ultimately yields a regulatory scheme for 
mortgage credit that achieves the statutory purposes set forth by 
Congress, while avoiding unnecessary burdens on industry.
    Thus, many of the rulemakings listed above involve issues that 
extend across two or more rulemakings. In this context, each rulemaking 
may raise concerns that might appear unaddressed if that rulemaking 
were viewed in isolation. For efficiency's sake, however, the Bureau is 
publishing and soliciting comment on proposed answers to certain issues 
raised by two or more of its mortgage rulemakings in whichever 
rulemaking is most appropriate, in the Bureau's judgment, for 
addressing each specific issue. Accordingly, the Bureau urges the 
public to review this and the other mortgage proposals identified 
above, including those previously published by the Board, together. 
Such a review will ensure a more complete understanding of the Bureau's 
overall approach and will foster more comprehensive and informed public 
comment on the Bureau's several proposals, including provisions that 
may have some relation to more than one rulemaking but are being 
proposed for comment in only one of them.
    For example, as discussed in detail in the section-by-section 
analysis under proposed Sec.  1026.4 below, this proposal includes a 
simpler, more inclusive definition of the finance charge, similar to 
what the Board proposed in its 2009 Closed-End Proposal. See 74 FR 
43232, 43241-45 (Aug. 26, 2009). The Board recognized at that time that 
the more inclusive finance charge would cause more loans to be 
considered higher-priced mortgage loans under Sec.  1026.35 and would 
expand the coverage of

[[Page 51126]]

HOEPA and similar State laws. Id. at 43244-45. For these reasons, in 
its 2010 Mortgage Proposal, the Board proposed to retain the existing 
treatment of third-party charges in the points and fees definition, 
notwithstanding the proposed expansion of the finance charge for 
disclosure purposes. 75 FR 58539, 58637-38 (Sept. 24, 2010). Similarly, 
the Board's 2010 Mortgage Proposal introduced a new metric for 
determining coverage of the higher-priced mortgage loan protections to 
be used in place of a transaction's APR, known as the ``transaction 
coverage rate'' (TCR), which does not reflect the additional charges 
that are reflected in the disclosed APR under the more inclusive 
finance charge definition. Id. at 58660-62.
    The Bureau recognizes, as did the Board, that the proposed more 
inclusive finance charge could affect the coverage of the higher-priced 
mortgage loan and HOEPA protections. The Bureau also is aware that, 
consequently, a more inclusive finance charge has implications for the 
HOEPA, Appraisals, Ability to Repay, and Escrows rulemakings identified 
above. Those impacts are analyzed below, but the Bureau believes that 
it is also helpful to analyze potential mitigation measures on a rule-
by-rule basis. Accordingly, the Bureau expects to seek comment in the 
HOEPA and Appraisals rulemakings on whether and how to account for the 
implications of the more inclusive finance charge on those specific 
regulatory regimes, for instance by adopting the TCR as previously 
proposed by the Board.\80\
---------------------------------------------------------------------------

    \80\ The Board already sought comment on this issue in its 
proposals to implement the ability to repay and escrow requirements.
---------------------------------------------------------------------------

III. Outreach and Consumer Testing

    As noted above, the Dodd-Frank Act established two goals for this 
rulemaking: ``to facilitate compliance with the disclosure requirements 
of [TILA and RESPA]'' and ``to aid the borrower or lessee in 
understanding the transaction by utilizing readily understandable 
language to simplify the technical nature of the disclosures.'' Dodd-
Frank Act sections 1098, 1100A. Further, the Bureau has a specific 
mandate and authority from Congress to promote consumer comprehension 
of financial transactions through clear disclosures. Section 1021(a) of 
the Dodd-Frank Act directs the Bureau to ``implement * * * Federal 
consumer financial law consistently for the purpose of ensuring,'' 
inter alia, that ``markets for consumer financial products and services 
are fair, transparent, and competitive.'' 12 U.S.C. 5511(a). Section 
1021(b) of the Dodd-Frank Act, in turn, authorizes the Bureau as part 
of its core mission to exercise its authorities to ensure that, with 
respect to consumer financial products and services, ``consumers are 
provided with timely and understandable information to make responsible 
decisions about financial transactions.'' 12 U.S.C. 5511(b). Consistent 
with these goals and in preparation for proposing integrated rules and 
forms, the Bureau conducted a multifaceted information gathering 
campaign, including researching how consumers interact with and 
understand information, testing of prototype forms, developing 
interactive online tools to gather public feedback, and hosting 
roundtable discussions, teleconferences, and meetings with consumer 
advocacy groups, industry stakeholders, and other government agencies.

A. Early Stakeholder Outreach & Prototype Form Design

    In September 2010, the Bureau began meeting with consumer 
advocates, other banking agencies, community banks, credit unions, 
settlement agents, and other industry representatives. This outreach 
helped the Bureau better understand the issues that consumers and 
industry face when they use the current TILA and RESPA disclosures.
    At the same time, the Bureau began to research how consumers 
interact with and understand information. Given the complexities and 
variability of mortgage loan transactions and their underlying real 
estate transactions, the Bureau understood that the integrated 
disclosures would have to convey a large amount of complex and 
technical information to consumers in a manner that they could use and 
understand. Considering that, in January 2011, the Bureau contracted 
with a communication, design, consumer testing, and research firm, 
Kleimann Communication Group, Inc. (Kleimann), which specializes in 
consumer financial disclosures. Kleimann has been hired by other 
Federal agencies to perform such design and qualitative testing work in 
connection with other financial disclosure forms. For example, the 
Federal Trade Commission and the Federal banking agencies contracted 
with Kleimann to design and conduct consumer testing for revised model 
privacy disclosures.\81\ Also, HUD contracted with Kleimann to assist 
in the design and consumer testing for its revised good faith estimate 
and settlement statement forms.\82\
---------------------------------------------------------------------------

    \81\ 72 FR 14940, 14944 (Mar. 29, 2007); 74 FR 62890, 62893 
(Dec. 1, 2009).
    \82\ 73 FR 14030, 14043; 73 FR 68204, 68265.
---------------------------------------------------------------------------

    The Bureau and Kleimann reviewed relevant research and the work of 
other Federal financial services regulatory agencies to inform the 
Bureau's design of the prototype integrated disclosures. One of the 
findings of this research was that there is a significant risk to 
consumers of experiencing ``information overload'' when the volume or 
complexity of information detracts from the consumer decision-making 
processes. ``Information overload'' has often been cited as a problem 
with financial disclosures.\83\ Researchers suggest that there should 
be a balance between the types and amount of information in the 
disclosures, because too much information has the potential to detract 
from consumers' decision-making processes.\84\ In its 2009 Closed-End 
Proposal, the Board cited a reduction in ``information overload'' as 
one of the potential benefits of its plan to harmonize the TILA and 
RESPA disclosures in collaboration with HUD.\85\ The Board's consumer 
testing in connection with its 2009 Closed-End Proposal found that when 
participants were asked what was most difficult about their mortgage 
experience, the most frequent answer was the amount of paperwork.\86\ 
HUD also stated that one of its guiding principles for HUD's 2008 RESPA 
Proposal was that ``the [mortgage loan settlement process] can be 
improved with simplification of disclosures and better borrower 
information,'' the complexity of which

[[Page 51127]]

caused many problems with the process.\87\
---------------------------------------------------------------------------

    \83\ See e.g., Debra Pogrund Stark and Jessica M. Choplin, A 
Cognitive and Social Psychological Analysis of Disclosure Laws and 
Call for Mortgage Counseling to Prevent Predatory Lending, 16 Psych. 
Pub. Pol. and L. 85, 96 (2010); Paula J. Dalley, The Use and Misuse 
of Disclosure as a Regulatory System, 34 Fla. St. U.L. Rev. 1089, 
1115 (2007); Patricia A. McCoy, The Middle-Class Crunch: Rethinking 
Disclosure in a World of Risk-Based Pricing, 44 Harv. J. on Legis. 
123, 133 (2007); Lauren E. Willis, Decisionmaking and The Limits of 
Disclosure: The Problem of Predatory Lending: Price, 65 Md. L. Rev. 
707, 766 (2006); Troy A. Paredes, After the Sarbanes-Oxley Act: The 
Future Disclosure System: Blinded by the Light: Information Overload 
and its Consequences for Securities Regulation, 81 Wash. U. L. Q. 
417 (2003); William N. Eskridge, Jr., One Hundred Years of 
Ineptitude: The Need for Mortgage Rules Consonant with the Economic 
and Psychological Dynamics of the Home Sale and Loan Transaction, 70 
Va. L. Rev. 1083, 1133 (1984).
    \84\ John Kozup & Jeanne M. Hogarth, Financial Literacy, Public 
Policy, and Consumers' Self-Protection--More Questions, Fewer 
Answers, 42 Journal of Consumer Affairs 2, 127 (2008).
    \85\ 74 FR 43232, 43234.
    \86\ See Macro 2009 Closed-End Report at 19. For additional 
discussion regarding information overload, see the section-by-
section analysis to proposed Sec.  1026.37(l).
    \87\ 73 FR 14030, 14031.
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    The potential for ``information overload'' was also cited by 
Congress as one of the reasons it amended the TILA disclosures in the 
Truth-in-Lending Simplification and Reform Act of 1980.\88\ According 
to the Senate Committee on Banking, Housing and Urban Affairs, this 
legislation arose in part because:
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    \88\ Public Law 96-221, 94 Stat 132 (1980).

During its hearings the Consumer Affairs Subcommittee heard 
testimony from a leading psychologist who has studied the problem of 
`informational overload.' The Subcommittee learned that judging from 
consumer tests in other areas, the typical disclosure statement 
utilized today by creditors is not an effective communication 
device. Most disclosure statements are lengthy, written in 
legalistic fine print, and have essential Truth in Lending 
disclosures scattered among various contractual terms. The result is 
a piece of paper which appears to be `just another legal document' 
instead of the simple, concise disclosure form Congress 
intended.\89\
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    \89\ Public Law 96-221, Depository Institutions Deregulation and 
Monetary Control Act of 1980, Senate Report No. 96073 (Apr. 24, 
1979).

Based on this research, the Bureau is particularly mindful of the risk 
of information overload, especially considering the large volume of 
other information and paperwork consumers are required to process 
throughout the mortgage loan and real estate transaction.
    The Bureau began development of the integrated disclosures with 
certain design objectives. Considering that the quantity of information 
both on the disclosures and in other paperwork throughout the mortgage 
loan and real estate transaction may increase the risk of information 
overload, the Bureau began development of the integrated disclosures 
with the objective of creating a graphic design that used as few words 
as possible when presenting the key loan and cost information. The 
Bureau's purpose for such a design was to make the information readily 
visible so that consumers could quickly and easily find the information 
they were looking for, without being confronted with large amounts of 
text. Accordingly, the Bureau decided to limit the content of the 
disclosures to loan terms, cost information, and certain textual 
disclosures and to exclude educational material. The Bureau understood 
that consumers would receive educational materials under applicable 
law, such as the Special Information Booklet required by section 5 of 
RESPA, or through other means. In addition, the Bureau understood that 
it would provide additional educational information and tools on its 
Web site and place a Web site link on the integrated disclosures 
directing consumers to that site, which would obviate the need to place 
educational material directly on the disclosures.
    The Bureau also believed the design should highlight on the first 
page the most important loan information that consumers readily 
understand and use to evaluate and compare loans, placing more detailed 
and technical information later in the disclosure. In addition, the 
Bureau believed the design should use plain language and limit the use 
of technical, statutory, or complex financial terms wherever possible.
    The Bureau believes these design objectives best satisfy the 
purposes of the integrated disclosures set forth by Dodd-Frank Act 
sections 1098 and 1100A, as well as the Bureau's mandate under Dodd-
Frank Act section 1021(b) to ensure that consumers are provided with 
``understandable information'' to enable them to make responsible 
decisions about financial transactions.
    From January through May 2011, the Bureau and Kleimann developed a 
plan to design integrated disclosure prototypes and conduct qualitative 
usability testing, consisting of one-on-one cognitive interviews. The 
Bureau and Kleimann worked collaboratively on developing the 
qualitative testing plan and several prototype forms for the Loan 
Estimate (i.e., the disclosure to be provided in connection with a 
consumer's application integrating the RESPA GFE and the early TILA 
disclosure). Although qualitative testing is commonly used by Federal 
agencies to evaluate the effectiveness of disclosures prior to issuing 
a proposal, the qualitative testing plan developed by the Bureau and 
Kleimann was unique in that the Bureau conducted qualitative testing 
with industry participants as well as consumers. Each round of 
qualitative testing included at least two industry participants, 
including lenders from several different types of depository 
institutions (including credit unions and community banks) and non-
depository institutions, mortgage brokers, and settlement agents.

B. Prototype Testing and the Know Before You Owe (KBYO) Project

    In May 2011, the Bureau selected two initial prototype designs of 
the Loan Estimate, which were used in qualitative testing interviews in 
Baltimore, Maryland. In these interviews, consumers were asked to work 
through the prototype forms while conveying their impressions, and also 
asked a series of questions designed to assess whether the forms 
presented information in a format that enabled them to understand and 
compare the mortgage loans presented to them. These questions ranged 
from the highly specific (e.g., asking whether the consumer could 
identify the loan payment in year 10 of a 30-year, adjustable-rate 
loan) to the highly general (e.g., asking consumers to choose the loan 
that best met their needs).\90\ Industry participants were asked to use 
the prototype forms to explain mortgage loans as they would to a 
consumer and to identify implementation issues and areas for 
improvement.
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    \90\ The consumers who participated in these interviews had 
varying levels of education (from consumers with less than a high 
school education to consumers with graduate degrees) and varying 
levels of experience with the home buying and mortgage loan process 
(from consumers who never owned a home to consumers who had been 
through the home buying and mortgage loan process before).
---------------------------------------------------------------------------

    At the same time, to supplement its qualitative testing, the Bureau 
launched an initiative, which it titled ``Know Before You Owe,'' to 
obtain public feedback on the prototype disclosure forms.\91\ The 
Bureau believed this would provide an opportunity to obtain a large 
amount of feedback from a broad base of consumers and industry 
respondents around the country. This initiative consisted of either 
publishing and obtaining feedback on the prototype designs through an 
interactive tool on the Bureau's Web site or posting the prototypes to 
the Bureau's blog on its Web site and providing an opportunity for the 
public to email feedback directly to the Bureau. Individual consumers, 
loan officers, mortgage brokers, settlement agents, and others provided 
feedback based on their own experiences with the mortgage loan process 
by commenting on specific sections of the form, prioritizing 
information presented on the form, and identifying additional 
information that should be included.\92\
---------------------------------------------------------------------------

    \91\ See https://www.consumerfinance.gov/knowbeforeyouowe/.
    \92\ Examples of consumer and industry responses to the 
prototypes of the disclosures can be seen in the CFPB blog, 
including at: www.consumerfinance.gov/know-before-you-owe-go; 
www.consumerfinance.gov/13000-lessons-learned; and 
www.consumerfinance.gov/know-before-you-owe-its-closing-time.
---------------------------------------------------------------------------

    From May to October 2011, Kleimann and the Bureau conducted a 
series of five rounds of qualitative testing of different iterations of 
the Loan Estimate with consumer and industry participants. In addition 
to Baltimore, Maryland, this testing was conducted in Los Angeles, 
California; Chicago,

[[Page 51128]]

Illinois; Springfield, Massachusetts; and Albuquerque, New Mexico. Each 
round focused on a different aspect of the integrated disclosure, such 
as the overall design, the disclosure of closing costs, and the 
disclosure of loan payments over the term of the loan. The overall goal 
of this qualitative testing was to ensure that the forms enabled 
consumers to understand and compare the terms and costs of the loan.
    After each round of testing, Kleimann analyzed and reported to the 
Bureau on the results of the testing. Based on these results and 
supplemental feedback received through the KBYO process, the Bureau 
revised the prototype disclosure forms for the next round of testing. 
This iterative process helped the Bureau develop forms that enable 
consumers to understand and compare mortgage loans and that assist 
industry in complying with the law. For a detailed discussion of this 
testing, see the report prepared by Kleimann, Know Before You Owe: 
Evolution of the Integrated TILA-RESPA Disclosures (Kleimann Testing 
Report), which the Bureau is publishing on its Web site in conjunction 
with this proposed rule.\93\
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    \93\ Kleimann Communication Group, Inc., Know Before You Owe: 
Evolution of the Integrated TILA-RESPA Disclosures (July 2012), 
available at https://files.consumerfinance.gov/f/201207_cfpb_report_tila-respa-testing.pdf.
---------------------------------------------------------------------------

    After completion of the qualitative testing that focused solely on 
the Loan Estimate, the Bureau and Kleimann began work on the prototype 
designs for the Closing Disclosure (i.e., the disclosure provided in 
connection with the closing of the mortgage loan that integrates the 
RESPA settlement statement and the final TILA disclosure). From 
November 2011 through March 2012, the Bureau and Kleimann conducted 
five rounds of qualitative testing of different iterations of the 
Closing Disclosure with consumer and industry participants. This 
testing was conducted in five different cities across the country: Des 
Moines, Iowa; Birmingham, Alabama; Philadelphia, Pennsylvania; Austin, 
Texas; and Baltimore, Maryland.
    Similar to the qualitative testing of the Loan Estimate, the Bureau 
revised the prototype Closing Disclosure forms after each round based 
on the results Kleimann provided to the Bureau and the feedback 
received from the KBYO process. The Bureau focused on several aspects 
of the prototypes during each round, such as the settlement disclosures 
adapted from the HUD-1, new disclosure items required under title XIV 
of the Dodd-Frank Act, and tables to help identify changes in the 
information disclosed in the initial Loan Estimate. The overall goal of 
the qualitative testing of the Closing Disclosure was to ensure that 
the forms enabled consumers to understand their actual terms and costs, 
and to compare the Closing Disclosure with the Loan Estimate to 
identify changes. Accordingly, several rounds included testing of 
different iterations of the Loan Estimate with the Closing Disclosure.
    Overall, the Bureau performed qualitative testing with 92 consumer 
participants and 22 industry participants, for a total of 114 
participants. In addition, through the Bureau's KBYO initiative, the 
Bureau received over 150,000 visits to the KBYO Web site and over 
27,000 public comments and emails about the prototype disclosures.

C. Ongoing Stakeholder Outreach

    Throughout the qualitative testing of the prototype disclosure 
forms, the Bureau continued to conduct extensive outreach to consumer 
advocacy groups, other regulatory agencies, and industry 
representatives and trade associations. The Bureau held meetings with 
individual stakeholders upon request, and also invited stakeholders to 
meetings in which individual views of each stakeholder could be heard. 
The Bureau conducted these meetings with a wide range of stakeholders 
that may be affected by the integrated disclosures, even if not 
directly regulated by the proposed rule. The meetings included 
community banks, credit unions, thrifts, mortgage companies, mortgage 
brokers, settlement agents, settlement service providers, software 
providers, appraisers, not-for-profit consumer and housing groups, and 
government and quasi-governmental agencies. Many of the persons 
attending these meetings represented small business entities from 
different parts of the country. In addition to these meetings, after 
each round of qualitative testing, the Bureau received numerous letters 
from individuals, consumer advocates, financial services providers, and 
trade associations, which provided the Bureau with additional feedback 
on the prototype disclosure forms.
    In preparing this proposal, the Bureau also considered comments 
provided in response to its December 2011 proposal regarding 
streamlining of regulations for which rulemaking authority was 
inherited by the CFPB from other Federal agencies, including TILA and 
RESPA. 76 FR 75825 (Dec. 5, 2011) (2011 Streamlining Proposal). That 
proposal specifically sought public comment on provisions of the 
inherited regulations that the Bureau should make the highest priority 
for updating, modifying, or eliminating because they are outdated, 
unduly burdensome, or unnecessary, and sought suggestions for practical 
measures to make compliance with the regulations easier. Several 
commenters requested that the Bureau reconcile inconsistencies in the 
terminology and requirements of Regulations X and Z. Wherever possible, 
the Bureau has proposed to do so in this rulemaking. In addition, other 
relevant comments received in response to the 2011 Streamlining 
Proposal are addressed below.

D. Small Business Review Panel

    In February 2012, the Bureau convened a Small Business Review Panel 
with the Chief Counsel for Advocacy of the Small Business 
Administration (SBA) and the Administrator of the Office of Information 
and Regulatory Affairs within the Office of Management and Budget 
(OMB).\94\ As part of this process, the Bureau prepared an outline of 
the proposals then under consideration and the alternatives considered 
(Small Business Review Panel Outline), which it posted on its Web site 
for review by the general public as well as the small entities 
participating in the panel process.\95\ The Small Business Review Panel 
gathered information from representatives of small lenders, mortgage 
brokers, settlement agents, and not-for-profit organizations and made 
findings and recommendations regarding the potential compliance costs 
and other impacts of the proposed rule on those entities. These 
findings and recommendations are set forth in the Small Business Review 
Panel Report, which will be made part of the administrative record in 
this rulemaking.\96\ The Bureau has carefully considered these findings 
and recommendations in preparing this proposal and has addressed 
certain specific examples below.
---------------------------------------------------------------------------

    \94\ The Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA) requires the Bureau to convene a Small Business Review 
Panel before proposing a rule that may have a substantial economic 
impact on a significant number of small entities. See Public Law 
104-121, tit. II, 110 Stat. 847, 857 (1996) (as amended by Pub. L. 
110-28, sec. 8302 (2007)).
    \95\ Available at https://www.consumerfinance.gov/blog/sbrefa-small-providers-and-mortgage-disclosure/.
    \96\ Final Report of the Small Business Review Panel on CFPB's 
Proposals Under Consideration for Integration of TILA and RESPA 
Mortgage Disclosure Requirements (Apr. 23, 2012), available at 
https://files.consumerfinance.gov/f/201207_cfpb_report_tila-respa-sbrefa-feedback.pdf.
---------------------------------------------------------------------------

    In addition, the Bureau held roundtable meetings with other Federal 
banking and housing regulators, consumer advocacy groups, and

[[Page 51129]]

industry representatives regarding the Small Business Review Panel 
Outline. At the Bureau's request, many of the participants provided 
feedback, which the Bureau has used in preparing this proposal.

E. Next Steps

    The public may submit comments on the proposed rule for 120 days 
after issuance (with the exception of the proposed amendments to 
Sec. Sec.  1026.1(c) and 1026.4 that have a shorter 60-day comment 
period as discussed below). These comments will be available to the 
public, as will summaries of written or oral presentations in 
accordance with the Bureau's ex parte policy.\97\ During the comment 
period and after it closes, the Bureau will carefully review and 
analyze the comments.
---------------------------------------------------------------------------

    \97\ CFPB Bulletin 11-3 (August 16, 2011), available at https://files.consumerfinance.gov/f/2011/08/Bulletin_20110819_ExPartePresentationsRulemakingProceedings.pdf.
---------------------------------------------------------------------------

    Once the Bureau has completed its review and analysis of the 
comments, it will consult with other Federal agencies and determine 
whether changes should be made to the proposed forms or rules. If 
changes are contemplated to the forms, the Bureau may conduct 
additional qualitative testing to evaluate the effectiveness of those 
changes. Whether or not changes are made, the Bureau may conduct large-
scale quantitative testing of the forms to confirm that the forms aid 
consumers' understanding of mortgage transactions, if appropriate. On 
March 28, 2012, the Bureau published a notice for comment under the 
Paperwork Reduction Act in connection with this quantitative testing, 
specifically inviting comment on whether the information collected will 
have practical utility, the accuracy of the Bureau's burden hour 
estimates, and ways to enhance the quality of the information collected 
and minimize the burden on respondents.\98\ The Bureau received no 
comments to this notice.
---------------------------------------------------------------------------

    \98\ 77 FR 18793 (Mar. 28, 2012).
---------------------------------------------------------------------------

    During the Small Business Review Panel, several small business 
representatives requested that the Bureau explore the feasibility of 
conducting testing of the disclosure forms on actual loans before 
issuing a final rule. See Small Business Review Panel Report at 28. 
Based on this feedback and consistent with the Small Business Review 
Panel's recommendation, the Bureau is considering testing the forms on 
actual loans after reviewing comments received in connection with this 
proposal, and making any appropriate revisions to the proposed forms.
    After the Bureau has completed the appropriate steps, it will 
prepare and issue a final rule. However, as discussed below in part 
V.A, the Bureau understands from the Small Business Review Panel 
process and from other outreach that lenders, settlement agents, and 
others will need a period of time to update their systems and processes 
to comply with the final rule and to train their employees. 
Accordingly, the Bureau is asking for comment on a time period that 
strikes the appropriate balance between providing consumers with 
improved disclosures as soon as possible and providing industry with 
the necessary time to come into compliance.
    In addition, during the Small Business Review Panel, several small 
business representatives requested that the Bureau provide detailed 
guidance on how to complete the integrated forms, including, as 
appropriate, samples of completed forms for a variety of loan 
transactions. See Small Business Review Panel Report at 28. Similar 
feedback was also submitted by several industry trade associations in 
response to the Small Business Review Panel Outline. The Bureau also 
understands from its other outreach efforts that industry has 
experienced difficulties in complying with HUD's 2008 RESPA Final Rule, 
in part because of a lack of detailed guidance in HUD's 2008 RESPA 
Final Rule, and the many informal interpretations of the rule issued by 
HUD in the HUD RESPA FAQs and HUD RESPA Roundups. Based on this 
feedback and consistent with the Small Business Review Panel's 
recommendation, the proposed rule contains detailed provisions 
regarding the completion of the integrated disclosures, multiple 
examples of completed disclosures forms in appendix H to Regulation Z, 
and additional guidance and clarification in the Bureau's official 
commentary to Regulation Z. Such detailed guidance has, of course, 
added significant length to the proposed rule. The Bureau solicits 
comment on whether the level of detail in the proposed regulations and 
guidance (including the number of examples illustrating what is and is 
not permitted) will make compliance more, rather than less, burdensome 
and whether the Bureau should adopt a less prescriptive approach in the 
final rule.

IV. Legal Authority

    The Bureau is issuing this proposed rule pursuant to its authority 
under TILA, RESPA, and the Dodd-Frank Act. On July 21, 2011, section 
1061 of the Dodd-Frank Act transferred to the Bureau all of the HUD 
Secretary's consumer protection functions relating to RESPA.\99\ 
Accordingly, effective July 21, 2011, the authority of HUD to issue 
regulations pursuant to RESPA transferred to the Bureau. Section 1061 
of the Dodd-Frank Act also transferred to the Bureau the ``consumer 
financial protection functions'' previously vested in certain other 
Federal agencies, including the Board. The term ``consumer financial 
protection function'' is defined to include ``all authority to 
prescribe rules or issue orders or guidelines pursuant to any Federal 
consumer financial law, including performing appropriate functions to 
promulgate and review such rules, orders, and guidelines.'' \100\ TILA, 
RESPA, and title X of the Dodd-Frank Act are Federal consumer financial 
laws.\101\ Accordingly, the Bureau has authority to issue regulations 
pursuant to TILA and RESPA, including the disclosure requirements added 
to those statutes by title XIV of the Dodd-Frank Act, as well as title 
X of the Dodd-Frank Act.
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    \99\ Public Law 111-203, 124 Stat. 1376, section 1061(b)(7); 12 
U.S.C. 5581(b)(7).
    \100\ 12 U.S.C. 5581(a)(1).
    \101\ Dodd-Frank Act section 1002(14), 12 U.S.C. 5481(14) 
(defining ``Federal consumer financial law'' to include the 
``enumerated consumer laws'' and the provisions of title X of the 
Dodd-Frank Act); Dodd-Frank Act section 1002(12), 12 U.S.C. 5481(12) 
(defining ``enumerated consumer laws'' to include TILA and RESPA).
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A. The Integrated Disclosure Mandate

    Section 1032(f) of the Dodd-Frank Act requires that, ``[n]ot later 
than one year after the designated transfer date [of July 21, 2011], 
the Bureau shall propose for public comment rules and model disclosures 
that combine the disclosures required under [TILA] and sections 4 and 5 
of [RESPA], into a single, integrated disclosure for mortgage loan 
transactions covered by those laws, unless the Bureau determines that 
any proposal issued by the [Board] and [HUD] carries out the same 
purpose.'' 12 U.S.C. 5532(f). In addition, the Dodd-Frank Act amended 
section 105(b) of TILA and section 4(a) of RESPA to require the 
integration of the TILA disclosures and the disclosures required by 
sections 4 and 5 of RESPA.\102\ The

[[Page 51130]]

purpose of the integrated disclosure is to facilitate compliance with 
the disclosure requirements of TILA and RESPA, and to help the borrower 
understand the transaction by utilizing readily understandable language 
to simplify the technical nature of the disclosures. Dodd-Frank Act 
sections 1098, 1100A.
---------------------------------------------------------------------------

    \102\ Section 1100A of the Dodd-Frank Act amended TILA section 
105(b) to provide that the ``Bureau shall publish a single, 
integrated disclosure for mortgage loan transactions (including real 
estate settlement cost statements) which includes the disclosure 
requirements of this title in conjunction with the disclosure 
requirements of the Real Estate Settlement Procedures Act of 1974 
that, taken together, may apply to a transaction that is subject to 
both or either provisions of law.'' 15 U.S.C. 1604(b). Section 1098 
of the Dodd-Frank amended RESPA section 4(a) to require the Bureau 
to publish a ``single, integrated disclosure for mortgage loan 
transactions (including real estate settlement cost statements) 
which includes the disclosure requirements of this section and 
section 5, in conjunction with the disclosure requirements of the 
Truth in Lending Act that, taken together, may apply to a 
transaction that is subject to both or either provisions of law.'' 
12 U.S.C. 2603(a).
---------------------------------------------------------------------------

    Although Congress imposed this integrated disclosure requirement, 
it did not fully harmonize the underlying statutes. In particular, TILA 
and RESPA establish different timing requirements for disclosing 
mortgage credit terms and costs to consumers and require that those 
disclosures be provided by different parties. TILA generally requires 
that, within three business days of receiving the consumer's 
application and at least seven business days before consummation of 
certain mortgage transactions, creditors must provide consumers a good 
faith estimate of the costs of credit.\103\ TILA section 128(b)(2)(A); 
15 U.S.C. 1638(b)(2)(A). If the annual percentage rate that was 
initially disclosed becomes inaccurate, TILA requires creditors to 
redisclose the information at least three business days before 
consummation. TILA section 128(b)(2)(D); 15 U.S.C. 1638(b)(2)(D). These 
disclosures must be provided in final form at consummation. TILA 
section 128(b)(2)(B)(ii); 15 U.S.C. 1638(b)(2)(B)(ii). RESPA also 
requires that the creditor or broker provide consumers with a good 
faith estimate of settlement charges no later than three business days 
after receiving the consumer's application. However, unlike TILA, RESPA 
requires that, at or before settlement, ``the person conducting the 
settlement'' (which may or may not be the creditor) provide the 
consumer with a statement that records all charges imposed upon the 
consumer in connection with the settlement. RESPA sections 4(b), 5(c); 
12 U.S.C. 2603(b), 2604(c).
---------------------------------------------------------------------------

    \103\ This requirement applies to extensions of credit that are 
both secured by a dwelling and subject to RESPA. TILA section 
128(b)(2)(A); 15 U.S.C. 1638(b)(2)(A).
---------------------------------------------------------------------------

    The Dodd-Frank Act did not reconcile these and other statutory 
differences. Therefore, to meet the Dodd-Frank Act's express 
requirement to integrate the disclosures required by TILA and RESPA, 
the Bureau must do so. Dodd-Frank Act section 1032(f), TILA section 
105(b), and RESPA section 4(a) provide the Bureau with implicit 
authority to issue regulations that reconcile certain provisions of 
TILA and RESPA to carry out Congress's mandate to integrate the 
statutory disclosure requirements. For the reasons discussed in this 
notice, the Bureau is proposing regulations to carry out the 
requirements of Dodd-Frank Act section 1032(f), TILA section 105(b), 
and RESPA section 4(a).

B. Other Rulemaking and Exception Authorities

    The proposed rule also relies on the rulemaking and exception 
authorities specifically granted to the Bureau by TILA, RESPA, and the 
Dodd-Frank Act, including the authorities discussed below.\104\
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    \104\ As discussed in part II above, prior to the Dodd-Frank 
Act, rulemaking authority over TILA was vested in the Board and 
rulemaking authority over RESPA was vested in HUD. The Dodd-Frank 
Act transferred rulemaking authority for TILA and RESPA to the 
Bureau, effective July 21, 2011. See Dodd-Frank Act sections 1061, 
1098, and 1100A. The Bureau implements the proposed rule pursuant to 
its authorities in section 1061 of the Dodd-Frank Act.
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Truth in Lending Act
    TILA section 105(a). As amended by the Dodd-Frank Act, TILA section 
105(a), 15 U.S.C. 1604(a), directs the Bureau to prescribe regulations 
to carry out the purposes of TILA, and provides that such regulations 
may contain additional requirements, classifications, differentiations, 
or other provisions, and may provide for such adjustments and 
exceptions for all or any class of transactions, that the Bureau judges 
are necessary or proper to effectuate the purposes of TILA, to prevent 
circumvention or evasion thereof, or to facilitate compliance. A 
purpose of TILA is ``to assure a meaningful disclosure of credit terms 
so that the consumer will be able to compare more readily the various 
credit terms available to him and avoid the uninformed use of credit.'' 
TILA section 102(a); 15 U.S.C. 1601(a). This stated purpose is tied to 
Congress' finding that ``economic stabilization would be enhanced and 
the competition among the various financial institutions and other 
firms engaged in the extension of consumer credit would be strengthened 
by the informed use of credit[.]'' TILA section 102(a). Thus, 
strengthened competition among financial institutions is a goal of 
TILA, achieved through the effectuation of TILA's purposes.
    Historically, TILA section 105(a) has served as a broad source of 
authority for rules that promote the informed use of credit through 
required disclosures and substantive regulation of certain practices. 
However, Dodd-Frank Act section 1100A clarified the Bureau's section 
105(a) authority by amending that section to provide express authority 
to prescribe regulations that contain ``additional requirements'' that 
the Bureau finds are necessary or proper to effectuate the purposes of 
TILA, to prevent circumvention or evasion thereof, or to facilitate 
compliance. This amendment clarified the authority to exercise TILA 
section 105(a) to prescribe requirements beyond those specifically 
listed in the statute that meet the standards outlined in section 
105(a). The Dodd-Frank Act also clarified the Bureau's rulemaking 
authority over certain high-cost mortgages pursuant to section 105(a). 
As amended by the Dodd-Frank Act, TILA section 105(a) authority to make 
adjustments and exceptions to the requirements of TILA applies to all 
transactions subject to TILA, except with respect to the provisions of 
TILA section 129 \105\ that apply to the high-cost mortgages referred 
to in TILA section 103(bb), 15 U.S.C. 1602(bb). For the reasons 
discussed in this notice, the Bureau is proposing regulations to carry 
out TILA's purposes and is proposing such additional requirements, 
adjustments, and exceptions as, in the Bureau's judgment, are necessary 
and proper to carry out the purposes of TILA, prevent circumvention or 
evasion thereof, or to facilitate compliance. In developing these 
aspects of the proposal pursuant to its authority under TILA section 
105(a), the Bureau has considered the purposes of TILA, including 
ensuring meaningful disclosures, facilitating consumers' ability to 
compare credit terms, and helping consumers avoid the uninformed use of 
credit, and the findings of TILA, including strengthening competition 
among financial institutions and promoting economic stabilization.
---------------------------------------------------------------------------

    \105\ 15 U.S.C. 1639. TILA section 129 contains requirements for 
certain high-cost mortgages, established by the Home Ownership and 
Equity Protection Act (HOEPA), which are commonly called HOEPA 
loans.
---------------------------------------------------------------------------

    TILA section 105(f). Section 105(f) of TILA, 15 U.S.C. 1604(f), 
authorizes the Bureau to exempt from all or part of TILA any class of 
transactions if the Bureau determines that TILA coverage does not 
provide a meaningful benefit to consumers in the form of useful 
information or protection. In exercising this authority, the Bureau 
must consider the factors identified in section 105(f) of TILA and 
publish its rationale at the time it proposes an exemption for public 
comment. Specifically, the Bureau must consider:

[[Page 51131]]

    (a) The amount of the loan and whether the disclosures, right of 
rescission, and other provisions provide a benefit to the consumers who 
are parties to such transactions, as determined by the Bureau;
    (b) The extent to which the requirements of this subchapter 
complicate, hinder, or make more expensive the credit process for the 
class of transactions;
    (c) The status of the borrower, including--
    (1) Any related financial arrangements of the borrower, as 
determined by the Bureau;
    (2) The financial sophistication of the borrower relative to the 
type of transaction; and
    (3) The importance to the borrower of the credit, related 
supporting property, and coverage under this subchapter, as determined 
by the Bureau;
    (d) Whether the loan is secured by the principal residence of the 
consumer; and
    (e) Whether the goal of consumer protection would be undermined by 
such an exemption.

For the reasons discussed in this notice, the Bureau is proposing to 
exempt certain transactions from the requirements of TILA pursuant to 
its authority under TILA section 105(f). In developing this proposal 
under TILA section 105(f), the Bureau has considered the relevant 
factors and determined that the proposed exemptions may be appropriate.
    TILA section 129B(e). Dodd-Frank Act section 1405(a) amended TILA 
to add new section 129B(e), 15 U.S.C. 1639B(e). That section authorizes 
the Bureau to prohibit or condition terms, acts, or practices relating 
to residential mortgage loans on a variety of bases, including when the 
Bureau finds the terms, acts, or practices are not in the interest of 
the borrower. In developing proposed rules under TILA section 129B(e), 
the Bureau has considered whether the proposed rules are in the 
interest of the borrower, as required by the statute. For the reasons 
discussed in this notice, the Bureau is proposing portions of this rule 
pursuant to its authority under TILA section 129B(e).
Real Estate Settlement Procedures Act
    Section 19(a) of RESPA, 12 U.S.C. 2617(a), authorizes the Bureau to 
prescribe such rules and regulations and to make such interpretations 
and grant such reasonable exemptions for classes of transactions as may 
be necessary to achieve the purposes of RESPA. One purpose of RESPA is 
to effect certain changes in the settlement process for residential 
real estate that will result in more effective advance disclosure to 
home buyers and sellers of settlement costs. RESPA section 2(b); 12 
U.S.C. 2601(b). In addition, in enacting RESPA, Congress found that 
consumers are entitled to be ``provided with greater and more timely 
information on the nature and costs of the settlement process and [to 
be] protected from unnecessarily high settlement charges caused by 
certain abusive practices * * *'' RESPA section 2(a); 12 U.S.C. 
2601(a). In the past, section 19(a) has served as a broad source of 
authority to prescribe disclosures and substantive requirements to 
carry out the purposes of RESPA.
    In developing proposed rules under RESPA section 19(a) for this 
proposal, the Bureau has considered the purposes of RESPA, including to 
cause changes in the settlement process that will result in more 
effective advance disclosure of settlement costs. For the reasons 
discussed in this notice, the Bureau is proposing portions of this rule 
pursuant to its authority under RESPA section 19(a).
Dodd-Frank Act
    Dodd-Frank Act section 1021. Section 1021(a) of the Dodd-Frank Act 
provides that the Bureau shall seek to implement and, where applicable, 
enforce Federal consumer financial law consistently for the purpose of 
ensuring that all consumers have access to markets for consumer 
financial services and that markets for consumer financial products and 
services are fair, transparent, and competitive. 12 U.S.C. 5511(a). In 
addition, section 1021(b) of the Dodd-Frank Act provides that the 
Bureau is authorized to exercise its authorities under Federal consumer 
financial law for the purposes of ensuring that, with respect to 
consumer financial products and services: (1) Consumers are provided 
with timely and understandable information to make responsible 
decisions about financial transactions; (2) consumers are protected 
from unfair, deceptive, or abusive acts and practices and from 
discrimination; (3) outdated, unnecessary, or unduly burdensome 
regulations are regularly identified and addressed in order to reduce 
unwarranted regulatory burdens; (4) Federal consumer financial law is 
enforced consistently, without regard to the status of a person as a 
depository institution, in order to promote fair competition; and (5) 
markets for consumer financial products and services operate 
transparently and efficiently to facilitate access and innovation. 12 
U.S.C. 5511(b).
    Accordingly, this proposal is consistent with the purposes of Dodd-
Frank Act section 1021(a) and with the objectives of Dodd-Frank Act 
section 1021(b), specifically including Dodd-Frank Act section 
1021(b)(1) and (3).
    Dodd-Frank Act section 1022(b). Section 1022(b)(1) of the Dodd-
Frank Act authorizes the Bureau to prescribe rules ``as may be 
necessary or appropriate to enable the Bureau to administer and carry 
out the purposes and objectives of the Federal consumer financial laws, 
and to prevent evasions thereof[.]'' 12 U.S.C. 5512(b)(1). Section 
1022(b)(2) of the Dodd-Frank Act prescribes certain standards for 
rulemaking that the Bureau must follow in exercising its authority 
under section 1022(b)(1). 12 U.S.C. 5512(b)(2). As discussed above, 
TILA and RESPA are Federal consumer financial laws. Accordingly, the 
Bureau proposes to exercise its authority under Dodd-Frank Act section 
1022(b) to prescribe rules under TILA and RESPA that carry out the 
purposes and prevent evasion of those laws. See part VII for a 
discussion of the Bureau's standards for rulemaking under Dodd-Frank 
Act section 1022(b)(2).
    Dodd-Frank Act section 1032(a). Section 1032(a) of the Dodd-Frank 
Act provides that the Bureau ``may prescribe rules to ensure that the 
features of any consumer financial product or service, both initially 
and over the term of the product or service, are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to understand the costs, benefits, and risks associated with the 
product or service, in light of the facts and circumstances.'' 12 
U.S.C. 5532(a). The authority granted to the Bureau in section 1032(a) 
is broad, and empowers the Bureau to prescribe rules regarding the 
disclosure of the ``features'' of consumer financial products and 
services generally. Accordingly, the Bureau may prescribe rules 
containing disclosure requirements even if other Federal consumer 
financial laws do not specifically require disclosure of such features.
    Dodd-Frank Act section 1032(c) provides that, in prescribing rules 
pursuant to section 1032, the Bureau ``shall consider available 
evidence about consumer awareness, understanding of, and responses to 
disclosures or communications about the risks, costs, and benefits of 
consumer financial products or services.'' 12 U.S.C. 5532(c). 
Accordingly, in developing proposed rules under Dodd-Frank Act section 
1032(a) for this proposal, the Bureau has considered available studies, 
reports, and other evidence about consumer

[[Page 51132]]

awareness, understanding of, and responses to disclosures or 
communications about the risks, costs, and benefits of consumer 
financial products or services. See parts II and III, above. Moreover, 
the Bureau has considered the evidence developed through its consumer 
testing of the integrated disclosures as well as prior testing done by 
the Board and HUD regarding TILA and RESPA disclosures. See part III 
for a discussion of the Bureau's testing. For the reasons discussed in 
this notice, the Bureau is proposing portions of this rule pursuant to 
its authority under Dodd-Frank Act section 1032(a).
    In addition, Dodd-Frank Act section 1032(b)(1) provides that ``any 
final rule prescribed by the Bureau under this [section 1032] requiring 
disclosures may include a model form that may be used at the option of 
the covered person for provision of the required disclosures.'' 12 
U.S.C. 5532(b)(1). Any model form issued pursuant to that authority 
shall contain a clear and conspicuous disclosure that, at a minimum, 
uses plain language that is comprehensible to consumers, using a clear 
format and design, such as readable type font, and succinctly explains 
the information that must be communicated to the consumer. Dodd-Frank 
Act 1032(b)(2); 12 U.S.C. 5532(b)(2). As discussed in the section-by-
section analysis for proposed Sec. Sec.  1026.37(o) and 1026.38(t), the 
Bureau is proposing certain model disclosures for transactions subject 
to TILA, and standard forms for transactions subject to both TILA and 
RESPA. For the reasons discussed in this notice, the Bureau is 
proposing these model disclosures pursuant to its authority under Dodd-
Frank Act section 1032(b).
    Dodd-Frank Act section 1405(b). Section 1405(b) of the Dodd-Frank 
Act provides that, ``[n]otwithstanding any other provision of [title 14 
of the Dodd-Frank Act], in order to improve consumer awareness and 
understanding of transactions involving residential mortgage loans 
through the use of disclosures, the Bureau may, by rule, exempt from or 
modify disclosure requirements, in whole or in part, for any class of 
residential mortgage loans if the Bureau determines that such exemption 
or modification is in the interest of consumers and in the public 
interest.'' 15 U.S.C. 1601 note. Section 1401 of the Dodd-Frank Act, 
which amends TILA section 103(cc)(5), 15 U.S.C. 1602(cc)(5), generally 
defines residential mortgage loan as any consumer credit transaction 
that is secured by a mortgage on a dwelling or on residential real 
property that includes a dwelling other than an open-end credit plan or 
an extension of credit secured by a consumer's interest in a timeshare 
plan. Notably, the authority granted by section 1405(b) applies to 
``disclosure requirements'' generally, and is not limited to a specific 
statute or statutes. Accordingly, Dodd-Frank Act section 1405(b) is a 
broad source of authority to modify the disclosure requirements of TILA 
and RESPA.
    In developing proposed rules for residential mortgage loans under 
Dodd-Frank Act section 1405(b) for this proposal, the Bureau has 
considered the purposes of improving consumer awareness and 
understanding of transactions involving residential mortgage loans 
through the use of disclosures, and the interests of consumers and the 
public. For the reasons discussed in this notice, the Bureau is 
proposing portions of this rule pursuant to its authority under Dodd-
Frank Act section 1405(b).

V. Mandatory Compliance

A. Implementation Period

    As discussed in part II.E above, the Bureau is proposing rules and 
disclosures that combine the pre-consummation disclosure requirements 
of TILA and sections 4 and 5 of RESPA, not later than July 21, 2012, 
consistent with the requirements of sections 1032(f), 1098, and 1100A 
of the Dodd-Frank Act. 12 U.S.C. 2603(a); 5532(f); 15 U.S.C. 1604(b). 
The Dodd-Frank Act does not impose a deadline for issuing final rules 
and disclosures in connection with this mandate to integrate disclosure 
requirements or provide a specific amount of time for entities subject 
to those rules to come into compliance.
    As discussed in part II, above, the Dodd-Frank Act establishes two 
goals for the TILA-RESPA mortgage disclosure integration: To improve 
consumer understanding of mortgage loan transactions; and to facilitate 
industry compliance with TILA and RESPA. Dodd-Frank Act sections 1098 
and 1100A. The Bureau must balance these statutory objectives in 
considering the length of the implementation period. The Bureau 
believes requiring industry to implement the requirements of the final 
rule as soon as practicable after its issuance will benefit consumers 
by expediting the use of the integrated disclosure forms, which will 
improve consumer understanding of mortgage loan transactions. At the 
same time, the Bureau recognizes that the creditors, mortgage brokers, 
settlement agents, and other entities affected by the proposed rule 
will incur one-time compliance costs, such as software upgrades to 
generate the integrated disclosure forms, training staff and related 
parties to use the new disclosure forms, updating compliance systems 
and processes, and obtaining legal guidance.\106\ Consequently, the 
Bureau believes that a reasonable implementation period would help 
facilitate compliance and potentially reduce the one-time costs that 
may be incurred by the entities affected by the rule.
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    \106\ These one-time costs are discussed in the section 1022 
analysis in part VII, below, with respect to covered persons as 
defined for purposes of the Dodd-Frank Act, and the initial 
regulatory flexibility analysis in part VIII, below, with respect to 
small entities as defined for purposes of the Regulatory Flexibility 
Act (RFA).
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    The Bureau is mindful that small entities \107\ may face unique 
challenges in complying with the rule. During the SBREFA Small Business 
Review Panel process,\108\ the Small Business Review Panel received 
feedback from small entity representatives requesting that the Bureau 
provide a substantial compliance period after issuance of the final 
rule. The small entity representatives reported that they anticipated 
significant one-time software upgrade and training costs, though their 
estimates varied greatly, and they generally stated that these costs 
would be less burdensome if the Bureau provided a substantial 
compliance period to upgrade systems and to train staff. The small 
entity representatives requested a variety of implementation periods, 
however.\109\ As detailed in the Panel Report, the Panel recommended 
that the Bureau provide a compliance period that permits sufficient 
time for small entities to make necessary system upgrades and provide 
training, and that the Bureau solicit public comment on the amount of 
time needed for such upgrades and training.\110\ Moreover, industry 
feedback generally in response to the Bureau's Small Business Review 
Panel process stated that an implementation period for the final rule 
should provide sufficient time for training, systems development, and 
the operational changes that the rule will necessitate.
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    \107\ The term ``small entities'' means those entities defined 
as small entities for purposes of the RFA, as discussed further in 
part VIII, below. The terms ``large entities'' or ``larger 
entities'' refer to all entities that are not small entities as 
defined for purposes of the RFA.
    \108\ See part VIII.A, below, for a discussion of the Bureau's 
Small Business Review Panel process.
    \109\ Small Business Review Panel Report, at 19. As noted in 
chapter 8.1 of the Panel Report, the small entity representatives 
generally asked for an implementation period ranging from 12 to 18 
months.
    \110\ See id. at p. 27.
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    In feedback provided during the SBREFA process and through other

[[Page 51133]]

industry outreach, lenders, mortgage brokers, settlement agents, and 
forms vendors, as well as several trade associations representing 
lenders, brokers, and settlement agents, requested an implementation 
period of at least 12 months. Because the TILA-RESPA final rule will 
provide important benefits to consumers, the Bureau wishes to make the 
rule effective as soon as possible. However, the Bureau understands 
that the final rule will require lenders, mortgage brokers, and 
settlement agents to make extensive revisions to their software and to 
retrain their staff. In addition, some entities will be required to 
implement other Dodd-Frank Act provisions, which are subject to 
separate rulemaking deadlines under the statute and will have separate 
effective dates. Therefore, the Bureau is seeking comment on how much 
time industry needs to make these changes, and specifically requests 
details on the required updates and changes to systems and other 
measures that would be required to implement the rule and the amount of 
time needed to make those changes.
    Furthermore, in light of the feedback provided by small entity 
representatives during the SBREFA process, as reflected in the Panel 
Report of the Small Business Review Panel, the Bureau solicits comment 
on whether small entities affected by the rule should have more time to 
comply with the final rule than larger entities. In soliciting comment 
on this issue, however, the Bureau notes its concern that a bifurcated 
implementation period could be detrimental to consumers. During any 
period where only larger entities must comply with the final rule, 
consumers potentially would receive different disclosures and be 
subject to different sets of consumer protections depending on their 
choice of creditor, mortgage broker, or settlement agent. In addition, 
larger entities that are subject to the final rule and that purchase 
loans from small entities may nevertheless insist that small entities 
comply with the final rules. See, e.g., Small Business Review Panel 
Report at 30 (discussing recordkeeping requirements). Accordingly, 
based on the Small Business Review Panel recommendation, the Bureau 
solicits comment on whether any separate compliance period for larger 
entities should take into account the relationship between larger and 
smaller entities.

B. Delayed Effective Dates of Certain Disclosure Requirements 
Established by Title XIV of the Dodd-Frank Act

    As discussed above, the Bureau is proposing rules and disclosures 
that combine the pre-consummation disclosure requirements of TILA and 
sections 4 and 5 of RESPA, not later than July 21, 2012, consistent 
with the requirements of section 1032(f) of the Dodd-Frank Act. 12 
U.S.C. 5532(f). The Dodd-Frank Act does not impose a deadline for 
issuing final rules and disclosures.
    In addition to this integrated disclosure requirement in title X, 
various provisions of title XIV of the Dodd-Frank Act amend TILA, 
RESPA, and other consumer financial laws to impose new pre-consummation 
disclosure requirements for mortgage transactions. These provisions 
generally require disclosure of certain information when a consumer 
applies for a mortgage loan or shortly before consummation of the loan, 
around the same time that consumers will receive the integrated TILA-
RESPA disclosures required by section 1032(f) of the Dodd-Frank Act. If 
regulations that are required to implement the disclosure requirements 
in title XIV are not prescribed in final form within eighteen months 
after the designated transfer date (i.e., by January 21, 2013), 
institutions must comply with the statutory requirements on that date. 
Dodd-Frank Act section 1400(c)(3); 15 U.S.C. 1601 note.
    The Bureau believes that implementing a single, consolidated 
disclosure that satisfies section 1032(f) and certain of the disclosure 
requirements in title XIV of the Dodd-Frank Act will benefit consumers 
and facilitate compliance with TILA and RESPA. That is, the Bureau 
believes that both consumers and industry will benefit by incorporating 
many of the disclosure requirements in title XIV into this proposal 
(collectively, the ``Affected Title XIV Disclosures''). Consumers will 
benefit from a consolidated disclosure that conveys loan terms and 
costs to consumers in a coordinated way. Lenders and settlement agents 
will benefit by integrating two sets of overlapping disclosures into a 
single form and by avoiding regulatory burden associated with revising 
systems and practices multiple times. However, given the broad scope 
and complexity of this rulemaking and the 120-day comment period 
provided by this proposal, a final rule will not be issued by January 
21, 2013. Absent a final implementing rule, institutions would have to 
comply with the Affected Title XIV Disclosures on that date due to the 
statutory requirement that any section of title XIV for which 
regulations have not been issued by January 21, 2013 shall take effect 
on that date. This likely would result in widely varying approaches to 
compliance in the absence of regulatory guidance, creating confusion 
for consumers, and would impose a significant burden on industry. For 
example, this could result in a consumer who shops for a mortgage loan 
receiving different disclosures from different creditors. Such 
disclosures would not only be unhelpful to consumers, but likely would 
be confusing since the same disclosures would be provided in widely 
different ways. Moreover, implementing the title XIV disclosures 
separately from the integrated TILA-RESPA disclosure would increase 
compliance costs and burdens on industry. Nothing in the Dodd-Frank Act 
itself or its legislative history suggests that Congress contemplated 
how the separate requirements in titles X and XIV would work 
together.\111\
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    \111\ Certain of the Affected Title XIV Disclosures highlight 
that Congress did not intend for the title XIV disclosure 
requirements and the integrated TILA-RESPA disclosure to operate 
independently. For example, Dodd-Frank Act section 1419 amended 
paragraphs (a)(16) through (19) of TILA section 128 to require 
additional content on the disclosure provided to consumers within 
three days of application and in final form at or before 
consummation. 15 U.S.C. 1638(a)(16) through (19). Pursuant to TILA 
section 128(b)(1), for residential mortgage transactions, all 
disclosures required by TILA section 128(a) must be ``conspicuously 
segregated'' from all other information provided in connection with 
the transaction. 15 U.S.C. 1638(b)(1). Therefore, these sections are 
directly implicated by the integrated TILA-RESPA requirement.
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    Accordingly, and for the further reasons set forth below, the 
Bureau proposes to implement the Affected Title XIV Disclosures by 
delaying those requirements by temporarily exempting entities from the 
requirement to comply on January 21, 2013, until a final rule 
implementing the integrated TILA-RESPA disclosures take effect, 
pursuant to the Bureau's authority under TILA section 105(a), RESPA 
section 19(a), Dodd-Frank Act section 1032(a) and, for residential 
mortgage loans, Dodd-Frank Act section 1405(b). 15 U.S.C. 1604(a); 12 
U.S.C. 2617(a); 12 U.S.C. 5532(a); 15 U.S.C. 1601 note. Implementing 
the Affected Title XIV Disclosures as part of the broader integrated 
TILA-RESPA rulemaking, rather than issuing rules implementing each 
requirement individually or allowing those statutory provisions to take 
effect by operation of law, will improve the overall effectiveness of 
the integrated disclosure for consumers and reduce burden on industry. 
The Bureau will issue a final

[[Page 51134]]

rule finalizing the proposed delay prior to January 21, 2013.
    Specifically, as set forth in the section-by-section analysis to 
proposed Sec.  1026.1(c), the Bureau proposes to delay those 
requirements by temporarily exempting entities from the requirement to 
comply on January 21, 2013. This is, in effect, a delay of the 
effective date of the following statutory provisions:
     Warning regarding negative amortization features. Dodd-
Frank Act section 1414(a); TILA section 129C(f)(1).\112\
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    \112\ Dodd-Frank Act section 1414(a) also added to TILA new 
section 129C(f)(2), which requires first-time borrowers for certain 
residential mortgage loans that could result in negative 
amortization to provide the creditor with documentation to 
demonstrate that the consumer received homeownership counseling from 
organizations or counselors certified by HUD. That provision is 
implemented in the Bureau's 2012 HOEPA Proposal, which also 
implements the requirement of RESPA section 5(c), added by section 
1450 of the Dodd-Frank Act, that lenders provide borrowers with a 
list of certified homeownership counselors.
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     Disclosure of State law anti-deficiency protections. Dodd-
Frank Act section 1414(c); TILA section 129C(g)(2) and (3).
     Disclosure regarding creditor's partial payment policy. 
Dodd-Frank Act section 1414(d); TILA section 129C(h).
     Disclosure regarding mandatory escrow accounts. Dodd-Frank 
Act section 1461(a); TILA section 129D(h).
     Disclosure regarding waiver of escrow at consummation. 
Dodd-Frank Act section 1462; TILA section 129D(j)(1)(A).
     Disclosure of monthly payment, including escrow, at 
initial and fully-indexed rate for variable-rate transactions. Dodd-
Frank Act section 1419; TILA section 128(a)(16).
     Repayment analysis disclosure to include amount of escrow 
payments for taxes and insurance. Dodd-Frank Act section 1465; TILA 
128(b)(4).
     Disclosure of settlement charges and fees and the 
approximate amount of the wholesale rate of funds. Dodd-Frank Act 
section 1419; TILA section 128(a)(17).
     Disclosure of mortgage originator fees. Dodd-Frank Act 
section 1419; TILA section 128(a)(18).
     Disclosure of total interest as a percentage of principal. 
Dodd-Frank Act section 1419; TILA section 128(a)(19).
     Optional disclosure of appraisal management company fee. 
Dodd-Frank Act section 1475; RESPA section 4(c).
    The Bureau is not proposing to delay the effective date for the 
following disclosure requirements found in title XIV of the Dodd-Frank 
Act, and therefore these provisions are not Affected Title XIV 
Disclosures for purposes of this discussion. These provisions will be 
implemented in separate rulemakings, which are expected to be proposed 
in summer 2012 and finalized by January 21, 2013, with the specific 
effective dates set out in the final rules for those specific 
rulemakings.
     Disclosure regarding notice of reset of hybrid adjustable 
rate mortgage. Dodd-Frank Act section 1418(a); TILA section 128A(a). 
The Bureau does not propose to delay this requirement because it 
applies, for the most part, to the period after consummation.
     Loan originator identifier requirement. Dodd-Frank section 
1402(a)(2); TILA section 129B(b)(1)(B). The Bureau does not propose to 
delay this requirement because it applies broadly to ``loan 
documents.'' In the integrated TILA-RESPA final rule, the Bureau will 
harmonize the loan originator identifier provisions of this proposal 
with the separate rulemaking implementing TILA section 129B(b)(1)(B).
     Disclosure regarding waiver of escrow after consummation. 
Dodd-Frank Act section 1462; TILA section 129D(j)(1)(B). The Bureau 
does not propose to delay this requirement because it applies to the 
period after consummation and because it will be implemented by final 
rule pursuant to an outstanding proposal published by the Board. 76 FR 
11598 (Mar. 2, 2011).
     Consumer notification regarding appraisals for higher-risk 
mortgages. Dodd-Frank Act section 1471; TILA section 129H(d). The 
Bureau does not propose to delay this requirement because it overlaps 
substantially with an existing disclosure requirement under ECOA (see 
below) and must be implemented through an interagency rulemaking. In 
the integrated TILA-RESPA final rule, the Bureau plans to harmonize the 
appraisal notification provisions of this proposal with the separate 
rulemaking implementing TILA section 129H(d), so that once the 
integrated form is finalized creditors will be able to use the 
integrated forms to satisfy the 129H(d) requirement.
     Consumer notification regarding the right to receive an 
appraisal copy. Dodd-Frank Act section 1474; ECOA section 701(e)(5). 
The Bureau does not propose to delay this requirement because it 
replaces an existing disclosure requirement under ECOA that is 
typically provided separately from other disclosures. In the integrated 
TILA-RESPA final rule, the Bureau will harmonize the provisions with 
the separate rulemaking implementing ECOA section 701(e)(5), so that 
once the integrated form is finalized creditors will be able to use it 
to satisfy the ECOA requirement.
    As discussed in the section-by-section analysis to proposed Sec.  
1026.19, the integrated disclosure provisions of this proposal apply to 
closed-end transactions secured by real property, other than reverse 
mortgages as defined in Sec.  1026.33(a). However, under the statute, 
the Affected Title XIV Disclosures vary in scope and are in some cases 
broader than the scope of the proposed integrated disclosure 
provisions.\113\ For example, certain of the Affected Title XIV 
Disclosures apply to open-end credit plans,\114\ transactions secured 
by dwellings that are not real property,\115\ and/or reverse 
mortgages,\116\ which are not the subject of this rulemaking. However, 
because the final scope of the integrated disclosure provisions is not 
yet known, the Bureau is proposing to delay the Affected Title XIV 
Disclosures to the fullest extent those requirements could apply under 
the statutory provisions. However, the Bureau also solicits comment on 
whether the final rule implementing the integrated disclosures should 
implement the Affected Title

[[Page 51135]]

XIV Disclosures for open-end credit plans, transactions secured by 
dwellings that are not real property, and reverse mortgages, as 
applicable, by requiring creditors to comply with the proposed 
provisions that implement those disclosure requirements.
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    \113\ Except as described below, the Affected Title XIV 
Disclosures apply to ``residential mortgage loans,'' which are 
defined in TILA section 103(cc)(5). 15 U.S.C. 1602(cc)(5). TILA 
section 129C(f)(1) (requiring a negative amortization warning) 
applies to open- or closed-end consumer credit plans secured by a 
dwelling. 15 U.S.C. 1639c(f)(1). TILA section 129D(h) (disclosure 
regarding mandatory escrow accounts) applies to consumer credit 
transactions secured by a first lien on the principal dwelling of 
the consumer, other than open-end credit plans and reverse 
mortgages. 15 U.S.C. 1639d(h). TILA section 129D(j)(1)(A) applies to 
consumer credit transactions secured by real property. 15 U.S.C. 
1639d(j)(1)(A). TILA section 128(b)(4) (requiring escrow amounts to 
be included in the repayment analysis disclosure) applies to 
consumer credit transactions secured by a first lien on the 
consumer's principal dwelling, other than open-end plans or reverse 
mortgages. 15 U.S.C. 1638(b)(4). RESPA section 4(c) (permitting an 
appraisal management fee disclosure) applies to ``federally related 
mortgage loans.'' 12 U.S.C. 2603(c). To the extent these statutory 
provisions do not cover transactions that are within the scope of 
the integrated disclosure provisions of this proposal (e.g., vacant 
land), the Bureau is proposing to modify the statutory requirements 
to cover those transactions. See the section-by-section analysis to 
proposed Sec.  1026.19.
    \114\ The following Affected Title XIV Disclosures apply to 
open-end credit plans: TILA section 129C(f) (negative amortization 
warning); TILA section 129D(j)(1)(A) (disclosure regarding waiver of 
escrow at consummation); RESPA section 4(c) (appraisal management 
company fee disclosure).
    \115\ All of the Affected Title XIV Disclosures, other than TILA 
section 129D(j)(1)(A) (disclosure regarding waiver of escrow at 
consummation) and RESPA section 4(c) (appraisal management company 
fee disclosure), apply to transactions secured by dwellings that are 
not real property.
    \116\ All of the Affected Title XIV Disclosures, other than TILA 
section 128(b)(4) (requiring repayment analysis to include escrow) 
and TILA section 12D(h) (mandatory escrow or impound account 
disclosure), apply to reverse mortgages.
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Improving Overall Effectiveness of Disclosures
    Issuing final rules implementing the Affected Title XIV Disclosures 
at the same time as the integrated TILA-RESPA final rule will improve 
the overall effectiveness of the integrated disclosure. One of TILA's 
primary purposes is to ``assure a meaningful disclosure of credit terms 
* * * and avoid the uninformed use of credit.'' TILA section 102(a); 15 
U.S.C. 1601(a). Similarly, one purpose of RESPA is to improve advance 
disclosure of settlement costs. RESPA section 2(b)(1); 12 U.S.C. 
2601(b)(1). As discussed above, however, TILA, RESPA, and current 
Regulations Z and X generally require that consumers receive two 
separate disclosures after applying for a mortgage loan, and then 
receive two additional separate disclosures prior to closing on that 
loan. Concerns have been raised that duplicative disclosures may reduce 
consumer understanding of mortgage loan transactions and increase 
burden on industry. Thus, when viewed together, the duplicative 
disclosures required by TILA and RESPA may inhibit consumers' 
understanding of their loans. Section 1032(f) of the Dodd-Frank Act 
addresses these concerns by directing the Bureau to integrate these 
disclosure requirements to improve consumer understanding of mortgage 
disclosures.
    This same rationale supports delaying the requirements of the 
Affected Title XIV Disclosures until such time as the Bureau issues a 
final rule implementing the broader TILA-RESPA integration. 
Incorporating the Affected Title XIV Disclosures will enable the Bureau 
to use the results of its consumer testing and public feedback to 
develop forms that include these pre-consummation disclosures in a way 
that could improve overall consumer understanding of mortgage loan 
transactions. Implementing the Affected Title XIV Disclosures in 
isolation could have the opposite effect, by multiplying the number of 
individual disclosures that consumers receive, thereby reducing the 
likelihood that consumers will focus on any of them.
    Through consumer testing, the Bureau has specifically examined how 
the required disclosures should work together on the integrated 
disclosure to maximize consumer understanding. For example, in its 
consumer testing of the integrated disclosures, the Bureau tested and 
solicited public feedback on clauses related to the Affected Title XIV 
Disclosures to determine how the language will be understood by 
consumers, both separately and in the context of the overall form.
    The Bureau estimates that, by incorporating Affected Title XIV 
Disclosures that would otherwise be provided separately, the total page 
count for pre-consummation TILA and RESPA disclosures would be reduced 
by as much as 50 percent. The Bureau believes that this reduction will 
not only improve consumer understanding of mortgage transactions, but 
also facilitate compliance as discussed below. Consumer testing also 
indicates that some disclosures are either not helpful or are 
detrimental to consumer understanding; as discussed in the section-by-
section analysis below, the Bureau proposes to use its authority to 
modify these disclosures to enhance consumer understanding.
Facilitating Compliance by Reducing Regulatory Burden
    As noted above, another purpose of the integrated TILA-RESPA 
disclosure is to facilitate compliance with the requirements and 
purposes of those statutes. TILA section 105(b); 15 U.S.C. 1604(b); 
RESPA section 4(a); 12 U.S.C. 2603(a). Delaying the effective date of 
the Affected Title XIV Disclosures until a rule implementing the 
integrated TILA-RESPA disclosure is final will further this purpose by 
reducing regulatory burden. A substantial burden would be imposed if 
entities were required to revise their systems and practices twice--
once to comply with the Affected Title XIV Disclosures and again to 
comply with the final rule integrating the TILA and RESPA disclosures. 
Implementing the changes twice would be particularly burdensome because 
compliance with the Affected Title XIV Disclosures will involve 
modifying forms and systems, updating compliance manuals, and training 
staff regarding the new disclosures.
    Implementing the Affected Title XIV Disclosures as part of the 
integrated TILA-RESPA rulemaking will reduce regulatory burden by 
allowing entities to adopt all the necessary changes at one time. 
Implementing a single, consolidated disclosure will also reduce ongoing 
regulatory burden because an integrated disclosure is less costly to 
provide than a series of disclosures.
Legal Authority
    For the reasons discussed above, the Bureau proposes to exercise 
its authority under TILA section 105(a) and (f), RESPA section 19(a), 
Dodd-Frank section 1032(a), and, for residential mortgage loans, Dodd-
Frank Act section 1405(b) to, in effect, delay the effective date of 
the Affected Title XIV Disclosures by exempting regulated entities from 
these provisions until a final rule implementing Dodd-Frank Act section 
1032(f) takes effect. 15 U.S.C. 1604(a); 12 U.S.C. 2617(a); 12 U.S.C. 
5532(a); 15 U.S.C. 1601 note. TILA section 105(a) gives the Bureau 
authority to adjust or except from the disclosure requirements of TILA 
all or any class of transactions to effectuate the purposes of TILA or 
facilitate compliance. As set forth above, delaying the Affected Title 
XIV Disclosures until such time as a final rule implementing the 
integrated TILA-RESPA disclosures takes effect achieves the purpose of 
TILA to promote the informed use of credit through a more effective, 
consolidated disclosure, and facilitates compliance by reducing 
regulatory burden associated with revising systems and practices 
multiple times and providing multiple disclosures to consumers.
    The Bureau also proposes the exemption pursuant to TILA section 
105(f). The Bureau has considered the factors in TILA section 105(f) 
and believes that an exemption is appropriate under that provision. 
Specifically, the Bureau believes that the proposed exemption is 
appropriate for all affected borrowers, regardless of their other 
financial arrangements and financial sophistication and the importance 
of the loan to them. Similarly, the Bureau believes that the proposed 
exemption is appropriate for all affected loans, regardless of the 
amount of the loan and whether the loan is secured by the principal 
residence of the consumer. Furthermore, the Bureau believes that, on 
balance, the proposed exemption will simplify the credit process 
without undermining the goal of consumer protection or denying 
important benefits to consumers.
    As discussed above, the Bureau believes that the exemption provides 
a benefit to consumers through a more effective, consolidated 
disclosure. Absent an exemption, the Affected Title XIV Disclosures 
would complicate and hinder the mortgage lending process because 
consumers would receive inconsistent disclosures and, likely, numerous 
additional pages of Federal disclosures that do not work together in a 
meaningful way. The Bureau also believes that the cost of credit would 
be increased if the Affected Title XIV Disclosures take effect 
independent of the larger TILA-RESPA integration

[[Page 51136]]

because industry would be required to revise systems and practices 
multiple times. The Bureau has also considered the status of mortgage 
borrowers in issuing the proposed exemptions, and believes the 
exemption is appropriate to improve the informed use of credit. The 
Bureau does not believe that the goal of consumer protection would be 
undermined by the exemption, because of the risk that layering the 
Affected Title XIV Disclosures on top of existing mandated disclosures 
would lead to consumer confusion. The exemption allows the Bureau to 
coordinate the changes in a way that improves overall consumer 
understanding of the disclosures.
    RESPA section 19(a) provides the Bureau with authority to grant 
exemptions from the requirements of RESPA as necessary to achieve the 
purposes of RESPA. As discussed above, one purpose of RESPA is to 
achieve more effective advance disclosure to home buyers and sellers of 
settlement costs. RESPA section 2(b)(1); 12 U.S.C. 2601(b). Delaying 
the Affected Title XIV Disclosures until such time as a final rule 
implementing the integrated TILA-RESPA disclosures takes effect will 
result in a more effective disclosure and improve consumer 
understanding and will facilitate compliance by reducing regulatory 
burden, as discussed above.
    In addition, section 1405(b) of the Dodd-Frank Act gives the Bureau 
authority to exempt from or modify disclosure requirements for any 
class of residential mortgage loans if the Bureau determines that the 
exemption or modification is in the interest of consumers and the 
public. As discussed above, implementing the Affected Title XIV 
Disclosures with the integrated TILA-RESPA disclosure is in the 
interest of consumers because it allows the Bureau to coordinate the 
changes in a way that improves overall consumer understanding of the 
disclosures. Further, implementing the Affected Title XIV Disclosures 
as part of the integrated disclosure rulemaking is in the public 
interest because it produces a more efficient regulatory scheme by 
incorporating multiple, potentially confusing disclosures into clear 
and understandable forms through consumer testing.
    Finally, consistent with section 1032(a) of the Dodd-Frank Act, 
implementing the Affected Title XIV Disclosures together with the 
integrated disclosure would ensure that the features of consumer credit 
transactions secured by real property are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to understand the costs, benefits, and risks associated with the 
product or service, in light of the facts and circumstances. The Bureau 
believes that implementing a single, consolidated disclosure will 
benefit consumers and facilitate compliance with TILA and RESPA. For 
these reasons, the Bureau is proposing to delay the Affected Title XIV 
Disclosures until the Bureau issues a final rule implementing the 
integrated TILA-RESPA disclosure required by section 1032(f) of the 
Dodd-Frank Act.
    The Bureau is proposing to implement the Affected Title XIV 
Disclosures in Sec.  1026.1(c), which is discussed further in the 
section-by-section analysis below. This proposal, therefore, 
incorporates the Affected Title XIV Disclosures as part of the 
integrated disclosure. The Bureau views proposed Sec.  1026.1(c) as 
prescribing the required rules in final form pursuant to Dodd-Frank Act 
section 1400(c)(1)(A) and the effective date of the final rule 
implementing the delay of the Affected Title XIV Disclosures as 
satisfying Dodd-Frank Act section 1400(c)(1)(B).
    The Bureau plans to issue a final rule implementing this exemption 
before the statutory provisions take effect in January 2013. For this 
reason, the Bureau is providing a comment period of 60 days for the 
proposed amendments to Sec.  1026.1(c), rather than the 120-day comment 
period provided for all other aspects of this proposed rule other than 
Sec.  1026.4, to permit the Bureau to evaluate comments received in 
response to this aspect of the proposal before issuing a final rule. 
The Bureau plans to issue a final notice that would remove this 
regulatory exemption at the time a final rule implementing the 
integrated TILA-RESPA disclosure takes effect, but solicits comment on 
whether the regulatory exemption should sunset on a specific date.

C. Potential Exemptions from Disclosure Requirements

    As discussed in part III, above, one of the Bureau's primary 
considerations in developing the integrated disclosures was to minimize 
the risk of information overload and enhance consumers' overall 
understanding of mortgage loan and real estate transactions. To that 
end, the integrated disclosures highlight information that is important 
to consumers in comparing and evaluating mortgage loans and deemphasize 
information that is secondary to consumer understanding. In addition, 
as discussed in the section-by-section analysis, below, the Bureau is 
proposing to use its exemption and modification authority to exempt 
transactions subject to proposed Sec.  1026.19(e) and (f) from certain 
disclosure requirements that consumer testing and research indicate are 
confusing and unhelpful to consumers. Specifically, the Bureau is 
proposing to use its authority under TILA section 105(a) and (f), Dodd-
Frank Act section 1032(a) and, for residential mortgage loans, Dodd-
Frank Act section 1405(b) to omit from the Loan Estimate provided three 
business days after receipt of the consumer's application: the amount 
financed (TILA section 128(a)(2)), the finance charge (TILA section 
128(a)(3)), a statement that the creditor is taking a security interest 
in the consumer's property (TILA section 128(a)(9)), a statement that 
the consumer should refer to the appropriate contract document for 
information about their loan (TILA section 128(a)(12)), a statement 
regarding certain tax implications (TILA section 128(a)(15)), and the 
creditor's cost of funds (TILA section 128(a)(17)). See the section-by-
section analysis to proposed Sec.  1026.37(l). Although the Bureau is 
generally proposing to require these disclosures on the Closing 
Disclosure provided three business days prior to consummation, the 
Bureau is alternatively proposing to use its exemption and modification 
authority to omit the creditor's cost of funds disclosure (TILA section 
128(a)(17)) and the total interest percentage disclosure (TILA section 
128(a)(19)) from both the Loan Estimate and the Closing Disclosure. See 
the section-by-section analysis to proposed Sec. Sec.  1026.37(l) and 
1026.38(o).
    For these same reasons, the Bureau solicits comment on additional 
disclosures that appear on the integrated disclosures that are 
unhelpful or potentially confusing to consumers and whether the Bureau 
should use its authority under TILA section 105(a) and (f), Dodd-Frank 
Act section 1032(a) and, for residential mortgage loans, Dodd-Frank Act 
section 1405(b) to exempt transactions subject to proposed Sec.  
1026.19(e) and (f) from any such disclosure requirements. The Bureau 
believes exempting transactions from those disclosure requirements 
would promote the informed use of credit and facilitate compliance, 
consistent with TILA section 105(a). For the same reasons, the Bureau 
believes such exemptions would be appropriate under TILA section 105(f) 
for all affected borrowers, regardless of their other financial 
arrangements and financial sophistication and the importance of the 
loan to them, and for all affected loans, regardless of the amount of 
the loan and whether the loan is secured by the principal residence of 
the consumer and

[[Page 51137]]

would simplify the credit process without undermining the goal of 
consumer protection or denying important benefits to consumers. Any 
such exemption would also ensure that the features of the transaction 
are fully, accurately, and effectively disclosed to consumers in a 
manner that permits consumers to better understand the costs, benefits, 
and risks associated with the mortgage transaction, in light of the 
facts and circumstances, consistent with Dodd-Frank Act section 
1032(a), and would improve consumer awareness and understanding of 
residential mortgage loans, which is in the interest of consumers and 
the public, consistent with Dodd-Frank Act section 1405(b).

VI. Section-by-Section Analysis

    As discussed above, TILA's mortgage disclosure requirements are 
currently implemented in Regulation Z, whereas RESPA's mortgage 
disclosure requirements are currently implemented in Regulation X. 
Regulation Z contains detailed regulations and guidance regarding 
disclosures for mortgage transactions, whereas Regulation X largely 
relies on the GFE and HUD-1 forms. The Bureau understands that the 
additional detail in Regulation Z facilitates compliance by industry, 
which is one of the goals of this rulemaking.\117\ Accordingly, the 
Bureau is proposing to establish the integrated disclosure requirements 
in Regulation Z, while making conforming and other amendments to 
Regulation X.\118\ However, as discussed above, the Bureau solicits 
comment on whether the level of detail in the proposed regulations and 
guidance (including the number of examples illustrating what is and is 
not permitted) will make compliance more, rather than less, burdensome 
and whether the Bureau should adopt a less prescriptive approach in the 
final rule.
---------------------------------------------------------------------------

    \117\ For example, the small financial service providers who 
advised the Small Business Review Panel stated that ambiguity in the 
application or interpretation of the current RESPA disclosure 
requirements produces substantial costs in the form of legal fees, 
staff training, and, for settlement agents, preparing forms 
differently for different lenders. To address this concern, these 
providers generally requested that the Bureau provide clear guidance 
on how to fill out the forms, similar to that currently provided in 
Regulation Z. See Small Business Review Panel Report at 19-20.
    \118\ The Bureau is proposing to retain established regulatory 
terminology in Regulations X and Z for consistency.
---------------------------------------------------------------------------

    As discussed in detail below with respect to proposed Sec.  
1026.19, certain mortgage transactions that are subject to TILA are not 
subject to RESPA and vice versa. As proposed, the integrated mortgage 
disclosures would apply to most closed-end consumer credit transactions 
secured by real property. Certain types of loans that are currently 
subject to TILA but not RESPA (construction-only loans and loans 
secured by vacant land or 25 or more acres) would be subject to the 
proposed integrated disclosure requirements, whereas others (such as 
mobile home loans and other loans that are secured by a dwelling but 
not real property) would remain solely subject to the existing 
Regulation Z disclosure requirements. Reverse mortgages are excluded 
from coverage of the proposed integrated disclosures and would 
therefore remain subject to the current Regulation X and Z disclosure 
requirements until the Bureau addresses those unique transactions in a 
separate, future rulemaking. Finally, consistent with the current rules 
under TILA, the integrated mortgage disclosures would not apply to 
mortgage loans made by persons who are not ``creditors'' as defined by 
Regulation Z (such as persons who make five or fewer mortgage loans in 
a year), although such loans would continue to be subject to RESPA.

A. Regulation X

Section 1024.5 Coverage of RESPA
5(a) Applicability
    For the reasons discussed below under proposed Sec.  1024.5(c), the 
Bureau is proposing to use its authority under RESPA section 19(a) and, 
for residential mortgage loans, Dodd-Frank Act section 1405(b) to 
exempt certain transactions from the existing RESPA GFE and RESPA 
settlement statement requirements of Regulation X. The Bureau therefore 
is proposing a conforming amendment to Sec.  1024.5(a) to reflect these 
partial exemptions pursuant to the same authority.
5(b) Exemptions
5(b)(1)
    Section 1024.5(b)(1) currently exempts from the coverage of RESPA 
and Regulation X loans on property of 25 acres or more. The Bureau 
believes that most loans that fall into this category are separately 
exempt under a provision excluding extensions of credit primarily for 
business, commercial, or agricultural purposes, set forth in Sec.  
1024.5(b)(2). Accordingly, the Bureau proposes to exercise its 
authority under RESPA section 19(a) and, for residential mortgage 
loans, Dodd-Frank Act section 1405(b) to eliminate the Regulation X 
exemption. This amendment will render the TILA and RESPA regimes more 
consistent, which promotes more effective advance disclosure of 
settlement costs (which is a purpose of RESPA). In addition, this 
consistency will improve consumer awareness and understanding of 
transactions involving residential mortgage loans and is therefore in 
the interest of consumers and the public, consistent with Dodd-Frank 
Act section 1405(b). Because it is unclear whether any mortgages are 
exempt based solely on Sec.  1024.5(b)(1), the Bureau solicits comment 
on the number of loans that may be affected by this aspect of the 
proposal and any reasons for any continued exemption of loans on 
property of 25 acres or more.
5(c) Partial Exemptions for Certain Mortgage Loans
    As discussed further below, the Bureau proposes to exercise its 
authority under RESPA section 19(a), Dodd-Frank Act section 1032(a) 
and, for residential mortgage loans, Dodd-Frank Act section 1405(b) to 
add new Sec.  1024.5(c), which would exempt two types of federally 
related mortgage loans from coverage of the RESPA settlement cost 
booklet, GFE, and settlement statement requirements of Sec. Sec.  
1024.6, 1024.7, 1024.8, and 1024.10. This partial exemption would apply 
to: (1) federally related mortgage loans that are subject to the 
integrated disclosures the Bureau is proposing in Regulation Z Sec.  
1026.19(e) and (f) and (2) federally related mortgage loans that 
satisfy specified criteria associated with certain housing assistance 
loan programs for low- and moderate-income persons. As described 
further below, these exemptions are designed to create consistency with 
the integrated disclosures under Regulation Z and to codify a 
disclosure exemption previously granted by HUD. However, the exemptions 
would retain coverage of affected loans for all other requirements of 
Regulation X, such as the servicing requirements in RESPA section 6, 
prohibitions on referral fees and kickbacks in RESPA section 8, and 
limits on amounts to be deposited in escrow accounts in RESPA section 
10.
5(c)(1)
    Pursuant to the authority discussed above, proposed Sec.  
1024.5(c)(1) exempts from the RESPA settlement cost booklet, GFE, and 
settlement statement requirements of Sec. Sec.  1024.6, 1024.7, 1024.8, 
and 1024.10 federally related mortgage loans that are subject to the 
special disclosure requirements for certain consumer credit 
transactions secured by real property set forth in Regulation Z, under 
proposed Sec.  1026.19(e) and (f). As discussed in detail below, 
proposed Sec.  1026.19(e) and (f) establishes the integrated 
disclosures

[[Page 51138]]

for compliance both with sections 4 and 5 of RESPA and with TILA 
disclosures required for mortgage transactions, as mandated by section 
1032(f) of the Dodd-Frank Act. Accordingly, compliance with Sec. Sec.  
1024.6, 1024.7, 1024.8, and 1024.10 is unnecessary for transactions 
that are subject to Sec.  1026.19(e), (f) and (g) of Regulation Z. 
Because proposed Sec.  1026.19(e) and (f) governs all closed-end 
transactions secured by real property other than reverse mortgages, the 
only federally related mortgage loans that will continue to comply with 
the Regulation X GFE and settlement statement requirements are reverse 
mortgages. The Bureau plans to address the disclosure requirements for 
reverse mortgages in a separate later rulemaking, at which time the 
Bureau may revise or eliminate the remaining disclosure provisions in 
Regulation X.
5(c)(2)
    Proposed Sec.  1024.5(c)(2) exempts from the RESPA settlement cost 
booklet, GFE, and settlement statement requirements of Sec. Sec.  
1024.6, 1024.7, 1024.8, and 1024.10 federally related mortgage loans 
that satisfy several criteria associated with certain housing 
assistance loan programs for low- and moderate-income persons. This 
provision cross-references proposed 12 CFR 1026.3(h), which codifies an 
exemption issued by HUD on October 6, 2010.\119\ Under the HUD 
exemption, lenders need not provide the GFE and settlement statement 
when six prerequisites are satisfied: (1) the loan is secured by a 
subordinate lien; (2) the loan's purpose is to finance downpayment, 
closing costs, or similar homebuyer assistance, such as principal or 
interest subsidies, property rehabilitation assistance, energy 
efficiency assistance, or foreclosure avoidance or prevention; (3) 
interest is not charged on the loan; (4) repayment of the loan is 
forgiven or deferred subject to specified conditions; (5) total 
settlement costs do not exceed one percent of the loan amount and are 
limited to fees for recordation, application, and housing counseling; 
and (6) the loan recipient is provided at or before settlement with a 
written disclosure of the loan terms, repayment conditions, and costs 
of the loan.
---------------------------------------------------------------------------

    \119\ See https://portal.hud.gov/hudportal/documents/huddoc?id=DOC_14574.pdf.
---------------------------------------------------------------------------

    In granting this partial exemption, HUD invoked its authority under 
RESPA section 19(a) to grant ``reasonable exemptions for classes of 
transactions, as may be necessary to achieve the purposes of [RESPA].'' 
HUD determined that, for transactions meeting the criteria listed 
above, the RESPA GFE and settlement statement forms would be difficult 
to complete in a meaningful way and would be likely to confuse 
consumers who received them. Moreover, because of the limited, fixed 
fees involved with such transactions, the comparison shopping purpose 
of the GFE would not be achieved. Finally, the alternative written 
disclosure required as a prerequisite of the exemption would ensure 
that consumers understand the loan terms and settlement costs charged. 
To facilitate compliance, the Bureau is proposing to codify this 
exemption in Regulations X and Z for the same reasons and under the 
same authority as cited by HUD. In addition, the Bureau relies on its 
authority under Dodd-Frank Act section 1405(b) because the proposed 
exemption will improve consumer awareness and understanding of 
transactions due to these same concerns discussed involving residential 
mortgage loans in the identified class of transactions and is therefore 
in the interest of consumers and the public.
    The Bureau is proposing to adopt this exemption with the same 
prerequisites established by HUD. The Bureau seeks comment, however, on 
whether the same rationale for the exemption still would exist 
regardless of lien position and, therefore, the subordinate lien 
position should be eliminated as a requirement for the exemption. The 
Bureau also seeks comment concerning the prerequisite that the loan 
contract not ``require the payment of interest.'' As noted above, the 
exemption as issued by HUD requires that the loan ``carr[y] an interest 
rate of -0- percent.'' This wording may be interpreted narrowly to 
refer only to the rate of interest stated in the note or loan contract 
but not to other requirements or features that may serve as interest 
substitutes. For example, such a narrow reading would mean that loans 
requiring private mortgage insurance or loans having shared-equity or 
shared-appreciation features could qualify for this exemption, provided 
the note recites an interest rate of zero percent. The Bureau's 
wording, on the other hand, could be interpreted as disallowing such 
requirements and features because they are essentially interest 
substitutes. The Bureau therefore seeks comment on whether such 
requirements and features should be considered ``interest'' and, 
therefore, should be impermissible for loans seeking to qualify for 
this partial exemption. In addition, the Bureau seeks comment on other 
types of loan requirements and features that should be similarly deemed 
``interest'' for purposes of this partial exemption. Alternatively, the 
Bureau seeks comment on whether this provision should be eliminated.
Appendix A--Instructions for Completing HUD-1 and HUD-1A Settlement 
Statements; Sample HUD-1 and HUD-1A Statements
    As previously discussed, the Bureau proposes to require creditors 
to use the integrated Closing Disclosure required by Sec. Sec.  
1026.19(f) and 1026.38 to satisfy the disclosure requirements under 
RESPA section 4 for most closed-end transactions covered by RESPA, 
except for reverse mortgage transactions. Currently, the manner in 
which reverse mortgage transactions are disclosed on the HUD-1 or HUD-
1A under appendix A of Regulation X is a source of confusion for 
creditors. HUD attempted to clarify the use of the RESPA settlement 
disclosure in reverse mortgage transactions by issuing frequently-asked 
questions, the HUD RESPA FAQs, the most recent of which was released on 
April 2, 2010. The Bureau proposes to exercise its authority under 
RESPA section 19(a) to modify appendix A of Regulation X to incorporate 
the guidance provided by the HUD RESPA FAQs because, under the proposed 
rule, the closing of reverse mortgage transactions will continue to be 
disclosed using the RESPA settlement statement. The proposed revisions 
can be found in the instructions for lines 202, 204 and page 3, loan 
terms.
    The Bureau believes that adopting this guidance will improve the 
effectiveness of the disclosures when used for reverse mortgages, 
thereby reducing industry confusion and advancing the purpose of RESPA 
to provide more effective advanced disclosure of settlement costs to 
both the consumer and the seller in the real estate transaction, 
consistent with RESPA section 19(a).
Appendix B--Illustrations of Requirements of RESPA
    Appendix B to part 1024 contains illustrations of requirements 
under RESPA. Illustration 12 provides a factual situation where a 
mortgage broker provides origination services to submit a loan to a 
lender for approval. The mortgage broker charges the borrower a uniform 
fee for the total origination services, as well as a direct up-front 
charge for reimbursement of credit reporting, appraisal services, or 
similar charges. To address this factual situation, illustration 12 
provides a comment that: the mortgage broker's fee

[[Page 51139]]

must be itemized in the Good Faith Estimate and on the HUD-1 Settlement 
Statement; other charges that are paid for by the borrower and paid in 
advance of consummation are listed as paid outside closing on the HUD-1 
Settlement Statement, and reflect the actual provider charge for such 
services; and any other fee or payment received by the mortgage broker 
from either the lender or the borrower arising from the initial funding 
transaction, including a servicing release premium or yield spread 
premium, is to be noted on the Good Faith Estimate and listed in the 
800 series of the HUD-1 Settlement Statement.
    Subsequent to the guidance provided in illustration 12, Regulation 
Z Sec.  1026.36(d)(2) was adopted. Section 1026.36(d)(2) states:

    If any loan originator receives compensation directly from a 
consumer in a consumer credit transaction secured by a dwelling: (i) 
No loan originator shall receive compensation, directly or 
indirectly, from any person other than the consumer in connection 
with the transaction; and (ii) No person who knows or has reason to 
know of the consumer-paid compensation to the loan originator (other 
than the consumer) shall pay any compensation to a loan originator, 
directly or indirectly, in connection with the transaction.

    The last sentence in illustration 12 clearly contemplates the loan 
originator, a mortgage broker, receiving compensation from the lender 
as well as the borrower, which therefore describes a factual situation 
prohibited by Sec.  1026.36(d)(2). Accordingly, for consistency with 
Sec.  1026.36(d)(2), the Bureau proposes to exercise its authority 
under RESPA section 19(a) to delete the last sentence of the comment 
provided in illustration 12 in Appendix B to part 1024.
Appendix C--Instructions for Completing Good Faith Estimate (GFE) Form
    As previously discussed, the Bureau proposes to require creditors 
to use the integrated loan estimate required by Sec. Sec.  1026.19(e) 
and 1026.37 to satisfy the disclosure requirements under RESPA section 
5 for most closed-end transactions covered by RESPA, except for reverse 
mortgage transactions. Currently, the manner in which reverse mortgage 
transactions are disclosed on the RESPA GFE under appendix C of 
Regulation X is a source of confusion for creditors. HUD clarified the 
use of the RESPA GFE in reverse mortgage transactions in the HUD RESPA 
FAQs. The Bureau proposes to exercise its authority under RESPA section 
19(a) to modify appendix C of Regulation X to incorporate the guidance 
provided by the HUD RESPA FAQs because, under the proposed rule, 
reverse mortgage transactions will continue to be disclosed using the 
RESPA GFE. The proposed revisions can be found in the instructions for 
the ``Summary of your loan'' and ``Escrow account information'' 
sections. The Bureau believes that these revisions satisfy the purpose 
of RESPA to provide more effective advanced disclosure of settlement 
costs to both the consumer and the seller in the real estate 
transaction.
Section 1026.1 Authority, Purpose, Coverage, Organization, Enforcement, 
and Liability
    The Bureau is proposing conforming amendments to Sec.  1026.1 to 
reflect the fact that, under this proposal, Regulation Z implements not 
only TILA, but also certain provisions of RESPA. The details of the 
regulatory implementation of these statutory requirements are discussed 
below, under the applicable sections of Regulation Z. To reflect the 
expanded statutory scope of Regulation Z, the proposed conforming 
amendments revise Sec.  1026.1(a) (authority), (b) (purpose), (d)(5) 
(organization of subpart E), and (e) (enforcement and liability) to 
include references to the relevant provisions of RESPA.
1(c) Coverage
    As discussed in part V.B, the Bureau is proposing to exempt persons 
temporarily from the disclosure requirements of sections 128(a)(16) 
through (19), 128(b)(4), 129C(f)(1), 129C(g)(2) and (3), 129C(h), 
129D(h), and 129D(j)(1)(A) of TILA and section 4(c) of RESPA, until 
regulations implementing the integrated disclosures required by section 
1032(f) of the Dodd-Frank Act take effect. 15 U.S.C. 1638(a)(16)-(19), 
1638(b)(4), 1639c(f)(1), 1639c(g), 1639c(h), 1639d(h), and 
1639d(j)(1)(A); 12 U.S.C. 2604(c); 12 U.S.C. 5532(f). Proposed Sec.  
1026.1(c)(5) implements this exemption by stating that no person is 
required to provide the disclosures required by the statutory 
provisions listed above. Proposed comment 1(c)(5)-1 explains that Sec.  
1026.1(c)(5) implements the above-listed provisions of TILA and RESPA 
added by the Dodd-Frank Act by exempting persons from the disclosure 
requirements of those sections. The comment clarifies that the 
exemptions provided in proposed Sec.  1026.1(c)(5) are intended to be 
temporary and will apply only until compliance with the regulations 
implementing the integrated disclosures required by section 1032(f) of 
the Dodd-Frank Act become mandatory. Proposed comment 1(c)(5)-1 also 
clarifies that the exemption in proposed Sec.  1026.1(c)(5) does not 
exempt any person from any other requirement of Regulation Z, 
Regulation X, or of TILA or RESPA. For the reasons discussed in part 
V.B, the Bureau is providing a comment period of 60 days for the 
proposed amendments to Sec.  1026.1(c). In addition, as discussed above 
in part V.B, the Bureau requests comment on whether the exemptions 
provided in proposed Sec.  1026.1(c)(5) should expire after a specified 
period of time.
Section 1026.2 Definitions and Rules of Construction
2(a) Definitions
2(a)(3) Application
Background
    Neither TILA nor RESPA defines the term ``application.'' Although 
Regulation Z does not define this term, for the good faith estimate 
disclosures currently required by Sec.  1026.19(a), Regulation Z 
incorporates the Regulation X definition. See comment 19(a)(1)(i)-3. 
Section 1024.2(b) of Regulation X defines application as ``the 
submission of a borrower's financial information in anticipation of a 
credit decision relating to a federally related mortgage loan, which 
shall include the borrower's name, the borrower's monthly income, the 
borrower's social security number to obtain a credit report, the 
property address, an estimate of the value of the property, the 
mortgage loan amount sought, and any other information deemed necessary 
by the loan originator.'' 12 CFR 1024.2(b). This definition, adopted as 
part of HUD's 2008 RESPA Final Rule, was intended to ensure that 
consumers received a RESPA GFE containing reliable estimates of 
settlement costs early in the process of shopping for a mortgage loan.
    However, in response to concerns that a narrow definition of 
application might inhibit preliminary underwriting, the definition 
adopted by HUD includes seven elements, one of which is ``any other 
information deemed necessary by the loan originator.'' HUD added this 
``catch-all'' element to enable creditors to collect any additional 
information deemed necessary to underwrite a loan.
Concerns With the Current Definition Under Regulation X
    While the Bureau believes that creditors should be able to collect 
information in addition to the six elements, the Bureau is concerned 
that the seventh catch-all element may

[[Page 51140]]

permit creditors to delay providing consumers with the integrated Loan 
Estimate. One primary purpose of the integrated Loan Estimate is to 
inform consumers of the cost of credit when they have bargaining power 
to negotiate for better terms and time to compare other financing 
options. It is vital, however, that creditors be able to collect the 
information necessary to originate loans in a safe and sound manner. 
The Bureau does not believe that these principles conflict. The 
definition of application does not define or limit underwriting; it 
instead establishes a point in time at which disclosure obligations 
begin.
    Based on this premise, the definition of ``application'' should 
facilitate consumers' ability to receive reliable estimates early in 
the loan process, but should not restrict a creditor's ability to 
determine which information is necessary for sound underwriting. 
Removing the catch-all element from the definition under Regulation X 
may ensure that the disclosures are received both early in the loan 
process and based on the information most critical to providing 
reliable estimates. Consumers would be able to receive the disclosures 
as soon as consumers provide creditors with the information needed for 
reliable estimation. Creditors would be able to collect whatever 
information is, in the creditor's view, necessary for a reasonably 
reliable estimate, provided that it collects the additional information 
prior to collecting the six pieces of information specified in proposed 
Sec.  1026.2(a)(3)(ii), which are the consumer's name, income, and 
social security number to obtain a credit report, as well as the 
property address, an estimate of the value of the property, and the 
mortgage loan amount sought. For example, if a creditor believes that a 
reliable estimate cannot be provided without information related to the 
consumer's combined current liabilities, the creditor may collect this 
information, provided that it does so prior to, or at the same time as, 
collecting the six pieces of information specified in Sec.  
1026.2(a)(3)(ii). The Bureau acknowledges that creditors could 
strategically order information collection in a manner that best suits 
the needs of the creditor. Even if the creditor did so, the Bureau 
believes that the definition would enable the consumers to receive the 
disclosures early in the loan process. This approach may also ensure 
that consumers are not required to disclose sensitive information, such 
as the consumer's social security number or income, until after the 
creditor collects less sensitive information. Thus, removing the 
seventh catch-all element, while preserving creditors' ability to 
collect any additional necessary information, may strike the 
appropriate balance between the needs of consumers and the needs of 
industry.
    This approach also dovetails with the requirements of proposed 
Sec.  1026.19(e) establishing limitations on fee increases for the 
purposes of determining good faith, but which are subject to several 
exceptions, including exceptions based on the information the creditor 
relied on in disclosing the estimated loan costs. Thus, the proposed 
definition of application, by requiring creditors to collect any 
additional information prior to collecting the six pieces of 
information specified in Sec.  1026.2(a)(3)(ii), maintains creditors' 
current flexibility in deciding which additional information is 
necessary for providing estimates. For example, if a creditor chooses 
to collect a consumer's combined liability information prior to 
collecting the six pieces of information specified in Sec.  
1026.2(a)(3)(ii), the disclosures provided pursuant to Sec.  1026.19(e) 
may reflect such information. If the consumer's combined liabilities 
subsequently increase, the creditor may issue a revised disclosure 
reflecting the change in information relied upon in providing the 
original disclosure. If a different creditor chooses to rely on only 
the six pieces of information specified in Sec.  1026.2(a)(3)(ii) in 
providing the disclosures, but during underwriting information related 
to the consumer's combined liabilities is discovered, and such 
information requires a revision in loan terms, the creditor may issue a 
revised disclosure reflecting such new information not previously 
relied on in providing the disclosures. But neither creditor may delay 
providing consumers with the disclosures in the first instance by 
claiming that additional information related to the consumer's combined 
liabilities is required after the consumer has provided the six pieces 
of information specified in Sec.  1026.2(a)(3)(ii). Thus, removal of 
the seventh catch-all element may achieve the same outcome from the 
creditor's perspective as under the current Regulation X definition, 
while inhibiting the ability of creditors to delay providing consumers 
with the disclosures. This approach has the added benefit of being a 
uniform standard for disclosure obligations across all creditors, which 
facilitates compliance and supervision.
    Accordingly, pursuant to its authority under section 105(a) of TILA 
and 19(a) of RESPA, the Bureau is proposing to add Sec.  
1026.2(a)(3)(i) to define ``application'' as the submission of a 
consumer's financial information for the purposes of obtaining an 
extension of credit. Proposed Sec.  1026.2(a)(3)(ii) provides that, 
except for purposes of subpart B, subpart F, and subpart G, the term 
consists of the consumer's name, income, and social security number to 
obtain a credit report, and the property address, an estimate of the 
value of the property, and the mortgage loan amount sought. For the 
reasons discussed above, removal of the seventh catch-all element from 
the definition of application may help carry out the purposes of TILA 
by promoting the informed use of credit and achieve the purposes of 
RESPA by promoting more effective advance disclosure of settlement 
costs by encouraging creditors to provide consumers with good faith 
estimates of loan terms and costs earlier in the process.
    The Bureau has received feedback, including a comment received in 
response to the 2011 Streamlining Proposal, requesting a single 
definition of ``application'' under Regulation Z, Regulation B (which 
implements the Equal Credit Opportunity Act), and Regulation C (which 
implements the Home Mortgage Disclosure Act). The Bureau recognizes the 
potential consistency benefits of a single definition. However, for the 
reasons discussed above, the Bureau believes that the proposed 
definition provides important benefits to consumers in this context.
    During the Small Business Panel Review process, several small 
entity representatives expressed concern about eliminating the seventh 
prong of the definition of application currently under Regulation X. 
See Small Business Review Panel Report at 33-34, 49, and 67. Based on 
this feedback and consistent with the recommendation of the Small 
Business Review Panel, the Bureau solicits comment on what, if any, 
additional specific information beyond the six items included under the 
proposed definition of application is needed to provide a reasonably 
accurate Loan Estimate. See id. at 29.
    The proposed definition of application consists of two parts. The 
first part establishes a broad definition for all of Regulation Z. The 
second part provides that an application consists of six elements of 
data. These elements, which are currently set forth in the definition 
of application in Regulation X, have an established significance in the 
context of closed-end loans secured by real property, but may be less 
significant or even inapplicable to other types of credit. Thus, these 
six elements

[[Page 51141]]

do not apply to Subpart B (open-end loans), Subpart F (student loans), 
and Subpart G (special rules for credit card accounts and open-end 
credit offered to college students).
    Proposed comment 2(a)(3)-1 explains that a consumer's submission of 
financial information is for purposes of obtaining an extension of 
credit. A creditor is free to collect information in addition to that 
listed in Sec.  1026.2(a)(3)(ii) that it deems necessary in connection 
with the request for the extension of credit. However, once a creditor 
has received the six listed pieces of information, it has an 
application for purposes of Sec.  1026.2(a)(3). The proposed comment 
also contains illustrative examples of this provision.
    Proposed comment 2(a)(3)-2 clarifies that, if a consumer does not 
have a social security number, the creditor may instead request 
whatever unique identifier the creditor uses to obtain a credit report. 
For example, a creditor has obtained a social security number to obtain 
a credit report for purposes of Sec.  1026.2(a)(3)(ii) if the creditor 
collects a Tax Identification Number from a consumer who does not have 
a social security number, such as a foreign national. This comment is 
consistent with guidance provided by HUD in the HUD RESPA FAQs p. 7, 
14 (``GFE--General'').
    Proposed comment 2(a)(3)-3 clarifies that the creditor's receipt of 
a credit report fee does not affect whether an application has been 
received. Section 1026.19(a)(1)(iii) permits the imposition of a fee to 
obtain the consumer's credit history prior to the delivery of the 
disclosures required under Sec.  1026.19(a)(1)(i). Section 
1026.19(e)(2)(i)(B) permits the imposition of a fee to obtain the 
consumer's credit report prior to the delivery of the disclosures 
required under Sec.  1026.19(e)(1)(i). Whether, or when, such fees are 
received is irrelevant for the purposes of the definition in Sec.  
1026.2(a)(3) and the timing requirements in Sec.  1026.19(a)(1)(i) and 
(e)(1)(iii). For example, if, in a transaction subject to Sec.  
1026.19(e)(1)(i), a creditor receives the six pieces of information 
identified under Sec.  1026.2(a)(3)(ii) on Monday, June 1, but does not 
receive a credit report fee from the consumer until Tuesday, June 2, 
the creditor does not comply with Sec.  1026.19(e)(1)(iii) if it 
provides the disclosures required under Sec.  1026.19(e)(1)(i) after 
Thursday, June 4. The three-business-day period beings on Monday, June 
1, the date the creditor received the six pieces of information. The 
waiting period does not begin on Tuesday, June 2, the date the creditor 
received the credit report fee.
2(a)(6) Business Day
    Although neither RESPA nor TILA defines ``business day,'' that term 
is defined in Regulations X and Z. Both Regulation X Sec.  1024.2(b) 
and Regulation Z Sec.  1026.2(a)(6) generally define ``business day'' 
to mean a day on which the offices of the creditor or other business 
entity are open to the public for carrying on substantially all of the 
entity's business functions. For certain provisions of Regulation Z, 
however, an alternative definition applies. Under this definition, 
``business day'' means all calendar days except Sundays and the legal 
public holidays specified in 5 U.S.C. 6103(a), i.e., New Year's Day, 
the Birthday of Martin Luther King, Jr., Washington's Birthday, 
Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans Day, 
Thanksgiving Day, and Christmas Day.
    The alternative definition of business day applies to, among other 
things, the three-business-day limitation on the imposition of fees in 
Sec.  1026.19(a)(1)(ii) and the three- and seven-business-day waiting 
periods in Sec.  1026.19(a)(2). As discussed below, the Bureau is 
proposing to amend Sec.  1026.19 to implement the integrated disclosure 
requirement in section 1032(f) of the Dodd-Frank Act by adding new 
paragraphs (e) and (f). Accordingly, for consistency and to facilitate 
compliance with TILA, the Bureau is proposing to use its authority 
under TILA section 105(a) to amend Sec.  1026.2(a)(6) to apply the 
alternative definition of business day to the provisions of paragraphs 
(e) and (f) that are analogous to Sec.  1026.19(a)(1)(i), (a)(1)(ii), 
and (a)(2). The Bureau also proposes conforming amendments to comment 
2(a)(6)-2.
    The Bureau recognizes that this issue was previously raised during 
the Board's 2008-2009 MDIA rulemaking. See 73 FR 74989 at 74991 (Dec. 
10, 2008) and 74 FR 23289 at 23293-23294 (May 19, 2009). However, the 
Bureau believes that applying the alternative definition of business 
day to the integrated disclosures would facilitate compliance. The 
Bureau solicits feedback regarding whether the general definition of 
business day instead should apply to the integrated disclosure delivery 
requirements. The Bureau also solicits comment on whether the rules 
should be analogous to the current rules, where the general business 
day requirement applies to some requirements and the alternative 
business day requirement applies to other requirements. Finally, the 
Bureau seeks feedback regarding whether the business day usage under 
current Sec.  1026.19(a) should remain, or if Sec.  1026.19(a) should 
be modified to use a single definition of business day consistent with 
proposed Sec.  1026.19(e) and (f).
2(a)(17) Creditor
    Under current Regulation Z, a person who extended consumer credit 
25 or fewer times in the past calendar year, or five or fewer times for 
transactions secured by a dwelling, is exempt from the definition of 
``creditor.'' See Sec.  1026.2(a)(17)(v). The Bureau's 2011 
Streamlining Proposal specifically requested comment on whether these 
thresholds should be raised and, if so, to what number of transactions. 
In addition, the proposal solicited comment on whether a similar 
exemption should be applied to the pre-consummation disclosure 
requirements under RESPA that will be integrated with the TILA 
requirements pursuant to Dodd-Frank Act section 1032(f). In response, 
trade association commenters suggested raising the threshold number of 
transactions in order to reduce regulatory burden on more small 
lenders. For example, one trade association commenter suggested raising 
the threshold number of transactions to 50, regardless of transaction 
type. In light of this feedback, the Bureau requests comment on whether 
the five-loan exemption threshold is appropriate for transactions 
subject to this proposed rule and, if not, what number of transactions 
would be appropriate. The Bureau also solicits comment on whether any 
transaction-based exemption adopted in this rulemaking should be 
applied to the pre-consummation disclosure requirements of sections 4 
and 5 of RESPA.
2(a)(25) Security Interest
    Pursuant to its authority under TILA section 105(a), the Bureau 
proposes a conforming amendment to the definition of ``security 
interest'' in current Sec.  1026.2(a)(25). Under the current definition 
of security interest, for purposes of the disclosure requirements in 
Sec. Sec.  1026.6 and 1026.18, the term does not include an interest 
that arises solely by operation of law. For consistency and to 
facilitate compliance with TILA, the Bureau's proposed amendment 
extends that exemption to disclosures required under proposed 
Sec. Sec.  1026.19(e) and (f) and 1026.38(l)(6). The same conforming 
amendment would be made to comment 2(a)(25)-2.

[[Page 51142]]

Section 1026.3 Exempt Transactions
    The Bureau is proposing a partial exemption from the disclosure 
requirements of proposed Sec.  1026.19(e), (f), and (g) for certain 
mortgage loans. The Bureau therefore is proposing conforming amendments 
to Sec.  1026.3(h) to reflect this exemption. The Bureau is also 
proposing amendments to the commentary to Sec.  1026.3(a) to clarify 
the current exemption for certain trusts.
3(a) Business, Commercial, Agricultural, or Organizational Credit
    TILA section 104(1), 15 U.S.C. 1603(1), excludes from TILA's 
coverage extensions of credit to, among others, organizations. 
Accordingly, Sec.  1026.3(a)(2) provides that Regulation Z does not 
apply to extensions of credit to other than a natural person. The 
Bureau is proposing to revise comments 3(a)-9 and -10 to clarify that 
credit extended to certain trusts for tax or estate planning purposes 
is considered to be extended to a natural person rather than to an 
organization and, therefore, is not exempt from the coverage of 
Regulation Z under Sec.  1026.3(a)(2).
    Existing comment 3(a)-10 discusses land trusts, a relatively 
uncommon way of structuring consumer credit in which the creditor holds 
title to the property in trust and executes the loan contract as 
trustee on behalf of the trust. The comment states that, although a 
trust is technically not a natural person, such arrangements are 
subject to Regulation Z because ``in substance (if not form) consumer 
credit is being extended.'' This proposal amends comment 3(a)-10 to 
extend this rationale to more common forms of trusts. Specifically, 
proposed comment 3(a)-10 notes that consumers sometimes place their 
assets in trust with themselves as trustee(s), and with themselves or 
themselves and their families or other prospective heirs as 
beneficiaries, to obtain certain tax benefits and to facilitate the 
future administration of their estates. Under this proposal, revised 
comment 3(a)-10 states that Regulation Z applies to credit that is 
extended to such a trust, even if the consumer who is both trustee and 
beneficiary executes the loan documents only in the capacity of the 
trustee, for the same reason the existing comment notes with respect to 
land trusts: Such transactions are extensions of consumer credit in 
substance, if not in form. Comment 3(a)-9 would be revised to cross-
reference comment 3(a)-10.
3(h) Partial Exemption for Certain Mortgage Loans
    The Bureau is proposing a new Sec.  1026.3(h) to provide an 
exemption from proposed Sec.  1026.19(e), (f), and (g) for transactions 
that satisfy several criteria associated with certain housing 
assistance loan programs for low- and moderate-income persons. As 
discussed below, proposed Sec.  1026.19(e) and (f) establishes the 
requirement to provide the new integrated disclosures for transactions 
secured by real property, other than reverse mortgages, and proposed 
Sec.  1026.19(g) establishes the requirement to provide a special 
information booklet for those transactions. The partial exemption in 
proposed Sec.  1026.3(h) parallels Sec.  1024.5(c)(3), discussed above. 
The exemptions are designed to create consistency with Regulation X and 
to codify a disclosure exemption previously granted by HUD. Thus, under 
the two proposed exemptions, lenders would be exempt from providing the 
RESPA-mandated closing cost disclosures for federally related mortgage 
loans that satisfy the exemption's conditions, even if the transaction 
otherwise would be subject to RESPA.
    The Bureau proposes this exemption pursuant to its authority under 
TILA section 105(a) and (f), RESPA section 19(a), Dodd-Frank Act 
section 1032(a), and, for residential mortgage loans, Dodd-Frank Act 
section 1405(b). The Bureau believes that the proposed exemption will 
create consistency with Regulation X and therefore facilitate 
compliance with TILA and RESPA. In addition, the Bureau believes the 
special disclosure requirements that covered persons must meet to 
qualify for the proposed exemption will help ensure that the features 
of these mortgage transactions are fully, accurately. and effectively 
disclosed to consumers in a manner that permits consumers to understand 
the costs, benefits, and risks associated with these mortgage 
transactions, consistent with Dodd-Frank Act section 1032(a). The 
proposed exemption will also improve consumer awareness and 
understanding of transactions involving residential mortgage loans, 
which is in the interest of consumers and the public, consistent with 
Dodd-Frank Act section 1405(b). The Bureau has considered the factors 
in TILA section 105(f) and believes that, for the reasons discussed 
above, an exception is appropriate under that provision. Specifically, 
the Bureau believes that the proposed exemption is appropriate for all 
affected borrowers, regardless of their other financial arrangements 
and financial sophistication and the importance of the loan to them. 
Similarly, the Bureau believes that the proposed exemption is 
appropriate for all affected loans, regardless of the amount of the 
loan and whether the loan is secured by the principal residence of the 
consumer. Furthermore, the Bureau believes that, on balance, the 
proposed exemption will simplify the credit process without undermining 
the goal of consumer protection or denying important benefits to 
consumers.
    The proposed exemption applies only to transactions secured by a 
subordinate lien. For the same reasons discussed in the section-by-
section analysis to proposed Sec.  1024.5(c)(3), the Bureau requests 
comment on whether the exemption in proposed Sec.  1026.3(h) should 
extend to first liens. In addition, for the reasons discussed above, 
the Bureau seeks comment on whether requirements and features that may 
serve as interest substitutes should be considered ``interest'' and, 
therefore, should be impermissible for loans seeking to qualify for 
this partial exemption. The Bureau also seeks comment on the types of 
loan requirements and features that should be similarly deemed 
``interest'' for purposes of this partial exemption. Alternatively, the 
Bureau seeks comment on whether such requirements and features should 
be permissible within the exemption on the grounds that the disclosure 
required by proposed Sec.  1026.3(h)(6) is sufficient to inform 
consumers of such loan terms.
    Proposed comments provide additional guidance. Proposed comment 
3(h)-1 notes that transactions that meet the requirements of Sec.  
1026.3(h) are exempt from only the integrated disclosure requirements 
and not from any other applicable requirement of Regulation Z. The 
comment further clarifies that Sec.  1026.3(h)(6) requires the creditor 
to comply with the disclosure requirements of Sec.  1026.18, even if 
the creditor would not otherwise be subject to that section because of 
proposed Sec.  1026.19(e), (f), and (g). In addition, the comment notes 
that the consumer also has the right to rescind the transaction under 
Sec.  1026.23, to the extent that provision is applicable.
    Proposed comment 3(h)-2 explains that the conditions that the 
transaction not require the payment of interest under Sec.  
1026.3(h)(3) and that repayment of the amount of credit extended be 
forgiven or deferred in accordance with Sec.  1026.3(h)(4) must be 
evidenced by terms in the credit contract. The comment further 
clarifies that, although the other conditions need not be reflected in 
the credit contract, the creditor must retain evidence of compliance 
with those requirements, as required by Sec.  1026.25(a). The Bureau

[[Page 51143]]

solicits comment on whether this exemption should be adopted in 
Regulation Z.
Section 1026.4 Finance Charge
TILA's Approach to the Finance Charge
    Section 106(a) of TILA defines the finance charge as ``the sum of 
all charges, payable directly or indirectly by the person to whom the 
credit is extended, and imposed directly or indirectly by the creditor 
as an incident to the extension of credit,'' excluding charges of a 
type payable in a comparable cash transaction. 15 U.S.C. 1605(a). 
Despite this broad general definition of the finance charge, TILA 
contains numerous exceptions. For example, TILA generally includes in 
the finance charge credit insurance and property and liability 
insurance charges or premiums, but it also excludes such amounts if 
certain conditions are met. 15 U.S.C. 1605(b), (c); TILA section 
106(b), (c). TILA also specifically excludes from the finance charge 
certain charges related to the perfecting of the security interest, and 
various fees in connection with loans secured by real property, such as 
title examination fees, title insurance premiums, fees for preparation 
of loan-related documents, escrows for future payment of taxes and 
insurance, notary fees, appraisal fees, pest and flood-hazard 
inspection fees, and credit report fees. 15 U.S.C. 1605(d), (e); TILA 
section 106(d), (e). Such amounts would otherwise be included in the 
finance charge under the general definition.
Current Regulatory Approach to the Finance Charge
    Current Sec.  1026.4 implements TILA section 106 by largely 
mirroring the statutory definition of finance charge and the specific 
exclusions from that definition. In addition, Sec.  1026.4 contains 
certain exclusions from the finance charge that are not specifically 
listed in the statute. For example, current Sec.  1026.4(c) 
specifically excludes application fees and forfeited interest from the 
definition of finance charge, whereas TILA does not.
    There are longstanding concerns about the ``some fees in, some fees 
out'' approach to the finance charge in TILA and Regulation Z. Early 
concerns about the problems with this approach to the finance charge 
are outlined in the Board-HUD Joint Report. Board-HUD Joint Report at 
10. The Board-HUD Joint Report states that a fundamental problem with 
the finance charge is that the ``cost of credit'' has different 
meanings from the perspective of the consumer and the creditor. Id. 
From the creditor's perspective, the cost of credit may mean the 
interest and fee income that the creditor receives in exchange for 
providing credit to the consumer. Id. However, the consumer views the 
cost of credit as what the consumer pays for the credit, regardless of 
the persons to whom such amounts are paid. Id. The current ``some fees 
in, some fees out'' approach to the finance charge largely reflects the 
creditor's perspective, not the consumer's.
    In its 2009 Closed-End Proposal, the Board proposed to broaden the 
definition of the finance charge in closed-end transactions secured by 
real property or a dwelling, citing the Board-HUD Joint Report and 
consumer testing conducted by the Board as support for an expanded 
approach to the finance charge. 74 FR 43232, 43243 (Aug. 26, 2009). 
First, the Board reasoned that excluding certain fees from the finance 
charge undermines the effectiveness of the APR as a measure of the true 
cost of credit. Id. Second, the Board's 2009 Closed-End Proposal stated 
that the numerous exclusions from the finance charge encourage lenders 
to shift the cost of credit to excluded fees. Id. This practice 
undermines the usefulness of the APR and has resulted in the creation 
of new so-called ``junk fees,'' such as fees for preparing loan-related 
documents, which are not part of the finance charge. Third, the Board 
cited the complexity of the implementing rules, which create 
significant regulatory burden and litigation risk, as support for a 
simplified definition of the finance charge. Id.
    In light of these concerns about the finance charge, for closed-end 
credit transactions secured by real property or a dwelling, the Board's 
2009 Closed-End Proposal would have replaced the ``some fees in, some 
fees out'' approach to the finance charge with a more inclusive 
approach to ensure that the finance charge and corresponding APR 
disclosed to consumers provides a more complete and useful measure of 
the cost of credit. The Board did not finalize its proposal prior to 
the transfer of its TILA rulemaking authority to the Bureau.
The Bureau's Proposal
    For the reasons set forth in the Board's 2009 Closed-End Proposal, 
discussed above, proposed Sec.  1026.4 revises the test for determining 
the finance charge. Except where otherwise noted, the Bureau's proposal 
generally mirrors the Board's 2009 Closed-End Proposal. Pursuant to its 
authority under TILA section 105(a) and (f), Dodd-Frank Act section 
1032(a), and, for residential mortgage loans, Dodd-Frank Act section 
1405(b), the Bureau is proposing to amend Sec.  1026.4 to replace the 
current ``some fees in, some fees out'' approach to the finance charge 
with a simpler, more inclusive test based on the general definition of 
finance charge in TILA section 106(a). 15 U.S.C. 1601 note; 1604(a), 
(f); 12 U.S.C. 5532(a). The proposed changes to Sec.  1026.4 apply to 
closed-end transactions secured by real property or a dwelling, and are 
not limited to transactions subject to proposed Sec.  1026.19(e) and 
(f).
    Under proposed Sec.  1026.4, the current exclusions from the 
finance charge would be largely eliminated, for closed-end transactions 
secured by real property or a dwelling. Specifically, under the 
proposed test, a fee or charge is included in the finance charge if it 
is (1) ``payable directly or indirectly by the consumer'' to whom 
credit is extended, and (2) ``imposed directly or indirectly by the 
creditor as an incident to or a condition of the extension of credit.'' 
However, the finance charge would continue to exclude fees or charges 
paid in comparable cash transactions. The proposed rule also retains a 
few narrow exclusions from the finance charge. As discussed below, 
proposed Sec.  1026.4 continues to exclude from the finance charge late 
fees and similar default or delinquency charges, seller's points, 
amounts required to be paid into escrow accounts if the amounts would 
not otherwise be included in the finance charge, and premiums for 
property and liability insurance if certain conditions are met.
    The Bureau proposes Sec.  1026.4 pursuant to its authority under 
TILA section 105(a) and (f), Dodd-Frank-Act section 1032(a), and, for 
residential mortgage loans, Dodd-Frank Act section 1405(b). The Bureau 
has considered the purposes for which it may exercise its authority 
under TILA section 105(a) and, based on that review, believes that the 
proposed adjustments and exceptions are appropriate. The proposal would 
effectuate TILA's purpose by better informing consumers of the total 
cost of credit and prevent circumvention or evasion of the statute 
through the unbundling or shifting of the cost of credit from items 
that are included in the finance charge to fees or charges that are 
currently excluded from the finance charge. The Bureau has considered 
the factors in TILA section 105(f) and believes that, for the reasons 
discussed above, an exception is appropriate under that provision. 
Specifically, the Bureau believes that the proposed exemption is 
appropriate for all affected borrowers, regardless of their other 
financial arrangements and financial sophistication and the

[[Page 51144]]

importance of the loan to them. Similarly, the Bureau believes that the 
proposed exemption is appropriate for all affected loans, regardless of 
the amount of the loan and whether the loan is secured by the principal 
residence of the consumer. Furthermore, the Bureau believes that, on 
balance, the proposed exemption will simplify the credit process 
without undermining the goal of consumer protection or denying 
important benefits to consumers. A more inclusive approach to the 
finance charge may improve the process of mortgage lending by enhancing 
consumer understanding of the finance charge and APR, and will also 
reduce compliance costs. The Bureau does not believe that the proposed 
exemptions undermine the goal of consumer protection; rather they 
promote and are more consistent with the overall purposes of TILA. 
Based on that review, the Bureau believes that treating the fees that 
are currently exempt as part of the finance charge, for closed-end 
transactions secured by real property or a dwelling, is appropriate.
    In addition, for the reasons set forth above, the proposed changes 
to the finance charge will ensure that the features of consumer credit 
transactions secured by real property are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to understand the costs, benefits, and risks associated with the 
product or service, in light of the facts and circumstances, consistent 
with section 1032(a) of the Dodd-Frank Act. Finally, for closed-end 
transactions secured by real property or a dwelling that are also 
residential mortgage loans as defined in TILA section 103(cc)(5), the 
Bureau proposes Sec.  1026.4 pursuant to its authority under Dodd-Frank 
Act section 1405(b). For the reasons set forth above, including 
avoiding consumer confusion and preventing the unbundling of the cost 
of credit, the Bureau believes this proposed modification may improve 
consumer understanding, and therefore is in the interest of consumers 
and the public.
    Industry feedback in response to the Bureau's Small Business Review 
Panel Outline raised concerns about the usefulness of the proposed 
expansion of the finance charge in light of the Bureau's proposal to 
deemphasize the finance charge and APR in the disclosures provided to 
consumers within three days of the consumers' application and prior to 
consummation, as discussed below in the section-by-section analysis for 
proposed Sec. Sec.  1026.37(l) and 1026.38(o). The Bureau has 
considered this feedback in developing the proposed rule, but 
nevertheless believes that, in addition to benefiting industry by 
simplifying the finance charge and APR calculation, the proposed 
approach could provide important benefits to consumers in the form of 
an APR that better reflects the true cost of credit. The Bureau intends 
to develop supplemental educational materials to further explain how to 
use the finance charge and APR in comparing loan costs over the long 
term. Accordingly, the Bureau's proposal to remove exclusions from the 
finance charge is one of several ways the Bureau intends to improve the 
disclosure as a useful measure for consumers.
    The Bureau recognizes that the proposed more inclusive finance 
charge could affect coverage under other laws, such as higher-priced 
mortgage loan and HOEPA protections, and that a more inclusive finance 
charge has implications for the HOEPA, Escrow, Appraisals, and Ability 
to Repay rulemakings identified in part II.F above. Absent further 
action by the Bureau, the more inclusive finance charge would:
     Cause more closed-end loans to trigger HOEPA protections 
for high-cost loans.\120\ The protections include special disclosures, 
restrictions on certain loan features and lender practices, and 
strengthened consumer remedies. The more inclusive finance charge would 
affect both the points and fees test (which currently uses the finance 
charge as its starting point) and the APR test (which under Dodd-Frank 
will depend on comparisons to APOR) for defining what constitutes a 
high-cost loan.
---------------------------------------------------------------------------

    \120\ Under the Dodd-Frank Act, a loan is defined as a high-cost 
mortgage, subject to HOEPA protections, if the total points and fees 
payable in connection with the transaction exceed specified 
thresholds (points and fees coverage test); the transaction's APR 
exceeds the applicable APOR by a specified threshold (APR coverage 
test); or the transaction has certain prepayment penalties. First, 
under the points and fees coverage test, the definition of points 
and fees includes, as its starting point, all items included in the 
finance charge. Therefore, a potential consequence of the more 
inclusive finance charge is that more loans might exceed HOEPA's 
points and fees threshold because new categories of charges would be 
included in the calculation of total points and fees for purposes of 
that coverage test. In addition, under the APR coverage test, the 
more inclusive finance charge could result in some additional loans 
being covered as high-cost mortgages because closed-end loans would 
have higher APRs. There are currently some differences between APR 
and the average prime offer rate, which is generally calculated 
using data that includes only contract interest rate and points but 
not other origination fees. See 75 FR 58660-58662. The current APR 
includes not only discount points and origination fees but also 
other charges the creditor retains and certain third-party charges. 
The more inclusive finance charge, which would also include most 
third-party charges, would widen the disparity between the APR and 
APOR and cause more closed-end loans to qualify as a high-cost 
mortgage. The Bureau notes that substantially similar implications 
would apply to each respective rulemaking in which coverage depends 
on comparing a transaction's APR to the applicable APOR. In 
addition, the Bureau notes that the Dodd-Frank Act expands HOEPA to 
apply to more types of mortgage transactions, including purchase 
money mortgage loans and open-end credit plans secured by a 
consumer's principal dwelling. However, the proposed more inclusive 
finance charge applies only to closed-end loans. Therefore, the 
Bureau notes that the more inclusive finance charge would not affect 
the potential coverage of open-end credit plans under HOEPA.
---------------------------------------------------------------------------

     Cause more loans to trigger Dodd-Frank Act requirements to 
maintain escrow accounts for first-lien higher-priced mortgage loans. 
Coverage depends on comparing a transaction's APR to the applicable 
APOR.
     Cause more loans to trigger Dodd-Frank Act requirements to 
obtain one or more interior appraisals for ``higher-risk'' mortgage 
loans. Coverage depends on comparing a transaction's APR to the 
applicable APOR.
     Reduce the number of loans that would otherwise be 
``qualified mortgages'' under the Dodd-Frank Act Ability to Repay 
requirements, given that qualified mortgages cannot have points and 
fees in excess of three percent of the loan amount. Also, more loans 
could be required to comply with separate underwriting requirements 
applicable to higher-priced balloon loans, and could be ineligible for 
certain exceptions authorizing creditors to offer prepayment penalties 
on fixed-rate, non-higher-priced qualified mortgage loans.\121\ Again, 
status as a higher-priced mortgage loan depends on comparing APR to 
APOR.
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    \121\ Specifically, the Dodd-Frank Act generally prohibits 
prepayment penalties on closed-end, dwelling-secured mortgage loans, 
except on fixed-rate qualified mortgages that are not higher-priced 
mortgage loans. For balloon loans, the Dodd-Frank Act generally 
requires creditors to assess consumers' ability to repay a higher-
priced loan with a balloon payment using the scheduled payments 
required under the terms of the loan including any balloon payment, 
and based on income and assets other than the dwelling itself. Only 
consumers with substantial income or assets would likely qualify for 
such a loan. A separate Dodd-Frank Act provision authorizing balloon 
loans made by creditors that operate predominantly in rural or 
underserved areas is not affected by the finance charge issue.
---------------------------------------------------------------------------

    During the Small Business Review Panel and in industry feedback 
provided in response to the Small Business Review Panel Outline, 
concerns were expressed that one unintended consequence of a more 
inclusive definition of finance charge could be that more loans would 
qualify as high-cost loans subject to additional requirements under 
TILA section 129 and under similar State laws. See Small Business 
Review Panel Report at 25. Industry feedback generally suggests that 
the proposed revisions to the

[[Page 51145]]

finance charge be viewed in the context of other rulemakings 
implementing the Dodd-Frank Act revisions to the thresholds for high-
cost mortgages and qualified mortgage determinations, because of the 
relationship between the APR and those thresholds and because any 
changes to the APR calculation could be costly to implement and should 
be done in conjunction with other related changes.
    Based on this feedback and consistent with the Small Business 
Review Panel's recommendation, the Bureau has considered the 
requirements of TILA section 129 (high-cost mortgages) and TILA section 
129C (qualified mortgages), including the Dodd-Frank Act amendments to 
those provisions, as well as State predatory lending laws, in proposing 
the amendments to Sec.  1026.4. For example, the Board previously 
proposed two means of reconciling an expanded definition of the finance 
charge with existing thresholds for loan APR and points and fees, and 
the Bureau expects to seek comment on potential trigger modifications 
in each proposal it issues as discussed below. The Bureau will consider 
any final or proposed rules implementing those provisions prior to 
issuing a final rule on this issue. See Small Business Review Panel 
Report at 30.
    As described in the Sec.  1022 analysis below, the Bureau is 
seeking data that will allow it to perform a quantitative analysis to 
determine the impacts of a broader finance charge definition on APR 
thresholds for HOEPA and various other regimes.\122\ The Bureau seeks 
comment on its plans for data analysis, as well as additional data and 
comment on the potential impacts of a broader finance charge definition 
and potential modifications to the triggers.
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    \122\ In its 2009 Closed-End Proposal, the Board relied on a 
2008 survey of closing costs conducted by Bankrate.com that contains 
data for hypothetical $200,000 loans in urban areas. Based on that 
data, the Board estimated that the share of first-lien refinance and 
home improvement loans that are subject to HOEPA would increase by 
.6 percent if the definition of finance charge was expanded. The 
Bureau is considering the 2010 version of that survey, but as 
described below the Bureau is also seeking additional data that 
would provide more representative information regarding closing and 
settlement costs that would allow for a more refined analysis of the 
proposals.
---------------------------------------------------------------------------

    The Bureau is carefully weighing whether modifications may be 
warranted to the thresholds for particular regulatory regimes to 
approximate coverage levels under the current definition of finance 
charge. It is not clear from the legislative history of the Dodd-Frank 
Act whether Congress was aware of the Board's 2009 Closed-End Proposal 
to expand the current definition of finance charge or whether Congress 
considered the interplay between an expanded definition and coverage 
under various thresholds addressed in the Dodd-Frank Act. In light of 
this fact and the concerns raised by commenters on the Board's 2009 
Closed-End Proposal regarding effects on access to credit, the Bureau 
believes that it is appropriate to explore alternatives to 
implementation of the expanded finance charge definition for purposes 
of coverage under HOEPA and other regulatory regimes.
    For example, the Board previously proposed two means of reconciling 
an expanded definition of the finance charge with existing APR-based 
thresholds. On several occasions, the Board proposed to replace the APR 
with a ``transaction coverage rate'' as a transaction-specific metric a 
creditor compares to the average prime offer rate to determine whether 
the transaction meets the higher-priced loan threshold in Sec.  
1026.35(a). See 76 FR 27390, 27411-12 (May 11, 2011); 76 FR 11598, 
11608-09 (Mar. 2, 2011); 75 FR 58539, 58660-61 (Sept. 24, 2010).\123\ 
Although adopting the TCR would mean that lenders would have to 
calculate one metric for purposes of disclosure and another for 
purposes of regulatory coverage, both metrics would be simpler to 
compute than APR today using the current definition of finance 
charge.\124\ In addition, the Board proposed to amend Sec.  1026.32 to 
retain the existing treatment of certain charges in the definition of 
points and fees for purposes of determining HOEPA coverage. 75 FR at 
58539, 58636-38 (Sept. 24, 2010). The Bureau has proposed language to 
adopt the transaction coverage rate and to exclude the additional 
charges from the HOEPA points and fees test in its 2012 HOEPA Proposal. 
The Bureau has proposed language to adopt the transaction coverage rate 
and to exclude the additional charges from the HOEPA points and fees 
test in its 2012 HOEPA Proposal. The Bureau seeks comment on these 
prior proposals and other potential methods of addressing the impact of 
a more inclusive approach to the finance charge on other regimes.
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    \123\ The transaction coverage rate would be determined in 
accordance with the applicable rules of Regulation Z for the 
calculation of the annual percentage rate for a closed-end 
transaction, except that the prepaid finance charge for purposes of 
calculating the transaction coverage rate includes only charges that 
will be retained by the creditor, mortgage broker, or affiliates of 
either. The wording of the Board's proposed definition of 
``transaction coverage rate'' varied slightly between the 2010 
Mortgage Proposal and the 2011 Escrows Proposal as to treatment of 
charges retained by mortgage broker affiliates. In its 2012 HOEPA 
Proposal, the Bureau proposes to use the 2011 Escrows Proposal 
version, which would include charges retained by broker affiliates. 
The Bureau believes that this approach is consistent with the 
rationale articulated by the Board in its earlier proposals and with 
certain other parts of the Dodd-Frank Act that distinguish between 
charges retained by the creditor, mortgage broker, or affiliates of 
either company. See, e.g., Dodd-Frank Act sections 1403, 1411(a).
    \124\ To the extent that lenders believe that it is burdensome 
to calculate two metrics, they could continue to use APR for both 
purposes.
---------------------------------------------------------------------------

    The Bureau also seeks comment on the potential advantages and 
disadvantages to both consumers and creditors of using different 
metrics for purposes of disclosures and for purposes of determining 
coverage of various regulatory regimes. With regard to the transaction 
coverage rate, the Bureau believes that the potential compliance burden 
is mitigated by the fact that both TCR and APR would be easier to 
compute than the APR today using the current definition of finance 
charge. However, the Bureau seeks comment on the issue generally and in 
particular on whether use of the TCR or other trigger modifications 
should be optional, so that creditors could use the broader definition 
of finance charge to calculate APR and points and fees triggers if they 
would prefer. The Board's 2010 Mortgage Proposal structured TCR as a 
mandatory requirement out of concern that identical transactions 
extended by two different creditors could have inconsistent coverage 
under regulations governing higher-priced mortgage loans, but similarly 
sought comment on the issue.
    Finally, the Bureau also seeks comment on the timing of 
implementation. There is no statutory deadline for issuing final rules 
to integrate the mortgage disclosures under TILA and RESPA, and the 
Bureau expects that it may take some time to conduct quantitative 
testing of the forms prior to issuing final rules. However, the Bureau 
expects to issue several final rules to implement provisions of title 
XIV of the Dodd-Frank Act by January 21, 2013, that address thresholds 
for compliance with various substantive requirements under HOEPA and 
other Dodd-Frank Act provisions. In some cases the Dodd-Frank Act 
requires that regulations implementing title XIV take effect within one 
year of issuance.
    The Bureau believes that it would be preferable to make any change 
to the definition of finance charge and any related adjustments in 
regulatory triggers take effect at the same time, in order to provide 
for consistency and efficient systems modification. The Bureau also 
believes that it may be advantageous to consumers and creditors to make 
any such changes at

[[Page 51146]]

the same time that creditors are implementing new title XIV 
requirements involving APR and points and fees thresholds, rather than 
waiting until the Bureau finalizes other aspects of this rulemaking 
relating to disclosures. If the Bureau expands the definition of 
finance charge, this approach would likely provide the benefits to 
consumers of the final rule at an earlier date as well as avoid 
requiring creditors to make two sets of systems and procedures changes 
focused on determining which loans trigger particular regulatory 
requirements. However, given that implementation of the disclosure-
related elements of this proposal will also require systems and 
procedures changes, there may be advantages to delaying any change in 
the definition of finance charge and any related adjustments to 
regulatory triggers until those changes occur. The Bureau therefore 
seeks comment on whether to sequence any change in the proposal 
considering the benefits and costs to both consumers and industry of 
both approaches.
    In light of these implementation issues, the Bureau wishes to 
evaluate comments on the cumulative effect of an expanded definition of 
the finance charge simultaneously with comments on the rules to 
implement title XIV. The Bureau therefore is providing a comment period 
of 60 days for the proposed amendments to Sec.  1026.4, rather than the 
120-day comment period provided for all other aspects of this proposed 
rule other than Sec.  1026.1(c). The Bureau believes a shorter comment 
period is particularly appropriate given that this aspect of the 
proposal largely mirrors the proposed changes to Sec.  1026.4 in the 
Board's 2009 Closed-End Proposal.
4(a) Definition
    Section 1026.4 states the basic test for the finance charge, as set 
forth in TILA section 106(a), and specifies that it does not include 
types of charges payable in a comparable cash transaction. Consistent 
with the Board's 2009 Closed-End Proposal, the Bureau is proposing new 
comment 4(a)-6 to clarify that, in a transaction where there is no 
seller, such as a refinancing of an existing extension of credit 
described in Sec.  1026.20(a), there is no comparable cash transaction 
and, therefore, the exclusion from the finance charge in proposed Sec.  
1026.4(a) for types of charges payable in a comparable cash transaction 
does not apply to such transactions. The Bureau solicits comment on 
this proposed clarification.
4(a)(2) Special Rule; Closing Agent Charges
    Section 1026.4(a)(2) provides a special rule for the treatment of 
closing agent charges in determining the finance charge. That section 
excludes from the finance charge fees charged by a third party that 
conducts a loan closing unless the creditor (1) requires the particular 
service for which the consumer is charged; (2) requires the imposition 
of the charge; or (3) retains a portion of the third-party charge. 
Under proposed Sec.  1026.4(a)(2), this exclusion is inapplicable to 
closed-end transactions secured by real property or a dwelling. Under 
the basic test for the finance charge in TILA section 106(a), many 
closing agent charges described in Sec.  1026.4(a)(2) would typically 
be part of the finance charge because creditors generally require 
closing agents to conduct closings who, in turn, impose various fees on 
the consumer. As the Board described in its 2009 Closed-End Proposal, 
in some cases, the creditor clearly requires the particular fee charged 
by the closing agent but that, in other cases, it is not clear whether 
a charge is specifically required by the creditor. A case-by-case 
determination as to whether the creditor requires the particular 
service charged by a closing agent would result in significant burden 
and risk for consumers and, likely, inconsistent treatment of such 
fees, which would undermine the purpose of disclosing the finance 
charge to consumers. 74 FR at 43246. For these reasons, proposed Sec.  
1026.4(a)(2) adopts a bright-line rule that includes in the finance 
charge fees charged by closing agents, including fees of other third 
parties hired by closing agents to perform particular services, 
assuming those fees meet the general definition of finance charge and 
that no other exclusion applies. Proposed comment 4(a)(2)-3 clarifies 
that comments 4(a)(2)-1 and 4(a)(2)-2 do not apply to closed-end 
transactions secured by real property or a dwelling.
    As the Board noted in its 2009 Closed-End Proposal, the inclusion 
of third-party charges in the finance charge may create some risk that 
creditors will understate the finance charge if the creditor does not 
know that a charge is imposed by a third party or the particular amount 
of such charge. 74 FR at 43246. Some industry commenters in response to 
the 2009 Closed-End Proposal supported the inclusion of all closing 
agent charges in the finance charge as a means of simplifying 
compliance. Other industry commenters opposed the inclusion of all 
closing agent charges in the finance charge due to the creditor's lack 
of control over these charges, and also because including these amounts 
in the finance charge makes creditors responsible for settlement fees 
under TILA. The Bureau has considered these comments in developing the 
proposed rule, but believes that a determination of whether a creditor 
requires the particular service for which the consumer is charged 
results in significant confusion for consumers and inconsistent 
treatment of such fees. In addition, as discussed below, the Dodd-Frank 
Act added to TILA a requirement that creditors disclose aggregate 
settlement charges, so that creditors now have a statutory disclosure 
responsibility for such charges under TILA. Furthermore, creditors are 
responsible for disclosing settlement charges subject to certain 
estimation requirements and limitations on increases in settlement 
costs pursuant to HUD's 2008 RESPA Final Rule and proposed Sec.  
1026.19(e), discussed below. The Bureau also notes that the risk of 
understating the finance charge is lessened by TILA section 106(f), 15 
U.S.C. 1605(f), current Sec.  1026.18(d)(1), and proposed Sec.  
1026.38(o)(2), which provide that a disclosed finance charge is treated 
as accurate if it does not vary from the actual finance charge by more 
than $100 or is greater than the amount required to be disclosed. The 
Bureau requests comment on the extent to which settlement costs 
increase from the good faith estimate to closing and whether the Bureau 
should increase the finance charge tolerance for closed-end 
transactions secured by real property or a dwelling in light of the 
proposal to include third-party charges in the finance charge, and the 
amount of any such increase.
    In addition, the Board's 2009 Closed-End Proposal stated that 
excluding certain fees from the finance charge because they are 
voluntary or optional is inconsistent with the statutory objective of 
disclosing the ``cost of credit,'' including charges imposed ``as an 
incident to the extension of credit.'' 74 FR at 43246. As the Board 
noted, an assumption underlying the exclusion from the finance charge 
for certain voluntary or optional charges is that they are not 
``imposed directly or indirectly by the creditor.'' Id. However, some 
charges may be imposed by the creditor even if the services for which 
the fee is imposed are not specifically required by the creditor. Id. 
For example, a creditor may require the use of a closing agent, but may 
not impose or require certain fees or services imposed by that closing 
agent for which

[[Page 51147]]

the consumer is charged, such as administration fees for voluntary 
escrow accounts. Excluding such charges from the finance charge 
conflicts with the statutory purpose of including charges that are 
imposed ``as an incident to the extension of credit.''
    The Board historically interpreted the definition of ``finance 
charge'' as not dependent on whether a charge is voluntary or required. 
See, e.g., 61 FR 49237, 49239 (Sept. 19, 1996) (``The Board has 
generally taken a case by case approach in determining whether 
particular fees are `finance charges' and does not interpret Regulation 
Z to automatically exclude all `voluntary' charges from the finance 
charge.''). This approach is reflected in current Regulation Z's 
treatment of voluntary credit insurance premiums and debt cancellation 
fees, which are by definition voluntary, as excluded from the finance 
charge only under certain circumstances. This special rule presupposes 
that voluntary credit insurance and debt cancellation charges would be 
included in the finance charge under the general definition.
    Furthermore, excluding certain fees from the finance charge because 
they are voluntary or optional requires a factual determination, which 
is not practical in all cases since it may be difficult to determine 
whether a fee or charge is truly voluntary. The Board's 2009 Closed-End 
Proposal cited the current provisions addressing whether a charge for 
credit insurance is optional as an example of an approach to defining a 
voluntariness test that has proven unsatisfactory. Id. For this reason, 
the Bureau proposes a bright-line rule to include in the finance charge 
both voluntary and required charges that are imposed by the creditor to 
avoid fact-based analysis and improve consistency in disclosure of the 
finance charge and APR.
    The Board cited as another basis for the current exclusions from 
the finance charge the assumption that creditors cannot know the 
amounts of voluntary or optional charges at the time the finance charge 
and APR disclosures must be provided to consumers. Id. However, like 
the Board, the Bureau believes that creditors know the amounts of their 
own voluntary charges, if any, and that creditors know or can readily 
determine voluntary charges when disclosing the finance charge and APR 
to consumers at least three business days prior to consummation. As a 
practical matter, most voluntary fees would be excluded from the 
finance charge because they are also payable in a comparable cash 
transaction (e.g., home warranty fees). The Board cited voluntary 
credit insurance premiums as the primary voluntary third-party charge 
in connection with a mortgage transaction that is not otherwise 
excluded from the finance charge, noting that creditors generally 
solicit consumers for this insurance and that, historically, creditors 
had to disclose the premium for voluntary credit insurance to exclude 
such amounts from the finance charge. However, the Bureau solicits 
comment on whether there are voluntary third-party charges that would 
be included in the finance charge under the proposed more-inclusive 
approach the amounts of which cannot be determined three business days 
before consummation.
    The Bureau also recognizes that, within three business days of 
receiving the consumer's application, creditors may not know what 
voluntary or optional charges the consumer will incur. Regulation Z 
generally permits creditors to rely on reasonable assumptions regarding 
voluntary or optional charges and label those disclosures as estimates 
pursuant to Sec.  1026.17(c) and its commentary. The Bureau requests 
comment on whether further guidance is required regarding reasonable 
assumptions for the voluntary or optional charges.
4(b) Examples of Finance Charges
    The Bureau proposes to amend comment 4(b)-1 to be consistent with 
proposed Sec.  1026.4(g), which provides that the exclusions from the 
finance charge under Sec.  1026.4(a)(2) and (c) through (e), other than 
Sec.  1026.4(c)(2), (c)(5), (c)(7)(v), and (d)(2), do not apply to 
closed-end transactions secured by real property or a dwelling, as 
discussed below.
4(c) Charges Excluded From the Finance Charge
    The Bureau proposes to amend Sec.  1026.4(c), which lists specific 
exclusions from the finance charge, to be consistent with proposed 
Sec.  1026.4(g). Pursuant to proposed Sec.  1026.4(g), the exclusions 
in Sec.  1026.4(c), other than the exclusion for late fees, exceeding a 
credit limit, and default, delinquency, or similar charges, seller's 
points, and escrowed items that are otherwise not included in the 
finance charge, would not apply to closed-end transactions secured by 
real property or a dwelling. The Bureau also proposes to amend the 
commentary to Sec.  1026.4(c) to be consistent with Sec.  1026.4(g).
4(c)(2)
    The Bureau proposes to retain the exclusion from the finance charge 
under Sec.  1026.4(c)(2) of fees for actual unanticipated late payment, 
exceeding a credit limit, or for delinquency, default, or a similar 
occurrence. Although the Bureau is generally proposing a more inclusive 
approach to the finance charge through proposed Sec.  1026.4, the 
charges described in Sec.  1026.4(c)(2) should be excluded from the 
finance charge because they are incurred, if at all, only after 
consummation of the transaction. At the time a creditor must disclose 
the finance charge and other items affected by the finance charge, the 
creditor cannot know whether or how many times such charges may be 
imposed.
4(c)(5)
    The Bureau proposes to retain the exclusion from the finance charge 
under Sec.  1026.4(c)(5) of seller's points. Seller's points include 
any charges imposed by the creditor upon the non-creditor seller of 
property for providing credit to the buyer or for providing credit on 
certain terms. Although the Bureau is generally proposing a more 
inclusive approach to the finance charge, the Bureau believes that it 
is appropriate to continue to exclude seller's points from the finance 
charge because seller's points are not payable by the consumer and 
because the extent to which seller's points are passed on to the 
consumer in the form of a higher sales price is unknown. However, the 
Bureau requests comment on whether seller's points should be included 
in the finance charge for closed-end transactions secured by real 
property or a dwelling. In particular, the Bureau requests comment on 
the frequency with which seller's points are passed on to the borrower 
through a higher sales price. In addition, although the scope of the 
changes to Sec.  1026.4 under this proposal is limited to closed-end 
transactions secured by real property or a dwelling, the Bureau 
solicits comment on the potential ramifications of including seller's 
points in the finance charge for other types of credit.
4(c)(7) Real-Estate Related Fees
    Section 106(e) of TILA, 15 U.S.C. 1605(e), excludes certain charges 
from the finance charge for credit secured by an interest in real 
property. This provision is implemented in current Sec.  1026.4(c)(7), 
which contains exclusions from the finance charge that generally mirror 
the statute, for transactions secured by real property or in 
residential mortgage transactions, provided that the fees for such 
charges are bona fide and reasonable in amount. Specifically, Sec.  
1026.4(c)(7) excludes from the finance charge those fees for: title 
examination, abstract of title, title insurance, property survey, and 
similar

[[Page 51148]]

purposes; preparing loan-related documents, such as deeds, mortgages, 
and reconveyance or settlement documents; notary and credit report 
fees; property appraisal or inspections to assess the value or 
condition of the property prior to closing, including pest-infestation 
or flood-hazard determination; and amounts required to be paid into 
escrow or trustee accounts if the amounts would not otherwise be 
included in the finance charge. These fees fall squarely within the 
general statutory definition of the finance charge, and their exclusion 
from the finance charge significantly undermines the purpose of the 
finance charge as a reflection of the cost of credit since the charges 
comprise a significant portion of the up-front costs paid by consumers. 
As noted by some industry commenters to the 2009 Closed-End Proposal, 
the inclusion of real-estate related fees such as application, 
appraisal, and credit report fees in the finance would reduce the 
possibility that a creditor can manipulate the APR by shifting some 
costs of credit to fees that are currently excluded from the finance 
charge. Some commenters also noted that these charges are generally 
known to the creditor early in the loan process. Accordingly, proposed 
Sec.  1026.4 includes these charges in the finance charge.
    However, proposed Sec.  1026.4 retains the exclusion from the 
finance charge in current Sec.  1026.4(c)(7)(v) for amounts required to 
be paid into escrow or trustee accounts if the amounts would not 
otherwise be included in the finance charge. For example, homeowner's 
insurance premiums that are excluded from the finance charge pursuant 
to Sec.  1026.4(d)(2) would not be included in the finance charge 
simply because such premiums will be paid into an escrow account.
    Under the Board's 2009 Closed-End Proposal, Sec.  1026.4(c)(7) 
would have applied only to open-end credit plans secured by real 
property or open-end residential mortgage transactions. Some commenters 
interpreted that proposal to mean that amounts required to be paid into 
escrow or trustee accounts should be included in the finance charge 
calculation, even if such amounts would not otherwise be included in 
the finance charge if not paid into an escrow or trustee account. 
Concerns about including escrowed taxes and insurance in the finance 
charge were raised during the Small Business Review Panel (see Small 
Business Review Panel Report at 30), in industry feedback provided in 
response to the Small Business Review Panel Outline, and in comment 
letters provided to the Board in response to the 2009 Closed-End 
Proposal. The Small Business Review Panel specifically recommended that 
escrowed taxes and insurance remain excluded from the finance charge, 
unless those amounts would otherwise be considered finance charges 
under the expanded definition. Small Business Review Panel Report at 
30. Commenters to the 2009 Closed-End Proposal noted that including 
escrowed taxes and insurance in the finance charge while excluding 
those paid outside of escrow may mislead consumers who try to compare 
escrowed and non-escrowed loans. Commenters also noted that the APR for 
identical loans could be vastly different because the escrow deposit is 
calculated based on the date the loan closes and when the next tax 
payment is due. Based on this feedback and consistent with the Small 
Business Review Panel's recommendation, the Bureau is proposing to 
exclude escrowed taxes and insurance from the finance charge, unless 
those amounts would otherwise be considered finance charges under the 
expanded definition. In short, a fee or charge that is not part of the 
finance charge does not become part of the finance charge merely 
because it is paid to an escrow account.
    Accordingly, proposed comment 4(c)(7)-1 clarifies that the 
exclusion of escrowed amounts under Sec.  1026.4(c)(7)(v) applies to 
all residential mortgage transactions and to other transactions secured 
by real estate. The Bureau also proposes other amendments to the 
commentary to Sec.  1026.4(c)(7) to be consistent with proposed Sec.  
1026.4(g).
4(d) Insurance and Debt Cancellation and Debt Suspension Coverage
    The Bureau proposes to amend Sec.  1026.4(d), which currently 
excludes from the finance charge, under certain circumstances, 
voluntary credit insurance premiums, property insurance premiums, and 
voluntary debt cancellation or debt suspension fees. Consistent with 
proposed Sec.  1026.4(g), proposed Sec.  1026.4(d) would not exclude 
from the finance charge credit insurance premiums and debt cancellation 
or debt suspension fees, for closed-end mortgage transactions. The 
Bureau also proposes to amend the commentary to Sec.  1026.4(d) to be 
consistent with Sec.  1026.4(g).
4(d)(1) Voluntary Credit Insurance Premiums
4(d)(3) Voluntary Debt Cancellation or Debt Suspension Fees
    TILA section 106(b)(7), 15 U.S.C. 1605(b)(7), provides that 
premiums for credit life, accident, or health insurance written in 
connection with any consumer credit transaction are part of the finance 
charge unless (1) the coverage is not a factor in the approval by the 
creditor of the extension of credit, and this fact is clearly disclosed 
in writing to the consumer; and (2) to obtain the insurance, the 
consumer specifically requests the insurance after getting the 
disclosures. Current Sec.  1026.4(d)(1) and (d)(3) implement this 
provision by providing that the creditor may exclude from the finance 
charge any premium for credit life, accident, health or loss-of-income 
insurance; any charge or premium paid for debt cancellation coverage 
for amounts exceeding the value of the collateral securing the 
obligation; or any charge or premium for debt cancellation or debt 
suspension coverage in the event of loss of life, health, or income or 
in case of accident, whether or not the coverage is insurance, if (1) 
the insurance or coverage is not required by the creditor and the 
creditor discloses this fact in writing, (2) the creditor discloses the 
premium or charge for the initial term of the insurance or coverage, 
(3) the creditor discloses the term of insurance or coverage, if the 
term is less than the term of the credit transaction, and (4) the 
consumer signs or initials an affirmative written request for the 
insurance or coverage after receiving the required disclosures. In 
addition, under Sec.  1026.4(d)(3)(iii), the creditor must disclose, 
for debt suspension coverage, the fact that the obligation to pay loan 
principal and interest is only suspended, and that interest will 
continue to accrue during the period of suspension.
    Proposed Sec.  1026.4(d)(1) and (3) includes credit insurance and 
debt cancellation charges in the finance charge for closed-end 
transactions secured by real property or a dwelling to be consistent 
with Sec.  1026.4(g). Proposed Sec.  1026.4(d) is consistent with the 
overall proposed changes to Sec.  1026.4, which remove exclusions from 
the finance charge, to make the finance charge and APR more accurately 
reflect the cost of credit. As discussed above, the Bureau does not 
believe that a rule that excludes fees from the finance charge simply 
because they are ``voluntary'' is consistent with the statute, which 
says that the finance charge include charges ``imposed as an incident 
to the extension of credit,'' and that a determination of whether a fee 
is, in fact, voluntary simply has not been effective. As discussed 
above and as the Board noted in its 2009 Closed-End Proposal, the 
current test for defining

[[Page 51149]]

whether a charge for credit insurance and debt cancellation or 
suspension coverage is ``voluntary'' has proven unsatisfactory. See 74 
FR at 43246-50. Instead, the Bureau proposes a bright-line rule to 
include in the finance charge premiums for credit insurance and debt 
suspension fees. The Bureau also proposes to amend the commentary to 
Sec.  1026.4(d) to be consistent with Sec.  1026.4(g).
    Concerns were raised in industry feedback in response to the Small 
Business Review Panel Outline and in comment letters in response to the 
2009 Closed-End Proposal that voluntary charges such as credit 
insurance and debt cancellation fees should not be part of the finance 
charge because they are not ``imposed'' by the creditor. Commenters to 
the 2009 Closed-End Proposal also noted that the products are often 
sold after consummation of the transaction and that including fees for 
these products in the finance charge may confuse consumers into 
believing they are mandatory. The Bureau has considered this feedback 
in developing the proposed rule, but, as discussed above, believes that 
whether or not a fee is ``voluntary'' is not determinative of whether 
it is imposed as an ``incident to the extension of credit.'' Concerns 
that consumers might mistake voluntary charges for mandatory ones due 
to their inclusion in the finance charge are mitigated by the fact that 
(1) the TILA disclosures do not itemize the components of the finance 
charge or APR, and (2) for transactions secured by real property other 
than reverse mortgages, creditors must indicate that voluntary credit 
insurance or debt suspension, or cancellation fees are ``optional'' on 
the Loan Estimate provided to consumers within three business days of 
application and the Closing Disclosure provided three business days 
before consummation pursuant to proposed Sec.  1026.37(g)(4)(ii). 
Furthermore, existing commentary makes clear that credit insurance and 
debt cancellation and suspension products requested by the consumer 
after consummation are not considered written in connection with the 
credit transaction and therefore do not meet the basic test for 
inclusion in the finance charge. See comments 4(b)(7) and (b)(8)-2 and 
4(b)(1)-2.
4(d)(2) Property Insurance Premiums
    Section 106(c) of TILA, 15 U.S.C. 1605(c), provides that premiums 
for insurance, written in connection with any consumer credit 
transaction, against loss of or damage to property or against liability 
arising out of the ownership or use of property, should be included in 
the finance charge unless the creditor provides the consumer with a 
clear written statement that discloses the cost of such insurance if 
obtained from or through the creditor, and informs the consumer that he 
may choose his own insurance provider. Current Sec.  1026.4(d)(2) 
implements TILA section 106(c), and generally provides that such 
premiums may be excluded from the finance charge if (1) the insurance 
may be obtained from a person of the consumer's choice, and that fact 
is disclosed to the consumer, and (2) if the coverage is obtained from 
or through the creditor, the premium for the initial term of insurance 
coverage is disclosed.
    The Bureau proposes to retain the current exclusion from the 
finance charge under Sec.  1026.4(d)(2) for premiums for insurance 
against loss of or damage to property, or against liability arising out 
of the ownership or use of property. As the Board noted in its 2009 
Closed-End Proposal, property insurance is generally a hybrid product 
that protects both the value of the creditor's collateral and the 
consumer's equity in the property, such that it is impossible to 
segregate the premium into the portion that protects the creditor and 
the portion that protects the consumer. 74 FR at 43250. Although 
creditors generally require property insurance as a condition to 
extending credit secured by real property or a dwelling, consumers who 
do not have mortgages also regularly purchase property insurance to 
protect themselves from the risk of loss of or damage to property. Id. 
For these reasons, the Bureau proposes to retain the current exclusion 
from the finance charge under Sec.  1026.4(d)(2).
    The Bureau proposes to revise comment 4(d)-8 to conform it to the 
statutory language providing that, to be excluded from the finance 
charge, premiums for property insurance obtained ``from or through the 
creditor'' must be disclosed to the consumer. 15 U.S.C. 1605(c). 
Current Sec.  1026.4(d)(2) also provides that if coverage is obtained 
``from or through the creditor,'' the premium for the initial term must 
be disclosed. However, current comment 4(d)-8 states, in relevant part, 
that ``[t]he premium or charge must be disclosed only if the consumer 
elects to purchase the insurance from the creditor; in such a case, the 
creditor must also disclose the term of the property insurance coverage 
if it is less than the term of the obligation.'' (Emphasis added.) 
Accordingly, the Bureau proposes to amend comment 4(d)-8 to conform to 
the statutory language. In addition, proposed Sec.  1026.4(d)(2) and 
comment 4(d)-8 clarify that insurance is available ``from or through a 
creditor'' only if it is available from the creditor or the creditor's 
``affiliate,'' as that term is defined under the Bank Holding Company 
Act, 12 U.S.C. 1841(k). The Bank Holding Company Act defines an 
``affiliate'' as ``any company that controls, is controlled by, or is 
under common control with another company.'' Thus, if the consumer 
elects to purchase property insurance from a company that controls, is 
controlled by, or is under common control with the creditor, then the 
creditor is required to disclose the cost of the insurance and its 
term, if it is less than the term of the obligation, for the charge to 
be excluded from the finance charge.
4(e) Certain Security Interest Charges
    TILA section 106(d), 15 U.S.C. 1605(d), provides exclusions from 
the finance charge for certain government recording taxes and related 
fees and the premiums for any insurance in lieu of perfecting a 
security interest, provided those amounts are disclosed to the 
consumer. This provision is implemented in current Sec.  1026.4(e). 
Consistent with the overall approach to largely eliminate the specific 
exclusions from the finance charge for closed-end transactions secured 
by real property or a dwelling, the Bureau proposes to amend Sec.  
1026.4(e) to eliminate those exclusions, consistent with proposed Sec.  
1026.4(g). The Bureau believes this approach will better inform 
consumers of the total cost of credit and prevent circumvention or 
evasion of the statute through the unbundling of the cost of credit to 
fees or charges that are currently excluded from the finance charge. 
The Bureau also proposes to amend the commentary to Sec.  1026.4(e) to 
be consistent with Sec.  1026.4(g).
4(g) Special Rule for Closed-End Mortgage Transactions
    The Bureau proposes new Sec.  1026.4(g), which treats certain fees 
as part of the finance charge, for closed-end transactions secured by 
real property or a dwelling. Specifically, proposed Sec.  1026.4(g) 
provides that the exclusions from the finance charge in Sec.  
1026.4(a)(2) (closing agent charges) and (c) (fees for actual 
unanticipated late payment, exceeding a credit limit, or for 
delinquency, default, or similar occurrence), (d) (premiums for credit 
insurance and debt cancellation coverage), and (e) (certain security-
interest charges), other than Sec.  1026.4(c)(2) (late, over-limit, 
delinquency, default, and similar fees), (5) (seller's points), (7)(v) 
(escrowed items that are not included in the finance charge), and 
(d)(2) (property and

[[Page 51150]]

liability insurance premiums), do not apply to closed-end transactions 
secured by real property or a dwelling.
    As discussed above, the Bureau proposes to retain the exclusion 
from the finance charge for late, over-limit, delinquency, default and 
similar fees in Sec.  1026.4(c)(2), seller's points described in Sec.  
1026.4(c)(5), amounts required to be paid into escrow or trustee 
accounts if the amounts would not otherwise be included in the finance 
charge described in Sec.  1026.4(c)(7)(v), and property and liability 
insurance described in Sec.  1026.4(d)(2).
    Proposed comments 1026.4(g)-1 through -3 provide guidance to 
creditors on compliance with the special rule for closed-end mortgage 
transactions provided in proposed Sec.  1026.4(g). Proposed comment 
4(g)-1 clarifies that the commentary under the exclusions identified 
above no longer applies to closed-end credit transactions secured by 
real property or a dwelling. Proposed comment 4(g)-2 clarifies that 
third-party charges that meet the definition under Sec.  1026.4(a) and 
are not otherwise excluded from the finance charge generally are 
included in the finance charge, whether or not the creditor requires 
the services for which they are imposed. Proposed comment 4(g)-3 
clarifies that charges payable in a comparable cash transaction, such 
as property taxes and fees or taxes imposed to record the deed 
evidencing transfer of title to the property from the seller to the 
buyer, are not part of the finance charge because they would have to be 
paid even if no credit were extended to finance the purchase.
Section 1026.17 General Disclosure Requirements
    The Bureau is proposing conforming amendments to current Sec.  
1026.17 to reflect the proposed rules regarding the format, content, 
and timing of disclosures for closed-end transactions secured by real 
property, other than reverse mortgages subject to Sec.  1026.33.
17(a) Form of Disclosures
    TILA section 128(b)(1) provides that the disclosures required by 
TILA sections 128(a) and 106(b), (c), and (d) must be conspicuously 
segregated from all other terms, data, or information provided in 
connection with the transaction, including any computations or 
itemizations. 15 U.S.C. 1638(a), (b)(1); 15 U.S.C. 1605(b), (c), (d). 
In addition, TILA section 122(a) requires that the ``annual percentage 
rate'' and ``finance charge'' disclosures be more conspicuous than 
other terms, data, or information provided in connection with the 
transaction, except information relating to the identity of the 
creditor. 15 U.S.C. 1632(a). Current Sec.  1026.17(a) implements these 
statutory provisions. Current Sec.  1026.17(a)(1) implements TILA 
section 128(b)(1) by providing that closed-end credit disclosures must 
be grouped together and segregated from all other disclosures and must 
not contain any information not directly related to the disclosures. 
Current Sec.  1026.17(a)(2) implements TILA section 122(a) for closed-
end credit transactions by requiring that the terms ``annual percentage 
rate'' and ``finance charge,'' together with a corresponding amount or 
percentage rate, be disclosed more conspicuously than any disclosure 
other than the creditor's identity.
    The Bureau proposes to revise Sec.  1026.17(a) to reflect the fact 
that special rules apply to the disclosures required by Sec.  
1026.19(e), (f), and (g), by providing that Sec.  1026.17(a) is 
inapplicable to those disclosures. As discussed below, the Bureau is 
implementing the grouping and segregation requirements of TILA section 
128(b)(1) in proposed Sec. Sec.  1026.37(o) and 1026.38(t). Further, 
for the reasons set forth in the section-by-section analysis to 
proposed Sec. Sec.  1026.37(l)(3) and 1026.38(o)(2) and (4), the Bureau 
proposes to use its authority under TILA section 105(a), Dodd-Frank Act 
section 1032(a), and, for residential mortgage loans, Dodd-Frank Act 
section 1405(b), to modify the requirements of TILA section 122(a) for 
transactions subject to Sec.  1026.19(e) and(f). Proposed comment 17-1 
states that, for the disclosures required by proposed Sec.  1026.19(e), 
(f), and (g), rules regarding the disclosures' form are found in 
proposed Sec. Sec.  1026.19(g), 1026.37(o), and 1026.38(t). In 
addition, proposed comment 17(a)(1)-7 reflects the special disclosure 
rules for transactions subject to Sec.  1026.18(g) or (s).
17(b) Time of Disclosures
    TILA section 128(b)(1) provides that the disclosures required by 
TILA section 128(a) shall be made before credit is extended. 15 U.S.C. 
1638(b)(1). Special timing rules for transactions subject to RESPA are 
found in TILA section 128(b)(2). 15 U.S.C. 1638(b)(2). Current Sec.  
1026.17(b) implements TILA section 128(b)(1) by requiring creditors to 
make closed-end credit disclosures before consummation. The special 
timing rules for transactions subject to RESPA are implemented in 
current Sec.  1026.19(a). As discussed below, the Bureau is proposing 
special timing rules for the disclosures required by proposed Sec.  
1026.19(e), (f), and (g) in those provisions. Proposed Sec.  1026.17(b) 
reflects these special rules by providing that Sec.  1026.17(b) is 
inapplicable to the disclosures required by Sec.  1026.19(e), (f), and 
(g). Proposed comment 17-1 states that, for to the disclosures required 
by Sec.  1026.19(e), (f), and (g), rules regarding timing are found in 
those sections.
17(c) Basis of Disclosures and Use of Estimates
17(c)(1)
    Current Sec.  1026.17(c)(1) requires that the disclosures that 
creditors provide pursuant to subpart C of Regulation Z reflect the 
terms of the legal obligation between the parties. The commentary to 
current Sec.  1026.17(c)(1) provides guidance to creditors regarding 
the disclosure of specific transaction types and loan features.
    As discussed more fully in the section-by-section analysis to 
proposed Sec. Sec.  1026.37 and 1026.38, the Bureau is proposing to 
integrate the disclosure requirements of TILA and sections 4 and 5 of 
RESPA in the Loan Estimate that creditors must provide to consumers 
within three business days after receiving the consumer's application 
and the Closing Disclosure that creditors must provide to consumers at 
least three business days prior to consummation. Some disclosures 
required by RESPA pertain to services performed by third parties, other 
than the lender. Accordingly, the Bureau is proposing conforming 
amendments to the commentary to Sec.  1026.17(c) to clarify that the 
``parties'' referred to in the commentary to Sec.  1026.17(c) are the 
consumer and the creditor and that the ``agreement'' referred to in the 
commentary to Sec.  1026.17(c) is the legal obligation between the 
consumer and the creditor. The proposed conforming amendments to the 
commentary also clarify that the ``disclosures'' referred to in the 
commentary to current Sec.  1026.17(c) are the finance charge and the 
disclosures affected by the finance charge. Finally, the proposed 
conforming amendments to the commentary extend existing guidance on 
special disclosure rules for transactions subject to Sec.  1026.18(s) 
to reflect the addition of new special rules under Sec.  1026.19(e) and 
(f).
    The Bureau also proposes amendments to the commentary to Sec.  
1026.17(c)(1) to address areas of industry uncertainty regarding TILA 
disclosures. First, the Bureau proposes to revise comment 17(c)(1)-1 to 
provide the general principle that disclosures based on the assumption 
that the consumer will abide by the terms of the legal obligation 
throughout its term comply with Sec.  1026.17(c)(1). In

[[Page 51151]]

addition, the Bureau proposes to revise comments 17(c)(1)-3 and -4, 
regarding third-party and consumer buydowns, respectively. Under 
existing Regulation Z, whether the effect of third-party or consumer 
buydowns are disclosed depends on State law. To address uncertainty, 
the Bureau is proposing to revise the examples in comments 17(c)(1)-3 
and -4 to clarify that, in the disclosure of the finance charge and 
other disclosures affected by the finance charge, third-party buydowns 
must be reflected as an amendment to the contract's interest rate 
provision if the buydown is reflected in the credit contract between 
the consumer and the creditor and that consumer buydowns must always be 
reflected as an amendment to the contract's interest rate provision.
    The Bureau also proposes new comment 17(c)(1)-19, regarding 
disclosure of rebates and loan premiums offered by a creditor. In its 
2009 Closed-End Proposal, the Board proposed to revise comment 18(b)-2, 
which provides guidance regarding the treatment of rebates and loan 
premiums for the amount financed calculation required by Sec.  
1026.18(b). 74 FR at 43385. Comment 18(b)-2 primarily addresses credit 
sales, such as automobile financing, and provides that creditors may 
choose whether to reflect creditor-paid premiums and seller- or 
manufacturer-paid rebates in the disclosures required by Sec.  1026.18. 
The Board stated its belief that such premiums and rebates are 
analogous to buy-downs because they may or may not be funded by the 
creditor and reduce costs that otherwise would be borne by the 
consumer. 2009 Closed-End Proposal, 74 FR at 43256. Accordingly, their 
impact on the Sec.  1026.18 disclosures properly depends on whether 
they are part of the legal obligation, in accordance with Sec.  
1026.17(c)(1) and its commentary. The Board therefore proposed to 
revise comment 18(b)-2 to clarify that the disclosures, including the 
amount financed, must reflect loan premiums and rebates regardless of 
their source, but only if they are part of the legal obligation between 
the creditor and the consumer. The Board also proposed a parallel 
comment under the section requiring disclosure of the amount financed 
for transactions subject to the proposed, separate disclosure scheme 
for transactions secured by real property or a dwelling. 2009 Closed-
End Proposal, 74 FR at 43417 (proposed comment 38(e)(5)(iii)-2).
    The Bureau agrees with the Board's reasoning in proposing the 
foregoing revisions to comment 18(b)-2 that the disclosures must 
reflect loan premiums and rebates, even if paid by a third party such 
as a seller or manufacturer, but only if they are part of the legal 
obligation between the creditor and the consumer. The Bureau notes, 
however, that the comment's guidance extends beyond the calculation of 
the amount financed. For example, the guidance on whether and how to 
reflect premiums and rebates applies equally to such disclosures as the 
amount financed, the APR, the projected payments table, interest rate 
and payment summary table, or payment schedule, as applicable, and 
other disclosures affected by those disclosures. The Bureau therefore 
is proposing to place the guidance in the commentary to Sec.  
1026.17(c)(1), as that section is the basis for the underlying 
principal that the impact of premiums and rebates depends on the terms 
of the legal obligation.
17(c)(2)
    Current Sec.  1026.17(c)(2) and its commentary contain general 
rules regarding the use of estimates. The Bureau proposes conforming 
amendments to the commentary to Sec.  1026.17(c)(2) to be consistent 
with the special disclosure rules for closed-end mortgage transactions 
subject to proposed Sec.  1026.19(e) and (f).
    Comment 17(c)(2)(i)-1 provides guidance to creditors on the basis 
for estimates. The proposed rule amends this comment to specify that it 
applies except as otherwise provided in Sec. Sec.  1026.19, 1026.37, 
and 1026.38, and that creditors must disclose the actual amounts of the 
information required to be disclosed pursuant to Sec.  1026.19(e) and 
(f), subject only to the estimation and redisclosure rules in those 
sections. The proposed rule also revises comment 17(c)(2)(i)-2, which 
gives guidance to creditors on labeling estimated disclosures, to 
provide that, for the disclosures required by Sec.  1026.19(e), use of 
the Loan Estimate form H-24 in appendix H, pursuant to Sec.  
1026.37(o), satisfies the requirement that the disclosure state clearly 
that it is an estimate. In addition, consistent with the proposed 
revisions to comment 17(c)(1)-1, the proposed rule revises comment 
17(c)(2)(i)-3, which provides guidance to creditors regarding 
disclosures in simple interest transactions, to reflect that the 
comment applies only to the extent that it does not conflict with 
proposed Sec.  1026.19. Proposed comment 17(c)(2)(i)-3 also clarifies 
that, in all cases, creditors must base disclosures on the assumption 
that payments will be made on time and in the amounts required by the 
terms of the legal obligation, disregarding any possible differences 
resulting from consumers' payment patterns. Finally, proposed comment 
17(c)(2)(ii)-1, regarding disclosure of per diem interest, provides 
that the creditor shall disclose the actual amount of per diem interest 
that will be collected at consummation, subject only to the disclosure 
rules in Sec.  1026.19(e) and (f).
17(c)(4)
    The proposed rule revises comment 17(c)(4)-1 to clarify that 
creditors may disregard payment period irregularities when disclosing 
the payment summary tables pursuant to Sec. Sec.  1026.18(s), 
1026.37(c), and 1026.38(c), in addition to the payment schedule under 
Sec.  1026.18(g) discussed in the existing comment.
17(c)(5)
    Current Sec.  1026.17(c)(5) and its commentary contain general 
rules regarding the disclosure of demand obligations. The proposed rule 
revises comment 17(c)(5)-2, which addresses obligations whose maturity 
date is determined by a future event, to reflect the fact that special 
rules apply to the disclosures required by Sec.  1026.19(e) and (f). In 
addition, the proposal revises comment 17(c)(5)-3, regarding 
transactions that convert to demand status only after a fixed period, 
to delete obsolete references to specific loan programs and to update 
cross-references. Finally, the proposal revises comment 17(c)(5)-4, 
regarding balloon payment mortgages, to reflect the fact that special 
rules apply to the disclosure of balloon payments in the projected 
payments tables required by Sec. Sec.  1026.37(c) and 1026.38(c).
17(d) Multiple Creditors; Multiple Consumers
    Current Sec.  1026.17(d) addresses transactions that involve 
multiple creditors or consumers. The proposed rule revises comment 
17(d)-2, regarding multiple consumers, to clarify that the early 
disclosures required by Sec.  1026.19(a), (e), or (g), as applicable, 
need be provided to only one consumer who will have primary liability 
on the obligation. Material disclosures, as defined in Sec.  
1026.23(a)(3)(ii), under Sec.  1026.23(a) and the notice of the right 
to rescind required by Sec.  1026.23(b), however, must be given before 
consummation to each consumer who has the right to rescind, including 
any such consumer who is not an obligor. As the Board stated in its 
2010 Mortgage Proposal, the purpose of the TILA section 128 requirement 
that creditors provide early and final disclosures is to

[[Page 51152]]

ensure that consumers have information specific to their loan to use 
while shopping and evaluating their loan. See 75 FR at 58585. On the 
other hand, the purpose of the TILA section 121(a) requirement that 
each consumer with a right to rescind receive disclosures regarding 
that right is to ensure that each such consumer has the necessary 
information to decide whether to exercise that right. Id. For this 
reason, the proposed rule requires creditors to provide all consumers 
who have the right to rescind with the material disclosures under 
Sec. Sec.  1026.18 and 1026.38 and the notice of the right to rescind 
required by Sec.  1026.23(b), even if such consumer is not an obligor.
17(e) Effect of Subsequent Events
    Current Sec.  1026.17(e) provides rules regarding when a subsequent 
event makes a disclosure inaccurate and requires a new disclosure. The 
proposed rule revises comment 17(e)-1 to clarify that special rules 
apply to transactions subject to proposed Sec.  1026.19(e) and (f).
17(f) Early Disclosures
    Current Sec.  1026.17(f) contains rules regarding when a creditor 
must redisclose after providing disclosures prior to consummation. As 
discussed in the section-by-section analysis to proposed Sec.  
1026.19(a), (e), and (f), special timing requirements apply for 
transactions subject to those sections. Accordingly, Sec.  1026.17(f) 
is revised to reflect the fact that the general early disclosure rules 
in Sec.  1026.17(f) are subject to the special rules in Sec.  
1026.19(a), (e), and (f). In addition, comments 17(f)-1 through -4 
would be revised to conform to the special timing requirements under 
proposed Sec.  1026.19(a) or (e) and (f).
17(g) Mail or Telephone Orders--Delay in Disclosures
    Current Sec.  1026.17(g) and its commentary permit creditors to 
delay disclosures for transactions involving mail or telephone orders 
until the first payment is due if specific information, including the 
principal loan amount, total sale price, finance charge, annual 
percentage rate, and terms of repayment is provided to the consumer 
prior to the creditor's receipt of a purchase order or request for 
extension of credit. As discussed in the section-by-section analysis to 
proposed Sec.  1026.19(a), (e), and (f), the Bureau proposes special 
timing requirements for transactions subject to those provisions. 
Accordingly, the Bureau proposes to revise Sec.  1026.17(g) and comment 
17(g)-1 to clarify that Sec.  1026.17(g) does not apply to transactions 
subject to Sec.  1026.19(a), (e), and (f).
17(h) Series of Sales--Delay in Disclosures
    Current Sec.  1026.17(h) and its commentary permit creditors to 
delay disclosures until the due date of the first payment in 
transactions in which a credit sale is one of a series made under an 
agreement providing that subsequent sales may be added to the 
outstanding balance. As discussed in the section-by-section analysis to 
proposed Sec.  1026.19(a), (e), and (f), the Bureau proposes special 
timing requirements for transactions subject to those provisions. 
Accordingly, the Bureau proposes to revise Sec.  1026.17(h) and comment 
17(h)-1 to clarify that Sec.  1026.17(h) does not apply to transactions 
subject to Sec.  1026.19(a) or (e) and (f).

1026.18 Content of Disclosures

    Section 1026.18 sets forth the disclosure content for closed-end 
consumer credit transactions. As discussed in more detail below, the 
Bureau is proposing to establish separate disclosure requirements for 
closed-end transactions secured by real property, other than reverse 
mortgage transactions, through proposed Sec.  1026.19(e) and (f). 
Accordingly, the Bureau is proposing to amend Sec.  1026.18's 
introductory language to provide that its disclosure content 
requirements apply only to closed-end transactions other than mortgage 
transactions subject to Sec.  1026.19(e) and (f).
    The Bureau is also proposing revisions to Sec.  1026.18(k), which 
provides for disclosure of whether, if the obligation is prepaid in 
full, a penalty will be imposed or a consumer will be entitled to a 
rebate of any finance charge. The proposed revisions conform to the 
definition of ``prepayment penalty'' in proposed Sec.  1026.37(b)(4) 
and associated commentary. As explained in more detail in the section-
by-section analysis for proposed Sec.  1026.37(b)(4), the Bureau is 
coordinating the definition of ``prepayment penalty'' across its 
pending mortgage-related rulemakings, and proposed revisions to Sec.  
1026.18(k) are part of that comprehensive approach.
    The Bureau also is proposing to add a new comment 18-3 clarifying 
that, because of the exclusion of transactions subject to Sec.  
1026.19(e) and (f), the disclosures required by Sec.  1026.18 apply 
only to closed-end transactions that are unsecured or secured by 
personal property (including dwellings that are not also secured by 
real property) and to reverse mortgages. The comment would also clarify 
that, for unsecured transactions and transactions secured by personal 
property that is not a dwelling, creditors must disclose a payment 
schedule under Sec.  1026.18(g), and for other transactions that are 
subject to Sec.  1026.18, creditors must disclose an interest rate and 
payment summary table under Sec.  1016.18(s), as adopted by the Board's 
MDIA Interim Rule. 75 FR at 58482-84. Finally, the comment would 
clarify that, because Sec.  1026.18 does not apply to most transactions 
secured by real property, references in the section and its commentary 
to ``mortgages'' refer only to transactions secured by personal 
property that is not a dwelling and reverse mortgages, as applicable.
18(b) Amount Financed
    Section 1026.18(b) addresses the calculation and disclosure of the 
amount financed for closed-end transactions. Comment 18(b)-2 currently 
provides that creditors may choose whether to reflect creditor-paid 
premiums and seller- or manufacturer-paid rebates in the disclosures 
required by Sec.  1026.18. For the reasons discussed under Sec.  
1026.17(c)(1), above, the Bureau is proposing to remove comment 18(b)-2 
and place revised guidance regarding rebates and loan premiums in 
proposed comment 17(c)(1)-19.
18(b)(2)
    The Bureau is proposing certain conforming changes to comment 
18(b)(2)-1, which addresses amounts included in the amount financed 
calculation that are not otherwise included in the finance charge. As 
discussed more fully under proposed Sec.  1026.4, above, the Bureau 
proposes to adopt a simpler and more inclusive definition of the 
finance charge. Therefore, references to real estate settlement charges 
in comment 18(b)(2)-1 are inappropriate. Proposed comment 18(b)(2)-1 
removes those references and substitutes appropriate examples.
18(c) Itemization of Amount Financed
    Section 1026.18(c) requires an itemization of the amount financed 
and provides guidance on the amounts that must be included in the 
itemization. The Bureau proposes certain conforming amendments to two 
comments under Sec.  1026.18(c). Under this proposal, Sec.  1026.18 
disclosures, including the itemization of amount financed under Sec.  
1026.18(c), are required only for closed-end transactions that are not 
secured by real property and reverse mortgages;

[[Page 51153]]

transactions secured by real property other than reverse mortgages are 
subject instead to the disclosure content required by Sec. Sec.  
1026.37 and 1026.38. The Bureau therefore proposes technical revisions 
to comments 18(c)-4 and 18(c)(1)(iv)-2 to limit those comments' 
discussions of the RESPA disclosures and their interaction with Sec.  
1026.18(c) to reverse mortgages.
18(f) Variable Rate
18(f)(1)
18(f)(1)(iv)
    Section 1026.18(f)(1)(iv) requires that, for variable-rate 
transactions not secured by a consumer's principal dwelling and 
variable-rate transactions secured by a consumer's principal dwelling 
where the loan term is one year or less, creditors disclose an example 
of the payment terms that would result from an interest rate increase. 
The Bureau proposes to revise comment 18(f)(1)(iv)-2 by removing 
paragraph 2.iii, which provides that such an example is not required in 
a multiple-advance construction loan disclosed pursuant to appendix D, 
part I. Appendix D, part I provides guidance for disclosing the 
construction phase of a construction-to-permanent loan as a separate 
transaction pursuant to Sec.  1026.17(c)(6)(ii) (or for disclosing a 
construction-only loan). The Bureau's proposal to remove comment 
18(f)(1)(iv)-2.iii is intended solely as a conforming amendment, to 
reflect the fact that multiple-advance construction loans would no 
longer be subject to the Sec.  1026.18 disclosure requirements under 
this proposal. The Bureau believes that multiple-advance construction 
loans are limited to transactions with real property as collateral, and 
are not used for dwellings that are personal property or in reverse 
mortgages. Therefore, all construction loans would be subject instead 
to the new disclosure content requirements of Sec. Sec.  1026.37 and 
1026.38. The Bureau seeks comment, however, on whether any reason 
remains to preserve comment 18(f)(1)(iv)-2.iii.
18(g) Payment Schedule
    Section 1026.18(g) requires the disclosure of the number, amounts, 
and timing of payments scheduled to repay the obligation, for closed-
end transactions other than transactions subject to Sec.  1026.18(s). 
Section 1026.18(s) requires an interest rate and payment summary table, 
in place of the Sec.  1026.18(g) payment schedule, for closed-end 
transactions secured by real property or a dwelling, other than 
transactions that are secured by a consumer's interest in a timeshare 
plan. As noted above, however, the Bureau is proposing to remove from 
the coverage of Sec.  1026.18 transactions secured by real property, 
other than reverse mortgages, and subject them to the integrated 
disclosures under Sec. Sec.  1026.37 and 1026.38. Thus, under this 
proposal, Sec.  1026.18(g) applies only to closed-end transactions that 
are unsecured or secured by personal property that is not a dwelling. 
All closed-end transactions that are secured by either real property or 
a dwelling, including reverse mortgages, are subject instead to either 
the interest rate and payment summary table disclosure requirement 
under Sec.  1026.18(s) or the projected payments table disclosure 
requirement under Sec. Sec.  1026.37(c) and 1026.38(c), as applicable.
    In light of these changes to the coverage of Sec.  1026.18 
generally, and specifically Sec.  1026.18(g), the Bureau is proposing 
several conforming changes to the commentary under Sec.  1026.18(g). 
Specifically, comment 18(g)-4 would be revised to remove a reference to 
home repairs, and comment 18(g)-5, relating to mortgage insurance, 
would be removed and reserved. In addition, comment 18(g)-6, which 
currently discusses the coverage of mortgage transactions as between 
Sec. Sec.  1026.18(g) and 1026.18(s), would be revised to reflect the 
additional effect of proposed Sec.  1026.19(e) and (f), which requires 
the new integrated disclosures set forth in proposed Sec. Sec.  1026.37 
and 1026.38 for most transactions secured by real property. Finally, 
the Bureau also proposes to amend comments 18(g)(2)-1 and -2 to remove 
unnecessary, and potentially confusing, references to mortgages and 
mortgage insurance.
18(k) Prepayment
    Section 1026.18(k) implements the provisions of TILA section 
128(a)(11), which requires that the transaction-specific disclosures 
for closed-end consumer credit transactions disclose whether (1) a 
consumer is entitled to a rebate of any finance charge upon prepayment 
in full pursuant to acceleration or otherwise, if the obligation 
involves a precomputed finance charge, and (2) a ``penalty'' is imposed 
upon prepayment in full of such transactions if the obligation involves 
a finance charge computed from time to time by application of a rate to 
the unpaid principal balance. 15 U.S.C. 1638(a)(11). Commentary to 
Sec.  1026.18(k) provides further guidance regarding the disclosures 
and provides examples of prepayment penalties and the types of finance 
charges where a consumer may be entitled to a rebate. For further 
background on Sec.  1026.18(k), see the section-by-section analysis for 
proposed Sec.  1026.37(b)(4), below.
    The Bureau defines ``prepayment penalty'' in proposed Sec.  
1026.37(b)(4) for transactions subject to Sec. Sec.  1026.19(e) and (f) 
as a charge imposed for paying all or part of a loan's principal before 
the date on which the principal balance is due, and provides examples 
of prepayment penalties and other relevant guidance in proposed 
commentary. The Bureau's proposed definition of ``prepayment penalty'' 
and commentary is based on its consideration of the existing statutory 
and regulatory definitions of ``penalty'' and ``prepayment penalty'' 
under TILA and Regulation Z, the Board's proposed definitions of 
prepayment penalty in its 2009 Closed-End Proposal, 2010 Mortgage 
Proposal, and 2011 ATR Proposal, and the Bureau's authority under TILA 
section 105(a) and Dodd-Frank Act sections 1032(a) and, for residential 
mortgage loans, 1405(b). Further background on the Bureau's definition 
of prepayment penalty and the basis of its legal authority for 
proposing that definition are in the section-by-section analysis for 
proposed Sec.  1026.37(b)(4), below.
    As discussed in the section-by-section analysis for proposed Sec.  
1026.37(b)(4), the Bureau is coordinating the definition of 
``prepayment penalty'' in proposed Sec.  1026.37(b)(4) with the 
definitions in the Bureau's other pending rulemakings under the Dodd-
Frank Act concerning ability-to-repay requirements, high-cost mortgages 
under HOEPA, and mortgage servicing. The Bureau believes that, to the 
extent consistent with consumer protection objectives, adopting a 
consistent definition of ``prepayment penalty'' across its various 
pending rulemakings affecting closed-end mortgages will facilitate 
compliance. As an additional part of adopting a consistent regulatory 
definition of ``prepayment penalty,'' the Bureau is proposing certain 
conforming revisions to Sec.  1026.18(k) and associated commentary.
    The Bureau recognizes that, with such conforming revisions to Sec.  
1026.18(k) and associated commentary, the revised definition of 
``prepayment penalty'' will apply to both closed-end mortgage and non-
mortgage transactions. In particular, the proposed conforming revisions 
to Sec.  1026.18(k) define ``prepayment penalty'' with reference to a 
prepayment of ``all or part of'' the principal balance of a loan 
covered by the provision, while TILA section 128(a)(11) and current 
Sec.  1026.18(k) and its associated commentary refer to prepayment ``in 
full.'' This revision may lead to an expansion of the set of instances 
that trigger disclosure under Sec.  1026.18 of a

[[Page 51154]]

prepayment penalty for closed-end transactions. The Bureau believes 
that consumers entering into closed-end mortgage and non-mortgage 
transactions alike will benefit from the transparency associated with 
more frequent and consistent disclosure of prepayment penalties. 
Therefore, the Bureau is using its authority under TILA section 105(a) 
to make the proposed conforming revisions to Sec.  1026.18(k) because 
they will effectuate the purposes of TILA by promoting the informed use 
of credit. Similarly, these revisions will help ensure that the 
features of these mortgage transactions are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to understand better the costs, benefits, and risks associated with 
mortgage transactions, in light of the facts and circumstances, 
consistent with Dodd-Frank Act section 1032(a). The revisions will also 
improve consumer awareness and understanding of residential mortgage 
loans, and are in the interest of consumers and the public, consistent 
with Dodd-Frank Act section 1405(b). The Bureau solicits comment on 
this approach to the definition of prepayment penalty.
    To conform with the proposed definition of prepayment penalty in 
Sec.  1026.37(b)(4), proposed Sec.  1026.18(k)(1) deletes the phrase 
``a statement indicating whether or not a penalty may be imposed if the 
obligation is prepaid in full'' and replaces it with the phrase ``a 
statement indicating whether or not a charge may be imposed for paying 
all or part of a transaction's principal before the date on which the 
principal is due.'' Proposed Sec.  1026.18(k)(2) adds the phrase ``or 
in part'' at the end of the phrase ``a statement indicating whether or 
not the consumer is entitled to a rebate of any finance charge if the 
obligation is prepaid in full.''
    Proposed revised comments 18(k)-1 through -3 insert the word 
``prepayment'' before the words ``penalty'' and ``rebate'' when used, 
to standardize the terminology across Regulation Z (i.e., Sec.  
1026.32(d)(6) currently refers to ``prepayment penalty,'' and proposed 
Sec.  1026.37(b)(4) uses the same phrase). Proposed revised comment 
18(k)(1)-1 replaces the existing commentary text with the language from 
proposed comments 37(b)(4)-2 and -3. For further background on proposed 
comments 37(b)(4)-2 and -3, see the section-by-section analysis for 
proposed Sec.  1026.37(b)(4), below.
18(r) Required Deposit
    If a creditor requires the consumer to maintain a deposit as a 
condition of the specific transactions, Sec.  1026.18(r) requires that 
the creditor disclose a statement that the APR does not reflect the 
effect of the required deposit. Comment 18(r)-6 provides examples of 
arrangements that are not considered required deposits and therefore do 
not trigger this disclosure. The Bureau is proposing to remove and 
reserve paragraph 6.vi, which states that an escrow of condominium fees 
need not be treated as a required deposit. In light of the changes to 
the coverage of Sec.  1026.18 under this proposal, the only 
transactions to which this guidance could apply are reverse mortgages, 
which do not entail escrow accounts for condominium fees or any other 
recurring expenses. Accordingly, the Bureau believes that comment 
18(r)-6.vi is rendered unnecessary by this proposal. The Bureau seeks 
comment, however, on whether any kind of transaction exists for which 
this guidance would continue to be relevant under Sec.  1026.18, as 
amended by this proposal.
18(s) Interest Rate and Payment Summary for Mortgage Transactions
    Section 1026.18(s) currently requires the disclosure of an interest 
rate and payment summary table for transactions secured by real 
property or a dwelling, other than a transaction secured by a 
consumer's interest in a timeshare plan. Under this proposal, however, 
Sec.  1026.19(e) and (f) requires new, separate disclosures for 
transactions secured by real property, other than reverse mortgages. 
Generally, the disclosure requirements of Sec.  1026.19(e) and (f) 
apply to transactions currently subject to current Sec.  1026.18(s), 
except that reverse mortgages and transactions secured by dwellings 
that are personal property would be excluded. In addition, as discussed 
in the section-by-section analysis to proposed Sec.  1026.19, 
transactions secured by a consumer's interest in a timeshare plan are 
covered by the integrated disclosure requirements of Sec.  1026.19(e) 
and (f), although such transactions are not currently subject to the 
requirements of Sec.  1026.18(s).
    The new, integrated disclosures include a different form of 
projected payments table, under Sec. Sec.  1026.37(c) and 1026.38(c), 
instead of the summary table under Sec.  1026.18(s). Accordingly, the 
Bureau proposes to amend Sec.  1026.18(s) to provide that it applies to 
transactions that are secured by real property or a dwelling, other 
than transactions that are subject to Sec.  1026.19(e) and (f) (i.e. 
reverse mortgages and dwellings that are not secured by real property). 
The Bureau is proposing parallel revisions to comment 18(s)-1 to 
reflect this change in the scope of Sec.  1026.18(s)'s coverage. The 
Bureau also proposes to add a new comment 18(s)-4 to explain that Sec.  
1026.18(s) governs only closed-end reverse mortgages and closed-end 
transactions secured by a dwelling that is personal property.
18(s)(3) Payments for Amortizing Loans
18(s)(3)(i)(C)
    Current Sec.  1026.18(s)(3)(i)(C) requires creditors to disclose 
whether mortgage insurance is included in monthly escrow payments in 
the interest rate and payment summary. The Bureau understands that some 
government loan programs impose annual guarantee fees and that 
creditors typically collect a monthly escrow for the payment of such 
amounts. The Bureau has learned through industry inquiries that 
uncertainty exists regarding whether such guarantee fees should be 
disclosed as mortgage insurance under Sec.  1026.18(s)(3)(i)(C) if the 
guarantee technically is not insurance under applicable law. One way to 
comply with Sec.  1026.18(s) is to include such guarantee fees in the 
monthly payment amount, without using the check box for ``mortgage 
insurance.'' See comment 18(s)(3)(i)(C)-1 (escrowed amounts other than 
taxes and insurance may be included but need not be). Although the 
Bureau recognizes that government loan program guarantees may be 
legally distinguishable from mortgage insurance, they are functionally 
very similar. Moreover, such a technical, legal distinction is unlikely 
to be meaningful to most consumers. Therefore, the Bureau believes that 
the disclosure of such fees would be improved by including them in the 
monthly escrow payment amount and using the check box for ``mortgage 
insurance.''
    For these reasons, pursuant to its authority under TILA section 
105(a), Dodd-Frank Act section 1032(a), and, for residential mortgage 
loans, Dodd-Frank Act section 1405(b), the Bureau proposes to revise 
Sec.  1026.18(s)(3)(i)(C) to provide that mortgage insurance or any 
functional equivalent must be included in the estimate of the amount of 
taxes and insurance, payable with each periodic payment. Proposed 
comment 18(s)(3)(i)(C)-2 is revised to conform to Sec.  
1026.18(s)(3)(i)(C). Specifically, the proposed comment clarifies that, 
for purposes of the interest rate and payment summary disclosure 
required by Sec.  1026.18(s), ``mortgage insurance or any functional 
equivalent'' includes ``mortgage guarantees'' (such as a United States 
Department of Veterans

[[Page 51155]]

Affairs or United States Department of Agriculture guarantee) that 
provide coverage similar to mortgage insurance, even if not technically 
considered insurance under State or other applicable law. Since 
mortgage insurance and mortgage guarantee fees are functionally very 
similar, the Bureau believes that including both amounts in the 
estimate of taxes and insurance on the table required by Sec.  
1026.18(s) will promote the informed use of credit, thereby carrying 
out the purposes of TILA, consistent with TILA section 105(a). In 
addition, the proposed disclosure will ensure that more of the features 
of the mortgage transaction are fully, accurately, and effectively 
disclosed to consumers in a manner that will permit consumers to 
understand the costs, benefits, and risks associated with the mortgage 
transaction, consistent with Dodd-Frank Act section 1032(a), and will 
improve consumer awareness and understanding of residential mortgage 
loans and will be in the interest of consumers and the public, 
consistent with Dodd-Frank Act section 1405(b). Proposed comment 
18(s)(3)(i)(C)-2 is consistent with the treatment of mortgage guarantee 
fees on the projected payments table required by proposed Sec. Sec.  
1026.37(c) and 1026.38(c). See proposed comment 37(c)(1)(i)(C)-1.
Section 1026.19 Certain Mortgage and Variable-Rate Transactions
    As discussed below, the Bureau proposes to amend Sec.  1026.19 to 
define the scope of the proposed integrated disclosures and to 
establish the requirements for provision of those disclosures.
Coverage of Integrated Disclosure Requirements
    For the reasons discussed in detail below, the Bureau proposes to 
require delivery of the integrated disclosures for closed-end consumer 
credit transactions secured by real property, other than reverse 
mortgages. As discussed above in part IV, section 1032(f) of the Dodd-
Frank Act requires that ``the Bureau shall propose for public comment 
rules and model disclosures that combine the disclosures required under 
[TILA] and sections 4 and 5 of [RESPA], into a single, integrated 
disclosure for mortgage loan transactions covered by those laws.'' 12 
U.S.C. 5532(f). In addition, sections 1098 and 1100A of the Dodd-Frank 
Act amended RESPA section 4(a) and TILA section 105(b), respectively, 
to require the Bureau to publish a ``single, integrated disclosure for 
mortgage loan transactions (including real estate settlement cost 
statements) which includes the disclosure requirements of [TILA and 
sections 4 and 5 of RESPA] that, taken together, may apply to a 
transaction that is subject to both or either provisions of law.'' 12 
U.S.C. 2604(a); 15 U.S.C. 1604(b). Accordingly, the Bureau is directed 
to establish the integrated disclosure requirements for ``mortgage loan 
transactions'' that are ``subject to both or either provisions of'' 
RESPA sections 4 and 5 (the statutory GFE and settlement statement 
requirements) and TILA.\125\
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    \125\ In addition to, and at the same times as, provision of the 
GFE under RESPA section 5(c), section 5(d) also requires lenders to 
provide to mortgage applicants the home buying information booklet 
prepared by the Bureau pursuant to section 5(a). Although the Bureau 
is not proposing to integrate the booklet with the RESPA GFE and 
TILA disclosures, in the sense of building all of their contents 
into a single form, the Bureau is proposing to implement the booklet 
requirement in proposed Sec.  1026.19(g), discussed below. The same 
considerations of coverage discussed here with respect to the 
integrated disclosures also apply for purposes of the booklet 
requirement.
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    The Legal Authority discussion in part IV also notes that, 
notwithstanding this integrated disclosure mandate, the Dodd-Frank Act 
did not reconcile important differences between RESPA and TILA relating 
to the timing of delivery of the RESPA settlement statement and the 
TILA disclosure, as well as the persons and transactions on whom those 
disclosure requirements are imposed. Accordingly, to meet the 
integrated disclosure mandate, the Bureau believes that it must 
reconcile such statutory differences. In addition to those differences 
already noted, RESPA and TILA have certain differences in the types of 
transactions to which their respective disclosure requirements apply. 
The Bureau also recognizes that application of the integrated 
disclosure requirements to certain transaction types may be 
inappropriate, even though those transaction types are within the 
scopes of one or both statutes. These issues and the Bureau's proposal 
for addressing them are discussed below.
    Differences in coverage of RESPA and TILA. RESPA applies generally 
to ``federally related mortgage loans,'' which means loans (other than 
temporary financing such as construction loans) secured by a lien on 
residential real property designed principally for occupancy by one to 
four families and that are (1) made by a lender with Federal deposit 
insurance; (2) made, insured, guaranteed, supplemented, or assisted in 
any way by any officer or agency of the Federal government; (3) 
intended to be sold to Fannie Mae, Ginnie Mae, or (directly or through 
an intervening purchaser) Freddie Mac; or (4) made by a ``creditor,'' 
as defined under TILA, that makes or invests in real estate loans 
aggregating more than $1,000,000 per year, other than a State agency. 
12 U.S.C. 2602(1), 2604.\126\ RESPA section 7(a) provides that RESPA 
does not apply to credit for business, commercial, or agricultural 
purposes or to credit extended to government agencies. Id. 2606(a). 
Thus, RESPA disclosures essentially are required for consumer-purpose 
loans that have some Federal nexus (or are made by a TILA creditor with 
sufficient volume) and that are secured by real property improved by 
single-family housing.
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    \126\ Although section 4 of RESPA, 12 U.S.C. 2603, originally 
recited that it applied to federally related mortgage loans as well, 
as amended by the Dodd-Frank Act it no longer does so explicitly. 
The Bureau nevertheless regards the RESPA settlement statement 
requirement as continuing to apply to federally related mortgage 
loans, consistent with the rest of RESPA's scope generally.
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    Regulation X Sec.  1024.5 implements these statutory provisions. 
Section 1024.5(a) provides that RESPA and Regulation X apply to 
federally related mortgage loans, which are defined by Sec.  1024.2(b) 
to parallel the statutory definition described above. Section 1024.5(b) 
establishes certain exemptions from coverage, including loans on 
property of 25 acres or more; loans for a business, commercial, or 
agricultural purpose; temporary financing, such as construction loans, 
unless the loan is used to finance transfer of title or may be 
converted to permanent financing by the same lender; and loans on 
unimproved property, unless within two years from settlement the loan 
proceeds will be used to construct or place a residence on the land. 12 
CFR 1024.5(b)(1) through (4). Unlike the others, the exemption for 
loans secured by properties of 25 acres or more is not statutory and is 
established by Regulation X only.
    TILA, on the other hand, applies generally to consumer credit 
transactions of all kinds, including unsecured credit and credit 
secured by nonresidential property. 15 U.S.C. 1602(f) (``credit'' 
defined as ``the right granted by a creditor to a debtor to defer 
payment of debt or to incur debt and defer its payment''). Similar to 
RESPA, TILA excludes, among others, extensions of credit primarily for 
business, commercial, or agricultural purposes, or to government or 
governmental agencies or instrumentalities, or to organizations. Id. 
1603(1). In contrast with RESPA and Regulation X, however, TILA (and 
therefore Regulation Z) has no exclusion

[[Page 51156]]

for property of 25 acres or more, temporary financing, or vacant land. 
Moreover, TILA applies only to transactions made by a person who 
``regularly extends'' consumer credit. Id. 1602(g) (definition of 
creditor).
    Regulation Z Sec. Sec.  1026.2(a)(14) and (17) and 1026.3(a) 
implement these statutory provisions. In particular, Sec.  
1026.2(a)(17) defines creditor in pertinent part as a person who 
regularly extends consumer credit, and Sec.  1026.2(a)(17)(v) further 
provides that, for transactions secured by a dwelling (other than 
``high-cost'' loans subject to HOEPA), a person ``regularly extends'' 
consumer credit if it extended credit more than five times in the 
preceding calendar year. Section 1026.3(a) implements the exclusion of 
credit extended primarily for a business, commercial, or agricultural 
purpose, as well as credit extended to other than a natural person, 
including government agencies or instrumentalities.
    Although TILA generally applies to consumer credit that is 
unsecured or secured by nonresidential property, Dodd-Frank Act section 
1032(f), RESPA section 4(a), and TILA section 105(b) specifically limit 
the integrated disclosure requirement to ``mortgage loan 
transactions.'' The Dodd-Frank Act did not specifically define 
``mortgage loan transaction,'' but did direct that the disclosures be 
designed to incorporate disclosure requirements that may apply to ``a 
transaction that is subject to both or either provisions of the law.''
    As described above, five types of loans are currently covered by 
TILA or RESPA, but not both. Under the foregoing provisions, loans to 
finance home construction that do not finance transfer of title and for 
which the creditor will not extend permanent financing (construction-
only loans), loans secured by unimproved land already owned by the 
consumer and on which a residence will not be constructed within two 
years (vacant-land loans), and loans secured by land of 25 acres or 
more (25-acre loans) all are subject to TILA but are currently exempt 
from RESPA coverage. In addition, loans secured by dwellings that are 
not real property, such as mobile homes, houseboats, recreational 
vehicles, and similar dwellings that are not deemed real property under 
State law, (chattel-dwelling loans) could be considered ``mortgage loan 
transactions,'' and they also are subject to TILA but not RESPA. 
Meanwhile, federally related mortgage loans made by persons who are not 
creditors under TILA, because they make five or fewer such loans per 
year, are subject to RESPA but not TILA. In addition, some types of 
mortgage loan transactions are covered by both statutes, but may 
warrant uniquely tailored disclosures because they involve terms or 
features that are so different from standard closed-end transactions 
that use of the same form may cause significant consumer confusion and 
compliance burden for industry.
    For the reasons discussed in detail below, the Bureau proposes to 
use its authority under TILA section 105(a), (b), and (f), RESPA 
sections 4(a) and 19(a), and Dodd-Frank Act sections 1032(a) and (f) 
and, for residential mortgage loans, 1405(b) to tailor the scope of 
this proposed rule so that the integrated disclosure requirements apply 
to all closed-end consumer credit transactions secured by real 
property, other than reverse mortgages. Doing so will ensure that, in 
most mortgage transactions, consumers receive integrated disclosure 
forms developed by the Bureau through extensive testing that will 
improve consumers' understanding of the transaction. Furthermore, 
applying a consistent set of disclosure requirements to most mortgage 
transactions will facilitate compliance by industry. However, for a 
subset of mortgage transactions, the Bureau believes that application 
of the integrated disclosure requirements would not improve consumer 
understanding or facilitate compliance and that these transactions 
should therefore be exempted from those requirements.
    In some cases, the Bureau is proposing to exempt transactions that 
could arguably fall within Dodd-Frank Act sections 1032(f), 1098, and 
1100A but are sufficiently different from other mortgage transactions 
that application of the integrated disclosure forms would neither 
improve consumer understanding nor facilitate compliance by industry 
(e.g., reverse mortgages, open-end transactions secured by real 
property or a dwelling, and closed-end transactions secured by a 
dwelling but not real property). These transactions will remains 
subject to the existing disclosure requirements under Regulations X and 
Z, as applicable, until the Bureau adopts integrated disclosures 
specifically tailored to their distinct features.\127\
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    \127\ As discussed below, certain new mortgage disclosure 
requirements in the Dodd-Frank Act apply to these transactions, 
among others. Accordingly, transactions that are not subject to the 
proposed rule would be temporarily exempt from those requirements 
until the Bureau adopts a new disclosure scheme specific to those 
transactions.
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    In other cases, the Bureau is proposing to expand the scope of 
certain mortgage disclosure requirements in order to ensure that, in 
most mortgage transactions, consumers receive a consistent set of 
disclosures, which the Bureau believes will improve consumer 
understanding and facilitate compliance. In particular, the proposed 
rule applies to certain transactions that are currently subject to 
Regulation Z but not Regulation X (construction-only loans, vacant-land 
loans, and 25-acre loans). In addition, many of the new Dodd-Frank Act 
mortgage disclosure requirements apply to ``residential mortgage 
loans,'' which--as noted above--are defined in section 1401 of the 
Dodd-Frank Act as any consumer credit transaction that is secured by a 
mortgage on a dwelling or on residential real property that includes a 
dwelling other than an open-end credit plan or an extension of credit 
secured by a consumer's interest in a timeshare plan.\128\ Thus, in 
addition to narrowing the application of these disclosures to exempt 
temporarily reverse mortgages and transactions that are not secured by 
real property, the proposed rule expands the application of these 
disclosure requirements to apply to transactions secured by real 
property that does not contain a dwelling. Similarly, the proposed rule 
both narrows and expands the application of other Dodd-Frank Act 
mortgage disclosure requirements to improve consumer understanding and 
facilitate compliance.\129\
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    \128\ See, e.g., Dodd-Frank Act Sec.  1402(a)(2) (requires 
disclosure of loan originator identifier) (codified at TILA Sec.  
129B(b)(1)(B)); Dodd-Frank Act Sec.  1414(c) (requires disclosure of 
anti-deficiency protections) (codified at TILA Sec.  129C(g)); Dodd-
Frank Act Sec.  1414(d) (requires disclosure of partial payment 
policy) (codified at TILA Sec.  129C(h)); Dodd-Frank Act Sec.  1419 
(requires disclosure of certain aggregate amounts and wholesale rate 
of funds) (codified at TILA Sec.  128(a)(17)); Dodd-Frank Act Sec.  
1419 (requires disclosure of loan originator compensation) (codified 
at TILA Sec.  128(a)(18)); Dodd-Frank Act Sec.  1419 (requires 
disclosure of total interest) (codified at TILA Sec.  128(a)(19)).
    \129\ See, e.g., Dodd-Frank Act Sec.  1414(a) (requires negative 
amortization disclosure for open or closed end consumer credit plans 
secured by a dwelling or residential real property that includes a 
dwelling that provides or permits a payment plan that may result in 
negative amortization) (codified at TILA Sec.  129C(f)); Dodd-Frank 
Act Sec.  1419 (requires certain payment disclosures for variable 
rate residential mortgage loans for which an escrow account will be 
established) (codified at TILA Sec.  128(a)(16)); Dodd-Frank Act 
Sec. Sec.  1461(a), 1462, and 1465 (requires certain payment and 
escrow disclosures for consumer credit transactions secured by a 
first lien on the principal dwelling of the consumer, other than an 
open end credit plan or reverse mortgage) (codified at TILA Sec.  
129D(h) and (j) and 128(b)(4)); Dodd-Frank Act Sec.  1475 (permits 
disclosure of appraisal management fees for federally related 
mortgage loans) (codified at RESPA Sec.  4(c)).
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    Accordingly, the Bureau believes adjusting the application of the 
provisions of TILA and RESPA is within its general mandate under Dodd-
Frank

[[Page 51157]]

Act section 1032(f) to prescribe integrated disclosures, which requires 
that the Bureau reconcile differences in coverage between the two 
statutes. The Bureau also believes that this approach is expressly 
authorized by sections 4(a) of RESPA and 105(b) of TILA because both 
provisions direct the Bureau to prescribe disclosures that ``may apply 
to a transaction that is subject to both or either provisions of law.'' 
(Emphasis added.) Those provisions authorize requiring the integrated 
disclosures for any transaction that is subject to either RESPA or 
TILA, and not only a transaction that is subject to both, precisely so 
that the Bureau has the flexibility necessary to reconcile those 
statutes' coverage differences for purposes of the integrated 
disclosure mandate.
    Furthermore, the Bureau believes that applying the integrated 
disclosures to closed-end consumer credit transactions secured by real 
property other than reverse mortgages will carry out the purposes of 
TILA and RESPA, consistent with TILA section 105(a) and RESPA section 
19(a), by promoting the informed use of credit and more effective 
advance disclosure of settlement costs, respectively. In addition, the 
proposed scope will ensure that the integrated disclosure requirements 
are applied only in circumstances where they will permit consumers to 
understand the costs, benefits, and risks associated with the mortgage 
transaction, consistent with Dodd-Frank Act section 1032(a), and will 
improve consumer awareness and understanding of residential mortgage 
loans, consistent with Dodd-Frank Act section 1405(b).
    Finally, the Bureau also proposes the exemption pursuant to TILA 
section 105(f). The Bureau has considered the factors in TILA section 
105(f) and believes that an exemption is appropriate under that 
provision. Specifically, the Bureau believes that the proposed 
exemption is appropriate for all affected borrowers, regardless of 
their other financial arrangements and financial sophistication and the 
importance of the loan to them. Similarly, the Bureau believes that the 
proposed exemption is appropriate for all affected loans, regardless of 
the amount of the loan and whether the loan is secured by the principal 
residence of the consumer. Furthermore, the Bureau believes that, on 
balance, the proposed exemption will simplify the credit process 
without undermining the goal of consumer protection or denying 
important benefits to consumers. Based on these considerations, the 
results of the Bureau's consumer testing, and the analysis discussed 
elsewhere in this proposal, the Bureau believes that the proposed 
exemptions are appropriate.
    Coverage issues with HELOCs. Open-end transactions secured by real 
property or a dwelling (home-equity lines of credit, or HELOCs) and 
reverse mortgages are within the statutory scope of both TILA and RESPA 
and also reasonably could be considered ``mortgage loan transactions.'' 
Nevertheless, both types of transaction are by their natures 
fundamentally different from other forms of mortgage credit. For the 
reasons discussed below, the Bureau is proposing to exclude these types 
of transaction from the coverage of the integrated disclosure 
requirement.
    HELOCs are open-end credit plans and therefore are appropriately 
subject to the open-end disclosure requirements in subpart B of 
Regulation Z. The Bureau looked to the closed-end content requirements 
under TILA section 128 in developing the integrated disclosures. It did 
so because the Dodd-Frank Act mandate to propose integrated disclosures 
includes section 5 of RESPA, which requires the GFE, and only closed-
end transactions are subject to the parallel, early disclosure 
requirement under TILA section 128(b)(2)(A). Subjecting open-end 
transactions to the integrated disclosure requirements thus would 
result in consumers who are obtaining open-end credit receiving closed-
end disclosures, many of which would be inapposite and therefore 
potentially confusing or even misleading. Further, in recognition of 
the distinct nature of open-end credit, Regulation X effectively 
exempts such plans from the RESPA disclosure requirements. Sections 
1024.6(a)(2) and 1024.7(h) of Regulation X state that, for HELOCs, the 
requirements to provide the ``special information booklet'' regarding 
settlement costs and the GFE, respectively, are satisfied by delivery 
of the open-end disclosures required by Regulation Z. And Regulation X 
Sec.  1024.8(a) exempts HELOCs from the settlement statement 
requirement altogether. The Bureau expects to address HELOCs through a 
separate, future rulemaking that will establish a distinct disclosure 
scheme tailored to their unique features, which will achieve more 
effectively the purposes of both RESPA and TILA.\130\
---------------------------------------------------------------------------

    \130\ In 2009, the Board proposed significant revisions to the 
disclosure requirements for HELOCs. See 74 FR 43428 (Aug. 26, 2009). 
The Bureau is now responsible for this proposal.
---------------------------------------------------------------------------

    Coverage issues with reverse mortgages. The Bureau is aware that 
lenders and creditors face significant difficulties applying the 
disclosure requirements of RESPA and TILA to reverse mortgages, in 
light of those transactions' unusual terms and features. The 
difficulties appear to stem from the fact that a number of the 
disclosed items under existing Regulations X and Z are not relevant to 
such transactions and therefore have no meaning. Moreover, the Bureau 
developed the proposed integrated disclosure forms for use in 
``forward'' mortgage transactions and did not subject those forms, 
which implement essentially the same statutory disclosure requirements 
as do the current regulations, to any consumer testing using reverse 
mortgage transactions. The Bureau therefore is concerned that the use 
of the integrated disclosures for reverse mortgages may result in 
numerous disclosures of items that are not applicable, difficult to 
apply, or potentially even misleading or confusing for consumers.\131\ 
As with HELOCs, the Bureau expects to address reverse mortgages through 
a separate, future rulemaking process that will establish a distinct 
disclosure scheme.\132\
---------------------------------------------------------------------------

    \131\ In addition, many reverse mortgages are structured as 
open-end plans and therefore may be subject to the same concerns 
noted with respect to HELOCs.
    \132\ The Board's 2010 Mortgage Proposal included several 
provisions relating to reverse mortgages. See 75 FR 58539, 58638-59. 
Specifically, the Board proposed requiring creditors to use new 
forms of disclosures designed specifically for reverse mortgages, 
rather than the standard TILA disclosures. The 2010 Mortgage 
Proposal also proposed significant protections for reverse mortgage 
consumers, including with respect to advertising of reverse 
mortgages and cross-selling of reverse mortgages with other 
financial and insurance products. In addition, section 1076 of the 
Dodd-Frank Act required the Bureau to engage in a study of reverse 
mortgage transactions and instructed the Bureau to consider 
protections with respect to obtaining reverse mortgages for the 
purpose of funding investments, annuities, and other investment 
products and the suitability of a borrower in obtaining a reverse 
mortgage. The Bureau intends that its future rulemaking for reverse 
mortgages will address the issues identified in the Board's 2010 
Mortgage Proposal and the findings of the Bureau's reverse mortgage 
study.
---------------------------------------------------------------------------

    Coverage issues with chattel-dwelling loans. Chattel-dwelling loans 
(such as loans secured by mobile homes) do not involve real property, 
by definition. The Bureau estimates that approximately one-half of the 
closing-cost content of the integrated disclosures is not applicable to 
such transactions because they more closely resemble motor vehicle 
transactions than true mortgage transactions. Such transactions 
currently are not subject to RESPA and, unlike the transactions above 
that involve real property, generally are not consummated with ``real 
estate settlements,'' which are the basis of RESPA's coverage. Thus, 
were these

[[Page 51158]]

transactions subject to the integrated disclosures under this proposal, 
a significant portion of the disclosures' content would be 
inapplicable. The Bureau believes that permitting those items to be 
omitted altogether could compromise the overall integrity of the 
disclosures, which were developed through consumer testing that never 
contemplated such extensive omissions, and the Bureau therefore has no 
basis for expecting that they would necessarily be as informative to 
consumers if so dramatically altered. The Bureau has similar concerns 
about keeping the overall forms intact but directing creditors to 
complete the inapplicable portions with ``N/A'' or simply to leave them 
blank. Moreover, the Bureau believes that such an approach would risk 
undermining consumers' understanding of their transactions, which would 
be inconsistent with the purpose of this rulemaking, because they could 
be distracted by extensive blank or ``N/A'' disclosures from the 
relevant disclosures present on the form.
    Although chattel-dwelling loans are subject to TILA, excluding them 
from coverage of the integrated disclosures would not excuse them from 
TILA's disclosure requirements. Rather, they would remain subject to 
the existing closed-end TILA disclosure requirements as implemented in 
Sec.  1026.18. Thus, this approach preserves the current treatment of 
chattel-dwelling loans under both RESPA and TILA. The Bureau expects 
that it will undertake improvements to the Sec.  1026.18 disclosures in 
the future, through a process similar to the one used in this proposal. 
The Bureau believes that the TILA disclosures resulting from that 
process would be more appropriate and more beneficial to consumers than 
the integrated disclosures under this proposal. Excluding chattel-
dwellings from the integrated disclosure requirements means they would 
not be subjected by this rulemaking to certain new disclosure 
requirements added to TILA section 128(a) by the Dodd-Frank Act. As 
discussed under Sec.  1026.1(c) above, certain new mortgage disclosure 
requirements established by the Dodd-Frank Act are being deferred until 
such requirements are implemented by regulations. Such regulations 
include, but are not limited to, the final rule that will be adopted 
under this proposal. As noted above, the Bureau plans to address 
chattel-dwellings, as well as reverse mortgages and HELOCs, in future 
rulemakings. Accordingly, pursuant to the authority discussed above, 
those transactions also are subject to the temporary exemption in 
proposed Sec.  1026.1(c) until those rulemakings are completed.
    The Bureau's proposal. For the reasons discussed above, proposed 
Sec.  1026.19(e) and (f), discussed further below, requires that the 
integrated disclosures be provided for closed-end consumer credit 
transactions secured by real property, other than a reverse mortgage 
subject to Sec.  1026.33. Similarly, proposed Sec.  1026.19(g) requires 
provision of the home buying information booklet for closed-end 
consumer credit transactions secured by real property and states in 
Sec.  1026.19(g)(1)(iii)(C) that the requirement does not apply to 
reverse mortgages. Accordingly, construction-only loans and vacant-land 
loans are subject to the proposed integrated disclosure and booklet 
requirements. On the other hand, chattel-dwelling loans are not subject 
to the proposed integrated disclosure or booklet requirements and, 
instead, remain subject to the existing disclosure requirements in 
Sec.  1026.18. Finally, federally related mortgage loans extended by a 
person that is not a creditor, as defined in Regulation Z Sec.  
1026.2(a)(17), are not subject to the proposed integrated disclosure or 
booklet requirements because such transactions are not subject to 
Regulation Z at all.
    The Bureau believes that, although construction-only loans, vacant-
land loans, and 25-acre loans all currently are exempt from RESPA 
coverage either by statute or regulation, consumers may benefit from 
the integrated disclosures in such transactions. If such transactions 
were not subjected to the integrated disclosure requirements, they 
would remain subject to the existing TILA disclosures under Sec.  
1026.18. The Bureau believes this treatment would deprive consumers in 
such transactions of the benefits of the enhanced disclosures developed 
for this proposal. Moreover, these types of transactions involve real 
property and, therefore, are amenable to disclosure of the information 
currently disclosed through the RESPA GFE and settlement statement 
requirements. Thus, the Bureau expects that creditors should be able to 
use existing systems to provide the integrated disclosures for such 
transactions. The Bureau solicits comment, however, on whether 
application of the integrated disclosures to these transactions will 
impose significant burdens on creditors.
    The Bureau also believes that, if a lender extends five or fewer 
consumer credit transactions secured by a consumer's dwelling in a 
year, it should not be subject to TILA or Regulation Z. This treatment 
preserves the status of such transactions under existing Regulation Z. 
That is, currently, consumers do not receive Regulation Z disclosures 
from such lenders because they are not considered ``creditors'' 
pursuant to Sec.  1026.2(a)(17)(v). The Bureau believes that 
eliminating this exemption could represent a significant expansion of 
TILA coverage and is unaware of any significant problems encountered by 
consumers obtaining credit from such small lenders that might justify 
such an expansion. Further, because such small creditors may lack the 
systems to comply with TILA, they may cease to extend credit if forced 
to establish compliance systems. Although preserving this exemption 
means that the integrated disclosures would not be received by 
consumers in such transactions, the Bureau expects the impact of such 
an exemption to be limited. Based on data reported for 2010 under the 
Home Mortgage Disclosure Act (HMDA), 12 U.S.C. 2801 et seq., the Bureau 
notes that 569 creditors (seven percent of all HMDA reporters) reported 
five or fewer originations and, more significantly, that their combined 
originations of 1399 loans equaled only 0.02 percent of all 
originations reported under HMDA for that year. These transactions 
would remain subject to the RESPA disclosure requirements under 
Regulation X.
Provision of Current Disclosures Under TILA and RESPA
    TILA. Section 128(b)(2)(A) of TILA provides that for an extension 
of credit secured by a consumer's dwelling, which is also subject to 
RESPA, good faith estimates of the disclosures in section 128(a) shall 
be made in accordance with regulations of the Bureau and shall be 
delivered or placed in the mail not later than three business days 
after the creditor receives the consumer's written application. 15 
U.S.C. 1638(b)(2)(A). Section 128(b)(2)(A) also requires these 
disclosures to be delivered at least seven business days before 
consummation. Regulation Z implements this provision in Sec.  
1026.19(a), which generally tracks the statute except that it does not 
apply to home equity lines of credit subject to Sec.  1026.40 and 
mortgage transactions secured by a consumer's interest in a timeshare 
plan subject to Sec.  1026.19(a)(5).
    Section 128(b)(2)(A) and (D) of TILA states that, if the 
disclosures provided pursuant to section 128(b)(2)(A) contain an annual 
percentage rate that is no longer accurate, the creditor shall furnish 
an additional, corrected

[[Page 51159]]

statement to the borrower not later than three business days before the 
date of consummation of the transaction. 15 U.S.C. 1638(b)(2)(A), (D). 
Regulation Z implements TILA's requirement that the creditor deliver 
corrected disclosures in Sec.  1026.19(a)(2)(ii).
    RESPA. Section 5(c) of RESPA states that lenders shall provide, 
within three days of receiving the consumer's application, a good faith 
estimate of the amount or range of charges for specific settlement 
services the borrower is likely to incur in connection with the 
settlement as prescribed by the Bureau.\133\ 12 U.S.C. 2604(c). Section 
3(3) of RESPA defines ``settlement services'' as:
---------------------------------------------------------------------------

    \133\ RESPA section 5(d) provides that ``Each lender referred to 
in subsection (a) of this section shall provide the booklet 
described in such subsection to each person from whom it receives or 
for whom it prepares a written application to borrow money to 
finance the purchase of residential real estate. Such booklet shall 
be provided by delivering it or placing it in the mail not later 
than 3 business days after the lender receives the application, but 
no booklet need be provided if the lender denies the application for 
credit before the end of the 3-day period.'' RESPA section 5(c) 
provides that ``Each lender shall include with the booklet a good 
faith estimate of the amount or range of charges for specific 
settlement services the borrower is likely to incur in connection 
with the settlement as prescribed by the Bureau.'' Thus, the lender 
must deliver the good faith estimate not later than three business 
days after receiving the consumer's application.
---------------------------------------------------------------------------

    [A]ny service provided in connection with a real estate settlement 
including, but not limited to, the following: title searches, title 
examinations, the provision of title certificates, title insurance, 
services rendered by an attorney, the preparation of documents, 
property surveys, the rendering of credit reports or appraisals, pest 
and fungus inspections, services rendered by a real estate agent or 
broker, the origination of a federally related mortgage loan 
(including, but not limited to, the taking of loan applications, loan 
processing, and the underwriting and funding of loans), and the 
handling of the processing, and closing or settlement. 12 U.S.C. 
2602(3).
    Section 1024.7(a)(1) of Regulation X currently provides that, not 
later than three business days after a lender receives an application, 
or information sufficient to complete an application, the lender must 
provide the applicant with the GFE.
    In contrast to the TILA and RESPA good faith estimate requirements, 
which apply to creditors, the RESPA settlement statement requirement 
generally applies to settlement agents. Specifically, section 4 of 
RESPA provides that the settlement statement must be completed and made 
available for inspection by the borrower at or before settlement by the 
person conducting the settlement. 12 U.S.C. 2603(b). Section 4 also 
provides that, upon the request of the borrower, the person who will 
conduct the settlement shall permit the borrower to inspect those items 
which are known to such person on the settlement statement during the 
business day immediately preceding the day of settlement. Id. These 
requirements are implemented in Regulation X Sec.  1024.10(a).
    The Dodd-Frank Act. Sections 1098 and 1100A of the Dodd-Frank Act 
amended RESPA and TILA to require an integrated disclosure that ``may 
apply to a transaction that is subject to both or either provisions of 
law.'' Accordingly, as discussed below, the Bureau is proposing to 
integrate the TILA and RESPA good faith estimate requirements in a new 
Sec.  1026.19(e). The Bureau is also proposing to integrate the TILA 
and RESPA settlement statement requirements in a new Sec.  1026.19(f). 
Finally, as appropriate, the Bureau is proposing to incorporate related 
statutory and regulatory requirements into Sec.  1026.19 and to make 
conforming amendments.
19(a) Reverse Mortgage Transactions Subject to RESPA
    As discussed above, the proposal narrows the scope of Sec.  
1026.19(a) so that all loans currently subject to Sec.  1026.19(a), 
other than reverse mortgages, are instead subject to proposed Sec.  
1026.19(e) and (f). Pursuant to its authority under section 105(a) of 
TILA, the Bureau proposes to amend Sec.  1026.19(a)(1)(i) to apply only 
to reverse mortgage transactions subject to both Sec.  1026.33 and 
RESPA. This proposed amendment is consistent with TILA's purpose in 
that it seeks to ensure meaningful disclosure of credit terms by 
requiring the integrated disclosures only with respect to the loans for 
which they were designed--mortgage loans secured by real property other 
than reverse mortgages. This modification will also be in the interest 
of consumers and the public because consumer understanding will be 
improved if consumers of reverse mortgages are not provided with 
inapplicable disclosures, consistent with Dodd-Frank Act section 
1405(b). The Bureau also proposes to make conforming changes to Sec.  
1026.19(a)(1)(ii), to delete Sec.  1026.19(a)(5), to delete comments 
19(a)(5)(ii)-1 through -5, and to delete comments 19(a)(5)(iii)-1 and -
2.
19(e) Mortgage Loans Secured by Real Property--Early Disclosures
19(e)(1) Provision
19(e)(1)(i) Creditor
    As discussed above, the Bureau is proposing to integrate the good 
faith estimate requirements in TILA section 128 and RESPA section 5 in 
Sec.  1026.19(e)(1)(i), which provides that in a closed-end consumer 
credit transaction secured by real property, other than a reverse 
mortgage subject to Sec.  1026.33, the creditor shall make good faith 
estimates of the disclosures listed in Sec.  1026.37. Proposed comment 
19(e)(1)(i)-1 explains that Sec.  1026.19(e)(1)(i) requires early 
disclosure of credit terms in closed-end credit transactions that are 
secured by real property, other than reverse mortgages. These 
disclosures must be provided in good faith. Except as otherwise 
provided in Sec.  1026.19(e), a disclosure is in good faith if it is 
consistent with the best information reasonably available to the 
creditor at the time the disclosure is provided.
19(e)(1)(ii) Mortgage Broker
    Currently, neither TILA's nor RESPA's disclosure requirements apply 
to mortgage brokers. The disclosure requirements of Regulation Z also 
do not apply to mortgage brokers. Section 1024.7(b) of Regulation X, 
however, currently permits mortgage brokers to deliver the GFE, 
provided that the mortgage broker otherwise complies with the relevant 
requirements of Regulation X, and provided that the lender remains 
responsible for ensuring that the mortgage broker does so.
    The Bureau recognizes that, in some cases, permitting mortgage 
brokers to deliver the integrated disclosure may benefit consumers. 
Some consumers may have better relationships with mortgage brokers than 
with creditors, which may enable mortgage brokers to assist those 
consumers with understanding the GFE more effectively and efficiently. 
However, there are concerns regarding the ability of mortgage brokers 
to provide the information required by the integrated Loan Estimate 
accurately and reliably. For example, it is not clear that mortgage 
brokers have the ability to inform the consumer whether the lender 
intends to service the consumer's loan, or whether the lender will 
permit a person to assume the consumer's loan on the original terms. 
Similarly, it is uncertain that mortgage brokers have the ability to 
estimate taxes and insurance, which is a new disclosure on the Loan 
Estimate that is not included on the current RESPA GFE, to the level

[[Page 51160]]

of specificity required for the Loan Estimate under proposed Sec.  
1026.19(e)(3). There is an additional concern that mortgage brokers do 
not have the technology necessary to comply with TILA's requirements 
regarding delivery of estimates, delivery of revised disclosures, and 
recordkeeping.
    The Bureau proposes to exercise its authority under TILA section 
105(a) and, with respect to residential mortgage loans, Dodd-Frank Act 
section 1405(b) to preserve the flexibility in current Regulation X by 
permitting the mortgage broker to provide the integrated Loan Estimate 
under Sec.  1026.19(e)(1)(ii), subject to certain limitations. This 
proposed provision is consistent with TILA's purpose in that consumers 
will be able to compare more readily the credit terms available if 
mortgage brokers and creditors are able to disclose available credit 
terms by use of the Loan Estimate. In addition, this modification will 
be in the interest of consumers and the public because consumer 
understanding and awareness will be improved if consumers can rely on 
the Loan Estimate regardless of whether it is provided by a creditor or 
mortgage broker, consistent with Dodd-Frank Act section 1405(b). 
Specifically, proposed Sec.  1026.19(e)(1)(ii) provides that, in 
providing the Loan Estimate, the mortgage broker must act as the 
creditor in every respect, including complying with all of the 
requirements of proposed Sec.  1026.19(e) and assuming all related 
responsibilities and obligations. The Bureau also seeks comment on the 
ability of mortgage brokers to comply with the requirements of TILA. In 
addition, the Bureau seeks comment on the ability of creditors to 
coordinate their operations with mortgage brokers in a manner that 
provides the same or better information to consumers than if the 
creditor alone were permitted to provide the disclosures.
    Proposed comment 19(e)(1)(ii)-1 explains that a mortgage broker may 
provide the disclosures required under Sec.  1026.19(e)(1)(i) instead 
of the creditor. By assuming this responsibility, the mortgage broker 
becomes responsible for complying with all of the relevant requirements 
as if it were the creditor, meaning that ``mortgage broker'' should be 
read in the place of ``creditor'' for all the relevant provisions of 
Sec.  1026.19(e), except where the context indicates otherwise. The 
creditor and mortgage broker must effectively communicate to ensure 
timely and accurate compliance with the requirements of Sec.  
1026.19(e). Proposed comment 19(e)(1)(ii)-2 provides further guidance 
on the mortgage broker's responsibilities in the event that the 
mortgage broker provides the disclosures required under Sec.  
1026.19(e), explaining that if a mortgage broker issues any disclosure 
under Sec.  1026.19(e), the mortgage broker must comply with the 
requirements of Sec.  1026.19(e). For example, if the mortgage broker 
receives sufficient information to complete an application, the 
mortgage broker must issue the disclosures required under Sec.  
1026.19(e)(1)(i) within three business days in accordance with Sec.  
1026.19(e)(1)(iii). If the broker subsequently receives information 
sufficient to establish that a disclosure provided under Sec.  
1026.19(e)(1)(i) must be reissued under Sec.  1026.19(e)(3)(iv), then 
the mortgage broker is responsible for ensuring that a revised 
disclosure is provided.
    Proposed comment 19(e)(1)(ii)-3 discusses the creditor's 
responsibilities in the event that a mortgage broker provides 
disclosures under Sec.  1026.19(e). The proposed comment explains that 
if a mortgage broker issues any disclosure required under Sec.  
1026.19(e) in the creditor's place, the creditor remains responsible 
under Sec.  1026.19(e) for ensuring that the requirements of Sec.  
1026.19(e) have been satisfied. For example, the creditor must ensure 
that the broker provides the disclosures required under Sec.  
1026.19(e) not later than three business days after the mortgage broker 
received information sufficient to constitute an application, as 
defined in Sec.  1026.2(a)(3)(ii). The creditor does not satisfy the 
requirements of Sec.  1026.19(e) if it provides duplicative 
disclosures. For example, a creditor does not meet its burden by 
issuing disclosures required under Sec.  1026.19(e) that mirror 
disclosures already issued by the broker for the purpose of 
demonstrating that the consumer received timely disclosures. If the 
broker provides an erroneous disclosure, the creditor is responsible 
and may not issue a revised disclosure correcting the error. The 
creditor is expected to maintain communication with the broker to 
ensure that the broker is acting in place of the creditor. This comment 
is consistent with guidance provided by HUD in the HUD RESPA FAQs p. 8-
10,  16, 26, 29 (``GFE--General''). Disclosures provided by a 
broker in accordance with Sec.  1026.19(e)(1)(ii) satisfy the 
creditor's obligation under Sec.  1026.19(e)(1)(i).
    Proposed comment 19(e)(1)(ii)-4 discusses when mortgage brokers 
must comply with Sec.  1026.19(e)(2)(ii), regarding the provision of 
preliminary written estimates specific to the consumer. The proposed 
comment explains that Sec.  1026.19(e)(1)(ii) requires mortgage brokers 
to comply with Sec.  1026.19(e)(2)(ii) if a mortgage broker provides 
any disclosures under Sec.  1026.19(e). For example, if a mortgage 
broker never provides disclosures required by Sec.  1026.19(e), the 
mortgage broker need not include the disclosure required by Sec.  
1026.19(e)(2)(ii) on written information provided to consumers.
19(e)(1)(iii) Timing
    Section 128(b)(2)(A) of TILA provides that good faith estimates of 
the disclosures under section 128(a) shall be delivered or placed in 
the mail not later than three business days after the creditor receives 
the consumer's written application. 15 U.S.C. 1638(b)(2)(A). Section 
128(b)(2)(A) also requires these disclosures to be delivered at least 
seven business days before consummation. RESPA requires lenders to 
provide the GFE not later than three business days after receiving the 
consumer's application, but does not require provision at least seven 
business days before consummation. These requirements are implemented 
in Sec.  1026.19(a)(1)(i) and (a)(2)(i) of Regulation Z and Sec.  
1024.7(a)(2) of Regulation X, respectively.
    The Bureau believes that, for the proposed rule to be consistent 
with the requirements of both statutes, both the three-business-day 
delivery requirement and the seven-business-day waiting period should 
apply to the integrated Loan Estimate. Although RESPA does not contain 
a seven-business-day waiting period, this waiting period is consistent 
with the purposes of RESPA, and adopting it for the integrated 
disclosures may best effectuate the purposes of both TILA and RESPA by 
enabling the informed use of credit and ensuring effective advance 
disclosure of settlement charges. Accordingly, pursuant to its 
authority under TILA section 105(a), RESPA section 19(a), Dodd-Frank 
Act section 1032(a), and, for residential mortgage loans, section 
1405(b) of the Dodd-Frank Act, the Bureau proposes Sec.  
1026.19(e)(1)(iii), which provides that the creditor shall deliver the 
disclosures required by Sec.  1026.19(e)(1)(i) not later than the third 
business day after the creditor receives the consumer's application, as 
defined in proposed Sec.  1026.2(a)(3)(ii), and that the creditor shall 
deliver these disclosures not later than the seventh business day 
before consummation of the transaction. This proposed provision is 
consistent with TILA's purposes in that consumers will be able to 
compare more readily the various credit terms available and avoid the 
uninformed use of credit, thereby assuring a meaningful

[[Page 51161]]

disclosure of credit terms. This proposed regulation is consistent with 
section 19(a) of RESPA because it achieves the purposes of RESPA by 
requiring more effective advance disclosure to consumers of settlement 
costs. In addition, the Bureau is proposing this provision pursuant to 
its authority under Dodd-Frank Act section 1032(a) because the proposal 
ensures that the features of the credit transaction are fully, 
accurately, and effectively disclosed to the consumer in a manner that 
permits consumers to understand the costs, benefits, and risks 
associates with the mortgage loan by providing sufficient time to 
review, question, and understand the entire cost of the transaction, 
which is also in the best interest of consumers and the public, 
consistent with Dodd-Frank Act section 1405(b).
    Proposed comment 19(e)(1)(iii)-1 further clarifies this provision 
and provides illustrative examples. Proposed comment 19(e)(1)(iii)-2 
discusses the waiting period, providing that the seven-business-day 
waiting period begins when the creditor delivers the disclosures or 
places them in the mail, not when the consumer receives or is presumed 
to have received the disclosures. For example, if a creditor delivers 
the early disclosures to the consumer in person or places them in the 
mail on Monday, June 1, consummation may occur on or after Tuesday, 
June 9, the seventh business day following delivery or mailing of the 
early disclosures, because, for the purposes of Sec.  
1026.19(e)(1)(iii), Saturday is a business day, pursuant to Sec.  
1026.2(a)(6).
    Proposed comment 19(e)(1)(iii)-3 relates to denied or withdrawn 
applications, explaining that the creditor may determine within the 
three-business-day period that the application will not or cannot be 
approved on the terms requested, such as when a consumer's credit score 
is lower than the minimum score required for the terms the consumer 
applied for, or the consumer applies for a type or amount of credit 
that the creditor does not offer. In that case, or if the consumer 
withdraws the application within the three-business-day period, the 
creditor need not make the disclosures required under Sec.  
1026.19(e)(1)(i). If the creditor fails to provide early disclosures 
and the transaction is later consummated on the terms originally 
applied for, then the creditor violates Sec.  1026.19(e)(1)(i). If, 
however, the consumer amends the application because of the creditor's 
unwillingness to approve it on the terms originally applied for, no 
violation occurs for not providing disclosures based on those original 
terms. But the amended application is a new application subject to 
Sec.  1026.19(e)(1)(i).
19(e)(1)(iv) Delivery
    Section 128(b)(2)(E) of TILA provides that, if the disclosures are 
mailed to the consumer, the consumer is considered to have received 
them three business days after they are mailed. 15 U.S.C. 
1638(b)(2)(E). RESPA provides that the GFE may be delivered either in 
person or by placing it in the mail. 12 U.S.C. Sec.  2604(c) and (d). 
Regulation Z provides that if the disclosures are provided to the 
consumer by means other than delivery in person, the consumer is 
considered to have received the disclosures three business days after 
they are mailed or delivered. See Sec.  1026.19(a)(1)(ii). Regulation X 
contains a similar provision. See Sec.  1024.7(a)(4).
    To establish a consistent standard for the integrated Loan 
Estimate, pursuant to its authority under TILA section 105(a), RESPA 
section 19(a), Dodd-Frank Act section 1032(a), and, for residential 
mortgage loans, section 1405(b) of the Dodd-Frank Act, the Bureau 
proposes Sec.  1026.19(e)(1)(iv), which states that, if the disclosures 
are provided to the consumer by means other than delivery in person, 
the consumer is presumed to have received the disclosures three 
business days after they are mailed or delivered to the address 
specified by the consumer.
    Proposed comment 19(e)(1)(iv)-1 explains that if any disclosures 
required under Sec.  1026.19(e)(1)(i) are not provided to the consumer 
in person, the consumer is presumed to have received the disclosures 
three business days after they are mailed or delivered. This is a 
presumption which may be rebutted by providing evidence that the 
consumer received the disclosures earlier than three business days. The 
proposed comment also contains illustrative examples. Proposed comment 
19(e)(1)(iv)-2 clarifies that the presumption established in Sec.  
1026.19(e)(1)(iv) applies to methods of electronic delivery, such as 
email. However, creditors using electronic delivery methods, such as 
email, must also comply with Sec.  1026.17(a)(1). The proposed comment 
also contains illustrative examples.
19(e)(1)(v) Consumer's Waiver of Waiting Period Before Consummation
    Section 128(b)(2)(F) of TILA provides that the consumer may waive 
or modify the timing requirements for disclosures to expedite 
consummation of a transaction, if the consumer determines that the 
extension of credit is needed to meet a bona fide personal financial 
emergency. Section 128(b)(2)(F) further provides that: (1) the term 
``bona fide personal financial emergency'' may be further defined in 
regulations issued by the Bureau; (2) the consumer must provide the 
creditor with a dated, written statement describing the emergency and 
specifically waiving or modifying the timing requirements, which bears 
the signature of all consumers entitled to receive the disclosures; and 
(3) the creditor must provide, at or before the time of waiver or 
modification, the final disclosures. 15 U.S.C. 1638(b)(2)(F). This 
provision is implemented in Sec.  1026.19(a)(3) of Regulation Z. 
Neither RESPA nor Regulation X contains a similar provision.
    Although the Bureau understands that waivers based on a bona fide 
personal financial emergency are rare, this exception serves an 
important purpose: consumers should be able to waive the protection 
afforded by the waiting period if, in the face of a financial 
emergency, the waiting period does more harm than good. Accordingly, 
pursuant to its authority under TILA section 105(a) and RESPA section 
19(a) the Bureau is proposing Sec.  1026.19(e)(1)(v), which allows a 
consumer to waive the seven-business-day waiting period in the event of 
a bona fide personal financial emergency. In addition, the Bureau seeks 
comment on the nature of waivers based on bona fide personal financial 
emergencies. The Bureau also seeks comment on whether the bona fide 
personal financial emergency exception is needed more in some contexts 
than in others (e.g., in refinance transactions or purchase money 
transactions).
    Proposed comment 19(e)(1)(v)-1 explains that a consumer may modify 
or waive the right to the seven-business-day waiting period required by 
Sec.  1026.19(e)(1)(iii) only after the creditor makes the disclosures 
required by Sec.  1026.19(e)(1)(i). The consumer must have a bona fide 
personal financial emergency that necessitates consummating the credit 
transaction before the end of the waiting period. Whether these 
conditions are met is determined by the individual facts and 
circumstances. The imminent sale of the consumer's home at foreclosure, 
where the foreclosure sale will proceed unless loan proceeds are made 
available to the consumer during the waiting period, is one example of 
a bona fide personal financial emergency. Each consumer who is 
primarily liable on the legal obligation must sign the written 
statement for the waiver to be effective. Proposed comment 19(e)(1)(v)-
2

[[Page 51162]]

provides illustrative examples of this requirement.
19(e)(1)(vi) Shopping for Settlement Service Providers
    Neither TILA nor RESPA nor Regulation Z requires creditors to 
inform consumers about settlement service providers for whom the 
consumer may shop. However, as explained above, Regulation X provides 
that where a lender or mortgage broker permits a borrower to shop for 
third party settlement services, the lender or broker must provide the 
borrower with a written list of settlement services providers at the 
time the GFE is provided on a separate sheet of paper. 12 CFR part 1024 
app. C. HUD intended this requirement to enable consumers to shop for 
settlement service providers, thereby enhancing market competition and 
lowering settlement service costs for consumers. See 73 FR at 14030. 
The Bureau agrees that the written list of settlement service providers 
may benefit consumers by fostering settlement service shopping.
    Therefore, the Bureau proposes Sec.  1026.19(e)(1)(vi). As an 
initial matter, proposed Sec.  1026.19(e)(1)(vi)(A) provides that a 
creditor permits a consumer to shop for a settlement service if the 
creditor permits the consumer to select the provider of that service, 
subject to reasonable minimum requirements regarding the qualifications 
of the provider. Comment 19(e)(1)(vi)-1 provides examples of minimum 
requirements that are and are not reasonable. For example, the creditor 
may require that a settlement agent chosen by the consumer must be 
appropriately licensed in the relevant jurisdiction. In contrast, a 
creditor may not require the consumer to choose a provider from a list 
provided by creditor. This comment also clarifies that the requirements 
of Sec.  1026.19(e)(1)(vi)(B) and (C) do not apply if the creditor does 
not permit the consumer to shop.
    Proposed Sec.  1026.19(e)(1)(vi)(B) provides that the creditor 
shall identify the services for which the consumer is permitted to shop 
in the Loan Estimate. Comment 19(e)(1)(vi)-2 clarifies that Sec.  
1026.37(f)(3) contains the content and format requirements for this 
disclosure.
    Proposed Sec.  1026.19(e)(1)(vi)(C) provides that, if the creditor 
permits a consumer to shop for a settlement service, the creditor shall 
provide the consumer with a written list identifying available 
providers of that service and stating that the consumer may choose a 
different provider for that service. It further requires that the list 
be provided separately from the Loan Estimate but in accordance with 
the timing requirements for that disclosure (i.e., within three days 
after application).
    Comment 19(e)(1)(vi)-3 explains that the settlement service 
providers identified on the written list must correspond to the 
settlement services for which the consumer may shop, as disclosed on 
the Loan Estimate pursuant to Sec.  1026.37(f)(3). It also refers to 
the model list provided in form H-27.
    Comment 19(e)(1)(vi)-4 clarifies that a creditor does not comply 
with the requirement in Sec.  1026.19(e)(1)(vi)(C) to ``identify'' 
providers unless it provides sufficient information to allow the 
consumer to contact the provider, such as the name under which the 
provider does business and the provider's address and telephone number. 
It also clarifies that a creditor does not comply with the availability 
requirement in Sec.  1026.19(e)(1)(vi)(C) if it provides a written list 
consisting of only settlement service providers that are no longer in 
business or that do not provide services where the consumer or property 
is located. However, if the creditor determines that there is only one 
available settlement service provider, the comment clarifies that the 
creditor need only identify that provider on the written list of 
providers. The guidance regarding availability is consistent with 
guidance provided by HUD in the HUD RESPA FAQs p. 15,  7 
(``GFE--Written list of providers'').
    Comment 19(e)(1)(vi)-5 refers to form H-27 for an example of a 
statement that the consumer may choose a provider that is not included 
on that list. Comment 19(e)(1)(vi)-6 clarifies that the creditor may 
include a statement on the written list that the listing of a 
settlement service provider does not constitute an endorsement of that 
service provider. It further clarifies that the creditor may also 
identify in the written list providers of services for which the 
consumer is not permitted to shop, provided that the creditor expressly 
and clearly distinguishes those services from the services for which 
the consumer is permitted to shop. This may be accomplished by placing 
the services under different headings.
    Finally, comment 19(e)(1)(vi)-7 discusses how proposed Sec.  
1026.19(e)(1)(vi) relates to the requirements of RESPA and Regulation 
X. The proposed comment explains that Sec.  1026.19 does not prohibit 
creditors from including affiliates on the written list under Sec.  
1026.19(e)(1)(vi). However, a creditor that includes affiliates on the 
written list must also comply with Sec.  1024.15 of Regulation X. This 
comment is consistent with guidance provided by HUD in its RESPA FAQs 
p. 16,  9 (``GFE--Written list of providers''). The proposed 
comment also explains that the written list is a ``referral'' under 
Sec.  1024.14(f). This comment is consistent with guidance provided by 
HUD in the HUD RESPA FAQs p. 14,  4 (``GFE--Written list of 
providers'').
    In addition to these proposed regulations and comments, the Bureau 
solicits comment regarding whether the final rule should provide more 
detailed requirements for the written list of providers. The Bureau 
also solicits comment regarding whether the final rule should include 
additional guidance regarding the content and format of the provider 
list.
    This proposal is made pursuant to the Bureau's authority under 
sections 105(a) of TILA, 19(a) of RESPA, and, for residential mortgage 
loans, sections 129B(e) of TILA and 1405(b) of the Dodd-Frank Act. This 
proposed provision is consistent with TILA's purposes in that it will 
increase consumer awareness of the costs of the transaction by 
informing consumers that settlement costs can be influenced by 
shopping, thereby promoting the informed use of credit. This provision 
is consistent with section 129B(e) of TILA because failing to inform 
borrowers of available settlement service providers increases the 
difficulty of shopping for those services, which is not in the interest 
of the borrower. It achieves the purposes of RESPA because disclosure 
of available settlement service providers encourages consumer shopping 
and settlement service provider competition, which will result in the 
elimination of kickbacks, referral fees, and other practices that tend 
to increase unnecessarily the costs of certain settlement services. In 
addition, the requirements in proposed Sec.  1026.19(e)(1)(vi) are in 
the interest of consumers and in the public interest because they will 
improve consumer understanding and awareness of the mortgage loan 
transaction through the use of disclosure by informing consumers about 
shopping for settlement service providers and making consumers aware of 
different settlement service providers available for the transaction, 
consistent with Dodd-Frank Act section 1405(b).
19(e)(2) Pre-Disclosure Activity
19(e)(2)(i) Imposition of Fees on Consumer
19(e)(2)(i)(A) Fee Restriction
    Section 128(b)(2)(E) of TILA provides that the ``consumer shall 
receive the disclosures required under [TILA

[[Page 51163]]

section 128(b)] before paying any fee to the creditor or other person 
in connection with the consumer's application for an extension of 
credit that is secured by the dwelling of a consumer.'' 15 U.S.C. 
1638(b)(2)(E). This provision is implemented in Sec.  
1026.19(a)(1)(ii). Although RESPA does not expressly contain a similar 
provision, Regulation X does. See Sec.  1024.7(a)(4). However, unlike 
Regulation Z, Regulation X prohibits a consumer from paying a fee until 
the consumer indicates an intent to proceed with the transaction after 
receiving the disclosures. Id. As discussed below, both Regulation Z 
and Regulation X provide an exception only for the cost of obtaining a 
credit report.
    Thus, Regulation X requires consumers to take an additional 
affirmative step before new fees may be charged. The Bureau believes 
that the goals of the integrated disclosure are best served by adopting 
the approach under Regulation X. The Bureau intends for consumers to 
use the integrated disclosure to make informed financial decisions. 
This goal may also be inhibited if fees are imposed on consumers before 
a consumer indicates intent to proceed. For example, after reviewing 
the Loan Estimate a consumer may be uncertain that the disclosed terms 
are in the consumer's best interest or that the disclosed terms are 
those for which the consumer originally asked. If fees may be imposed 
before the consumer decides to proceed with a particular loan, 
consumers may not take additional time to understand the costs and 
evaluate the risks of the disclosed loan. The Bureau also intends for 
consumers to use the integrated disclosure to compare loan products 
from different creditors. If creditors can impose fees on consumers 
once the Loan Estimate is delivered, but before the consumer indicates 
intent to proceed, shopping may be inhibited. For example, after 
reviewing the Loan Estimate a consumer may be uncertain that the 
disclosed terms are the most favorable terms the consumer could receive 
in the market. If fees may be imposed before the consumer decides to 
proceed with a particular loan, consumers may determine that too much 
cost has been expended on a particular Loan Estimate to continue 
shopping, even though the consumer believes more favorable terms could 
be obtained from another creditor. Or, consumers may determine that 
obtaining a Loan Estimate from multiple creditors is too costly if each 
creditor can impose fees for each Loan Estimate.
    Accordingly, pursuant to its authority under TILA section 105(a) 
and RESPA section 19(a), the Bureau proposes Sec.  1026.19(e)(2)(i)(A), 
which provides that no person may impose a fee on a consumer in 
connection with the consumer's application before the consumer has 
received the disclosures required by Sec.  1026.19(e)(1)(i) and 
indicated to the creditor an intent to proceed with the transaction 
described by those disclosures. This proposed regulation carries out 
the purposes of TILA because requiring the specific identification of 
the fee imposed assures meaningful disclosures of credit terms, 
consistent with section 105(a) of TILA, and it achieves the purposes of 
RESPA because the more specific identification of the fee is a more 
effective method of advance disclosure, consistent with section 19(a) 
of RESPA.
    Proposed comment 19(e)(2)(i)(A)-1 explains that a creditor or other 
person may not impose any fee, such as for an application, appraisal, 
or underwriting, until the consumer has received the disclosures 
required by Sec.  1026.19(e)(1)(i) and indicated an intent to proceed 
with the transaction. The only exception to the fee restriction allows 
the creditor or other person to impose a bona fide and reasonable fee 
for obtaining a consumer's credit report, pursuant to Sec.  
1026.19(e)(2)(i)(B). Proposed comment 19(e)(2)(i)(A)-2 explains that 
the consumer may indicate intent to proceed in any manner the consumer 
chooses, unless a particular manner of communication is required by the 
creditor, provided that the creditor does not assume silence is 
indicative of intent. The creditor must document this communication to 
satisfy the requirements of Sec.  1026.25. The proposed comment also 
includes illustrative examples.
    Proposed comment 19(e)(2)(i)(A)-3 discusses the collection of fees 
and provides that at any time prior to delivery of the required 
disclosures, the creditor may impose a credit report fee as provided in 
Sec.  1026.19(e)(2)(i)(B). However, the consumer must receive the 
disclosures required by Sec.  1026.19(e)(1)(i) and indicate an intent 
to proceed with the mortgage loan transaction before paying or 
incurring any other fee imposed by a creditor or other person in 
connection with the consumer's application for a mortgage loan that is 
subject to Sec.  1026.19(e)(1)(i). Proposed comment 19(e)(2)(i)(A)-4 
provides illustrative examples regarding these requirements.
    Proposed comment 19(e)(2)(i)(A)-5 discusses determining when a 
particular charge is ``imposed by'' a person. The proposed comment 
provides that, for purposes of Sec.  1026.19(e), a fee is ``imposed 
by'' a person if the person requires a consumer to provide a method for 
payment, even if the payment is not made at that time. For example, a 
creditor may not require the consumer to provide a $500 check to pay a 
``processing fee'' before the consumer receives the disclosures 
required by Sec.  1026.19(e)(1)(i) and the consumer subsequently 
indicates intent to proceed. The creditor in this example does not 
comply even if the creditor does not deposit the check until after the 
disclosures required by Sec.  1026.19(e)(1)(i) are received by the 
consumer and the consumer subsequently indicates intent to proceed. 
Similarly, a creditor may not require the consumer to provide a credit 
card number before the consumer receives the disclosures required by 
Sec.  1026.19(e)(1)(i) and the consumer subsequently indicates intent 
to proceed, even if the creditor promises not to charge the consumer's 
credit card for the $500 processing fee until after the disclosures 
required by Sec.  1026.19(e)(1)(i) are received by the consumer and the 
consumer subsequently indicates intent to proceed. In contrast, a 
creditor complies with Sec.  1026.19(e)(2) if the creditor requires the 
consumer to provide a credit card number before the consumer receives 
the disclosures required by Sec.  1026.19(e)(1)(i) and subsequently 
indicates intent to proceed if the consumer's authorization is only to 
pay for the cost of a credit report. This is so even if the creditor 
maintains the consumer's credit card number on file and charges the 
consumer a $500 processing fee after the disclosures required by Sec.  
1026.19(e)(1)(i) are received and the consumer subsequently indicates 
intent to proceed, provided that the creditor requested and received a 
separate authorization for the processing fee charge from the consumer 
after the consumer received the disclosures required by Sec.  
1026.19(e)(1)(i).
19(e)(2)(i)(B) Exception to Fee Restriction
    Section 1026.19(a)(1)(iii) of Regulation Z currently provides that 
a person may impose a fee for obtaining a consumer's credit history 
prior to providing the good faith estimates, which is the lone 
exception to the general rule established by Sec.  1026.19(a)(1)(ii) 
that fees may not be imposed prior to the consumer's receipt of the 
disclosures. Section 1024.7(a)(4) of Regulation X contains a similar 
exception, but it differs in two important respects. First, Regulation 
Z provides that the fee may be imposed for a consumer's ``credit 
history,'' while

[[Page 51164]]

Regulation X specifies that the fee must be for the consumer's ``credit 
report.'' The Regulation Z provision could be read as permitting a 
broader range of activity than just acquiring a consumer's credit 
report. The Bureau believes that the purposes of the integrated 
disclosure are better served by adopting the terminology used by 
Regulation X. Consumers should be able to receive a reliable estimate 
of mortgage loan costs with as little up-front expense and burden as 
possible, while creditors should be able to receive sufficient 
information from the credit report alone to develop a reasonably 
accurate estimate of costs.
    Another issue stems from existing commentary under Regulation Z, 
which provides that the fee charged pursuant to Sec.  
1026.19(a)(1)(iii) may be described or referred to as an ``application 
fee,'' provided the fee meets the other requirements of Sec.  
1026.19(a)(1)(iii). The Bureau believes that the better approach, for 
purposes of the integrated disclosure, is to require a fee for a credit 
report to be disclosed with the more precise label. Consumers may be 
more likely to understand that a credit report fee is imposed if a fee 
for the purpose of obtaining a credit report is clearly described as 
such. Additionally, compliance costs are generally reduced when 
regulatory requirements are standardized. Accordingly, the Bureau 
proposes Sec.  1026.19(e)(2)(i)(B), which provides that a person may 
impose a bona fide and reasonable fee for obtaining the consumer's 
credit report before the consumer has received the disclosures required 
by Sec.  1026.19(e)(1)(i). Proposed comment 19(e)(2)(i)(B)-1 clarifies 
that a creditor or other person may impose a fee before the consumer 
receives the required disclosures if it is for purchasing a credit 
report on the consumer, provided that such fee is bona fide and 
reasonable in amount. Also, the creditor must accurately describe or 
refer to this fee, for example, as a ``credit report fee.''
19(e)(2)(ii) Written Information Provided to Consumer
    The Bureau understands that consumers often request written 
estimates of loan terms before receiving the RESPA GFE. The Bureau 
recognizes that these written estimates may be helpful to consumers. 
However, the Bureau is concerned that consumers may confuse such 
written estimates, which are not subject to the good faith requirements 
of TILA section 128(b)(2)(A) and RESPA section 5 and may be unreliable, 
with the disclosures required under Sec.  1026.19(e)(1)(i), which must 
be made in good faith. The Bureau is also concerned that unscrupulous 
creditors may use formatting and language similar to the disclosures 
required under Sec.  1026.19(e)(1)(i) to deceive consumers into 
believing that the creditor's unreliable written estimate is actually 
the disclosure required under Sec.  1026.19(e)(1)(i). These concerns 
are particularly important in light of section 1405(b) of the Dodd-
Frank Act, which places emphasis on improving ``consumer awareness and 
understanding of transactions involving residential mortgage loans 
through the use of disclosures.''
    Creditors may choose to issue, and consumers may want, preliminary 
written estimates based on less information than is needed to issue the 
disclosures required under Sec.  1026.19(e)(1)(i). However, mortgage 
loan costs are often highly sensitive to the information that triggers 
the disclosures. Thus, the disclosures required under Sec.  
1026.19(e)(1)(i) may be more accurate indicators of cost than 
preliminary written estimates. Consumers may better understand the 
sensitivity of mortgage loan costs to information about the consumer's 
creditworthiness and collateral value if consumers are aware of the 
difference between preliminary written estimates and disclosures 
required under Sec.  1026.19(e)(1)(i). Additionally, section 1032(a) of 
the Dodd-Frank Act authorizes the Bureau to prescribe rules to ensure 
the full, accurate, and effective disclosure of mortgage loan costs in 
a manner that permits consumers to understand the associated risks. 
Consumers may not appreciate that preliminary written estimates, which 
are not subject to the good faith requirements, may not constitute a 
full, accurate, and effective description of costs, as opposed to 
relying on the disclosures required under Sec.  1026.19(e)(1)(i), which 
must be made in good faith. The Bureau seeks to foster consumer 
understanding of the reliability of the cost information provided, 
while permitting the use of preliminary written estimates which may be 
beneficial to consumers.
    Accordingly, pursuant to its authority under section 105(a) of 
TILA, section 1032(a) of the Dodd-Frank Act, and, for residential 
mortgage loans, sections 129B(e) of TILA and 1405(b) of the Dodd-Frank 
Act, the Bureau proposes to require creditors to distinguish between 
preliminary written estimates of mortgage loan costs, which are not 
subject to the good faith requirements under TILA and RESPA, and the 
disclosures required under Sec.  1026.19(e)(1)(i), which are. Proposed 
Sec.  1026.19(e)(2)(ii) would require creditors to provide consumers 
with a disclosure indicating that the written estimate is not the Loan 
Estimate required by RESPA and TILA, if a creditor provides a consumer 
with a written estimate of specific credit terms or costs before the 
consumer receives the disclosures under Sec.  1026.19(e)(1)(i) and 
subsequently indicates an intent to proceed with the mortgage loan 
transaction. This proposed provision is consistent with section 105(a) 
of TILA in that it will increase consumer awareness of the costs of the 
transaction by informing consumers of the risk of relying on 
preliminary written estimates, thereby assuring a meaningful disclosure 
of credit terms and promoting the informed use of credit. This proposed 
provision is consistent with section 129B(e) of TILA because permitting 
creditors to provide borrowers with a preliminary written estimate and 
the Loan Estimate required by TILA and RESPA without a disclosure 
indicating the difference between the two is not in the interest of the 
borrower.
    Proposed comment 19(e)(2)(ii)-1 explains that this requirement 
applies only to written information specific to the consumer. For 
example, if the creditor provides a document showing the estimated 
monthly payment for a mortgage loan, and the estimate was based on the 
estimated loan amount and the consumer's estimated credit score, then 
the creditor must include a notice on the document. In contrast, if the 
creditor provides the consumer with a preprinted list of closing costs 
common in the consumer's area, the creditor need not include the 
warning. The proposed comment also clarifies that this requirement does 
not apply to an advertisement, as defined in Sec.  1026.2(a)(2). This 
proposed comment also contains a reference to comment 19(e)(1)(ii)-4 
regarding mortgage broker provision of written estimates specific to 
the consumer.
19(e)(2)(iii) Verification of Information
    Section 1024.7(a)(5) of Regulation X currently provides that a 
creditor may collect any information from the consumer deemed 
necessary, but the creditor may not require the consumer to provide 
documentation verifying any information the consumer provided in 
connection with the application. In order to minimize the cost to 
consumers of obtaining Loan Estimates, the Bureau believes that this 
provision should apply to the integrated disclosure. The Bureau 
proposes Sec.  1026.19(e)(2)(iii), which provides that a creditor shall 
not require a consumer to submit documents verifying information 
related

[[Page 51165]]

to the consumer's application before providing the disclosures required 
by Sec.  1026.19(e)(1)(i).
    The Bureau makes this proposal pursuant to its authority under 
section 105(a) of TILA, section 19(a) of RESPA, and, for residential 
mortgage loans, section 129B(e) of TILA. The proposed regulation will 
effectuate the purposes of TILA by reducing the burden to consumers 
associated with obtaining different offers of available credit terms, 
thereby facilitating consumers' ability to compare credit terms, 
consistent with section 105(a) of TILA. This proposed provision is 
consistent with section 129B(e) of TILA because requiring documentation 
to verify the information provided in connection with an application 
increases the burden on borrowers associated with obtaining different 
offers of available credit terms, which is not in the interest of the 
borrower. This proposed regulation will enable consumers to receive 
information about the mortgage loan without imposing costs or burdens 
on the consumer, which will facilitate shopping, thereby effecting 
changes in the settlement process that will result in the elimination 
of kickbacks, referral fees, and other practices that tend to increase 
unnecessarily the costs of certain settlement services, consistent with 
the Bureau's authority under section 19(a) of RESPA.
    Proposed comment 19(e)(2)(iii)-1 explains that the creditor may 
collect from the consumer any information that it requires prior to 
providing the early disclosures, including information not listed in 
Sec.  1026.2(a)(3)(ii). However, the creditor is not permitted to 
require, before providing the disclosures required by Sec.  
1026.19(e)(1)(i), that the consumer submit documentation to verify the 
information provided by the consumer. For example, the creditor may ask 
for the names, account numbers, and balances of the consumer's checking 
and savings accounts, but the creditor may not require the consumer to 
provide bank statements, or similar documentation, to support the 
information the consumer provides orally before providing the 
disclosures required by Sec.  1026.19(e)(1)(i).
19(e)(3) Good Faith Determination for Estimates of Closing Costs
Background
    As noted above, section 102(a) of TILA provides: ``The Congress 
finds that economic stabilization would be enhanced and the competition 
among the various financial institutions and other firms engaged in the 
extension of consumer credit would be strengthened by the informed use 
of credit. The informed use of credit results from an awareness of the 
cost thereof by consumers.'' 15 U.S.C. 1601(a). This section further 
provides that the purpose of TILA is ``to assure a meaningful 
disclosure of credit terms so that the consumer will be able to compare 
more readily the various credit terms available to him and avoid the 
uninformed use of credit.'' Id.
    To further these goals, TILA requires creditors to disclose certain 
information about the cost of credit. In the context of certain 
mortgage loans, the disclosures required under section 128(a) of TILA 
generally are either costs imposed in connection with the extension of 
credit, or measures of such costs, such as the annual percentage rate. 
15 U.S.C. 1638(b). Examples of items that affect the APR are fees and 
charges imposed by creditors, such as points and underwriting fees. 
Section 128(b)(2)(A) provides that these disclosures must be delivered 
not later than three business days after the creditor receives the 
consumer's written application. Section 128(b)(2)(D) requires the 
creditor to inform the consumer, no later than three business days 
before consummation, if the costs of the mortgage loan, as reflected in 
the annual percentage rate, change from what was originally disclosed. 
15 U.S.C. 1638(b)(2)(A), (D).
    TILA contains tolerances for determining whether an estimated 
disclosure is accurate. For example, section 106(f) provides that the 
finance charge is not accurate if the estimated finance charge 
disclosed to the consumer changes by more than a certain amount. 15 
U.S.C. 1605(f). If disclosures such as these become inaccurate, TILA 
requires creditors to provide revised disclosures with the corrected 
amounts. 15 U.S.C. 1638(b)(2)(D). TILA also permits the creation of new 
tolerances if the Bureau deems them necessary. Specifically, section 
121(d) provides that the ``Bureau shall determine whether tolerances 
for numerical disclosures other than the annual percentage rate are 
necessary to facilitate compliance with [TILA], and if it determines 
that such tolerances are necessary to facilitate compliance, it shall 
by regulation permit disclosures within such tolerances.'' 15 U.S.C. 
1631(d). Section 121(d) further provides that the ``Bureau shall 
exercise its authority to permit tolerances for numerical disclosures 
other than the annual percentage rate so that such tolerances are 
narrow enough to prevent such tolerances from resulting in misleading 
disclosures or disclosures that circumvent the purposes of [TILA].'' 
Id.
    Historically, TILA has generally focused on the costs imposed by 
creditors alone. In contrast, RESPA, in broadly focusing on all costs 
associated with real estate transactions, was designed to address 
market failures in the real estate settlement services industry. 
Echoing TILA, Congress enacted RESPA to ``[e]nsure that consumers 
throughout the Nation are provided with greater and more timely 
information on the nature and costs of the settlement process and are 
protected from unnecessarily high settlement charges caused by certain 
abusive practices.'' 12 U.S.C. 2601(a). Congress identified ``more 
effective advance disclosure to home buyers and sellers of settlement 
costs'' as a specific purpose of RESPA. Id.
    RESPA requires early disclosure of settlement costs to further 
Congress's stated purpose that consumers should receive effective 
advance disclosures of such costs. As discussed above, RESPA requires 
lenders to provide consumers with good faith estimates of settlement 
costs, which include most fees charged in connection with a real 
property settlement, within three days of receiving a consumer's 
application for a mortgage loan. 12 U.S.C. 2602(3), 2604(c), (d).
    Regulation Z also contains a good faith estimate requirement, which 
implements the requirements of TILA section 128(b)(2)(A), in the 
context of certain mortgage loans. Section 1026.19(a)(1)(i) of 
Regulation Z provides that ``the creditor shall make good faith 
estimates of the disclosures required by Sec.  1026.18 and shall 
deliver or place them in the mail not later than the third business day 
after the creditor receives the consumer's written application.'' 
Section 1026.18 includes several disclosures related to the cost of 
credit, such as the amount financed, finance charge, and annual 
percentage rate. Section 1026.18(c)(3) also provides that the 
itemization of amount financed need not be delivered if the RESPA GFE 
is provided.
    After a 10-year investigatory process, HUD amended Regulation X to 
establish new regulatory requirements surrounding the content, 
accuracy, and delivery of the GFE. HUD's 2008 RESPA Final Rule added 
``tolerance'' categories limiting the variation between the estimated 
amounts of settlement charges included on the GFE and the actual 
amounts included on the RESPA settlement statement. Section 
1024.7(e)(1) of Regulation X provides that the actual charges at 
settlement may not exceed the amounts included on the

[[Page 51166]]

GFE for (1) the origination charge, (2) while the borrower's interest 
rate is locked, the credit or charge for the interest rate chosen, (3) 
while the borrower's interest rate is locked, the adjusted origination 
charge; and (4) transfer taxes. Section 1024.7(e)(2) provides that the 
sum of the charges at settlement for the following services may not be 
greater than 10 percent above the sum of the estimated charges for 
those services included on the GFE for (1) lender-required settlement 
services, where the lender selects the third party settlement service 
provider, (2) lender-required services, title services and required 
title insurance, and owner's title insurance, when the borrower uses a 
settlement service provider identified by the loan originator, and (3) 
government recording charges. Section 1024.7(e)(3) provides that all 
other estimated charges may change by any amount prior to settlement.
    The 2008 RESPA Final Rule also provided that the estimates included 
on the GFE are binding, with certain limited exceptions and subject to 
variations permitted by the tolerance categories. 73 FR at 68218-19. 
Section 1024.7(f)(1) provides: ``If changed circumstances result in 
increased costs for any settlement services such that the charges at 
settlement would exceed the tolerances for those charges, the loan 
originator may provide a revised GFE to the borrower.'' Section 
1024.7(f)(2) provides: ``If changed circumstances result in a change in 
the borrower's eligibility for the specific loan terms identified in 
the GFE, the loan originator may provide a revised GFE to the 
borrower.''
    ``Changed circumstances'' are defined as (1) acts of God, war, 
disaster, or other emergency; (2) information particular to the 
borrower or transaction that was relied on in providing the GFE and 
that changes or is found to be inaccurate after the GFE has been 
provided, which may include information about the credit quality of the 
borrower, the amount of the loan, the estimated value of the property, 
or any other information that was used in providing the GFE; (3) new 
information particular to the borrower or transaction that was not 
relied on in providing the GFE; or (4) other circumstances that are 
particular to the borrower or transaction, including boundary disputes, 
the need for flood insurance, or environmental problems. 12 CFR 
1024.2(b). Changed circumstances, however, do not include the 
borrower's name, the borrower's monthly income, the property address, 
an estimate of the value of the property, the mortgage loan amount 
sought, and any information contained in any credit report obtained by 
the loan originator prior to providing the GFE, unless the information 
changes or is found to be inaccurate after the GFE has been provided, 
or market price fluctuations by themselves. Id.
    Additionally, Sec.  1024.7(f)(3) provides: ``If a borrower requests 
changes to the mortgage loan identified in the GFE that change the 
settlement charges or the terms of the loan, the loan originator may 
provide a revised GFE to the borrower.'' Section 1024.7(f)(4) provides: 
``If a borrower does not express an intent to continue with an 
application within 10 business days after the GFE is provided, or such 
longer time specified by the loan originator * * * the loan originator 
is no longer bound by the GFE.''
    The exception provided by Sec.  1024.7(f)(4) relates to the ability 
of consumers to use the GFE to shop and compare mortgage loans, which 
is one of the primary purposes of the 2008 RESPA Final Rule. A related 
provision, Sec.  1024.7(c), provides that ``the estimate of the charges 
and terms for all settlement services must be available for at least 10 
business days from when the GFE is provided, but it may remain 
available longer, if the loan originator extends the period of 
availability.''
    Section 1024.7(f)(5) provides: ``If the interest rate has not been 
locked, or a locked interest rate has expired, the charge or credit for 
the interest rate chosen, the adjusted origination charges, per diem 
interest, and loan terms related to the interest rate may change. When 
the interest rate is later locked, a revised GFE must be provided 
showing the revised interest rate-dependent charges and terms. All 
other charges and terms must remain the same as on the original GFE, 
except as otherwise provided [under] this section.''
    Section 1024.7(f)(6) provides: ``In transactions involving new 
construction home purchases, where settlement is anticipated to occur 
more than 60 calendar days from the time a GFE is provided, the loan 
originator may provide the GFE to the borrower with a clear and 
conspicuous disclosure stating that at any time up until 60 calendar 
days prior to closing, the loan originator may issue a revised GFE. If 
no such separate disclosure is provided, the loan originator cannot 
issue a revised GFE, except as otherwise provided [under] this 
section.''
    Although settlement charges have historically been the subject of 
RESPA, section 1419 of the Dodd-Frank Act amended TILA section 128(a) 
to require creditors to disclose: ``In the case of a residential 
mortgage loan, the aggregate amount of settlement charges for all 
settlement services provided in connection with the loan, the amount of 
charges that are included in the loan and the amount of such charges 
the borrower must pay at closing * * * and the aggregate amount of 
other fees or required payments in connection with the loan.'' 15 
U.S.C. 1638(a)(17). ``Settlement charges'' is not defined under TILA. 
This amendment expands the disclosure requirements of TILA section 
128(a) beyond the cost of credit to include all charges imposed in 
connection with the mortgage loan. No distinction is made between 
whether those charges relate to the extension of credit or the real 
estate transaction, or whether those charges are imposed by the 
creditor or another party, so long as the charges arise in the context 
of the mortgage loan settlement.
    Furthermore, as discussed above, section 1032(f) of the Dodd-Frank 
Act requires integration of the disclosure provisions under TILA and 
RESPA. Sections 1098 and 1100A of the Dodd-Frank Act further provide 
that the purpose of the integrated disclosure is ``to facilitate 
compliance with the disclosure requirements of [RESPA] and [TILA], and 
to aid the borrower or lessee in understanding the transaction by 
utilizing readily understandable language to simplify the technical 
nature of the disclosures.'' 15 U.S.C. 1604(b), 12 U.S.C. 2603(a). 
These amendments require integration of the regulations related to the 
accuracy and delivery of the disclosures, as well as their content.
Issues With Integrating Different Approaches to Good Faith Estimates, 
Tolerances, and Redisclosure
    As discussed above, TILA generally focused on redisclosure in 
response to changes in the cost of credit that occurred during the 
mortgage loan origination process. Over time, practices developed that 
diminished the value of the disclosures. Congress addressed these 
problems by revising TILA from time to time, seeking to ensure that 
consumers could use the disclosures to shop for credit.\134\ However, 
problems

[[Page 51167]]

in the market persisted, and evidence suggests that consumers were 
often surprised by the difference between their expectations of the 
cost of credit, based on the good faith estimates provided during the 
shopping phase, and the actual cost of credit revealed at 
settlement.\135\
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    \134\ In explaining the 1980 amendment to TILA, Congress stated 
that the amendment ``would also make disclosures more meaningful to 
the consumer in mortgage transactions in two respects. First, the 
creditor would be required to give truth in lending disclosures 
within 3 days after receiving a consumer's written application. * * 
* Under current law, Truth in Lending disclosures are provided for 
the first time at the real estate closing, making them all but 
useless for credit shopping.'' S. Rep. No. 368, 96th Cong., 1st 
Sess. 1979, reprinted in 1980 U.S. Code Cong. & Ad. News 236, 266. 
Congress also amended the disclosure requirements in 1994 to provide 
more extensive disclosure on high-cost mortgage loans. Riegle 
Community Development and Regulatory Improvement Act of 1994, Public 
Law 103-325, Title I, Sec.  152(d), 108 Stat. 2191 (Sept. 23, 1994); 
15 U.S.C. 1639(a). Congress amended the TILA disclosure requirements 
again in 1996 to provide disclosures related to variable-rate 
mortgage loans. Economic Growth and Regulatory Paperwork Reduction 
Act of 1996, Public Law 104-208, Title I, Subtitle A, Sec.  2105, 
110 Stat. 3009 (Sept. 30, 1996); 15 U.S.C. 1638(a).
    \135\ ``For refinancings and second mortgages that fall below 
the HOEPA triggers, the only required written disclosure of the APR 
and finance charge is usually given at closing on the TILA 
disclosure, after which the borrower has only the three day 
rescission period for price shopping, again too short a period to 
obtain competing offers.'' Lauren E. Willis, Decisionmaking and the 
Limits of Disclosure: The Problem of Predatory Lending: Price, 65 
Md. L. Rev. 707, 750 (2006). ``[T]he prices on subprime loans often 
turned out to be a moving target. A lender or broker might have the 
customer apply for one type of loan, price A, say a fixed rate loan; 
changed the loan during underwriting to an adjustable rate mortgage, 
price B; and then finally change the loan at closing to something 
different at price C, say an interest only mortgage.'' Federal 
Reserve Board Public Hearing Re: Building Sustainable Homeownership: 
Responsible Lending and Informed Consumer Choice, 155 (July 11, 
2006) (testimony of Patricia McCoy), available at https://www.federalreserve.gov/events/publichearings/hoepa/2006/20060711/transcript.pdf.
---------------------------------------------------------------------------

    The issues arising under TILA were even more pronounced under 
RESPA. HUD spent over ten years investigating problems in the 
settlement services industry.\136\ HUD found that the principles of 
RESPA were undermined by market forces operating against 
consumers.\137\ In the context of home purchases, consumers' actual 
settlement costs were sometimes dramatically different from those 
originally estimated. Consumers did not realize this until immediately 
before settlement--the point in time where consumers are in the weakest 
bargaining position. As a result, consumers were often unable to 
challenge increases in settlement costs when confronted with them at 
the closing table.\138\ HUD found that these high closing costs were 
exacerbated by the fact that consumers rarely shopped for settlement 
service providers.\139\ Accordingly, settlement service providers were 
not accountable to the consumer, and creditors had little motivation to 
monitor the legitimacy of settlement costs because those costs were 
simply passed on to the consumer.\140\
---------------------------------------------------------------------------

    \136\ Joint Report to the Congress Concerning Reform of the 
Truth in Lending Act and the Real Estate Settlement Procedures Act, 
(July 1998); 2000 HUD-Treasury Report; 2002 RESPA Proposal (67 FR 
49134).
    \137\ ``Estimates appearing on the GFEs can be significantly 
lower than the amount ultimately charged at settlement and do not 
provide meaningful guidance on the costs borrowers will incur at 
settlement. While unforeseeable circumstances can drive up costs in 
particular circumstances, in most cases loan originators have the 
ability to estimate final settlement costs with great accuracy.'' 73 
FR 14030, 14039 (March 14, 2008).
    \138\ ``After agreeing to the price of a house, too many 
families sit down at the settlement table and discover unexpected 
fees that can add hundreds, if not thousands, of dollars to the cost 
of their loan. And at that point, they have no other options. On the 
spot, the borrower is forced to make an impossible choice: either 
hand over the extra cash and sign, or lose either the house or the 
funds needed to refinance.'' Reforming the Real Estate Settlement 
Procedure: Review of HUD's proposed RESPA Rule, 107th Cong. (October 
3, 2002) (testimony of Mel Martinez, Secretary of the U.S. 
Department of Housing and Urban Development).
    \139\ See 73 FR 14030, 14034 (March 14, 2008).
    \140\ ``There is not always an incentive in today's market for 
originators to control these costs. Too often, high third-party 
costs are simply passed through to the consumer.'' U.S. Dep't. of 
Housing and Urban Dev., Office of Pol'y Dev. and Research, RESPA: 
Regulatory Impact Analysis and Initial Regulatory Flexibility 
Analysis, FR-5180-F-02, Final Rule to Improve the Process of 
Obtaining Mortgages and Reduce Consumer Costs, iv (2008). See also 
Eskridge, supra note 83, at 1184-1185.
---------------------------------------------------------------------------

    These problems led HUD to the determination that a subjective 
requirement that estimates be made in ``good faith'' was not sufficient 
to achieve the purposes of RESPA. The tolerances included in the 2008 
RESPA Final Rule established objective measures of good faith that were 
designed to ensure that consumers were provided with estimates more 
closely tied to the actual costs. The provisions related to 
redisclosure provided industry with the flexibility to revise the 
charges originally estimated when legitimate and unforeseen issues 
arose that affected the cost of settlement services, while also 
ensuring that consumers were not pressured into paying unwarranted 
costs. The 2008 RESPA Final Rule established a requirement that costs 
be available for at least 10 business days, along with requirements 
related to allowing consumers to shop for settlement service providers, 
sought to re-introduce competition into the markets for both mortgage 
loan origination and settlement service providers, in accordance with 
RESPA's original principles.
    These revisions to Regulation X took effect in 2010. Some concerns 
were identified during the implementation process. In particular, 
concerns have been raised regarding the treatment of fees charged by 
affiliates of the lender.\141\ Under the 2008 rule, affiliates' fees 
are permitted to increase by as much as 10 percent prior to the real 
estate closing, in addition to increases based on changed circumstances 
and other similar events. Settlement service providers such as 
appraisal management companies and title companies may be affiliated 
with the creditor. Fees paid to these affiliates may constitute a large 
percentage of the total settlement service fees paid by consumers at 
consummation. Permitting these fees to vary by ten percent may 
significantly increase the actual cost of obtaining a mortgage loan. 
This variance is of particular concern given the nature of the 
relationship between creditors and their affiliates. Regulation X 
subjects fees paid to creditors to a zero percent tolerance because 
credit providers are expected to know their own costs. The same 
reasoning may apply to services provided by affiliates. An affiliate 
relationship between a creditor and a provider should facilitate 
greater communication and coordination than a relationship between 
independent entities acting at arm's length. This is especially so 
given that the rules require precise estimates only of costs that are 
likely to occur and provide flexibility for cost revisions when an 
unexpected event occurs, such as a changed circumstance or a change 
requested by the consumer.
---------------------------------------------------------------------------

    \141\ For purposes of this proposal, ``affiliate'' means any 
company that controls, is controlled by, or is under common control 
with another company, as set forth in the Bank Holding Company Act 
of 1956 (12 U.S.C. 1841 et seq.).
---------------------------------------------------------------------------

    Additional concerns about affiliate relationships stem from the 
fact that no justification is required if affiliate fees increase by as 
much as ten percent. Given that the affiliate relationship is 
beneficial to the creditor, this may create an incentive to increase 
fees at the real estate closing without justification, solely to obtain 
all money available under the tolerance. A rule that encourages such 
rent-seeking behavior could harm consumers by unjustifiably increasing 
settlement costs, which is contrary to the purposes of RESPA.
    Another concern with Regulation X centers on the ability of 
consumers to shop for settlement service providers. Regulation X 
requires loan originators to provide borrowers with a written list of 
providers in some cases.\142\ This provision was intended to enable 
consumers to shop for settlement

[[Page 51168]]

service providers, based on the principle that such shopping would spur 
competition in the settlement service market, thereby reducing the 
incidence of unnecessarily high settlement service charges. However, 
concerns have been raised that, rather than simply providing consumers 
with lists of available settlement service providers to facilitate 
shopping, creditors have instead developed ``closed'' lists that 
include only the creditor's ``preferred'' providers and are requiring 
consumers to select one of those providers. This practice effectively 
may limit competition among settlement service providers instead of 
promoting competition, contrary to the goals of the regulation.
---------------------------------------------------------------------------

    \142\ ``Where a loan originator permits a borrower to shop for 
third party settlement services, the loan originator must provide 
the borrower with a written list of settlement services providers at 
the time of the GFE, on a separate sheet of paper.'' 12 CFR 1024, 
app. C.
---------------------------------------------------------------------------

The Bureau's Proposal
    An enhanced reliability standard. The Bureau believes that 
consumers would benefit from having more reliable estimates of costs. A 
meaningful ``good faith'' estimate should be based on the best 
information reasonably available to the person providing the estimate. 
In many cases, a creditor should be able to estimate costs with 
considerable precision based on its familiarity with its own 
underwriting process and its knowledge of the real estate settlement 
process. A creditor originating a loan in a geographical area with 
which it is unfamiliar, or using settlement service providers with whom 
it is not familiar, may not be able to estimate the settlement service 
costs as accurately. In cases such as these, the ten-percent tolerance 
currently provided by Regulation X may be appropriate.
    However, creditors who have affiliate relationships with service 
providers should have access to the providers' data about the actual 
costs of those services, including how often changed circumstances 
occur, and the magnitude of resulting cost increases. Thus, in many 
cases, creditors may be able to provide accurate estimates of 
settlement costs for services provided by affiliates, and therefore 
should not need to rely on the ten-percent tolerance. In addition to 
the increased level of knowledge and communication suggested by the 
affiliate relationship, the frequency of business with a particular 
affiliate provides creditors with even more data, which may be used to 
develop more accurate estimates. It may be reasonable to expect 
creditors to use the significant amount of historical settlement cost 
data available to them, by virtue of the repeat business from affiliate 
relationships, to develop highly accurate estimates of costs. 
Accordingly, the Bureau proposes to include charges paid to affiliates 
of the creditor in the category of fees that may not vary from the 
estimated amount disclosed, subject to legitimate reasons for revision 
such as changed circumstances and revisions requested by the consumer.
    The Bureau also believes that consumers would benefit from a more 
competitive market for settlement service providers. A list of service 
providers offers consumers the opportunity to speak with multiple 
providers and select the providers and services that best fit 
consumers' needs. Although the Bureau understands the concerns 
regarding preferred provider lists identified above, such lists may be 
a natural outgrowth of creditors' business and are not necessarily 
harmful to consumers. Indeed, it would be much more difficult for 
creditors to provide good faith estimates of settlement service charges 
without basing such estimates on charges imposed by actual settlement 
service providers in a particular area with whom the creditor has 
established relationships and regularly does business.
    Creditors that assemble preferred provider lists are in a superior 
position of knowledge with respect to the expected costs of the 
services of those providers, for reasons similar to those seemingly 
inherent in the creditor-affiliate relationship. The relationship 
between creditor and preferred provider suggests a level of 
communication and knowledge that is absent from a relationship between 
a creditor and a settlement service provider who do not regularly do 
business. The repeat business afforded by the preferred provider 
relationship should also give creditors access to statistically 
significant amounts of historical settlement charge data, with which 
the creditor can accurately predict the cost of a settlement service, 
in the absence of a valid reason for revision such as a changed 
circumstance. It may be reasonable to expect the creditor to use this 
relationship for the benefit of consumers in the form of more accurate 
initial estimates of costs.
    The creditor's knowledge may be less certain with preferred 
providers, with whom the creditor has some pre-existing relationship or 
agreement, than for affiliates, with whom the creditor has an actual 
control-based relationship. But this difference is countered when the 
creditor does not permit the consumer to shop independently for the 
settlement service. Such closed lists require consumers to choose 
providers preferred by the creditor and prohibit consumers from 
choosing more cost efficient, or perhaps higher quality, settlement 
service providers. Consumers presented with a closed list of preferred 
providers are neither benefitted by more accurate estimates nor able to 
protect their own financial interests. Consumers should have the 
ability to influence the quality and cost of settlement services 
related to what, for most consumers, will be the most significant 
financial obligation of their lives. If the creditor arrogates that 
opportunity, then the creditor should also take a greater 
responsibility for estimating accurately and assume some of the risk of 
under-estimation if it does not. Thus, the Bureau proposes to include 
charges paid to non-affiliated third party service providers in the 
category of fees that may not vary from the estimated amount disclosed 
if the creditor does not permit the consumer to shop for those 
services, subject to legitimate reasons for revision such as changed 
circumstances and revisions requested by the consumer.
    This proposal seeks to strike the appropriate balance between 
consumers' need for accurate, timely, and reliable information about 
the costs of a mortgage loan and industry's need for flexibility for 
the wide range of unexpected issues that arise during the mortgage loan 
origination process. Creditors are routine participants in the mortgage 
market, but individual consumers are not. As a result, creditors have 
access to important cost data that are unavailable to consumers. It 
therefore may be reasonable to expect creditors to use this advantage 
to provide consumers with reasonably accurate estimates of the costs 
associated with a real estate settlement. This consideration is more 
compelling when creditors have pre-existing, and advantageous, 
relationships with affiliated and ``preferred'' settlement service 
providers. More reliable estimates are inherently beneficial because 
they enable consumers to make informed and responsible financial 
decisions, they promote honest competition among the majority of 
industry providers who want a fair and level playing field, and they 
prevent financial surprises at the real estate closing that may greatly 
harm consumers.
    More reliable estimates also make it more likely that consumers 
will shop for mortgage loans based on all relevant costs among multiple 
providers, furthering one of the key principles of TILA and RESPA. 
Encouraging consumers to shop for settlement services further 
facilitates a competitive market for those services, thereby preventing 
unnecessarily high settlement costs and achieving one of the key 
purposes of RESPA. This approach furthers the goals of the 2008

[[Page 51169]]

RESPA Final Rule and the principles upon which TILA and RESPA are 
founded.
    Legal authority. The Bureau is proposing to adopt an enhanced 
reliability standard for settlement costs pursuant to its authority to 
prescribe standards for ``good faith estimates'' under TILA section 128 
and RESPA section 5, as well as its general rulemaking, exception, and 
exemption authorities under TILA sections 105(a) and 121(d), RESPA 
section 19(a), section 1032(a) of the Dodd-Frank Act, and, for 
residential mortgage loans, section 1405(b) of the Dodd-Frank Act and 
section 129B(e) of TILA.
    The Bureau has considered the purposes for which it may exercise 
its authority under TILA section 105(a) and, based on that review, 
believes that the proposed adjustments and exceptions may be 
appropriate. The proposal is consistent with the statute's purpose in 
that it seeks to ensure that the cost estimates are more meaningful and 
better inform consumers of the actual costs associated with obtaining 
credit. The proposal has the potential to effectuate the statute's 
goals by ensuring more reliable estimates, which may increase the level 
of shopping for mortgage loans and foster honest competition for 
prospective consumers among financial institutions. The Bureau believes 
that technological advances in the mortgage loan origination market, 
coupled with the relationships that currently exist between creditors 
and the settlement service industry, may have improved the ability of 
creditors to provide accurate estimates, subject to reasonable 
exceptions. The proposal could also prevent potential circumvention or 
evasion of TILA by penalizing underestimation to gain a competitive 
advantage in situations where TILA requires good faith.
    Section 121(d) of TILA generally authorizes the Bureau to adopt 
tolerances necessary to facilitate compliance with the statute, 
provided such tolerances are narrow enough to prevent misleading 
disclosures or disclosures that circumvent the purposes of the statute. 
15 U.S.C. 1631(d). The Bureau has considered the purposes for which it 
may exercise its authority under TILA section 121(d) and, based on that 
review, believes that the proposed tolerances may be appropriate. The 
proposal has the potential to facilitate compliance with the statute by 
providing bright line rules for the determination of ``good faith'' 
based on the knowledge of costs that creditors have, or reasonably 
should have. The narrowed tolerances may also prevent misleading 
disclosures by forcing creditors who have access to accurate cost 
information through affiliate networks or exclusive provider 
arrangements, and today use such information strategically to 
underestimate cost estimates, to absorb any overages.
    The proposal also may prevent circumvention of TILA by preventing 
creditors from using the tolerances to capture rent through their 
affiliates, and thereby unnecessarily increasing the cost of credit. 
The proposed tolerances may be sufficiently narrow by focusing on areas 
where the creditor is, or reasonably should be, in a position of 
superior knowledge, while maintaining the existing tolerances in areas 
where the creditor is providing estimates based on less certain 
information, such as cost estimates for services provided by 
independent providers.
    In addition, the proposed regulation is consistent with Dodd-Frank 
Act section 1032(a) because requiring more accurate initial estimates 
of the costs of the transaction, thereby limiting the possibility of 
strategic underestimation to gain a competitive advantage, will ensure 
that the features of mortgage loan transactions and settlement services 
will be more fully, accurately, and effectively disclosed to consumer 
in a manner than permits consumers to understand the costs, benefits, 
and risks associated the mortgage loan. It is also in the interest of 
consumers and in the public interest, consistent with Dodd-Frank Act 
section 1405(b), because providing consumers with more accurate 
estimates of the cost of the mortgage loan transaction will improve 
consumer understanding and awareness of the mortgage loan transaction 
through the use of disclosure.
    Section 129B(e) of TILA generally authorizes the Bureau to adopt 
regulations prohibiting or conditioning terms, acts, or practices 
relating to residential mortgage loans that are not in the interest of 
the borrower. The Bureau has considered the purposes for which it may 
exercise its authority under TILA section 129B(e) and, based on that 
review, believes that the proposed regulations are appropriate because 
unreliable estimates are not in the interest of the borrower.
    Section 19(a) of RESPA authorizes the Bureau to prescribe 
regulations and make interpretations to carry out the purposes of 
RESPA, which include more effective advance disclosure of settlement 
costs. 12 U.S.C. 2601(a), 2617(a). The Bureau has considered the 
purposes for which it may exercise its authority under RESPA section 
19(a) and, based on that review, believes that the proposed rules and 
interpretations may be appropriate. The proposal has the potential to 
ensure more effective advance disclosure of settlement costs by 
requiring creditors to disclose accurate estimates when such creditors 
are in a position to do so.
    The Bureau solicits comment on all aspects of this proposal, 
including the cost, burden, and benefits to consumers and to industry 
regarding the proposed revisions to the good faith requirements. The 
Bureau solicits comment on the frequency, magnitude, and causes of 
settlement cost increases. The Bureau also requests comment on any 
alternatives to the proposal that would further the purposes of TILA, 
RESPA, and the Dodd-Frank Act and provide consumers with more useful 
disclosures.
19(e)(3)(i) General Rule
    Regulation X currently provides that the amounts imposed for the 
origination charge and transfer taxes may not exceed the amounts 
included on the RESPA GFE, unless certain exceptions are met. Sec.  
1024.7(e)(1). The items included under this category are generally 
limited to charges paid to lenders and brokers, in addition to transfer 
taxes.
    The Bureau is proposing to incorporate this provision in new Sec.  
1026.19(e)(3)(i). Furthermore, as discussed above, the Bureau is 
proposing to expand the scope of the current regulation. Under the 
proposed rule, the default rule is that any charge paid by the consumer 
that exceeds the amount originally estimated on the disclosures 
provided pursuant to Sec.  1026.19(e)(1)(i) was not provided in good 
faith. This default rule is subject to legitimate cost revisions when 
an unexpected event occurs, such as a changed circumstance or a change 
requested by the consumer. Also, the charges for certain items are 
subject to exceptions allowing other increases as permitted under Sec.  
1026.19(e)(3)(ii) and (iii). Thus, the Bureau believes that the rule 
offers a level of flexibility similar to the current rules under 
Regulation X. The Bureau believes that the primary impact of adopting 
this bright line default rule will be to protect consumers from 
unnecessary increases in charges.
    Consequently, the Bureau proposes Sec.  1026.19(e)(3)(i), which 
provides that the charges paid by or imposed on the consumer may not 
exceed the estimated amounts of those charges provided pursuant to 
Sec.  1026.19(e)(1)(i), subject to permissible reasons for revision 
such as changed circumstances and revisions requested by the consumer, 
and except

[[Page 51170]]

as otherwise provided under Sec.  1026.19(e)(3)(ii) and (iii).
    During the Small Business Panel Review process, several small 
entity representatives expressed concern about the unintended 
consequences that may result from applying the zero-percent tolerance 
rule currently under Regulation X to affiliates of the lender or 
mortgage broker and to providers selected by the lender. See Small 
Business Review Panel Report at 34, 37-38, 40, 64, 67, and 71. The 
Small Business Review Panel recommended that the Bureau consider 
alternatives to expanding application of the zero-percent tolerance 
that would increase the reliability of cost estimates while minimizing 
the impacts on small entities. See id. at 29. The Bureau has given 
careful consideration to this recommendation, but has not yet 
identified any alternatives that would increase disclosure reliability 
while minimizing small entity impact. The Bureau solicits comment on 
any such alternatives. The Panel also recommended that the Bureau 
solicit comment on the effectiveness of the current tolerance rules. 
Id. Consistent with the Small Business Review Panel's recommendation, 
the Bureau solicits comment on whether the current tolerance rules have 
sufficiently improved the reliability of the estimates that lenders 
give consumers, while preserving lenders' flexibility to respond to 
unanticipated changes that occur during the loan process.
    Proposed comment 19(e)(3)(i)-1 explains that Sec.  1026.19(e)(3)(i) 
imposes a general rule that an estimated charge disclosed pursuant to 
Sec.  1026.19(e) is not in good faith if the charge paid by or imposed 
on the consumer exceeds the amount originally disclosed. Although Sec.  
1026.19(e)(3)(ii) and (e)(3)(iii) provide exceptions to the general 
rule for certain types of charges, those exceptions generally do not 
apply to (1) fees paid to the creditor; (2) fees paid to a broker; (3) 
fees paid to an affiliate of the creditor or a broker; (4) fees paid to 
an unaffiliated third party if the creditor did not permit the consumer 
to shop for a third party service provider; and (5) transfer taxes.
    Proposed comment 19(e)(3)(i)-2 provides guidance on the issue of 
whether an item is ``paid to'' a particular person. In the mortgage 
loan origination process, individuals often receive payments for 
services and subsequently pass those payments on to others. Similarly, 
individuals often pay for services in advance of the real estate 
closing and subsequently seek reimbursement from the consumer. This 
comment provides examples of how situations such as these are treated 
for the purposes of Sec.  1026.19.
    Proposed comment 19(e)(3)(i)-3 discusses when items are 
characterized as transfer taxes, as opposed to recording fees. Transfer 
taxes are analyzed under Sec.  1026.19(e)(3)(i) for purposes of 
determining whether an estimate is provided in good faith. Recording 
fees are analyzed under Sec.  1026.19(e)(3)(ii) for purposes of 
determining whether an estimate is provided in good faith.
    Proposed comment 19(e)(3)(i)-4 provides examples illustrating the 
good faith requirement in the context of specific credits, rebates, or 
reimbursements. An item identified, on the disclosures provided 
pursuant to Sec.  1026.19(e), as a payment from a creditor to the 
consumer to pay for a particular fee, such as a credit, rebate, or 
reimbursement are not subject to the good faith determination 
requirements in Sec.  1026.19(e)(3)(i) or (ii) if the increased 
specific credit, rebate, or reimbursement actually reduces the cost to 
the consumer. Specific credits, rebates, or reimbursements may not be 
disclosed or revised in a way that would otherwise violate the 
requirements of Sec.  1026.19(e)(3)(i) and (ii). The proposed comment 
also provides illustrative examples of these requirements.
    Proposed comment 19(e)(3)(i)-5 discusses how to determine ``good 
faith'' in the context of lender credits. The proposed comment explains 
that the disclosure of ``lender credits,'' as identified in Sec.  
1026.37(g)(6)(ii), is required by Sec.  1026.19(e)(1)(i). These are 
payments from the creditor to the consumer that do not pay for a 
particular fee on the disclosures provided pursuant to Sec.  
1026.19(e)(1)(i). These non-specific credits are negative charges to 
the consumer--as the lender credit decreases the overall cost to the 
consumer increases. Thus, an actual lender credit provided at the real 
estate closing that is less than the estimated lender credit provided 
pursuant to Sec.  1026.19(e)(1)(i) is an increased charge to the 
consumer for purposes of determining good faith under Sec.  
1026.19(e)(3)(i). For example, if the creditor provides a $750 estimate 
for lender credits in the disclosures required by Sec.  
1026.19(e)(1)(i), but only a $500 lender credit is actually provided to 
the consumer at the real estate closing, the creditor does not comply 
with Sec.  1026.19(e)(3)(i) because, although the actual lender credit 
was less than the estimated lender credit provided in the revised 
disclosures, the overall cost to the consumer increased and, therefore, 
did not comply with Sec.  1026.19(e)(3)(i). See also Sec.  
1026.19(e)(3)(iv)(D) and comment 19(e)(3)(iv)(D)-1 for a discussion of 
lender credits in the context of interest rate dependent charges.
19(e)(3)(ii) Limited Increases Permitted for Certain Charges
    Regulation X Sec.  1024.7(e)(2) currently provides that the sum of 
the amounts charged for all lender-required settlement services where 
the consumer does not independently choose a provider, title insurance, 
and recording charges may increase by as much as 10 percent prior to 
settlement, subject to revisions arising from exceptions such as 
changed circumstances. The Bureau believes that a more narrow 
regulation may be appropriate in this context. The Bureau therefore 
proposes Sec.  1026.19(e)(3)(ii), which permits the sum of all charges 
for lender-required settlement services where the lender permits the 
consumer to shop for a provider other than those identified by the 
creditor and recording fees to increase by 10 percent for the purposes 
of determining good faith. As explained in the general discussion under 
Sec.  1026.19(e)(3) above, the Bureau believes that the purposes of 
TILA and RESPA are better served by removing affiliate fees from this 
category and including other settlement services in this category only 
if the consumer is permitted to shop independently for a service 
provider. Proposed comment 19(e)(3)(ii)-1 explains that Sec.  
1026.19(e)(3)(ii) provides that certain estimated charges are in good 
faith if the sum of all such charges paid by or imposed on the consumer 
does not exceed the sum of all such charges disclosed pursuant to Sec.  
1026.19(e) by more than 10 percent. Section 1026.19(e)(3)(ii) permits 
this limited increase for only: (1) fees paid to an unaffiliated third 
party if the creditor permitted the consumer to shop for the service, 
consistent with Sec.  1026.19(e)(1)(vi)(A), and (2) recording fees.
    Proposed comment 19(e)(3)(ii)-2 clarifies that pursuant to Sec.  
1026.19(e)(3)(ii), whether an individual estimated charge subject to 
Sec.  1026.19(e)(3)(ii) is in good faith depends on whether the sum of 
all charges subject to Sec.  1026.19(e)(3)(ii) increase by more than 10 
percent, even if a particular charge does not increase by more than 10 
percent. This proposed comment also clarifies that Sec.  
1026.19(e)(3)(ii) provides flexibility in disclosing individual fees by 
focusing on aggregate amounts, and provides illustrative examples.
    Proposed comment 19(e)(3)(ii)-3 discusses the determination of good

[[Page 51171]]

faith when a consumer is permitted to shop for a settlement service, 
but either does not select a settlement service provider, or chooses a 
settlement service provider identified by the creditor on the list 
required by Sec.  1026.19(e)(1)(vi)(C). The proposed comment explains 
Sec.  1026.19(e)(3)(ii), which provides that if the creditor requires a 
service in connection with the mortgage loan transaction, and permits 
the consumer to shop, then good faith is determined pursuant to Sec.  
1026.19(e)(3)(ii)(A), instead of Sec.  1026.19(e)(3)(i) and subject to 
the other requirements in Sec.  1026.19(e)(3)(ii)(B) and (C). For 
example, if, in the disclosures provided pursuant to Sec.  
1026.19(e)(1)(i), a creditor includes an estimated fee for an 
unaffiliated settlement agent and permits the consumer to shop for a 
settlement agent, but the consumer does not choose a settlement agent, 
or chooses an agent identified by the creditor on the list required by 
Sec.  1026.19(e)(1)(vi)(C), then the estimated settlement agent fee is 
included with the fees that may, in aggregate, increase by no more than 
10 percent for the purposes of Sec.  1026.19(e)(3)(ii). If, however, 
the consumer chooses a provider that is not on the written list, then 
good faith is determined according to Sec.  1026.19(e)(3)(iii).
    Proposed comment 19(e)(3)(ii)-4 discusses how the good faith 
determination requirements apply to recording fees. Recording fees are 
mandated by State or local law and paid to a government agency. 
Consequently, several of the requirements regarding good faith do not 
apply. The proposed comment explains that the condition specified in 
Sec.  1026.19(e)(3)(ii)(B), that the charge not be paid to an affiliate 
of the creditor, is inapplicable in the context of recording fees. The 
condition specified in Sec.  1026.19(e)(3)(ii)(C), that the creditor 
permits the consumer to shop for the service, is similarly 
inapplicable. Therefore, estimates of recording fees need only satisfy 
the condition specified in Sec.  1026.19(e)(3)(ii)(A) (i.e., that the 
aggregate amount increased by no more than 10 percent) to meet the 
requirements of Sec.  1026.19(e)(3)(ii).
19(e)(3)(iii) Variations Permitted for Certain Charges
    Section 1024.7(e)(3) of Regulation X currently provides that the 
amounts charged for services, other than those identified in Sec.  
1024.7(e)(1) and Sec.  1024.7(e)(2), may change at settlement. The 
Bureau agrees that certain types of estimates, such as those for 
property insurance premiums, may change significantly between the time 
that the original disclosures are provided and consummation. However, 
the Bureau believes that the regulation will be improved by 
specifically identifying which items are included in this category. 
Clear delineation of these items should facilitate compliance by 
reducing the need to question how to categorize those items. Thus, the 
Bureau proposes Sec.  1026.19(e)(3)(iii), which provides that estimates 
of prepaid interest, property insurance premiums, amounts placed into 
an escrow, impound, reserve, or similar account, and charges paid to 
third-party service providers selected by the consumer consistent with 
Sec.  1026.19(e)(1)(vi)(A) that are not on the list provided pursuant 
to Sec.  1026.19(e)(1)(vi)(C) are in good faith regardless of whether 
the amount actually paid by the consumer exceeds the estimated amount 
disclosed, provided such estimates are consistent with the best 
information reasonably available to the creditor at the time the 
disclosures were made.
    Proposed comments 19(e)(3)(iii)-1, 19(e)(3)(iii)-2, and 
19(e)(3)(iii)-3 explain that the disclosures for items subject to Sec.  
1026.19(e)(3)(iii) must be made in good faith, even though good faith 
is not determined pursuant to a comparison of estimated amounts and 
actual costs. The comments clarify that the disclosures must be made 
according to the best information reasonably available to the creditor 
at the time the disclosures are made. The Bureau is concerned that 
unscrupulous creditors may underestimate, or fail to include estimates 
for, the items subject to Sec.  1026.19(e)(3)(iii) and mislead 
consumers into believing the cost of the mortgage loan is less than it 
actually is. This concern must be balanced against the fact that some 
items may change significantly and legitimately prior to consummation. 
Furthermore, while the creditor should include estimates for all fees 
``the borrower is likely to incur,'' it may not be reasonable to expect 
the creditor to know every fee, no matter how uncommon, agreed to by 
the consumer, for example in the purchase and sale agreement, prior to 
providing the estimated disclosures. The proposal strikes a balance 
between these considerations by imposing a general good faith 
requirement. Thus, proposed comment 19(e)(3)(iii)-1 explains that 
estimates of prepaid interest, property insurance premiums, and impound 
amounts must be consistent with the best information reasonably 
available to the creditor at the time the disclosures are provided. 
Differences between the amounts of such charges disclosed pursuant to 
Sec.  1026.19(e)(1)(i) and the amounts of such charges paid by or 
imposed upon the consumer do not constitute a lack of good faith, so 
long as the original estimated charge, or lack of an estimated charge 
for a particular service, was based on the best information reasonably 
available to the creditor at the time the disclosure was provided. For 
example, if the creditor requires homeowner's insurance but fails to 
include a homeowner's insurance premium on the estimates provided 
pursuant to Sec.  1026.19(e)(1)(i), then the creditor has not complied 
with Sec.  1026.19(e)(3)(iii). However, if the creditor does not 
require flood insurance and the subject property is located in an area 
where floods frequently occur, but not located in a zone where flood 
insurance is required, failure to include flood insurance on the 
original estimates provided pursuant to Sec.  1026.19(e)(1)(i) does not 
constitute a lack of good faith. Or, if the creditor knows that the 
loan must close on the 15th of the month but estimates prepaid interest 
to be paid from the 30th of that month, then the under-disclosure 
violates Sec.  1026.19(e)(3)(iii).
    Proposed comment 19(e)(3)(iii)-2 discusses the good faith 
requirement for required services chosen by the consumer that has been 
permitted to shop consistent with Sec.  1026.19(e)(1)(vi)(A). The 
proposed comment explains that, if a service is required by the 
creditor, the creditor permits the consumer to shop for that service 
consistent with Sec.  1026.19(e)(1)(vi)(A), the creditor provides the 
list required by Sec.  1026.19(e)(1)(vi)(C), and the consumer chooses a 
service provider that is not on the list to perform that service, then 
the actual amounts of such fees need not be compared to the original 
estimates for such fees to perform the good faith analysis required by 
Sec.  1026.19(e)(3)(i) or (ii). Differences between the amounts of such 
charges disclosed pursuant to Sec.  1026.19(e)(1)(i) and the amounts of 
such charges paid by or imposed on the consumer do not necessarily 
constitute a lack of good faith. However, the original estimated 
charge, or lack of an estimated charge for a particular service, must 
be made based on the best information reasonably available to the 
creditor at that time. For example, if the consumer informs the 
creditor that the consumer will choose a settlement agent not 
identified by the creditor, and the creditor subsequently discloses an 
unreasonably low estimated settlement agent fee, then the under-
disclosure does not comply with Sec.  1026.19(e)(3)(iii). The comment 
also

[[Page 51172]]

clarifies that, if the creditor permits the consumer to shop consistent 
with Sec.  1026.19(e)(1)(vi)(A) but fails to provide the list required 
by Sec.  1026.19(e)(1)(vi)(C), good faith is determined pursuant to 
Sec.  1026.19(e)(3)(ii) instead of Sec.  1026.19(e)(3)(iii) regardless 
of the provider selected by the consumer, unless the provider is an 
affiliate of the creditor in which case good faith is determined 
pursuant to Sec.  1026.19(e)(3)(i).
    Proposed comment 19(e)(3)(iii)-3 discusses the good faith 
requirement for non-required services chosen by the consumer. 
Differences between the amounts of estimated charges for services not 
required by the creditor disclosed pursuant to Sec.  1026.19(e)(1)(i) 
and the amounts of such charges paid by or imposed on the consumer do 
not necessarily constitute a lack of good faith. For example, if the 
consumer informs the creditor that the consumer will obtain a type of 
inspection not required by the creditor, the creditor may include the 
charge for that item in the disclosures provided pursuant to Sec.  
1026.19(e)(1)(i), but the actual amount of the inspection fee need not 
be compared to the original estimate for the inspection fee to perform 
the good faith analysis required by Sec.  1026.19(e)(3)(iii). However, 
the original estimated charge, or lack of an estimated charge for a 
particular service, must still be made based on the best information 
reasonably available to the creditor at the time that the estimate was 
provided. For example, if the subject property is located in a 
jurisdiction where consumers are customarily represented at the real 
estate closing by their own attorney, but the creditor fails to include 
a fee for the consumer's attorney, or includes an unreasonably low 
estimate for such fee, on the original estimates provided pursuant to 
Sec.  1026.19(e)(1)(i), then the creditor's failure to disclose, or 
under-estimation, does not comply with Sec.  1026.19(e)(3)(iii).
19(e)(3)(iv) Revised Estimates
    Regulation X Sec.  1024.7(f) currently provides that the estimates 
included on the RESPA GFE are binding, subject to six exceptions. If 
the lender establishes one of these six exceptions, the RESPA GFE may 
be re-issued with revised estimates. The Bureau agrees that there are 
certain situations that may legitimately cause increases over the 
amounts originally estimated, and that the regulations should provide a 
clear mechanism for providing revised estimates in good faith. The 
Bureau proposes Sec.  1026.19(e)(3)(iv), which provides that, for 
purposes of determining good faith, a charge paid by or imposed on the 
consumer may exceed the originally estimated charge if the revision is 
caused by one of the six reasons identified in Sec.  
1026.19(e)(3)(iv)(A) through (F). Proposed comment 19(e)(3)(iv)-1 
illustrates this provision.
    Consistent with current Regulation X,\143\ proposed comment 
19(e)(3)(iv)-2 clarifies that, to satisfy the good faith requirement, 
revised estimates may increase only to the extent that the reason for 
revision actually caused the increase and provides illustrative 
examples of this requirement. Proposed comment 19(e)(3)(iv)-3 discusses 
the documentation requirements related to the provision of revised 
estimates. Regulation X Sec.  1024.7(f) contains a separate regulatory 
provision related to documentation requirements. The Bureau believes 
that this requirement is encompassed within the requirements of Sec.  
1026.25. The proposed comment clarifies that the regulations include a 
documentation requirement related to the disclosures, but the 
requirements are located under Sec.  1026.25, instead of Sec.  1026.19. 
As discussed below, the Bureau is proposing to impose enhanced 
recordkeeping requirements under Sec.  1026.25.
---------------------------------------------------------------------------

    \143\ See Sec.  1024.7(f)(1), (2), (3), and (5).
---------------------------------------------------------------------------

19(e)(3)(iv)(A) Changed Circumstance Affecting Settlement Charges
    In general. Regulation X Sec.  1024.7(f)(1) currently provides that 
a revised RESPA GFE may be provided if changed circumstances result in 
increased costs for any settlement service such that charges at 
settlement would exceed the tolerances for those charges. The Bureau 
agrees that creditors should be able to provide revised estimates if 
certain situations occur that increase charges. The Bureau proposes 
Sec.  1026.19(e)(3)(iv)(A), which provides that a valid reason for re-
issuance exists when changed circumstances cause estimated charges to 
increase or, for those charges subject to Sec.  1026.19(e)(3)(ii), 
cause the sum of all such estimated charges to increase by more than 10 
percent. Proposed comment 19(e)(3)(iv)(A)-1 provides further 
explanation of this requirement and includes several practical 
examples.
    Changed circumstance. As explained in the general discussion under 
Sec.  1026.19(e)(3) above, Regulation X Sec.  1024.2 generally defines 
changed circumstances as information and events that warrant revision 
of the estimated amounts included on the RESPA GFE. The Bureau 
generally agrees with the information and events included in the 
current definition. However, the Bureau has received feedback that the 
current definition is confusing. Thus, the Bureau proposes, within 
Sec.  1026.19(e)(3)(iv)(A), a new definition of changed circumstance, 
which provides that a changed circumstance is 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 disclosures and that was inaccurate or subsequently changed, or new 
information specific to the consumer or transaction that was not relied 
on when providing the disclosures.
    This proposed definition, most significantly, omits the fourth 
prong of the existing definition, which provides that: ``[o]ther 
circumstances that are particular to the borrower or transaction, 
including boundary disputes, the need for flood insurance, or 
environmental problems'' is considered a changed circumstance. The 
Bureau believes that this prong is not needed because it is covered 
elsewhere in the definition, and may be contributing to the current 
industry uncertainty surrounding what constitutes a changed 
circumstance. However, the Bureau seeks comment on whether this 
proposal is appropriate, and specifically on whether there are 
scenarios that should be considered a changed circumstance that would 
not be captured under any of the other three prongs. Proposed comment 
19(e)(3)(iv)(A)-2 provides additional elaboration on this issue and 
provides several examples of changed circumstances.
    Proposed comment 19(e)(3)(iv)(A)-3 discusses how the definition of 
application under Sec.  1026.2(a)(3) relates to the definition of 
changed circumstances under Sec.  1026.19(e)(3)(iv)(A). The proposed 
comment explains that a creditor is not required to collect the 
consumer's name, monthly income, or social security number to obtain a 
credit report, the property address, an estimate of the value of the 
property, or the mortgage loan amount sought. However, for purposes of 
determining whether an estimate is provided in good faith under Sec.  
1026.19(e)(1)(i), a creditor is presumed to have collected these six 
pieces of information. For example, if a creditor provides the 
disclosures required by Sec.  1026.19(e)(1)(i) prior to receiving the 
property address from the consumer, the creditor cannot subsequently 
claim that the receipt of the property address is a

[[Page 51173]]

changed circumstance, under Sec.  1026.19(e)(3)(iv)(A) or (B).
19(e)(3)(iv)(B) Changed Circumstance Affecting Eligibility
    Regulation X Sec.  1024.7(f)(2) currently provides that a revised 
RESPA GFE may be provided if a changed circumstance affecting borrower 
eligibility results in increased costs for any settlement service such 
that charges at settlement would exceed the tolerances for those 
charges. The Bureau proposes Sec.  1026.19(e)(3)(iv)(B), which provides 
that a valid reason for reissuance exists when a changed circumstance 
affecting the consumer's creditworthiness or the value of the 
collateral causes the estimated charges to increase. Proposed comment 
19(e)(3)(iv)(B)-1 explains that if changed circumstances cause a change 
in the consumer's eligibility for specific loan terms disclosed 
pursuant to Sec.  1026.19(e)(1)(i) and revised disclosures are provided 
reflecting such change, the actual amounts paid by the consumer may be 
measured against the revised estimated disclosures to determine if the 
actual fee has increased above the estimated fee. The proposed comment 
also provides several illustrative examples.
19(e)(3)(iv)(C) Revisions Requested by the Consumer
    Regulation X Sec.  1024.7(f)(3) currently provides that a revised 
RESPA GFE may be provided if a borrower requests changes to the 
mortgage loan identified in the GFE that change the settlement charges 
or the terms of the loan. The Bureau agrees that creditors should be 
able to provide revised estimates that increase charges from the 
original estimates due to revisions requested by the consumer. The 
Bureau proposes Sec.  1026.19(e)(3)(iv)(C), which provides that a valid 
reason for reissuance exists when a consumer requests revisions to the 
credit terms or the settlement that cause estimated charges to 
increase. Proposed comment 19(e)(3)(iv)(C)-1 illustrates this 
requirement.
19(e)(3)(iv)(D) Interest Rate Dependent Charges
    Regulation X Sec.  1024.7(f)(5) currently provides that, if the 
interest rate has not been locked, or a locked interest rate has 
expired, the charge or credit for the interest rate chosen, the 
adjusted origination charges, per diem interest, and loan terms related 
to the interest rate may change, provided, however, that when the 
interest rate is later locked, a revised GFE must be provided showing 
the revised interest rate-dependent charges and terms. The Bureau 
agrees that disclosures related to the interest rate should be able to 
fluctuate if the consumer's rate has not been set. The Bureau also 
agrees that revised disclosures should be provided when the consumer's 
rate is later set. However, the Bureau is concerned that this provision 
may be used to harm consumers. There is a possibility that unscrupulous 
creditors could use this provision to engage in rent-seeking behavior, 
or to attempt to circumvent the requirements of TILA or RESPA. The 
Bureau acknowledges these concerns, but the Bureau is unaware of any 
evidence that creditors are using current Regulation X Sec.  
1024.7(f)(5) to harm consumers or to circumvent RESPA. The Bureau 
believes that the correct balance may be to retain the current 
regulation while monitoring the market to determine if the regulation 
is being used to the detriment of consumers. Thus, the Bureau proposes 
Sec.  1026.19(e)(3)(iv)(D), which provides that a valid reason for 
reissuance exists when a consumer's rate is set, and also provides that 
revised disclosures must be provided reflecting the revised interest 
rate, bona fide discount points, and lender credits. Proposed comment 
19(e)(3)(iv)(D)-1 illustrates this requirement. The Bureau also seeks 
comment on the frequency and magnitude of revisions to the interest 
rate dependent charges, the frequency of cancellations of contractual 
agreements related to interest rate dependent charges, such as rate 
lock agreements, and the reasons for such revisions and cancellations.
19(e)(3)(iv)(E) Expiration
    Regulation X Sec.  1024.7(f)(4) currently provides that if a 
borrower does not express an intent to continue with the transaction 
within ten business days after the RESPA GFE is provided, or such 
longer time specified by the loan originator, then the loan originator 
is no longer bound by the RESPA GFE. The Bureau believes that consumers 
should be able to rely on the estimated charges for a sufficient period 
of time to permit shopping. The Bureau also believes that, if the 
consumer does not indicate intent to proceed within the ten-day period, 
creditors should be able to provide revised disclosures reflecting new 
charges. The Bureau proposes Sec.  1026.19(e)(3)(iv)(E), which provides 
that a valid reason for reissuance exists when a consumer expresses an 
intent to proceed more than ten business days after the disclosures are 
provided. Proposed comment 19(e)(3)(iv)(E)-1 illustrates this 
requirement.
19(e)(3)(iv)(F) Delayed Settlement Date on a Construction Loan
    Regulation X Sec.  1024.7(f)(6) currently provides that in 
transactions involving new construction home purchases, where 
settlement is expected to occur more than 60 calendar days from the 
time a GFE is provided, the loan originator cannot issue a revised GFE 
unless the loan originator provided the borrower with a clear and 
conspicuous disclosure stating that at any time up until 60 calendar 
days prior to the real estate closing, the loan originator may issue a 
revised GFE. The Bureau believes that the current law under Regulation 
X should apply to the integrated disclosures. The Bureau agrees that 
creditors should be able to issue revised disclosures for construction 
loans where consummation will not occur until well into the future, 
likely after construction is completed, provided that the consumer is 
aware of this fact. The Bureau proposes Sec.  1026.19(e)(3)(iv)(F), 
which provides that a valid reason for revision exists on construction 
loans when consummation is scheduled to occur more than 60 days after 
delivery of the estimated disclosures, provided that the consumer was 
alerted to this fact when the estimated disclosures were provided.
    Proposed comment 19(e)(3)(iv)(F)-1 clarifies that a loan for the 
purchase of a home either to be constructed or under construction is 
considered a construction loan to purchase and build a home for the 
purposes of Sec.  1026.19(e)(3)(iv)(F). For example, a loan to build a 
home that has yet to be constructed, or a loan to purchase a home on 
which construction is currently underway, is a construction loan to 
build a home for the purposes of Sec.  1026.19(e)(3)(iv)(F). However, 
if a use and occupancy permit has been issued for the home prior to the 
issuance of the Loan Estimate, then the home is not considered to be 
under construction and the transaction would not be a construction loan 
to purchase and build a home for the purposes of Sec.  
1026.19(e)(3)(iv)(F). This comment is consistent with guidance provided 
by HUD in the HUD RESPA FAQs p. 21, 2 (``GFE--New 
construction'').
19(e)(4) Provision of Revised Disclosures
Timing Requirements for Provision of Revised Disclosures
    TILA's requirement that creditors provide corrected disclosures is 
not linked to the time when a creditor discovers that a correction is 
necessary. Instead, section 128(b)(2)(D) of TILA

[[Page 51174]]

provides that the creditor shall furnish additional, corrected 
disclosures to the borrower not later than three business days before 
the date of consummation of the transaction, if the previously 
disclosed annual percentage rate is no longer accurate, as determined 
under TILA section 107(c). 15 U.S.C. 1638(b)(2)(D). Regulation Z 
implements this requirement in Sec.  1026.19(a)(2)(ii). RESPA does not 
expressly address timing requirements for the delivery of revised GFEs, 
but Regulation X generally requires that a revised GFE must be provided 
within three business days of the creditor receiving information 
sufficient to establish a reason for revision.\144\
---------------------------------------------------------------------------

    \144\ ``If a revised GFE is to be provided, the loan originator 
must do so within 3 business days of receiving information 
sufficient to establish changed circumstances.'' 12 CFR 1024.7(f)(1) 
and (2). ``If a revised GFE is to be provided, the loan originator 
must do so within 3 business days of the borrower's request.'' 12 
CFR 1024.7(f)(3). ``The loan originator must provide the revised GFE 
within 3 business days of the interest rate being locked or, for an 
expired interest rate, re-locked.'' 12 CFR 1024.7(f)(5).
---------------------------------------------------------------------------

    While both regulations contain redisclosure requirements, their 
approaches are different. Regulation Z ensures that the consumer is 
made aware of changes at a specific point in time before consummation, 
but does not require the creditor to keep the consumer informed of 
incremental changes during the loan origination process. In contrast, 
Regulation X ensures that the consumer is kept aware of certain changes 
during the process, but those changes may occur up to the day of 
settlement. These different approaches may stem from the underlying 
purposes of the respective statutes: TILA focuses primarily on the 
disclosure of high-level measures of the costs imposed by the creditor, 
such as the APR, while RESPA requires itemized disclosure of all 
charges associated with the settlement of a federally related mortgage 
loan and any underlying real estate transaction, regardless of who 
imposes the charge.
    The Bureau believes that the policy goals of both statutes are best 
served by adopting the Regulation X requirement that revised 
disclosures be delivered within three business days of the creditor 
establishing that a valid reason for revision exists. Intermittent 
redisclosure of the integrated Loan Estimate is necessary under RESPA 
because settlement service provider costs typically fluctuate during 
the mortgage loan origination process. Furthermore, intermittent 
redisclosure is consistent with the purposes of TILA because it 
promotes the informed use of credit by keeping the consumer apprised of 
changes in costs.
    Accordingly, the Bureau is proposing Sec.  1026.19(e)(4)(i), which 
provides that, if a creditor delivers a revised Loan Estimate, the 
creditor must do so within three business days of establishing that a 
valid reason for revision exists. Proposed comment 19(e)(4)-1 provides 
illustrative examples of this requirement.
    The Bureau proposes this provision pursuant to its authority under 
TILA section 105(a), RESPA section 19(a), Dodd-Frank Act section 
1032(a), and, for residential mortgage loans, sections 129B(e) of TILA 
and 1405(b) of the Dodd-Frank Act. This proposed provision is 
consistent with TILA's purposes in that alerting consumers to 
significant settlement cost increases as they occur, rather than prior 
to consummation, increases consumer awareness during the mortgage loan 
origination process, enabling consumers to avoid the uninformed use of 
credit. This provision is consistent with section 129B(e) of TILA 
because failing to inform borrowers of significant settlement cost 
increases as they occur is not in the interest of the borrower. This 
also achieves RESPA's purposes because informing consumers of 
significant settlement cost increases as they occur is a more effective 
method of advance disclosure of settlement costs than only informing 
consumers at or shortly prior to consummation. In addition, the 
proposed regulation is consistent with Dodd-Frank Act section 1032(a) 
because the features of mortgage loan transactions and settlement 
services will be more fully, accurately, and effectively disclosed to 
consumers in a manner that permits consumers to understand the costs, 
benefits, and risks associated with the mortgage loan and settlement 
services if consumers are made aware of significant settlement cost 
increases as they occur, rather than prior to consummation. It is also 
in the interest of consumers and in the public interest, consistent 
with Dodd-Frank Act section 1405(b), because alerting consumers to 
significant settlement cost increases during the process will improve 
consumer understanding and awareness of the mortgage loan transaction 
through the use of disclosure.
Prohibition Against Delivering Early Disclosures at the Same Time as 
Final Disclosures
    As explained above, the purposes of RESPA and TILA include 
effective advance disclosure of settlement costs, and the informed use 
of credit by consumers. See TILA section 102; RESPA section 2. Section 
105(a) of TILA also permits the Bureau to prescribe regulations that 
would improve consumers' ability to understand the mortgage loan 
transaction. The Dodd-Frank Act enhances TILA's focus by placing 
special emphasis on the requirement that disclosures must be made in a 
way that is clear and understandable to the consumer. Section 1405 of 
the Dodd-Frank Act focuses on improving ``consumer awareness and 
understanding of transactions involving residential mortgage loans 
through the use of disclosures.'' The Bureau is aware that, in some 
cases, creditors have provided a revised GFE at the real estate closing 
along with the RESPA settlement statement. The Bureau is concerned that 
this practice may be confusing for consumers and may diminish their 
awareness and understanding of the transaction.
    The Bureau recognizes that there are cases in which a consumer may 
not be confused by receiving good faith estimates on the same day, or 
even at the same time, as the consumer receives the actual settlement 
costs. However, because the estimated costs will match the actual 
costs, the Bureau is concerned that consumers may be confused by 
seemingly duplicative disclosures. The Bureau is also concerned that 
this duplication may contribute to information overload stemming from 
too many disclosures, which may, in turn, inhibit the consumer's 
ability to understand the transaction. Accordingly, proposed Sec.  
1026.19(e)(4)(ii) prohibits creditors from providing a consumer with 
disclosures of estimated and actual costs at the same time. To draw a 
clear line to facilitate compliance, the creditor does not comply with 
the requirements of proposed Sec.  1026.19(e) if the consumer receives 
revised versions of the disclosures required under Sec.  
1026.19(e)(1)(i) on the same business day as the consumer receives the 
disclosures required by Sec.  1026.19(f)(1)(i).
    Accordingly, the Bureau is proposing Sec.  1026.19(e)(4)(ii), which 
provides that the creditor shall deliver revised versions of the 
disclosures required by Sec.  1026.19(e) in a manner that ensures such 
revised disclosures are not received on the same business day as the 
consumer receives the disclosures required by Sec.  1026.19(f)(1)(i). 
The Bureau proposes this provision pursuant to its authority under TILA 
section 105(a), RESPA section 19(a), Dodd-Frank Act section 1032(a), 
and, for residential mortgage loans, Dodd-Frank Act section 1405(b). 
The

[[Page 51175]]

proposed provision is consistent with TILA's purposes because 
prohibiting simultaneous provision of a revised Loan Estimate and the 
Closing Disclosure promotes the informed use of credit by reducing the 
potential for consumer confusion and information overload. Similarly, 
this provision achieves RESPA's purposes because the receipt of 
settlement cost information on a single disclosure is a more effective 
method of advance disclosure of settlement costs. In addition, the 
proposed regulation is consistent with Dodd-Frank Act section 1032(a) 
because consumers will understand the costs, benefits, and risks 
associated with the mortgage loan and settlement services if the actual 
terms and costs of the transaction are disclosed on the Closing 
Disclosure only. It is also in the interest of consumers and in the 
public interest, consistent with Dodd-Frank Act section 1405(b), 
because ensuring that consumers do not receive duplicative disclosures 
will improve consumer understanding and awareness of the mortgage loan 
transaction through the use of disclosure.
    Proposed comment 19(e)(4)-2 discusses the requirement that revised 
disclosures may not be delivered at the same time as the final 
disclosures. The proposed comment explains that creditors comply with 
the requirements of Sec.  1026.19(e)(4) if the revised disclosures are 
reflected in the disclosures required by Sec.  1026.19(f)(1)(i) (i.e., 
the Closing Disclosure). This comment also includes illustrative 
examples of the requirement.
19(f) Mortgage Loans Secured by Real Property--Final Disclosures
    As discussed in the preamble text introducing Sec.  1026.19, TILA 
applies only to creditors and requires, for certain mortgage 
transactions, creditors to furnish a corrected disclosure to the 
borrower not later than three business days before the date of 
consummation of the transaction if the prior disclosed APR has become 
inaccurate. 15 U.S.C. 1638(b)(2)(A), (D). In contrast, RESPA generally 
applies to settlement agents and requires the person conducting the 
settlement (e.g., the settlement agent) to complete a settlement 
statement and make it available for inspection by the borrower at or 
before settlement. 12 U.S.C. 2603(b). RESPA also provides that, upon 
the request of the borrower, the person who conducts the settlement 
must permit the borrower to inspect those items which are known to such 
person on the settlement statement during the business day immediately 
preceding the day of settlement. Id.
    Regulation Z implements TILA's requirement that the creditor 
deliver corrected disclosures and provides that, if the annual 
percentage rate disclosed in the early TILA disclosure becomes 
inaccurate, the creditor shall provide corrected disclosures with all 
changed terms. Sec.  1026.19(a)(2)(ii). Regulation Z further provides 
that the consumer must receive the corrected disclosures no later than 
three business days before consummation. Id. Regulation X provides that 
the settlement agent shall permit the borrower to inspect the RESPA 
settlement statement, completed to set forth those items that are known 
to the settlement agent at the time of inspection, during the business 
day immediately preceding settlement. Sec.  1024.10(a).
    Section 1032(f) of the Dodd-Frank Act provides that the Bureau 
shall propose for public comment rules that combine the disclosures 
required under TILA and sections 4 and 5 of RESPA. As noted above, 
although the Dodd-Frank Act amended TILA and RESPA to reflect section 
1032(f)'s mandate to integrate the rules under TILA and RESPA, Congress 
did not reconcile the timing requirements or amend the division of 
responsibilities between creditor and settlement agent in TILA and 
RESPA.
19(f)(1) Provision
19(f)(1)(i) Scope
    As discussed above, the integrated disclosure mandate requires the 
Bureau to reconcile what Congress did not. Thus, pursuant to its 
authority under sections 105(a) of TILA, 19(a) of RESPA, and 1032(f) of 
the Dodd-Frank Act, the Bureau is proposing to integrate the disclosure 
requirements in TILA section 128 and RESPA section 4 in Sec.  
1026.19(f)(1)(i). This section provides that in a closed-end consumer 
credit transaction secured by real property, other than a reverse 
mortgage subject to Sec.  1026.33, the creditor shall provide the 
consumer with the disclosures in Sec.  1026.38 reflecting the actual 
terms of the credit transaction. Proposed comment 19(f)(1)(i)-1 
provides illustrative examples of this provision.
19(f)(1)(ii) Timing
19(f)(1)(ii)(A) In General
    The Bureau must determine when the integrated disclosures must be 
provided, given that the statutory requirements are not in sync. The 
Bureau believes that, to comply with both TILA and RESPA, the 
integrated disclosure must be delivered no later than three days before 
consummation. The Bureau recognizes that RESPA requires settlement 
agents to permit borrower inspection of the settlement statement only 
one business day in advance of settlement, and even then RESPA requires 
disclosure of only the information to the extent that it is known to 
the settlement agent. However, the fact that Congress did not alter the 
timing requirements under RESPA does not imply that the timing 
requirements under TILA were eliminated. It can be safely presumed that 
Congress was aware of the requirement that creditors must deliver final 
disclosures three business days before consummation because Congress 
created the three-business-day waiting period in 2008. Furthermore, 
section 1098 of the Dodd-Frank Act, which amends RESPA section 4 to 
require integrated disclosures, specifically provides that such 
integrated disclosures shall ``include real estate settlement cost 
statements.'' This suggests that Congress intended creditors to deliver 
the settlement cost statements with the TILA disclosures required to be 
delivered no later than three business days before consummation, even 
though the language in RESPA section 4 related to settlement agent 
delivery remains.\145\
---------------------------------------------------------------------------

    \145\ The language in section 4 of RESPA requiring settlement 
statement delivery one business day in advance of settlement was 
added in 1976. See section 3 of Public Law 94-205 (Jan. 2, 1976). 
Interpreting the recent amendments in a way that overrides the 
legacy language is consistent with Supreme Court precedent. See FDA 
v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) 
(``[T]he meaning of one statute may be affected by other Acts, 
particularly where Congress has spoken subsequently and more 
specifically to the topic at hand.'').
---------------------------------------------------------------------------

    The expansion of the items required to be disclosed three business 
days prior to consummation also supports the Bureau's interpretation. 
As discussed above, section 1419 of the Dodd-Frank Act also amended 
TILA by adding section 128(a)(17), which requires creditors to disclose 
the aggregate amount of settlement charges for all settlement services 
provided in connection with the loan and the aggregate amount of other 
fees or required payments in connection with the loan. The items 
included in this amendment are nearly all of the items that are 
included on the RESPA settlement statement, which suggests that 
Congress intended for creditors to disclose information that was 
traditionally known only to settlement agents in advance of 
consummation. This amendment, coupled with the fact that Regulation Z 
requires redisclosure of all changed terms three business days before 
consummation when the APR is inaccurate, implies that Dodd-Frank 
requires provision of the integrated

[[Page 51176]]

disclosure no later than three business days before consummation.
    The determination of how to integrate these conflicting statutory 
provisions also must be made in light of section 1405(b) of the Dodd-
Frank Act, which focuses on improving ``consumer awareness and 
understanding of transactions involving residential mortgage loans 
through the use of disclosures.'' Consumers may be more aware of and 
better understand their transactions if consumers receive the 
disclosures reflecting all of the terms and costs associated with their 
transactions three days before consummation. This should afford 
consumers sufficient time to review, analyze, and question the 
information reflected in the disclosure, such that consumers are aware 
of and understand the transactions by the time consumers are required 
to obligate themselves. This should also provide consumers with 
sufficient time to identify and correct errors, discuss and negotiate 
cost increases, and have the necessary funds available. This may also 
eliminate the opportunity for bad actors to surprise consumers with 
unexpected costs at the closing table, when consumers are less able to 
question such costs.
    In addition, the Bureau is concerned that consumers would not 
receive the disclosures far enough in advance of consummation to review 
and understand the transaction under an alternate reading of the 
statute. As explained above, Regulation Z currently requires creditors 
to ensure that consumers receive the corrected TIL disclosures no later 
than three business days prior to consummation. A less stringent rule 
that allowed consumers to receive the disclosures on the day of 
consummation would be inconsistent with both TILA and the goals this 
proposal seeks to achieve. However, the Bureau is also concerned that 
it would be impractical to require delivery earlier than three business 
days before consummation. Thus, the Bureau believes that the proposal 
should provide flexibility to industry by requiring creditors to ensure 
that consumers receive the disclosures no later than the third business 
day before consummation. Under this approach, a creditor need not 
complete the disclosures until the third business day before 
consummation, provided it can ensure that the consumer will receive the 
disclosures that day, such as via electronic mail consistent with 
applicable requirements or hand delivery.
    As discussed above, the integrated disclosure mandate requires the 
Bureau to reconcile what Congress did not. Section 105(a) of TILA 
authorizes the Bureau to modify and add requirements under certain 
circumstances, and the Bureau believes that requiring redisclosure in 
cases where it is not currently required under Regulation Z or 
Regulation X is necessary to effectively integrate the disclosures. 
Accordingly, the Bureau proposes Sec.  1026.19(f)(1)(ii)(A), which 
provides that, except for transactions secured by timeshares, or as 
provided under Sec.  1026.19(f)(2), the creditor shall ensure that the 
consumer receives the disclosures no later than three business days 
before consummation. Proposed comment 19(f)(1)(ii)-1 provides 
illustrations of this requirement. Proposed comment 19(f)(1)(ii)-2 
explains the requirement that consumers must receive disclosures no 
later than three days in advance of consummation, and provides 
practical examples illustrating appropriate delivery methods.
    The Bureau informed the Small Business Review Panel that the Bureau 
was considering requiring reissuance if the APR increased by more than 
\1/8\ of 1 percent, certain loan features were added, or if the amount 
needed to close increased beyond a certain tolerance. See Small 
Business Panel Review Report at 11. While this proposal includes the 
tolerance for the amount needed to close and would require reissuance 
if certain loan features are added, this proposal does not include an 
additional APR tolerance for reissuance. Based on further review, the 
Bureau believes that the $100 amount needed to close tolerance provides 
sufficient flexibility, thereby making an additional APR tolerance 
unnecessary. The Bureau was also concerned that the additional APR 
tolerance would harm consumers by allowing potentially large costs to 
change immediately prior to closing. Importantly, the Bureau believes 
that this proposal is substantially similar to the possibilities 
discussed with the Small Business Review Panel. In virtually all cases 
where the APR increases by more than \1/8\ of 1 percent, the amount 
needed to close would also have increased by more than $100, requiring 
re-disclosure. However, the Bureau solicits comment on whether the use 
of an APR tolerance would provide any additional benefits.
    The Bureau recognizes that this modification would require 
redisclosure three days before consummation in circumstances that are 
not currently required under Regulation Z. This proposal removes the 
condition, provided for under TILA section 128(b)(2)(D), that corrected 
disclosures need not be delivered if the estimated APR included in the 
early TILA disclosure is accurate at the time of consummation. The 
Bureau has received extensive feedback indicating that APR estimates 
included in the early TILA disclosures are so rarely accurate that most 
creditors provide corrected disclosures as a standard business 
practice, instead of analyzing the accuracy of the disclosed APR. Thus, 
the Bureau believes that the benefit afforded by the condition under 
TILA section 128(b)(2)(D) is more illusory than real, and may, in fact, 
impose an unnecessary compliance burden on industry. In addition, the 
Bureau suspects that the expansion of the list of items included in the 
APR, pursuant to the proposed amendments to Sec.  1026.4, may make it 
less likely that a creditor will be able to accurately estimate the APR 
within three business days of application. Therefore, this proposal 
does not condition disclosure prior to consummation on APR accuracy.
    These proposals are made pursuant to the Bureau's legal authority 
under sections 105(a) of TILA, 19(a) of RESPA, 1032(a) of the Dodd-
Frank Act, and, for residential mortgage transactions, sections 129B(e) 
of TILA and 1405(b) of the Dodd-Frank Act. The Bureau has considered 
the purposes for which it may exercise its authority under section 
105(a) of TILA and, based on that review, believes that the proposed 
modifications are appropriate. The proposal may help consumers avoid 
the uninformed use of credit by ensuring that consumers receive 
disclosures of the actual terms and costs associated with the mortgage 
loan transaction early enough that consumers have sufficient time to 
become fully informed as to the cost of their credit. This provision is 
consistent with section 129B(e) of TILA because failing to provide 
borrowers with enough time to become fully informed of the actual terms 
and costs of the transaction is not in the interest of the borrower.
    The Bureau has also considered the purposes for which it may 
exercise its authority under section 19(a) of RESPA and, based on that 
review, believes that the proposed rules and interpretations are 
appropriate. The proposal has the potential to ensure more effective 
advance disclosure of settlement costs by requiring creditors to 
disclose the actual settlement costs associated with the transaction 
three business days before consummation.
    Proposed Sec.  1026.19(f)(1)(ii)(A) is consistent with Dodd-Frank 
Act section 1032(a) because the features of mortgage loan transactions 
and settlement services will be more fully, accurately, and effectively 
disclosed to consumer in

[[Page 51177]]

a manner than permits consumers to understand the costs, benefits, and 
risks associated consumers will understand the costs and risks 
associated with the mortgage loan and settlement services if consumers 
receive the disclosures reflecting all of the terms and costs 
associated with their transactions three days before consummation.
    In addition, the Bureau has considered the purposes for which it 
may exercise its authority under section 1405(b) of the Dodd-Frank Act 
and, based on that review, believes that the proposed modifications are 
appropriate. The proposal may improve consumer awareness and 
understanding of the mortgage loan transaction by ensuring that 
consumers receive the disclosures reflecting all of the terms and costs 
associated with their transactions three days in advance of 
consummation. The proposal may also be in the interest of consumers and 
in the public interest because the proposal may eliminate the 
opportunity for bad actors to surprise consumers with unexpected costs 
at the closing table, when consumers are less able to question such 
costs.
    The Bureau recognizes that this is a change from current industry 
practice. During the Small Business Review process, several small 
entity representatives were opposed to this modification. See Small 
Business Review Panel report at 35, 38, 40, 45, 53-54, 59-60, 67-68, 
72, and 77. The Small Business Review Panel recommended that the Bureau 
explore ways to mitigate the potential impact of the three business day 
requirement on small entities. See id at 29. Based on this feedback and 
consistent with the Small Business Review Panel's recommendation, the 
Bureau solicits comment on alternative approaches, including any that 
can minimize the burden on industry, especially small entities, while 
serving the needs of consumers and effectively integrating the 
disclosures, as required by the Dodd-Frank Act.
19(f)(1)(ii)(B) Timeshares
    As explained above, in 2008 Congress amended TILA to require 
delivery of final disclosures three business days prior to 
consummation. However, Congress explicitly exempted mortgage loans 
secured by timeshares, as defined by 11 U.S.C. 101(53D), from the 
three-day requirement.\146\ Accordingly, pursuant to its authority 
under sections 105(a) of TILA, 19(a) of RESPA, and 1405(b) of the Dodd-
Frank Act, the Bureau proposes Sec.  1026.19(f)(1)(ii)(B), which states 
that for transactions secured by a consumer's interest in a timeshare 
plan described in 11 U.S.C. 101(53D), the creditor shall ensure that 
the consumer receives the disclosures required under paragraph 
(f)(1)(i) of this section as soon as reasonably practicable, but no 
later than consummation. This proposed regulation carries out the 
purposes of TILA and RESPA by ensuring meaningful disclosure of credit 
terms and effective advance disclosure of settlement costs, consistent 
with section 105(a) of TILA and 19(a) of RESPA, respectively. Also, 
this proposed regulation will improve consumer awareness and 
understanding of transactions involving residential mortgage loans by 
requiring effective disclosure within a timeframe appropriate for loans 
secured by a timeshare, which will be in the best interest of consumers 
and the public consistent with Dodd-Frank Act section 1405(b).
---------------------------------------------------------------------------

    \146\ Mortgage Disclosure Improvement of 2008, Public Law 110-
289, Title V, Sec.  2502(a)(6), 122 Stat. 2654, 2857 (July 30, 
2008); 15 U.S.C. 1638(b)(2)(G).
---------------------------------------------------------------------------

    Proposed comment 19(f)(1)(ii)-3 explains that for loans secured by 
timeshares, as defined under 11 U.S.C. 101(53D), Sec.  
1026.19(f)(1)(ii)(B) requires a creditor to ensure that the consumer 
receives the disclosures required under Sec.  1026.19 (f)(1)(i) as soon 
as reasonably practicable, but no later than consummation. The proposed 
comment also includes illustrative examples of this requirement.
19(f)(1)(iii) Delivery
    Section 128(b)(2)(E) of TILA provides that, if the disclosures are 
mailed to the consumer, the consumer is considered to have received 
them three business days after they are mailed. 15 U.S.C. 
1638(b)(2)(E). RESPA does not expressly address delivery requirements. 
Regulation Z provides that if the disclosures are provided to the 
consumer by means other than delivery in person, the consumer is deemed 
to have received the disclosures three business days after they are 
mailed or delivered. See Sec.  1026.19(a)(1)(ii). Regulation X provides 
that the settlement agent shall deliver the completed RESPA settlement 
statement at or before the settlement, except if the borrower waives 
the right to delivery of the completed RESPA settlement statement, in 
which case the completed RESPA settlement statement shall be mailed or 
delivered as soon as practicable after settlement. Sec.  1024.10(b), 
(c).
    To establish a consistent standard for the integrated Closing 
Disclosure, pursuant to its authority under sections 105(a) of TILA, 
19(a) of RESPA, and 1405(b) of the Dodd-Frank Act, the Bureau proposes 
to adopt Sec.  1026.19(f)(1)(iii), which provides that, if any 
disclosures required under Sec.  1026.19(f)(1)(i) are not provided to 
the consumer in person, the consumer is presumed to have received the 
disclosures three business days after they are mailed or delivered to 
the address specified by the consumer.
    Proposed comment 19(f)(1)(iii)-1 explains that if any disclosures 
required under Sec.  1026.19(f)(1)(i) are not provided to the consumer 
in person, the consumer is presumed to have received the disclosures 
three business days after they are mailed or delivered. This is a 
presumption which may be rebutted by providing evidence that the 
consumer received the disclosures earlier than three business days. The 
proposed comment also contains illustrative examples. Proposed comment 
19(f)(1)(iii)-2 clarifies that the presumption established in Sec.  
1026.19(f)(1)(iii) applies to methods of electronic delivery, such as 
email. However, creditors using electronic delivery methods, such as 
email, must also comply with Sec.  1026.17(a)(1). This proposed comment 
also contains illustrative examples.
    The Bureau recognizes that this requirement is different than the 
current requirement in Regulation Z. As explained above, the current 
rules deem corrected disclosures mailed or delivered to the consumer by 
a method other than in-person delivery to be received three business 
days after mailing or delivery. In contrast, the proposed rule instead 
creates a presumption that the disclosures are received three business 
days after they are mailed or delivered to the address provided by the 
consumer. While the current rule may be appropriate for the disclosures 
provided under Sec.  1026.19(a), the Bureau is concerned that the 
current rule may not be appropriate for the integrated Closing 
Disclosure, which contains much more information than the final TILA 
disclosures subject to the current rule, and therefore will require 
more time to review and understand. It therefore may be appropriate to 
create a presumption of receipt, which would provide additional 
encouragement for lenders to ensure that the disclosures are received 
in a timely manner. However, the Bureau solicits feedback regarding 
whether the proposed rules will create uncertainty regarding 
compliance. The Bureau also solicits comment on whether the rules 
should be analogous to the current rule under Sec.  1026.19(a)(2), 
which uses ``deem'' instead of ``presume.'' Finally, the Bureau seeks 
feedback regarding

[[Page 51178]]

whether Sec.  1026.19(a) should be modified to reflect Sec.  
1026.19(f)(1)(iii), if the final rule adopts the presumption of 
receipt.
    This proposed provision is consistent with section 105(a) of TILA 
in that it may help consumers avoid the uninformed use of credit by 
ensuring that consumers receive disclosures of the actual terms and 
costs associated with the mortgage loan transaction early enough that 
consumers have sufficient time to become fully informed as to the cost 
of credit. This proposed provision is also consistent with section 
19(a) of RESPA because it has the potential to ensure more effective 
advance disclosure of settlement costs by requiring creditors to make 
sure that the disclosures are delivered to the address specified by the 
consumer three business days before consummation. In addition, the 
proposal is consistent with section 1405(b) of the Dodd-Frank Act 
because the proposal may improve consumer awareness and understanding 
of the mortgage loan transaction by ensuring that disclosures 
reflecting all of the terms and costs associated with their 
transactions are delivered to the address specified by the consumer 
three business days in advance of consummation. Ensuring that consumers 
receive disclosures in a timely manner is also in the interest of 
consumers and in the public interest because the proposal may allow 
consumers to receive the disclosure early enough to question and 
understand their mortgage loan transaction.
19(f)(1)(iv) Consumer's Waiver of Waiting Period Before Consummation
    Section 128(b)(2)(F) of TILA provides that the consumer may waive 
or modify the timing requirements for disclosures to expedite 
consummation of a transaction, if the consumer determines that the 
extension of credit is needed to meet a bona fide personal financial 
emergency. Section 128(b)(2)(F) further provides that: (1) The term 
``bona fide personal financial emergency'' may be further defined in 
regulations issued by the Bureau; (2) the consumer must provide the 
creditor with a dated, written statement describing the emergency and 
specifically waiving or modifying the timing requirements, which bears 
the signature of all consumers entitled to receive the disclosures; and 
(3) the creditor must provide, at or before the time of waiver or 
modification, the final disclosures. 15 U.S.C. 1638(b)(2)(F). This 
provision is implemented in Sec.  1026.19(a)(3) of Regulation Z. 
Neither RESPA nor Regulation X contains a similar provision.
    Although the Bureau understands that waivers based on a bona fide 
personal financial emergency are rare, this exception serves an 
important purpose: consumers should be able to waive the protection 
afforded by the waiting period if, in the face of a financial 
emergency, the waiting period does more harm than good. Accordingly, 
the Bureau is proposing Sec.  1026.19(f)(1)(iv), which allows a 
consumer to waive the three-business-day waiting period in the event of 
a bona fide personal financial emergency. In addition, the Bureau seeks 
comment on the nature of waivers based on bona fide personal financial 
emergencies. The Bureau also seeks comment on whether the bona fide 
personal financial emergency exception is needed more in some contexts 
than in others (e.g., in refinance transactions or purchase money 
transactions).
    Proposed comment 19(f)(1)(iv)-1 states that, a consumer may modify 
or waive the right to the three-business-day waiting period required by 
Sec.  1026.19(f)(1)(ii) only after the creditor makes the disclosures 
required by Sec.  1026.19(f)(1)(i). This comment is modeled after 
comment 19(a)(3)-1, which is based on the same statutory text, and is 
consistent with commentary on waiving the rescission period and the 
pre-consummation waiting period required for certain high-cost mortgage 
transactions. The consumer must have a bona fide personal financial 
emergency that necessitates consummating the credit transaction before 
the end of the waiting period. Whether these conditions are met is 
determined by the facts surrounding individual situations. The imminent 
sale of the consumer's home at foreclosure, where the foreclosure sale 
will proceed unless loan proceeds are made available to the consumer 
during the waiting period, is one example of a bona fide personal 
financial emergency. Each consumer who is primarily liable on the legal 
obligation must sign the written statement for the waiver to be 
effective.
Alternative--Proposed 19(f)(1)(v) Settlement Agent
    As discussed above, neither TILA nor Regulation Z contain 
requirements related to settlement agents, but RESPA and Regulation X 
generally apply to settlement agents with respect to closing disclosure 
requirements. Section 1032(f) of the Dodd-Frank Act requires the Bureau 
to propose for public comment rules that combine the disclosures 
required under TILA and sections 4 and 5 of RESPA. The Dodd-Frank Act 
amended TILA and RESPA to reflect section 1032(f)'s mandate to 
integrate the rules under TILA and RESPA, but Congress did not 
reconcile the division of responsibilities between creditor and 
settlement agent in TILA and RESPA.
    The Bureau recognizes that people who conduct settlements, such as 
settlement agents and closing attorneys, play a valuable role in the 
real estate settlement process. The Bureau also believes that 
settlement agents may be able to assist consumers with issues that 
arise during a real estate settlement as, or perhaps more, effectively 
than creditors. However, the Bureau is concerned that, in the context 
of providing disclosures, settlement agents may not be able to fulfill 
the obligations imposed by TILA. The Bureau is also concerned that 
consumers will receive duplicative, inaccurate, or unreliable 
disclosures if the responsibility to provide disclosures is divided.
    As discussed above, proposed Sec.  1026.19(f)(1)(i) makes the 
creditor solely responsible for the provision of the disclosures 
required by Sec.  1026.19(f). Although this may be the appropriate 
solution, an alternative approach that permits creditors and settlement 
agents to split responsibility may also be appropriate. This 
alternative would require the creditor and settlement agent to agree on 
a division of responsibilities regarding the delivery of the 
disclosures. Accordingly, pursuant to its authority under sections 
105(a) of TILA, 19(a) of RESPA, and 1405(b) of the Dodd-Frank Act, the 
Bureau proposes alternative Sec.  1026.19(f)(1)(v), which provides that 
a settlement agent may provide a consumer with the disclosures required 
under Sec.  1026.19(f)(1)(i), provided the settlement agent complies 
with all requirements of Sec.  1026.19(f) as if it were the creditor. 
As discussed under proposed alternative comment 19(f)(1)(v)-3 below, 
this proposed regulation is not intended to relieve the creditor's 
responsibility under TILA. The creditor would remain responsible for 
ensuring that disclosures are provided in accordance with the 
requirements of Sec.  1026.19(f). Disclosures provided by a settlement 
agent in accordance with the requirements of Sec.  1026.19(f) satisfy 
the creditor's obligation under Sec.  1026.19(f)(1)(i). As discussed 
under proposed alternative comment 19(f)(1)(v)-3 below, this proposed 
regulation is not intended to relieve the creditor's responsibility 
under TILA. The creditor would remain responsible for ensuring that 
disclosures are provided in accordance with the requirements of Sec.  
1026.19(f). Disclosures provided by a settlement agent in accordance 
with the requirements of Sec.  1026.19(f) satisfy the creditor's

[[Page 51179]]

obligation under Sec.  1026.19(f)(1)(i). In addition, the Bureau 
invites comment on other methods of dividing responsibility between 
creditors and settlement service providers, provided that such other 
methods ensure that consumers are provided with prompt, accurate, and 
reliable disclosures.
    The Bureau informed the Small Business Review Panel that the Bureau 
was considering an alternate proposal where the lender would be 
responsible for preparing the TILA-required information, the settlement 
agent would be responsible for preparing the RESPA-required 
information, and the lender and settlement agent would be jointly 
responsible for providing the consumer with an integrated Closing 
Disclosure three business days before closing. See Small Business Panel 
Review Report at 12. While the alternate proposal in this proposed rule 
permits shared responsibility, it does not delineate responsibility 
between RESPA and TILA content. Based on further review, the Bureau 
determined that such a division would be impracticable. There is 
significant overlap between the disclosures required by the statutes, 
and creditors and settlement agents have access to both RESPA and TILA 
information. The Bureau believes that the better approach is to permit 
shared responsibility, but allow creditors and settlement agents to 
decide how to most effectively divide that responsibility. However, the 
Bureau solicits comment on the benefits and costs associated with this 
alternative, especially regarding any impact on small businesses that 
was not raised during the Small Business Review process.
    This proposed regulation carries out the purposes of TILA because 
requiring the involvement of a settlement agent could result in 
increased consumer awareness and more meaningful disclosure of credit 
terms, consistent with section 105(a) of TILA. This proposed regulation 
could also achieve the purposes of RESPA by resulting in more effective 
advance disclosure of settlement costs, consistent with section 19(a) 
of RESPA. This proposed regulation could also improve consumer 
understanding and awareness of the transaction by permitting the form 
to be completed and provided by settlement agents, who often assist 
consumers during a real estate closing, which is in the interest of 
consumers and in the public interest, consistent with Dodd-Frank Act 
section 1405(b).
    Proposed alternative comment 19(f)(1)(v)-1 clarifies that a 
settlement agent may provide the disclosures required under Sec.  
1026.19(f)(1)(i) instead of the creditor. By assuming this 
responsibility, the settlement agent becomes responsible for complying 
with all of the relevant requirements as if it were the creditor, 
meaning that ``settlement agent'' should be read in the place of 
``creditor'' for all the relevant provisions of Sec.  1026.19(f), 
except where the context indicates otherwise. The creditor and 
settlement agent must effectively communicate to ensure timely and 
accurate compliance with the requirements of this section.
    Proposed alternative comment 19(f)(1)(v)-2 clarifies that if a 
settlement agent issues any disclosure under Sec.  1026.19(f), the 
settlement agent must comply with the requirements of Sec.  1026.19(f). 
This proposed alternative comment also clarifies that the settlement 
agent may assume the responsibility to provide some or all of the 
disclosures required by Sec.  1026.19(f), provides that the consumer 
receives one single disclosure form containing all of the information 
required to be disclosed pursuant to Sec.  1026.19(f)(1)(i), in 
accordance with the other requirements in Sec.  1026.19(f), such as 
requirements related to timing and delivery. The comment also includes 
illustrative examples.
    Proposed alternative comment 19(f)(1)(v)-3 explains that if a 
settlement agent provides disclosures required under Sec.  1026.19(f) 
in the creditor's place, the creditor remains responsible under Sec.  
1026.19(f) for ensuring that the requirements of Sec.  1026.19(f) have 
been satisfied. For example, the creditor does not comply with Sec.  
1026.19(f) if the settlement agent does not provide the disclosures 
required under Sec.  1026.19(f)(1)(i), or if the consumer receives the 
disclosures later than three business days before consummation.
    The proposed comment also clarifies that the creditor does not 
satisfy the requirements of Sec.  1026.19(f) if it provides duplicative 
disclosures. For example, a creditor does not satisfy its obligation by 
issuing disclosures required under Sec.  1026.19(f) that mirror ones 
already issued by the settlement agent for the purpose of demonstrating 
that the consumer received timely disclosures. The creditor is expected 
to maintain communication with the settlement agent to ensure that the 
settlement agent is acting in place of the creditor. Disclosures 
provided by a settlement agent in accordance with Sec.  
1026.19(f)(1)(v) satisfy the creditor's obligation under Sec.  
1026.19(f)(1)(i).
    Proposed alternative comment 19(f)(1)(v)-4 clarifies that the 
settlement agent may assume the responsibility to provide some or all 
of the disclosures required by Sec.  1026.19(f). However, the consumer 
must receive one single disclosure form containing all of the 
information required to be disclosed pursuant to Sec.  
1026.19(f)(1)(i), in accordance with the other requirements in Sec.  
1026.19(f), such as requirements related to timing and delivery. The 
proposed alternative comment also includes illustrative examples.
19(f)(2) Subsequent Changes
    There are several circumstances where the strict application of the 
three-day-waiting period required by Sec.  1026.19(f)(1)(ii) may 
operate to the consumer's detriment. The Bureau seeks to provide 
flexibility where doing so would benefit the consumer. Thus, the Bureau 
is proposing Sec.  1026.19(f)(2), which provides that creditors need 
not comply with the timing requirements in Sec.  1026.19(f)(1)(ii) if 
the disclosure provided pursuant to Sec.  1026.19(f)(1)(i) is 
subsequently revised for any of the reasons described in Sec.  
1026.19(f)(2)(i) through (v).
    The Bureau proposes Sec.  1026.19(f)(2) pursuant to its authority 
under sections 105(a) of TILA and 19(a) of RESPA. As explained in more 
detail below, the Bureau believes that these proposed regulations will 
carry out the purposes of TILA and RESPA by ensuring meaningful 
disclosure of credit terms, more effective advance disclosure of 
settlement costs, and will result in the elimination of kickbacks, 
referral fees, and other practices that tend to increase unnecessarily 
the costs of certain settlement services, consistent with sections 
105(a) of TILA and 19(a) of RESPA, respectively.
19(f)(2)(i) Changes Due to Consumer and Seller Negotiations
    The Bureau recognizes that sellers and buyers frequently alter the 
terms of the real estate transaction based on the condition of the 
house at the time of the walk-though inspection, which is often the day 
before the scheduled real estate closing, and in some cases even 
continue to negotiate the deal at the closing table. These negotiations 
may affect items included on the Closing Disclosure, which, under the 
proposal, must be delivered three days prior to consummation. The 
Bureau believes that the regulations should provide flexibility to 
address this common occurrence, so that these changes do not trigger an 
additional three-day-waiting period. Thus, pursuant to its authority 
under section 105(a) of TILA and section 19(a) of RESPA, the Bureau 
proposes Sec.  1026.19(f)(2)(i), which states that if, after the 
creditor provides the consumer with the disclosures, the consumer and 
the seller agree to make changes to the transaction that affect

[[Page 51180]]

items disclosed, the creditor shall deliver revised disclosures 
reflecting such changes at or before consummation. Proposed comment 
19(f)(2)(i)-1 provides illustrative examples of this requirement. This 
proposed regulation will carry out the purposes of TILA by ensuring 
meaningful disclosure of credit terms and enable the informed use of 
credit by enabling buyers and sellers to conduct final negotiations 
informed by the final credit terms provided in the disclosures, and by 
ensuring that the disclosures can be modified to reflect such 
negotiations immediately prior to the real estate closing, consistent 
with section 105(a) of TILA. This will also help to achieve the 
purposes of RESPA by enabling more effective advance disclosure of 
settlement costs, and will result in the elimination of kickbacks, 
referral fees, and other practices that tend to increase unnecessarily 
the costs of certain settlement services, by enabling buyers and 
sellers to conduct final negotiations informed by the final credit 
terms provided in the disclosures, and by ensuring that the disclosures 
can be modified to reflect such negotiations immediately prior to the 
real estate closing, consistent with section 19(a) of RESPA.
19(f)(2)(ii) Changes to the Amount Actually Paid by the Consumer
    The Bureau does not believe that small miscalculations or minor 
changes to the transaction should result in closing delays. Therefore, 
the Bureau proposes Sec.  1026.19(f)(2)(ii), which provides that, if 
the amount actually paid by the consumer does not exceed the amount 
disclosed under Sec.  1026.38(d)(1) by more than $100, the creditor 
shall deliver revised disclosures at or before consummation. The Bureau 
believes that $100 may be the correct tolerance based on feedback 
received regarding the items most likely to change prior to 
consummation. The Bureau seeks comment on whether the threshold to 
accommodate small miscalculations or minor changes prior to 
consummation should be higher or lower than the proposed $100.
    The Bureau proposes Sec.  1026.19(f)(2)(ii) pursuant to its 
authority under section 105(a) of TILA and section 19(a) of RESPA. This 
proposed regulation will carry out the purposes of TILA by ensuring 
meaningful disclosure of credit terms and enable the informed use of 
credit by permitting minor underestimation in the final amount paid by 
the consumer, which will lessen the likelihood that creditors will 
overestimate the final amount paid by the consumer, consistent with 
section 105(a) of TILA. This will also help to achieve the purposes of 
RESPA by enabling more effective advance disclosure of settlement 
costs, and will result in the elimination of kickbacks, referral fees, 
and other practices that tend to increase unnecessarily the costs of 
certain settlement services by permitting minor underestimation in the 
final amount paid by the consumer, which will lessen the likelihood 
that creditors will unnecessarily increase the cost of settlement 
services by overestimating the final amount paid by the consumer, 
consistent with section 19(a) of RESPA.
    Proposed comment 19(f)(2)(ii)-1 discusses the requirements of Sec.  
1026.19(f)(2)(ii), which states that the creditor may provide revised 
disclosures without regard to the timing requirements in Sec.  
1026.19(f)(1)(ii) if the amount actually paid by the consumer does not 
exceed the amount disclosed pursuant to Sec.  1026.38(d)(1) by more 
than $100, provided that the creditor delivers revised disclosures at 
or before consummation. This proposed comment also includes 
illustrative examples of these requirements.
    Proposed comment 19(f)(2)(ii)-2 clarifies that revised disclosures 
provided at consummation may reflect adjustments pursuant to both Sec.  
1026.19(f)(2)(i) and Sec.  1026.19(f)(2)(ii). Thus, although Sec.  
1026.19(f)(2)(ii) limits the difference between the amount disclosed 
pursuant to Sec.  1026.19(f)(1)(i) and the amount actually paid at the 
real estate closing by the consumer to $100, the amount actually paid 
by the consumer at the real estate closing may vary by more than $100, 
to the extent permitted by Sec.  1026.19(f)(2)(i). This proposed 
comment also includes illustrative examples of this provision.
19(f)(2)(iii) Changes Due to Events Occurring After Consummation
    The Bureau is aware that some costs are not known with absolute 
certainty until the documents are recorded. For example, it is possible 
that a locality could change its schedule of recording fees, without 
advance notice, the day after the consumer signs the mortgage loan 
documents, but before the documents are recorded. The regulations need 
to provide sufficient flexibility to accommodate issues, such as these, 
when such changes are caused by a government entity. Thus, pursuant to 
its authority under section 105(a) of TILA and section 19(a) of RESPA, 
the Bureau proposes Sec.  1026.19(f)(2)(iii), which provides that, if 
an event occurs after consummation that causes the disclosures to 
become inaccurate, and such inaccuracy results solely from payments to 
a government entity in connection with the transaction, the creditor 
shall deliver revised disclosures to the consumer no later than the 
third business day after the event occurs, provided the consumer 
receives the corrected disclosures no later than 30 days after 
consummation. This proposed regulation will prevent circumvention and 
evasion of, and will facilitate compliance with, TILA, by ensuring that 
consumers receive correct disclosures of the final terms and costs of 
the transaction, consistent with section 105(a) of TILA. This proposed 
regulation is also made pursuant to the Bureau's authority to implement 
section 4 of RESPA, consistent with section 19(a) of RESPA. Proposed 
comment 19(f)(2)(iii)-1 clarifies that this provision applies to 
payments imposed by government entities, such as taxes, recording fees, 
and other taxes related to the real estate transaction, and provides 
several illustrative examples. The Bureau also solicits feedback on 
whether changes, other than payments to government entities, may occur 
after the real estate closing, and whether the regulation should 
provide additional flexibility for such changes.
19(f)(2)(iv) Changes Due to Clerical Errors
    Regulation X Sec.  1024.8(c) provides that an inadvertent or 
technical error in completing the HUD-1 or HUD-1A shall not be deemed a 
violation of section 4 of RESPA if a revised HUD-1 or HUD-1A is 
provided within 30 calendar days after settlement. Section 130 of TILA 
has a similar provision, with respect to civil liability, which 
relieves creditors of civil liability under certain circumstances, 
including if, within 60 days of identifying an error, the creditor 
notifies the person concerned and makes whatever adjustments are 
necessary.\147\ There is no similar provision in RESPA or Regulation Z. 
Pursuant to its authority under section 105(a) of TILA and 19(a) of 
RESPA, the Bureau proposes

[[Page 51181]]

Sec.  1026.19(f)(2)(iv), which provides that a creditor does not 
violate Sec.  1026.19(f)(1)(i) if the disclosures contain non-numeric 
clerical errors, provided the creditor delivers corrected disclosures 
as soon as reasonably practicable and no later than 30 days after 
consummation. Proposed comment 19(f)(2)(iv)-1 clarifies that clerical 
errors are errors such as typographical errors, or other minor errors 
that do not affect the amount owed by the consumer. This proposed 
regulation will prevent circumvention and evasion of, and will 
facilitate compliance with, TILA, by ensuring that consumers receive 
correct disclosures consistent with section 105(a) of TILA. This 
proposed regulation will also result in the elimination of kickbacks, 
referral fees, and other practices that tend to increase unnecessarily 
the costs of certain settlement services by ensuring that the 
consumers' records correctly reflect the terms, payments, and entities 
involved in the transaction, consistent with section 19(a) of RESPA. 
The Bureau also solicits feedback on whether the regulations should 
provide flexibility for numeric clerical errors, and how such 
flexibility could be provided without undermining the reliability of 
the disclosures provided to consumers at or before consummation.
---------------------------------------------------------------------------

    \147\ ``A creditor or assignee has no liability under this 
section or section 108 or section 112 for any failure to comply with 
any requirement imposed under this chapter or chapter 5, if within 
sixty days after discovering an error, whether pursuant to a final 
written examination or notice issued under section 108(e)(1) or 
through the creditor's or assignee's own procedures, and prior to 
the institution of an action under this section or the receipt of 
written notice of the error from the obligor, the creditor or 
assignee notifies the person concerned of the error and makes 
whatever adjustments in the appropriate account are necessary to 
assure that the person will not be required to pay an amount in 
excess of the charge actually disclosed, or the dollar equivalent of 
the annual percentage rate actually disclosed, whichever is lower.'' 
15 U.S.C. 1640(b).
---------------------------------------------------------------------------

19(f)(2)(v) Refunds Related to the Good Faith Analysis
    Neither RESPA nor Regulation Z expressly require creditors to 
refund money to the consumer based on variations between the disclosed 
estimated costs of settlement services and the amounts for such 
settlement services actually paid by the consumer. Section 1024.7(i) of 
Regulation X, however, provides that a lender or mortgage broker 
violates section 5 of RESPA if any charges at settlement exceed the 
charges listed on the GFE by more than the permitted tolerances, 
provided, however, that the loan originator may cure the tolerance 
violation by reimbursing to the borrower the amount by which the 
tolerance was exceeded at settlement or within 30 calendar days after 
settlement. As noted above, section 130 of TILA has a similar 
provision, with respect to civil liability, which relieves creditors of 
civil liability under certain circumstances, including if, within 60 
days of identifying an error, the creditor notifies the person 
concerned and makes whatever adjustments are necessary to assure that 
the person will not be required to pay an amount in excess of the 
charge actually disclosed.
    Accordingly, pursuant to its authority under sections 105(a) of 
TILA, 19(a) of RESPA, and 1405(b) of the Dodd-Frank Act, the Bureau 
proposes Sec.  1026.19(f)(2)(v), which provides that, if amounts paid 
by the consumer exceed the amounts specified under Sec.  
1026.19(e)(3)(i) or (ii), the creditor complies with Sec.  
1026.19(e)(1)(i) if the creditor refunds the excess to the consumer as 
soon as reasonably practicable and no later than 30 days after 
consummation, and the creditor complies with Sec.  1026.19(f)(1)(i) if 
the creditor provides revised disclosures that reflect such refund as 
soon as reasonably practicable and no later than 30 days after 
consummation. This proposed regulation will enable meaningful 
disclosure of credit terms, prevent circumvention and evasion of TILA, 
and will facilitate compliance with TILA by enabling creditors to 
refund amounts collected in excess of the good faith requirements, 
consistent with TILA section 105(a). This will also result in the 
meaningful advance disclosure of settlement costs and the elimination 
of kickbacks, referral fees, and other practices that tend to increase 
unnecessarily the costs of certain settlement services by enabling 
creditors to refund amounts collected in excess of the good faith 
requirements, thereby furthering the meaningfulness and reliability of 
the estimated disclosures, consistent with section 19(a) of RESPA.
    Proposed comment 19(f)(2)(v)-1 discusses refunds related to the 
good faith analysis. The proposed comment explains the requirement 
under Sec.  1026.19(f)(2)(v) providing that, if amounts paid by the 
consumer exceed the amounts specified under Sec.  1026.19(e)(3)(i) or 
(ii) of this section, the creditor does not violate Sec.  
1026.19(e)(1)(i) if the creditor delivers disclosures revised to 
reflect the refund of such excess as soon as reasonably practicable and 
no later than 30 days after consummation. This proposed comment also 
includes illustrative examples of these requirements.
19(f)(3) Charges Disclosed
19(f)(3)(i) Actual Charge
    Neither TILA nor Regulation Z addresses the amounts paid to 
settlement service providers for settlement services. However, section 
4 of RESPA provides that the settlement statement shall contain the 
amount imposed upon the consumer in connection with the settlement. 12 
U.S.C. 2603(a). Section 1024.8(b)(1) of Regulation X provides the 
general rule that the settlement agent shall state the actual charges 
paid by the borrower and seller on the HUD-1, or by the borrower on the 
HUD-1A. Pursuant to its authority under section 105(a) of TILA, section 
19(a) of RESPA, Dodd-Frank Act section 1032(a), and, for residential 
mortgage loans, Dodd-Frank Act section 1405(b), the Bureau proposes 
Sec.  1026.19(f)(3)(i), which provides that the amount imposed upon the 
consumer for any settlement service shall not exceed the amount 
actually received by the service provider for that service, except if 
the charge is an average charge, as provided under Sec.  
1026.19(f)(3)(ii).
    This proposed regulation will prevent circumvention and evasion of, 
and will facilitate compliance with, TILA by requiring disclosure of 
the actual terms and costs of the transaction, consistent with section 
105(a) of TILA. The proposed regulation implements the requirements of 
RESPA section 4, pursuant to the Bureau's implementation authority 
under RESPA section 19(a). This will also result in the elimination of 
kickbacks, referral fees, and other practices that tend to increase 
unnecessarily the costs of certain settlement services, consistent with 
RESPA sections 2(b) and 8. This will also ensure that the features of 
the consumer's mortgage loan are fully and accurately disclosed to the 
consumer, consistent with Dodd-Frank Act section 1032(a). The proposed 
regulation will also improve consumer awareness and understanding of 
transactions involving residential mortgage loans and is in the 
interest of consumers and in the public interest, consistent with Dodd-
Frank Act section 1405(b).
    Proposed comment 19(f)(3)(i)-1 explains that Sec.  1026.19(f)(3)(i) 
provides the general rule that the amount imposed upon the consumer for 
any settlement service shall not exceed the amount actually received by 
the service provider for that service. Except as otherwise provided in 
Sec.  1026.19(f)(3)(ii), a creditor violates Sec.  1026.19(f)(3)(i) if 
the amount imposed upon the consumer exceeds the amount actually 
received by the service provider for that service.
19(f)(3)(ii) Average Charge
    As part of the 2008 RESPA Final Rule, HUD adopted a limited 
exception to the requirement that the settlement statement shall 
contain the amount imposed on the consumer, which shall not be more 
than the amount received by the settlement service provider. 12 U.S.C. 
2603(a), 2607(b). A lender or settlement service provider may charge 
more for a settlement service than the amount paid for that service if 
the charge is an average charge. Specifically, Regulation X Sec.  
1024.8(b) provides that the average charge for a settlement service 
shall be no more than the average amount paid for a settlement

[[Page 51182]]

service by one settlement service provider to another settlement 
service provider on behalf of borrowers and sellers for a particular 
class of transactions involving federally related mortgage loans, and 
that the total amounts paid by borrowers and sellers for a settlement 
service based on the use of an average charge may not exceed the total 
amounts paid to the providers of that service for the particular class 
of transactions.
    Section 1024.8(b)(2) also provides that, the settlement service 
provider shall define the particular class of transactions for purposes 
of calculating the average charge as all transactions involving 
federally related mortgage loans for a period of time as determined by 
the settlement service provider, but not less than 30 calendar days and 
not more than 6 months, a geographic area as determined by the 
settlement service provider, and a type of loan as determined by the 
settlement service provider. Regulation X also requires a settlement 
service provider to use an average charge in the same class of 
transactions for which the charge was calculated, and if the settlement 
service provider uses the average charge for any transaction in the 
class, then the settlement service provider must use the same average 
charge in every transaction within that class for which a GFE was 
provided. Id. Regulation X prohibits the use of an average charge for 
any settlement service if the charge for the service is based on the 
loan amount or property value, such as transfer taxes, interest 
charges, reserves or escrow, or any type of insurance, including 
mortgage insurance, title insurance, or hazard insurance, and also 
requires the settlement service provider to retain all documentation 
used to calculate the average charge for a particular class of 
transactions for at least three years after any settlement for which 
that average charge was used. Id.
    Pursuant to its authority under section 105(a) of TILA and 19(a) of 
RESPA, the Bureau proposes Sec.  1026.19(f)(3)(ii), which provides that 
a creditor or settlement service provider may charge a consumer or 
seller the average charge for a settlement service if the average 
charge is no more than the average amount paid for that service by or 
on behalf of all consumers and sellers for a class of transactions, the 
creditor or settlement service provider defines the class of 
transactions based on an appropriate period of time, geographic area, 
and type of loan, the creditor or settlement service provider uses the 
same average charge for every transaction within the defined class, and 
the creditor or settlement service provider does not use an average 
charge for any type of insurance, for any charge based on the loan 
amount or property value, or if doing so is otherwise prohibited by 
law. HUD adopted average-charge pricing pursuant to its authority under 
section 19(a) of RESPA after finding that average-charge pricing would 
benefit consumers by lowering settlement costs and enabling more 
effective advance disclosure of such costs, consistent with RESPA 
sections 2(b), 4, 5, 8(c)(5), and 19(a).\148\ In addition to this 
authority, the Bureau finds that proposed Sec.  1026.19(f)(3)(ii) will 
prevent circumvention and evasion of, and will facilitate compliance 
with, TILA, consistent with section 105(a) of TILA. This proposed 
regulation will also improve consumer awareness and understanding of 
the transaction, which will be in the interest of consumers and in the 
public interest, consistent with Dodd-Frank Act section 1405(b).
---------------------------------------------------------------------------

    \148\ See 73 FR 14030, 14051-14052 (March 14, 2008). Section 
8(c)(5) of RESPA provided that: ``Nothing in this section shall be 
construed as prohibiting * * * such other payments or classes of 
payments or other transfers as are specified in regulations 
prescribed by the Secretary.'' 12 U.S.C. 2607(c)(5)(2008).
---------------------------------------------------------------------------

    Proposed comment 19(f)(3)(ii)-1 explains that average-charge 
pricing is the exception to the rule in Sec.  1026.19(f)(3)(i) that 
consumers shall not pay more than the exact amount charged by a 
settlement service provider for the performance of that service. If the 
creditor develops representative samples of specific settlement costs 
for a particular class of transactions, the creditor may charge the 
average cost for that settlement service instead of the actual cost for 
such transactions. An average-charge program may not be used in a way 
that inflates the cost for settlement services overall.
    Proposed comment 19(f)(3)(ii)-2 explains how an appropriate period 
of time, geographic area, and type of loan may be defined, and provides 
illustrative examples of issues a person may encounter when defining an 
appropriate geographic area and an appropriate type of loan. Proposed 
comment 19(f)(3)(ii)-3 provides further explanation related to the 
requirement that if a creditor chooses to use an average charge for a 
settlement service for a particular loan within a class, then the 
creditor must use that average charge for that service on all loans 
within the class. Proposed comment 19(f)(3)(ii)-3 also provides 
practical examples illustrating the uniform use requirement.
    Proposed comment 19(f)(3)(ii)-4 illustrates the requirement that 
the average charge must be calculated according to the average amount 
paid for a settlement service in a prior period, and clarifies that 
updates to the average charge may be delayed for an amount of time 
sufficient to re-calculate the average charge, provided that such 
delays are applied uniformly from one time period to the next.
    Proposed comment 19(f)(3)(ii)-5 discusses the requirement that the 
total amount of average charges paid by consumers for settlement 
services may not exceed the total amount paid for those settlement 
services overall. The Bureau has received extensive feedback from 
industry that this requirement, which currently exists under RESPA and 
Regulation X, has impeded industry adoption of average-charge pricing. 
Prohibiting industry from collecting more money than is actually paid 
to settlement service providers means that industry cannot actually 
average costs over time, and must instead operate at a loss in the long 
term if industry chooses to use average-charge pricing. The Bureau 
believes that the use of average-charge pricing promotes greater 
reliability for consumers. Therefore, the Bureau seeks to address this 
concern to facilitate the adoption of average-charge pricing. Proposed 
comment 19(f)(3)(ii)-5 addresses this issue and discusses the ways in 
which a person may comply with this requirement. A person may refund 
the excess amounts collected or may factor in the excesses when 
determining the average charge for the next period. A person may also 
comply by establishing a rolling monthly period of re-evaluation. A 
person complies by re-calculating the average amount every month, and 
will be deemed to be in compliance with Sections 4 and 8 of RESPA if 
the person uses this method, even if the person collects more for 
settlement services than the total amount paid for those settlement 
services over time.
    Proposed comment 19(f)(3)(ii)-6 explains that adjustments to the 
average charge based on prospective analysis are permitted if the 
creditor or settlement service provider develops a statistically 
accurate and reliable method for doing so. However, the Bureau is 
concerned that prospective adjustments may not be practicable in the 
context of determining average charges. Accordingly, the Bureau seeks 
comment on whether such a provision is appropriate.
    Proposed comment 19(f)(3)(ii)-7 discusses the requirement that 
average charges may not be used for insurance premiums or for items 
that vary according to the loan amount or property value, such as 
transfer taxes. Proposed comment 19(f)(3)(ii)-8

[[Page 51183]]

clarifies that an average charge may not be used where prohibited by 
any applicable State or local law. Proposed comment 19(f)(3)(ii)-9 
explains how the recordkeeping requirements in Sec.  1026.25 apply to 
the documents related to the calculation of average charge.
19(f)(4) Transactions Involving a Seller
    Neither TILA nor Regulation Z contain requirements related to the 
seller. Section 4 of RESPA provides that the integrated disclosure 
shall conspicuously and clearly itemize all charges imposed upon the 
seller in connection with the settlement. 12 U.S.C. 2603(a). Regulation 
X states that the settlement agent shall provide a completed HUD-1 to 
any seller at or before the settlement, unless the borrower waives the 
right to delivery of the HUD-1 at or before settlement, in which case 
the HUD-1 shall be mailed to the seller as soon as practicable after 
settlement. Sec.  1024.10(b) and (c). Pursuant to its authority under 
sections 105(a) of TILA, 19(a) of RESPA, Dodd-Frank Act section 
1032(a), and, for residential mortgage loans, Dodd-Frank Act section 
1405(b), the Bureau proposes Sec.  1026.19(f)(4)(i), (ii), and (iii). 
Proposed Sec.  1026.19(f)(4)(i) provides that in a closed-end consumer 
credit transaction secured by real property, other than a reverse 
mortgage subject to Sec.  1026.33, the person conducting the settlement 
shall provide the seller with the disclosures in Sec.  1026.38 that 
relate to the seller. Proposed Sec.  1026.19(f)(4)(ii) provides that 
the person conducting the settlement shall provide these disclosures no 
later than the day of consummation. If an event occurs after 
consummation that causes such disclosures to become inaccurate, and 
such inaccuracy results solely from payments to a government entity, 
the person conducting the real estate closing shall deliver revised 
disclosures to the seller no later than 30 days after consummation. 
Proposed Sec.  1026.19(f)(4)(iii) provides that the amount imposed upon 
the seller for any settlement service shall not exceed the amount 
actually received by the service provider for that service, except for 
average charges calculated pursuant to Sec.  1026.19(f)(3)(ii).
    This proposed regulation will prevent circumvention and evasion of, 
and will facilitate compliance with, TILA, consistent with section 
105(a) of TILA. The proposed regulation implements the requirements of 
RESPA section 4, pursuant to the Bureau's implementation authority 
under RESPA section 19(a). This proposed regulation will also result in 
the meaningful advance disclosure of settlement costs and the 
elimination of kickbacks, referral fees, and other practices that tend 
to increase unnecessarily the costs of certain settlement services by 
ensuring that the terms of the transaction that relate to the seller, 
which include amounts owed to the seller, are fully and accurately 
disclosed to the seller, consistent with RESPA sections 8 and 19(a). 
Receipt of the integrated disclosures in accordance with this proposed 
regulation will also ensure that the features of the transaction and 
settlement services will be more fully and accurately disclosed to the 
consumer in a manner that permits sellers to understand the costs of 
the transaction, consistent with Dodd-Frank Act section 1032(a). The 
proposed regulation, by requiring sellers to receive the integrated 
disclosure, will also improve seller's awareness and understanding of 
the seller's transaction, which involves a residential mortgage loan, 
which is in the interest of consumers and in the public interest, 
consistent with Dodd-Frank Act section 1405(b).
    Proposed comment 19(f)(4)(ii)-1 explains that, if an event occurs 
after consummation that causes such disclosures to become inaccurate 
and such inaccuracy results solely from payments to a government 
entity, the person conducting the real estate closing shall deliver 
revised disclosures to the seller no later than 30 days after 
consummation. Section 1026.19(f)(4)(i) requires disclosure of the items 
that relate to the seller's transaction. Thus, the person conducting 
the real estate closing need only provide revised disclosures if an 
item related to the seller's transaction becomes inaccurate and such 
inaccuracy results solely from payments to a government entity. The 
proposed comment also provides illustrative examples of this 
requirement.
19(f)(5) No Fee
    Although TILA does not address fees related to the preparation of 
disclosures, RESPA provides that no fee may be imposed on any person, 
as a part of settlement costs or otherwise, by a lender in connection 
with a federally related mortgage loan made by such lender for the 
preparation or delivery of the settlement statement required by section 
4 of RESPA or for statements required by TILA. 12 U.S.C. 2610. Although 
Regulation Z does not contain a similar requirement, Sec.  1024.12 of 
Regulation X implements RESPA's requirement. Pursuant to its authority 
under sections 105(a) of TILA and 19(a) of RESPA, the Bureau proposes 
Sec.  1026.19(f)(5), which provides that no fee may be imposed on any 
person, as a part of settlement costs or otherwise, by a creditor or by 
a servicer for the preparation or delivery of the disclosures required 
under Sec.  1026.19(f)(1)(i), escrow account statements required 
pursuant to section 10 of RESPA, or other statements required by TILA. 
This proposed regulation will strengthen the informed use of credit by 
ensuring that consumers are not informed that consumers must pay fees 
prohibited by law, and enhance competition by ensuring that creditors 
do not attempt to gain a competitive advantage by charging prohibited 
fees, both of which are consistent with section 105(a) of TILA. This 
proposal is also made pursuant to the Bureau's authority to implement 
section 10 of RESPA, consistent with section 19(a) of RESPA. This 
proposed regulation will also result in the meaningful advance 
disclosure of settlement costs and the elimination of kickbacks, 
referral fees, and other practices that tend to increase unnecessarily 
the costs of certain settlement services by ensuring that illegal fees 
are not included on the disclosures, consistent with section 19(a) of 
RESPA.
19(g) Special Information Booklet at Time of Application
    Section 1024.6 of Regulation X contains the provisions related to 
the Special Information Booklet, which is required by section 5 of 
RESPA. 12 U.S.C. 2604. The Bureau plans to update the booklet 
consistent with the amendments to section 5 of RESPA in section 1450 of 
the Dodd-Frank Act and to reflect the integrated disclosures, once 
those disclosures are finalized. Pursuant to its authority under TILA 
section 105(a) and RESPA section 19(a), the Bureau proposes Sec.  
1026.19(g), which is substantially similar to the existing requirements 
in Regulation X, but modified to conform to the usage associated with 
TILA. The Bureau also solicits feedback on whether the CHARM booklet, 
required under Sec.  1026.19(b)(1), should be incorporated into the 
Special Information Booklet. This proposed provision is consistent with 
TILA's purposes in that it will increase consumer awareness of the 
costs of the transaction by informing consumers that settlement costs 
can be influenced by shopping, thereby promoting the informed use of 
credit. This proposed regulation will enhance consumers' ability to 
shop for a mortgage loan, which will effect changes in the settlement 
process that will result in the elimination of kickbacks, referral 
fees, and other

[[Page 51184]]

practices that tend to increase unnecessarily the costs of certain 
settlement services, consistent with the Bureau's authority under 
section 19(a) of RESPA.
    Proposed comment 19(g)(1)-1 provides that the Bureau may, after 
publishing a notice in the Federal Register, issue a revised or 
separate special information booklet that addresses transactions 
subject to Sec.  1026.19(g). The Bureau may also choose to permit the 
forms or booklets of other Federal agencies, in which case the 
availability of the booklet or alternate materials for these 
transactions will be set forth in a notice in the Federal Register.
    Proposed comment 19(g)(1)-2 clarifies that when two or more persons 
apply together for a loan, the creditor complies with Sec.  1026.19(g) 
if the creditor provides a copy of the booklet to one of the persons 
applying.
    Proposed comment 19(g)(2)-1 explains that the special information 
booklet may be reproduced in any form, provided that no changes are 
made, except as otherwise provided under Sec.  1026.19(g). Provision of 
the special information booklet as a part of a larger document does not 
satisfy the requirements of Sec.  1026.19(g). Any color, size and 
quality of paper, type of print, and method of reproduction may be used 
so long as the booklet is clearly legible. Proposed comment 19(g)(2)-2 
clarifies that the special information booklet may be translated into 
languages other than English.
Section 1026.22 Determination of Annual Percentage Rate
22(a) Accuracy of Annual Percentage Rate
    The Bureau is proposing conforming amendments to Sec.  1026.22 to 
reflect the fact that proposed Sec.  1026.38(o)(2) sets forth finance 
charge tolerances for mortgage transactions subject to Sec.  
1026.19(f), as discussed below. The tolerances set forth in Sec.  
1026.18(d)(1) continue to apply to closed-end transactions that are not 
subject to proposed Sec.  1026.19(f). Accordingly, the Bureau proposes 
to revise Sec.  1026.22(a)(4) and (5) and comment 22(a)(4)-1 to add 
references to Sec.  1026.38(o)(2).
Section 1026.24--Advertising
24(d) Advertisement of Terms That Require Additional Disclosures
24(d)(2) Additional Terms
    Comment 24(d)(2)-2 currently provides guidance on how to state the 
terms of repayment in an advertisement, as required in Sec.  
1026.24(d)(2)(ii). The Bureau is proposing to exercise its authority 
under TILA section 105(a) to revise the comment to conform with the 
additional forms of repayment term disclosures that may apply to 
various types of mortgage transactions under this proposal. Proposed 
comment 24(d)(2)-2 clarifies that, in advertisements for closed-end 
credit secured by real property or a dwelling, the repayment terms 
disclosed in the interest rate and payment summary table or the 
projected payments table in Sec. Sec.  1026.18(s) or 1026.37(c) and 
1026.38(c), as applicable, can be provided in an advertisement pursuant 
to Sec.  1026.24(d)(2)(ii). The use of either the payment schedule 
described in Sec.  1026.18(g) or the interest rate and payments summary 
table described in Sec.  1026.18(s) to state the terms of repayment can 
be provided for transactions secured by real property or a dwelling 
under comment 24(d)(2)-2. In light of the existence of the interest 
rate and payment summary table described in Sec.  1026.18(s) and the 
addition of the projected payments table described in Sec. Sec.  
1026.37(c) and 1026.38(c) of this proposed rule, the Bureau believes 
that the format of disclosure applicable to a particular transaction is 
also the most appropriate format for advertising purposes. Comment 
24(d)(2)-2 would therefore be revised to clarify that disclosing the 
terms of repayment in the interest rate and payment summary table and 
the projected payment tables described in Sec.  1026.18(s) or 
Sec. Sec.  1026.37(c) and 1026.38(c), as applicable, satisfies the 
requirements in Sec.  1026.24(d)(2)(ii). These revisions would also 
make clear that the payment schedule described in Sec.  1026.18(g) is 
not the only permissible disclosure under Sec.  1026.24(d)(2)(ii).
Section 1026.25 Record Retention
    As discussed below, the Bureau proposes to amend Sec.  1026.25 to 
apply the recordkeeping requirements currently under Regulation X to 
the proposed integrated disclosures and to require creditors to keep 
such records in an electronic, machine readable format.
25(a) General Rule
    The Bureau proposes to amend Sec.  1026.25(a) to exempt the 
requirements of Sec. Sec.  1026.19(e) and (f). Instead, the record 
retention requirements for compliance with these sections will be 
established under a new Sec.  1026.25(c)(1).
25(c) Records Related to Certain Requirements for Mortgage Loans
25(c)(1) Records Related to Requirements for Loans Secured by Real 
Property
25(c)(1)(i) General Rule
    Neither TILA nor RESPA contain record retention requirements. 
Section 1026.25 of Regulation Z requires creditors to retain evidence 
of compliance with TILA for two years after the date disclosures are 
required to be made or action is required to be taken. Section 
1024.7(f) of Regulation X requires lenders to retain documentation of 
any reason for providing a revised GFE for no less than three years 
after settlement. Furthermore, Sec.  1024.10(e) of Regulation X 
requires lenders to retain each completed RESPA settlement statement 
and related documents for five years after settlement, unless the 
lender disposes of its interest in the mortgage and does not service 
the mortgage.
    The Bureau proposes to reconcile these provisions by generally 
requiring a creditor to retain evidence of compliance with the 
requirements of Sec.  1026.19(e) and (f) for three years. The Bureau 
recognizes that extending the record retention requirement from two 
years, as currently provided in Regulation Z, to three years may 
increase costs. However, the Bureau is unaware of any issues related to 
complying with the three year period currently required by Regulation 
X. Creditors may be able to use existing recordkeeping systems to 
maintain the integrated disclosure data at no additional cost. 
Additionally, several sections of RESPA are subject to a three year 
statute of limitations.\149\ Adopting a document retention period of 
less than three years may affect legal actions brought under RESPA. 
Thus, it may be appropriate to require creditors to maintain records 
related to compliance for three years, as opposed to the two year 
requirement currently under Regulation Z.
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    \149\ ``[A]ctions [under sections 6, 8, or 9] brought by the 
Bureau, the Secretary, the Attorney General of any State, or the 
insurance commissioner of any State may be brought within 3 years 
from the date of the occurrence of the violation.'' RESPA section 
16, 12 U.S.C. 2614.
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    Pursuant to its authority under section 105(a) of TILA and section 
19(a) of RESPA, the Bureau proposes Sec.  1026.25(c)(1)(i), which 
states that, except as provided under Sec.  1026.25(c)(1)(ii), a 
creditor shall retain evidence of compliance with the requirements of 
Sec.  1026.19(e) and (f) for three years after the later of the date of 
consummation, the date disclosures are

[[Page 51185]]

required to be made, or the date the action is required to be taken. 
The Bureau believes that this proposed modification will ensure that 
records associated with the integrated disclosures are kept long enough 
to facilitate compliance with both TILA and RESPA, which is necessary 
to both prevent circumvention of and facilitate compliance with TILA 
and RESPA. The Bureau also solicits comment on whether the three year 
period is appropriate, whether the retention requirement should be 
extended to five years to match the recordkeeping requirement in 
proposed Sec.  1026.25(c)(1)(ii), and whether a shorter time period 
would conflict with the statute of limitations under section 16 of 
RESPA.
    Proposed comment 25(c)(1)(i)-1 applies guidance currently 
applicable under Sec.  1026.25(a) to proposed Sec.  1026.25(c). The 
proposed comment clarifies that the creditor must retain evidence that 
it performed the required actions as well as made the required 
disclosures. This includes, for example, evidence that the creditor 
properly differentiated between affiliated and independent third party 
settlement service providers for determining good faith under Sec.  
1026.19(e)(3); evidence that the creditor properly documented the 
reason for revisions under Sec.  1026.19(e)(3)(iv); or evidence that 
the creditor properly calculated average cost under Sec.  
1026.19(f)(3)(ii). Proposed comment 25(c)(1)(i)-2 provides a cross-
reference to Sec.  1026.19(e)(1)(ii), which imposes responsibilities on 
mortgage brokers in some situations and may implicate Sec.  1026.25(c).
25(c)(1)(ii) Closing Disclosures
    As noted above, while Sec.  1026.25 of Regulation Z generally 
requires creditors to retain evidence of compliance with TILA for two 
years after the date disclosures are required to be made or action is 
required to be taken, Sec.  1024.10(e) of Regulation X requires lenders 
to retain each completed RESPA settlement statement and related 
documents for five years after settlement, unless the lender disposes 
of its interest in the mortgage and does not service the mortgage. If 
the lender disposes of its interest and does not service the mortgage, 
Sec.  1024.10(e) requires the lender to provide the lender's copy of 
the RESPA settlement statement to the owner or servicer of the mortgage 
as part of the transfer of the loan file. The owner or servicer to whom 
the files are transferred must retain the RESPA settlement statement 
for the remainder of the five-year period.
    Because the Closing Disclosure contains the settlement information 
that is currently provided on the RESPA settlement statement, the 
Bureau proposes to adopt the five-year requirement. This information 
serves an important purpose as both the record of all fees associated 
with the transaction and as part of the official disbursement record. 
As such, this information may be needed for more than two years after 
the transaction. For example, State and local laws related to 
transactions involving real property may depend on the information 
being available for five years. Additionally, the current five-year 
recordkeeping requirement under Regulation X has been in effect since 
1992.\150\ The Bureau is unaware of any problems caused by the five 
year requirement and does not believe the time period should be 
shortened without evidence that the rule is not operating as intended, 
is unnecessary, or otherwise harms consumers. Thus, it appears that 
requiring creditors to retain copies of the Closing Disclosure for five 
years is appropriate.
---------------------------------------------------------------------------

    \150\ 57 FR 49600, 49607 (Nov. 2, 1992).
---------------------------------------------------------------------------

    Pursuant to its authority under section 105(a) of TILA and section 
19(a) of RESPA, the Bureau proposes Sec.  1026.25(c)(1)(ii). Proposed 
Sec.  1026.25(c)(1)(ii)(A) states that the creditor shall retain each 
completed disclosure required under Sec.  1026.19(f)(1)(i) and 
(f)(4)(i), and all documents related to such disclosures, for five 
years after settlement. The Bureau believes that this proposed 
modification will ensure that records associated with the integrated 
disclosures are kept long enough to facilitate compliance with both 
TILA and RESPA, which is necessary to both prevent circumvention of and 
facilitate compliance with TILA. The proposed recordkeeping requirement 
will also enable accurate supervision, which will result in the more 
effective advance disclosure of settlement costs, consistent with 
section 19(a) of RESPA. Proposed Sec.  1026.25(c)(1)(ii)(B) provides 
that, if a creditor sells, transfers, or otherwise disposes of its 
interest in a mortgage and does not service the mortgage, the creditor 
shall provide a copy of the disclosures required under Sec.  
1026.19(f)(1)(i) or (f)(4)(i) to the owner or servicer of the mortgage 
as a part of the transfer of the loan file. Such owner or servicer 
shall retain such disclosures for the remainder of the five-year 
period. Proposed Sec.  1026.25(c)(1)(ii)(C) provides that the Bureau 
shall have the right to require provision of copies of records related 
to the disclosures required under Sec.  1026.19(f)(1)(i) or (f)(4)(i).
    The Bureau recognizes that this proposal is different from the 
current requirements under Regulation X, which does not require a 
creditor to maintain these documents if the creditor disposes of its 
interest in the mortgage loan and does not service the mortgage loan. 
However, the Bureau believes that the current requirement provides 
little practical benefit to creditors, because other provisions of 
Regulations Z and X require creditors to maintain records of compliance 
for several years, even if the creditor transfers, sells, or otherwise 
disposes of its interest in the mortgage loan. The Bureau solicits 
feedback regarding whether it is appropriate for creditors that 
transfer, sell, or otherwise dispose of their interest in the mortgage 
loan, and do not service the mortgage loan, to keep these records for 
the five-year period. The Bureau also requests feedback on the 
additional costs that would result from such a requirement.
25(c)(1)(iii) Electronic Records
    Issues Related to Adopting a Standard, Machine Readable, Electronic 
Data Format. Neither TILA nor RESPA address electronic recordkeeping. 
Regulation Z permits, but does not require, electronic recordkeeping. 
Comment 25(a)-2 provides that records can be maintained by any method 
that reproduces disclosures accurately, including computer programs. 
Regulation X also permits, but does not require, electronic records. 
See Sec.  1024.23 and HUD RESPA FAQs p.3, 4 (``GFE--
General'').
    The Bureau has sought information regarding the costs of keeping 
records in an electronic, machine readable format. ``Machine readable'' 
means a format where the individual data elements comprising the record 
can be transmitted, analyzed, and processed by a computer program, such 
as a spreadsheet or database program. Data formats for image 
reproductions (e.g., PDF) or document text, such as those used by word 
processing programs, are not machine readable for purposes of this 
proposal. Based on these discussions, including information learned 
from the Small Entity Representatives participating in the Small 
Business Review Panel process, the Bureau recognizes that requiring 
records in an electronic, machine readable format will impose new costs 
on industry. Industry would incur costs for either acquiring a system 
to create records in electronic, machine readable format, or for 
modifying their current systems to use a standard format required by 
regulation. See Small

[[Page 51186]]

Business Review Panel Report at 30. However, feedback provided to the 
Small Business Review Panel indicates that creditors currently rely on 
electronic systems for most aspects of the mortgage loan origination 
process, which include electronic record creation and storage. See id. 
Thus, any new costs caused by a machine readable recordkeeping 
requirement would be limited to the up-front costs of upgrading 
existing computer systems and additional, ongoing data storage costs.
    In contrast, the benefits of keeping records in machine readable 
format may be significant. A prescribed electronic format may reduce 
costs across the entire mortgage loan origination industry due to 
efficiency gains associated with a standardized data format. 
Information received by the Bureau suggests that creditors, mortgage 
brokers, title companies, investors, and other mortgage technology 
providers use systems with proprietary data formats. As a result, data 
must be translated between formats as it is transmitted from one point 
to another throughout the mortgage loan origination process. A standard 
electronic record format may eliminate these multiple data formats, 
thereby increasing efficiency in the origination process, reducing 
industry costs in the long term, and reducing costs to consumers. Also, 
the Bureau is aware that many firms currently face significant internal 
costs for maintaining multiple internal technological systems. A single 
data format may lower overall and long-term costs by enabling creditors 
to migrate from older data formats to a single, standard data format.
    Other benefits may be realized from a standard, electronic, machine 
readable format. A standard format may facilitate innovation in the 
financial services industry by making it easier for technology 
companies to create new programs that improve the mortgage origination 
process and lower industry costs, instead of tailoring programs to each 
firm's unique proprietary data format. A standard machine readable 
format may also facilitate industry adoption of mortgage documentation 
technology. Such developments would reduce industry's reliance on paper 
files, which would lower ongoing costs while reducing the paperwork 
burden on both industry and consumers. Furthermore, electronic, machine 
readable records may allow regulators to monitor some aspects of 
compliance remotely. Remote examinations may benefit creditors by 
easing the burden associated with devoting staff time and resources to 
on-site examinations. All of these benefits may reduce industry cost 
and burden in the long run, thereby reducing costs to consumers as 
well.
    The Bureau believes that the benefits of a standard, machine 
readable electronic data format may outweigh the costs associated with 
adopting and maintaining such a format. Thus, pursuant to its authority 
under section 105(a) of TILA, the Bureau proposes Sec.  
1026.25(c)(1)(iii), which provides that a creditor shall retain 
evidence of compliance in electronic, machine readable format. The 
Bureau believes that this proposed requirement will ensure that records 
associated with the integrated disclosures are readily available for 
examination, which is necessary to both prevent circumvention of and 
facilitate compliance with TILA. This proposed regulation may also 
facilitate compliance with TILA by easing the burden of examinations 
and ensuring that all entities subject to TILA keep records in a 
standard format. Proposed comment 25(c)(1)(iii)-1 clarifies that the 
requirements of Sec.  1026.25(c)(1)(iii) are in addition to any other 
formats that may be required by administrative agencies responsible for 
enforcing the regulation. The Bureau solicits comment on this approach, 
including the costs associated with such a requirement.
    As discussed in the Initial Regulatory Flexibility Analysis, 
section VIII.B.4.b below, the proposed electronic recordkeeping 
requirement may not be appropriate for certain classes of entities, 
such as small creditors that do not currently have such electronic 
filing systems or use vendor software. The upfront and ongoing costs of 
such a requirement on small creditors may outweigh any benefits. 
However, the Bureau does not have sufficient data to determine whether 
and which small creditors should be exempt from the requirements. 
Accordingly, pursuant to its authority under section 105(f) of TILA, 
the Bureau proposes that, as an alternative to requiring electronic 
records, that a class of entities consisting of small creditors be 
exempted based on either entity size or the number of loans originated.
    The Bureau has considered the factors in TILA section 105(f) and 
believes that an exception could be appropriate under that provision if 
the costs imposed on small entities outweigh the benefits to consumers. 
In such circumstances, an exemption would be appropriate for all 
affected borrowers who receive mortgage loans from small entities, 
regardless of their other financial arrangements and financial 
sophistication and the importance of the loan to them. Similarly, an 
exemption would be appropriate for all affected loans issued by exempt 
small entities, regardless of the amount of the loan and whether the 
loan is secured by the principal residence of the consumer. 
Furthermore, on balance, the proposed exemption would simplify the 
credit process for small entities without undermining the goal of 
consumer protection or denying important benefits to consumers. The 
Bureau recognizes that its exemption and exception authorities apply to 
a class of transactions, and proposes to apply these authorities to the 
loans covered under the proposal of the entities proposed for potential 
exemption.
    Consistent with the recommendation of the Small Business Review 
Panel, the Bureau solicits comment on whether a small business 
exemption is appropriate, whether such small business exemption should 
be based on entity size or the number of loans originated, and the 
appropriate exemption threshold in terms of institution size or the 
number of loans originated, respectively. The Bureau solicits feedback 
on whether such an exemption for depository institutions should be 
different than an exemption for non-depository institutions. The Bureau 
also solicits feedback on small business' current technology costs, and 
how such costs might be affected by an electronic recordkeeping 
requirement.
    Based on the Bureau's discussions with industry regarding machine 
readable data formats, the Bureau believes that XML may be the most 
appropriate format for electronic recordkeeping. However, the Bureau 
solicits comment on the costs and challenges associated with adopting 
an XML format. The Bureau also solicits feedback on other data formats 
that may be more appropriate than XML.
    Smart Disclosure. ``Smart disclosure'' generally refers to a 
requirement that data be kept in standard, machine readable format that 
is also available to the public. In the context of mortgage loans, any 
regulation implementing smart disclosure would require creditors to 
provide consumers with data related to the loan origination process. 
Smart disclosure can facilitate intelligent decision-making by 
consumers and encourage innovation. For example, if consumers were 
provided with Loan Estimates in electronic format, computer programs 
and applications may be developed to allow consumers to compare Loan 
Estimates between different creditors. Or, programs may be developed 
that assist consumers in assessing the ongoing costs, risks, and 
affordability of a single Loan Estimate for the individual consumer.

[[Page 51187]]

    The Bureau recognizes that smart disclosures may encourage the 
informed use of credit and promote innovation in the consumer financial 
services industry. While the Bureau supports these goals, the Bureau is 
not proposing a smart disclosure requirement at this time. The Bureau 
intends to continue monitoring the consumer financial services market 
and will revisit this issue if, in the future, the Bureau determines 
that such a requirement is appropriate.
Section 1026.28 Effect on State Laws
    TILA preempts State laws to the extent of their inconsistency with 
that statute and permits States, creditors, and other interested 
parties to request a determination by the Bureau regarding such 
inconsistency. Specifically, section 111(a)(1) states that the 
provisions of chapters 1 (General Provisions), 2 (Credit Transactions), 
and 3 (Credit Advertising and Limits on Credit Card Fees) of TILA do 
not annul, alter, or affect the laws of any State relating to the 
disclosure of information in connection with credit transactions, 
except to the extent that those laws are inconsistent with the 
provisions of TILA and then only to the extent of the inconsistency. 15 
U.S.C. 1610(a)(1). Upon its own motion or upon the request of any 
creditor, State, or other interested party that is submitted in 
accordance with procedures prescribed in regulations of the Bureau, the 
Bureau shall determine whether any such inconsistency exists. Id. If 
the Bureau determines that a State-required disclosure is inconsistent, 
creditors located in that State may not make disclosures using the 
inconsistent term or form, and shall incur no liability under the State 
law for failure to use such term or form, notwithstanding that such 
determination is subsequently amended, rescinded, or determined by 
judicial or other authority to be invalid for any reason. Id. Section 
111(b) generally provides that TILA does not otherwise annul, alter, or 
effect in any manner the meaning, scope, or applicability of the laws 
of any State, including, but not limited to, laws relating to the 
types, amounts, or rates of charges, or any elements of charges, 
permissible under such laws in connection with the extension or use of 
credit, and neither does TILA extend the applicability of those laws to 
any class of persons or transactions to which they would not otherwise 
apply. 15 U.S.C. 1610(b).
    Regulation Z Sec.  1026.28 implements TILA section 111. Section 
1026.28(a) provides that State law requirements that are inconsistent 
with the requirements contained in chapters 1 through 3 of TILA and the 
implementing provisions of Regulation Z are preempted to the extent of 
the inconsistency.\151\ Under Sec.  1026.28(a), a State law is 
inconsistent with a TILA provision if it requires a creditor to make 
disclosures or take actions that contradict the requirements of TILA. A 
State law contradicts a requirement of TILA if it requires the use of 
the same term to represent a different amount or a different meaning 
than TILA, or if it requires the use of a term different from that 
required in TILA to describe the same item. A creditor, State, or other 
interested party may request the Bureau to determine whether a State 
law requirement is inconsistent, and if the Bureau makes such a 
determination a creditor may not make disclosures using the 
inconsistent term or form.\152\ The specific procedures for requesting 
a State law preemption determination are set forth in Sec.  1026.28(c) 
and appendix A to part 1026. Appendix A states, among other things, 
that the Bureau reserves the right to reverse a determination for any 
reason bearing on the coverage or effect of State or Federal law.
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    \151\ There are different rules regarding preemption of State 
laws relating to the disclosure of credit information in any credit 
or charge card application or solicitation that is subject to the 
requirements of section 127 of TILA and the correction of billing 
errors, but those rules are outside the scope of this rulemaking. 
See Sec.  1026.28(a)(2), (d).
    \152\ TILA section 111(a)(2) and Sec.  1026.28(b) generally 
permit a creditor, State, or other interested party to request that 
the Bureau determine whether a State-required disclosure is 
substantially the same in meaning as a TILA disclosure, and if the 
Bureau makes such a determination, creditors in the State can 
provide the State-required disclosure in lieu of the TILA 
disclosure. Comment 28(b)-1 clarifies that under Sec.  1026.28, a 
State disclosure can be substituted for a Federal disclosure only 
after a determination of substantial similarity. State exemptions 
are addressed in more detail under Sec.  1026.29 and associated 
commentary.
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    Current Regulation Z commentary provides further guidance on the 
TILA preemption rules. Comment 28(a)-2 includes examples of State laws 
that would be preempted (e.g., a State law requiring use of the term 
``finance charge'' but defining the term to include fees that TILA 
excludes, or to exclude fees that TILA includes). Comment 28(a)-3 
explains that State law requirements calling for disclosure of items 
not covered by TILA or that require more detailed disclosures generally 
do not contradict the TILA requirements, provides examples of State 
laws that would not be preempted, and gives guidance as to whether a 
State law requiring itemization of the amount financed would be 
preempted. Comment 28(a)-4 explains that a creditor, prior to a 
preemption determination, may either (1) give the State disclosures or 
(2) apply the preemption standards to a State law, conclude that it is 
inconsistent, and choose not to give the State-required disclosures 
(but that no immunity is given under Sec.  1026.28(a) for violations of 
State law if the creditor chooses not to make State disclosures and the 
Bureau later determines that the State law is not preempted). The 
comment also states that the Bureau will give sufficient time to 
creditors to revise their forms and procedures as necessary to conform 
with its preemption determinations. Comments 28(a)-8 through -15 
discuss prior determinations made by the Federal Reserve Board prior to 
July 21, 2011, and recognized by the Bureau unless and until the Bureau 
makes and publishes any contrary determinations, to preempt certain 
State laws. For example, comment 28(a)-15 notes that, in Wisconsin, 
disclosure of the annual percentage rate under the particular State law 
referenced in the comment is preempted, because while the statute 
refers to ``annual percentage rate,'' it requires disclosure of a 
different amount than under TILA.
    Section 18 of RESPA and Regulation X Sec.  1024.13 provide that 
State laws that are inconsistent with RESPA or Regulation X are 
preempted to the extent of the inconsistency. 12 U.S.C. 2616; 12 CFR 
1024.13. RESPA and Regulation X do not annul, alter, affect, or exempt 
any person subject to their provisions from complying with the laws of 
any State with respect to settlement practices, except to the extent of 
the inconsistency. Id. Upon request by any person, the Bureau is 
authorized to determine whether such inconsistencies exist, and the 
Bureau may not determine that any State law is inconsistent with any 
provision of RESPA if the Bureau determines that such law or regulation 
gives greater protection to the consumer. 12 CFR 1024.13(b). In making 
this determination, the Bureau must consult with ``appropriate Federal 
agencies.'' Id.; see also 12 U.S.C. 2616. Section 1024.13(c) sets forth 
the process by which the Bureau makes a preemption determination. 
Unlike Regulation Z, Regulation X does not list any State laws 
preempted by RESPA, and the Bureau is not aware of any.
    The preemption provisions in TILA and RESPA and their implementing 
regulations thus contain similar language as far as scope of the 
preemption (i.e., in both cases State laws generally are preempted only 
``to the extent of the inconsistency''), but include different 
authority and

[[Page 51188]]

procedures for determining whether State laws are preempted. For 
example, unlike Regulation X, Sec.  1026.28 provides a regulatory 
standard for determining ``inconsistency'' (i.e., disclosures or 
actions that contradict Federal law requirements) along with detailed 
commentary. RESPA, but not TILA, requires the preemption determination 
to be made by the Bureau in consultation with other appropriate Federal 
agencies. Moreover, while the Regulation Z provision addresses the 
relationship between Federal and State laws governing credit 
transactions, Sec.  1024.13 refers to laws regarding settlement 
practices.
    As noted previously, section 1032(f) of the Dodd-Frank Act requires 
the Bureau to propose rules and forms that combine the disclosures 
required under TILA and sections 4 and 5 of RESPA into a single, 
integrated disclosure for mortgage loan transactions covered by those 
laws. In addition, the Dodd-Frank Act amended sections 105(b) of TILA 
and 4(a) of RESPA, respectively, to require the integration of those 
disclosure requirements. However, the Dodd-Frank Act did not specify 
whether the TILA or the RESPA State law preemption provision applies to 
the provision of the integrated mortgage disclosures. In order to meet 
the Dodd-Frank Act's mandate, the proposed rule must reconcile the 
differences regarding these State law preemption regimes.
    Furthermore, there are certain transactions subject to TILA, but 
not RESPA, for which the integrated mortgage disclosures must be 
delivered under the proposed rule. Pursuant to Sec.  1026.19(e) and 
(f), the proposed rule covers all closed-end consumer credit 
transactions secured by real property, other than reverse mortgages. 
Some of these transactions are not subject to RESPA (i.e., if they are 
not a federally related mortgage loan as defined in Regulation X Sec.  
1024.2), but consumers in such transactions will receive integrated 
mortgage disclosures containing certain content mandated by RESPA. This 
may create confusion as to which preemption provision controls were a 
State law preemption question to arise with respect to the RESPA-
mandated content on the integrated mortgage disclosures.
    Accordingly, Dodd-Frank Act section 1032(f), TILA section 105(b), 
and RESPA section 19(a) provide the Bureau with authority to reconcile 
the provisions of TILA and RESPA to carry out the integrated disclosure 
requirement. Based on such authority and the Bureau's authority under 
TILA section 105(a) and RESPA section 19(a) to make rules consistent 
with the purposes of those statutes, the Bureau is proposing to require 
that the State law preemption provisions of Regulation Z, Sec.  
1026.28, apply to any State law preemption question arising with 
respect to the requirements of sections 4 and 5 of RESPA (other than 
the RESPA section 5(c) requirements regarding provision of a list of 
certified homeownership counselors), and Sec. Sec.  1026.19(e) and (f), 
1026.37, and 1026.38. By applying the Regulation Z State law preemption 
provision to any State law preemption question arising with respect to 
the requirements of Sec. Sec.  1026.19(e) and (f), 1026.37, and 
1026.38, this requirement encompasses all closed-end consumer credit 
transactions secured by real property that are covered by the proposed 
rule, regardless of whether they are independently subject to RESPA. 
However, Sec.  1024.13 applies to State law preemption questions 
arising with respect to other aspects of RESPA and Regulation X, 
including the RESPA section 5(c) requirements regarding provision of a 
list of certified homeownership counselors.
    To effectuate this change, the Bureau is proposing two 
modifications to Sec.  1026.28 and its associated commentary. First, 
the proposed rule modifies Sec.  1026.28(a) to provide that a 
determination of whether a State law is inconsistent with the 
requirements of sections 4 and 5 of RESPA (other than the RESPA section 
5(c) requirements regarding provision of a list of certified 
homeownership counselors) and proposed Sec. Sec.  1026.19(e) and (f), 
1026.37, and 1026.38 shall be made in accordance with Sec.  1026.28 and 
not Regulation X Sec.  1024.13. Second, the proposed rule adds text to 
comment 28(a)-1 providing that, to the extent applicable to a 
transaction subject to Sec.  1026.19(e) and (f), any reference to 
``creditor'' in Sec.  1026.28 includes a creditor, a mortgage broker, 
or a closing agent, as applicable. This change coincides with the 
alternative proposed Sec.  1026.19(f)(1)(v), which permits the closing 
agent to deliver the Closing Disclosure in place of the creditor. If 
the alternative permitting the closing agent to deliver the Closing 
Disclosure is not adopted, the closing agent reference in the proposed 
edit to comment 28(a)-1 will not be adopted.
    The Bureau notes that proposed Sec.  1026.28 and associated 
commentary do not incorporate the language in RESPA section 18 and 
Regulation X Sec.  1024.13(b) providing that the Bureau may not 
determine that any State law is inconsistent with any RESPA provision 
if the Bureau determines that such law or regulation gives greater 
protection to the consumer. However, the Bureau believes that proposed 
Sec.  1026.28 is consistent with RESPA section 18. Specifically, a 
State disclosure is likely to confuse consumers if it uses the same 
term to represent a different amount or a different meaning than, or if 
it requires the use of a different term to describe the same item as, 
the integrated mortgage disclosures developed in this rulemaking 
through extensive consumer testing. Accordingly, for purposes of this 
rulemaking, the Bureau believes that such State disclosures generally 
do not provide greater protection for consumers.
    Nevertheless, the Bureau intends to take a cautious case-by-case 
approach to evaluating inconsistency under RESPA section 18. The Bureau 
also intends to consult with other Federal agencies, as appropriate, 
within the scope of RESPA concerning any evaluations of inconsistency 
under RESPA section 18. Furthermore, the Bureau emphasizes that nothing 
in this proposed rule is intended to preempt State laws that offer 
greater substantive consumer protections than those provided under 
sections 4 and 5 of RESPA \153\ and Sec. Sec.  1026.19(e) and (f), 
1026.37, and 1026.38 (e.g., a State law imposing stricter limits on 
closing cost increases or requiring disclosures of the final closing 
costs seven days before consummation). A more protective State law 
would not be inconsistent with such RESPA and Regulation Z provisions, 
and therefore would not be preempted by Sec.  1026.28, because a 
creditor's compliance with the more protective State law would also 
satisfy the requirements of such RESPA and Regulation Z provisions.
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    \153\ As discussed above, proposed revised Sec.  1026.28 and 
associated commentary do not govern State law preemption questions 
arising under the RESPA section 5(c) requirements for provision of a 
list of certified homeownership counselors.
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    The Bureau believes that the proposed revisions to the regulatory 
text and commentary to Sec.  1026.28 effectively specify whether the 
Regulation Z or RESPA State law preemption provision applies to any 
State law preemption question arising with respect to the requirements 
of sections 4 and 5 of RESPA (other than the RESPA section 5(c) 
requirements regarding provision of a list of certified homeownership 
counselors) and proposed Sec. Sec.  1026.19(e) and (f), 1026.37, and 
1026.38.
Section 1026.29 State Exemptions
    TILA has several provisions that permit the Bureau to grant State 
exemptions from certain TILA disclosure provisions. Section 111(a)(2) 
allows the Bureau, upon its own motion

[[Page 51189]]

or upon the request of any creditor, State, or other interested party 
that is submitted in accordance with procedures prescribed in 
regulations of the Bureau, to determine whether any disclosure required 
under any State law is substantially the same in meaning as a 
disclosure required under TILA. 15 U.S.C. 1610(a)(2). If the Bureau 
makes such a determination, TILA section 111(a)(2) provides that 
creditors located in that State may make such disclosure in compliance 
with such State law in lieu of the TILA disclosure, except that (1) the 
annual percentage rate and finance charge must be disclosed as required 
by section 122 of TILA, and (2) State-required disclosures may not be 
made in lieu of the high-cost mortgage disclosures under section 129 of 
TILA. Section 123 of TILA allows the Bureau by regulation to exempt any 
class of credit transactions within any State from the requirements of 
chapter 2 of TILA (Credit transactions) if the Bureau determines that 
the law of the State subjects the class of transactions to requirements 
substantially similar to those imposed under chapter 2 of TILA, and 
that there is adequate provision for enforcement.\154\ 15 U.S.C. 1633.
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    \154\ Section 171(b) of TILA also addresses State exemptions and 
contains nearly identical language to section 123, but section 
171(b) applies with respect to TILA chapter 4 (credit billing), 
which is not affected by this rulemaking. 15 U.S.C. 1661j(b).
---------------------------------------------------------------------------

    Regulation Z Sec.  1026.29 and appendix B to part 1026 implement 
the TILA State exemption provisions.\155\ Pursuant to Sec.  1026.29(a), 
a State may apply to the Bureau to exempt a class of transactions 
within the State from the requirements of chapter 2 (Credit 
transactions) or chapter 4 (Credit billing) of TILA and the 
corresponding provisions of Regulation Z. The Bureau shall grant an 
exemption if it determines that (1) the State law is substantially 
similar to the Federal law or, in the case of chapter 4 of TILA, 
affords the consumer greater protection than the Federal law, and (2) 
there is adequate provision for enforcement. Comment 29(a)-2 clarifies 
that State law is ``substantially similar'' for purposes of Sec.  
1026.29(a) if the State statutory or regulatory provisions and State 
interpretations of those provisions are generally the same as TILA and 
Regulation Z. Comment 29(a)-3 clarifies that, generally, there is 
adequate provision for enforcement if appropriate State officials are 
authorized to enforce the State law through procedures and sanctions 
comparable to those available to Federal enforcement agencies. Comment 
29(a)-4 states that the Bureau recognizes certain TILA exemptions 
granted by the Federal Reserve Board to Maine, Connecticut, 
Massachusetts, Wyoming, and Oklahoma prior to July 21, 2011, until and 
unless the Bureau makes and publishes any contrary determination. 
Comment 29(a)-4.i through -4.v currently provides, in relevant part, 
that credit transactions in these five States that are subject to the 
State consumer credit codes or truth in lending acts enumerated in such 
comment are exempt from the requirements of chapter 2 of TILA, which 
sets forth, among other provisions, the disclosure requirements for 
closed-end mortgages. The specific procedures for requesting a State 
exemption are set forth in Sec.  1026.29(c) and appendix B to part 
1026. Appendix B states, among other things, that the Bureau reserves 
the right to revoke an exemption if at any time it determines that the 
standards required for an exemption are not met.
---------------------------------------------------------------------------

    \155\ As noted earlier, Sec.  1026.28(b) generally permits a 
creditor, State, or other interested party to request that the 
Bureau determine whether a State-required disclosure is 
substantially the same in meaning as a TILA disclosure, and if the 
Bureau makes such a determination, creditors in the State can 
provide the State-required disclosure in lieu of the TILA 
disclosure. Comment 28(b)-1 clarifies that under Sec.  1026.28, a 
State disclosure can be substituted for a Federal disclosure only 
after a determination of substantial similarity.
---------------------------------------------------------------------------

    Unlike TILA, RESPA does not contain a State exemption provision for 
credit transactions subject to RESPA. Rather, as discussed above with 
respect to Sec.  1026.28, section 18 of RESPA and Regulation X Sec.  
1024.13 provide that State laws that are inconsistent with RESPA or 
Regulation X are preempted to the extent of the inconsistency. 12 
U.S.C. 2616; 12 CFR 1024.13.
    As noted above, sections 1032(f), 1098, and 1100A of the Dodd-Frank 
Act require the Bureau to propose for public comment, rules and forms 
that combine the disclosures required under TILA and sections 4 and 5 
of RESPA into a single, integrated disclosure for mortgage loan 
transactions covered by those laws. However, the Dodd-Frank Act did not 
address a number of inconsistencies between TILA and RESPA that affect 
the provision of the integrated mortgage disclosures, including 
inconsistent provisions regarding the application of State law. In 
order to meet the Dodd-Frank Act's mandate, the proposed rule must 
reconcile the State exemption provisions.
    Accordingly, pursuant to its authority under Dodd-Frank Act section 
1032(f), TILA section 105(b), and RESPA section 19(a) as well as its 
authority under TILA section 105(a) and RESPA section 19(a) to make 
rules consistent with the purposes of those statutes, the Bureau is 
proposing to require that the TILA State exemption provision apply to 
transactions subject to proposed Sec.  1026.19(e) and (f) (i.e., all 
closed-end consumer credit transactions secured by real property, other 
than a reverse mortgage). By applying the TILA State exemption 
provision to transactions subject to Sec.  1026.19(e) and (f), rather 
than the RESPA State preemption provision (which is silent as to the 
granting of State exemptions under RESPA), this requirement would cover 
all closed-end consumer credit transactions secured by real property 
that are covered by the proposed rule, including those subject to 
RESPA. The Bureau believes this is consistent with the intent of TILA's 
State exemption provision and the integrated disclosure mandate in 
Dodd-Frank Act section 1032(f), TILA section 105(b), and RESPA section 
19(a) because it allows States to maintain their existing exemptions so 
long as consumers receive disclosures and protections that are 
substantially similar to those in the proposed rule. Furthermore, using 
the TILA State law exemption provision for transactions subject to 
Sec.  1026.19(e) and (f) will facilitate compliance with the disclosure 
requirements of TILA and RESPA and promote the informed use of credit 
and more effective advance notice of settlement costs since creditors, 
consistent with TILA section 105(a) and RESPA section 19(a), by 
applying a consistent standard to those transactions.
    To effectuate this change, the Bureau is proposing two substantive 
modifications to the commentary to Sec.  1026.29, in addition to 
relabeling some of the section numbering and lettering. First, proposed 
revised comment 29(a)-2 modifies the guidance regarding the 
``substantially similar'' standard set forth in Sec.  1026.29(a)(1) 
(i.e., one of the two preconditions to the granting of an exemption). 
Proposed revised comment 29(a)-2 clarifies that, in order for 
transactions that would otherwise be subject to the integrated 
disclosures required by Sec.  1026.19(e) and (f) to be exempt from 
those disclosure requirements, the State statutory or regulatory 
provisions and State interpretations of those provisions must require 
disclosures that are generally the same as those prescribed by Sec.  
1026.19(e) and (f), in the forms prescribed by Sec. Sec.  1026.37 and 
1026.38. This means that, in order for an existing State exemption to 
be maintained, the State's law must require disclosures that are 
generally the same as the integrated disclosures, including the RESPA 
content.
    Second, proposed revised comment 29(a)-4 states that, although 
RESPA and Regulation X do not provide procedures

[[Page 51190]]

for State exemptions, for transactions subject to Sec.  1026.19(e) and 
(f), compliance with the requirements of Sec. Sec.  1026.19(e) and (f), 
1026.37, and 1026.38 satisfies the requirements of sections 4 and 5 of 
RESPA (other than the RESPA section 5(c) requirements regarding 
provision of a list of certified homeownership counselors). 
Furthermore, the proposed revised comment states that if the 
transaction is subject to a previously-granted State exemption, then 
compliance with the requirements of any State laws and regulations 
incorporating the requirements of Sec. Sec.  1026.19(e) and (f), 
1026.37, and 1026.38 likewise satisfies the requirements of sections 4 
and 5 of RESPA (other than the RESPA section 5(c) requirements 
regarding provision of a list of certified homeownership counselors). 
Thus, in Maine, Connecticut, Massachusetts, Oklahoma, and Wyoming, 
creditors, mortgage brokers, and settlement agents, as applicable, may 
satisfy sections 4 and 5 of RESPA (other than the RESPA section 5(c) 
requirements regarding provision of a list of certified homeownership 
counselors) through compliance with State law so long as the 
``substantially similar'' State statutory and regulatory provisions 
(i.e., the State consumer codes or truth in lending acts enumerated in 
comment 29(a)-4.1 through -4.v, as applicable) expressly mandate 
delivery of the integrated mortgage disclosures required by the Dodd-
Frank Act and implemented by the proposed rule.
    The Bureau believes that the proposed revisions to the commentary 
to Sec.  1026.29 effectively reconcile the conflicting TILA and RESPA 
provisions by clarifying the standards for the Bureau's granting of 
exemptions from certain relevant TILA and RESPA provisions going 
forward. The proposed revisions also clarify how compliance with 
sections 4 and 5 of RESPA (other than the RESPA section 5(c) 
requirements regarding provision of a list of certified homeownership 
counselors) may be accomplished with respect to transactions subject to 
the previously-granted TILA exemptions in light of the Dodd-Frank Act's 
mandate to integrate the mortgage disclosures under TILA and sections 4 
and 5 of RESPA. Finally, the proposed revisions do not change the 
existing language in comment 29(a)-4 and appendix B to part 1026 
reserving the Bureau's right to make and publish any contrary 
determination regarding State exemptions previously granted by the 
Federal Reserve Board and, more generally, to revoke State exemptions 
if the standards for granting them are no longer met.
    The Bureau understands these proposed changes will likely require 
some of the five States previously granted State exemptions under 12 
CFR 226.29, the predecessor to Sec.  1026.29, to change their laws and/
or regulations, which may be a lengthy process.\156\ This is because to 
the extent the ``substantially similar'' State laws and regulations 
underlying the TILA State exemptions do not currently require the 
integrated disclosures mandated by the Dodd-Frank Act (specifically, 
the portions mandated by RESPA), there is a gap in these States' 
current statutory and regulatory regimes that must be filled in order 
to maintain the State exemptions. As such, the Bureau hereby solicits 
comment on the amount of time that will be needed for these States to 
change their laws and/or regulations.
---------------------------------------------------------------------------

    \156\ While these proposed changes may require some of these 
five States to change their laws and/or regulations, others 
incorporate TILA and Regulation Z into their State laws and/or 
regulations by reference. Therefore, the Bureau anticipates that 
these other States should not have to take any action to maintain 
their existing exemptions directly as a result of this proposed 
rule.
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Section 1026.37 Content of Disclosures for Certain Mortgage 
Transactions (Loan Estimate)
    Proposed Sec.  1026.37 sets forth the required content of the 
integrated Loan Estimate disclosures, required by proposed Sec.  
1026.19(e) to be provided to a consumer within three business days of 
the creditor's receipt of the consumer's application.
    As discussed above, the Loan Estimate integrates the disclosures 
currently provided in the RESPA GFE and the early TILA disclosure. In 
addition, the Loan Estimate integrates several disclosures that would 
otherwise be provided separately under various Federal laws. The Bureau 
believes the three-page Loan Estimate integrates at least seven pages 
of disclosures. Specifically, the Loan Estimate incorporates: (i) three 
pages of the RESPA GFE; (ii) two pages typically used for the early 
TILA disclosure; (iii) one page typically used for the appraisal 
notification provided under ECOA section 701(e); and (iv) one page 
typically used for the servicing disclosure provided under RESPA 
section 6. In addition, the Loan Estimate incorporates the disclosure 
of: (i) The total interest percentage under TILA section 128(a)(19), 
which was added by section 1419 of the Dodd-Frank Act; (ii) the 
aggregate amount of loan charges and closing costs the consumer must 
pay at consummation under TILA section 128(a)(17), which was added by 
section 1419 of the Dodd-Frank Act; (iii) for refinance transactions, 
the anti-deficiency protection notice under TILA section 129C(g)(3), 
which was added by section 1414(c) of the Dodd-Frank Act; and (iv) the 
homeowner's insurance disclosure in TILA section 106(c) and Sec.  
1026.4(d)(2)(i), which is required to exclude homeowner's insurance 
premiums from the finance charge. In absence of the Bureau's 
integration of the early TILA disclosure and the RESPA GFE, some these 
new disclosures would have been added to the early TILA disclosure, 
which potentially could have increased that disclosure's typical two 
pages to three pages.
    Proposed Sec.  1026.37 provides that the information set forth in 
Sec.  1026.37(a) through (n) shall be disclosed ``as applicable.'' The 
Bureau is proposing a new comment 37-1 to clarify that a disclosure 
that is not applicable to a transaction generally may be eliminated 
entirely or may be included but marked ``not applicable'' or ``N/A.''
    As discussed below, proposed Sec.  1026.37(o) provides rules for 
the form of the disclosures required by Sec.  1026.37(a) through (n). 
Proposed comment 37-2 directs creditors to Sec.  1026.37(o) and its 
commentary for guidance on format and permissible modifications to the 
form of the disclosures.
37(a) General Information
    The Bureau proposes Sec.  1026.37(a), which combines and modifies 
disclosures currently provided under Regulations X and Z and adds 
additional disclosures in the Loan Estimate for transactions subject to 
proposed Sec.  1026.19(e). For the reasons discussed below and 
consistent with TILA section 105(a), RESPA section 19(a), and the 
purposes of those statutes, proposed Sec.  1026.37(a) will promote the 
informed use of credit and more effective advance disclosure of 
settlement costs. In addition, proposed Sec.  1026.37(a) will enable 
consumers to better understand the costs, benefits, and risks 
associated with mortgage transactions, consistent with Dodd-Frank Act 
section 1032(a). Furthermore, proposed Sec.  1026.37(a) will improve 
consumer awareness and understanding of transactions involving 
residential mortgage loans and is therefore in the interest of 
consumers and the public, consistent with Dodd-Frank Act section 
1405(b).

[[Page 51191]]

37(a)(1) Form Title
    Although the Dodd-Frank Act requires the Bureau to combine the TILA 
and RESPA mortgage disclosures that are currently provided to consumers 
within three business days after application, the Act does not 
prescribe a title for the integrated form. Under Sec.  1024.2(b) of 
Regulation X, the form providing consumers with the RESPA good faith 
estimate of settlement charges they are likely to incur is called the 
``Good Faith Estimate'' or ``GFE.'' Regulation Z does not prescribe a 
name for the TILA good faith estimate required by Sec.  1026.19(a)(1), 
although comment 17(a)(1)-5.ix permits the creditor to provide ``[a] 
brief caption identifying the disclosures'' and provides as examples of 
acceptable titles, ``Federal Truth in Lending Disclosures'' and ``Real 
Estate Loan Disclosures.''
    Proposed Sec.  1026.37(a)(1) requires the creditor to use the term 
``Loan Estimate'' as the title of the integrated disclosures creditors 
provide pursuant to proposed Sec.  1026.19(e). The Bureau believes the 
adoption of a standardized form name may eliminate confusion for 
consumers seeking to compare estimates for different loans and thereby 
promote the informed use of credit and more effective advance notice of 
settlement costs, consistent with TILA section 105(a) and RESPA section 
19(a), and will enable consumers to better understand the costs, 
benefits, and risks associated with mortgage transactions, consistent 
with Dodd-Frank Act section 1032(a). In addition, the use of standard 
terminology for the integrated disclosures will facilitate compliance 
for industry, which is a purpose of this rulemaking under Dodd-Frank 
Act sections 1098 and 1100A.
37(a)(2) Form Purpose
    Proposed Sec.  1026.37(a)(2) requires the creditor to include a 
statement regarding one of the primary uses of the Loan Estimate for 
consumers, which is to compare with the Closing Disclosure to verify 
the loan terms and costs. Specifically, proposed Sec.  1026.37(a)(2) 
requires the creditor to provide the following statement at the top of 
all Loan Estimates, ``Save this Loan Estimate to compare with your 
Closing Disclosure.'' The proposed language may benefit consumers and 
promote the informed use of credit by encouraging consumers to use the 
Loan Estimate as a tool to help them readily identify any changes to 
the loan transaction or costs that may have occurred between issuance 
of the initial Loan Estimate and the Closing Disclosure.
    Requiring creditors to disclose the purpose for the Loan Estimate 
and related disclosures is not a new requirement. Appendix C of 
Regulation X currently requires specific language regarding the purpose 
of the GFE.\157\ And while the Bureau's proposed language differs from 
that prescribed by HUD, the Bureau believes that the disclosure in 
proposed Sec.  1026.37(a)(2) accomplishes the same goal in a clearer 
and more succinct manner. Accordingly, this disclosure promotes the 
informed use of credit and more effective advance notice of settlement 
costs, consistent with TILA section 105(a) and RESPA section 19(a), and 
will enable consumers to better understand the costs, benefits, and 
risks associated with mortgage transactions, consistent with Dodd-Frank 
Act section 1032(a).
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    \157\ Appendix C to Regulation X requires the following 
statement on the GFE under the heading ``Purpose'': ``This GFE gives 
you an estimate of your settlement charges and loan terms if you are 
approved for this loan. For more information, see HUD's Special 
Information Booklet on settlement charges, your Truth-in-Lending 
Disclosures, and other consumer information at www.hud.gov/respa. If 
you decide you would like to proceed with this loan, contact us.''
---------------------------------------------------------------------------

37(a)(3) Creditor
    TILA section 128(a)(1) requires disclosure of the ``identity of the 
creditor required to make [the] disclosure.'' 15 U.S.C. 1638(a)(1). 
Regulation Z Sec.  1026.18(a) implements TILA section 128(a)(1) and 
requires for each transaction the identity of the creditor making the 
disclosure. HUD imposed a similar requirement in appendix C to 
Regulation X, requiring the name and contact information for the ``loan 
originator.''
    Pursuant to TILA section 105(a), RESPA section 19(a), and Dodd-
Frank Act section 1032(a), proposed Sec.  1026.37(a)(3) mirrors Sec.  
1026.18(a) and requires the name of the creditor making the disclosure. 
By allowing the consumer to identify the name of the creditor providing 
the Loan Estimate, this disclosure will promote the informed use of 
credit and more effective advance notice of settlement costs and will 
enable consumers to better understand the costs, benefits, and risks 
associated with mortgage transactions.
    Proposed comment 1026.37(a)(3)-1 cross-references Sec.  1026.17(d) 
and comment 17(d)-1 and clarifies that, in transactions with multiple 
creditors, only the creditor making the disclosure must be identified. 
Proposed comment 37(a)(3)-2 states that, in transactions where the loan 
is originated by a mortgage broker, the name of the creditor, if known, 
must still be provided even if the mortgage broker provides the 
disclosure to the consumer.
37(a)(4) Date Issued
    Appendix C to Regulation X requires creditors to provide the date 
of the GFE. Proposed Sec.  1026.37(a)(4) mirrors this requirement by 
mandating disclosure of the date the Loan Estimate is mailed or 
delivered to the consumer. Proposed comment 1026.37(a)-1 clarifies that 
the ``date issued'' is the date the creditor delivers the Loan Estimate 
to the consumer and is not affected by the creditor's method of 
delivery.
    The Bureau is proposing this requirement pursuant to its authority 
under TILA section 105(a) and RESPA section 19(a) because disclosure of 
the date the Loan Estimate is issued will promote the informed use of 
credit and more effective advance disclosure of settlement costs, which 
are purposes of TILA and RESPA respectively, by enabling consumers to 
compare the Loan Estimate with any revised Loan Estimates that may be 
issued. In addition, this comparison will enable consumers to identify 
changes in loan terms and costs and thereby understand the costs, 
benefits, and risks associated with the mortgage transaction, 
consistent with Dodd-Frank Act section 1032(a).
37(a)(5) Applicants
    Appendix C to Regulation X requires disclosure of the name of the 
applicants for the mortgage loan transaction. Similarly, pursuant to 
TILA section 105(a), RESPA section 19(a), and Dodd-Frank Act section 
1032(a), proposed Sec.  1026.37(a)(5) requires creditors to disclose 
the name of the applicants for the loan transaction. By enabling 
consumers to confirm that the Loan Estimate is intended for them, this 
disclosure will promote the informed use of credit and more effective 
advance notice of settlement costs and will enable consumers to better 
understand the costs, benefits, and risks associated with mortgage 
transactions. Proposed comment 37(a)(5)-1 clarifies that the names of 
all applicants for the mortgage loan must be disclosed on the form and 
that if the form cannot accommodate the names of all the applicants, 
the creditor may attach to the back of the form a separate page listing 
the remaining applicants.
37(a)(6) Property
    Appendix C to Regulation X requires at the top of the GFE the 
``address or location of the property'' for which the financing is 
sought. The Bureau proposes to use its authority in TILA

[[Page 51192]]

section 105(a), RESPA section 19(a), and section 1032(a) of the Dodd-
Frank Act to impose a similar requirement for the Loan Estimate 
required by proposed Sec.  1026.19(e). The Bureau believes that, by 
providing the consumer with basic information about the property that 
is the subject of the loan transaction, this disclosure will promote 
the informed use of credit and more effective advance notice of 
settlement costs and will enable consumers to better understand the 
costs, benefits, and risks associated with mortgage transactions.
    Accordingly, proposed Sec.  1026.37(a)(6) requires the creditor to 
disclose the street address or location of the property that secures 
the transaction that is the subject of the Loan Estimate. Proposed 
comment 37(a)(6)-1 instructs creditors to provide a legal description 
or other locator for the property in cases where there is no street 
address. The proposed comment also clarifies that a zip code would be 
required in all instances.
37(a)(7) Sale Price
    Proposed Sec.  1026.37(a)(7)(i) requires disclosure of the contract 
sale price for the property identified in proposed Sec.  1026.37(a)(6). 
For transactions that do not involve a seller, proposed Sec.  
1026.37(a)(7)(ii) requires disclosure of the estimated value for the 
property identified in proposed Sec.  1026.37(a)(6). Proposed comment 
37(a)(7)-1 provides guidance regarding the requirement to provide the 
estimated value of the property, if a creditor has performed its own 
estimate or obtained an appraisal or valuation of the property.
    The disclosure of the contract sale price and estimated property 
value, as applicable, is a new requirement, which the Bureau proposes 
pursuant to its authority under TILA section 105(a), RESPA section 
19(a), and section 1032(a) of the Dodd-Frank Act for transactions 
subject to proposed Sec.  1026.19(e). The Bureau believes that 
including the contract sales price or estimated property value in the 
Loan Estimate will help promote the informed use of credit and more 
effective advance notice of settlement costs and will enable consumers 
to better understand the costs, benefits, and risks associated with 
mortgage transactions by ensuring that consumers have in a single 
location all the information needed to decide whether to enter into a 
legal obligation.
37(a)(8) Loan Term
    Existing appendix C to Regulation X requires the loan originator to 
disclose the loan term as part of the ``Summary of Your Loan'' 
disclosure. Regulation Z does not have a similar requirement, although 
TILA provides for such a disclosure.\158\ Proposed Sec.  1026.37(a)(8) 
essentially mirrors appendix C to Regulation X and requires the 
creditor to disclose the term to maturity of the credit. The prototype 
mortgage disclosures used at the Bureau's consumer testing displayed 
this in terms of years, and consumers were able to understand and 
evaluate easily the term to maturity. The Bureau believes that this 
unit of time provides a frame of reference to consumers that they use 
more regularly and that is easier to understand than months, which may 
result in large numbers that are unfamiliar to consumers, such as 180 
or 360 months. Accordingly, proposed Sec.  1026.37(a)(8) requires the 
loan term to be expressed in years.
---------------------------------------------------------------------------

    \158\ TILA section 128(a)(6) requires disclosure of the 
``number, amount, and due dates or period'' of periodic payments 
which, in effect, makes disclosure of the loan term a statutory 
requirement. Section 1026.18(g) implements TILA section 128(a)(6) 
for non-mortgage transactions, but there is no corresponding 
disclosure requirement for mortgage loan transactions in existing 
Sec.  1026.18(s). In this proposal, the Bureau intends to implement 
TILA section 128(a)(6) by requiring disclosure of the loan term for 
mortgages in proposed Sec.  1026.37(a)(8).
---------------------------------------------------------------------------

    The Bureau understands from industry feedback provided in 
connection with the Bureau's stakeholder outreach that some adjustable 
rate loans may be structured so that the periodic principal and 
interest payment is fixed and increases in the interest rate increase 
the loan term instead of the payment. Accordingly, proposed comment 
37(a)(8)-1 provides guidance regarding compliance with the requirement 
of proposed Sec.  1026.37(a)(8) if the term to maturity is adjustable 
under the terms of the legal obligation.
    The Bureau proposes Sec.  1026.37(a)(8) pursuant to its authority 
under TILA section 105(a), RESPA section 19(a), and section 1032(a) of 
the Dodd-Frank Act to implement TILA section 128(a)(6) and because 
disclosing the loan term will help promote the informed use of credit 
and more effective advance notice of settlement costs and will enable 
consumers to better understand the costs, benefits, and risks 
associated with mortgage transactions.
37(a)(9) Purpose
    Neither Regulation Z nor Regulation X currently requires disclosure 
of the purpose of the loan. With the number of loan products available 
on the market, some of which are targeted for a particular purpose, 
inclusion of this information on the Loan Estimate will promote the 
informed use of credit and more effective advance notice of settlement 
costs and will enable consumers to better understand the costs, 
benefits, and risks associated with mortgage transactions. Accordingly, 
the Bureau proposes to use its authority under TILA section 105(a), 
RESPA section 19(a), and section 1032(a) of the Dodd-Frank Act to 
require creditors to disclose the intended purpose of the extension of 
credit.
    Under proposed Sec.  1026.37(a)(9), the creditor is required to 
disclose as the purpose of the loan one of the following: (1) Purchase; 
(2) refinance; (3) construction; or (4) home equity loan. Proposed 
comment 37(a)(9)-1 provides general guidance on identifying the most 
accurate loan purpose and clarifies that, in disclosing the loan 
purpose, the creditor must consider all relevant information available 
to the creditor at the time of the disclosure and that, if there is 
uncertainty, the creditor may rely on the consumer's stated purpose. 
The Bureau seeks comment on whether additional loan purposes should be 
added to Sec.  1026.37(a)(9).
37(a)(9)(i) Purchase
    If the credit is to finance the acquisition of the property that is 
the subject of the loan transaction, proposed Sec.  1026.37(a)(9)(i) 
requires the creditor to disclose that the loan is a ``Purchase.'' 
Proposed comment 37(a)(9)-1.i clarifies the meaning of the term 
``purchase.''
37(a)(9)(ii) Refinance
    Proposed Sec.  1026.37(a)(9)(ii) requires the creditor to disclose 
that the loan is for a ``Refinance'' if, consistent with Sec.  
1026.20(a) other than with regard to the identity of the creditor, the 
credit is to refinance an existing obligation already secured by the 
property that is the subject of the transaction. Like Sec.  1026.20(a), 
whether a transaction is a refinancing under proposed Sec.  
1026.37(a)(9)(ii) depends on whether the original obligation has been 
satisfied or extinguished and replaced by a new obligation, based on 
the parties' contract and applicable law. This may include an 
obligation under which amounts other than principal remain due under 
the existing obligation and are to be paid with the new obligation to 
satisfy the existing obligation. Proposed comment 37(a)(9)-1.ii 
clarifies the meaning of the term ``refinance'' and that the consumer 
may or may not receive cash from the transaction. Proposed comment 
37(a)(9)(ii)-1.ii also provides a description of a refinancing with and 
without cash provided and provides an example of how a consumer may use 
cash received in a refinancing transaction with cash provided. Proposed 
comment 37(a)(9)-2 also

[[Page 51193]]

clarifies that proposed Sec.  1026.37(a)(9)(ii), unlike Sec.  
1026.20(a), applies to all such transactions even if the refinancing is 
undertaken by a new creditor.
37(a)(9)(iii) Construction
    If the extension of credit is to finance the construction of a 
dwelling on the property, proposed Sec.  1026.37(a)(9)(iii) requires 
the creditor to disclose that the loan is for ``Construction.'' 
Proposed comment 37(a)(9)-1.iii clarifies that the creditor is required 
to disclose that the loan is for ``construction'' both in transactions 
where the extension of credit is to cover the costs of a construction 
project only (``construction-only'' loan), whether it is a new 
construction or a renovation project, and in transactions where a 
multiple advance loan may be permanently financed by the same creditor 
(``construction-to-permanent'' loan). The proposed comment also 
clarifies that, in construction-only transactions, the consumer may be 
required to make interest-only payments during the construction phase 
of the project with the loan balance due at the completion of the 
construction project. Finally, proposed comment 37(a)(9)-1.iii cross-
references Sec.  1026.17(c)(6)(ii) and comments 17(c)(6)-2 and -3 for 
further guidance regarding construction-to-permanent transactions.
37(a)(9)(iv) Home Equity Loan
    If the extension of credit does not involve the purchase of real 
property as described in proposed Sec.  1026.37(a)(9)(i) or the 
construction of a dwelling as described in proposed Sec.  
1026.37(a)(9)(iii) and will not be used to refinance an existing 
obligation as described in proposed Sec.  1026.37(a)(9)(ii), proposed 
Sec.  1026.37(a)(9)(iv) requires the creditor to state that the 
extension of credit is for a ``Home Equity Loan.'' Proposed comment 
37(a)(9)(iv)-1.iv clarifies that the home equity loan disclosure 
applies whether the transaction will be secured by a first or 
subordinate lien on the property.
37(a)(10) Product
    Pursuant to TILA section 128(b)(2)(C)(ii), under existing Sec.  
1026.18(s), the creditor is required to provide certain information 
about the interest rate and payments, which is based on the loan 
product. In proposed Sec.  1026.37(a)(10), the Bureau requires a 
description of the loan product. The Bureau proposes this new 
requirement pursuant to its authority under TILA section 105(a), RESPA 
section 19(a), section 1032(a) of the Dodd-Frank Act, and section 
1405(b) of the Dodd-Frank Act with respect to residential mortgage 
loans. The Bureau believes that requiring the disclosure of the loan 
product on the Loan Estimate promotes the informed use of credit and 
more effective advance disclosure of settlement charges by providing 
consumers with key loan terms early in the transaction and in a clear 
and conspicuous manner. This disclosure also enables consumers to 
better understand the costs, benefits, and risks associated with 
mortgage transactions. In addition, the disclosure of the loan product 
may improve consumer awareness and understanding of transactions 
involving residential mortgage loans through the use of disclosures, 
and is in the interest of consumers and in the public interest.
    Specifically, proposed Sec.  1026.37(a)(10)(i) requires the 
creditor to identify the type of loan product for which the consumer 
has applied and proposed Sec.  1026.37(a)(10)(ii) requires a 
description of certain loan features added to the loan product that may 
change the consumer's periodic payment. Proposed Sec.  
1026.37(a)(10)(iii) provides instructions on how to disclose loan 
products that contain one or more loan features, states that the 
creditor may disclose only one loan feature, and cross-references 
proposed Sec.  1026.37(a)(10)(ii) as establishing the following 
hierarchy to be adhered to when disclosing a loan product with more 
than one loan feature: (1) Negative amortization; (2) interest-only; 
(3) step payment; and (4) balloon payment. Proposed Sec.  
1026.37(a)(10)(iv) requires that the disclosure of any loan product or 
loan feature be preceded by any introductory rate periods, adjustable 
features, and applicable time periods. This aspect of the proposal 
would not apply to fixed rate loans with no additional features. 
Finally, comments to proposed Sec.  1026.37(a)(10) provide further 
descriptions and examples of the loan products and features to be 
disclosed, as discussed below.
37(a)(10)(i)
    Proposed Sec.  1026.37(a)(10)(i) requires disclosure of one of the 
following as the product for which the consumer has applied:
37(a)(10)(i)(A) Adjustable Rate
    If the annual percentage rate may increase after consummation, but 
the rates that will apply or the periods for which they will apply are 
not known at consummation, proposed Sec.  1026.37(a)(10)(i)(A) requires 
that the loan be disclosed as an ``Adjustable Rate.'' Proposed comment 
37(a)(10)-1.i clarifies the proper format for disclosure of an 
adjustable-rate product.
37(a)(10)(i)(B) Step Rate
    Under proposed Sec.  1026.37(a)(10)(i)(B), the loan product is 
required to be disclosed as a ``Step Rate'' if the interest rate will 
change after consummation and the applicable rates and the periods for 
the applicable rates are known. Proposed comment 37(a)(10)-1.ii 
clarifies that the proper format for disclosure of a step-rate product.
37(a)(10)(i)(C) Fixed Rate
    Proposed Sec.  1026.37(a)(10)(i)(C) requires the creditor to 
disclose the loan product as a ``Fixed Rate'' if the product is neither 
an Adjustable Rate nor a Step Rate, as described in Sec.  
1026.37(a)(10)(i)(A) and (B), respectively. Proposed comment 37(a)(10)-
1.iii provides guidance regarding the disclosure required by Sec.  
1026.37(a)(10)(i)(C).
37(a)(10)(ii)
    Proposed Sec.  1026.37(a)(10)(ii) requires the disclosure of loan 
features that may change the consumer's periodic payment. As noted 
above, although structured differently, Sec.  1026.18(s) requires a 
similar disclosure. Proposed Sec.  1026.37(a)(10)(ii) requires the 
consumer to disclose one of the following features, as applicable: 
Negative amortization, interest-only, step payment, balloon payment, or 
seasonal payment. Proposed comment 37(a)(10)-2 clarifies the 
requirements of Sec.  1026.37(a)(10)(iii) and (iv) with respect to the 
feature that is disclosed and the time period or the length of the 
introductory period and the frequency of the adjustment periods, as 
applicable, that preceded the feature. For example: an adjustable-rate 
product with an introductory rate that is interest-only for the first 
five years and then adjusts every three years starting in year six 
would be disclosed as ``5 Year Interest Only, 5/3 Adjustable Rate''; a 
step-rate product with an introductory interest rate that lasts for 
seven years, and adjusts every year thereafter for the next five years 
at a predetermined rate would be disclosed as ``7/1 Step Rate''; and a 
fixed rate product that is interest-only for ten years with a balloon 
payment due at the end of the ten-year period would be disclosed as 
``10 Year Interest Only, Fixed Rate.'' The balloon payment feature, 
however, would be disclosed elsewhere on the form as described in the 
section-by-section analysis of proposed Sec.  1026.37(b) and (c).

[[Page 51194]]

37(a)(10)(ii)(A) Negative Amortization
    Proposed Sec.  1026.37(a)(10)(ii)(A) requires that the creditor 
disclose a ``Negative Amortization'' loan feature if, under the terms 
of the legal obligation, the loan balance may increase. Proposed 
comment 37(a)(10)-2.i provides an example of the disclosure of a loan 
product with a negative amortization feature.
37(a)(10)(ii)(B) Interest Only
    Proposed Sec.  1026.37(a)(10)(ii)(B) requires that the creditor 
disclose an ``Interest Only'' loan feature if, under the legal 
obligation, one or more regular periodic payments may be applied only 
to interest accrued and not to the loan principal. Proposed comment 
37(a)(10)-2.ii provides an example of the disclosure of a loan product 
with an interest only feature.
37(a)(10)(ii)(C) Step Payment
    Proposed Sec.  1026.37(a)(10)(ii)(C) requires that the creditor 
disclose a ``Step Payment'' loan feature if the terms of the legal 
obligation include a feature that involves scheduled variations in the 
periodic payment during the term of the loan that are not caused by 
changes in the interest rate. Proposed comment 37(a)(10)-2.iii 
clarifies that the term ``step payment'' is sometimes also called a 
``graduated payment'' and provides an example and guidance on the 
format to be used when disclosing a loan product with a Step Payment 
feature.
37(a)(10)(ii)(D) Balloon Payment
    Proposed Sec.  1026.37(a)(10)(ii)(D) requires that the creditor 
disclose a ``Balloon Payment'' loan feature if the transaction includes 
a balloon payment as defined in proposed Sec.  1026.37(b)(5). Proposed 
comment 37(a)(10)-2.iv clarifies that the term ``balloon payment'' has 
the same meaning as in proposed Sec.  1026.37(b)(5) and provides 
further guidance on the format to be used when disclosing a loan 
product with a balloon payment feature.
37(a)(10)(ii)(E) Seasonal Payment
    Proposed Sec.  1026.37(a)(10)(ii)(E) requires that the creditor 
disclose whether the terms of the legal obligation expressly provide 
that regular periodic payments are not scheduled for specified unit-
periods on a regular basis, disclosed as a ``Seasonal Payment'' 
feature. The Bureau understands from industry feedback provided in 
connection with the Bureau's stakeholder outreach that some loans, 
which may be more prevalent in the community bank market, may be 
structured so that periodic principal and interest payments are not 
scheduled to be made by the consumer in between specified unit-periods 
on a regular basis. For example, such a loan may be structured so that 
payments are not required to be made by the consumer during the months 
of June through August each year of the loan term. These loans are 
sometimes called ``teacher loans.'' Accordingly, proposed Sec.  
1026.37(a)(10)(ii)(E) provides for the disclosure of such a product 
feature. Proposed comment 37(a)(10)-2.v provides guidance regarding 
this requirement.
37(a)(10)(iii)
    Proposed Sec.  1026.37(a)(10)(iii) requires that if more than one 
loan feature is applicable to the transaction, the creditor disclose 
only the first applicable loan feature from the order in which they are 
presented in proposed Sec.  1026.37(a)(10)(ii). This proposed order of 
loan features prioritizes the loan features to ensure that consumers 
receive information about potential costs and risks in a readily 
visible format, understanding that consumers will receive information 
about some applicable features elsewhere in the Loan Estimate. For 
example, the existence of a balloon payment is also disclosed under 
both proposed Sec.  1026.37(b) and (c), and thus, is later in the order 
of loan features under proposed Sec.  1026.37(a)(10)(iii). In addition, 
seasonal payments do not pose as great a risk to consumers as do 
negatively amortizing or non-amortizing payments, and thus, disclosure 
of these features is earlier than seasonal payments in the order under 
proposed Sec.  1026.37(a)(10)(iii).
37(a)(10)(iv)
    Finally, proposed Sec.  1026.37(a)(10)(iv) requires the creditor to 
include in the disclosures required by Sec.  1026.37(a)(10)(i) and (ii) 
information regarding any introductory rate period, adjustment period, 
or time period, as applicable, and that this information should precede 
both the loan product and any features disclosed, as applicable. For 
example, if the consumer applies for an adjustable-rate loan that 
includes a scheduled regular periodic payment that results in negative 
amortization in years one through three, interest-only payments in 
years four and five, and an interest rate that adjusts every two years 
after year three, the creditor would disclose the product as ``3 Year 
Negative Amortization, 3/2 Adjustable Rate.''
37(a)(11) Loan Type
    Existing appendix A to Regulation X requires disclosure of the loan 
type in section B of the RESPA settlement statement. The Bureau 
proposes to use its authority under TILA section 105(a), RESPA section 
19(a), and Dodd-Frank Act 1032(a) to require a similar disclosure. The 
types of transactions disclosed under proposed Sec.  1026.37(a)(11) may 
include different cost structures or underwriting requirements. The 
disclosure of the type of transaction enables consumers to evaluate 
whether it is the type of transaction that is best suited for their 
personal situation. The Bureau believes that including information 
regarding the type of transaction for which the consumer has applied 
will promote the informed use of credit and more effective advance 
disclosure of closing costs, and will enable consumers to better 
understand the costs, benefits, and risks associated with mortgage 
transactions by providing consumers with information regarding 
important characteristics of the loan early in the transaction. 
Accordingly, under proposed Sec.  1026.37(a)(11), creditors are 
required to disclose one of the following loan types: Conventional, 
FHA, VA, or Other.
37(a)(11)(i) Conventional
    If the loan is not guaranteed or insured by a Federal or State 
government agency, proposed Sec.  1026.37(a)(11)(i) requires the 
creditor to disclose that the loan is a ``Conventional.''
37(a)(11)(ii) FHA
    If the loan is insured by the Federal Housing Administration, 
proposed Sec.  1026.37(a)(11)(ii) requires the creditor to disclose 
that the loan is a ``FHA.''
37(a)(11)(iii) VA
    If the loan is guaranteed by the U.S. Department of Veterans 
Affairs, proposed Sec.  1026.37(a)(11)(iii) requires the creditor to 
disclose that the loan is a ``VA.''
37(a)(11)(iv) Other
    For federally-insured or guaranteed loans that do not fall within 
the categories described in proposed Sec.  1026.37(a)(11)(i) through 
(iii) and loans insured or guaranteed by a State agency or other 
entity, proposed Sec.  1026.37(a)(11)(iv) requires the creditor to 
disclose the loan type as ``Other'' and provide a brief description of 
the loan. Proposed comment 1026.37(a)(11)-1 provides details on the 
type of loans that would be categorized as ``Other'' and an example of 
an acceptable description of a loan that falls within that category.

[[Page 51195]]

37(a)(12) Loan Identification Number (Loan ID )
    Appendix A to Regulation X requires the settlement agent to provide 
the ``loan number'' in the RESPA settlement statement. The Bureau 
proposes to use its authority in TILA section 105(a), RESPA section 
19(a), and Dodd-Frank Act section 1032(a) to require disclosure of the 
loan number on the Loan Estimate. The Bureau believes that including 
this information in a prominent position on the Loan Estimate will 
promote the informed use of credit and more effective advance 
disclosure of settlement costs and will enable consumers to better 
understand the costs, benefits, and risks associated with mortgage 
transactions by providing consumers with access to information they may 
use repeatedly throughout the transaction.
    Accordingly, proposed Sec.  1026.37(a)(12) requires the creditor to 
provide a unique number that may be used by the lender, consumer, and 
other parties to identify the loan transaction, labeled as ``Loan ID 
.'' Proposed comment 37(a)(12)-1 clarifies that the lender has 
the discretion to create the unique loan identification number and that 
different and unrelated loan transactions with the same creditor may 
not share the same loan identification number.
37(a)(13) Rate Lock
    Existing appendix C to Regulation X requires the loan originator to 
disclose information regarding the expiration date for the interest 
rate, charges, and related terms offered by the originator in the GFE. 
The Bureau believes that this information is critical to the consumer's 
ability to understand the transaction and avoid the uninformed use of 
credit. Furthermore, disclosure of this information promotes more 
effective advance disclosure of settlement costs and will enable 
consumers to better understand the costs, benefits, and risks 
associated with mortgage transactions. Thus, the Bureau proposes to use 
its authority under TILA section 105(a), RESPA section 19(a), and Dodd-
Frank Act section 1032(a) to require creditors to provide the rate lock 
information currently provided in the RESPA GFE.
    Consistent with this requirement, proposed Sec.  1026.37(a)(13) 
requires the creditor to disclose whether the interest rate identified 
under proposed Sec.  1026.37(b)(2) has been locked by the consumer and, 
if set, proposed Sec.  1026.37(a)(13)(i) requires disclosure of the 
date and time (including the applicable time zone) the locked rate 
would expire. Proposed Sec.  1026.37(a)(13)(ii) states that the ``rate 
lock'' statement required by proposed Sec.  1026.37(a)(13) is to be 
accompanied by a statement notifying the consumer that the interest 
rate, points, and lender credits provided in the Loan Estimate are 
subject to change unless the rate has been set by the consumer and the 
date and time (including the applicable time zone) all estimated 
closing costs provided in the Loan Estimate will expire. Proposed 
comment 37(a)(13)-1 clarifies that for purposes of proposed Sec.  
1026.37(a)(13), a disclosed interest rate is set for a specific period 
of time even if subject to conditions set forth in the rate-lock 
agreement between the creditor and consumer. Proposed comment 
37(a)(13)-2 clarifies that the information provided under proposed 
Sec.  1026.37(a)(13) is required whether or not the transaction is 
consummated or the terms are otherwise not accepted or extended. 
Proposed comment 37(a)(13)-3 states that all times provided in the 
disclosure must reference the applicable time zone and provides an 
example of an appropriate disclosure of the applicable time zone.
37(b) Loan Terms
    To shop for and understand the cost of credit, consumers must be 
able to identify and understand the key loan terms offered to them. As 
discussed below, the Bureau's consumer testing suggests that the 
following are key loan terms that consumers recognize and expect to see 
on closed-end mortgage disclosures, together with their settlement 
charges: Loan amount; interest rate; periodic principal and interest 
payment; whether the loan amount, interest rate, or periodic payment 
can increase; and whether the loan has a prepayment penalty or balloon 
payment.
    TILA requires the disclosure of some of these key loan terms, but 
not all. Notably, the loan amount and interest rate are currently not 
specifically required to be disclosed by TILA section 128. 15 U.S.C. 
1638. Although Regulation Z currently requires the interest rate to be 
disclosed in the payment schedule required by Sec.  1026.18(s), it does 
not require the loan amount to be disclosed for non-HOEPA loans, and 
does not require a summary table identifying these key loan terms for 
closed-end credit secured by real property. 12 CFR 1026.18. For 
federally related mortgage loans, Sec.  1024.7(d) of Regulation X 
currently requires the GFE to contain a table on page 1, labeled 
``Summary of your loan terms,'' which contains the following 
information: (i) Initial loan amount; (ii) loan term; (iii) initial 
interest rate; (iv) initial monthly amount owed for principal, 
interest, and mortgage insurance; (v) whether the interest rate can 
rise, and if so, the maximum interest rate and the date of the first 
interest rate change; (vi) whether the loan balance can rise, and if 
so, the maximum loan balance; (vii) whether the monthly amount owed for 
principal, interest, and mortgage insurance can rise, and if so, the 
payment amount at the first change and the maximum payment; (viii) 
whether the loan has a prepayment penalty and the maximum prepayment 
penalty; and (xi) whether the loan has a balloon payment, the amount, 
and when it is due. 12 CFR 1024.7(d).
    Pursuant to its authority under TILA section 105(a), RESPA section 
19(a), and Dodd-Frank Act section 1032(a), the Bureau proposes to 
require creditors to provide the key loan terms described above in a 
summary table as part of the integrated Loan Estimate required by 
proposed Sec.  1026.19(e) for closed-end transactions secured by real 
property (other than reverse mortgages). At the Bureau's consumer 
testing, participants were able to use the summary table to identify 
and compare easily the key loan terms for different loans. Based on its 
consumer testing, the Bureau believes that a concise loan summary table 
will improve consumer understanding of the loan terms presented, such 
as an understanding of whether the consumer can afford the loan, enable 
comparisons of different credit terms offered by the same or multiple 
creditors, and enable consumers to verify information about the loan 
provided by the creditor orally or in some other form, such as a 
worksheet. The Bureau believes that this disclosure will effectuate the 
purposes of TILA by promoting the informed use of credit and assuring a 
meaningful disclosure to consumers, including more effective advance 
disclosure of settlement costs. Furthermore, consistent with section 
1032(a) of the Dodd-Frank Act, this disclosure would ensure that the 
features of consumer credit transactions secured by real property are 
fully, accurately, and effectively disclosed to consumers in a manner 
that permits consumers to understand the costs, benefits, and risks 
associated with the product or service, in light of the facts and 
circumstances.
    The table appears under the heading ``Loan Terms'' to enhance 
visibility. The individual items of information in the table are also 
labeled to enhance visibility. The format provides consumers with a 
bold ``yes'' or ``no'' answer to the questions of whether the loan 
amount, interest rate, or periodic payment can increase, and whether 
the loan has a prepayment penalty or

[[Page 51196]]

balloon payment. The format of the Loan Terms table will help consumers 
quickly and easily identify their key loan terms.
    The Bureau proposes comment 37(b)-1 to provide additional guidance 
to creditors regarding the Loan Terms table. Proposed comment 37(b)-1 
clarifies that the Loan Terms table should reflect the terms of the 
legal obligation that the consumer will enter into, based on 
information the creditor knows or reasonably should know. A discussion 
of the specific items included in the table follows.
37(b)(1) Loan Amount
    Neither TILA nor RESPA specifically requires the disclosure of the 
loan amount for the transaction. TILA section 128(a)(2) requires 
disclosure of the amount financed, of which the principal amount of the 
loan is the most significant component, but the section does not 
require a separate disclosure of the principal amount of the loan. 15 
U.S.C. 1638(a)(2). Regulation Z Sec.  1026.32(c)(5) currently requires 
the disclosure of the total amount the consumer will borrow, as 
reflected by the face amount of the note, for loans subject to HOEPA. 
For federally related mortgage loans under RESPA, Sec.  1024.7(d) of 
Regulation X currently requires the disclosure of the loan amount in 
the summary table on page 1 of the GFE with the text, ``Your initial 
loan amount is.''
    The Bureau believes, based on its consumer testing, that the loan 
amount is important to consumers to understand readily, compare, and 
verify the amount of credit offered to them. The principal amount of 
the loan is a basic element of the transaction that should be disclosed 
to consumers.
    Pursuant to its authority under TILA section 105(a), Dodd-Frank Act 
section 1032(a), and RESPA section 19(a), the Bureau proposes to 
require a disclosure of the principal amount of the transaction for 
closed-end transactions secured by real property (other than reverse 
mortgages). The Bureau proposes this requirement to effectuate the 
purposes of TILA to promote the informed use of credit and ensure a 
meaningful disclosure of credit terms to consumers. In addition, 
consistent with section 1032(a) of the Dodd-Frank Act, the Bureau 
believes that the disclosure of the loan amount in the Loan Terms table 
may ensure that the features of consumer credit transactions secured by 
real property are fully, accurately, and effectively disclosed to 
consumers in a manner that permits consumers to understand the costs, 
benefits, and risks associated with the product or service, in light of 
the facts and circumstances. Further, like HUD, the Bureau believes the 
loan amount is necessary to understanding the transaction and its 
disclosure would effectuate the purposes of RESPA.
    Proposed Sec.  1026.37(b)(1) requires creditors to disclose the 
``loan amount,'' which is defined as the amount of credit to be 
extended under the terms of the legal obligation. This disclosure is 
labeled ``Loan Amount'' to enhance visibility. Disclosing the loan 
amount may also alert the consumer to fees that are financed in 
addition to the amount of credit sought for the consumer's purchase, 
refinance, or other purpose.
37(b)(2) Interest Rate
    TILA section 128(a)(3) and (4) requires disclosure of the finance 
charge and the annual percentage rate, for which the interest rate is a 
factor in the calculation. 15 U.S.C. 1638(a)(3), (4).\159\ However, the 
statute does not require a separate disclosure of the interest rate. 
Currently, Regulation Z requires creditors to disclose the interest 
rate only in the interest rate and payment summary table required by 
Sec.  1026.18(s). For federally related mortgage loans, Sec.  1024.7(d) 
of Regulation X requires that the GFE state the interest rate with the 
text ``your initial interest rate is'' in the summary table on page 1.
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    \159\ As discussed below, the finance charge disclosure is 
implemented in proposed Sec.  1026.38(o)(2). The APR disclosure is 
implemented in proposed Sec. Sec.  1026.37(l)(2) and 1026.38(o)(4).
---------------------------------------------------------------------------

    The Bureau believes that the interest rate is an important loan 
term that consumers should be able to locate readily on the disclosure, 
because it is the basis for the periodic payments of principal and 
interest that the consumer will be obligated to make. Participants in 
the Bureau's consumer testing used the interest rate as one of the 
primary factors when evaluating, comparing, and verifying loan terms.
    The Bureau proposes to use its authority under TILA section 105(a) 
to require disclosure of the interest rate for the transaction to 
effectuate the purposes of TILA to promote the informed use of credit 
and ensure a meaningful disclosure of credit terms to consumers. In 
addition, consistent with section 1032(a) of the Dodd-Frank Act, the 
Bureau believes that the disclosure of the interest rate in the Loan 
Terms table may ensure that the features of consumer credit 
transactions secured by real property are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to understand the costs, benefits, and risks associated with the 
product or service, in light of the facts and circumstances. Further, 
like HUD, which required disclosure of the interest rate in its good 
faith estimate form, the Bureau proposes to use its authority under 
RESPA section 19(a) to require disclosure of the interest rate, because 
the interest rate is important to consumer understanding of the 
transaction.
    Proposed Sec.  1026.37(b)(2) requires disclosure of the initial 
interest rate that will be applicable to the transaction, labeled the 
``Interest Rate.'' If the initial interest rate may adjust based on an 
index, the creditor must disclose the fully-indexed rate, which is 
defined within that paragraph. Proposed comment 37(b)(2)-1 provides 
guidance regarding how to calculate the fully-indexed rate to be 
disclosed.
37(b)(3) Principal and Interest Payment
    TILA section 128(a)(6) requires disclosure of the number, amount, 
and due dates or period of payments scheduled to repay the loan. 15 
U.S.C. 1638(a)(6). TILA section 128(b)(2)(C)(ii) requires the maximum 
principal and interest payment and examples of other potential 
principal and interest payments to be disclosed when the ``annual rate 
of interest is variable * * * or the regular payments may otherwise be 
variable.'' 15 U.S.C. 1638(b)(2)(C)(ii).
    Currently, for closed-end transactions secured by real property or 
a dwelling, Regulation Z requires creditors to disclose the periodic 
principal and interest payment only in the interest rate and payment 
summary table required by Sec.  1026.18(s). For federally related 
mortgage loans, Sec.  1024.7(d) of Regulation X requires the GFE to 
contain the initial periodic payment for principal and interest and 
mortgage insurance with the text ``Your initial monthly amount owed for 
principal, interest, and any mortgage insurance is.''
    The Bureau believes that, like the interest rate, the periodic 
principal and interest payment is a key loan term that consumers should 
be able to locate readily on the form. The Bureau's consumer testing 
indicates that consumers use the periodic principal and interest 
payment of the loan as a primary factor in evaluating and comparing a 
loan. The Bureau believes that a specific disclosure of the periodic 
principal and interest payment in the Loan Terms table will assist 
consumers in readily evaluating, comparing, and verifying possible loan 
terms. This payment enables consumers to compare loans of one or 
multiple creditors based on the same measure, rather than a payment 
that may include estimates for escrow payments for property costs or

[[Page 51197]]

mortgage insurance. Accordingly, the Bureau proposes Sec.  
1026.37(b)(3) to require the Loan Terms table to include the periodic 
principal and interest payment simply labeled ``Principal & Interest,'' 
with an indication of the applicable unit-period. If the initial 
periodic payment may adjust based on changes to an index, the payment 
disclosed is required to be based on the fully-indexed rate disclosed 
under proposed Sec.  1026.37(b)(2). The unit-period that is applicable 
to a transaction is currently described in appendix J to Regulation Z. 
Proposed comment 37(b)(3)-1 clarifies that the label of the periodic 
principal and interest payment should reflect the appropriate unit-
period for the transaction. Proposed comment 37(b)(3)-2 provides 
guidance regarding how to calculate the payment to be disclosed if the 
initial interest rate is adjustable based on an index.
    The Bureau believes that the total periodic payment the consumer 
would be responsible to make to the creditor, including any required 
mortgage insurance and escrow payments, is also important for the 
consumer to consider when evaluating a loan offer. This amount allows a 
consumer to determine the affordability of the credit transaction and 
underlying real estate transaction. Accordingly, the Bureau proposes to 
include with the principal and interest payment a statement referring 
the consumer to the total periodic payment, including estimated amounts 
for any escrow and mortgage insurance payments, which is disclosed in 
the Projected Payments table under proposed Sec.  1026.37(c), 
immediately below the Loan Terms table.
    The Bureau proposes to use its authority under TILA section 105(a) 
to require disclosure of the periodic principal and interest payment, 
along with a reference to the total periodic payment, in the Loan Terms 
table to effectuate the purposes of TILA to promote the informed use of 
credit and ensure a meaningful disclosure of credit terms to consumers. 
In addition, consistent with section 1032(a) of the Dodd-Frank Act, the 
Bureau believes that this disclosure may ensure that the features of 
consumer credit transactions secured by real property are fully, 
accurately, and effectively disclosed to consumers in a manner that 
permits consumers to understand the costs, benefits, and risks 
associated with the product or service, in light of the facts and 
circumstances. Further, the Bureau proposes to use its authority under 
RESPA section 19(a) to require this disclosure because the disclosure 
will improve consumer understanding of the transaction, including 
settlement costs. The Bureau also proposes this requirement pursuant to 
its authority under section 1405(b) of the Dodd-Frank Act. The Bureau 
believes this disclosure may improve consumer awareness and 
understanding of transactions involving residential mortgage loans 
through the use of disclosures, and is in the interest of consumers and 
in the public interest.
37(b)(4) Prepayment Penalty
    Currently, TILA section 128(a)(11), 15 U.S.C. 1638(a)(11), and 
Regulation Z Sec.  1026.18(k)(1) require the creditor to disclose 
whether or not a penalty may be imposed if the obligation is prepaid in 
full for a transaction that includes a finance charge computed from 
time to time by application of a rate to the unpaid principal balance. 
For federally related mortgage loans, Sec.  1024.7(d) of Regulation X 
requires the summary table on page 1 of the GFE to state whether or not 
the loan has a prepayment penalty with the text, ``Does your loan have 
a prepayment penalty?''
    The Bureau's consumer testing indicates that consumers use the 
existence of a prepayment penalty as an important factor in 
understanding and evaluating loan offers. Accordingly, because of the 
importance to consumers of prepayment penalties, proposed Sec.  
1026.37(b)(4) requires disclosure of whether the loan has a prepayment 
penalty in the Loan Terms table, labeled ``Prepayment Penalty.'' As 
discussed below, under proposed Sec.  1026.37(b)(7), the existence or 
non-existence of a prepayment penalty provision in the loan contract is 
indicated by an affirmative or negative answer (designed as a simple 
``yes'' or ``no'') to the question, ``Does the loan have these 
features?'' In the Bureau's consumer testing, consumers were able to 
use this disclosure to determine easily if the loan had a prepayment 
penalty.
    The Bureau proposes to require disclosure of whether the 
transaction includes a prepayment penalty under TILA section 
128(a)(11), its implementation authority under TILA section 105(a), and 
RESPA section 19(a). The Bureau believes this additional information 
will promote consumer understanding of the cost of credit and more 
effective disclosure of the terms of the credit.
Definition of Prepayment Penalty
    TILA establishes certain disclosure requirements for transactions 
for which a penalty is imposed upon prepayment, but does not define the 
term ``prepayment penalty.'' TILA section 128(a)(11) requires that the 
transaction-specific disclosures for closed-end consumer credit 
transactions disclose whether (1) a consumer is entitled to a rebate of 
any finance charge upon refinancing or prepayment in full pursuant to 
acceleration or otherwise, if the obligation involves a precomputed 
finance charge, and (2) a ``penalty'' is imposed upon prepayment in 
full if the obligation involves a finance charge computed from time to 
time by application of a rate to the unpaid principal balance. 15 
U.S.C. 1638(a)(11). Also, TILA section 128(a)(12) requires that the 
transaction-specific disclosures state that the consumer should refer 
to the appropriate contract document for information regarding certain 
loan terms or features, including ``prepayment rebates and penalties.'' 
15 U.S.C. 1638(a)(12).
    Section 1026.18(k) implements (and largely mirrors) TILA section 
128(a)(11). Section 1026.18(k)(1) provides that ``when an obligation 
includes a finance charge computed from time to time by application of 
a rate to the unpaid principal balance,'' the creditor must disclose 
``a statement indicating whether or not a penalty may be imposed if the 
obligation is prepaid in full.'' Comment 18(k)(1)-1 clarifies that such 
a ``penalty'' includes, for example, ``interest charges for any period 
after prepayment in full is made'' and a minimum finance charge, but 
does not include, for example, loan guarantee fees. Section 
1026.18(k)(2) provides for the disclosure of a statement indicating 
whether or not the consumer is entitled to a rebate of any finance 
charge if the obligation is prepaid in full when an obligation includes 
a finance charge other than the finance charge described in Sec.  
1026.18(k)(1). Comment 18(k)(2)-1 clarifies that Sec.  1026.18(k)(2) 
applies to any finance charges that do not take account of each 
reduction in the principal balance of an obligation, such as recomputed 
finance charges and charges that take account of some but not all 
reductions in principal.
    In addition, TILA section 129(c)(1) limits the circumstances in 
which a high-cost mortgage may include a prepayment penalty where the 
consumer pays all or part of the principal before the date on which the 
principal is due. 15 U.S.C. 1639(c)(1)(A). In the high-cost mortgage 
context, any method of computing a refund of unearned scheduled 
interest is a prepayment penalty if it is less favorable than the 
actuarial method, as defined by section 933(d) of the Housing and 
Community Development Act of 1992. 15 U.S.C. 1639(c)(1)(B). Section 
1026.32(d)(6) implements these TILA provisions.
    Although the disclosure requirements under current Sec.  1026.18(k) 
apply to

[[Page 51198]]

closed-end mortgage and non-mortgage transactions, in its 2009 Closed-
End Proposal, the Board proposed to establish a new Sec.  226.38(a)(5) 
for disclosure of prepayment penalties for closed-end mortgage 
transactions. See 74 FR at 43334, 43413. In proposed comment 38(a)(5)-
2, the Board stated that examples of prepayment penalties include 
charges determined by treating the loan balance as outstanding for a 
period after prepayment in full and applying the interest rate to such 
``balance,'' a minimum finance charge in a simple-interest transaction, 
and charges that a creditor waives unless the consumer prepays the 
obligation. 74 FR at 43413. In addition, the Board's proposed comment 
38(a)(5)-3 listed loan guarantee fees and fees imposed for preparing a 
payoff statement or other documents in connection with the prepayment 
as examples of charges that are not prepayment penalties. Id. The 
Board's 2010 Mortgage Proposal included amendments to existing comment 
18(k)(1)-1 and proposed comment 38(a)(5)-2 stating that prepayment 
penalties include ``interest'' charges after prepayment in full even if 
the charge results from interest accrual amortization used for other 
payments in the transaction. See 75 FR at 58756, 58781.\160\
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    \160\ The preamble to the Board's 2010 Mortgage Proposal 
explained that the proposed revisions to current Regulation Z 
commentary and the proposed comment 38(a)(5) from the Board's 2009 
Closed-End Proposal regarding interest accrual amortization were in 
response to concerns about the application of prepayment penalties 
to certain Federal Housing Administration (FHA) and other loans 
(i.e., when a consumer prepays an FHA loan in full, the consumer 
must pay interest through the end of the month in which prepayment 
is made). See 75 FR at 58586.
---------------------------------------------------------------------------

    Prepayment penalties were also addressed in the Board's 2011 ATR 
Proposal implementing sections 1411, 1412, and 1414 of the Dodd-Frank 
Act (codified at 15 U.S.C. 1629c), which expand the scope of the 
ability-to-repay requirement under TILA and establish ``qualified 
mortgage'' standards for complying with such requirement. See 76 FR at 
27482, 27491. Specifically, the Board's proposed Sec.  226.43(b)(10) 
generally followed the current Regulation Z guidance on prepayment 
penalties (i.e., comment 18(k)(1)-1) and the proposed definitions and 
guidance in the Board's 2009 Closed-End Proposal and 2010 Mortgage 
Proposal. However, the Board's 2011 ATR Proposal differed from the 
prior proposals and current guidance in the following respects: (1) 
Proposed Sec.  226.43(b)(10) defined prepayment penalty with reference 
to a payment of ``all or part of'' the principal in a transaction 
covered by the provision, while Sec.  1026.18(k) and associated 
commentary and the Board's 2009 Closed-End Proposal and 2010 Mortgage 
Proposal referred to payment ``in full,'' (2) the examples provided 
omitted reference to a minimum finance charge and loan guarantee 
fees,\161\ and (3) proposed Sec.  226.43(b)(10) did not incorporate, 
and the Board's 2011 ATR Proposal did not otherwise address, the 
language in Sec.  1026.18(k)(2) and associated commentary regarding 
disclosure of a rebate of a precomputed finance charge.
---------------------------------------------------------------------------

    \161\ The preamble to the Board's 2011 ATR Proposal addressed 
why the Board chose to omit these two items. The Board reasoned that 
a minimum finance charge need not be included as an example of a 
prepayment penalty because such a charge typically is imposed with 
open-end, rather than closed-end, transactions. The Board stated 
that loan guarantee fees are not prepayment penalties because they 
are not charges imposed for paying all or part of a loan's principal 
before the date on which the principal is due. See 76 FR at 27416.
---------------------------------------------------------------------------

    Based on the Bureau's consideration of the existing statutory and 
regulatory definitions of ``penalty'' and ``prepayment penalty'' under 
TILA sections 128(a) and 129(c) and Sec. Sec.  1026.18(k) and 
1026.32(d)(6), the Board's proposed definitions of prepayment penalty, 
and the Bureau's authority under TILA section 105(a) and Dodd-Frank Act 
sections 1032(a) and, for residential mortgage transactions, 1405(b), 
the Bureau is proposing to define ``prepayment penalty'' in proposed 
Sec.  1026.37(b)(4) for transactions subject to Sec. Sec.  1026.19(e) 
and (f) as a charge imposed for paying all or part of a transaction's 
principal before the date on which the principal is due. The proposed 
definition of prepayment penalty as applicable to the transactions 
subject to Sec. Sec.  1026.19(e) and (f) broadens the existing 
statutory and regulatory definitions under TILA section 128(a)(11) and 
Sec.  1026.18(k), and thereby may result in more frequent disclosures 
of prepayment penalties to consumers than would be made under the 
existing definitions. Therefore, the Bureau believes that the 
disclosures of prepayment penalties under proposed Sec.  1026.37(b)(4) 
will effectuate the purposes of TILA and RESPA by facilitating the 
informed use of credit and more effective advance disclosure of 
settlement costs. In addition, the revised disclosures will ensure that 
the features of mortgage loan products initially and over their terms 
are fully, accurately, and effectively disclosed to consumers in a 
manner that permits consumers to understand the costs, benefits, and 
risks associated with the loan products in light of the facts and 
circumstances, consistent with Dodd-Frank Act section 1032(a). 
Furthermore, these disclosures will improve consumers' awareness and 
understanding of residential mortgage transactions, which is in the 
interest of consumers and the public, consistent with Dodd-Frank Act 
section 1405(b).
    Proposed comment 37(b)(4)-1 clarifies that the disclosure of the 
prepayment penalty under Sec.  1026.37(b)(4) applies to transactions 
where the terms of the loan contract provide for a prepayment penalty, 
even though it is not certain at the time of the disclosure whether the 
consumer will, in fact, make a payment to the creditor that would cause 
imposition of the penalty. This proposed comment also clarifies that if 
the transaction includes a prepayment penalty, Sec.  1026.37(b)(7) sets 
forth the information that must be disclosed under Sec.  1026.37(b)(4).
    Proposed comment 37(b)(4)-2.i through -2.iv gives the following 
examples of prepayment penalties: (1) A charge determined by treating 
the loan balance as outstanding for a period of time after prepayment 
in full and applying the interest rate to such ``balance,'' even if the 
charge results from interest accrual amortization used for other 
payments in the transaction under the terms of the loan contract; (2) a 
fee, such as an origination or other loan closing cost, that is waived 
by the creditor on the condition that the consumer does not prepay the 
loan; (3) a minimum finance charge in a simple interest transaction; 
and (4) computing a refund of unearned interest by a method that is 
less favorable to the consumer than the actuarial method, as defined by 
section 933(d) of the Housing and Community Development Act of 1992, 15 
U.S.C. 1615(d). Proposed comment 37(b)(4)-2.i further clarifies that 
``interest accrual amortization'' refers to the method by which the 
amount of interest due for each period (e.g., month) in a transaction's 
term is determined and notes, for example, that ``monthly interest 
accrual amortization'' treats each payment as made on the scheduled, 
monthly due date even if it is actually paid early or late (until the 
expiration of any grace period). The proposed comment also provides an 
example where a prepayment penalty of $1,000 is imposed because a full 
month's interest of $3,000 is charged even though only $2,000 in 
interest was earned in the month during which the consumer prepaid.
    Proposed comment 37(b)(4)-3 clarifies that a prepayment penalty 
does not include: (1) Fees imposed for preparing and providing 
documents when a loan is paid in full, whether or not the loan is 
prepaid, such as a loan

[[Page 51199]]

payoff statement, a reconveyance document, or another document 
releasing the creditor's security interest in the dwelling that secures 
the loan; or (2) loan guarantee fees.
    Proposed comment 37(b)(4)-4 clarifies that, with respect to an 
obligation that includes a finance charge that does not take into 
account each reduction in the principal balance of the obligation 
(e.g., precomputed finance charges), Sec.  1026.37(b)(4) satisfies 
disclosure of whether or not the consumer is entitled to a rebate of 
any finance charge if the obligation is prepaid in full or part. The 
comment further clarifies that if the transaction involves both a 
precomputed finance charge and a finance charge computed by application 
of a rate to an unpaid balance, disclosures about both the prepayment 
rebate and the prepayment penalty are made under Sec.  1026.37(b)(4) as 
one disclosure to the question required by Sec.  1026.37(b)(7). For 
example, if in such a transaction, a portion of the precomputed finance 
charge will not be provided as a rebate and also a prepayment penalty 
based on the amount prepaid is provided for by the loan contract, both 
disclosures are made under Sec.  1026.37(b)(4) as one aggregate amount, 
stating the maximum amount and time period under Sec.  1026.37(b)(7). 
If the transaction instead provides a rebate of the precomputed finance 
charge upon prepayment, but imposes a prepayment penalty based on the 
amount prepaid, the disclosure required by Sec.  1026.37(b)(4) is an 
affirmative answer and the information required by Sec.  1026.37(b)(7). 
This proposed comment incorporates existing guidance in Regulation Z 
commentary regarding disclosure of whether the consumer is entitled to 
a rebate of finance charges that do not take into account each 
reduction in principal balance. See comments 18(k)-2 and -3 and 
18(k)(2)-1.
    The definition of prepayment penalty in proposed Sec.  
1026.37(b)(4) and associated commentary substantially incorporates the 
definitions of and guidance on prepayment penalty from the Board's 2009 
Closed-End Proposal, 2010 Mortgage Proposal, and 2011 ATR Proposal and, 
as necessary, reconciles their differences. For example, the Bureau 
proposes that the prepayment penalty definition in Sec.  1026.37(b)(4) 
refer to payment of ``all or part of a covered transaction's 
principal,'' rather than merely payment ``in full,'' because knowledge 
of whether a partial prepayment triggers a penalty is important for 
consumers. Also, the Bureau is proposing to incorporate the language 
from the Board's 2009 Closed-End Proposal and 2010 Mortgage Proposal 
but omitted in the Board's 2011 ATR Proposal listing a minimum finance 
charge as an example of a prepayment penalty and stating that loan 
guarantee fees are not prepayment penalties, because similar language 
is found in longstanding Regulation Z commentary. Based on the 
differing approaches taken by the Board in its recent mortgage 
proposals, however, the Bureau seeks comment on whether a minimum 
finance charge should be listed as an example of a prepayment penalty 
and whether loan guarantee fees should be excluded from the definition 
of prepayment penalty.
    The Bureau expects to coordinate the definition of prepayment 
penalty in proposed Sec.  1026.37(b)(4) with the definitions in the 
Bureau's other pending rulemakings mandated by the Dodd-Frank Act 
concerning ability-to-repay, high-cost mortgages under HOEPA, and 
mortgage servicing. To the extent consistent with consumer protection 
objectives, the Bureau believes that adopting a consistent definition 
of ``prepayment penalty'' across its various pending rulemakings 
affecting closed-end mortgages will facilitate compliance. As an 
additional part of this effort to adopt a consistent regulatory 
definition of ``prepayment penalty,'' the Bureau is also proposing 
certain conforming revisions to Sec.  1026.18(k) and associated 
commentary, as discussed earlier in the section-by-section analysis for 
the proposed revised Sec.  1026.18(k).
37(b)(5) Balloon Payment
    TILA section 128(a)(6) requires disclosure of the number, amount, 
and due dates or period of payments scheduled to repay the loan. 
Currently, for closed-end transactions secured by real property or a 
dwelling, Regulation Z requires balloon payments to be disclosed only 
in connection with the interest rate and payment summary table required 
by Sec.  1026.18(s). For federally related mortgage loans, Sec.  
1024.7(d) of Regulation X requires the GFE to state in the summary 
table on page 1 whether or not the loan has a balloon payment with the 
text, ``Does your loan have a balloon payment?''
    Pursuant to its authority under TILA section 128(a)(6), TILA 
section 105(a), RESPA section 19(a), and Dodd-Frank Act section 
1032(a), the Bureau proposes Sec.  1026.37(b)(5), which requires 
disclosure of whether the credit transaction requires a balloon 
payment, as defined within the provision. This disclosure is provided 
in the Loan Terms table, labeled ``Balloon Payment.'' As discussed 
below, under proposed Sec.  1026.37(b)(7), the existence or non-
existence of a balloon payment provision is indicated by a ``yes'' or 
``no'' answer to the question, ``Does the loan have these features?'' 
In the Bureau's consumer testing, consumers were able to determine 
readily whether a loan had a balloon payment. The Bureau's consumer 
testing indicates that consumers consider whether a loan has a balloon 
payment to be an important factor in evaluating loans. The Bureau 
believes that this disclosure will effectuate the purposes of TILA and 
RESPA because it will promote the informed use of credit and assure a 
meaningful disclosure to consumers, and thus, will benefit consumers 
and the public and result in more effective advance disclosure.
Definition of Balloon Payment
    Sections 1412 and 1432(b) of the Dodd-Frank Act both define 
``balloon payment'' as ``a scheduled payment that is more than twice as 
large as the average of earlier scheduled payments.'' These definitions 
are incorporated into TILA sections 129C(b)(2)(A)(ii) and 129(e), 
respectively. 15 U.S.C. 1639c(b)(2)(A)(ii), 1639(e). Regulation Z Sec.  
1026.18(s)(5)(i), however, defines ``balloon payment'' as ``a payment 
that is more than two times a regular periodic payment.''
    The Board's 2011 ATR Proposal implementing section 1412 of the 
Dodd-Frank Act incorporates Regulation Z's existing definition of 
``balloon payment'' in Sec.  1026.18(s)(5)(i) rather than the 
definition in section 1412. See proposed Sec.  226.43(e)(2)(i)(C), 76 
FR 27390, 27484. The Board noted that this definition is substantially 
similar to the statutory one, except that it uses as its benchmark any 
regular periodic payment rather than the average of earlier scheduled 
payments. 76 FR at 27455. The Board also reasoned that incorporating 
the Regulation Z, rather than Dodd-Frank Act, definition of ``balloon 
payment'' facilitates compliance by affording creditors a single 
definition of the term within Regulation Z. Id. at 27456.
    By defining ``balloon payment'' in the 2011 ATR Proposal based on 
the Regulation Z definition, the Board proposed to adjust the Dodd-
Frank Act statutory definition. In doing so, the Board stated that it 
was relying on TILA section 105(a) authority to make such adjustments 
for all or any class of transactions as in the judgment of the Board 
are necessary or proper to facilitate compliance with TILA. Id.; 15 
U.S.C. 1604(a). The class of transactions for which the adjustment was 
proposed encompassed all transactions covered

[[Page 51200]]

by the 2011 ATR Proposal, i.e., closed-end consumer credit transactions 
that are secured by a dwelling. The Board, however, solicited comment 
on the appropriateness of the proposed adjustment. The Board also 
stated that the proposed adjustment was supported by the Board's 
authority under TILA section 129B(e) to condition terms, acts, or 
practices relating to residential mortgage loans that the Board finds 
necessary or proper to facilitate compliance. 15 U.S.C. 1639b(e).
    In view of the different definitions of ``balloon payment'' between 
the Dodd-Frank Act and Regulation Z and the approach taken by the Board 
in the 2011 ATR Proposal, and based on the Bureau's authority under 
TILA section 105(a) and Dodd-Frank Act sections 1032(a), and for 
residential mortgage loans, Dodd-Frank Act section 1405(b), the Bureau 
is proposing a definition of ``balloon payment'' in proposed Sec.  
1026.37(b)(5) that largely incorporates the existing Regulation Z 
definition in Sec.  1026.18(s)(5)(i), i.e., a payment that is more than 
two times a regular periodic payment. For the reasons discussed below, 
the Bureau believes that the proposed definition will promote the 
informed use of credit and facilitate compliance with TILA, consistent 
with TILA section 105(a). In addition, this definition will enhance 
consumer understanding of the costs, benefits, and risks associated 
with the transaction in light of the facts and circumstances 
(consistent with Dodd-Frank Act section 1032(a)), and improve 
consumers' awareness and understanding of residential mortgage 
transactions, which is in the interest of consumers and the public 
(consistent with Dodd-Frank Act section 1405(b)).
    The proposed definition in Sec.  1026.37(b)(5) revises the current 
regulatory language to state that a balloon payment cannot be a regular 
periodic payment. This revision is intended to prevent a regular 
periodic payment following a scheduled or permitted payment increase 
under the terms of a loan contract (e.g., based on a rate adjustment 
under an adjustable rate loan) from being characterized as a balloon 
payment if it is more than two times a regular periodic payment 
occurring prior to the payment increase. Moreover, proposed commentary 
to Sec.  1026.37(b)(5) clarifies the meaning of regular periodic 
payment and discusses how all regular periodic payments during the loan 
term are used to determine whether a particular payment is a balloon 
payment (i.e., if the particular payment is more than two times any one 
regular periodic payment during the loan term, it is disclosed as a 
balloon payment under Sec.  1026.37(b)(5) unless the particular payment 
itself is a regular periodic payment). These clarifications are 
intended to resolve ambiguity in the current regulatory definition and 
associated commentary, and thereby facilitate compliance.\162\
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    \162\ According to existing comment 32(d)(1)(i), a payment is a 
``regular periodic payment'' if it is not more than twice the amount 
of other payments. This definition, which is essentially the mirror 
image of the balloon payment definition in Sec.  1026.18(s)(5)(i) 
(i.e., a payment that is more than two times a regular periodic 
payment), leaves uncertainty as to how to determine whether a 
payment is a balloon payment when there are multiple regular 
periodic payments during the loan term (e.g., if the regularly 
scheduled payments increase due to an adjustable rate feature).
---------------------------------------------------------------------------

    This definition applies to all transactions subject to proposed 
Sec.  1026.19(e). The Bureau recognizes that this proposed definition 
deviates from that prescribed in the Dodd-Frank Act. However, for the 
reasons set forth in the 2011 ATR Proposal, the Bureau believes that 
adopting a consistent definition within Regulation Z will promote the 
informed use of credit and facilitate compliance and, therefore, will 
also benefit consumers and the public. See 76 FR at 27456.
    The Bureau recognizes that these additional clarifications may 
result in more payments being disclosed as balloon payments than under 
the current regulatory definition. The Bureau believes that more 
frequent disclosure of balloon payment terms facilitates the informed 
use of credit, ensures that the features of mortgage loan products 
initially and over their terms are fully, accurately, and effectively 
disclosed to consumers in a manner that permits consumers to understand 
the costs, benefits, and risks associated with the loan products in 
light of the facts and circumstances, and improves consumers' awareness 
and understanding of residential mortgage transactions, which is in the 
interest of consumers and the public. The Bureau seeks comment, 
however, on whether the definition of balloon payment in proposed Sec.  
1026.37(b)(5) should be revised to exclude any particular type of 
payment. Furthermore, the Bureau believes that a payment that is twice 
any one regular periodic payment using the regulatory definition, as 
revised in this proposed rule, would be equal to or less than a payment 
that is twice the average of earlier scheduled payments using the 
statutory definition. The Bureau notes that the range of scheduled 
payment amounts under the first approach is more limited and defined. 
For example, if the regular periodic payment is $200, a payment of 
greater than $400 would constitute a balloon payment. Under the 
statutory definition, however, the threshold amount for a balloon 
payment could be greater than $400 if, for example, the regular 
periodic payments were increased by $100 each year. Under this 
scenario, the amount constituting a ``balloon payment'' could increase 
with the incremental increase of the average of earlier scheduled 
payments. The Bureau believes that under the existing regulatory 
definition, as revised by the proposed rule, consumers would have a 
better understanding of the highest possible regular periodic payment 
in a repayment schedule and may experience less ``payment shock'' as a 
result. Therefore, the Bureau believes that the existing regulatory 
definition may better protect consumers and would be in their interest. 
In addition, the Bureau believes that the definition of ``balloon 
payment'' based on the existing regulatory definition would facilitate 
and simplify compliance by eliminating the need to average earlier 
scheduled payments.
    Proposed comment 37(b)(5)-1 clarifies that the ``regular periodic 
payment'' used to determine whether a payment is a ``balloon payment'' 
for purposes of Sec.  1026.37(b)(5) is the payment of principal and 
interest (or interest only, depending on the loan features) payable 
under the terms of the loan contract for two or more unit periods in 
succession. The comment also clarifies that all regular periodic 
payments during the loan term are used to determine whether a 
particular payment is a balloon payment, regardless of whether the 
regular periodic payments change during the loan term due to rate 
adjustments or other payment changes permitted or required under the 
loan contract (i.e., if the particular payment is more than two times 
any one regular periodic payment during the loan term, it is disclosed 
as a balloon payment under Sec.  1026.37(b)(5) unless the particular 
payment itself is a regular periodic payment). Proposed comment 
37(b)(5)-1.i gives an example of a step-rate mortgage with two 
different regular periodic payment amounts. Proposed comment 37(b)(5)-
1.ii clarifies the definition of ``regular periodic payment'' in the 
context of a loan with an adjustable rate, where, under the terms of 
the loan contract, the regular periodic payments may increase after 
consummation, but the amounts of such payment increases (if any) are 
unknown at the time of consummation. In such instance, the proposed 
comment clarifies that the ``regular periodic payments'' are based on 
the fully-indexed rate, except as otherwise

[[Page 51201]]

determined by any premium or discounted rates, the application of any 
interest rate adjustment caps, or any other known, scheduled rates 
under the terms specified in the loan contract. The proposed comment 
also refers to the analogous guidance provided in current comments 
17(c)(1)-8 and -10, and gives an example of an adjustable rate mortgage 
with two different periodic payment amounts.
    Proposed comment 37(b)(5)-1.iii clarifies that for a loan with a 
negative amortization feature, the ``regular periodic payment'' does 
not take into account the possibility that the consumer may exercise an 
option to make a payment greater than the minimum scheduled periodic 
payment. Proposed comment 37(b)(5)-1.iv clarifies that, for purposes of 
Sec.  1026.37(c), Sec.  1026.37(b)(5) governs the threshold 
determination of whether a loan has a balloon payment feature, but 
Sec.  1026.37(c) governs the disclosure of balloon payments in the 
``Projected Payments'' table under that section.
    The proposed definition of balloon payment in proposed Sec.  
1026.37(b)(5) includes the payments of a single or double payment 
transaction. Proposed comment 37(b)(5)-2 provides clarification 
regarding such single and double-payment transactions, which require a 
single payment due at maturity or only two payments during the loan 
term, and do not require regular periodic payments. A single payment 
transaction does not have regular periodic payments, because regular 
periodic payments must be made two or more unit periods in succession 
(see proposed comment 37(b)(5)-1, described above). And while a loan 
with only two scheduled payments, depending on the circumstances, may 
have regular periodic payments (e.g., if the two payments are made 
during the last month of years one and two of a two-year loan term), 
there is no third payment that could potentially be the balloon payment 
(i.e., a payment that is more than twice the amount of the regular 
periodic payments). The Bureau believes the payments of such 
transactions are essentially equivalent, economically and practically, 
from the perspective of a consumer, to a balloon payment. The comment 
clarifies that notwithstanding the fact that there is no regular 
periodic payment to compare such single or double payments to, any 
payment in a single payment transaction or a transaction with only two 
scheduled payments is a ``balloon payment'' under Sec.  1026.37(b)(5).
    The Bureau is coordinating the definition of ``balloon payment'' in 
proposed Sec.  1026.37(b)(5) with the definitions of ``balloon 
payment'' in the Bureau's other pending rulemakings under the Dodd-
Frank Act concerning ability-to-repay and high-cost mortgages under 
HOEPA. To the extent consistent with consumer protection objectives, 
the Bureau believes that adopting a consistent definition of ``balloon 
payment'' across the Bureau's Dodd-Frank Act rulemakings affecting 
closed-end credit transactions will facilitate compliance, as discussed 
in part II above.
37(b)(6) Increases after Consummation
    TILA section 128(b)(2)(C)(ii) requires, for closed-end credit 
transactions secured by a dwelling in which the interest rate or 
payments may vary, the disclosure of examples of adjustments to the 
regular required payment based on changes in the interest rates, 
including the maximum payment amount of the regular required payments 
based on the maximum interest rate under the contract. TILA section 
128(b)(2)(C)(ii) also requires the Bureau to conduct consumer testing 
so that consumers can easily understand the fact that the initial 
regular payments are for a specific time period and will end on a 
certain date and that payments will subsequently adjust to a 
potentially higher amount. Currently, Regulation Z's disclosures for 
closed-end credit transactions secured by real property or a dwelling 
require information about whether the interest rate, periodic principal 
and interest payment, and loan amount can change. The disclosures are 
given in the interest rate and payment table required by Sec.  
1026.18(s). For federally related mortgage loans, Sec.  1024.7(d) of 
Regulation X requires this information to be disclosed in the summary 
table on page 1 of the GFE, as affirmative or negative answers to the 
questions ``Can your interest rate rise,'' ``Even if you make payments 
on time, can your loan balance rise,'' and ``Even if you make payments 
on time, can your monthly amount owed for principal, interest, and any 
mortgage insurance rise?''
    As discussed above, the Bureau conducted consumer testing of 
prototype mortgage disclosures over ten rounds. During each round of 
testing, consumers placed significant emphasis when evaluating loans on 
whether the loan amount, interest rate, or periodic principal and 
interest payment could increase, the amount and timing of such 
increases, and whether they were scheduled increases or only potential 
increases. Accordingly, the Bureau believes that this information 
should be disclosed so that consumers can easily find and understand 
it.
    The Bureau proposes Sec.  1026.37(b)(6) to require that this 
information be disclosed in the Loan Terms table. Specifically, 
proposed Sec.  1026.37(b)(6) requires disclosure of whether the amounts 
required to be disclosed by proposed Sec.  1026.37(b)(1) through (3) 
may increase. If those amounts may increase, the creditor must also 
disclose, as applicable: (i) The maximum principal balance for the 
transaction and the date when the last payment for which the principal 
balance is permitted to increase will occur; (ii) the frequency of 
interest rate adjustments, the date when the interest rate begins to 
adjust, the maximum interest rate under the terms of the transaction, 
and the first adjustment that could result in the maximum interest 
rate; (iii) the frequency of adjustments to the periodic principal and 
interest payment, the date when the principal and interest payment 
begins to adjust, the maximum principal and interest under the 
transaction, and the first adjustment that can result in the maximum 
principal and interest payment; and (iv) the periods of any features 
that permit the periodic principal and interest payment to adjust 
without an adjustment to the interest rate, such as information about 
interest-only periods. The Bureau also understands from industry 
feedback provided in connection with the Bureau's stakeholder outreach 
that some adjustable rate loans, which may be more prevalent in the 
community bank market, may be structured so that the periodic principal 
and interest payment is fixed and increases in the interest rate 
increase the loan term instead of the payment. Accordingly, the 
information required by proposed Sec.  1026.37(b)(6)(ii) also includes 
a statement of that fact for transactions that contain such a feature.
    The Bureau proposes a format that provides this information as 
affirmative or negative answers to one comprehensive question, ``Can 
this amount increase after closing?'' The answers to this question are 
capitalized and in bold text. In addition, bullet-pointed text 
immediately to the right of these answers provides the maximum amounts, 
frequencies of changes, references to more detailed information 
disclosed elsewhere on the form, and other relevant information. Bold 
text will be used for important information in these statements, to 
enable consumers to see it quickly. Proposed form H-24 in appendix H of 
Regulation Z illustrates the disclosure of such information, including 
the bullet-pointed text required and the portions of such text that are 
to be bolded.
    The Bureau tested prototype versions of this table in its consumer 
testing.

[[Page 51202]]

During testing, consumers were able to understand and use this 
information in the proposed format when evaluating and comparing terms 
of credit. Based on these results, the Bureau believes that this format 
will enable consumers to find the information readily, to use it for 
evaluating and comparing terms of credit, and to understand the 
information.
    Accordingly, pursuant to TILA section 128(b)(2)(C)(ii) and the 
Bureau's authority under TILA section 105(a), RESPA section 19(a), 
Dodd-Frank Act section 1032(a), and Dodd-Frank Act 1405(b), the Bureau 
proposes Sec.  1026.37(b)(6) to require this information in the Loan 
Terms table and in the format required to be used by proposed Sec.  
1026.37(o). The Bureau believes that this disclosure will effectuate 
the purposes of TILA because it will promote the informed use of credit 
and assure a meaningful disclosure to consumers, and thus, will benefit 
consumers and the public. The Bureau believes this information improves 
consumer awareness and understanding of residential mortgage loans and 
is in the interest of consumers and the public, consistent with Dodd-
Frank Act section 1405(b). The Bureau also believes that, consistent 
with Dodd-Frank Act section 1032(a), this requirement may ensure that 
the features of any consumer financial product or service, both 
initially and over the term of the product or service, are fully, 
accurately, and effectively disclosed to consumers in a manner that 
permits consumers to understand the costs, benefits, and risks 
associated with the product or service, in light of the facts and 
circumstances. In addition, like HUD, the Bureau believes this 
information is important to consumer understanding of the transaction 
and as a result, will promote more effective advance disclosure of 
settlement costs and should be provided on the disclosure.
37(b)(7) Details about Prepayment Penalty and Balloon Payment
    Currently, for closed-end credit transactions secured by real 
property or a dwelling, Sec.  1026.18(k) of Regulation Z does not 
require the disclosure of the maximum prepayment penalty that may be 
charged. While Sec.  1026.18(s) currently requires the balloon payment 
that may be charged on a loan to be disclosed, it is not required to be 
disclosed with other key terms of the transaction. For federally 
related mortgage loans, Sec.  1024.7(d) of Regulation X currently 
requires the maximum prepayment penalty and balloon payment in the 
summary table on page 1 of the GFE with the text, ``your maximum 
prepayment penalty is $-- and ``you have a balloon payment of $-- due 
in -- years.''
    Proposed Sec.  1026.37(b)(7) requires the information in proposed 
Sec.  1026.37(b)(4) and (5) to be disclosed as an affirmative or 
negative answer to the question ``Does the loan have these features?'' 
The section also requires disclosure of the maximum prepayment penalty, 
the period in which a prepayment penalty may be imposed, the amounts of 
any balloon payments and the dates of such payments. Like the 
information required to be disclosed by proposed Sec.  1026.37(b)(6), 
the format required for this information by proposed Sec.  1026.37(o) 
emphasizes the maximum amounts by using bold text, to enable consumers 
to find these amounts quickly.
    In the Bureau's consumer testing, consumers were able to use this 
disclosure to determine easily if the loan had a prepayment penalty, 
the maximum amount, and the period during which the penalty applied, 
and the amount and time of a balloon payment. The Bureau's consumer 
testing has indicated that consumers place significant emphasis when 
evaluating loans on the potential for large balloon or prepayment 
penalty amounts.
    The Bureau proposes to use its authority under TILA sections 
105(a), Dodd-Frank Act section 1032(a), and RESPA section 19(a) to 
require disclosure of this information in the Loan Terms table of the 
Loan Estimate. The Bureau believes that placing these details about 
prepayment penalties and balloon payments in the summary table with 
bold text for the maximum amounts allows consumers to find this 
information easily, enabling consumers to understand and evaluate 
loans, promoting meaningful disclosure of credit terms to consumers. 
The Bureau believes that this disclosure will effectuate the purposes 
of TILA because it will promote the informed use of credit and assure a 
meaningful disclosure to consumers, and thus, will benefit consumers 
and the public. In addition, like HUD, the Bureau believes this 
information is important to consumer understanding of the transaction 
and as a result, will promote more effective advance disclosure of 
settlement costs and should be provided on the disclosure. Proposed 
comment 37(b)(7)(i)-1 provides guidance regarding calculating the 
maximum amount of the prepayment penalty.
37(b)(8) Timing
    The Bureau's consumer testing indicated the references to the dates 
required to be disclosed by proposed Sec.  1026.37(b)(6) and (7) are 
easily understood by consumers if disclosed in whole years. The 
prototype mortgage disclosures used at the Bureau's consumer testing 
displayed these dates as years, and consumers were able to understand 
and evaluate the risks posed by these maximum amounts. The Bureau 
believes that this unit of time provides a frame of reference to 
consumers that they use more regularly and that is easier to understand 
than ``payments'' or high-number values of ``months,'' such as 60 
months.
    Accordingly, pursuant to its authority under TILA section 105(a), 
Dodd-Frank section 1032(a), and RESPA section 19(a), proposed Sec.  
1026.37(b)(8) requires the information required to be disclosed by 
paragraphs (b)(6) and (7) to be disclosed by stating the number of the 
year in which the payment or adjustment occurs, counting from the date 
that interest for the regularly scheduled periodic payment begins to 
accrue. Proposed comment 37(b)(8)-1 provides examples of how to 
disclose dates using the timing rules of proposed Sec.  1026.37(b)(8). 
The Bureau believes this disclosure provides a meaningful disclosure of 
credit terms, promotes the informed use of credit by consumers, and may 
ensure that the features of consumer credit transactions secured by 
real property are fully, accurately, and effectively disclosed to 
consumers in a manner that permits consumers to understand the costs, 
benefits, and risks associated with the product or service, in light of 
the facts and circumstances.
37(c) Projected Payments
Statutory Requirements
    TILA section 128(a)(6) requires creditors to disclose the number, 
amount, and due dates or period of payments scheduled to repay the 
total of payments. 15 U.S.C. 1638(a)(6). TILA section 128(b)(2)(C)(ii) 
requires the disclosure of certain payment-related information for 
closed-end variable-rate transactions, or transactions where the 
regular payment may otherwise be variable, that are secured by a 
dwelling, including examples of payments. 15 U.S.C. 1638(b)(2)(C)(ii). 
Specifically, creditors must provide examples of adjustments to the 
regular required payment on the extension of credit based on the change 
in the interest rates specified by the contract for such extension of 
credit. Id. Among the examples required is an example that reflects the 
maximum payment amount

[[Page 51203]]

of the regular required payments on the extension of credit, based on 
the maximum interest rate allowed under the contract. Id. TILA section 
128(b)(2)(C)(i) also provides that these examples must be in 
conspicuous type size and format and that the payment schedule be 
labeled ``Payment Schedule: Payments Will Vary Based on Interest Rate 
Changes.'' Section 128(b)(2)(C)(ii) requires the Bureau to conduct 
consumer testing to determine the appropriate format for providing the 
disclosures to consumers so that the disclosures can be easily 
understood.
    In addition, TILA section 128(a)(16)(A), added to TILA by section 
1419 of the Dodd-Frank Act, provides that, for variable-rate 
residential mortgage loans for which an escrow account will be 
established, the creditor must disclose both the initial monthly 
principal and interest payment, and the initial monthly principal and 
interest payment including any amount deposited in an escrow account 
for the payment of applicable taxes, insurance, and assessments. 15 
U.S.C. 1638(a)(16)(A). New TILA section 128(a)(16)(B) also requires 
that, for variable-rate residential mortgage loans for which an escrow 
account will be established, the creditor disclose the amount of the 
fully-indexed monthly payment due under the loan for the payment of 
principal and interest, and the fully-indexed monthly payment including 
any amount deposited in an escrow account for the payment of applicable 
taxes, insurance, and assessments. 15 U.S.C. 1638(a)(16)(B). TILA 
section 128(b)(4)(A), added by section 1465 of the Dodd-Frank Act, 
provides that, in the case of any consumer credit transaction secured 
by a first mortgage on the principal dwelling of the consumer, other 
than an open-end credit plan or reverse mortgage, for which an escrow 
account has been or will be established, the disclosures required by 
TILA section 128(a)(6) must take into account the amount of any monthly 
payment to such account, in accordance with section 10(a)(2) of 
RESPA.\163\ 15 U.S.C. 1638(b)(4)(A); 12 U.S.C. 2609(a)(2). New TILA 
section 128(b)(4)(B) generally requires creditors to take into account 
the taxable assessed value of the property during the first year after 
consummation, including the value of any improvements constructed or to 
be constructed on the property, if known, and the replacement costs of 
the property for hazard insurance, when disclosing taxes and insurance 
escrows pursuant to TILA section 128(b)(4)(A). 15 U.S.C. 1638(b)(4)(B).
---------------------------------------------------------------------------

    \163\ Section 10(a)(2) of RESPA prohibits the lender, over the 
life of the escrow account, from requiring the borrower to make 
payments to an escrow account that exceed one-twelfth of the total 
annual escrow disbursements that the lender reasonably anticipates 
paying from the escrow account during the year, plus the amount 
necessary to maintain a one-sixth cushion. 12 U.S.C. 2609(a)(2).
---------------------------------------------------------------------------

Current Rules
    Current Sec.  1026.18(s) implements the requirements of TILA 
sections 128(a)(6) and 128(b)(2)(C) for all closed-end transactions 
secured by real property or a dwelling, other than transactions secured 
by the consumer's interest in a timeshare plan described in 11 U.S.C. 
101(53D). Section 1026.18(s) requires creditors to disclose the 
contract interest rate, regular periodic payment, and any balloon 
payment. For adjustable-rate or step-rate amortizing mortgages, the 
creditor must disclose up to three interest rates and corresponding 
periodic payments. If payments are scheduled to increase independent of 
an interest-rate adjustment, the creditor must disclose the increased 
payment. If a borrower may make one or more payments of interest only, 
all payment amounts disclosed must be itemized to show the amount that 
will be applied to interest and the amount that will be applied to 
principal. Current Sec.  1026.18(s) requires special interest rate and 
payment disclosures for loans that permit negative amortization. Also 
under current Sec.  1026.18(s), creditors must separately itemize an 
estimate of the amount for taxes and insurance, including mortgage 
insurance, if the creditor will establish an escrow account for the 
payment of such amounts. The Board adopted this requirement pursuant to 
its authority under TILA section 105(a), based on consumer testing 
which indicated that consumers compare loans based on the monthly 
payment amount and that escrow payment information is necessary for 
consumers to understand the monthly amount they will pay. MDIA Interim 
Rule, 75 FR at 58476-77. Current Sec.  1026.18(s) also requires the 
disclosure of total periodic payments. Creditors must provide the 
information about interest rates and payments in the form of a table, 
and creditors are not permitted to include other, unrelated information 
in the table.
    Current Sec.  1026.18(s) expands the scope of TILA section 
128(b)(2)(C) to all closed-end transactions secured by real property or 
a dwelling, other than transactions secured by the consumer's interest 
in a timeshare plan, including transactions in which the interest rate 
and regular payments do not vary and those that are secured by real 
property that does not include a dwelling. The Board adjusted the scope 
of this provision pursuant to its authority under TILA section 105(a). 
The Board reasoned that providing examples of increased interest rates 
and payments will help consumers understand the risks involved in 
certain loans, and that consistent disclosure requirements for all 
mortgage-secured, closed-end consumer credit transactions, whether or 
not they include a dwelling, would ease compliance burden for mortgage 
creditors. MDIA Interim Rule, 75 FR at 58473-74. The Board also stated 
that applying Sec.  1026.18(s) to transactions where the interest rate 
or regular payments do not vary would simplify compliance for creditors 
and make it easier for consumers to compare different loan products. 
For all other closed-end credit transactions, Sec.  1026.18(g) provides 
the rules for disclosing the payment schedule.
The Bureau's Proposal
    Pursuant to its authority under TILA section 105(a) and Dodd-Frank 
Act sections 1032(a) and 1405(b), the Bureau proposes to incorporate 
the requirements of current Sec.  1026.18(s) into new Sec.  1026.37(c), 
for closed-end mortgages subject to proposed Sec.  1026.19(e), with 
certain adjustments that are outlined below. The Bureau believes that 
these requirements are necessary and proper to effectuate the purposes 
of TILA by promoting the informed use of credit. Accordingly, proposed 
Sec.  1026.37(c) implements the requirements of TILA sections 128(a)(6) 
and 128(b)(2)(C), and also implements the requirements of new TILA 
sections 128(a)(16) and (b)(4), for closed-end mortgages subject to 
proposed Sec.  1026.19(e). For all other closed-end transactions, Sec.  
1026.18(g) and (s) would continue to apply.
    Like existing Sec.  1026.18(s), proposed Sec.  1026.37(c) requires 
creditors to disclose, in a separate table, an itemization of each 
separate periodic payment or range of payments required after 
consummation under the terms of the legal obligation. Proposed Sec.  
1026.37(c) also requires disclosure of an estimate of taxes, insurance, 
and assessments and the payments to be made with escrow account funds. 
Specifically, the table required by proposed Sec.  1026.37(c) must 
contain the projected principal and interest, mortgage insurance, 
estimated escrowed taxes and insurance, estimated total monthly 
payment, and estimated taxes, insurance, and assessment disclosures, 
required by Sec.  1026.37(c)(1) through (4). Pursuant to proposed Sec.  
1026.37(o) and form H-24, the table required by

[[Page 51204]]

proposed Sec.  1026.37(c) will appear on the first page of the Loan 
Estimate. The Bureau proposes that, as under Sec.  1026.18(s), the 
table required by proposed Sec.  1026.37(c) must be disclosed in all 
transactions subject to proposed Sec.  1026.19(e), even in transactions 
where the interest rate will not vary and those that are secured by 
real property that does not include a dwelling. Unlike current Sec.  
1026.18(s), the projected payment table required by proposed Sec.  
1026.37(c) applies to transactions secured by the consumer's interest 
in a timeshare plan but does not apply to transactions secured by a 
dwelling that is not real property, for the reasons discussed in the 
section-by-section analysis to proposed Sec.  1026.19.
    The Bureau proposes to exercise its authority under TILA section 
105(a), Dodd-Frank Act 1032(a), and, for residential mortgage loans, 
Dodd-Frank Act section 1405(b) to require the information disclosed 
pursuant to proposed Sec.  1026.37(c) to appear under the heading 
``Projected Payments.'' As discussed above, TILA section 
128(b)(2)(C)(i) requires the payment schedule to be labeled ``Payment 
Schedule: Payments Will Vary Based on Interest Rate.'' The Bureau 
believes that ``Projected Payments'' conveys the same substantive 
meaning, in plainer and simpler language, and is a more accurate 
heading for the table required by proposed Sec.  1026.37(c) since 
payment amounts may vary for reasons other than interest rate, such as 
in graduated-payment plans or the termination of mortgage insurance 
under applicable law. The heading also performed well in consumer 
testing. Using the table under the heading ``Projected Payments,'' 
participants in the Bureau's consumer testing were able to readily 
identify that their monthly payments might change in the future. 
Furthermore, the Bureau believes that the Loan Terms table required by 
proposed Sec.  1026.37(b) effectively discloses when payments and 
interest rate will vary, and that consumers will not benefit from 
disclosure of that information in multiple places on the disclosure. 
Accordingly, this proposed adjustment promotes the informed use of 
credit, improves consumer awareness and understanding of transactions 
involving residential mortgage loans, and is in the interest of 
consumers and the public, consistent with the purpose of TILA and with 
Dodd-Frank Act section 1405(b). In addition, the Bureau believes that 
this disclosure would ensure that the features of consumer credit 
transactions secured by real property are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to understand the costs, benefits, and risks associated with the 
product or service, in light of the facts and circumstances, consistent 
with section 1032(a) of the Dodd-Frank Act.
    Proposed comment 37(c)-1 provides that, for purposes of proposed 
Sec.  1026.37(c), the terms ``adjustable rate,'' ``fixed rate,'' 
``negative amortization,'' and ``interest-only'' have the meanings 
prescribed in Sec.  1026.37(a)(10).
37(c)(1) Periodic Payment or Range of Payments
37(c)(1)(i)
    Proposed Sec.  1026.37(c)(1)(i) provides rules regarding the 
separate periodic payments or ranges of payments to be disclosed on the 
table required by Sec.  1026.37(c). Specifically, proposed Sec.  
1026.37(c)(1)(i) provides that the initial periodic payment or range of 
payments is a separate periodic payment or range of payments and, 
except as otherwise provided in Sec.  1026.37(c)(1)(ii), the following 
events require the disclosure of additional separate periodic payments 
or ranges of payments: (A) periodic principal and interest payment or 
range of such payments may change; (B) a scheduled balloon payment; and 
(C) the creditor must automatically terminate mortgage insurance 
coverage, or any functional equivalent, under applicable law.
    Proposed comments 37(c)(1)(i)-1, 37(c)(1)(i)(A)-1 through -3, 
37(c)(1)(i)(B)-1, and 37(c)(1)(i)(C)-1 through -3 provide guidance to 
creditors on the events requiring the disclosure of a separate periodic 
payment or range of payments. Proposed comment 37(c)(1)(i)-1 clarifies 
that, for purposes of Sec.  1026.37(c)(1)(i), the periodic payment is 
the regularly scheduled payment of principal and interest, mortgage 
insurance, and escrow payments described in Sec.  1026.37(c)(2) without 
regard to any final payment that differs from other payments because of 
rounding to account for payment amounts including fractions of cents. 
Proposed comment 37(c)(1)(i)(A)-1 provides that periodic principal and 
interest payments may change when the interest rate, applicable 
interest rate caps, required periodic principal and interest payments, 
or ranges of such payments may change. Minor payment variations 
resulting solely from the fact that months have different numbers of 
days are not changes to periodic principal and interest payments. For a 
loan that permits negative amortization, proposed comment 
37(c)(1)(i)(A)-2 clarifies that periodic principal and interest 
payments may change at the time of a scheduled recast of the mortgage 
loan and when the consumer must begin making fully amortizing payments 
of principal and interest. The comment also provides that the 
disclosure should be based on the assumption that the consumer will 
make only the minimum payment required under the terms of the legal 
obligation, for the maximum amount of time permitted, taking into 
account changes to interest rates that may occur under the terms of the 
legal obligation, and that the table required by Sec.  1026.37(c) 
should reflect any balloon payment that would result from making the 
minimum payment required under the terms of the legal obligation. In a 
loan that permits payment of only interest for a specified period, 
proposed comment 37(c)(1)(i)(A)-3 clarifies that periodic principal and 
interest payments may change for purposes of Sec.  1026.37(c)(1)(i)(A) 
when the consumer must begin making fully amortizing periodic payments 
of principal and interest.
    Proposed comment 37(c)(1)(i)(B)-1 states that, for purposes of 
Sec.  1026.37(c)(1)(i)(B), whether a balloon payment occurs is 
determined pursuant to Sec.  1026.37(b)(5) and its commentary. Although 
the existence of a balloon payment is determined pursuant to Sec.  
1026.37(b)(5) and its commentary, balloon payment amounts to be 
disclosed under Sec.  1026.37(c) are calculated in the same manner as 
periodic principal and interest payments under Sec.  1026.37(c). For 
example, for a balloon payment amount that can change depending on 
previous interest rate adjustments that are based on the value of an 
index at the time of the adjustment, the balloon payment amounts are 
calculated using the assumptions for minimum and maximum interest rates 
described in Sec.  1026.37(c)(1)(iii) and its commentary, and should be 
disclosed as a range of payments.
    Proposed comments 37(c)(1)(i)(C)-1 through -3 provide guidance to 
creditors regarding the disclosure of mortgage insurance. Proposed 
comment 37(c)(1)(i)(C)-1 states that ``mortgage insurance'' means 
insurance against the nonpayment of, or default on, an individual 
mortgage, and that, for purposes of proposed Sec.  1026.37(c), 
``mortgage insurance or any functional equivalent'' includes any 
mortgage guarantee that provides coverage similar to mortgage insurance 
(such as a United States Department of Veterans Affairs or United 
States Department of Agriculture guarantee), even if not technically 
considered insurance under State or other applicable law. The Bureau

[[Page 51205]]

understands that some governmental loan programs impose an annual 
guarantee fee, and that creditors typically collect a monthly escrow 
for the payment of such amounts. Current Sec.  1026.18(s) requires 
creditors to disclose whether mortgage insurance is included in monthly 
escrow payments, but industry uncertainty exists as to whether it is 
permissible to identify such guarantees as mortgage insurance on the 
disclosure required by Sec.  1026.18(s). Although the Bureau recognizes 
that such guarantees are legally distinguishable from mortgage 
insurance, they are functionally very similar. Accordingly, proposed 
comment 37(c)(1)(i)(C)-1 clarifies that creditors should disclose any 
mortgage guarantee that provides coverage similar to mortgage 
insurance, even if not considered insurance under State or other 
applicable law, as mortgage insurance on the disclosure required by 
Sec.  1026.37(c). Proposed comment 37(c)(1)(i)(C)-1 is consistent with 
the treatment of mortgage guarantee fees under proposed comment 
18(s)(3)(i)(C)-2.
    Proposed comment 37(c)(1)(i)(C)-2 gives guidance to creditors on 
the calculation and termination of mortgage insurance premiums by 
providing that, for purposes of proposed Sec.  1026.37(c)(1)(i)(C), 
mortgage insurance premiums should be calculated based on the declining 
principal balance that will occur as a result of changes to the 
interest rate and payment amounts, assuming the fully-indexed rate at 
consummation, taking into account any introductory rates. Finally, 
proposed comment 37(c)(1)(i)(C)-3 clarifies that the table required by 
proposed Sec.  1026.37(c) reflects the consumer's mortgage insurance 
payments until the date on which the creditor must automatically 
terminate coverage under applicable law, even though the consumer may 
have a right to request that the insurance be cancelled earlier. Unlike 
termination of mortgage insurance, a subsequent decline in the 
consumer's mortgage insurance premiums is not, by itself, an event that 
requires the disclosure of additional separate periodic payments or 
ranges of payments in the table required by Sec.  1026.37(c). For 
example, some mortgage insurance programs annually adjust premiums 
based on the declining loan balance. Such annual adjustment to the 
amount of premiums would not require a separate disclosure of a 
periodic payment or range payments.
37(c)(1)(ii)
    Proposed Sec.  1026.37(c)(1)(ii) contains special rules for the 
disclosure of separate periodic payments or ranges of payments 
described in Sec.  1026.37(c)(1)(i). Specifically, proposed Sec.  
1026.37(c)(1)(ii) provides that the table required by Sec.  1026.37(c) 
shall not disclose more than four separate periodic payments or ranges 
of payments. For all events requiring disclosure of additional separate 
periodic payments or ranges of payments described in Sec.  
1026.37(c)(1)(i) after the second to occur, the separate periodic 
payments or ranges of payments shall be disclosed as a single range of 
payments, subject to the special rules listed in proposed Sec.  
1026.37(c)(1)(ii)(A) through (C).
    Proposed Sec.  1026.37(c)(1)(ii)(A) contains a special rule for 
final balloon payments. That section would require that a final balloon 
payment shall always be disclosed as a separate periodic payment or 
range of payments and that, if a final balloon payment is disclosed, no 
more than three other separate periodic payments or ranges of payments 
are disclosed. Proposed comment 37(c)(1)(ii)(A)-1 clarifies that Sec.  
1026.37(c)(1)(ii)(A) is an exception to the general rule in Sec.  
1026.37(c)(1)(ii), and requires that a balloon payment that is 
scheduled as a final payment under the terms of the legal obligation is 
always disclosed as a separate periodic payment or range of payments. 
Balloon payments that are not final payments, such as a balloon payment 
due at the scheduled recast of a loan that permits negative 
amortization, are disclosed pursuant to the general rule in Sec.  
1026.37(c)(1)(ii). Proposed Sec.  1026.37(c)(1)(ii)(B) provides a 
special rule for disclosure of mortgage insurance premiums, requiring 
that the automatic termination of mortgage insurance, or any functional 
equivalent, under applicable law shall be disclosed as a separate 
periodic payment or range of payments only if the total number of 
events that require disclosure of additional separate periodic payments 
or ranges of payments described in Sec.  1026.37(c)(1)(i), other than 
the termination of mortgage insurance or any functional equivalent, 
does not exceed two.
    Finally, proposed Sec.  1026.37(c)(1)(ii)(C) provides a special 
rule for events that require additional separate periodic payments or 
ranges of payments that occur during the same year. Under proposed 
Sec.  1026.37(c)(1)(ii)(C), if changes to periodic principal and 
interest payments described in Sec.  1026.37(c)(1)(i)(A) would require 
more than one separate disclosure during a single year, such periodic 
payments must be disclosed as a single range of payments.
37(c)(1)(iii)
    Proposed Sec.  1026.37(c)(1)(iii) provides rules for the disclosure 
of ranges of payments. A range of payments is disclosed when the 
periodic principal and interest payment may adjust based on index rates 
at the time an interest rate adjustment may occur or multiple events 
are combined in a range of payments pursuant to proposed Sec.  
1026.37(c)(1)(ii). When a range of payments is required, the creditor 
must disclose the minimum and maximum possible payment amount for both 
the principal and interest payment under proposed Sec.  
1026.37(c)(2)(i) and the total periodic payment under proposed Sec.  
1026.37(c)(2)(iv). In the case of an interest rate adjustment, the 
maximum payment amounts are determined by assuming that the interest 
rate in effect throughout the loan term is the maximum possible 
interest, and the minimum payment amounts are determined by assuming 
that the interest rate in effect throughout the loan term is the 
minimum possible interest rate.
    Proposed comment 37(c)(1)(iii)-1 clarifies that a range of payments 
must be disclosed when the periodic principal and interest payments are 
not known at the time the disclosure is provided because they are 
subject to changes based on index rates at the time of an interest rate 
adjustment or when multiple events are disclosed as a range of payments 
pursuant to Sec.  1026.37(c)(1)(ii). For such transactions, proposed 
Sec.  1026.37(c)(3)(iii) requires the creditor to disclose both the 
minimum and maximum periodic principal and interest payments, expressed 
as a range. In disclosing the maximum possible interest rate for 
purposes of Sec.  1026.37(c), the creditor assumes that the interest 
rate will rise as rapidly as possible after consummation, taking into 
account the terms of the legal obligation, including any applicable 
caps on interest rate adjustments and lifetime interest rate cap. For a 
loan with no lifetime interest rate cap, the maximum rate is determined 
by reference to other applicable laws, such as State usury law. In 
disclosing the minimum possible interest rate for purposes of Sec.  
1026.37(c), the creditor assumes that the interest rate will decrease 
as rapidly possible after consummation, taking into account any 
introductory rates, caps on interest rate adjustments, and lifetime 
interest rate floor. For an adjustable rate mortgage based on an index 
that has no lifetime interest rate floor, the minimum interest rate is 
equal to the margin. Proposed comment

[[Page 51206]]

37(c)(1)(iii)-2 clarifies that, when a range of payments is required, 
the amount required to be disclosed for mortgage insurance premiums 
pursuant to Sec.  1026.37(c)(2)(ii) and the amount payable into escrow 
pursuant to Sec.  1026.37(c)(2)(iii) shall not be disclosed as a range. 
Proposed comment 37(c)(1)(iii)-3 provides guidance to creditors on the 
disclosure of ranges of payments in adjustable rate mortgages.
37(c)(2) Itemization
    Proposed Sec.  1026.37(c)(2) requires that each separate periodic 
payment or range of payments included in the table required by proposed 
Sec.  1026.37(c) must be itemized to include the following: (1) The 
amount payable for principal and interest, labeled as ``Principal & 
Interest,'' including the term ``only interest'' if the payment or 
range of payments includes any interest-only payment; (2) the maximum 
amount payable for mortgage insurance premiums corresponding to the 
principal and interest payment disclosed pursuant to Sec.  
1026.37(c)(2)(i), labeled ``Mortgage Insurance''; (3) the amount 
payable into an escrow account to pay for some or all of the charges 
described in Sec.  1026.37(c)(4)(ii)(A) through (E), labeled 
``Estimated Escrow,'' including a statement that the amount disclosed 
can increase over time; and (4) the total periodic payment, calculated 
as the sum of the amounts disclosed pursuant to Sec.  1026.37(c)(2)(i) 
through (iii), labeled ``Total Monthly Payment.'' As discussed in the 
Kleimann Testing Report, the Bureau's consumer testing indicates that 
consumers understand the table and can identify the components of their 
total monthly payment using this itemization of payments.
    Proposed comment 37(c)(2)(ii)-1 clarifies that mortgage insurance 
payments should be reflected on the disclosure required by Sec.  
1026.37(c) even if no escrow account is established for the payment of 
mortgage insurance premiums. If the consumer is not required to 
purchase mortgage insurance, the creditor discloses the mortgage 
insurance premium as ``0''. Proposed comment 37(c)(2)(ii)-2 clarifies 
that the creditor must disclose mortgage insurance pursuant to Sec.  
1026.37(c)(2)(ii) on the same periodic basis that payments for 
principal and interest are disclosed pursuant to Sec.  
1026.37(c)(2)(i), even if mortgage insurance premiums are actually paid 
on some other periodic basis.
    The Bureau proposes to require creditors to disclose the amount of 
estimated escrow payments pursuant to its authority under TILA sections 
128(a)(16), 128(b)(4)(A), and 105(a), Dodd-Frank Act section 1032(a), 
and, for residential mortgage loans, Dodd-Frank Act section 1405(b). As 
discussed above, TILA section 128(a)(16) requires that, for variable-
rate residential mortgage loans for which an escrow account will be 
established, the creditor must disclose the initial total monthly 
payment, including escrow payments for taxes and insurance. The Bureau 
proposes to modify this requirement to cover all transactions subject 
to proposed Sec.  1026.19(e) for which an escrow account will be 
established, including fixed-rate loans. Additionally, TILA section 
128(b)(4)(A) requires that, for any consumer credit transaction secured 
by a first lien on the principal dwelling of the consumer for which an 
escrow account will be established, the creditor must take into account 
escrow payments when making the disclosures required by TILA section 
128(a)(6). The Bureau also proposes to modify the scope of this 
requirement to cover all transactions subject to proposed Sec.  
1026.19(e) for which an escrow account will be established, pursuant to 
its authority under TILA sections 128(a)(16), 128(b)(4)(A), and 105(a), 
Dodd-Frank Act section 1032(a), and, for residential mortgage loans, 
Dodd-Frank Act section 1405(b). These modifications are consistent with 
the purposes of TILA, as they may promote the informed use of credit by 
allowing consumers to more readily compare loans. Further, applying a 
single disclosure rule to all transactions subject to proposed Sec.  
1026.19(e) may ease compliance burden for creditors. Accordingly, these 
modifications will improve consumer awareness and understanding of 
residential mortgage loans and are in the interest of consumers and the 
public, consistent with Dodd-Frank Act section 1405(b). In addition, 
consistent with section 1032(a) of the Dodd-Frank Act, this disclosure 
would ensure that the features of consumer credit transactions secured 
by real property are fully, accurately, and effectively disclosed to 
consumers in a manner that permits consumers to understand the costs, 
benefits, and risks associated with the product or service, in light of 
the facts and circumstances.
    Further, the Bureau proposes to require creditors to disclose the 
maximum periodic payment for mortgage insurance premiums corresponding 
to the periodic principal and interest payment disclosed pursuant to 
Sec.  1026.37(c)(2)(i), separately from other escrowed amounts, 
pursuant to its authority under TILA section 105(a), Dodd-Frank Act 
section 1032(a), and, for residential mortgage loans, Dodd-Frank Act 
section 1405(b), even if no escrow account is established for the 
payment of such amounts. Current Sec.  1026.18(s) requires creditors to 
include mortgage insurance in the disclosure of the amounts required to 
be paid into escrow. However, Sec.  1026.18(s) does not require 
creditors to separately disclose payments for mortgage insurance. The 
Bureau believes that consumers would benefit from disclosure of the 
periodic amount of mortgage insurance payments required by the 
creditor, and believes that consumers would benefit from the disclosure 
of any required mortgage insurance payments even if no escrow account 
for the payment of such amounts will be established. Requiring such 
disclosure in all cases may facilitate comparison between loans and 
improve overall understanding of credit terms. Accordingly, the Bureau 
believes this requirement promotes the informed use of credit, will 
improve consumer awareness and understanding of transactions involving 
residential mortgage loans, and is in the interest of consumers and the 
public, consistent with the purpose of TILA and with Dodd-Frank Act 
section 1405(b). Further, consistent with section 1032(a) of the Dodd-
Frank Act, this disclosure would ensure that the features of consumer 
credit transactions secured by real property are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to understand the costs, benefits, and risks associated with the 
product or service, in light of the facts and circumstances.
    In addition, the Bureau understands that some mortgage insurance 
plans are structured such that periodic mortgage insurance payments 
decrease over time. Accordingly, the Bureau proposes to require 
creditors to disclose the maximum amount payable for mortgage insurance 
premiums, or any functional equivalent, corresponding to the periodic 
principal and interest payment disclosed pursuant to Sec.  
1026.37(c)(2)(i). The Bureau believes this disclosure will enhance 
consumer understanding of and facilitate comparison between loans by 
more accurately reflecting the amount of mortgage insurance payments 
over time.
    Proposed comment 37(c)(2)(iii)-1 clarifies that the disclosure of 
taxes and insurance described in Sec.  1026.37(c)(2)(iii) is required 
only if the creditor will establish an escrow account for the payment 
of the amounts described in Sec.  1026.37(c)(4)(ii)(A) through (E), 
consistent with TILA

[[Page 51207]]

section 128(b)(4)(A) and current Sec.  1026.18(s).
37(c)(3) Subheadings
    Proposed Sec.  1026.37(c)(3)(i) provides that the labels required 
pursuant to Sec.  1026.37(c)(2) must be listed under the subheading 
``Payment Calculation.'' Proposed Sec.  1026.37(c)(3)(ii) provides that 
each separate, itemized periodic payment or range of payments to be 
disclosed under Sec.  1026.37(c) must be disclosed under a subheading 
that states the number of years of the loan during which that payment 
or range of payments will apply. The subheadings must be stated in a 
sequence of whole years from the date that the first such payment is 
due. Proposed comment 37(c)(3)(ii)-1 provides additional guidance on 
the disclosure of the number of years of the loan during which the 
payment or range of payments will apply, and proposed comment 
37(c)(3)(ii)-2 provides guidance on disclosure of the years of the loan 
for transactions with variable terms, such as transactions where the 
loan term may increase based on an adjustment of the interest rate.
37(c)(4) Taxes, Insurance, and Assessments
    As discussed above, the Bureau is proposing to require creditors in 
transactions subject to proposed Sec.  1026.19(e) to disclose estimated 
payments to escrow accounts pursuant to its authority under TILA 
sections 128(a)(16), 128(b)(4)(A), and 105(a), Dodd-Frank Act section 
1032(a), and, for residential mortgage loans, Dodd-Frank Act section 
1405(b). The Bureau also proposes Sec.  1026.37(c)(4) pursuant to this 
authority. Proposed Sec.  1026.37(c)(4)(i) provides that creditors must 
disclose the label ``Estimated Taxes, Insurance & Assessments.'' 
Proposed Sec.  1026.37(c)(4)(ii) requires creditors to disclose the sum 
of property taxes, mortgage-related insurance premiums required by the 
creditor other than amounts payable for mortgage insurance premiums, 
homeowner's association, condominium or cooperative fees, ground rent 
or leasehold payments, and special assessments, as applicable, 
expressed as a monthly amount. The creditor must disclose this amount 
even if no escrow account for the payment of some or any such charges 
will be established. Proposed comments 37(c)(4)(ii)-1 and -2 provide 
guidance to creditors on the meaning of mortgage-related insurance 
premiums and special assessments.
    Proposed Sec.  1026.37(c)(4)(iii) requires creditors to state that 
the amount disclosed pursuant to Sec.  1026.37(c)(4)(ii) can increase 
over time. Proposed Sec.  1026.37(c)(4)(iv) requires creditors to state 
whether the amount disclosed pursuant to Sec.  1026.37(c)(4)(ii) 
includes payments for property taxes, hazard insurance, and other 
amounts described in Sec.  1026.37(c)(4)(ii), along with a description 
of any such amounts, and an indication of whether such amounts will be 
paid by the creditor using escrow account funds. Proposed Sec.  
1026.37(c)(4)(v) requires creditors to provide a statement that the 
consumer must pay separately any amounts described in Sec.  
1026.37(c)(4)(ii) that are not paid by the creditor using escrow funds. 
Finally, proposed Sec.  1026.37(c)(4)(vi) requires creditors to provide 
a reference to the information disclosed pursuant to Sec.  
1026.37(g)(3).
    Under proposed Sec.  1026.37(c)(4), the disclosure of estimated 
taxes, insurance, and assessments is required even where no escrow 
account will be established for the payment some or any such amounts. 
The Bureau proposes this requirement pursuant to its authority under 
TILA section 105(a), Dodd-Frank Act section 1032(a), and, for 
residential mortgage loans, Dodd-Frank Act section 1405(b). As 
discussed in the Kleimann Testing Report, consumer testing indicates 
that consumers view the total monthly payment amount as a key piece of 
information and look for this amount when shopping for mortgages. Even 
when no escrow account is established for the payment of taxes and 
insurance, this is an important measure of the consumer's ability to 
afford the transaction. For this reason, the Bureau believes that 
consumers would benefit from the disclosure of the amounts that will 
required to be paid for taxes, insurance, and assessments, even if no 
escrow account will be established for the payment of such amounts. 
Absent such a disclosure, consumers may not fully comprehend the cost 
of their home loan on a periodic basis, and may not be as readily able 
to compare credit terms and make an informed decision about whether to 
proceed with the transaction. Accordingly, the Bureau believes this 
modification is consistent with the purpose of TILA to promote the 
informed use of credit, and will improve consumer awareness and 
understanding of residential mortgage loans and is in the interest of 
consumers and the public, consistent with Dodd-Frank Act section 
1405(b). In addition, consistent with section 1032(a) of the Dodd-Frank 
Act, this disclosure would ensure that the features of consumer credit 
transactions secured by real property are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to understand the costs, benefits, and risks associated with the 
product or service, in light of the facts and circumstances.
37(c)(5) Calculation of Taxes and Insurance
    As previously discussed, section 1465 of the Dodd-Frank Act added 
to TILA new section 128(b)(4)(A), which provides that, in the case of 
any consumer credit transaction secured by a first mortgage on the 
principal dwelling of the consumer, other than an open-end credit plan 
or reverse mortgage, for which an escrow account has been or will be 
established in connection with the transaction for the payment of 
property taxes, homeowner's (also referred to and including hazard) and 
flood insurance premiums, as applicable, or other periodic payments 
with respect to the property, the disclosures required by TILA section 
128(a)(6) must take into account the amount of any monthly payment to 
such account, in accordance with section 10(a)(2) of RESPA. In 
addition, new TILA section 128(b)(4)(B) requires that the amount taken 
into account under TILA section 128(b)(4)(A) for the payment of 
property taxes, hazard or flood insurance premiums, or other periodic 
payments or premiums with respect to the property shall reflect the 
taxable assessed value of the real property securing the transaction 
after consummation of the transaction. That amount must include the 
value of any improvements on the property or to be constructed on the 
property, if known, even if such construction costs are not financed 
from the proceeds of the transaction, and the replacement costs of the 
property for hazard insurance, in the initial year after the 
transaction.
    Pursuant to the Bureau's implementation authority under TILA 
section 105(a), proposed Sec.  1026.37(c)(5) implements this 
requirement for transactions subject to Sec.  1026.19(e) and requires 
that the estimated escrow and estimated taxes, insurance, and 
assessments disclosures required pursuant to Sec.  1026.37(c)(2)(iii) 
and (4)(ii), respectively, reflect (1) the taxable assessed value of 
the real property securing the transaction after consummation, 
including the value of any improvements on the property or to be 
constructed on the property, whether or not such construction will be 
financed from the proceeds of the transaction, if known, for property 
taxes; and (2) the replacement costs of the property during the initial 
year after the transaction, for hazard and flood insurance.

[[Page 51208]]

    Pursuant to its authority under TILA section 105(a) and Dodd-Frank 
Act sections 1032(a) and 1405(b), the Bureau proposes to expand the 
requirements of TILA section 128(b)(4)(A) and (B) to cover all 
transactions subject to proposed Sec.  1026.19(e), including 
transactions where no escrow account will be established for the 
payment of property taxes or hazard insurance, transactions that are 
secured by real property that does not include the principal dwelling 
of the consumer, and transactions secured by subordinate liens. These 
modifications appear to be consistent with the purposes of TILA, as 
they may promote the informed use of credit by allowing consumers to 
more readily compare loans. Further, applying a single disclosure rule 
to all transactions subject to proposed Sec.  1026.19(e) may ease 
compliance burden for creditors. Accordingly, these modifications will 
improve consumer awareness and understanding of residential mortgage 
loans and are in the interest of consumers and the public, consistent 
with Dodd-Frank Act section 1405(b). In addition, consistent with 
section 1032(a) of the Dodd-Frank Act, the proposed disclosure would 
ensure that the features of consumer credit transactions secured by 
real property are fully, accurately, and effectively disclosed to 
consumers in a manner that permits consumers to understand the costs, 
benefits, and risks associated with the product or service, in light of 
the facts and circumstances.
37(d) Cash to Close
    Pursuant to its authority under TILA section 105(a) and Dodd-Frank 
section 1032(a), the Bureau proposes to require creditors to provide 
the estimated total closing costs imposed upon the consumer and the 
estimated amount of cash needed at consummation from the consumer. This 
disclosure will effectuate the purposes of TILA by promoting the 
informed use of credit and will ensure the features of the mortgage 
transaction are fully, accurately and effectively disclosed to 
consumers in a manner that permits consumers to understand the costs, 
benefits, and risks associated with the mortgage transaction, in light 
of the facts and circumstances, because it will indicate to the 
consumer the amount the consumer will have to pay at consummation of 
the credit transaction and closing of the real estate transaction. 
Accordingly, proposed Sec.  1026.37(d) requires the disclosure of an 
estimate of the cash needed from the consumer at consummation of the 
transaction, with a breakdown of the amounts of loan costs and other 
costs associated with the transaction.
    Under Sec.  1026.37(d)(1), the dollar amount due from the consumer 
is the same amount as calculated in accordance with proposed Sec.  
1026.37(h)(4) and is disclosed under the heading of ``Cash to Close'' 
and labeled ``Estimated Cash to Close.'' The total dollar amount of the 
loan costs to be paid by the consumer at closing as calculated under 
proposed Sec.  1026.37(f)(4) is disclosed under proposed Sec.  
1026.37(d)(2). The total dollar amount of the other costs to be paid by 
the consumer at closing as calculated under proposed Sec.  
1026.37(g)(5) is disclosed under proposed Sec.  1026.37(d)(3). The 
amount of lender credits disclosed under Sec.  1026.37(g)(6)(ii) is 
disclosed under Sec.  1026.37(d)(4). The sum of the amounts disclosed 
under proposed Sec.  1026.37(d)(2), through 1026.37(d)(4) is disclosed 
with a description of ``Closing Costs'' under Sec.  1026.37(d)(5). A 
statement directing the consumer to refer to the location of the Loan 
Estimate that contains the tables required under Sec.  1026.37(f) and 
(g) is required under Sec.  1026.37(d)(6).
37(e) Web Site Reference
    Appendix C to Regulation X includes a statement in the RESPA GFE 
that directs consumers to HUD's Web site and other sources of 
additional information, stating the following, ``For more information, 
see HUD's Special Information Booklet on settlement charges, your 
Truth-in-Lending Disclosures, and other consumer information at 
www.hud.gov/respa.'' Regulation Z does not contain a similar provision. 
The Bureau proposes to use its authority under TILA section 105(a), 
RESPA section 19(a), and Dodd-Frank Act section 1032(a) to require 
disclosure of the Bureau's Web site in proposed Sec.  1026.37(e). The 
Bureau believes that a disclosure in the Loan Estimate directing 
consumers to additional information and tools on its Web site may help 
consumers understand the mortgage process and the various loan products 
in the market, and consequently better understand their loan 
transaction and make informed decisions about whether to enter into a 
loan transaction or which loan product best meets their needs. 
Accordingly, this disclosure will effectuate the purposes of TILA and 
RESPA by promoting the informed use of credit and more effective 
advance notice of settlement costs, consistent with TILA section 105(a) 
and RESPA section 19(a), and will ensure that the features of the 
mortgage transactions are fully, accurately, and effectively disclosed 
to consumers in a manner that permits consumers to better understand 
the costs, benefits, and risks associated with mortgage transactions, 
in light of the facts and circumstances, consistent with Dodd-Frank Act 
section 1032(a).
    Therefore, proposed Sec.  1026.37(e) requires creditors to include 
a statement notifying the consumer that additional information and 
tools regarding mortgage loans may be found at the Bureau's Web site. 
Proposed Sec.  1026.37(e) also requires a reference to the link/uniform 
resource locator (URL) address for the Bureau's Web site.
37(f) Closing Cost Details; Loan Costs
    Under section 5(c) of RESPA creditors must provide mortgage loan 
applicants with a good faith estimate of the amount or range of charges 
for specific settlement services the applicant is likely to incur in 
connection with the consummation of the loan. 12 U.S.C. 2604(c). 
Section 1024.7 of Regulation X implements this mandate by requiring 
creditors and mortgage brokers to provide the RESPA GFE, which must be 
completed in accordance with the instructions in appendix C to 
Regulation X. Appendix C sets out specific instructions for the 
information that must be disclosed on the RESPA GFE, including the loan 
costs that must be included and how to identify those costs on the 
disclosure.
    As discussed above, Dodd-Frank Act section 1032(f) requires the 
Bureau to combine these RESPA disclosures with the disclosures required 
by TILA. In addition to existing TILA disclosure requirements, section 
1419 of the Dodd-Frank Act amended TILA section 128(a) to require, in 
the case of a residential mortgage loan, disclosure of the aggregate 
amount of settlement charges for all settlement services provided in 
connection with the loan and the aggregate amount of other fees or 
required payments in connection with the loan. 15 U.S.C. 1638(a)(17).
    Pursuant to its authority under TILA section 105(a), RESPA section 
19(a), and Dodd-Frank Act sections 1032(f) and, for residential 
mortgage loans, 1405(b), the Bureau proposes to require creditors to 
provide the loan costs and other costs imposed upon the consumer in 
tables as part of the integrated Loan Estimate. Proposed Sec.  
1026.37(f) and (g) implement these early disclosure requirements of 
TILA and RESPA by setting out details relating to the costs for 
consummating the mortgage loan, including loan costs and other costs. 
Based on its consumer testing, the Bureau believes that early 
disclosure of estimated loan costs and other costs, as set forth in 
proposed

[[Page 51209]]

Sec.  1026.37(f) and (g), will improve consumer understanding of the 
credit and property transactions. The Bureau believes that these 
disclosures will effectuate the purpose of TILA by promoting the 
informed use of credit and assuring a meaningful disclosure to 
consumers. The Bureau believes that the disclosures will also satisfy 
the RESPA requirement to provide a consumer with a good faith estimate 
of the amount or range of charges for specific settlement services the 
consumer is likely to incur in connection with the closing. In 
addition, these disclosures will ensure that the features of the 
mortgage transactions are fully, accurately, and effectively disclosed 
to consumers in a manner that permits consumers to understand the 
costs, benefits, and risks associated with the mortgage transaction, in 
light of the facts and circumstances, consistent with Dodd-Frank Act 
section 1032(a).
    In particular, proposed Sec.  1026.37(f) requires the creditor to 
itemize, as ``Loan Costs,'' its fees and other charges to the consumer 
for extending the credit or that compensate a mortgage broker for 
originating the transaction. The creditor must disclose the individual 
itemized charges, along with subtotals for prescribed categories of 
those itemized charges, and the total of all such itemized charges. In 
general, these charges are currently required to be disclosed--as 
itemized or aggregate charges and amounts--on the RESPA GFE, the RESPA 
settlement statement, or both.\164\
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    \164\ On June 20, 2012, HUD's Office of Policy Development and 
Research and the Urban Institute released a study entitled ``What 
Explains Variation in Title Charges? A Study of Five Large 
Markets,'' https://www.huduser.org/portal/publications/hsgfin/title_charges_2012.html, based on HUD-1 settlement statements of FHA 
loans from 2001. See p. 13. The study discusses, among other things, 
that an observed positive association between the number of items 
listed and net service fees was statistically significant after 
taking home prices into account. See p. 29. However, the report 
could not determine whether this indicates additional value to the 
consumer or additional costs to the settlement agent due to 
limitations of the data. Id. The study states that ``there is no way 
to ascertain from the data whether an itemized cost is an attempt to 
confuse consumers or the provision of an additional, valuable 
service that the homebuyer is willing to pay for. Both 
interpretations are plausible.'' Id. Under this proposal, 
itemization is permitted on the Loan Estimate, but highly visible 
subtotals in gray shading and bold font are displayed above the 
itemized charges for specific categories of costs. Based on its 
consumer testing, the Bureau believes the highly visible subtotals, 
along with the highly visible ``Services You Can Shop For'' 
subcategory of Closing Costs on the Loan Estimate, will inform 
consumers that they can shop for their own service providers and 
provide them with, along with the itemization, readily comparable 
cost categories to shop between creditors and service providers. 
Such shopping for settlement service providers, according to the 
study, could provide ``significant benefits to consumers.'' See p. 
28. The study suggests that future research using more detailed data 
on costs incurred by settlement agents would be valuable. See p. 29. 
The Bureau welcomes additional comments and studies on the issue of 
itemization of costs on the Loan Estimate and Closing Disclosure 
during the comment period.
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    Proposed comment 37(f)-1 explains that the items disclosed as Loan 
Costs pursuant to Sec.  1026.37(f) are those that the creditor or 
mortgage broker require for consummation. Proposed comment 37(f)-2 
provides a cross-reference to the commentary under Sec.  
1026.19(e)(1)(ii), which discusses the requirements and 
responsibilities of mortgage brokers that provide the disclosures 
required under Sec.  1026.19(e) and Sec.  1026.37(f).
37(f)(1) Origination Charges
    Under proposed Sec.  1026.37(f)(1), charges included on the Loan 
Estimate under the subheading of ``Origination Charges'' are those that 
the consumer will pay to the creditor and any loan originator for 
originating and extending the credit. The points that the consumer will 
pay to the creditor to reduce the interest rate are specifically 
identified and itemized as the first item under this subheading.
    As discussed above in part II.F, the Bureau currently is engaged in 
six other rulemakings that relate to mortgage credit and intends that 
the rulemakings function collectively as a whole. Accordingly, the 
Bureau may have to modify aspects of this proposed rule not only in 
response to public comment on this proposal, but also to maintain 
consistency with final determinations made after opportunity for public 
comment in the other, related rulemakings. For example, Dodd-Frank Act 
section 1403 amended TILA section 129B(c)(2) to prohibit an origination 
fee or charge that is paid to a mortgage originator by any person other 
than the consumer, unless the mortgage originator does not receive 
compensation directly from the consumer and the consumer does not make 
an upfront payment of discount points, origination points, or fees 
(other than certain third-party fees). 15 U.S.C. 1639b(c)(2)(B). 
Amended TILA section 129B(c)(2) also provides the Bureau with the 
authority to waive or create exemptions from this prohibition with 
respect to the clause against the consumer making an upfront payment of 
discount points, origination points, or fees, where doing so is in the 
interest of consumers and in the public interest. Id. As discussed in 
the materials distributed for the Small Business Review Panel convened 
for the Residential Mortgage Loan Origination Standards rulemaking 
implementing amended TILA section 129B(c)(2), the Bureau is considering 
exercising its waiver or exemption authority in that rulemaking.\165\ 
The Bureau will coordinate these rulemakings and, if applicable and 
appropriate, will modify the disclosure of origination charges under 
Sec.  1026.37(f)(1) for consistency with the final rule implementing 
amended TILA section 129B(c)(2). The Bureau invites comment on how, in 
light of amended TILA section 129B(c)(2), the Bureau should refine or 
modify the way in which origination charges are disclosed under 
proposed Sec.  1026.37(f)(1). The public will also have the opportunity 
to comment on the Bureau's implementation of amended TILA section 
129B(c)(2) when a proposed rule is published later this summer. The 
Bureau expects the comment period for the proposal set forth in this 
notice will still be open at that time.
---------------------------------------------------------------------------

    \165\ Small Business Review Panel for Residential Mortgage Loan 
Origination Standards Rulemaking: Outline of Proposals Under 
Consideration and Alternatives Considered (May 19, 2012), available 
at https://files.consumerfinance.gov/f/201205_cfpb_MLO_SBREFA_Outline_of_Proposals.pdf.
---------------------------------------------------------------------------

    TILA section 128(a)(18), as added by Dodd-Frank Act section 1419, 
requires the creditor to disclose, for residential mortgage loans, the 
aggregate amount of fees paid to the mortgage originator in connection 
with the loan, the amount of such fees paid directly by the consumer, 
and any additional amount received by the originator from the creditor. 
In the discussion of proposed Sec.  1026.37(l) below, the Bureau notes 
that research regarding consumer comprehension and behavior and the 
results of the Bureau's consumer testing suggest that an effective 
disclosure regime minimizes the risk of consumer distraction and 
information overload by providing only information that will assist 
most consumers. The Bureau has evaluated the usefulness to consumers 
and others at early stages of the loan process of the disclosures 
required by TILA section 128(a)(18), as added by Dodd-Frank Act section 
1419. Based on that evaluation, and as discussed further below, the 
Bureau is proposing to use its authority under TILA section 105(a) and 
(f), RESPA section 19(a), and, for residential mortgage loans, Dodd-
Frank Act section 1405(b), to exempt transactions subject to proposed 
Sec.  1026.19(e) from certain of the itemized disclosures required by 
TILA section 128(a)(18). In particular, for transactions subject to 
proposed Sec.  1026.19(e), proposed Sec.  1026.37(f)(1) requires the 
creditor to disclose the amounts of origination fees paid by the 
consumer to creditors and loan

[[Page 51210]]

originators in connection with the loan, but not any amounts received 
by a loan originator from the creditor. However, as discussed below 
with respect to proposed Sec.  1026.38(f)(1), the full disclosure 
required by TILA section 128(a)(18) is included in the disclosure 
requirements for transactions subject to proposed Sec.  1026.19(f). In 
other words, although certain TILA section 128(a)(18) disclosures would 
not be included in the Loan Estimate, they would be provided in the 
Closing Disclosure.
    The RESPA GFE currently required by Regulation X aggregates all 
compensation paid to all loan originators and includes a separate item 
that reflects as a ``credit'' to the consumer fees received by mortgage 
brokers from the creditor rather than the consumer. A major goal of the 
RESPA GFE disclosure requirements was to provide consumers with a clear 
disclosure of any rate-based payments being made by creditors to 
mortgage brokers who may be working with the consumer. Regulation X 
provides generally that lender and mortgage broker origination charges 
are to be included on page 2 of the RESPA GFE, in Block 1 (``Our 
origination charge''), Block 2 (``Your credit or charge (points) for 
the specific interest rate chosen''), and Line A (Your Adjusted 
Origination Charges''). See 12 CFR part 1024, appendix C (instructions 
for ``Your Adjusted Origination Charges''). Under the disclosure 
requirements in Regulation X, all charges for services related to the 
creation of the mortgage loan are to be included on the RESPA GFE in 
the single amount stated in Block 1 and the single amount in Block 2, 
as applicable. The RESPA GFE disclosure requirements prohibit creditors 
and mortgage brokers from charging any fees for getting the loan that 
are in addition to the amounts included in Blocks 1 and 2. Id. 
(instructions for ``Block 1'').
    The requirements related to the disclosures in Blocks 1 and 2 of 
the GFE have been a source of uncertainty for creditors, mortgage 
brokers, and consumers. HUD provided informal guidance to address some 
of the uncertainty in a number of its HUD RESPA FAQs and HUD RESPA 
Roundups, much of which involved where and how to disclose compensation 
paid directly and indirectly to mortgage brokers.
    In 2010, subsequent to the issuance of HUD's 2008 RESPA Final Rule, 
the Board established by regulation in Sec.  1026.36 of Regulation Z 
restrictions on the compensation of loan originators, including 
mortgage brokers.\166\ The Board adopted these restrictions only after 
concluding that disclosure of creditor-paid compensation did not 
provide sufficient protection for consumers.\167\
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    \166\ 75 FR 58509 (Sept. 24, 2010) (Board's 2010 Compensation 
Final Rule).
    \167\ The Board's 2010 Compensation Final Rule discussed the 
history of efforts by the Board to address concerns regarding 
consumers' understanding of fees received by mortgage brokers from 
creditors. Before issuing that final rule, the Board considered 
proposed disclosures of such compensation, but had withdrawn the 
proposed disclosures because of concern that they could confuse 
consumers and undermine their decisionmaking rather than improve it. 
75 FR at 58511. A 2008 study referenced in the Board's 2010 
Compensation Final Rule indicated additional disclosures may not 
help consumers understand and avoid financial incentives for loan 
originators that may be contrary to consumer interests. Id. The 
study found that consumers were confused by, and in some cases did 
not appropriately apply, the information provided in disclosures 
about mortgage broker compensation arrangements. Macro 
International, Consumer Testing of Mortgage Broker Disclosures (July 
10, 2008), available at https://www.federalreserve.gov/newsevents/press/bcreg/20080714regzconstest.pdf.
---------------------------------------------------------------------------

    Section 1403 of the Dodd-Frank Act codified similar restrictions. 
15 U.S.C. 1639b(c). As a result of these additional consumer 
protections and based on consumer testing, the Bureau believes that 
consumers may not benefit from any additional disclosure of rate-based 
compensation when shopping for and considering the costs of a mortgage 
loan. Therefore, in proposed Sec.  1026.37(f)(1), the Bureau proposes 
to eliminate the separate GFE Blocks 1 and 2 disclosures, thereby 
eliminating the need to follow different instructions for loans 
involving a mortgage broker than for loans originated without one.
    Consistent with Dodd-Frank section 1405(b), disclosure of only the 
direct charges the consumer will pay will reduce both consumer 
confusion and the possibility of information overload, improve consumer 
understanding of the Loan Estimate form, and make it easier for 
creditors or mortgage brokers to complete the estimates of closing 
costs, which is in the interest of consumers and in the public 
interest. In addition, consistent with TILA section 105(a) and RESPA 
section 19(a), the proposed disclosure will effectuate the purposes of 
TILA and RESPA by promoting the informed use of credit and more 
effective disclosure of settlement costs by allowing consumers to focus 
only on the amounts they will pay. Furthermore, consistent with section 
1032(a) of the Dodd-Frank Act, proposed Sec.  1026.37(f) would ensure 
that the origination costs for consumer credit transactions secured by 
real property are fully, accurately, and effectively disclosed to 
consumers in a manner that permits consumers to understand the costs, 
benefits, and risks associated with the product or service, in light of 
the facts and circumstances.
    As noted above, Sec.  1026.37(f) is also proposed pursuant to the 
Bureau's exemption authority under TILA section 105(f). The Bureau has 
considered the factors in TILA section 105(f) and believes that, for 
the reasons discussed above, an exception is appropriate under that 
provision. Specifically, the Bureau believes that the proposed 
exemption is appropriate for all affected borrowers, regardless of 
their other financial arrangements and financial sophistication and the 
importance of the loan to them. Similarly, the Bureau believes that the 
proposed exemption is appropriate for all affected loans, regardless of 
the amount of the loan and whether the loan is secured by the principal 
residence of the consumer. Furthermore, the Bureau believes that, on 
balance, the proposed exemption will simplify the credit process 
without undermining the goal of consumer protection or denying 
important benefits to consumers. Accordingly, the Bureau is proposing 
to exempt the disclosures required pursuant to Sec.  1026.19(e) from 
the requirement in TILA section 128(a)(18) to itemize fees received by 
loan originators from the creditor.
    The Bureau invites comment on whether the final rule should require 
that fees received by loan originators from the creditor be included in 
the Loan Estimate. In addition, because the foregoing analysis under 
TILA section 105(f) and the Bureau's other exemption authorities may 
apply to the disclosure of creditor-paid compensation on the Closing 
Disclosure pursuant to proposed Sec.  1026.38(f)(1), the Bureau 
solicits comments on whether the disclosure should be omitted there as 
well. While a goal of the proposed forms and requirements is to develop 
clear disclosures that help consumers understand the credit transaction 
and closing costs, another goal is to facilitate consumer comparison of 
the actual charges at consummation with the charges estimated soon 
after application. If, as proposed, the amounts received by loan 
originators from the creditor are not itemized in the Loan Estimate, 
the consumer-comparison purpose of the disclosure forms is not advanced 
by itemizing those amounts in the Closing Disclosure. In fact, 
itemizing amounts in the Closing Disclosure that are not itemized on 
the Loan Estimate may add to consumer confusion without any offsetting 
benefit.
    The Bureau believes, however, that certain additional information 
about

[[Page 51211]]

origination costs may benefit consumers at early stages of the loan 
process. In its 2008 RESPA Final Rule, HUD explained its reason for 
limiting to lump-sum amounts certain disclosures, such as for 
origination and title charges, as avoiding consumer confusion resulting 
from a proliferation of itemized fees. HUD described the RESPA GFE that 
was in place before the effective date of the 2008 RESPA final rule as 
``not inform[ing] consumers what the major costs are so that they can 
effectively shop and compare mortgage offers among different loan 
originators.'' 73 FR at 68260. Therefore HUD sought to simplify the 
mortgage loan origination process by consolidating costs into a few 
major cost categories on the RESPA GFE. Id.
    The Bureau understands HUD's reasoning in its 2008 RESPA final rule 
for establishing revised requirements for the disclosure of 
origination-related charges in the RESPA GFE form. The Bureau notes, 
however, that HUD did not specifically test the effect of separating 
the lump sum amounts for major categories of loan costs into component 
charges.\168\ As discussed in the Kleimann Testing Report, in several 
rounds of testing, the Bureau examined the effect of such itemization 
of loan costs on consumers' understanding of the loan transaction and 
their tendency and ability to shop. As a result of its testing, the 
Bureau proposes to modify the requirements for disclosing origination-
related items on the Loan Estimate. As discussed in the Kleimann 
Testing Report, at the Bureau's consumer testing, participants were 
more likely to question loan costs when they were presented in an 
itemized format, rather than as only an aggregate or lump sum of those 
costs. While participants commented favorably on lump-sum totals, they 
also asked for more detail about the fees that were included in the 
lump sum, especially when the total was a significant amount, such as 
for origination charges or title fees.
---------------------------------------------------------------------------

    \168\ See, U.S. Dep't. of Hous. and Urban Dev., Summary Report: 
Consumer Testing of the Good Faith Estimate Form (GFE), prepared by 
Kleimann Communications Group, Inc. (2008), available at https://www.huduser.org/publications/pdf/Summary_Report_GFE.pdf.
---------------------------------------------------------------------------

    Further, as discussed in the Kleimann Testing Report, participants 
more often indicated a desire to negotiate origination charges and shop 
for third-party services when provided the additional details about 
these closing costs. Itemized closing costs also prompted participants 
to ask more questions about the other costs in the Loan Estimate. 
Although participants also responded favorably to lump-sum disclosures, 
without the additional information about the cost category they were 
less likely to indicate a desire to negotiate costs, shop for 
providers, and ask for additional detail about a large cost. As 
discussed in the Kleimann Testing Report, testing indicates that 
descriptive, itemized listings of the component charges in a category 
of closing costs related to improved performance of the participants in 
understanding both the underlying services provided and the amounts 
imposed for those services. In addition, testing participants stated 
that they felt more comfortable with the transaction when provided with 
additional detail, in part because they believed they were more 
responsible consumers when they were more informed. The more-complete 
information also may help a consumer determine whether to shop for a 
particular service or services. During its outreach efforts, the Bureau 
heard anecdotal reports that creditors are often prepared to provide 
consumers with additional detail about aggregate amounts disclosed on 
the RESPA GFE, in any event. State law also may require creditors to 
provide such additional detail about certain categories of costs by 
consummation or before accepting a fee,\169\ or to retain such detail 
in their loan files.\170\
---------------------------------------------------------------------------

    \169\ See, e.g., Tex. Ins. Code Ann. Sec.  2702.053 (title 
charges); Ga. Comp. R. & Regs. 80-11-1-.01 (origination charges).
    \170\ See, e.g., North Carolina Commissioner of Banks 
Memorandum, Disclosure of Origination Fees under HUD's New RESPA 
Rules (December 3, 2010), available at https://www.nccob.gov/public/docs/Financial%20Institutions/Mortgage/OCOB_Letter_Regarding_Disclosure_of_Origination_Fees_under_HUDs_new_RESPA_Rules.pdf.
---------------------------------------------------------------------------

    Therefore, proposed Sec.  1026.37(f)(1) does not limit the 
disclosure of origination-related closing costs to an aggregate amount 
with two lines under predefined headings (as is the case with the RESPA 
GFE). Instead, proposed Sec.  1026.37(f)(1) requires that the Loan 
Estimate include a subtotal of the amounts for all ``Origination 
Charges,'' but permits the creditor to list up to 13 component items. 
The creditor must use a descriptive label for each component fee or 
charge, and must disclose the amount of that fee or charge. Proposed 
Sec.  1026.37(f)(1) requires the creditor to include under the 
subheading ``Origination Charges'' the percentage of the loan amount, 
and the resulting calculation of the dollar amount, that is charged to 
the consumer as points to lower the interest rate. The Loan Estimate 
form H-24, in appendix H to Regulation Z, includes a line for this 
disclosure immediately under the subheading ``Origination Charges.'' 
The line's label reads: ``--% of Loan Amount (Points),'' and the blank 
before the percentage sign is to be filled in with the applicable 
number.
    The Bureau does not propose to eliminate the disclosure of a single 
total amount of origination charges from the Loan Estimate form, 
however. The RESPA GFE currently shows a subtotal of the origination 
charges on Line A (``Your Adjusted Origination Charges''). Pursuant to 
Sec.  1026.37(f)(1), the Bureau proposes to show in the Loan Estimate a 
similar subtotal accompanying the subheading ``Origination Charges.'' 
The Bureau's testing of the Loan Estimate forms indicates that 
consumers can easily find and use this subtotal of the origination 
charges to evaluate and compare loans, as discussed in the Kleimann 
Testing Report. Further, the testing indicates that consumers easily 
understand that the subtotal represents the sum of the itemized fees 
and charges.
    The Bureau is proposing the requirements in Sec.  1026.37(f)(1) 
pursuant to its implementation authority under TILA section 105(a) and 
RESPA section 19(a) because disclosure of the points, component 
charges, and total origination charges will promote the informed use of 
credit and more effective advance disclosure of settlement costs, which 
are purposes of TILA and RESPA respectively. Dodd-Frank Act sections 
1032(a) and 1405(b) are also sources of authority for the proposed 
requirements in Sec.  1026.37(f)(1). The information disclosed under 
Sec.  1026.37(f)(1) will enable consumers to understand and negotiate 
fees, shop for origination services, and compare the Loan Estimate with 
any revised Loan Estimate and the Closing Disclosure, thereby ensuring 
that the features of the mortgage transactions are fully, accurately, 
and effectively disclosed to consumers in a manner that permits 
consumers to understand the costs, benefits, and risks associated with 
the mortgage transaction, in light of the facts and circumstances, 
consistent with Dodd-Frank Act section 1032(a). Furthermore, for the 
reasons stated above, the proposed rule is in the interest of consumers 
and in the public interest, consistent with Dodd-Frank Act section 
1405(b).
    The Bureau is aware of concerns that permitting itemization may 
encourage creditors to list numerous component charges that the RESPA 
GFE currently requires to be consolidated into one

[[Page 51212]]

charge.\171\ Based on its testing, however, the Bureau believes that 
proposed Sec.  1026.37(f)(1), which permits some itemization but also 
requires disclosure of the subtotal of origination charges, provides 
consumers with information they want without encumbering their ability 
to compare credit offers among different creditors. The Bureau invites 
comment on whether other limits on itemization, in addition to the 
proposed limits on the number of charges that may be itemized pursuant 
to Sec.  1026.37(f)(1), should be included in the final rule and, if 
so, what those limits should be.
---------------------------------------------------------------------------

    \171\ In its 2008 RESPA Final Rule, HUD stated that: ``Current 
RESPA regulations have led to a proliferation of charges that makes 
consumer shopping and the mortgage settlement process both difficult 
and confusing, even for the most informed shoppers. Long lists of 
charges certainly do not highlight the bottom-line costs so 
consumers can shop and compare mortgage offers among different 
originators.'' 73 FR 68204, 68267 (Nov. 17, 2008).
---------------------------------------------------------------------------

    Proposed comment 37(f)(1)-1 clarifies that charges that are 
included under the subheading ``Origination Charges'' pursuant to Sec.  
1026.37(f)(1) are those charges paid by the consumer for which the 
amount is paid to the creditor or loan originator for originating and 
extending the mortgage credit. The comment includes cross-references to 
Sec.  1026.37(o)(4) for rules on rounding amounts disclosed, comment 
19(e)(3)(i)-2 for a discussion of when a fee is considered to be ``paid 
to'' a person, and comment 36(a)-1 for a discussion of the meaning of 
``loan originator.'' Proposed comment 37(f)(1)-2 clarifies that only 
loan originator charges paid directly by the consumer are included in 
the items listed pursuant to Sec.  1026.37(f)(1), but notes that 
charges paid by the creditor through the interest rate are disclosed on 
the Closing Disclosure pursuant to Sec.  1026.38(f)(1). Proposed 
comment 37(f)(1)-3 provides examples of the items that might be 
disclosed as ``Origination Charges'' on the Loan Estimate. Proposed 
comment 37(f)(1)-4 explains that if the consumer is not charged any 
points for the loan, the creditor may leave blank the percentage of 
points required by Sec.  1026.37(f)(1)(i), but must disclose the dollar 
amount of ``$0.'' Proposed comment 37(f)(1)-5 clarifies that the 
creditor may decide the level of itemization of origination charges 
that is appropriate, subject to the limitations in Sec.  
1026.37(f)(1)(ii) on the number of lines.
37(f)(2) Services You Cannot Shop For
    The fees and charges listed under the subheading ``Services You 
Cannot Shop For'' pursuant to proposed Sec.  1026.37(f)(2) are for 
services that the creditor would require in connection with the 
transaction, but that would be provided by persons other than the 
creditor or mortgage broker. Only items for which the creditor does not 
permit the consumer to shop in accordance with Sec.  
1026.19(e)(1)(vi)(A) are listed under this subheading. As discussed 
above, Sec.  1026.19(e)(3)(ii) applies the same criterion in 
determining whether an estimated charge is subsequently permitted to 
increase by a limited amount, absent other considerations set out in 
Sec.  1026.19(e)(3).
    Currently, Regulation X provides that third-party services required 
by the creditor and for which the creditor does not permit the consumer 
to shop are to be included, as applicable, in Blocks 3 (``Required 
services that we select'') and 4 (``Title services and lender's title 
insurance'') on the RESPA GFE. Regulation X also provides that charges 
for title services, like charges for origination services, are not 
itemized on the RESPA GFE, but are disclosed only as a total. See 
appendix C to Regulation X (instructions for Blocks 3, 4 (``all fees 
for title searches, examinations, and endorsements, for example, would 
be included in this total''), and 6).
    As discussed in connection with proposed Sec.  1026.37(f)(1), 
consumer testing performed on Loan Estimate forms indicated that 
itemization related to improved performance of the participants in 
understanding both the services provided and the charges imposed for 
those services. Participants appeared more likely to negotiate fees and 
shop for services when provided additional details that helped them to 
understand the nature of the services and the potential value of 
shopping for a particular service. Pursuant to Sec.  1026.37(f)(2) and 
(3), the Bureau proposes to show in the Loan Estimate subtotals and 
itemized amounts for loan costs, including for title-related services, 
on the highlighted lines with the subheadings ``Services You Cannot 
Shop For'' and ``Services You Can Shop For.'' The Bureau's testing of 
the forms indicates that consumers can easily find and appropriately 
use the subtotals of these amounts, as discussed in the Kleimann 
Testing Report.
    Pursuant to Sec.  1026.37(f)(2), each item disclosed under the 
subheading ``Services You Cannot Shop For'' must include a descriptive 
name and the estimated charge, and the creditor must provide a subtotal 
of all such items. All items for which the charges relate to the 
provision of title insurance and the handling of the closing must be 
identified beginning with ``Title--.'' The creditor may use up to 13 
lines to itemize charges under the subheading for ``Services You Cannot 
Shop For.''
    The Bureau is proposing the requirements in Sec.  1026.37(f)(2) 
pursuant to its authority under TILA section 105(a) and RESPA section 
19(a) because disclosure of third-party services required by a creditor 
for consummation of the loan, their component and total charges, and 
the fact that the creditor will limit the choice of providers for those 
services will promote the informed use of credit and more effective 
advance disclosure of settlement costs, which are purposes of TILA and 
RESPA respectively. Dodd-Frank Act sections 1032(a) and 1405(b) are 
also sources of authority for the proposed requirements in Sec.  
1026.37(f)(2). The information disclosed under Sec.  1026.37(f)(2) will 
enable consumers to understand and negotiate fees, shop for a mortgage 
loan, and compare the Loan Estimate with any revised Loan Estimate and 
the Closing Disclosure, thereby ensuring that the features of the 
mortgage transactions are fully, accurately, and effectively disclosed 
to consumers in a manner that permits consumers to understand the 
costs, benefits, and risks associated with the mortgage transaction, in 
light of the facts and circumstances, consistent with Dodd-Frank Act 
section 1032(a). Furthermore, for the reasons stated above, the 
proposed disclosure is in the interest of consumers and in the public 
interest, consistent with Dodd-Frank Act section 1405(b).
    As discussed above, the Bureau is aware of concerns that permitting 
itemization may encourage creditors to list numerous component charges 
that the RESPA GFE currently requires to be consolidated. The Bureau 
invites comment on whether other limits on itemization, in addition to 
the proposed limits on the number of charges that may be itemized 
pursuant to Sec.  1026.37(f)(2), should be included in the final rule 
and, if so, what those limits should be.
    Proposed comment 37(f)(2)-1 cross-references comments 19(e)(1)(iv)-
1, 19(3)(i)-1, and 19(e)(3)(iv)-1 through -3 for discussions of the 
factors relevant to determining whether a consumer is permitted to shop 
and whether a creditor has exercised good faith in providing estimates 
of charges. Proposed comment 37(f)(2)-2 provides examples of the 
services that might be listed under ``Services You Cannot Shop For.'' 
Proposed comment 37(f)(2)-3 provides examples of services that would be 
listed using a phrase beginning with ``Title--.'' Proposed comment 
37(f)(2)-4 clarifies that the

[[Page 51213]]

amount listed for the lender's title insurance coverage is the amount 
of the premium without any adjustment that might be made for the 
simultaneous purchase of an owner's title insurance policy, and it 
cross-references comment 37(g)(4)-1 for the disclosure of the premium 
for owner's title insurance.
37(f)(3) Services You Can Shop For
    The fees and charges listed under the subheading ``Services You Can 
Shop For'' pursuant to proposed Sec.  1026.37(f)(3) are for services 
that the creditor would require in connection with its decision to make 
the loan, but that would be provided by persons other than the creditor 
or mortgage broker. Only items for which the creditor permits the 
consumer to shop in accordance with Sec.  1026.19(e)(1)(vi)(A) are 
listed under this subheading. Thus, all Loan Costs that are not paid to 
the creditor or mortgage broker are itemized exclusively under either 
this subheading or the subheading ``Services You Cannot Shop For.''
    Currently, Regulation X provides that third-party services required 
by the creditor but for which the creditor permits the consumer to shop 
are to be included, as applicable, in Blocks 4 (``Title services and 
lender's title insurance'') and 6 (``Required services that you can 
shop for'') on the RESPA GFE. Regulation X also provides that charges 
for title services, like charges for origination services, are not 
itemized on the RESPA GFE, but are disclosed only as a total. See 
appendix C to Regulation X (instructions for Blocks 3, 4 (``all fees 
for title searches, examinations, and endorsements, for example, would 
be included in this total''), and 6).
    As discussed in connection with proposed Sec.  1026.37(f)(1) and 
(2), consumer testing performed on Loan Estimate forms indicated that 
itemization related to improved performance of the participants in 
understanding both the services charged and the costs of those 
services. Participants appeared more likely to negotiate fees and shop 
for services when provided additional details that helped them to 
understand the nature of the services and the potential value of 
shopping for a particular service. Pursuant to Sec.  1026.37(f)(2) and 
(3), the Bureau proposes to show in the Loan Estimate subtotals and 
itemized amounts for loan costs, including for title-related services, 
on the highlighted lines with the subheadings ``Services You Cannot 
Shop For'' and ``Services You Can Shop For.'' The Bureau's testing of 
the forms indicates that consumers can easily find and appropriately 
use the subtotals of these amounts.
    Pursuant to Sec.  1026.37(f)(3), each item disclosed under the 
subheading ``Services You Can Shop For'' must include a descriptive 
name and the estimated charge, and the creditor must provide a subtotal 
of all such items. All items for which the fees and charges relate to 
the provision of title insurance and the handling of the closing must 
be identified beginning with ``Title--.'' The creditor may use up to 14 
lines to itemize charges under this subheading.
    The Bureau is proposing the requirements in Sec.  1026.37(f)(3) 
pursuant to its authority under TILA section 105(a) and RESPA section 
19(a) because disclosure of third-party services required by a creditor 
for consummation of the loan, their component and total charges, and 
the fact that the creditor will permit the consumer to choose the 
providers for those services will promote the informed use of credit 
and more effective advance disclosure of settlement costs, which are 
purposes of TILA and RESPA respectively. Dodd-Frank Act sections 
1032(a) and 1405(b) are also sources of authority for the proposed 
requirements in Sec.  1026.37(f)(3). The information disclosed under 
Sec.  1026.37(f)(3) will enable consumers to understand and negotiate 
fees, shop for a mortgage loan, and compare the Loan Estimate with any 
revised Loan Estimate and the Closing Disclosure, thereby ensuring that 
the features of the mortgage transactions are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to understand the costs, benefits, and risks associated with the 
mortgage transaction, in light of the facts and circumstances, 
consistent with Dodd-Frank Act section 1032(a). Furthermore, for the 
reasons stated above, the proposed disclosure is in the interest of 
consumers and in the public interest, consistent with Dodd-Frank Act 
section 1405(b).
    As discussed above, the Bureau is aware of concerns that 
itemization may encourage creditors to list numerous component charges 
that the RESPA GFE currently requires to be consolidated. The Bureau 
invites comment on whether other limits on itemization, in addition to 
the proposed limits on the number of charges that may be itemized 
pursuant to Sec.  1026.37(f)(3), should be included in the final rule 
and, if so, what those limits should be.
    Proposed comment 37(f)(3)-1 provides cross-references to comments 
19(e)(3)(ii)-1 through -3, 19(e)(3)(iii)-2, and 19(e)(3)(iv)-1 through 
-3 for discussions of determining good faith in estimating the costs 
for required services when the consumer is permitted to choose the 
provider of those services. Proposed comment 37(f)(3)-2 provides 
examples of the services that might be listed under ``Services You Can 
Shop For.'' Proposed comment 37(f)(3)-3 provides cross-references to 
comments 37(f)(2)-3 and -4 for guidance on services that would be 
labeled beginning with ``Title--'' and on calculating the amount 
disclosed for lender's title insurance, and it cross-references comment 
37(g)(4)-1 for the disclosure of the premium for owner's title 
insurance.
37(f)(4) Total Loan Costs
    Proposed Sec.  1026.37(f)(4) requires the creditor to disclose, 
labeled ``Total Loan Costs,'' the sum of the subtotals disclosed under 
Sec.  1026.37(f)(1) through (3) for Origination Charges, Services You 
Cannot Shop For, and Services You Can Shop For, respectively. This 
total represents all costs that the creditor and mortgage broker impose 
in connection with the transaction.
    Although a comparable total is not required to be stated on the 
current RESPA GFE, the same costs are included in other subtotals on 
the RESPA GFE. The Bureau believes that grouping and subtotaling these 
items in this way will provide better information to the consumer about 
costs that are specific to obtaining the mortgage loan from the 
creditor. Other costs that the consumer may encounter as part of the 
transfer of ownership of the property are generally related to items 
and requirements for which the amounts are controlled by other entities 
or persons, including governmental jurisdictions and the consumer, and 
are addressed in proposed Sec.  1026.37(g). Accordingly, disclosure of 
this information will promote the informed use of credit and more 
effective advance notice of settlement costs, consistent with TILA 
section 105(a) and RESPA section 19(a). It will also ensure that the 
features of the mortgage transactions are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to better understand the costs, benefits, and risks associated with 
mortgage transactions, in light of the facts and circumstances, 
consistent with Dodd-Frank Act section 1032(a). Furthermore, for the 
reasons stated above, the proposed disclosure is in the interest of 
consumers and in the public interest, consistent with Dodd-Frank Act 
section 1405(b).
37(f)(5) Item Descriptions and Ordering
    Proposed Sec.  1026.37(f)(5) requires the creditor to use 
terminology that briefly

[[Page 51214]]

and clearly describes each item disclosed under Sec.  1026.37(f). 
Except for the item for points that the consumer will pay, which must 
be listed as the first item under the subheading ``Origination 
Charges,'' all items must be listed in alphabetical order under the 
applicable subheading. The current RESPA GFE and early TILA disclosure 
do not include a similar requirement. The Bureau believes that a 
consistent listing of the costs that appear on the Loan Estimate and 
the Closing Disclosure will facilitate the consumer's comparison of the 
two disclosure documents and understanding of the transaction as a 
whole. Accordingly, this requirement will effectuate the purposes of 
TILA and RESPA by promoting the informed use of credit and more 
effective advance notice of settlement costs, consistent with TILA 
section 105(a) and RESPA section 19(a), and will ensure that the 
features of the mortgage transactions are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to better understand the costs, benefits, and risks associated with 
mortgage transactions, in light of the facts and circumstances, 
consistent with Dodd-Frank Act section 1032(a).
37(f)(6) Use of Addenda
    Proposed Sec.  1026.37(f)(6) provides that addenda may not be used 
to itemize disclosures required by Sec.  1026.37(f)(1) or (2). If the 
creditor is not able to itemize all of the charges required to be 
disclosed in the number of lines provided under Sec.  1026.37(f)(1)(ii) 
and (f)(2)(ii), the remaining charges must be disclosed as an aggregate 
amount in the last line permitted under the applicable paragraph. An 
addendum may be used to itemize disclosures required by Sec.  
1026.37(f)(3), or any remaining charges may be disclosed as an 
aggregate amount in the last line permitted under paragraph (f)(3). The 
Bureau is proposing the requirements in Sec.  1026.37(f)(6) pursuant to 
its authority under TILA section 105(a) and RESPA section 19(a) because 
standardization of the information provided on the disclosures required 
under Sec.  1026.19(e) will provide consistent information that 
consumers will be able to use to better understand the mortgage 
transaction, shop for loans, and compare the Loan Estimate with any 
revised Loan Estimate and the Closing Disclosure, thereby promoting the 
informed use of credit and more effective advance disclosure of 
settlement costs, which are purposes of TILA and RESPA respectively. 
This standardization will also ensure that the features of the mortgage 
transactions are fully, accurately, and effectively disclosed to 
consumers in a manner that permits consumers to more readily understand 
the costs, benefits, and risks associated with the mortgage 
transaction, in light of the facts and circumstances, consistent with 
Dodd-Frank Act section 1032(a), which is also a source of authority for 
the proposed requirements.
    Proposed comment 37(f)(6)-1 clarifies that a creditor is permitted 
to provide additional disclosures that are required by State law, as 
long as those disclosures are provided on a document whose pages are 
separate from, and are not presented as part of, the disclosures 
provided in accordance with Sec.  1026.37(f). Proposed comment 
37(f)(6)-2 provides an example of a label that may be used to reference 
an addendum as permitted under Sec.  1026.37(f)(6)(ii).
37(g) Closing Cost Details; Other Costs
    Under section 5(c) of RESPA, creditors must provide mortgage loan 
applicants with a good faith estimate of the amount or range of charges 
for specific settlement services the applicant is likely to incur in 
connection with the consummation of the loan. 12 U.S.C. 2604(c). 
Section 1024.7 of Regulation X implements this mandate by requiring 
creditors and mortgage brokers to provide the GFE, which must be 
completed in accordance with the instructions in appendix C to 
Regulation X. Appendix C sets out specific instructions for the 
information that must be disclosed on the GFE, including which loan 
costs must be included and how to identify those costs on the GFE.
    As discussed above, Dodd-Frank Act section 1032(f) requires the 
Bureau to combine these RESPA disclosures with the pre-consummation 
disclosures required by TILA. In addition to existing TILA disclosure 
requirements, section 1419 of the Dodd-Frank Act amended TILA section 
128(a) to require, in the case of a residential mortgage loan, 
disclosure of the aggregate amount of settlement charges for all 
settlement services provided in connection with the loan and the 
aggregate amount of other fees or required payments in connection with 
the loan. 15 U.S.C. 1638(a)(17).
    Pursuant to its authority under Dodd-Frank Act section 1032(f), 
TILA section 105(a), and RESPA section 19(a), the Bureau proposes to 
require creditors to disclose the loan costs and other costs imposed 
upon the consumer in tables as part of the integrated Loan Estimate. 
Proposed Sec.  1026.37(f) and (g) implement the early disclosure 
requirements in TILA and RESPA by setting out details relating to the 
costs for consummating the mortgage loan, including loan costs and 
other costs. Based on its consumer testing, the Bureau believes that 
early disclosure of estimated loan costs and other costs, as set forth 
in proposed Sec.  1026.37(f) and (g), will improve consumer 
understanding of the credit and property transactions. The Bureau 
believes that these disclosures will effectuate the purpose of TILA by 
promoting the informed use of credit and assuring a meaningful 
disclosure to consumers. The Bureau believes that the disclosures will 
also satisfy the RESPA requirement to provide a consumer with a good 
faith estimate of the amount or range of charges for specific 
settlement services the consumer is likely to incur in connection with 
the closing. Dodd-Frank Act sections 1032(a) and 1405(b) are also 
sources of authority for the proposed rule. These disclosures will 
ensure that the features of the mortgage transactions are fully, 
accurately, and effectively disclosed to consumers in a manner that 
permits consumers to understand the costs, benefits, and risks 
associated with the mortgage transaction, in light of the facts and 
circumstances, consistent with Dodd-Frank Act section 1032(a). 
Furthermore, for the reasons stated above, the proposed rule is in the 
interest of consumers and in the public interest, consistent with Dodd-
Frank Act section 1405(b).
    Proposed Sec.  1026.37(g) requires creditors to disclose as ``Other 
Costs'' on the Loan Estimate certain items that are in addition to the 
Loan Costs that are specifically required by the creditor before 
consummation of a credit transaction and are disclosed pursuant to 
Sec.  1026.37(f). The ``Other Costs'' disclosed pursuant to Sec.  
1026.37(g) are necessary to complete the real estate closing. These 
items usually concern payments for governmental requirements, insurance 
premiums, and items that are charged by parties to the property 
transaction other than the creditor. The creditor must disclose under 
four subheadings individual itemized charges, along with subtotals for 
categories of those itemized charges.
    Consumer feedback from the Bureau's consumer testing indicated that 
clear amounts for the total costs of the loan and real estate closing 
were also important to consumers' understanding of the complete 
transaction. Consistent with that feedback, under two additional 
subheadings, the creditor must disclose the total of Other Costs and 
the total of Loan Costs plus Other Costs. In general, all of these 
charges are currently required to be disclosed--as itemized or 
aggregate charges and

[[Page 51215]]

amounts--on the RESPA GFE, the RESPA settlement statement, or both. 
Combining these charges and totals into the disclosures required by 
Sec.  1026.19(e) will enable consumers to understand the services and 
charges related to the loan and property transactions, shop for the 
loan and certain services, and compare the Loan Estimate with any 
revised Loan Estimate and the Closing Disclosure, thereby ensuring that 
the features of the mortgage transactions are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to understand the costs, benefits, and risks associated with the 
mortgage transaction, in light of the facts and circumstances, 
consistent with Dodd-Frank Act section 1032(a). Proposed comment 37(g)-
1 describes the kinds of charges that are disclosed under Sec.  
1026.37(g). Proposed comment 37(g)-2 clarifies that items that are paid 
at or before closing under the real estate contract are not disclosed 
on the Loan Estimate, except to the extent the creditor is aware of 
those charges at the time the Loan Estimate is issued. These items will 
be disclosed, however, in the Closing Disclosure pursuant to Sec.  
1026.38(f), (g), (j) and (k).
37(g)(1) Taxes and Other Government Fees
    Proposed Sec.  1026.37(g)(1) requires the disclosure of taxes and 
other government fees for recording of documents and transfer taxes 
assessed against the purchase price of a real estate contract or the 
loan amount. Recording fees differ from transfer taxes because 
recording fees are based on the nature or physical characteristics of 
the document being recorded and are not based on the sales price or 
loan amount. The Bureau is proposing the requirements in Sec.  
1026.37(g)(1) pursuant to its authority under TILA section 105(a) and 
RESPA section 19(a) because disclosure of taxes and government fees 
required to be paid in the real estate closing will educate consumers 
about costs they must be prepared to pay in the transaction, thereby 
promoting the informed use of credit and more effective advance 
disclosure of settlement costs, which are purposes of TILA and RESPA 
respectively. Dodd-Frank Act sections 1032(a) and 1405(b) are also 
sources of authority for the proposed requirements in Sec.  
1026.37(g)(1). This information also ensures that the features of the 
mortgage transactions are fully, accurately, and effectively disclosed 
to consumers in a manner that permits consumers to understand the 
costs, benefits, and risks associated with the mortgage transaction, in 
light of the facts and circumstances, consistent with Dodd-Frank Act 
section 1032(a). Furthermore, for the reasons stated above, the 
proposed disclosure is in the interest of consumers and in the public 
interest, consistent with Dodd-Frank Act section 1405(b).
    Proposed comment 37(g)(1)-1 clarifies that recording fees are 
assessed by a government authority in order to record and index 
documents related to property transfers under State or local law. 
Proposed comment 37(g)(1)-2 clarifies that government charges that are 
not transfer taxes are disclosed with recording fees under Sec.  
1026.37(g)(1)(i). Proposed comment 37(g)(1)-3 explains that, in 
general, transfer taxes are State and local government fees on 
mortgages and home sales that are based on the loan amount or sales 
price. Proposed comment 37(g)(1)-4 clarifies that the only transfer 
taxes disclosed under Sec.  1026.37(g)(1) are transfer taxes imposed on 
the consumer, as determined under State or local law, and that if 
unpaid transfer taxes can result in a lien being placed on the property 
of the consumer, the transfer tax is disclosed under Sec.  
1026.37(g)(1). The comment further clarifies that if State or local law 
is unclear, or does not specifically attribute the transfer tax, the 
creditor may use common practice in the locality of the property to 
apportion the amount of the transfer tax disclosed as paid by the 
consumer under Sec.  1026.37(g)(1). This comment is consistent with 
guidance provided by HUD in the HUD RESPA FAQs p.34, 2 (``GFE-
Block 8''). Proposed comment 37(g)(1)-5 explains that although transfer 
taxes paid by the seller in a purchase transaction are not disclosed 
pursuant to Sec.  1026.37(g), they will be disclosed on the Closing 
Disclosure under Sec.  1026.38(g)(1)(ii). Proposed comment 37(g)(1)-6 
clarifies that the lines and labels required under Sec.  1026.37(g)(1) 
may not be deleted, and that additional items may not be listed under 
the subheading.
37(g)(2) Prepaids
    Proposed Sec.  1026.37(g)(2) requires the disclosure of prepaid 
charges for real estate property taxes, insurance premiums, and other 
items that must be paid to insure the property or satisfy real estate 
tax obligations, as well as other charges that must be satisfied before 
consummation of the credit transaction and the real estate closing. 
Proposed Sec.  1026.37(g)(2) also prescribes some of the items, and 
additional information about those items, that must be included under 
the subheading ``Prepaids.'' The Bureau is proposing the requirements 
in Sec.  1026.37(g)(2) pursuant to its authority under TILA section 
105(a) and RESPA section 19(a) because disclosure of charges that must 
be satisfied as part of the mortgage transaction will educate consumers 
about costs they must be prepared to pay, thereby promoting the 
informed use of credit and more effective advance disclosure of 
settlement costs, which are purposes of TILA and RESPA respectively. 
Dodd-Frank Act sections 1032(a) and 1405(b) are also sources of 
authority for the proposed requirements. This information ensures that 
the features of the mortgage transactions are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to understand the costs, benefits, and risks associated with the 
transaction, in light of the facts and circumstances, consistent with 
Dodd-Frank Act section 1032(a). Furthermore, for the reasons stated 
above, the proposed disclosure is in the interest of consumers and in 
the public interest, consistent with Dodd-Frank Act section 1405(b).
    Proposed comment 37(g)(2)-1 provides examples of other periodic 
charges that are required to be paid at consummation and are disclosed 
under Sec.  1026.37(g)(2). Proposed comment 37(g)(2)-2 clarifies that 
the interest rate disclosed under Sec.  1026.37(g)(2)(iii) is the same 
interest rate that is disclosed under Sec.  1026.37(b)(2). Proposed 
comment 37(g)(2)-3 clarifies that the terms ``property taxes,'' 
``homeowner's insurance,'' and ``mortgage insurance'' have the same 
meaning as those terms are used under Sec.  1026.37(c) and its 
commentary. Proposed comment 37(g)(2)-4 clarifies that the lines and 
labels required under Sec.  1026.37(g)(2) may not be deleted.
37(g)(3) Initial Escrow Payment at Closing
    Proposed Sec.  1026.37(g)(3) requires the disclosure of the initial 
payments to establish an escrow account to pay for future recurring 
charges. Disclosure of these amounts is required under Sec.  1024.7 and 
Sec.  1024.17 of Regulation X, and the items and amounts must be 
disclosed in Block 9 of the RESPA GFE. Proposed Sec.  1026.37(g)(3) 
also prescribes some of the items, and additional information about 
those items, that must be included under the subheading ``Initial 
Escrow Payment at Closing.'' The Bureau is proposing the requirements 
in Sec.  1026.37(g)(3) pursuant to its authority under TILA section 
105(a) and RESPA section 19(a) because disclosure of initial payments 
that consumers are required to make to establish escrow accounts for 
future recurring charges will educate

[[Page 51216]]

consumers about costs they must be prepared to pay in the mortgage 
transaction, thereby promoting the informed use of credit and more 
effective advance disclosure of settlement costs, which are purposes of 
TILA and RESPA respectively. Dodd-Frank Act sections 1032(a) and 
1405(b) are also sources of authority for the proposed requirements. 
This information ensures that the features of the mortgage transactions 
are fully, accurately, and effectively disclosed to consumers in a 
manner that permits consumers to understand the costs, benefits, and 
risks associated with the transaction, in light of the facts and 
circumstances, consistent with Dodd-Frank Act section 1032(a). 
Furthermore, for the reasons stated above, the proposed disclosure is 
in the interest of consumers and in the public interest, consistent 
with Dodd-Frank Act section 1405(b).
    Proposed comment 37(g)(3)-1 clarifies that for any item required to 
be listed that is not charged to the consumer, the monthly payment 
amount and time period may be left blank, but the dollar amount for the 
item must be shown as zero. Proposed comment 37(g)(3)-2 clarifies that 
the aggregate escrow account adjustment required for the HUD-1 
settlement statement under Regulation X Sec.  1024.17(d)(2) is not 
included on the Loan Estimate, but is included on the Closing 
Disclosure under Sec.  1026.38(g)(3). Proposed comment 38(g)(3)-3 
clarifies that ``property taxes,'' ``homeowner's insurance,'' and 
``mortgage insurance'' have the same meaning as those terms are used 
under Sec.  1026.37(c) and its commentary. Proposed comment 37(g)(3)-4 
clarifies that the lines and labels required under Sec.  1026.37(g)(3) 
may not be deleted.
37(g)(4) Other
    Proposed Sec.  1026.37(g)(4) requires the disclosure of any other 
items that the consumer has become legally obligated to pay in 
connection with the transaction, to the extent that the existence of 
these items is known by the creditor at the time the Loan Estimate is 
issued. The label for any item that is a component of title insurance 
must include the description ``Title--'' at the beginning. The label 
for all items for which the amounts disclosed are premiums for separate 
optional insurance, warranty, guarantee, or event-coverage products 
must include the parenthetical ``(optional)'' at the end. The items 
disclosed under proposed Sec.  1026.37(g)(4) are not required by the 
creditor. These items are also not additional coverage or endorsements 
added to products required by the creditor. Accordingly, they are not 
disclosed under other paragraphs of proposed Sec.  1026.37(f) or (g) 
and are disclosed under the subheading ``Other.'' These items are 
voluntary products that the consumer may be likely or may have already 
elected to purchase, and of which the creditor knows or is aware. The 
Bureau is proposing the requirements in Sec.  1026.37(g)(4) pursuant to 
its authority under TILA section 105(a) and RESPA section 19(a) because 
disclosure of payments that consumers are likely to pay in a mortgage 
transaction will educate consumers about costs they must be prepared to 
pay at closing, thereby promoting the informed use of credit and more 
effective advance disclosure of settlement costs, which are purposes of 
TILA and RESPA respectively. Dodd-Frank Act sections 1032(a) and 
1405(b) are also sources of authority for the proposed requirements. 
This information ensures that the features of the mortgage transactions 
are fully, accurately, and effectively disclosed to consumers in a 
manner that permits consumers to understand the costs, benefits, and 
risks associated with the transaction in light of the facts and 
circumstances, consistent with Dodd-Frank Act section 1032(a). 
Furthermore, for the reasons stated above, the proposed disclosure is 
in the interest of consumers and in the public interest, consistent 
with Dodd-Frank Act section 1405(b).
    Proposed comment 37(g)(4)-1 clarifies that any owner's title 
insurance policy premium disclosed under Sec.  1026.37(g)(4) is based 
on a basic rate, and not an ``enhanced'' premium. This comment is 
consistent with guidance provided in the HUD RESPA FAQs p.33, 
3 (``GFE-Block 5''). Proposed comment 37(g)(4)-1 also provides 
an example of a label for owner's title insurance and cross-references 
comment 37(f)(2)-4 for disclosure of the premium for lender's title 
insurance. Proposed comment 37(g)(4)-2 clarifies that any title 
insurance policy disclosed on the Loan Estimate based on a simultaneous 
issuance calculation must be disclosed by adding the full owner's title 
insurance premium plus the simultaneous issuance premium, and then 
deducting the amount of the lender's title at the full premium rate. 
Proposed comment 37(g)(4)-3 provides examples of products to which the 
description ``(optional'') applies and cross-references comments 
4(b)(7) and (b)(8)-1 through -3 and comments 4(b)(10)-1 and -2 for 
descriptions and guidance concerning disclosure of premiums for credit 
life, debt suspension, and debt cancellation coverage. Proposed comment 
37(g)(4)-4 provides examples of other items that are disclosed under 
Sec.  1026.37(g)(4) if known by the creditor at the time the Loan 
Estimate is issued and refers to comment 19(e)(3)(iii)-3 concerning 
application of the good faith requirement for services that are not 
required by the creditor.
37(g)(5) Total Other Costs
    Proposed Sec.  1026.37(g)(5) requires disclosure under the 
subheading ``Total Other Costs'' of the sum of the subtotals disclosed 
pursuant to paragraphs (g)(1) through (g)(4). The Bureau is proposing 
the requirements in Sec.  1026.37(g)(5) pursuant to its authority under 
TILA section 105(a) and RESPA section 19(a) because disclosure of the 
total of the charges consumers must pay, in addition to charges for 
consummating the loan, will promote the informed use of credit and more 
effective advance disclosure of settlement costs, which are purposes of 
TILA and RESPA respectively. Dodd-Frank Act sections 1032(a) and 
1405(b) are also sources of authority for the proposed requirements. 
This information ensures that the features of the mortgage transactions 
are fully, accurately, and effectively disclosed to consumers in a 
manner that permits consumers to understand the costs, benefits, and 
risks associated with the mortgage transaction in light of the facts 
and circumstances, consistent with Dodd-Frank Act section 1032(a). 
Furthermore, for the reasons stated above, the proposed disclosure is 
in the interest of consumers and in the public interest, consistent 
with Dodd-Frank Act section 1405(b).
37(g)(6) Total Closing Costs
    Proposed Sec.  1026.37(g)(6) requires the disclosure under the 
subheading ``Total Closing Costs'' of a subtotal of the items disclosed 
as ``Total Loan Costs'' and ``Total Other Costs'' pursuant to 
paragraphs (f)(4) and (g)(5); the amount of any generalized lender 
credits to be provided at consummation, stated as a negative number; 
and the sum of the subtotal of loan and other costs and the (negative) 
amount of lender credits. The Bureau is proposing the requirements in 
Sec.  1026.37(g)(6) pursuant to its authority under TILA section 105(a) 
and RESPA section 19(a) because disclosure of the total amounts 
consumers must pay to consummate the loan and close the property 
transaction will promote the informed use of credit and more effective 
advance disclosure of settlement costs, which are purposes of TILA and 
RESPA respectively. Dodd-

[[Page 51217]]

Frank Act sections 1032(a) and 1405(b) are also sources of authority 
for the proposed requirements. This information ensures that the 
features of the mortgage transactions are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to understand the costs, benefits, and risks associated with the 
mortgage transaction in light of the facts and circumstances, 
consistent with Dodd-Frank Act section 1032(a). Furthermore, for the 
reasons stated above, the proposed disclosure is in the interest of 
consumers and in the public interest, consistent with Dodd-Frank Act 
section 1405(b). Proposed comment 37(g)(6)(iii)-1 clarifies that 
generalized lender credits not associated with a particular service are 
disclosed under Sec.  1026.37(g)(6)(iii), but lender credits for 
specific items disclosed on the Loan Estimate are disclosed as paid by 
others on the Closing Disclosure under Sec.  1026.38(f) and (g), as 
applicable.
37(g)(7) Item Descriptions and Ordering
    In identifying the items listed as Other Costs, the creditor is 
required to use terminology that briefly and clearly describes the 
item. All items must be listed in alphabetical order following the 
items prescribed to be included under the subheading. The current RESPA 
GFE and early TILA disclosure do not include a similar requirement. The 
Bureau is proposing the requirements in Sec.  1026.37(g)(7) pursuant to 
its authority under TILA section 105(a) and RESPA section 19(a) because 
a consistent listing of the costs that appear on the Loan Estimate and 
the Closing Disclosure will facilitate the consumer's comparison of the 
two disclosure documents and understanding of the transaction as a 
whole, thereby promoting the informed use of credit and more effective 
advance disclosure of settlement costs, which are purposes of TILA and 
RESPA respectively. This requirement also will ensure that the features 
of the mortgage transactions are fully, accurately, and effectively 
disclosed to consumers in a manner that permit consumers to understand 
the costs, benefits, and risks associated with the mortgage transaction 
in light of the facts and circumstances, consistent with Dodd-Frank Act 
section 1032(a).
37(g)(8) Use of Addenda
    Proposed Sec.  1026.37(g)(8) provides that addenda may not be used 
to itemize disclosures required by Sec.  1026.37(g). If the creditor is 
not able to itemize all of the charges required to be disclosed in the 
number of lines provided under a subheading, the remaining charges must 
be disclosed as an aggregate amount in the last line permitted under 
the applicable subheading. The Bureau is proposing the requirements in 
Sec.  1026.37(g)(8) pursuant to its authority under TILA section 105(a) 
and RESPA section 19(a) because standardization of the information 
provided on the disclosures required under Sec.  1026.19(e) will 
provide consistent information that consumers will be able to use to 
better understand the mortgage transaction, shop for loans, and compare 
the Loan Estimate with any revised Loan Estimate and the Closing 
Disclosure, thereby promoting the informed use of credit and more 
effective advance disclosure of settlement costs, which are purposes of 
TILA and RESPA respectively. This standardization will also ensure that 
the features of the mortgage transactions are fully, accurately, and 
effectively disclosed to consumers in a manner that permit consumers to 
more readily understand the costs, benefits, and risks associated with 
the mortgage transaction in light of the facts and circumstances, 
consistent with Dodd-Frank Act section 1032(a), which is also a source 
of authority for the proposed requirements.
    Proposed comment 37(g)(8)-1 clarifies that a creditor is permitted 
to provide additional disclosures that are required by State law, as 
long as those disclosures are provided on a separate document whose 
pages are physically separate from, and are not presented as part of, 
the disclosures provided in accordance with Sec.  1026.37.
37(h) Calculating Cash To Close
    Pursuant to its authority under TILA section 105(a) and Dodd-Frank 
Act section 1032(a), the Bureau proposes Sec.  1026.37(h), which 
requires the disclosure of the calculation of an estimate of the cash 
needed from the consumer at consummation of the transaction. In 
addition to promoting the informed use of credit (which is a purpose of 
TILA), this disclosure would ensure that the features of the 
transaction are fully, accurately, and effectively disclosed to 
consumers in a manner that permits consumers to understand the costs, 
benefits, and risks associated with the product, in light of the facts 
and circumstances, consistent with section 1032(a) of the Dodd-Frank 
Act. Proposed comment 37(h)-1 clarifies that the labels to be used on 
the Loan Estimate for each amount must match their description in 
proposed Sec.  1026.37(h)(1) to (7).
37(h)(1) Total Closing Costs
37(h)(2) Closing Costs To Be Financed
    Under Sec.  1026.37(h)(1), the total closing costs would be 
disclosed as calculated under Sec.  1026.37(g)(6) as a positive number. 
Under Sec.  1026.37(h)(2), the amount of the closing costs to be paid 
from loan proceeds would be disclosed as a negative number.
37(h)(3) Downpayment and Other Funds From Borrower
    Under Sec.  1026.37(h)(3), the amount of the downpayment and other 
funds from consumer at consummation would be disclosed as a positive 
number. In a purchase transaction the downpayment would be calculated 
as the difference between the purchase price of the property and the 
principal amount of the credit. In all other transactions, the funds 
from the consumer would be calculated under Sec.  1026.37(h)(5).
37(h)(4) Deposit
    Under proposed Sec.  1026.37(h)(4), the amount that is paid to the 
seller or held in trust or escrow by a third party pursuant to the 
terms of a contract for sale of real estate disclosed as a negative 
number. Proposed comment 37(h)(4)-1 clarifies that in any transaction 
other than a purchase transaction, the amount disclosed under proposed 
Sec.  1026.37(h)(4) must be $0.
37(h)(5) Funds for Borrower
    Under proposed Sec.  1026.37(h)(5), the amounts to be disclosed 
under both Sec.  1026.37(h)(3) and Sec.  1026.37(h)(5) are calculated 
by subtracting the amount of debt being satisfied by the real estate 
transaction and the amount of the credit extended by the new loan, 
excluding any amount under Sec.  1026.37(h)(2) since that amount of the 
credit extended has already been accounted for in the cash to close 
calculation by inclusion in Sec.  1026.37(h)(2). Funds for Borrower'' 
is intended to generally represent the amount anticipated to be 
disbursed to the consumer or used at consumer's discretion at 
consummation of the transaction, such as in cash-out refinance 
transactions. The determination of whether the transaction will result 
in ``Funds for Borrower'' is made under proposed Sec.  1026.37(h)(5). 
When the result of the calculation is positive, that amount is 
disclosed under Sec.  1026.37(h)(3), and $0.00 is disclosed under Sec.  
1026.37(h)(5). When the result of the calculation is negative, that 
amount is disclosed under Sec.  1026.37(h)(5), and $0.00 is disclosed 
under Sec.  1026.37(h)(3). When the result is $0.00, $0.00 is disclosed 
in both Sec. Sec.  1026.37(h)(3) and 1026.37(h)(5).

[[Page 51218]]

37(h)(6) Seller Credits
    Under proposed Sec.  1026.37(h)(6), the amount of any seller 
credit, to the extent known by the creditor, is disclosed as a negative 
number. Proposed comment 37(6)-1 clarifies that seller credits known by 
the creditor at the time of application are disclosed under Sec.  
1026.37(h)(6), and that seller credits that are not known by the 
creditor are not disclosed under Sec.  1026.37(h)(6).
37(h)(7) Adjustments and Other Credits
    Under proposed Sec.  1026.37(h)(7) the amount of other credits for 
all loan costs and other costs, to the extent known, that are to be 
paid by persons other than the loan originator, creditor, consumer, or 
seller disclosed as a negative number. Proposed comment 37(h)(7)-1 
clarifies that amounts expected to be paid by third parties not 
involved in the transaction, such as gifts from family members and not 
otherwise identified under Sec.  1026.37(h), would be included in this 
amount to the extent known by the creditor. Proposed comment 37(h)(7)-2 
clarifies that the term ``persons'' as used in Sec.  1026.37(h)(7) 
includes all individuals and any entity, regardless of the legal 
structure of such entity. Proposed comment 37(h)(7)-3 clarifies that 
only credits from parties other than the creditor or seller can be 
disclosed pursuant to Sec.  1026.37(h)(7). Seller credits and credits 
from the creditor are disclosed pursuant to Sec.  1026.37(h)(6) and 
Sec.  1026.37(g)(6)(ii), respectively. Proposed comment 37(h)(7)-4 
clarifies that other credits known by the creditor at the time of 
application are disclosed under Sec.  1026.37(h)(7), and that other 
credits that are not known by the creditor are not disclosed under 
Sec.  1026.37(h)(6).
37(h)(8) Estimated Cash To Close
    Under proposed Sec.  1026.37(h)(8) the total of the amounts 
disclosed under proposed Sec.  1026.37(h)(1) to (7) is disclosed. 
Proposed comment 37(h)(8)-1 clarifies that the sum total of Sec.  
1026.37(h)(1) through (7) must be disclosed pursuant to Sec.  
1026.37(h)(8) as either a positive number, a negative number, or zero. 
A positive number indicates the estimated amount that the consumer can 
be expected to pay at consummation to complete the transaction. A 
negative number indicates the estimated amount that the consumer can 
receive from the transaction at consummation. A result of zero 
indicates that the consumer is anticipated to neither need to pay any 
amount or receive any amount from the transaction at consummation.
37(i) Adjustable Payment Table
    For certain credit transactions secured by a dwelling, TILA section 
128(b)(2)(C)(ii) requires the disclosure of examples of adjustments to 
the regular required payment on the extension of credit based on the 
change in the interest rates specified by the contract. Among the 
examples must be the maximum regular required payment based on the 
maximum interest rate allowed under the contract. While this section 
requires examples based on changes to the interest rates, the 
requirement is triggered if either the interest rate may change or the 
``regular payments may otherwise be variable.'' 15 U.S.C. 
1638(b)(2)(C)(ii). TILA section 128(b)(2)(C)(ii) does not, however, 
require the disclosure of the existence of loan terms that may cause 
the periodic payment to adjust without a change to the interest rate.
    The Bureau believes that, to promote the informed use of credit, 
loan terms that may cause the periodic principal and interest payment 
to adjust without a change to the interest rate (such as an optional 
payment loan) or include a period during which the payment may not pay 
principal (such as an interest-only period) or is not required to make 
payments should be clearly disclosed to consumers. In the Bureau's 
consumer testing, participants generally were able to use this 
information to evaluate the credit terms of the loan disclosed.
    For example, the Bureau provided mortgage disclosures for interest-
only loans to participants using a prototype of an ``adjustable payment 
table'' at its consumer testing. The table displayed whether the loan 
had an interest-only, optional-payment, or step-payment period; the 
length of such period; the amount of the periodic principal and 
interest payment at the first adjustment; the frequency and amounts of 
subsequent adjustments; and the maximum possible principal and interest 
payment under the terms of the loan. Participants were able to use this 
table to determine the presence of the interest-only period and the 
length of the period, as well as how the principal and interest 
payments would change as a result. Also, participants were able to 
understand that the purpose of the table generally was to inform them 
about such features. They were able to determine from the prototype 
table that the credit terms did not include one of the other features, 
such as an optional-payment or step-payment period.
    Proposed Sec.  1026.37(i) requires an Adjustable Payment (AP) table 
to disclose examples of the required periodic principal and interest 
payment, including the maximum possible required principal and interest 
payment, for loans with terms that allow the principal and interest 
payment to adjust not based on adjustments to the interest rate. In 
contrast, proposed Sec.  1026.37(j) requires provision of an Adjustable 
Interest Rate table for credit transactions with terms that permit the 
interest rate to adjust after consummation. Proposed Sec.  
1026.37(i)(1) through (3) requires the disclosure to state 
affirmatively or negatively whether the loan has an interest-only, 
payment-option, or step-payment period, and the length of such period. 
Proposed Sec.  1026.37(i)(4) also requires the disclosure to state 
affirmatively or negatively whether the loan has a seasonal payment 
feature and the period during which periodic payments are affected by 
such feature. As discussed above with respect to proposed Sec.  
1026.37(a)(10), the Bureau understands that some loans may be 
structured so that periodic principal and interest payments are not 
required to be made by the consumer in between specified unit-periods 
on a regular basis.
    The format of the table as required by proposed Sec.  1026.37(o), 
and as illustrated by form H-24 in appendix H to Regulation Z, provides 
the affirmative or negative statement in bold text in the form of a 
question and answer. In addition, the examples of the periodic 
principal and interest payments are set apart from these answers by a 
subheading in bold text. The Bureau believes, based on consumer 
testing, that this format displays the information in a readily 
visible, clear, and understandable manner for consumers.
    The Bureau proposes these requirements pursuant to TILA section 
128(b)(2)(C)(ii), and its authority under TILA section 105(a), section 
1032(a) of the Dodd-Frank Act, and, for residential mortgage loans, 
section 1405(b) of the Dodd-Frank Act. The Bureau proposes to use its 
authority under TILA section 105(a) to require this information to be 
disclosed for all transactions subject to Sec.  1026.19(e) and (f). The 
Bureau believes this information may effectuate the purposes of TILA by 
allowing consumers to compare more readily the different loan terms 
available to them, and specifically, whether they contain such 
adjustable or seasonal payment terms. In addition, consistent with 
section 1032(a) of the Dodd-Frank Act, this disclosure would ensure 
that the features of the transaction are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to understand the costs, benefits, and risks. In addition, the Bureau 
believes this information may improve consumer awareness and

[[Page 51219]]

understanding of transactions involving residential mortgage loans and 
is in the interest of consumers and the public interest.
    Proposed comment 37(i)-1 clarifies that under Sec.  1026.37(i), the 
AP table may only be disclosed if the periodic principal and interest 
payment may change after consummation based on an adjustment that is 
not an adjustment to the interest rate, or if the transaction is a 
seasonal payment product as described in proposed Sec.  
1026.37(a)(10)(ii)(E). The creditor is not permitted to disclose the 
table if the loan terms do not meet these requirements, even if the 
table is left blank or disclosed with an ``N/A'' within each row. The 
Bureau believes that the inclusion of the AP table in such cases would 
be unduly distracting and confusing to a consumer and could contribute 
to information overload--especially if an entire table is included only 
to be marked ``not applicable.'' As the information within the table 
must be determined dynamically, depending on each transaction's terms, 
the Bureau believes a requirement that it be omitted when not 
applicable is unlikely to be a significant additional burden. This 
comment references proposed comment 37-1, which clarifies the general 
permission in proposed Sec.  1026.37 to provide the required 
disclosures ``as applicable'' is subject to the more specific 
prohibition in proposed Sec.  1026.37(i), which does not permit 
disclosure of the AP table when it is not applicable. As the two 
tables' numbers of rows and columns are determined dynamically, 
depending on each transaction's terms, the Bureau believes a 
requirement that they be omitted when not applicable is unlikely to be 
a significant additional burden. The Bureau seeks comment on whether 
this dynamic inclusion/exclusion requirement would be unduly burdensome 
for creditors.
    Proposed comment 37(i)-2 provides guidance and examples of how the 
information required by proposed Sec.  1026.37(i)(1) through (4) should 
be disclosed. Proposed comment 37(i)(5)-1 clarifies that the applicable 
unit-period should be disclosed in the subheading required by proposed 
Sec.  1026.37(i)(5). Proposed comment 38(i)(5)-2 provides guidance on 
how to disclose the first payment adjustment required to be disclosed 
by proposed Sec.  1026.37(i)(5)(i) when the exact payment number is 
unknown at the time of the disclosure. Proposed comment 38(i)(5)-3 
provides guidance regarding how to disclose the frequency of 
adjustments to the periodic principal and interest payment after the 
initial adjustment, as required by proposed Sec.  1026.37(i)(5)(ii). 
Proposed comment 37(i)(5)-4 provides guidance regarding how to 
calculate the maximum periodic principal and interest payment for 
purposes of the disclosure required by proposed Sec.  
1026.37(i)(5)(iii).
    The format required by proposed Sec.  1026.37(o), and illustrated 
by forms H-24(b) and (c) in appendix H to this part, provides the 
information required by proposed Sec.  1026.37(i) in a concise, 
organized table. This table appears immediately adjacent to the 
Adjustable Interest Rate (AIR) Table required by proposed Sec.  
1026.37(j) for loans that also permit the interest rate to adjust after 
consummation. The table uses bold text for the questions and 
capitalized ``yes'' and ``no'' text for the answers required by 
proposed Sec.  1026.37(i)(1), (2), (3), and (4). The AP table also uses 
bold text for the subheading required by proposed Sec.  1026.37(i)(5). 
Based on its testing, the Bureau believes this format displays the 
information in a clear, readily visible, and understandable manner for 
consumers.
37(j) Adjustable Interest Rate Table
    Currently, TILA does not expressly require disclosure of the 
interest rate for closed-end credit. However, as noted above, for 
closed-end credit secured by a dwelling, TILA section 128(b)(2)(C)(ii) 
requires disclosure of examples of the periodic principal and interest 
payment based on changes to the interest rate, including the maximum 
principal and interest payment during the life of the loan. 15 U.S.C. 
1638(b)(2)(C)(ii). Regulation Z Sec.  1026.18(s) currently requires, 
for closed-end credit transactions with adjustable interest rates 
secured by real property or a dwelling, disclosure of examples of the 
interest rate and periodic principal and interest payments, including 
the maximum of these amounts under the terms of the loan. For federally 
related mortgage loans, Sec.  1024.7(d) of Regulation X currently 
requires the summary table on page one of the RESPA GFE to disclose the 
initial interest rate, labeled ``Your initial interest rate is.'' Then 
below another row of the summary table stating the initial monthly 
payment, the RESPA GFE states whether the interest rate is adjustable 
as an affirmative or negative answer, labeled ``Can your interest rate 
rise?'' If the answer is affirmative, the RESPA GFE states the maximum 
interest rate and when the first change in the interest rate will occur 
within the following sentence: ``It can rise to a maximum of ----%. The 
first change will be in ----------.''
    The Bureau believes that loan terms that can cause the interest 
rate to adjust should be clearly disclosed to consumers. At the 
Bureau's consumer testing, participants generally stated that 
information regarding potential changes to the interest rate was 
important in their evaluation of a loan. Participants generally 
understood that the interest rate affected the amount of interest due 
under the loan and used the information regarding potential changes to 
the interest rate to evaluate loans. Although proposed Sec.  
1026.37(b)(2) provides key information about interest rate adjustments, 
the Bureau believes more detail regarding an adjustable interest rate 
is important because it would provide consumers with additional detail 
regarding potential changes to the interest and periodic payments that 
may be useful in evaluating and comparing loans.
    The Bureau provided mortgage disclosures for adjustable interest 
rate loans to participants using a prototype of an ``Adjustable 
Interest Rate Table'' at its consumer testing. The table displayed 
information about the index and margin applicable to the loan, the 
initial interest rate, the minimum and maximum interest rates during 
the life of the loan, the frequency of changes to the interest rate, 
and limits on the interest rate changes. Participants were able to 
understand that the purpose of the table generally was to inform them 
about the adjustable interest rate terms under the loan and often used 
the table to compare adjustable-rate loans. The table enabled consumers 
to determine the interest rate terms of the transaction and to compare 
two adjustable-rate loans with different terms.
    Therefore, the Bureau proposes to use its authority under TILA 
section 105(a), section 1032(a) of the Dodd-Frank Act, and, for 
residential mortgage loans, section 1405(b) of the Dodd-Frank Act to 
require more detailed information regarding the terms of an adjustable 
interest rate to be disclosed in a separate table, called the 
Adjustable Interest Rate (AIR) Table, under proposed Sec.  1026.37(j). 
The information regarding the index and margin applicable to the 
interest rate changes, the lifetime cap and floor on the interest rate, 
and limits on interest rate adjustments are not currently provided 
together to consumers in a clear, readily visible, and understandable 
manner. Consumers can find this information within the promissory note, 
but they typically do not receive the promissory note until they are at 
the closing table. Disclosure of this information in the Loan Estimate 
and Closing Disclosure will enable consumers to verify whether these 
terms

[[Page 51220]]

have changed during the loan process. This is especially important if 
the index and margin have changed or the lifetime maximum interest rate 
has changed, because such changes can significantly affect the amounts 
of periodic payments over the life of the loan.
    As described above, participants in the Bureau's consumer testing 
used much of this information and generally considered interest rate 
information to be an important factor in evaluating a loan. 
Participants were able to compare this information between loans and 
between the disclosures provided after application and prior to loan 
closing. The Bureau believes this information may enable consumers to 
understand and compare credit terms more readily, effectuating the 
purposes of TILA. For similar reasons, the Bureau believes this 
disclosure will ensure that the features of the transactions are fully, 
accurately, and effectively disclosed to consumers in a manner that 
permits consumers to understand the costs, benefits, and risks, in 
light of the facts and circumstances, consistent with section 1032(a) 
of the Dodd-Frank Act. The Bureau also believe this information will 
improve consumer awareness and understanding of transactions involving 
residential mortgage loans through the use of disclosures, and is in 
the interest of consumers and in the public interest.
    Proposed Sec.  1026.37(j) requires disclosure of the index and 
margin for an adjustable rate loan for which the interest rate will 
adjust according to an external index. For a loan with an interest rate 
that changes based on scheduled or pre-determined interest rate 
adjustments and does not also change based on the adjustment of an 
external index, such as a ``step-rate'' product, proposed Sec.  
1026.37(j) requires disclosure of the amount of any adjustments to the 
interest rate that are scheduled and their frequency. The table also 
requires disclosure of: (i) The interest rate at consummation of the 
loan transaction; (ii) the minimum and maximum possible interest rates 
after the introductory rate expires; (iii) the maximum possible change 
for the first adjustment of the interest rate; (iv) the maximum 
possible change for subsequent adjustments of the interest rate; (v) 
the number of months after interest for the first regularly scheduled 
periodic principal and interest payment begins to accrue when the 
interest rate may first change; and (vi) the frequency of subsequent 
interest rate adjustments.
    Proposed comment 37(j)-1 clarifies that the table required by 
proposed Sec.  1026.37(j) may only be provided in the Loan Estimate 
when the interest rate may change after consummation. The creditor is 
not permitted to disclose the table in the Loan Estimate if the 
interest rate will remain fixed, even if the table is left blank or 
disclosed with an ``N/A'' within each row. As with the AP table, the 
Bureau believes that the inclusion of the AIR table in such cases would 
be unduly distracting and confusing to a consumer and potentially cause 
information overload--especially if an entire table is included only to 
be marked ``not applicable.'' As the information within the table must 
be determined dynamically, depending on each transaction's terms, the 
Bureau believes a requirement that it be omitted when not applicable is 
unlikely to be a significant additional burden. In the discussion of 
proposed Sec.  1026.37(i) above, the Bureau seeks comment on whether 
this dynamic inclusion/exclusion requirement would be unduly burdensome 
for creditors.
    Proposed comment 37(j)(1)-1 provides guidance regarding how the 
name of the index may be shortened. Proposed comment 37(j)(2)-1 
clarifies that the table discloses the information required by proposed 
Sec.  1026.37(j)(2) only if the loan does not also permit the interest 
rate to adjust according to an external index. Proposed comment 
37(j)(3)-1 provides guidance regarding the initial interest rate that 
must be disclosed. Proposed comment 37(j)(4)-1 clarifies how the 
minimum interest rate should be disclosed if the legal obligation does 
not state a minimum rate. Proposed comment 37(j)(4)-2 clarifies how the 
maximum interest rate should be disclosed if the legal obligation does 
not state a maximum interest rate. While Sec.  1026.30 currently 
provides that a creditor must include a maximum interest rate in any 
closed-end consumer credit contract secured by a dwelling for which the 
annual percentage rate may increase after consummation, that section 
applies only to transactions secured by a dwelling. The disclosure 
required by proposed Sec.  1026.37(j)(4) applies to transactions 
subject to Sec.  1026.19(e), which includes consumer credit 
transactions secured by real property, which may not include a 
dwelling.
    Proposed comment 37(j)(5)-1 clarifies that if the exact month of 
the first adjustment to the interest rate is not known at the time the 
disclosure is provided, the earliest possible month must be disclosed 
under proposed Sec.  1026.37(j)(6). Proposed comment 37(j)(6)-1 
clarifies that when more than one limit applies to subsequent 
adjustments to the interest rate, the largest amount must be disclosed 
under proposed Sec.  1026.37(j)(6).
    The format required by proposed Sec.  1026.37(o), and illustrated 
by proposed form H-24(C) in appendix H to this part, provides the 
information required by proposed Sec.  1026.37(j) in a concise, single 
table. This table appears immediately adjacent to the AP table required 
by proposed Sec.  1026.37(i) for loans that permit the periodic 
principal and interest payment to adjust based on an adjustment other 
than an adjustment to the interest rate. The table uses concise labels 
and bold subheadings for disclosures of the frequency of interest rate 
changes and the limits on interest rate changes. Based on its testing, 
the Bureau believes this format displays the information in a clear, 
readily visible, and understandable manner for consumers.
37(k) Contact Information
    Under TILA section 128(a)(1) and Regulation Z Sec.  1026.18(a), the 
TILA disclosures must include the identity of the creditor. Comment 
18(a)-1 clarifies that the ``identity'' of the creditor must include 
the name of the creditor, but may also include the creditor's address 
and/or telephone number. As stated in appendix C to Regulation X, the 
RESPA GFE must include the name, address, phone number, and email 
address (if any) of the loan originator.
    TILA, RESPA, and their implementing regulations do not currently 
require the disclosure of contact information for the individual loan 
officer, however. Therefore, the Bureau is proposing to require that 
the Loan Estimate contain certain contact information for the loan 
officer as set forth in proposed Sec.  1026.37(k) based on its 
authority under TILA section 105(a), RESPA section 19(a), Dodd-Frank 
Act section 1032(a), and, for residential mortgage loans, Dodd-Frank 
Act section 1405(b). The Bureau believes that this contact information 
will effectuate the purposes of TILA and RESPA by facilitating the 
informed use of credit and ensuring that consumers are provided with 
greater and more timely information on the costs of the settlement 
process. Providing consumers with multiple types of contact information 
for the loan officers with whom they interact on the transaction will 
allow consumers easier access to information relevant to the 
transaction (including costs), which in turn ensures that the features 
of the transaction are fully, accurately, and effectively disclosed to 
consumers in a matter that permits consumers to understand the costs, 
benefits, and risks associated with the transaction in light of the 
facts and circumstances, consistent with Dodd-Frank Act section 
1032(a). The Bureau also believes such

[[Page 51221]]

disclosure will improve consumers' awareness and understanding of 
residential mortgage transactions, which is in the interest of 
consumers and the public, consistent with Dodd-Frank Act section 
1405(b).
    In light of the differing requirements under TILA and RESPA with 
regard to the types of contact information disclosed on the early TILA 
disclosure and RESPA GFE, respectively, the Bureau also is proposing 
Sec.  1026.37(k) based on its mandate under sections 1032(f), 1098, and 
1100A of the Dodd-Frank Act to propose rules and forms that combine the 
disclosures required under TILA and sections 4 and 5 of RESPA into a 
single, integrated disclosure for mortgage loan transactions covered by 
those laws. As discussed above, appendix C to Regulation X states that 
the RESPA GFE must include the name, address, phone number, and email 
address (if any) of the loan originator. Thus, as part of the Bureau's 
statutory mandate to integrate the TILA and RESPA disclosures, the 
Bureau must integrate the disclosures currently required under 
Regulation X with the TILA-mandated disclosures of the creditor's 
identity, discussed above.
    Furthermore, TILA section 129B(b)(1)(B), 15 U.S.C. 1639b(b)(1)(B), 
which was added by section 1402(a)(2) of the Dodd-Frank Act, mandates 
that each mortgage originator include on all loan documents any unique 
identifier of the mortgage originator provided by the Nationwide 
Mortgage Licensing System and Registry (NMLSR or NMLS). TILA section 
129B(b)(1)(B) will be implemented in a separate rulemaking. The Bureau 
proposes to use its authority under TILA section 105(a) and Dodd-Frank 
Act sections 1032(a) and, for residential mortgage loans, 1405(b) of 
the Dodd-Frank Act to propose Sec.  1026.37(k) for transactions subject 
to proposed Sec.  1026.19(e). Proposed Sec.  1026.37(k) requires 
creditors to provide certain contact and licensing information for 
themselves, the mortgage broker, and their respective loan officers, as 
applicable. The Bureau expects to harmonize this proposal with the 
rulemaking implementing TILA section 129B(b)(1)(B).
    The Bureau believes that requiring on the Loan Estimate the 
disclosure of the name and NMLSR identification number (NMLSR ID) 
number, if any, for the creditor, mortgage broker, and the loan 
officers employed by such entities, as applicable (or, if none, the 
license number or other unique identifier, if any, issued by the 
applicable State, locality, or other regulatory body with 
responsibility for licensing and/or registering such entity's or 
individual's business activities) may provide consumers with the 
information they need to conduct the due diligence necessary to ensure 
that any creditor, mortgage broker, and associated loan officer 
selected to originate the loan are appropriately licensed. Having this 
information may help consumers assess the risks associated with 
services and service providers retained in connection with the 
transaction, which in turn promotes the informed use of credit 
(consistent with TILA section 105(a)), ensures that consumers are 
provided with greater and more timely information on the costs of the 
settlement process (consistent with RESPA section 19(a)), ensures that 
the features of the transaction are fully, accurately, and effectively 
disclosed to consumers in a manner that permits consumers to understand 
the costs, benefits, and risks associated with the transaction in light 
of the facts and circumstances (consistent with Dodd-Frank Act section 
1032(a)), and improves consumers' awareness and understanding of 
residential mortgage transactions, which is in the interest of 
consumers and the public (consistent with Dodd-Frank Act section 
1405(b)).
    Thus, under the master heading ``Additional Information About This 
Loan,'' proposed Sec.  1026.37(k)(1) requires the name and NMLSR ID, if 
any, for the creditor and the mortgage broker, if applicable. Proposed 
Sec.  1026.37(k)(2) requires the name and NMLSR ID for the loan officer 
associated with the creditor and mortgage broker identified in proposed 
Sec.  1026.37(k)(1), if applicable. In the event the creditor, mortgage 
broker, or individual loan officer has not been assigned an NMLSR ID, 
proposed Sec.  1026.37(k)(1) and (2) require the license number or 
other unique identifier issued by the applicable jurisdiction or 
regulating body with which the creditor or mortgage broker is licensed 
and/or registered to be disclosed, if any. Proposed Sec.  1026.37(k)(3) 
requires an email address and phone number for each loan officer 
identified in proposed Sec.  1026.37(k)(2).
    Proposed comment 37(k)-1 provides a description of the NMLSR ID. 
Proposed comment 37(k)-1 also references provisions of the Secure and 
Fair Enforcement for Mortgage Licensing Act of 2008 (SAFE Act) 
requiring individuals to register or obtain a license through the 
NMLSR, and clarifies that the information required in Sec.  
1026.37(k)(1) and (2) must be provided for any creditor, mortgage 
broker, and loan officer that has obtained an NMLSR ID. Proposed 
comment 37(k)-2 provides clarification as to the nature of the license 
or other unique identifier that is to be disclosed in the event the 
creditor, mortgage broker, or individual loan officer has not been 
assigned an NMLSR ID. Proposed comment 37(k)-3 clarifies that the loan 
officer is the individual who interacts most frequently with the 
consumer and who has an NMLSR identification number or, if none, a 
license number, or other unique identifier to be disclosed under 
proposed Sec.  1026.37(k)(2), as applicable.
37(l) Comparisons
    TILA generally focuses on disclosing the long-term cost of credit. 
However, many of the disclosures required by the statute have proven 
confusing for consumers. As discussed below and in part II above, 
Federal agencies have long recognized that certain statutorily-required 
disclosures, such as the finance charge and amount financed, are not 
effective for communicating the cost of credit to consumers and that, 
in some cases, the disclosures hinder consumers' ability to understand 
their credit terms.
    One problem with the TILA disclosures is consumer confusion between 
common contract terms, such as interest rate and loan amount, and the 
required statutory disclosures. For example, as discussed below, 
consumer testing conducted by the Board indicates that consumers are 
confused about the difference between the required TILA disclosure of 
the ``amount financed'' and the amount of their loan or sale price of 
the property. Similarly, the Board-HUD Joint Report and consumer 
testing conducted by the Board and the Bureau indicates consumer 
confusion over the difference between the contract interest rate and 
the APR, in part because both are expressed in the form of a rate and 
in part because of the difficulty in communicating to consumers the 
meaning of the APR. Third, the TILA disclosures focus on the cost of 
credit over the entire life of the loan, which is of limited use in the 
context of mortgage lending since consumers generally do not hold those 
loans for the entire loan term. As discussed below and in part III 
above, the results of the Bureau's consumer testing is consistent with 
these concerns.
    The Bureau believes that providing consumers with useful tools to 
compare loans is critical to carrying out the purposes of TILA, RESPA, 
and the Dodd-Frank Act. Accordingly, for the reasons described below, 
the Bureau is proposing to group several key metrics together on the 
first page of the Loan Estimate and shift others to the last page of 
the Loan Estimate. In addition, the

[[Page 51222]]

Bureau is proposing to provide certain items only on the Closing 
Disclosure because they are less useful to consumers early in the 
lending process and create the risk of undermining the effectiveness of 
the Loan Estimate. The Bureau proposes this approach to the TILA 
disclosures because consumer testing conducted by the Bureau, as well 
as prior testing conducted by the Board, strongly indicates that 
consumers benefit from a disclosure that highlights loan terms that are 
useful to consumers in evaluating the cost of credit and consumers' 
ability to afford those costs, such as the interest rate, monthly 
payment amount, and amount of cash needed to close the loan, and 
deemphasizes terms that have proven confusing or unhelpful to 
consumers.
    The proposed rule shifts some statutorily required disclosures from 
the first page because the Bureau's consumer testing shows that 
consumers benefit from this approach. The proposed forms focus on 
presenting the basic loan terms and risk features to consumers first, 
because these disclosures are critical to evaluating affordability and 
facilitating comparison of loans. The Bureau's consumer testing 
confirms that consumers are able to locate the longer-term measures of 
the cost of credit, notwithstanding the fact that the proposed forms 
shift those disclosures from the first page of the disclosure. 
Moreover, the Bureau's consumer testing suggests that moving the 
disclosure of the APR away from the disclosure of the loan's contract 
interest rate and placing the APR with other long-term metrics may 
reduce consumer confusion and highlight the APR as a special tool for 
comparing costs over time.
    Accordingly, proposed Sec.  1026.37(l) requires creditors to 
disclose, under the master heading ``Additional Information About This 
Loan,'' information required by TILA section 128(a)(4), (5), (8), and 
(19) in a separate table under the heading ``Comparisons,'' along with 
the statement, ``Use these measures to compare this loan with other 
loans.'' Specifically, the table required by proposed Sec.  1026.37(l) 
must contain the total payments (of principal, interest, mortgage 
insurance, and loan costs) a consumer will have made through the end of 
the 60th month after the due date of the first periodic payment (In 5 
Years), the annual percentage rate (APR), and the total interest 
percentage (TIP), as described in Sec.  1026.37(l)(1) through (3). 
Pursuant to proposed Sec.  1026.37(o) and proposed form H-24, the table 
required by proposed Sec.  1026.37(l) will appear on the final page of 
the Loan Estimate, apart from the key loan terms identified on the 
first page of the Loan Estimate. Based on research regarding consumer 
comprehension and behavior and the results of the Bureau's consumer 
testing, as discussed above, the Bureau believes that the disclosure of 
these calculations on the final page of the Loan Estimate and apart 
from the key loan terms may enhance the overall understanding of the 
disclosures.
37(l)(1) In Five Years
    TILA section 128(a)(5) and (8) requires creditors to disclose the 
sum of the amount financed and the finance charge using the term 
``Total of Payments,'' and a descriptive explanation of that term. 15 
U.S.C. 1638(a)(5), (8). Current Sec.  1026.18(h) implements these 
statutory provisions by requiring creditors to disclose the ``total of 
payments,'' using that term, and a descriptive explanation that the 
figure represents the amount the consumer will have paid after making 
all scheduled payments. Current comment 18(h)-2 provides that creditors 
calculate the total of payments amount for transactions subject to 
current Sec.  1026.18(s) using the rules in current Sec.  1026.18(g) 
and associated commentary and, for adjustable-rate transactions, 
comments 17(c)(1)-8 and -10. Current comment 18(g)-1 provides guidance 
to creditors on the amounts to be included in the total of payments 
calculation. Current comment 18(h)-1 allows creditors to revise the 
total of payments descriptive statement for variable-rate transactions 
to convey that the disclosed amount is based on the annual percentage 
rate and may change. In addition, current comments 18(h)-3 and -4 
permit creditors to omit the total of payments disclosure in certain 
single-payment transactions and for demand obligations that have no 
alternate maturity rate.
    The total of payments disclosure has historically been confusing 
for consumers. For example, consumer testing conducted for purposes of 
the Board's 2009 Closed-End Proposal found that many consumers did not 
understand the total of payments disclosure and that, even when 
consumers understood the meaning, most did not consider it important in 
their decision-making process. Macro 2009 Closed-End Report at 11, v. 
Based on the Board's testing and prior research about the total of 
payment disclosure, the Bureau considered alternative metrics that 
might prove more useful to consumers. As discussed above, one problem 
with the TILA-required disclosures is that they are calculated over the 
entire length of the loan, although the Bureau understands that 
consumers may typically only hold mortgage loans for five to seven 
years before selling the property or refinancing. Accordingly, the 
total of payments over the life of the loan is such a large number that 
consumers often find it overwhelming or unrealistic, and therefore not 
a meaningful disclosure of the cost of credit. Furthermore, the total 
of payments over the life of the loan does not provide an accurate 
basis for identifying the lowest cost loan for the time a consumer will 
realistically hold the loan.
    Since the Board's testing has already shown that consumers do not 
understand the total of payments disclosure, the Bureau's testing 
focused on expressions of dollar amounts that are more likely to be 
understood and used by consumers. The Bureau also recognized that 
simply providing one disclosure would not give consumers an accurate 
view of how much their payments actually reduce the principal balance 
of the loan, which would help consumers pick the loan that puts them in 
the best financial position after the five to seven year mark if they 
do not sell the property or refinance. Accordingly, the Bureau 
developed a two-element disclosure.
    First, proposed Sec.  1026.37(l)(1)(i) requires the creditor to 
disclose the dollar amount of the total principal, interest, mortgage 
insurance, and loan costs (disclosed pursuant to proposed Sec.  
1026.37(f)) scheduled to be paid through the end of the 60th month 
after the due date of the first periodic payment, expressed as a dollar 
amount, along with the statement ``Total you will have paid in 
principal, interest, mortgage insurance, and loan costs.'' Proposed 
comment 37(l)(1)(i)-1 clarifies that the amount disclosed pursuant to 
Sec.  1026.37(l)(1)(i) is the sum of principal, interest, mortgage 
insurance, and loan costs scheduled to be paid through the end of the 
60th month after the due date of the first periodic payment. The 
comment also clarifies that, for purposes of Sec.  1026.37(l)(1)(i), 
interest is calculated using the fully-indexed rate at consummation and 
includes any prepaid interest. The comment further provides that, for 
purposes of Sec.  1026.37(l)(1)(i), the creditor assumes that the 
consumer makes payments as scheduled and on time. In addition, proposed 
comment 37(l)(1)(i)-1 provides that, for purposes of Sec.  
1026.37(l)(1)(i), mortgage insurance is defined pursuant to comment 
37(c)(1)(i)(C)-1, and includes prepaid or escrowed mortgage insurance, 
and that loan costs are those costs disclosed

[[Page 51223]]

pursuant to paragraph 1026.37(f). Proposed comment 37(l)(1)(i)-2 
provides guidance to creditors on calculating principal and interest 
disclosures for loans with negative amortization features.
    Second, proposed Sec.  1026.37(l)(1)(ii) requires the creditor to 
disclose the dollar amount of principal scheduled to be paid through 
the end of the 60th month after the due date of the first periodic 
payment, expressed as a dollar amount, along with the statement 
``Principal you will have paid off.'' Proposed comment 37(l)(1)(ii)-1 
clarifies that the disclosure required by proposed Sec.  
1026.37(l)(1)(ii) is calculated in the same manner as the disclosure 
required by proposed Sec.  1026.37(l)(1)(i), provided, however, that 
the disclosed amount reflects only the total payments to principal 
through the end of the 60th month after the due date of the first 
periodic payment.
    Proposed Sec.  1026.37(l)(1)(i) implements the requirements of TILA 
section 128(a)(5) and (8) for transactions subject to proposed Sec.  
1026.19(e). The Bureau proposes to modify the total of payments 
disclosure to reflect the total payments over five years, rather than 
the life of the loan, on the Loan Estimate provided to consumers near 
the time of application. The Bureau proposes this modification pursuant 
to its authority under TILA section 105(a), Dodd-Frank Act 1032(a), 
and, for residential mortgage loans, Dodd-Frank Act section 1405(b). By 
reducing the scope of the total of payments disclosure to five years 
after the due date of the first periodic payment, the disclosure more 
accurately reflects the typical life of a mortgage loan, thus 
effectuating the purposes of TILA by enhancing consumer understanding 
of mortgage transactions. For this same reason, the proposed 
modification will ensure that the features of the mortgage transaction 
are fully, accurately, and effectively disclosed to consumers in a 
manner that permits consumers to understand the costs, benefits, and 
risks associated with the mortgage transaction, in light of the facts 
and circumstances, consistent with Dodd-Frank Act section 1032(a), and 
will improve consumer awareness and understanding of residential 
mortgage loans and is in the interest of consumers and the public, 
consistent with Dodd-Frank Act section 1405(b).
    As discussed in the Kleimann Testing Report, consumer testing 
conducted by the Bureau indicates that consumers can use the ``In 5 
Years'' disclosure to compare loans they are considering and that, in 
some instances, these disclosures increase consumers' understanding of 
loan costs. For example, some consumers who did not understand from 
page one of the Loan Estimate that a loan provided for interest-only 
payments for a specified period were able to recognize that they would 
be making interest-only payments as a result of the principal paid ``In 
5 Years'' disclosure. Consumer participants understood the relationship 
of principal and interest and generally wanted to choose loans with 
more principal paid off during the first five years. Industry feedback 
provided in response to the Bureau's Small Business Review Panel 
Outline stated that implementation of the ``In 5 Years'' disclosure 
will require additional training and systems changes, and that it is 
unclear that the disclosure will assist consumers. The Bureau has 
considered this feedback but, in light of the research and consumer 
testing results discussed above, nevertheless believes that the ``In 5 
Years'' disclosure will provide important benefits to consumers by 
disclosing the total of payments over a period that more accurately 
reflects the typical life of a mortgage loan.
    The Bureau also proposes to exercise its authority under TILA 
section 105(a), Dodd-Frank Act section 1032(a), and, for residential 
mortgage loans, Dodd-Frank Act section 1405(b) to include mortgage 
insurance and other loan costs in the ``In 5 Years'' calculation. TILA 
section 128(a)(5) defines the total of payments as the sum of the 
amount financed and the finance charge. However, the Bureau believes 
including mortgage insurance and other loan costs, rather than the 
finance charge, in the calculation may enhance consumer understanding 
of mortgage transactions because consumers can cross-reference other 
sections of the Loan Estimate to determine what costs are actually 
included in the ``In 5 Years'' disclosure, permitting consumers to more 
readily compare loans, consistent with the purposes of TILA. In 
contrast, as discussed below, consumers have no way to know which costs 
are included in the finance charge. For these same reasons, the Bureau 
believes that the proposed modification will ensure that the features 
of consumer credit transactions secured by real property are fully, 
accurately, and effectively disclosed to consumers in a manner that 
permits consumers to understand the costs, benefits, and risks 
associated with the product or service, in light of the facts and 
circumstances, consistent with section 1032(a) of the Dodd-Frank Act, 
and will improve consumer awareness and understanding of residential 
mortgage loans and be in the interest of consumers and the public, 
consistent with Dodd-Frank Act section 1405(b).
    Proposed Sec.  1026.37(l)(1)(ii) requires creditors to disclose the 
dollar amount of principal scheduled to be paid through the end of the 
60th month after the due date of the first periodic payment. The Bureau 
proposes this additional requirement pursuant to its authority under 
TILA section 105(a) and Dodd-Frank Act section 1032(a). As discussed 
above, the Bureau believes the proposed disclosure will enhance 
consumer understanding of the allocation of their payments between 
principal and interest and help consumers pick the loan that puts them 
in the best financial position after the five to seven year mark if 
they do not sell the property or refinance, consistent with the 
purposes of TILA. For these same reasons, consistent with section 
1032(a) of the Dodd-Frank Act, the Bureau believes that the disclosure 
would ensure that the features of consumer credit transactions secured 
by real property are fully, accurately, and effectively disclosed to 
consumers in a manner that permits consumers to understand the costs, 
benefits, and risks associated with the product or service, in light of 
the facts and circumstances.
    The Bureau recognizes, however, that the total of payments 
disclosure is commonly used by creditors and supervisory agencies for 
compliance purposes, as well as consumer advocates. Therefore, under 
the proposal, creditors would be required to disclose a modified total 
of payments over the loan's full term in the Closing Disclosure 
provided to consumers at least three days prior to consummation. See 
proposed Sec.  1026.38(o)(1).
37(l)(2) Annual Percentage Rate
    TILA section 128(a)(4) and (8) requires creditors to disclose the 
annual percentage rate, together with a brief descriptive statement of 
the annual percentage rate. 15 U.S.C. 1638(a)(4), (a)(8). Current Sec.  
1026.18(e) implements these statutory provisions by requiring creditors 
to disclose the ``annual percentage rate,'' using that term, and a 
brief description such as ``the cost of your credit as a yearly rate.'' 
In addition, TILA section 122(a) requires that the annual percentage 
rate be more conspicuous than other disclosures, except the disclosure 
of the creditor's identity. 15 U.S.C. 1632(a). This requirement is also 
implemented in current Sec.  1026.18(e).
    Concerns have been raised repeatedly over the last two decades that 
consumers are confused by what the APR represents and do not use it for 
its intended purpose: to compare loans.

[[Page 51224]]

The Board-HUD Joint Report noted that consumers generally do not 
understand what the APR represents or how to use it, and that some 
consumers mistake the APR with the interest rate. Board-HUD Joint 
Report at 10. Consumer testing conducted for purposes of the Board's 
2009 Closed-End Proposal revealed these same problems with the APR. 74 
FR at 43296. The Board tested alternative descriptions and formats for 
the APR, but the APR continued to confuse consumers. Id. The Board's 
consumer testing also indicated that consumers did not use the APR to 
compare loans but, instead, focused on the interest rate, monthly 
payment amount, and settlement costs when comparing loan offers. Id. at 
43296-97.
    As discussed in the Kleimann Testing Report, the Bureau's consumer 
testing similarly indicates consumer confusion regarding the APR 
disclosure and that consumers do not use the APR when comparing loans. 
Like the prior testing, the Bureau's consumer testing indicates that 
consumers do not grasp the concept of the APR and often confuse it with 
the loan's interest rate. Most consumers confused the APR with the 
interest rate and misinterpreted the meaning of the disclosure. In 
Round 3 of the Bureau's consumer testing, the statement ``This is not 
your interest rate'' was added to the description of the APR to reduce 
consumer confusion between the interest rate and the APR. While most 
consumer participants understood from that statement that the interest 
rate and APR were separate items, they still had trouble understanding 
what the APR means, how it relates to the interest rate, and how it is 
useful as a comparison. Participants also misunderstood the APR in 
other ways, such as the average interest rate of other loans, an 
interest rate imposed once a year, and an interest rate listed by the 
creditor to mislead the consumer.
    Pursuant to its implementation authority under TILA section 105(a), 
the Bureau proposes Sec.  1026.37(l)(2) to implement the requirements 
of TILA section 128(a)(4) and (8) for transactions subject to proposed 
Sec.  1026.19(e) by requiring creditors to disclose the ``annual 
percentage rate'' and the abbreviation ``APR,'' together with the 
following statement: ``Your costs over the loan term expressed as a 
rate. This is not your interest rate.'' Further, in light of consumer 
confusion over the APR and the fact that consumers do not appear to use 
the APR in comparing loan offers, the Bureau proposes to exercise its 
authority under TILA section 105(a) and (f), Dodd-Frank Act section 
1032(a) and, for residential mortgage loans, Dodd-Frank Act section 
1405(b), to except transactions subject to Sec.  1026.19(e) from the 
requirement of TILA section 122(a) that the annual percentage rate 
disclosure be more conspicuous than other disclosures, except the 
disclosure of the creditor's identity. As discussed above, testing 
conducted by the Board and the Bureau consistently indicate consumer 
confusion over the APR. When the Bureau added the statement ``this is 
not your interest rate'' to the descriptive explanation of the APR 
during its consumer testing, although confusion was reduced, 
participants still did not understand how to use the APR. Instead, 
participants used measures they readily understood, such as the maximum 
interest rates, maximum periodic payments, and closing cost details to 
evaluate, compare, and verify loan terms. Participants were able to use 
these measures to evaluate and compare loans, making sophisticated 
trade-offs, often based on rationales involving their personal 
circumstances.
    Accordingly, the Bureau believes the proposed exemption may enhance 
consumer understanding by separating the APR disclosure from the 
interest rate disclosure, which could prevent consumer confusion over 
the two rates and reduce the possibility of information overload for 
consumers attempting to compare loan terms, consistent with the 
purposes of TILA. The Bureau believes that grouping the APR with the 
``In 5 Years'' and Total Interest Percentage disclosures will also 
enhance consumer understanding by emphasizing that the APR is a special 
metric created specifically for comparison purposes that may help 
consumers think about their costs over their life of the loan. In 
addition, the purpose of the integrated disclosure under TILA section 
105(b) and RESPA section 4(a) is to ``aid the borrower * * * in 
understanding the transaction by utilizing readily understandable 
language to simplify the technical nature of the disclosures.'' The 
Bureau believes that placing measures that are readily understandable 
to consumers on the first page of the Loan Estimate, and complex 
measures that consumers find confusing on latter pages, meets this 
statutory objective.
    The Bureau has also considered the factors in TILA section 105(f) 
and believes that an exception is appropriate under that provision. 
Specifically, the Bureau believes that the proposed exemption is 
appropriate for all affected borrowers, regardless of their other 
financial arrangements and financial sophistication and the importance 
of the loan to them. Similarly, the Bureau believes that the proposed 
exemption is appropriate for all affected loans, regardless of the 
amount of the loan and whether the loan is secured by the principal 
residence of the consumer. Furthermore, the Bureau believes that, on 
balance, the proposed exemption will simplify the credit process 
without undermining the goal of consumer protection or denying 
important benefits to consumers. As discussed above, consumer testing 
and historical research indicate that consumers do not understand the 
APR and do not use it when shopping for a loan. Highlighting the APR on 
the disclosure form contributes to overall consumer confusion and 
information overload, complicates the mortgage lending process, and 
hinders consumers' ability to understand important loan terms. As such, 
the Bureau believes that the proposed exemption from the requirement 
that the APR be disclosed more conspicuously than other disclosures 
will not undermine the goal of consumer protection but, instead, will 
improve consumer understanding of the loans. For all these reasons, the 
Bureau believes that the proposed APR disclosure will improve consumer 
awareness and understanding of residential mortgage loans and is in the 
interest of consumers and the public, consistent with Dodd-Frank Act 
section 1405(b), and that, consistent with section 1032(a) of the Dodd-
Frank Act, the disclosure would ensure that the features of consumer 
credit transactions secured by real property are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to understand the costs, benefits, and risks associated with the 
product or service, in light of the facts and circumstances.
    In response to the Bureau's Small Business Review Panel Outline, 
some consumer advocacy groups expressed concern about disclosing the 
APR on the final page of the Loan Estimate and, as discussed below, on 
the final page of the Closing Disclosure. Specifically, this feedback 
stated that the APR is a widely recognized disclosure that is a useful 
tool for consumers in comparing and understanding mortgage loans, and 
that deemphasizing the APR is not the most effective way of dealing 
with known problems with the APR disclosure. Instead, these groups 
suggested that the APR disclosure can be improved through an all-in 
APR, better descriptive language of the APR, or by supplementing the 
APR with other disclosures. For example, consumer advocacy groups 
recommended that the APR be more prominent than the

[[Page 51225]]

interest rate on the Loan Estimate and to be disclosed in a graphic 
format.
    The Bureau has considered this feedback, but based on the long 
history of consumer confusion of the APR, the Board's prior efforts to 
improve the APR disclosure, and the Bureau's testing of various 
descriptive statements of the APR, described above, the Bureau believes 
that the proposed approach to the APR could provide important benefits 
to consumers by emphasizing the difference between the APR and the 
contract interest rate. The Bureau is, however, proposing to improve 
the APR disclosure through a more inclusive definition of the finance 
charge, as discussed above, and a descriptive statement that clearly 
distinguishes the APR from the interest rate. The Bureau also intends 
to develop supplemental educational materials in booklets and its Web 
site that will further explain how the APR differs from the interest 
rate, how it provides a good way of comparing the entire costs of the 
loan over the entire term, and why consumers may want to use both the 
``In 5 Years'' and APR figures to think about their financial futures.
37(l)(3) Total Interest Percentage
    The Dodd-Frank Act amended TILA to add new section 128(a)(19), 
which requires that, in the case of a residential mortgage loan, the 
creditor disclose the total amount of interest that the consumer will 
pay over the life of the loan as a percentage of the principal of the 
loan. That section also requires that the disclosure be computed 
assuming the consumer makes each monthly payment in full and on time, 
and does not make any over-payments.
    The Bureau proposes Sec.  1026.37(l)(3) to implement TILA section 
128(a)(19) by requiring creditors to disclose the total interest 
percentage, using that term and the abbreviation ``TIP,'' and requiring 
creditors to disclose the descriptive statement ``The total amount of 
interest that you will pay over the loan term as a percentage of your 
loan amount.'' Proposed Sec.  1026.37(l)(3) also provides that the 
``total interest percentage'' is the total amount of interest that the 
consumer will pay over the life of the loan, expressed as a percentage 
of the principal of the loan. Proposed comments 37(l)(3)-1 through -3 
provide further guidance to creditors on calculation of the total 
interest percentage. Proposed comment 37(l)(3)-1 provides that, when 
calculating the total interest percentage, the creditor assumes that 
the consumer will make each payment in full and on time, and will not 
make any additional payments. Proposed comment 37(l)(3)-2 provides 
that, for adjustable-rate mortgages, Sec.  1026.37(l)-(3) requires that 
the creditor compute the total interest percentage using the fully-
indexed rate and that, for step-rate mortgages, Sec.  1026.37(l)(3) 
requires that the creditor compute the total interest percentage in 
accordance with Sec.  1026.17(c)(1) and its commentary. Proposed 
comment 37(l)(3)-3 provides that, for loans that permit negative 
amortization, Sec.  1026.37(l)(3) requires that the creditor compute 
the total interest percentage using the minimum payment amount until 
the consumer must begin making fully amortizing payments under the 
terms of the legal obligation.
    As discussed in the Kleimann Testing Report, the Bureau's consumer 
testing indicates that consumers are able to use the total interest 
percentage to compare loans, and can generally recognize that better 
loans disclose a lower total interest percentage. Along with the ``In 
Five Years'' disclosure, total interest percentage was cited as the 
most useful comparative tool. However, some consumers did not 
understand the total interest disclosure and questioned why it is 
included on the form. Even consumers who used the total interest 
percentage disclosure generally did not understand the more technical 
aspects of the total interest percentage disclosure, such as the 
difficulty of using the measure in an adjustable-rate loan. Concerns 
were also raised during the Bureau's Small Business Review Panel, by 
industry in feedback provided in response to the Small Business Review 
Panel Outline, and in feedback received through the Bureau's Web site 
that the total interest percentage could be difficult to calculate and 
explain to consumers, and would not likely be helpful to consumer. See, 
e.g., Small Business Review Panel Report at 20.
    In light of the Bureau's testing of the total interest percentage 
disclosure and the concerns about consumers' ability to understand the 
disclosure, the Bureau proposes to require creditors to disclose the 
descriptive statement, ``The total amount of interest that you will pay 
over the loan term as a percentage of your loan amount.'' The Bureau 
proposes this pursuant to its authority under TILA section 105(a), 
Dodd-Frank Act section 1032(a), and, for residential mortgage loans, 
Dodd-Frank Act section 1405(b). Based on consumer testing, the Bureau 
believes that consumer understanding of the total interest percentage 
disclosure may be enhanced through the descriptive statement of the 
total interest percentage, consistent with the purposes of TILA, and 
that the proposed descriptive statement is in the interest of consumers 
and the public, consistent with section 1405(b) of the Dodd-Frank Act. 
For these reasons, the Bureau also believes that the disclosure of the 
descriptive statement regarding the total interest percentage may 
ensure that the features of consumer credit transactions secured by 
real property are fully, accurately, and effectively disclosed to 
consumers in a manner that permits consumers to understand the costs, 
benefits, and risks associated with the product or service, in light of 
the facts and circumstances, consistent with section 1032(a) of the 
Dodd-Frank Act.
    Notwithstanding the proposed modifications, based on concerns 
raised by the Small Business Review Panel, industry feedback, and its 
own consumer testing, the Bureau remains concerned that the total 
interest percentage may not be a useful tool for consumers and could 
create confusion and contribute to information overload. In light of 
these concerns, the Bureau alternatively proposes to use its exception 
and modification authority under TILA section 105(a) and (f), Dodd-
Frank Act section 1032(a), and, for residential mortgage loans, Dodd-
Frank Act section 1405(b) to exempt transactions subject to proposed 
Sec.  1026.19(e) and (f) from the requirements of TILA section 
128(a)(19). The Bureau believes the proposed exemption will carry out 
the purposes of TILA, consistent with TILA section 105(a), by avoiding 
consumer confusion and information overload, thereby promoting the 
informed use of credit. For these same reasons, the proposed exemption 
will help ensure that the features of the mortgage transaction are 
fully, accurately and effectively disclosed to consumers in a manner 
that permits consumers to understand the costs, benefits, and risks 
associated with the mortgage transaction, in light of the facts and 
circumstances, consistent with Dodd-Frank Act section 1032(a), and will 
improve consumer awareness and understanding of residential mortgage 
loans and is in the interest of consumers and the public, consistent 
with Dodd-Frank Act section 1405(b). Finally, the Bureau has considered 
the factors in TILA section 105(f) and believes that, for the reasons 
discussed above, an exception may be appropriate under that provision. 
Specifically, the Bureau believes that the proposed exemption is 
appropriate for all affected borrowers, regardless of their other 
financial arrangements and financial sophistication and the importance 
of the loan to them. Similarly, the Bureau believes that the proposed 
exemption is appropriate for all affected loans, regardless of the 
amount of the loan and

[[Page 51226]]

whether the loan is secured by the principal residence of the consumer. 
Furthermore, the Bureau believes that, on balance, the proposed 
exemption will simplify the credit process without undermining the goal 
of consumer protection or denying important benefits to consumers. 
Based on these considerations, the results of the Bureau's consumer 
testing, and the analysis discussed elsewhere in this proposal, the 
Bureau believes that the proposed exemption may be appropriate. The 
Bureau solicits comment on the proposed exemption and, alternatively, 
whether the Bureau should implement the total interest percentage 
disclosure only in the Closing Disclosure.
Other Statutory Disclosures
    As discussed above, the research regarding consumer comprehension 
and behavior and the results of the Board's and the Bureau's consumer 
testing suggest that an effective disclosure regime minimizes the risk 
of consumer distraction and information overload by providing only 
information that will assist most consumers. The Bureau therefore 
carefully evaluated each statutory element required under TILA, whether 
the element has been required for decades or is newly imposed by Dodd-
Frank, as to its usefulness to consumers and others at early stages of 
the loan process, during the real estate closing process, and as 
general reference information over the life of the loan. Based on that 
analysis, the Bureau is proposing to use its authority under TILA 
section 105(a) and (f), Dodd-Frank Act section 1032(a), and, for 
residential mortgage loans, Dodd-Frank Act section 1405(b), to except 
from and modify the timing requirements for certain disclosures 
required by TILA section 128. Specifically, those disclosures are: The 
amount financed (TILA section 128(a)(2)), the finance charge (TILA 
section 128(a)(3)), a statement that the creditor is taking a security 
interest in the consumer's property (TILA section 128(a)(9)), a 
statement that the consumer should refer to the appropriate contract 
document for information about their loan (TILA section 128(a)(12)), a 
statement regarding certain tax implications (TILA section 128(a)(15)), 
and the creditor's cost of funds (TILA section 128(a)(17)).
    The Bureau believes the proposed exemptions discussed above will 
carry out the purposes of TILA, consistent with TILA section 105(a), by 
avoiding consumer confusion and information overload, thereby promoting 
the informed use of credit, as discussed above. For these same reasons, 
the proposed exemptions will help ensure that the features of the 
mortgage transaction are fully, accurately, and effectively disclosed 
to consumers in a manner that permits consumers to understand the 
costs, benefits, and risks associated with the mortgage transaction, 
consistent with Dodd-Frank Act section 1032(a), and will improve 
consumer awareness and understanding of residential mortgage loans and 
are in the interest of consumers and the public, consistent with Dodd-
Frank Act section 1405(b). The Bureau has considered the factors in 
TILA section 105(f) and believes that, for the reasons discussed above, 
an exception is appropriate under that provision. Specifically, the 
Bureau believes that the proposed exemption is appropriate for all 
affected borrowers, regardless of their other financial arrangements 
and financial sophistication and the importance of the loan to them. 
Similarly, the Bureau believes that the proposed exemption is 
appropriate for all affected loans, regardless of the amount of the 
loan and whether the loan is secured by the principal residence of the 
consumer. Furthermore, the Bureau believes that, on balance, the 
proposed exemption will simplify the credit process without undermining 
the goal of consumer protection or denying important benefits to 
consumers. Based on these considerations, the results of the Bureau's 
consumer testing, and the analysis discussed elsewhere in this 
proposal, the Bureau believes that the proposed exemptions are 
appropriate. The proposed exclusion of the finance charge and the 
amount financed from the Loan Estimate is discussed at length below.
    Finance charge. TILA section 128(a)(3) and (8) requires creditors 
to disclose the ``finance charge'' and a brief descriptive statement of 
the finance charge. 15 U.S.C. 1638(a)(3), (a)(8). For transactions 
subject to RESPA, TILA section 128(b)(2)(A) requires creditors to 
provide this disclosure not later than three business days after the 
creditor receives the consumer's application, and at least seven 
business days before consummation. 15 U.S.C. 1638(b)(2)(A). Current 
Sec.  1026.18(d) implements TILA section 128(a)(3) and (8) by requiring 
creditors to disclose the ``finance charge,'' using that term, and a 
brief description such as ``the dollar amount the credit will cost 
you.'' For transactions subject to RESPA, current Sec.  1026.19(a) 
requires creditors to provide the finance charge disclosure not later 
than the third business day after the creditor receives the consumer's 
application.
    Federal agency research has long recognized consumer confusion over 
the finance charge. The Board-HUD Joint Report found that TILA 
disclosures fall short of meeting their goal of informing consumers 
about the cost of credit, in part because of consumer confusion over 
the finance charge. Board-HUD Joint Report at III. Evidence of consumer 
confusion over the finance charge was echoed in the Board's 2009 
Closed-End Proposal. 74 FR at 43307-08. The Board's consumer testing 
indicates that consumers often fail to understand that the finance 
charge contains both interest and fees,\172\ and that consumers place 
very little value on the finance charge when making decisions regarding 
their loan.\173\ The report stated that ``[testing] participants * * * 
generally disregarded the finance charge when reading their TILA 
statements.''\174\
---------------------------------------------------------------------------

    \172\ Macro 2009 Closed-End Report at 11, 41 (stating that, in 
Round 8 of the testing, ``[m]ost [participants] thought the finance 
charges were equal to the amount of interest that the borrower would 
pay over time; only a few understood the finance charges shown on 
the form included fees as well as interest'').
    \173\ For example, only one of the nine participants in one 
round of the Board's testing found the finance charge useful. Id. at 
35. In another round, most participants said that they would not use 
the finance charge in their decision-making. Id. at 28.
    \174\ Id. at 41.
---------------------------------------------------------------------------

    For these reasons, the Bureau proposes to exercise its authority 
under TILA section 105(a) and (f) and Dodd-Frank sections 1032(a) and, 
for residential mortgage loans, 1405(b), to except transactions subject 
to proposed Sec.  1026.19(e) from the requirements of TILA section 
128(a)(3) and (8) as it applies to the Loan Estimate provided to 
consumers within three business days of application. As discussed 
above, the Bureau believes that the proposed exclusion of the finance 
charge disclosure from the Loan Estimate effectuates the purposes of 
TILA by avoiding consumer confusion and information overload 
historically associated with the finance charge disclosure, thereby 
improving the informed use of credit. The Bureau has considered the 
factors in TILA section 105(f) and believes that, for the reasons 
discussed above, an exception is appropriate under that provision. 
Specifically, the Bureau believes that the proposed exemption is 
appropriate for all affected borrowers, regardless of their other 
financial arrangements and financial sophistication and the importance 
of the loan to them. Similarly, the Bureau believes that the proposed 
exemption is appropriate for all affected loans, regardless of the 
amount of the loan and whether the loan is secured by the principal

[[Page 51227]]

residence of the consumer. Furthermore, the Bureau believes that, on 
balance, the proposed exemption will simplify the credit process 
without undermining the goal of consumer protection or denying 
important benefits to consumers. Based on these considerations, the 
results of the Bureau's consumer testing, and the analysis discussed 
above, the Bureau believes that the proposed exemption is appropriate.
    Specifically, the Bureau does not believe that disclosure of the 
finance charge on the Loan Estimate provides a meaningful benefit to 
consumers in the form of useful information or protection. Rather, the 
Bureau believes that disclosure of the finance charge to consumers 
early in the lending process actually complicates and hinders the 
process of mortgage lending because consumers do not understand the 
disclosure. Removing the finance charge disclosure from the Loan 
Estimate that consumers receive early in the lending process may assure 
meaningful disclosure of credit terms, facilitate consumer comparison 
of credit terms, and improve the informed use of credit by avoiding 
information overload and improving consumer understanding of loan 
terms, consistent with the purposes of TILA and with section 1405(b) of 
the Dodd-Frank Act. As consumer testing indicates that consumers 
generally do not use the finance charge when shopping for a loan, the 
absence of the finance charge from the Loan Estimate should not detract 
from consumers' understanding of their credit terms but, instead, will 
permit consumers to focus on other important terms. In addition, 
consistent with Dodd-Frank Act section 1032(a), removal of the finance 
charge from the Loan Estimate would help ensure that the features of 
consumer credit transactions secured by real property are fully, 
accurately, and effectively disclosed to consumers in a manner that 
permits consumers to understand the costs, benefits, and risks 
associated with the product or service, in light of the facts and 
circumstances.
    The Bureau recognizes that creditors, consumer advocates, and State 
and Federal supervisory agencies use the finance charge when 
calculating or verifying the calculation of the APR, determining 
compliance with certain price thresholds, and for a range of other 
purposes, including the right of rescission pursuant to TILA section 
125. 15 U.S.C. 1635. Accordingly, to preserve the finance charge 
disclosure for these purposes, proposed Sec.  1026.38(o)(2) requires 
creditors to disclose the finance charge on the Closing Disclosure 
provided to consumers at least three days prior to prior to 
consummation. Although concerns regarding consumer distraction and 
information overload persist at the stage of the transaction where the 
consumer receives the Closing Disclosure, the Bureau believes that 
disclosing the finance charge with other loan calculations on the final 
page of the Closing Disclosure as a general reference for the consumer 
after closing will mitigate these concerns. In addition, though the 
finance charge is not disclosed on the Loan Estimate, creditors must, 
in order to comply with the record retention requirements in Sec.  
1026.25, document the finance charge used to calculate the APR 
disclosed on the Loan Estimate. As discussed above, the Bureau is 
proposing conforming amendments to Sec.  1026.22 to reflect the 
accuracy standards applicable to the finance charge disclosed on the 
Closing Disclosure under proposed Sec.  1026.38(o)(2). The Bureau seeks 
comment on whether the final rule should contain similar accuracy 
standards for the finance charge used in the APR calculation for the 
Loan Estimate.
    Amount financed. TILA section 128(a)(2) and (8) requires creditors 
to disclose the ``amount financed,'' using that term, and a brief 
descriptive statement of the amount financed. 15 U.S.C. 1638(a)(2), 
(a)(8). Current Sec.  1026.18(b) implements this requirement and 
requires creditors to disclose the amount financed, using that term, 
together with a brief description that the amount financed represents 
the amount of credit of which the consumer has actual use. Like the 
finance charge disclosure, for transactions subject to RESPA, TILA 
section 128(b)(2)(A) requires that creditors provide a good faith 
estimate of this disclosure not later than three business days after 
the creditor receives the consumer's application, and at least seven 
business days before consummation. 15 U.S.C. 1638(b)(2)(A). This 
requirement is implemented in current Sec.  1026.19(a).
    Like the finance charge, the amount financed disclosure has 
historically been viewed as confusing for consumers. The Board-HUD 
Joint Report recommended removing the amount financed from consumer 
disclosures altogether because it ``is probably not a useful disclosure 
for mortgage lending.'' \175\ The Board-HUD Joint Report found that the 
primary use of the ``amount financed'' is to help supervisory agencies 
confirm APR calculations, and is not a useful shopping tool for 
consumers.\176\ The Board's consumer testing in connection with the 
2009 Closed-End Proposal also indicated consumer confusion about the 
``amount financed.'' Some testing participants incorrectly assumed that 
the ``amount financed'' was their loan amount or the sale price of the 
home.\177\ Based on this testing, the Board concluded that the ``amount 
financed'' disclosure detracted from, rather than enhanced, consumers' 
understanding of other disclosures \178\ and that consumers ``would not 
consider the amount financed when shopping for a mortgage or evaluating 
competing loan offers.'' \179\ The Board also found that ``requiring 
creditors to disclose the amount financed in the loan summary with 
other key loan terms would add unnecessary complexity and result in 
`information overload.' '' \180\
---------------------------------------------------------------------------

    \175\  Board-HUD Joint Report at 16.
    \176\ Id. at 17.
    \177\ Macro 2009 Closed-End Report at v. For example, in Round 8 
of testing, participants were ``confused about the difference 
between the `loan amount' and the `amount financed.''' Id. at 26. In 
Round 9, participants gave a variety of incorrect explanations of 
the term, including that it was ``how much escrow they would have,'' 
the amount they would have to pay back, or the amount that they 
borrowed. Id. at 35. In both of these rounds, some participants 
believed the ``amount financed'' was equal to the amount of money 
they would be borrowing. Id. at 40. In Round 11, the ``amount 
financed'' was moved to the second page, under the heading ``Total 
Payments'' in the ``More Information About Your Payments'' section. 
Id. at 51. As in previous rounds, no participant was able to explain 
the meaning of ``amount financed.'' Id. at 55. In Round 12, with the 
``amount financed'' in the same place on the second page, two 
participants incorrectly believed they were borrowing the ``amount 
financed.'' Id. at 55. In the final round of testing, none of the 
participants understood the meaning of ``amount financed.'' Id. at 
72.
    \178\ 74 FR at 43308. For example, ``sample disclosures were 
used to try to explain that the difference between the loan amount 
and amount financed is attributable to prepaid finance charges, but 
this explanation did not appear to improve consumer comprehension.'' 
Id.
    \179\ Id.
    \180\ Id.
---------------------------------------------------------------------------

    For these reasons, the Bureau proposes to exercise its authority 
under TILA section 105(a) and (f), Dodd-Frank section 1032(a), and, for 
residential mortgage loans, Dodd-Frank Act section 1405(b), to modify 
and except transactions subject to proposed Sec.  1026.19(e) from the 
requirements of TILA section 128(a)(2) and (8) as it applies to the 
Loan Estimate provided to consumers within three business days of 
application. As discussed above, the Bureau believes that the proposed 
exclusion of the amount financed disclosure from the Loan Estimate 
effectuates the purposes of TILA by avoiding consumer confusion and 
information overload historically associated with the disclosure, 
thereby improving the informed use of credit. In addition, the Bureau 
has considered the factors in TILA section 105(f) and

[[Page 51228]]

believes that, for the reasons discussed above, an exception is 
appropriate under that provision. Specifically, the Bureau believes 
that the proposed exemption is appropriate for all affected borrowers, 
regardless of their other financial arrangements and financial 
sophistication and the importance of the loan to them. Similarly, the 
Bureau believes that the proposed exemption is appropriate for all 
affected loans, regardless of the amount of the loan and whether the 
loan is secured by the principal residence of the consumer. 
Furthermore, the Bureau believes that, on balance, the proposed 
exemption will simplify the credit process without undermining the goal 
of consumer protection or denying important benefits to consumers. 
Based on these considerations, the results of the Bureau's consumer 
testing, and the analysis discussed above, the Bureau believes that the 
proposed exemption is appropriate.
    The Bureau does not believe that disclosure of the amount financed 
on the Loan Estimate provides a meaningful benefit to consumers in the 
form of useful information or protection. Rather, the Bureau believes 
that disclosure of the amount financed to consumers early in the 
lending process actually complicates and hinders the process of 
mortgage lending because consumers do not understand the disclosure. 
Removing the amount financed from the Loan Estimate may improve the 
informed use of credit by avoiding information overload and improving 
consumer understanding of loan terms, consistent with the purposes of 
TILA and will be in the interest of consumers and the public, 
consistent with section 1405(b) of the Dodd-Frank Act. Enhanced 
consumer understanding of mortgage transactions is also in the interest 
of consumers and the public. In addition, consistent with Dodd-Frank 
Act section 1032(a), removal of the amount financed from the Loan 
Estimate would help ensure that the features of consumer credit 
transactions secured by real property are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to understand the costs, benefits, and risks associated with the 
product or service, in light of the facts and circumstances.
    However, the Bureau recognizes that, like the finance charge, the 
amount financed is commonly used by creditors and supervisory agencies 
for compliance purposes, as well as by consumer advocates. Therefore, 
under the proposal, creditors would be required to disclose the amount 
financed in the Closing Disclosure provided to consumers at least three 
business days prior to consummation. Like the finance charge, the 
Bureau believes that disclosing the amount financed with other loan 
calculations on the final page of the Closing Disclosure as a general 
reference for the consumer after closing will mitigate concerns about 
consumer distraction and information overload at the Closing Disclosure 
stage.
37(m) Other Considerations
    Under proposed Sec.  1026.37(m), creditors disclose certain 
information pertaining to: (1) The consumer's right to receive copies 
of appraisals; (2) future assumability of the loan; (3) at the 
creditor's option, homeowner's insurance requirements; (4) the 
creditor's late payment policy; (5) loan refinancing; (6) loan 
servicing, and (7) in refinance transactions, the consumer's liability 
for deficiency after foreclosure. This information is provided under 
the master heading ``Additional Information About This Loan'' required 
by Sec.  1026.37(k) and under the heading ``Other Considerations.''
    As set forth below, consumers already receive most of these 
disclosures at or after application or prior to consummation. Thus, by 
incorporating all of these disclosures into the Loan Estimate, the 
proposed rule will reduce the number of separate disclosures that 
consumers receive. Instead, consumers will receive these disclosures in 
a single, integrated document, which will reduce the potential for 
information overload, promote the informed use of credit by the 
consumer, and facilitate compliance by industry.
37(m)(1) Appraisal
    Prior to the Dodd-Frank Act, ECOA section 701(e) required creditors 
to provide to applicants, upon written request, a copy of the appraisal 
report used in connection with the consumer's application for a loan 
secured by a lien on residential real property. Section 1474 of the 
Dodd-Frank Act amended ECOA section 701(e) to remove the provision 
requiring consumers to request a copy of their appraisal. That section 
now requires the creditor to provide the consumer with a copy of any 
written appraisal or valuation developed in connection with an 
application for a loan that is or will be secured by a first lien on a 
dwelling promptly upon completion, and no later than three days prior 
to the closing of the loan, even if the creditor denies the consumer's 
application or the application is incomplete or withdrawn. 15 U.S.C. 
1691(e)(1). Under ECOA section 701(e)(5), the creditor must notify the 
consumer in writing at the time of application of the right to receive 
a copy of any appraisal or valuation. 15 U.S.C. 1691(e)(5).
    In addition, section 1471(a) of the Dodd-Frank Act added to TILA 
new appraisal requirements for higher-risk mortgages. Specifically, new 
TILA section 129H(c) requires creditors to provide consumers, at least 
three days prior to closing, a copy of any appraisal prepared in 
connection with a higher-risk mortgage. 15 U.S.C. 1639h(c). Section 
1471(f) of the Dodd-Frank Act defines the term ``higher-risk mortgage'' 
generally as a residential mortgage loan, other than a reverse 
mortgage, that is secured by a principal dwelling with an APR that 
exceeds the average prime offer rate for a comparable transaction by a 
specified percentage. 15 U.S.C. 1639h(f). New TILA section 129H(d) 
contains a disclosure requirement that creditors must provide 
consumers, at the time of the initial mortgage application, a statement 
that any appraisal prepared for the mortgage is for the creditor's sole 
use and that the consumer may choose to have a separate appraisal 
conducted at his or her own expense. 15 U.S.C. 1639h(d).
    ECOA section 701(e), as amended by the Dodd-Frank Act, and new TILA 
section 129H(c) and (d) will be implemented in separate Bureau and 
joint interagency rulemakings, respectively. However, the Bureau 
proposes to use its authority under TILA section 105(a) and Dodd-Frank 
Act section 1032(a) to include on the Loan Estimate disclosure of the 
new requirements regarding the consumer's right to appraisal copies for 
loans subject to ECOA section 701(e)(5) or TILA section 129H(c) and 
(d). In the integrated TILA-RESPA final rule, the Bureau will harmonize 
this proposal with its rulemaking implementing amended ECOA section 
701(e) and the interagency rulemaking implementing new TILA section 
129H(c) and (d), so that creditors may satisfy the ECOA section 
701(e)(5) and TILA section 129H requirements in a single disclosure.
    Proposed Sec.  1026.37(m)(1) applies only to closed-end credit 
transactions subject to proposed Sec.  1026.19(e) and ECOA section 
701(e) or TILA section 129H, as implemented in Regulation B, 12 CFR 
part 1002, and Regulation Z, respectively. For such transactions, 
proposed Sec.  1026.37(m)(1) requires the disclosure under the label 
``Appraisal.'' The disclosure may be omitted for other transactions. 
Proposed Sec.  1026.37(m)(1)(i) requires the disclosure to state that 
the creditor may order an appraisal to determine the

[[Page 51229]]

value of the property that is the subject of the transaction and may 
charge the consumer the cost for any such appraisal. Proposed Sec.  
1026.37(m)(1)(ii) requires the disclosure to state that the creditor 
will promptly provide the consumer a copy of the appraisal, even if the 
transaction is not consummated. Finally, proposed Sec.  
1026.37(m)(1)(iii) requires the disclosure to state that the consumer 
has the right to order an additional appraisal of the property for the 
consumer's own use. Proposed comment 37(m)(1)-1 clarifies that if a 
transaction subject to proposed Sec.  1026.19(e) is not also subject to 
either ECOA section 701(e) or TILA section 129H, as implemented in 
Regulations B and Z, respectively, the disclosure required by proposed 
Sec.  1026.37(m)(1) may be omitted from the Loan Estimate.
    The Bureau believes that including these appraisal disclosures on 
the Loan Estimate is consistent with the purposes of TILA and will 
reduce burden on industry. Rather than requiring two separate appraisal 
disclosures in addition to the Loan Estimate consumers will receive 
after application, the Bureau believes one integrated disclosure will 
facilitate compliance for creditors, promote the informed use of credit 
by consumers, and ensure effective disclosure to consumers, consistent 
with the purposes of TILA and TILA section 105(a). In addition, the 
Bureau believes that incorporating the appraisal disclosures into the 
Loan Estimate in a way that is consistent with the presentation of 
other disclosures will ensure that the features of the transaction are 
fully, accurately, and effectively disclosed to consumers in a manner 
that permits consumers to understand the costs, benefits, and risks 
associated with the mortgage transaction, in light of the facts and 
circumstances, consistent with Dodd-Frank Act section 1032(a).
37(m)(2) Assumption
    TILA section 128(a)(13) requires the creditor to disclose, in any 
residential mortgage transaction, a statement indicating whether a 
subsequent purchaser may be permitted to assume the remaining loan 
obligation on its original terms. 15 U.S.C. 1638(a)(13). This provision 
is currently implemented in Sec.  1026.18(q), and applies only to 
residential mortgage transactions. TILA section 103(x) defines 
``residential mortgage transaction'' as a ``transaction in which a 
mortgage, deed of trust, purchase money security interest arising under 
an installment sales contract, or equivalent consensual security 
interest is created or retained against the consumer's dwelling to 
finance the acquisition or initial construction of a dwelling.'' 15 
U.S.C. 1602(x).
    Proposed Sec.  1026.37(m)(2) implements TILA section 128(a)(13) for 
all transactions subject to Sec.  1026.19(e) by requiring the creditor 
to disclose whether a subsequent purchaser of the property may be 
permitted to assume the remaining loan obligation on its original 
terms. Proposed comment 37(m)(2)-1 clarifies that the creditor must 
disclose whether or not a third party may be allowed to assume the loan 
on its original terms if the property is sold or transferred by the 
consumer. Proposed comment 37(m)(2)-1 also notes that in many 
mortgages, the creditor may be unable to determine whether the loan is 
assumable at the time the Loan Estimate is provided and cites to the 
Federal National Mortgage Association and the Federal Home Loan 
Mortgage Corporation as examples of entities that as a common practice 
condition assumability on a number of factors such as the subsequent 
borrower's creditworthiness. Proposed comment 37(m)(2)-1 clarifies 
that, if the creditor can determine that such assumption is not 
permitted, the creditor complies with Sec.  1026.37(m)(2) by disclosing 
that the loan is not assumable. In all other situations, including 
where assumption of a loan is permitted or is dependent on certain 
conditions or factors, or uncertainty exists as to the future 
assumability of a mortgage, the creditor complies with Sec.  
1026.37(m)(2) by disclosing that, under certain conditions, the 
creditor may allow a third party to assume the loan on its original 
terms. Proposed comment 37(m)(2)-2 clarifies that the phrase ``original 
terms'' as used in Sec.  1027.37(m)(2) does not preclude an assumption 
fee but may represent different terms, and provides an example of a 
modified term.
    The Bureau proposes Sec.  1026.37(m)(2) to implement TILA section 
128(a)(13) for transactions subject to Sec.  1026.19(e), pursuant to 
its authority under TILA section 105(a), Dodd-Frank Act section 
1032(a), and, for residential mortgage loans, Dodd-Frank Act section 
1405(b). In addition, the Bureau proposes to modify the scope of TILA 
section 128(a)(13), pursuant to its authority under TILA section 105(a) 
and Dodd-Frank Act sections 1032(a) and 1405(b), to apply to all 
transactions subject to proposed Sec.  1026.19(e), even if not a 
``residential mortgage transaction'' as defined in TILA section 103(x). 
The Bureau believes that consumers in transactions secured by real 
property would benefit from the disclosure, even if the property does 
not contain a dwelling. Accordingly, the proposed modification promotes 
the informed use of credit, consistent with the purposes of TILA. For 
this same reason, the proposed modification will ensure that the 
features of the transaction are fully, accurately, and effectively 
disclosed to consumers in a manner that permits consumers to understand 
the costs, benefits, and risks associated with the mortgage 
transaction, in light of the facts and circumstances, consistent with 
Dodd-Frank Act section 1032(a), and will improve consumer awareness and 
understanding of residential mortgage loans and is in the interest of 
consumers and the public, consistent with Dodd-Frank Act section 
1405(b). Transactions subject to the disclosure requirements of Sec.  
1026.18 continue to be subject to Sec.  1026.18(q).
37(m)(3) Homeowner's Insurance
    TILA section 106(c) provides that premiums for homeowner's 
insurance written in connection with any consumer credit transaction 
shall be included in the finance charge unless a clear and specific 
statement in writing is furnished by the creditor to the person to whom 
credit is extended, setting forth the cost of the insurance if obtained 
from or through the creditor, and stating that the person to whom 
credit is extended may choose the insurance provider. 15 U.S.C. 
1605(c). Current Sec. Sec.  1026.4(d)(2)(i) and 1026.18(n) implement 
this provision.
    The Bureau understands that many creditors provide consumers the 
disclosure described in TILA section 106(c) and Sec.  1026.4(d)(2)(i) 
in order to exclude homeowner's insurance premiums from the finance 
charge. To reduce the number of individual disclosures provided to 
consumers and facilitate compliance for creditors, the Bureau proposes 
Sec.  1026.37(m)(3) which provides that, at the creditor's option, the 
creditor may disclose a statement of whether homeowner's insurance is 
required on the property and whether the consumer may choose the 
insurance provider, labeled ``Homeowner's Insurance.'' Proposed comment 
37(m)(3)-1 clarifies that the disclosure required in Sec.  
1026.37(m)(3) is optional. Proposed comment 37(m)(3)-2 clarifies that a 
creditor satisfies the condition for excluding homeowner's insurance 
premiums from the finance charge described in Sec.  1026.4(d)(2)(i) by 
disclosing the statement described in Sec.  1026.37(m)(3).
    The Bureau proposes Sec.  1026.37(m)(3) pursuant to its authority 
under TILA section 105(a), Dodd-Frank Act section 1032(a), and, for 
residential mortgage loans, Dodd-Frank Act section 1405(b).

[[Page 51230]]

The Bureau believes that combining the optional disclosure regarding 
homeowner's insurance premiums with the other disclosures on the Loan 
Estimate may avoid information overload and therefore promote the 
informed use of credit, consistent with the purposes of TILA. In 
addition, the proposed disclosure will help ensure that the features of 
the transaction are fully, accurately, and effectively disclosed to 
consumers in a manner that permits consumers to understand the costs, 
benefits, and risks associated with the mortgage transaction, 
consistent with Dodd-Frank Act section 1032(a), and will improve 
consumer awareness and understanding of residential mortgage loans, in 
the interest of consumers and the public, consistent with Dodd-Frank 
Act section 1405(b).
37(m)(4) Late Payment
    TILA section 128(a)(10) requires disclosure of ``any dollar charge 
or percentage amount which may be imposed by a creditor solely on 
account of a late payment.'' 15 U.S.C. 1638(a)(10). This requirement is 
currently implemented in Sec.  1026.18(l), which requires a statement 
detailing any ``dollar or percentage charge that may be imposed before 
maturity due to a late payment.''
    Proposed Sec.  1026.37(m)(4) implements TILA section 128(a)(10) for 
transactions subject to Sec.  1026.19(e) and requires the creditor to 
disclose a statement detailing any charge that may be imposed on the 
consumer for a late payment and the number of days a payment must be 
late before a penalty for late payment may be assessed. Proposed 
comment 37(m)(4)-1 clarifies that the late payment disclosure is 
required if charges are added to an individual delinquent installment 
of a transaction that remains ongoing on its original terms. Proposed 
comment 37(m)(4)-1 also clarifies which charges and creditor actions 
under the legal obligation do not qualify as a late payment charge and 
that an increase in the interest rate is a late payment charge to the 
extent of the increase. Comment 37(m)(4)-2 clarifies that the creditor 
may make changes to the disclosure to reflect the requirements imposed 
and alternatives allowed under State law.
    The Bureau proposes Sec.  1026.37(m)(4) to implement TILA section 
128(a)(10) for transactions subject to Sec.  1026.19(e), pursuant to 
its implementation authority under TILA section 105(a). In addition, 
the Bureau proposes to require creditors to disclose the number of days 
that a payment must be late to trigger the late payment charge pursuant 
to its authority under TILA section 105(a) and Dodd-Frank Act section 
1032(a). The Bureau believes the additional disclosure enhances the 
late payment disclosure by describing the conditions that may trigger a 
late payment charge and therefore promotes the informed use of credit, 
consistent with the purpose of TILA. For this same reason, the Bureau 
believes the proposed disclosure will ensure that the features of the 
transaction are fully, accurately, and effectively disclosed to 
consumers in a manner that permits consumers to understand the costs, 
benefits, and risks associated with the mortgage transaction, in light 
of the facts and circumstances, consistent with Dodd-Frank Act section 
1032(a).
37(m)(5) Refinance
    TILA section 128(b)(2)(C)(ii) requires that, for variable-rate 
transactions or transactions where the regular payment may otherwise be 
variable and that are secured by the consumer's dwelling, the borrower 
be provided with a disclosure that there is no guarantee to refinance 
to a lower amount. Current Sec.  1026.18(t) implements this provision 
by requiring creditors to disclose a statement that there is no 
guarantee that the consumer may refinance to lower the interest rate or 
monthly payment. Current Sec.  1026.18(t) also expands the no-
guarantee-to-refinance disclosure to apply to, not only variable-rate 
or variable-payment transactions, but all closed-end transactions 
secured by real property or a dwelling, other than transactions secured 
by the consumer's interest in a timeshare.
    The Bureau proposes Sec.  1026.37(m)(5) to implement TILA section 
128(b)(2)(C)(ii) for transactions subject to proposed Sec.  1026.19(e). 
Based on the results of several rounds of consumer testing of language 
regarding the refinance disclosure, Sec.  1026.37(m)(5) specifically 
requires disclosure of the following statement: ``Refinancing this loan 
will depend on your future financial situation, the property value, and 
market conditions. You may not be able to refinance this loan.'' As 
discussed in the Kleimann Testing Report, consumers in the Bureau's 
consumer testing understood this language to mean that they are 
permitted to try, but may not be able to refinance their loan in the 
future.
    In implementing TILA section 128(b)(2)(C)(ii), the Bureau proposes 
to use its authority under section TILA section 105(a) and Dodd-Frank 
Act sections 1032(a) and 1405(b) to expand the requirement to all 
transactions subject to Sec.  1026.19(e). Like the Board, the Bureau is 
concerned that some consumers may accept loan terms that could present 
refinancing problems similar to those experienced by consumers in 
variable-rate or variable-payment transactions (e.g., a three-year 
fixed rate mortgage with a balloon payment), and that all consumers 
would benefit from a statement that encourages consideration of 
possible future market rate increases on refinancing. See 2009 Closed-
End Proposal, 74 FR at 43310. Accordingly, the Bureau believes the 
proposed disclosure effectuates the purpose of TILA to help consumers 
avoid the uninformed use of credit. In addition, the proposed 
disclosure helps to ensure that the features of mortgage transactions 
are fully and effectively disclosed to consumers in a manner that 
permits consumers to understand the costs, benefits, and risks 
associated with a financial product, in light of the facts and 
circumstances, consistent with Dodd-Frank Act section 1032(a), and will 
improve consumer awareness and understanding of residential mortgage 
loans, which is in is the interest of consumers and the public, 
consistent with Dodd-Frank Act section 1405(b). Transactions subject to 
the disclosure requirements of Sec.  1026.18 continue to be subject to 
Sec.  1026.18(t).
37(m)(6) Servicing
    RESPA section 6(a) requires disclosures to loan applicants 
concerning the assignment, sale, or transfer of the servicing of the 
loan to another party. 12 U.S.C. 2605(a). Current appendix C to 
Regulation X implements RESPA section 6(a) and requires a statement in 
the GFE regarding loan servicing under the section ``If your loan is 
sold in the future,'' albeit using relatively generic language that 
does not express the creditor's actual intent.\181\ Proposed Sec.  
1026.37(m)(6) requires the creditor to disclose in the Loan Estimate 
whether it intends to service the loan directly or transfer its 
servicing. Proposed comment 37(m)(6)-1 clarifies that the disclosure 
required in proposed Sec.  1026.37(m)(6) requires only that the 
creditor state its intent at the time the disclosure is issued.
---------------------------------------------------------------------------

    \181\ The standard RESPA GFE form in appendix C to Regulation X 
reads as follows: ``Some lenders may sell your loan after 
settlement. Any fees lenders receive in the future cannot change the 
loan you receive or the charges you paid at settlement.''
---------------------------------------------------------------------------

    For transactions subject to RESPA, the Bureau proposes Sec.  
1026.37(m)(6) to implement RESPA section 6(a), pursuant to its 
authority under RESPA section 19(a). For transactions subject the 
requirements of proposed Sec.  1026.19(e) but that are not subject to 
RESPA, the Bureau proposes to require creditors to provide the 
servicing disclosure described in Sec.  1026.37(m)(6)

[[Page 51231]]

pursuant to its authority under TILA section 105(a) and Dodd-Frank Act 
1032(a). The Bureau believes that requiring the disclosure regarding 
loan servicing in these transactions will improve consumer 
understanding and avoid the uninformed use of credit, consistent with 
the purposes of TILA, and that the disclosure will ensure that the 
features of the transaction are fully, accurately, and effectively 
disclosed to consumers in a manner that permits consumers to understand 
the costs, benefits, and risks associated with the mortgage 
transaction, in light of the facts and circumstances, consistent with 
Dodd-Frank Act section 1032(a).
37(m)(7) Liability After Foreclosure
    Section 1414(c) of the Dodd-Frank Act created new TILA section 
129C(g), which establishes certain requirements for residential 
mortgage loans subject to protection under a State anti-deficiency law. 
15 U.S.C. 1639c(g). TILA section 129C(g)(2) requires that, prior to 
consummation, the creditor or mortgage originator provide a written 
notice to the consumer describing the protection provided by the anti-
deficiency law and the significance to the consumer of the loss of such 
protection. TILA section 129C(g)(3) requires that any creditor or 
mortgage originator that provides an application to a consumer or 
receives an application from a consumer, for any type of refinancing 
for such loan that would cause the loan to lose the protection of an 
anti-deficiency law, the creditor or mortgage originator shall provide 
a written notice to the consumer describing the protection provided by 
the anti-deficiency law and the significance for the consumer of the 
loss of such protection before any agreement for refinancing is 
consummated. TILA section 129C(g)(1) defines anti-deficiency law to 
mean the law of any State which provides that, in the event of 
foreclosure on the residential property of a consumer securing a 
mortgage, the consumer is not liable, in accordance with the terms and 
limitations of such State law, for any deficiency between the sale 
price obtained from a foreclosure sale and the outstanding balance of 
the mortgage.
    Proposed Sec.  1026.37(m)(7) implements TILA section 129C(g)(3), 
which applies to refinance transactions. Specifically, proposed Sec.  
1026.37(m)(7) provides that, if the credit is to refinance an extension 
of credit as described in Sec.  1026.37(a)(9)(ii) or (iii), the 
creditor must disclose a brief statement that certain State law 
protections against liability for any deficiency after foreclosure may 
be lost upon refinancing, the potential consequences of the loss of 
such protections, and a statement that the consumer should consult an 
attorney for additional information, labeled ``Liability after 
Foreclosure.''
    The Bureau proposes this requirement pursuant to its implementation 
authority under TILA section 105(a). TILA section 129C(g)(3) requires 
creditors to provide the anti-deficiency disclosure prior to 
consummation. The Bureau believes that consumers would benefit from 
receiving the disclosure in the Loan Estimate provided three days after 
application since the disclosure informs consumers of the potentially 
significant consequences of refinancing and is therefore an important 
consideration for a consumer evaluating whether to proceed with the 
loan. Further, the Bureau believes that the anti-deficiency disclosure 
is appropriately tied to the submission of the consumer's application 
since TILA section 129C(g)(3) requires creditors to provide the 
disclosure to all consumers to whom it provides an application or from 
whom it receives an application. The Bureau does not believe that it is 
feasible to require the disclosure to be provided to any consumer to 
whom the creditor ``provides'' a loan application because, as discussed 
above in the section-by-section analysis of proposed Sec.  
1026.2(a)(3), ``application'' is defined by proposed Sec.  1026.2(a)(3) 
as the consumer's submission of certain specific information to a 
creditor. The requirements of TILA section 129C(g)(2) are implemented 
in proposed Sec.  1026.38(p)(3).
37(n) Signature Statement
    TILA section 128(b)(2)(B)(i) requires the following statement in 
transactions that are also subject to RESPA and where the extension of 
credit is secured by the consumer's dwelling, other than timeshares: 
``You are not required to complete this agreement merely because you 
have received these disclosures or signed a loan application.'' 15 
U.S.C. 1638(b)(2)(B)(i). Current Sec.  1026.19(a)(4) implements this 
provision by requiring, for transactions subject to RESPA that are 
secured by the consumer's dwelling (other than home equity lines of 
credit subject to Sec.  1026.5(b) and timeshares), the statement 
required by TILA section 128(b)(2)(B)(i) in the good faith estimates 
and corrected disclosures provided pursuant to Sec.  1026.19(a)(1) 
and(2).
    The Bureau proposes to implement the signature requirement of TILA 
section 128(b)(2)(B)(i) in proposed Sec.  1026.37(n), for all 
transactions subject to proposed Sec.  1026.19(e). Proposed Sec.  
1026.37(n)(1) states that, at the creditor's option, lines for the 
signatures of the consumers in the transaction may be provided. The 
optional signatures lines would be located under the master heading 
``Additional Information About This Loan'' required by proposed Sec.  
1026.37(k) and under the heading ``Confirm Receipt.'' Proposed Sec.  
1026.37(n)(1) also states that if the creditor includes a line for the 
consumer's signature, the creditor is required to disclose to that, by 
signing the Loan Estimate, the consumer is only confirming receipt of 
the form and is not required to accept the loan. For transactions where 
the creditor does not include a line for the consumer's signature, 
proposed Sec.  1026.37(n)(2) requires disclosure of the statement that 
the consumer does not have to accept the loan because the consumer 
received or signed the Loan Estimate. The statement required by 
proposed Sec.  1026.37(n)(2) is located under the heading ``Other 
Considerations'' required by proposed Sec.  1026.37(m), labeled ``Loan 
Acceptance.''
    Proposed comment 37(n)-1 clarifies that it is at the creditor's 
discretion whether to provide a signature line for the consumer's 
signature, but if a signature line is provided, the statement in 
proposed Sec.  1026.37(n)(1) must be provided. Proposed comment 37(n)-2 
clarifies that, if there is more than one consumer in the transaction, 
the first consumer signs as the applicant and each additional consumer 
signs as a ``co-applicant.'' Proposed comment 37(n)-2 also clarifies 
that the creditor may add an additional signature page to the back of 
the form if additional signature lines are necessary to accommodate the 
number of consumers in the transaction.
    The Bureau proposes to modify the signature language required by 
TILA section 128(b)(2)(B)(i) pursuant to its authority under TILA 
section 105(a), Dodd-Frank Act section 1032(a), and, for residential 
mortgage loans, Dodd-Frank Act section 1405(b). While the substance of 
the disclosure required by proposed Sec.  1026.37(n) is the same as the 
statutory language, as discussed in the Kleimann Testing Report, the 
Bureau's consumer testing indicated that consumers more easily 
understand from the proposed language that a signature does not bind 
them to accept the loan. Accordingly, the proposed modification 
promotes the informed use of credit, consistent with the purposes of 
TILA. For this same reason, the proposed modification will ensure that 
the features of the transaction are fully, accurately, and effectively 
disclosed to consumers in a manner that permits consumers to understand 
the costs,

[[Page 51232]]

benefits, and risks associated with the mortgage transaction, 
consistent with Dodd-Frank Act section 1032(a), and will improve 
consumer awareness and understanding of residential mortgage loans and 
is in the interest of consumers and the public, consistent with Dodd-
Frank Act section 1405(b).
    The Bureau also proposes to use its authority under TILA section 
105(a), Dodd-Frank Act section 1032(a), and, for residential mortgage 
loans, Dodd-Frank Act section 1405(b) to expand the scope of TILA 
section 128(b)(2)(B)(i) to apply to all transactions subject to 
proposed Sec.  1026.19(e). As discussed above, TILA section 
128(b)(2)(B)(i) applies only to transactions subject to both TILA and 
RESPA that are secured by the consumer's dwelling, and excludes 
transactions secured by the consumer's interest in a timeshare. 
However, the Bureau believes that consumers in all transactions subject 
to proposed Sec.  1026.19(e) will benefit from the disclosure because 
it ensures that consumers understand they are not obligated to complete 
the loan transaction just because they signed or received the Loan 
Estimate. Accordingly, the proposed disclosure promotes the informed 
use of credit, consistent with the purposes of TILA. For these same 
reasons, the Bureau believes that the proposed disclosure will ensure 
that the features of the transaction are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to understand the costs, benefits, and risks associated with the 
mortgage transaction, consistent with Dodd-Frank Act section 1032(a), 
and will improve consumer awareness and understanding of residential 
mortgage loans and is in the interest of consumers and the public, 
consistent with Dodd-Frank Act section 1405(b).
37(o) Form of Disclosures
    TILA section 122(a) provides that the information required to be 
disclosed under TILA shall be disclosed clearly and conspicuously, in 
accordance with regulations of the Bureau. 15 U.S.C. 1632(a). TILA 
section 128(b)(1) provides that the disclosures required by sections 
128(a) and 106(b) through (d) generally shall be conspicuously 
segregated from all other terms, data, or information provided in 
connection with a transaction, including any computations or 
itemization. Id. 1638(b)(1). Regulation Z currently implements these 
requirements for closed-end transactions in Sec.  1026.17(a)(1), which 
provides that the disclosures shall be made clearly and conspicuously 
in writing, in a form that the consumer may keep. Section 1026.17(a)(1) 
further provides that the disclosures shall be grouped together, shall 
be segregated from everything else, and shall not contain any 
information not directly related to the disclosures under Sec.  1026.18 
(and Sec.  1026.47 for private education loans).
    As discussed above, the Bureau is proposing to exclude transactions 
subject to Sec.  1026.19(e) and (f) from the coverage of Sec.  
1026.17(a) and (b). Consequently, the requirements of TILA sections 
122(a) and 128(b)(1) must be implemented elsewhere. The Bureau, 
pursuant to its implementation authority under TILA section 105(a), 
therefore proposes to implement the statutory segregation and clear and 
conspicuous requirements of TILA sections 122(a) and 128(b)(1) for 
those disclosures in new Sec. Sec.  1026.37(o) and 1026.38(t). The 
Bureau believes these requirements will effectuate the purposes of TILA 
by assuring a meaningful disclosure of credit terms so that the 
consumer will be able to compare more readily the various credit terms 
available to him and avoid the uninformed use of credit. In addition, 
Sec.  1026.37(o) establishes a standard form requirement for 
transactions subject to RESPA and provides flexibility for certain 
aspects of the integrated disclosures.
37(o)(1) General Requirements
    Proposed Sec.  1026.37(o)(1)(i) establishes the requirements that 
the disclosures required by Sec.  1026.37 be clear and conspicuous, in 
writing, and grouped together, segregated from everything else, and 
provided on separate pages that are not commingled with any other 
documents or disclosures, including any other disclosures required by 
State or other laws. Proposed comment 37(o)-1 clarifies that the clear 
and conspicuous standard requires that the disclosures be legible and 
in a readily understandable form. This guidance is adopted from 
existing comment 17(a)(1)-1. The comment also clarifies that proposed 
Sec.  1026.37(o)(1)(i) requires that the disclosures required by Sec.  
1026.37 be provided in a form that is physically separate from any 
other documents or disclosures, including any other disclosures 
required by State or other laws. This requirement is stricter than the 
guidance found in existing comment 17(a)(1)-2, which provides that the 
disclosures may be grouped together and segregated from other 
information in a variety of ways other than a separate piece of paper.
    The Bureau recognizes that, in certain credit sale and other non-
mortgage, closed-end credit transactions, creditors include the 
disclosures required by Sec.  1026.18 in the loan contract or some 
other document and ensure that they are grouped together and segregated 
by outlining them in a box or other means authorized by comment 
17(a)(1)-2. The Bureau understands, however, that this approach is 
virtually never employed for mortgage credit, for which the new 
disclosures under proposed Sec. Sec.  1026.19(e) and 1026.37, rather 
than Sec.  1026.18 disclosures, are required. Mortgage creditors 
generally use a standardized note that cannot accommodate dynamically 
generated, transaction-specific disclosures, and they almost 
universally employ the model disclosure forms provided in appendix H to 
Regulation Z as stand-alone, separate documents for providing required 
TILA disclosures. The RESPA GFE and RESPA settlement statement forms 
required by RESPA for federally related mortgage loans currently are 
delivered as separate documents, in accordance with the standard form 
requirements of Regulation X. Moreover, the forms in this proposal were 
developed as stand-alone documents through an extensive outreach and 
consumer testing process, as discussed above, and the Bureau is 
concerned that much of the informative benefit of the forms could be 
lost or compromised if they were permitted to be included within other 
documents. For these reasons, it appears that requiring the Sec.  
1026.37 disclosures to be delivered as a separate document maximizes 
the benefits of the forms and does not present any significant new 
obligation that mortgage creditors do not already effectively observe. 
The Bureau seeks comment, however, on whether there currently are 
transactions subject to proposed Sec.  1026.19(e) that may be burdened 
by the adoption of this requirement.
    Proposed Sec.  1026.37(o)(1)(ii) also provides that, except as 
provided in Sec.  1026.37(o)(5), the disclosures shall contain only the 
information required by Sec.  1026.37(a) through (n) and that they 
generally shall be made in the same order, and positioned relative to 
the master headings, headings, subheadings, labels, and similar 
designations in the same manner, as shown in form H-24. Proposed 
comment 37(o)(1)-2 clarifies that, even if a creditor elects not to use 
the form as a model (when so permitted because the transaction is not a 
federally related mortgage loan, as discussed above), failure to comply 
with these requirements, to designate as ``estimated'' all disclosures 
designated as such in the form, or to use letter size paper as shown in 
form H-24

[[Page 51233]]

constitutes noncompliance with the requirement of Sec.  
1026.37(o)(3)(ii) that the disclosures be made with headings, content, 
and format substantially similar to the model form.
37(o)(2) Estimated Disclosures
    Proposed Sec.  1026.37(o)(2) provides that, wherever form H-24 
discloses the required master heading, heading, subheading, label, or 
similar designation for a disclosure as ``estimated,'' that 
corresponding master heading, heading, subheading, label, or similar 
designation required by Sec.  1026.37 must contain the word 
``estimated,'' even if the provision requiring such headings, label, or 
similar designation does not. As noted below under Sec.  1026.38, many 
of the disclosure items required by that section cross-reference their 
estimated counterparts in Sec.  1026.37, although the same items may 
not be estimates as required by Sec.  1026.19(f). To avoid confusion 
over which items are estimates and which are not, the content 
provisions of Sec.  1026.37 do not qualify any of the master headings, 
headings, subheadings, labels, and similar designations of the items 
disclosed as ``estimated.'' Instead, proposed Sec.  1026.37(o)(2) 
incorporates by reference the ``estimated'' designations reflected on 
form H-24, and as discussed below, proposed Sec.  1026.38(t)(2) 
incorporates by reference the ``estimated'' designations reflected on 
form H-25.
37(o)(3) Form
    Proposed Sec.  1026.37(o)(3)(i) also provides that, for a 
transaction that is a federally related mortgage loan, as defined in 
Regulation X, the disclosures must be made using form H-24, set forth 
in appendix H to Regulation Z. The Bureau is proposing to require that 
creditors use a standard form (form H-24 of appendix H) for federally 
related mortgage loans pursuant to RESPA section 4, as amended by the 
Dodd-Frank Act. 12 U.S.C. 2603(a). Section 4 has long authorized the 
use of standard forms. As discussed above, the Dodd-Frank Act amended 
section RESPA section 4(a) to require the integrated disclosures that 
are the subject of this proposal, which specifically include both the 
settlement statement under section 4 and the good faith estimate under 
section 5(c). Although the Dodd-Frank Act eliminated one reference in 
section 4(a) to a ``standard'' form, it left another reference in 
place, as well as another reference to a ``standard'' form in section 
4(c). And by including the cross-reference to section 5(c) in section 4 
in relation to the integrated disclosure mandate, Congress effectively 
extended RESPA's existing standard-form authority to the good faith 
estimate as well as the settlement statement requirement. More notably, 
in amending section 4(a), Congress did not include an explicit 
prohibition of a mandatory-use form as is found in TILA section 
105(b).\182\ For this reason, the Bureau does not believe that Congress 
intended to eliminate standard-form authority from RESPA section 4.
---------------------------------------------------------------------------

    \182\ TILA section 105(b) states that ``nothing in this title 
may be construed to require a creditor or lessor to use any such 
model form or clause prescribed by the Bureau under this section.'' 
15 U.S.C. 1604(b).
---------------------------------------------------------------------------

    The Bureau also proposes a mandatory form pursuant to its authority 
under RESPA section 19(a) to prescribe such rules and regulations as 
may be necessary to achieve RESPA's purposes. 12 U.S.C. 2617(a). 
RESPA's purposes include the establishment of more effective advance 
disclosure to home buyers and sellers of settlement costs. Id. 
2601(b)(1). The Bureau believes, based on consumer testing results, 
that the purpose of more effective advance disclosure of settlement 
costs is better achieved if all lenders provide those disclosures in a 
standardized format that consumers can recognize and understand. 
Moreover, the credit terms included in the Loan Estimate facilitate and 
enhance the consumer's ability to shop for the best-priced loan, 
including settlement charges, which have a direct relationship to, and 
can overlap with, credit terms. Disclosure of the settlement costs 
alone, without the context provided by the credit terms, is therefore 
far less effective. This is consistent with HUD's rationale in HUD's 
2008 RESPA Final Rule for including credit terms in its good faith 
estimate form. See 73 FR 68204, 68214-15 (Nov. 17, 2008). Accordingly, 
the Bureau is authorized under section 19(a) to require the standard 
form for the disclosure of all of the information it contains, both 
settlement costs and credit terms alike.
    Certain closed-end consumer credit transactions are subject to the 
requirements of proposed Sec.  1026.19(e) but do not fall within the 
Regulation X definition of ``federally related mortgage loan.'' These 
include construction-only loans with terms of less than two years that 
do not finance the transfer of title to the borrower and loans secured 
by vacant land on which a home will not be constructed or placed using 
the loan proceeds within two years after settlement of the loan. See 
Sec.  1024.5(b)(3) and (4). In addition, transactions subject to 
proposed Sec.  1026.19(e) but not subject to RESPA would include loans 
secured by non-residential real property, provided they have a consumer 
purpose as required by Sec.  1026.1(c)(1)(iv). See Sec.  1024.2, 
definition of ``federally related mortgage loan,'' paragraph (1)(i) 
(requiring that the securing property be ``residential real 
property'').
    For such transactions that are subject to proposed Sec.  1026.19(e) 
because they are subject to TILA and are secured by real property, but 
that are not subject to RESPA, the Bureau does not mandate the use of 
form H-24 as a standard form. As noted above, TILA section 105(b) 
explicitly provides that nothing in TILA may be construed to require a 
creditor to use any model form or clause prescribed by the Bureau under 
that section. Accordingly, proposed Sec.  1026.37(o)(3)(ii) provides 
that, for transactions subject to Sec.  1026.37 that are not federally 
related mortgage loans, the disclosures must be made with headings, 
content, and format substantially similar to form H-24 but does not 
mandate the use of that form. Consistent with TILA section 105(b), 
proposed comment 37(o)(3)-1 explains that, although use of the form as 
a standard form is not mandatory for such transactions, its use as a 
model form, if properly completed with accurate content, constitutes 
compliance with the clear and conspicuous and segregation requirements 
of Sec.  1026.37(o). In consideration of the recommendation of the 
Small Business Review Panel, the Bureau seeks comment on the 
advantages, such as cost-saving benefits, and disadvantages of 
requiring a standard form for the Loan Estimate for federally related 
mortgage loans and model forms for other credit transactions subject to 
proposed Sec.  1026.19(e). See Small Business Review Panel Report at 
28.
    Proposed Sec.  1026.37(o)(3)(iii) also provides that the 
disclosures may be provided in electronic form, subject to compliance 
with the Electronic Signatures in Global and National Commerce Act (15 
U.S.C. 7001 et seq.). This provision parallels existing Sec.  
1026.17(a)(1).
37(o)(4) Rounding
    The prototype disclosure forms used in the Bureau's consumer 
testing displayed rounded numbers for certain information required to 
be disclosed by proposed Sec.  1026.37. For example, rounded numbers 
were disclosed for the information required by proposed Sec.  
1026.37(b)(6) and (7), (c)(1)(iii), (c)(2)(ii) and (iii), (c)(4)(ii), 
(f), (g), (h), (i), and (l). In addition, the total monthly payment 
required by proposed Sec.  1026.37(c)(2)(iv) was rounded if any of its 
component amounts were required to be rounded. The loan amount required

[[Page 51234]]

to be disclosed by proposed Sec.  1026.37(b)(1) and percentage amounts 
required to be disclosed by proposed Sec.  1026.37(b)(2) and (6), 
(f)(1)(i), (g)(2)(iii), (j), and (l)(2) and (3) that did not contain 
cents or fractional amounts were disclosed without decimal places.
    In the Bureau's consumer testing, using rounded numbers in this 
manner, consumers were able to see and evaluate the information 
required by the above-mentioned paragraphs of proposed Sec.  1026.37 
quickly. The Bureau is concerned that a large number of exact dollar 
amounts and percentages has the potential to cause information overload 
and reduce the overall effectiveness of the disclosure. The Bureau 
believes that rounding certain amounts on the Loan Estimate reduces the 
quantity of numbers on the form and the complexity of information about 
potential risks. For example, participants at the Bureau's testing were 
able to evaluate the risks of maximum payments and interest rates in 
the Loan Terms table using rounded numbers, as well as evaluate the 
rounded closing cost estimates, enhancing the utility of the disclosure 
for consumers. The Bureau believes the exact number of cents or decimal 
places for information required to be disclosed by the above-mentioned 
paragraphs of proposed Sec.  1026.37 at the time the Loan Estimate is 
provided would not provide a benefit to consumers that would outweigh 
the risk of information overload.
    Accordingly, the Bureau proposes to use its implementation 
authority under TILA section 105(a), its authority under section 
1032(a) of the Dodd-Frank Act, and its authority under section 1405(b) 
of the Dodd-Frank Act with respect to residential mortgage loans, to 
require only rounded numbers and percentages without fractional amounts 
to be disclosed without decimal places for certain information on the 
Loan Estimate. Whole dollar and certain whole percentage amounts appear 
to be sufficient to inform consumers of the estimated periodic payment 
amounts, estimated closing costs, financial risks posed by maximum 
amounts, and ensure a meaningful disclosure of credit terms. In 
addition, the disclosure of exact amounts could suggest to consumers a 
degree of accuracy that may not be warranted for some of the estimated 
figures. The Bureau believes this requirement ensures the meaningful 
disclosure of credit terms to consumers and promotes the informed use 
of credit. In addition, the Bureau believes this requirement may ensure 
that the features of any consumer financial product or service, both 
initially and over the term of the product or service, are fully, 
accurately, and effectively disclosed to consumers in a manner that 
permits consumers to understand the costs, benefits, and risks 
associated with the product or service, in light of the facts and 
circumstances. Further, the Bureau believes this requirement may 
improve consumer awareness and understanding of transactions involving 
residential mortgage loans and is in the interest of consumers and in 
the public interest.
    Proposed Sec.  1026.37(o)(4)(i)(A) requires only rounded numbers 
for the information disclosed pursuant to proposed Sec.  1026.37(b)(6) 
and (7), (c)(1)(iii), (c)(2)(ii) and (iii), (c)(4)(ii), (f), (g), (h), 
(i), and (l). Proposed Sec.  1026.37(o)(4)(i)(B) requires the loan 
amount disclosed pursuant to proposed Sec.  1026.37(b)(1) to be 
disclosed without decimal places denoting cents if the amount of cents 
are zero. Proposed Sec.  1026.37(o)(4)(i)(C) requires the total monthly 
payment disclosed pursuant to proposed Sec.  1026.37(c)(2)(iv) to be 
disclosed as a rounded number if any of its component amounts are 
required to be rounded. Proposed Sec.  1026.37(o)(4)(ii) requires 
percentages without fractional amounts that are disclosed pursuant to 
proposed Sec.  1026.37(b)(2) and (6), (f)(1)(i), (g)(2)(iii), (j), and 
(l)(2) and (3) to be disclosed without decimal places.
    Proposed comment 37(o)(4)-1 provides clarifies that consistent with 
Sec.  1026.2(b)(4) all numbers are to be disclosed as exact numbers, 
unless required to be rounded by proposed Sec.  1026.37(o)(4). Proposed 
comments 37(o)(4)-2, 37(o)(4)(i)(A)-1, 37(o)(4)(i)(B)-1, and 
37(o)(4)(ii)-1 provide guidance regarding rounding amounts on the Loan 
Estimate.
37(o)(5) Exceptions
    The Bureau's consumer testing has indicated that the format of 
information on the disclosures required by proposed Sec.  1026.37 
substantially affects the way in which a consumer interacts with and 
understands the information disclosed. In addition, the Bureau 
understands that credit and real estate transactions involve 
significant variability and believes that it is important to provide 
industry with clear guidance regarding permissible changes to the 
format requirements to accommodate this variability. Accordingly, the 
Bureau believes it must specify the changes to the format that are 
required and permissible, to ensure the disclosures provided to 
consumers convey the information required by proposed Sec.  1026.37 in 
a clear, understandable, and effective manner for consumers.
    As described above, pursuant to RESPA section 19(a), 12 U.S.C. 
2617(a), Sec.  1024.7 of Regulation X currently requires the use of a 
standard from to provide the disclosures required by section 5 of 
RESPA, 12 U.S.C. 2604. In contrast, TILA section 105(b), 15 U.S.C. 
1604(b), provides for model disclosures instead of a standard form. 
However, TILA permits creditors to delete information not required 
under the statute, other than numerical disclosures, and rearrange the 
format, only if doing so does not affect the substance, clarity, or 
meaningful sequence of the disclosure. Pursuant to its authority under 
RESPA section 19(a), its implementation authority under TILA section 
105(a), and its authority under section 1032(a) of the Dodd-Frank Act, 
the Bureau proposes Sec.  1026.37(o)(5), which sets forth the required 
changes to the format required to be used by proposed Sec.  
1026.37(o)(3), illustrated by form H-24 in appendix H to Regulation Z, 
and the permissible changes that do not affect the substance, clarity, 
or meaningful sequence of the disclosure. In addition, consistent with 
section 1032(a) of the Dodd-Frank Act, providing specified changes to 
the form would ensure that the features of consumer credit transactions 
secured by real property are fully, accurately, and effectively 
disclosed to consumers in a manner that permits consumers to understand 
the costs, benefits, and risks associated with the product or service, 
in light of the facts and circumstances. The Bureau believes providing 
for only specified changes to the form effectuates the purposes of TILA 
set forth in TILA section 102(a) and the purpose of the integrated 
disclosure set forth in TILA section 105(b), because it would ensure 
meaningful disclosure of credit terms to consumers, promote the 
informed use of credit, and facilitate compliance by providing 
flexibility where warranted. In addition, the Bureau believes this 
requirement would effectuate the purposes of RESPA by promoting more 
effective advance disclosure of settlement costs.
    Accordingly, proposed Sec.  1026.37(o)(5) specifies certain changes 
to form H-24 that are required or that do not affect the substance, 
clarity, or meaningful sequence of the disclosure and therefore are 
permissible. Proposed Sec.  1026.37(o)(5)(i) requires the substitution 
of the words ``month'' or ``monthly'' on the form H-24, where used to 
designate the frequency of payments or the applicable unit-period of 
the transaction, with a different word representing the frequency of 
payments or unit-period under the transaction's actual terms, if 
different from monthly. Proposed Sec.  1026.37(o)(5)(ii) permits the

[[Page 51235]]

deletion of lender credits from the Cash to Close table, required by 
proposed Sec.  1026.37(d)(4), if the amount is zero. Proposed Sec.  
1026.37(o)(5)(iii) permits the use of a logo for, or addition of a 
slogan with, the information required by proposed Sec.  1026.37(a)(3), 
and requires the information disclosed pursuant to Sec.  1026.37(a)(3), 
if no logo is used, to be disclosed in a similar format as form H-24 of 
appendix H to Regulation Z. Proposed Sec.  1026.37(o)(5)(iv) permits 
the attachment of a business card over the information required by 
proposed Sec.  1026.37(a)(3). Proposed Sec.  1026.37(o)(5)(v) permits 
the insertion of administrative information above the information 
required to be disclosed by proposed Sec.  1026.37(a)(2) and adjacent 
to the information required to be disclosed by proposed Sec.  
1026.37(a)(3) to assist in the identification of the form or the 
information contained on the form.
    Proposed Sec.  1026.37(o)(5)(vi) permits the form to be translated 
into languages other than English. The Bureau understands that some 
State laws require versions of the disclosures required under TILA and 
RESPA to be provided to consumers in a language other than English when 
the negotiation of the transaction is conducted in that language.\183\ 
In addition, some of the regulatory authorities in these States publish 
their own translations of these disclosures for use by the public.\184\ 
The Bureau's consumer testing included two rounds of testing with 
Spanish-speaking consumers of Spanish-language prototype disclosure 
forms to determine whether co-development of a non-English version of 
the disclosure would be beneficial to consumers.\185\ The Bureau 
determined that co-development of a separate non-English version of the 
disclosures would likely yield little benefit to consumers, because any 
differences in performance with the Spanish prototypes during testing 
were caused more by translation than design and structure issues. This 
may be due, in part, because the Bureau intentionally pursued a more 
graphic than textual design for the Loan Estimate with as few words as 
possible. This design highlights key information and allows consumers 
to quickly recognize and find the key information about the transaction 
without large amounts of text. The differences in language did not 
necessitate changes to the design of the disclosure. Accordingly, the 
proposed rule only includes English-language disclosure forms and 
permits the translation of these forms. The Bureau plans to review 
issues surrounding translations of the integrated disclosures after 
issuance of this proposal. As discussed below with respect to appendix 
H, the Bureau solicits comment on whether the final rule should include 
sample Spanish-language or other non-English language forms.
---------------------------------------------------------------------------

    \183\ See Cal. Civ. Code Sec. Sec.  1632, 1632.5, Or. Rev. Stat. 
Sec.  86A.198.
    \184\ The California Department of Corporations has translated 
the RESPA GFE into Chinese, Korean, Tagalog, and Vietnamese, 
available at https://www.corp.ca.gov/Forms/Default.asp. The Oregon 
Division of Finance and Corporate Securities provides version of the 
RESPA GFE and early TILA disclosure in Russian, Spanish, and 
Vietnamese, available at https://www.cbs.state.or.us/dfcs/ml/mortgage_disclosures_translations.html.
    \185\ According to the U.S. Census Bureau, based on data from 
the 2007 American Community Survey, 55.4 million people spoke a 
language other than English at home, and of those people, 62 percent 
spoke Spanish. U.S. Census Bureau, Language Use in the United 
States: 2007, ACS-12 (Apr. 2010), available at https://www.census.gov/hhes/socdemo/language/data/acs/ACS-12.pdf.
---------------------------------------------------------------------------

    Proposed comment 37(o)(5)-1 clarifies that creditors making any 
changes that are not expressly permitted may lose their protection from 
civil liability under TILA. Proposed comment 37(o)(5)-2 clarifies that 
the form may be completed by hand, typewriter, computer, or other word 
processing device, as long as the method produces clear and legible 
text and uses the required formatting, including bold font where shown 
on form H-24. Such completion by hand or typewriter would not exempt 
the creditor from the requirement to keep records in an electronic, 
machine readable format under proposed Sec.  1026.25.
    Proposed comment 1026.37(o)(5)-3 clarifies that if there are 
multiple creditors or mortgage brokers for a transaction, a creditor 
may alter the space provided on form H-24 and add labels to disclose 
additional contact information under proposed Sec.  1026.37(m), or 
disclose the additional information on a separate page with an 
appropriate cross-reference, if the space provided does not accommodate 
the information to be disclosed on the page. Proposed comment 
1026.37(o)(5)-4 clarifies that a creditor may add signature lines to 
form H-24 under the ``Confirm Receipt'' heading required by proposed 
Sec.  1026.37(n), or an additional page with an appropriate cross-
reference, if the space provided by form H-24 cannot accommodate the 
signature lines for multiple applicants. Proposed comment 
1026.37(o)(5)-5 clarifies the requirements of proposed Sec.  1026.37(o) 
as they apply to the use of a separate page.
Section 1026.38 Content of Disclosures for Certain Mortgage 
Transactions (Closing Disclosure)
    Proposed Sec.  1026.38 sets forth the required content of the 
integrated Closing Disclosure, required by proposed Sec.  1026.19(f) to 
be provided to a consumer no later than three business days prior to 
consummation.
    As discussed above, the Closing Disclosure integrates the 
disclosures currently provided in the RESPA settlement statement and 
the final TILA disclosure. In addition, the Closing Disclosure 
integrates several disclosures, including new disclosures under the 
Dodd-Frank Act, that otherwise would likely have been provided 
separately. The Bureau believes that the five-page Closing Disclosure 
integrates at least nine pages of disclosures. Specifically, the 
Closing Disclosure incorporates: (i) Three pages of the RESPA 
settlement statement; (ii) two pages typically used for the final TILA 
disclosure; (iii) one page for the negative amortization statement 
under TILA section 129C(f), which was added by section 1414(a) of the 
Dodd-Frank Act; (iv) one page for the anti-deficiency protection notice 
under TILA section 129C(g)(2), which was added by section 1414(c) of 
the Dodd-Frank Act; (v) one page for the partial payment policy 
disclosure under TILA section 129C(h), which was added by section 
1414(d) of the Dodd-Frank Act; and (vi) one page for the escrow account 
disclosures under TILA sections 129D(h) and (j), which were added by 
sections 1461 and 1462 of the Dodd-Frank Act. In addition, the Closing 
Disclosure incorporates the disclosure of: (i) The total interest 
percentage under TILA section 128(a)(19), which was added by section 
1419 of the Dodd-Frank Act; (ii) the approximate amount of the 
wholesale rate of funds in connection with the loan under TILA section 
128(a)(17), which was added by section 1419 of the Dodd-Frank Act; and 
(iii) the aggregate amount of settlement charges for all settlement 
services provided in connection with the loan and the aggregate amount 
of other fees or required payments in connection with the loan under 
TILA section 128(a)(17), which was added by section 1419 of the Dodd-
Frank Act. In absence of the Bureau's integration of the final TILA 
disclosure and the RESPA settlement statement, these disclosures would 
have been added to the final TILA disclosure, which potentially could 
have increased that disclosure's typical two pages to three pages.
    As in the case of the disclosure content required by proposed Sec.  
1026.37,

[[Page 51236]]

discussed above, Sec.  1026.38 provides that the information set forth 
in proposed Sec.  1026.38(a) through (s) shall be disclosed ``as 
applicable.'' Accordingly, the Bureau is proposing parallel commentary 
under Sec.  1026.38 to that proposed under Sec.  1026.37. Thus, 
proposed comment 38-1 clarifies that a disclosure that is not 
applicable to a transaction generally may be eliminated entirely or may 
be included and marked ``not applicable'' or ``N/A.''
38(a) General Information
    As with the Loan Estimate in proposed Sec.  1026.37(a), the Bureau 
proposes to use its authority under TILA section 105(a), and its 
authority under RESPA section 19(a), Dodd-Frank Act sections 1032(a) 
and (f), 1098, and 1100A, and for residential mortgage loans, Dodd-
Frank Act section 1405(b), to combine and modify disclosures and 
related requirements currently provided under Regulations X and Z and 
add additional disclosures in the Closing Disclosure for transactions 
subject to proposed Sec.  1026.19(f).
38(a)(1) Form Title
    Like the integrated disclosure provided three business days after 
application, TILA, RESPA, and the Dodd-Frank Act do not expressly 
prescribe a title for the form that must be provided in connection with 
a settlement. RESPA refers to the form as the ``uniform settlement 
statement,'' although Sec.  1024.8 of Regulation X uses the titles HUD-
1 and HUD-1A to refer to the forms used to document settlement charges 
in connection with the purchase of a property or refinancing of an 
existing mortgage loan, respectively. Regulation Z, however, does not 
prescribe a title for the disclosures that must be provided to the 
consumer three business days prior to settlement.
    Proposed Sec.  1026.38(a)(1) requires the creditor to use the term 
``Closing Disclosure'' as the name of the integrated disclosures 
provided to consumers three business days prior to settlement pursuant 
to proposed Sec.  1026.19(f). The Bureau believes the adoption of a 
standardized form name will effectuate the purposes of TILA and RESPA 
by promoting the informed use of credit and more effective advance 
notice of settlement costs, consistent with TILA section 105(a) and 
RESPA section 19(a), and will ensure that the features of the 
transaction are fully, accurately and effectively disclosed to 
consumers in a manner that permits consumers to better understand the 
costs, benefits, and risks associated with mortgage transactions in 
light of the facts and circumstances, consistent with Dodd-Frank Act 
section 1032(a). In addition, the use of standard terminology for the 
integrated disclosures will facilitate compliance for industry, which 
is a purpose of this rulemaking under Dodd-Frank Act sections 1098 and 
1100A. The Bureau also believes that, consistent with section 1405(b) 
of the Dodd-Frank Act, the requirement of a standard form name may 
improve consumer awareness and understanding of transactions involving 
residential mortgage loans through the use of disclosures, and is in 
the interest of consumers and in the public interest.
38(a)(2) Form Purpose
    Proposed Sec.  1026.38(a)(2) requires the creditor to include a 
statement regarding the purpose of the Closing Disclosure. 
Specifically, proposed Sec.  1026.38(a)(2) requires creditors to 
provide the following statement: ``This form is a statement of final 
loan terms and closing costs. Compare this document with your Loan 
Estimate.'' Providing the purpose of the Closing Disclosure is a new 
requirement, as neither creditors nor settlement agents are currently 
required to provide this type of information in the disclosures 
required by TILA, RESPA, and their implementing regulations. 
Nonetheless, this disclosure will benefit consumers and promote the 
informed use of credit by encouraging consumers to use both the Loan 
Estimate and Closing Disclosure as tools to identify changes in costs 
and terms that may have occurred after issuance of the Loan Estimate. 
Accordingly, this disclosure will benefit consumers and effectuate the 
purposes of TILA and RESPA by promoting the informed use of credit and 
more effective advance notice of settlement costs, consistent with TILA 
section 105(a) and RESPA section 19(a), and will ensure that the 
features of the transaction are fully, accurately and effectively 
disclosed to consumers in a manner that permits consumers to better 
understand the costs, benefits, and risks associated with mortgage 
transactions, in light of the facts and circumstances, consistent with 
Dodd-Frank Act section 1032(a).
38(a)(3) Closing Information
    Appendix A to Regulation X currently requires the settlement agent 
to include in the RESPA settlement statement basic information about 
the settlement process, including the name of the settlement agent, the 
place of settlement, the property location, and the settlement date. In 
addition to this information, with the exception of the place of 
settlement, proposed Sec.  1026.38(a)(3) requires creditors to 
disclose: (1) The date the Closing Disclosure is issued; (2) the dates 
funds are disbursed to the seller and consumer, as applicable; (3) the 
sale price of the property that is the subject of the transaction; and 
(4) the file number assigned to the transaction by the closing agent. 
All of the aforementioned information would be located under the 
heading ``Closing Information.'' The Bureau believes that this 
information and the additional information discussed below effectuate 
the purposes of TILA and RESPA by promoting the informed use of credit 
and more effective advance notice of settlement costs, consistent with 
TILA section 105(a) and RESPA section 19(a), and will ensure that the 
features of the transaction are fully, accurately and effectively 
disclosed to consumers in a manner that permits consumers to better 
understand the costs, benefits, and risks associated with mortgage 
transactions, in light of the facts and circumstances, consistent with 
Dodd-Frank Act section 1032(a).
38(a)(3)(i) Date Issued
    Proposed Sec.  1026.38(a)(3)(i) requires the creditor to disclose 
the date the disclosures required for transactions subject to Sec.  
1026.19(f) are issued to the consumer, labeled ``Date Issued.'' 
Proposed comment Sec.  1026.38(a)(3)(i)-1 cross-references the 
commentary to proposed Sec.  1026.37(a)(4).
38(a)(3)(ii) Closing Date
    Proposed Sec.  1026.38(a)(3)(ii) requires the creditor to disclose 
the consummation date for the mortgage loan transaction, labeled 
``Closing Date.''
38(a)(3)(iii) Disbursement Date
    Proposed Sec.  1026.38(a)(3)(iii) requires the disclosure of the 
date the amounts disclosed pursuant to proposed Sec.  
1026.38(j)(3)(iii) and (k)(3)(iii) are expected to be paid to the 
consumer and seller, respectively, labeled ``Disbursement Date.''
38(a)(3)(iv) Agent
    Proposed Sec.  1026.38(a)(3)(iv) requires the identity of the 
settlement agent conducting the closing, labeled ``Agent.'' Proposed 
comment 38(a)(3)(iv)-1 clarifies that the name of the agency that 
employs the settlement agent should be provided in the disclosure 
required by Sec.  1026.38(a)(3)(iv) and that the name of the individual 
conducting the closing is not required.

[[Page 51237]]

38(a)(3)(v) File Number
    Proposed Sec.  1026.38(a)(3)(v) requires disclosure of the number 
assigned to the transaction by the closing agent for identification 
purposes, labeled ``File .''
38(a)(3)(vi) Property
    Proposed Sec.  1026.38(a)(3)(vi) requires the street address of the 
property required to be disclosed under proposed Sec.  1026.37(a)(6), 
labeled ``Property.'' Proposed comment 38(a)(3)(iv)-1 cross-references 
the commentary to Sec.  1026.37(a)(6), which provides guidance 
regarding the information that must be provided in response to this 
requirement when a standard property address is unavailable.
38(a)(3)(vii) Sale Price
    In credit transactions where there is a seller, proposed Sec.  
1026.38(a)(3)(vii)(A) requires disclosure of the contract sale price 
for the property identified in proposed Sec.  1026.38(a)(3)(vi), 
labeled ``Sale Price.'' In transactions where there is no seller, 
proposed Sec.  1026.38(a)(3)(vii)(B) requires disclosure of the 
appraised value of the property in proposed Sec.  1026.38(a)(3)(vi), 
labeled ``Appraised Prop. Value.'' Proposed comment 38(a)(3)(vii)-1 
provides guidance regarding disclosing the property value when there is 
no seller that is a party to the transaction.
38(a)(4) Transaction Information
    Proposed Sec.  1026.38(a)(4) requires the creditor to disclose the 
names and addresses of the parties to the transaction: The borrower, 
seller, and lender, as applicable. This information would appear under 
the heading ``Transaction Information.'' These disclosures are 
currently provided in the RESPA settlement statement. See appendix A to 
Regulations X. In addition, TILA section 128(a)(1) and Regulation Z 
Sec.  1026.18(a) require disclosure of the identity of the creditor. 
The Bureau believes that these disclosures effectuate the purposes of 
TILA and RESPA by promoting the informed use of credit and more 
effective advance notice of settlement costs, consistent with TILA 
section 105(a) and RESPA section 19(a), and will ensure that the 
features of the transaction are fully, accurately and effectively 
disclosed to consumers in a manner that permits consumers to better 
understand the costs, benefits, and risks associated with mortgage 
transactions, in light of the facts and circumstances, consistent with 
Dodd-Frank Act section 1032(a).
    Proposed comment 38(a)(4)-1 clarifies that the name and address for 
each consumer and seller must be provided and refers creditors to the 
commentary to proposed Sec.  1026.37(a)(5) for further guidance. 
Proposed comment 38(a)(4)-1 also clarifies that the name and address of 
each consumer must be provided and that if the form does not provide 
enough space to include the required information for each seller, an 
additional page with that information may be appended to the end of the 
form, provided the creditor is in compliance with proposed Sec.  
1026.38(t)(3). Proposed comment 38(a)(5)-2 clarifies that, in 
transactions where there is no seller such as in a refinancing or home 
equity loan, the creditor must provide the name of the person or 
persons primarily liable under the obligation or who have a right of 
rescission. Finally, proposed comment 38(a)(4)-3 cross-references the 
commentary to proposed Sec.  1026.37(a)(3) for information regarding 
the identification of multiple creditors.
38(a)(5) Loan Information
    Proposed Sec.  1026.38(a)(5) requires the creditor to provide 
certain information about the mortgage loan that is the subject of the 
transaction. With the exception of the mortgage insurance case number 
required by proposed Sec.  1026.38(a)(5)(vi), all of the disclosures 
required under proposed Sec.  1026.38(a)(5) mirror the disclosures 
required by proposed Sec.  1026.37(a)(8) through (12). The Bureau 
believes that these disclosures effectuate the purposes of TILA and 
RESPA by promoting the informed use of credit and more effective 
advance notice of settlement costs, consistent with TILA section 105(a) 
and RESPA section 19(a), and will ensure that the features of the 
transaction are fully, accurately and effectively disclosed to 
consumers in a manner that permits consumers to better understand the 
costs, benefits, and risks associated with mortgage transactions, in 
light of the facts and circumstances, consistent with Dodd-Frank Act 
section 1032(a).
    Proposed comment 38(a)(5)-1 refers the creditor to the commentary 
to proposed Sec.  1026.37(a)(9) through (11) for further guidance on 
the general requirements and definitions applicable to proposed Sec.  
1026.38(a)(5)(i) through (v). The disclosures required by proposed 
Sec.  1026.38(a)(5) appear under the heading ``Loan Information.''
38(a)(5)(i) Loan Term
    Proposed Sec.  1026.38(a)(5)(i) requires disclosure of the term of 
the loan, consistent with proposed Sec.  1026.37(a)(8) and labeled 
``Loan Term.''
38(a)(5)(ii) Purpose
    Proposed Sec.  1026.38(a)(5)(ii) requires disclosure of the purpose 
of the loan, consistent with proposed Sec.  1026.37(a)(9) and labeled 
``Purpose.''
38(a)(5)(iii) Product
    Proposed Sec.  1026.38(a)(5)(iii) requires disclosure of the loan 
product, consistent with proposed Sec.  1026.37(a)(10) and labeled 
``Product.''
38(a)(5)(iv) Loan Type
    Proposed Sec.  1026.38(a)(5)(iv) requires disclosure of the loan 
type, consistent with proposed Sec.  1026.37(a)(11) and labeled ``Loan 
Type.''
38(a)(5)(v) Loan Identification Number
    Proposed Sec.  1026.38(a)(5)(v) requires disclosure of the loan 
identification number, consistent with proposed Sec.  1026.37(a)(12) 
and labeled ``Loan ID .''
38(a)(5)(vi) Mortgage Insurance Case Number
    The mortgage insurance case number currently is disclosed in 
section B of the RESPA settlement statement. See appendix A to 
Regulation X. Proposed Sec.  1026.38(a)(5)(vi) incorporates this 
disclosure into the Closing Disclosure, labeled ``MIC .''
38(b) Loan Terms
    For transactions subject to proposed Sec.  1026.19(f), proposed 
Sec.  1026.38(b) implements the requirements of TILA section 128(a)(6), 
(a)(11), and (b)(2)(C)(ii) by requiring creditors to disclose on the 
Closing Disclosure the table of key loan terms provided on the Loan 
Estimate pursuant to proposed Sec.  1026.37(b). This information 
includes the loan amount; interest rate; periodic principal and 
interest payment; whether the loan amount, interest rate, or periodic 
payment may increase; and whether the loan has a prepayment penalty or 
balloon payment. For a detailed description of the Bureau's 
implementation of these statutory provisions and its legal authority 
for this proposal, see the section-by-section analysis to proposed 
Sec.  1026.37(b).
    The requirements of proposed Sec.  1026.38(b) generally mirror 
those of proposed Sec.  1026.37(b). Accordingly, proposed comment 
38(b)-1 directs creditors to the commentary to proposed Sec.  
1026.37(b) for guidance on the disclosures required by proposed Sec.  
1026.38(b).
38(c) Projected Payments
    Proposed Sec.  1026.38(c) implements the requirements of TILA 
section 128(a)(6), (a)(16), (b)(2)(C), and (b)(4) for

[[Page 51238]]

transactions subject to proposed Sec.  1026.19(f), by requiring 
creditors to disclose on the Closing Disclosure the periodic payment or 
range of payments, together with an estimate of the taxes, insurance, 
and assessments and the payments to be made with escrow account funds. 
15 U.S.C. 128(a)(6), (a)(16), (b)(2)(C), (b)(4). The requirements of 
proposed Sec.  1026.38(c) generally mirror those of proposed Sec.  
1026.37(c), with certain exceptions which are discussed below. 
Accordingly, proposed comment 38(c)-1 directs creditors to Sec.  
1026.37(c) and its commentary for guidance on the disclosures required 
by Sec.  1026.38(c). For a detailed description of the Bureau's 
implementation of these statutory provisions and its legal authority 
for this proposal, see the section-by-section analysis to proposed 
Sec.  1026.37(c) above. As discussed below in the section-by-section 
analysis to proposed Sec.  1026.38(t), the items required to be 
disclosed pursuant to Sec.  1026.38 will be actual terms and costs, as 
required by Sec.  1026.19(f).
    Proposed Sec.  1026.38(c) differs from proposed Sec.  1026.37(c) in 
several ways. First, proposed Sec.  1026.38(c)(2) requires an 
additional reference to the information required by proposed Sec.  
1026.38(l)(7). The Bureau believes, based on consumer testing, that 
this additional reference will help consumers to understand the 
specific payment amounts to be made with escrow funds and those that 
must be paid separately by the consumer. Second, proposed Sec.  
1026.38(c) contains different rules for estimating escrow payments. As 
discussed in the section-by-section analysis to proposed Sec.  
1026.37(c), the Dodd-Frank Act amended TILA to add new requirements 
regarding the disclosure of escrow payments in consumer credit 
transactions secured by a first mortgage on the principal dwelling of 
the consumer, other than an open-end credit plan or reverse mortgage. 
Specifically, TILA section 128(b)(4)(A) provides that the disclosures 
required by TILA section 128(a)(6) must take into account the amount of 
any monthly payment to an escrow account, in accordance with section 
10(a)(2) of RESPA. 15 U.S.C. 1638(b)(4)(A); 12 U.S.C. 2609(a)(2). In 
addition, new TILA section 128(b)(4)(B) generally requires creditors to 
take into account the taxable assessed value of the property during the 
first year after consummation, including the value of any improvements 
constructed or to be constructed on the property, if known, and the 
replacement costs of the property for hazard or flood insurance, when 
disclosing estimated escrow payments pursuant to TILA section 
128(b)(4)(A). 15 U.S.C. 1638(b)(4)(B). For the Loan Estimate provided 
to consumers near the time of application, proposed Sec.  1026.37(c) 
generally incorporates these statutory provisions, but expands the 
requirements to all transactions subject to Sec.  1026.37(c). However, 
the Bureau believes that separate treatment is required for the Closing 
Disclosure because the statutory requirements may conflict with certain 
provisions of Regulation X, which implements the provisions of RESPA 
sections 6(g) and 10, regarding the administration of escrow accounts. 
12 U.S.C. 2605(g); 2609.
    Regulation X Sec.  1024.17(c)(7) specifies how a creditor 
conducting an escrow account analysis must estimate disbursement 
amounts. If the creditor knows the charge for a particular escrow item, 
the creditor must use that amount in estimating the disbursement. If 
the charge is unknown, the creditor may base the estimate on the 
preceding year's charge, but may adjust the estimate to account for 
inflation. The Regulation X requirement that the creditor use actual 
charges, if known, in estimating escrow payment amounts may conflict 
with the TILA section 128(b)(4)(B) requirement that the creditor take 
into account the replacement costs of the property for hazard insurance 
when determining the estimated escrow amount. Under the plain language 
of TILA section 128(b)(4)(B), a creditor must base estimated escrows 
for hazard insurance on the replacement costs of the property, even if 
it knows that the actual charges will be different. While the Bureau 
believes that the TILA requirement for estimating escrow payments is 
appropriate for the Loan Estimate because it requires creditors to use 
a uniform standard for estimates and therefore facilitates comparison, 
the disclosure of actual payment amounts, when known, is appropriate 
for the Closing Disclosure.
    Accordingly, the Bureau proposes to use its authority under TILA 
section 105(a), Dodd-Frank Act section 1032(a), and, for residential 
mortgage loans, Dodd-Frank Act section 1405(b) to modify the 
requirements of TILA section 128(b)(4)(B) for the estimation of escrow 
payment amounts on the Closing Disclosure. Proposed Sec.  1026.38(c) 
provides that, in disclosing estimated escrow payments as described in 
Sec.  1026.37(c)(2)(iii) and (4)(ii), the amount disclosed on the 
Closing Disclosure: (1) For transactions subject to RESPA, is 
determined under the escrow account analysis described in Regulation X, 
12 CFR 1024.17, and (2) for transactions not subject to RESPA, may be 
determined under the escrow account analysis described in Regulation X, 
12 CFR 1024.17, or in the manner set forth in Sec.  1026.37(c)(5). 
Comment 38(c)(1)-1 clarifies that the amount of estimated escrow 
payments disclosed on the Closing Disclosure is accurate if it differs 
from the estimated escrow payment disclosed on the Loan Estimate due to 
the escrow account analysis described in Regulation X, 12 CFR 1024.17. 
The Bureau believes the proposed modification will effectuate the 
purposes of TILA by promoting the informed use of credit by allowing 
disclosure of actual escrow amounts for hazard insurance, when known. 
Additionally, the proposed modification will ease compliance burden for 
creditors. In particular, permitting creditors in transactions not 
subject to RESPA to rely on the accounting rules described in 
Regulation X, 12 CFR 1024.17, to calculate the escrow payment 
disclosure will avoid requiring creditors to follow a separate 
disclosure requirement for the relatively small number of transactions 
that are subject to TILA but not RESPA. The proposed modification will 
also improve consumer awareness and understanding of residential 
mortgage loans and is in the interest of consumers and the public, 
consistent with Dodd-Frank Act section 1405(b). The Bureau also 
believes that the disclosure ensures that the features of consumer 
credit transactions secured by real property are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to understand the costs, benefits, and risks associated with the 
product or service, in light of the facts and circumstances, consistent 
with Dodd-Frank Act section 1032(a).
38(d) Cash To Close
    Pursuant to its authority under TILA section 105(a) and Dodd-Frank 
section 1032(a), the Bureau proposes to require creditors to provide 
the actual total closing costs imposed upon the consumer and the amount 
of the cash required at consummation from the consumer. This disclosure 
will promote the informed use of credit and consumer understanding of 
the costs, benefits, and risks associated with the loan because it will 
indicate to the consumer the amount the consumer will pay at 
consummation of the credit transaction and closing of the real estate 
transaction. Accordingly, proposed Sec.  1026.38(d) requires the 
disclosure of the cash required from the consumer at consummation of 
the transaction, with a

[[Page 51239]]

breakdown of the amounts of loan costs and other costs associated with 
the transaction.
38(d)(1) to (d)(6)
    Under proposed Sec.  1026.38(d)(1), the dollar amount due from the 
consumer is the same amount as calculated in accordance with proposed 
Sec.  1026.38(j)(3)(iii) and is disclosed under a heading of ``Cash to 
Close'' and labeled ``Cash to Close.'' The total dollar amount of the 
loan costs to be paid by the consumer at closing as calculated under 
proposed Sec.  1026.38(f)(4) is disclosed under proposed Sec.  
1026.38(d)(2). The total dollar amount of the other costs to be paid by 
the consumer at closing as calculated under proposed Sec.  
1026.38(g)(5) is disclosed under proposed Sec.  1026.38(d)(3). The 
amount of lender credits disclosed under Sec.  1026.38(h)(3) is 
disclosed under Sec.  1026.38(d)(4). The sum of the amounts disclosed 
under Sec.  1026.38(d)(2), 1026.38(d)(3), and 1026.38(d)(4) is 
disclosed with a description of ``Closing Costs'' under Sec.  
1026.38(d)(5). A statement directing the consumer to refer to the page 
of the Closing Disclosure that contains the tables required under Sec.  
1026.38(f) and (g) is required under Sec.  1026.38(d)(6).
38(f),(g), and (h) Closing Cost Details
    Currently, RESPA section 4(a) requires that the forms published by 
the Bureau ``* * * shall conspicuously and clearly itemize all charges 
imposed upon the borrower and all charges imposed upon the seller in 
connection with the settlement * * *.'' 12 U.S.C. 2603(a). The current 
RESPA settlement statement used in residential real estate transactions 
is promulgated under Regulation X Sec.  1024.8, with instructions in 
appendix A of Regulation X.
    As discussed above, Dodd-Frank Act section 1032(f) requires the 
Bureau to combine these RESPA disclosures with the disclosures required 
by TILA. However, section 1419 of the Dodd-Frank Act amended TILA 
section 128(a) to also require, in the case of a residential mortgage 
loan, disclosure of the aggregate amount of settlement charges for all 
settlement services provided in connection with the loan and the 
aggregate amount of other fees or required payments in connection with 
the loan. 15 U.S.C. 1638(a)(17).
    Pursuant to its authority under Dodd-Frank Act section 1032(a) and 
(f), TILA section 105(a), and RESPA section 19(a), the Bureau proposes 
to require creditors to provide the loan costs and other costs imposed 
upon the consumer and the seller in tables as part of the integrated 
Closing Disclosure for closed-end transactions secured by real property 
(other than reverse mortgages). Based on its consumer testing, the 
Bureau believes that the disclosure of loan costs and other costs in 
the format illustrated in proposed form H-25 of appendix H to 
Regulation Z may improve consumer understanding of the loan costs and 
other costs being imposed. The Bureau tested several different 
prototype formats for disclosing actual closing costs on the Closing 
Disclosure, including prototypes that were similar in format to the 
current RESPA settlement statement, with a similar three-and four-digit 
line numbering system, and other prototypes that more closely matched 
the Loan Estimate. Consumer participants at the Bureau's consumer 
testing performed better at identifying closing costs, including 
whether closing costs had changed between the estimated and actual 
amounts, when using a format for closing costs that closely matched 
that of the Loan Estimate. Participants gained a familiarity with the 
organization of closing costs on the Loan Estimate and benefited from 
this experience when engaging with the Closing Disclosure. In addition, 
consumer participants often placed the Loan Estimate and Closing 
Disclosure prototypes side-by-side to compare the closing costs, and 
this method of comparing the two disclosures was better enabled and 
assisted by a closely matching organization of closing costs between 
them. Accordingly, the Bureau is proposing a format for the disclosure 
of closing cost information required by proposed Sec.  1026.38(f) and 
(g) that closely matches the format and organization of the closing 
cost information on the Loan Estimate, as required by proposed Sec.  
1026.38(t) and illustrated by proposed form H-25.
    This format of form H-25 also uses a different line numbering 
system than that of the current RESPA settlement statement. Both 
consumer and industry participants at the Bureau's testing stated that 
line numbers would be useful to facilitate conversations between 
consumers, creditors, and other participants in the credit and 
underlying real estate transaction. However, consumer participants at 
the Bureau's testing appeared overwhelmed by the three-and four-digit 
line numbers on the prototypes similar to the current RESPA settlement 
statement, and performed worse with prototypes containing that system. 
As discussed above in part III, the Bureau is particularly mindful of 
the potential risk of information overload for consumers, given the 
amount of numbers and complexity involved in the credit transaction and 
the underlying real estate transaction. The Bureau tested prototypes 
with a two-digit line numbering system, which performed better with 
both consumer and industry participants at the Bureau's testing, with 
some industry participants at the Bureau's testing preferring it over 
the system of the current RESPA settlement statement. Accordingly, the 
format for the information required by proposed Sec.  1026.38(f) and 
(g), as required by proposed Sec.  1026.38(t) and illustrated by form 
H-25, also contains a two-digit line numbering system that is different 
than the current RESPA settlement statement.
    The Bureau believes that this disclosure may effectuate the purpose 
of TILA by promoting the informed use of credit and assuring a 
meaningful disclosure to consumers. The Bureau believes that this 
disclosure may also satisfy the purpose of RESPA to provide more 
effective advanced disclosure of settlement costs to both the consumer 
and the seller in the real estate transaction. In addition, consistent 
with section 1032(a) of the Dodd-Frank Act, this disclosure may ensure 
that the features of consumer credit transactions secured by real 
property are fully, accurately, and effectively disclosed to consumers 
in a manner that permits consumers to understand the costs, benefits, 
and risks associated with the product or service, in light of the facts 
and circumstances.
    As discussed below, proposed Sec.  1026.38(f), (g), and (h) require 
the creditor or closing agent to disclose the details of the closing 
costs at closing and totals of those costs. The costs related to the 
consummation of the credit transaction and the closing of the real 
estate transaction would be disclosed under Sec.  1026.38(f), (g), and 
(h), as discussed below, regardless of the person responsible for 
paying the cost.\186\
---------------------------------------------------------------------------

    \186\ The permitted itemization of closing costs under Sec.  
1026.38(f) and (g) allows creditors to provide itemizations required 
by State law without using additional pages. See, e.g., Indiana 
Department of Insurance, Title Insurance Division ``New RESPA Rules 
and Indiana Code FAQs'' (May 1, 2010) available at https://www.in.gov/idoi/files/Indiana_Department_of_Insurance_FAQs.pdf; 
North Carolina Commissioner of Banks Memorandum ``Disclosure of 
Origination Fees under HUD's New RESPA Rules'' (December 3, 2010) 
available at https://www.nccob.gov/public/docs/Financial%20Institutions/Mortgage/OCOB_Letter_Regarding_Disclosure_of_Origination_Fees_under_HUDs_new_RESPA_Rules.pdf; Tex. Ins. Code Ann. art. Sec.  2702.053 (West 2005).
---------------------------------------------------------------------------

    During the Small Business Review Panel, several settlement agents 
and one mortgage company requested that the

[[Page 51240]]

line numbers from the current RESPA settlement statement be retained, 
stating that using the revised line numbers in the prototype integrated 
Closing Disclosure would significantly increase programming costs. See 
Small Business Review Panel Report at 20, 28-9. Based on this feedback, 
the Bureau seeks comment on whether the use of line numbers will lower 
software-related costs on industry, and the exact amount of the savings 
given the rest of the changes in the integrated closing disclosure 
contemplated by this proposal, while improving consumer understanding 
of the loan terms and costs at the consummation of the credit 
transaction and the closing of the real estate transaction.
38(f) Closing Cost Details; Loan Costs
    Under proposed Sec.  1026.38(f), the closing cost details are 
disclosed under a master heading of ``Closing Cost Details'' with 
columns stating whether the charge is paid at or before consummation by 
the consumer or the seller, or paid by others. All loan costs in the 
credit transaction would be disclosed in a table under a heading of 
``Loan Costs'' in three subcategories.
38(f)(1) Origination Charges
    The first subcategory of loan costs would be disclosed under the 
label ``Origination Charges,'' which encompasses the same items as 
disclosed on the Loan Estimate under proposed Sec.  1026.37(f)(1) 
together with any compensation of a loan originator paid by the 
creditor. Each cost would be disclosed in the appropriate column 
designated borrower-paid at or before closing, seller-paid at or before 
closing, or paid by others. Proposed comment 38(f)(1)-1 clarifies that 
comments 37(f)(1)-1, -2 and -3 provide additional guidance for the 
charges listed under Sec.  1026.38(f)(1). Proposed comment 38(f)(1)-2 
clarifies that all compensation paid to a loan originator must be 
provided under Sec.  1026.38(f)(1), that compensation from the creditor 
to a loan originator must be disclosed in the paid by others column, 
and that compensation from both the consumer and the creditor to the 
loan originator is prohibited under Sec.  1026.36(d)(2). Proposed 
comment 38(f)(1)-3 clarifies that any amount disclosed as paid from the 
creditor to the loan originator is calculated as the dollar value of 
all compensation to the loan originator and refers to comments 
36(d)(1)-1, -2, -3 and -6 for further guidance on the components of 
compensation a to loan originator. The Bureau believes that the 
origination charges disclosed under Sec.  1026.38(f)(1) satisfies Dodd-
Frank Act section 1419, which amended section 128(a) of TILA to add 
paragraph (18), requiring disclosure of the aggregate amount of fees 
paid to the mortgage originator, amount of those fees paid directly by 
the consumer, and any additional amount received by the originator from 
the creditor. As discussed above in part II.F, the Bureau currently is 
engaged in six other rulemakings that relate to mortgage credit and 
intends that the rulemakings function collectively as a whole. 
Accordingly, the Bureau may have to modify aspects of this proposed 
rule for consistency with determinations made in the other rulemakings. 
For example, the Bureau would modify the disclosure of origination 
charges under Sec.  1026.38(f)(1) as appropriate for consistency with 
other rulemakings related to permissible mortgage loan originator 
compensation.
    Alternatively, the Bureau invites comment on whether it should 
require itemization in the Closing Disclosure of fees received by loan 
originators from the creditor, and whether it should require 
itemization of any compensation paid by consumers to loan originators, 
which does not include creditors, in the Loan Estimate and Closing 
Disclosure. As discussed above with respect to proposed Sec.  
1026.37(f)(1), the Bureau is proposing to use its authority under TILA 
section 105(a) and (f), RESPA section 19(a), and Dodd-Frank Act section 
1405(b) to exempt the disclosures required by proposed Sec.  1026.19(e) 
from the TILA section 128(a)(18) requirement that creditors disclose 
the amount of origination fees received by loan originators from the 
creditor. The Bureau solicits comment on whether a similar exemption 
should be applied here.
38(f)(2) Services Borrower Did Not Shop For
    The second subcategory of loan costs would be disclosed under the 
label ``Services Borrower Did Not Shop For.'' The costs of services 
that were required by the creditor and provided by persons other than 
the creditor for which the consumer could not or did not shop would 
disclosed under Sec.  1026.38(f)(2). All items that were required to be 
disclosed under Sec.  1026.37(f)(2), plus those items that would be 
disclosed under Sec.  1026.37(f)(3) when the consumer did not shop for 
the service under Sec.  1026.19(e)(1)(vi). Any additional items that 
were required by the creditor but were not disclosed on the Loan 
Estimate under Sec.  1026.37(f)(2) would be disclosed under Sec.  
1026.38(f)(2) when the consumer did not shop for the service under 
Sec.  1026.19(e)(1)(vi). Each cost would be disclosed in the 
appropriate column designated borrower-paid at or before closing, 
seller-paid charges at or before closing, or paid by others. Proposed 
comment 38(f)(2)-1 refers to comments 37(f)(2)-1, through -4 to provide 
additional guidance for the charges listed under Sec.  1026.38(f)(2).
38(f)(3) Services Borrower Did Shop For
    The third subcategory of loan costs would be disclosed under the 
label ``Services Borrower Did Shop For.'' The services required by the 
creditor but for which the consumer independently shopped are disclosed 
under Sec.  1026.38(f)(3). Each cost is disclosed in the appropriate 
column for borrower-paid at or before closing, seller-paid at or before 
closing, or paid by others. Proposed comment 38(f)(3)-1 clarifies that 
all items that were disclosed under Sec.  1026.37(f)(3) that the 
consumer did not shop for the service under Sec.  1026.19(e)(1)(vi) are 
disclosed under Sec.  1026.38(f)(2), and not under Sec.  1026.38(f)(3).
38(f)(4) and (5) Total Loan Costs and Subtotal of Loan Costs
    With the label ``Total Loan Costs (Borrower-Paid),'' the total 
costs designated borrower-paid charges at closing and borrower-paid 
charges before closing would be disclosed under Sec.  1026.38(f)(4). 
The costs disclosed under Sec.  1026.38(f)(1), (2), and (3) would be 
subtotaled and disclosed in the appropriate column designated borrower-
paid at or before closing under Sec.  1026.38(f)(5). Proposed comment 
38(f)(5)-1 clarifies that costs that are seller-paid at or before 
closing, or paid by others, are not subtotaled under Sec.  
1026.38(f)(5), and that the subtotal of charges that are seller-paid at 
or before closing, or paid by others, would be disclosed under Sec.  
1026.38(h)(2).
38(g) Closing Cost Details; Other Costs
    Under proposed Sec.  1026.38(g), all other costs in the credit 
transaction and the real estate transaction are disclosed in a table 
under the heading of ``Other Costs'' in four subcategories. Proposed 
comment 38(g)-1 would refer to comment 38(f)-1 and comment 37(g)-1 to 
provide guidance related to Sec.  1026.38(g).
38(g)(1) Taxes and Other Government Fees
    The first subcategory is disclosed under the label ``Taxes and 
Other Government Fees.'' The amount of recording fees and an 
itemization of transfer taxes would be disclosed under Sec.  
1026.38(g)(1). Proposed comment

[[Page 51241]]

38(g)(1)-1 refers to comments 37(g)(1)-1, -2, -3 and -4 for guidance on 
disclosures required under Sec.  1026.38(g)(1).
38(g)(2) Prepaids
    The second subcategory is disclosed under the label ``Prepaids.'' 
The items that were identified under are stated with the actual costs 
in the applicable columns is disclosed under Sec.  1026.38(g)(2). 
Proposed comment 38(g)(2)-1 refers to comment 37(g)(2)-1 to provide 
guidance on disclosures required under Sec.  1026.38(g)(2). Proposed 
comment 38(g)(2)-2 clarifies that the amount of prepaid interest can be 
disclosed as a negative number if the calculation of prepaid interest 
results in a negative number. Proposed comment 38(g)(2)-3 clarifies 
that if interest is not collected for a portion of a month or other 
period between closing and the date from which interest will be 
collected with the first monthly payment, then $0.00 must be disclosed 
under Sec.  1026.38(g)(2) for prepaid interest. This guidance is 
consistent with instructions for RESPA settlement statement line 901 in 
appendix A of Regulation X.
38(g)(3) Initial Escrow Payment at Closing
    The third subcategory is disclosed under the subheading ``Initial 
Escrow Payment at Closing.'' The items that were identified under Sec.  
1026.37(g)(3) are stated with their actual cost and the applicable 
aggregate adjustment required under 12 CFR 1024.17(d)(2) and disclosed 
under Sec.  1026.38(g)(3). Proposed comment 38(g)(3)-1 clarifies that 
the creditor would be required to state the amount that it would 
require the consumer to place into a reserve or escrow account at 
consummation to be applied to recurring charges for property taxes, 
homeowner's and similar insurance, mortgage insurance, homeowner's 
association dues, condominium dues, and other periodic charges. Each 
charge identified would be disclosed with a relevant label, monthly 
payment amount, and number of months collected at consummation. 
Proposed comment 38(g)(3)-2 clarifies that the method used to determine 
the aggregate adjustment for purposes of establishing the reserve or 
escrow account is described in Regulation X Sec.  1024.17(d)(2), that 
examples of the calculation methodology can be found in appendix E of 
Regulation X, and that the result of the calculation will always be a 
negative number or zero, except for amounts due to rounding. This 
comment incorporates guidance provided in appendix A to Regulation X 
relating to the instructions to complete the current RESPA settlement 
statement section 1000.
38(g)(4) Other
    The fourth subcategory would be disclosed under the label 
``Other.'' The services required to be performed or are to be obtained 
in the real estate closing by the consumer, seller, or other party are 
described and the costs for the services disclosed under Sec.  
1026.38(g)(4). The label for any cost that is a component of title 
insurance must include the description ``Title--''. The label for costs 
of premiums for separate insurance, warranty, guarantee, or event-
coverage products must include the parenthetical ``(optional)'' at the 
end. Proposed comment 38(g)(4)-1 clarifies that the charges disclosed 
under Sec.  1026.38(g)(4) include all real estate brokerage fees, 
homeowner's or condominium association charges paid at closing, home 
warranties, inspection fees, and other fees that are part of the real 
estate transaction but not required by the creditor or disclosed 
elsewhere in Sec.  1026.38. Proposed comment 38(g)(4)-2 clarifies that 
any owner's title insurance premium disclosed under Sec.  1026.38(g)(4) 
in a jurisdiction that permits simultaneous issuance title insurance 
rates is calculated by using the full owner's title insurance premium, 
adding any simultaneous issuance premium for issuance of lender's 
coverage, and then deducting the full premium for lender's coverage 
disclosed under Sec.  1026.38(f)(2) or (f)(3) and that the cost of a 
premium for an owner's title insurance policy will be always labeled 
with ``Title--'' at the beginning, and labeled ``(optional)'' at the 
end when designated borrower-paid at or before closing. Proposed 
comment 38(g)(4)-3 refers to comment 37(g)(4)-3 for additional guidance 
on the use of the parenthetical ``(optional)'' at the end of label on a 
cost under Sec.  1026.38(g)(4)(ii).
38(g)(5) Total Other Costs
38(g)(6) Subtotal of Costs
    With the label ``Total Other Costs (Borrower-Paid),'' the total of 
the consumer paid charges at closing and the consumer paid charges 
before closing would be disclosed under proposed Sec.  1026.38(g)(5). 
The costs disclosed under Sec.  1026.38(g)(1) through (4) are be 
subtotaled and disclosed in the appropriate column designated borrower-
paid at or before closing under Sec.  1026.38(g)(6). Proposed comment 
38(g)(6)-1 would clarify that the only costs subtotaled under Sec.  
1026.38(g)(6) are those that are designated borrower-paid at or before 
closing. Charges that are other costs seller-paid at closing, seller-
paid before closing, or paid by others are not disclosed under Sec.  
1026.38(g)(6), but are subtotaled under Sec.  1026.38(h)(2).
38(h) Closing Cost Totals
38(h)(1) and (2)
    Subtotals of closing costs and total closing costs paid by the 
consumer must be disclosed under proposed Sec.  1026.38(h). With the 
label ``Total Closing Costs (Borrower-Paid),'' the total amount of 
consumer paid closing costs would be disclosed under Sec.  
1026.38(h)(1). With a description of ``Closing Costs Subtotal (Loan 
Costs + Other Costs),'' the subtotal of all charges disclosed under 
Sec.  1026.38(f) and (g) in each column described in Sec.  1026.38(f) 
would be disclosed under Sec.  1026.38(h)(2). Comment 38(h)(2)-1 
clarifies that the loan costs and other costs that are seller-paid at 
closing, seller-paid before closing, and paid by others are also 
subtotaled under Sec.  1026.38(h)(2).
    The Bureau proposes Sec.  1026.38(h) pursuant to its authority 
under TILA section 105(a) and Dodd-Frank Act section 1032(a) because 
disclosure of this closing cost information will promote the informed 
use of credit and consumer understanding of the costs, benefits, and 
risks associated with the mortgage transaction. Furthermore, for the 
reasons stated above, the proposed rule is in the interest of consumers 
and in the public interest, consistent with Dodd-Frank Act section 
1405(b). In addition, proposed Sec.  1026.38(h) implements Dodd-Frank 
Act Section 1419, which amended section 128(a) of TILA to add a new 
paragraph (17) requiring disclosure of, among other amounts, the amount 
of settlement charges the borrower must pay at closing and the 
aggregate amount of all settlement charges for all settlement services 
provided in connection with the loan.
38(h)(3)
    Section 1026.38(h)(3) requires the creditor to disclose the amount 
of credits provided by the creditor to the consumer at consummation. 
Proposed comment 38(h)(3)-1 provides a cross reference to guidance 
provided in comments 17(c)(1)-19, 19(e)(3)(i)-4, and 19(e)(3)(i)-5 
concerning the disclosure of lender credits, including those that are 
disclosed under Sec.  1026.37(g)(6). Proposed comment 38(h)(3)-2 
clarifies that any amounts disclosed under Sec.  1026.38(h)(3) can also 
be used for disclosing any credits from the creditor to remediate 
excess costs determined

[[Page 51242]]

under Sec.  1026.19(e)(3)(i) or (e)(3)(ii). This comment incorporates 
guidance provided in the HUD RESPA Roundup dated April 2010.
38(h)(4)
    Section 1026.38(h)(4) requires the creditor to use terminology 
describing the charges on the Closing Disclosure in a manner that is 
consistent with the descriptions used for charges disclosed on the Loan 
Estimate under Sec.  1026.37. The creditor would also be required to 
list the charges on the Closing Disclosure in the same sequential order 
on the Loan Estimate under Sec.  1026.37. Proposed comment 38(h)(4)-1 
clarifies that the creditor would be required to use the same 
terminology and order to make it easier for the consumer to compare 
charges listed on the Loan Estimate and Closing Disclosure. Also, if 
charges move between subheadings under Sec.  1026.38(f)(2) and (3), 
listing the charges in alphabetical order in each subheading category 
would be considered to be in compliance with Sec.  1026.38(h)(4).
38(i) Calculating Cash To Close
    As discussed above, the total amount of cash or other funds that 
the consumer must provide at consummation is commonly known as the 
``cash to close.'' Prior to the enactment of the Dodd-Frank Act, 
neither TILA nor Regulation Z expressly required disclosure of the cash 
to close amount or its critical components. The Dodd-Frank Act added 
section 128(a)(17) to TILA, which requires the disclosure of ``the 
aggregate amount of settlement charges for all settlement services 
provided in connection with the loan, the amount of charges that are 
included in the loan and the amount of such charges the borrower must 
pay at closing * * * and the aggregate amount of other fees or required 
payments in connection with the loan.'' 15 U.S.C. 1638(a)(17).
    The ``Summary of Borrower's Transaction'' on page 1 of the RESPA 
settlement statement, line 303, includes a box that shows the amount of 
cash due to or from the consumer. See appendix A to Regulation X. Page 
3 of the RESPA settlement statement also includes a chart entitled 
``Comparison of Good Faith Estimate (GFE) and HUD-1 Charges,'' which 
highlights any changes between the estimated and actual amounts for 
settlement service charges that are subject to the limitations on 
increases under 12 CFR 1024.7(e). However, these settlement service 
charges comprise only a portion of the total amount of funds that the 
consumer would need to consummate the transaction. Thus, the cash to 
close box on line 303 and the comparison chart on page 3 of the RESPA 
settlement statement together provide an incomplete picture of how the 
cash to close amount is calculated and whether it is different than the 
consumer expects based on the GFE.
    Consequently, and based on its authority under TILA section 105(a), 
RESPA section 19(a), and Dodd-Frank Act sections 1032(a) and, for 
residential mortgage loans, 1405(b), the Bureau is proposing to require 
that the Closing Disclosure contain a ``Calculating Cash to Close'' 
table that highlights the cash to close amount and its critical 
components and compares those amounts to the corresponding disclosures 
shown on the Loan Estimate under Sec.  1026.37(h). The Bureau believes 
that this disclosure will effectuate the purposes of TILA and RESPA by 
facilitating the informed use of credit and ensuring that consumers are 
provided with greater and timelier information on the costs of the 
closing process. Providing consumers with information about the cash to 
close amount, its critical components, and how such amounts changed 
from the estimated amounts disclosed on the Loan Estimate helps ensure 
that the features of the transaction are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to better understand the costs, benefits, and risks associated with the 
transaction, in light of the facts and circumstances, consistent with 
Dodd-Frank Act section 1032(a). The Bureau also believes such 
disclosure will improve consumers' awareness and understanding of 
residential mortgage transactions, which is in the interest of 
consumers and the public, consistent with Dodd-Frank Act section 
1405(b).
    The ``Calculating Cash to Close'' table in the Closing Disclosure 
under proposed Sec.  1026.38(i) mirrors the format of, and updates the 
amounts shown on, the ``Calculating Cash to Close'' table in the Loan 
Estimate under proposed Sec.  1026.37(h). The Bureau believes that 
including separate ``Calculating Cash to Close'' tables on both the 
Loan Estimate and the Closing Disclosure will aid the consumer in 
ascertaining whether the cash to close amount and its critical 
components changed between the Loan Estimate and the Closing 
Disclosure, and by how much. The two tables are similar in format and 
designed to be used in tandem when the consumer is reviewing the 
Closing Disclosure and comparing its content to that shown on the Loan 
Estimate. However, the table on the Closing Disclosure includes 
additional information under the subheading ``Did this change?'' which 
is intended to assist the consumer in identifying and understanding the 
reasons for any such changes.
    The Bureau's consumer testing indicated that consumers were able to 
use the detailed comparison table to understand how and why the actual 
cash to close amount on the Closing Disclosure differs from the 
estimated amounts shown on the Loan Estimate. During testing, consumers 
tended to use the ``Calculating Cash to Close'' table in conjunction 
with the ``Closing Cost Details'' tables showing itemized charges and 
subtotals on the Closing Disclosure, to identify the differences 
between the estimated and actual cash to close amount and its critical 
components and to gain a better understanding of the numbers underlying 
the cash to close amount. The consumers also benefited from the ``Did 
this change?'' subheading containing statements that components of the 
cash to close changed and simple explanations as to why. The Bureau has 
incorporated this feedback into the design of the table and its choice 
of language to be used under the ``Did this change?'' subheading, as 
applicable.
    Requiring disclosure of the ``Calculating Cash to Close'' table 
also complements proposed Sec.  1026.19(f)(1)(ii), which requires 
delivery of the Closing Disclosure three business days prior to 
consummation. TILA section 128(b)(2)(D) requires that a corrected TILA 
disclosure be given to the consumer not later than three business days 
prior to consummation if the APR as initially disclosed becomes 
inaccurate, and the Bureau understands that the annual percentage rate 
changes triggering the redisclosure obligation occur so frequently that 
many creditors currently provide the corrected TILA disclosure as a 
matter of course even if redisclosure is not required. RESPA section 4 
provides that the RESPA settlement statement be provided ``at or before 
closing,'' however, and the Bureau understands that it typically is 
given the day of closing. As discussed above, proposed Sec.  
1026.19(f)(1)(ii) merges the two provisions by requiring that consumers 
be given the integrated disclosures three business days prior to 
consummation. During this three-business-day period, the consumer can 
review the Closing Disclosure, contact the creditor with questions 
regarding the information contained on the Closing Disclosure, and 
correct any errors prior to consummation. Disclosing the cash to close 
amount and how it was calculated three business days in advance of 
consummation generally provides the consumer with a

[[Page 51243]]

three-business-day window to make arrangements to have the necessary 
funds available for the consummation. This will help alleviate concerns 
that, in some cases, consumers may not know until shortly before 
consummation--or even the day of consummation--how much of their own 
funds they will be expected to bring to the closing table.
    The ``Calculating Cash to Close'' table to be disclosed on the 
Closing Disclosure under Sec.  1026.38(i) consists of four columns and 
nine rows. The first column, which does not have a subheading, includes 
labels for the amounts of cash to close (listed in the final row of the 
table, in more prominent fashion) and its critical components. Total 
closing costs, which are listed in the first row, is the sum total of 
creditor, third party settlement service, and other transaction-related 
charges disclosed on the ``Closing Cost Details'' tables on the Closing 
Disclosure. Subsequent rows list other components of the cash to close 
amount, such as the closing costs paid before consummation, closing 
costs financed, and the deposit. These component amounts are discussed 
in more detail under Sec.  1026.38(i)(1) through (8), below. The second 
column, under the subheading ``Estimate,'' includes the estimated 
amounts of cash to close and its components. These amounts match the 
estimates given on the ``Calculating Cash to Close'' table in the Loan 
Estimate, which are shown to the nearest whole dollar amount. The third 
column, under the subheading ``Final,'' includes the actual amounts of 
the cash to close and its components without rounding. In both the 
second and the third columns, the amounts that increase the total cash 
to close amount are shown as positive numbers, and the amounts that 
reduce the total cash to close amount are shown as negative numbers. 
The fourth column, under the subheading ``Did this change?'' contains 
in each row (1) a statement, more prominent than other disclosures 
under proposed Sec.  1026.38(i), as to whether the actual amount is 
different from or increased above the estimated amount and (2) if the 
actual amount is different from or increased over the estimated amount, 
a simple explanation for the difference or increase along with cross-
references to other relevant information disclosed on the Closing 
Disclosure, as applicable.
    Proposed comment 38(i)-1 discusses how, under each subparagraph 
(iii) of Sec.  1026.38(i)(1) through (i)(8), the statement as to 
whether the ``Final'' amount disclosed under each subparagraph (ii) of 
Sec. Sec.  1026.38(i)(1) through (i)(8) is greater than, equal to, or 
less than the corresponding ``Estimate'' amount disclosed under each 
subparagraph (i) of Sec. Sec.  1026.38(i)(1) through (i)(8) is 
disclosed more prominently than the other disclosures under Sec.  
1026.38(i). The proposed comment clarifies that this more prominent 
statement can take the form, for example, of a ``Yes'' or ``No'' 
disclosed in capital letters and boldface font, as shown on the Closing 
Disclosure form H-25 set forth in appendix H to this part, the standard 
form or model form, as applicable, pursuant to Sec.  1026.38(t). The 
comment also discusses how, in the event a difference or an increase in 
costs has occurred, certain words within the narrative text that are 
included under the subheading ``Did this change?'' are displayed more 
prominently than other disclosures, and gives an example of such a 
prominent statement.
    Proposed comment 38(i)-2 describes how a final amount shown to two 
decimal places on the ``Calculating Cash to Close'' table disclosed 
under Sec.  1026.38(i) could appear to be a larger number than its 
corresponding estimate shown to the nearest dollar when, in fact, the 
apparent increase is due solely to rounding. The comment further 
clarifies that any statement disclosed under the subheading ``Did this 
change?'' as to whether an actual amount is higher than its 
corresponding estimated amount is based on the actual, non-rounded 
estimate that would have been disclosed on the Loan Estimate under 
Sec.  1026.37(h) if it had been shown to two decimal places rather than 
a whole dollar amount. The proposed comment also provides an example of 
how a contrary rule could result in inaccurate disclosures of 
increases. The proposed comment reflects the Bureau's intention that 
the statements of increases to be disclosed under each subparagraph 
(iii) under Sec.  1026.38(i)(1) through (i)(8) capture true increases 
rather than increases due solely to rounding rules.
    Proposed comments 38(i)-3 and 4 provide guidance regarding the 
statements required by each of Sec.  1026.38(i)(4)(iii)(A), 
1026.38(i)(5)(iii)(A), 1026.38(i)(6)(iii)(A), 1026.38(i)(7)(iii)(A), 
and 1026.38(i)(8)(iii)(A) that the consumer should see the details 
disclosed pursuant to another subsection or other subsections within 
Sec.  1026.38, or that an amount has increased or decreased from an 
estimated amount, as applicable. The comments note that, for example, 
Sec.  1026.38(i)(7)(iii)(A) requires a statement that the consumer 
should see the details disclosed pursuant to Sec.  1026.38(j)(2)(v), 
and, as shown on Closing Disclosure form H-25, that statement can read: 
``See Seller Credits in Section L.'' These comments also provide 
guidance regarding the required statements that are not illustrated as 
samples in form H-25 in appendix H.
38(i)(1) Total Closing Costs
    Proposed Sec.  1026.38(i)(1)(i) and (ii) requires the disclosure of 
a comparison of the consumer's estimated and actual ``Total Closing 
Costs'' amounts. The estimated ``Total Closing Costs'' amount is the 
same amount that is disclosed on the Loan Estimate in the ``Calculating 
Cash to Close'' table under proposed Sec.  1026.37(h)(1). This amount 
also matches the ``Total Closing Costs'' amount that is disclosed on 
the Loan Estimate under proposed Sec.  1026.37(g)(6). The actual 
``Total Closing Costs'' amount is the same amount disclosed on the 
Closing Disclosure under Sec.  1026.38(h)(1), reduced by the amount of 
any lender credits disclosed under Sec.  1026.38(h)(3). Proposed 
comment 38(i)(1)(i)-1 provides guidance regarding the requirement under 
Sec.  1026.38(i)(1)(i) that the amount disclosed is labeled ``Total 
Closing Costs'' and that such label is accompanied by a reference to 
the disclosure of ``Total Closing Costs'' under Sec.  1026.38(h)(1).
    Proposed Sec.  1026.38(i)(1)(iii)(A) specifies that if the actual 
amount of ``Total Closing Costs'' is different than the estimated 
amount of such costs as shown on the Loan Estimate (unless the 
difference is due to rounding), the creditor or closing agent must 
state, under the subheading ``Did this change?'', that the consumer 
should see the total loan costs and total other costs subtotals 
disclosed on the Closing Disclosure under Sec.  1026.38(f)(4) and 
(g)(5), and must include a reference to such disclosures, as 
applicable. This language is intended to direct the consumer to the 
more detailed itemization on the Closing Disclosure of the costs that 
comprise the ``Total Closing Costs.''
    Under proposed Sec.  1026.38(i)(1)(iii)(A), the creditor or closing 
agent must also state the dollar amount of any excess amount of closing 
costs above the limitations on increases in closing costs under Sec.  
1026.19(e)(3), if applicable, along with language stating that the 
increase exceeds the legal limits by the dollar amount of the excess. 
The dollar amount to be disclosed must reflect the different methods of 
calculating such excess amounts under Sec.  1026.19(e)(3)(i) and (ii). 
Proposed comment 38(i)(1)(iii)(A)-1 contains examples of how to 
calculate such excess amounts

[[Page 51244]]

and clarifies that because certain closing costs, individually, are 
subject to the limitations on increases in closing costs under Sec.  
1026.19(e)(3)(i) (e.g., origination fees, transfer taxes, charges paid 
by the consumer to an affiliate of the creditor), while other closing 
costs are collectively subject to the limitations on increases in 
closing costs under Sec.  1026.19(e)(3)(ii) (e.g., recordation fees, 
fees paid to an unaffiliated third party if the creditor permitted the 
consumer to shop for the service provider), the creditor or closing 
agent calculates subtotals for each type of excess amount, and then 
adds such subtotals together to yield the dollar amount to be disclosed 
in the table. The proposed comment also clarifies that the calculation 
of the excess amounts above the limitations on increases in closing 
costs takes into account the fact that the itemized, estimated closing 
costs disclosed on the Loan Estimate will not result in charges to the 
consumer if the service is not actually provided at or before 
consummation, and that certain itemized charges listed on the Loan 
Estimate under the subheading ``Services You Can Shop For'' may be 
subject to different limitations depending on the circumstances. 
Proposed comments 38(i)(1)(iii)(A)-2.i through -2.iii complement 
commentary to proposed Sec.  1026.19(e)(3). Pursuant to proposed Sec.  
1026.19(f)(2)(v), the creditor or closing agent must refund to the 
consumer any such excess amounts at consummation or within thirty days 
thereafter. Accordingly, this disclosure may help the consumer identify 
when a refund may be required, and this information can be used by the 
consumer to request that the creditor or closing agent provide such 
refund at consummation or within thirty days thereafter.
38(i)(2) Closing Costs Subtotal Paid Before Closing
    Proposed Sec.  1026.38(i)(2) requires the disclosure of a 
comparison of the estimated and actual amounts of the ``Total Closing 
Costs'' that are paid before consummation of the transaction. The 
estimated ``Closing Costs Subtotal Paid Before Closing'' must be 
disclosed as $0. Proposed comment 38(i)(2)(i)-1 clarifies that this 
requirement is because the Loan Estimate does not have an equivalent 
disclosure under proposed Sec.  1026.37(h). The actual ``Closing Costs 
Subtotal Paid Before Closing'' is the sum of the amount disclosed on 
the Closing Disclosure under proposed Sec.  1026.38(h)(2) and 
designated ``Borrower-Paid Before Closing.'' Proposed Sec.  
1026.38(i)(2)(iii) specifies that if the actual amount of ``Closing 
Costs Subtotal Paid Before Closing'' is different than the estimated 
amount, in this case $0 (unless the difference is due to rounding), the 
creditor or closing agent must state under the subheading ``Did this 
change?'' that the consumer paid such costs before consummation. This 
language is intended to remind the consumer that he or she paid certain 
transaction closing costs prior to consummation and that such costs 
will be subtracted from the actual cash to close amount. Proposed 
comment 38(i)(2)(iii)(B)-1 provides guidance regarding the requirement 
to disclose whether the estimated and final amounts are equal.
38(i)(3) Closing Costs Financed
    Proposed Sec.  1026.38(i)(3) requires the disclosure of a 
comparison of the estimated and actual amounts of the ``Total Closing 
Costs'' that are financed. The estimated ``Closing Costs Financed'' 
amount is the same amount that is disclosed in the ``Calculating Cash 
to Close'' table in the Loan Estimate under proposed Sec.  
1026.37(h)(2). The actual ``Closing Costs Financed'' amount reflects 
any changes to the amount previously disclosed on the Loan Estimate. 
Proposed Sec.  1026.38(i)(3)(iii) specifies that if the actual amount 
of ``Closing Costs Financed'' is different than the estimated amount 
(unless the excess is due to rounding), the creditor or closing agent 
must state under the subheading ``Did this change?'' that the consumer 
included these closing costs in the loan amount, which increased the 
loan amount. The Bureau believes this explanatory language will be 
particularly helpful to consumers for two reasons. First, an increase 
in closing costs financed may trigger a sizeable decrease in the cash 
to close, which in turn could create a false impression that the 
overall transaction costs to the consumer decreased. Second, during 
consumer testing, when consumers were presented with a scenario 
involving a loan amount that increased after delivery of the Loan 
Estimate, some of the consumers had difficultly isolating the increase 
in closing costs financed as the reason for the increased loan amount. 
The Bureau believes this disclosure may assist consumers in 
understanding that the financed portion of the closing costs are paid 
for through the loan proceeds.
38(i)(4) Downpayment/Funds From Borrower
    Proposed Sec.  1026.38(i)(4) requires the disclosure of a 
comparison of the estimated and actual amounts of the ``Downpayment/
Funds from Borrower.'' Downpayment and funds from borrower are related 
concepts, but downpayment is applicable to a transaction that is a 
purchase as defined in proposed Sec.  1026.37(a)(9)(i), while funds 
from borrower relates to a transaction other than a purchase. Under 
proposed Sec.  1026.38(i)(4)(i), the estimated ``Downpayment/Funds from 
Borrower'' amount is the same amount that is disclosed on the 
``Calculating Cash to Close'' table in the Loan Estimate under proposed 
Sec.  1026.37(h)(3). Under proposed Sec.  1026.38(i)(4)(ii)(A), in a 
transaction that is a purchase as defined in proposed Sec.  
1026.37(a)(9)(i), the actual amount of the ``Downpayment/Funds from 
Borrower'' is the actual amount of the difference between the purchase 
price of the property and the principal amount of the credit extended, 
stated as a positive number. Under proposed Sec.  1026.38(i)(4)(ii)(B), 
in a transaction other than a purchase as defined in proposed Sec.  
1026.37(a)(9)(i), the actual amount of ``Funds from Borrower'' is 
determined in accordance with Sec.  1026.38(i)(6)(iv), by subtracting 
from the total amount of all existing debt being satisfied in the real 
estate closing and disclosed under Sec.  1026.38(j)(1)(v) (except to 
the extent the satisfaction of such existing debt is disclosed under 
Sec.  1026.38(g)) the principal amount of the credit extended. If such 
calculation yields a positive number, then the positive number is 
disclosed under proposed Sec.  1026.38(i)(4)(ii)(B); otherwise, $0.00 
is disclosed.
    Proposed comment 38(i)(4)(ii)(A)-1 provides an example of the 
downpayment changing in a particular transaction. Proposed comment 
38(i)(4)(ii)(B)-1 provides further clarification about how the actual 
``Funds from Borrower'' amount is determined under Sec.  
1026.38(i)(6)(iv), and gives an example of when that actual amount may 
change from the corresponding estimated amount.
    Proposed Sec.  1026.38(i)(4)(iii)(A) specifies that if the actual 
amount of ``Downpayment/Funds from Borrower'' is different than the 
estimated amount (unless the difference is due to rounding), the 
creditor or closing agent must state under the subheading ``Did this 
change?'' that the consumer increased or decreased the payment, as 
applicable, and also state that the consumer should see the details 
disclosed under Sec.  1026.38(j)(1) or (j)(2), as applicable. This 
language is intended to remind the consumer that he or she will be 
contributing a different amount of his or her own funds toward the cash 
to close, and therefore must make arrangements prior to the date of 
consummation to procure any necessary funds. Comment 38(i)(4)(iii)(A)-1 
clarifies the requirement under

[[Page 51245]]

Sec.  1026.38(i)(4)(iii)(A) that a statement be given that the consumer 
has increased or decreased this payment, as applicable, along with a 
statement that the consumer should see the details disclosed under 
Sec.  1026.38(j)(1) or (j)(2), as applicable. The comment notes that, 
in the event the purchase price of the property increased, that 
statement can read, for example: ``You increased this payment. See 
details in Section K.'' In the event the loan amount decreased, that 
statement can read, for example, ``You increased this payment. See 
details in Section L.'' This language is intended to direct the 
consumer to the section within the Closing Disclosure containing the 
information that accounts for the increase in the ``Downpayment/Funds 
from Borrower'' amount.
38(i)(5) Deposit
    Proposed Sec.  1026.38(i)(5) requires the disclosure of a 
comparison of the estimated and actual amounts of the ``Deposit.'' The 
estimated ``Deposit'' amount is the same amount that is disclosed in 
the ``Calculating Cash to Close'' table on the Loan Estimate under 
proposed Sec.  1026.37(h)(4). The actual ``Deposit'' amount is the same 
amount that is disclosed on the Closing Disclosure under proposed Sec.  
1026.38(j)(2)(ii). Proposed Sec.  1026.38(i)(5)(iii) specifies that if 
the actual amount of ``Deposit'' is different than the estimated amount 
(unless the difference is due to rounding), the creditor or closing 
agent must state, under the subheading ``Did this change?'', that the 
consumer increased or decreased this payment, as applicable, and should 
see the details disclosed under Sec.  1026.38(j)(2)(ii). This language 
is intended to direct the consumer to the section within the Closing 
Disclosure containing the itemization of the deposit in the Closing 
Disclosure.
38(i)(6) Funds for Borrower
    Proposed Sec.  1026.38(i)(6) requires the disclosure of a 
comparison of the estimated and actual amounts of the ``Funds for 
Borrower.'' Like proposed Sec.  1026.37(h)(5), this amount is intended 
to generally represent the amount to be disbursed to the consumer or 
used at consumer's discretion at consummation of the transaction, such 
as in cash-out refinance transactions. The determination of whether the 
transaction will result in ``Funds for Borrower'' is made under 
proposed Sec.  1026.38(i)(6)(iv). The estimated ``Funds for Borrower'' 
amount disclosed under Sec.  1026.38(i)(6)(i) is the same amount that 
is disclosed in the ``Calculating Cash to Close'' table in the Loan 
Estimate under proposed Sec.  1026.37(h)(5). Proposed Sec.  
1026.38(i)(6)(ii) provides that the actual ``Funds for Borrower'' 
amount disclosed is determined pursuant to Sec.  1026.38(i)(6)(iv), by 
subtracting from the total amount of all existing debt being satisfied 
in the real estate closing and disclosed under Sec.  1026.38(j)(1)(v) 
(except to the extent the satisfaction of such existing debt is 
disclosed under Sec.  1026.38(g)) the principal amount of the credit 
extended (excluding any amount disclosed under Sec.  
1026.38(i)(3)(ii)). The exclusion of any amount disclosed under Sec.  
1026.38(i)(3)(ii) is necessary since that amount of the credit extended 
has already been accounted for in the cash to close calculation by 
inclusion in Sec.  1026.38(i)(3)(ii). If such calculation yields a 
negative number, then the negative number is disclosed under proposed 
Sec.  1026.38(i)(6)(ii); otherwise, $0.00 is disclosed.
    Proposed comment 38(i)(6)(ii)-1 provides further clarification 
about how the actual ``Funds for Borrower'' amount is determined under 
Sec.  1026.38(i)(6)(iv), and to whom such amount is disbursed. Proposed 
Sec.  1026.38(i)(6)(iii) clarifies that, if the actual amount of 
``Funds for Borrower'' is different than the estimated amount (unless 
the difference is due to rounding), the creditor or closing agent must 
state in the subheading ``Did this change?'' that the consumer's 
available funds from the loan amount have increased or decreased, as 
applicable. This language is intended to remind the consumer that a 
different amount of loan proceeds will be available following payoff of 
existing loans.
38(i)(7) Seller Credits
    Proposed Sec.  1026.38(i)(7) requires the disclosure of a 
comparison of the estimated and actual amounts of the ``Seller 
Credits.'' ``Seller Credits'' are described in proposed 
1026.38(j)(2)(v) and corresponding commentary. The estimated ``Seller 
Credits'' amount is the same amount that is disclosed on the 
``Calculating Cash to Close'' table in the Loan Estimate under proposed 
Sec.  1026.37(h)(6). The actual ``Seller Credits'' amount is the same 
amount disclosed on the Closing Disclosure under proposed Sec.  
1026.38(j)(2)(v). Proposed comment 38(i)(7)(ii)-1 clarifies that the 
``Final'' amount reflects any change, following the delivery of the 
Loan Estimate, in the amount of funds given by the seller to the 
consumer for generalized credits for closing costs or for allowances 
for items purchased separately, as distinguished from payments by the 
seller for items attributable to periods of time prior to consummation 
(which are considered ``Adjustments and Other Credits'' separately 
disclosed under proposed Sec.  1026.38(i)(8)).
    Proposed Sec.  1026.38(i)(7)(iii) specifies that, if the actual 
amount of ``Seller Credits'' is different than the estimated amount 
(unless the difference is due to rounding), the creditor or closing 
agent must state that fact under the subheading ``Did this change?,'' 
and state that the consumer should see the details disclosed under 
Sec.  1026.38(j)(2)(v). This language is intended to direct the 
consumer to the section within the Closing Disclosure containing the 
itemization of seller credits.
38(i)(8) Adjustments and Other Credits
    Proposed Sec.  1026.38(i)(8) requires the disclosure of a 
comparison of the estimated and actual amounts of the ``Adjustments and 
Other Credits.'' ``Adjustments and Other Credits'' are described in 
proposed Sec.  1026.38(j)(2)(vi) through (xi) and corresponding 
commentary. The estimated ``Adjustments and Other Credits'' amount is 
the same amount that is disclosed on the ``Calculating Cash to Close'' 
table in the Loan Estimate under proposed Sec.  1026.37(h)(7). The 
actual ``Adjustments and Other Credits'' amount is equal to the total 
amount of the adjustments and other credits due from the consumer at 
consummation (i.e., the amounts disclosed on the Closing Disclosure 
under Sec. Sec.  1026.38(j)(1)(v) through (x)), reduced by the total 
amount of the adjustments and other credits paid already by or on 
behalf of the consumer at consummation (i.e., the amounts disclosed on 
the Closing Disclosure under Sec. Sec.  1026.38(j)(2)(vi) through 
(xi)). Proposed Sec.  1026.38(i)(8)(iii) specifies that if the actual 
amount of ``Adjustments and Other Credits'' is different than the 
estimated amount (unless the difference is due to rounding), the 
creditor or closing agent must state that fact under the subheading 
``Did this change?,'' and state that the consumer should see the 
details disclosed under Sec. Sec.  1026.38(j)(1)(v) through (x) and 
(j)(2)(vi) through (xi). This language is intended to direct the 
consumer to the sections within the Closing Disclosure containing the 
itemization of the adjustments and other credits. Proposed comment 
38(i)(8)(ii)-1 gives examples of items that may be adjustments and 
other credits, and clarifies that if the calculation required by Sec.  
1026.38(i)(8)(ii) yields a negative

[[Page 51246]]

number, the creditor or closing agent discloses it as such.
38(i)(9) Cash To Close
    Proposed Sec.  1026.38(i)(9) requires the disclosure of a 
comparison of the estimated and actual amounts of the ``Cash to 
Close.'' The estimated ``Cash to Close'' amount is the same amount that 
is disclosed on the ``Calculating Cash to Close'' table in the Loan 
Estimate under proposed Sec.  1026.37(h)(8) as ``Estimated Cash to 
Close.'' The actual ``Cash to Close'' amount is the sum of the amounts 
disclosed under proposed Sec. Sec.  1026.38(i)(1) through (8). The 
label ``Cash to Close'' and the estimated and actual amounts listed in 
the table are disclosed more prominently than other disclosures in 
Sec.  1026.38(i), as a means of emphasizing the importance of the cash 
to close amount. Proposed comment 38(i)(9)(ii)-1 clarifies that the 
``Final'' amount of ``Cash to Close'' disclosed under Sec.  
1026.38(i)(9)(ii) equals the amount disclosed on the Closing Disclosure 
as ``Cash to Close'' under Sec.  1026.38(j)(3)(iii). The proposed 
comment also clarifies that if the calculation required by Sec.  
1026.38(i)(9)(ii) yields a negative number, the creditor or closing 
agent discloses it as such. Proposed comment 38(i)(9)(ii)-2 discusses 
how the disclosure of the ``Final'' amount of ``Cash to Close'' under 
Sec.  1026.38(i)(9)(ii) is more prominent than the other disclosures 
under Sec.  1026.38(i) and clarifies that this more prominent 
disclosure can take the form, for example, of boldface font, as shown 
on the Closing Disclosure form H-25.
38(j) and (k) Summaries of Borrower's and Seller's Transactions
    Currently, RESPA section 4 requires the settlement agent to clearly 
and conspicuously itemize all charges imposed upon the borrower and 
seller in connection with the settlement. See 12 U.S.C. 2603. 
Regulation X implements these requirements by requiring the settlement 
agent to provide summaries of the consumer's and seller's transactions 
on the RESPA settlement statement. See Regulation X Sec.  1024.8 and 
appendix A. Dodd-Frank Act section 1032(f) requires that the Bureau 
propose disclosures that combine the disclosures required under TILA 
and RESPA sections 4 and 5 into a single, integrated disclosure for 
mortgage loan transactions covered under TILA and RESPA.
    In addition to effectuating Dodd-Frank Act section 1032(f), the 
Bureau believes that including on the Closing Disclosure summaries of 
the consumer's and seller's transactions will effectuate the purposes 
of TILA and RESPA by promoting the informed use of credit and more 
effective advance notice to home buyers and sellers of settlement 
costs, respectively. The summaries will assist consumers in 
understanding of the resolution of their legal obligations to sellers 
under the terms of the sales contract for the property which will be 
used to secure the credit extended to facilitate the purchase. The 
summaries will also assist sellers in understanding the charges they 
are required to pay under the sales contract. In addition, consistent 
with section 1032(a) of the Dodd-Frank Act, the addition of the 
summaries of the consumer's and seller's transactions would ensure that 
the features of consumer credit transactions secured by real property 
are fully, accurately, and effectively disclosed to consumers in a 
manner that permits consumers to understand the costs, benefits, and 
risks associated with the product or service, in light of the facts and 
circumstances. Therefore, the Bureau proposes to exercise its authority 
under TILA section 105(a), RESPA section 19(a), and Dodd-Frank Act 
section 1032(a) to require the creditor or closing agent to provide the 
summaries of the consumer's and seller's transactions that are 
currently provided in the RESPA settlement statement. The required 
information regarding the consumer's transaction would be set forth in 
Sec.  1026.38(j) and the required information regarding the seller's 
transaction would be set forth in Sec.  1026.38(k). Furthermore, for 
the reasons stated above, the proposed rule is in the interest of 
consumers and in the public interest, consistent with Dodd-Frank Act 
section 1405(b). The Bureau is not proposing to alter the current 
method for calculating these summaries as currently provided in 
appendix A to Regulation X except as specifically described below. 
However, based on the results of consumer testing, the Bureau is 
proposing to revise the wording of headings, labels, and references to 
make them more understandable for consumers.
    In addition, the format required by proposed Sec.  1026.38(t), as 
illustrated by proposed form H-25 of appendix H to Regulation Z, for 
the information required by proposed Sec.  1026.38(j) and (k) contains 
a two-digit line numbering system, in contrast to the three-digit line 
numbering system for this information on the current RESPA settlement 
statement. At the Bureau's consumer testing, consumer participants 
appeared overwhelmed by the three- and four-digit line numbers on 
prototypes that contained line numbers similar to the current RESPA 
settlement statement. As described above in part III, the Bureau is 
also mindful of the risks of information overload to consumers. The 
Bureau believes that the increased amount of numbers on the page from 
the three- and four-digit line numbering system may significantly 
detract from the consumer's ability to engage with the Closing 
Disclosure. The prototypes that the Bureau tested that contained only a 
two-digit line numbering system performed better with consumers, and 
were more effective at enabling them to understand their actual closing 
costs and the differences between the estimated and actual amounts. In 
addition, as described above in the analysis of proposed Sec.  
1026.38(f) and (g), the use of this two-digit line numbering system for 
the information required by proposed Sec.  1026.38(f) and (g) allows 
the Loan Estimate and Closing Disclosure to match more closely, which 
the Bureau's consumer testing indicates better enables consumers to 
understand their transaction. See the analysis of proposed Sec.  
1026.38(f) and (g) for more detail regarding the two-digit line 
numbering system. During the Small Business Review Panel, several 
settlement agents and one mortgage company requested that the line 
numbers from the current RESPA settlement statement be retained, 
stating that using the revised line numbers in the prototype integrated 
Closing Disclosure would significantly increase programming costs. See 
Small Business Review Panel Report at 20, 28. Based on this feedback, 
the Bureau seeks comment on whether the use of line numbers will lower 
software-related costs on industry, and the exact amount of the savings 
given the rest of the changes contemplated by this proposal, while 
improving consumer understanding of the loan terms and costs at the 
consummation of the credit transaction and the closing of the real 
estate transaction.
38(j) Summary of Borrower's Transaction
    Proposed Sec.  1026.38(j) requires that the creditor or closing 
agent provide the summaries of the consumer's and seller's transactions 
in separate tables under the heading ``Summaries of Transactions'' with 
a statement that the purpose of the table is to summarize the 
transaction. Proposed Sec.  1026.38(j) also lists the information that 
must be provided under the subheading ``Borrower's Transaction.'' 
Proposed comment 38(j)-1 clarifies that it is permissible to give two 
separate Closing Disclosures to the consumer and seller. This comment 
incorporates guidance

[[Page 51247]]

provided in the HUD RESPA FAQs p. 44, 4 (``HUD-1--
``General''). Comment 38(j)-2 clarifies that additional lines can be 
added to the Closing Disclosure to show customary recitals and 
information used locally in real estate closings. This comment 
incorporates guidance provided in HUD RESPA FAQs p. 44, 5 and 
10 (``HUD-1--General''). Proposed comment 38(j)-3 clarifies 
that the amounts disclosed under the following provisions of Sec.  
1026.38(j) are the same as the amounts disclosed under the 
corresponding provisions of Sec.  1026.38(k): Sec.  1026.38(j)(1)(ii) 
and Sec.  1026.38(k)(1)(ii); Sec.  1026.38(j)(1)(iii) and Sec.  
1026.38(k)(1)(iii); if the amount disclosed under Sec.  
1026.38(j)(1)(v) is attributable to contractual adjustments between the 
consumer and seller, Sec.  1026.38(j)(1)(v) and Sec.  
1026.38(k)(1)(iv); Sec.  1026.38(j)(1)(vii) and Sec.  
1026.38(k)(1)(vi); Sec.  1026.38(j)(1)(viii) and Sec.  
1026.38(k)(1)(vii); Sec.  1026.38(j)(1)(ix) and Sec.  
1026.38(k)(1)(viii); Sec.  1026.38(j)(1)(x) and Sec.  
1026.38(k)(1)(ix); Sec.  1026.38(j)(2)(iv) and Sec.  1026.38(k)(2)(iv); 
Sec.  1026.38(j)(2)(v) and Sec.  1026.38(k)(2)(vii); Sec.  
1026.38(j)(2)(viii) and Sec.  1026.38(k)(2)(x); Sec.  1026.38(j)(2)(ix) 
and Sec.  1026.38(k)(2)(xi); Sec.  1026.38(j)(2)(x) and Sec.  
1026.38(k)(2)(xii); and Sec.  1026.38(j)(2)(xi) and Sec.  
1026.38(k)(2)(xiii).
38(j)(1) Itemization of Amount Due From Borrower
    Proposed Sec.  1026.38(j)(1)(i) requires the creditor or closing 
agent to disclose the label ``Due from Borrower at Closing'' and the 
total amount due from the consumer at closing, calculated as the sum of 
items required to be disclosed under Sec.  1026.38(j)(1)(ii) through 
(x), excluding items paid from funds other than closing funds defined 
under Sec.  1026.38(j)(4)(i). Below this label Sec.  1026.38(j)(ii) 
requires the creditor or closing agent to provide a reference to the 
sale price of the property and the amount of the contract sales price 
of the property being sold, excluding the price of any items of 
tangible personal property if the consumer and seller have agreed to a 
separate price for such items. In addition, below the same label, a 
reference to the subtotal of closing costs paid at closing by the 
consumer with adjustments for items paid by the seller in advance must 
also be provided by the creditor or closing agent. Proposed comment 
38(j)(1)(ii)-1 clarifies that, for purposes of this disclosure, 
personal property is defined by state law, but could include such items 
as carpets, drapes, and appliances. Manufactured homes are not 
considered personal property for purposes of Sec.  1026.38(j)(1)(ii). 
This comment incorporates guidance currently provided in the 
instructions for RESPA settlement statement line 102 in appendix A to 
Regulation X. Proposed Sec.  1026.38(j)(1)(iii) requires the creditor 
or closing agent to provide a reference to the sales price of any 
tangible personal property included in the sale that are not included 
in the sales price disclosed under Sec.  1026.38(j)(1)(ii).
    Proposed Sec.  1026.38(j)(1)(iv) requires the creditor or closing 
agent to provide a reference to the subtotal of closing costs paid at 
closing by the consumer and to disclose the amount of closing costs 
paid by the consumer at closing. Proposed Sec.  1026.38(j)(1)(v) 
requires the creditor or closing agent to describe and disclose the 
amount of any additional items that the seller has already paid but are 
attributable to a time after closing and therefore will be used by the 
consumer. Also, proposed Sec.  1026.38(j)(1)(v) requires a description 
and the cost of any other items owed by the consumer not otherwise 
disclosed under proposed Sec.  1026.38(f), (g), or (j). Proposed 
comment 38(j)(1)(v)-1 clarifies that items described and disclosed 
under Sec.  1026.38(j)(v) can include: any balance in the seller's 
reserve account held in connection with an existing loan, if assigned 
to the consumer in a loan assumption case; any rent the consumer would 
collect after closing for a time period prior to closing; or to show 
the treatment of a security deposit. Proposed comment 38(j)(1)(v)-2 
clarifies costs owed by the consumer not otherwise disclosed under 
Sec.  1026.38(f), (g), or (j) will not have a parallel amount disclosed 
under proposed Sec.  1026.38(k)(1)(iv).
    Proposed Sec.  1026.38(j)(1)(vi) requires the creditor or closing 
agent to provide a reference to adjustments paid by seller in advance. 
Proposed Sec.  1026.38(j)(1)(vii) requires the creditor or closing 
agent to provide a reference to city/town taxes, the time period that 
the consumer is responsible to reimburse the seller for any such 
prepaid taxes, and the prorated amount of any such prepaid taxes due 
from the consumer at closing. Proposed Sec.  1026.38(j)(1)(viii) 
requires the creditor or closing agent to provide a reference to county 
taxes, the time period that the consumer is responsible for reimbursing 
the seller for any such prepaid taxes, and the prorated amount of any 
such prepaid taxes due from the consumer at closing. Proposed Sec.  
1026.38(j)(1)(ix) requires the creditor or closing agent to provide a 
reference to assessments, the time period that the consumer is 
responsible for reimbursing the seller for any such prepaid 
assessments, and the prorated amount of any such prepaid assessment due 
from the consumer at closing. Proposed Sec.  1026.38(j)(1)(x) requires 
the creditor or closing agent to provide a description and amount of 
any additional items paid by the seller prior to closing that are due 
from the consumer at closing. Proposed comment 38(j)(1)(x)-1 clarifies 
that amounts disclosed under Sec.  1026.38(j)(1)(x) could be for 
additional taxes not disclosed under Sec.  1026.38(j)(1)(vii) and 
(viii), flood and hazard insurance premiums where the consumer is being 
substituted as an insured under the same policy, mortgage insurance in 
loan assumptions, planned unit development or condominium association 
assessments paid in advance, fuel or other supplies on hand purchased 
by the seller which the consumer will use when consumer takes 
possession of the property, and ground rent paid in advance. This 
comment incorporates instructions for RESPA settlement statement lines 
106-112 in appendix A to Regulation X.
38(j)(2) Itemization of Amounts Already Paid by or on Behalf of 
Borrower
    Proposed Sec.  1026.38(j)(2)(i) requires the creditor or closing 
agent to disclose the label ``Paid Already by or on Behalf of Borrower 
at Closing'' and the total amount paid by or on behalf of the consumer 
prior to closing, calculated as the sum of items required to be 
disclosed under Sec.  1026.38(j)(2)(ii) through (xi), excluding items 
paid from funds other than closing funds defined under Sec.  
1026.38(j)(4)(i). Below this label, Sec.  1026.38(j)(2)(ii) requires 
the creditor or closing agent to provide a reference to the amount of 
the deposit, the consumer's loan amount, the existing loans assumed or 
taken subject to at closing, seller credit, other credits, and 
adjustments for items unpaid by seller. Proposed comment 38(j)(2)(ii)-1 
clarifies that the deposit is any amount paid into a trust account by 
the consumer under the contract of sale for real estate. This is a 
change from the current definition of deposit in the instructions for 
RESPA settlement statement line 201 in appendix A to Regulation X, that 
define the deposit as any amount paid against the sales price prior to 
settlement, because the amount of the downpayment or funds from the 
consumer disclosed under Sec.  1026.38(i)(4) may also be paid prior to 
closing. To differentiate between the downpayment amount and the 
deposit amount in Sec.  1026.38(i)(4), the amount of the deposit needs 
to be specified separately from other payments by the consumer against 
the sales price prior to

[[Page 51248]]

closing. Proposed comment 38(j)(2)(ii)-2 clarifies that the amount of 
the deposit should be reduced by a commensurate amount if any of the 
deposit is used to pay for a closing cost before closing. Instead, the 
charge for the closing cost paid from the deposit will be designated as 
borrower-paid before closing under Sec.  1026.38(f)(1) or (g)(1), as 
applicable.
    Proposed Sec.  1026.38(j)(2)(iii) requires the creditor or closing 
agent to provide a reference to the principal amount of the consumer's 
new loan and the amount of the new loan made by the creditor or the 
amount of the first user loan. Proposed comment 38(j)(2)(iii)-1 
clarifies that first user loan amount disclosed under Sec.  
1026.38(j)(2)(iii) is used to finance construction of a new structure 
or purchase of a manufactured home and that how to disclose a first 
user loan will depend on whether it is known if the manufactured home 
will be considered real property at the time of consummation. This 
comment incorporates guidance currently provided in the instructions 
for RESPA settlement statement line 202 in appendix A to Regulation X 
and HUD RESPA FAQs p. 47, 2 (``HUD-1--200 series'').
    Proposed Sec.  1026.38(j)(2)(iv) requires the creditor or closing 
agent to provide a reference to existing loans assumed or taken subject 
at closing to by the consumer and the amount of those loans. Proposed 
comment 38(j)(2)(iv)-1 clarifies that the amount disclosed under Sec.  
1026.38(j)(2)(iv) is the outstanding amount of any loan that the 
consumer is assuming, or subject to which the consumer is taking title 
to the property, must be disclosed under Sec.  1026.38(j)(2)(iv). This 
comment incorporates guidance currently provided in the instructions 
for RESPA settlement statement line 203 in appendix A to Regulation X.
    Proposed Sec.  1026.38(j)(2)(v) requires the creditor or closing 
agent to provide a reference to seller credits and the total amount of 
money that the seller will provide in a lump sum at closing for closing 
costs, designated borrower-paid at or before closing, as disclosed 
under Sec.  1026.38(f)(1) and (g)(1), as applicable. Proposed comment 
38(j)(2)(v)-1 clarifies that any amount disclosed under Sec.  
1026.38(j)(2)(v) is for generalized seller credits, and that seller 
credits attributable to a specific closing cost would be reflected with 
a seller-paid designation under Sec.  1026.38(f)(1) or (g)(1), as 
applicable. Proposed comment 38(j)(2)(v)-2 clarifies that any other 
obligations of the seller to be paid directly to the consumer, such as 
for issues identified at a walk-through of the property prior to 
closing, are disclosed under Sec.  1026.38(j)(2)(v).
    Proposed Sec.  1026.38(j)(2)(vi) requires the creditor or closing 
agent to provide a reference to other credits and the amount of items 
paid by or on behalf of the consumer and not otherwise disclosed under 
Sec.  1026.38(j)(2), (f)(1), (g)(1), or (h)(3). Proposed comment 
38(j)(2)(vi)-1 clarifies that any amounts disclosed under Sec.  
1026.38(j)(2)(vi) are for other credits from parties other than the 
seller or creditor, but credits attributable to a specific closing cost 
closing would be reflected with a paid by other party designation under 
Sec.  1026.38(f)(1) or (g)(1). For example, a credit from a real estate 
agent would be listed as a credit along with a description of the 
rebate and include the name of the party giving the credit. This 
comment incorporates guidance provided by HUD RESPA FAQs p. 47-48, 
4 (``HUD-1--200 series'').
    Proposed comment 38(j)(2)(vi)-2 clarifies that any amounts 
disclosed under Sec.  1026.38(j)(2)(vi) can also be used for disclosing 
subordinate financing proceeds. For subordinate financing, the 
principal amount of the loan must be disclosed with a brief 
explanation. If the net proceeds of the loan are less than the 
principal amount, the net proceeds may be listed on the same lines as 
the principal amount. This comment incorporates guidance provided by 
the instructions for RESPA settlement statement lines 204 to 209 in 
appendix A to Regulation X and the HUD RESPA Roundup dated December 
2010.
    Proposed comment 38(j)(2)(vi)-3 clarifies that any amounts 
disclosed under Sec.  1026.38(j)(2)(vi) can also be used for the 
disclosure of satisfaction of existing subordinate liens by the 
consumer. Any amounts paid to satisfy existing subordinate liens by the 
consumer with funds outside of closing funds must be disclosed with a 
statement that such amounts were paid outside of closing under Sec.  
1026.38(j)(4). This comment incorporates guidance provided by the 
instructions for completing the RESPA settlement disclosure lines 204 
to 209 in appendix A to Regulation X and the HUD RESPA Roundup dated 
September 2010.
    Proposed comment 38(j)(2)(vi)-4 clarifies that any amounts 
disclosed under Sec.  1026.38(j)(2)(vi) can also be used for disclosing 
a transferred escrow balance in a refinance transaction as a credit 
along with a description of the transferred escrow balance. This 
comment incorporates guidance provided by the HUD RESPA FAQs p. 47, 
3 (``HUD-1--200 series''). Proposed comment 38(j)(2)(vi)-5 
clarifies that any amounts disclosed under Sec.  1026.38(j)(2)(vi) can 
also be used for gift funds provided on the consumer's behalf by 
parties not otherwise associated with the transaction.
    Proposed Sec.  1026.38(j)(2)(vii) requires the creditor or closing 
agent to provide a reference to adjustments for items unpaid by seller. 
Proposed Sec.  1026.38(j)(2)(viii) requires the creditor or closing 
agent to provide a reference to city/town taxes, the time period that 
the seller is responsible for the payment of any such unpaid taxes, and 
the prorated amount of any such taxes dues from the seller at closing. 
Proposed Sec.  1026.38(j)(2)(ix) requires the creditor or closing agent 
to provide a reference to county taxes, the time period that the seller 
is responsible for the payment of any such unpaid taxes, and the 
prorated amount of any such unpaid taxes due from the seller at 
closing. Proposed Sec.  1026.38(j)(2)(x) requires the creditor or 
closing agent to provide a reference to assessments, the time period 
that the seller is responsible for paying any such unpaid taxes, and 
the prorated amount of any such unpaid assessments due from the seller 
at closing.
    Proposed Sec.  1026.38(j)(2)(xi) requires the creditor or closing 
agent to provide a description and the amount of any additional items 
which have not yet been paid and which the consumer is expected to pay, 
but which are attributable to a period of time prior to closing. 
Proposed comment 38(j)(2)(xi)-1 clarifies that any amounts disclosed 
under Sec.  1026.38(j)(2)(xi) are for other items not paid by the 
seller, such as utilities used by the seller, rent collected in advance 
by the seller from a tenant for a period extending beyond the closing 
date, and interest on loan assumptions.
38(j)(3) Calculation of Borrower's Transaction
    Proposed Sec.  1026.38(j)(3) requires the creditor or closing agent 
to disclose the label ``Calculation.'' Proposed Sec.  1026.38(j)(3)(i) 
requires the creditor or closing agent to provide a reference to the 
total amount due from the consumer at closing under Sec.  
1026.38(j)(1)(i). Proposed Sec.  1026.38(j)(3)(ii) requires the 
creditor or closing agent to provide a reference to the total amount 
paid already by or on behalf of the consumer at closing as a negative 
number under Sec.  1026.38(j)(2)(i).
    Proposed Sec.  1026.38(j)(3)(iii) requires the creditor or closing 
agent to provide a reference to cash to close, a statement of whether 
the disclosed amount is due from or to the consumer, and the amount due 
from or to the consumer at closing. Proposed comment 38(j)(3)(iii)-

[[Page 51249]]

1 clarifies that the creditor or closing agent must state either the 
cash required from the consumer at closing, or cash payable to the 
consumer at closing. Proposed comment 38(j)(3)(iii)-2 clarifies that 
the amount disclosed under Sec.  1026.38(j)(3)(iii) is the sum of the 
amounts disclosed under Sec.  1026.38(j)(3)(i) and (ii). If the result 
is positive, the amount is due from the consumer. If the result is 
negative, the amount is due to the consumer.
38(j)(4) Items Paid Outside of Closing Funds
    Proposed Sec.  1026.38(j)(4)(i) requires the creditor or closing 
agent to state amounts paid outside of closing with the phrase ``paid 
outside closing'' or ``P.O.C.'' Proposed comment 38(j)(4)(i)-1 
clarifies that any charges not paid from closing funds but otherwise 
disclosed under Sec.  1026.38(j) must be marked with the designation 
``paid outside of closing'' or ``P.O.C.'' with a designation of the 
party making the payment. This comment incorporates guidance provided 
by the general instructions for the RESPA settlement statement in 
appendix A to Regulation X. Proposed comment 38(j)(4)(i)-2 clarifies 
that charges paid outside of closing funds are not included in 
computing totals under Sec.  1026.38(j). Proposed Sec.  
1026.38(j)(4)(ii) would define closing funds to mean fund collected and 
disbursed at closing for purposes of Sec.  1026.38(j).
38(k) Summary of Seller's Transaction
    Proposed Sec.  1026.38(k) would require that the creditor or 
closing agent provide the summaries of the seller's transaction in a 
separate tables under the heading ``Summaries of Transactions'' 
required under Sec.  1026.38(j). Proposed Sec.  1026.38(k) also lists 
the information that must be provided under the subheading ``Seller's 
Transaction.'' Proposed comment 38(k)-1 clarifies that Sec.  1026.38(k) 
does not apply in transaction where there is no seller, such as a 
refinance transaction. Proposed comment 38(k)-2 clarifies that Sec.  
1026.38(k) refers to comment 38(j)-2 related to the use of addendums to 
the Closing Disclosure. Proposed comment 38(k)-3 refers to comment 
38(j)-3 for guidance on the amounts disclosed under certain provisions 
of Sec.  1026.38(k) that are the same as the amounts disclosed under 
certain provisions of Sec.  1026.38(j).
38(k)(1) Itemization of Amounts Due to Seller
    Proposed Sec.  1026.38(k)(1)(i) requires the creditor or closing 
agent to disclose the label ``Due to Seller at Closing'' and the total 
amount due to the seller at closing, calculated as the sum of items 
required to be disclosed under Sec.  1026.38(k)(1)(ii) through (ix), 
excluding items paid from funds other than closing funds as described 
in Sec.  1026.38(k)(4)(i). Below this label, Sec.  1026.38(k)(1)(ii) 
requires the creditor or closing agent to provide a reference to the 
sale price of the property and the amount of the real estate contract 
sales price of the property being sold, excluding the price of any 
items of tangible personal property if the consumer and seller have 
agreed to a separate price for such items. In addition, below the same 
subheading, a reference for adjustments for items paid by seller in 
advance must also be provided by the creditor or closing agent.
    Proposed Sec.  1026.38(k)(1)(iii) requires the creditor or closing 
agent to provide a reference to the sale price of any personal property 
included in the sale and the amount of the sale price of any personal 
property excluded from the contract sales price under Sec.  
1026.38(k)(ii). Proposed comment 38(k)(1)(iii)-1 clarifies that 
guidance regarding the classification of personal property is provided 
at Sec.  1026.38(j)(1)(ii) and comment 38(j)(1)(ii)-1.
    Proposed Sec.  1026.38(k)(1)(iv) requires the creditor or closing 
agent to provide a description and the amount of other items to be paid 
to the seller by the consumer under the contract of sale or other 
agreement, such as charges that were not listed on the Loan Estimate or 
items paid by the seller prior to closing but reimbursed by the 
consumer at consummation. Proposed Sec.  1026.38(k)(1)(v) requires the 
creditor or closing agent to provide a reference to adjustments for 
items paid by the seller in advance. Proposed Sec.  1026.38(k)(1)(vi) 
requires the creditor or closing agent to provide a reference to city/
town taxes, the time period that the consumer is responsible for 
reimbursing the seller for any such prepaid taxes, and the prorated 
amount of any such prepaid taxes due from the consumer at closing. 
Proposed Sec.  1026.38(k)(1)(vii) requires the creditor or closing 
agent to provide a reference to county taxes, the time period that the 
consumer is responsible for reimbursing the seller for any such prepaid 
taxes, and the prorated amount of any such prepaid taxes due from the 
consumer at closing.
    Proposed Sec.  1026.38(k)(1)(viii) requires the creditor or closing 
agent to provide a reference to assessments, the time period that the 
consumer is responsible for reimbursing the seller for any such prepaid 
assessments, and the prorated amount of any such assessments due from 
the consumer at closing. Proposed Sec.  1026.38(k)(1)(ix) requires the 
creditor or closing agent to provide a description and amount of 
additional items paid by the seller prior to closing that are 
reimbursed by the consumer at closing.
38(k)(2) Itemization of Amounts Due From Seller
    Proposed Sec.  1026.38(k)(2)(i) requires the creditor or closing 
agent to disclose label ``Due from Seller at Closing'' and the total 
amount due from the seller at closing, calculated as the sum of items 
required to be disclosed under Sec.  1026.38(k)(2)(ii) through (xiii), 
excluding items paid from funds other than closing funds as described 
in Sec.  1026.38(k)(4)(i). Below this label, Sec.  1026.38(k)(2)(ii) 
would require the creditor or closing agent to provide a reference to 
the amount of excess deposit, the consumer's loan amount, the existing 
loans assumed or taken subject to at closing, the payoff amount of 
first mortgage loan, the payoff of second mortgage loan, seller credit, 
and adjustments for items unpaid by seller. Proposed comment 
38(k)(2)(ii)-1 clarifies that any excess deposit disbursed to the 
seller by a party other than the closing agent must be disclosed under 
Sec.  1026.38(k)(2)(ii) if the party will provide the excess deposit 
directly to the seller. Proposed comment 38(k)(2)(ii)-2 clarifies that 
any amounts of the deposit that were disbursed to the seller prior to 
closing must be disclosed under Sec.  1026.38(k)(2)(ii).
    Proposed Sec.  1026.38(k)(2)(iii) requires the creditor or closing 
agent to provide a reference and amount of the subtotal closing costs 
paid at closing by seller as calculated under Sec.  1026.38(h)(1). 
Proposed Sec.  1026.38(k)(2)(iv) requires the creditor or closing agent 
to provide a reference to existing loans assumed or taken subject to by 
the consumer and the amount of those loans. Proposed comment 
38(k)(2)(iv)-1 clarifies that the amount of the outstanding balance of 
any lien that the consumer is assuming or taking title subject and is 
to be deducted from the sales price must be disclosed under Sec.  
1026.38(k)(2)(iv).
    Proposed Sec.  1026.38(k)(2)(v) would require the creditor or 
closing agent to provide a reference to the payoff of the first 
mortgage loan and the amount of any first loan that will be paid off as 
part of closing. Proposed Sec.  1026.38(k)(2)(vi) would require the 
creditor or closing agent to provide a reference to the payoff of the 
second mortgage loan and the amount of any second loan that will be 
paid off as part of closing.
    Proposed Sec.  1026.38(k)(2)(vii) requires the creditor or closing 
agent to provide

[[Page 51250]]

a reference to seller credits and the total amount of money that the 
seller will provide as a lump sum at closing to pay for loan costs and 
other costs, designated borrower-paid at or before closing, as 
disclosed under Sec.  1026.38(f)(1) and (g)(1), as applicable. Any 
costs disclosed as seller-paid at or before closing under Sec.  
1026.38(f)(1) and (g)(1) are not disclosed under Sec.  1026.38(k)(vii). 
Proposed comment (k)(2)(vii)-1 clarifies that any other obligations of 
the seller to be paid directly to the consumer, such as credits for 
issues identified at a walk-through of the property prior to closing, 
are disclosed under Sec.  1026.38(k)(2)(vii).
    Proposed Sec.  1026.38(k)(2)(viii) requires the creditor or closing 
agent to provide a description and the amount or any and all other 
obligations required to be paid by the seller at closing, including any 
lien-related payoffs, fees, or obligations. Proposed comment 
38(k)(2)(viii)-1 clarifies that amounts that must be paid in order to 
satisfy other seller obligations to clear title to the property must be 
disclosed under Sec.  1026.38(k)(2)(viii). Proposed comment 
38(k)(2)(viii)-2 clarifies that the satisfaction of existing liens by 
the consumer that are not deducted from the sales price are disclosed 
under Sec.  1026.38(k)(2)(viii) and must be disclosed as paid outside 
of closing under Sec.  1026.38(k)(4)(i). This guidance tracks comment 
38(j)(2)(vi)-2, and incorporates guidance provided by the HUD RESPA 
Roundup dated December 2010. Proposed comment 38(k)(2)(viii)-3 
clarifies that escrowed funds held by the closing agent for payment of 
invoices related to repairs, water, fuel, or other utility bills 
received after closing that cannot be prorated are disclosed under 
Sec.  1026.38(k)(2)(viii), and that subsequent disclosure of the 
amounts paid after consummation is optional. This guidance is 
consistent with the instructions for RESPA settlement statement lines 
506 to 509 in appendix A to Regulation X.
    Proposed Sec.  1026.38(k)(2)(ix) requires the creditor or closing 
agent to provide a reference to adjustments for items unpaid by seller. 
Proposed Sec.  1026.38(k)(2)(x) requires the creditor or closing agent 
to provide a reference to city/town taxes, the time period that the 
seller is responsible for payment of any such unpaid taxes, and the 
prorated amount of any such unpaid taxes due from the seller at 
closing. Proposed Sec.  1026.38(k)(2)(xi) requires the creditor or 
closing agent to provide a reference to county taxes, the time period 
that the seller is responsible for the payment of any such unpaid 
taxes, and the prorated amount of any such unpaid assessments due from 
the seller at closing. Proposed Sec.  1026.38(k)(2)(xii) requires the 
creditor or closing agent to provide a reference to assessments, the 
time period that the seller is responsible for payment of any such 
unpaid assessments, and the prorated amount of any such unpaid 
assessments due from the seller at closing. Proposed Sec.  
1026.38(k)(2)(xiii) would require the creditor or closing agent to 
provide a description and the amount of any additional items that have 
not yet been paid, and which the seller is expected to pay at closing, 
but which are attributable in part to a period of time prior to the 
closing.
38(k)(3) Calculation of Seller's Transaction
    Proposed Sec.  1026.38(k)(3) would require the creditor or closing 
agent to disclose the subheading ``Calculation.'' Proposed Sec.  
1026.38(k)(3)(i) requires the creditor or closing agent to provide a 
reference to total due to seller at closing and the amount described 
under Sec.  1026.38(k)(1)(i). Proposed Sec.  1026.38(ii) requires the 
creditor or closing agent to provide a reference to total due from 
seller at closing and the amount described as a negative number under 
Sec.  1026.38(k)(2)(i).
    Proposed Sec.  1026.38(k)(3)(iii) requires the creditor or closing 
agent to provide a reference to cash, a statement of whether the 
disclosed amount is due from or to the seller, and the amount due from 
or to the seller at closing. Proposed comment 38(k)(3)(iii)-1 clarifies 
that the creditor or closing agent must state either the cash required 
from the seller at closing, or the cash payable to the seller at 
closing. Comment 38(k)(3)(iii)-2 clarifies that the amount disclosed 
under Sec.  1026.38(k)(3)(iii) is the sum of the amounts disclosed 
under Sec.  1026.38(k)(3)(i) and the amount disclosed under Sec.  
1026.38(k)(ii). If the result is positive, the amount is due to the 
seller. If the result is negative, the amount is due from the seller.
38(k)(4) Items Paid Outside of Closing Funds
    Proposed Sec.  1026.38(k)(4)(i) requires the creditor or closing 
agent to state amounts paid outside of closing with the phrase ``paid 
outside closing'' or ``P.O.C.'' and that closing funds are funds 
collected and disbursed at consummation by the creditor or closing 
agent. Proposed Sec.  1026.38(k)(4)(ii) would define closing funds to 
mean funds collected and disbursed at consummation for purposes of 
Sec.  1026.38(k).
38(l) Loan Disclosures
    As discussed below, TILA requires that creditors provide consumers 
with a variety of disclosures prior to consummation regarding 
requirements in or arising from the legal obligation: Assumption, 
demand feature, late payment, negative amortization, partial payment 
policy, security interest, and escrow account information. For purposes 
of the integrated disclosure form required by proposed Sec.  
1026.19(f), these disclosure requirements must be grouped together 
under the master heading ``Additional Information About This Loan'' and 
under the heading ``Loan Disclosures.''
38(l)(1) Assumption
    Proposed Sec.  1026.38(l)(1) implements TILA section 128(a)(13) for 
transactions subject to Sec.  1026.19(f) by requiring the creditor to 
disclose the statement required by Sec.  1026.37(m)(2), which describes 
whether a subsequent purchaser may be permitted to assume the remaining 
loan obligation. For a detailed description of the Bureau's 
implementation of TILA section 128(a)(13) and the legal authority for 
this proposal, see the section-by-section analysis to proposed Sec.  
1026.37(m)(2).
38(l)(2) Demand Feature
    TILA section 128(a)(12) requires the creditor to disclose a 
statement that the consumer should refer to the appropriate contract 
document for information about certain loan features, including the 
right to accelerate the maturity of the debt. 15 U.S.C. 1638(a)(12). 
Current Sec.  1026.18(p) implements TILA section 128(a)(12) by 
requiring, among other things, a statement that the consumer should 
refer to the appropriate contract document for information about 
nonpayment, default, and the right to accelerate the maturity of the 
obligation, and prepayment rebates and penalties. In addition, current 
Sec.  1026.18(i) requires the creditor to disclose whether the legal 
obligation includes a demand feature and, if the disclosures are based 
on the assumed maturity of one year as described in Sec.  
1026.17(c)(5), the creditor must state that fact.
    Pursuant to the Bureau's implementation authority under TILA 
section 105(a), proposed Sec.  1026.38(l)(2) incorporates certain of 
the requirements of current Sec.  1026.18(i) and (p) for transactions 
subject to Sec.  1026.19(f) by requiring that the creditor disclose 
whether the legal obligation permits the creditor to demand early 
repayment of the loan and, if so, a statement that the consumer should 
review the loan

[[Page 51251]]

document for more details. The information required by proposed Sec.  
1026.38(l)(2) must be labeled ``Demand Feature.'' Proposed comment 
38(l)(3)-1 provides a cross-reference to comment 18(i)-2 for a 
description of demand features that would trigger the disclosure 
requirement in proposed Sec.  1026.38(l)(2).
    Pursuant to its authority under TILA section 105(a) and (f), Dodd-
Frank Act section 1032(a), and, for residential mortgage loans, Dodd-
Frank Act section 1405(b), the Bureau does not propose to incorporate 
into Sec.  1026.38(l)(2) the special disclosure requirement regarding 
assumed maturity of one year in current Sec.  1026.18(i) or the 
optional contract reference disclosures in current Sec.  1026.18(p). By 
exempting disclosure of information that will not be useful to 
consumers, the disclosure effectuates the purposes of TILA by enhancing 
consumer understanding of mortgage transactions, consistent with TILA 
section 105(a). Similarly, the Bureau has considered the factors in 
TILA section 105(f) and believes that an exception is appropriate under 
that provision. Specifically, the Bureau believes that the proposed 
exemption is appropriate for all affected borrowers, regardless of 
their other financial arrangements and financial sophistication and the 
importance of the loan to them. Similarly, the Bureau believes that the 
proposed exemption is appropriate for all affected loans, regardless of 
the amount of the loan and whether the loan is secured by the principal 
residence of the consumer. Furthermore, the Bureau believes that, on 
balance, the proposed exemption will simplify the credit process 
without undermining the goal of consumer protection or denying 
important benefits to consumers. Furthermore, the proposed exemption 
will ensure that the features of the mortgage transaction are fully, 
accurately, and effectively disclosed to consumers in a manner that 
permits consumers to understand the costs, benefits, and risks 
associated with the mortgage transaction, in light of the facts and 
circumstances, consistent with Dodd-Frank Act section 1032(a), and will 
improve consumer awareness and understanding of residential mortgage 
loans, which is in the interest of consumers and the public, consistent 
with Dodd-Frank Act section 1405(b).
38(l)(3) Late Payment
    TILA section 128(a)(10) requires disclosure of any dollar charge or 
percentage amount which may be imposed by a creditor due to a late 
payment, other than a deferral or extension charge. 15 U.S.C. 
1638(a)(10). This requirement is currently implemented in Sec.  
1026.18(l). Proposed Sec.  1026.38(l)(3) implements TILA section 
128(a)(10) for loans subject to Sec.  1026.19(f) by requiring the 
creditor to disclose the statement required by Sec.  1026.37(m)(4), 
which details any charge that may be imposed for a late payment, stated 
as a dollar amount or percentage charge of the late payment amount, and 
the number of days that a payment may be late to trigger the late 
payment fee. For a detailed description of the Bureau's implementation 
of TILA section 128(a)(10) and the legal authority for this proposal, 
see the section-by-section analysis to proposed Sec.  1026.37(m)(4).
38(l)(4) Negative Amortization
    New TILA section 129C(f), which was added by section 1414(a) of the 
Dodd-Frank Act, provides that no creditor may extend credit to a 
borrower in connection with a transaction secured by a dwelling or 
residential real property that includes a dwelling, other than a 
reverse mortgage, that provides for or permits a payment plan that may 
result in negative amortization unless the creditor provides the 
consumer with a notice that the transaction may or will result in 
negative amortization. 15 U.S.C. 1639c(f). Under TILA section 129C(f), 
before consummation of the transaction, the creditor must provide the 
consumer with a statement that: (1) The pending transaction will or 
may, as applicable, result in negative amortization; (2) describes 
negative amortization in the manner prescribed by the Bureau; (3) 
negative amortization increases the loan balance; and (4) negative 
amortization decreases the consumer's equity in the property. 15 U.S.C. 
1639c(f)(1).
    Although TILA section 129C(f) is new, both Regulations Z and X 
currently contain disclosure requirements for loan products that may 
negatively amortize. In Regulation Z, if the loan product contains 
features that may cause the loan amount to increase, Sec.  
1026.18(s)(4)(C) requires a statement that warns the consumer that the 
minimum payment covers only some interest, does not repay any 
principal, and will cause the loan amount to increase, for closed-end 
transactions secured by real property or a dwelling. Current appendix A 
to Regulation X requires a similar statement in the ``Loan Terms'' 
section of the RESPA settlement statement, which discloses whether the 
loan balance may increase even if loan payments are made on time.
    The Bureau proposes Sec.  1026.38(l)(4) to implement TILA section 
129C(f) for transactions subject to Sec.  1026.19(f), pursuant to its 
implementation authority under TILA section 105(a). Specifically, 
proposed Sec.  1026.38(l)(4) requires a statement of whether the 
regular periodic payment may cause the principal balance to increase. 
If the regular periodic payment does not cover all of the interest due, 
proposed Sec.  1026.38(l)(4)(i) requires a statement that the principal 
balance will increase, that the principal balance will likely exceed 
the original loan amount, and that increases in the principal balance 
will lower the consumer's equity in the property. In transactions in 
which the consumer has the option of making regular periodic payments 
that do not cover all of the interest accrued that month, proposed 
Sec.  1026.38(l)(4)(ii) requires a statement that, if the consumer 
chooses a periodic payment option that does not cover all of the 
interest due, the principal balance may exceed the original loan amount 
and that increases in the principal balance decrease the consumer's 
equity in the property. The statements required by proposed Sec.  
1026.38(l)(4)(i) and (ii) are located under the subheading ``Negative 
Amortization (Increase in Loan Amount).''
38(l)(5) Partial Payment Policy
    TILA section 129C(h), added by section 1414(d) of the Dodd-Frank 
Act, provides that, in any residential mortgage loan, the creditor must 
disclose, prior to consummation or at the time such person becomes the 
creditor for an existing loan, the creditor's policy regarding the 
acceptance of partial payments, and if partial payments are accepted, 
how such payments will be applied to the mortgage and whether such 
payments will be placed in escrow. 15 U.S.C. 1631c(h).
    The Bureau proposes Sec.  1026.38(l)(5) to implement the pre-
consummation disclosure requirements of TILA section 129C(h), pursuant 
to its implementation authority under TILA section 105(a).\187\ 
Specifically, Sec.  1026.38(l)(5) requires the creditor to disclose, 
under the subheading ``Partial Payment Policy,'' a statement of whether 
it will accept monthly payments that are less than the full amount due 
and that, if the loan is sold, the new creditor may have a different 
policy. If partial payments are accepted, the creditor must also 
provide a brief description of its partial payment policy, including 
the manner and order in which any partial payments are applied to the 
principal, interest, or an

[[Page 51252]]

escrow account for partial payments and whether any penalties apply.
---------------------------------------------------------------------------

    \187\ The disclosure requirements of TILA section 129C(h) that 
apply after consummation are implemented in proposed Sec.  1026.39.
---------------------------------------------------------------------------

38(l)(6) Security Interest
    TILA section 128(a)(9) requires the creditor to provide a statement 
that a security interest has been taken in the property that secures 
the transaction or in property not purchased as part of the transaction 
by item or type. 15 U.S.C. 1638(a)(9). This requirement is implemented 
in current Sec.  1026.18(m), which requires disclosure of the fact that 
the creditor has or will acquire a security interest in the property 
purchased as part of the transaction, or in other property identified 
by item or type.
    The Bureau proposes Sec.  1026.38(l)(6) to implement TILA section 
128(a)(9) for transactions subject to Sec.  1026.19(f), pursuant to its 
implementation authority under TILA section 105(a). Specifically, if 
the creditor will take a security interest in the property that is the 
subject of a mortgage loan transaction, proposed Sec.  1026.38(l)(6) 
requires the creditor to disclose that the consumer is granting it a 
security interest in that property, the address of the property, and a 
statement that the consumer may lose the property if the consumer fails 
to make payments or satisfy other requirements of the legal obligation. 
The information required by proposed Sec.  1026.38(l)(6) is located 
under the subheading ``Security Interest.''
    The Bureau proposes to require creditors to disclose the address of 
the property in which a security interest will be taken and a statement 
that the consumer may lose the property if he does not make payments or 
satisfy other requirements, pursuant to its authority under TILA 
section 105(a) and Dodd-Frank Act section 1032(a). The Bureau believes 
the proposed disclosures promote the informed use of credit, which is a 
purpose of TILA, by clearly disclosing the property in which a security 
interest is being granted and informing consumers of the potential 
consequences of the creditor's security interest in the property. In 
addition, the Bureau believes the proposed disclosures will ensure that 
the features of the mortgage transaction are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to understand the costs, benefits, and risks associated with the 
mortgage transaction, in light of the facts and circumstances, 
consistent with Dodd-Frank Act section 1032(a).
38(l)(7) Escrow Account
    Sections 1461 and 1462 of the Dodd-Frank Act amended TILA to create 
a new section 129D, which establishes certain requirements for escrow 
accounts for consumer credit transactions secured by a first lien on a 
consumer's principal dwelling (other than a consumer credit transaction 
under an open-end credit plan or a reverse mortgage). 15 U.S.C. 
1639d(a) through (j). In particular, new TILA section 129D(h) and (j) 
require certain disclosures when an escrow account is established and 
certain other disclosures when an escrow account is refused or 
cancelled by the consumer, respectively. Under TILA section 129D(b), 
however, application of the mandatory escrow requirements is limited to 
the following situations: (1) Where an escrow account is required by 
Federal or State law; (2) where the loan is made, guaranteed, or 
insured by a Federal or State agency; (3) where the transaction's APR 
exceeds the average prime offer rate by prescribed margins; and (4) 
where an escrow account is required by regulation.
    As discussed above, the Board's 2011 Escrows Proposal proposed to 
implement the new TILA escrow requirements. Although the Bureau expects 
to implement most aspects of that proposal in a separate rulemaking, 
there are certain key disclosures in the Board's 2011 Escrows Proposal 
that complement the integrated Closing Disclosure. Thus, the Bureau 
proposes to implement those disclosure requirements in proposed Sec.  
1026.38(l)(7).
    Like the Board's 2011 Escrows Proposal, the Bureau proposes to 
apply the TILA section 129D escrow requirements to all transactions 
subject to proposed Sec.  1026.19(f) even if the disclosures are not 
mandated by TILA section 129D(b). In doing so, the Bureau relies on its 
authority under TILA section 105(a), Dodd-Frank Act section 1032(a), 
and, for residential mortgage loans, Dodd-Frank Act section 1405(b). 
The Bureau believes that requiring disclosures regarding the 
establishment of an escrow account, as well as the non-establishment of 
an escrow account, will provide consumers with information needed to 
evaluate the costs and fees associated with mortgage loans and to 
understand their ongoing monthly obligations regardless of whether the 
transaction would include an escrow account. Disclosure of this 
information will ensure that consumers have the facts needed to 
understand a key requirement of their mortgage loan and avoid the 
uninformed use of credit, consistent with the purposes of TILA. In 
addition, the Bureau believes that the proposed disclosures will ensure 
that the features of the mortgage transaction are fully, accurately, 
and effectively disclosed to consumers in a manner that permits 
consumers to understand the costs, benefits, and risks associated with 
the mortgage transaction, in light of the facts and circumstances, 
consistent with Dodd-Frank Act section 1032(a), and will improve 
consumer awareness and understanding of residential mortgage loans, 
which is in the interest of consumers and the public, consistent with 
Dodd-Frank Act section 1405(b).
    Accordingly, the Bureau proposes to implement the disclosure 
requirements of TILA section 129D(h) and (j) in proposed Sec.  
1026.38(l)(7), pursuant to its authority under TILA section 105(a), 
Dodd-Frank Act section 1032(a), and, for residential mortgage loans, 
Dodd-Frank Act section 1405(b). Under the subheading ``Escrow 
Account,'' proposed Sec.  1026.38(l)(7) requires the creditor to 
disclose whether the consumer's loan will have an escrow account, and 
certain details about the payments made using escrow account funds and 
those the consumer must make directly. Under the ``Escrow Account'' 
subheading and under the reference ``For now,'' proposed Sec.  
1026.38(l)(7)(i) requires a statement that an escrow account may also 
be called an ``impound'' or ``trust'' account and a statement of 
whether the creditor has or will establish an escrow account at or 
before consummation. Proposed Sec.  1026.38(l)(7)(i)(A) requires the 
following disclosures under the ``For now'' reference: (1) A statement 
that the creditor may be liable for penalties and interest if it fails 
to make a payment for any costs for which the escrow account has been 
established, (2) a statement that the consumer would be required to pay 
such costs directly if no account is established, and (3) a table 
titled ``Escrow'' that contains, if an escrow account is or will be 
established, an itemization of the following: (i) The total amount the 
consumer will be required to pay into an escrow account over the first 
year after consummation for payment of the charges described in Sec.  
1026.37(c)(4)(ii), labeled ``Escrowed Property Costs over Year 1,'' 
together with a descriptive name of each such charge, calculated as the 
amount disclosed under Sec.  1026.38(l)(7)(i)(A)(4) multiplied by the 
number of periodic payments scheduled to be made to the escrow account 
during the first year after consummation; (ii) the estimated amount the 
consumer is likely to pay during the first year after consummation for 
charges described in Sec.  1026.37(c)(4)(ii) that are known to the 
creditor and that will not be paid using escrow account funds, labeled 
``Non-

[[Page 51253]]

Escrowed Property Costs over Year 1,'' together with a descriptive name 
of each such charge and a statement that the consumer may have to pay 
other costs that are not listed; (iii) the total amount disclosed 
pursuant to Sec.  1026.37(g)(3), a statement that the payment is a 
cushion for the escrow account, labeled ``Initial Payment,'' and a 
reference to the information disclosed pursuant to Sec.  1026.38(g)(3); 
and (iv) the amount the consumer will be required to pay into the 
escrow account with each periodic payment during the first year after 
consummation for payment of the charges described in Sec.  
1026.37(c)(4)(ii), labeled ``Monthly Payment.'' Proposed Sec.  
1026.38(l)(7)(i)(A)(5) provides that a creditor complies with the 
requirements of Sec.  1026.38(l)(7)(i)(A)(1) and (l)(7)(i)(A)(4) if the 
creditor bases the numerical disclosures required by those paragraphs 
on amounts derived from the escrow account analysis required under 
Regulation X, 12 CFR 1024.17. Proposed comment 38(l)(7)(i)(A)(2)-1 and 
38(l)(7)(i)(A)(4)-1 provide guidance to creditors on the calculation of 
the itemized amounts disclosed pursuant to Sec.  1026.38(l)(7)(i)(A).
    Proposed Sec.  1026.38(l)(7)(i)(B) requires a statement of whether 
the loan will not have an escrow account and the reason the loan will 
not have an escrow account. For example, if the loan will not have an 
escrow account because either the consumer declined to have one or the 
creditor does not require or offer them, the disclosure must state that 
fact. Proposed Sec.  1026.38(l)(7)(i)(B) also requires a statement that 
the consumer must pay all property costs, such as taxes and homeowner's 
insurance, directly, as well as a statement that the consumer may 
contact the creditor to inquire about the availability of an escrow 
account. Finally, proposed Sec.  1026.38(l)(7)(i)(B) requires a table 
titled ``No Escrow,'' that contains, if an escrow account will not be 
established, an itemization of the following: (1) The estimated total 
amount the consumer will pay directly for charges described in Sec.  
1026.37(c)(4)(ii) during the first year after consummation that are 
known to the creditor and a statement that, without an escrow account, 
the consumer must pay the identified costs, possibly in one or two 
large payments, labeled as ``Estimated Property Costs over Year 1,'' 
and (2) the amount of any fee that the creditor may impose for not 
establishing an escrow account, labeled ``Escrow Waiver Fee.'' The 
disclosures required in Sec.  1026.38(l)(7)(i)(B) are under the ``For 
now'' reference required in Sec.  1026.38(l)(7)(i). Proposed comment 
38(l)(7)(i)(B)(1)-1 provides guidance to creditors on calculation of 
the amounts required to be disclosed pursuant to Sec.  
1026.38(l)(7)(i)(B).
    Under the subheading ``Escrow Account'' required by proposed Sec.  
1026.38(l)(7) and under the reference ``In the future,'' proposed Sec.  
1026.38(l)(7)(ii) requires information about future requirements for 
property costs. Specifically, proposed Sec.  1026.38(l)(7)(ii)(A) 
requires a statement that the consumer's property costs may change and, 
as a result, the consumer's escrow amount may change. Proposed Sec.  
1026.38(l)(7)(ii)(B) requires a statement that the consumer may be able 
to cancel an established escrow account, but if the account is 
cancelled the consumer would be required to pay those costs directly 
unless a new escrow account is established. Proposed Sec.  
1026.38(l)(7)(ii)(C) requires a description of the consequences of 
failing to pay the property costs, including the imposition of fines 
and penalties or imposition of a tax lien by the consumer's State and 
local government, and possible actions by the creditor, such as adding 
the outstanding amounts to the loan balance, adding an escrow account 
for the loan, or purchasing property insurance on the consumer's behalf 
(with the statement that it is likely to be more expensive and provide 
fewer benefits than what the consumer could purchase directly).
38(m) Adjustable Payment Table
    For transactions subject to proposed Sec.  1026.19(f), the Bureau 
proposes Sec.  1026.38(m) pursuant to TILA section 128(b)(2)(C)(ii), 
its implementation authority under TILA section 105(a), and its 
authority under section 1032(a) of the Dodd-Frank Act and RESPA section 
19(a). Proposed Sec.  1026.38(m) requires creditors to disclose on the 
Closing Disclosure the Adjustable Payment table required by proposed 
Sec.  1026.37(i) if, under the terms of the legal obligation, the 
principal and interest payment may adjust without a corresponding 
adjustment to the interest rate or if the loan is a seasonal payment 
product under Sec.  1026.38(a)(5)(iii). The information required to be 
disclosed in the table includes: The periodic payment at the first 
adjustment of the payment; the number of the earliest number payment 
that could reflect an adjustment to the amount of the periodic payment; 
the maximum possible principal and interest payment; the number of the 
earliest payment that could reflect the maximum possible periodic 
payment; an affirmative or negative statement of whether the loan has 
an interest-only, payment-option, step-payment period, or seasonal 
payment period; and the length of such a period and the payments 
affected. For a detailed description of the Bureau's implementation of 
TILA section 128(b)(2)(C)(ii) and use of its authority under TILA 
section 105(a), Dodd-Frank Act section 1032(a), and RESPA section 
19(a), see the section-by-section analysis to proposed Sec.  
1026.37(i).
    The requirements of proposed Sec.  1026.38(m) mirror those of 
proposed Sec.  1026.37(i). Accordingly, proposed comment 38(m)-1 
directs creditors to the commentary to proposed Sec.  1026.37(i) for 
guidance on the disclosures required by proposed Sec.  1026.38(m). 
Proposed comment 38(m)-2 clarifies that, although the disclosure 
required by proposed Sec.  1026.38(m) is to be presented under a 
different master heading than the disclosure required by proposed Sec.  
1026.37(i), the other requirements applicable to proposed Sec.  
1026.37(i) apply to proposed Sec.  1026.38(m). Proposed comment 38(m)-3 
clarifies that the prohibition against presenting the table required by 
proposed Sec.  1026.37(i) except if the conditions of that paragraph 
are satisfied applies to proposed Sec.  1026.38(m). Proposed comment 
38(m)-4 clarifies that the final terms that will apply to the credit 
transaction must be disclosed pursuant to proposed Sec.  1026.38(m).
38(n) Adjustable Interest Rate Table
    For transactions subject to proposed Sec.  1026.19(f), proposed 
Sec.  1026.38(n) uses the implementation authority of TILA section 
105(a), and the authority of Dodd-Frank Act section 1032(a) and RESPA 
section 19(a) to require creditors to disclose on the Closing 
Disclosure the Adjustable Interest Rate table required by proposed 
Sec.  1026.37(j) if, under the final terms of the legal obligation, the 
interest rate may adjust after consummation. The information required 
to be disclosed in the table includes: (i) The index and margin for an 
adjustable rate loan for which the interest rate will adjust according 
to an index that is beyond the control of the creditor; (ii) for a loan 
with an interest rate that changes based on something other than such 
an index, such as a ``step-rate'' product, the amount of the scheduled 
adjustments and their frequency; (iii) the interest rate at 
consummation; (iv) the minimum and maximum possible interest rates 
after consummation of the loan, after any introductory or teaser rate 
expires; (v) the maximum possible change in the interest rate at the 
first adjustment; (vi) the maximum possible change for subsequent 
adjustments of the interest

[[Page 51254]]

rate; (vii) the month after consummation when the interest rate may 
first change, counted from the date that interest begins to accrue for 
the first periodic principal and interest payment; and (viii) the 
frequency of subsequent interest rate adjustments after consummation. 
For a detailed description of the Bureau's implementation of these 
rules and use of TILA section 105(a), Dodd-Frank Act section 1032(a), 
and RESPA section 19(a) authority, see the section-by-section analysis 
to proposed Sec.  1026.37(j) above.
    The requirements of proposed Sec.  1026.38(n) mirror those of 
proposed Sec.  1026.37(j). Accordingly, proposed comment 38(n)-1 
directs creditors to the commentary to proposed Sec.  1026.37(j) for 
guidance on the disclosures required by proposed Sec.  1026.38(n). 
Proposed comment 38(n)-4 clarifies that, although the disclosure 
required pursuant to proposed Sec.  1026.38(n) is to be presented under 
a different master heading than the disclosure required by proposed 
Sec.  1026.37(j), the other requirements applicable to proposed Sec.  
1026.37(j) apply to proposed Sec.  1026.38(n). Proposed comment 38(n)-3 
clarifies that the prohibition against presenting the table required by 
proposed Sec.  1026.37(j) if the interest rate will not change after 
consummation applies to proposed Sec.  1026.38(n). Proposed comment 
38(n)-4 clarifies that the final terms that will apply to the credit 
transaction must be disclosed pursuant to proposed Sec.  1026.38(n).
38(o) Loan Calculations
    Proposed Sec.  1026.38(o) requires creditors to disclose in a 
separate table under the heading ``Loan Calculations,'' certain 
information required by TILA section 128(a)(2) through (5), (8), (17), 
and (19). Specifically, the table required by proposed Sec.  1026.38(o) 
must contain the total of payments, finance charge, amount financed, 
annual percentage rate, total interest percentage, and the approximate 
cost of funds disclosures described in proposed Sec.  1026.38(o)(1) 
through (6). Pursuant to proposed Sec.  1026.38(t) and form H-25, the 
table required by proposed Sec.  1026.38(o) will appear on the final 
page of the Closing Disclosure, apart from key loan terms identified on 
the first page of the Closing Disclosure. Based on research regarding 
consumer comprehension and behavior and the results of the Bureau's 
consumer testing, the Bureau believes that the disclosure of these 
calculations on the final page of the Closing Disclosure and apart from 
key loan terms may reduce information overload and enhance the overall 
understanding of the Closing Disclosure.
    As discussed above, research suggests that consumers can process 
only a finite amount of information when making complex decisions. As a 
result, an effective disclosure regime minimizes the risk of 
distraction and overload by emphasizing information that is important 
to consumer comprehension, while placing less emphasis on disclosures 
that are less useful to consumers. Consumer testing conducted by the 
Bureau for purposes of developing the Closing Disclosure and by the 
Board for purposes of its 2009 Closed-End Proposal indicates that 
consumer understanding is enhanced if the loan calculations in proposed 
Sec.  1026.38(o) are disclosed together and less prominently than 
disclosures that are most important to consumers' understanding of 
their mortgage transactions, such as interest rate and monthly payment. 
74 FR at 43293-98, 43306-09. The Bureau requests comment on whether the 
disclosures in Sec.  1026.38(o) enhance consumers' ability to 
understand their loan transactions or serve other important purposes 
and, if not, whether the Bureau should use its authority under TILA 
section 105(a) and (f) and Dodd-Frank Act sections 1032(a) and 1405(b) 
to exempt transactions subject to Sec.  1026.19(f) from certain of 
these requirements, as set forth below.
38(o)(1) Total of Payments
    TILA section 128(a)(5) and (8) requires creditors to disclose the 
sum of the amount financed and the finance charge using the term 
``Total of Payments,'' and a descriptive explanation of that term. 15 
U.S.C. 1638(a)(5), (8). Current Sec.  1026.18(h) implements these 
statutory provisions by requiring creditors to disclose the ``total of 
payments,'' using that term, and a descriptive explanation that the 
figure represents the amount the consumer will have paid after making 
all scheduled payments. Current comment 18(h)-2 provides that creditors 
must calculate the total of payments amount for transactions subject to 
Sec.  1026.18(s) using the rules in Sec.  1026.18(g) and associated 
commentary and, for adjustable-rate transactions, comments 17(c)(1)-8 
and -10. Current comment 18(g)-1 provides guidance to creditors on the 
amounts to be included in the total of payments calculation. Current 
comment 18(h)-1 allows creditors to revise the total of payments 
descriptive statement for variable-rate transactions to convey that the 
disclosed amount is based on the annual percentage rate and may change. 
In addition, current comments 18(h)-3 and -4 permit creditors to omit 
the total of payments disclosure in certain single-payment transactions 
and for demand obligations that have no alternate maturity rate.
    Proposed Sec.  1026.38(o)(1) implements the requirements of TILA 
section 128(a)(5) and (8) for transactions subject to proposed Sec.  
1026.19(f), pursuant to the Bureau's implementation authority under 
TILA section 105(a). Specifically, proposed Sec.  1026.38(o)(1) 
requires creditors to disclose on the Closing Disclosure the term 
``Total of Payments,'' and the statement that the disclosure is the 
total you will have paid after you make all payments of principal, 
interest, mortgage insurance, and loan costs, as scheduled. Proposed 
comment 38(o)(1)-1 clarifies that, for purposes of Sec.  1026.18(o)(1), 
the total of payments is calculated in the same manner as the ``In 5 
Years'' disclosure pursuant to Sec.  1026.37(l)(1)(i), except that the 
disclosed amount reflects the total payments through the end of the 
loan term. The comment also refers creditors to comment 37(1)(1)(i)-1 
for guidance on the amounts included in the total of payments 
calculation.
    As discussed in the section-by-section analysis to proposed Sec.  
1026.37(l), consumers have historically misunderstood the total of 
payments disclosure and do not use it when evaluating their loan. 
Accordingly, for the reasons set forth in the section-by-section 
analysis to proposed Sec.  1026.37(l)(1)(i), the Bureau proposes to 
modify the requirement of TILA section 128(a)(5) that the total of 
payments disclose the sum of the amount financed and the finance 
charge. Instead, the Bureau proposes to include in the total of 
payments calculation principal, interest, mortgage insurance (including 
any prepaid or escrowed mortgage insurance), and loan costs disclosed 
pursuant to proposed Sec.  1026.37(f). The Bureau proposes this 
modification pursuant to TILA section 105(a), Dodd-Frank Act section 
1032(a), and, for residential mortgage loans, Dodd-Frank Act section 
1405(b). The Bureau believes that this modification will enhance 
consumer understanding of mortgage transactions because including loan 
costs, rather than the finance charge, in the total of payments 
calculation will allow consumers to identify the costs that are 
included in the total of payments calculation. Consumers can refer to 
other parts of the Closing Disclosure to determine which loan costs are 
included in the total of payments disclosure, in contrast to the 
components of the finance charge, which the consumer has no way to 
identify. Further, the Bureau believes

[[Page 51255]]

that including the same costs and fees in the total of payments 
disclosure as are in the ``In 5 Years'' disclosure pursuant to proposed 
Sec.  1026.37(l)(1)(i) will ease compliance burden for creditors. The 
Bureau believes this proposed modification will improve consumer 
awareness and understanding of residential mortgage loans, which is in 
the interest of consumers and the public, consistent with Dodd-Frank 
Act section 1405(b). In addition, the Bureau believes that the 
disclosure ensures that the features of consumer credit transactions 
secured by real property are fully, accurately, and effectively 
disclosed to consumers in a manner that permits consumers to understand 
the costs, benefits, and risks associated with the product or service, 
in light of the facts and circumstances, consistent with Dodd-Frank Act 
section 1032(a).
    The proposed rule does not allow creditors to modify the 
descriptive statement that accompanies the total of payments disclosure 
for variable-rate transactions or to omit the total of payments 
disclosure in single-payment transactions and for demand obligations 
that have no alternate maturity rate, in contrast to current comments 
18(h)-1, -3, and -4. The Bureau believes that consistent disclosures 
will better enhance consumer understanding of credit terms and will 
ease compliance burden for creditors.
38(o)(2) Finance Charge
    TILA section 128(a)(3) and (8) requires creditors to disclose the 
``finance charge'' and a brief descriptive statement of the finance 
charge. 15 U.S.C. 1638(a)(3), (8). Current Sec.  1026.18(d) implements 
these provisions by requiring creditors to disclose the ``finance 
charge,'' using that term, and a brief description such as ``the dollar 
amount the credit will cost you.'' Current comment 18(d)-1 allows 
creditors to modify the descriptive statement for variable rate 
transactions with a phrase indicating that the disclosed amount is 
subject to change. In addition, current Sec.  1026.17(a)(2), which 
implements TILA section 122(a), requires creditors to disclose the 
finance charge more conspicuously than any other required disclosure, 
except the creditor's identity. The rules addressing which charges must 
be included in the finance charge are set forth in TILA section 106, 
and are discussed more fully above with respect to proposed Sec.  
1026.4.
    The Bureau proposes Sec.  1026.38(o)(2) to implement TILA section 
128(a)(3) and (8) for transactions subject to Sec.  1026.19(f), 
pursuant to its implementation authority under TILA section 105(a). 
Proposed Sec.  1026.38(o)(2) requires creditors to disclose the finance 
charge, using that term, and the descriptive statement ``the dollar 
amount the loan will cost you,'' in the table required by proposed 
Sec.  1026.38(o). Proposed comments 38(o)(2)-1 and -2 provide guidance 
to creditors on how to disclose and calculate the finance charge. The 
proposed rule does not allow creditors to modify the descriptive 
statement that accompanies the finance charge disclosure for variable-
rate transactions, in contrast to current comment 18(d)-1, because the 
Bureau believes that consistent disclosures will better enhance 
consumer understanding of credit terms and will ease compliance burden 
for creditors. Proposed Sec.  1026.38(o)(2) also provides that the 
disclosed finance charge and other disclosures affected by the 
disclosed finance charge (including the amount financed and the annual 
percentage rate) shall be treated as accurate if the amount disclosed 
as the finance charge is understated by no more than $100 or is greater 
than the amount required to be disclosed. However, as discussed in the 
section-by-section analysis to proposed Sec.  1026.4 above, the Bureau 
solicits comment on whether and the amount by which this tolerance 
should be raised in light of the expanded definition of the finance 
charge for closed-end transactions secured by real property or a 
dwelling.
    The Bureau proposes to exercise its authority under TILA section 
105(a) and (f), Dodd-Frank Act section 1032(a), and, for residential 
mortgage loans, Dodd-Frank Act section 1405(b) to except transactions 
subject to proposed Sec.  1026.19(f) from the requirement under TILA 
section 122(a) that the finance charge be disclosed more conspicuously 
than other disclosures. The Bureau has considered the purposes for 
which it may exercise its authority under TILA section 105(a) and, 
based on that review, believes that the proposed exception is 
appropriate. Here, the proposed exception from the TILA section 122(a) 
requirement that the finance charge be more conspicuously disclosed 
than other disclosures effectuates TILA's purpose of achieving a 
meaningful disclosure of credit terms for transactions subject to 
proposed Sec.  1026.19(f). As discussed in the section-by-section 
analysis to proposed Sec.  1026.37(l), consumers generally do not 
understand the finance charge and do not use it when making decisions 
about their loan. Accordingly, the Bureau believes that consumer 
understanding is enhanced by disclosing the finance charge with other 
loan calculations, such as total of payments, amount financed, and 
total interest percentage, for transactions subject to proposed Sec.  
1026.19(f), and that a more prominent disclosure of the finance charge 
may not provide a meaningful benefit to consumers. Rather, disclosure 
of the finance charge separately from the information that is important 
to consumer understanding of credit terms may enhance consumer 
understanding by avoiding information overload.
    The Bureau also proposes this exception pursuant to its authority 
under TILA section 105(f). 15 U.S.C. 1604(f)(1). The Bureau has 
considered the factors in TILA section 105(f) and believes that, for 
the reasons discussed above, an exception is appropriate under that 
provision. Specifically, the Bureau believes that the proposed 
exemption is appropriate for all affected borrowers, regardless of 
their other financial arrangements and financial sophistication and the 
importance of the loan to them. Similarly, the Bureau believes that the 
proposed exemption is appropriate for all affected loans, regardless of 
the amount of the loan and whether the loan is secured by the principal 
residence of the consumer. Furthermore, the Bureau believes that, on 
balance, the proposed exemption will simplify the credit process 
without undermining the goal of consumer protection or denying 
important benefits to consumers. Highlighting the finance charge on the 
disclosure form contributes to overall consumer confusion and 
information overload, complicates the mortgage lending process, and 
hinders consumers' ability to understand important loan terms. For 
these same reasons, the Bureau believes that the proposed disclosure of 
the finance charge would ensure that the features of consumer credit 
transactions secured by real property are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to understand the costs, benefits, and risks associated with the 
product or service, in light of the facts and circumstances, consistent 
with 1032(a) of the Dodd-Frank Act, and will improve consumer awareness 
and understanding of residential mortgage loans, which is in the 
interest of consumers and the public, consistent with Dodd-Frank Act 
section 1405(b).
38(o)(3) Amount Financed
    TILA section 128(a)(2) and (8) requires creditors to disclose the 
``amount financed,'' using that term, and a brief descriptive 
statement. 15 U.S.C. 1638(a)(2), (8). Current Sec.  1026.18(b) 
implements this provision by requiring creditors to disclose the amount

[[Page 51256]]

financed, using that term, together with a brief description that the 
amount financed represents the amount of credit of which the consumer 
has actual use.
    The Bureau proposes new Sec.  1026.38(o)(3) to implement TILA 
section 128(a)(2) and (8) for transactions subject to proposed Sec.  
1026.19(f), pursuant to its implementation authority under TILA section 
105(a). Proposed Sec.  1026.38(o)(3) requires creditors to disclose the 
amount financed, using that term, together with the descriptive 
statement, ``the loan amount available after paying your upfront 
finance charge.'' Based on consumer testing, the Bureau believes this 
approach is appropriate to serve TILA's purpose of assuring a 
meaningful disclosure of credit terms. Proposed comment 38(o)(3)-1 
clarifies that, for purposes of Sec.  1026.38(o)(3), the amount 
financed disclosure is calculated in accordance with the requirements 
of Sec.  1026.18(b) and its commentary.
38(o)(4) Annual Percentage Rate
    TILA section 128(a)(4) and (8) requires creditors to disclose the 
annual percentage rate, together with a brief descriptive statement. 15 
U.S.C. 1638(a)(4), (8). Current Sec.  1026.18(e) implements this 
requirement by requiring creditors to disclose the ``annual percentage 
rate,'' using that term, and a brief description such as ``the cost of 
your credit as a yearly rate.'' 15 U.S.C. 1632(a). In addition, TILA 
section 122(a) requires that the annual percentage rate be more 
conspicuous than other disclosures, except the disclosure of the 
creditor's identity. This requirement is implemented in current Sec.  
1026.18(e).
    Proposed Sec.  1026.38(o)(4) implements the requirements of TILA 
section 128(a)(4) and (8) for transactions subject to Sec.  1026.19(f) 
by requiring creditors to disclose the ``annual percentage rate'' and 
the abbreviation ``APR,'' together with the following statement: ``Your 
costs over the loan term expressed as a rate. This is not your interest 
rate.'' For the reasons discussed in the section-by-section analysis to 
proposed Sec.  1026.37(l)(2), the Bureau proposes to exercise its 
authority under TILA section 105(a) and (f), Dodd-Frank Act section 
1032(a), and, for residential mortgage loans, Dodd-Frank Act section 
1405(b) to except the annual percentage rate from the conspicuous 
disclosure requirement under TILA section 122(a), for transactions 
subject to proposed Sec.  1026.19(f).
    As discussed in the section-by-section analysis to proposed Sec.  
1026.37(l), in response to the Bureau's Small Business Review Panel 
Outline, some consumer advocates expressed concern about disclosing the 
APR on the final page of the Closing Disclosure and suggested that the 
APR should be more prominently displayed on the disclosure. The Bureau 
has considered this feedback, but for the reasons discussed above, 
believes that the proposed approach to the APR could provide important 
benefits to consumers by emphasizing the difference between the APR and 
the contract interest rate and by deemphasizing historically confusing 
disclosures that contribute to information overload, and that other 
possible approaches to improving the APR would be less effective at 
improving the disclosure.
38(o)(5) Total Interest Percentage
    As discussed in the section-by-section analysis to proposed Sec.  
1026.37(l)(3), section 1419 of the Dodd-Frank Act amended TILA to add 
new section 128(a)(19), which requires that, in the case of a 
residential mortgage loan, the creditor disclose the total amount of 
interest that the consumer will pay over the life of the loan as a 
percentage of the principal of the loan. 15 U.S.C. 1638(a)(19). TILA 
section 128(a)(19) also requires that the amount be computed assuming 
the consumer makes each monthly payment in full and on time, and does 
not make any overpayments.
    Pursuant to the Bureau's implementation authority under TILA 
section 105(a), proposed Sec.  1026.38(o)(5) implements this new 
statutory requirement by requiring creditors to disclose the ``total 
interest percentage,'' using that term and the abbreviation ``TIP.'' 
For guidance on disclosure and calculation of the total interest 
percentage on the Closing Disclosure, proposed comment 38(o)(5)-1 
refers creditors to the disclosure of the total interest percentage on 
the Loan Estimate, found in Sec.  1026.37(l)(3) and its commentary. In 
addition, for the reasons discussed in the section-by-section analysis 
to proposed Sec.  1026.37(l)(3), the Bureau proposes to exercise its 
authority under TILA section 105(a), Dodd-Frank Act section 1032(a), 
and, for residential mortgage loans, Dodd-Frank Act section 1405(b) to 
require creditors to disclose the following descriptive statement of 
the total interest percentage: ``This rate is the total amount of 
interest that you will pay over the loan term as a percentage of your 
loan amount.''
    Concerns were raised during the Small Business Review Panel, by 
industry feedback provided in response to the Small Business Review 
Panel Outline, and in feedback received through the Bureau's Web site 
that the total interest percentage would be difficult to calculate and 
explain to consumers, would not likely be helpful to consumers, and may 
distract consumers from more important disclosures. See Small Business 
Review Panel Report at 20. In particular, industry feedback provided in 
response to the Bureau's Small Business Review Panel Outline noted that 
the disclosure will always be inaccurate in an adjustable-rate loan and 
in any loan that is paid off before final maturity.
    Based on this feedback and consistent with the Small Business 
Review Panel's recommendation, the Bureau alternatively proposes to use 
its authority under TILA section 105(a) and (f) and Dodd-Frank Act 
sections 1032(a) and 1405(b) to remove the total interest percentage 
from the Closing Disclosure required by proposed Sec.  1026.19(f). The 
Bureau's rationale for the proposed exemption is found in the section-
by-section analysis to proposed Sec.  1026.37(l)(3). The Bureau 
solicits comment on the proposed exemption.
38(o)(6) Approximate Cost of Funds
    The Dodd-Frank Act amended TILA to add new section 128(a)(17). 15 
U.S.C. 1638(a)(17). Among other things, that section requires creditors 
to disclose, in the case of residential mortgage loans, ``the 
approximate amount of the wholesale rate of funds in connection with 
the loan.''
    The Bureau notes several interpretive challenges in TILA section 
128(a)(17). First, the statute refers to an ``amount'' of a ``rate,'' 
whereas amounts are typically absolute, while rates are typically 
expressed as percentages. Second, the intended meaning of the phrase 
``wholesale rate of funds'' is unclear. Wholesale transactions have 
historically had a ``wholesale rate,'' which is generally the rate at 
which a wholesale lender is willing to extend credit to a particular 
consumer, before any increase to recoup compensation paid to a mortgage 
broker. The resulting increased rate is the ``retail rate'' paid by the 
consumer. However, there are other components of overall pricing such 
as discount points and other up-front charges, which calls into 
question the use of the term ``wholesale rate'' as a meaningful 
disclosure.
    The Bureau is unaware of the phrase ``wholesale rate of funds'' 
having a known standard usage in the mortgage industry. ``Wholesale'' 
generally is used by industry participants to refer to loans made 
through mortgage brokers, as opposed to loans made directly by the 
creditor through its own employees, which are commonly referred to as 
``retail'' originations. Yet, there is

[[Page 51257]]

nothing in TILA section 128(a)(17) limiting its applicability to 
wholesale transactions. In addition, the meaning of the term ``rate of 
funds'' is unclear.
    In light of these uncertainties, the Bureau proposes to interpret 
the ``wholesale rate of funds'' to mean the actual cost of borrowing 
funds for use in mortgage lending. As discussed in the Kleimann Testing 
Report, the Bureau conducted consumer testing using the terms ``lender 
cost of funds,'' ``average cost of funds,'' and ``approximate cost of 
funds,'' along with descriptive statements of these terms. First, the 
Bureau conducted consumer testing using the phrase ``lender cost of 
funds,'' which was the actual cost of funds used to make mortgage 
loans. Consumers were generally unable to understand or use this 
disclosure, and the Bureau received significant negative feedback about 
this disclosure from industry representatives. Second, the Bureau 
conducted consumer testing using the phrase ``average cost of funds,'' 
which is an average or approximate cost of funds in lieu of the 
creditor's actual costs. Again, consumers were unable to use or 
understand this disclosure, and the Bureau received negative industry 
feedback. In all cases, experienced and non-experienced consumers that 
participated in the Bureau's consumer testing of the cost of funds 
disclosure questioned the disclosure and were unable to articulate how 
to use the information. During five rounds of consumer testing, only 
one consumer showed any interest in the disclosure, stating that it was 
``interesting,'' but did not use it to evaluate the loan. All other 
consumers were either confused by the disclosure or simply did not find 
it helpful. Several consumers expressed a feeling of offense in 
reaction to the cost of funds. Industry participants also believed that 
consumers would be confused by the cost of funds disclosure.
    Accordingly, the Bureau is soliciting comment on both ``lender cost 
of funds'' and ``average cost of funds'' pursuant to its authority 
under TILA section 105(a), Dodd-Frank Act section 1032(a), and, for 
residential mortgage loans, Dodd-Frank Act section 1405(b). Proposed 
Sec.  1026.38(o)(6) requires creditors to disclose the ``approximate 
cost of funds,'' using that term and the abbreviation ``ACF'' and 
expressed as a percentage, and the statement ``The approximate cost of 
funds used to make this loan. This is not a direct cost to you.'' For 
purposes of proposed Sec.  1026.38(o)(6), ``approximate cost of funds'' 
means either the most recent ten-year Treasury constant maturity rate 
or the creditor's actual cost of borrowing the funds used to extend the 
credit, at the creditor's option. The Bureau solicits comment on 
whether another index, such as the London Interbank Offer Rate (LIBOR), 
would be a more appropriate measure of the approximate cost of funds. 
The Bureau also solicits comment on what would be required for 
creditors to disclose their actual costs of funds.
    Based on consumer testing, the Bureau believes that consumer 
understanding of the cost of funds disclosure will be enhanced through 
the descriptive statement, consistent with the purposes of TILA, and 
will improve consumer awareness and understanding of residential 
mortgage loans, which is in the interest of consumers and the public, 
consistent with section 1405(b) of the Dodd-Frank Act. For these 
reasons, the Bureau also believes that the disclosure of the 
descriptive statement of the cost of funds disclosure may ensure that 
the features of consumer credit transactions secured by real property 
are fully, accurately, and effectively disclosed to consumers in a 
manner that permits consumers to understand the costs, benefits, and 
risks associated with the product or service, in light of the facts and 
circumstances, consistent with section 1032(a) of the Dodd-Frank Act.
    Notwithstanding these proposed modifications, consumer testing 
conducted by the Bureau suggests that consumers do not understand the 
disclosure and that it does not provide a meaningful benefit to 
consumers. In addition, based on concerns raised by the Small Business 
Review Panel, industry feedback provided in response to the Bureau's 
Small Business Review Panel Outline, and feedback provided through the 
Bureau's Web site, the Bureau believes that the disclosure may be very 
burdensome for creditors to calculate and explain, and that consumers 
would not find the disclosures helpful. See Small Business Review Panel 
Report at 20. Accordingly, the Bureau remains concerned that the cost 
of funds disclosure may not be a useful tool for consumers and could 
create confusion and contribute to information overload. Consistent 
with the recommendation of the Small Business Review Panel, the Bureau 
alternatively proposes to use its exception and modification authority 
under TILA section 105(a) and (f), Dodd-Frank Act section 1032(a), and, 
for residential mortgage loans, Dodd-Frank Act section 1405(b) to 
exempt transactions subject to proposed Sec.  1026.19(e) and (f) from 
the cost of funds disclosure requirement in TILA section 128(a)(17). 
The Bureau believes the proposed exemption will carry out the purposes 
of TILA, consistent with TILA section 105(a), by avoiding consumer 
confusion and information overload, thereby promoting the informed use 
of credit. For these same reasons, the proposed exemption will help 
ensure that the features of the transaction are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to better understand the costs, benefits, and risks associated with the 
mortgage transaction, in light of the facts and circumstances, 
consistent with Dodd-Frank Act section 1032(a), and will improve 
consumer awareness and understanding of residential mortgage loans, 
which is in the interest of consumers and the public, consistent with 
Dodd-Frank Act section 1405(b). Finally, the Bureau has considered the 
factors in TILA section 105(f) and believes that, for the reasons 
discussed above, an exception is appropriate under that provision. 
Specifically, the Bureau believes that the proposed exemption is 
appropriate for all affected borrowers, regardless of their other 
financial arrangements and financial sophistication and the importance 
of the loan to them. Similarly, the Bureau believes that the proposed 
exemption is appropriate for all affected loans, regardless of the 
amount of the loan and whether the loan is secured by the principal 
residence of the consumer. Furthermore, the Bureau believes that, on 
balance, the proposed exemption will simplify the credit process 
without undermining the goal of consumer protection or denying 
important benefits to consumers. Based on these considerations, the 
results of the Bureau's consumer testing, and the analysis discussed 
elsewhere in this proposal, the Bureau believes that the proposed 
exemption may be appropriate. The Bureau solicits comment on this 
proposed exemption.
38(p) Other Disclosures
    As discussed below, proposed Sec.  1026.38(p) implements statutory 
provisions requiring creditors to disclose information regarding 
appraisals, contract details, liability after foreclosure, refinancing, 
and tax deductions. Under the proposal, these disclosures would be 
provided under the heading ``Other Disclosures.''
38(p)(1) Appraisal
    As noted above in the discussion of proposed Sec.  1026.37(m)(1), 
the Dodd-Frank Act amended ECOA to require creditors to provide 
consumers with a copy of any written appraisal conducted for a loan 
that is or will be secured by

[[Page 51258]]

a first lien on a dwelling, and also added a requirement that creditors 
disclose that right to consumers at the time of application. ECOA 
section 701(e); 15 U.S.C. 1691(e). In addition, the Dodd-Frank Act 
amended TILA to require creditors to provide consumers with an 
appraisal copy at least three days prior to consummation of certain 
``higher-risk'' mortgages. TILA section 129H(c)-(d); 15 U.S.C. 
1639h(c)-(d). As discussed above, these provisions are being 
implemented in separate Bureau and joint interagency rulemakings, 
respectively. Although the Bureau is not implementing these statutory 
provisions through this proposed rule, the Bureau is proposing 
appraisal disclosures similar to those required by the statutes to be 
included on the Loan Estimate in transactions subject to either ECOA 
section 701(e) or TILA section 129H, as implemented in Regulations B 
and Z, respectively, pursuant to its authority under TILA section 
105(a) and Dodd-Frank Act section 1032(a). The Bureau intends to 
harmonize these requirements with the final rules implementing the 
statutory appraisal disclosure requirements at the time it issues a 
rule finalizing this proposal.
    In addition, the Bureau is proposing, pursuant to its authority 
under TILA section 105(a) and Dodd-Frank Act section 1032(a), that 
creditors provide a disclosure regarding the right to receive an 
appraisal on the Closing Disclosure the consumer receives three days 
prior to consummation. Like Sec.  1026.37(m)(1), this disclosure 
requirement applies only to transactions subject to either ECOA section 
701(e) or TILA section 129H, as implemented in Regulations B and Z, 
respectively. Specifically, proposed Sec.  1026.38(p)(1)(i) requires 
the creditor to disclose that, if there was an appraisal of the 
property in connection with the loan, the creditor is required to 
provide the consumer with a copy of such appraisal at no additional 
cost to the consumer at least three days prior to consummation. 
Proposed Sec.  1026.38(p)(1)(ii) requires the creditor to disclose 
that, if the consumer has not yet received a copy of the appraisal, the 
consumer should contact the creditor using the information disclosed 
pursuant to proposed Sec.  1026.38(r). Proposed Sec.  1026.38(p)(1) 
requires these disclosures to be provided under the subheading 
``Appraisal.'' Proposed comment 38(p)(1)-1 provides guidance regarding 
the applicability of proposed Sec.  1026.38(p)(1). The comment states 
that if a transaction is not subject to either ECOA section 701(e) or 
TILA section 129H, as implemented in Regulations B and Z, respectively, 
the disclosure required by proposed Sec.  1026.38(p)(1) may be omitted 
from the Closing Disclosure.
    The Bureau believes the additional disclosure reminding consumers 
of their right to receive a copy of an appraisal conducted for their 
loan will promote the informed use of credit by consumers, consistent 
with TILA section 105(a), and ensure that the features of mortgage 
transactions are fully, accurately, and effectively disclosed to 
consumers in a manner that permits consumers to understand the costs, 
benefits, and risks associated with the loans, in light of the facts 
and circumstances, consistent with Dodd-Frank Act section 1032(a).
38(p)(2) Contract Details
    TILA section 128(a)(12) requires the creditor to provide a 
statement that ``[t]he consumer should refer to the appropriate 
document for any information such document provides about nonpayment, 
default, the right to accelerate the maturity of the debt, and 
prepayment rebates and penalties.'' 15 U.S.C. 1638(a)(12). This 
requirement is currently implemented in Sec.  1026.18(p), which 
requires the creditor to provide a statement that the consumer should 
refer to the appropriate contract document for information pertaining 
to nonpayment, default, the right to accelerate the maturity of the 
loan obligation, and prepayment rebates and penalties. Section 
1026.18(p) also provides the creditor the option to disclose a 
reference to the contract document for information regarding security 
interests and assumption of the legal obligation.
    The Bureau proposes Sec.  1026.18(p)(2) to implement TILA section 
128(a)(12) for transactions subject to Sec.  1026.19(f), pursuant to 
its implementation authority under TILA section 105(a). Like current 
Sec.  1026.18(p), proposed Sec.  1026.38(p)(2) requires the creditor to 
disclose a statement that the consumer should review the loan contract 
for additional information about loan terms. Specifically, under 
proposed Sec.  1026.38(p)(2), the creditor is required to state that 
the consumer should refer to the appropriate loan document and security 
instrument for information about nonpayment, what constitutes a default 
under the legal obligation, circumstances under which the creditor may 
accelerate the maturity of the obligation, and prepayment rebates and 
penalties. Proposed Sec.  1026.38(p)(2) requires this information to be 
disclosed is under the subheading ``Contract Details.''
38(p)(3) Liability After Foreclosure
    As discussed in the section-by-section analysis to proposed Sec.  
1026.37(m)(7), section 1414(c) of the Dodd-Frank Act created new TILA 
section 129C(g), which establishes certain requirements for residential 
mortgage loans subject to protection under a State's anti-deficiency 
law. 15 U.S.C. 1639c(g). TILA section 129C(g)(2) generally requires the 
creditor to provide a written notice to the consumer describing the 
protection provided by the applicable State's anti-deficiency law and 
the significance for the consumer of the loss of such protection. For 
refinance transactions only, TILA section 129C(g)(3) generally requires 
creditors that receive from or provide to the consumer an application 
for refinancing that would cause the loan to lose the protection of an 
anti-deficiency law to provide a written notice to the consumer 
describing the protection provided by the anti-deficiency law and the 
significance for the consumer of the loss of such protection. As 
discussed above, TILA section 129C(g)(3), which applies to refinance 
transactions only, is implemented in proposed Sec.  1026.37(m)(7).
    Proposed Sec.  1026.38(p)(3) implements the requirements of TILA 
section 129C(g)(2) for transactions subject to Sec.  1026.19(f), 
pursuant to the Bureau's implementation authority under TILA section 
105(a). Specifically, under proposed Sec.  1026.38(p)(3), if State law 
may offer consumers protection from liability, the creditor must 
disclose a brief statement that State law may protect the consumer from 
liability for the unpaid balance. The statement must also advise the 
consumer that any protection afforded under State law may be lost if 
the consumer refinances the loan or incurs additional debt on the 
property and that the consumer should consult an attorney for 
additional information. However, if State law does not protect the 
consumer from liability for the unpaid balance, proposed Sec.  
1026.38(p)(3) requires the creditor to disclose that fact. The 
information required by proposed Sec.  1026.38(p)(3) is provided under 
the subheading ``Liability after Foreclosure.'' Proposed comment 
38(p)(3)-1 clarifies that whether the consumer is afforded protection 
from liability in a foreclosure varies by State and that proposed Sec.  
1026.38(p)(3) requires the creditor to provide a general description of 
the applicable State's requirements. Proposed comment 38(p)(3)-1 also 
clarifies that any type of protection afforded by State law, other than 
a statute of limitations, requires a

[[Page 51259]]

statement that State law may protect the consumer from liability for 
the unpaid balance.
    Pursuant to its authority under TILA section 105(a), Dodd-Frank Act 
section 1032(a), and, for residential mortgage loans, Dodd-Frank Act 
section 1405(b), the Bureau proposes to modify the statutory 
requirement that the creditor or loan originator must describe the 
protection provided by the applicable State's anti-deficiency law, for 
all transactions subject to proposed Sec.  1026.19(f). The Bureau 
believes that the more generalized anti-deficiency disclosure required 
by proposed Sec.  1026.38(p)(3) is effective at informing consumers 
about the existence or absence of State anti-deficiency laws, and that 
a more detailed state-specific disclosure could be confusing for 
consumers and costly and burdensome to implement. The Bureau recognizes 
that significant State law variations exist regarding anti-deficiency 
protection. For this reason, proposed Sec.  1026.38(p)(3) requires 
creditors to disclose a statement that consumers should consult a 
lawyer for more information about any applicable anti-deficiency laws. 
The Bureau believes the proposed modification will ensure that the 
features of the transaction are fully, accurately and effectively 
disclosed to consumers in a manner that permits consumers to understand 
the costs, benefits, and risks associated with the mortgage 
transaction, consistent with Dodd-Frank Act section 1032(a), and will 
improve consumer awareness and understanding of residential mortgage 
loans, which is in the interest of consumers and the public, consistent 
with Dodd-Frank Act section 1405(b).
38(p)(4) Refinance
    Proposed Sec.  1026.38(p)(4) implements TILA section 
128(b)(2)(C)(ii) for transactions subject to Sec.  1026.19(f) by 
requiring the creditor to disclose the statement required by proposed 
Sec.  1026.37(m)(5), regarding the consumer's future ability to 
refinance their loan. For a detailed discussion of the Bureau's 
proposed implementation of TILA section 128(b)(2)(C)(ii), see the 
section-by-section analysis to proposed Sec.  1026.37(m)(5).
38(p)(5) Tax Deductions
    The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 
(Bankruptcy Act) amended TILA to add new section 128(a)(15), 15 U.S.C. 
1638(a)(15), which requires that, in the case of a consumer credit 
transaction that is secured by the principal dwelling of the consumer 
in which the extension of credit may exceed the fair market value of 
the collateral, the creditor must disclose certain tax implications for 
the consumer. Public Law 109-8,119 Stat. 23. The Board stated its 
intent to implement the Bankruptcy Act amendments in an advance notice 
of proposed rulemaking published in October 2005 as part of its ongoing 
review of Regulation Z. 70 FR 60235 (Oct. 17, 2005). The issue was 
addressed again in the Board's 2009 Closed-End Proposal, although a 
final rule was not adopted. 74 FR 43232, 43310.
    In the 2009 Closed-End Proposal, the Board proposed to implement 
TILA section 128(a)(15) by requiring creditors to provide the 
disclosure required by TILA section 128(a)(15) for transactions secured 
by a dwelling. 74 FR at 43310-11. The proposed rule permitted, but did 
not require, creditors to provide the disclosure in transactions 
secured by real property that does not include a dwelling, even though 
the statute limits the disclosure to transactions secured by the 
principal dwelling of the consumer. Id. The Board reasoned that it 
would be unnecessarily burdensome to require creditors to create 
separate disclosures for transactions secured by real property and 
those secured by a dwelling and proposed that the creditor be 
permitted, but not required, to provide disclosures regarding Federal 
tax implications for transactions secured by real property. Id.
    Proposed Sec.  1026.38(p)(5) implements the requirements of TILA 
section 128(a)(15) for transactions subject to proposed Sec.  
1026.19(f), including transactions secured by real property that does 
not include a dwelling, pursuant to its authority under TILA section 
105(a), Dodd-Frank Act section 1032(a), and, for residential mortgage 
loans, Dodd-Frank Act section 1405(b). Specifically, for all 
transactions subject to Sec.  1026.19(f), proposed Sec.  1026.38(p)(5) 
requires creditors to state that, if the consumer borrows more than the 
value of the property, the interest on the loan amount above the market 
value is not deductible from Federal income taxes. Proposed Sec.  
1026.38(p)(5) also requires a statement advising the consumer to 
consult a tax professional for additional information. The Bureau 
believes that the proposed disclosure promotes the informed use of 
credit in all transactions subject to Sec.  1026.19(f), and is 
therefore consistent with the purposes of TILA. Moreover, requiring the 
disclosure for all transactions subject to proposed Sec.  1026.19(f), 
whether secured by the consumer's principal dwelling or other real 
property, facilitates industry compliance by reducing the time and 
resources that would be expended to determine whether a loan 
transaction is subject to the disclosure requirements regarding the 
deductibility of Federal income taxes. In addition, the Bureau believes 
that the proposed disclosure ensures that the features of mortgage 
transactions are disclosed in manner that ensures that the features of 
the transaction are fully, accurately, and effectively disclosed to 
consumers in a manner that permits consumers to understand the cost, 
benefits, and risks associated with the transaction, consistent with 
Dodd-Frank Act section 1032(a) and will improve consumer awareness and 
understanding of residential mortgage loans, which is in the interest 
of consumers and the public, consistent with Dodd-Frank Act section 
1405(b).
38(q) Questions Notice
    Proposed Sec.  1026.38(q) requires the creditor or closing agent to 
provide a statement that the consumer should contact the creditor with 
any questions about the disclosures required under Sec.  1026.19(f), a 
reference to the Bureau's Web site to obtain more information or to 
make a complaint, and a prominent question mark. Although this notice 
is not currently expressly required by TILA, RESPA, or their 
implementing regulations, the Bureau is proposing to require that the 
Closing Disclosure contain such a notice based on its authority under 
TILA section 105(a), RESPA section 19(a), and Dodd-Frank Act section 
1032(a). The Bureau believes that this disclosure will effectuate the 
purposes of TILA and RESPA by facilitating the informed use of credit 
and ensuring that consumers are provided with greater and timelier 
information on the costs of the closing process, and will also ensure 
that the features of the transaction are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to better understand the costs, benefits, and risks associated with the 
transaction in light of the facts and circumstances, consistent with 
Dodd-Frank Act section 1032(a).
    Requiring disclosure of this notice complements proposed Sec.  
1026.19(f)(1)(ii), which requires delivery of the Closing Disclosure 
three business days prior to consummation. TILA section 128(b)(2)(D) 
requires that a corrected TILA disclosure be given to the consumer 
three business days prior to consummation if the APR as initially 
disclosed becomes inaccurate, and the Bureau understands that because 
of the high frequency of annual percentage rate changes triggering the 
corrected TILA disclosure obligation, many creditors currently provide 
the corrected TILA disclosure as a matter of course

[[Page 51260]]

even if it is not required. RESPA section 4 requires that the RESPA 
settlement statement be provided ``at or before closing,'' however, and 
the Bureau understands that it is typically given at closing. Proposed 
Sec.  1026.19(f)(1)(ii) reconciles the two provisions by requiring that 
consumers be given all of the RESPA- and TILA-mandated disclosures 
three business days prior to consummation. During this three-business-
day period, the consumer can review the Closing Disclosure, contact the 
creditor with questions regarding the information contained on the 
Closing Disclosure, and correct any errors prior to consummation.
    Under proposed Sec.  1026.38(q), the required notice includes a 
statement directing the consumer to contact the creditor with any 
questions about the disclosures required under Sec.  1026.19(f). If the 
alternative language proposed in Sec.  1026.19(f)(1)(v) is adopted in a 
final rule, however, the closing agent may provide the disclosures 
required under Sec.  1026.19(f) instead of the creditor. 
Notwithstanding this fact, the Bureau believes the notice required 
under proposed Sec.  1026.38(q) should in all cases reference the 
creditor, rather than the closing agent, because the creditor is better 
positioned to answer the consumer's questions relating to the 
disclosures provided under Sec.  1026.19(f). The creditor is familiar 
with the loan terms and is responsible for disclosing the aggregate 
amount of closing costs under TILA section 128(a)(17). Moreover, it is 
more likely that the creditor will have been in communication with the 
consumer previously. The Bureau seeks comment, however, on whether the 
notice required under proposed Sec.  1026.38(q) should include a 
statement directing the consumer to contact the creditor or the closing 
agent with questions, or a statement directing the consumer to contact 
the closing agent, if the disclosures required under Sec.  1026.19(f) 
are provided by the closing agent.
    Moreover, the Bureau's Web site will offer important information 
and useful tools that consumers can access at key points in the 
mortgage origination process, including during the three-business-day 
period between the consumer's receipt of the Closing Disclosure and 
consummation. Directing consumers to this Web site therefore promotes 
consumer understanding of credit terms and closing costs and of 
benefits and risks associated with the transaction in light of the 
facts and circumstances.
    The notice required under proposed Sec.  1026.38(q) also includes a 
prominent question mark. This prominent question mark is an aspect of 
the Closing Disclosure form H-25 set forth in appendix H to Regulation 
Z, the standard form or model form, as applicable, pursuant to Sec.  
1026.38(t). Consumer testing by the Bureau indicated that use of the 
prominent question mark icon in the questions notice drew consumers' 
attention to the notice.
38(r) Contact Information
    Under TILA section 128(a)(1) and Regulation Z Sec.  1026.18(a), the 
TILA disclosures must include the identity of the creditor. Comment 
18(a)-1 clarifies that the ``identity'' of the creditor must include 
the name of the creditor, but may also include the creditor's address 
and/or telephone number. As stated in appendix C to Regulation X, the 
RESPA GFE must include the name, address, phone number, and email 
address (if any) of the loan originator. As stated in appendix A to 
Regulation X, the RESPA settlement statement must include the name and 
mailing address of the lender and the name, address, and phone number 
of the settlement agent. Moreover, TILA section 129B(b)(1)(B), which 
was added to TILA by section 1402 of the Dodd-Frank Act, provides that 
each mortgage originator must include on all loan documents any unique 
identifier of the mortgage originator provided by the Nationwide 
Mortgage Licensing System and Registry. However, TILA, RESPA, and their 
implementing regulations currently do not expressly require the 
disclosure of: (1) The email address of the creditor (unless the 
creditor is also the loan originator, in which case it must be 
disclosed on the GFE but not on the RESPA settlement statement); (2) 
the name, email address, and phone number of the primary contact with 
the creditor; (3) the email address of the closing agent; (4) the name, 
email address, and phone number of the consumer's and seller's real 
estate brokers, if any; or (5) the license number or other unique 
identifier issued by the applicable jurisdiction or regulating body 
with which a closing agent or real estate broker is licensed and/or 
registered, if any.
    The Bureau received feedback from the public through its Know 
Before You Owe initiative that requested contact information on the 
disclosure to appear only on one part of the Closing Disclosure. Based 
on this feedback, the Bureau tested a prototype design with contact 
information for the creditor, mortgage broker, and other parties 
related to the transaction in one table. During consumer testing, 
consumers and industry participants found the contact information table 
useful and easy to follow, and indicated that it contained the basic 
information they needed to follow up with the various parties related 
to the transaction.
    Therefore, the Bureau is proposing to require that the Closing 
Disclosure contain a contact information table as set forth in proposed 
Sec.  1026.38(r) based on its authority under TILA section 105(a), 
RESPA section 19(a), Dodd-Frank Act section 1032(a) and, for 
residential mortgage loans, Dodd-Frank Act section 1405(b). The Bureau 
believes that the contact information table required to be disclosed 
under proposed Sec.  1026.38(r) will effectuate the purposes of TILA 
and RESPA by facilitating the informed use of credit and ensuring that 
consumers are provided with greater and more timely information on the 
costs of the closing process. Providing consumers with multiple types 
of contact information for the critical non-seller parties 
participating in the transaction will allow consumers easier access to 
information relevant to the transaction (including costs), which in 
turn enhances consumer understanding of the costs, benefits, and risks 
associated with the transaction in light of the facts and circumstances 
(which is consistent with Dodd-Frank Act section 1032(a)). The Bureau 
also believes such disclosure will improve consumers' awareness and 
understanding of residential mortgage transactions, which is in the 
interest of consumers and the public (which is consistent with Dodd-
Frank Act section 1405(b)).
    Moreover, the Bureau is proposing Sec.  1026.38(r) based on its 
mandate under sections 1032(f), 1098, and 1100A of the Dodd-Frank Act 
to propose rules and forms that combine the disclosures required under 
TILA and sections 4 and 5 of RESPA into a single, integrated disclosure 
for mortgage loan transactions covered by those laws. As discussed 
above, appendix C to Regulation X states that the RESPA GFE must 
include the name, address, phone number, and email address (if any) of 
the loan originator, and pursuant to appendix A to Regulation X, the 
RESPA settlement statement must include the name and mailing address of 
the lender and the name, address, and phone number of the settlement 
agent. Thus, as part of the Bureau's statutory mandate to integrate the 
TILA and RESPA disclosures, the Bureau must integrate the disclosures 
currently required under Regulation X with the TILA-mandated 
disclosures of the creditor's identity, discussed above.
    As noted above, TILA section 129B(b)(1)(B), as added by section 
1402

[[Page 51261]]

of the Dodd-Frank Act, provides that each mortgage originator must 
include on all loan documents any unique identifier of the mortgage 
originator provided by NMLSR. New TILA section 129B(b)(1)(B) will be 
implemented in a separate Bureau rulemaking concerning mortgage loan 
origination compensation. However, the Bureau is proposing to use its 
authority under TILA section 105(a), Dodd-Frank Act section 1032(a) 
and, for residential mortgage loans, Dodd-Frank section 1405(b) to 
include in the contact information table to be disclosed under Sec.  
1026.38(r) the NMLSR identification number for the creditors, mortgage 
brokers, and the individual persons employed by such entities, as 
applicable, since the additional information of the NMLSR and license 
numbers for State regulated settlement service providers will improve 
consumer awareness and understanding of transactions involving 
residential mortgage loans and is therefore in the interest of 
consumers and the public by providing the consumer with information 
about the licensing of the settlement service providers. In the 
integrated TILA-RESPA final rule, the Bureau expects to harmonize this 
proposal with its rulemaking implementing TILA section 129B(b)(1)(B).
    The Bureau also believes that the disclosure of contact information 
in a tabular format as required by proposed Sec.  1026.38(r) 
complements proposed Sec.  1026.19(f)(1)(ii), which requires delivery 
of the Closing Disclosure three business days prior to consummation. As 
noted above, proposed Sec.  1026.19(f)(1)(ii) reconciles the TILA and 
RESPA timing provisions by requiring that consumers be given the 
integrated disclosures three business days prior to consummation. 
During this three-business-day period, the consumer can review the 
Closing Disclosure, contact the creditor, closing agent, mortgage 
broker, and real estate brokers with questions regarding the 
information contained on the Closing Disclosure, and correct any errors 
prior to consummation. Thus, the contact information table required 
under proposed Sec.  1026.38(r) makes it easier for consumers to 
contact the critical non-seller parties participating in the 
transaction during the three-business-day period prior to consummation. 
The inclusion of primary contact email addresses in the table 
facilitates efficient communication between the consumer and the other 
parties.
    As applicable, the table required by proposed Sec.  1026.38(r) 
would include contact information for the creditor, the mortgage 
broker, the consumer's real estate broker, the seller's real estate 
broker, and the closing agent. The table would include the following 
contact information for each party, as applicable: Name, address, NMLSR 
identification/license number, name of primary contact, NMLSR 
identification/license number of the primary contact, email address of 
primary contact, and phone number of primary contact.
    Proposed comments 38(r)-1 through -6 provide additional guidance 
regarding these required disclosures. For instance, proposed comment 
38(r)-3 clarifies that the address disclosed in the contact information 
table is the identified party's place of business where the primary 
contact for the transaction is located (usually the local office), 
rather than a general corporate headquarters address. Similarly, 
proposed comment 38(r)-6 clarifies that the primary contact working at 
the identified party is the individual who interacts most frequently 
with the consumer and who has an NMLSR identification number or, if 
none, a license number, or other unique identifier to be disclosed 
under proposed Sec.  1026.38(r)(3) and (5), as applicable, and provides 
examples of the primary contact to be disclosed in a given transaction.
38(s) Signature Statement
    For the reasons and based on the legal authority set forth in the 
section-by-section analysis to proposed Sec.  1026.37(n), proposed 
Sec.  1026.38(s) implements the requirements of TILA section 
128(b)(2)(B)(i) for transactions subject to Sec.  1026.19(f). The 
disclosure requirements in proposed Sec.  1026.38(s) mirror the 
requirements in proposed Sec.  1026.37(n). Proposed comment 38(s)-1 
cross-references the commentary to proposed Sec.  1026.37(n) for 
guidance regarding optional signature requirements and signature lines 
for multiple consumers.
    During the Bureau's Small Business Review Panel, some industry 
participants expressed concern that consumers might be confused about 
the effect of signing the Closing Disclosure to acknowledge receipt. 
Small Business Review Panel Report at 29. Based on this feedback, the 
Panel recommended that the Bureau consider whether to revise the 
signature statement on the prototype form, or whether additional 
guidance should be provided to clarify the effect of a signature line 
on the consumer's legal obligation. Id. The Bureau has considered the 
Panel's recommendation and believes, based on several rounds of 
consumer testing, that consumers understand the disclosure in proposed 
Sec.  1026.38(s) to mean that they are not obligated to complete the 
loan transaction just because they signed the Closing Disclosure. As a 
result, the Bureau believes that the proposed disclosure is 
appropriate, but solicits comment on this issue.
38(t) Form of Disclosures
    As discussed above, the Bureau is proposing to exclude transactions 
subject to proposed Sec.  1026.19(f) from the coverage of Sec.  
1026.17(a) and (b). Consequently, the implementation of TILA sections 
122(a) and 128(b)(1) in Sec.  1026.17(a)(1), requiring that the 
disclosures be clear and conspicuous and that they be segregated from 
everything else, does not apply to the integrated disclosures set forth 
in Sec.  1026.38 under this proposal. As described in the analysis of 
proposed Sec.  1026.37(o), the Bureau, pursuant to its implementation 
authority under TILA section 105(a), proposes to implement the 
statutory segregation and clear and conspicuous requirements of TILA 
sections 122(a) and 128(b)(1) for the disclosure required by proposed 
Sec.  1026.38 in new Sec.  1026.38(t). The Bureau believes these 
requirements will assure a meaningful disclosure of credit terms so 
that the consumer will be able to compare more readily the various 
credit terms available to him and avoid the uninformed use of credit.
38(t)(1) General Requirements
    Similar to proposed Sec.  1026.37(o)(1), proposed Sec.  
1026.38(t)(1) establishes the requirements that the disclosures 
required by Sec.  1026.38 be clear and conspicuous, in writing, and 
grouped together, segregated from everything else, and provided on 
separate pages that are not commingled with any other documents or 
disclosures, including any other disclosures required by State or other 
laws. Proposed comment 38(t)-1 clarifies that the clear and conspicuous 
standard requires that the disclosures be legible and in a readily 
understandable form. This guidance is adopted from existing comment 
17(a)(1)-1. The comment also clarifies that proposed Sec.  
1026.37(o)(1) requires that the disclosures be grouped together, 
segregated from everything else, and provided on separate pages that 
are not commingled with any other documents or disclosures, including 
any other disclosures required by State or other laws. This requirement 
is stricter than the guidance found in existing comment 17(a)(1)-2, 
which provides that the disclosures may be grouped together and 
segregated from other information in a variety of ways other than a 
separate piece of paper.

[[Page 51262]]

    The Bureau recognizes that, in certain credit sale and other non-
mortgage, closed-end credit transactions, creditors include the 
disclosures required by Sec.  1026.18 in the loan contract or some 
other document and ensure that they are grouped together and segregated 
by outlining them in a box or other means authorized by comment 
17(a)(1)-2. However, as described above in the discussion of proposed 
Sec.  1026.37(o), the Bureau believes that this approach is virtually 
never employed for mortgage credit, for which the new disclosures under 
proposed Sec. Sec.  1026.19(f) and 1026.38, rather than Sec.  1026.18 
disclosures, are required. For the reasons stated in that discussion, 
the Bureau believes that requiring the Sec.  1026.38 disclosures to be 
delivered as a separate document does not present any significant new 
obligation that mortgage creditors do not already effectively observe 
and maximizes the benefits of the forms. The Bureau seeks comment, 
however, on whether there currently are transactions subject to Sec.  
1026.19(f) that may be burdened by the adoption of this requirement.
    Also, similar to proposed Sec.  1026.37(o)(1)(ii), proposed Sec.  
1026.38(t)(1)(ii) provides that the disclosures shall contain only the 
information required by Sec.  1026.38(a) through (s) and that they 
generally shall be made in the same order, and positioned relative to 
the master headings, headings, subheadings, labels, and similar 
designations in the same manner, as shown in form H-25. Proposed 
comment 38(t)-2 clarifies that the treatment of balloon payment loans 
with leasing characteristics.
38(t)(2) Estimated Disclosures
    Similar to proposed Sec.  1026.37(o)(2), proposed Sec.  
1026.38(t)(2) provides that, wherever form H-25 designates the required 
master heading, heading, subheading, label, or similar designation for 
a disclosure as ``estimated,'' that corresponding master heading, 
heading, subheading, label, or similar designation required by Sec.  
1026.38 must include the word ``estimated,'' even if the provision 
requiring such heading, label, or similar designation does not contain 
the word. Many of the items that are required to be only good faith 
estimates when included in the Sec.  1026.37 disclosures, in accordance 
with Sec.  1026.19(e), will be actual terms and costs when stated in 
the Sec.  1026.38 disclosures, as required by Sec.  1026.19(f). As 
noted above in the section-by-section analysis of proposed Sec.  
1026.37(o), many of the disclosure items required by Sec.  1026.38 
cross-reference their counterparts in Sec.  1026.37. To avoid confusion 
over which items must be designated as ``estimates,'' the content 
provisions of Sec.  1026.37 do not include in any of the master 
headings, headings, subheadings, labels, and similar designations the 
word ``estimated.'' Instead, proposed Sec.  1026.37(o)(2) effectively 
incorporates by reference the ``estimated'' designations reflected on 
form H-24 of appendix H to this part. Accordingly, proposed Sec.  
1026.38(t)(2) also incorporates by reference the ``estimated'' 
designations reflected on form H-25 of appendix H to this part. 
Proposed comment 38(t)(2)-1 provides guidance regarding the requirement 
to disclose certain amounts as estimated amounts based on the 
designations within form H-25.
38(t)(3) Form
    Similar to proposed Sec.  1026.37(o)(3), proposed Sec.  
1026.38(t)(3) also provides that, for a transaction that is a federally 
related mortgage loan, as defined in Regulation X, the disclosures must 
be made using form H-25 of appendix H to this part. Certain closed-end 
consumer credit transactions are subject to the requirements of 
proposed Sec.  1026.19(f) but do not fit the Regulation X definition of 
``federally related mortgage loan.'' These include construction-only 
loans with terms of less than two years that do not finance the 
transfer of title to the consumer and loans secured by vacant land on 
which a home will not be constructed or placed using the loan proceeds 
within two years after settlement of the loan. See Sec.  1024.5(b)(3) 
and (4). In addition, transactions subject to proposed Sec.  1026.19(f) 
but not subject to RESPA would include loans secured by non-residential 
real property, provided they have a consumer purpose as required by 
Sec.  1026.1(c)(1)(iv). See Sec.  1024.2, definition of ``federally 
related mortgage loan, paragraph (1)(i) (requiring that the securing 
property be ``residential real property'').
    As with transactions subject to proposed Sec.  1026.19(e), for such 
transactions that are subject to proposed Sec.  1026.19(f), because 
they are subject to TILA and are secured by real property, but that are 
not subject to RESPA, the Bureau is not mandating the use of form H-25 
as a standard form. TILA section 105(b) provides that nothing in TILA 
may be construed to require a creditor to use any model form or clause 
prescribed by the Bureau under that section. Accordingly, proposed 
Sec.  1026.38(t)(3) provides that, for transactions subject to Sec.  
1026.38 that are not federally related mortgage loans, the disclosures 
must be made with headings, content, and format substantially similar 
to form H-25 but does not mandate the use of that form. Consistent with 
TILA section 105(b), proposed comment 38(t)(3)-1 explains that, 
although use of the form as a standard form is not mandatory for such 
transactions, its use as a model form, if properly completed with 
accurate content, constitutes compliance with the clear and conspicuous 
and segregation requirements of Sec.  1026.38(t)(1).
    As discussed in the analysis of proposed Sec.  1026.37(o)(3), the 
Bureau is proposing the requirement that creditors use the standard 
form for federally related mortgage loans pursuant to RESPA section 
4(a), as amended by the Dodd-Frank Act. 12 U.S.C. 2603(a). As discussed 
above, although the Dodd-Frank Act eliminated one reference in RESPA 
section 4(a) to a ``standard'' form, it left the other such reference 
in place, as well as another such reference in section 4(c). More 
notably, in amending section 4(a), Congress did not include an explicit 
prohibition of a mandatory-use form. For this reason, the Bureau does 
not believe that Congress intended to eliminate standard-form authority 
from RESPA section 4.
    The Bureau also proposes the mandatory form pursuant to its 
authority in RESPA section 19(a) to prescribe such rules and 
regulations as may be necessary to achieve RESPA's purposes. 12 U.S.C. 
2617(a). RESPA's purposes include the establishment of more effective 
advance disclosure to home buyers and sellers of settlement costs. Id. 
2601(b)(1). The Bureau believes, based on consumer testing results, 
that the purpose of more effective advance disclosure of settlement 
costs is better achieved if all lenders provide those disclosures in a 
standardized format. In the Bureau's consumer testing, participants 
were able to compare the costs disclosed on the Loan Estimate and 
Closing Disclosure more easily when they were provided in a format that 
matched closely. In addition, participants better understood the costs 
disclosed in the Closing Disclosure after gaining experience using the 
matching format of the Loan Estimate. Further, disclosure of settlement 
costs alone, without the context provided by the credit terms, is far 
less effective in aiding consumer understanding of the transaction. 
This is consistent with HUD's rationale for including credit terms in 
the required GFE, in HUD's 2008 RESPA Final Rule. See 73 FR 68204, 
68214-15 (Nov. 17, 2008). This is also the stated purpose of the 
integrated disclosure under RESPA section 4(a).
    Accordingly, the Bureau is authorized under section 19(a) to 
require the

[[Page 51263]]

standard form for the disclosure of all of the information it contains, 
both settlement costs and credit terms alike. The Bureau uses this 
authority to require a standard form for federally related mortgage 
loans under proposed Sec.  1026.38(t)(3)(i). As described above, for 
transactions subject to proposed Sec.  1026.19(f), proposed Sec.  
1026.38(t)(3)(ii) uses the authority TILA section 105(b) to establish a 
model disclosure for credit transactions subject to TILA and not RESPA. 
For a detailed description of the Bureau's implementation of these 
rules and use of TILA section 105(a) authority, see the section-by-
section analysis of proposed Sec.  1026.37(o)(3).
    During the Small Business Review Panel, several settlement agents 
requested that the Bureau require the use of a standard integrated 
disclosure form. The settlement agents stated that if the forms were 
only models, creditors would establish inconsistent requirements, which 
would be more expensive for small settlement agents. See Small Business 
Review Panel Report at 19. Feedback requesting both standard and model 
forms was also submitted by industry trade associations in response to 
the Small Business Review Panel Outline. In consideration of the 
recommendation of the Small Business Review Panel, the Bureau seeks 
comment on the advantages, such as cost-saving benefits, and 
disadvantages of requiring a standard form for the Closing Disclosure 
for federally related mortgage loans and model forms for other credit 
transactions subject to proposed Sec.  1026.19(f). Id. at 28.
    Similar to proposed Sec.  1026.37(o)(3)(iii), proposed Sec.  
1026.38(t)(3)(iii) also provides that the disclosures may be provided 
in electronic form, subject to compliance with the Electronic 
Signatures in Global and National Commerce Act (15 U.S.C. 7001 et 
seq.). This provision parallels existing Sec.  1026.17(a)(1).
38(t)(4) Rounding
    Similar to proposed Sec.  1026.37(o)(4), proposed Sec.  
1026.38(t)(4) requires certain numerical amounts on the Closing 
Disclosure to be rounded. The Bureau proposes this requirement for the 
same reasons as the requirements of proposed Sec.  1026.37(o)(4), 
namely to reduce information overload, aid in consumer understanding of 
the transaction, prevent misconceptions regarding the accuracy of 
certain estimated amounts (e.g., estimated property costs over the life 
of the loan), and ensure a meaningful disclosure of credit terms. For a 
detailed description of the Bureau's use of its authority under TILA 
section 105(a), RESPA section 19(a), and section 1405(b) of the Dodd-
Frank Act in requiring rounded numbers on the integrated disclosures, 
see the analysis of proposed Sec.  1026.37(o)(4). Proposed comment 
38(t)(4)-1 clarifies that consistent with Sec.  1026.2(b)(4) all 
numbers are to be disclosed as exact numbers, unless required to be 
rounded by proposed Sec.  1026.38(t)(4). Proposed comment 38(t)(4)-2 
refers to commentary to proposed Sec.  1026.37(o)(4) for guidance.
38(t)(5) Exceptions
    The Bureau believes it must specify the changes to the format of 
the Closing Disclosure that are required and permissible, to ensure the 
disclosures provided to consumers convey the information required by 
proposed Sec.  1026.38 in a clear, understandable, and effective manner 
for consumers. Accordingly, pursuant to its authority under RESPA 
section 19(a), TILA section 105(a), and section 1032(a) of the Dodd-
Frank Act, the Bureau proposes Sec.  1026.38(t)(5) to provide for a 
specific list of exceptions to the format of the Closing Disclosure, as 
illustrated in form H-25 of appendix H to Regulation Z. For a detailed 
description of the Bureau's use of its authority under TILA section 
105(a), RESPA section 19(a), and section 1405(b) of the Dodd-Frank Act 
in providing for a list of exceptions to the required format, see the 
analysis of proposed Sec.  1026.37(o)(5).
    The requirements of proposed Sec.  1026.38(t)(5) mirror those of 
proposed Sec.  1026.37(o)(5), with appropriate differences for the 
different format, timing, and use of the two disclosures. Like proposed 
Sec.  1206.37(o), proposed Sec.  1026.38(t)(5)(i) requires modification 
to indicate the frequency of payment or applicable unit-period for the 
transaction; proposed Sec.  1026.38(t)(5)(ii) permits lender credits to 
be deleted from the Cash to Close disclosure required by proposed Sec.  
1026.38(d); proposed Sec.  1026.38(t)(5)(iii) permits the addition of 
administrative information in certain space on the form; and proposed 
Sec.  1026.38(t)(5)(ix) permits translation of the form into languages 
other than English.
    In contrast to proposed Sec.  1026.37(o), unlike proposed Sec.  
1026.37(o)(5)(iii), proposed Sec.  1026.38(t)(5) does not permit the 
font size or type to be altered from, or a slogan or logo to be 
provided for or with, the creditor information required by proposed 
Sec.  1026.38(a)(4)(iii).
    While proposed Sec.  1026.37(o)(5) does not permit the deletion of 
lines from the proposed form H-24 in appendix H to Regulation Z for the 
information required to be disclosed by proposed Sec.  1026.37(f) and 
(g), proposed Sec.  1026.38(t)(5)(iv) does permit the deletions of 
lines in certain circumstances from proposed form H-25 in appendix H to 
Regulation Z. While proposed Sec.  1026.37(o) does not permit the use 
of additional pages for closing cost details on the Loan Estimate, 
except for the services for which a consumer can shop under proposed 
Sec.  1026.37(f)(3), proposed Sec.  1026.38(t)(5)(v) does permits the 
expansion of the information required by proposed Sec.  1026.38(f), 
(g), and (h) over two pages in certain circumstances to accommodate the 
closing costs and itemization required on the Closing Disclosure, 
provided that the Loan Costs and Other Costs under proposed Sec.  
1026.38(f) and (g), respectively, are each disclosed on a single page.
    In addition, the Bureau understands that the Closing Disclosure may 
be provided to parties other than consumers, unlike the Loan Estimate. 
In light of privacy considerations that may arise, proposed Sec.  
1026.38(t)(5)(vi) permits the creditor or settlement agent preparing 
the disclosure to leave certain information regarding the consumer's 
transaction blank in the disclosure provided to the seller and vice 
versa. Similarly, proposed Sec.  1026.38(t)(5)(vii) permits the 
creditor or settlement agent preparing the disclosure to delete certain 
information regarding the consumer's transaction from the disclosure 
provided to a seller or third party. For example, proposed Sec.  
1026.38(t)(5)(vii) permits the disclosures regarding the consumer's 
credit transaction required by proposed Sec.  1026.38(l) through (s) to 
be deleted from the form provided to a seller. An illustration of such 
form is provided in proposed form H-25(I) in appendix H to Regulation 
Z. Further, considering that some credit transactions may not involve 
sellers, proposed Sec.  1026.38(t)(5)(viii) also permits use of a 
modified version of the form for credit transactions that do not 
involve a seller, such as a refinance transaction, which is illustrated 
in proposed form H-25(J). Proposed Sec.  1026.38(t)(5)(x) also permits 
the addition of a page for customary recitals and information used 
locally in real estate settlements.
    Proposed comment 38(t)(5)-1 clarifies that any changes not 
specified in proposed Sec.  1026.38(t)(5) may affect the substance, 
clarity, or meaningful sequence of the disclosure and cause the 
creditor to lose protection from civil liability under TILA. Similar to 
proposed comments 37(o)(t)-2 through -5, proposed comments 38(t)(5)-2 
through -5 provide guidance regarding manual completion of the form,

[[Page 51264]]

modifications to accommodate additional contact information, the 
addition of signature lines, and the formatting of additional pages 
permitted by Sec.  1026.38(t)(5). In addition, because certain 
disclosures required by proposed Sec.  1026.38 are permitted by 
proposed Sec.  1026.38(t) to be disclosed over two pages, even though 
they are illustrated on form H-25 of appendix H to this part as 
disclosed on one page, proposed comment 38(t)(5)-6 permits 
modifications to the page number references illustrated on form H-25 
accordingly.
    Proposed comment 38(t)(5)(iv)-1 provides guidance regarding the 
deletion and addition of line numbers on form H-25 for the disclosures 
requirements of Sec.  1026.38(f) through (h). Proposed comments 
38(t)(5)(v)-1 and -2 provide guidance regarding the permission to 
disclose the information required by proposed Sec.  1026.38(f) through 
(h) over two pages. Proposed comments 38(t)(5)(viii)-1 and -2 provide 
guidance regarding the effect of the modifications permitted by 
proposed Sec.  1026.38(t)(5)(viii) on the Calculating Cash to Close 
table required by proposed Sec.  1026.38(t)(i) and with respect to the 
disclosure required by proposed Sec.  1026.38(a)(3)(vii)(B). Proposed 
comment 38(t)(5)(x)-1 provides guidance regarding the permission to add 
an additional page for customary recitals and information.
Section 1026.39 Mortgage Transfer Disclosures
    Section 1414(d) of the Dodd-Frank Act amended TILA section 129C to 
add section 129C(h), which requires at the time a person becomes a 
creditor of an existing residential mortgage loan, disclosure of the 
following: (i) The creditor's policy regarding the acceptance of 
partial payments; and (ii) if they are accepted, how such payments will 
be applied to the mortgage loan and if such payments will be placed in 
escrow. 15 U.S.C. 1639c(h). This requirement is in addition to the 
identical disclosure required before settlement that was added to TILA 
by section 1414(d) of the Dodd-Frank Act, which the Bureau proposes to 
implement in proposed Sec.  1026.38(l)(5) pursuant to its authority 
under TILA section 105(a), as described above.
    Section 1401 of the Dodd-Frank Act amended TILA section 103 to 
define ``residential mortgage loan'' as essentially closed-end credit 
transactions secured by a dwelling or residential real property with a 
dwelling. Specifically, the definition includes any consumer credit 
transaction that is secured by a mortgage, deed of trust, or other 
equivalent consensual security interest on a dwelling, or residential 
real property that includes a dwelling, other than a consumer credit 
transaction under an open credit plan or, for purposes of certain 
sections of TILA, including TILA section 129C, timeshare plans 
described in section 101(53D) of title 11 of the United States Code. 15 
U.S.C. 1602(cc)(5).
    On May 20, 2009, the Helping Families Save Their Homes Act of 2009 
was signed into law.\188\ Section 404(a) of the Helping Families Save 
Their Homes Act of 2009 amended TILA to establish a new requirement for 
notifying consumers of the sale or transfer of their mortgage loans. 
The creditor that is the new owner or assignee of a mortgage loan must 
provide the required disclosures no later than 30 days after the date 
on which it acquired the loan. This provision is contained in TILA 
section 131(g), 15 U.S.C. 1641(g), and applies to any consumer credit 
transaction secured by the principal dwelling of a consumer. The Board 
implemented TILA section 131(g) in Regulation Z Sec.  1026.39.\189\
---------------------------------------------------------------------------

    \188\ Public Law 111-22, 123 Stat. 1632 (2009).
    \189\ 75 FR 58489 (Sept. 24, 2010).
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Scope of Coverage
    The disclosures required by TILA sections 129C(h) and 131(g) must 
be provided in connection with the transfer or assignment of a mortgage 
loan generally. However, the disclosures apply to different types of 
mortgage loans. The requirements in TILA section 131(g) apply to both 
closed-end credit transactions and open-end home equity lines of credit 
secured by the principal dwelling of a consumer. But the requirement of 
TILA section 129C(h) applies to closed-end credit secured by a dwelling 
or residential real property with a dwelling, which is broader than a 
consumer's principal dwelling, but specifically excludes open-end 
credit. Further, the TILA section 131(g) disclosure is specifically 
required by statute to be provided no later than 30 days after the date 
on which a mortgage loan is sold or otherwise transferred or assigned 
to a third party. TILA section 129C(h), on the other hand, simply 
provides that a new creditor of an existing residential mortgage loan 
must disclose its partial payment policy at the time the person becomes 
a creditor. In other words, TILA section 129C(h) requires the 
disclosure when the person acquires the loan.
    The Bureau believes that combining the partial payment policy 
disclosure required after consummation with the mortgage loan transfer 
disclosure currently required by Sec.  1026.39, and adjusting the scope 
of the mortgage loan transfer disclosure to include credit transactions 
secured by all dwellings, rather than principal dwellings only, would 
promote the informed use of credit by consumers and facilitate 
compliance by persons covered by these requirements. The disclosures 
regarding the identity of a consumer's new creditor, and the new 
creditor's partial payment policy, would be just as useful to a 
consumer whose closed-end credit transaction is secured by a second or 
vacation home as it would to a consumer whose closed-end loan is 
secured by a principal dwelling. In addition, adjustment of the scope 
of Sec.  1206.39 to include closed-end credit transactions secured by a 
dwelling would eliminate much of the analysis that covered persons 
would have to undertake to determine whether and which disclosures 
would be triggered when a closed-end transaction secured by a dwelling 
is transferred.
    The Bureau also proposes to adjust the scope of the current 
mortgage loan transfer disclosure to include closed-end credit 
transactions subject to proposed Sec.  1026.19(f) (i.e., closed-end 
transactions secured by real estate other than reverse mortgage 
transactions subject to Sec.  1026.33 of this part), as well as closed-
end transactions secured by a dwelling. This adjustment would expand 
the coverage of the mortgage loan transfer disclosure, and the post-
consummation partial payment policy disclosure, to the same types of 
property covered by the pre-consummation partial payment policy 
disclosure, which includes closed-end transactions secured by real 
estate but not a dwelling. The Bureau believes that requiring the post-
consummation partial payment policy disclosure for the same loans as 
the pre-consummation partial payment policy disclosure would promote 
the informed use of credit, because consumers who receive the 
disclosure before consummation would be informed if the policy has 
changed with the new ownership of the loan. In addition, the Bureau 
believes disclosures regarding the identity of a consumer's new 
creditor, and the new creditor's partial payment policy, would be just 
as useful to a consumer whose closed-end consumer credit transaction is 
secured by real estate that does not include a dwelling, or non-
residential real estate, as it would to a consumer whose closed-end 
loan is secured by a dwelling.
    This adjustment to the scope does not exclude reverse mortgage 
transactions subject to Sec.  1026.33, as does

[[Page 51265]]

Sec.  1026.19(f), as such transactions are not currently excluded from 
coverage under Sec.  1026.39 generally. However, reverse mortgage 
transactions do not require consumers to make regular periodic payments 
to the creditor, and thus, the Bureau proposes to exclude reverse 
mortgage transactions subject to Sec.  1026.33 from the requirement to 
disclose a partial payment policy. The Bureau believes this exclusion 
of reverse mortgage transactions from the partial payment disclosure is 
appropriate and facilitates compliance with the statute.
    In addition, although the scope also does not contain the specific 
exclusion for credit transactions relating to timeshare plans as 
described in 11 U.S.C. 101(53D), as defined by section 1401 of the 
Dodd-Frank Act, that the definition of ``residential mortgage loan'' 
does under TILA section 103, such transactions would generally be 
covered by proposed Sec.  1026.19(f) as transactions secured by real 
estate. The Bureau believes that a new creditor's partial payment 
policy would be just as useful to a consumer whose closed-end credit 
transaction is secured by a such a timeshare plan as to a consumer of a 
principal-dwelling secured transaction.
    The Bureau proposes the aforementioned adjustments pursuant to its 
authority under TILA section 105(a) to effectuate the purposes of TILA 
and Regulation Z and facilitate compliance with the statute. The Bureau 
believes this adjustment effectuates the purposes of TILA under TILA 
section 102(a), because it would ensure meaningful disclosure of credit 
terms to consumers and facilitate compliance with the statute. In 
addition, consistent with section 1032(a) of the Dodd-Frank Act, this 
adjustment would ensure that the features of consumer credit 
transactions secured by real property are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to understand the costs, benefits, and risks associated with the 
product or service, in light of the facts and circumstances. Further, 
the Bureau proposes this modification of the disclosure requirements 
for residential mortgage loans on its authority under Dodd-Frank Act 
section 1405(b), as it believes the modification may improve consumer 
awareness and understanding of transactions involving residential 
mortgage loans through the use of disclosures, and is in the interest 
of consumers and in the public interest.
39(a) Scope
    For the reasons discussed above, the Bureau proposes amendments to 
Sec.  1026.39(a) to expand the coverage of the disclosures required 
when ownership of a mortgage loan is transferred to closed-end credit 
transactions secured by a dwelling or real property. The Bureau 
proposes to retain the scope for open-end credit transactions to those 
secured by the consumer's principal dwelling.
    The Bureau is not proposing to change the scope of the term 
``covered person'' under Sec.  1026.39(a)(1). When the Board 
promulgated Sec.  1026.39, it applied the section to ``covered 
persons,'' rather than ``creditors'' as defined under TILA and 
Regulation Z.\190\ The Board stated that Congress did not intend the 
word ``creditor'' under section 404(a) of the Helping Families Save 
Their Homes Act of 2009 to have the same meaning as ``creditor'' under 
TILA and Regulation Z.\191\ The term ``creditor'' generally refers to a 
person to whom the credit obligation is initially made payable and that 
regularly engages in extending consumer credit. 15 U.S.C. 1602(g); 12 
CFR 1026.2(a)(17). However, as described above, the requirement of 
section 404(a) of the Helping Families Save Their Homes Act of 2009 
applies to a ``creditor that is the new owner or assignee of the 
debt.'' \192\ The Board concluded that ``to give effect to the 
legislative purpose, the term `creditor' in Section 404(a) must be 
construed to refer to the owner of the debt following the sale, 
transfer or assignment, without regard to whether that party would be a 
`creditor' for other purposes under TILA or Regulation Z.'' \193\ 
Similar to section 404(a) of the Helping Families Save Their Homes Act 
of 2009, the post-consummation disclosure requirement of TILA section 
129C(h) applies to persons who become creditors after the transaction 
is consummated. The requirement under TILA section 129C applies to ``a 
person becoming a creditor with respect to an existing residential 
mortgage loan.'' \194\ The Bureau believes that, for the same reasons 
cited by the Board in implementing TILA section 131(g), to give effect 
to the legislative purpose of section 1414(d) of the Dodd-Frank Act, 
the post-consummation disclosure requirement of TILA section 129C(h) 
should apply without regard to whether the person would be a 
``creditor'' under TILA and Regulation Z.\195\ For these reasons, the 
Bureau proposes to retain the term ``covered person'' under Sec.  
1026.39(a)(1) and its definition.
---------------------------------------------------------------------------

    \190\ Id.
    \191\ Id. at 58490-1.
    \192\ Public Law 111-22, Sec.  404(a); 15 U.S.C. 1641(g).
    \193\ 75 FR 58489, 58490-1.
    \194\ 15 U.S.C. 1639c(h).
    \195\ See 75 FR 58489, 58490-1.
---------------------------------------------------------------------------

39(d) Content of Required Disclosure
    As discussed above, the Bureau believes the adjustment to the scope 
of Sec.  1026.39 may promote the informed use of credit and facilitate 
compliance with the statute. The Bureau proposes amendments to Sec.  
1026.39(d) to add the additional requirement of TILA section 129C(h) to 
the disclosure required by that section. Pursuant to its authority 
under TILA Section 105(a), the Bureau proposes to integrate the timing 
of this disclosure requirement with the disclosure required by TILA 
section 131(g). The Bureau believes that consumers may be better 
informed regarding the transfer of ownership of their mortgage loans if 
the required disclosures integrated the information applicable to the 
new creditor into one single disclosure, rather than consumer having to 
receive separate mailings at different times. In addition, consistent 
with section 1032(a) of the Dodd-Frank Act, the integration of these 
disclosure requirements would ensure that the features of consumer 
credit transactions secured by real property are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to understand the costs, benefits, and risks associated with the 
product or service, in light of the facts and circumstances.
    The Bureau believes this integrated mortgage transfer disclosure 
will also facilitate compliance with the statute. Covered persons will 
have to analyze the timing requirements and scope of only one transfer 
disclosure, rather than two separate disclosures for one transfer of a 
mortgage loan. However, because the partial payment policy disclosure 
required by TILA section 129C(h) is not required for open-end credit 
transactions, and the pre-consummation partial payment policy 
disclosure as implemented by proposed Sec.  1026.38(l)(5) for loans 
subject to proposed Sec.  1026.19(f) is not required for closed-end 
credit reverse mortgage transactions subject to Sec.  1026.33, and for 
the aforementioned reasons, the partial payment policy disclosure 
requirement under proposed Sec.  1026.39(d) is not required for these 
types of transactions.
    The proposed amendments also add comment 39(d)-2, which clarifies 
that the partial payment policy disclosure is required only for closed-
end mortgage loans secured by a dwelling or real property, other than 
reverse mortgage transactions subject to Sec.  1026.33. Proposed 
comment 39(d)(5)-1 clarifies that covered persons are permitted to use 
the format for the disclosure that is

[[Page 51266]]

illustrated in proposed form H-25 of appendix H to Regulation Z for the 
information required to be disclosed by proposed Sec.  1026.38(l)(5), 
with appropriate modifications that do not affect the substance, 
clarity, or meaningful sequence of the disclosure.
Appendix D--Multiple Advance Construction Loans
    Currently, appendix D to Regulation Z provides guidance concerning 
the disclosure of multiple-advance construction loans, including such 
loans that may be permanently financed by the same creditor. Dodd-Frank 
Act section 1032(f) requires that the Bureau propose rules and forms 
that combine the disclosures required under TILA and RESPA sections 4 
and 5 into a single, integrated disclosure for mortgage loan 
transactions covered under TILA and RESPA. The Bureau proposes to 
exercise its authority under TILA section 105(a) and Dodd-Frank Act 
section 1405(b) to amend appendix D to Regulation Z by revising the 
guidance provided in that appendix D to assist in the integration of 
these disclosures. In addition to effectuating Dodd-Frank Act section 
1032(f), the Bureau believes that these proposed revisions are 
necessary and proper to effectuate the purposes of TILA by promoting 
the informed use of credit because the proposed revisions assist 
consumers' understanding of their legal obligations to the creditor. In 
addition, consistent with section 1405(b) of the Dodd-Frank Act, these 
revisions will improve consumer awareness and understanding of 
transactions involving residential mortgage loans and are therefore in 
the interest of consumers and the public.
    Proposed revisions to part II of appendix D exclude loans that are 
subject to Sec.  1026.19(e) and (f) from the guidance provided under 
paragraph A.1 of part II, but include those loans in the guidance 
provided under paragraph A.2 of part II. Proposed revised comment app. 
D-6 clarifies that some home construction loans that are secured by a 
dwelling are subject to Sec.  1026.18(s) and not Sec.  1026.18(g), with 
a reference to proposed comment app. D-7. One illustration of the 
application of appendix D to transactions subject to Sec.  1026.18(s) 
also clarifies that, where interest is payable on the amount actually 
advanced for the time it is outstanding, the construction phase must be 
disclosed pursuant to appendix D, part II.C.1, and the interest rate 
and payment summary table disclosed under Sec.  1026.18(s) in such 
cases must reflect only the permanent phase of the transaction.
    Proposed comment app. D-7 clarifies that some home construction 
loans that are secured by real property are subject to Sec. Sec.  
1026.37(c) and 1026.38(c) and not Sec.  1026.18(g). Under Sec.  
1026.17(c)(6)(ii), when a multiple-advance construction loan may be 
permanently financed by the same creditor, the construction phase and 
the permanent phase may be treated as either one transaction or more 
than one transaction. Two illustrations further clarify the application 
of appendix D to transactions subject to Sec. Sec.  1026.37(c) and 
1026.38(c).
    The first illustration clarifies that, if a creditor uses appendix 
D and elects pursuant to Sec.  1026.17(c)(6)(ii) to disclose the 
construction and permanent phases as separate transactions, the 
construction phase must be disclosed according to the rules in 
Sec. Sec.  1026.37(c) and 1026.38(c). Under Sec. Sec.  1026.37(c) and 
1026.38(c), the creditor must disclose the periodic payments during the 
construction phase in a projected payments table. The provision in 
appendix D, part I.A.3, which allows the creditor to omit the number 
and amounts of any interest payments ``in disclosing the payment 
schedule under Sec.  1026.18(g)'' does not apply because the 
transaction is governed by Sec. Sec.  1026.37(c) and 1026.38(c) rather 
than Sec.  1026.18(g). The creditor determines the amount of the 
interest-only payment to be made during the construction phase using 
the assumption in appendix D, part I.A.1. Also, because the 
construction phase is being disclosed as a separate transaction and its 
terms do not repay all principal, the creditor must disclose the 
construction phase transaction as a balloon product, pursuant to 
Sec. Sec.  1026.37(a)(10)(ii)(D) and 1026.38(a)(5)(iii), in addition to 
reflecting the balloon payment in the projected payments table. The 
second illustration clarifies that, if the creditor elects to disclose 
the construction and permanent phases as a single transaction, the 
repayment schedule must be disclosed pursuant to appendix D, part 
II.C.2. Under appendix D, part II.C.2, the projected payments table 
must reflect the interest-only payments during the construction phase 
in a first column, followed by the appropriate column(s) reflecting the 
amortizing payments for the permanent phase. The creditor determines 
the amount of the interest-only payment to be made during the 
construction phase using the assumption in appendix D, part II.A.1.
Appendix H--Closed-End Forms and Clauses
    The Bureau proposes to add forms H-24, H-25, H-26, and H-27 to 
appendix H to Regulation Z. Forms H-24 and H-25 provide blank forms for 
the Loan Estimate and Closing Disclosure illustrating the inclusion or 
exclusion of information as required, prohibited, or applicable under 
Sec. Sec.  1026.37 and 1026.38. In addition, form H-24 provides 
examples of completed Loan Estimates in whole or in relevant part for a 
fixed-rate transaction, an interest only adjustable-rate transaction, a 
refinance with a prepayment penalty, a loan with a balloon payment, and 
a loan with negative amortization. Form H-25 provides examples of 
completed Closing Disclosures in whole or in relevant part for a fixed-
rate transaction, a purchase transaction with funds from a second loan, 
a transaction in which a second loan is satisfied outside of closing, 
samples of a refinance transaction, and examples of the modifications 
to the Closing Disclosure permitted pursuant to proposed Sec.  
1026.38(t)(5)(v) through (viii).
    The Bureau proposes forms H-24 and H-25 pursuant to the authority 
and for the reasons described above with respect to Sec. Sec.  
1026.37(o) and 1026.38(t). Specifically, the Bureau proposes forms H-24 
and H-25 as standard forms that are required for transactions that are 
subject to proposed Sec.  1026.19(e) and (f) and are federally related 
mortgage loans, as defined in Regulation X. For transactions that are 
subject to proposed Sec.  1026.19(e) and (f) but are not federally 
related mortgage loans, the forms in H-24 and H-25 are models for 
compliance with the applicable requirements of Sec. Sec.  1026.19, 
1026.37, and 1026.38.\196\
---------------------------------------------------------------------------

    \196\ For these transactions, the Bureau also proposes these 
forms pursuant to its authority to publish model forms under TILA 
section 105(b) and (c).
---------------------------------------------------------------------------

    Transactions subject to Sec.  1026.19(e) are subject to additional 
disclosure requirements under proposed Sec.  1026.19(e)(1)(vi), 
(2)(ii), and (3)(ii)(C). Form H-26 provides a model for compliance with 
the statement required by proposed Sec.  1026.19(e)(2)(ii) if a 
creditor provides a written estimate of terms or costs specific to a 
consumer before the consumer receives the disclosures required under 
Sec.  1026.19(e)(1)(i) and indicates intent to proceed with the 
transaction. Consistent with Sec.  1026.19(e)(2)(ii), this statement 
must be placed at the top of the front of the first page of the 
estimate in a font size that is no smaller than 12-point font.
    Form H-27(A) provides a model for the written list of settlement 
service providers required by proposed Sec.  1026.19(e)(1)(vi) and the 
statement required by Sec.  1026.19(e)(3)(ii)(C) that

[[Page 51267]]

the consumer may select a settlement service provider that is not on 
the list. Forms H-27(B) and (C) are samples for this form. The Bureau 
proposes forms H-26 and H-27 pursuant to its authority to publish model 
forms under TILA section 105(b) and (c). The Bureau also proposes to 
make conforming amendments to samples H-13 and H-15 and their 
associated comments pursuant to its authority to publish model forms 
under TILA section 105(b) and (c).
    As noted above, during the Small Business Review Panel, several 
small business representatives requested that the Bureau provide 
detailed guidance on how to complete the integrated forms, including, 
as appropriate, samples of completed forms for a variety of loan 
transactions. See Small Business Review Panel Report at 28. Similar 
feedback was also submitted by several industry trade associations in 
response to the Small Business Review Panel Outline. Based on this 
feedback and consistent with the Small Business Review Panel's 
recommendation, the Bureau has proposed the examples described above, 
which of course, have added significant length to the proposed rule. 
The Bureau seeks comment on whether the number and types of examples 
are beneficial to industry or whether certain examples should be added 
to or deleted from the rule, including sample forms in other languages, 
such as Spanish.
    The Bureau has also received feedback from industry stakeholders 
during its outreach that samples of a construction-only transaction and 
a transaction with both a construction and permanent financing phase 
would be beneficial to industry. The Bureau has proposed amendments to 
appendix D to Regulation Z and its commentary, as described above, that 
relate to such construction financing and provide guidance regarding 
its disclosure on the Loan Estimate. The Bureau believes the proposed 
Forms H-24(C) and (E) provide the necessary illustration for such 
financing, because these samples contain the interest-only period and 
final balloon payment, respectively, which, as described above, are 
product features that would be disclosed in connection with such 
construction financing. The Bureau notes that one difference for the 
disclosure of such financing is that the purpose of the transaction 
disclosed under proposed Sec. Sec.  1026.37(a)(9) and 1026.38(a)(5)(ii) 
would be ``Construction.'' The Bureau seeks comment on whether, in 
light of the proposed amendments to appendix D and its commentary, 
additional samples for a construction-only or construction with 
permanent financing would be beneficial to industry.

VII. Section 1022(b)(2) Analysis

    In developing the proposed rule, the Bureau has considered 
potential benefits, costs, and impacts, and has consulted or offered to 
consult with the prudential regulators, the Department of Housing and 
Urban Development, and the Federal Trade Commission, including 
regarding consistency with any prudential, market, or systemic 
objectives administered by such agencies.\197\ The Bureau also held 
discussions with or solicited feedback from the United States 
Department of Agriculture Rural Housing Service, the Farm Credit 
Administration, the Federal Housing Administration, the Federal Housing 
Finance Agency, and the Department of Veterans Affairs regarding the 
potential impacts of the proposed rule on those entities' loan 
programs.
---------------------------------------------------------------------------

    \197\ Specifically, section 1022(b)(2)(A) of the Dodd-Frank Act 
calls for the Bureau to consider the potential benefits and costs of 
a regulation to consumers and covered persons, including the 
potential reduction of access by consumers to consumer financial 
products or services; the impact on depository institutions and 
credit unions with $10 billion or less in total assets as described 
in section 1026 of the Dodd-Frank Act; and the impact on consumers 
in rural areas.
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    The Bureau is proposing to implement section 1032(f) of the Dodd-
Frank Act by proposing rules and forms combining the pre-consummation 
TILA and RESPA disclosures for loans subject to either law or to both 
laws by July 21, 2012. Sections 1098 and 1100A of the Dodd-Frank Act, 
which revise RESPA and TILA, respectively, to mandate the integrated 
disclosures, state that the purposes of the disclosures are to 
facilitate compliance with the statutes and ``to aid the borrower or 
lessee in understanding the transaction by utilizing readily 
understandable language to simplify the technical nature of the 
disclosures.'' The Bureau is also proposing to implement several new 
disclosure requirements added to TILA and RESPA by the Dodd-Frank Act. 
In addition, the Bureau is proposing to revise current regulations 
implementing the pre-consummation disclosure requirements of TILA and 
RESPA to improve consumer understanding of mortgage transactions and 
upfront disclosure of loan costs and terms, consistent with the 
purposes of TILA and RESPA.
    TILA and RESPA currently require creditors and settlement agents to 
give consumers who take out mortgage loans different but overlapping 
disclosure forms regarding the loan's terms and costs. This duplication 
has long been recognized as inefficient and confusing for consumers and 
industry. Prior to the creation of the Bureau, the Board and HUD 
independently took steps to address these shortcomings, but neither 
agency had the authority to combine the duplicative disclosures. On 
July 21, 2011, the Dodd-Frank Act transferred authority over TILA and 
RESPA to the Bureau. As noted above, the Act specifically directs the 
Bureau to combine the TILA and RESPA mortgage disclosures.

A. Provisions To Be Analyzed

    The proposal contains both specific proposed provisions with 
regulatory or commentary language (proposed provisions) as well as 
requests for comment on modifications where regulatory or commentary 
language was not specifically included (additional proposed 
modifications). The analysis below considers the benefits, costs, and 
impacts of the following major proposed provisions and the additional 
proposed modifications:
    1. The integration of the initial and closing disclosures (the Loan 
Estimate and Closing Disclosure, respectively),
    2. The definition of application,
    3. The disclaimer on pre-application written estimates,
    4. Permissible changes to settlement costs and re-disclosure of 
initial disclosures,
    5. Provision of the Closing Disclosure,
    6. Recordkeeping,
    7. The definition of the finance charge, and
    8. Implementation of new disclosures mandated by the Dodd-Frank 
Act.

With respect to each provision, the analysis considers the benefits and 
costs to consumers and covered persons. The analysis also addresses 
certain alternative provisions that were considered by the Bureau in 
the development of the rule. The Bureau requests comments and data on 
the potential benefits, costs, and impacts of the proposal.

B. Baseline for Analysis

    The analysis examines the benefits, costs, and impacts of the major 
provisions of the proposed rule against a pre-statutory baseline. To 
the extent there are benefits, costs, or other relevant impacts 
emanating from the relevant provisions of the Dodd-Frank Act, those 
costs are combined with the benefits, costs, and impact of the 
regulation itself in conducting this analysis. The Bureau has 
discretion in future rulemakings to choose the most appropriate 
baseline for that particular rulemaking.

[[Page 51268]]

C. Coverage of the Proposal

    The proposed rule requires provision of the integrated disclosures 
for closed-end consumer credit transactions secured by real property, 
other than a reverse mortgage subject to Sec.  1026.33. As discussed in 
part VI above, section-by-section analysis for proposed Sec.  1026.19, 
the Dodd-Frank Act generally directs the Bureau to establish an 
integrated disclosure for ``mortgage loan transactions'' that are 
``subject to both or either provisions of'' RESPA sections 4 and 5 and 
TILA. However, TILA and RESPA differ in the types of transactions to 
which their respective disclosure requirements apply. The proposed 
scope of the integrated disclosure provisions reconciles these 
differences, recognizing that certain transaction types may be 
inappropriate for the integrated disclosure.
    Notably, the integrated disclosure provisions of the proposed rule 
do not apply to reverse mortgages and HELOCs, which are within the 
statutory scope of TILA and RESPA, because those transactions are 
fundamentally different from other types of mortgage credit. The 
integrated disclosure provisions also do not apply to dwellings that 
are not secured by real property, which are subject to TILA but not 
RESPA, nor to creditors that originate fewer than five loans in a year, 
who are subject to RESPA but not TILA. The integrated disclosure 
provisions do, however, apply to construction-only loans, vacant-land 
loans, and loans secured by more than 25 acres, although these 
transactions are currently exempt from RESPA coverage, because the 
Bureau believes that excluding these transactions would deprive 
consumers of the benefit of enhanced disclosures. The proposed 
revisions to the definition of finance charge, discussed below and in 
part VI, section-by-section analysis for Sec.  1026.4, apply to all 
closed-end credit transactions secured by real property or a dwelling.

D. Potential Benefits and Costs to Consumers and Covered Persons

1. Integrated Initial and Closing Disclosures
    The proposed rule requires that the Loan Estimate be provided to 
consumers within three business days after receipt of the consumer's 
application, to replace the early TILA disclosure and RESPA GFE, and 
that the Closing Disclosure be provided to consumers at least three 
business days prior to consummation, to replace the final TILA 
disclosure and RESPA settlement statement. As discussed above, TILA 
authorizes the Bureau to publish model forms for the TILA disclosures, 
while RESPA authorizes the Bureau to require the use of standard forms 
(e.g., the prescribed RESPA GFE and settlement statement forms). 
Accordingly, the Bureau is proposing to require the use of standard 
Loan Estimate and Closing Disclosure forms for mortgage loan 
transactions that are subject to RESPA, other than reverse mortgages. 
For transactions that are subject only to TILA, however, the forms 
would be model disclosures, consistent with the provisions of that 
statute. The proposed rule also incorporates prior informal guidance 
regarding compliance with HUD's 2008 Final RESPA Rule into Regulation Z 
and official commentary, as necessary and appropriate.
    In considering the benefits and costs of the Loan Estimate and 
Closing Disclosure, the Bureau notes that the costs associated with the 
proposal would likely be one-time costs associated with adjusting to 
the new requirements while the benefits would persist over time. Some 
of the benefits--the benefits to consumers of reduced mortgage costs--
may actually grow over time as more consumers pay off existing 
mortgages and take out new mortgages. The Bureau believes that because 
the proposed disclosures would likely lead to consumers making more 
informed choices, some of them would obtain mortgages that were lower 
cost than, or in some other way preferable to, the mortgages they would 
obtain otherwise. In particular, if consumers do obtain mortgages at a 
lower cost, these benefits accrue over time; as more borrowers take out 
loans with the new disclosures, the share of all mortgage borrowers 
receiving these benefits would grow.
a. Benefits to Consumers
    i. The Loan Estimate. The integration of the early TILA disclosure 
and the RESPA GFE into the Loan Estimate would have several benefits to 
consumers. The Bureau believes that the Loan Estimate would facilitate 
consumer understanding of the loan terms and closing costs of possible 
loans. The Loan Estimate would also make it easier for consumers to 
compare different loans, either different products from a single 
creditor or loans from different creditors. In addition, the 
harmonization of the Loan Estimate and Closing Disclosure forms would 
make it easier for consumers to compare the estimated information they 
initially receive from creditors with the actual costs of the loan. The 
benefits of this third effect are discussed below, in the section on 
the benefits of the Closing Disclosure.
    The Loan Estimate would make it easier for consumers to understand 
their loan in several ways. First, the Loan Estimate would make it 
easier for consumers to understand the loan terms and closing costs of 
potential loans. The Loan Estimate emphasizes information that is 
important to consumer understanding of the mortgage transaction, and 
deemphasizes information that is either confusing or unhelpful to 
consumers, such as the APR, which current TILA disclosures focus on as 
a measure of the cost of credit. As discussed in part VI above, 
section-by-section analysis for proposed Sec.  1026.37(l), research 
conducted by the Board and HUD, as well as consumer testing conducted 
by the Board and Bureau, indicate that consumers do not understand the 
APR or how to use it when comparing loans and often confuse the APR 
with the loan's interest rate. Instead, the Bureau's testing indicates 
that consumers focus on other information that is less prominently 
disclosed on current Federal disclosures than the APR, or that is not 
required on current Federal disclosures. See Macro 2009 Closed-End 
Report at iv-v. Accordingly, the Bureau developed the proposed Loan 
Estimate to prioritize and clearly display the information that 
consumers readily understand and is most important to them in 
understanding the loan and the underlying transaction, such as the 
interest rate, monthly payment amount, and settlement costs. The design 
displays this key information in a manner that enables consumers to 
locate it quickly on the form by using highly visible headings and 
labels and limiting the amount of text on the form. Based on the 
results of its consumer testing and outreach, described in part III 
above and in the Kleimann Testing Report, the Bureau believes the Loan 
Estimate is easier for consumers to use and understand.
    The Loan Estimate may also make it easier for consumers to 
understand the risks associated with a loan because the form emphasizes 
risk factors that are either less prominently disclosed or are not 
found on current Federal disclosures. For example, the first page of 
the Loan Estimate clearly discloses whether a loan will or may 
experience future changes to the interest rate, monthly payment amount, 
or to the loan's principal balance as a result of negative 
amortization, by using simple text and highly visible capitalized type 
in a bold font to indicate the possibility of such changes. These 
disclosures would help reduce the likelihood that consumers will 
experience payment

[[Page 51269]]

shock due to future payment changes. In addition, unlike current 
Federal forms, the Loan Estimate prominently discloses total monthly 
payment amounts, including estimated amounts for taxes, insurance, and 
assessments, whether or not an escrow account would be established for 
the payment of such amounts. This disclosure would make it easier for 
consumers to consider the loan and underlying real estate transaction's 
overall affordability, as compared to current Federal forms.
    The integration of the forms would also reduce the sheer volume of 
paper that consumers receive, mitigating ``information overload'' and 
making it easier for consumers to identify important information. With 
the current Federal disclosures, consumers need to work through four 
separate forms to compare two loan products, which amount to a total of 
ten pages. But with the Loan Estimate, consumers need to work with only 
two forms to compare two loan products, and only six total pages. In 
addition, because the format of the Loan Estimate prioritizes the 
information that consumers actually use to understand and compare 
loans, placing it on the first page, consumers could potentially 
compare two loans using only the first page of the Loan Estimate for 
each. The Bureau therefore believes that the Loan Estimate would be 
substantially more understandable for consumers than the current TILA 
disclosure and RESPA GFE and would enable consumers to make more 
informed choices when they are considering a mortgage.
    Better understanding of closing costs and loan terms would benefit 
consumers in several ways. It would help consumers to make better 
decisions about whether to take out a loan at all, which type of loan 
to take out, and which creditor to borrow from. Some consumers, such as 
those who may benefit slightly from refinancing or for whom whether to 
rent or buy is a difficult decision, will be close to the margin of 
taking out a loan or not taking out a loan. Improved understanding of 
the costs of borrowing will allow those consumers to make a more 
informed decision about whether to borrow.
    For consumers that are borrowing, a better understanding of closing 
costs and loan terms will enable them to better pick the loan product 
that suits their needs and circumstances. It may also enable consumers 
to identify loans with features that are only suitable for some 
consumers, such as negative amortization or balloon payments, and 
evaluate whether those features make sense for them. The Bureau is 
concerned that, prior to the mortgage crisis, some consumers entered 
into loans with such features when they were not suited to them because 
they were unaware of such features or the risk they posed.
    The forms may also facilitate shopping amongst loan offers and 
creditors, affecting both the evaluation of different offers and the 
number of offers consumers obtain. Existing research suggests that 
consumers arguably do not shop extensively when selecting a mortgage. 
Surveys of mortgage borrowers suggest that roughly 20-30 percent of 
borrowers contact one creditor and a similar fraction consider only two 
creditors.\198\
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    \198\ Jinkook Lee and Jeanne M. Hogarth, Consumer Information 
Search for Home Mortgages: Who, What, How Much, and What Else?, Fin. 
Services Rev. 9, 277-293 (2000), available at https://www2.stetson.edu/fsr/abstracts/vol_9_num3_p277.pdf; see also 
Lacko and Pappalardo, Improving Consumer Mortgage Disclosure, 
available at https://www.ftc.gov/os/2007/06/P025505MortgageDisclosureReport.pdf.
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    Further, available evidence indicates that some mortgage borrowers 
may have difficulty understanding or at least recalling details of 
their mortgage, particularly the terms and features of adjustable-rate 
mortgages.\199\ Making the terms of a given loan easier to understand 
would make it easier for consumers to compare loans. As noted above, 
the Loan Estimate prioritizes on the first page the information that 
consumers generally use to compare loans (e.g., interest rate, monthly 
payment, and closing costs). As discussed in part III, above, the 
Bureau conducted extensive qualitative consumer testing of the Loan 
Estimate to ensure that forms enable consumers to understand and 
compare the terms and costs of various loans. During the testing 
process, consumers were able to use the form to compare loans and 
select the loan that best met their preferences (e.g., a fixed rate or 
lower closing costs). In addition, Regulation Z currently uses model 
forms and language, not standard forms and language, so it does not 
ensure that consumers are presented information about loan terms and 
costs in the same way across multiple loans and multiple creditors. The 
proposed regulation would require that all creditors use a standard 
format for transactions that are subject to RESPA, which the Bureau 
understands to be the majority of mortgage transactions, making 
comparisons easier.
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    \199\ See Bucks and Pence, Do Homeowners Know Their House Values 
and Mortgage Terms, available at https://www.federalreserve.gov/Pubs/feds/2006/200603/200603pap.pdf; see also Lacko and Pappalardo.
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    Making it easier for consumers to compare products may have two 
effects. It may make shopping more effective, leading consumers to make 
better choices for themselves amongst a given set of loans. It may also 
lead to more shopping, because the task of comparing loans is simpler. 
The estimated benefits of shopping for mortgages and for settlement 
services are substantial. Hall and Woodward estimate that the borrowers 
who obtain loans through mortgage brokers could save roughly $1,000 on 
the transaction through additional search.\200\
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    \200\ Hall and Woodward, Diagnosing Consumer Confusion and Sub-
Optimal Shopping Effort: Theory and Mortgage-Market Evidence (2012), 
available at https://www.stanford.edu/~rehall/
DiagnosingConsumerConfusionJune2012. In the data used in the paper, 
yield spread premiums are common. As a result, the results may 
overstate some of the current savings from changes in shopping 
behavior. However, these results only include settlement charges 
retained by the broker and therefore any savings on other charges 
are additive to these.
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    In addition to providing consumers with clear information about 
important loan terms and closing costs, the Loan Estimate makes clear 
to consumers which settlement services they can shop for. To the extent 
that consumers use this information to shop for some settlement 
services, they may identify service providers that offer better prices 
or better suit their needs than settlement service providers selected 
by the creditor. In a recently released study of title services and 
title insurance based on RESPA settlement statements for FHA loans, HUD 
and the Urban Institute estimate that borrowers in some jurisdictions 
could save several hundred dollars if they searched for title services 
and title insurance.\201\
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    \201\ U.S. Department of Housing and Urban Development and The 
Urban Institute, What Explains Variation in Title Charges? A Study 
of Five Large Markets (2012) (HUD Title Charge Study), available at 
https://www.huduser.org/portal/publications/hsgfin/title_charges_2012.html.
---------------------------------------------------------------------------

    ii. The Closing Disclosure. The Bureau believes that the 
integration of the final TILA disclosure and the RESPA settlement 
statement would benefit consumers by allowing them to better understand 
the actual terms of their loan and the other costs of the loan 
transaction. As with the Loan Estimate, the Bureau developed the 
integrated Closing Disclosure through several rounds of form design and 
testing.
    The Bureau believes that the Closing Disclosure is more 
understandable for consumers than the current TILA disclosure and RESPA 
settlement statement and, as described below, the proposal would 
include a requirement that the Closing Disclosure be provided to 
consumers three business days prior to closing, giving consumers time 
to review the Closing Disclosure.

[[Page 51270]]

    The Bureau also believes the Closing Disclosure would improve the 
ability of consumers to compare the terms and costs on the Loan 
Estimate with the actual loan terms and closing costs. The Bureau 
designed the Loan Estimate and Closing Disclosure to work together; the 
two forms use consistent formatting and language to facilitate 
consumers' ability to identify any changes that occurred during the 
underwriting process. For example, the first page of the Loan Estimate, 
where key loan terms are disclosed to consumers, is nearly identical to 
the first page of the Closing Disclosure, and the first page of the 
Closing Disclosure specifically directs consumers to compare the two 
forms. The second page of the Loan Estimate and Closing Disclosure also 
use the same order and groupings of costs, making it easier for 
consumers to identify changes. At the Bureau's consumer testing, 
consumers were able to use the second pages of the Loan Estimate and 
Closing Disclosure together to identify changes in individual costs, 
often placing the forms side by side, which was enabled by the matching 
order and groupings. In addition, page three of the Closing Disclosure 
contains a table that identifies categories of costs that changed from 
the time the Loan Estimate was issued to the time of issuance of the 
Closing Disclosure. The Bureau believes these features would improve 
consumers' ability to understand their actual loan terms and costs, and 
compare early and final disclosures and identify changes in loan terms, 
which may better enable consumers to recognize and question changes in 
settlement costs or loan terms from the Loan Estimate. This may 
encourage all creditors to take care to ensure that Loan Estimates are 
accurate and may discourage unscrupulous creditors from attempting to 
``bait and switch'' consumers with initial Loan Estimates that have 
better loan terms or lower settlement costs than the final transaction.
b. Magnitude of the Benefits to Consumers of the Revised Disclosures
    Quantifying the magnitude of the benefits of the new Loan Estimate 
or Closing Disclosure would be very challenging. With regard to the 
Loan Estimate, important factors in the magnitude of the benefits to 
consumers would include: (1) How many consumers avoid loans that do not 
suit their needs; (2) how much more consumers shop; (3) how much more 
effective that shopping would be; and (4) how those changes in behavior 
would translate into changes in the overall market for mortgage loans. 
The Bureau is unaware of data that would make possible reliable 
estimates of these effects. There is some evidence showing that slight 
increases in shopping--just contacting one more creditor or loan 
originator--can lead to substantial savings for a consumer. See Hall 
and Woodward. This evidence is based on market conditions with current 
consumer shopping behavior, however, so it is difficult to project to 
the effects of shopping if many consumers shopped more.
    Similarly, quantifying the magnitude of the benefits of the 
integrated Closing Disclosure would also be very challenging. The 
Bureau is unaware of any data that can provide reliable market-wide 
estimates of the prevalence of changes between early TILA disclosures 
and RESPA GFEs and final loan terms and closing costs. As described 
below, however, the Bureau may obtain a substantial sample of these 
forms from several lenders prior to finalizing the proposal. This would 
provide the Bureau with better information about this phenomenon. Other 
important factors affecting the consumer benefits of improved final 
disclosures include how much the Closing Disclosure would affect 
whether consumers recognize those changes or how they react to them and 
the effects on creditors' and settlement service providers' behavior.
    Despite the challenges to quantifying the benefits of the Loan 
Estimate or Closing Disclosure, simple hypothetical calculations 
demonstrate that, because the mortgage market is so large, even very 
small effects on improving consumers' ability to make informed 
decisions or small effects on prices from greater shopping would lead 
to large savings for consumers. For example, if the new disclosures 
only affect ten percent of consumers, and only lower their interest 
rates by .125% (\1/8\ of a percentage point, the smallest typical unit 
of price difference in the mortgage market), this would lead to an 
annual savings of $1,250,000,000 for mortgage borrowers if all 
mortgages were originated with the proposed disclosures and total 
outstanding mortgage balances were to remain at their current level of 
roughly $10 trillion. If consumers were to benefit from a reduction in 
costs like this, some of the savings would come from reduced profits to 
creditors and brokers, as creditors and brokers receive lower prices 
from better-informed consumers, while other savings would come from a 
shift of business from less efficient to more efficient creditors and 
brokers. The reallocation to more efficient creditors and brokers that 
can originate loans at lower cost represents a savings to society in 
terms of the total resources used to originate loans.
    A similar hypothetical can illustrate the potential effects of the 
improved ability of consumers to better understand closing costs. 
Bankrate.com collects information on average closing costs, as 
estimated on creditor RESPA GFEs, by State, for a $200,000 mortgage. It 
shows that average closing costs on such a mortgage, including lender 
fees, vary from roughly $2,300 to roughly $5,000. Taking average 
closing costs of $3,000, for example, if a consumer was able to use the 
Loan Estimate to shop more effectively for loans that came with lower 
closing costs or to shop for the various settlement services themselves 
and thereby obtain a loan with closing costs five percent lower, this 
would translate into savings of $150. This assumption seems reasonable, 
given the HUD and Urban Institute estimates that borrowers in some 
jurisdictions could save several hundred dollars by shopping for these 
services. See HUD Title Charge Study. The most recent year for which 
detailed mortgage origination information is available is 2010. The 
Bureau estimates that there were a total of about 8,000,000 mortgages 
originated that year. If ten percent of consumers saved $150 each, it 
would translate into roughly $120,000,000 per year. As with any savings 
on loan costs, these savings would come from a mix of reduced profits 
to settlement service providers and from shifting demand from less 
efficient to more efficient providers.
c. Costs to Consumers
    The Bureau does not believe that adoption of the integrated Loan 
Estimate or Closing Disclosure would impose any direct costs on 
consumers. Consumers may bear some costs of the disclosures if lenders 
or loan originators pass through some or all of the costs that would be 
imposed on them by the proposal. However, the Bureau estimates that any 
increased cost per origination would be small and that, after one-time 
costs are absorbed, the proposal would likely reduce the cost per 
origination. Therefore, the Bureau does not anticipate any material 
adverse effect on credit access in the long or short term. Over the 
longer term, the rule could increase credit access if the expected cost 
savings materialize and competition forces lenders to pass the savings 
to consumers.
    Requiring the use of standard Loan Estimate and Closing Disclosure 
forms has the potential to impose costs on some consumers if it 
supplants forms

[[Page 51271]]

that are currently in use by creditors or mortgage brokers that are 
more effective at conveying information to consumers than the proposed 
forms, or if the requirement to use the forms prevents the development 
of more effective forms. The Bureau does not believe that there is a 
substantial risk of this occurring. Current Regulation X prescribes a 
standard form for the RESPA GFE and settlement statement. Although 
Regulation Z provides model forms and language rather than standard 
forms, the Bureau understands that many creditors do not provide 
disclosures that differ significantly from the model forms and language 
in Regulation Z due to the complexity of the Regulation Z disclosure 
requirements and the safe harbor provision in TILA section 105(b). 
Therefore, creditors are limited in their ability to develop forms that 
are substantially better at conveying information to consumers. The 
Bureau is unaware of any efforts by creditors of the scale undertaken 
by the Bureau to develop and test disclosures. And creditors that do 
believe that they can communicate loan terms or other important 
information more effectively than the required forms would not be 
prevented from doing so, so long as they also provide the required 
forms and communicate that information separately from the required 
forms.
d. Benefits to Covered Persons
    The integration of the early TILA disclosure and the RESPA GFE, and 
the revised TILA disclosure and the RESPA settlement statement, may 
benefit creditors, mortgage brokers, and settlement agents that provide 
the disclosures. It will reduce the number of disclosures that covered 
persons need to prepare and provide and the number of disclosure-
provision systems and processes that covered persons need to maintain. 
In addition, the three-page Loan Estimate would replace a three-page 
RESPA GFE, a two-page early TILA disclosure, a one-page appraisal 
notification provided under ECOA section 701(e), and a one-page 
servicing disclosure provided under RESPA section 6, as well as 
incorporating other new disclosure requirements in the Dodd-Frank Act 
that might otherwise be provided as separate documents.
    Most small entities that participated in the Small Business Review 
Panel process stated that the integrated forms would make it easier to 
explain transactions to consumers. One letter from several small entity 
settlement agents indicated that the new forms could actually lead to 
more questions during a closing; however, the Bureau is alternatively 
proposing and soliciting comment on removing from the integrated forms 
certain disclosures, such as the total interest percentage and cost of 
funds, which may be difficult to explain to consumers. Information 
submitted by several settlement agents indicates that requiring the use 
of standard forms and providing clearer regulatory guidance could save 
as much as 30 minutes per closing by standardizing practices across 
lenders and reducing confusion. Based on industry estimates, the 
typical hourly wage of a settlement agent is $31 per hour; therefore, 
this translates into a dollar savings from the simplified closing forms 
of $16.50 per closing. Some portion of these savings would likely be 
passed on to the consumers.
    The integrated disclosures also permit creditors to consolidate 
certain numerical calculations. For example, Regulations Z and X 
currently require two different calculations for the disclosure of 
monthly payment information on the early TILA disclosure and the RESPA 
GFE. The integrated Loan Estimate consolidates these calculations into 
one monthly payment disclosure, which may facilitate compliance and 
ease burden on covered persons. Other examples of overlapping but 
potentially different numerical disclosures required under Regulations 
Z and X include information about balloon payments and prepayment 
penalties.
e. Costs to Covered Persons
    As just described, the Bureau believes that the ongoing costs of 
compliance with the proposed disclosure requirements would likely be 
equal to or less than current ongoing compliance costs. The integrated 
Loan Estimate and the Closing Disclosure, however, would result in 
certain one-time costs to revise software and compliance systems. The 
Bureau believes that many of the costs of complying with these 
requirements would be common across the two disclosures, and therefore 
discusses them together here. Under the proposal, responsibility for 
delivering the Loan Estimate would lie with the creditor. The Bureau 
believes that in some circumstances the Loan Estimate may be delivered 
by a mortgage broker acting on behalf of the creditor, as is currently 
the case with the RESPA GFE. The Bureau believes the costs would be 
similar for Loan Estimates delivered by brokers, and the estimates 
presented here are based on the assumption that the creditor delivers 
the Loan Estimate. The Bureau is proposing two alternatives for the 
provision of the Closing Disclosure. Under the first alternative, the 
creditor would be solely responsible for providing the disclosure to 
the consumer. Under the second alternative, the creditor and the 
settlement agent would be jointly responsible. For the purposes of this 
analysis, the Bureau is assuming that the creditor will bear the costs 
of revising software and compliance systems. If, instead, settlement 
agents bore those costs, the costs would likely be similar, although 
borne by different parties.\202\ The Bureau requests comment on this 
approach to estimating costs, including whether mortgage brokers and 
settlement agents would incur costs that are substantially different 
from those incurred by creditors if they were responsible for providing 
the disclosures.
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    \202\ As described below, two major vendors currently provide 
software services to the vast majority of small mortgage originators 
to produce the RESPA GFE and initial TILA disclosures. RESPA 
settlement statements are currently issued by settlement agents 
using software provided by a different, but similarly small, set of 
vendors; however, the Bureau understands that the originators' 
systems are capable of producing the RESPA settlement statements. As 
a result, the Bureau believes that it is reasonable to measure costs 
assuming that the originators' vendors will provide both the Loan 
Estimate and the Closing Disclosure to their clients under existing 
contracts. Were the current software providers for settlement agents 
to have to update their systems (under the second alternative or 
under other contractual arrangements), those vendors would have to 
incur the stated costs.
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    Creditors would need to adapt their software and compliance systems 
to produce the new forms. In addition to changing the format of the 
required forms, the new proposed forms would include numerous new 
disclosures that are required by the Dodd-Frank Act. The Bureau 
believes that this additional information would be added to the forms 
as part of the process of adapting software and compliance systems to 
produce the new forms, and therefore does not provide separate 
estimates for the costs of this additional information.
    Based on information provided by creditors and by software vendors, 
the Bureau believes that, in general, larger creditors develop and 
maintain their own compliance software and systems, while smaller 
creditors primarily rely on software and compliance systems provided by 
outside vendors. Based on industry feedback, the Bureau believes that 
roughly the top 20 mortgage originators maintain their own systems, 
while 95 percent of smaller creditors (those outside the top 50) rely 
on vendors.
    Mid-size creditors (those roughly ranked between 20 and 50 in 
origination volume) are served by a range of vendors, and in some cases 
have

[[Page 51272]]

customized systems provided by these vendors. For the purposes of this 
analysis, the Bureau treats all creditors outside the top 20 the same.
    The use of vendors by smaller creditors will substantially mitigate 
the costs of revising software and compliance systems, as the efforts 
of a single vendor would address the needs of a large number of 
creditors. There are two primary vendors of this software to mortgage 
creditors outside the top 50. Based on discussions with vendors that 
provide software and compliance systems to mortgage lenders, the Bureau 
estimates that each of these vendors would spend roughly $500,000 to 
$2,000,000 to determine what changes need to be made to come into 
compliance and to update the software that they provide to creditors. 
Based on discussions with a leading origination technology provider, 
the Bureau believes that these updates, however, would likely be 
included in regular annual updates, and therefore the costs would not 
be directly passed on to the client creditors.\203\ As many as 95 
percent of creditors outside the top 20, therefore, would not pay 
directly for software updates to comply with the new rules.
---------------------------------------------------------------------------

    \203\ Note that the vendors themselves are not covered persons.
---------------------------------------------------------------------------

    Based on estimates from small entities that participated in the 
Small Business Review Panel process, the Bureau estimates that the 
small fraction of smaller creditors that maintain their own compliance 
software and systems would incur costs of roughly $100,000 to update 
their systems to comply with the proposal. Firms are expected to 
amortize this cost over a period of years. In this analysis, all costs 
are amortized over five years, using a simple straight-line 
amortization. Thus, about five percent of smaller creditors are 
expected to incur a cost of $20,000 per year. The Bureau estimates that 
there were a total of 14,374 banks, savings institutions, credit 
unions, and mortgage companies that originated mortgages in 2010,\204\ 
the most recent year for which complete data are available, for a total 
of 14,354 outside the top 20.\205\ The total one-time cost for the 
roughly five percent of smaller creditors that maintain their own 
compliance software and systems is therefore $100,000 * 14,354 * 5% = 
$71,800,000 (rounded to the nearest $100,000). Amortized over five 
years, the estimated total annual cost for this small fraction of small 
creditors to update compliance systems is about $14,360,000 for all 
small creditors combined.
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    \204\ As discussed above, this analysis assumes that the 
creditor, rather than a mortgage broker, delivers the Loan Estimate 
and that the creditor also delivers the Closing Disclosure, rather 
than sharing responsibility for delivery with a settlement agent. 
Accordingly, the Bureau excludes mortgage brokers and settlement 
agents from this calculation.
    \205\ Creditors and originator estimates based on analysis of 
HMDA, SNL Call Reports, NCUA Call Reports, and NMLS Call Reports. 
See part VIII below for additional details.
---------------------------------------------------------------------------

    The largest 20 mortgage creditors would need to revise their 
compliance software and systems. Based on information from 
conversations with large creditors and with software vendors, the costs 
to these creditors of updating compliance software and systems would 
vary considerably with the size and complexity of the institution. The 
Bureau estimates that on average the cost per creditor for this 
category of creditor would be $1,000,000, for a total of $20,000,000. 
Amortized over five years, the estimated annual cost for large 
creditors to update compliance systems is $4,000,000 for the largest 20 
mortgage creditors combined.
    Covered persons would incur one-time costs associated with training 
employees to use new forms and any new compliance software and systems. 
The Bureau estimates that each loan officer or other loan originator 
will need to receive two hours of training, and that one trainer could 
train ten loan officers at a time, for an additional one hour of 
trainer time per ten hours of trainee time. The Bureau estimates that 
there are approximately 83,000 loan officers and other originators that 
would need training. Based on data from the Bureau of Labor Statistics, 
the Bureau estimates that the average total compensation is $46 per 
hour for a loan officer and $39 per hour for a trainer, for a total 
training cost of (83,000 * 2 * $46) + (8,300 * 2 * $39) = $8,300,000 
(rounded to the nearest $100,000). Amortized over five years, this is 
an annual cost of $1,660,000 for all mortgage creditors combined.
    Taken together, the Bureau estimates that the total one-time costs 
of complying with the proposed Loan Estimate and Closing Disclosure 
would be roughly $100,100,000. Amortized over five years, this is an 
annual cost of $20,020,000 for all mortgage creditors combined. For 
additional perspective, there were approximately 8,000,000 mortgage 
originations in 2010. The estimated one-time cost, annualized using a 
five-year amortization, is therefore less than three dollars per 
origination. Note that these costs would not recur, and the Bureau 
expects that ongoing costs would be equal to or less than current 
compliance costs.
    The proposed rule also requires itemization of certain settlement 
charges that are not permitted to be itemized on the current RESPA GFE 
and settlement statement forms, which may lead to increased costs for 
covered persons. In its 2008 RESPA Final Rule, HUD predicted that 
removing itemization from the disclosures would relieve creditors from 
preparing lengthy lists of fees and addressing consumer questions about 
such fees. 73 FR at 68276. However, the Bureau understands that 
creditors and settlement agents often provide this itemization on 
separate disclosures currently to comply with State law or investor 
requirements, which mitigates any increased costs associated with 
itemization.
2. Definition of Loan Application
    The proposed rule revises the regulatory definition of loan 
application to encourage earlier provision of the Loan Estimate to 
consumers.
    Under TILA and RESPA, a creditor or mortgage broker is not required 
to provide the good faith estimates of loan terms and settlement costs 
in the early TILA disclosure and RESPA GFE until it has received an 
``application.'' As discussed more fully in part VI above, section-by-
section analysis for proposed Sec.  1026.2(a)(3), under current 
regulations, the receipt of the following information by the creditor 
or mortgage broker constitutes receipt of an ``application'': (1) 
Borrower's name; (2) monthly income; (3) social security number to 
obtain a credit report; (4) the property address; (5) an estimate of 
the value of the property; (6) loan amount sought; and (7) any other 
information deemed necessary by the lender. The seventh item could 
allow creditors and mortgage brokers to delay providing the integrated 
Loan Estimate until relatively late in the loan process by delaying 
collection of information deemed ``necessary.'' The Bureau understands 
that some creditors currently provide non-binding written estimates of 
loan terms or settlement charges prior to issuing the early TILA 
disclosure or RESPA GFE. The current rules encourage creditors and 
mortgage brokers to provide the good faith estimates early in the loan 
process by prohibiting creditors from collecting any fees from a 
consumer (other than a credit report fee) until the estimates are 
provided. To further encourage early provision of estimates, the 
proposed rule removes the seventh item (``any other information deemed 
necessary by the lender'') from the definition of ``application.''
a. Benefits to Consumers
    The Bureau believes that the proposed rule may benefit consumers by 
ensuring

[[Page 51273]]

that consumers receive Loan Estimates early enough in the lending 
process to use them in shopping for their loan. Removing the seventh 
item may allow consumers to receive Loan Estimates that are subject to 
the limitations on increases discussed above with respect to proposed 
Sec.  1026.19(e)(3) earlier in the lending process, whereas today 
consumers may receive only informal estimates that are not subject to 
those protections. Improved consumer shopping for mortgages may result 
in lower costs to consumers. As described above, the Bureau cannot 
estimate the magnitude of the benefits of improved shopping, but 
believes that they could be very large. The Bureau also believes that 
the Loan Estimate is a better shopping tool for consumers than informal 
estimates provided to consumers prior to receipt of the consumers' 
application, both because it was developed through an extensive testing 
and design process and because certain costs disclosed in the Loan 
Estimate are subject to limitations on increases, described below. The 
Bureau believes that lenders will be able to provide reliable estimates 
based on the six items that together would constitute an application 
under the proposal and that, by receiving more reliable cost estimates 
earlier in the mortgage lending process, consumers would be less 
frequently surprised by increases in costs near the time of closing. 
However, the Bureau seeks input and information on whether the proposed 
change to the definition of application would result in less accurate 
estimates, or in more frequent re-disclosures that could cause consumer 
confusion.
b. Costs to Consumers
    The Bureau does not believe that eliminating the seventh item in 
the definition of application would lead to costs to consumers beyond 
any costs that are passed through to consumers by creditors or loan 
originators.
c. Costs to Covered Persons
    The Bureau understands that eliminating creditors' and mortgage 
brokers' ability to wait to provide a good faith estimate until after 
they receive ``any other information deemed necessary'' could increase 
the burden on creditors and mortgage brokers to the extent that it 
causes them to issue more Loan Estimates than they would under the 
current definition of application. If a creditor or mortgage broker 
obtains additional information from the consumer after the Loan 
Estimate has been issued that affects the costs of the settlement 
service for the loan, the creditor may need to issue a revised Loan 
Estimate. The Bureau is unaware of information that would allow it to 
estimate how often this would occur. The Bureau believes, however, if 
this were to impose substantial costs, creditors and mortgage brokers 
would mitigate this by adjusting their business practices surrounding 
the receipt of applications to gather other important information prior 
to, or at the same time as, they obtain the six items that together 
constitute an ``application.'' As discussed in section F, below, the 
Bureau is working to obtain such data prior to issuing a final rule and 
is seeking comment on its plans for data analysis, as well as 
additional data and comment relevant to this issue.
    In developing the proposed rule, the Bureau also considered 
removing additional items from the regulatory definition of 
``application.'' However, the Bureau does not believe the other items 
in the current definition of application raise similar concerns 
regarding creditors' ability to delay provision of the early 
disclosures. Furthermore, the Bureau believes that many or all of the 
six items may be necessary for a creditor to provide reliable estimates 
in many circumstances.
3. Disclaimer on Pre-Application Estimates
    The Bureau is proposing to require that any pre-application, 
consumer-specific written estimate of loan terms or settlement charges 
contain a prominent disclaimer indicating that the document is not the 
Loan Estimate required by TILA and RESPA. This requirement would not 
apply to general advertisements.
a. Benefits to Consumers
    The Bureau believes that the disclaimer may benefit consumers by 
clearly distinguishing disclosures that are subject to TILA and RESPA 
protections from those that are not.
b. Costs to Consumers
    This new disclosure requirement could impose costs on consumers, in 
the form of reduced information about mortgage loan options, if it 
makes creditors or mortgage brokers less willing to provide written 
pre-application estimates of loan terms. The Bureau believes, however, 
that any such effect on creditors or mortgage brokers would be small or 
non-existent, especially when they are acting in good faith.
c. Costs to Covered Persons
    To the extent covered persons currently provide such pre-
application written estimates to consumers they would bear the costs of 
adding a disclaimer to those communications. However, the Bureau 
expects such costs to be de minimis since the Bureau is proposing a 
brief, standard statement for use by creditors, which should not 
require significant redesign of existing estimate materials or require 
additional pages.
4. Changes in Settlement Costs/Redisclosures
    The proposed rule revises current rules regarding the circumstances 
in which a consumer may be charged more at closing for settlement 
services than the creditor estimated in the disclosure provided to the 
consumer three business days after application.
    As discussed more fully in part VI, section-by-section analysis for 
proposed Sec.  1026.19(e)(3), HUD's 2008 RESPA Final Rule limits the 
circumstances in which a creditor can charge the consumer more at 
consummation for settlement services than the creditor estimated in the 
RESPA GFE provided to the consumer three business days after 
application. These rules generally place charges into three categories: 
The creditor's charges for its own services, which cannot exceed the 
creditor's estimates unless an exception applies (``zero tolerance''); 
charges for settlement services provided by third parties, which cannot 
exceed estimated amounts by more than ten percent unless an exception 
applies (``ten percent tolerance''); and other charges that are not 
subject to any limitation on increases (``no tolerance''). The rule 
permits certain limited exceptions in which higher charges are 
permitted, such as when the consumer requests a change, when the RESPA 
GFE expires, or when valid changes in circumstance occur. The Bureau is 
aware of concerns that HUD's 2008 RESPA Final Rule is both too lax and 
too restrictive, and also that the rule is difficult to understand. The 
proposed rule attempts to address these concerns by balancing the 
objective of improving the reliability of the estimates creditors give 
consumers shortly after application with the objective of preserving 
creditors' flexibility to respond to unanticipated changes that occur 
during the loan process. Specifically, the proposed rule applies the 
zero tolerance category to a larger range of charges, including fees 
charged by an affiliate of the creditor and charges for services for 
which the creditor does not permit the consumer to shop. A service 
provider would be considered selected by the creditor if consumers are 
required to choose only from a list of service providers prepared

[[Page 51274]]

by the creditor (i.e., if consumers are not permitted to shop for their 
own provider).
    In developing the proposed rule, the Bureau considered narrowing 
the exceptions permitting increases in settlement charges in order to 
restrict the ability of a creditor to charge more for its own services 
or for third-party settlement services than the creditor initially 
estimated. However, the Bureau is concerned that this approach could 
prevent creditors from increasing settlement charges to reflect 
justifiable increases in costs. The Bureau also considered preserving 
HUD's 2008 RESPA Final Rule in its entirety. However, as discussed 
above, the Bureau believes that the rule can likely be improved by 
requiring creditors to provide consumers with more accurate estimates 
of settlement charges and reducing compliance burden for industry.
a. Benefits to Consumers
    The Bureau believes that consumers may benefit when fewer fees are 
permitted to change from the Loan Estimate. Consumers that rely on the 
Loan Estimate to shop for a loan would be able to make decisions based 
on estimated costs that more closely reflect the actual costs they 
would bear, making shopping more effective. For some consumers, such as 
those considering a refinancing that they may or may not decide to take 
out, more reliable information may allow them to make a better-informed 
decision about whether to take out a loan at all. Firmer fee estimates 
may also reduce ``gaming'' by unscrupulous creditors that provide low-
ball initial estimates and then impose new or different charges near 
the time of consummation.
    The Bureau cannot quantify the magnitude of these benefits. The 
Bureau is unaware of any data that can provide reliable market-wide 
estimates of the prevalence of changes between early TILA disclosures 
and RESPA GFEs and final loan terms and closing costs or of the causes 
for those changes that occur. As noted above, the Bureau may obtain 
data on a sample of TILA disclosures and RESPA GFEs from several 
lenders, which would provide additional information about this issue.
    For a sense of the scale of the potential impact, it is worth 
considering an extreme hypothetical example where all of the settlement 
services move from the ten percent tolerance category to the zero 
tolerance category. This is unlikely to happen in practice, but 
illustrates the largest possible effect of the regulatory change. For a 
loan with a total of $3,000 in settlement costs, the maximum effect of 
the proposal would be that the creditor could not pass on $300 in cost 
increases that occurred without an exception allowing the increase to 
be passed on to the consumer.
    Expanding the set of costs covered by the zero tolerance may also 
benefit consumers by giving creditors an incentive to control the costs 
imposed by third parties. Currently, creditors have limited incentives 
to control third-party costs. By applying the zero tolerance category 
to a larger range of charges, including charges by affiliates of the 
creditor, creditors are required to absorb more increases in costs 
(when no exception applies), and may seek to minimize the chance that 
these increases would occur. Creditors are in a better position than 
consumers to control these costs, as they are much more familiar with 
these markets than are typical consumers, and they are likely to have 
ongoing relationships with settlement service providers that give them 
some ability to encourage these providers not to charge more than the 
initial estimate.
b. Costs to Consumers
    The expansion of the set of costs that are subject to a zero 
tolerance could impose costs on some consumers. The restriction on 
changes to these costs may cause some creditors to provide higher 
initial estimates, making shopping less effective as consumers rely on 
less accurate information. The Bureau believes, however, that these 
effects are likely to be mitigated by competitive pressures that 
encourage brokers and creditors not to inflate cost estimates.
c. Benefits to Covered Persons
    Covered persons may benefit from the proposed rule because it 
reduces compliance burden by resolving current regulatory ambiguities. 
For example, the proposed rule makes clear that creditors need not 
reissue Loan Estimates unless and until the costs that are subject to 
the ten percent tolerance standard increase based on valid changes in 
circumstance by more than ten percent in total. The proposed rule also 
revises the rule and provides more guidance to facilitate use of 
average cost pricing and reconciles certain inconsistencies between 
RESPA and TILA terminology. The proposed rule further streamlines and 
clarifies HUD's 2008 RESPA Final Rule by incorporating prior HUD 
guidance into Regulation Z and its commentary, as necessary and 
appropriate. Further, to the extent the proposed rule reduces 
unnecessary redisclosure of the RESPA content currently provided on the 
GFE, the rule would decrease costs to creditors, although the extent to 
which the proposed rule would have such an effect is unknown. Reducing 
unnecessary redisclosure may also benefit consumers, to the extent that 
redisclosures lead to consumer confusion.
    The Bureau is unaware of reliable data showing how often creditors 
are providing additional disclosures that are not required by the 
current rule and that they would no longer send if the rules were 
clarified. As discussed in section F, below, the Bureau is working to 
obtain such data prior to issuing a final rule and is seeking comment 
on its plans for data analysis, as well as additional data and comment 
relevant to this issue. Some creditors, however, have reported that 
additional clarity regarding redisclosure requirements for the RESPA 
GFE and average cost pricing would reduce the cost of compliance, in 
part, by reducing confusion over when redisclosure is permitted or 
required, and thereby reducing the need for legal advice.
    To the extent that restricting certain changes in fees reduces 
bait-and-switch tactics by some creditors, this provision may also 
benefit honest creditors that do not use these tactics.
d. Costs to Covered Persons
    The Bureau understands that covered persons may experience 
increased costs as a result of a rule that applied the zero tolerance 
category to a larger range of charges. Since the proposed rule would 
expand the circumstances in which creditors could not pass increased 
costs to consumers when the initial estimate is lower than the actual 
costs but there is not a legitimate change in circumstances or other 
exception, creditors may be required to absorb more costs. This impact 
should be mitigated to the extent creditors are in a position to know 
the typical charges of affiliated firms and firms they engage 
repeatedly and require consumers to use, and can therefore provide 
estimates that are accurate when there is no changed circumstance. As 
discussed above, the Bureau is unaware of any data that can provide 
reliable market-wide estimates of the prevalence of changes between 
early TILA disclosures and RESPA GFEs and final loan terms and closing 
costs, and the causes of those changes. Therefore, the Bureau cannot 
provide estimates of how often creditors would have to absorb higher 
than expected costs that cannot be attributed to a changed 
circumstance. The discussion of average settlement costs provided in 
the ``Consumer Benefits'' section applies here, as well,

[[Page 51275]]

suggesting that these costs to creditors would be quite modest.
    The Bureau also understands that the proposed rule may result in 
increased use of affiliated service providers, so that creditors can 
more directly control changes in settlement costs, which could have a 
negative impact on independent providers. Some have argued that the 
negative impact on independent providers could lead to reduced 
competition for settlement services and ultimately higher costs. The 
Bureau is unaware of any evidence that the ultimate increase in costs 
is likely to occur. Alternatively, the proposed rule may encourage 
creditors to allow consumers to choose settlement service providers 
that are not on a list provided to the consumer (although in this case 
the creditor would be required to provide consumers with a list of 
settlement service providers that the consumers could use, if they so 
choose), so that the zero tolerance requirement would not apply. This 
would appear to benefit independent service providers, or at least be 
neutral relative to current practices.
5. Provision of Closing Disclosure
    The proposed rule requires delivery of the integrated Closing 
Disclosure three business days before consummation in all cases. 
However, the Bureau is proposing two alternative approaches for 
assigning responsibility for providing the integrated Closing 
Disclosure to the consumer. Alternative 1 places sole responsibility 
for provision of the Closing Disclosure on the creditor, while 
Alternative 2 makes the creditor and settlement agent jointly 
responsible for providing the Closing Disclosure.
a. Timing of Closing Disclosure Provision
    TILA and RESPA establish different timing requirements for 
disclosing final loan terms and costs to consumers. As discussed more 
fully in part VI, section-by-section analysis for proposed Sec.  
1026.19(f), TILA generally provides that, if the early disclosures 
contain an APR that is no longer accurate, the creditor shall furnish 
an additional, corrected disclosure to the consumer not later than 
three business days before consummation. RESPA, on the other hand, 
requires that the final statement of loan costs and terms is provided 
to the consumer at or before settlement. To meet the Dodd-Frank Act's 
mandate to integrate the disclosures required by TILA and RESPA, and to 
better facilitate consumer understanding of the costs, the proposed 
rule would require delivery of the integrated Closing Disclosure three 
business days before closing in all circumstances. However, to prevent 
unnecessary closing delays, the proposed rule would permit limited 
changes after provision of the Closing Disclosure to reflect common 
adjustments, such as changes to recording fees. In addition, reissuance 
of the Closing Disclosure and an additional three-business day waiting 
period would not be required if, during the three business days after 
issuance of the Closing Disclosure, the amount needed to close shown on 
the Closing Disclosure increases by $100 or less.
    i. Benefits to Consumers. Consumers may benefit from the proposed 
rule because it would ensure that consumers receive the disclosures far 
enough in advance of consummation that they can review the final 
details of the transaction. Together with the improved clarity of the 
Closing Disclosure and the comparability of the Loan Estimate and the 
Closing Disclosure, this should allow consumers to have a better 
understanding of the final terms of the transaction and how and whether 
those terms have changed since the consumer received the Loan Estimate. 
Improved ability to compare early and final disclosures and identify 
changes in loan terms may better enable consumers to recognize and 
challenge increased settlement costs or loan terms that are different 
from the initial disclosure. This may encourage all creditors to take 
greater care to ensure that Loan Estimates are accurate and may 
discourage unscrupulous creditors from attempting to ``bait and 
switch'' consumers with initial Loan Estimates that have better loan 
terms or lower settlement costs than the final transaction. Some of 
these changes are not permissible under the current or revised 
regulation, but making it easier for consumers to identify these 
changes may provide an additional incentive for creditors to avoid such 
changes.
    The Bureau cannot quantify the magnitude of the benefits of the 
three-day period for consumers to review the integrated Closing 
Disclosure. The Bureau is unaware of any data that can provide reliable 
market-wide estimates of the prevalence of changes between early TILA 
disclosures and RESPA GFEs and final loan terms and closing costs. The 
Bureau also does not know how much the three-day period would improve 
consumers' ability to recognize those changes or how consumers would 
react to changes, or the effects on creditors' behavior.
    ii. Costs to Consumers. The proposal to require provision of the 
Closing Disclosure three business days prior to consummation in all 
circumstances may result in closing delays, which could come at a cost 
to consumers. In extreme cases, such delays could cause a transaction 
to fall through if a consumer is under a contractual obligation to 
close by a certain date. Creditors and closing agents, however, 
currently coordinate to provide RESPA closing documents at closing. 
Both closing agents and creditors would have incentives to complete 
closings as scheduled, and therefore the Bureau believes that they 
would adjust their business practices such that the Closing Disclosure 
could be provided in a timely manner and closing problems would be 
infrequent.
    iii. Costs to Covered Persons. If the requirement does lead to 
delayed or canceled closings, this would impose costs on covered 
persons as well. Such closing delays could result in loss of revenue 
for transactions that fall through due to a delay. The proposed rule 
may also create legal and reputational risks for creditors or 
settlement agents that are unable to close loans as planned.
    iv. Alternatives Considered. In developing the proposed rule, the 
Bureau considered requiring provision of the Closing Disclosure three 
business days before closing only when the APR in the Loan Estimate 
increases beyond a tolerance or certain risky features are added to the 
loan. In all other circumstances, the Closing Disclosure would have 
been provided at or before closing. However, the Bureau is concerned 
that this approach would allow significant increases in the cash needed 
to close the transaction without sufficient notice to consumers. 
Further, the Bureau has received feedback indicating that the APR 
estimates included in the early TILA disclosures typically change by 
more than \1/8\ of 1 percent, such that most creditors provide 
corrected disclosures as a standard business practice, rather than 
analyzing the accuracy of the disclosed APR. Therefore, the Bureau 
believes that any additional burden associated with requiring the 
disclosure three business days before closing in all cases is small 
given current creditor practices. In addition, the Bureau considered 
expanding current rules allowing consumers to waive the three-business 
day waiting period in cases of bona fide personal financial emergency. 
However, the Bureau is concerned that such an expansion would be 
subject to abuse.
b. Responsibility for Providing the Closing Disclosure
    TILA and RESPA require that different parties provide the final 
disclosures to consumers. Specifically, TILA requires the creditor to 
provide

[[Page 51276]]

the TILA disclosures to consumers, while RESPA requires that the person 
conducting the settlement provide the final statement of settlement 
costs to the consumer. However, section 1419 of the Dodd-Frank Act 
amended TILA to make creditors responsible for disclosing settlement 
cost information. See TILA section 128(a)(17). To reconcile these 
statutory differences and implement TILA section 128(a)(17), the Bureau 
is proposing two alternative approaches for assigning responsibility 
for provision of the integrated Closing Disclosure to consumers. Under 
Alternative 1, the creditor would be solely responsible for delivering 
the Closing Disclosure to the consumer. Under Alternative 2, the 
creditor and settlement agent would be jointly responsible for 
providing the consumer with an integrated Closing Disclosure three 
business days before closing.
    i. Benefits and Costs to Consumers. The Bureau believes that 
consumer benefits and costs would not differ between the two proposals, 
so long as disclosures are accurate and provided in a timely manner.
    ii. Benefits to Covered Persons. Because the difference between 
Alternatives 1 and 2 is about which party would be responsible for 
providing a disclosure, the relative benefits of each proposal to 
different covered persons are likely to consist of avoided costs. The 
most useful way to consider these alternatives, therefore, is to 
consider their respective costs.
    iii. Costs to Covered Persons--Alternative 1. Alternative 1 would 
likely place increased costs on creditors. As discussed above, RESPA 
and current Regulation X require that the person conducting the 
settlement provide the RESPA-required disclosures to consumers at or 
before consummation. Since, under Alternative 1, the creditor would be 
responsible for provision of both the TILA and RESPA content to the 
consumer, the creditor would incur additional logistical burden and 
legal risk. Creditors and settlement agents may incur one-time legal 
fees under Alternative 1, since those entities may need to 
contractually stipulate their respective duties or amend existing 
contractual arrangements in light of the rule. Creditors may also need 
to hire additional staff to handle the increased workload associated 
with collecting the settlement costs and coordinating with the 
settlement agents and third party service providers and preparing the 
disclosures. However, since the current regulatory scheme of split 
responsibility, as well as the different roles of creditors and 
settlement agents in the transaction, already requires a great deal of 
coordination, it is not clear that giving the creditor sole 
responsibility for providing the disclosures would impose much 
additional burden. As a general matter, shifting responsibility for 
delivery of final RESPA disclosures from settlement agents to creditors 
may change the role of settlement agents, though the exact impact of 
such a rule is unclear. Settlement agents play a unique role in working 
through local real estate transaction requirements and practices, which 
creditors may be unlikely to take on.
    iv. Costs to Covered Persons--Alternative 2. The costs to creditors 
and to settlement agents under the proposed alternative that gives 
joint responsibility for provision of the Closing Disclosure to 
creditors and settlement agents would depend on how creditors and 
settlement agents go about fulfilling the joint requirement. Joint 
provision would likely require coordination on the part of creditors 
and settlement agents similar to what is done today. One additional 
cost, however, may entail re-working that coordination to adjust to the 
new forms and timing requirement (discussed above).
    v. Alternative Considered. In developing the proposed rule, the 
Bureau also considered an alternative under which the settlement agent 
would have sole responsibility for providing the Closing Disclosure to 
the consumer. However, the Bureau is concerned that settlement agents 
do not have access to much of the information regarding loan terms that 
must be included in the Closing Disclosure. In addition, in response to 
industry feedback, the Bureau considered an approach that would 
bifurcate the Closing Disclosure into TILA-required and RESPA-required 
disclosures. However, the Bureau is concerned that such an approach 
would be confusing for consumers, would be impracticable and result in 
additional regulatory burden because of the amount of overlap between 
TILA and RESPA disclosures, and is inconsistent with the Dodd-Frank Act 
requirement to integrate the disclosures.
6. Recordkeeping of Machine Readable Data
    The proposed rule imposes new data retention requirements for the 
Loan Estimate and the Closing Disclosure by requiring creditors to 
maintain evidence of compliance in machine readable, electronic format. 
The proposed retention period is three years for the Loan Estimates and 
five years for the Closing Disclosures. See proposed Sec.  1026.25.
a. Benefits to Consumers
    The proposed rule may benefit consumers because comprehensive data 
on the extent to which settlement costs and loan terms change between 
the initial and final disclosures may improve the ability of the Bureau 
and other regulators to monitor compliance with applicable requirements 
and to evaluate whether the rules adequately protect consumers against 
impermissible changes in settlement costs and loan terms.
b. Costs to Consumers
    The Bureau does not believe the recordkeeping requirements would 
lead to costs to consumers, beyond any costs that are passed through to 
consumers by creditors or loan originators.
c. Benefits to Covered Persons
    A prescribed electronic format may reduce costs across the entire 
mortgage loan origination industry due to the efficiency gains 
associated with a standardized data format. Based on industry feedback, 
the Bureau understands that creditors, mortgage brokers, title 
companies, investors, and other mortgage technology providers use 
systems with proprietary data formats. As a result, data must be 
translated between formats as it is transmitted from one point to 
another throughout the mortgage loan origination process. A standard 
format should lower those coordination costs. In addition, a standard 
format may also facilitate innovation in the financial services 
industry by making it easier for technology companies to create new 
programs that improve the mortgage origination process and lower 
industry costs, instead of tailoring programs to each firm's unique 
proprietary data format; may lower ongoing costs by facilitating 
industry adoption of mortgage documentation technology and reducing 
industry's reliance on paper files; and may ease the burden of staff 
time and resources devoted to on-site supervisory examinations by 
allowing for remote examinations of compliance. All of these benefits 
may reduce industry cost and burden in the long run, thereby reducing 
costs to consumers as well.
    The Bureau is aware that there are various efforts currently 
underway to standardize the format for storage and transmission of 
mortgage origination-related data. To the extent that the Bureau's 
proposal may advance these efforts toward a standard electronic record 
format, the proposal may help eliminate multiple data formats, thereby 
increasing efficiency in the origination

[[Page 51277]]

process, reducing industry costs in the long term, and reducing costs 
to consumers. Also, the Bureau is aware that many firms currently face 
significant internal costs for maintaining multiple internal 
technological systems. To the extent the Bureau's efforts reduce 
uncertainly regarding the eventual standard, a single data format 
specified by the Bureau may lower costs by enabling creditors to 
migrate from older data formats to a single, standard data format.
d. Costs to Covered Persons
    The proposed rule may result in costs to covered persons. Under 
current rules, creditors must retain evidence of compliance with the 
disclosure requirements in Regulation X (i.e., a copy of the RESPA 
settlement statement) and Regulation Z (i.e., evidence of compliance 
generally) for five years and two years, respectively, but are not 
required to maintain such evidence an electronic, readable format. 12 
CFR 1024.10(e); 1026.25. Based on industry feedback, the Bureau 
understands that firms currently rely on electronic systems for most 
aspects of the mortgage loan origination process, including electronic 
record creation and storage. Not all lenders currently maintain data in 
a machine-readable format, and those who do may not retain it in the 
format that may ultimately be adopted. To comply with the proposed 
record retention provisions, therefore, creditors may be required to 
reconfigure existing document production and retention systems. For 
creditors that maintain their own compliance systems and software, the 
Bureau does not believe that adding the capacity to maintain data in a 
standard machine readable format will impose a substantial burden, as 
the only requirement will be to output existing data to a new format 
and then store that data. The Bureau believes that the primary cost 
will be one-time systems changes that could be accomplished at the same 
time that systems changes are carried out to comply with the new 
proposed Loan Estimate and Closing Disclosure. Similarly, creditors 
that rely on vendors would likely rely on vendor software and systems 
to comply with the data retention requirement; at least one vendor 
already offers indefinite data storage to customers that use their Web-
based origination services.
    The Bureau estimates that creditors with existing electronic 
storage systems would need to expend 40 hours of software and IT staff 
time to develop the ability to export data from existing systems to a 
standardized format. This would apply to the creditors that maintain 
their own systems--the 20 largest and five percent of other creditors 
(14,354*0.05 = 718, rounded to the nearest whole entity)--for a total 
of (718+20)*40 = 29,520 hours. Assuming an hourly labor cost of 
software and IT staff of $54, based on information from the Bureau of 
Labor Statistics, gives a total dollar cost of 29,520*$54 = $1,600,000 
(rounded to nearest $100,000). Amortized over five years, this is an 
annual cost of roughly $320,000 for all mortgage creditors combined. 
Compared to total mortgage originations of 8,000,000 per year, this 
amounts to pennies per origination.
    The Bureau understands that requiring standardized, electronic 
records may be a significant burden for covered persons that do not 
currently have such electronic filing systems. To reduce the burden on 
small entities, the Bureau is considering an exemption from the 
electronic data retention requirements. See part VI, section-by-section 
analysis for proposed Sec.  1026.25.
7. Expanded Definition of Finance Charge
    The proposed rule expands the definition of the finance charge for 
closed-end transactions secured by real property or a dwelling, 
consistent with the Board's 2009 Closed-End Proposal.
    As discussed more fully in part VI, section-by-section analysis for 
proposed Sec.  1026.4, TILA and current Regulation Z exclude many types 
of charges from the finance charge, particularly for mortgage 
transactions. Concerns have long been raised that these exclusions 
undermine the potential usefulness of the finance charge and 
corresponding APR as a tool for consumers to compare the total cost of 
one loan to another. In addition, these exclusions create compliance 
burden and litigation risk for creditors and may encourage creditors to 
shift the cost of credit to excluded fees, a practice that is 
inefficient.
a. Proposed Definition of Finance Charge and Other Federal Regulation
    The Bureau recognizes that the proposed more inclusive finance 
charge could affect coverage under other laws, such as higher-priced 
mortgage loan and HOEPA protections, and that a more inclusive finance 
charge has implications for the HOEPA, Escrows, Appraisals, and Ability 
to Repay rulemakings identified in part II.F above. Absent further 
action by the Bureau, the more inclusive finance charge would:
     Cause more closed-end loans to trigger HOEPA protections 
for high-cost loans.\206\ The protections include special disclosures, 
restrictions on certain loan features and lender practices, and 
strengthened consumer remedies. The more inclusive finance charge would 
affect both the points and fees test (which currently uses the finance 
charge as its starting point) and the APR test (which under Dodd-Frank 
will depend on comparisons to the average prime offer rate (APOR)) for 
defining what constitutes a high-cost loan.
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    \206\ Under the Dodd-Frank Act, a loan is defined as a high-cost 
mortgage, subject to HOEPA protections, if the total points and fees 
payable in connection with the transaction exceed specified 
thresholds (points and fees coverage test); the transaction's APR 
exceeds the applicable APOR by a specified threshold (APR coverage 
test); or if the transaction has certain prepayment penalties. 
First, under the points and fees coverage test, the definition of 
points and fees includes, as its starting point, all items included 
in the finance charge. Therefore, a potential consequence of the 
more inclusive finance charge is that more loans might exceed 
HOEPA's points and fees threshold because new categories of charges 
would be included in the calculation of total points and fees for 
purposes of that coverage test. In addition, under the APR coverage 
test, the more inclusive finance charge could result in some 
additional loans being covered as high-cost mortgages because 
closed-end loans would have higher APRs. There are currently some 
differences between APR and the average prime offer rate, which is 
generally calculated using data that includes only contract interest 
rate and points but not other origination fees. See 75 FR 58660-
58662. The current APR includes not only discount points and 
origination fees but also other charges the creditor retains and 
certain third-party charges. The more inclusive finance charge, 
which would also include most third-party charges, would widen the 
disparity between the APR and APOR and cause more closed-end loans 
to qualify as a high-cost mortgage. The Bureau notes that 
substantially similar implications would apply to each respective 
rulemaking in which coverage depends on comparing a transaction's 
APR to the applicable APOR. In addition, the Bureau notes that the 
Dodd-Frank Act expands HOEPA to apply to more types of mortgage 
transactions, including purchase money mortgage loans and open-end 
credit plans secured by a consumer's principal dwelling. However, 
the proposed more inclusive finance charge applies only to closed-
end loans. Therefore, the Bureau notes that the more inclusive 
finance charge would not affect the potential coverage of open-end 
credit plans under HOEPA.
---------------------------------------------------------------------------

     Cause more loans to trigger Dodd-Frank Act requirements to 
maintain escrow accounts for first-lien higher-priced mortgage loans. 
Coverage depends on comparing a transaction's APR to the applicable 
APOR.
     Cause more loans to trigger Dodd-Frank Act requirements to 
obtain one or more interior appraisals for ``higher-risk'' mortgage 
loans. Coverage depends on comparing a transaction's APR to the 
applicable APOR.
     Reduce the number of loans that would otherwise be 
``qualified mortgages'' under the Dodd-Frank Act Ability to Repay 
requirements, given that qualified mortgages cannot have points and 
fees in excess of three

[[Page 51278]]

percent of the loan amount. Also, more loans could be required to 
comply with separate underwriting requirements applicable to higher-
priced balloon loans, and could be ineligible for certain exceptions 
authorizing creditors to offer prepayment penalties on fixed-rate, non-
higher-priced qualified mortgage loans.\207\ Again, status as a higher-
priced mortgage loan depends on comparing APR to APOR.
---------------------------------------------------------------------------

    \207\ Specifically, the Dodd-Frank Act generally prohibits 
prepayment penalties on closed-end, dwelling-secured mortgage loans, 
except on fixed-rate qualified mortgages that are not higher-priced 
mortgage loans. For balloon loans, the Dodd-Frank Act generally 
requires creditors to assess consumers' ability to repay a higher-
priced loan with a balloon payment using the scheduled payments 
required under the terms of the loan including any balloon payment, 
and based on income and assets other than the dwelling itself. Only 
consumers with substantial income or assets would likely qualify for 
such a loan. A separate Dodd-Frank Act provision authorizing balloon 
loans made by creditors that operate predominantly in rural or 
underserved areas is not affected by the finance charge issue.
---------------------------------------------------------------------------

    As discussed above in part VI, section-by-section analysis for 
proposed Sec.  1026.4, and below in section F, the Bureau is seeking 
data to model the impact of the more expansive definition of finance 
charge on coverage of each of these regulatory regimes or the impact of 
potential modifications that the Bureau could make to the triggers to 
more closely approximate existing coverage levels prior to issuing a 
final rule and is seeking comment on its plans for data analysis, as 
well as additional data and comment on the potential impacts of a 
broader finance charge definition and potential modifications to the 
triggers.\208\
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    \208\ In its 2009 proposal, the Board relied on a 2008 survey of 
closing costs conducted by Bankrate.com that contains data for 
hypothetical $200,000 loans in urban areas. Based on that data, the 
Board estimated that the share of first-lien refinance and home 
improvement loans that are subject to HOEPA would increase by .6 
percent if the definition of finance charge was expanded, and that 
the share of first-lien loans in the range of typical home purchases 
or refinancings ($175,000 to $225,000) that qualified as higher-
priced mortgage loans would increase by 3 percent. The Board also 
looked at the impact on two states and the District of Columbia 
because their anti-predatory lending laws had triggers below the 
level of the historical HOEPA APR threshold, which is benchmarked to 
U.S. Treasury securities. The Board concluded that the percentage of 
first-lien loans subject to those laws would increase by 2.5 percent 
in the District of Columbia and 4.0 percent in Illinois, but would 
not increase in Maryland. The Bureau is considering the 2010 version 
of the Bankrate.com survey, but as described in this notice the 
Bureau is also seeking additional data that would provide more 
representative information regarding closing and settlement costs 
that would allow for a more refined analysis of the proposals.
---------------------------------------------------------------------------

    The Board previously proposed to address these effects by adopting 
an adjusted points and fees definition and a new metric for determining 
coverage under APR thresholds, known as the ``transaction coverage 
rate'' (TCR). The TCR would be based on a modified prepaid finance 
charge that would include only finance charges retained by the 
creditor, mortgage broker, or their affiliates, and would therefore 
more closely approximate existing coverage levels than a more inclusive 
finance charge. See 76 FR 27390, 27411-12 (May 11, 2011); 76 FR 11598, 
11608-09 (Mar. 2, 2011); 75 FR 58539, 58660-61 (Sept. 24, 2010).\209\ 
The Bureau has incorporated these measures into its 2012 HOEPA 
Proposal, and is seeking comment both in that proposal and this 
rulemaking on additional trigger modifications that could approximate 
coverage levels under the existing definition of finance charge, such 
as adjusting the numeric percentage point triggers for APR under HOEPA 
or other regimes.
---------------------------------------------------------------------------

    \209\ The wording of the Board's proposed definition of 
``transaction coverage rate'' varied slightly between the 2010 
Mortgage Proposal and the 2011 Escrows Proposal as to treatment of 
charges retained by mortgage broker affiliates. In its 2012 HOEPA 
Proposal, the Bureau proposes to use the 2011 Escrows Proposal 
version, which would include charges retained by broker affiliates.
---------------------------------------------------------------------------

    If the adjusted points and fees definition, the TCR, or other 
trigger modifications were adopted in the other rules, the more 
inclusive finance charge definition would have little or no effect on 
coverage under those rules although there might still be effects from 
the expanded definition of finance charge on the coverage of various 
State mortgage laws and regulations. In addition, because the TCR 
excludes fees to unaffiliated third-parties, the TCR might result in 
some loans not triggering one or more of the regulatory regimes 
discussed above that would qualify under an APR threshold using the 
current definition of finance charge.\210\ The discussion of the costs 
and benefits of a more inclusive definition of finance charge, below, 
assumes that the Bureau does not adopt the adjusted points and fees 
definition, the TCR, or other methods of addressing the impact of a 
more inclusive approach to the finance charge in the other rulemakings. 
If the Bureau does adopt those measures, the effects of the proposed 
definition of finance charge would be muted. For instance, the benefits 
of a simpler APR calculation may be lessened if creditors are required 
to use different metrics for purposes of disclosure and for determining 
coverage under various regulatory regimes, although as discussed below 
with regard to transaction coverage rate both metrics would be easier 
to calculate than APR using the existing definition of finance charge. 
In addition, the effects (both benefits and costs) through expanded 
coverage of those other rules would be eliminated or (in the case of 
TCR) somewhat reduced.
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    \210\ As discussed above in part VI, section-by-section analysis 
for proposed Sec.  1026.4, the Bureau believes that the margin of 
differences between the TCR and current APR is significantly smaller 
than the margin between the current APR and the APR calculated using 
the expanded finance charge definition because relatively few third-
party fees would be excluded by the TCR that are not already 
excluded under current rules. The Bureau is considering ways to 
supplement the data analysis described above to better assess this 
issue, and seeks comment and data regarding the potential impacts of 
the TCR relative to APR calculated using the current and proposed 
definitions of finance charge.
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b. Benefits to Consumers
    The proposed rule may benefit consumers by making the finance 
charge and corresponding APR more meaningful disclosures of the cost of 
credit for closed-end transactions secured by real property or a 
dwelling. Certain limitations on the usefulness of APR as a price 
comparison tool, however, such as the assumption in the calculation 
that the loan will be paid as according to the note to maturity and not 
pre-paid, may limit this benefit. Consumers may benefit from the 
expanded finance charge definition to the extent it discourages the 
proliferation of certain ``junk fees,'' such as fees for preparing 
loan-related documents, which are currently excluded from the finance 
charge.
    As discussed above, if the expanded definition of finance charge is 
adopted without modifications to the triggers, the more inclusive 
finance charge definition would cause more loans to be classified as 
high-cost mortgages under HOEPA, higher-priced mortgage loans under the 
Escrows and Ability to Repay rulemakings, and/or higher-risk mortgage 
loans under the Appraisals rulemaking. The more inclusive finance 
charge could also affect the number of mortgages that meet the 
definition of a qualified mortgage under the Ability to Repay 
rulemaking.
    Absent modifications to the triggers, this would result in more 
consumers receiving the benefits of one or more of the regulatory 
regimes described above. In the context of the HOEPA rulemaking, the 
benefits to consumers could include, for example, a better 
understanding of the risks associated with the loan through additional 
disclosures (which, in turn, may reduce the likelihood a consumer takes 
out a mortgage he or she cannot afford), better loan terms due to 
increased shopping, and an absence of loan features whose associated 
risks may be difficult for consumers to understand. Consumers

[[Page 51279]]

could also benefit from more loans being classified as higher-priced 
under the Escrows or Ability to Repay rulemakings. Under the Escrows 
rulemaking, more transactions would be required to include escrow 
accounts for the payment of recurring costs such as taxes and hazard 
insurance, which could assist more consumers in planning for such 
costs. Under the Ability to Repay rulemaking, fewer loans could be 
permitted to have prepayment penalties whose associated risks may be 
difficult for consumers to understand, more loans could be subject to 
the separate underwriting standards required for higher-priced balloon 
loans, which could help to ensure consumers' ability to repay such 
loans, and fewer loans would be classified as ``qualified mortgages.'' 
Finally, in the Appraisals rulemaking, an increase in the number of 
loans classified as higher-risk could benefit consumers because more 
transactions would be subject to the requirement that creditors obtain 
one or more interior appraisals before extending credit.
    Alternatively, the expanded definition of finance charge may 
benefit consumers if creditors lower the fees or interest rate on the 
loan a consumer receives so as to maintain eligibility as a qualified 
mortgage or to avoid coverage by those other consumer protection laws.
c. Costs to Consumers
    Without modifications to the triggers, the proposed more inclusive 
finance charge could impose direct costs on some consumers. For 
instance, the cost of obtaining an initial interior appraisal may be 
passed on to consumers under the Dodd-Frank Act requirements for 
higher-risk mortgages. The additional protections required under the 
various regulations may also lead to higher cost of credit for some 
consumers or reduced access to credit if creditors choose not to make 
loans that would be classified as high-cost, higher-priced, or higher-
risk, or if consumers cannot qualify for credit as a result of the 
separate underwriting standards that could apply to higher-priced 
balloon loans.
d. Benefits to Covered Persons
    The proposed rule may benefit covered persons by easing regulatory 
burden and litigation risk associated with the current complex rules 
for determining which fees are part of the finance charge. Because the 
current rules for determining which fees are part of the finance charge 
are complicated and unclear, creditors will benefit from a simpler, 
more inclusive definition. In particular, feedback received by the 
Bureau and comments on a similar proposal issued by the Board in the 
2009 indicate that, because a failure to calculate the finance charge 
and the APR accurately gives rise to the right of rescission, creditors 
incur substantial compliance costs attempting to make accurate 
calculations and incur substantial litigation costs defending against 
claims of inaccurate calculations.
e. Costs to Covered Persons
    To comply with the proposed rule, creditors may be required to 
update compliance systems to reflect changes to the finance charge 
calculation. These updates may involve one-time costs associated with 
software updates, legal expenses, and personnel training time. As 
discussed above, if the Bureau adopts the proposal, it expects to 
provide an implementation period that would coincide either with 
implementation of the disclosure modifications or with implementation 
of certain changes to coverage of HOEPA and other regulatory regimes 
that would be affected by the change in definition. Accordingly, the 
Bureau believes that software changes and other expenses would be 
incurred as part of the overall software and compliance system 
revisions required to comply with the other simultaneous changes, and 
therefore would not impose a substantial additional burden.
    As discussed above, the proposed rule if it were implemented 
without modifications to the triggers for various regulatory regimes 
might cause more loans to cross Federal and State high-cost or high-
priced loan thresholds based on APR or points and fees. With respect to 
the HOEPA and Appraisals rulemakings, creditors may incur costs 
associated with generating and providing HOEPA and appraisal 
disclosures for additional loans. Creditors may incur additional costs 
in the context of the Appraisals rulemaking because the Dodd-Frank Act 
prohibits creditors from charging consumers for second appraisals 
conducted in connection with certain properties that have been sold in 
the last 180 days. Similarly, in the context of the Escrows rulemaking, 
creditors may incur costs associated with maintaining escrow accounts 
on more transactions if not subject to other exceptions provided by the 
Dodd-Frank Act. With respect to the Ability to Repay rulemaking, 
creditors may incur costs associated with making fewer loans with 
prepayment penalties, or may incur costs from the additional 
underwriting requirements and/or liability associated with making more 
loans that are higher-priced balloon loans or that are not qualified 
mortgages.
    In addition, a small number of creditors may also lose a very small 
fraction of revenue if they are reluctant to make high-cost, higher-
priced, or higher-risk mortgage loans and cannot offer alternatives 
that are as profitable as those loans.
    As discussed in more detail in the 2012 HOEPA Proposal, modifying 
the triggers would require some one-time implementation costs and would 
create some additional compliance complexity if creditors must use 
different metrics for disclosure purposes and for determining coverage 
under particular regulatory regimes. However, with regard to the TCR, 
the Bureau believes that such impacts would be addressed by the fact 
that both TCR and APR using the expanded definition of finance charge 
would be easier to calculate than APR under the current definition. On 
balance, the Bureau believes adoption of the proposed trigger 
modifications would reduce the economic impacts on creditors of the 
more expansive definition of finance charge.
8. Implementation of New Disclosures Mandated by the Dodd-Frank Act
    The proposed rule exempts creditors temporarily from compliance 
with certain new disclosure requirements added to TILA and RESPA by the 
Dodd-Frank Act until the TILA-RESPA rule takes effect.
    As discussed more fully in part V.B, above, title XIV of the Dodd-
Frank Act adds new disclosure requirements to TILA and RESPA for 
mortgage transactions. Although the Dodd-Frank Act does not 
specifically require inclusion of all of these new disclosures in the 
Loan Estimate and the Closing Disclosure, the Bureau believes these 
disclosures should be included in the integrated forms because doing so 
would improve the overall effectiveness of the integrated disclosure, 
which may benefit consumers and covered persons, and also reduce burden 
on covered persons. Finalizing the rules implementing these title XIV 
disclosures simultaneously with the final TILA-RESPA rule would avoid 
unnecessary regulatory burden by preventing creditors from having to 
implement multiple rounds of disclosure rules. The Bureau does not 
anticipate additional costs to covered persons as a result of delayed 
implementation of the new disclosure requirements, although, as noted 
above, covered persons may incur additional recurring costs associated 
with calculating and disclosing this

[[Page 51280]]

additional information to consumers once the implementing rules take 
effect.
9. Other Costs of Complying with the Proposed Regulation
    Covered persons will need to learn about the requirements of the 
regulation and determine what changes to their business practices they 
would be required to make to come into compliance. These costs will 
vary considerably across institutions, depending on the size and 
complexity of their operations. In addition, some firms will rely on 
their own staff to conduct this analysis, while others will rely on 
outside counsel, industry sources, or compliance firms. Firms that use 
compliance systems provided by outside vendors, especially smaller 
creditors, will likely rely in large part on those vendors to determine 
what changes they need to make, reducing the burden on those creditors.

E. Potential Specific Impacts of the Proposed Rule

1. Depository Institutions and Credit Unions with $10 Billion or Less 
in Total Assets, As Described in Section 1026
    Other than as noted here, the Bureau believes that the impact of 
the rule on depository institutions and credit unions with $10 billion 
or less in total assets will be similar to those for creditors as a 
whole. The primary difference in the impact on these institutions is 
likely to come from differences in the compliance systems and software 
of these institutions.
    As discussed above, based on information provided by creditors and 
by software vendors, the Bureau believes that, in general, larger 
creditors develop and maintain their own compliance software and 
systems, while 95 prercent of smaller creditors, which includes the 
vast majority of those with assets less than $10 billion, primarily 
rely on software and compliance systems provided by outside vendors. As 
described above, the use of vendors by smaller creditors will 
substantially mitigate the costs of revising software and compliance 
systems, as vendor software updates would likely be included in regular 
annual updates, and therefore the costs would not be directly passed on 
to the client creditors.
    As discussed above, based on small entities that participated in 
the Small Business Review Panel process, the Bureau estimates that the 
small fraction of smaller creditors that maintain their own compliance 
software and systems would incur costs of roughly $100,000 to update 
their systems to comply with the proposal. The Bureau estimates that 
there were a total of 11,749 banks, savings institutions, and credit 
unions with assets less than $10 billion that originated mortgages in 
2010, the most recent year for which complete data are available, and 
that all but one of them was outside the top twenty mortgage 
originators.\211\ The total estimated cost for these few smaller 
creditors that maintain their own compliance software and systems is 
therefore $100,000*11,749*5% = $58,700,000 (rounded to the nearest 
$100,000). Amortized over five years, the annual costs are $11,750,000 
for all smaller depository mortgages lenders and credit unions that 
make mortgages combined.
---------------------------------------------------------------------------

    \211\ Estimate based on analysis of HMDA, SNL Call Reports, NCUA 
Call Reports, and NMLS Call Reports.
---------------------------------------------------------------------------

    The one creditor in the largest 20 mortgage creditors that is a 
depository institution and has assets under $10,000,000 would need to 
revise its compliance software and systems. The Bureau estimates that 
the cost for this creditor would be $1,000,000; amortized over five 
years this is an annual cost of $200,000.
    Covered persons would incur one-time costs associated with training 
employees to use new forms and any new compliance software and systems. 
The Bureau estimates that each loan officer or other loan originator 
will need to receive two hours of training, and, as described above, 
each ten hours of trainee time would require an additional hour of 
trainer time. Assuming the same ratio of loan officers to originations 
at these institutions as for the industry as a whole, the Bureau 
estimates that there are roughly 28,000 loan officers that would need 
training at these institutions.\212\ Based on data from the Bureau of 
Labor Statistics, the Bureau estimates that the average total 
compensation is $46 per hour for a loan officer and $39 per hour for a 
trainer, for a total training cost of (28,000*2*$46)+(2,800*2*$39) = 
2,800,000 (rounded to the nearest $100,000). Amortized over five years, 
this is an annual cost of $560,000 for all smaller depository mortgage 
lenders and credit unions that make mortgage loans combined.
---------------------------------------------------------------------------

    \212\ Originations estimates based on analysis of HMDA, SNL Call 
Reports, NCUA Call Reports, and NMLS Call Reports.
---------------------------------------------------------------------------

    Taken together, the Bureau estimates that the total one-time costs 
of complying with the proposed Loan Estimate and Closing Disclosure for 
these institutions would be roughly $62,500,000. Amortized over five 
years, this is an annual cost of $12,500,000 for all smaller depository 
mortgage lenders and credit unions that make mortgage loans combined. 
The Bureau estimates that these creditors made roughly 2.6 million 
originations in 2010. The estimated one-time cost is therefore less 
than $5.00 per origination.
    As discussed above, to comply with the proposed record retention 
provisions, creditors may be required to reconfigure existing document 
production and retention systems. The Bureau estimates that creditors 
with existing electronic storage systems would need to expend 40 hours 
of software and IT staff time to develop the ability to export data 
from existing systems to a standardized format. This would apply to the 
creditors that maintain their own systems--the one depository 
institution with assets less than $10 billion that is one of the 20 
largest mortgage creditors and five percent of other institutions, for 
a total of 40+(11,749*.05*40) = 23,538 hours. Assuming an hourly labor 
cost for software and IT staff of $54, based on information from the 
Bureau of Labor Statistics, gives a total dollar cost of 23,538*$54 = 
$1,300,000 (rounded to nearest $100,000). Amortized over five years, 
this is an annual cost of $260,000 for all smaller depository mortgage 
lenders and credit unions that make mortgage loans combined.
    The Bureau understands that requiring standardized, electronic 
records may be a significant burden for covered persons that do not 
currently have such electronic filing systems. To reduce the burden on 
small entities, which will include some depository institutions and 
credit unions with $10 billion or less in total assets, the Bureau is 
considering an exemption from the electronic data retention 
requirements. See part VI, section-by-section analysis for proposed 
Sec.  1026.25.
2. Impact of the Proposed Provisions on Consumers in Rural Areas
    Consumers in rural areas may experience benefits and costs from the 
proposed rule that are different in certain respects to those 
experienced by consumers in general. The extent to which rural 
consumers shop for mortgages and the ways in which they shop may differ 
than the extent to which other consumers shop, which may affect the 
benefits of the revised Loan Estimate. The Bureau is unaware of 
information on these differences, however. To the extent that the 
impacts of the proposal on creditors differ by type of creditor, this 
may affect the costs and benefits of the proposal on consumers in rural 
areas.
    The Bureau will further consider the impact of the proposed rule on 
consumers in rural areas. The Bureau

[[Page 51281]]

therefore asks interested parties to provide data, research results and 
other factual information on the impact of the proposed rule on 
consumers in rural areas.

F. Additional Analysis Being Considered and Request for Information

    The Bureau will further consider the benefits, costs, and impacts 
of the proposed provisions before finalizing the proposal. As noted 
above, there are a number of areas where additional information would 
allow the Bureau to better estimate the benefits, costs, and impacts of 
this proposal and more fully inform the rulemaking. In particular, the 
Bureau seeks additional data to analyze the frequency, magnitude, and 
type of differences between initial estimates of settlement costs and 
actual costs. This will enable the Bureau to better estimate the 
effects of the various aspects of this proposal that relate to 
settlement costs and how they change between the initial RESPA GFE and 
closing. In addition, the Bureau asks interested parties to provide 
general information, data, and research results on:
     How consumers might respond to better mortgage costs 
disclosures;
     The benefits to consumers of clearer information about 
their mortgages;
     The potential impact on the functioning of the market and 
on creditors if consumers better understood their loan;
     The potential impact on creditors of the elimination of 
the ten percent tolerance for cost changes for certain settlement fees;
     The effects on the role of different market participants 
of various aspects of the proposal, such as the elimination of the ten 
percent tolerance for cost changes on certain settlement fees and the 
alternative proposal that creditors be solely responsible for the 
provision of the Closing Disclosure;
     The effects of adopting a more inclusive finance charge, 
including with respect to the rulemakings on HOEPA, Escrows, 
Appraisals, and Ability to Repay;
     The costs to covered persons of complying with the 
proposal, such as revising compliance software and systems;
     How often creditors or mortgage brokers obtain additional 
information from the consumer after the Loan Estimate has been issued 
that affects the costs of settlement services for the loan and that may 
cause the creditor or broker to issue a revised Loan Estimate; and
     How often creditors are providing additional disclosures 
that are not required by the current rules and that they would no 
longer send if the rules are clarified.
    To supplement the information discussed in this preamble and any 
information that the Bureau may receive from commenters, the Bureau is 
currently working to gather additional data that may be relevant to 
this and other mortgage related rulemakings. These data may include 
additional data from Nationwide Mortgage Licensing System and Registry 
and the NMLS Mortgage Call Report, loan file extracts from various 
lenders, and data from the pilot phases of the National Mortgage 
Database. The Bureau expects that each of these datasets will be 
confidential. This section now describes each dataset in turn.
    First, as the sole system supporting licensure/registration of 
mortgage companies for 53 agencies for states and territories and 
mortgage loan originators under the SAFE Act, NMLS contains basic 
identifying information for nondepository mortgage loan origination 
companies. Firms that hold a State license or State registration 
through NMLS are required to complete either a standard or expanded 
Mortgage Call Report (MCR). The Standard MCR includes data on each 
firm's residential mortgage loan activity including applications, 
closed loans, individual mortgage loan originator (MLO) activity, line 
of credit and other data repurchase information by State. It also 
includes financial information at the company level. The expanded 
report collects more detailed information in each of these areas for 
those firms that sell to Fannie Mae or Freddie Mac.\213\ To date, the 
Bureau has received basic data on the firms in the NMLS and de-
identified data and tabulations of data from the Mortgage Call Report. 
These data were used, along with HMDA data, to help estimate the number 
and characteristics of nondepository institutions active in various 
mortgage activities. In the near future, the Bureau may receive 
additional data on loan activity and financial information from the 
NMLS including loan activity and financial information for identified 
lenders. The Bureau anticipates that these data will provide additional 
information about the number, size, type, and level of activity for 
nondepository lenders engaging in various mortgage origination and 
servicing activities. As such, it supplements the Bureau's current data 
for nondepository institutions reported in HMDA and the data already 
received from NMLS. For example, these new data will include 
information about the number and size of closed-end first and second 
loans originated, fees earned from origination activity, levels of 
servicing, revenue estimates for each firm and other information. The 
Bureau may compile some simple counts and tabulations and conduct some 
basic statistical modeling to better model the levels of various 
activities at various types of firms. In particular, the information 
from the NMLS and the MCR may help the Bureau refine its estimates of 
benefits, costs, and impacts for each of the revisions to the RESPA GFE 
and settlement statement forms, changes to the HOEPA thresholds, 
changes to requirements for appraisals, updates to loan originator 
compensation rules, proposed new servicing requirements, and the new 
ability to repay standards.
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    \213\ More information about the Mortgage Call Report can be 
found at https://mortgage.nationwidelicensingsystem.org/slr/common/mcr/Pages/default.aspx.
---------------------------------------------------------------------------

    Second, the Bureau is working to obtain a random selection of loan-
level data from several lenders. The Bureau intends to request loan 
file data from lenders of various sizes and geographic locations to 
construct a representative dataset. In particular, the Bureau will 
request a random sample of RESPA GFE and RESPA settlement statement 
forms from loan files for closed-end loans. These forms include data on 
some or all loan characteristics including settlement charges, 
origination charges, appraisal fees, flood certifications, mortgage 
insurance premiums, homeowner's insurance, title charges, balloon 
payments, prepayment penalties, origination charges, and credit charges 
or points. Through conversations with industry, the Bureau believes 
that such loan files exist in standard electronic formats allowing for 
the creation of a representative sample for analysis. The Bureau may 
use these data to further measure the impacts of certain proposed 
changes. Calculations of various categories of settlement and 
origination charges may help the Bureau calculate the various impacts 
of proposed changes to the definition of finance charge and other 
aspects of the proposal, including proposed changes in the number and 
characteristics of loans that exceed the HOEPA thresholds, loans that 
would meet the high rate or high risk definitions mandating additional 
consumer protections, and loans that meet the points and fees 
thresholds contained in the ability to repay provisions of Dodd-Frank.
    Third, the Bureau may also use data from the pilot phases of the 
National Mortgage Database (NMDB) to refine its proposals and/or its 
assessments of the benefits, costs, and impacts of these proposals. The 
NMDB is a

[[Page 51282]]

comprehensive database, currently under development, of loan-level 
information on first lien single-family mortgages. It is designed to be 
a nationally representative sample (1 percent) and contains data 
derived from credit reporting agency data and other administrative 
sources along with data from surveys of mortgage borrowers. The first 
two pilot phases, conducted over the past two years, vetted the data 
development process, successfully pretested the survey component and 
produced a prototype dataset. The initial pilot phases validated that 
sampled credit repository data are both accurate and comprehensive and 
that the survey component yields a representative sample and a 
sufficient response rate. A third pilot is currently being conducted 
with the survey being mailed to holders of five thousand newly 
originated mortgages sampled from the prototype NMDB. Based on the 2011 
pilot, a response rate of fifty percent or higher is expected. These 
survey data will be combined with the credit repository information of 
non-respondents, and then de-identified. Credit repository data will be 
used to minimize non-response bias, and attempts will be made to impute 
missing values. The data from the third pilot will not be made public. 
However, to the extent possible, the data may be analyzed to assist the 
Bureau in its regulatory activities and these analyses will be made 
publically available.
    The survey data from the pilots may be used by the Bureau to 
analyze consumers' shopping behavior regarding mortgages. For instance, 
the Bureau may calculate the number of consumers who use brokers, the 
number of lenders contacted by borrowers, how often and with what 
patterns potential borrowers switch lenders, and other behaviors. 
Questions may also assess borrowers' understanding of their loan terms 
and the various charges involved with origination. Tabulations of the 
survey data for various populations and simple regression techniques 
may be used to help the Bureau with its analysis.
    The Bureau requests commenters to submit data and to provide 
suggestions for additional data to assess the issues discussed above 
and other potential benefits, costs, and impacts of the proposed rule. 
The Bureau also requests comment on the use of the data described 
above.

VIII. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), as amended by SBREFA, 
requires each agency to consider the potential impact of its 
regulations on small entities, including small businesses, small 
governmental units, and small not-for-profit organizations. 5 U.S.C. 
601 et seq. The RFA generally requires an agency to conduct an initial 
regulatory flexibility analysis (IRFA) and a final regulatory 
flexibility analysis (FRFA) of any rule subject to notice-and-comment 
rulemaking requirements, unless the agency certifies that the rule will 
not have a significant economic impact on a substantial number of small 
entities. 5 U.S.C. 603, 604. The Bureau also is subject to certain 
additional procedures under the RFA involving the convening of a panel 
to consult with small business representatives prior to proposing a 
rule for which an IRFA is required. 5 U.S.C. 609.
    The Bureau has not certified that the proposed rule would not have 
a significant economic impact on a substantial number of small entities 
within the meaning of the RFA. Accordingly, the Bureau convened and 
chaired a Small Business Review Panel to consider the impact of the 
proposed rule on small entities that would be subject to that rule and 
to obtain feedback from representatives of such small entities. The 
Small Business Review Panel for this rulemaking is discussed below in 
part VIII.A.
    The Bureau is publishing an IRFA. Among other things, the IRFA 
estimates the number of small entities that will be subject to the 
proposed rule and describe the impact of that rule on those entities. 
The IRFA for this rulemaking is set forth below in part VIII.B.

A. Small Business Review Panel

    Under section 609(b) of the RFA, as amended by SBREFA and the Dodd-
Frank Act, the Bureau seeks, prior to conducting the IRFA, information 
from representatives of small entities that may potentially be affected 
by its proposed rules to assess the potential impacts of that rule on 
such small entities. 5 U.S.C. 609(b). Section 609(b) sets forth a 
series of procedural steps with regard to obtaining this information. 
The Bureau first notifies the Chief Counsel for Advocacy (Chief 
Counsel) of the U.S. Small Business Administration (SBA) and provides 
the Chief Counsel with information on the potential impacts of the 
proposed rule on small entities and the types of small entities that 
might be affected. 5 U.S.C. 609(b)(1). Not later than 15 days after 
receipt of the formal notification and other information described in 
section 609(b)(1) of the RFA, the Chief Counsel then identify 
individuals representative of affected small entities for the purpose 
of obtaining advice and recommendations from those individuals about 
the potential impacts of the proposed rule (the small entity 
representatives, or SERs). 5 U.S.C. 609(b)(2). The Bureau convenes a 
review panel for such rule consisting wholly of full time Federal 
employees of the office within the Bureau responsible for carrying out 
the proposed rule, the Office of Information and Regulatory Affairs 
(OIRA) within the U.S. Office of Management and Budget (OMB), and the 
Chief Counsel (collectively, the Small Business Review Panel or Panel). 
5 U.S.C. 609(b)(3). The Panel reviews any material the Bureau has 
prepared in connection with the SBREFA process and collects advice and 
recommendations of each individual small entity representative 
identified by the Bureau after consultation with the Chief Counsel on 
issues related to sections 603(b)(3) through (b)(5) and 603(c) of the 
RFA.\214\ 5 U.S.C. 609(b)(4). Not later than 60 days after the date the 
Bureau convenes the Small Business Review Panel, the Panel reports on 
the comments of the SERs and its findings as to the issues on which the 
Panel consulted with the SERs, and the report is made public as part of 
the rulemaking record. 5 U.S.C. 609(b)(5). Where appropriate, the 
Bureau modifies the rule or the IRFA in light of the foregoing process. 
5 U.S.C. 609(b)(6).
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    \214\ As described in the IRFA in part VIII.B, below, sections 
603(b)(3) through (b)(5) and 603(c) of the RFA, respectively, 
require a description of and, where feasible, provision of an 
estimate of the number of small entities to which the proposed rule 
will apply; a description of the projected reporting, recordkeeping, 
and other compliance requirements of the proposed rule, including an 
estimate of the classes of small entities which will be subject to 
the requirement and the type of professional skills necessary for 
preparation of the report or record; an identification, to the 
extent practicable, of all relevant Federal rules which may 
duplicate, overlap, or conflict with the proposed rule; and a 
description of any significant alternatives to the proposed rule 
which accomplish the stated objectives of applicable statutes and 
which minimize any significant economic impact of the proposed rule 
on small entities. 5 U.S.C. 603(b)(3)-(5), 603(c).
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    On February 7, 2012, the Bureau provided the Chief Counsel with the 
formal notification and other information required under section 
609(b)(1) of the RFA. To obtain feedback from small entity 
representatives to inform the Panel pursuant to sections 609(b)(2) and 
609(b)(4) of the RFA, the Bureau, in consultation with the Chief 
Counsel, identified six categories of small entities that may be 
subject to the proposed rule for purposes of the IRFA: commercial 
banks/savings institutions, credit unions, mortgage brokers, mortgage 
companies (non-bank lenders), settlement (closing) agents, and 
nonprofit organizations. These are the categories of entities that may 
be required to provide, and maintain

[[Page 51283]]

related records on, the integrated mortgage disclosures, either because 
they may make mortgage loans subject to the proposed rule or because 
they may be responsible for completing or providing required 
disclosures. Part VIII.B.3, below, describes in greater detail the 
Bureau's analysis of the number and types of entities that may be 
affected by the proposed rule. Having identified the categories of 
small entities that may be subject to the proposed rule for purposes of 
an IRFA, the Bureau, in consultation with the Chief Counsel, selected 
16 SERs to participate in the SBREFA process. As described in chapter 7 
of the Panel's report (described below), the SERs included 
representatives from each of the categories identified by the Bureau 
and comprised a diverse group of individuals with regard to geography 
and type of locality (i.e., rural, urban, or suburban areas).
    On February 21, 2012, the Bureau convened the Panel pursuant to 
section 609(b)(3) of the RFA. To collect the advice and recommendations 
of the SERs under section 609(b)(4) of the RFA, the Panel held an 
outreach meeting/teleconference with the SERs on March 6, 2012 (the 
Panel Outreach Meeting). To help the SERs prepare for the Panel 
Outreach Meeting, the Panel circulated briefing materials prepared in 
connection with section 609(b)(4) of the RFA that summarized the 
proposals under consideration at that time, posed discussion issues, 
and provided information about the SBREFA process generally.\215\ All 
16 SERs participated in the Panel Outreach Meeting either in person or 
by telephone. The Panel also provided the SERs with an opportunity to 
submit written feedback. In response, the Panel received written 
feedback from 12 of the representatives.\216\
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    \215\ The Bureau posted these materials on its Web site and 
invited the public to email remarks on the materials. See https://www.consumerfinance.gov/pressreleases/consumer-financial-protection-bureau-convenes-small-business-panel-for-know-before-you-owe-mortgage-disclosures/ (the materials are accessible via the links 
within this document).
    \216\ This written feedback is attached as appendix A to the 
written report of the Panel, discussed below.
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    On April 23, 2012, the Panel submitted to the Director of the 
Bureau, Richard Cordray, a written report (the Small Business Review 
Panel Report) that includes the following: background information on 
the proposals under consideration at the time; information on the types 
of small entities that would be subject to those proposals and on the 
SERs who were selected to advise the Panel; a summary of the Panel's 
outreach to obtain the advice and recommendations of those SERs; a 
discussion of the comments and recommendations of the SERs; and a 
discussion of the Panel findings, focusing on the statutory elements 
required under section 603 of the RFA. 5 U.S.C. 609(b)(5).\217\
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    \217\ Final Report of the Small Business Review Panel on the 
CFPB's Proposals Under Consideration for Integration of TILA and 
RESPA Mortgage Disclosure Requirements, dated April 23, 2012. As 
discussed above, this report is available on the Bureau's Web site.
---------------------------------------------------------------------------

    In preparing this proposed rule and the IRFA, the Bureau has 
carefully considered the feedback from the SERs participating in the 
SBREFA process and the findings and recommendations in the Small 
Business Review Panel Report. The section-by-section analysis of the 
proposed rule in part VI, above, and the IRFA discuss this feedback and 
the specific findings and recommendations of the Panel, as applicable. 
The SBREFA process provided the Panel and the Bureau with an 
opportunity to identify and explore opportunities to minimize the 
burden of the rule on small entities while achieving the rule's 
purposes. It is important to note, however, that the Panel prepared the 
Small Business Review Panel Report at a preliminary stage of the 
proposal's development and that the Panel Report--in particular, the 
Panel's findings and recommendations--should be considered in that 
light. Also, the Small Business Review Panel Report expressly stated 
that options it identified for reducing the proposed rule's regulatory 
impact on small entities were subject to further consideration, 
analysis, and data collection by the Bureau to determine if the options 
identified were practicable, enforceable, and consistent with TILA, 
RESPA, the Dodd-Frank Act, and their statutory purposes. The proposed 
rule and the IRFA reflect further consideration, analysis, and data 
collection by the Bureau.

B. Initial Regulatory Flexibility Analysis

    Under section 603(a) of the RFA, an IRFA ``shall describe the 
impact of the proposed rule on small entities.'' 5 U.S.C. 603(a). 
Section 603(b) of the RFA sets forth the required elements of the IRFA. 
Section 603(b)(1) requires the IRFA to contain a description of the 
reasons why action by the agency is being considered. 5 U.S.C. 
603(b)(1). Section 603(b)(2) requires a succinct statement of the 
objectives of, and the legal basis for, the proposed rule. 5 U.S.C. 
603(b)(2). The IRFA further must contain a description of and, where 
feasible, provision of an estimate of the number of small entities to 
which the proposed rule will apply. 5 U.S.C. 603(b)(3). Section 
603(b)(4) requires a description of the projected reporting, 
recordkeeping, and other compliance requirements of the proposed rule, 
including an estimate of the classes of small entities that will be 
subject to the requirement and the types of professional skills 
necessary for the preparation of the report or record. 5 U.S.C. 
603(b)(4). In addition, the Bureau must identify, to the extent 
practicable, all relevant Federal rules which may duplicate, overlap, 
or conflict with the proposed rule. 5 U.S.C. 603(b)(5). The Bureau, 
further, must describe any significant alternatives to the proposed 
rule which accomplish the stated objectives of applicable statutes and 
which minimize any significant economic impact of the proposed rule on 
small entities. 5 U.S.C. 603(b)(6). Finally, as amended by the Dodd-
Frank Act, section 603(d) of the RFA requires that the IRFA include a 
description of any projected increase in the cost of credit for small 
entities, a description of any significant alternatives to the proposed 
rule which accomplish the stated objectives of applicable statutes and 
which minimize any increase in the cost of credit for small entities 
(if such an increase in the cost of credit is projected), and a 
description of the advice and recommendations of representatives of 
small entities relating to the cost of credit issues. 5 U.S.C. 
603(d)(1); Dodd-Frank Act section 1100G(d)(1).
1. Description of the Reasons Why Agency Action Is Being Considered
    As discussed in part II, above, for more than 30 years, TILA and 
RESPA have required lenders and settlement agents to give to consumers 
who take out a mortgage loan different but overlapping disclosure forms 
regarding the loan's terms and costs. This duplication has long been 
recognized as inefficient and confusing for consumers and industry. The 
following two paragraphs briefly summarize the statutory differences, 
which are described in more detail in part I and part II, above.
a. TILA/Regulation Z
    In connection with any closed-end credit transaction secured by a 
consumer's dwelling and subject to RESPA, TILA and Regulation Z require 
creditors to provide good faith estimates of loan terms (such as the 
APR) within three business days after receiving the consumer's mortgage 
application (i.e., the early TILA disclosure). If the APR on the early 
TILA disclosure becomes inaccurate, TILA requires the creditor to

[[Page 51284]]

provide a corrected disclosure at least three business days before 
closing (i.e., the corrected TILA disclosure). TILA requires that the 
disclosures be provided in final form at the time of consummation 
(i.e., the final TILA disclosure). See part II.C, above.
b. RESPA/Regulation X
    In connection with any federally related mortgage loan, RESPA and 
Regulation X require that lenders provide a good faith estimate of the 
amount or range of charges for certain settlement services the borrower 
is likely to incur in connection with the settlement (such as fees for 
an appraisal or a title search) and related loan information within 
three business days after receiving the consumer's application (i.e., 
the RESPA GFE). RESPA also requires that ``the person conducting the 
settlement'' (typically, the settlement or closing agent) provide the 
consumer with a completed, itemized statement of settlement charges at 
or before settlement (i.e., the RESPA settlement statement). See part 
II.B above.
    Furthermore, the recent mortgage crisis highlighted deficiencies in 
consumer understanding of mortgage transactions, which may be 
attributed in part to shortcomings in mortgage disclosures. Part II.A 
above discusses in greater detail the background of the mortgage 
market. Prior to the creation of the Bureau, other government agencies 
took steps to address these shortcomings. Specifically, HUD, which was 
previously responsible for implementing RESPA, finalized rules in 2008 
that substantially revised the RESPA mortgage disclosures (i.e., HUD's 
2008 RESPA Final Rule). In addition, the Board, which was previously 
responsible for TILA, proposed rules in 2009 that would have 
substantially revised the TILA mortgage disclosures (i.e., the Board's 
2009 Closed-End Proposal). However, neither HUD nor the Board had the 
authority to combine the TILA and RESPA disclosures.
    As noted above, the Dodd-Frank Act consolidated rulemaking 
authority for RESPA and TILA in the Bureau. In addition, the Dodd-Frank 
Act amended both statutes to mandate specifically that the Bureau 
propose rules and forms combining the TILA and RESPA disclosures for 
mortgage loans subject to either law or both laws by July 21, 2012. 
Dodd-Frank Act sections 1032(f), 1098, 1100A. The Dodd-Frank Act 
establishes two goals for the consolidation: to improve consumer 
understanding of mortgage loan transactions; and to facilitate industry 
compliance with TILA and RESPA. The Dodd-Frank Act also made several 
amendments to the disclosure requirements in TILA and RESPA. In 
particular, the Dodd-Frank Act amended TILA to require the creditor to 
disclose in the early and final TILA disclosures the aggregate amount 
of settlement charges provided in connection with the loan, which was 
previously disclosed only by the settlement agent in the RESPA 
settlement statement.\218\
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    \218\ Section 1419 of the Dodd-Frank Act, adding section 
128(a)(17) to TILA.
---------------------------------------------------------------------------

    The proposed rule, therefore, both follows on the prior efforts of 
HUD and the Board to address shortcomings in the mortgage market with 
regard to mortgage disclosures and effectuates Congress's specific 
mandate to the Bureau to integrate the mortgage disclosures under TILA 
and RESPA. For a further description of the reasons why agency action 
is being considered, see the background discussion for the proposed 
rule in part II, above.
2. Statement of the Objectives of, and Legal Basis for, the Proposed 
Rule
    As described above, the proposed rule effectuates Congress's 
mandate to integrate the mortgage disclosures required under TILA and 
RESPA. In particular, sections 1098 and 1100A of the Dodd-Frank Act 
state that the purposes of the integrated disclosures are to facilitate 
compliance with TILA and RESPA and ``to aid the borrower or lessee in 
understanding the transaction by utilizing readily understandable 
language to simplify the technical nature of the disclosures.'' The 
integrated disclosures also effectuate the underlying statutory 
purposes of RESPA and TILA. One of the statutory purposes of RESPA is 
``more effective advance disclosure to home buyers and sellers of 
settlement costs.'' 12 U.S.C. 2601(b)(1). And one statutory purpose of 
TILA is to ``to assure a meaningful disclosure of credit terms so that 
the consumer will be able to compare more readily the various credit 
terms available to him and avoid the uninformed use of credit.'' 15 
U.S.C. 1601(a).
    Furthermore, this rulemaking promotes consumer comprehension of 
financial disclosures. Section 1021(b) of the Dodd-Frank Act authorizes 
the Bureau to exercise its authorities to ensure that, with respect to 
consumer financial products and services, ``consumers are provided with 
timely and understandable information to make responsible decisions 
about financial transactions.'' 12 U.S.C. 5511(b). Section 1032(a) of 
the Dodd-Frank Act provides the Bureau with the authority to 
``prescribe rules to ensure that the features of any consumer financial 
product or service, both initially and over the term of the product or 
service, are fully, accurately, and effectively disclosed to consumers 
in a manner that permits consumers to understand the costs, benefits, 
and risks associated with the product or service, in light of the facts 
and circumstances.'' 12 U.S.C. 5532(a).
    The proposed rule also is intended to provide other benefits for 
consumers. First, the new prototype disclosure forms are simpler and 
more comprehensible, and their design has been refined to incorporate 
extensive consumer and industry feedback gathered through online tools 
and one-on-one testing across the country. See part III, above. By 
conveying information on key loan terms clearly, the redesigned 
disclosure forms may improve the ability of consumers to shop for and 
compare mortgage terms across loan offers and improve their 
understanding of mortgage loan transactions. Second, the proposed rule 
seeks to improve consumers' ability to shop by more clearly delineating 
between estimates regulated by TILA and RESPA and non-binding 
preapplication estimates. Third, the proposed rule may reduce the 
magnitude and frequency of changes in costs between application and 
consummation and may decrease the likelihood that consumers will face 
unexpected changes in costs due to ``bait and switch'' tactics.\219\
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    \219\ This discussion of the proposed rule's benefits to 
consumers is intended to be illustrative, not exhaustive. Additional 
consumer benefits that may result from the proposed rule are 
discussed in other sections of the proposed rule.
---------------------------------------------------------------------------

    Lastly, the Bureau is seeking to reconcile differences in the 
scope, terminology, and requirements of TILA, RESPA, and their current 
implementing regulations. As discussed above, the Dodd-Frank Act did 
not reconcile a number of statutory differences between TILA and RESPA 
(e.g., the different requirements on the timing of disclosures and 
which party is responsible for providing the disclosures), which the 
Bureau needs to do in order to satisfy the mandate to integrate the 
disclosures. Moreover, the proposed rule clarifies and streamlines 
aspects of the current rules that have been identified as confusing by 
lenders, mortgage brokers, mortgage companies, and settlement agents, 
as well as for consumers who receive the disclosures. The Bureau 
believes that these clarifications will resolve ambiguities, eliminate 
redundant or unnecessary disclosures, and more effectively

[[Page 51285]]

disclose mortgage loan terms and costs to consumers.
    The legal basis for the proposed rule is discussed in detail in the 
legal authority analysis in part IV and in the section-by-section 
analysis in part VI, above.
3. Description and, Where Feasible, Provision of an Estimate of the 
Number of Small Entities to Which the Proposed Rule Will Apply
    As discussed in the Small Business Review Panel Report, for 
purposes of assessing the impacts of the proposed rule on small 
entities, ``small entities'' is defined in the RFA to include small 
businesses, small nonprofit organizations, and small government 
jurisdictions. 5 U.S.C. 601(6). A ``small business'' is determined by 
application of SBA regulations and reference to the North American 
Industry Classification System (NAICS) classifications and size 
standards.\220\ 5 U.S.C. 601(3). Under such standards, banks and other 
depository institutions are considered ``small'' if they have $175 
million or less in assets, and for other financial businesses, the 
threshold is average annual receipts (i.e., annual revenues) that do 
not exceed $7 million.\221\
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    \220\ The current SBA size standards are found on SBA's Web site 
at https://www.sba.gov/content/table-small-business-size-standards.
    \221\ See id.
---------------------------------------------------------------------------

    During the Small Business Review Panel process, the Bureau 
identified six categories of small entities that may be subject to the 
proposed rule for purposes of the RFA. These are the categories of 
entities that may be required to provide, and maintain related records 
on, the integrated disclosures, either because they may make 
residential mortgage loans or because they may be responsible for 
completing or providing required disclosures. The categories and the 
SBA small entity thresholds for those categories are: (1) Commercial 
banks \222\ with up to $175,000,000 in assets, (2) credit unions with 
up to $175,000,000 in assets, (3) mortgage brokers with up to 
$7,000,000 in annual revenue, (4) mortgage companies (non-bank lenders) 
with up to $7,000,000 in annual revenue, (5) settlement (closing) 
agents with up to $7,000,000 in annual revenue, and (6) nonprofit 
organizations that are not for profit, independently owned and 
operated, and not dominant in the field.
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    \222\ For purposes of the Bureau's Small Business Review Panel 
Outline circulated in advance of the Panel Outreach Meeting, the 
categories of commercial banks and savings institutions were 
combined under the label ``commercial banks.'' The list of SERs 
identified in chapter 7 of the Small Business Review Panel Report 
includes one representative of a savings institution.
---------------------------------------------------------------------------

    Since the time the Small Business Review Panel Report was 
completed, some of the data sources that the Bureau used to estimate 
the numbers of small entities of different types have released updated 
information and the Bureau has revised some aspects of the estimation 
procedure. The following table provides the Bureau's revised estimates 
of the number and types of entities that may be affected by the 
proposed rule: \223\
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    \223\ In the Small Business Review Panel Report, chapter 9.1, a 
preliminary estimate of affected entities and small entities was 
included in a similar format (a chart with clarifying notes). See 
Small Business Review Panel Report at 26-27.

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[GRAPHIC] [TIFF OMITTED] TP23AU12.999


[[Page 51287]]


4. Projected Reporting, Recordkeeping, and Other Compliance 
Requirements of the Proposed Rule, Including an Estimate of the Classes 
of Small Entities Which Will Be Subject to the Requirement and the Type 
of Professional Skills Necessary for the Preparation of the Report
    The proposed rule does not impose new reporting requirements. The 
proposed rule does, however, impose new recordkeeping and compliance 
requirements on certain small entities. The requirements to integrate 
the TILA and RESPA disclosures and the imposition of new disclosure 
requirements under the Dodd-Frank Act, title XIV, appear specifically 
in the Dodd-Frank Act, while the recordkeeping requirements do not. 
Thus, to a large extent, the impacts discussed below are impacts of the 
statute, not of the regulation per se--that is, the Bureau discusses 
impacts against a pre-statute baseline.
a. Reporting Requirements
    The proposed rule does not impose new reporting requirements.
b. Recordkeeping Requirements
    The proposed rule imposes new data retention requirements for the 
Loan Estimate and the Closing Disclosure by requiring creditors to 
maintain evidence of compliance in machine readable, electronic format. 
The proposed retention period is three years for the Loan Estimates and 
five years for the Closing Disclosures. See part VI above, section-by-
section analysis for proposed Sec.  1026.25.
i. Benefits to Small Entities
    A prescribed electronic format may reduce costs across the entire 
mortgage loan origination industry due to the efficiency gains 
associated with a standardized data format. Based on industry feedback, 
the Bureau understands that creditors, mortgage brokers, title 
companies, investors, and other mortgage technology providers use 
systems with proprietary data formats. As a result, data must be 
translated between formats as it is transmitted from one point to 
another throughout the mortgage loan origination process. A standard 
format should lower those coordination costs. In addition, a standard 
format may also facilitate innovation in the financial services 
industry by making it easier for technology companies to create new 
programs that improve the mortgage origination process and lower 
industry costs, instead of tailoring programs to each firm's unique 
proprietary data format; may lower ongoing costs by facilitating 
industry adoption of mortgage documentation technology and reducing 
industry's reliance on paper files; and may ease the burden of staff 
time and resources devoted to on-site supervisory examinations by 
allowing for remote examinations of compliance. All of these benefits 
may reduce industry cost and burden in the long run, thereby reducing 
costs to consumers as well.
    The Bureau is aware that there are various efforts currently 
underway to standardize the format for storage and transmission of 
mortgage origination related data. To the extent that the Bureau's 
proposal may advance these efforts toward a standard electronic record 
format, the proposal may help eliminate multiple data formats, thereby 
increasing efficiency in the origination process, reducing industry 
costs in the long term, and reducing costs to consumers. Also, the 
Bureau is aware that many firms currently face significant internal 
costs for maintaining multiple internal technological systems. To the 
extent the Bureau's efforts reduce uncertainly regarding the eventual 
standard, a single data format specified by the Bureau may lower costs 
by enabling creditors to migrate from older data formats to a single, 
standard data format.
ii. Costs to Small Entities
    The proposed rule may result in costs to small entities. Under 
current rules, creditors must retain evidence of compliance with the 
disclosure requirements in Regulation X (i.e., a copy of the RESPA 
settlement statement) and Regulation Z (i.e., evidence of compliance 
generally) for five years and two years, respectively, but are not 
required to maintain such evidence an electronic, machine readable 
format. 12 CFR 1024.10(e); 1026.25. Based on industry feedback, the 
Bureau understands that firms currently rely on electronic systems for 
most aspects of the mortgage loan origination process, including 
electronic record creation and storage. Not all small creditors 
currently maintain data in a machine-readable format, however, and 
those who do may not retain it in the format that may ultimately be 
adopted. To comply with the proposed record retention provisions, 
therefore, creditors may be required to reconfigure existing document 
production and retention systems. For small creditors that maintain 
their own compliance systems and software, the Bureau does not believe 
that adding the capacity to maintain data in a standard machine 
readable format will impose a substantial burden, as the only 
requirement will be to output existing data to a new format and then 
store that data. The Bureau believes that the primary cost will be one-
time systems changes that could be accomplished at the same time that 
systems changes are carried out to comply with the new proposed Loan 
Estimate and Closing Disclosure. Similarly, small creditors that rely 
on vendors would likely rely on vendor software and systems to comply 
with the data retention requirement; at least one vendor already offers 
indefinite data storage to customers that use their web-based 
compliance tool.
    The Bureau understands, however, that requiring standardized, 
electronic records may be a significant burden for small creditors that 
do not currently have such electronic filing systems or use vendor 
software. To reduce the burden on small entities, the Bureau is 
considering an exemption from the electronic data retention 
requirements. See part VI above, section-by-section analysis for 
proposed Sec.  1026.25.
c. Compliance Requirements
    The proposal contains both specific proposed provisions with 
regulatory or commentary language (proposed provisions) as well as 
requests for comment on modifications where regulatory or commentary 
language was not specifically included (additional proposed 
modifications). The analysis below considers the benefits, costs, and 
impacts of the following major proposed provisions and the additional 
proposed modifications on small entities:
    1. The integration of the initial and closing disclosures (the Loan 
Estimate and Closing Disclosure, respectively),
    2. The definition of application,
    3. The disclaimer on pre-application written estimates,
    4. Permissible changes to settlement costs and re-disclosure of 
initial disclosures,
    5. Provision of the Closing Disclosure,
    6. The definition of the finance charge, and
    7. Implementation of new disclosures mandated by the Dodd-Frank 
Act.
    The analysis examines the benefits, costs, and impacts of the major 
provisions of the proposed rule against a pre-statutory baseline. This 
means that to the extent there are benefits, costs, or other relevant 
impacts emanating from the relevant provisions of the Dodd-Frank Act, 
those are combined with the benefits, costs, and impact of the 
regulation itself in conducting this analysis. The Bureau has 
discretion in future rulemakings to choose the most appropriate 
baseline for that particular rulemaking.

[[Page 51288]]

    The Bureau generally requests comment on the proposed provisions 
and additional proposed modifications and on the Bureau's assessment of 
the benefits, costs, and impacts on small entities of the major 
proposed provisions and additional proposed modifications.
i. Integrated Initial and Closing Disclosures
    The proposed rule requires that the Loan Estimate be provided to 
consumers within three business days after receipt of the consumer's 
application, to replace the early TILA disclosure and RESPA GFE, and 
that the Closing Disclosure be provided to consumers at least three 
business days prior to consummation, to replace the final TILA 
disclosure and RESPA settlement statement. As discussed above, TILA 
authorizes the Bureau to publish model forms for the TILA disclosures, 
while RESPA authorizes the Bureau to require the use of standard forms 
(e.g., the prescribed RESPA GFE and settlement statement forms). 
Accordingly, the Bureau is proposing to require the use of standard 
Loan Estimate and Closing Disclosure forms for mortgage loan 
transactions that are subject to RESPA, other than reverse mortgages. 
For transactions that are subject only to TILA, however, the forms 
would be model disclosures, consistent with the provisions of that 
statute. The proposed rule also incorporates prior informal guidance 
regarding compliance with HUD's 2008 Final RESPA Rule into Regulation Z 
and official commentary, as necessary and appropriate.
    Benefits to Small Entities. The integration of the early TILA 
disclosure and the RESPA GFE, and the revised TILA disclosure and the 
RESPA settlement statement, may benefit small entities, including small 
creditors, mortgage brokers, and settlement agents that provide the 
disclosures. It will reduce the number of disclosures that covered 
persons need to prepare and provide and the number of disclosure-
provision systems and processes that covered persons need to maintain. 
In addition, the three-page Loan Estimate would replace a three-page 
RESPA GFE and two-page early TILA disclosure, as well as incorporate 
other new disclosure requirements in the Dodd-Frank Act that might 
otherwise be provided separately.
    Most small entities that participated in the Small Business Review 
Panel process stated that the integrated forms would make it easier to 
explain transactions to consumers. One letter from several small entity 
settlement agents indicated that the new forms could actually lead to 
more questions during a closing; however, the Bureau is alternatively 
proposing and soliciting comment on removing from the integrated forms 
certain disclosures, such as the total interest percentage and costs of 
funds, which may be difficult to explain to consumers. Information 
submitted by several settlement agents indicates that requiring the use 
of standard forms and providing clearer regulatory guidance could save 
as much as 30 minutes per closing by standardizing practices across 
lenders and reducing confusion. Based on an industry estimate of a 
typical hourly wage of a settlement agent of $31 per hour, this 
translates into a dollar savings from the simplified closing forms of 
$16.50 per closing. Some portion of these savings would likely be 
passed on to the consumers.
    The integrated disclosures also permit creditors to consolidate 
certain numerical calculations. For example, Regulations Z and X 
currently require two different calculations for the disclosure of 
monthly payment information on the early TILA disclosure and the RESPA 
GFE. The integrated Loan Estimate consolidates these calculations into 
one monthly payment disclosure, which may facilitate compliance and 
ease burden on small entities. Other examples of overlapping but 
potentially different numerical disclosures required under Regulations 
Z and X include information about balloon payments and prepayment 
penalties.
    Costs to Small Entities. The integrated Loan Estimate and the 
Closing Disclosure would result in certain compliance costs to small 
entities. The Bureau believes that many of the costs of complying with 
these requirements would be common across the two disclosures, and 
therefore discusses them together here. In addition, the Bureau 
believes that these costs would consist primarily of one-time costs to 
revise software and compliance systems, as other costs of compliance 
should not vary significantly from the costs of complying with existing 
regulations.
    Small entities would need to adapt their software and compliance 
systems to produce the new forms. In addition to changing the format of 
the required forms, the new proposed forms would include several new 
disclosures that are required by the Dodd-Frank Act. The Bureau 
believes that this additional information would be added to the forms 
as part of the process of adapting software and compliance systems to 
produce the new forms, and therefore does not provide separate 
estimates for the costs of this additional information.
    Based on information provided by creditors and by software vendors, 
the Bureau believes that, in general, small creditors primarily rely on 
software and compliance systems provided by outside vendors. Based on 
industry feedback, the Bureau believes that that 95 percent of 
creditors outside the top 20 rely on vendors, and it is likely the case 
that the percentage of small creditors using vendors is even higher 
than this. The use of vendors by small creditors will substantially 
mitigate the costs of revising software and compliance systems, as the 
efforts of a single vendor would address the needs of a large number of 
creditors. Based on discussions with a leading mortgage origination 
technology provider, the Bureau believes that these updates would 
likely be included in regular annual updates, and therefore the costs 
would not be directly passed on to the client creditors. More than 95 
percent of small creditors, therefore, would not pay directly for 
software updates to comply with the new rules.
    Based on small entities that participated in the Small Business 
Review Panel process, the Bureau estimates that smaller creditors that 
maintain their own compliance software and systems would incur costs of 
roughly $100,000 to determine what changes need to be made and to 
update their systems to comply with the proposal.\224\ The total cost 
for these smaller creditors that maintain their own compliance software 
and systems is therefore $100,000*9,807*5%=$49,000,000 (rounded to the 
nearest $100,000). As noted above, the share of small entities that 
maintain their own compliance software and systems is likely less than 
five percent, so this is likely an over-estimate of the costs of 
revising these systems.
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    \224\ Small entities that participated in the Small Business 
Review Panel process provided a wide range of estimates. See Small 
Business Review Panel Report at 17-20.
---------------------------------------------------------------------------

    Covered persons would incur one-time costs associated with training 
employees to use new forms and any new compliance software and systems. 
The Bureau estimates that each loan officer or other loan originator 
will need to receive two hours of training, and that one trainer would 
be needed for each ten trainees. Assuming the same ratio of loan 
officers to originations at small creditors as for the industry as a 
whole, the Bureau estimates that there are 20,000 loan officers that 
would need training at these institutions.\225\ Based

[[Page 51289]]

on data from the Bureau of Labor Statistics, the Bureau estimates that 
the average total compensation is $46 per hour for a loan officer and 
$39 per hour for a trainer, for a total training cost of 
(20,000*2*$46)+(2,000*2*$39) = $2,000,000 (rounded to the nearest 
100,000).
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    \225\ Originations estimates based on analysis of HMDA, SNL Call 
Reports, NCUA Call Reports, and NMLS Call Reports.
---------------------------------------------------------------------------

    Taken together, the Bureau estimates that the total one-time costs 
for small entities of complying with the proposed Loan Estimate and 
Closing Disclosure would be roughly $51,000,000. As discussed above, 
firms are expected to amortize this cost over a period of years and in 
this analysis all costs are amortized over five years, using a simple 
straight-line amortization. Amortizing this one-time cost of compliance 
over five years yields an annual cost of $10,200,000. The Bureau 
estimates that these creditors made roughly 1.4 million originations in 
2010. The estimated annualized one-time cost is therefore less than $8 
per origination.
ii. Definition of Loan Application
    The proposed rule revises the regulatory definition of loan 
application to encourage earlier provision of the Loan Estimate to 
consumers.
    Under TILA and RESPA, a creditor or mortgage broker is not required 
to provide the good faith estimates of loan terms and settlement costs 
in the early TILA disclosure and RESPA GFE until it has received an 
``application.'' As discussed more fully in part VI above, section-by-
section analysis for proposed Sec.  1026.2(a)(3), under current 
regulations, the receipt of the following information by the creditor 
or mortgage broker constitutes receipt of an ``application'': (1) 
Borrower's name; (2) monthly income; (3) social security number to 
obtain a credit report; (4) the property address; (5) an estimate of 
the value of the property; (6) loan amount sought; and (7) any other 
information deemed necessary by the lender. The seventh item could 
allow creditors and mortgage brokers to delay providing the integrated 
Loan Estimate until relatively late in the loan process by delaying 
collection of information deemed ``necessary.'' The Bureau understands 
that some creditors currently provide non-binding written estimates of 
loan terms or settlement charges prior to issuing the early TILA 
disclosure or RESPA GFE. The current rules encourage creditors and 
mortgage brokers to provide the good faith estimates early in the loan 
process by prohibiting creditors from collecting any fees from a 
consumer (other than a credit report fee) until the estimates are 
provided. To further encourage early provision of estimates, the 
proposed rule removes the seventh item (``any other information deemed 
necessary by the lender'') from the definition of ``application.''
    Costs to Small Entities. The Bureau understands that eliminating 
creditors' and mortgage brokers' ability to wait to provide a good 
faith estimate until after they receive ``any other information deemed 
necessary'' could increase the burden on small creditors and mortgage 
brokers to the extent that it causes them to issue more Loan Estimates 
than they would under the current definition of application. If a 
creditor or mortgage broker obtains additional information from the 
consumer after the Loan Estimate has been issued that affects the costs 
of the settlement service for the loan, the creditor may need to issue 
a revised Loan Estimate. The Bureau is unaware of information that 
would allow it to estimate how often this would occur. The Bureau 
believes, however, if this were to impose substantial costs, creditors 
and mortgage brokers would mitigate this by adjusting their business 
practices surrounding the receipt of applications to gather other 
important information prior to, or at the same time as, they obtain the 
six items that together constitute an ``application.'' As discussed in 
part VII.F, above, the Bureau is working to obtain such data prior to 
issuing a final rule and is seeking comment on its plans for data 
analysis, as well as additional data and comment relevant to this 
issue.
iii. Disclaimer on Pre-Application Estimates
    The Bureau is proposing to require that any pre-application, 
consumer-specific written estimate of loan terms or settlement charges 
contain a prominent disclaimer indicating that the document is not the 
Loan Estimate required by TILA and RESPA. This requirement would not 
apply to general advertisements.
    Costs to Small Entities. To the extent small creditors and mortgage 
brokers currently provide such pre-application written estimates to 
consumers they would bear the costs of adding a disclaimer to those 
communications. However, the Bureau expects such costs to be de minimis 
since the Bureau is proposing a brief, standard statement for use by 
creditors, which should not require significant redesign of existing 
estimate materials or require additional pages.
iv. Changes in Settlement Costs/Redisclosures
    The proposed rule revises current rules regarding the circumstances 
in which a consumer may be charged more at closing for settlement 
services than the creditor estimated in the disclosure provided to the 
consumer three business days after application.
    As discussed more fully in part VI, section-by-section analysis for 
proposed Sec.  1026.19(e)(3), HUD's 2008 RESPA Final Rule limits the 
circumstances in which a creditor can charge the consumer more at 
consummation for settlement services than the creditor estimated in the 
RESPA GFE provided to the consumer three business days after 
application. These rules generally place charges into three categories: 
the creditor's charges for its own services, which cannot exceed the 
creditor's estimates unless an exception applies (``zero tolerance''); 
charges for settlement services provided by third parties, which cannot 
exceed estimated amounts by more than ten percent unless an exception 
applies (``ten percent tolerance''); and other charges that are not 
subject to any limitation on increases (``no tolerance''). The rule 
permits certain limited exceptions in which higher charges are 
permitted, such as when the consumer requests a change, when the RESPA 
GFE expires, or when valid changes in circumstance occur. The Bureau is 
aware of concerns that HUD's 2008 RESPA Final Rule is both too lax and 
too restrictive, and also that the rule is difficult to understand. The 
proposed rule attempts to address these concerns by balancing the 
objective of improving the reliability of the estimates creditors give 
consumers shortly after application with the objective of preserving 
creditors' flexibility to respond to unanticipated changes that occur 
during the loan process. Specifically, the proposed rule applies the 
zero tolerance category to a larger range of charges, including fees 
charged by an affiliate of the creditor and charges for services for 
which the creditor does not permit the consumer to shop. A service 
provider would be considered selected by the creditor if consumers are 
required to choose only from a list of service providers prepared by 
the creditor (i.e., if consumers are not permitted to shop for their 
own provider).
    For a sense of the scale of the potential impact, it is worth 
considering an extreme hypothetical example where all of the settlement 
services move from the ten percent tolerance category to the zero 
tolerance category. This is unlikely to happen in practice, but 
illustrates the largest possible effect of the regulatory change. For a 
loan with a total of $3,000 in settlement costs the maximum effect of 
the proposal would be that the creditor could not pass on $300 in cost

[[Page 51290]]

increases that occurred without an exception allowing the increase to 
be passed on the consumers.
    Benefits to Small Entities. Small entities may benefit from the 
proposed rule because it reduces compliance burden by resolving current 
regulatory ambiguities. For example, the proposed rule makes clear that 
creditors need not reissue Loan Estimates unless and until the costs 
that are subject to the ten percent tolerance standard increase based 
on valid changes in circumstance by more than ten percent in total. The 
proposed rule also revises the rule and provides more guidance to 
facilitate use of average cost pricing and reconciles certain 
inconsistences between RESPA and TILA terminology. The proposed rule 
further streamlines and clarifies HUD's 2008 RESPA Final Rule by 
incorporating prior HUD guidance into Regulation Z and its commentary, 
as necessary and appropriate. Further, to the extent the proposed rule 
reduces unnecessary redisclosure of the RESPA content currently 
provided on the GFE, the rule would decrease costs to creditors, 
although the extent to which the proposed rule would have such an 
effect is unknown. Reducing unnecessary redisclosure may also benefit 
consumers, to the extent that redisclosures lead to consumer confusion.
    The Bureau is not aware of reliable data showing how often 
creditors are providing additional disclosures that are not required by 
the current rule and that they would no longer send if the rules are 
clarified. As discussed in part VII.F, above, the Bureau is working to 
obtain such data prior to issuing a final rule and is seeking comment 
on its plans for data analysis, as well as additional data and comment 
relevant to this issue. Some creditors, however, have reported that 
additional clarity regarding redisclosure requirements for the RESPA 
GFE and average cost pricing would reduce the cost of compliance, in 
part, by reducing confusing over when redisclosure is permitted or 
required, and thereby reducing the need for legal advice.
    Costs to Small Entities. The Bureau understands that small entities 
may experience increased costs as a result of the proposal to apply the 
zero tolerance category to a larger range of charges. Since the 
proposed rule would expand the circumstances in which creditors could 
not pass increased costs to consumers when the initial estimate is 
lower than the actual costs but there is not a legitimate change in 
circumstances or other exception, creditors may be required to absorb 
more costs. This impact should be mitigated to the extent creditors are 
in a position to know the typical charges of affiliated firms and firms 
they engage repeatedly and require consumers to use, and can therefore 
provide estimates that are accurate when there is no changed 
circumstance. As discussed above, the Bureau is unaware of any data 
that can provide reliable market-wide estimates of the prevalence of 
changes between early TILA disclosures and RESPA GFEs and final loan 
terms and closing costs, and the causes of those changes. Therefore, 
the Bureau cannot provide estimates of how often creditors would have 
to absorb higher than expected costs that cannot be attributed to a 
changed circumstance. As discussed above, however, even in 
circumstances where settlement costs increase substantially and the 
creditor is unable to pass those charges on to the consumer, the 
difference between a ten percent tolerance and a zero tolerance will be 
limited.
    The Bureau also understands that the proposed rule may result in 
increased use of affiliated service providers, so that creditors can 
more directly control changes in settlement costs, which could have a 
negative impact on independent providers who are typically small 
entities. Some have argued that the negative impact on independent 
providers could lead to reduced competition for settlement services and 
ultimately higher costs. The Bureau is unaware of any evidence to 
suggest that costs are likely to increase in this way. Alternatively, 
the proposed rule may encourage creditors to allow consumers to choose 
settlement service providers that are not on a list provided to the 
consumer (although in this case the creditor would be required to 
provide consumers with a list of settlement service providers that the 
consumers could use, if they so choose), so that the zero tolerance 
requirement would not apply. This would appear to benefit independent 
service providers, or at least be neutral relative to current 
practices.
v. Provision of Closing Disclosure
    The proposed rule requires delivery of the integrated Closing 
Disclosure three business days before consummation in all cases. 
However, the Bureau is proposing two alternative approaches for 
assigning responsibility for providing the integrated Closing 
Disclosure to the consumer. Alternative 1 places sole responsibility 
for provision of the Closing Disclosure on the creditor, while 
Alternative 2 makes the creditor and settlement agent jointly 
responsible for providing the Closing Disclosure.
Timing of Closing Disclosure Provision
    TILA and RESPA establish different timing requirements for 
disclosing final loan terms and costs to consumers. As discussed more 
fully in part VI above, section-by-section analysis for proposed Sec.  
1026.19(f), TILA generally provides that, if the early disclosures 
contain an APR that is no longer accurate, the creditor shall furnish 
an additional, corrected disclosure to the consumer not later than 
three business days before consummation. RESPA, on the other hand, 
requires that the final statement of loan costs and terms is provided 
to the consumer at or before settlement. To meet the Dodd-Frank Act's 
mandate to integrate the disclosures required by TILA and RESPA, and to 
better facilitate consumer understanding of the costs, the proposed 
rule would require delivery of the integrated Closing Disclosure three 
business days before closing in all circumstances. However, to prevent 
unnecessary closing delays, the proposed rule would permit limited 
changes after provision of the Closing Disclosure to reflect common 
adjustments, such as changes to recording fees. In addition, reissuance 
of the Closing Disclosure and an additional three-business day waiting 
period would not be required if, during the three business days after 
issuance of the Closing Disclosure, the amount needed to close shown on 
the Closing Disclosure increases by $100 or less.
    Costs to Small Entities. The proposal to require provision of the 
Closing Disclosure three business days prior to consummation in all 
circumstances may result in closing delays. In extreme cases, such 
delays could cause a transaction to fall through if a consumer is under 
a contractual obligation to close by a certain date. Creditors and 
closing agents, however, currently coordinate to provide RESPA closing 
documents at closing. Both closing agents and creditors would have 
incentives to complete closings as scheduled, and therefore the Bureau 
believes that they would adjust their business practices such that the 
Closing Disclosure could be provided in a timely manner and closing 
problems would be infrequent. If the requirement does lead to delayed 
or canceled closings, this would impose costs on small entities. Such 
closing delays could result in loss of revenue for transactions that 
fall through due to a delay. The proposed rule may also create legal 
and reputational risks for creditors or settlement agents that are 
unable to close loans as planned.

[[Page 51291]]

Responsibility for Providing the Closing Disclosure
    TILA and RESPA require that different parties provide the final 
disclosures to consumers. Specifically, TILA requires the creditor to 
provide the TILA disclosures to consumers, while RESPA requires that 
the person conducting the settlement provide the final statement of 
settlement costs to the consumer. However, section 1419 of the Dodd-
Frank Act amended TILA to make creditors responsible for disclosing 
settlement cost information. See TILA section 128(a)(17). To reconcile 
these statutory differences and implement TILA section 128(a)(17), the 
Bureau is proposing two alternative approaches for assigning 
responsibility for provision of the integrated Closing Disclosure to 
consumers. Under Alternative 1, the creditor would be solely 
responsible for delivering the Closing Disclosure to the consumer. 
Under Alternative 2, the creditor and settlement agent would be jointly 
responsible for providing the consumer with an integrated Closing 
Disclosure three business days before closing.
    Benefits to Small Entities. Because the difference between 
Alternatives 1 and 2 is about which party would be responsible for 
providing a disclosure, the relative benefits of each proposal to 
different small entities are likely to consist of avoided costs. The 
most useful way to consider these alternatives, therefore, is to 
consider their respective costs.
    Costs to Small Entities--Alternative 1. Alternative 1 would likely 
place increased costs on creditors, including small creditors. As 
discussed above, RESPA and current Regulation X require that the person 
conducting the settlement provide the RESPA-required disclosures to 
consumers at or before consummation. Since, under Alternative 1, the 
creditor would be responsible for provision of both the TILA and RESPA 
content to the consumer, the creditor would incur additional logistical 
burden and legal risk.\226\ Small creditors and settlement agents may 
incur one-time legal fees under Alternative 1, since those entities may 
need to contractually stipulate their respective duties or amend 
existing contractual arrangements in light of the rule. Small creditors 
may also need to hire additional staff to handle the increased workload 
associated with collecting the settlement costs and coordinating with 
the settlement agents and third party service providers and preparing 
the disclosures. Since the current regulatory scheme of split 
responsibility, as well as the different roles of creditors and 
settlement agents in the transaction, already requires a great deal of 
coordination, it is not clear that giving the creditor sole 
responsibility for providing the disclosures would impose much 
additional burden. As a general matter, shifting responsibility for 
delivery of final RESPA disclosures from settlement agents to creditors 
may change the role of settlement agents, though the exact impact of 
such a rule is unclear. Settlement agents play a unique role in working 
through local real estate transaction requirements and practices, which 
creditors may be unlikely to take on.
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    \226\ As described in part VII, above, two major vendors 
currently provide software services to the vast majority of small 
mortgage originators to produce the RESPA GFE and initial TILA 
disclosures. RESPA settlement statements are currently issued by 
settlement agents using software provided a different, but similarly 
small, set of vendors; however, the Bureau understands that the 
originators' systems are capable of producing the RESPA settlement 
statements. As a result, the Bureau believes that it is reasonable 
to measure costs assuming that the originators' vendors will provide 
both the Loan Estimate and the Closing Disclosure to their clients 
under existing contracts. Were the current software providers for 
settlement agents to have to update their systems (under the second 
alternative or under other contractual arrangements), those vendors 
would have to incur the stated costs.
---------------------------------------------------------------------------

    Costs to Small Entities--Alternative 2. The costs to creditors and 
to settlement agents under the proposed alternative that gives joint 
responsibility for provision of the Closing Disclosure to creditors and 
settlement agents would depend on how creditors and settlement agents 
go about fulfilling the joint requirement. Joint provision would likely 
require coordination on the part of creditors and settlement agents 
similar to what is done today. One additional cost, however, may entail 
re-working that coordination to adjust to the new forms and timing 
requirement (discussed above).
vi. Expanded Definition of Finance Charge
    The proposed rule expands the definition of the finance charge for 
closed-end transactions secured by real property or a dwelling, 
consistent with the Board's 2009 Closed-End Proposal.
    As discussed more fully in part VI above, section-by-section 
analysis for proposed Sec.  1026.4, TILA and current Regulation Z 
exclude many types of charges from the finance charge, particularly for 
mortgage transactions. Concerns have long been raised that these 
exclusions undermine the potential usefulness of the finance charge and 
corresponding APR as a tool for consumers to compare the total cost of 
one loan to another. In addition, these exclusions create compliance 
burden and litigation risk for creditors and may encourage creditors to 
shift the cost of credit to excluded fees, a practice that is 
inefficient.
    The Bureau recognizes that the proposed more inclusive finance 
charge could affect coverage under other laws, such as such as higher-
priced mortgage loan and HOEPA protections, and that a more inclusive 
finance charge has implications for the HOEPA, Escrows, Appraisals, and 
Ability to Repay rulemakings identified in part II.F above. Absent 
further action by the Bureau, the more inclusive finance charge would:
     Cause more closed-end loans to trigger HOEPA protections 
for high-cost loans.\227\ The protections include special disclosures, 
restrictions on certain loan features and lender practices, and 
strengthened consumer remedies. The more inclusive finance charge would 
affect both the points and fees test (which currently uses the finance 
charge as its starting point) and the APR test (which under Dodd-Frank 
will depend on comparisons to APOR) for defining what constitutes a 
high-cost loan.
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    \227\ See part VII.D.7 above, for a detailed description of the 
potential effects of an expanded finance charge on the HOEPA 
rulemaking.
---------------------------------------------------------------------------

     Cause more loans to trigger Dodd-Frank Act requirements to 
maintain escrow accounts for first-lien higher-priced mortgage loans. 
Coverage depends on comparing a transaction's APR to the applicable 
APOR.
     Cause more loans to trigger Dodd-Frank Act requirements to 
obtain one or more interior appraisals for ``higher-risk'' mortgage 
loans. Coverage depends on comparing a transaction's APR to the 
applicable APOR.
     Reduce the number of loans that would otherwise be 
``qualified mortgages'' under the Dodd-Frank Act Ability to Repay 
requirements, given that qualified mortgages cannot have points and 
fees in excess of three percent of the loan amount. Also, more loans 
could be required to comply with separate underwriting requirements 
applicable to higher-priced balloon loans, and could be ineligible for 
certain exceptions authorizing creditors to offer prepayment penalties 
on fixed-rate, non-higher-priced qualified mortgage loans.\228\ Again, 
status as a higher-

[[Page 51292]]

priced mortgage loan depends on comparing APR to APOR.
---------------------------------------------------------------------------

    \228\ Specifically, the Dodd-Frank Act generally prohibits 
prepayment penalties on closed-end, dwelling-secured mortgage loans, 
except on fixed-rate qualified mortgages that are not higher-priced 
mortgage loans. For balloon loans, the Dodd-Frank Act generally 
requires creditors to assess consumers' ability to repay a higher-
priced loan with a balloon payment using the scheduled payments 
required under the terms of the loan including any balloon payment, 
and based on income and assets other than the dwelling itself. Only 
consumers with substantial income or assets would likely qualify for 
such a loan. A separate Dodd-Frank Act provision authorizing balloon 
loans made by creditors that operate predominantly in rural or 
underserved areas is not affected by the finance charge issue.
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    As discussed above in part VI, section-by-section analysis for 
proposed Sec.  1026.4 and in part VII, the Bureau is seeking data to 
model the impact of the more expansive definition of finance charge on 
coverage of each of these regulatory regimes or the impact of potential 
modifications that the Bureau could make to the triggers to more 
closely approximate existing coverage levels.\229\ The Bureau is 
working to obtain such data prior to issuing a final rule and is 
seeking comment on its plans for data analysis, as well as additional 
data and comment on the potential impacts of a broader finance charge 
definition and potential modifications to the triggers.
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    \229\ In its 2009 proposal, the Board relied on a 2008 survey of 
closing costs conducted by Bankrate.com that contains data for 
hypothetical $200,000 loans in urban areas. Based on that data, the 
Board estimated that the share of first-lien refinance and home 
improvement loans that are subject to HOEPA would increase by .6 
percent if the definition of finance charge was expanded, and that 
the share of first-lien loans in the range of typical home purchases 
or refinancings ($175,000 to $225,000) that qualified as higher-
priced mortgage loans would increase by 3 percent. The Board also 
looked at the impact on two states and the District of Columbia 
because their anti-predatory lending laws had triggers below the 
level of the historical HOEPA APR threshold, which is benchmarked to 
U.S. Treasury securities. The Board concluded that the percentage of 
first-lien loans subject to those laws would increase by 2.5 percent 
in the District of Columbia and 4.0 percent in Illinois, but would 
not increase in Maryland. The Bureau is considering the 2010 version 
of the Bankrate.com survey, but as described in this notice, the 
Bureau is also seeking additional data that would provide more 
representative information regarding closing and settlement costs 
that would allow for a more refined analysis of the proposals.
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    The Board previously proposed to address these effects by adopting 
an adjusted points and fees definition and a new metric for determining 
coverage under APR thresholds, known as the ``transaction coverage 
rate'' (TCR). The TCR would be based on a modified prepaid finance 
charge that would include only finance charges retained by the 
creditor, mortgage broker, or their affiliates, and would therefore 
more closely approximate existing coverage levels than a more inclusive 
finance charge. See 76 FR 27390, 27411-12 (May 11, 2011); 76 FR 11598, 
11608-09 (Mar. 2, 2011); 75 FR 58539, 58660-61 (Sept. 24, 2010).\230\ 
The Bureau has incorporated these measures into its 2012 HOEPA 
Proposal, and is seeking comment both in that proposal and this 
rulemaking on additional trigger modifications that could approximate 
coverage levels under the existing definition of finance charge, such 
as adjusting the numeric percentage point triggers for APR under HOEPA 
or other regimes.
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    \230\ The wording of the Board's proposed definition of 
``transaction coverage rate'' varied slightly between the 2010 
Mortgage Proposal and the 2011 Escrows Proposal as to treatment of 
charges retained by mortgage broker affiliates. In its 2012 HOEPA 
Proposal, the Bureau proposes to use the 2011 Escrows Proposal 
version, which would include charges retained by broker affiliates.
---------------------------------------------------------------------------

    If the adjusted points and fees definition, the TCR, or other 
trigger modifications were adopted in the other rules, the more 
inclusive finance charge definition would have little or no effect on 
coverage under those rules although there might still be effects from 
the expanded definition of finance charge on the coverage of various 
State mortgage laws and regulations. In addition, because the TCR 
excludes fees to unaffiliated third parties, the TCR might result in 
some loans not triggering one or more of the regulatory regimes 
discussed above that would qualify under an APR threshold using the 
current definition of finance charge.\231\ The discussion of the costs 
and benefits of a more inclusive definition of finance charge, below, 
assumes that the Bureau does not adopt the adjusted points and fees 
definition, the TCR, or other methods of addressing the impact of a 
more inclusive approach to the finance charge in the other rulemakings. 
If the Bureau does adopt those measures, the effects of the proposed 
definition of finance charge would be muted. For instance, the benefits 
of a simpler APR calculation may be lessened if creditors are required 
to use different metrics for purposes of disclosure and for determining 
coverage under various regulatory regimes, although as discussed below 
with regard to transaction coverage rate both metrics would be easier 
to calculate than APR using the existing definition of finance charge. 
In addition, the effects (both benefits and costs) through expanded 
coverage of those other rules would be eliminated or (in the case of 
TCR) somewhat reduced.
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    \231\ As discussed above in part VI, section-by-section analysis 
for proposed Sec.  1026.4, the Bureau believes that the margin of 
differences between the TCR and current APR is significantly smaller 
than the margin between the current APR and the APR calculated using 
the expanded finance charge definition because relatively few third-
party fees would be excluded by the TCR that are not already 
excluded under current rules. The Bureau is considering ways to 
supplement the data analysis described above to better assess this 
issue, and seeks comment and data regarding the potential impacts of 
the TCR relative to APR calculated using the current and proposed 
definitions of finance charge.
---------------------------------------------------------------------------

Benefits to Small Entities
    The proposed rule may benefit small entities by easing regulatory 
burden and litigation risk associated with the current complex rules 
for determining which fees are part of the finance charge. Because the 
current rules for determining which fees are part of the finance charge 
are complicated and unclear, creditors will benefit from a simpler, 
more inclusive definition. In particular, feedback received by the 
Bureau and comments on a similar proposal issued by the Board in the 
2009 indicate that, because a failure to calculate the finance charge 
and the APR accurately gives rise to the right of rescission, creditors 
incur substantial compliance costs attempting to make accurate 
calculations and incur substantial litigation costs defending against 
claims of inaccurate calculations.
Costs to Small Entities
    To comply with the proposed rule, small entities may be required to 
update compliance systems to reflect changes to the finance charge 
calculation. These updates may involve one-time costs associated with 
software updates, legal expenses, and personnel training time. As 
discussed above, if the Bureau adopts the proposal, it expects to 
provide an implementation period that would coincide either with 
implementation of the disclosure modifications or with implementation 
of certain changes to coverage of HOEPA and other regulatory regimes 
that would be affected by the change in definition. Accordingly, the 
Bureau believes that software changes and other expenses would be 
incurred as part of the overall software and compliance system 
revisions required to comply with the other simultaneous changes, and 
therefore would not impose a substantial additional burden.
    As discussed above, the proposed rule if it were implemented 
without modifications to the triggers for various regulatory regimes 
might cause more loans to cross Federal and State high cost or high 
priced loan thresholds based on APR or points and fees. With respect to 
the HOEPA and Appraisals rulemakings, creditors may incur costs 
associated with generating and providing HOEPA and appraisal 
disclosures for additional loans. Creditors may incur additional costs 
in the context of the Appraisals

[[Page 51293]]

rulemaking because the Dodd-Frank Act prohibits creditors from charging 
consumers for second appraisals conducted in connection with certain 
properties that have been sold in the last 180 days. Similarly, in the 
context of the Escrows rulemaking, creditors may incur costs associated 
with maintaining escrow accounts on more transactions if not subject to 
other exceptions provided by the Dodd-Frank Act. With respect to the 
Ability to Repay rulemaking, creditors may incur costs associated with 
making fewer loans with prepayment penalties, or may incur costs from 
the additional underwriting requirements and/or liability associated 
with making more loans that are higher-priced balloon loans or that are 
not qualified mortgages.
    In addition, a small number of creditors may also lose a very small 
fraction of revenue if they are reluctant to make high-cost, higher-
priced, or higher-risk mortgage loans and cannot offer alternatives 
that are as profitable as those loans.
    As discussed in more detail in the 2012 HOEPA Proposal, modifying 
the triggers would require some one-time implementation costs and would 
create some additional compliance complexity if creditors must use 
different metrics for disclosure purposes and for determining coverage 
under particular regulatory regimes. However, with regard to the 
transaction coverage rate, the Bureau believes that such impacts would 
be addressed by the fact that both TCR and APR using the expanded 
definition of finance charge would be easier to calculate than APR 
under the current definition. On balance, the Bureau believes adoption 
of the proposed trigger modifications would reduce the economic impacts 
on small entities of the more expansive definition of finance charge.
vii. Implementation of New Disclosures Mandated by the Dodd-Frank Act
    The proposed rule exempts creditors temporarily from compliance 
with certain new disclosure requirements added to TILA and RESPA by the 
Dodd-Frank Act until the TILA-RESPA rule takes effect.
    As discussed more fully in part V.B, above, title XIV of the Dodd-
Frank Act adds new disclosure requirements to TILA and RESPA for 
mortgage transactions. Although the Dodd-Frank Act does not 
specifically require inclusion of all of these new disclosures in the 
Loan Estimate and the Closing Disclosure, the Bureau believes these 
disclosures should be included in the integrated forms because doing so 
would improve the overall effectiveness of the integrated disclosure, 
which may benefit consumers and covered persons, and also reduce burden 
on covered persons. Finalizing the rules implementing these title XIV 
disclosures simultaneously with the final TILA-RESPA rule would avoid 
unnecessary regulatory burden by preventing creditors from having to 
implement multiple rounds of disclosure rules. The Bureau does not 
anticipate additional costs to covered persons as a result of delayed 
implementation of the new disclosure requirements, although, as noted 
above, small entities may incur additional recurring costs associated 
with calculating and disclosing this additional information to 
consumers once the implementing rules take effect.
viii. Costs Associated with Reviewing the Regulation
    Small entities will need to learn about the requirements of the 
regulation and determine what changes to their business practices they 
would be required to make to come into compliance. These costs will 
vary considerably across institutions, depending on the size and 
complexity of their operations. In addition, some firms will rely on 
their own staff to conduct this analysis, while others will rely on 
outside counsel, industry sources, or compliance firms. Firms that use 
compliance systems provided by outside vendors, especially smaller 
creditors, will likely rely in large part on those vendors to determine 
what changes they need to make, reducing the burden on those creditors.
d. Estimate of the Classes of Small Entities Which Will Be Subject to 
the Requirement and the Type of Professional Skills Necessary for the 
Preparation of the Report or Record
    Section 603(b)(4) of the RFA requires an estimate of the classes of 
small entities which will be subject to the requirement. The classes of 
small entities which will be subject to the recordkeeping and 
compliance requirements of the proposed rule are the same classes of 
small entities that are identified above in part VIII.B.3.
    Section 603(b)(4) of the RFA also requires an estimate of the type 
of professional skills necessary for the preparation of the reports or 
records. The Bureau does not anticipate that, except in certain rare 
circumstances, any professional skills will be required for 
recordkeeping and other compliance requirements of this proposed rule 
that are not otherwise required in the ordinary course of business of 
the small entities affected by the proposed rule. Part VIII.B.4.b and 
4.c summarize the recordkeeping and compliance requirements of the 
proposed rule that would affect small entities.
    With regard to the proposed recordkeeping requirements, the SERs 
reported that they generally use vendor-supplied computer systems to 
prepare the TILA and RESPA disclosures and retain scanned images of 
those disclosures electronically, but they do not retain those records 
in a machine readable format.\232\ As discussed above, however, the 
Bureau believes that vendors will update their software and provide 
small creditors with the ability to retain the required data. The one 
situation in which a small entity would require professional skills 
that are not otherwise required in the ordinary course of business 
would be if a small creditor does not use computerized systems to store 
loan information and therefore will either need to hire staff with the 
ability to implement a machine-readable data retention system or 
contract with one of the vendors that provides this service.
---------------------------------------------------------------------------

    \232\ See Small Business Review Panel Report at 25.
---------------------------------------------------------------------------

    With regard to the proposed compliance requirements, as discussed 
above, the Bureau understands that, based on feedback from the SERs, 
the small entities that will be affected by the proposed rule will 
continue to perform the basic functions that they perform today: 
generating disclosure forms (and answering consumers' questions about 
them), taking loan applications, redisclosing estimates of settlement 
costs, providing final disclosures, maintaining recordkeeping systems 
that store documents electronically (but not necessarily in a machine 
readable format), and maintaining systems to calculate the APR. The 
major elements of the proposed rule, described earlier in this part 
VIII, relate to these continuing functions. Therefore, the Bureau 
believes that small entities will have the professional skills 
necessary to comply with the proposed rule.
    Specifically with regard to the requirement to use the integrated 
disclosure forms, the SERs identified potentially significant one-time 
costs associated with changing software systems to produce the forms 
and provided a wide range of estimates of one-time costs of training 
staff and related parties to use the new integrated forms and update 
systems and processes.\233\ The SERs also reported that they typically 
contract out to third party software vendors the design of the 
disclosure forms provided to consumers, and pay annual fees to such

[[Page 51294]]

vendors for upgrades. The SERs did not express any concerns that the 
design and implementation of the forms or the use of the integrated 
disclosure forms on an ongoing basis would require their staff to 
possess a different set of professional skills than that required in 
the ordinary course of business currently. Furthermore, while the SERs 
identified potential upfront and ongoing training costs as a result of 
the proposals under consideration at the time, the Bureau believes 
efforts to train small entity staff on the updated software and 
compliance systems would be reinforcing existing professional skills 
sets above those needed in the ordinary course of business and to 
comply with HUD's 2008 Final RESPA Rule (which, as discussed above, 
significantly overhauled the design and content of the RESPA GFE and 
settlement statement disclosures given to consumers).
---------------------------------------------------------------------------

    \233\ See id. at 18.
---------------------------------------------------------------------------

    In addition, although the Bureau acknowledges the possibility that 
certain small entities may have to hire additional staff as a result of 
certain aspects of the proposed rule, the Bureau has no evidence that 
such additional staff will have to possess a qualitatively different 
set of professional skills than small entity staff employed currently. 
The Bureau presumes that additional staff that small entities may need 
to hire would generally be of the same professional skill set as 
current staff. For example, if the Bureau were to adopt the Alternative 
1 proposal regarding responsibility for who provides the Closing 
Disclosure (i.e. making creditors responsible), small creditors may 
need to hire additional staff to handle the increased work load 
resulting from the reallocation of existing responsibilities between 
creditors and settlement agents. As a more general matter, to the 
extent the proposed rule adds new disclosures that will need to be 
generated and explained to consumers, the Bureau anticipates that any 
incremental increase in the complexity of such tasks for small entity 
staff will be counterbalanced by the regulatory streamlining and 
clearer guidance provided by the proposed rule.
5. Identification, to the Extent Practicable, of All Relevant Federal 
Rules which May Duplicate, Overlap, or Conflict with the Proposed Rule.
    The proposed rule is intended to consolidate the overlapping and, 
in some cases, duplicative mortgage disclosure regulations under TILA 
and RESPA into a single set of requirements and to resolve conflicts 
between the two. The Bureau is not aware of any other Federal 
regulations that currently duplicate, overlap, or conflict with the 
proposed rule.
    However, the Bureau is currently developing other proposed or final 
rules required by title XIV of the Dodd-Frank Act, including rules 
addressing ability-to-pay standards for qualified mortgages, mortgage 
loan originator compensation, mortgage loans subject to HOEPA, mortgage 
servicing, and appraisal practices. As discussed above, the Bureau is 
aware of concerns that aspects of the proposed rule could affect the 
Bureau's rulemakings concerning HOEPA, Escrows, Appraisals, and 
Ability-to-Repay. In particular, some SERs expressed concern that an 
unintended consequence of a more inclusive approach to the finance 
charge could be that more loans would qualify as high-cost loans 
subject to additional requirements under HOEPA or similar State 
statutes that use the finance charge or the APR as a trigger.\234\ As a 
result, the SERs generally requested that the Bureau adjust these 
thresholds, to the extent possible, to account for the more inclusive 
finance charge. In response to this feedback, the Panel recommended in 
the Small Business Review Panel Report that, before issuing a final 
rule, the Bureau consider the impact of the more inclusive finance 
charge on its other rulemakings, and that it adopt any alternatives or 
adjustments in the final rule or the Bureau's other rulemakings that 
would reduce burden on small entities while still accomplishing the 
goals of the more inclusive finance charge.
---------------------------------------------------------------------------

    \234\ The Bureau acknowledged this possible effect in the Small 
Business Review Panel Outline.
---------------------------------------------------------------------------

    Based on this feedback and consistent with the Small Business 
Review Panel's recommendation, the Bureau has considered the 
requirements of TILA section 129 (high-cost mortgages) and TILA section 
129C (qualified mortgages), including the Dodd-Frank Act amendments to 
those provisions, as well as State predatory lending laws, in proposing 
the amendments to Sec.  1026.4. For example, the Board previously 
proposed two means of reconciling an expanded definition of the finance 
charge with existing thresholds for loan APR and points and fees. The 
Bureau believes that it is helpful to analyze any threshold adjustments 
on a rule-by-rule basis, so in addition to seeking general comment in 
this rulemaking it has incorporated these adjustments into its 2012 
HOEPA Proposal and is seeking comment on additional adjustments that 
could approximate coverage levels under the existing definition of 
finance charge, such as adjusting the numeric percentage point triggers 
for APR under HOEPA.
    The Bureau will consider any final or proposed rules implementing 
the regulatory regimes that rely on APR and points and fees triggers 
prior to issuing a final rule on definition of finance charge. As 
discussed above, the Bureau believes that it would be preferable to 
make any change to the definition of finance charge and any related 
adjustments in regulatory triggers take effect at the same time, in 
order to provide for consistency and efficient systems modification, 
and is seeking comment on the best sequencing for implementation 
periods in light of the related rulemakings.
    In addition, title XIV of the Dodd-Frank Act amends TILA and RESPA 
to add new disclosures that must be provided in the Loan Estimate or 
Closing Disclosure (e.g., disclosure of escrow payment amounts and 
aggregate settlement charges). In addition, title XIV adds other new 
mortgage disclosure requirements (e.g., warnings regarding negative 
amortization and State anti-deficiency laws). Although the Dodd-Frank 
Act does not specifically mandate inclusion of these new disclosures in 
the Loan Estimate and Closing Disclosure, the Bureau is proposing that, 
to avoid duplication, overlaps, and conflicts, these new disclosures be 
included in the integrated forms. See part V.B above for further 
discussion.
6. Description of Any Significant Alternatives to the Proposed Rule 
which Accomplish the Stated Objectives of Applicable Statutes and 
Minimize Any Significant Economic Impact of the Proposed Rule on Small 
Entities.
a. Initial and Final Disclosures
    As noted above, under the proposed rule, the Loan Estimate would be 
provided to consumers within three business days after application and 
replace the early TILA disclosure and RESPA GFE, and the Closing 
Disclosure would be provided to consumers at least three business days 
prior to the closing of the loan transaction and replace the final TILA 
disclosure and RESPA settlement statement. In the Small Business Review 
Panel Report, the Panel made a number of recommendations regarding the 
Loan Estimate and Closing Disclosure that could potentially reduce the 
impact of the proposed rule on small entities, while accomplishing the 
stated objectives of applicable statutes.
i. Prototype Forms
    As discussed in the Small Business Review Panel Report, on the 
whole, the

[[Page 51295]]

SERs strongly preferred the Bureau's prototype integrated disclosure 
forms to the current TILA and RESPA disclosure forms, but expressed 
concerns about the one-time costs and ongoing costs associated with 
generating the prototype integrated forms. In particular, the SERs 
anticipated significant one-time software upgrade and training costs, 
though their estimates varied greatly. (These costs are described in 
greater detail in part VIII.B.4.c.i, above.) SERs generally stated that 
these costs would be less burdensome if the Bureau provided a 
substantial compliance period to upgrade systems and to train staff, 
but SERs requested a variety of periods. The Panel recommended that the 
Bureau provide a compliance period that permits sufficient time for 
small entities to make necessary system upgrades and provide training, 
and that the Bureau solicit public comment on the amount of time needed 
for such upgrades and training.
    In part V.A, above, the Bureau discusses the mandatory compliance 
period for the proposed rule and notes that, although Bureau wishes to 
make the rule effective as soon as possible because it will provide 
important benefits to consumers, the Bureau understands that the final 
rule will require lenders, mortgage brokers, and, under Alternative 2 
regarding provision of the Closing Disclosure, settlement agents to 
make extensive revisions to their software and to retrain their staff. 
The Bureau is seeking comment on how much time industry needs to make 
these changes, and specifically requests details on the required 
updates and changes to systems and other measures that would be 
required to implement the rule and the amount of time needed to make 
those changes. Furthermore, with respect to small entities, the Bureau 
is following the Panel's recommendation and soliciting comment on 
whether small entities affected by the rule should have additional time 
to comply with the final rule.
ii. Testing
    As discussed in the Small Business Review Panel Report, the SERs 
suggested that the prototype forms could be further improved through 
testing on actual loan transactions. The Panel recognized that the 
Bureau has developed the prototype forms through qualitative, one-on-
one testing with consumers, lenders, mortgage brokers, and settlement 
agents and that the Bureau has solicited extensive public feedback on 
the prototype forms through its Web site, but recommended that the 
Bureau explore the feasibility of conducting such testing before 
issuing a final rule. Based on this recommendation, the Bureau plans to 
explore the feasibility of conducting such testing before issuing a 
final rule.
iii. Clear Guidance
    As discussed in the Small Business Review Panel Report, the Bureau 
indicated in the Small Business Review Panel Outline that it was 
considering proposing to require the use of standard forms for mortgage 
loan transactions that are subject to RESPA and to promulgate model 
forms for TILA-only transactions, and sought feedback from the SERs 
regarding their preference for promulgation of standard or model 
disclosure forms. Moreover, the Bureau indicated that it was 
considering providing additional guidance regarding compliance with the 
regulations affecting mortgage disclosures. On both issues, however, 
the Bureau sought feedback from SERs. As discussed in the Small 
Business Review Panel Report, the SERs generally stated a preference 
for standard forms and clearer guidance. In response to this feedback, 
the Panel recommended that the Bureau provide more detailed guidance on 
how to complete the integrated forms (including, as appropriate, 
samples of completed forms for a variety of loan transactions) and that 
the Bureau consider whether mandating use of the integrated forms would 
result in more consistent disclosures for consumers while also easing 
the compliance burden on small entities. The Panel also recommended 
that, in the proposed rule, the Bureau solicit public comment on 
mandating use of the integrated forms. As discussed above, the Bureau 
is proposing to require the use of standard forms for mortgage loan 
transactions that are subject to RESPA, but for transactions that are 
subject only to TILA, the forms would be models, consistent with the 
provisions of that statute.
iv. Total Interest Percentage and Average Cost of Funds
    As discussed in the Small Business Review Panel Report, the SERs 
expressed concerns that the total interest percentage and average cost 
of funds disclosures required under the Dodd-Frank Act would be 
difficult to calculate, difficult to explain to consumers, and likely 
not helpful to consumers.\235\ The Panel recognized that these 
disclosures are required by the Dodd-Frank Act, but recommended that 
the Bureau consider revisions to these disclosures that would minimize 
the burden on small entities while still ensuring that consumers 
receive important information about mortgage transactions. The Panel 
also recommended that the Bureau solicit comment on whether these 
disclosures would be helpful to consumers and the costs, if any, these 
disclosures would impose on small entities. The prototype disclosure 
forms appended to the proposed rule include the total interest 
percentage and average cost of funds disclosures. However, following 
the Panel's recommendation, the Bureau is alternatively proposing to 
exempt transactions subject to this proposal from disclosing the total 
interest percentage disclosure and the lender cost of funds, as 
discussed in part VI above, section-by-section analysis for proposed 
Sec. Sec.  1026.37(l)(3) and 1026.38(o)(5) and (6).
---------------------------------------------------------------------------

    \235\ However, as the Small Business Review Panel Report notes 
on page 28, the SERs did not provide specific estimates of the costs 
to calculate these amounts or to explain these amounts to consumers, 
nor did they provide evidence to support the claim that this 
information would be unhelpful to consumers.
---------------------------------------------------------------------------

v. Use of Line Numbers
    As discussed in the Small Business Review Panel Report, several 
SERs stated that removing the current RESPA settlement statement line 
numbers from the integrated Closing Disclosure would significantly 
increase the cost of software upgrades. The Panel recognized that the 
prototype Closing Disclosure was developed through consumer testing to 
enable consumers to compare the final costs to those provided in the 
Loan Estimate and that the proposed form of the Closing Disclosure 
would necessitate reordering and relabeling of many of the line numbers 
on the current disclosures (e.g., due to the proposed revisions being 
considered to the tolerance rules). The Panel recommended that the 
Bureau solicit comment on whether an alternative design or numbering 
format (including incorporating the current RESPA settlement statement 
line numbers to the extent consistent with the proposals) would impose 
a lower amount of software-related costs on lenders, mortgage brokers, 
mortgage companies, and settlement agents while enabling consumers to 
compare loan terms to the same extent as the current prototype forms. 
Following the Panel's recommendation, the Bureau is soliciting comment 
on these issues in part VI above, section-by-section analysis for 
proposed Sec.  1026.37(f).
vi. Optional Signature Line
    As discussed in the Small Business Review Panel Report, page five 
of the prototype Closing Disclosure includes a signature block for the 
consumer to

[[Page 51296]]

acknowledge receipt of the Closing Disclosure. Some SERs were concerned 
that consumers might be confused about the effect of signing to 
acknowledge receipt of the Closing Disclosure. In response to these 
concerns, the Panel recommended that the Bureau consider whether the 
language on the prototype forms should be revised, or whether 
additional guidance should be provided to clarify the effect of a 
signature on the consumer's legal obligations. Following the Panel's 
recommendation, the Bureau is soliciting comment on such issues in part 
VI above, section-by-section analysis for proposed Sec.  1026.38(s).
b. Definition of Loan Application
    As discussed in the Small Business Review Panel Report, the Bureau 
has considered eliminating the seventh element of the application 
definition and replacing it with additional items that would, along 
with the six specific items in the current definition that the Bureau 
proposes to retain, enable the creditor or mortgage broker to provide a 
reasonably accurate Loan Estimate. The Panel recognized that the SERs 
disagreed about whether the seventh item in the application definition 
was necessary to provide a reasonably accurate Loan Estimate, and there 
was a lack of consensus among the SERs who opposed elimination of the 
seventh item about what additional information would be needed. 
Following the Panel's recommendation, the Bureau is soliciting public 
comment in part VI above, section-by-section analysis for the proposed 
Sec.  1026.2(a)(3) on what, if any, additional specific information 
beyond the six specific items included under the proposed definition of 
application is needed to provide a reasonably accurate Loan Estimate.
c. Changes in Settlement Costs; Redisclosure
    As discussed in the Small Business Review Panel Report, the Bureau 
indicated in the Small Business Review Panel Outline that it has 
considered preserving HUD's 2008 RESPA Final Rule in its entirety. 
However, as mentioned in such materials and as discussed further in 
part VI above, section-by-section analysis for proposed Sec.  
1026.19(e), above, the Bureau believes that the current rules can 
likely be improved by requiring creditors to provide consumers with 
more accurate estimates of settlement charges and reducing compliance 
burden for industry.
    As discussed in the Small Business Review Panel Report, the SERs 
generally expressed concern about the potential unintended consequences 
of applying the proposed zero percent tolerance standard (instead of 
the current ten percent tolerance) to affiliate fees and fees charged 
by creditor-selected providers. However, the SERs generally supported 
additional clarifications and guidance regarding the current tolerance 
rules. In response to this feedback, the Panel recommended that the 
Bureau consider alternatives to expanding application of the zero 
percent tolerance that would increase the reliability of cost estimates 
while minimizing the impacts on small entities. The Panel also 
recommended that the Bureau solicit comment on whether the current 
tolerance rules have sufficiently improved the reliability of the 
estimates that creditors give consumers, while preserving creditors' 
flexibility to respond to unanticipated changes that occur during the 
loan process. The Bureau has adopted these recommendations in the 
proposed rule. See part VI, section-by-section analysis for proposed 
Sec.  1026.19(e).
    As discussed in the Small Business Review Panel Report, the Bureau 
also considered narrowing the exceptions permitting increases in 
settlement charges in order to restrict the ability of a creditor to 
charge more for its own services or for third-party settlement services 
than the creditor initially estimated. Such an approach, if adopted, 
would have likely reduced the ability of creditors, including small 
entity creditors, to pass on changes in settlement costs to consumers 
and, accordingly, increased the extent to which creditors bore the 
associated risk. However, the Bureau chose not to incorporate this 
approach into the proposal because of its concern that it could prevent 
creditors from increasing settlement charges to reflect justifiable 
increases in costs.
d. Provision of the Closing Disclosure
    As discussed in the Small Business Review Panel Report, the Bureau 
has also considered requiring provision of the Closing Disclosure three 
business days before closing only when, after the Loan Estimate is 
given, the APR in the Loan Estimate increases by more than one-eighth 
of one percent or an adjustable-rate feature is added to the loan. In 
all other circumstances, the Closing Disclosure would have been 
provided at or before consummation. However, the Bureau is concerned 
that this approach would allow significant increases in the cash needed 
to close without sufficient notice to the consumer.
    In addition, the Bureau has considered expanding the current rules 
allowing consumers to waive the three-business-day waiting period in 
cases of bona fide personal financial emergency. However, the Bureau is 
concerned that such an expansion would enable creditors to pressure 
consumers into waiving the waiting period because consumers may be 
unwilling or unable to challenge a cost increase that occurs shortly 
before consummation.
    As noted in the Small Business Review Panel Report, the SERs 
generally opposed requiring provision of the integrated Closing 
Disclosure three business days before consummation. The Panel 
acknowledged this feedback, but recognized that statutory requirements 
limit the discretion of the Bureau to shorten the three-business-day 
waiting period. Therefore, the Panel recommended that the Bureau 
continue to explore whether the potential impact of the three-business-
day requirement on small entities can be mitigated while maintaining 
the benefits to consumers by, for example, permitting limited changes 
after provision of the Closing Disclosure. Following the Panel's 
recommendation, the Bureau has included in proposed Sec.  1026.19(f)(2) 
a list of permitted changes after provision of the Closing Disclosure.
    Regarding which party is responsible for providing the Closing 
Disclosure to the consumer, the Bureau has also considered making the 
settlement agent solely responsible for this task. However, the Bureau 
understands that settlement agents may not have access to much of the 
information regarding loan terms that must be disclosed in the Closing 
Disclosure.
e. Recordkeeping and Data Collection
    The issues regarding the Bureau's proposed record retention 
requirements and the alternatives the Bureau has considered (i.e., a 
small entity exemption) are discussed in part VIII.B.4.b, above.
f. Annual Percentage Rate
    As discussed in the Small Business Review Panel Report, most lender 
SERs supported the more-inclusive definition of finance charge, but 
some expressed concern about including taxes and insurance that are 
required to be paid to an escrow account in the finance charge. In 
response to this feedback, the Panel recommended that the Bureau 
consider excluding escrowed taxes and insurance from the more inclusive 
finance charge, unless those amounts would otherwise be considered 
finance charges under the expanded definition. The Bureau has proposed 
a revised definition of finance charge in Sec.  1026.4 that 
incorporates the Panel's recommendation.

[[Page 51297]]

    Moreover, the Panel recommended that, before issuing a final rule 
to integrate the TILA and RESPA mortgage disclosure requirements, the 
Bureau consider the impact of the more inclusive finance charge on its 
other rulemakings, and that it adopt any alternatives or adjustments in 
the final TILA-RESPA rule or the Bureau's other rulemakings that would 
reduce burden on small entities while still accomplishing the goals of 
the more inclusive finance charge. As discussed above in part II.F, in 
the section-by-section analysis for proposed Sec.  1026.4 in part VI, 
and in part VIII.B.5, the Bureau has carefully considered alternatives 
that would mitigate the impact of the more inclusive finance charge on 
all entities subject to the proposed rule, including small entities. 
Addition discussion will be provided in other proposed and final rules 
issues by the Bureau. Furthermore, the Bureau will carefully consider 
the comments received on this issue and perform further analysis prior 
to issuing a final rule.
7. Discussion of Impact on Cost of Credit for Small Entities
    Section 603(d) of the RFA requires the Bureau to consult with small 
entities regarding the potential impact of the proposed rule on the 
cost of credit for small entities and related matters. 5 U.S.C. 603(d). 
To satisfy these statutory requirements, the Bureau provided 
notification to the Chief Counsel on February 7, 2012, that the Bureau 
would collect the advice and recommendations of the same small entity 
representatives identified in consultation with the Chief Counsel 
through the Small Business Review Panel process concerning any 
projected impact of the proposed rule on the cost of credit for small 
entities.\236\ The Bureau sought to collect the advice and 
recommendations of the small entity representatives during the Small 
Business Review Panel Outreach Meeting regarding the potential impact 
on the cost of business credit because, as small financial service 
providers, the SERs could provide valuable input on any such impact 
related to the proposed rule.\237\
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    \236\ See 5 U.S.C. 603(d)(2)(A). The Bureau provided this 
notification as part of the notification and other information 
provided to the Chief Counsel with respect to the Small Business 
Review Panel process pursuant to section 609(b)(1) of the RFA.
    \237\ See 5 U.S.C. 603(d)(2)(B).
---------------------------------------------------------------------------

    At the time the Bureau circulated the Small Business Review Panel 
Outline to the SERs in advance of the Panel Outreach Meeting, it had no 
evidence that the proposals then-under consideration would result in an 
increase in the cost of business credit for small entities. Instead, 
the summary of the proposals stated that the proposals would apply to 
only mortgage loans obtained by consumers primarily for personal, 
family, or household purposes, and the proposals would not apply to 
loans obtained primarily for business purposes.\238\
---------------------------------------------------------------------------

    \238\ See TILA section 104(1); RESPA section 7(a)(1).
---------------------------------------------------------------------------

    At the Panel Outreach Meeting, the Bureau asked the SERs a series 
of questions regarding cost of business credit issues.\239\ The 
questions were focused on two areas. First, the SERs from commercial 
banks/savings institutions, credit unions, and mortgage companies were 
asked whether, and how often, they extend to their customers closed-end 
mortgage loans to be used primarily for personal, family, or household 
purposes but that are used secondarily to finance a small business, and 
whether the proposals then-under consideration would result in an 
increase in their customers' cost of credit. Second, the Bureau 
inquired as to whether, and how often, the SERs themselves take out 
closed-end, home-secured loans to be used primarily for personal, 
family, or household purposes and use them secondarily to finance their 
small businesses, and whether the proposals under consideration would 
increase the SERs' cost of credit.
---------------------------------------------------------------------------

    \239\ See the Small Business Review Panel Report at appendix D, 
154-155 (PowerPoint slides from the Panel Outreach Meeting, ``Topic 
7: Impact on the Cost of Business Credit'').
---------------------------------------------------------------------------

    In general, the lender SERs reported making few mortgage loans that 
are used primarily for personal, family, or household purposes (and 
therefore are covered by TILA and RESPA) but that are used, 
secondarily, to finance a small business. In addition, the few loans 
they described making would appear to fall within the TILA and RESPA 
exceptions for loans made primarily for business purposes,\240\ and 
therefore would not be subject to the proposed rule.
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    \240\ See TILA section 104(1); RESPA section 7(a)(1).
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    The Bureau recognizes that some mortgages, especially second lien 
mortgages or cash-out refinancings, may be used in part or in whole to 
finance small businesses, without the knowledge of the creditor. Based 
on the overall impact of the proposal, however, the Bureau does not 
believe that the proposal would lead to an increase in the cost of 
mortgage lending. As discussed above in part VII, the Bureau estimates 
that the most burdensome aspect of the proposal, the systems revision 
required to provide the new Loan Estimate and Closing Disclosure, would 
lead to a one-time cost that, on an annualized basis, is equivalent to 
less than $3 dollars per mortgage origination. The proposal, therefore 
would not lead to an increase in the cost of credit to small businesses 
even if small businesses were to use closed-end mortgages credit for 
financing.
    As discussed in the Small Business Review Panel Report, the Bureau 
considered various alternatives regarding the regulatory definition of 
application, permissible changes in settlement costs, timing and 
provision of the Closing Disclosure, and recordkeeping requirements, 
and consulted with the Small Business Review Panel on those 
alternatives. See Small Business Review Panel Report at 9-12. For 
example, the Bureau considered an exemption for small entities from the 
electronic data recordkeeping requirements in proposed Sec.  1026.25. 
Id. at 12. The Bureau consulted on alternatives that would achieve the 
statutory objectives while minimizing the cost of credit for small 
entities.

IX. Paperwork Reduction Act

    The collection of information contained in this notice of proposed 
rulemaking, and identified as such, will be submitted to the Office of 
Management and Budget (OMB) for review under section 3507(d) of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (Paperwork 
Reduction Act or PRA). Under the PRA, the Bureau may not conduct or 
sponsor, and a person is not required to respond to, this information 
collection unless the information collection displays a currently valid 
control number.
    This proposed rule would amend 12 CFR part 1024 (Regulation X) and 
12 CFR part 1026 (Regulation Z). Both Regulations X and Z currently 
contain collections of information approved by OMB. The Bureau's OMB 
control number for Regulation X is 3170-0016 and for Regulation Z is 
3170-0015. As described below, the proposed rule would amend the 
collections of information currently in Regulation X and Regulation Z. 
As previously discussed, the Dodd-Frank Act amended TILA and RESPA to 
mandate specifically that the Bureau propose rules and forms combining 
the TILA and RESPA disclosures for mortgage loans subject to either law 
or both laws. Dodd-Frank Act sections 1098, 1100A. The Dodd-Frank Act 
requires the Bureau to publish proposed rules and forms combining the 
disclosures by July 21, 2012. Dodd-Frank Act section 1032(f). The Dodd-
Frank Act also made

[[Page 51298]]

several amendments to the disclosure requirements in TILA and RESPA. 
Based on the specific statutory mandate to combine the disclosures 
under TILA and RESPA, the Bureau is proposing to amend Regulation X and 
Regulation Z to establish new disclosure requirements and forms in 
Regulation Z for closed-end consumer credit transactions secured by 
real property, other than reverse mortgages. Accordingly, the proposed 
rule requires that an integrated Loan Estimate be provided to consumers 
within three business days after receipt of the consumer's application 
to replace the early TILA disclosure and RESPA GFE, and that an 
integrated Closing Disclosure be provided to consumers at least three 
business days prior to consummation to replace the final TILA 
disclosure and RESPA settlement statement. The proposed rule also 
contains new electronic recordkeeping requirements.
    The information collection in the proposed rule is required to 
provide benefits for consumers and would be mandatory. See 15 U.S.C. 
1601 et seq.; 12 U.S.C. 2601 et seq., 5532(f). Because the Bureau does 
not collect any information under the proposed rule, no issue of 
confidentiality arises. The likely respondents would be commercial 
banks/savings institutions, credit unions, mortgage companies (non-bank 
lenders), mortgage brokers, and settlement agents \241\ that would be 
required under the proposed amendments to Regulations Z and X, to 
provide to consumers, and maintain related electronic records on, the 
integrated TILA-RESPA mortgage disclosures, either because they make 
mortgage loans subject to the proposed rule or because they may be 
responsible for completing or providing required disclosures.\242\
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    \241\ Although respondents under PRA for Regulation Z also 
include mortgage brokers and settlement agents, for purposes of the 
PRA analysis, the Bureau assumes that the creditor takes on the 
obligation to deliver the Loan Estimate and Closing Disclosure. 
Accordingly, there is minimal burden attributed to brokers and 
settlement agents.
    \242\ For purposes of this PRA analysis, references to 
``creditors'' or ``lenders'' shall be deemed to refer collectively 
to commercial banks, savings institutions, credit unions, and 
mortgage companies (i.e., nondepository lenders), unless otherwise 
stated. Moreover, reference to ``respondents'' shall generally mean 
all categories of entities identified in the sentence to which this 
footnote is appended, except as otherwise stated or if the context 
indicates otherwise.
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    Under the proposed rule, the Bureau would account for the entire 
paperwork burden for respondents under Regulation X. The Bureau 
generally would also account for the paperwork burden associated with 
Regulation Z for the following respondents pursuant to its 
administrative enforcement authority: insured depository institutions 
with more than $10 billion in total assets, their depository 
institution affiliates, and certain nondepository institutions. The 
Bureau and the FTC generally both have enforcement authority over 
nondepository institutions for Regulation Z. Accordingly, the Bureau 
has allocated to itself half of the estimated burden to nondepository 
institutions. Other Federal agencies are responsible for estimating and 
reporting to OMB the total paperwork burden for the institutions for 
which they have administrative enforcement authority. They may, but are 
not required to, use the Bureau's burden estimation methodology.
    For purposes of this analysis, the Bureau assumes that any burden 
increase associated with the proposed rule is allocated to Regulation 
Z. As discussed in part IX.B.2, below, under the proposed rule there 
would be no burden increase associated with Regulation X, and in fact 
there is a burden reduction attributed to Regulation X because the 
RESPA GFE and settlement statement disclosures would be eliminated for 
all of the mortgage market, other than reverse mortgages, and replaced 
by the Loan Estimate and Closing Disclosures, under Regulation Z. Using 
the Bureau's burden estimation methodology, the total estimated burden 
for the approximately 14,354 banks, savings institutions, credit 
unions, and mortgage companies subject to the proposed rule,\243\ 
including Bureau respondents, would be approximately 2.12 million hours 
for one-time changes and 2.35 million hours annually. The estimates 
presented in this part IX represent weighted averages across 
respondents. The Bureau expects that the amount of time required to 
implement each of the proposed changes for a given institution may vary 
based on the size, complexity, and practices of the respondent.
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    \243\ For the reasons described above, this figure excludes 
mortgage brokers and settlement agents.
---------------------------------------------------------------------------

A. Information Collection Requirements

    The Bureau believes the following aspects of the proposed rule 
would be information collection requirements under the PRA: (1) The 
development, implementation, and continuing use of new, integrated Loan 
Estimate and Closing Disclosure forms required for closed-end mortgage 
transactions subject to the proposed rule and the generation and 
provision of additional Loan Estimates in particular transactions as a 
result of increases in the closing costs that were included in the 
initial Loan Estimate,\244\ and (2) the imposition of new requirements 
to maintain evidence of compliance in standardized, machine readable, 
electronic format.\245\
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    \244\ The proposal also provides that, if the creditor permits a 
consumer to shop for a settlement service, the creditor shall 
provide the consumer with a written list identifying available 
providers of that service and stating that the consumer may choose a 
different provider for that service. Accordingly, creditors must 
comply with this additional requirement in certain transactions 
where consumers are permitted to shop for settlement services. This 
is an existing requirement under current Regulation X, 12 CFR part 
1024 app. C, but is not specifically itemized as a separate 
information collection under Regulation X. Because the timing of 
this requirement coincides with the provision of the initial Loan 
Estimate to consumers, the burden associated with the written list 
of providers requirement under the proposed rule is included in the 
burden calculation for the Loan Estimate.
    \245\ Under the proposal, these information collections apply to 
closed-end transactions secured by real property, other than reverse 
mortgages subject to Sec.  1026.33. As discussed in part VI, 
section-by-section analysis for Sec.  1026.19, above, construction-
only loans, vacant-land loans, and loans secured by more than 25 
acres, are subject to the integrated disclosure provisions although 
these transactions are currently exempt from RESPA coverage, because 
the Bureau believes that excluding these transactions would deprive 
consumers of the benefit of enhanced disclosures. However, the 
Bureau believes that the number of such transactions is negligible 
as compared to the entire mortgage market.
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1. Initial and Final Disclosures
    As discussed above in part VII, the integrated Loan Estimate and 
the Closing Disclosure would result in certain compliance costs to 
covered persons. The Bureau believes that many of the costs of 
complying with these requirements would be common across the two 
disclosures, and therefore discusses them together here. Under the 
proposal, responsibility for delivering the Loan Estimate would lie 
with the creditor. The Bureau believes that in some circumstances the 
Loan Estimate may be delivered by a mortgage broker acting on behalf of 
the creditor. The Bureau believes the costs would be similar for Loan 
Estimates delivered by creditors and brokers, and the estimates 
presented here are based on the assumption that the creditor delivers 
the Loan Estimate. Similarly, the Bureau is proposing two alternatives 
with respect to the responsibility to deliver the Closing Disclosure. 
Under the first alternative, the creditor would be solely responsible 
for delivering the Closing Disclosure; under the second alternative, 
the creditor and settlement agent would be jointly responsible. These 
estimates assume that the creditor takes on the obligation to deliver 
the Closing Disclosure. The Bureau believes

[[Page 51299]]

that if settlement agents were to take on a substantial portion of the 
responsibility for delivering the Closing Disclosure the costs would be 
similar, although they may be borne by different parties.
a. One-Time Costs
    Covered persons would incur one-time costs associated with training 
and reviewing the regulation. In addition, covered persons who maintain 
their own software and compliance systems would incur one-time costs to 
adapt their software and compliance systems to produce the new 
forms.\246\ Based on information provided by creditors and by software 
vendors, the Bureau believes that, in general, larger creditors develop 
and maintain their own compliance software and systems, while smaller 
creditors primarily rely on software and compliance systems provided by 
outside vendors. The Bureau estimates that the top 20 creditors 
typically maintain their own systems, while 95 percent of smaller 
creditors rely on vendors.
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    \246\ In addition to changing the format of the required forms, 
the new proposed forms include numerous new disclosures that are 
required by the Dodd-Frank Act. The Bureau believes that this 
additional information would be added to the forms as part of the 
process of adapting software and compliance systems to produce the 
new forms, and therefore does not provide separate estimates for the 
costs of adding this additional information.
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    The use of vendors would substantially mitigate the costs of 
revising software and compliance systems, as the efforts of a single 
vendor would address the needs of a large number of creditors. Based on 
discussions with a leading mortgage origination technology provider, 
the Bureau believes that these updates, however, would likely be 
included in regular annual updates, and therefore the costs would not 
be directly passed on to the client creditors. Based on small entities 
that participated in the Small Business Review Panel process, the 
Bureau estimates that creditors that maintain their own compliance 
software and systems would incur costs of roughly $100,000 to determine 
what changes need to be made and to update their systems to comply with 
the proposal. Larger creditors with proprietary systems would need to 
revise their compliance software and systems. Based on information from 
conversations with large creditors and with software vendors, the 
Bureau estimates that the cost per creditor for this category of 
creditor would be $1,000,000.
    Covered persons would incur one-time costs associated with training 
employees to use new forms and any new compliance software and systems. 
The Bureau estimates that each loan officer or other loan originator 
will need to receive two hours of training. The Bureau further 
estimates that a trainer will spend an hour for every ten hours of 
trainee time.
    The Bureau estimates that, for each covered person, one attorney 
and one compliance officer would each take seven hours to read and 
review the sections of the proposed regulation that describe the 
contents of the Loan Estimate and Closing Disclosure requirements, 
based on the length of each of the sections.
    The Bureau estimates the total one-time costs of reading the 
relevant sections of the Federal Register, revising systems to provide 
the new disclosures, and training personnel for the Bureau respondents 
to be approximately $30.9 million, which corresponds to approximately 
574,600 hours. Annualized over five years, this is an annual cost of 
$6.2 million. The Bureau estimates the one-time costs to the 128 
depository institutions (including their depository affiliates) that 
are mortgage originator respondents of the Bureau under Regulation Z 
\247\ would be $20.1 million, or 391,000 hours. For the estimated 2,515 
nondepository institutions that are subject to the Bureau's 
administrative enforcement authority, the Bureau is taking the burden 
of half of those nondepository institutions for purposes of this PRA 
analysis.\248\ The Bureau estimates the one-time costs would be $10.8 
million, or 183,700 hours.\249\
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    \247\ There are 154 depository institutions (and their 
depository affiliates) that are subject to the Bureau's 
administrative enforcement authority. For purposes of this PRA 
analysis, the Bureau has calculated its burden hours and costs based 
on the estimated 128 depository institutions subject to Regulation Z 
that are mortgage originators.
    \248\ Unless otherwise specified, all references to burden hours 
and costs for the Bureau respondents are based on a calculation of 
half of the estimated 2,515 nondepository institutions.
    \249\ For additional information, please see the proposed 
amended Supporting Statement for OMB Control Number 3170-0016, 
available at www.reginfo.gov.
---------------------------------------------------------------------------

b. Ongoing Costs
    In addition to one-time costs to revise systems and train 
employees, covered persons will have ongoing costs from providing the 
disclosures. Based on industry feedback, the Bureau understands that 
most disclosures will be generated by automated systems that use data 
collected by covered entities in the normal course of business. The 
Bureau believes that a small number of the disclosures in the Loan 
Estimate and Closing Disclosure would be generated using data that may 
not otherwise be collected in the normal course of business, and has 
considered this in calculating the ongoing burden associated with the 
information collection. However, the Bureau may adjust its calculation 
in a final rule if it determines that such information is collected in 
the normal course of business or that automated sources of such data 
exist that would make any burden associated with collecting that data 
negligible. The Bureau's estimates also account for the time covered 
persons would spend to review the forms for accuracy.
    In calculating the total burden of providing Loan Estimates and 
Closing Disclosures, the Bureau assumes that Loan Estimates will be 
provided in response to applications for mortgages and Closing 
Disclosures will be provided three business days before mortgages are 
consummated. The Bureau further estimates entities will reissue on 
average two Loan Estimates per loan originated.
    Table 2 summarizes these ongoing costs, which total an estimated 
$68.4 million per year. This represents an average cost of 
approximately $15 per origination.\250\
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    \250\ Bureau respondents are estimated to originate 
approximately 4.8 million mortgages per year that would be subject 
to these information collections.

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[[Page 51300]]

[GRAPHIC] [TIFF OMITTED] TP23AU12.998

2. Recordkeeping
    The proposed rule imposes new data retention requirements on 
certain respondents. As discussed above in part VII, the proposed rule 
will require creditors and mortgage brokers to retain evidence of 
compliance with the Loan Estimate and Closing Disclosure requirements 
in machine readable,\251\ electronic format. The proposed retention 
period is three years for the Loan Estimates and five years for the 
Closing Disclosures. See part VI above, section-by-section analysis for 
proposed Sec.  1026.25.
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    \251\ As discussed in part VI, section-by-section analysis for 
proposed Sec.  1026.25(c), ``machine readable'' means a format where 
the individual data elements comprising the record can be 
transmitted, analyzed, and processed by a computer program, such as 
a spreadsheet or database program. Data formats for image 
reproductions (e.g., PDF) or document text, such as those used by 
word processing programs, are not machine readable for purposes of 
this proposal.
---------------------------------------------------------------------------

    The proposed rule may result in costs to covered persons. Under 
current rules, creditors must retain evidence of compliance with the 
disclosure requirements in Regulation X (i.e., a copy of the RESPA 
settlement statement) and Regulation Z (i.e., evidence of compliance 
generally), but are not required to maintain such evidence an 
electronic, machine readable format. 12 CFR 1024.10(e); 1026.25. Based 
on industry feedback, the Bureau understands that firms currently rely 
on electronic systems for most aspects of the mortgage loan origination 
process, including electronic record creation and storage. Not all 
creditors currently maintain data in a machine-readable format, and 
those who do may not retain it in the format that may ultimately be 
adopted. To comply with the proposed record retention provisions, 
therefore, creditors may be required to reconfigure existing document 
production and retention systems. For creditors that maintain their own 
compliance systems and software, the Bureau does not believe that 
adding the capacity to maintain data in a standard machine readable 
format will impose a substantial burden, as the only requirement will 
be to output existing data to a new format and then store that data.
    The Bureau believes that the primary cost will be one-time systems 
changes that could be accomplished at the same time that systems 
changes are carried out to comply with the new proposed Loan Estimate 
and Closing Disclosure. The Bureau estimates that creditors that 
maintain their own compliance systems will need to expend 40 hours of 
software and IT staff time to develop the capacity to export data from 
existing data formats to the standard format. As discussed above, the 
Bureau estimates that 2,643 creditors are its respondents for purposes 
of the PRA, of which 152 creditors maintain their own compliance 
systems. At 40 hours each, the one-time burden is an estimated 6,080 
hours.
    Additionally, for each covered person, the Bureau estimates that 
one attorney and one compliance officer would each take 7.5 minutes to 
read and review the portion of the regulation pertaining to data 
retention, based on the length of that section. Accordingly, the total 
one-time burden associated with the data retention provision of the 
proposed rule would be 6,400 hours, or $376,400.
    Creditors that rely on vendors would likely rely on vendor software 
and systems to comply with the data retention requirement; at least one 
vendor already offers indefinite data storage to customers that use 
their web-based origination services.
    The Bureau understands that requiring standardized, electronic 
records may be a significant burden for covered persons that do not 
currently have such electronic filing systems. To reduce the burden on 
small entities, the Bureau is considering an exemption from the 
electronic data retention requirements. See part VI above, section-by-
section analysis for proposed Sec.  1026.25.
    In addition, the proposed rule requires creditors and mortgage 
brokers to retain documentation sufficient to show their supervisory 
agencies that one of the exceptions applies whenever a cost for a 
service provided by a company that is owned by or affiliated with the 
creditor proves to be higher than estimated in the Loan Estimate, 
similar to the current document retention requirements under Regulation 
X for when the RESPA GFE is reissued. This retention requirement may 
result in additional cost to respondents that are creditors and 
mortgage brokers.
B. Summary of Burden Hours
1. Regulation Z
    The below table summarizes the one time and annual burdens under 
Regulation Z associated with information collections affected by the 
proposal for Bureau respondents under the PRA.

[[Page 51301]]

[GRAPHIC] [TIFF OMITTED] TP23AU12.997

2. Regulation X
    The proposal does not increase PRA burden associated with 
Regulation X, and instead removes the majority of the burden associated 
with two information collections: (i) The RESPA GFE and (ii) the RESPA 
settlement statement. Currently, the RESPA GFE and settlement statement 
disclosures account for approximately 10.9 million annual burden 
hours.\252\ Under the proposal, the majority of this burden would be 
eliminated, with only reverse mortgage transactions remaining subject 
to the RESPA GFE and settlement statement requirements. The remaining 
burden associated with these disclosures in Regulation X would total 
approximately 62,400 hours, assuming no change in the time required to 
respond. The below table summarizes the annual burdens under Regulation 
X associated with information collections affected by the proposal.
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    \252\ The annual burdens attributed to the RESPA GFE and 
settlement statement (HUD-1/HUD-1A) are 3,612,500 hours and 
7,250,000 hours, respectively. See Supporting Statement for OMB 
Control Number 3170-0016, available at https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201110-3170-013 (CFPB); Supporting 
Statement for OMB Control Number 2502-0265, available at https://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=200810-2502-001 
(HUD).
[GRAPHIC] [TIFF OMITTED] TP23AU12.996

3. Net Effect on PRA Estimates of Ongoing Burden
    As discussed above, by integrating the TILA and RESPA disclosures, 
the proposal eliminates the majority of the ongoing PRA burden under 
Regulation X for the RESPA GFE and settlement statement disclosures, 
while simultaneously creating ongoing burden attributable to the 
integrated disclosures in Regulation Z. On a market-wide basis, annual 
PRA burden in Regulation X decreases by approximately 10.8 million 
hours. The Bureau cannot similarly quantify the change in ongoing 
burden under Regulation Z, because current burden estimates neither 
itemize the burden hours attributable to the early, revised, and final 
TILA disclosures nor limit burden hours to mortgage transactions (but, 
instead, estimate for closed-end credit, generally). However, the total 
PRA burden associated with the new integrated disclosures for all 
institutions subject to Regulation Z is estimated to be 2.35 million 
hours annually. These changes reflect the decrease in the number of 
mortgages originated, increased systems automation, changes in 
methodology for calculating burden under the PRA, and the effects of 
the proposal.

C. Comments

    Comments are specifically requested concerning: (i) Whether the 
proposed collections of information are necessary for the proper 
performance of the functions of the Bureau, including whether the 
information will have practical utility; (ii) the accuracy of the 
estimated burden associated with the proposed collections of 
information; (iii) how to enhance the quality, utility, and clarity of 
the information to be collected; and (iv) how to minimize the burden of 
complying with the proposed collections of information, including the 
application of automated collection techniques or other forms of 
information technology. Comments on the collection of information 
requirements should be sent to the Office of Management and Budget 
(OMB), Attention: Desk Officer

[[Page 51302]]

for the Consumer Financial Protection Bureau, Office of Information and 
Regulatory Affairs, Washington, DC 20503, or by the internet to http://oira_submission@omb.eop.gov, with copies to the Bureau at the Consumer 
Financial Protection Bureau (Attention: PRA Office), 1700 G Street NW., 
Washington, DC 20552, or by the internet to CFPB_Public_PRA@cfpb.gov.

List of Subjects

12 CFR Part 1024

    Condominiums, Consumer protection, Housing, Mortgage servicing, 
Mortgages, Recordkeeping requirements, Reporting.

12 CFR Part 1026

    Advertising, Consumer protection, Credit, Credit unions, Mortgages, 
National banks, Recordkeeping requirements, Reporting, Savings 
associations, Truth in lending.

Text of Proposed Revisions

    Certain conventions have been used to highlight the proposed 
revisions. New language is shown inside bold arrows, and language that 
would be deleted is shown inside bold brackets.

Authority and Issuance

    For the reasons set forth in the preamble, the Bureau proposes to 
amend Regulation X, 12 CFR part 1024, and Regulation Z, 12 CFR part 
1026, as set forth below:

PART 1024--REAL ESTATE SETTLEMENT PROCEDURES (REGULATION X)

    1. The authority citation for part 1024 continues to read as 
follows:

    Authority:  12 U.S.C. 2603-2605, 2607, 2609, 2617, 5512, 5581.

    2. Section 1024.5 is amended by revising paragraph (a), removing 
and reserving paragraph (b)(1), and adding paragraph (c), to read as 
follows:


Sec.  1024.5  Coverage of RESPA.

    (a) Applicability. RESPA and this part apply to [lsqbb]all[rsqbb] 
federally related mortgage loans, except [rtrif]as[ltrif] [lsqbb]for 
the exemptions[rsqbb] provided in paragraph[rtrif]s[ltrif] (b) 
[rtrif]and (c)[ltrif] of this section.
    (b) Exemptions. (1) [rtrif][Reserved][ltrif] [lsqbb]A loan on 
property of 25 acres or more.[rsqbb]
* * * * *
    [rtrif](c) Partial exemptions for certain mortgage loans. Sections 
1024.6, 1024.7, 1024.8, 1024.10, and 1024.21(b) and (c) do not apply to 
a federally related mortgage loan:
    (1) That is subject to the special disclosure requirements for 
certain consumer credit transactions secured by real property set forth 
in Regulation Z, 12 CFR 1026.19(e) and (f); or
    (2) That satisfies the criteria in Regulation Z, 12 CFR 
1026.3(h).[ltrif]
    3. Appendix A to part 1024 is revised to read as follows:

Appendix A to Part 1024--Instructions for Completing HUD-1 and HUD-1A 
Settlement Statements; Sample HUD-1 and HUD-1A Statements

    The following are instructions for completing the HUD-1 
settlement statement, required under section 4 of RESPA and 12 CFR 
part 1024 (Regulation X) of the Bureau of Consumer Financial 
Protection (Bureau) regulations. This form is to be used as a 
statement of actual charges and adjustments paid by the borrower and 
the seller, to be given to the parties in connection with the 
settlement. The instructions for completion of the HUD-1 are 
primarily for the benefit of the settlement agents who prepare the 
statements and need not be transmitted to the parties as an integral 
part of the HUD-1. There is no objection to the use of the HUD-1 in 
transactions in which its use is not legally required. Refer to the 
definitions section of the regulations (12 CFR 1024.2) for specific 
definitions of many of the terms that are used in these 
instructions.

General Instructions

    Information and amounts may be filled in by typewriter, hand 
printing, computer printing, or any other method producing clear and 
legible results. Refer to the Bureau's regulations (Regulation X) 
regarding rules applicable to reproduction of the HUD-1 for the 
purpose of including customary recitals and information used locally 
in settlements; for example, a breakdown of payoff figures, a 
breakdown of the Borrower's total monthly mortgage payments, check 
disbursements, a statement indicating receipt of funds, applicable 
special stipulations between Borrower and Seller, and the date funds 
are transferred.
    The settlement agent shall complete the HUD-1 to itemize all 
charges imposed upon the Borrower and the Seller by the loan 
originator and all sales commissions, whether to be paid at 
settlement or outside of settlement, and any other charges which 
either the Borrower or the Seller will pay at settlement. Charges 
for loan origination and title services should not be itemized 
except as provided in these instructions. For each separately 
identified settlement service in connection with the transaction, 
the name of the person ultimately receiving the payment must be 
shown together with the total amount paid to such person. Items paid 
to and retained by a loan originator are disclosed as required in 
the instructions for lines in the 800-series of the HUD-1 (and for 
per diem interest, in the 900-series of the HUD-1).
    As a general rule, charges that are paid for by the seller must 
be shown in the seller's column on page 2 of the HUD-1 (unless paid 
outside closing), and charges that are paid for by the borrower must 
be shown in the borrower's column (unless paid outside closing). 
However, in order to promote comparability between the charges on 
the GFE and the charges on the HUD-1, if a seller pays for a charge 
that was included on the GFE, the charge should be listed in the 
borrower's column on page 2 of the HUD-1. That charge should also be 
offset by listing a credit in that amount to the borrower on lines 
204-209 on page 1 of the HUD-1, and by a charge to the seller in 
lines 506-509 on page 1 of the HUD-1. If a loan originator (other 
than for no-cost loans), real estate agent, other settlement service 
provider, or other person pays for a charge that was included on the 
GFE, the charge should be listed in the borrower's column on page 2 
of the HUD-1, with an offsetting credit reported on page 1 of the 
HUD-1, identifying the party paying the charge.
    Charges paid outside of settlement by the borrower, seller, loan 
originator, real estate agent, or any other person, must be included 
on the HUD-1 but marked ``P.O.C.'' for ``Paid Outside of Closing'' 
(settlement) and must not be included in computing totals. However, 
indirect payments from a lender to a mortgage broker may not be 
disclosed as P.O.C., and must be included as a credit on Line 802. 
P.O.C. items must not be placed in the Borrower or Seller columns, 
but rather on the appropriate line outside the columns. The 
settlement agent must indicate whether P.O.C. items are paid for by 
the Borrower, Seller, or some other party by marking the items paid 
for by whoever made the payment as ``P.O.C.'' with the party making 
the payment identified in parentheses, such as ``P.O.C. (borrower)'' 
or ``P.O.C. (seller)''.
    In the case of ``no cost'' loans where ``no cost'' encompasses 
third party fees as well as the upfront payment to the loan 
originator, the third party services covered by the ``no cost'' 
provisions must be itemized and listed in the borrower's column on 
the HUD-1/1A with the charge for the third party service. These 
itemized charges must be offset with a negative adjusted origination 
charge on Line 803 and recorded in the columns.
    Blank lines are provided in section L for any additional 
settlement charges. Blank lines are also provided for additional 
insertions in sections J and K. The names of the recipients of the 
settlement charges in section L and the names of the recipients of 
adjustments described in section J or K should be included on the 
blank lines.
    Lines and columns in section J which relate to the Borrower's 
transaction may be left blank on the copy of the HUD-1 which will be 
furnished to the Seller. Lines and columns in section K which relate 
to the Seller's transaction may be left blank on the copy of the 
HUD-1 which will be furnished to the Borrower.

Line Item Instructions

    Instructions for completing the individual items on the HUD-1 
follow.
    Section A. This section requires no entry of information.
    Section B. Check appropriate loan type and complete the 
remaining items as applicable.
    Section C. This section provides a notice regarding settlement 
costs and requires no additional entry of information.
    Sections D and E. Fill in the names and current mailing 
addresses and zip codes of

[[Page 51303]]

the Borrower and the Seller. Where there is more than one Borrower 
or Seller, the name and address of each one is required. Use a 
supplementary page if needed to list multiple Borrowers or Sellers.
    Section F. Fill in the name, current mailing address and zip 
code of the Lender.
    Section G. The street address of the property being sold should 
be listed. If there is no street address, a brief legal description 
or other location of the property should be inserted. In all cases 
give the zip code of the property.
    Section H. Fill in name, address, zip code and telephone number 
of settlement agent, and address and zip code of ``place of 
settlement.''
    Section I. Fill in date of settlement.
    Section J. Summary of Borrower's Transaction. Line 101 is for 
the contract sales price of the property being sold, excluding the 
price of any items of tangible personal property if Borrower and 
Seller have agreed to a separate price for such items.
    Line 102 is for the sales price of any items of tangible 
personal property excluded from Line 101. Personal property could 
include such items as carpets, drapes, stoves, refrigerators, etc. 
What constitutes personal property varies from State to State. 
Manufactured homes are not considered personal property for this 
purpose.
    Line 103 is used to record the total charges to Borrower 
detailed in section L and totaled on Line 1400.
    Lines 104 and 105 are for additional amounts owed by the 
Borrower, such as charges that were not listed on the GFE or items 
paid by the Seller prior to settlement but reimbursed by the 
Borrower at settlement. For example, the balance in the Seller's 
reserve account held in connection with an existing loan, if 
assigned to the Borrower in a loan assumption case, will be entered 
here. These lines will also be used when a tenant in the property 
being sold has not yet paid the rent, which the Borrower will 
collect, for a period of time prior to the settlement. The lines 
will also be used to indicate the treatment for any tenant security 
deposit. The Seller will be credited on Lines 404-405.
    Lines 106 through 112 are for items which the Seller had paid in 
advance, and for which the Borrower must therefore reimburse the 
Seller. Examples of items for which adjustments will be made may 
include taxes and assessments paid in advance for an entire year or 
other period, when settlement occurs prior to the expiration of the 
year or other period for which they were paid. Additional examples 
include flood and hazard insurance premiums, if the Borrower is 
being substituted as an insured under the same policy; mortgage 
insurance in loan assumption cases; planned unit development or 
condominium association assessments paid in advance; fuel or other 
supplies on hand, purchased by the Seller, which the Borrower will 
use when Borrower takes possession of the property; and ground rent 
paid in advance.
    Line 120 is for the total of Lines 101 through 112.
    Line 201 is for any amount paid against the sales price prior to 
settlement.
    Line 202 is for the amount of the new loan made by the Lender 
when a loan to finance construction of a new structure constructed 
for sale is used as or converted to a loan to finance purchase. Line 
202 should also be used for the amount of the first user loan, when 
a loan to purchase a manufactured home for resale is converted to a 
loan to finance purchase by the first user. For other loans covered 
by 12 CFR Part 1024 (Regulation X) which finance construction of a 
new structure or purchase of a manufactured home, list the sales 
price of the land on Line 104, the construction cost or purchase 
price of manufactured home on Line 105 (Line 101 would be left blank 
in this instance) and amount of the loan on Line 202. The remainder 
of the form should be completed taking into account adjustments and 
charges related to the temporary financing and permanent financing 
and which are known at the date of settlement. [rtrif]For reverse 
mortgage transactions, the amount disclosed on Line 202 is the 
initial principal limit.[ltrif]
    Line 203 is used for cases in which the Borrower is assuming or 
taking title subject to an existing loan or lien on the property.
    Lines 204-209 are used for other items paid by or on behalf of 
the Borrower. Lines 204-209 should be used to indicate any financing 
arrangements or other new loan not listed in Line 202. For example, 
if the Borrower is using a second mortgage or note to finance part 
of the purchase price, whether from the same lender, another lender 
or the Seller, insert the principal amount of the loan with a brief 
explanation on Lines 204-209. Lines 204-209 should also be used 
where the Borrower receives a credit from the Seller for closing 
costs, including seller-paid GFE charges. They may also be used in 
cases in which a Seller (typically a builder) is making an 
``allowance'' to the Borrower for items that the Borrower is to 
purchase separately. [rtrif]For reverse mortgages, the amount of any 
initial draw at settlement is disclosed on Line 204.[ltrif]
    Lines 210 through 219 are for items which have not yet been 
paid, and which the Borrower is expected to pay, but which are 
attributable in part to a period of time prior to the settlement. In 
jurisdictions in which taxes are paid late in the tax year, most 
cases will show the proration of taxes in these lines. Other 
examples include utilities used but not paid for by the Seller, rent 
collected in advance by the Seller from a tenant for a period 
extending beyond the settlement date, and interest on loan 
assumptions.
    Line 220 is for the total of Lines 201 through 219.
    Lines 301 and 302 are summary lines for the Borrower. Enter 
total in Line 120 on Line 301. Enter total in Line 220 on Line 302.
    Line 303 must indicate either the cash required from the 
Borrower at settlement (the usual case in a purchase transaction), 
or cash payable to the Borrower at settlement (if, for example, the 
Borrower's earnest money exceeds the Borrower's cash obligations in 
the transaction or there is a cash-out refinance). Subtract Line 302 
from Line 301 and enter the amount of cash due to or from the 
Borrower at settlement on Line 303. The appropriate box should be 
checked. If the Borrower's earnest money is applied toward the 
charge for a settlement service, the amount so applied should not be 
included on Line 303 but instead should be shown on the appropriate 
line for the settlement service, marked ``P.O.C. (Borrower)'', and 
must not be included in computing totals.
    Section K. Summary of Seller's Transaction. Instructions for the 
use of Lines 101 and 102 and 104-112 above, apply also to Lines 401-
412. Line 420 is for the total of Lines 401 through 412.
    Line 501 is used if the Seller's real estate broker or other 
party who is not the settlement agent has received and holds a 
deposit against the sales price (earnest money) which exceeds the 
fee or commission owed to that party. If that party will render the 
excess deposit directly to the Seller, rather than through the 
settlement agent, the amount of excess deposit should be entered on 
Line 501 and the amount of the total deposit (including commissions) 
should be entered on Line 201.
    Line 502 is used to record the total charges to the Seller 
detailed in section L and totaled on Line 1400.
    Line 503 is used if the Borrower is assuming or taking title 
subject to existing liens which are to be deducted from sales price.
    Lines 504 and 505 are used for the amounts (including any 
accrued interest) of any first and/or second loans which will be 
paid as part of the settlement.
    Line 506 is used for deposits paid by the Borrower to the Seller 
or other party who is not the settlement agent. Enter the amount of 
the deposit in Line 201 on Line 506 unless Line 501 is used or the 
party who is not the settlement agent transfers all or part of the 
deposit to the settlement agent, in which case the settlement agent 
will note in parentheses on Line 507 the amount of the deposit that 
is being disbursed as proceeds and enter in the column for Line 506 
the amount retained by the above-described party for settlement 
services. If the settlement agent holds the deposit, insert a note 
in Line 507 which indicates that the deposit is being disbursed as 
proceeds.
    Lines 506 through 509 may be used to list additional liens which 
must be paid off through the settlement to clear title to the 
property. Other Seller obligations should be shown on Lines 506-509, 
including charges that were disclosed on the GFE but that are 
actually being paid for by the Seller. These Lines may also be used 
to indicate funds to be held by the settlement agent for the payment 
of either repairs, or water, fuel, or other utility bills that 
cannot be prorated between the parties at settlement because the 
amounts used by the Seller prior to settlement are not yet known. 
Subsequent disclosure of the actual amount of these post-settlement 
items to be paid from settlement funds is optional. Any amounts 
entered on Lines 204-209 including Seller financing arrangements 
should also be entered on Lines 506-509.
    Instructions for the use of Lines 510 through 519 are the same 
as those for Lines 210 to 219 above.
    Line 520 is for the total of Lines 501 through 519.

[[Page 51304]]

    Lines 601 and 602 are summary lines for the Seller. Enter the 
total in Line 420 on Line 601. Enter the total in Line 520 on Line 
602.
    Line 603 must indicate either the cash required to be paid to 
the Seller at settlement (the usual case in a purchase transaction), 
or the cash payable by the Seller at settlement. Subtract Line 602 
from Line 601 and enter the amount of cash due to or from the Seller 
at settlement on Line 603. The appropriate box should be checked.
    Section L. Settlement Charges.
    Line 700 is used to enter the sales commission charged by the 
sales agent or real estate broker.
    Lines 701-702 are to be used to state the split of the 
commission where the settlement agent disburses portions of the 
commission to two or more sales agents or real estate brokers.
    Line 703 is used to enter the amount of sales commission 
disbursed at settlement. If the sales agent or real estate broker is 
retaining a part of the deposit against the sales price (earnest 
money) to apply towards the sales agent's or real estate broker's 
commission, include in Line 703 only that part of the commission 
being disbursed at settlement and insert a note on Line 704 
indicating the amount the sales agent or real estate broker is 
retaining as a ``P.O.C.'' item.
    Line 704 may be used for additional charges made by the sales 
agent or real estate broker, or for a sales commission charged to 
the Borrower, which will be disbursed by the settlement agent.
    Line 801 is used to record ``Our origination charge,'' which 
includes all charges received by the loan originator, except any 
charge for the specific interest rate chosen (points). This number 
must not be listed in either the buyer's or seller's column. The 
amount shown in Line 801 must include any amounts received for 
origination services, including administrative and processing 
services, performed by or on behalf of the loan originator.
    Line 802 is used to record ``Your credit or charge (points) for 
the specific interest rate chosen,'' which states the charge or 
credit adjustment as applied to ``Our origination charge,'' if 
applicable. This number must not be listed in either column or shown 
on page one of the HUD-1.
    For a mortgage broker originating a loan in its own name, the 
amount shown on Line 802 will be the difference between the initial 
loan amount and the total payment to the mortgage broker from the 
lender. The total payment to the mortgage broker will be the sum of 
the price paid for the loan by the lender and any other payments to 
the mortgage broker from the lender, including any payments based on 
the loan amount or loan terms, and any flat rate payments. For a 
mortgage broker originating a loan in another entity's name, the 
amount shown on Line 802 will be the sum of all payments to the 
mortgage broker from the lender, including any payments based on the 
loan amount or loan terms, and any flat rate payments.
    In either case, when the amount paid to the mortgage broker 
exceeds the initial loan amount, there is a credit to the borrower 
and it is entered as a negative amount. When the initial loan amount 
exceeds the amount paid to the mortgage broker, there is a charge to 
the borrower and it is entered as a positive amount. For a lender, 
the amount shown on Line 802 may include any credit or charge 
(points) to the Borrower.
    Line 803 is used to record ``Your adjusted origination 
charges,'' which states the net amount of the loan origination 
charges, the sum of the amounts shown in Lines 801 and 802. This 
amount must be listed in the columns as either a positive number 
(for example, where the origination charge shown in Line 801 exceeds 
any credit for the interest rate shown in Line 802 or where there is 
an origination charge in Line 801 and a charge for the interest rate 
(points) is shown on Line 802) or as a negative number (for example, 
where the credit for the interest rate shown in Line 802 exceeds the 
origination charges shown in Line 801).
    In the case of ``no cost'' loans, where ``no cost'' refers only 
to the loan originator's fees, the amounts shown in Lines 801 and 
802 should offset, so that the charge shown on Line 803 is zero. 
Where ``no cost'' includes third party settlement services, the 
credit shown in Line 802 will more than offset the amount shown in 
Line 801. The amount shown in Line 803 will be a negative number to 
offset the settlement charges paid indirectly through the loan 
originator.
    Lines 804-808 may be used to record each of the ``Required 
services that we select.'' Each settlement service provider must be 
identified by name and the amount paid recorded either inside the 
columns or as paid to the provider outside closing (``P.O.C.''), as 
described in the General Instructions.
    Line 804 is used to record the appraisal fee.
    Line 805 is used to record the fee for all credit reports.
    Line 806 is used to record the fee for any tax service.
    Line 807 is used to record any flood certification fee.
    Lines 808 and additional sequentially numbered lines, as needed, 
are used to record other third party services required by the loan 
originator. These Lines may also be used to record other required 
disclosures from the loan originator. Any such disclosures must be 
listed outside the columns.
    Lines 901-904. This series is used to record the items which the 
Lender requires to be paid at the time of settlement, but which are 
not necessarily paid to the lender (e.g., FHA mortgage insurance 
premium), other than reserves collected by the Lender and recorded 
in the 1000-series.
    Line 901 is used if interest is collected at settlement for a 
part of a month or other period between settlement and the date from 
which interest will be collected with the first regular monthly 
payment. Enter that amount here and include the per diem charges. If 
such interest is not collected until the first regular monthly 
payment, no entry should be made on Line 901.
    Line 902 is used for mortgage insurance premiums due and payable 
at settlement, including any monthly amounts due at settlement and 
any upfront mortgage insurance premium, but not including any 
reserves collected by the Lender and recorded in the 1000-series. If 
a lump sum mortgage insurance premium paid at settlement is included 
on Line 902, a note should indicate that the premium is for the life 
of the loan.
    Line 903 is used for homeowner's insurance premiums that the 
Lender requires to be paid at the time of settlement, except 
reserves collected by the Lender and recorded in the 1000-series.
    Lines 904 and additional sequentially numbered lines are used to 
list additional items required by the Lender (except for reserves 
collected by the Lender and recorded in the 1000-series), including 
premiums for flood or other insurance. These lines are also used to 
list amounts paid at settlement for insurance not required by the 
Lender.
    Lines 1000-1007. This series is used for amounts collected by 
the Lender from the Borrower and held in an account for the future 
payment of the obligations listed as they fall due. Include the time 
period (number of months) and the monthly assessment. In many 
jurisdictions this is referred to as an ``escrow,'' ``impound,'' or 
``trust'' account. In addition to the property taxes and insurance 
listed, some Lenders may require reserves for flood insurance, 
condominium owners' association assessments, etc. The amount in line 
1001 must be listed in the columns, and the itemizations in lines 
1002 through 1007 must be listed outside the columns.
    After itemizing individual deposits in the 1000 series, the 
servicer shall make an adjustment based on aggregate accounting. 
This adjustment equals the difference between the deposit required 
under aggregate accounting and the sum of the itemized deposits. The 
computation steps for aggregate accounting are set out in 12 CFR 
1024.17(d). The adjustment will always be a negative number or zero 
(-0-), except for amounts due to rounding. The settlement agent 
shall enter the aggregate adjustment amount outside the columns on a 
final line of the 1000 series of the HUD-1 or HUD-1A statement. 
Appendix E to this part sets out an example of aggregate analysis.
    Lines 1100-1108. This series covers title charges and charges by 
attorneys and closing or settlement agents. The title charges 
include a variety of services performed by title companies or 
others, and include fees directly related to the transfer of title 
(title examination, title search, document preparation), fees for 
title insurance, and fees for conducting the closing. The legal 
charges include fees for attorneys representing the lender, seller, 
or borrower, and any attorney preparing title work. The series also 
includes any settlement, notary, and delivery fees related to the 
services covered in this series. Disbursements to third parties must 
be broken out in the appropriate lines or in blank lines in the 
series, and amounts paid to these third parties must be shown 
outside of the columns if included in Line 1101. Charges not 
included in Line 1101 must be listed in the columns.
    Line 1101 is used to record the total for the category of 
``Title services and lender's title insurance.'' This amount must be 
listed in the columns.

[[Page 51305]]

    Line 1102 is used to record the settlement or closing fee.
    Line 1103 is used to record the charges for the owner's title 
insurance and related endorsements. This amount must be listed in 
the columns.
    Line 1104 is used to record the lender's title insurance premium 
and related endorsements.
    Line 1105 is used to record the amount of the lender's title 
policy limit. This amount is recorded outside of the columns.
    Line 1106 is used to record the amount of the owner's title 
policy limit. This amount is recorded outside of the columns.
    Line 1107 is used to record the amount of the total title 
insurance premium, including endorsements, that is retained by the 
title agent. This amount is recorded outside of the columns.
    Line 1108 used to record the amount of the total title insurance 
premium, including endorsements, that is retained by the title 
underwriter. This amount is recorded outside of the columns.
    Additional sequentially numbered lines in the 1100-series may be 
used to itemize title charges paid to other third parties, as 
identified by name and type of service provided.
    Lines 1200-1206. This series covers government recording and 
transfer charges. Charges paid by the borrower must be listed in the 
columns as described for lines 1201 and 1203, with itemizations 
shown outside the columns. Any amounts that are charged to the 
seller and that were not included on the Good Faith Estimate must be 
listed in the columns.
    Line 1201 is used to record the total ``Government recording 
charges,'' and the amount must be listed in the columns.
    Line 1202 is used to record, outside of the columns, the 
itemized recording charges.
    Line 1203 is used to record the transfer taxes, and the amount 
must be listed in the columns.
    Line 1204 is used to record, outside of the columns, the amounts 
for local transfer taxes and stamps.
    Line 1205 is used to record, outside of the columns, the amounts 
for State transfer taxes and stamps.
    Line 1206 and additional sequentially numbered lines may be used 
to record specific itemized third party charges for government 
recording and transfer services, but the amounts must be listed 
outside the columns.
    Line 1301 and additional sequentially numbered lines must be 
used to record required services that the borrower can shop for, 
such as fees for survey, pest inspection, or other similar 
inspections. These lines may also be used to record additional 
itemized settlement charges that are not included in a specific 
category, such as fees for structural and environmental inspections; 
pre-sale inspections of heating, plumbing or electrical equipment; 
or insurance or warranty coverage. The amounts must be listed in 
either the borrower's or seller's column.
    Line 1400 must state the total settlement charges as calculated 
by adding the amounts within each column.

Page 3

Comparison of Good Faith Estimate (GFE) and HUD-1/1A Charges

    The HUD-1/1-A is a statement of actual charges and adjustments. 
The comparison chart on page 3 of the HUD-1 must be prepared using 
the exact information and amounts for the services that were 
purchased or provided as part of the transaction, as that 
information and those amounts are shown on the GFE and in the HUD-1. 
If a service that was listed on the GFE was not obtained in 
connection with the transaction, pages 1 and 2 of the HUD-1 should 
not include any amount for that service, and the estimate on the GFE 
of the charge for the service should not be included in any amounts 
shown on the comparison chart on Page 3 of the HUD-1. The comparison 
chart is comprised of three sections: ``Charges That Cannot 
Increase'', ``Charges That Cannot Increase More Than 10%'', and 
``Charges That Can Change''.
    ``Charges That Cannot Increase''. The amounts shown in Blocks 1 
and 2, in Line A, and in Block 8 on the borrower's GFE must be 
entered in the appropriate line in the Good Faith Estimate column. 
The amounts shown on Lines 801, 802, 803 and 1203 of the HUD-1/1A 
must be entered in the corresponding line in the HUD-1/1A column. 
The HUD-1/1A column must include any amounts shown on page 2 of the 
HUD-1 in the column as paid for by the borrower, plus any amounts 
that are shown as P.O.C. by or on behalf of the borrower. If there 
is a credit in Block 2 of the GFE or Line 802 of the HUD-1/1A, the 
credit should be entered as a negative number.
    ``Charges That Cannot Increase More Than 10%''. A description of 
each charge included in Blocks 3 and 7 on the borrower's GFE must be 
entered on separate lines in this section, with the amount shown on 
the borrower's GFE for each charge entered in the corresponding line 
in the Good Faith Estimate column. For each charge included in 
Blocks 4, 5 and 6 on the borrower's GFE for which the loan 
originator selected the provider or for which the borrower selected 
a provider identified by the loan originator, a description must be 
entered on a separate line in this section, with the amount shown on 
the borrower's GFE for each charge entered in the corresponding line 
in the Good Faith Estimate column. The loan originator must identify 
any third party settlement services for which the borrower selected 
a provider other than one identified by the loan originator so that 
the settlement agent can include those charges in the appropriate 
category. Additional lines may be added if necessary. The amounts 
shown on the HUD-1/1A for each line must be entered in the HUD-1/1A 
column next to the corresponding charge from the GFE, along with the 
appropriate HUD-1/1A line number. The HUD-1/1A column must include 
any amounts shown on page 2 of the HUD-1 in the column as paid for 
by the borrower, plus any amounts that are shown as P.O.C. by or on 
behalf of the borrower.
    The amounts shown in the Good Faith Estimate and HUD-1/1A 
columns for this section must be separately totaled and entered in 
the designated line. If the total for the HUD-1/1A column is greater 
than the total for the Good Faith Estimate column, then the amount 
of the increase must be entered both as a dollar amount and as a 
percentage increase in the appropriate line.
    ``Charges That Can Change''. The amounts shown in Blocks 9, 10 
and 11 on the borrower's GFE must be entered in the appropriate 
lines in the Good Faith Estimate column. Any third party settlement 
services for which the borrower selected a provider other than one 
identified by the loan originator must also be included in this 
section. The amounts shown on the HUD-1/1A for each charge in this 
section must be entered in the corresponding line in the HUD-1/1A 
column, along with the appropriate HUD-1/1A line number. The HUD-1/
1A column must include any amounts shown on page 2 of the HUD-1 in 
the column as paid for by the borrower, plus any amounts that are 
shown as P.O.C. by or on behalf of the borrower. Additional lines 
may be added if necessary.

Loan Terms

    This section must be completed in accordance with the 
information and instructions provided by the lender. The lender must 
provide this information in a format that permits the settlement 
agent to simply enter the necessary information in the appropriate 
spaces, without the settlement agent having to refer to the loan 
documents themselves. [rtrif]For reverse mortgages, the initial 
monthly amount owed for principal, interest, and any mortgage 
insurance must read ``N/A'' and the loan term is disclosed as ``N/
A'' when the loan term is conditioned upon the occurrence of a 
specified event, such as the death of the borrower or the borrower 
no longer occupying the property for a certain period of time. 
Additionally, for reverse mortgages the question ``Even if you make 
payments on time, can your loan balance rise?'' must be answered as 
``Yes'' and the maximum amount disclosed as ``Unknown.''
    For reverse mortgages that establish an arrangement for the 
payment of property taxes, homeowner's insurance, or other recurring 
charges through draws from the principal limit, the second box in 
the ``Total monthly amount owed including escrow payments'' section 
must be checked. The blank following the first $ must be completed 
with ``0'' and an asterisk, and all items that will be paid using 
draws from the principal limit, such as for property taxes, must 
also be indicated. An asterisk must also be placed in this section 
with the following statement: ``Paid by or through draws from the 
principal limit.'' Reverse mortgage transactions are not considered 
to be balloon transactions for the purposes of the loan terms 
disclosed on page 3 of the HUD-1.[ltrif]

Instructions for Completing HUD-1A

    Note:  The HUD-1A is an optional form that may be used for 
refinancing and subordinate-lien federally related mortgage loans, 
as well as for any other one-party transaction that does not involve 
the transfer of title to residential real property. The HUD-1 form 
may also be used for such transactions, by

[[Page 51306]]

utilizing the borrower's side of the HUD-1 and following the 
relevant parts of the instructions as set forth above. The use of 
either the HUD-1 or HUD-1A is not mandatory for open-end lines of 
credit (home-equity plans), as long as the provisions of Regulation 
Z are followed.

Background

    The HUD-1A settlement statement is to be used as a statement of 
actual charges and adjustments to be given to the borrower at 
settlement, as defined in this part. The instructions for completion 
of the HUD-1A are for the benefit of the settlement agent who 
prepares the statement; the instructions are not a part of the 
statement and need not be transmitted to the borrower. There is no 
objection to using the HUD-1A in transactions in which it is not 
required, and its use in open-end lines of credit transactions 
(home-equity plans) is encouraged. It may not be used as a 
substitute for a HUD-1 in any transaction that has a seller.
    Refer to the ``definitions'' section (Sec.  1024.2) of 12 CFR 
part 1024 (Regulation X) for specific definitions of terms used in 
these instructions.

General Instructions

    Information and amounts may be filled in by typewriter, hand 
printing, computer printing, or any other method producing clear and 
legible results. Refer to 12 CFR 1024.9 regarding rules for 
reproduction of the HUD-1A. Additional pages may be attached to the 
HUD-1A for the inclusion of customary recitals and information used 
locally for settlements or if there are insufficient lines on the 
HUD-1A. The settlement agent shall complete the HUD-1A in accordance 
with the instructions for the HUD-1 to the extent possible, 
including the instructions for disclosing items paid outside closing 
and for no cost loans.
    Blank lines are provided in section L for any additional 
settlement charges. Blank lines are also provided in section M for 
recipients of all or portions of the loan proceeds. The names of the 
recipients of the settlement charges in section L and the names of 
the recipients of the loan proceeds in section M should be set forth 
on the blank lines.

Line-Item Instructions

Page 1

    The identification information at the top of the HUD-1A should 
be completed as follows: The borrower's name and address is entered 
in the space provided. If the property securing the loan is 
different from the borrower's address, the address or other location 
information on the property should be entered in the space provided. 
The loan number is the lender's identification number for the loan. 
The settlement date is the date of settlement in accordance with 12 
CFR 1024.2, not the end of any applicable rescission period. The 
name and address of the lender should be entered in the space 
provided.
    Section L. Settlement Charges. This section of the HUD-1A is 
similar to section L of the HUD-1, with minor changes or omissions, 
including deletion of lines 700 through 704, relating to real estate 
broker commissions. The instructions for section L in the HUD-1 
should be followed insofar as possible. Inapplicable charges should 
be ignored, as should any instructions regarding seller items.
    Line 1400 in the HUD-1A is for the total settlement charges 
charged to the borrower. Enter this total on line 1601. This total 
should include section L amounts from additional pages, if any are 
attached to this HUD-1A.
    Section M. Disbursement to Others. This section is used to list 
payees, other than the borrower, of all or portions of the loan 
proceeds (including the lender, if the loan is paying off a prior 
loan made by the same lender), when the payee will be paid directly 
out of the settlement proceeds. It is not used to list payees of 
settlement charges, nor to list funds disbursed directly to the 
borrower, even if the lender knows the borrower's intended use of 
the funds.
    For example, in a refinancing transaction, the loan proceeds are 
used to pay off an existing loan. The name of the lender for the 
loan being paid off and the pay-off balance would be entered in 
section M. In a home improvement transaction when the proceeds are 
to be paid to the home improvement contractor, the name of the 
contractor and the amount paid to the contractor would be entered in 
section M. In a consolidation loan, or when part of the loan 
proceeds is used to pay off other creditors, the name of each 
creditor and the amount paid to that creditor would be entered in 
section M. If the proceeds are to be given directly to the borrower 
and the borrower will use the proceeds to pay off existing 
obligations, this would not be reflected in section M.
    Section N. Net Settlement. Line 1600 normally sets forth the 
principal amount of the loan as it appears on the related note for 
this loan. In the event this form is used for an open-ended home 
equity line whose approved amount is greater than the initial amount 
advanced at settlement, the amount shown on Line 1600 will be the 
loan amount advanced at settlement. Line 1601 is used for all 
settlement charges that both are included in the totals for lines 
1400 and 1602, and are not financed as part of the principal amount 
of the loan. This is the amount normally received by the lender from 
the borrower at settlement, which would occur when some or all of 
the settlement charges were paid in cash by the borrower at 
settlement, instead of being financed as part of the principal 
amount of the loan. Failure to include any such amount in line 1601 
will result in an error in the amount calculated on line 1604. Items 
paid outside of closing (P.O.C.) should not be included in Line 
1601.
    Line 1602 is the total amount from line 1400.
    Line 1603 is the total amount from line 1520.
    Line 1604 is the amount disbursed to the borrower. This is 
determined by adding together the amounts for lines 1600 and 1601, 
and then subtracting any amounts listed on lines 1602 and 1603.

Page 2

    This section of the HUD-1A is similar to page 3 of the HUD-1. 
The instructions for page 3 of the HUD-1 should be followed insofar 
as possible. The HUD-1/1A Column should include any amounts shown on 
page 1 of the HUD-1A in the column as paid for by the borrower, plus 
any amounts that are shown as P.O.C. by the borrower. Inapplicable 
charges should be ignored.

    4. Appendix B to part 1024 is amended by revising paragraph 12 to 
read as follows:

Appendix B to Part 1024--Illustrations of Requirements of RESPA

* * * * *
    12. Facts. A is a mortgage broker who provides origination 
services to submit a loan to a lender for approval. The mortgage 
broker charges the borrower a uniform fee for the total origination 
services, as well as a direct up-front charge for reimbursement of 
credit reporting, appraisal services, or similar charges.
    Comment. The mortgage broker's fee must be 
[rtrif]reflected[ltrif] [lsqbb]itemized[rsqbb] in the Good Faith 
Estimate and on the HUD-1 Settlement Statement. Other charges which 
are paid for by the borrower and paid in advance are listed as 
P.O.C. on the HUD-1 Settlement Statement, and reflect the actual 
provider charge for such services. [lsqbb]Also, any other fee or 
payment received by the mortgage broker from either the lender or 
the borrower arising from the initial funding transaction, including 
a servicing release premium or yield spread premium, is to be noted 
on the Good Faith Estimate and listed in the 800 series of the HUD-1 
Settlement Statement.[rsqbb]

    5. Appendix C to part 1024 is revised to read as follows:

Appendix C to Part 1024--Instructions for Completing Good Faith 
Estimate (GFE) Form

    The following are instructions for completing the GFE required 
under section 5 of RESPA and 12 CFR 1024.7 of the Bureau 
regulations. The standardized form set forth in this Appendix is the 
required GFE form and must be provided exactly as specified; 
provided, however, preparers may replace HUD's OMB approval number 
listed on the form with the Bureau's OMB approval number when they 
reproduce the GFE form. The instructions for completion of the GFE 
are primarily for the benefit of the loan originator who prepares 
the form and need not be transmitted to the borrower(s) as an 
integral part of the GFE. The required standardized GFE form must be 
prepared completely and accurately. A separate GFE must be provided 
for each loan where a transaction will involve more than one 
mortgage loan.

General Instructions

    The loan originator preparing the GFE may fill in information 
and amounts on the form by typewriter, hand printing, computer 
printing, or any other method producing clear and legible results. 
Under these instructions, the ``form'' refers to the required

[[Page 51307]]

standardized GFE form. Although the standardized GFE is a prescribed 
form, Blocks 3, 6, and 11 on page 2 may be adapted for use in 
particular loan situations, so that additional lines may be inserted 
there, and unused lines may be deleted.
    All fees for categories of charges shall be disclosed in U.S. 
dollar and cent amounts.

Specific Instructions

Page 1

    Top of the Form--The loan originator must enter its name, 
business address, telephone number, and email address, if any, on 
the top of the form, along with the applicant's name, the address or 
location of the property for which financing is sought, and the date 
of the GFE.
    ``Purpose.''--This section describes the general purpose of the 
GFE as well as additional information available to the applicant.
    ``Shopping for your loan.''--This section requires no loan 
originator action.
    ``Important dates.''--This section briefly states important 
deadlines after which the loan terms that are the subject of the GFE 
may not be available to the applicant. In Line 1, the loan 
originator must state the date and, if necessary, time until which 
the interest rate for the GFE will be available. In Line 2, the loan 
originator must state the date until which the estimate of all other 
settlement charges for the GFE will be available. This date must be 
at least 10 business days from the date of the GFE. In Line 3, the 
loan originator must state how many calendar days within which the 
applicant must go to settlement once the interest rate is locked. In 
Line 4, the loan originator must state how many calendar days prior 
to settlement the interest rate would have to be locked, if 
applicable.
    ``Summary of your loan.''--In this section, for all loans the 
loan originator must fill in, where indicated:
    (i) The initial loan amount;
    (ii) The loan term; and
    (iii) The initial interest rate.

[rtrif]For reverse mortgage transactions:

    (i) The initial loan amount disclosed on the GFE is the amount 
of the initial principal limit of the loan;
    (ii) The loan term is disclosed as ``N/A'' when the loan term is 
conditioned upon the occurrence of a specified event, such as the 
death of the borrower or the borrower no longer occupying the 
property for a certain period of time; and
    (iii) The initial interest rate is the interest rate indicated 
on the legal obligation.[ltrif]
    The loan originator must fill in the initial monthly amount owed 
for principal, interest, and any mortgage insurance. The amount 
shown must be the greater of: (1) The required monthly payment for 
principal and interest for the first regularly scheduled payment, 
plus any monthly mortgage insurance payment; or (2) the accrued 
interest for the first regularly scheduled payment, plus any monthly 
mortgage insurance payment. [rtrif]For reverse mortgage transactions 
where there are no regular payment periods, the loan originator must 
disclose ``Not Applicable'' or ``N/A'' for the initial monthly 
amount owed for principal, interest, and any mortgage 
insurance.[ltrif]
    The loan originator must indicate whether the interest rate can 
rise, and, if it can, must insert the maximum rate to which it can 
rise over the life of the loan. The loan originator must also 
indicate the period of time after which the interest rate can first 
change.
    The loan originator must indicate whether the loan balance can 
rise even if the borrower makes payments on time, for example in the 
case of a loan with negative amortization. If it can, the loan 
originator must insert the maximum amount to which the loan balance 
can rise over the life of the loan. For Federal, State, local, or 
tribal housing programs that provide payment assistance, any 
repayment of such program assistance should be excluded from 
consideration in completing this item. If the loan balance will 
increase only because escrow items are being paid through the loan 
balance, the loan originator is not required to check the box 
indicating that the loan balance can rise. [rtrif]For reverse 
mortgage transactions, the loan originator must indicate that the 
loan balance can rise even if the borrower makes payments on time 
and the maximum amount to which the loan balance can rise must be 
disclosed as ``Unknown.''[ltrif]
    The loan originator must indicate whether the monthly amount 
owed for principal, interest, and any mortgage insurance can rise 
even if the borrower makes payments on time. If the monthly amount 
owed can rise even if the borrower makes payments on time, the loan 
originator must indicate the period of time after which the monthly 
amount owed can first change, the maximum amount to which the 
monthly amount owed can rise at the time of the first change, and 
the maximum amount to which the monthly amount owed can rise over 
the life of the loan. The amount used for the monthly amount owed 
must be the greater of: (1) The required monthly payment for 
principal and interest for that month, plus any monthly mortgage 
insurance payment; or (2) the accrued interest for that month, plus 
any monthly mortgage insurance payment. [rtrif]For reverse mortgage 
transactions, the loan originator must disclose that the monthly 
amount owed for principal, interest, and any mortgage insurance 
cannot rise.[ltrif]
    The loan originator must indicate whether the loan includes a 
prepayment penalty, and, if so, the maximum amount that it could be.
    The loan originator must indicate whether the loan requires a 
balloon payment and, if so, the amount of the payment and in how 
many years it will be due. [rtrif]Reverse mortgage transactions are 
not considered to be balloon transactions for the purposes of this 
disclosure on the GFE.[ltrif]
    ``Escrow account information.''--The loan originator must 
indicate whether the loan includes an escrow account for property 
taxes and other financial obligations. The amount shown in the 
``Summary of your loan'' section for ``Your initial monthly amount 
owed for principal, interest, and any mortgage insurance'' must be 
entered in the space for the monthly amount owed in this section. 
[rtrif]For reverse mortgage transactions where the lender will 
establish an arrangement to pay for such items as property taxes and 
homeowner's insurance through draws from the principal limit, the 
loan originator must indicate that an escrow account is included and 
the amount shown in this section must be disclosed as ``N/
A.''[ltrif]
    ``Summary of your settlement charges.''--On this line, the loan 
originator must state the Adjusted Origination Charges from subtotal 
A of page 2, the Charges for All Other Settlement Services from 
subtotal B of page 2, and the Total Estimated Settlement Charges 
from the bottom of page 2.

Page 2

    ``Understanding your estimated settlement charges.''--This 
section details 11 settlement cost categories and amounts associated 
with the mortgage loan. For purposes of determining whether a 
tolerance has been met, the amount on the GFE should be compared 
with the total of any amounts shown on the HUD-1 in the borrower's 
column and any amounts paid outside closing by or on behalf of the 
borrower.
    ``Your Adjusted Origination Charges.''
    Block 1, ``Our origination charge.''--The loan originator must 
state here all charges that all loan originators involved in this 
transaction will receive, except for any charge for the specific 
interest rate chosen (points). A loan originator may not separately 
charge any additional fees for getting this loan, including for 
application, processing, or underwriting. The amount stated in Block 
1 is subject to zero tolerance, i.e., the amount may not increase at 
settlement.
    Block 2, ``Your credit or charge (points) for the specific 
interest rate chosen.''--For transactions involving mortgage 
brokers, the mortgage broker must indicate through check boxes 
whether there is a credit to the borrower for the interest rate 
chosen on the loan, the interest rate, and the amount of the credit, 
or whether there is an additional charge (points) to the borrower 
for the interest rate chosen on the loan, the interest rate, and the 
amount of that charge. Only one of the boxes may be checked; a 
credit and charge cannot occur together in the same transaction.
    For transactions without a mortgage broker, the lender may 
choose not to separately disclose in this block any credit or charge 
for the interest rate chosen on the loan; however, if this block 
does not include any positive or negative figure, the lender must 
check the first box to indicate that ``The credit or charge for the 
interest rate you have chosen'' is included in ``Our origination 
charge'' above (see Block 1 instructions above), must insert the 
interest rate, and must also insert ``0'' in Block 2. Only one of 
the boxes may be checked; a credit and charge cannot occur together 
in the same transaction.
    For a mortgage broker, the credit or charge for the specific 
interest rate chosen is the net payment to the mortgage broker from 
the lender (i.e., the sum of all payments to the mortgage broker 
from the lender, including payments based on the loan amount, a flat 
rate, or any other computation, and in a table funded transaction, 
the loan amount less the price paid for the loan by the lender). 
When the net payment to the mortgage broker from the lender is 
positive, there is a credit to the borrower and it is entered as a 
negative

[[Page 51308]]

amount in Block 2 of the GFE. When the net payment to the mortgage 
broker from the lender is negative, there is a charge to the 
borrower and it is entered as a positive amount in Block 2 of the 
GFE. If there is no net payment (i.e., the credit or charge for the 
specific interest rate chosen is zero), the mortgage broker must 
insert ``0'' in Block 2 and may check either the box indicating 
there is a credit of ``0'' or the box indicating there is a charge 
of ``0''.
    The amount stated in Block 2 is subject to zero tolerance while 
the interest rate is locked, i.e., any credit for the interest rate 
chosen cannot decrease in absolute value terms and any charge for 
the interest rate chosen cannot increase. (Note: An increase in the 
credit is allowed since this increase is a reduction in cost to the 
borrower. A decrease in the credit is not allowed since it is an 
increase in cost to the borrower.)
    Line A, ``Your Adjusted Origination Charges.''--The loan 
originator must add the numbers in Blocks 1 and 2 and enter this 
subtotal at highlighted Line A. The subtotal at Line A will be a 
negative number if there is a credit in Block 2 that exceeds the 
charge in Block 1. The amount stated in Line A is subject to zero 
tolerance while the interest rate is locked.
    In the case of ``no cost'' loans, where ``no cost'' refers only 
to the loan originator's fees, Line A must show a zero charge as the 
adjusted origination charge. In the case of ``no cost'' loans where 
``no cost'' encompasses third party fees as well as the upfront 
payment to the loan originator, all of the third party fees listed 
in Block 3 through Block 11 to be paid for by the loan originator 
(or borrower, if any) must be itemized and listed on the GFE. The 
credit for the interest rate chosen must be large enough that the 
total for Line A will result in a negative number to cover the third 
party fees.

``Your Charges for All Other Settlement Services''

    There is a 10 percent tolerance applied to the sum of the prices 
of each service listed in Block 3, Block 4, Block 5, Block 6, and 
Block 7, where the loan originator requires the use of a particular 
provider or the borrower uses a provider selected or identified by 
the loan originator. Any services in Block 4, Block 5, or Block 6 
for which the borrower selects a provider other than one identified 
by the loan originator are not subject to any tolerance and, at 
settlement, would not be included in the sum of the charges on which 
the 10 percent tolerance is based. Where a loan originator permits a 
borrower to shop for third party settlement services, the loan 
originator must provide the borrower with a written list of 
settlement services providers at the time of the GFE, on a separate 
sheet of paper.
    Block 3, ``Required services that we select.''--In this block, 
the loan originator must identify each third party settlement 
service required and selected by the loan originator (excluding 
title services), along with the estimated price to be paid to the 
provider of each service. Examples of such third party settlement 
services might include provision of credit reports, appraisals, 
flood checks, tax services, and any upfront mortgage insurance 
premium. The loan originator must identify the specific required 
services and provide an estimate of the price of each service. Loan 
originators are also required to add the individual charges 
disclosed in this block and place that total in the column of this 
block. The charge shown in this block is subject to an overall 10 
percent tolerance as described above.
    Block 4, ``Title services and lender's title insurance.''--In 
this block, the loan originator must state the estimated total 
charge for third party settlement service providers for all closing 
services, regardless of whether the providers are selected or paid 
for by the borrower, seller, or loan originator. The loan originator 
must also include any lender's title insurance premiums, when 
required, regardless of whether the provider is selected or paid for 
by the borrower, seller, or loan originator. All fees for title 
searches, examinations, and endorsements, for example, would be 
included in this total. The charge shown in this block is subject to 
an overall 10 percent tolerance as described above.
    Block 5, ``Owner's title insurance.''--In this block, for all 
purchase transactions the loan originator must provide an estimate 
of the charge for the owner's title insurance and related 
endorsements, regardless of whether the providers are selected or 
paid for by the borrower, seller, or loan originator. For non-
purchase transactions, the loan originator may enter ``NA'' or ``Not 
Applicable'' in this Block. The charge shown in this block is 
subject to an overall 10 percent tolerance as described above.
    Block 6, ``Required services that you can shop for.''--In this 
block, the loan originator must identify each third party settlement 
service required by the loan originator where the borrower is 
permitted to shop for and select the settlement service provider 
(excluding title services), along with the estimated charge to be 
paid to the provider of each service. The loan originator must 
identify the specific required services (e.g., survey, pest 
inspection) and provide an estimate of the charge of each service. 
The loan originator must also add the individual charges disclosed 
in this block and place the total in the column of this block. The 
charge shown in this block is subject to an overall 10 percent 
tolerance as described above.
    Block 7, ``Government recording charge.''--In this block, the 
loan originator must estimate the State and local government fees 
for recording the loan and title documents that can be expected to 
be charged at settlement. The charge shown in this block is subject 
to an overall 10 percent tolerance as described above.
    Block 8, ``Transfer taxes.''--In this block, the loan originator 
must estimate the sum of all State and local government fees on 
mortgages and home sales that can be expected to be charged at 
settlement, based upon the proposed loan amount or sales price and 
on the property address. A zero tolerance applies to the sum of 
these estimated fees.
    Block 9, ``Initial deposit for your escrow account.''--In this 
block, the loan originator must estimate the amount that it will 
require the borrower to place into a reserve or escrow account at 
settlement to be applied to recurring charges for property taxes, 
homeowner's and other similar insurance, mortgage insurance, and 
other periodic charges. The loan originator must indicate through 
check boxes if the reserve or escrow account will cover future 
payments for all tax, all hazard insurance, and other obligations 
that the loan originator requires to be paid as they fall due. If 
the reserve or escrow account includes some, but not all, property 
taxes or hazard insurance, or if it includes mortgage insurance, the 
loan originator should check ``other'' and then list the items 
included.
    Block 10, ``Daily interest charges.''--In this block, the loan 
originator must estimate the total amount that will be due at 
settlement for the daily interest on the loan from the date of 
settlement until the first day of the first period covered by 
scheduled mortgage payments. The loan originator must also indicate 
how this total amount is calculated by providing the amount of the 
interest charges per day and the number of days used in the 
calculation, based on a stated projected closing date.
    Block 11, ``Homeowner's insurance.''--The loan originator must 
estimate in this block the total amount of the premiums for any 
hazard insurance policy and other similar insurance, such as fire or 
flood insurance that must be purchased at or before settlement to 
meet the loan originator's requirements. The loan originator must 
also separately indicate the nature of each type of insurance 
required along with the charges. To the extent a loan originator 
requires that such insurance be part of an escrow account, the 
amount of the initial escrow deposit must be included in Block 9.
    Line B, ``Your Charges for All Other Settlement Services.''--The 
loan originator must add the numbers in Blocks 3 through 11 and 
enter this subtotal in the column at highlighted Line B.
    Line A+B, ``Total Estimated Settlement Charges.''--The loan 
originator must add the subtotals in the right-hand column at 
highlighted Lines A and B and enter this total in the column at 
highlighted Line A+B.

Page 3

    ``Instructions.''
    ``Understanding which charges can change at settlement.''--This 
section informs the applicant about which categories of settlement 
charges can increase at closing, and by how much, and which 
categories of settlement charges cannot increase at closing. This 
section requires no loan originator action.
    ``Using the tradeoff table.''--This section is designed to make 
borrowers aware of the relationship between their total estimated 
settlement charges on one hand, and the interest rate and resulting 
monthly payment on the other hand. The loan originator must complete 
the left hand column using the loan amount, interest rate, monthly 
payment figure, and the total estimated settlement charges from page 
1 of the GFE. The loan originator, at its option, may provide the 
borrower with the same information for two alternative loans, one 
with a higher interest rate, if available, and one with a lower

[[Page 51309]]

interest rate, if available, from the loan originator. The loan 
originator should list in the tradeoff table only alternative loans 
for which it would presently issue a GFE based on the same 
information the loan originator considered in issuing this GFE. The 
alternative loans must use the same loan amount and be otherwise 
identical to the loan in the GFE. The alternative loans must have, 
for example, the identical number of payment periods; the same 
margin, index, and adjustment schedule if the loans are adjustable 
rate mortgages; and the same requirements for prepayment penalty and 
balloon payments. If the loan originator fills in the tradeoff 
table, the loan originator must show the borrower the loan amount, 
alternative interest rate, alternative monthly payment, the change 
in the monthly payment from the loan in this GFE to the alternative 
loan, the change in the total settlement charges from the loan in 
this GFE to the alternative loan, and the total settlement charges 
for the alternative loan. If these options are available, an 
applicant may request a new GFE, and a new GFE must be provided by 
the loan originator.
    ``Using the shopping chart.''--This chart is a shopping tool to 
be provided by the loan originator for the borrower to complete, in 
order to compare GFEs.
    ``If your loan is sold in the future.''--This section requires 
no loan originator action.

PART 1026--TRUTH IN LENDING (REGULATION Z)

    6. The authority citation for part 1026 is revised to read as 
follows:

    Authority: 12 U.S.C. [rtrif]2601; 2603-2605, 2607, 2609, 2617, 
5511,[ltrif] 5512, [rtrif]5532,[ltrif] 5581; 15 U.S.C. 1601 et seq.
    7. Section 1026.1 is amended by revising paragraphs (a), (b), 
(c)(5), (d)(5), and (e) to read as follows:


Sec.  1026.1  Authority, purpose, coverage, organization, enforcement, 
and liability.

    (a) Authority. This part, known as Regulation Z, is issued by the 
Bureau of Consumer Financial Protection to implement the Federal Truth 
in Lending Act, which is contained in title I of the Consumer Credit 
Protection Act, as amended (15 U.S.C. 1601 et seq.). This part also 
implements title XII, section 1204 of the Competitive Equality Banking 
Act of 1987 (Pub. L. 100-86, 101 Stat. 552). [rtrif]Furthermore, this 
part implements certain provisions of the Real Estate Settlement 
Procedures Act of 1974, as amended (12 U.S.C. 2601 et seq.).[ltrif] 
Information-collection requirements contained in this part have been 
approved by the Office of Management and Budget under the provisions of 
44 U.S.C. 3501 et seq. and have been assigned OMB No. 3170-0015 
[rtrif](Truth in Lending)[ltrif].
    (b) Purpose. The purpose of this part is to promote the informed 
use of consumer credit by requiring disclosures about its terms and 
cost[rtrif], to ensure that consumers are provided with greater and 
more timely information on the nature and costs of the residential real 
estate settlement process, and to result in a more effective advance 
disclosure to home buyers and sellers of settlement costs[ltrif]. The 
regulation also includes substantive protections. It gives consumers 
the right to cancel certain credit transactions that involve a lien on 
a consumer's principal dwelling, regulates certain credit card 
practices, and provides a means for fair and timely resolution of 
credit billing disputes. The regulation does not generally govern 
charges for consumer credit, except that several provisions in subpart 
G set forth special rules addressing certain charges applicable to 
credit card accounts under an open-end (not home-secured) consumer 
credit plan. The regulation requires a maximum interest rate to be 
stated in variable-rate contracts secured by the consumer's dwelling. 
It also imposes limitations on home-equity plans that are subject to 
the requirements of Sec.  1026.40 and mortgages that are subject to the 
requirements of Sec.  1026.32. The regulation prohibits certain acts or 
practices in connection with credit secured by a dwelling in Sec.  
1026.36, and credit secured by a consumer's principal dwelling in Sec.  
1026.35. The regulation also regulates certain practices of creditors 
who extend private education loans as defined in Sec.  1026.46(b)(5). 
[rtrif]In addition, it imposes certain limitations on increases in 
costs for mortgage transactions subject to Sec.  1026.19(e) and 
(f).[ltrif]
    (c) Coverage. * * *
    [rtrif](5) No person is required to provide the disclosures 
required by sections 128(a)(16) through (19), 128(b)(4), 129C(f)(1), 
129C(g)(2) and (3), 129C(h), 129D(h), or 129D(j)(1)(A) of the Truth in 
Lending Act or section 4(c) of the Real Estate Settlement Procedures 
Act.[ltrif]
    (d) Organization. * * *
    (5) Subpart E contains special rules for mortgage transactions. 
Section 1026.32 requires certain disclosures and provides limitations 
for closed-end loans that have rates or fees above specified amounts. 
Section 1026.33 requires special disclosures, including the total 
annual loan cost rate, for reverse mortgage transactions. Section 
1026.34 prohibits specific acts and practices in connection with 
closed-end mortgage transactions that are subject to Sec.  1026.32. 
Section 1026.35 prohibits specific acts and practices in connection 
with closed-end higher-priced mortgage loans, as defined in Sec.  
1026.35(a). Section 1026.36 prohibits specific acts and practices in 
connection with an extension of credit secured by a dwelling. 
[rtrif]Sections 1026.37 and 1026.38 set forth the special disclosure 
requirements for certain closed-end transactions secured by real 
property, as required by Sec.  1026.19(e), (f), and (g).[ltrif]
* * * * *
    (e) Enforcement and liability. Section 108 of the [rtrif]Truth in 
Lending[ltrif] Act contains the administrative enforcement provisions 
[rtrif]for that Act[ltrif]. Sections 112, 113, 130, 131, and 134 
contain provisions relating to liability for failure to comply with the 
requirements of the [rtrif]Truth in Lending[ltrif] Act and the 
regulation. Section 1204(c) of title XII of the Competitive Equality 
Banking Act of 1987, Pub. L. 100-86, 101 Stat. 552, incorporates by 
reference administrative enforcement and civil liability provisions of 
sections 108 and 130 of the [rtrif]Truth in Lending[ltrif] Act. 
[rtrif]Section 19 of the Real Estate Settlement Procedures Act contains 
the administrative enforcement provisions for that Act.[ltrif]
    8. Section 1026.2 is amended by revising paragraphs (a)(3), (a)(6), 
and (a)(25) to read as follows:


Sec.  1026.2  Definitions and rules of construction.

    (a) Definitions. For purposes of this regulation, the following 
definitions apply:
* * * * *
    [rtrif](3)(i) Application means the submission of a consumer's 
financial information for the purposes of obtaining an extension of 
credit.
    (ii) Except for purposes of subpart B, subpart F, and subpart G of 
this part, an application consists of the submission of the consumer's 
name, the consumer's income, the consumer's social security number to 
obtain a credit report, the property address, an estimate of the value 
of the property, and the mortgage loan amount sought.[ltrif]
* * * * *
    (6) Business day means a day on which the creditor's offices are 
open to the public for carrying on substantially all of its business 
functions. However, for purposes of rescission under Sec. Sec.  1026.15 
and 1026.23, and for purposes of Sec. Sec.  1026.19(a)(1)(ii), 
1026.19(a)(2), [rtrif]1026.19(e)(1)(iii), 1026.19(e)(1)(iv), 
1026.19(e)(2)(i)(A), 1026.19(f)(1)(ii), 1026.19(f)(1)(iii),[ltrif] 
1026.31, and 1026.46(d)(4), the term means all calendar days except 
Sundays and the legal public holidays specified in 5 U.S.C. 6103(a), 
such as New Year's Day, the Birthday of Martin Luther King, Jr., 
Washington's Birthday, Memorial Day, Independence Day, Labor Day,

[[Page 51310]]

Columbus Day, Veterans Day, Thanksgiving Day, and Christmas Day.
* * * * *
    (25) Security interest means an interest in property that secures 
performance of a consumer credit obligation and that is recognized by 
State or Federal law. It does not include incidental interests such as 
interests in proceeds, accessions, additions, fixtures, insurance 
proceeds (whether or not the creditor is a loss payee or beneficiary), 
premium rebates, or interests in after-acquired property. For purposes 
of disclosures under Sec. Sec.  1026.6[rtrif],[ltrif] [lsqbb]and[rsqbb] 
1026.18, [rtrif]1026.19(e) and (f), and 1026.38(l)(6),[ltrif] the term 
does not include an interest that arises solely by operation of law. 
However, for purposes of the right of rescission under Sec. Sec.  
1026.15 and 1026.23, the term does include interests that arise solely 
by operation of law.
* * * * *
    9. Section 1026.3 is amended by revising the introductory text and 
adding new paragraph (h) to read as follows:


Sec.  1026.3  Exempt transactions.

    [rtrif]The following transactions are not subject to this part or, 
if the exemption is limited to specified provisions of this part, are 
not subject to those provisions[ltrif] [lsqbb]This part does not apply 
to the following[rsqbb]:
* * * * *
    [rtrif](h) Partial exemption for certain mortgage loans. The 
special disclosure requirements in Sec.  1026.19(e), (f), and (g) do 
not apply to a transaction that satisfies all of the following 
criteria:
    (1) The transaction is secured by a subordinate lien;
    (2) The transaction is for the purpose of:
    (i) Downpayment, closing costs, or other similar homebuyer 
assistance, such as principal or interest subsidies;
    (ii) Property rehabilitation assistance;
    (iii) Energy efficiency assistance; or
    (iv) Foreclosure avoidance or prevention;
    (3) The credit contract does not require the payment of interest;
    (4) The credit contract provides that repayment of the amount of 
credit extended is:
    (i) Forgiven either incrementally or in whole, at a date certain, 
and subject only to specified ownership and occupancy conditions, such 
as a requirement that the consumer maintain the property as the 
consumer's principal dwelling for five years;
    (ii) Deferred for a minimum of 20 years;
    (iii) Deferred until sale of the property securing the transaction; 
or
    (iv) Deferred until the property securing the transaction is no 
longer the principal dwelling of the consumer;
    (5) The total of closing costs payable by the consumer in 
connection with the transaction is less than one percent of the amount 
of credit extended and includes no charges other than:
    (i) Fees for recordation of security instruments, deeds, and 
similar documents;
    (ii) A bona fide and reasonable application fee; and
    (iii) A bona fide and reasonable fee for housing counseling 
services; and
    (6) The creditor complies with all other applicable requirements of 
this part in connection with the transaction, including without 
limitation the disclosures required by Sec.  1026.18 even if the 
creditor would not otherwise be subject to the disclosure requirements 
of Sec.  1026.18.[ltrif]
    10. Section 1026.4 is amended by revising paragraphs (a)(2), (c) 
introductory text, (d)(1), (d)(2), (d)(3), and (e), and adding new 
paragraph (g), to read as follows:


Sec.  1026.4  Finance charge.

    (a) * * *
    (2) Special rule; closing agent charges. [rtrif]Except as provided 
in Sec.  1026.4(g), fees[ltrif] [lsqbb]Fees[rsqbb] charged by a third 
party that conducts the loan closing (such as a settlement agent, 
attorney, or escrow or title company) are finance charges only if the 
creditor:
    (i) Requires the particular services for which the consumer is 
charged;
    (ii) Requires the imposition of the charge; or
    (iii) Retains a portion of the third-party charge, to the extent of 
the portion retained.
* * * * *
    (c) Charges excluded from the finance charge. [rtrif]Except as 
provided in Sec.  1026.4(g), the[ltrif] [lsqbb]The[rsqbb] following 
charges are not finance charges:
* * * * *
    (d) Insurance and debt cancellation and debt suspension coverage. 
(1) Voluntary credit insurance premiums. [rtrif]Except as provided in 
Sec.  1026.4(g), premiums[ltrif] [lsqbb]Premiums[rsqbb] for credit 
life, accident, health, or loss-of-income insurance may be excluded 
from the finance charge if the following conditions are met:
    (i) The insurance coverage is not required by the creditor, and 
this fact is disclosed in writing.
    (ii) The premium for the initial term of insurance coverage is 
disclosed in writing. If the term of insurance is less than the term of 
the transaction, the term of insurance also shall be disclosed. The 
premium may be disclosed on a unit-cost basis only in open-end credit 
transactions, closed-end credit transactions by mail or telephone under 
Sec.  1026.17(g), and certain closed-end credit transactions involving 
an insurance plan that limits the total amount of indebtedness subject 
to coverage.
    (iii) The consumer signs or initials an affirmative written request 
for the insurance after receiving the disclosures specified in this 
paragraph, except as provided in paragraph (d)(4) of this section. Any 
consumer in the transaction may sign or initial the request.
    (2) Property insurance premiums. Premiums for insurance against 
loss of or damage to property, or against liability arising out of the 
ownership or use of property, including single interest insurance if 
the insurer waives all right of subrogation against the consumer, may 
be excluded from the finance charge if the following conditions are 
met:
    (i) The insurance coverage may be obtained from a person of the 
consumer's choice, and this fact is disclosed. (A creditor may reserve 
the right to refuse to accept, for reasonable cause, an insurer offered 
by the consumer.)
    (ii) If the coverage is obtained from or through the creditor 
[rtrif]or from an affiliate of the creditor,[ltrif] the premium for the 
initial term of insurance coverage shall be disclosed. If the term of 
insurance is less than the term of the transaction, the term of 
insurance shall also be disclosed. The premium may be disclosed on a 
unit-cost basis only in open-end credit transactions, closed-end credit 
transactions by mail or telephone under Sec.  1026.17(g), and certain 
closed-end credit transactions involving an insurance plan that limits 
the total amount of indebtedness subject to coverage.
    (3) Voluntary debt cancellation or debt suspension fees. 
[rtrif]Except as provided in Sec.  1026.4(g), charges[ltrif] 
[lsqbb]Charges[rsqbb] or premiums paid for debt cancellation coverage 
for amounts exceeding the value of the collateral securing the 
obligation or for debt cancellation or debt suspension coverage in the 
event of the loss of life, health, or income or in case of accident may 
be excluded from the finance charge, whether or not the coverage is 
insurance, if the following conditions are met:
    (i) The debt cancellation or debt suspension agreement or coverage 
is not

[[Page 51311]]

required by the creditor, and this fact is disclosed in writing;
    (ii) The fee or premium for the initial term of coverage is 
disclosed in writing. If the term of coverage is less than the term of 
the credit transaction, the term of coverage also shall be disclosed. 
The fee or premium may be disclosed on a unit-cost basis only in open-
end credit transactions, closed-end credit transactions by mail or 
telephone under Sec.  1026.17(g), and certain closed-end credit 
transactions involving a debt cancellation agreement that limits the 
total amount of indebtedness subject to coverage;
    (iii) The following are disclosed, as applicable, for debt 
suspension coverage: That the obligation to pay loan principal and 
interest is only suspended, and that interest will continue to accrue 
during the period of suspension.
    (iv) The consumer signs or initials an affirmative written request 
for coverage after receiving the disclosures specified in this 
paragraph, except as provided in paragraph (d)(4) of this section. Any 
consumer in the transaction may sign or initial the request.
* * * * *
    (e) Certain security interest charges. [rtrif]Except as provided in 
Sec.  1026.4(g), if[ltrif] [lsqbb]If[rsqbb] itemized and disclosed, the 
following charges may be excluded from the finance charge:
* * * * *
    [rtrif](g) Special rule for closed-end mortgage transactions. 
Paragraphs (a)(2) and (c) through (e) of this section, other than 
paragraphs (c)(2), (c)(5), (c)(7)(v), and (d)(2), do not apply to 
closed-end transactions secured by real property or a dwelling.[ltrif]
    11. Section 1026.17 is amended by adding introductory text to 
paragraph (a) and revising paragraphs (b), (f) introductory text, (g) 
introductory text, and (h) introductory text to read as follows:


Sec.  1026.17  General disclosure requirements.

    (a) Form of disclosures. [rtrif]Except for the disclosures required 
by Sec.  1026.19(e), (f), and (g):[ltrif]
* * * * *
    (b) Time of disclosures. The creditor shall make disclosures before 
consummation of the transaction. In certain residential mortgage 
transactions, special timing requirements are set forth in Sec.  
1026.19(a). In certain variable-rate transactions, special timing 
requirements for variable-rate disclosures are set forth in Sec.  
1026.19(b) and Sec.  1026.20(c). For private education loan disclosures 
made in compliance with Sec.  1026.47, special timing requirements are 
set forth in Sec.  1026.46(d). In certain transactions involving mail 
or telephone orders or a series of sales, the timing of disclosures may 
be delayed in accordance with paragraphs (g) and (h) of this section. 
[rtrif]This paragraph (b) does not apply to the disclosures required by 
Sec.  1026.19(e), (f), and (g).[ltrif]
* * * * *
    (f) Early disclosures. Except for private education loan 
disclosures made in compliance with Sec.  1026.47, if disclosures 
required by this subpart are given before the date of consummation of a 
transaction and a subsequent event makes them inaccurate, the creditor 
shall disclose before consummation (subject to the provisions of Sec.  
1026.19(a)(2)[rtrif], (e), and (f)):[ltrif] [lsqbb]and Sec.  
1026.19(a)(5)(iii)):[rsqbb]
* * * * *
    (g) Mail or telephone orders--delay in disclosures. Except for 
private education loan disclosures made in compliance with Sec.  
1026.47 [rtrif]and mortgage disclosures made in compliance with Sec.  
1026.19(a), (e), and (f)[ltrif], if a creditor receives a purchase 
order or a request for an extension of credit by mail, telephone, or 
facsimile machine without face-to-face or direct telephone 
solicitation, the creditor may delay the disclosures until the due date 
of the first payment, if the following information for representative 
amounts or ranges of credit is made available in written form or in 
electronic form to the consumer or to the public before the actual 
purchase order or request:
* * * * *
    (h) Series of sales--delay in disclosures. [rtrif]Except for 
mortgage disclosures made in compliance with Sec.  1026.19(a), (e), and 
(f), if[ltrif] [lsqbb]If[rsqbb] a credit sale is one of a series made 
under an agreement providing that subsequent sales may be added to an 
outstanding balance, the creditor may delay the required disclosures 
until the due date of the first payment for the current sale, if the 
following two conditions are met:
* * * * *
    12. Section 1026.18 is amended by revising the introductory text 
and paragraphs (k), (s) introductory text, (s)(3)(i)(C), and (t)(1) to 
read as follows:


Sec.  1026.18  Content of disclosures.

    For each transaction [rtrif]other than a mortgage transaction 
subject to Sec.  1026.19(e) and (f)[ltrif], the creditor shall disclose 
the following information as applicable:
* * * * *
    (k) Prepayment. (1) When an obligation includes a finance charge 
computed from time to time by application of a rate to the unpaid 
principal balance, a statement indicating whether or not a 
[rtrif]charge[ltrif] [lsqbb]penalty[rsqbb] may be imposed [rtrif]for 
paying all or part of a loan's principal balance before the date on 
which the principal is due.[ltrif] [lsqbb]if the obligation is prepaid 
in full.[rsqbb]
    (2) When an obligation includes a finance charge other than the 
finance charge described in paragraph (k)(1) of this section, a 
statement indicating whether or not the consumer is entitled to a 
rebate of any finance charge if the obligation is prepaid in full 
[rtrif]or in part[ltrif].
* * * * *
    (s) Interest rate and payment summary for mortgage transactions. 
For a closed-end transaction secured by real property or a dwelling, 
other than a transaction [rtrif]that is subject to Sec.  1026.19(e) and 
(f)[ltrif] [lsqbb]secured by a consumer's interest in a timeshare plan 
described in 11 U.S.C. 101(53D)[rsqbb], the creditor shall disclose the 
following information about the interest rate and payments:
* * * * *
    (3) Payments for amortizing loans. (i) Principal and interest 
payments. * * *
    (C) If an escrow account will be established, an estimate of the 
amount of taxes and insurance, including any mortgage insurance 
[rtrif]or any functional equivalent[ltrif], payable with each periodic 
payment; and
* * * * *
    (t) ``No-guarantee-to-refinance'' statement. (1) Disclosure. For a 
closed-end transaction secured by real property or a dwelling, other 
than a transaction [rtrif]that is subject to Sec.  1026.19(e) and 
(f)[ltrif] [lsqbb]secured by a consumer's interest in a timeshare plan 
described in 11 U.S.C. 101(53D)[rsqbb], the creditor shall disclose a 
statement that there is no guarantee the consumer can refinance the 
transaction to lower the interest rate or periodic payments.
* * * * *
    13. Section 1026.19 is amended by revising paragraph (a)(1)(i) and 
(ii), removing paragraph (a)(5), and adding new paragraphs (e), (f), 
and (g), to read as follows:


Sec.  1026.19  Certain mortgage and variable-rate transactions.

    (a) [rtrif]Reverse mortgage[ltrif] [lsqbb]Mortgage[rsqbb] 
transactions subject to RESPA. (1)(i) Time of disclosures. In a 
[rtrif]reverse[ltrif] mortgage transaction subject to [rtrif]both Sec.  
1026.33 and[ltrif] the Real Estate Settlement Procedures Act (12 U.S.C.

[[Page 51312]]

2601 et seq.) that is secured by the consumer's dwelling, [lsqbb]other 
than a home equity line of credit subject to Sec.  1026.40 or mortgage 
transaction subject to paragraph (a)(5) of this section,[rsqbb] the 
creditor shall make good faith estimates of the disclosures required by 
Sec.  1026.18 and shall deliver or place them in the mail not later 
than the third business day after the creditor receives the consumer's 
written application.
    (ii) Imposition of fees. Except as provided in paragraph 
(a)(1)(iii) of this section, neither a creditor nor any other person 
may impose a fee on a consumer in connection with the consumer's 
application for a [rtrif]reverse[ltrif] mortgage transaction subject to 
paragraph (a)(1)(i) of this section before the consumer has received 
the disclosures required by paragraph (a)(1)(i) of this section. If the 
disclosures are mailed to the consumer, the consumer is considered to 
have received them three business days after they are mailed.
    (iii) Exception to fee restriction. A creditor or other person may 
impose a fee for obtaining the consumer's credit history before the 
consumer has received the disclosures required by paragraph (a)(1)(i) 
of this section, provided the fee is bona fide and reasonable in 
amount.
* * * * *
    [lsqbb](5) Timeshare plans. In a mortgage transaction subject to 
the Real Estate Settlement Procedures Act (12 U.S.C. 2601 et seq.) that 
is secured by a consumer's interest in a timeshare plan described in 11 
U.S.C. 101(53(D)):
    (i) The requirements of paragraphs (a)(1) through (a)(4) of this 
section do not apply;
    (ii) The creditor shall make good faith estimates of the 
disclosures required by Sec.  1026.18 before consummation, or shall 
deliver or place them in the mail not later than three business days 
after the creditor receives the consumer's written application, 
whichever is earlier; and
    (iii) If the annual percentage rate at the time of consummation 
varies from the annual percentage rate disclosed under paragraph 
(a)(5)(ii) of this section by more than \1/8\ of 1 percentage point in 
a regular transaction or more than \1/4\ of 1 percentage point in an 
irregular transaction, as defined in Sec.  1026.22, the creditor shall 
disclose all the changed terms no later than consummation or 
settlement.[rsqbb]
* * * * *
    [rtrif](e) Mortgage loans secured by real property--Early 
disclosures. (1) Provision. (i) Creditor. In a closed-end consumer 
credit transaction secured by real property, other than a reverse 
mortgage subject to Sec.  1026.33, the creditor shall make good faith 
estimates of the disclosures in Sec.  1026.37.
    (ii) Mortgage broker. A mortgage broker may provide a consumer with 
the disclosures required under paragraph (e)(1)(i) of this section, 
provided the broker complies with all requirements of this paragraph 
(e) as if it were the creditor. The creditor shall ensure that 
disclosures are provided in accordance with the requirements of this 
paragraph (e). Disclosures provided by a broker in accordance with the 
requirements of this paragraph (e) satisfy the creditor's obligation 
under paragraph (e)(1)(i) of this section.
    (iii) Timing. The creditor shall deliver the disclosures required 
under paragraph (e)(1)(i) of this section not later than the third 
business day after the creditor receives the consumer's application, as 
defined in Sec.  1026.2(a)(3). The creditor shall deliver the 
disclosures required under paragraph (e)(1)(i) of this section not 
later than the seventh business day before consummation of the 
transaction.
    (iv) Delivery. If any disclosures required under paragraph 
(e)(1)(i) of this section are not provided to the consumer in person, 
the consumer is presumed to have received the disclosures three 
business days after they are mailed or delivered to the address 
specified by the consumer.
    (v) Consumer's waiver of waiting period before consummation. If the 
consumer determines that the extension of credit is needed to meet a 
bona fide personal financial emergency, the consumer may modify or 
waive the seven-business-day waiting period for early disclosures 
required under paragraph (e)(1)(iii) of this section, after receiving 
the disclosures required under paragraph (e)(1)(i) of this section. To 
modify or waive a waiting period, the consumer shall give the creditor 
a dated written statement that describes the emergency, specifically 
modifies or waives the waiting period, and bears the signature of all 
the consumers who are primarily liable on the legal obligation. Printed 
forms for this purpose are prohibited.
    (vi) Shopping for settlement service providers. (A) Shopping 
permitted. A creditor permits a consumer to shop for a settlement 
service if the creditor permits the consumer to select the provider of 
that service, subject to reasonable requirements.
    (B) Disclosure of services. The creditor shall identify the 
services for which the consumer is permitted to shop in the disclosures 
provided pursuant to paragraph 19(e)(1)(i) of this section.
    (C) Written list of providers. If the consumer is permitted to shop 
for a settlement service, the creditor shall provide the consumer with 
a written list identifying available providers of that settlement 
service and stating that the consumer may choose a different provider 
for that service. The creditor shall provide this written list of 
settlement service providers separately from the disclosures required 
by paragraph (e)(1)(i) of this section but in accordance with the 
timing requirements in paragraph (e)(1)(iii) of this section.
    (2) Pre-disclosure activity. (i) Imposition of fees on consumer. 
(A) Fee restriction. Except as provided in paragraph (e)(2)(i)(B) of 
this section, neither a creditor nor any other person may impose a fee 
on a consumer in connection with the consumer's application for a 
mortgage transaction subject to paragraph (e)(1)(i) of this section 
before the consumer has received the disclosures required under 
paragraph (e)(1)(i) of this section and indicated to the creditor an 
intent to proceed with the transaction described by those disclosures.
    (B) Exception to fee restriction. A creditor or other person may 
impose a bona fide and reasonable fee for obtaining the consumer's 
credit report before the consumer has received the disclosures required 
under paragraph (e)(1)(i) of this section.
    (ii) Written information provided to consumer. If a creditor 
provides a consumer with a written estimate of terms or costs specific 
to that consumer before the consumer receives the disclosures required 
under paragraph (e)(1)(i) of this section and indicates intent to 
proceed with the transaction, the creditor shall clearly and 
conspicuously state at the top of the front of the first page of the 
estimate in 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.''
    (iii) Verification of information. The creditor shall not require a 
consumer to submit documents verifying information related to the 
consumer's application before providing the disclosures required by 
paragraph (e)(1)(i) of this section.
    (3) Good faith determination for estimates of closing costs. (i) 
General rule. An estimated closing cost is in good faith if the charge 
paid by or imposed on the consumer does not exceed the amount disclosed 
under paragraph (e)(1)(i) of this section, except as otherwise provided 
in paragraph (e)(3)(ii) through (iv) of this section.

[[Page 51313]]

    (ii) Limited increases permitted for certain charges. An estimate 
of a charge for a third-party service or a recording fee is in good 
faith if:
    (A) The aggregate amount of charges for third-party services and 
recording fees paid by or imposed on the consumer does not exceed the 
aggregate amount of such charges disclosed under paragraph (e)(1)(i) of 
this section by more than 10 percent;
    (B) The charge is not paid to an affiliate of the creditor; and
    (C) The creditor permits the consumer to shop for the service, 
consistent with paragraph (e)(1)(vi)(A) of this section.
    (iii) Variations permitted for certain charges. An estimate of the 
following charges is in good faith if it is consistent with the best 
information reasonably available to the creditor at the time it is 
disclosed, regardless of whether the amount actually paid by the 
consumer exceeds the amount disclosed under paragraph (e)(1)(i) of this 
section:
    (A) Prepaid interest;
    (B) Property insurance premiums;
    (C) Amounts placed into an escrow, impound, reserve, or similar 
account; and
    (D) Charges paid to third-party service providers selected by the 
consumer consistent with paragraph (e)(1)(vi)(A) of this section that 
are not on the list provided pursuant to paragraph (e)(1)(vi)(C) of 
this section.
    (iv) Revised estimates. For the purpose of determining good faith 
under paragraph (e)(3)(i) and (ii) of this section, a charge paid by or 
imposed on the consumer may exceed the originally estimated charge if 
the revision is due to one of the following reasons:
    (A) Changed circumstance affecting settlement charges. Changed 
circumstances cause the estimated charges to increase or, in the case 
of estimated charges identified in paragraph (e)(3)(ii) of this 
section, cause the aggregate amount of such charges to increase by more 
than 10 percent. For purposes of this paragraph, ``changed 
circumstance'' means:
    (1) An extraordinary event beyond the control of any interested 
party or other unexpected event specific to the consumer or 
transaction;
    (2) Information specific to the consumer or transaction that the 
creditor relied upon when providing the disclosures required under 
paragraph (e)(1)(i) of this section and that was inaccurate or changed 
after the disclosures were provided; or
    (3) New information specific to the consumer or transaction that 
the creditor did not rely on when providing the original disclosures.
    (B) Changed circumstance affecting eligibility. The consumer is 
ineligible for an estimated charge previously disclosed because a 
changed circumstance, as defined under paragraph (e)(3)(iv)(A) of this 
section, affected the consumer's creditworthiness or the value of the 
security for the loan.
    (C) Revisions requested by the consumer. The consumer requests 
revisions to the credit terms or the settlement that cause an estimated 
charge to increase.
    (D) Interest rate dependent charges. The points or lender credits 
change because the interest rate was not set when the disclosures 
required under paragraph (e)(1)(i) of this section were provided. On 
the date the interest rate is set, the creditor shall provide revised 
disclosures under paragraph (e)(1)(i) of this section to the consumer 
with the revised interest rate, bona fide discount points, and lender 
credits.
    (E) Expiration. The consumer expresses an intent to proceed with 
the transaction more than ten business days after the disclosures 
required under paragraph (e)(1)(i) of this section are provided.
    (F) Delayed settlement date on a construction loan. In transactions 
involving new construction, where the creditor reasonably expects that 
settlement will occur more than 60 days after the disclosures required 
under paragraph (e)(1)(i) of this section are originally provided, the 
creditor may provide revised disclosures to the consumer if the 
original disclosures state clearly and conspicuously that at any time 
prior to 60 days before consummation, the creditor may issue revised 
disclosures. If no such statement is provided, the creditor may not 
issue revised disclosures, except as otherwise provided in paragraph 
(f) of this section.
    (4) Provision of revised disclosures. (i) Except as provided in 
paragraph (e)(4)(ii) of this section, if a creditor provides a revised 
disclosure pursuant to paragraph (e)(3)(iv) of this section, the 
creditor shall provide such revised disclosure within three business 
days of receiving information sufficient to establish that one of the 
reasons for revision provided under paragraph (e)(3)(iv)(A) through (F) 
of this section applies.
    (ii) The creditor shall not deliver a revised disclosure pursuant 
to paragraph (e)(3)(iv) of this section on or after the date on which 
the creditor delivers the disclosures required under paragraph 
(f)(1)(i) of this section. The consumer must receive a revised version 
of the disclosure required under paragraph (e)(1)(i) of this section no 
later than four days prior to consummation.

Alternative 1--Paragraph (f)(1)

    (f) Mortgage loans secured by real property--Final disclosures. (1) 
Provision. (i) Scope. In a closed-end consumer credit transaction 
secured by real property, other than a reverse mortgage subject to 
Sec.  1026.33, the creditor shall provide the consumer with the 
disclosures in Sec.  1026.38 reflecting the actual terms of the 
transaction.
    (ii) Timing. (A) In general. Except as provided in paragraph 
(f)(1)(ii)(B) or (f)(2) of this section, the creditor shall ensure that 
the consumer receives the disclosures required under paragraph 
(f)(1)(i) of this section no later than three business days before 
consummation.
    (B) Timeshares. For transactions secured by a consumer's interest 
in a timeshare plan described in 11 U.S.C. 101(53D), the creditor shall 
ensure that the consumer receives the disclosures required under 
paragraph (f)(1)(i) of this section no later than consummation.
    (iii) Delivery. If any disclosures required under paragraph 
(f)(1)(i) of this section are not provided to the consumer in person, 
the consumer is presumed to have received the disclosures three 
business days after they are mailed or delivered to the address 
specified by the consumer.
    (iv) Consumer's waiver of waiting period before consummation. If 
the consumer determines that the extension of credit is needed to meet 
a bona fide personal financial emergency, the consumer may modify or 
waive the three-business-day waiting period for the disclosures 
required under paragraph (f)(1)(ii) of this section, after receiving 
the disclosures required under paragraph (f)(1)(i) of this section. To 
modify or waive a waiting period, the consumer shall give the creditor 
a dated written statement that describes the emergency, specifically 
modifies or waives the waiting period, and bears the signature of all 
consumers who are primarily liable on the legal obligation. Printed 
forms for this purpose are prohibited.

Alternative 2--Paragraph (f)(1)

    (f) Mortgage loans secured by real property--Final disclosures. (1) 
Provision. (i) Scope. In a closed-end consumer credit transaction 
secured by real property, other than a reverse mortgage subject to 
Sec.  1026.33, the creditor shall provide the consumer with the 
disclosures in Sec.  1026.38 reflecting the actual terms of the 
transaction.

[[Page 51314]]

    (ii) Timing. (A) In general. Except as provided in paragraph 
(f)(1)(ii)(B) or (f)(2) of this section, the creditor shall ensure that 
the consumer receives the disclosures required under paragraph 
(f)(1)(i) of this section no later than three business days before 
consummation.
    (B) Timeshares. For transactions secured by a consumer's interest 
in a timeshare plan described in 11 U.S.C. 101(53D), the creditor shall 
ensure that the consumer receives the disclosures required under 
paragraph (f)(1)(i) of this section no later than consummation.
    (iii) Delivery. If any disclosures required under paragraph 
(f)(1)(i) of this section are not provided to the consumer in person, 
the consumer is presumed to have received the disclosures three 
business days after they are mailed or delivered to the address 
specified by the consumer.
    (iv) Consumer's waiver of waiting period before consummation. If 
the consumer determines that the extension of credit is needed to meet 
a bona fide personal financial emergency, the consumer may modify or 
waive the three-business-day waiting period for the disclosures 
required under paragraph (f)(1)(ii) of this section, after receiving 
the disclosures required under paragraph (f)(1)(i) of this section. To 
modify or waive a waiting period, the consumer shall give the creditor 
a dated written statement that describes the emergency, specifically 
modifies or waives the waiting period, and bears the signature of all 
consumers who are primarily liable on the legal obligation. Printed 
forms for this purpose are prohibited.
    (v) Settlement agent. A settlement agent may provide a consumer 
with the disclosures required under paragraph (f)(1)(i) of this 
section, provided the settlement agent complies with all requirements 
of this paragraph (f) as if it were the creditor. The creditor shall 
ensure that disclosures are provided in accordance with the 
requirements of this paragraph (f). Disclosures provided by a 
settlement agent in accordance with the requirements of this paragraph 
(f) satisfy the creditor's obligation under paragraph (f)(1)(i) of this 
section.
    (2) Subsequent changes. If the disclosure provided pursuant to 
paragraph (f)(1)(i) of this section is subsequently revised for any of 
the reasons described in this paragraph (f)(2), a creditor need not 
comply with the timing requirements in paragraph (f)(1)(ii) of this 
section when providing a revised disclosure:
    (i) Changes due to consumer and seller negotiations. If, after the 
creditor provides the consumer with the disclosures required under 
paragraph (f)(1)(i) of this section, the consumer and the seller agree 
to make changes to the transaction that affect items disclosed pursuant 
to paragraph (f)(1)(i) of this section, the creditor shall deliver 
revised disclosures reflecting such changes at or before consummation.
    (ii) Changes to the amount actually paid by the consumer. If the 
amount actually paid by the consumer does not exceed the amount 
disclosed pursuant to Sec.  1026.38(d)(1) by more than one hundred 
dollars the creditor shall deliver revised disclosures at or before 
consummation.
    (iii) Changes due to events occurring after consummation. If an 
event occurs after consummation that causes disclosures required under 
paragraph (f)(1)(i) of this section to become inaccurate, and such 
inaccuracy results solely from payments to a government entity in 
connection with the transaction, the creditor shall deliver revised 
disclosures to the consumer not later than the third business day after 
the event occurs, provided the consumer receives the revised 
disclosures no later than 30 days after consummation.
    (iv) Changes due to clerical errors. A creditor does not violate 
section (f)(1)(i) if the disclosures provided under (f)(1)(i) contain 
non-numeric clerical errors, provided the creditor delivers revised 
disclosures as soon as reasonably practicable and no later than 30 days 
after consummation.
    (v) Refunds related to the good faith analysis. If amounts paid by 
the consumer exceed the amounts specified under paragraph (e)(3)(i) or 
(ii) of this section, the creditor complies with paragraph (e)(1)(i) of 
this section if the creditor refunds the excess to the consumer as soon 
as reasonably practicable and no later than 30 days after consummation, 
and the creditor complies with paragraph (f)(1)(i) of this section if 
the creditor delivers revised disclosures that reflect such refund as 
soon as reasonably practicable and no later than 30 days after 
consummation.
    (3) Charges disclosed. (i) Actual charge. The amount imposed upon 
the consumer for any settlement service shall not exceed the amount 
actually received by the service provider for that service, except as 
otherwise provided in paragraph (f)(3)(ii) of this section.
    (ii) Average charge. A creditor or settlement service provider may 
charge a consumer or seller the average charge for a settlement service 
if the following conditions are satisfied:
    (A) The average charge is no more than the average amount paid for 
that service by or on behalf of all consumers and sellers for a class 
of transactions;
    (B) The creditor or settlement service provider defines the class 
of transactions based on an appropriate period of time, geographic 
area, and type of loan;
    (C) The creditor or settlement service provider uses the same 
average charge for every transaction within the defined class; and
    (D) The creditor or settlement service provider does not use an 
average charge:
    (1) For any type of insurance;
    (2) For any charge based on the loan amount or property value; or
    (3) If doing so is otherwise prohibited by law.
    (4) Transactions involving a seller. (i) Provision to seller. In a 
closed-end consumer credit transaction secured by real property that 
involves a seller, other than a reverse mortgage subject to Sec.  
1026.33, the person conducting the real estate closing shall provide 
the seller with the disclosures in Sec.  1026.38 that relate to the 
seller's transaction.
    (ii) Timing. The person conducting the real estate closing shall 
provide the disclosures required under paragraph (f)(4)(i) of this 
section no later than the day of consummation. If an event occurs after 
consummation that causes disclosures required under paragraph (f)(4)(i) 
of this section to become inaccurate, and such inaccuracy results 
solely from payments to a government entity, the person conducting the 
real estate closing shall deliver revised disclosures to the seller no 
later than 30 days after consummation.
    (iii) Charges disclosed. The amount imposed on the seller for any 
settlement service shall not exceed the amount actually received by the 
service provider for that service, except as otherwise provided in 
paragraph (f)(3)(ii) of this section.
    (5) No fee. No fee may be imposed on any person, as a part of 
settlement costs or otherwise, by a creditor or by a servicer (as that 
term is defined under 12 U.S.C. 2605(i)(2)) for the preparation or 
delivery of the disclosures required under paragraph (f)(1)(i) of this 
section, escrow account statements required pursuant to section 10 of 
RESPA (12 U.S.C. 2609), or statements required by the Truth in Lending 
Act, 15 U.S.C. 1601 et seq.
    (g) Special information booklet at time of application. (1) 
Creditor to provide special information booklet. Except as provided in 
paragraphs (g)(1)(ii) and (iii) of this section, the creditor shall 
provide a copy of the special information booklet to a consumer who 
applies for a consumer credit transaction secured by real property.

[[Page 51315]]

    (i) The creditor shall deliver the special information booklet to 
the consumer not later than three business days after the application 
is received. However, if the creditor denies the consumer's application 
for credit before the end of the three-day period, the creditor need 
not provide the booklet. If a consumer uses a mortgage broker, the 
mortgage broker shall provide the special information booklet and the 
creditor need not do so.
    (ii) In the case of a home equity line of credit subject to Sec.  
1026.40, a creditor or mortgage broker that provides the consumer with 
a copy of the brochure entitled ``When Your Home is On the Line: What 
You Should Know About Home Equity Lines of Credit,'' or any successor 
brochure issued by the Bureau, is deemed to be in compliance with this 
section.
    (iii) The creditor or mortgage broker need not provide the booklet 
to the consumer for the following types of transactions:
    (A) Refinancing transactions;
    (B) Closed-end loans when the lender takes a subordinate lien;
    (C) Reverse mortgages; and
    (D) Any other consumer credit transaction secured by real property 
whose purpose is not the purchase of a one-to-four family residential 
property.
    (2) Permissible changes. No changes to, deletions from, or 
additions to the special information booklet shall be made other than 
the permissible changes specified in paragraphs (g)(2)(i) through (iv) 
of this section.
    (i) In the Complaints section of the booklet, it is a permissible 
change to substitute ``the Bureau of Consumer Financial Protection'' 
for ``HUD's Office of RESPA'' and ``the RESPA office.''
    (ii) In the Avoiding Foreclosure section of the booklet, it is a 
permissible change to inform homeowners that homeowners may find 
information on and assistance in avoiding foreclosures at https://www.consumerfinance.gov. The deletion of the reference to the HUD Web 
page, https://www.hud.gov/foreclosure/, in the Avoiding Foreclosure 
section of the booklet is not a permissible change.
    (iii) In the No Discrimination Section of the Appendix to the 
booklet, it is a permissible change to substitute ``the Bureau of 
Consumer Financial Protection'' for the reference to the ``Board of 
Governors of the Federal Reserve System.'' In the Contact Information 
section of the Appendix to the booklet, it is a permissible change to 
add the following contact information for the Bureau: ``Bureau of 
Consumer Financial Protection, 1700 G Street NW., Washington, DC 20552; 
www.consumerfinance.gov/learnmore.'' It is also a permissible change to 
remove the contact information for HUD's Office of RESPA and Interstate 
Land Sales from the Contact Information section of the Appendix to the 
booklet.
    (iv) The cover of the booklet may be in any form and may contain 
any drawings, pictures or artwork, provided that the words ``settlement 
costs'' are used in the title. Names, addresses, and telephone numbers 
of the lender or others and similar information may appear on the 
cover, but no discussion of the matters covered in the booklet shall 
appear on the cover. References to HUD on the cover of the booklet may 
be changed to references to the Bureau.[ltrif]
    14. Section 1026.22 is amended by revising paragraphs (a)(4)(ii)(A) 
and (a)(5) to read as follows:


Sec.  1026.22  Determination of annual percentage rate.

    (a) Accuracy of annual percentage rate. * * *
    (4) Mortgage loans. If the annual percentage rate disclosed in a 
transaction secured by real property or a dwelling varies from the 
actual rate determined in accordance with paragraph (a)(1) of this 
section, in addition to the tolerances applicable under paragraphs 
(a)(2) and (3) of this section, the disclosed annual percentage rate 
shall also be considered accurate if:
    (i) The rate results from the disclosed finance charge; and
    (ii)(A) The disclosed finance charge would be considered accurate 
under Sec.  1026.18(d)(1) [rtrif]or 1026.38(o)(2), as 
applicable[ltrif]; or
    (B) For purposes of rescission, if the disclosed finance charge 
would be considered accurate under Sec.  1026.23(g) or (h), whichever 
applies.
    (5) Additional tolerance for mortgage loans. In a transaction 
secured by real property or a dwelling, in addition to the tolerances 
applicable under paragraphs (a)(2) and (3) of this section, if the 
disclosed finance charge is calculated incorrectly but is considered 
accurate under Sec.  1026.18(d)(1)[rtrif] or 1026.38(o)(2), as 
applicable,[ltrif] or Sec.  1026.23(g) or (h), the disclosed annual 
percentage rate shall be considered accurate:
    (i) If the disclosed finance charge is understated, and the 
disclosed annual percentage rate is also understated but it is closer 
to the actual annual percentage rate than the rate that would be 
considered accurate under paragraph (a)(4) of this section;
    (ii) If the disclosed finance charge is overstated, and the 
disclosed annual percentage rate is also overstated but it is closer to 
the actual annual percentage rate than the rate that would be 
considered accurate under paragraph (a)(4) of this section.
* * * * *
    15. Section 1026.25 is amended by revising paragraph (a) and adding 
new paragraph (c) to read as follows:


Sec.  1026.25  Record retention.

    (a) General rule. A creditor shall retain evidence of compliance 
with this part (other than advertising requirements under Sec. Sec.  
1026.16 and 1026.24[rtrif], and other than the requirements under Sec.  
1026.19(e) and (f)[ltrif]) for [lsqbb]2[rsqbb][rtrif]two[ltrif] years 
after the date disclosures are required to be made or action is 
required to be taken. The administrative agencies responsible for 
enforcing the regulation may require creditors under their 
jurisdictions to retain records for a longer period if necessary to 
carry out their enforcement responsibilities under section 108 of the 
Act.
* * * * *
    [rtrif](c) Records related to certain requirements for mortgage 
loans. (1) Records related to requirements for loans secured by real 
property. (i) General rule. Except as provided under paragraph 
(c)(1)(ii) of this section, a creditor shall retain evidence of 
compliance with the requirements of Sec.  1026.19(e) and (f) for 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 
taken.
    (ii) Closing Disclosures. (A) A creditor shall retain each 
completed disclosure required under Sec.  1026.19(f)(1)(i) or 
(f)(4)(i), and all documents related to such disclosures, for five 
years after consummation.
    (B) If a creditor sells, transfers, or otherwise disposes of its 
interest in a mortgage and does not service the mortgage, the creditor 
shall provide a copy of the disclosures required under Sec.  
1026.19(f)(1)(i) or (f)(4)(i) to the owner or servicer of the mortgage 
as a part of the transfer of the loan file. Such owner or servicer 
shall retain such disclosures for the remainder of the five-year period 
described under paragraph (c)(1)(ii)(A) of this section.
    (C) The Bureau shall have the right to require provision of copies 
of records related to the disclosures required under Sec.  
1026.19(f)(1)(i) and (f)(4)(i).
    (iii) Electronic records. A creditor shall retain evidence of 
compliance in electronic, machine readable format.
    (2) [Reserved][ltrif]
    16. Section 1026.28 is amended by revising paragraph (a)(1) to read 
as follows:

[[Page 51316]]

Sec.  1026.28  Effect on State laws.

    (a) Inconsistent disclosure requirements. (1) Except as provided in 
paragraph (d) of this section, State law requirements that are 
inconsistent with the requirements contained in chapter 1 (General 
Provisions), chapter 2 (Credit Transactions), or chapter 3 (Credit 
Advertising) of the Act and the implementing provisions of this part 
are preempted to the extent of the inconsistency. A State law is 
inconsistent if it requires a creditor to make disclosures or take 
actions that contradict the requirements of the Federal law. A State 
law is contradictory if it requires the use of the same term to 
represent a different amount or a different meaning than the Federal 
law, or if it requires the use of a term different from that required 
in the Federal law to describe the same item. A creditor, State, or 
other interested party may request the Bureau to determine whether a 
State law requirement is inconsistent. After the Bureau determines that 
a State law is inconsistent, a creditor may not make disclosures using 
the inconsistent term or form. [rtrif]A determination as to whether a 
State law is inconsistent with the requirements of sections 4 and 5 of 
RESPA (other than the RESPA section 5(c) requirements regarding 
provision of a list of certified homeownership counselors) and 
Sec. Sec.  1026.19(e) and (f), 1026.37, and 1026.38 shall be made in 
accordance with this section and not 12 CFR 1024.13.[ltrif]
* * * * *
    17. New Sec.  1026.37 is added to read as follows:


[rtrif]Sec.  1026.37  Content of disclosures for certain mortgage 
transactions (Loan Estimate).

    For each transaction subject to Sec.  1026.19(e), the creditor 
shall disclose the information in this section, as applicable:
    (a) General information. (1) Form title. The title of the form, 
``Loan Estimate,'' using that term.
    (2) Form purpose. The statement, ``Save this Loan Estimate to 
compare with your Closing Disclosure.''
    (3) Creditor. The name and address of the creditor making the 
disclosure.
    (4) Date issued. The date the disclosures are mailed or delivered 
to the consumer by the creditor, labeled ``Date Issued.''
    (5) Applicants. The consumer's name and mailing address, labeled 
``Applicants.''
    (6) Property. The street address or location of the property that 
secures the transaction, labeled ``Property.''
    (7) Sale price. (i) For credit transactions that involve a seller, 
the contract sale price of the property identified in paragraph (a)(6) 
of this section, labeled ``Sale Price.''
    (ii) For credit transactions that do not involve a seller, the 
estimated value of the property identified in paragraph (a)(6), labeled 
``Est. Prop. Value.''
    (8) Loan term. The term to maturity of the credit transaction, 
stated in years, labeled ``Loan Term.''
    (9) Purpose. The consumer's intended use for the credit, labeled 
``Purpose,'' using one of the following terms:
    (i) Purchase. If the credit is to finance the acquisition of the 
property identified in paragraph (a)(6) of this section, the creditor 
shall disclose that the loan is for a ``Purchase.''
    (ii) Refinance. The creditor shall disclose that the loan is for a 
``Refinance'' if the credit is a refinance of an existing obligation, 
consistent with Sec.  1026.20(a), by any creditor, that is secured by 
the property identified in paragraph (a)(6) of this section.
    (iii) Construction. If the credit will be used to finance the 
construction of a dwelling on the property identified in paragraph 
(a)(6) of this section, the creditor shall disclose that the loan is 
for ``Construction.''
    (iv) Home equity loan. If the credit is not for one of the purposes 
described in paragraphs (a)(9)(i)-(iii) of this section, the creditor 
shall disclose that the loan is for a ``Home Equity Loan.''
    (10) Product. A description of the loan product, labeled 
``Product.'' (i) The description of the loan product shall include one 
of the following terms, as applicable:
    (A) Adjustable rate. If the interest rate may increase after 
consummation, but the rates that will apply or the periods for which 
they will apply are not known at consummation, the creditor shall 
disclose the loan product as an ``Adjustable Rate.''
    (B) Step rate. If the interest rate will change after consummation, 
and the rates that will apply and periods for which they will apply are 
known at consummation, the creditor shall disclose the loan product as 
a ``Step Rate.''
    (C) Fixed rate. If the loan product is not an Adjustable Rate or a 
Step Rate, as described in paragraphs (a)(10)(i)(A) and (B) of this 
section, respectively, the creditor shall disclose the loan product as 
a ``Fixed Rate.''
    (ii) The description of the loan product shall include the features 
that may change the periodic payment, using the following terms as 
required by paragraph (a)(10)(iii), as applicable:
    (A) Negative amortization. If the principal balance may increase 
due to the addition of accrued interest to the principal balance, the 
creditor shall disclose that the loan product has a ``Negative 
Amortization'' feature.
    (B) Interest only. If one or more regular periodic payments may be 
applied only to interest accrued and not to the loan principal, the 
creditor shall disclose that the loan product has an ``Interest Only'' 
feature.
    (C) Step payment. If scheduled variations in regular periodic 
payment amounts occur that are not caused by changes to the interest 
rate during the loan term, the creditor shall disclose that the loan 
product has a ``Step Payment'' feature.
    (D) Balloon payment. The creditor shall disclose that the loan has 
a ``Balloon Payment'' feature if the transaction includes a ``balloon 
payment,'' as that term is defined in Sec.  1026.37(b)(5).
    (E) Seasonal payment. If the terms of the legal obligation 
expressly provide that regular periodic payments are not scheduled in 
between specified unit-periods on a regular basis, the creditor shall 
disclose that the loan product has a ``Seasonal Payment'' feature.
    (iii) The disclosure of a loan feature under paragraph (a)(10)(ii) 
of this section shall precede the disclosure of the loan product under 
paragraph (a)(10)(i) of this section. If a transaction has more than 
one of the loan features described in paragraph (a)(10)(ii) of this 
section, the creditor shall disclose only the first applicable feature 
in the order the features are listed in paragraph (a)(10)(ii) of this 
section.
    (iv) The disclosures required by paragraphs (a)(10)(i) and (ii) of 
this section must each be preceded by a description of any introductory 
rate period, adjustment period, or other time period, as applicable.
    (11) Loan type. The type of loan, labeled ``Loan Type,'' offered to 
the consumer using one of the following terms, as applicable:
    (i) Conventional. If the loan is not guaranteed or insured by a 
Federal or State government agency, the creditor shall disclose that 
the loan is a ``Conventional.''
    (ii) FHA. If the loan is insured by the Federal Housing 
Administration, the creditor shall disclose that the loan is an 
``FHA.''
    (iii) VA. If the loan is guaranteed by the U.S. Department of 
Veterans Affairs, the creditor shall disclose that the loan is a 
``VA.''
    (iv) Other. For federally-insured or guaranteed loans other than 
those described in paragraphs (a)(11)(ii) and

[[Page 51317]]

(iii) of this section and loans insured or guaranteed by a State 
agency, the creditor shall disclose the loan type as ``Other,'' and 
provide a brief description of the loan type.
    (12) Loan identification number (Loan ID #). A unique number that 
may be used by the creditor, consumer, and other parties to identify 
the transaction, labeled as ``Loan ID .''
    (13) Rate lock. A statement of whether the interest rate disclosed 
pursuant to paragraph (b)(2) of this section is set for a specific 
period of time, labeled ``Rate Lock.''
    (i) For transactions in which the interest rate is set for a 
specific period of time, the creditor must provide the date and time 
(including the applicable time zone) when that period ends.
    (ii) The ``Rate Lock'' statement required by this paragraph (a)(13) 
shall be accompanied by a statement that the interest rate, any points, 
and any lender credits may change unless the interest rate has been 
set, and the date and time (including the applicable time zone) at 
which estimated closing costs expire.
    (b) Loan terms. A separate table labeled ``Loan Terms'' that 
includes the following information and satisfies the following 
requirements:
    (1) Loan amount. The amount of credit to be extended under the 
terms of the legal obligation, labeled the ``Loan Amount.''
    (2) Interest rate. The initial interest rate that will be 
applicable to the transaction, labeled the ``Interest Rate.'' If the 
initial interest rate may adjust based on an index, the amount 
disclosed shall be the fully-indexed rate, which, for purposes of this 
paragraph, means the interest rate calculated using the index value and 
margin at the time of consummation.
    (3) Principal and interest payment. The initial periodic payment 
amount that will be due under the terms of the legal obligation, 
labeled ``Principal & Interest,'' immediately preceded by the 
applicable unit-period, and a statement referring to the payment amount 
that includes any mortgage insurance and escrow payments that is 
required to be disclosed pursuant to paragraph (c) of this section. If 
the initial periodic payment amount may adjust based on an index, the 
amount disclosed shall be calculated using the fully-indexed rate 
disclosed under paragraph (b)(2) of this section.
    (4) Prepayment penalty. A statement of whether the transaction 
includes a prepayment penalty, labeled ``Prepayment Penalty.'' For 
purposes of this paragraph (b)(4), ``prepayment penalty'' means a 
charge imposed for paying all or part of a transaction's principal 
before the date on which the principal is due.
    (5) Balloon payment. A statement of whether the transaction 
includes a balloon payment, labeled ``Balloon Payment.'' For purposes 
of this paragraph (b)(5), ``balloon payment'' means a payment that is 
more than two times a regular periodic payment and is not itself a 
regular periodic payment. ``Balloon payment'' includes the payment or 
payments under a transaction that requires only one or two payments 
during the loan term.
    (6) Adjustments after consummation. For each amount required to be 
disclosed by paragraphs (b)(1) through (3) of this section, a statement 
of whether the amount may increase after consummation as an affirmative 
or negative answer to the question ``Can this amount increase after 
closing?'' and, if in the case of an affirmative answer, the following 
additional information, as applicable:
    (i) Adjustment in loan amount. The maximum principal balance for 
the transaction and the due date of the last payment that may cause the 
principal balance to increase. The disclosure shall indicate whether 
the maximum principal balance is potential or is scheduled to occur 
under the terms of the legal obligation using the phrase ``Can go as 
high as'' or ``Will go as high as,'' respectively.
    (ii) Adjustment in interest rate. The frequency of interest rate 
adjustments, the date when the interest rate may first adjust, the 
maximum interest rate, and the first date when the interest rate can 
reach the maximum interest rate, followed by a reference to the 
disclosure required by paragraph (j) of this section. If the loan term, 
as defined under paragraph (a)(8) of this section, may increase based 
on an adjustment of the interest rate, the disclosure required by this 
paragraph (b)(6)(ii) shall also state that fact and the maximum 
possible loan term.
    (iii) Increase in periodic payment. The scheduled frequency of 
adjustments to the periodic principal and interest payment, the due 
date of the first adjusted principal and interest payment, the maximum 
possible periodic principal and interest payment, and the date when the 
periodic principal and interest payment may first equal the maximum 
principal and interest payment. If any adjustments to the principal and 
interest payment are not the result of a change to the interest rate, a 
reference to the disclosure required by paragraph (i) of this section. 
If there is a period during which only interest is required to be paid, 
the disclosure required by this paragraph (b)(6)(iii) shall also state 
that such periodic payments will include ``only interest'' and ``no 
principal'' and the due date of the last periodic payment of such 
period.
    (7) Details about prepayment penalty and balloon payment. The 
information required to be disclosed by paragraphs (b)(4) and (5) of 
this section shall be disclosed as an affirmative or negative answer to 
the question ``Does the loan have these features?'' If an affirmative 
answer for a prepayment penalty or balloon payment is required to be 
disclosed, the following information, as applicable:
    (i) The maximum amount of the prepayment penalty that may be 
imposed and the date when the period under which the penalty may be 
imposed terminates; and
    (ii) The maximum amount of the balloon payment(s) and the due 
date(s).
    (8) Timing. The dates required to be disclosed by paragraphs (b)(6) 
and (7) of this section shall be disclosed as the year in which the 
date occurs, counting from the date that interest for the first 
scheduled periodic payment begins to accrue after consummation.
    (c) Projected payments. In a separate table under the heading 
``Projected Payments,'' an itemization of each separate periodic 
payment or range of payments, together with an estimate of taxes, 
insurance, and assessments and the payments to be made with escrow 
account funds.
    (1) Periodic payment or range of payments. (i) The initial periodic 
payment or range of payments is a separate periodic payment or range of 
payments and, except as otherwise provided in paragraph (c)(1)(ii) of 
this section, the following events require the disclosure of additional 
separate periodic payments or ranges of payments:
    (A) The periodic principal and interest payment or range of such 
payments may change;
    (B) A scheduled balloon payment; and
    (C) The creditor must automatically terminate mortgage insurance 
coverage, or any functional equivalent, under applicable law.
    (ii) The table required by this paragraph (c) shall not disclose 
more than four separate periodic payments or ranges of payments. For 
all events requiring disclosure of additional separate periodic 
payments or ranges of payments described in paragraph (c)(1)(i) of this 
section after the second to occur, the separate periodic payments or 
ranges of payments shall be disclosed as a single range of payments, 
subject to the following exceptions:

[[Page 51318]]

    (A) A final balloon payment shall always be disclosed as a separate 
periodic payment or range of payments, in which case no more than three 
other separate periodic payments or ranges of payments are disclosed.
    (B) The automatic termination of mortgage insurance coverage, or 
any functional equivalent, under applicable law shall require 
disclosure of a separate periodic payment or range of payments only if 
the total number of events that require disclosure of additional 
separate periodic payments or ranges of payments described in paragraph 
(c)(1)(i) of this section, other than the termination of mortgage 
insurance, or any functional equivalent, does not exceed two.
    (C) If changes to periodic principal and interest payments 
described in paragraph (c)(1)(i)(A) of this section would require more 
than one separate disclosure during a single year, such periodic 
payments shall be disclosed as a single range of payments.
    (iii) A range of payments is required under this paragraph (c)(1) 
when the periodic principal and interest payment may adjust based on 
index rates at the time an interest rate adjustment may occur or 
multiple events are combined in a range of payments pursuant to 
paragraph (c)(1)(ii) of this section. When a range of payments is 
required, the creditor must disclose the minimum and maximum amount for 
both the principal and interest payment under paragraph (c)(2)(i) of 
this section and the total periodic payment under paragraph (c)(2)(iv) 
of this section. In the case of an interest rate adjustment, the 
maximum payment amounts are determined by assuming that the interest 
rate in effect throughout the loan term is the maximum possible 
interest rate, and the minimum payment amounts are determined by 
assuming that the interest rate in effect throughout the loan term is 
the minimum possible interest rate.
    (2) Itemization. Each separate periodic payment or range of 
payments included in the table required by this paragraph (c) shall be 
itemized as follows:
    (i) The amount payable for principal and interest, labeled 
``Principal & Interest,'' including the term ``only interest'' if the 
payment or range of payments includes any interest-only payment;
    (ii) The maximum amount payable for mortgage insurance premiums 
corresponding to the principal and interest payment disclosed pursuant 
to paragraph (c)(2)(i) of this section, labeled ``Mortgage Insurance'';
    (iii) The amount payable into an escrow account to pay some or all 
of the charges described in paragraphs (c)(4)(ii)(A) through (E) of 
this section, as applicable, labeled ``Estimated Escrow,'' together 
with a statement that the amount disclosed can increase over time; and
    (iv) The total periodic payment, calculated as the sum of the 
amounts disclosed pursuant to paragraphs (c)(2)(i) through (iii) of 
this section, labeled ``Total Monthly Payment.''
    (3) Subheadings. (i) The labels required pursuant to paragraph 
(c)(2) of this section must be listed under the subheading ``Payment 
Calculation.''
    (ii) Each separate periodic payment or range of payments to be 
disclosed under this paragraph (c) must be disclosed under a subheading 
that states the number of years of the loan during which that payment 
or range of payments will apply. The subheadings must be stated in a 
sequence of whole years from the date that the first such payment is 
due.
    (4) Taxes, insurance, and assessments. Under the information 
required by paragraphs (c)(1) through (3) of this section:
    (i) The label ``Estimated Taxes, Insurance & Assessments'';
    (ii) The sum of the following charges, if applicable, expressed as 
a monthly amount, even if no escrow account for the payment of some or 
any of such charges will be established:
    (A) Property taxes;
    (B) Mortgage-related insurance premiums required by the creditor, 
other than amounts payable for mortgage insurance premiums;
    (C) Homeowner's association, condominium, or cooperative fees;
    (D) Ground rent or leasehold payments; and
    (E) Special assessments;
    (iii) A statement that the amount disclosed pursuant to paragraph 
(c)(4)(ii) of this section can increase over time;
    (iv) A statement of whether the amount disclosed pursuant to 
paragraph (c)(4)(ii) of this section includes payments for property 
taxes, homeowner's insurance, and other amounts described in paragraph 
(c)(4)(ii) of this section, along with a description of any such other 
amounts, and an indication of whether such amounts will be paid by the 
creditor using escrow account funds;
    (v) A statement that the consumer must pay separately any amounts 
described in paragraph (c)(4)(ii) of this section that are not paid by 
the creditor using escrow account funds; and
    (vi) A reference to the information disclosed pursuant to paragraph 
(g)(3) of this section.
    (5) Calculation of taxes and insurance. For purposes of paragraphs 
(c)(2)(iii) and (4)(ii) of this section, estimated property taxes and 
homeowner's insurance shall reflect:
    (i) The taxable assessed value of the real property securing the 
transaction after consummation, including the value of any improvements 
on the property or to be constructed on the property, if known, whether 
or not such construction will be financed from the proceeds of the 
transaction, for property taxes; and
    (ii) The replacement costs of the property during the initial year 
after the transaction, for homeowner's insurance.
    (d) Cash to close. In a separate table, under the heading ``Cash to 
Close'':
    (1) The dollar amount as calculated in accordance with paragraph 
(h)(8) of this section, labeled ``Estimated Cash to Close'';
    (2) The dollar amount calculated in accordance with paragraph 
(f)(4) of this section, described as ``Loan Costs'';
    (3) The dollar amount calculated in accordance with paragraph 
(g)(5) of this section, described as ``Other Costs'';
    (4) The dollar amount disclosed pursuant to paragraph (g)(6)(ii) of 
this section, described as ``Lender Credits'';
    (5) The sum of the amounts disclosed pursuant to paragraphs (d)(2), 
(d)(3) and (d)(4) of this section, described as ``Closing Costs''; and
    (6) A statement referring the consumer to the location where tables 
required pursuant to paragraphs (f) and (g) of this section are 
provided for details.
    (e) Web site reference. A statement that the consumer may obtain 
additional information and tools at the Web site of the Bureau, and the 
link/URL address to the Web site: www.consumerfinance.gov/learnmore.
    (f) Closing cost details; loan costs. Under the master heading 
``Closing Cost Details,'' in a table under the heading ``Loan Costs,'' 
all loan costs associated with the transaction. The table shall contain 
the items and amounts listed under four subheadings, described in 
paragraphs (f)(1) through (4) of this section.
    (1) Origination charges. Under the subheading ``Origination 
Charges,'' an itemization of each amount, and a subtotal of all such 
amounts, that the consumer will pay to each creditor and loan 
originator for originating and extending the credit.
    (i) The points that the consumer will pay to the creditor to reduce 
the interest rate shall be separately itemized, as both a percentage of 
the amount of credit extended and a dollar amount, and labeled '' ----% 
of Loan Amount

[[Page 51319]]

(Points).'' If points are not paid by the consumer, the disclosure 
required by this paragraph (f)(1)(i) shall show the amount as zero.
    (ii) The number of items disclosed under this paragraph (f)(1), 
including the points disclosed under paragraph (f)(1)(i) of this 
section, shall not exceed 13.
    (2) Services you cannot shop for. Under the subheading ``Services 
You Cannot Shop For,'' an itemization of each amount, and a subtotal of 
all such amounts, for services for which the consumer cannot shop in 
accordance with Sec.  1026.19(e)(1)(vi)(A) and that are provided by 
persons other than the creditor or mortgage broker.
    (i) For any item that is a component of title insurance or is for 
conducting the closing, the introductory description ``Title--'' shall 
appear at the beginning of the label for that item.
    (ii) The number of items disclosed under this paragraph (f)(2) 
shall not exceed 13.
    (3) Services you can shop for. Under the subheading ``Services You 
Can Shop For,'' an itemization of each amount, and a subtotal of all 
such amounts, for services for which the consumer can shop in 
accordance with Sec.  1026.19(e)(1)(vi)(A) and that are provided by 
persons other than the creditor or mortgage broker.
    (i) For any item that is a component of title insurance or is for 
conducting the closing, the introductory description ``Title--'' shall 
appear at the beginning of the label for that item.
    (ii) The number of items disclosed under this paragraph (f)(3) 
shall not exceed 14.
    (4) Total loan costs. Under the subheading ``Total Loan Costs,'' 
the sum of the subtotals disclosed under paragraphs (f)(1) through (3) 
of this section.
    (5) Item descriptions and ordering. The items listed as loan costs 
pursuant to this paragraph (f) shall be labeled using terminology that 
briefly and clearly describes each item, subject to the requirements of 
paragraphs (f)(1)(i), (f)(2)(i), and (f)(3)(i) of this section.
    (i) The item prescribed in paragraph (f)(1)(i) of this section for 
points shall be the first item listed in the disclosure pursuant to 
paragraph (f)(1) of this section.
    (ii) All other items must be listed in alphabetical order by their 
labels under the applicable subheading.
    (6) Use of addenda. (i) An addendum to a form of disclosures 
prescribed by Sec.  1026.37(o) may not be used for items required to be 
disclosed by paragraph (f)(1) or (2) of this section. If the creditor 
is not able to itemize all of the charges required to be disclosed in 
the number of lines provided by paragraph (f)(1)(ii) or (2)(ii) of this 
section, the remaining charges shall be disclosed as an aggregate 
amount in the last line permitted under paragraph (f)(1)(ii) or 
(2)(ii), as applicable, using the label ``Additional Charges'' to 
describe such charges.
    (ii) An addendum to a form of disclosures prescribed by Sec.  
1026.37(o) may be used for items required to be disclosed by paragraph 
(f)(3) of this section. If the creditor is not able to itemize all of 
the charges required to be disclosed in the number of lines provided by 
paragraph (f)(3)(ii), the remaining charges shall be disclosed as 
follows:
    (A) Label the last line permitted under paragraph (f)(3)(ii) with 
an appropriate reference to an addendum and list the remaining items on 
the addendum in accordance with the requirements in paragraphs (f)(3) 
and (5) of this section; or
    (B) Disclose the remaining charges as an aggregate amount in the 
last line permitted under paragraph (f)(3)(ii), using the label 
``Additional Charges.''
    (g) Closing cost details; other costs. Under the master heading 
``Closing Cost Details,'' costs associated with the transaction that 
are in addition to the costs disclosed under Sec.  1026.37(f), listed 
in a table under the heading ``Other Costs.'' The table consists of the 
items and amounts listed under six subheadings, described in paragraphs 
(g)(1) through (6) of this section.
    (1) Taxes and other government fees. Under the subheading ``Taxes 
and Other Government Fees,'' the amounts to be paid to State and local 
governments for taxes and other government fees, and the subtotal of 
all such amounts, as follows:
    (i) On the first line, using the label ``Recording Fees and Other 
Taxes,'' the sum of all recording fees and other government fees and 
taxes, except for transfer taxes.
    (ii) On the second line, using the label ``Transfer Taxes,'' the 
sum of all transfer taxes.
    (iii) If an amount for recording fees or transfer taxes is not 
charged to the consumer, the dollar amount disclosed on the applicable 
line required by this paragraph (g)(1) must be zero.
    (2) Prepaids. Under the subheading ``Prepaids,'' an itemization of 
the amounts to be paid by the consumer in advance of the first 
scheduled payment, and the subtotal of all such amounts, as follows:
    (i) On the first line, using the label ``Homeowner's Insurance 
Premium (-- months),'' the number of months for which homeowner's 
premiums are to be paid by the consumer at consummation and the total 
dollar amount to be paid.
    (ii) On the second line, using the label ``Mortgage Insurance 
Premium (-- months),'' the number of months for which mortgage 
insurance premiums are to be paid by the consumer at consummation and 
the total dollar amount to be paid.
    (iii) On the third line, using the label ``Prepaid Interest (---- 
per day for -- days @ --%),'' the amount of interest to be paid per 
day, the number of days for which prepaid interest will be collected, 
the interest rate, and the total dollar amount to be paid.
    (iv) On the fourth line, using the label ``Property Taxes,'' the 
number of months for which property taxes are to be paid by the 
consumer and the total dollar amount to be paid.
    (v) If an amount is not charged to the consumer for any item for 
which this paragraph (g)(2) prescribes a label, the dollar amount 
disclosed on that line must be zero.
    (vi) A maximum of three additional items may be disclosed under 
this paragraph (g)(2), and each additional item must be identified and 
include the applicable time period covered by the amount to be paid by 
the consumer at consummation and the total amount to be paid.
    (3) Initial escrow payment at closing. Under the subheading 
``Initial Escrow Payment at Closing,'' an itemization of the amounts 
that the consumer will be expected to place into a reserve or escrow 
account at consummation to be applied to recurring periodic charges, 
and the subtotal of all such amounts, as follows:
    (i) On the first line, using the label ``Homeowner's Insurance $-- 
per month for -- mo.,'' the amount escrowed per month, the number of 
months covered by an escrowed amount collected at consummation, and the 
total amount to be paid into the escrow account by the consumer to 
insure the property against hazards.
    (ii) On the second line, using the label ``Mortgage Insurance $-- 
per month for -- mo.,'' the amount escrowed per month, the number of 
months covered by an escrowed amount collected at consummation, and the 
total amount to be paid by the consumer for mortgage insurance.
    (iii) On the third line, using the label ``Property Taxes $-- per 
month for -- mo.,'' the amount escrowed per month, the number of months 
covered by an escrowed amount collected at consummation, and the total 
amount to be paid by the consumer for property taxes.

[[Page 51320]]

    (iv) If an amount is not charged to the consumer for any item for 
which this paragraph (g)(3) prescribes a label, the dollar amount 
disclosed on that line must be zero.
    (v) A maximum of five additional items may be disclosed under this 
paragraph (g)(3), and each additional item must be identified and 
include the applicable amount per month, the number of months collected 
at consummation, and the total amount to be paid.
    (4) Other. Under the subheading ``Other,'' an itemization of any 
other amounts the consumer is likely to pay or has contracted with a 
person other than the creditor or loan originator to pay at closing and 
of which the creditor is aware at the time of issuing the Loan 
Estimate, and the subtotal of all amounts itemized.
    (i) For any item that is a component of title insurance, the 
introductory description ``Title--'' shall appear at the beginning of 
the label for that item.
    (ii) The parenthetical description ``(optional)'' shall appear at 
the end of the label for items disclosing any premiums paid for 
separate insurance, warranty, guarantee, or event-coverage products.
    (iii) The number of items disclosed under this paragraph (g)(4) 
shall not exceed five.
    (iv) If there are no such amounts, this table must be left blank.
    (5) Total other costs. With the label ``Total Other Costs,'' the 
sum of the amounts disclosed pursuant to paragraphs (g)(1) through (4) 
of this section.
    (6) Total closing costs. With the label ``Total Closing Costs,'' 
the component amounts and their sum, as follows:
    (i) The sum of the amounts disclosed as Loan Costs and Other Costs 
under paragraphs (f)(4) and (g)(5) of this section, disclosed with the 
label ``D + I'';
    (ii) The amount of any lender credits, disclosed as a negative 
number with the label ``Lender Credits''; and
    (iii) Add the amount calculated under paragraph (g)(6)(i) and the 
(negative) amount disclosed under paragraph (g)(6)(ii) and disclose 
this sum as ``Total Closing Costs.''
    (7) Item descriptions and ordering. In identifying the items listed 
as Other Costs pursuant to this paragraph (g), the creditor must use 
terminology that briefly and clearly describes the item.
    (i) The items prescribed in paragraphs (g)(1)(i) and (ii), 
(g)(2)(i) through (iv), and (g)(3)(i) through (iii) of this section 
must be listed in the order prescribed as the initial items under the 
applicable subheading, with any additional items to follow.
    (ii) All additional items must be listed in alphabetical order 
under the applicable subheading.
    (8) Use of addenda. An addendum to a form of disclosures prescribed 
by Sec.  1026.37(o) may not be used for items required to be disclosed 
by this paragraph (g). If the creditor is not able to itemize all of 
the charges required to be disclosed in the number of lines provided by 
paragraph (g)(2)(vi), (3)(v), or (4)(iii) of this section, the 
remaining charges shall be disclosed as an aggregate amount in the last 
line permitted under paragraph (g)(2)(vi), (3)(v), or (4)(iii), as 
applicable, using the label ``Additional Charges.''
    (h) Calculating cash to close. In a separate table, under the 
master heading ``Closing Cost Details,'' required by paragraph (f) of 
this section, under the heading ``Calculating Cash to Close,'' the 
total amount of cash or other funds that must be provided by the 
consumer at consummation must be disclosed, with an itemization of that 
amount into the following component amounts:
    (1) Total closing costs. The amount disclosed under paragraph 
(g)(6)(iii) of this section, disclosed as a positive number;
    (2) Closing costs to be financed. The amount of any closing costs 
to be paid out of loan proceeds, disclosed as a negative number;
    (3) Downpayment and other funds from borrower. (i) In a purchase 
transaction, as defined in Sec.  1026.37(a)(9)(i), the actual amount of 
the difference between the purchase price of the property and the 
principal amount of the loan, disclosed as a positive number; or
    (ii) In all other transactions, the estimated ``Funds from 
Borrower,'' labeled using that term, as determined in accordance with 
paragraph (h)(5) of this section;
    (4) Deposit. The amount that is paid to the seller or held in trust 
or escrow by an attorney or other party under the terms of the 
agreement for the sale of the property, disclosed as a negative number;
    (5) Funds for borrower. The amount of ``Funds from Borrower,'' to 
be disclosed under paragraph (h)(3)(ii) of this section, and of ``Funds 
for Borrower,'' disclosed under this paragraph (h)(5) of this section, 
are determined by subtracting the principal amount of the credit 
extended (excluding any amount disclosed pursuant to paragraph (h)(2) 
of this section) from the total amount of all existing debt being 
satisfied in the transaction (except to the extent the satisfaction of 
such existing debt is disclosed under paragraph (g) of this section).
    (i) If the calculation under this paragraph (h)(5) of this section 
yields an amount that is a positive number, such amount shall be 
disclosed under paragraph (h)(3)(ii) of this section, and $0.00 shall 
be disclosed under paragraph (h)(5) of this section.
    (ii) If the calculation under this paragraph (h)(5) yields an 
amount that is a negative number, such amount shall be disclosed under 
paragraph (h)(5) of this section as a negative number, and $0.00 shall 
be disclosed under paragraph (h)(3)(ii) of this section.
    (iii) If the calculation under this paragraph (h)(5) of this 
section yields $0.00, then $0.00 shall be disclosed pursuant to 
paragraph (h)(3)(ii) of this section and pursuant to paragraph (h)(5) 
of this section.
    (6) Seller credits. Seller credits are the total amount of money 
that the seller will provide to pay for total loan costs as determined 
by paragraph (f)(4) of this section and total other costs as determined 
by paragraph (g)(5) of this section, to the extent known, disclosed as 
a negative number;
    (7) Adjustments and other credits. Other credits include all loan 
costs and other costs, to the extent known, that are paid by persons 
other than the loan originator, creditor, consumer, or seller, 
disclosed as a negative number; and
    (8) Estimated Cash to Close. The total of the amounts disclosed by 
paragraphs (h)(1) thorough (h)(7).
    (i) Adjustable payment table. If the periodic principal and 
interest payment may change after consummation but not based on an 
adjustment to the interest rate, or if the transaction is a seasonal 
payment product as described in Sec.  1026.37(a)(10)(ii)(E), a separate 
table under the master heading ``Closing Cost Details'' required by 
paragraph (f) of this section and under the heading ``Adjustable 
Payment (AP) Table'' that includes the following information and 
satisfies the following requirements:
    (1) Interest-only payments. Whether the transaction is an interest 
only product pursuant to paragraph (a)(10)(ii)(B) of this section as an 
affirmative or negative answer to the question ``Interest Only 
Payments?'' and, if an affirmative answer is disclosed, the period 
during which interest-only periodic payments are scheduled.
    (2) Optional payments. Whether the terms of the legal obligation 
expressly provide that the consumer may elect to pay a specified 
periodic principal and interest payment other than the scheduled amount 
of the payment, as an affirmative or negative answer to the question 
``Optional Payments?'' and, if an affirmative answer is disclosed, the

[[Page 51321]]

period during which the consumer may elect to make such payments.
    (3) Step payments. Whether the transaction is a step payment 
product pursuant to paragraph (a)(10)(ii)(C) of this section as an 
affirmative or negative answer to the question ``Step Payments?'' and, 
if an affirmative answer is disclosed, the period during which the 
regular periodic payments are scheduled to increase.
    (4) Seasonal payments. Whether the transaction is a seasonal 
payment product pursuant to paragraph (a)(10)(ii)(E) of this section as 
an affirmative or negative answer to the question ``Seasonal 
Payments?'' and, if an affirmative answer is disclosed, the period 
during which periodic payments are not scheduled.
    (5) Principal and interest payments. Under the subheading 
``Principal and Interest Payments,'' which subheading is immediately 
preceded by the applicable unit period, the following information:
    (i) The number of the payment of the first periodic principal and 
interest payment that may change under the terms of the legal 
obligation disclosed under this paragraph (i), counting from the first 
periodic payment due after consummation, and the amount or range of the 
periodic principal and interest payment for such payment, labeled, 
``First Change/Amount'';
    (ii) The frequency of subsequent changes to the periodic principal 
and interest payment; and
    (iii) The maximum periodic principal and payment that may occur 
during the term of the transaction, and the first periodic principal 
and interest payment that can reach such maximum, counting from the 
first periodic payment due after consummation.
    (j) Adjustable interest rate table. If the interest rate may 
increase after consummation, a separate table under the master heading 
``Closing Cost Details'' required by paragraph (f) of this section and 
under the heading ``Adjustable Interest Rate (AIR) Table'' that 
includes the following information and satisfies the following 
requirements:
    (1) Index and margin. If the interest rate may adjust, the index 
upon which the adjustments to the interest rate are based and the 
margin that is added to the index to determine the interest rate, if 
any, labeled ``Index + Margin.''
    (2) Increases in interest rate. If the product type is a ``Step 
Rate'' and not also an ``Adjustable Rate'' under paragraph (a)(10) of 
this section, the maximum amount of any adjustments to the interest 
rate that are scheduled and pre-determined, labeled ``Interest Rate 
Adjustments.''
    (3) Initial interest rate. The interest rate at consummation of the 
loan transaction.
    (4) Minimum and maximum interest rate. The minimum and maximum 
interest rates for the loan, after any introductory period expires.
    (5) Frequency of adjustments. The following information, under the 
subheading ``Change Frequency'':
    (i) The month when the interest rate after consummation may first 
change, calculated from the date interest begins to accrue for the 
first regular periodic principal and interest payment, labeled ``First 
Change''; and
    (ii) The frequency of interest rate adjustments after the initial 
adjustment to the interest rate, labeled, ``Subsequent Changes.''
    (6) Limits on interest rate changes. The following information, 
under the subheading ``Limits on Interest Rate Changes'':
    (i) The maximum possible change for the first adjustment of the 
interest rate after consummation, labeled ``First Change''; and
    (ii) The maximum possible change for subsequent adjustments of the 
interest rate after consummation, labeled ``Subsequent Changes.''
    (k) Contact information. Under the master heading, ``Additional 
Information About This Loan,'' the following information:
    (1) The name and Nationwide Mortgage Licensing System and Registry 
identification number (NMLSR ID) (labeled ``NMLS ID/License 
'') for the creditor (labeled ``Lender'') and the mortgage 
broker (labeled ``Mortgage Broker''), if any, together with the name of 
a primary contact for the consumer of the lender or mortgage broker. In 
the event the creditor or the mortgage broker has not been assigned an 
NMLSR ID, the license number or other unique identifier issued by the 
applicable jurisdiction or regulating body with which the creditor or 
mortgage broker is licensed and/or registered shall be disclosed, if 
any;
    (2) The name and NMLSR ID of the individual loan officer (labeled 
``Loan Officer'' and ``NMLS ID/License ,'' respectively) who 
is primary contact for the consumer. In the event the individual loan 
officer has not been assigned an NMLSR ID, the license number or other 
unique identifier issued by the applicable jurisdiction or regulating 
body with which the creditor or mortgage broker is licensed and/or 
registered shall be disclosed, if any; and
    (3) The email address and telephone number of the loan officer 
(labeled ``Email'' and ``Phone,'' respectively).
    (l) Comparisons. Under the master heading, ``Additional Information 
About This Loan,'' in a separate table under the heading 
``Comparisons'' along with the statement ``Use these measures to 
compare this loan with other loans'':
    (1) In five years. Using the label ``In 5 Years'':
    (i) The total principal, interest, mortgage insurance, and loan 
costs scheduled to be paid through the end of the 60th month after the 
due date of the first periodic payment, expressed as a dollar amount, 
along with the statement ``Total you will have paid in principal, 
interest, mortgage insurance, and loan costs''; and
    (ii) The principal scheduled to be paid through the end of the 60th 
month after the due date of the first periodic payment, expressed as a 
dollar amount, along with the statement ``Principal you will have paid 
off.''
    (2) Annual percentage rate. The ``Annual Percentage Rate,'' using 
that term and the abbreviation ``APR'' and expressed as a percentage, 
and the following statement: ``Your costs over the loan term expressed 
as a rate. This is not your interest rate.''
    (3) Total interest percentage. The ``Total Interest Percentage,'' 
using that term and the abbreviation ``TIP'' and expressed as a 
percentage, and the statement ``The total amount of interest that you 
will pay over the loan term as a percentage of your loan amount.'' The 
total interest percentage is the total amount of interest that the 
consumer will pay over the life of the loan, expressed as a percentage 
of the amount of credit extended.
    (m) Other considerations. Under the master heading ``Additional 
Information About This Loan'' required by paragraph (k) of this section 
and under the heading ``Other Considerations'':
    (1) Appraisal. For transactions subject to 15 U.S.C. 1639h or 
1691(e), as implemented in this part or Regulation B, 12 CFR part 1002, 
respectively, a statement, labeled ``Appraisal,'' that:
    (i) The creditor may order an appraisal to determine the value of 
the property identified in paragraph (a)(6) of this section and may 
charge the consumer for that appraisal;
    (ii) The creditor will promptly provide the consumer a copy of any 
completed appraisal, even if the transaction is not consummated; and
    (iii) The consumer may choose to pay for an additional appraisal of 
the property for the consumer's use.
    (2) Assumption. A statement of whether a subsequent purchaser of 
the property may be permitted to assume the remaining loan obligation 
on its original terms, labeled ``Assumption.''

[[Page 51322]]

    (3) Homeowner's insurance. At the option of the creditor, a 
statement of whether homeowner's insurance is required on the property 
and whether the consumer may choose the insurance provider, labeled 
``Homeowner's Insurance.''
    (4) Late payment. A statement detailing any charge that may be 
imposed for a late payment, stated as a dollar amount or percentage 
charge of the late payment amount, and the number of days that a 
payment must be late to trigger the late payment fee, labeled ``Late 
Payment.''
    (5) Refinance. The following statement, labeled ``Refinance,'' 
``Refinancing this loan will depend on your future financial situation, 
the property value, and market conditions. You may not be able to 
refinance this loan.''
    (6) Servicing. A statement of whether the loan will be serviced by 
the creditor or transferred to another servicer, labeled ``Servicing.''
    (7) Liability after foreclosure. If the purpose of the credit 
transaction is to refinance an extension of credit as described in 
paragraph (a)(9)(ii) of this section, a brief statement that certain 
State law protections against liability for any deficiency after 
foreclosure may be lost, the potential consequences of the loss of such 
protections, and a statement that the consumer should consult an 
attorney for additional information, labeled ``Liability after 
Foreclosure.''
    (n) Signature statement. (1) At the creditor's option, under the 
master heading required by paragraph (k) of this section and under the 
heading ``Confirm Receipt,'' a line for the signatures of the consumers 
in the transaction. If the creditor includes a line for the consumer's 
signature, the creditor must disclose the following below the signature 
line: ``By signing, you are only confirming that you have received this 
form. You do not have to accept this loan because you have signed or 
received this form.''
    (2) If the creditor does not include a line for the consumer's 
signature, the creditor must disclose the following statement under the 
heading ``Other Considerations'' required by paragraph (m) of this 
section, labeled ``Loan Acceptance'': ``You do not have to accept this 
loan because you have received this form or signed a loan 
application.''
    (o) Form of disclosures. (1) General requirements. (i) The creditor 
shall make the disclosures required by this section clearly and 
conspicuously in writing, in a form that the consumer may keep. The 
disclosures also shall be grouped together, segregated from everything 
else, and provided on separate pages that are not commingled with any 
other documents or disclosures, including any other disclosures 
required by State or other laws.
    (ii) Except as provided in paragraph (o)(5) of this section, the 
disclosures shall contain only the information required by paragraphs 
(a) through (n) of this section and shall be made in the same order, 
and positioned relative to the master headings, headings, subheadings, 
labels, and similar designations in the same manner, as shown in form 
H-24, set forth in appendix H to this part.
    (2) Estimated disclosures. If a master heading, heading, 
subheading, label, or similar designation contains the word 
``estimated'' in form H-24, set forth in appendix H to this part, that 
heading, label, or similar designation shall contain the word 
``estimated.''
    (3) Form. Except as provided in paragraph (o)(5) of this section: 
(i) For a transaction subject to this section that is a federally 
related mortgage loan, as defined in Regulation X, 12 CFR 1024.2, the 
disclosures must be made using form H-24, set forth in appendix H to 
this part.
    (ii) For any other transaction subject to this section, the 
disclosures must be made with headings, content, and format 
substantially similar to form H-24, set forth in appendix H to this 
part.
    (iii) The disclosures required by this section may be provided to 
the consumer in electronic form, subject to compliance with the 
consumer consent and other applicable provisions of the Electronic 
Signatures in Global and National Commerce Act (E-Sign Act) (15 U.S.C. 
7001 et seq.).
    (4) Rounding. (i) Nearest dollar. (A) The dollar amounts required 
to be disclosed by paragraphs (b)(6) and (7), (c)(1)(iii), (c)(2)(ii) 
and (iii), (c)(4)(ii), (f), (g), (h), (i), and (l) of this section 
shall be rounded to the nearest whole dollar.
    (B) The dollar amount required to be disclosed by paragraph (b)(1) 
of this section shall be disclosed as an exact number, except that 
decimal places shall not be disclosed if the amount of cents is zero.
    (C) The dollar amounts required to be disclosed by paragraph 
(c)(2)(iv) of this section shall be rounded to the nearest whole 
dollar, if any of the component amounts are required by paragraph 
(o)(4)(i)(A) of this section to be rounded to the nearest whole dollar.
    (ii) Percentages. The percentage amounts required to be disclosed 
under paragraphs (b)(2) and (6), (f)(1)(i), (g)(2)(iii), (j), and 
(l)(3) of this section shall be disclosed as an exact number up to two 
or three decimal places. The percentage amount required to be disclosed 
under paragraph (l)(2) of this section shall be disclosed up to three 
decimal places. Decimal places shall not be disclosed if the amount is 
a whole number.
    (5) Exceptions. (i) Unit-period. Wherever the form or this section 
uses ``monthly'' to describe the frequency of any payments or uses 
``month'' to describe the applicable unit-period, the creditor shall 
substitute the appropriate term to reflect the fact that the 
transaction's terms provide for other than monthly periodic payments, 
such as bi-weekly or quarterly payments.
    (ii) Lender credits. The amount required to be disclosed by 
paragraph (d)(4) of this section may be omitted from the form if the 
amount is zero.
    (iii) Logo or slogan. The creditor providing the form may use a 
logo for, and include a slogan with, the information required by 
paragraph (a)(3) of this section in any font size or type, provided 
that such logo or slogan does not cause the information required by 
paragraph (a)(3) of this section to exceed the space provided for that 
information, as illustrated in form H-24(a) in appendix H to this part. 
If the creditor does not use a logo for the information required by 
paragraph (a)(3) of this section, the information shall be disclosed in 
a similar format as form H-24.
    (iv) Business card. The creditor may physically attach a business 
card over the information required to be disclosed by paragraph (a)(3) 
of this section.
    (v) Administrative information. The creditor may insert immediately 
above the information required to be disclosed by paragraph (a)(2) of 
this section and adjacent to the information required to be disclosed 
by paragraph (a)(3) of this section any administrative information, 
text, or codes that assist in identification of the form or the 
information disclosed on the form, provided that the space provided on 
form H-24 of appendix H to this part for the information required by 
paragraph (a)(3) of this section is not altered.
    (vi) Translation. The form may be translated into languages other 
than English.[ltrif]
    18. New Sec.  1026.38 is added to read as follows:


[rtrif]Sec.  1026.38   Content of disclosures for certain mortgage 
transactions (Closing Disclosure).

    For each transaction subject to Sec.  1026.19(f), the creditor 
shall disclose the information in this section, as applicable:

[[Page 51323]]

    (a) General information. (1) Form title. The title of the form, 
``Closing Disclosure,'' using that term.
    (2) Form purpose. The following statement: ``This form is a 
statement of final loan terms and closing costs. Compare this document 
with your Loan Estimate.''
    (3) Closing information. Under the heading ``Closing Information'':
    (i) Date issued. The date the disclosures required by this section 
are delivered to the consumer, labeled ``Date Issued.''
    (ii) Closing date. The date of consummation, labeled ``Closing 
Date.''
    (iii) Disbursement date. The date the amounts disclosed pursuant to 
paragraphs (j)(3)(iii) and (k)(3)(iii) of this section are expected to 
be paid to the consumer and seller, respectively, as applicable, 
labeled ``Disbursement Date.''
    (iv) Agent. The name of the settlement agent conducting the 
closing, labeled ``Agent.''
    (v) File number. The number assigned to the transaction by the 
settlement agent for identification purposes, labeled ``File 
.''
    (vi) Property. The street address or location of the property 
required to be disclosed under Sec.  1026.37(a)(6), labeled 
``Property.''
    (vii) Sale price. (A) In credit transactions where there is a 
seller, the contract sale price of the property identified in paragraph 
(a)(3)(vi) of this section, labeled ``Sale Price.''
    (B) In credit transactions where there is no seller, the appraised 
value of the property identified in paragraph (a)(3)(vi) of this 
section, labeled ``Appraised Prop. Value.''
    (4) Transaction information. Under the heading ``Transaction 
Information'':
    (i) Borrower. The consumer's name and mailing address, labeled 
``Borrower.''
    (ii) Seller. Where applicable, the seller's name and mailing 
address, labeled ``Seller.''
    (iii) Lender. The name of the creditor making the disclosure, 
labeled ``Lender.''
    (5) Loan information. Under the heading ``Loan Information'':
    (i) Loan term. The information required to be disclosed under Sec.  
1026.37(a)(8), labeled ``Loan Term.''
    (ii) Purpose. The information required to be disclosed under Sec.  
1026.37(a)(9), labeled ``Purpose.''
    (iii) Product. The information required to be disclosed under Sec.  
1026.37(a)(10), labeled ``Product.''
    (iv) Loan type. The information required to be disclosed under 
Sec.  1026.37(a)(11), labeled ``Loan Type.''
    (v) Loan identification number. The information required to be 
disclosed under Sec.  1026.37(a)(12), labeled ``Loan ID .''
    (vi) Mortgage insurance case number. The case number for any 
mortgage insurance policy, if required by the creditor, labeled ``MIC 
.''
    (b) Loan terms. A separate table under the heading ``Loan Terms'' 
that includes the information required by Sec.  1026.37(b).
    (c) Projected payments. A separate table, under the heading 
``Projected Payments,'' that includes and satisfies the following 
information and requirements:
    (1) Projected payments or range of payments. The information 
required to be disclosed pursuant to Sec.  1026.37(c)(1) through (4), 
other than Sec.  1026.37(c)(4)(vi). In disclosing estimated escrow 
payments as described in Sec.  1026.37(c)(2)(iii) and (4)(ii), the 
amount disclosed on the Closing Disclosure:
    (i) For transactions subject to RESPA, is determined under the 
escrow account analysis described in Regulation X, 12 CFR 1024.17;
    (ii) For transactions not subject to RESPA, may be determined under 
the escrow account analysis described in Regulation X, 12 CFR 1024.17 
or in the manner set forth in Sec.  1026.37(c)(5).
    (2) Estimated taxes, insurance, and assessments. A reference to the 
disclosure required by Sec.  1026.38(l)(7).
    (d) Cash to close. In a separate table, under the heading ``Cash to 
Close'':
    (1) The sum of the dollar amounts calculated in accordance with 
paragraph (j)(3)(iii) of this section, labeled ``Cash to Close'';
    (2) The dollar amount of loan costs that are disclosed as borrower-
paid at closing calculated in accordance with paragraph (f)(4) of this 
section, described as ``Loan Costs'';
    (3) The dollar amount of other costs that are disclosed as 
borrower-paid at closing and calculated in accordance with paragraph 
(g)(5) of this section, described as ``Other Costs'';
    (4) The dollar amount disclosed pursuant to paragraph (h)(3) of 
this section, described as ``Lender Credit'';
    (5) The sum of the amounts disclosed pursuant to paragraphs (d)(2), 
(d)(3), and (d)(4) of this section, described as ``Closing Costs''; and
    (6) A statement referring the consumer to the tables required 
pursuant to paragraphs (f) and (g) of this section for details.
    (e) [Reserved]
    (f) Closing cost details; loan costs. Under the master heading 
``Closing Cost Details'' with columns stating whether the charge was 
borrower-paid at or before closing, seller-paid at or before closing, 
or paid by others, all loan costs associated with the transaction, 
listed in a table under the heading ``Loan Costs.'' The table consists 
of the items and amounts listed under five labels, described in 
paragraphs (f)(1) through (5) of this section.
    (1) Origination charges. Under the label ``Origination Charges,'' 
an itemization of the items described in Sec.  1026.37(f)(1) and 
compensation paid by the creditor to a loan originator in the 
applicable column and the total of all such itemized amounts that are 
designated borrower-paid at or before closing.
    (2) Services borrower did not shop for. Under the label ``Services 
Borrower Did Not Shop For,'' an itemization of the costs for services 
required by the creditor and provided by persons other than the 
creditor or mortgage broker in the applicable column, and the total of 
all such itemized amounts that are designated borrower-paid at or 
before closing. Items that were disclosed pursuant to Sec.  
1026.37(f)(3) must be disclosed under this paragraph (f)(2) when the 
consumer was provided a written list under Sec.  1026.19(e)(1)(vi)(C) 
and the consumer selected a provider contained on that written list.
    (3) Services borrower did shop for. Under the label ``Services 
Borrower Did Shop For,'' an itemization of the costs for services 
required by the creditor and provided by persons other than the 
creditor or mortgage broker where the consumer was provided a written 
list under Sec.  1026.19(e)(1)(vi)(C) and the consumer did not select a 
provider contained on that written list, and the total of all such 
itemized costs that are designated borrower-paid at or before closing.
    (4) Total loan costs. The total of the amounts disclosed under 
Sec.  1026.38(f)(5) with the label ``Total Loan Costs (Borrower-
Paid).''
    (5) Subtotal of loan costs. The sum of loan costs, calculated by 
totaling the amounts described in paragraphs (f)(1), (2), and (3) of 
this section for costs designated borrower-paid at or before closing, 
with the label ``Loan Costs Subtotal.''
    (g) Closing cost details; other costs. Under the master heading 
``Closing Cost Details'' disclosed pursuant to paragraph (f) of this 
section, all other costs associated with the transaction listed in a 
table with a heading disclosed as ``Other Costs.'' The table comprises 
items and amounts listed under five labels, described in paragraphs 
(g)(1) through (6) of this section.

[[Page 51324]]

    (1) Taxes and other government fees. Under the label ``Taxes and 
Other Government Fees,'' each amount that is expected to be paid to 
State and local governments for taxes and government fees and the total 
of all such itemized amounts that are designated borrower-paid at or 
before closing, as follows:
    (i) Recording fees and the amounts paid in the applicable columns; 
and
    (ii) An itemization of transfer taxes and the amounts paid in the 
applicable columns.
    (2) Prepaids. Under the subheading ``Prepaids,'' the charges 
disclosed pursuant to Sec.  1026.37(g)(2) with the actual costs in the 
applicable columns, and the total of all such itemized amounts that are 
designated borrower-paid at or before closing.
    (3) Initial escrow payment at closing. Under the label ``Initial 
escrow payment at closing,'' the items described in Sec.  1026.37(g)(3) 
with their actual costs, the applicable aggregate adjustment pursuant 
to 12 CFR 1024.17(d)(2), and the total of all such itemized amounts 
that are designated borrower-paid at or before closing.
    (4) Other. Under the label ``Other,'' identify and state any other 
actual costs for services that are required or obtained in the real 
estate closing by the consumer, the seller, or other party, and the 
total of all such itemized amounts that are designated borrower-paid at 
or before closing.
    (i) For any actual cost that is a component of title insurance, the 
introductory description ``Title--'' shall appear at the beginning of 
the label for that actual cost.
    (ii) The parenthetical description ``(optional)'' shall appear at 
the end of the label for actual costs designated borrower-paid at or 
before closing for any premiums paid for separate insurance, warranty, 
guarantee, or event-coverage products.
    (5) Total other costs. With the label ``Total Other Costs 
(Borrower-Paid),'' the sum of the amounts disclosed pursuant to 
paragraphs (g)(6) of this section.
    (6) Subtotal of costs. The sum of other costs, calculated by 
totaling the costs disclosed in paragraphs (g)(1) through (4) of this 
section designated borrower-paid at or before closing, labeled ``Other 
Costs Subtotal.''
    (h) Closing cost totals. (1) The total of the costs designated 
borrower-paid at or before closing that are disclosed pursuant to 
paragraph (h)(2) of this section, labeled ``Total Closing Costs 
(Borrower-Paid).''
    (2) The total of the amounts disclosed in paragraphs (f)(5) and 
(g)(6) of this section and the total of the costs designated seller-
paid at or before closing, or paid by others are disclosed pursuant to 
paragraphs (f) and (g) of this section, and the sum of the amount 
disclosed in (h)(3) of this section and the amounts designated 
borrower-paid at closing, labeled ``Closing Costs Subtotal (Loan Costs 
+ Other Costs).''
    (3) The amount disclosed pursuant to Sec.  1026.37(g)(6)(ii) as a 
negative number, with the label ``Lender Credit'' and designated 
borrower-paid at closing.
    (4) The creditor must use descriptions for the charges disclosed 
pursuant to paragraphs (f) and (g) of this section on the Closing 
Disclosure in a manner that are consistent with the descriptions used 
for the charges disclosed on the Loan Estimate pursuant to Sec.  
1026.37 of this part. The creditor must also list the charges on the 
Closing Disclosure in the same sequential order as on the Loan Estimate 
pursuant to Sec.  1026.37.
    (i) Calculating cash to close. In a separate table, under the 
heading ``Calculating Cash to Close,'' together with the statement 
``Use this table to see what has changed from your Loan Estimate'':
    (1) Total closing costs. (i) Under the subheading ``Estimate,'' the 
``Total Closing Costs'' disclosed on the Loan Estimate under Sec.  
1026.37(h)(1), labeled using that term together with a reference to the 
disclosure of ``Total Closing Costs'' under paragraph (h)(1) of this 
section.
    (ii) Under the subheading ``Final,'' the amount disclosed under 
paragraph (h)(1) of this section, reduced by the amount of any lender 
credits disclosed under Sec.  1026.38(h)(3).
    (iii) Disclosed more prominently than the other disclosures under 
this paragraph (i), under the subheading ``Did this change?'':
    (A) If the amount disclosed under paragraph (i)(1)(ii) of this 
section is different than the amount disclosed under paragraph 
(i)(1)(i) of this section (unless the difference is due to rounding):
    (1) A statement of that fact;
    (2) If the difference in the ``Total Closing Costs'' is 
attributable to differences in itemized charges that are included in 
either or both subtotals, a statement that the consumer should see the 
total loan costs and total other costs subtotals disclosed under 
paragraphs (f)(4) and (g)(5) of this section (together with references 
to such disclosures), as applicable; and
    (3) If the increase exceeds the limitations on increases in closing 
costs under Sec.  1026.19(e)(3), a statement that such increase exceeds 
the legal limits by the dollar amount of the excess. Such dollar amount 
shall equal the sum total of all excesses of the limitations on 
increases in closing costs under Sec.  1026.19(e)(3), taking into 
account the different methods of calculating excesses of the 
limitations on increases in closing costs under Sec.  1026.19(e)(3)(ii) 
and (iii).
    (B) If the amount disclosed under paragraph (i)(1)(ii) of this 
section is equal to the amount disclosed under paragraph (i)(1)(i) of 
this section, a statement of that fact.
    (2) Closing costs subtotal paid before closing. (i) Under the 
subheading ``Estimate,'' the dollar amount ``$0,'' labeled ``Closing 
Costs Subtotal Paid Before Closing.''
    (ii) Under the subheading ``Final,'' the amount of ``Total Closing 
Costs'' disclosed under paragraph (h)(2) of this section and designated 
as borrower-paid before closing, stated as a negative number.
    (iii) Disclosed more prominently than the other disclosures under 
this paragraph (i), under the subheading ``Did this change?'':
    (A) If the amount disclosed under paragraph (i)(2)(ii) of this 
section is different than the amount disclosed under paragraph 
(i)(2)(i) of this section (unless the difference is due to rounding), a 
statement of that fact, along with a statement that the consumer paid 
such amounts prior to consummation of the transaction; or
    (B) If the amount disclosed under paragraph (i)(2)(ii) of this 
section is equal to the amount disclosed under paragraph (i)(2)(i) of 
this section, a statement of that fact.
    (3) Closing costs financed. (i) Under the subheading ``Estimate,'' 
the amount disclosed under Sec.  1026.37(h)(2), labeled ``Closing Costs 
Financed.''
    (ii) Under the subheading ``Final,'' the actual amount of the 
closing costs that are to be paid out of loan proceeds, stated as a 
negative number.
    (iii) Disclosed more prominently than the other disclosures under 
this paragraph (i), under the subheading ``Did this change?'':
    (A) If the amount disclosed under paragraph (i)(3)(ii) of this 
section is different than the amount disclosed under paragraph 
(i)(3)(i) of this section (unless the difference is due to rounding), a 
statement that the amount is different, along with a statement that the 
consumer included the closing costs in the loan amount, which increased 
the loan amount; or
    (B) If the amount disclosed under paragraph (i)(3)(ii) of this 
section is equal to the amount disclosed under paragraph (i)(3)(i) of 
this section, a statement of that fact.

[[Page 51325]]

    (4) Downpayment/funds from borrower. (i) Under the subheading 
``Estimate,'' the amount disclosed under Sec.  1026.37(h)(3), labeled 
``Downpayment/Funds from Borrower.''
    (ii) Under the subheading ``Final'':
    (A) In a transaction that is a purchase as defined in Sec.  
1026.37(a)(9)(i), the actual amount of the difference between the 
purchase price of the property and the principal amount of the credit 
extended, stated as a positive number, labeled using the term 
``Downpayment/Funds from Borrower''; or
    (B) In a transaction other than the one described in paragraph 
(i)(4)(ii)(A) of this section, the ``Funds from Borrower'' as 
determined in accordance with paragraph (i)(6)(iv) of this section, 
labeled using the term ``Downpayment/Funds from Borrower.''
    (iii) Disclosed more prominently than the other disclosures under 
this paragraph (i), under the subheading ``Did this change?'':
    (A) If the amount disclosed under paragraph (i)(4)(ii) of this 
section is different than the amount disclosed under paragraph 
(i)(4)(i) of this section (unless the difference is due to rounding), a 
statement of that fact, along with a statement that the consumer 
increased or decreased this payment and that the consumer should see 
the details disclosed under paragraph (j)(1) or (j)(2) of this section, 
as applicable; or
    (B) If the amount disclosed under paragraph (i)(4)(ii) of this 
section is equal to the amount disclosed under paragraph (i)(4)(i) of 
this section, a statement of that fact.
    (5) Deposit. (i) Under the subheading ``Estimate,'' the amount 
disclosed under Sec.  1026.37(h)(4), labeled ``Deposit.''
    (ii) Under the subheading ``Final,'' the amount disclosed under 
paragraph (j)(2)(ii) of this section, stated as a negative number.
    (iii) Disclosed more prominently than the other disclosures under 
this paragraph (i), under the subheading ``Did this change?'':
    (A) If the amount disclosed under paragraph (i)(5)(ii) of this 
section is different than the amount disclosed under paragraph 
(i)(5)(i) of this section (unless the difference is due to rounding), a 
statement of that fact, along with a statement that the consumer 
increased or decreased this payment, as applicable, and that the 
consumer should see the details disclosed under paragraph (j)(2)(ii) of 
this section; or
    (B) If the amount disclosed under paragraph (i)(5)(ii) of this 
section is equal to the amount disclosed under paragraph (i)(5)(i) of 
this section, a statement of that fact.
    (6) Funds for borrower. (i) Under the subheading ``Estimate,'' the 
amount disclosed under Sec.  1026.37(h)(5), labeled ``Funds for 
Borrower.''
    (ii) Under the subheading ``Final,'' the ``Funds for Borrower,'' 
labeled using that term, as determined in accordance with paragraph 
(i)(6)(iv) of this section.
    (iii) Disclosed more prominently than the other disclosures under 
this paragraph (i), under the subheading ``Did this change?'':
    (A) If the amount disclosed under paragraph (i)(6)(ii) of this 
section is different than the amount disclosed under paragraph 
(i)(6)(i) of this section (unless the difference is due to rounding), a 
statement of that fact, along with a statement that the consumer's 
available funds from the loan amount have increased or decreased, as 
applicable; or
    (B) If the amount disclosed under paragraph (i)(6)(ii) of this 
section is equal to the amount disclosed under paragraph (i)(6)(i) of 
this section, a statement of that fact.
    (iv) The ``Funds from Borrower'' to be disclosed under paragraph 
(i)(4)(ii)(B) of this section and ``Funds for Borrower'' to be 
disclosed under paragraph (i)(6)(ii) of this section are determined by 
subtracting the principal amount of the credit extended (excluding any 
amount disclosed pursuant to paragraph (i)(3)(ii) of this section) from 
the total amount of all existing debt being satisfied in the real 
estate closing and disclosed under Sec.  1026.38(j)(1)(v) (except to 
the extent the satisfaction of such existing debt is disclosed under 
Sec.  1026.38(g)).
    (A) If the calculation under this paragraph (i)(6)(iv) yields an 
amount that is a positive number, such amount shall be disclosed under 
paragraph (i)(4)(ii)(B) of this section, and $0.00 shall be disclosed 
under paragraph (i)(6)(ii) of this section.
    (B) If the calculation under this paragraph (i)(6)(iv) yields an 
amount that is a negative number, such amount shall be disclosed under 
paragraph (i)(6)(ii) of this section, stated as a negative number, and 
$0.00 shall be disclosed under paragraph (i)(4)(ii)(B) of this section.
    (C) If the calculation under this paragraph (i)(6)(iv) yields 
$0.00, $0.00 shall be disclosed under paragraph (i)(4)(ii)(B) of this 
section and under paragraph (i)(6)(ii) of this section.
    (7) Seller credits. (i) Under the subheading ``Estimate,'' the 
amount disclosed under Sec.  1026.37(h)(6), labeled ``Seller Credits.''
    (ii) Under the subheading ``Final,'' the amount disclosed under 
paragraph (j)(2)(v) of this section, stated as a negative number.
    (iii) Disclosed more prominently than the other disclosures under 
this paragraph (i), under the subheading ``Did this change?'':
    (A) If the amount disclosed under paragraph (i)(7)(ii) of this 
section is different than the amount disclosed under paragraph 
(i)(7)(i) of this section (unless the difference is due to rounding), a 
statement of that fact, along with a statement that the consumer should 
see the details disclosed under paragraph (j)(2)(v) of this section; or
    (B) If the amount disclosed under paragraph (i)(7)(ii) of this 
section is equal to the amount disclosed under paragraph (i)(7)(i) of 
this section, a statement of that fact.
    (8) Adjustments and other credits. (i) Under the subheading 
``Estimate,'' the amount disclosed on the Loan Estimate under Sec.  
1026.37(h)(7) rounded to the nearest whole dollar, labeled 
``Adjustments and Other Credits.''
    (ii) Under the subheading ``Final,'' the amount equal to the total 
of the amounts disclosed under paragraphs (j)(1)(v) through (x) of this 
section reduced by the total of the amounts disclosed under paragraphs 
(j)(2)(vi) through (xi) of this section.
    (iii) Disclosed more prominently than the other disclosures under 
this paragraph (i), under the subheading ``Did this change?'':
    (A) If the amount disclosed under paragraph (i)(8)(ii) of this 
section is different than the amount disclosed under paragraph 
(i)(8)(i) of this section (unless the difference is due to rounding), a 
statement of that fact, along with a statement that the consumer should 
see the details disclosed under paragraphs (j)(1)(v) through (x) and 
(j)(2)(vi) through (xi) of this section; or
    (B) If the amount disclosed under paragraph (i)(8)(ii) of this 
section is equal to the amount disclosed under paragraph (i)(8)(i) of 
this section, a statement of that fact.
    (9) Cash to close. (i) Under the subheading ``Estimate,'' the 
amount disclosed on the Loan Estimate under Sec.  1026.37(h)(8), 
labeled ``Cash to Close'' and disclosed more prominently than the other 
disclosures under this paragraph (i).
    (ii) Under the subheading ``Final,'' the sum of the amounts 
disclosed under paragraphs (i)(1) through (i)(8) of this section, and 
disclosed more prominently than the other disclosures under this 
paragraph (i).
    (j) Summary of borrower's transaction. Under the heading 
``Summaries of Transactions,'' with a statement to ``Use this table to 
see a summary of your transaction,'' two separate tables are disclosed. 
The first

[[Page 51326]]

table shall include, under the subheading ``Borrower's Transaction,'' 
the following information and shall satisfy the following requirements:
    (1) Itemization of amount due from borrower. (i) The total amount 
due from the consumer at closing, calculated as the sum of items 
required to be disclosed by paragraph (j)(1)(ii) through (x) of this 
section, excluding items paid from funds other than closing funds as 
described in paragraph (j)(4)(i) of this section, labeled ``Due from 
Borrower at Closing'';
    (ii) The amount of the contract sales price of the property being 
sold in a purchase real estate transaction, excluding the price of any 
tangible personal property if the consumer and seller have agreed to a 
separate price for such items, labeled ``Sale Price of Property'';
    (iii) The amount of the sales price of any tangible personal 
property excluded from the contract sales price pursuant to paragraph 
(j)(1)(ii) of this section, labeled ``Sale Price of Any Personal 
Property Included in Sale'';
    (iv) The total amount of closing costs disclosed that are 
designated borrower-paid at closing, calculated pursuant to paragraph 
(h)(1) of this section, the labeled ``Subtotal Closing Costs Paid at 
Closing by Borrower'';
    (v) A description and the amount of any additional items that the 
seller has paid prior to the real estate closing, but reimbursed by the 
consumer at the real estate closing, and a description and the amount 
of any other items owed by the consumer at the real estate closing not 
otherwise disclosed pursuant to paragraph (f), (g), or (j) of this 
section;
    (vi) The description ``Adjustments for Items Paid by Seller in 
Advance'';
    (vii) The time period that the consumer is responsible for 
reimbursing the seller for any prepaid taxes, and the prorated amount 
of any prepaid taxes due from the consumer at the real estate closing, 
labeled ``City/Town Taxes'';
    (viii) The time period that the consumer is responsible for 
reimbursing the seller for any prepaid taxes, and the prorated amount 
of any prepaid taxes due from the consumer at the real estate closing, 
labeled ``County Taxes'';
    (ix) The time period that the consumer is responsible for 
reimbursing the seller for any prepaid assessments, and the prorated 
amount of any prepaid assessments due from the consumer at the real 
estate closing, labeled ``Assessments''; and
    (x) A description and the amount of any additional items paid by 
the seller prior to the real estate closing that are due from the 
consumer at the real estate closing.
    (2) Itemization of amounts already paid by or on behalf of 
borrower. (i) The sum of the amounts disclosed in this paragraphs 
(j)(2)(ii) through (xi) of this section, excluding items paid from 
funds other than closing funds as described in paragraph (j)(4)(i) of 
this section, labeled ``Paid Already by or on Behalf of Borrower at 
Closing'';
    (ii) Any amount that is paid to the seller or held in trust or 
escrow by an attorney or other party under the terms of the agreement 
for the sale of real estate, labeled ``Deposit'';
    (iii) The amount of the consumer's new loan or first user loan as 
disclosed pursuant to paragraph (b)(1) of this section, labeled 
``Borrower's Loan Amount'';
    (iv) The amount of those existing loans assumed or taken subject to 
by the consumer, labeled ``Existing Loan(s) Assumed or Taken Subject 
to'';
    (v) The total amount of money that the seller will provide at the 
real estate closing as a lump sum to pay for loan costs as determined 
by paragraph (f) of this section and other costs as determined by 
paragraph (g) of this section and any other obligations of the seller 
to be paid directly to the consumer, labeled ``Seller Credit'';
    (vi) The amount of other items paid by or on behalf of the consumer 
and not otherwise disclosed pursuant to paragraphs (f), (g), (h), and 
(j)(2) of this section, labeled ``Other Credits'';
    (vii) The description ``Adjustments for Items Unpaid by Seller'';
    (viii) The time period that the seller is responsible for the 
payment of any unpaid taxes, and the prorated amount of any unpaid 
taxes due from the seller at the real estate closing, labeled ``City/
Town Taxes'';
    (ix) The time period that the seller is responsible for the payment 
of any unpaid taxes, and the prorated amount of any unpaid taxes due 
from the seller at the real estate closing, labeled ``County Taxes'';
    (x) The time period that the seller is responsible for the payment 
of any unpaid assessments, and the prorated amount of any unpaid 
assessments due from the seller at the real estate closing, labeled 
``Assessments''; and
    (xi) A description and the amount of any additional items which 
have not yet been paid and which the consumer is expected to pay after 
the real estate closing, but which are attributable in part to a period 
of time prior to the real estate closing.
    (3) Calculation of borrower's transaction. Under the label 
``Calculation'':
    (i) The amount disclosed pursuant to paragraph (j)(1)(i) of this 
section, labeled ``Total Due from Borrower at Closing'';
    (ii) The amount disclosed pursuant to paragraph (j)(2)(i) of this 
section, disclosed as a negative number, labeled ``Total Paid Already 
by or on Behalf of Borrower at Closing''; and
    (iii) A statement that the disclosed amount is due from or to the 
consumer, and the amount due from or to the consumer at the real estate 
closing, calculated by the sum of the amounts disclosed under 
paragraphs (j)(3)(i) and (j)(3)(ii) of this section, labeled ``Cash to 
Close.''
    (4) Items paid outside of closing funds. (i) Costs that are not 
paid from closing funds but that would otherwise be disclosed in the 
table required pursuant to paragraph (j) of this section, should be 
marked with the phrase ``Paid Outside of Closing'' or the abbreviation 
``P.O.C.'' and include the name of the party making the payment.
    (ii) For purposes of this paragraph (j), ``closing funds'' means 
funds collected and disbursed at closing.
    (k) Summary of seller's transaction. Under the heading required by 
paragraph (j) of this section, a second table under the subheading 
``Seller's Transaction,'' that includes the following information and 
satisfies the following requirements:
    (1) Itemization of amounts due to seller. (i) The total amount due 
to the seller at the real estate closing, calculated as the sum of 
items required to be disclosed pursuant to paragraph (k)(1)(ii) through 
(ix) of this section, excluding items paid from funds other than 
closing funds as described in paragraph (k)(4)(i) of this section, 
labeled ``Due to Seller at Closing'';
    (ii) The amount of the contract sales price of the property being 
sold, excluding the price of any tangible personal property if the 
consumer and seller have agreed to a separate price for such items, 
labeled ``Sale Price of Property'';
    (iii) The amount of the sales price of any tangible personal 
property excluded from the contract sales price pursuant to paragraph 
(k)(1)(ii) of this section, labeled ``Sale Price of Any Personal 
Property Included in Sale'';
    (iv) A description and the amount of other items paid to the seller 
by the consumer pursuant to the contract of sale or other agreement, 
such as charges that were not disclosed pursuant to Sec.  1026.37 on 
the Loan Estimate or items paid by the seller prior to the real estate 
closing but reimbursed by the consumer at the real estate closing;
    (v) The description ``Adjustments for Items Paid by Seller in 
Advance'';

[[Page 51327]]

    (vi) The time period that the consumer is responsible for 
reimbursing the seller for any prepaid taxes, and the prorated amount 
of any prepaid taxes due from the consumer at the real estate closing, 
labeled ``City/Town Taxes'';
    (vii) The time period that the consumer is responsible for 
reimbursing the seller for any prepaid taxes, and the prorated amount 
of any prepaid taxes due from the consumer at the real estate closing, 
labeled ``County Taxes'';
    (viii) The time period that the consumer is responsible for 
reimbursing the seller for any prepaid assessments, and the prorated 
amount of any prepaid assessments due from the consumer at the real 
estate closing, labeled ``Assessments''; and
    (ix) A description and the amount of additional items paid by the 
seller prior to the real estate closing that are reimbursed by the 
consumer at the real estate closing.
    (2) Itemization of amounts due from seller. (i) The total amount 
due from the seller at the real estate closing, calculated as the sum 
of items required to be disclosed pursuant to paragraph (k)(2)(ii) 
through (xiii) of this section, excluding items paid from funds other 
than closing funds as described in paragraph (k)(4)(i) of this section, 
labeled ``Due from Seller at Closing'';
    (ii) The amount of any excess deposit retained by the seller at the 
time of the real estate closing, labeled ``Excess Deposit'';
    (iii) The amount of closing costs designated seller-paid at closing 
disclosed pursuant to paragraph (h)(1) of this section, labeled 
``Subtotal Closing Costs Paid at Closing by Seller'';
    (iv) The amount of those existing loans assumed or taken subject to 
at the real estate closing by the consumer, labeled ``Existing Loan(s) 
Assumed or Taken Subject to'';
    (v) The amount of any first loan secured by the property that will 
be paid off as part of the real estate closing, labeled ``Payoff of 
First Mortgage Loan'';
    (vi) The amount of any second loan secured by the property that 
will be paid off as part of the real estate closing, labeled ``Payoff 
of Second Mortgage Loan'';
    (vii) The total amount of money that the seller will provide at the 
real estate closing as a lump sum to pay for loan costs as determined 
by paragraph (f) of this section and other costs as determined by 
paragraph (g) of this section and any other obligations of the seller 
to be paid directly to the consumer, labeled ``Seller Credit'';
    (viii) A description and amount of any and all other obligations 
required to be paid by the seller at the real estate closing, including 
any lien-related payoffs, fees, or obligations;
    (ix) The description ``Adjustments for Items Unpaid by Seller'';
    (x) The time period that the seller is responsible for the payment 
of any unpaid taxes, and the prorated amount of any unpaid taxes due 
from the seller at the real estate closing, labeled ``City/Town 
Taxes'';
    (xi) The time period that the seller is responsible for the payment 
of any unpaid taxes, and the prorated amount of any unpaid taxes due 
from the seller at the real estate closing, labeled ``County Taxes'';
    (xii) The time period that the seller is responsible for the 
payment of any unpaid assessments, and the prorated amount of any 
unpaid assessments due from the seller at the real estate closing, 
labeled ``Assessments''; and
    (xiii) A description and the amount of any additional items which 
have not yet been paid and which the consumer is expected to pay after 
the real estate closing, but which are attributable in part to a period 
of time prior to the real estate closing.
    (3) Calculation of seller's transaction. Under the label 
``Calculation'':
    (i) The amount described in paragraph (k)(1)(i) of this section, 
labeled ``Total Due to Seller at Closing'';
    (ii) The amount described in paragraph (k)(2)(i) of this section, 
disclosed as a negative number, labeled ``Total Due from Seller at 
Closing''; and
    (iii) A statement that the disclosed amount is due from or to the 
seller, and the amount due from or to the seller at closing, calculated 
by the sum of the amounts disclosed pursuant to paragraphs (k)(3)(i) 
and (k)(3)(ii) of this section, labeled ``Cash.''
    (4) Items paid outside of closing funds. (i) Charges that are not 
paid from closing funds but that would otherwise be disclosed in the 
table described in paragraph (k) of this section, should be marked with 
the phrase ``Paid Outside of Closing'' or the acronym ``P.O.C.'' and 
include a statement of the party making the payment.
    (ii) For purposes of this paragraph (k), ``closing funds'' are 
defined as funds collected and disbursed at closing.
    (l) Loan disclosures. Under the master heading ``Additional 
Information About This Loan'' and under the heading ``Loan 
Disclosures'':
    (1) Assumption. Under the subheading ``Assumption,'' the 
information required by Sec.  1026.37(m)(2).
    (2) Demand feature. Under the subheading ``Demand Feature,'' a 
statement of whether the legal obligation permits the creditor to 
demand early repayment of the loan and, if the statement is 
affirmative, a reference to the note or other loan contract for 
details.
    (3) Late payment. Under the subheading ``Late Payment,'' the 
information required by Sec.  1026.37(m)(4).
    (4) Negative amortization. Under the subheading ``Negative 
Amortization (Increase in Loan Amount),'' a statement of whether the 
regular periodic payments may cause the principal balance to increase.
    (i) If the regular periodic payments do not cover all of the 
interest due, the creditor must provide a statement that the principal 
balance will increase, such balance will likely become larger than the 
original loan amount, and increases in such balance lower the 
consumer's equity in the property.
    (ii) If the consumer may make regular periodic payments that do not 
cover all of the interest due, the creditor must provide a statement 
that, if the consumer chooses a monthly payment option that does not 
cover all of the interest due, the principal balance may become larger 
than the original loan amount and the increases in the principal 
balance lower the consumer's equity in the property.
    (5) Partial payment policy. Under the subheading ``Partial Payment 
Policy'':
    (i) A statement whether the creditor will accept monthly payments 
that are less than the full amount due and that, if the loan is sold, 
the new creditor may have a different policy; and
    (ii) If partial payments are permitted, a brief description of the 
creditor's partial payment policy, including the manner and order in 
which the partial payment would be applied to the principal, interest, 
or an escrow account for partial payments and whether any penalties 
apply.
    (6) Security interest. Under the subheading ``Security Interest,'' 
a statement that the creditor will acquire a security interest in the 
property securing the transaction, the property address, and a 
statement that the consumer may lose the property if the consumer does 
not make the required payments or satisfy other requirements under the 
legal obligation.
    (7) Escrow account. Under the subheading ``Escrow Account'':
    (i) Under the reference ``For now,'' a statement that an escrow 
account may also be called an impound or trust account, a statement of 
whether the creditor has established or will establish, at or before 
consummation, an escrow account in connection with the transaction for 
the costs that will be paid using escrow account funds described in 
paragraph (l)(7)(i)(A)(1) of this section:

[[Page 51328]]

    (A) A statement that the creditor may be liable for penalties and 
interest if it fails to make a payment for any cost for which the 
escrow account is established, a statement that the consumer would have 
to pay such costs directly in the absence of the escrow account, and a 
table, titled ``Escrow'' that contains, if an escrow account is or will 
be established, an itemization of the following:
    (1) The total amount the consumer will be required to pay into an 
escrow account over the first year after consummation for payment of 
the charges described in Sec.  1026.37(c)(4)(ii), labeled ``Escrowed 
Property Costs over Year 1,'' together with a descriptive name of each 
such charge, calculated as the amount disclosed under paragraph 
(l)(7)(i)(A)(4) of this section multiplied by the number of periodic 
payments scheduled to be made to the escrow account during the first 
year after consummation;
    (2) The estimated amount the consumer is likely to pay during the 
first year after consummation for charges described in Sec.  
1026.37(c)(4)(ii) that are known to the creditor and that will not be 
paid using escrow account funds, labeled ``Non-Escrowed Property Costs 
over Year 1,'' together with a descriptive name of each such charge and 
a statement that the consumer may have to pay other costs that are not 
listed;
    (3) The total amount disclosed pursuant to paragraph (g)(3) of this 
section, a statement that the payment is a cushion for the escrow 
account, labeled ``Initial Payment,'' and a reference to the 
information disclosed pursuant to paragraph (g)(3) of this section;
    (4) The amount the consumer will be required to pay into the escrow 
account with each periodic payment during the first year after 
consummation for payment of the charges described in Sec.  
1026.37(c)(4)(ii), labeled ``Monthly Payment.''
    (5) A creditor complies with the requirements of paragraphs 
(l)(7)(i)(A)(1) and (l)(7)(i)(A)(4) of this section if the creditor 
bases the numerical disclosures required by those paragraphs on amounts 
derived from the escrow account analysis required under Regulation X, 
12 CFR 1024.17.
    (B) A statement of whether the consumer will not have an escrow 
account, the reason why an escrow account will not be established, a 
statement that the consumer must pay all property costs, such as taxes 
and homeowner's insurance, directly, a statement that the consumer may 
contact the creditor to inquire about the availability of an escrow 
account, and a table, titled ``No Escrow,'' that contains, if an escrow 
account will not be established, an itemization of the following:
    (1) The estimated total amount the consumer will pay directly for 
charges described in Sec.  1026.37(c)(4)(ii) during the first year 
after consummation that are known to the creditor and a statement that, 
without an escrow account, the consumer must pay the identified costs, 
possibly in one or two large payments, labeled as ``Estimated Property 
Costs over Year 1''; and
    (2) The amount of any fee the creditor imposes on the consumer for 
not establishing an escrow account in connection with the transaction, 
labeled ``Escrow Waiver Fee.''
    (ii) Under the reference ``In the future'':
    (A) A statement that the consumer's property costs may change and 
that, as a result, the consumer's escrow payments may change;
    (B) A statement that the consumer may be able to cancel any escrow 
account that has been established, but that the consumer is responsible 
for directly paying all property costs in the absence of an escrow 
account; and
    (C) A description of the consequences if the consumer fails to pay 
property costs, including the actions that a State or local government 
may take if property taxes are not paid and the actions the creditor 
may take if the consumer does not pay some or all property costs, such 
as adding amounts to the loan balance, adding an escrow account to the 
loan, or purchasing a property insurance policy on the consumer's 
behalf that may be more expensive and provide fewer benefits than what 
the consumer could obtain directly.
    (m) Adjustable payment table. Under the master heading ``Additional 
Information About This Loan'' required by paragraph (l) of this 
section, and under the heading ``Adjustable Payment (AP) Table,'' the 
table required to be disclosed by Sec.  1026.37(i).
    (n) Adjustable interest rate table. Under the master heading 
``Additional Information About This Loan'' required by paragraph (l) of 
this section, and under the heading ``Adjustable Interest Rate (AIR) 
Table,'' the table required to be disclosed by Sec.  1026.37(j).
    (o) Loan calculations. In a separate table under the heading ``Loan 
Calculations'':
    (1) Total of payments. The ``Total of Payments,'' using that term 
and expressed as a dollar amount, and a statement that the disclosure 
is the total the consumer will have paid after making all payments of 
principal, interest, mortgage insurance, and loan costs, as scheduled.
    (2) Finance charge. The ``Finance Charge,'' using that term and 
expressed as a dollar amount, and the following statement: ``The dollar 
amount the loan will cost you.'' The disclosed finance charge and other 
disclosures affected by the disclosed financed charge (including the 
amount financed and the annual percentage rate) shall be treated as 
accurate if the amount disclosed as the finance charge:
    (i) is understated by no more than $100; or
    (ii) is greater than the amount required to be disclosed.
    (3) Amount financed. The ``Amount Financed,'' using that term and 
expressed as a dollar amount, and the following statement: ``The loan 
amount available after paying your upfront finance charge.''
    (4) Annual percentage rate. The ``Annual Percentage Rate,'' using 
that term and the abbreviation ``APR'' and expressed as a percentage, 
and the following statement: ``Your costs over the loan term expressed 
as a rate. This is not your interest rate.''
    (5) Total interest percentage. The ``Total Interest Percentage,'' 
using that term and the abbreviation ``TIP'' and expressed as a 
percentage, and the following statement: ``The total amount of interest 
that you will pay over the loan term as a percentage of your loan 
amount.''
    (6) Approximate cost of funds. The ``Approximate Cost of Funds,'' 
using that term and the abbreviation ``ACF'' and expressed as a 
percentage, and the following statement: ``The approximate cost of 
funds used to make this loan. This is not a direct cost to you.'' For 
purposes of this paragraph (o)(6), ``approximate cost of funds'' means 
either the most recent ten-year Treasury constant maturity rate or the 
creditor's actual cost of borrowing the funds used to extend the 
credit, at the creditor's option.
    (p) Other disclosures. Under the heading ``Other Disclosures'':
    (1) Appraisal. For transactions subject to 15 U.S.C. 1639h or 
1691(e), as implemented in this part or Regulation B, 12 CFR part 1002, 
respectively, under the subheading ``Appraisal,'' that:
    (i) If there was an appraisal of the property in connection with 
the loan, the creditor is required to provide the consumer with a copy 
at no additional cost to the consumer at least three days prior to 
consummation; and
    (ii) If the consumer has not yet received a copy of the appraisal, 
the consumer should contact the creditor

[[Page 51329]]

using the information disclosed pursuant to paragraph (r) of this 
section.
    (2) Contract details. A statement that the consumer should refer to 
the appropriate loan document and security instrument for information 
about nonpayment, what constitutes a default under the legal 
obligation, circumstances under which the creditor may accelerate the 
maturity of the obligation, and prepayment rebates and penalties, under 
the subheading ``Contract Details.''
    (3) Liability after foreclosure. A brief statement of whether, and 
the conditions under which, the consumer may remain responsible for any 
deficiency after foreclosure under applicable State law, a brief 
statement that certain protections may be lost if the consumer 
refinances or incurs additional debt on the property, and a statement 
that the consumer should consult an attorney for additional 
information, under the subheading ``Liability after Foreclosure.''
    (4) Refinance. Under the subheading ``Refinance,'' the statement 
required by Sec.  1026.37(m)(5).
    (5) Tax deductions. Under the subheading ``Tax Deductions,'' a 
statement that, if the extension of credit exceeds the fair market 
value of the property, the interest on the portion of the credit 
extension that is greater than the fair market value of the property is 
not tax deductible for Federal income tax purposes and a statement that 
the consumer should consult a tax adviser for further information.
    (q) Questions notice. In a separate notice labeled ``Questions?'':
    (1) A statement that the consumer should contact the creditor with 
any questions about the disclosures required pursuant to Sec.  
1026.19(f);
    (2) A reference to the Bureau's Web site to obtain more information 
or to make a complaint; and
    (3) A prominent question mark.
    (r) Contact information. In a separate table, under the heading 
``Contact Information,'' the following information for each creditor 
(under the subheading ``Lender''), mortgage broker (under the 
subheading ``Mortgage Broker''), consumer's real estate broker (under 
the subheading ``Real Estate Broker (B)''), seller's real estate broker 
(under the subheading ``Real Estate Broker (S)''), and closing agent 
(under the subheading ``Closing Agent'') participating in the 
transaction:
    (1) Name of the person, labeled ``Name'';
    (2) Address, using that label;
    (3) Nationwide Mortgage Licensing System & Registry identification 
number or, if none, license number or other unique identifier issued by 
the applicable jurisdiction or regulating body with which the person is 
licensed and/or registered, for the persons identified in paragraph 
(r)(1) of this section, labeled ``NMLS/License ID'';
    (4) Name of the natural person who is the primary contact for the 
consumer with the person identified in paragraph (r)(1) of this 
section, labeled ``Contact'';
    (5) Nationwide Mortgage Licensing System & Registry identification 
number or, if none, license number or other unique identifier issued by 
the applicable jurisdiction or regulating body with which the person is 
licensed and/or registered, for the natural person identified in 
paragraph (r)(4) of this section, labeled ``Contact NMLS/License ID'';
    (6) Email address for the person identified in paragraph (r)(4) of 
this section, labeled ``Email''; and
    (7) Telephone number for the person identified in paragraph (r)(4) 
of this section, labeled ``Phone.''
    (s) Signature statement. (1) At the creditor's option, under the 
heading ``Confirm Receipt,'' a line for the signatures of the consumers 
in the transaction. If the creditor provides a line for the consumer's 
signature, the creditor must disclose the statement required to be 
disclosed under Sec.  1026.37(n)(1).
    (2) If the creditor does not provide a line for the consumer's 
signature under the heading ``Other Disclosures'' required by paragraph 
(p) of this section, the statement required to be disclosed under Sec.  
1026.37(n)(2).
    (t) Form of disclosures. (1) General requirements. (i) The creditor 
shall make the disclosures required by this section clearly and 
conspicuously in writing, in a form that the consumer may keep. The 
disclosures also shall be grouped together, segregated from everything 
else, and provided on separate pages that are not commingled with any 
other documents or disclosures, including any other disclosures 
required by State or other laws.
    (ii) Except as provided in paragraph (t)(5), the disclosures shall 
contain only the information required by paragraphs (a) through (s) of 
this section and shall be made in the same order, and positioned 
relative to the master headings, headings, subheadings, labels, and 
similar designations in the same manner, as shown in form H-25, set 
forth in appendix H to this part.
    (2) Estimated disclosures. If a master heading, heading, 
subheading, label, or similar designation contains the word 
``estimated'' in form H-25, set forth in appendix H to this part, that 
heading, label, or similar designation shall contain the word 
``estimated.''
    (3) Form. Except as provided in paragraph (t)(5) of this section:
    (i) For a transaction subject to this section that is a federally 
related mortgage loan, as defined in Regulation X, 12 CFR 1024.2, the 
disclosures must be made using form H-25, set forth in appendix H to 
this part.
    (ii) For any other transaction subject to this section, the 
disclosures must be made with headings, content, and format 
substantially similar to form H-25, set forth in appendix H to this 
part.
    (iii) The disclosures required by this section may be provided to 
the consumer in electronic form, subject to compliance with the 
consumer consent and other applicable provisions of the Electronic 
Signatures in Global and National Commerce Act (E-Sign Act) (15 U.S.C. 
7001 et seq.).
    (4) Rounding. (i) Nearest dollar. The following dollar amounts are 
required to be rounded to the nearest whole dollar:
    (A) The dollar amounts required to be disclosed by paragraph (b) of 
this section that are required to be rounded by Sec.  
1026.37(o)(4)(i)(A) when disclosed under Sec.  1026.37(b)(6) and (7);
    (B) The dollar amounts required to be disclosed by paragraph (c) of 
this section that are required to be rounded by Sec.  
1026.37(o)(4)(i)(A) when disclosed under Sec.  1026.37(c)(1)(iii);
    (C) The dollar amounts required to be disclosed by paragraph (i) of 
this section under the subheading ``Estimate'';
    (D) The dollar amounts required to be disclosed by paragraph (m) of 
this section; and
    (E) The dollar amounts required to be disclosed by paragraph (c) of 
this section that are required to be rounded by Sec.  
1026.37(o)(4)(i)(B) when disclosed under Sec.  1026.37(c)(2)(iv).
    (ii) Percentages. The percentage amounts required to be disclosed 
under paragraphs (b), (f)(1)(i), (g)(2)(iii), (l), (n), and (o)(5) and 
(6) of this section shall be disclosed as an exact number up to two or 
three decimal places. The percentage amount required to be disclosed 
under paragraph (o)(4) of this section shall be disclosed up to three 
decimal places. Decimal places shall not be disclosed if the amount is 
a whole number.
    (5) Exceptions. (i) Unit-period. Wherever the form or this section 
uses ``monthly'' to describe the frequency of any payments or uses 
``month'' to describe the applicable unit-period, the creditor shall 
substitute the appropriate term to reflect the fact that the 
transaction's terms provide for other than monthly periodic payments, 
such as bi-weekly or quarterly payments.

[[Page 51330]]

    (ii) Lender credits. The amount required to be disclosed by 
paragraph (d)(4) of this section may be omitted from the form if the 
amount is zero.
    (iii) Administrative information. The creditor may insert 
immediately above the information required to be disclosed by paragraph 
(a)(2) of this section and adjacent to the information required to be 
disclosed by paragraph (a)(3) of this section any administrative 
information, text, or codes that assist in identification of the form 
or the information disclosed on the form.
    (iv) Line numbers (Closing Cost Details). Line numbers provided on 
form H-25 in Appendix H to this part for the disclosure of the 
information required by paragraphs (f)(1), (2), and (3) and (g)(1), 
(2), (3), and (4) of this section that are not used may be deleted and 
the deleted line numbers added to the space provided for any other of 
those paragraphs as necessary to accommodate the disclosure of 
additional items.
    (v) Additional page (Closing Cost Details). The information 
required to be disclosed by paragraphs (f), (g), and (h) of this 
section may be disclosed on two pages if form H-25 in appendix H to 
this part, as altered pursuant to paragraph (t)(5)(iv) of this section, 
does not accommodate an itemization of all of the information required 
to be disclosed by paragraphs (f), (g), and (h) on one page, provided 
that the information required by paragraph (f) is disclosed on a page 
separate from the information required by paragraph (g). The 
information required by paragraph (g), if disclosed on a page separate 
from paragraph (f), shall be disclosed on the same page as the 
information required by paragraph (h).
    (vi) Separation of consumer and seller information. The creditor or 
settlement agent preparing the form may use form H-25 in appendix H to 
this part for the disclosure provided to both the consumer and the 
seller, with the following modifications to separate the information of 
the consumer and seller, as necessary:
    (A) The information required to be disclosed by paragraphs (j) and 
(k) of this section may be disclosed on separate pages to the consumer 
and the seller, respectively, with the information required by the 
other paragraph left blank. The information disclosed to the consumer 
pursuant to paragraph (j) of this section must be disclosed on the same 
page as the information required by paragraph (i) of this section.
    (B) The information required to be disclosed by paragraphs (f) and 
(g) of this section with respect to costs paid by the consumer may be 
left blank on the disclosure provided to the seller.
    (C) The information required by paragraphs (a)(2), (a)(4)(iii), 
(a)(5), (b) through (d), (i), (l) through (p), (r) with respect to the 
creditor and mortgage broker, and (s)(2) of this section may be left 
blank on the disclosure provided to the seller.
    (vii) Modified version of the form for a seller or third-party. The 
information required by paragraphs (a)(2), (a)(4)(iii), (a)(5), (b) 
through (d), (f) and (g) with respect to costs paid by the consumer, 
(i), (j), (l) through (p), (q)(1), (r) with respect to the creditor and 
mortgage broker, and (s) of this section may be deleted from the form 
provided to the seller or a third-party, as illustrated by form H-25(I) 
in appendix H to this part.
    (viii) Transaction without a seller. The following modifications to 
form H-25 in appendix H to this part may be made for a transaction that 
does not involve a seller, as illustrated by form H-25(J) in appendix H 
to this part:
    (A) The information required by paragraphs (a)(4)(ii), (f), (g), 
and (h) with respect to costs paid by the seller, and (k) of this 
section may be deleted.
    (B) A table under the master heading ``Closing Cost Details'' 
required by paragraph (f) of this section may be added with the heading 
``Disbursements to Others'' that itemizes the amounts of payments made 
at closing to other parties from the credit extended to the consumer or 
funds provided by the consumer in connection with the transaction, 
including designees of the consumer; the payees of such disbursements 
under the subheading ``To''; and the total amount of such payments 
labeled ``Total Disbursements to Others.''
    (C) The information required by paragraphs (i)(5), (7), and (8) of 
this section may be deleted from the table required by paragraph (i) of 
this section. These deletions must be factored into the calculation and 
disclosure required by paragraph (i)(9) of this section.
    (D) The tables required to be disclosed by paragraphs (j) and (k) 
of this section may be deleted.
    (ix) Translation. The form may be translated into languages other 
than English.
    (x) Customary recitals and information. An additional page may be 
attached to the form for the purpose of including customary recitals 
and information used locally in real estate settlements.[ltrif]
    19. Section 1026.39 is amended by revising paragraphs (a)(2) and 
(d) and adding new paragraph (d)(5) to read as follows:


Sec.  1026.39  Mortgage transfer disclosures.

    (a) Scope. The disclosure requirements of this section apply to any 
covered person except as otherwise provided in this section. For 
purposes of this section:
* * * * *
    (2) A ``mortgage loan'' means [rtrif]:
    (i) An open-end consumer credit transaction that is secured by the 
principal dwelling of a consumer; and
    (ii) A closed-end consumer credit transaction secured by a dwelling 
or real property.[ltrif]
* * * * *
    (d) Content of required disclosures. The disclosures required by 
this section shall identify the loan that was sold, assigned or 
otherwise transferred, and state the following [rtrif], except that the 
information required by paragraph (d)(5) of this section shall be 
stated only for a mortgage loan that is a closed-end consumer credit 
transaction other than a reverse mortgage transaction subject to Sec.  
1026.33 of this part[ltrif]:
* * * * *
    [rtrif](5) The following statements, labeled ``Partial Payment 
Policy'':
    (i) Whether the covered person will accept payments that are less 
than the amount due;
    (ii) If such payments are accepted, a description of how the 
covered person will apply such payments to the amount due, including 
whether such payments will be placed in an escrow account; and
    (iii) A statement that, if the loan is sold, the new covered 
person, using the term ``lender,'' may have a different policy.[ltrif]
* * * * *
    20. Appendix D to part 1026 is amended by revising paragraph C of 
part II to read as follows:

Appendix D to Part 1026--Multiple Advance Construction Loans

* * * * *

Part II--Construction and Permanent Financing Disclosed as One 
Transaction

* * * * *
    C. The creditor shall disclose the repayment schedule as 
follows:
    1. For loans under paragraph A.1 of part II, [rtrif]other than 
loans that are subject to Sec.  1026.19(e) and (f),[ltrif] without 
reflecting the number or amounts of payments of interest only that 
are made during the construction period. The fact that interest 
payments must be made and the timing of such payments shall be 
disclosed.
    2. For loans under paragraph A.2 of part II [rtrif]and loans 
under paragraph A.1 of part II that are subject to Sec.  1026.19(e) 
and (f)[ltrif], including any payments of interest only that are 
made during the construction period.

* * * * *

[[Page 51331]]

    21. Appendix H to part 1026 is amended by revising H-13 and H-15, 
adding new H-24 through H-27, and revising and adding their respective 
entries to the table of contents at the beginning of the appendix in 
numerical order as follows:

Appendix H to Part 1026--Closed-End [lsqbb]Model[rsqbb] Forms and 
Clauses

* * * * *

H-13 [rtrif]Closed-End[ltrif] [lsqbb]Mortgage[rsqbb] Transaction With 
Demand Feature Sample

* * * * *

H-15 [rtrif]Closed-End[ltrif] Graduated-Payment [lsqbb]Mortgage[rsqbb] 
[rtrif]Transaction[ltrif] Sample

* * * * *

[rtrif]H-24(A) Mortgage Loan Transaction Loan Estimate--Blank

H-24(B) Mortgage Loan Transaction Loan Estimate--Fixed-Rate Loan 
Sample

H-24(C) Mortgage Loan Transaction Loan Estimate--Interest Only 
Adjustable-Rate Loan Sample

H-24(D) Mortgage Loan Transaction Loan Estimate--Refinance Sample

H-24(E) Mortgage Loan Transaction Loan Estimate--Balloon Payment 
Sample

H-24(F) Mortgage Loan Transaction Loan Estimate--Negative 
Amortization Sample

H-25(A) Mortgage Loan Transaction Closing Disclosure--Blank

H-25(B) Mortgage Loan Transaction Closing Disclosure--Fixed-Rate 
Loan Sample

H-25(C) Mortgage Loan Transaction Closing Disclosure--Sample of 
Borrower Funds From Second-Lien Loan in Summaries of Transactions

H-25(D) Mortgage Loan Transaction Closing Disclosure--Sample of 
Borrower Satisfaction of Seller's Second-Lien Loan Outside of 
Closing in Summaries of Transactions

H-25(E) Mortgage Loan Transaction Closing Disclosure--Sample of 
Refinance Transaction

H-25(F) Mortgage Loan Transaction Closing Disclosure--Sample of 
Refinance Transaction (19(e)(3) violation)

H-25(G) Mortgage Loan Transaction Closing Disclosure--Sample of 
Refinance Transaction With Financed Closing Costs

H-25(H) Mortgage Loan Transaction Closing Disclosure--Modification 
to Closing Cost Details

H-25(I) Mortgage Loan Transaction Closing Disclosure--Modification 
to Closing Disclosure for Disclosure Provided to Seller

H-25(J) Mortgage Loan Transaction Closing Disclosure--Modification 
to Closing Disclosure for Transaction Not Involving Seller

H-26(A) Mortgage Loan Transaction--Pre-Loan Estimate Statement

H-26(B) Mortgage Loan Transaction--Pre-Loan Estimate Statement on 
Worksheet

H-27(A) Mortgage Loan Transaction--Written List of Providers

H-27(B) Mortgage Loan Transaction--Sample of Written List of 
Providers

H-27(C) Mortgage Loan Transaction--Sample of Written List of 
Providers With Services You Cannot Shop For[ltrif]

* * * * *
BILLING CODE 4810-25-P


H-13 [rtrif]Closed-End Transaction[ltrif] [lsqbb]Mortgage[rsqbb] With 
Demand Feature Sample
[GRAPHIC] [TIFF OMITTED] TP23AU12.000

* * * * *

H-15 [rtrif]Closed-End[ltrif] Graduated Payment 
[rtrif]Transaction[ltrif] [lsqbb]Mortgage[rsqbb] Sample

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[GRAPHIC] [TIFF OMITTED] TP23AU12.001

* * * * *

[rtrif]H-24(A) Mortgage Loan Transaction Loan Estimate--Blank

    Description: This is a blank Loan Estimate that illustrates the 
application of the content requirements in Sec.  1026.37. This form 
provides two variations of page one, four variations of page two, 
and eight variations of page three, reflecting the variable content 
requirements in Sec.  1026.37.

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H-24(B) Mortgage Loan Transaction Loan Estimate--Fixed-Rate Loan Sample

    Description: This is an example of a completed Loan Estimate for 
a fixed-rate loan. This loan is for the purchase of property at a 
sale price of $180,000 and has a loan amount of $162,000, a 30-year 
loan term, and a fixed interest rate of 3.875 percent. The consumer 
has elected to lock the interest rate. The creditor requires an 
escrow account and that the consumer pay for private mortgage 
insurance.

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H-24(C) Mortgage Loan Transaction Loan Estimate--Interest Only 
Adjustable-Rate Loan Sample

    Description: This is an example of a completed Loan Estimate for 
an adjustable-rate loan with interest-only payments. This loan is 
for the purchase of property at a sale price of $240,000 and has a 
loan amount of $211,000 and a 30-year loan term. For the first five 
years of the loan term, the scheduled payments cover only interest 
and the loan has an adjustable interest rate that is fixed at 4.375 
percent. After five years, the payments include principal and the 
interest rate adjusts every three years based on the value of the 
London Interbank Offered Rate plus a margin of 4.00 percent. The 
consumer has elected to lock the interest rate. The creditor 
requires an escrow account and that the consumer pay for private 
mortgage insurance.

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H-24(D) Mortgage Loan Transaction Loan Estimate--Refinance Sample

    Description: This is an example of a completed Loan Estimate for 
a transaction that is for a refinance and includes a prepayment 
penalty equal to 2.00 percent of the principal amount prepaid for 
the first two years after consummation of the transaction. The 
consumer estimated the balance of the existing loan to be $121,000.

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[GRAPHIC] [TIFF OMITTED] TP23AU12.024

H-24(E) Mortgage Loan Transaction Loan Estimate--Balloon Payment Sample

    Description: This is an example of the information required by 
Sec.  1026.37(a) through (c) for a transaction with a loan term of 7 
years that includes a final balloon payment.

[[Page 51356]]

[GRAPHIC] [TIFF OMITTED] TP23AU12.025

H-24(F) Mortgage Loan Transaction Loan Estimate--Negative Amortization 
Sample

    Description: This is an example of the information required by 
Sec.  1026.37(a) and (b) for a transaction with negative 
amortization.

[[Page 51357]]

[GRAPHIC] [TIFF OMITTED] TP23AU12.026

H-25(A) Mortgage Loan Transaction Closing Disclosure--Blank

    Description: This is a blank Closing Disclosure that illustrates 
the content requirements in Sec.  1026.38. This form provides two 
variations of page one, one page two, one page three, four 
variations of page four, and two variations of page five, reflecting 
the variable content requirements in Sec.  1026.38. This form does 
not reflect modifications permitted under Sec.  1026.38(t).

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H-25(B) Mortgage Loan Transaction Closing Disclosure--Fixed-Rate Loan 
Sample

    Description: This is an example of a completed Closing 
Disclosure for the fixed-rate loan illustrated by form H-24(B). The 
purpose, sale price, loan amount, loan term, and interest rate have 
not changed from the estimates provided on the Loan Estimate. The 
creditor requires an escrow account and that the consumer pay for 
private mortgage insurance for the transaction.

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H-25(C) Mortgage Loan Transaction Closing Disclosure--Sample of 
Borrower Funds From Second-Lien Loan in Summaries of Transactions

    Description: This is an example of the information required on 
the Closing Disclosure by Sec.  1026.38(j) for disclosure of 
consumer funds from a simultaneous second-lien credit transaction 
not otherwise disclosed pursuant to Sec.  1026.38(j)(2)(iii) or (iv) 
that is used to finance part of the purchase price of the property 
subject to the transaction.

[[Page 51373]]

[GRAPHIC] [TIFF OMITTED] TP23AU12.042

H-25(D) Mortgage Loan Transaction Closing Disclosure--Sample of 
Borrower Satisfaction of Seller's Second-Lien Loan Outside of Closing 
in Summaries of Transactions

    Description: This is an example of the information required on 
the Closing Disclosure by Sec.  1026.38(j) and (k) for the 
satisfaction of a junior-lien transaction by the consumer, which was 
not paid from closing funds.

[[Page 51374]]

[GRAPHIC] [TIFF OMITTED] TP23AU12.043

H-25(E) Mortgage Loan Transaction Closing Disclosure--Sample of 
Refinance Transaction

    Description: This is an example of a completed Closing 
Disclosure for the refinance transaction illustrated by form H-
24(D). The purpose, loan amount, loan term, interest rate, and 
prepayment penalty have not changed from the estimates provided on 
the Loan Estimate. The creditor requires an escrow account and that 
the consumer pay for private mortgage insurance for the transaction.

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H-25(F) Mortgage Loan Transaction Closing Disclosure--Sample of 
Refinance Transaction (19(e)(3) violation)

    Description: This is an example of a completed Closing 
Disclosure for the refinance transaction illustrated by form H-
24(D). The Closing Costs have increased in violation of Sec.  
1026.19(e)(3) by $100, for which the creditor has provided a credit.

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H-25(G) Mortgage Loan Transaction Closing Disclosure--Sample of 
Refinance Transaction With Financed Closing Costs

    Description: This is an example of a completed Closing 
Disclosure for the refinance transaction illustrated by form H-
24(D). The consumer has financed $4,500 of the Closing Costs in the 
Loan Amount.

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H-25(H) Mortgage Loan Transaction Closing Disclosure--Modification to 
Closing Cost Details

    Description: This is an example of the modification to Closing 
Cost Details permitted by Sec.  1026.38(t)(5)(v).

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H-25(I) Mortgage Loan Transaction Closing Disclosure--Modification to 
Closing Disclosure for Disclosure Provided to Seller

    Description: This is an example of the modification permitted by 
Sec.  1026.38(t)(5)(vii).

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H-25(J) Mortgage Loan Transaction Closing Disclosure--Modification to 
Closing Disclosure for Transaction Not Involving Seller

    Description: This is an example of the modification permitted by 
Sec.  1026.38(t)(5)(viii).

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H-26(A) Mortgage Loan Transaction--Disclaimer
[GRAPHIC] [TIFF OMITTED] TP23AU12.072

H-26(B) Mortgage Loan Transaction--Disclaimer on Worksheet

    Description: This is an example of the placement of the 
disclaimer required by Sec.  1026.19(e)(2)(ii) on the first page of 
a consumer-specific worksheet for which a creditor uses a format 
similar to the Loan Estimate in H-24 of this appendix.

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[GRAPHIC] [TIFF OMITTED] TP23AU12.073

H-27(A) Mortgage Loan Transaction--Written List of Providers

    Description: This is a model for the written list of settlement 
service providers required by Sec.  1026.19(e)(1)(vi) and the 
statement required by Sec.  1026.19(e)(1)(vi)(C) that the consumer 
may select a settlement service provider that is not on the list.

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[GRAPHIC] [TIFF OMITTED] TP23AU12.074

H-27(B) Mortgage Loan Transaction--Sample of Written List of Providers

    Description: This is a sample of the Written List of Providers 
for the transaction in the sample Loan Estimate illustrated by form 
H-24(B) of this appendix.

[[Page 51405]]

[GRAPHIC] [TIFF OMITTED] TP23AU12.075

H-27(C) Mortgage Loan Transaction--Sample of Written List of Providers 
With Services You Cannot Shop For

    Description: This is a sample of the Written List of Providers 
with information about the providers selected by the creditor for 
the charges disclosed pursuant to Sec.  1026.37(f)(2).

[[Page 51406]]

[GRAPHIC] [TIFF OMITTED] TP23AU12.076


[ltrif]

BILLING CODE 4810-25-C

    22. In Supplement I to Part 1026:
    A. Under Section 1026.1--Authority, Purpose, Coverage, 
Organization, Enforcement and Liability, subheading 1(c) Coverage, the 
subheading Paragraph 1(c)(5) and paragraph 1. under that subheading are 
added.
    B. Under Section 1026.2--Definitions and Rules of Construction:
    i. The subheading 2(a)(3) Application and paragraphs 1., 2., and 3. 
under that subheading are added.
    ii. Under subheading 2(a)(6) Business day, paragraph 2. is revised.
    iii. Under subheading 2(a)(25) Security interest, paragraph 2. is 
revised.
    C. Under Section 1026.3--Exempt Transactions:
    i. Under subheading 3(a) Business, commercial, agricultural, or 
organizational credit, paragraphs 9. and 10. are revised.
    ii. The subheading 3(h) Partial exemption for certain mortgage 
loans and paragraphs 1. and 2. under that subheading are added.
    D. Under Section 1026.4--Finance Charge:
    i. Under subheading 4(a) Definition, paragraph 6. is added.
    ii. Under subheading 4(a)(2) Special rule; closing agent charges, 
paragraph 3. is added.
    iii. Under subheading 4(b) Examples of finance charges, paragraph 
1. is revised.
    iv. Under subheading 4(c) Charges excluded from the finance charge:
    a. Under subheading Paragraph 4(c)(1), paragraph 1. is revised.
    b. Under subheading 4(c)(7) Real-estate related fees, paragraphs 1. 
and .3 are revised.
    v. Under subheading 4(d) Insurance and debt cancellation and debt 
suspension coverage, paragraphs 8. and 12. are revised.

[[Page 51407]]

    vi. Under subheading 4(e) Certain security interest charges, 
paragraph 1. is revised.
    vii. The subheading 4(g) Special rule for closed-end mortgage 
transactions and paragraphs 1., 2., and 3. under that subheading are 
added.
    E. Under Section 1026.17--General Disclosure Requirements:
    i. Paragraph 1. is added.
    ii. Under subheading 17(a) Form of disclosures, subheading 
Paragraph 17(a)(1), paragraph 7. is revised.
    iii. Under subheading 17(c) Basis of disclosures and use of 
estimates:
    a. Under subheading Paragraph 17(c)(1), paragraphs 1., 2., 3., 4., 
5., 8., 10., 11., and 12. are revised and paragraph 19. is added.
    b. Under subheading Paragraph 17(c)(2)(i), paragraphs 1., 2., and 
3. are revised.
    c. Under subheading Paragraph 17(c)(2)(ii), paragraph 1. is 
revised.
    d. Under subheading Paragraph 17(c)(4), paragraph 1. is revised.
    e. Under subheading Paragraph 17(c)(5), paragraphs 2., 3., and 4. 
are revised.
    iv. Under subheading 17(d) Multiple creditors; multiple consumers, 
paragraph 2. is revised.
    v. Under subheading 17(e) Effect of subsequent events, paragraph 1. 
is revised.
    vi. Under subheading 17(f) Early disclosures, paragraphs 1., 2., 
3., and 4. are revised.
    vii. Under subheading 17(g) Mail or telephone orders--delay in 
disclosures, paragraph 1. is revised.
    viii. Under subheading 17(h) Series of sales--delay in disclosures, 
paragraph 1. is revised.
    F. Under Section 1026.18--Content of Disclosures:
    i. Paragraph 3. is added.
    ii. Under subheading 18(b) Amount financed:
    a. Paragraph 2. is removed.
    b. Under subheading Paragraph 18(b)(2), paragraph 1. is revised.
    iii. Under subheading 18(c) Itemization of amount financed:
    a. Paragraph 4. is revised.
    b. Under subheading Paragraph 18(c)(1)(iv), paragraph 2. is 
revised.
    iv. Under subheading 18(f) Variable rate, subheading Paragraph 
18(f)(1)(iv), paragraph 2. is revised.
    v. Under subheading 18(g) Payment schedule:
    a. Paragraphs 4. and 6. are revised.
    b. Paragraph 5. is removed and reserved.
    c. Under subheading Paragraph 18(g)(2), paragraphs 1. and 2. are 
revised.
    vi. Under subheading 18(k) Prepayment:
    a. Paragraphs 1., 2., and 3. are revised.
    b. Under subheading Paragraph 18(k)(1), paragraph 1. is revised and 
paragraph 2. is added.
    c. Under subheading Paragraph 18(k)(2), paragraph 1. is revised.
    vii. Under subheading 18(r) Required deposit, paragraph 6.vi is 
removed and reserved.
    viii. Under subheading 18(s) Interest rate and payment summary for 
mortgage transactions:
    a. Paragraph 1. is revised and paragraph 4. is added.
    b. Under subheading 18(s)(3) Payments for amortizing loans, 
subheading Paragraph 18(s)(3)(i)(C), paragraph 2. is revised.
    G. Under Section 1026.19--Certain Mortgage and Variable-Rate 
Transactions:
    i. Under subheading 19(a)(1)(i) Time of disclosures, paragraph 1. 
is revised.
    ii. Under subheading 19(a)(5) Timeshare plans:
    a. The subheading 19(a)(5) Timeshare plans is removed.
    b. The subheading Paragraph 19(a)(5)(ii) and paragraphs 1., 2., 3., 
4., and 5. under that subheading are removed.
    c. The subheading Paragraph 19(a)(5)(iii) and paragraphs 1. and 2. 
under that subheading are removed.
    iii. New 19(e) Mortgage loans secured by real property--Early 
disclosures, 19(f) Mortgage loans secured by real property--Final 
disclosures, and 19(g) Special information booklet at time of 
application are added.
    H. Under Section 1026.22--Determination of Annual Percentage Rate, 
subheading 22(a) Accuracy of annual percentage rate, subheading 
22(a)(4) Mortgage loans, paragraph 1. is revised.
    I. Under Section 1026.24--Advertising, 24(d) Advertisement of terms 
that require additional disclosures, subheading 24(d)(2) Additional 
terms, paragraph 2. is revised.
    J. Under Section 1026.25--Record Retention:
    i. The subheading 25(c) Records related to certain requirements for 
mortgage loans is added.
    ii. The subheading 25(c)(1) Records related to requirements for 
loans secured by real property and paragraphs 1. and 2. under that 
subheading are added.
    iii. The subheading 25(c)(1)(iii) Electronic records and paragraph 
1. under that subheading are added.
    K. Under Section 1026.28--Effect on State Laws, subheading 28(a) 
Inconsistent disclosure requirements, paragraph 1. is revised.
    L. Under Section 1026.29--State Exemptions, subheading 29(a) 
General rule, paragraphs 2. and 4. are revised.
    M. New Section 1026.37--Content of Disclosures for Certain Mortgage 
Transactions (Loan Estimate) is added.
    N. New Section 1026.38--Content of Disclosures for Certain Mortgage 
Transactions (Closing Disclosure) is added.
    O. Under Section 1026.39--Mortgage transfer disclosures, subheading 
39(d) Content of required disclosures:
    i. Paragraph 2. is added.
    ii. The subheading Paragraph 39(d)(5) and paragraph 1. under that 
subheading are added.
    The revisions and additions read as follows:

Supplement I to Part 1026--Official Interpretations

* * * * *

SUBPART A--GENERAL

Section 1026.1--Authority, Purpose, Coverage, Organization, Enforcement 
and Liability 1(c) Coverage

* * * * *
    [rtrif]Paragraph 1(c)(5).
    1. Temporary exemption. Section 1026.1(c)(5) implements sections 
128(a)(16) through (19), 128(b)(4), 129C(f)(1), 129C(g)(2) and (3), 
129C(h), 129D(h), and 129D(j)(1)(A) of the Truth in Lending Act and 
section 4(c) of the Real Estate Settlement Procedures Act, by exempting 
persons from the disclosure requirements of those sections. These 
exemptions are intended to be temporary, lasting only until regulations 
implementing the integrated disclosures required by section 1032(f) of 
the Dodd-Frank Act (12 U.S.C. 5532(f)) becomes mandatory. Section 
1026.1(c)(5) does not exempt any person from any other requirement of 
this part, Regulation X (12 CFR part 1024), the Truth in Lending Act, 
or the Real Estate Settlement Procedures Act.[ltrif]
* * * * *

Section 1026.2--Definitions and Rules of Construction

* * * * *
    [rtrif]2(a)(3) Application.
    1. In general. An application means the submission of a consumer's 
financial information for purposes of obtaining an extension of credit. 
Except for purposes of subpart B, subpart F, and subpart G, the term 
consists of the consumer's name, the consumer's income, the consumer's 
social security number to obtain a credit report, the property address, 
an estimate of the value of the property, and the mortgage loan amount 
sought. This definition

[[Page 51408]]

does not prevent a creditor from collecting whatever additional 
information it deems necessary in connection with the request for the 
extension of credit. However, once a creditor has received these six 
pieces of information, it has an application for purposes of the 
requirements of Regulation Z. A submission may be in written or 
electronic format and includes a written record of an oral application. 
The following examples are illustrative of this provision:
    i. Assume a creditor provides a consumer with an application form 
containing 20 questions about the consumer's credit history and the 
collateral value. The consumer submits answers to nine of the questions 
and informs the creditor that the consumer will contact the creditor 
the next day with answers to the other 11 questions. Although the 
consumer provided nine pieces of information, the consumer did not 
provide a social security number. The creditor has not yet received an 
application for purposes of Sec.  1026.2(a)(3).
    ii. Assume a creditor requires all applicants to submit 20 pieces 
of information. The consumer submits only six pieces of information and 
informs the creditor that the consumer will contact the creditor the 
next day with answers to the other 14 questions. The six pieces of 
information provided by the consumer were the consumer's name, income, 
social security number, property address, estimate of the value of the 
property, and the mortgage loan amount sought. Even though the creditor 
requires 14 additional pieces of information to process the consumer's 
request for a mortgage loan, the creditor has received an application 
for the purposes of Sec.  1026.2(a)(3) and therefore must comply with 
the relevant requirements under Sec.  1026.19.
    2. Social security number to obtain a credit report. If a consumer 
does not have a social security number, the creditor may substitute 
whatever unique identifier the creditor uses to obtain a credit report 
on the consumer. For example, a creditor has obtained a social security 
number to obtain a credit report for purposes of Sec.  1026.2(a)(3)(ii) 
if the creditor collects a Tax Identification Number from a consumer 
who does not have a social security number, such as a foreign national.
    3. Receipt of credit report fees. Section 1026.19(a)(1)(iii) 
permits the imposition of a fee to obtain the consumer's credit history 
prior to the delivery of the disclosures required under Sec.  
1026.19(a)(1)(i). Section 1026.19(e)(2)(i)(B) permits the imposition of 
a fee to obtain the consumer's credit report prior to the delivery of 
the disclosures required under Sec.  1026.19(e)(1)(i). Whether, or 
when, such fees are received does not affect whether an application has 
been received for the purposes of the definition in Sec.  1026.2(a)(3) 
and the timing requirements in Sec.  1026.19(a)(1)(i) and (e)(1)(iii). 
For example, if, in a transaction subject to Sec.  1026.19(e)(1)(i), a 
creditor receives the six pieces of information identified under Sec.  
1026.2(a)(3)(ii) on Monday, June 1, but does not receive a credit 
report fee from the consumer until Tuesday, June 2, the creditor does 
not comply with Sec.  1026.19(e)(1)(iii) if it provides the disclosures 
required under Sec.  1026.19(e)(1)(i) after Thursday, June 4. The 
three-business-day period begins on Monday, June 1, the date the 
creditor received the six pieces of information. The waiting period 
does not begin on Tuesday, June 2, the date the creditor received the 
credit report fee.[ltrif]
* * * * *
    2(a)(6) Business day.
* * * * *
    2. Rule for rescission, disclosures for certain mortgage 
transactions, and private education loans. A more precise rule for what 
is a business day (all calendar days except Sundays and the Federal 
legal holidays specified in 5 U.S.C. 6103(a)) applies when the right of 
rescission, the receipt of disclosures for certain dwelling-secured 
mortgage transactions under Sec. Sec.  1026.19(a)(1)(ii), 
1026.19(a)(2), [rtrif]1026.19(e)(1)(iii), 1026.19(e)(1)(iv), 
1026.19(e)(2)(i)(A), 1026.19(f)(1)(ii), 1026.19(f)(1)(iii),[ltrif] 
1026.31(c), or the receipt of disclosures for private education loans 
under Sec.  1026.46(d)(4) is involved. Four Federal legal holidays are 
identified in 5 U.S.C. 6103(a) by a specific date: New Year's Day, 
January 1; Independence Day, July 4; Veterans Day, November 11; and 
Christmas Day, December 25. When one of these holidays (July 4, for 
example) falls on a Saturday, Federal offices and other entities might 
observe the holiday on the preceding Friday (July 3). In cases where 
the more precise rule applies, the observed holiday (in the example, 
July 3) is a business day.
* * * * *
    2(a)(25) Security interest.
* * * * *
    2. Exclusions. The general definition of security interest excludes 
three groups of interests: Incidental interests, interests in after-
acquired property, and interests that arise solely by operation of law. 
These interests may not be disclosed with the disclosures required 
under [rtrif]Sec.  [ltrif]Sec.  1026.18, [rtrif]1026.19(e) and (f), and 
1026.38(l)(6)[ltrif], but the creditor is not precluded from preserving 
these rights elsewhere in the contract documents, or invoking and 
enforcing such rights, if it is otherwise lawful to do so. If the 
creditor is unsure whether a particular interest is one of the excluded 
interests, the creditor may, at its option, consider such interests as 
security interests for Truth in Lending purposes.
* * * * *

Section 1026.3--Exempt Transactions

* * * * *
    3(a) Business, commercial, agricultural, or organizational credit.
* * * * *
    9. Organizational credit. The exemption for transactions in which 
the borrower is not a natural person applies, for example, to loans to 
corporations, partnerships, associations, churches, unions, and 
fraternal organizations. The exemption applies regardless of the 
purpose of the credit extension and regardless of the fact that a 
natural person may guarantee or provide security for the credit. 
[rtrif]But see comment 3(a)-10 concerning credit extended to 
trusts.[ltrif]
    10. [rtrif]Trusts. Credit extended for consumer purposes to certain 
trusts is considered to be credit extended to a natural person rather 
than credit extended to an organization. Specifically:
    i. Trusts for tax or estate planning purposes. In some instances, a 
creditor may extend credit for consumer purposes to a trust that a 
consumer has created for tax or estate planning purposes (or both). 
Consumers sometimes place their assets in trust with themselves as 
trustee(s), and with themselves or themselves and their families or 
other prospective heirs as beneficiaries, to obtain certain tax 
benefits and to facilitate the future administration of their estates. 
During their lifetimes, however, such consumers continue to use the 
assets of such trusts as their property. A creditor extending credit to 
finance the acquisition of, for example, a consumer's dwelling that is 
held in such a trust, or to refinance existing debt secured by such a 
dwelling, may prepare the note, security instrument, and similar loan 
documents for execution by the consumer either in both the consumer's 
individual capacity and as trustee or in only one capacity or the 
other. Regardless of the capacity or capacities in which the consumer 
executes the loan documents, assuming the transaction is for personal, 
family, or household purposes, the transaction is subject to the 
regulation because in

[[Page 51409]]

substance (if not form) consumer credit is being extended.
    ii. [ltrif]Land trusts. [lsqbb]Credit extended for consumer 
purposes to a land trust is considered to be credit extended to a 
natural person rather than credit extended to an organization.[rsqbb] 
In some jurisdictions, a financial institution financing a residential 
real estate transaction for an individual uses a land trust mechanism. 
Title to the property is conveyed to the land trust for which the 
financial institution itself is trustee. The underlying installment 
note is executed by the financial institution in its capacity as 
trustee and payment is secured by a trust deed, reflecting title in the 
financial institution as trustee. In some instances, the consumer 
executes a personal guaranty of the indebtedness. The note provides 
that it is payable only out of the property specifically described in 
the trust deed and that the trustee has no personal liability on the 
note. Assuming the transactions are for personal, family, or household 
purposes, these transactions are subject to the regulation because in 
substance (if not form) consumer credit is being extended.
* * * * *
    [rtrif]3(h) Partial exemption for certain mortgage loans.
    1. Partial exemption. Section 1026.3(h) exempts certain 
transactions from only the disclosures required by Sec.  1026.19(e), 
(f), and (g), and not from any of the other applicable requirements of 
this part. As provided by Sec.  1026.3(h)(6), creditors must comply 
with all other applicable requirements of this part. In addition, the 
creditor must provide the disclosures required by Sec.  1026.18, even 
if the creditor would not otherwise be subject to the disclosure 
requirements of Sec.  1026.18. The consumer also has the right to 
rescind the transaction under Sec.  1026.23, to the extent that 
provision is applicable.
    2. Requirements of exemption. The conditions that the transaction 
not require the payment of interest under Sec.  1026.3(h)(3) and that 
repayment of the amount of credit extended be forgiven or deferred in 
accordance with Sec.  1026.3(h)(4) is determined by the terms of the 
credit contract. The other requirements of Sec.  1026.3(h) need not be 
reflected in the credit contract, but the creditor must retain evidence 
of compliance with those provisions, as required by Sec.  1026.25(a). 
In particular, because the exemption from Sec.  1026.19(e), (f), and 
(g) means the consumer will not receive the disclosures of closing 
costs under Sec.  1026.37 or Sec.  1026.38, the creditor must have 
information reflecting that the total of closing costs imposed in 
connection with the transaction is less than one percent of the amount 
of credit extended and include no charges other than recordation, 
application, and housing counseling fees, in accordance with Sec.  
1026.3(h)(5). Unless an itemization of the amount financed sufficiently 
details this requirement, the creditor must establish compliance with 
Sec.  1026.3(h)(5) by some other written document and retain it in 
accordance with Sec.  1026.25(a).[ltrif]

Section 1026.4--Finance Charge

    4(a) Definition.
* * * * *
    [rtrif]6. Transactions with no seller. In a transaction where there 
is no seller, such as a refinancing of an existing extension of credit 
described in Sec.  1026.20(a), there is no comparable cash transaction. 
Thus, the exclusion from the finance charge for charges of a type 
payable in a comparable cash transaction does not apply to such 
transactions.[ltrif]
* * * * *
    4(a)(2) Special rule; closing agent charges.
* * * * *
    [rtrif]3. Closed-end mortgage transactions. Comments 4(a)(2)-1 and 
4(a)(2)-2 do not apply to closed-end transactions secured by real 
property or a dwelling, pursuant to Sec.  1026.4(g).[ltrif]
* * * * *
    4(b) Examples of finance charges.
    1. Relationship to other provisions. Charges or fees shown as 
examples of finance charges in Sec.  1026.4(b) may be excludable under 
Sec.  1026.4(c), (d), or (e). For example [lsqbb]:
    i. Premiums[rsqbb][rtrif], premiums[ltrif] for credit life 
insurance, shown as an example of a finance charge under Sec.  
1026.4(b)(7), may be excluded if the requirements of Sec.  1026.4(d)(1) 
are met. [rtrif]They may not be excluded, however, in closed-end 
transactions secured by real property or a dwelling, pursuant to Sec.  
1026.4(g).[ltrif]
    [lsqbb]ii. Appraisal fees mentioned in Sec.  1026.4(b)(4) are 
excluded for real property or residential mortgage transactions under 
Sec.  1026.4(c)(7).[rsqbb]
* * * * *
    4(c) Charges excluded from the finance charge.
    Paragraph 4(c)(1).
    1. Application fees. An application fee that is excluded from the 
finance charge is a charge to recover the costs associated with 
processing applications for credit. The fee may cover the costs of 
services such as credit reports, credit investigations, and appraisals. 
The creditor is free to impose the fee in only certain of its loan 
programs, such as [rtrif]automobile[ltrif] [lsqbb]mortgage[rsqbb] 
loans. However, if the fee is to be excluded from the finance charge 
under Sec.  1026.4(c)(1), it must be charged to all applicants, not 
just to applicants who are approved or who actually receive credit.
* * * * *
    4(c)(7) Real-estate related fees.
    1. Real estate or residential mortgage transaction charges. The 
list of charges in [lsqbb]Sec.  1026.4(c)(7)[rsqbb] [rtrif]Sec.  
1026.4(c)(7)(i) through (iv)[ltrif] applies [rtrif]only to open-end 
credit plans secured by real property and open-end residential mortgage 
transactions because Sec.  1026.4(g) makes them inapplicable to closed-
end transactions secured by real property or a dwelling. The exclusion 
of escrowed amounts under Sec.  1026.4(c)(7)(v), on the other hand, 
applies to all[ltrif] [lsqbb]both to[rsqbb] residential mortgage 
transactions (which may include, for example, the purchase of a mobile 
home) and to other transactions secured by real estate. The fees are 
excluded from the finance charge even if the services for which the 
fees are imposed are performed by the creditor's employees rather than 
by a third party. In addition, the cost of verifying or confirming 
information connected to the item is also excluded. For example, 
credit-report fees cover not only the cost of the report but also the 
cost of verifying information in the report. In all cases, charges 
excluded under Sec.  1026.4(c)(7) must be bona fide and reasonable.
* * * * *
    3. Charges assessed during the loan term. [rtrif]Charges[ltrif] 
[lsqbb]Real estate or residential mortgage transaction charges[rsqbb] 
excluded under Sec.  1026.4(c)(7) are those charges imposed solely in 
connection with the initial decision to grant credit. This would 
include, for example, a fee to search for tax liens on the property or 
to determine if flood insurance is required. The exclusion does not 
apply to fees for services to be performed periodically during the loan 
term, regardless of when the fee is collected. For example, a fee for 
one or more determinations during the loan term of the current tax-lien 
status or flood-insurance requirements is a finance charge, regardless 
of whether the fee is imposed at closing, or when the service is 
performed. If a creditor is uncertain about what portion of a fee to be 
paid at consummation or loan closing is related to the initial decision 
to grant credit, the entire fee may be treated as a finance charge.

[[Page 51410]]

    4(d) Insurance and debt cancellation and debt suspension coverage.
* * * * *
    8. Property insurance. To exclude property insurance premiums or 
charges from the finance charge, the creditor must allow the consumer 
to choose the insurer and disclose that fact. This disclosure must be 
made whether or not the property insurance is available from or through 
the creditor. The requirement that an option be given does not require 
that the insurance be readily available from other sources. The premium 
or charge must be disclosed only if the consumer elects to purchase the 
insurance from [rtrif]or through[ltrif] the creditor; in such a case, 
the creditor must also disclose the term of the property insurance 
coverage if it is less than the term of the obligation. 
[rtrif]Insurance is available ``from or through a creditor'' only if it 
is available from the creditor or the creditor's affiliate, as defined 
under the Bank Holding Company Act, 12 U.S.C. 1841(k).[ltrif]
* * * * *
    12. Initial term; alternative. i. General. A creditor has the 
option of providing cost disclosures on the basis of one year of 
insurance or debt cancellation or debt suspension coverage instead of a 
longer initial term (provided the premium or fee is clearly labeled as 
being for one year) if:
    A. The initial term is indefinite or not clear, or
    B. The consumer has agreed to pay a premium or fee that is assessed 
periodically but the consumer is under no obligation to continue the 
coverage, whether or not the consumer has made an initial payment.
    ii. Open-end plans. For open-end plans, a creditor also has the 
option of providing unit-cost disclosure on the basis of a period that 
is less than one year if the consumer has agreed to pay a premium or 
fee that is assessed periodically, for example monthly, but the 
consumer is under no obligation to continue the coverage.
    iii. Examples. To illustrate:
    A. A credit life insurance policy providing coverage for a 
[rtrif]four-year automobile[ltrif] [lsqbb]30-year mortgage[rsqbb] loan 
has an initial term of [rtrif]four[ltrif] [lsqbb]30[rsqbb] years, even 
though premiums are paid monthly and the consumer is not required to 
continue the coverage. Disclosures may be based on the initial term, 
but the creditor also has the option of making disclosures on the basis 
of coverage for an assumed initial term of one year.
* * * * *
    4(e) Certain security interest charges.
    1. Examples.
    i. Excludable charges. Sums must be actually paid to public 
officials to be excluded from the finance charge under Sec.  
1026.4(e)(1) and (e)(3). Examples are charges or other fees required 
for filing or recording security agreements, mortgages [rtrif](for 
open-end credit; but see Sec.  1026.4(g) regarding closed-end mortgage 
credit)[ltrif], continuation statements, termination statements, and 
similar documents, as well as intangible property or other taxes even 
when the charges or fees are imposed by the state solely on the 
creditor and charged to the consumer (if the tax must be paid to record 
a security agreement). See comment 4(a)-5 regarding the treatment of 
taxes, generally.
* * * * *
    [rtrif]4(g) Special rule for closed-end mortgage transactions.
    1. Applicability of commentary to mortgages. The commentary to 
Sec.  1026.4(a)(2) and (c) through (e), other than that under Sec.  
1026.4(c)(2), (c)(5), (c)(7) (to the extent it relates to escrowed 
items as described in paragraph (c)(7)(v) of that section), and (d) (to 
the extent it relates to property insurance premiums described in 
paragraph (d)(2) of that section), does not apply to closed-end 
transactions secured by real property or a dwelling. Commentary under 
Sec.  1026.4(a) (other than paragraph (a)(2) of that section), (c)(2), 
(c)(5), (c)(7) (to the extent it relates to escrowed items as described 
in paragraph (c)(7)(v) of that section), and (d) (to the extent it 
relates to property insurance premiums described in paragraph (d)(2) of 
that section), however, does apply to such transactions.
    2. Third-party charges. Charges imposed by third parties are 
included in the finance charge if they meet the general definition 
under Sec.  1026.4(a). Thus, if a third-party charge is payable 
directly or indirectly by the consumer and imposed directly or 
indirectly by the creditor as an incident to the extension of credit, 
it is a finance charge unless it would be payable in a comparable cash 
transaction. For example, appraisal and credit report fees are included 
in the finance charge because they meet the definition in Sec.  
1026.4(a). This test generally does not depend on whether the creditor 
requires the service for which the charge is imposed. In addition, 
charges imposed by closing agents, if the creditor requires that a 
closing agent conduct the loan closing, generally are included in the 
finance charge unless otherwise excluded. Insurance premiums generally 
are included in the finance charge, whether imposed by a closing agent 
or another insurer, although premiums for property insurance are 
excluded if Sec.  1026.4(d)(2) is satisfied. Premiums for credit 
insurance (or fees for debt cancellation or debt suspension agreements) 
and premiums for lender's coverage under a title insurance policy are 
included in the finance charge because they are imposed as an incident 
to the extension of credit. In contrast, premiums for owner's title 
insurance coverage are not included in the finance charge because they 
are not imposed as an incident to the extension of credit.
    3. Charges in comparable cash transactions. While the exclusions in 
Sec.  1026.4(c) through (e), other than Sec.  1026.4(c)(2), (c)(5), 
(c)(7)(v), and (d)(2), are inapplicable to closed-end transactions 
secured by real property or a dwelling, charges in connection with such 
transactions that are payable in a comparable cash transaction are not 
included in the finance charge. See comment 4(a)-1. For example, 
property taxes imposed to record the deed evidencing transfer from the 
seller to the buyer of title to the property are not included in the 
finance charge because they would be paid even if no credit were 
extended to finance the purchase. In contrast, fees or taxes imposed to 
record the mortgage, deed of trust, or other security instrument 
evidencing the creditor's security interest in the property securing 
transaction are included in the finance charge because they would not 
be incurred in a cash transaction.[ltrif]
* * * * *

Subpart C--Closed-End Credit

Section 1026.17--General Disclosure Requirements[rtrif]

    1. Rules for certain mortgage disclosures. Section 1026.17(a) and 
(b) does not apply to the disclosures required by Sec.  1026.19(e), 
(f), and (g). For those disclosures, rules regarding the disclosures' 
form are found in Sec. Sec.  1026.19(g), 1026.37(o), and 1026.38(t) and 
rules regarding timing are found in Sec.  1026.19(e), (f), and 
(g).[ltrif]
    17(a) Form of disclosures.
    Paragraph 17(a)(1).
* * * * *
    7. Balloon payment financing with leasing characteristics. In 
certain credit sale or loan transactions, a consumer may reduce the 
dollar amount of the payments to be made during the course of the 
transaction by agreeing to make, at the end of the loan term, a large 
final payment based on the expected residual value of the property. The 
consumer may have a number of options with respect to the final 
payment, including,

[[Page 51411]]

among other things, retaining the property and making the final 
payment, refinancing the final payment, or transferring the property to 
the creditor in lieu of the final payment. Such transactions may have 
some of the characteristics of lease transactions subject to Regulation 
M (12 CFR Part 1013), but are considered credit transactions where the 
consumer assumes the indicia of ownership, including the risks, burdens 
and benefits of ownership upon consummation. These transactions are 
governed by the disclosure requirements of this part instead of 
Regulation M. Creditors should not include in the segregated Truth in 
Lending disclosures additional information. Thus, disclosures should 
show the large final payment in the payment schedule [rtrif]or interest 
rate and payment summary table under Sec.  1026.18(g) or (s), as 
applicable,[ltrif] and should not, for example, reflect the other 
options available to the consumer at maturity.
* * * * *
    17(c) Basis of disclosures and use of estimates.
    Paragraph 17(c)(1).
    1. Legal obligation. The disclosures shall reflect the 
[lsqbb]credit[rsqbb] terms to which the [lsqbb]parties[rsqbb] 
[rtrif]consumer and creditor[ltrif] are legally bound as of the outset 
of the transaction. In the case of disclosures required under Sec.  
1026.20(c), the disclosures shall reflect the credit terms to which the 
[lsqbb]parties[rsqbb] [rtrif]consumer and creditor[ltrif] are legally 
bound when the disclosures are provided. The legal obligation is 
determined by applicable State law or other law. [rtrif]Disclosures 
based on the assumption that the consumer will abide by the terms of 
the legal obligation throughout the term of the transaction comply with 
Sec.  1026.17(c)(1).[ltrif] (Certain transactions are specifically 
addressed in this commentary. See, for example, the discussion of 
buydown transactions elsewhere in the commentary to Sec.  1026.17(c).) 
The fact that a term or contract may later be deemed unenforceable by a 
court on the basis of equity or other grounds does not, by itself, mean 
that disclosures based on that term or contract did not reflect the 
legal obligation.
    2. Modification of obligation. The legal obligation normally is 
presumed to be contained in the note or contract that evidences the 
agreement [rtrif]between the consumer and the creditor[ltrif]. But this 
presumption is rebutted if another agreement between the 
[lsqbb]parties[rsqbb] [rtrif]consumer and creditor[ltrif] legally 
modifies that note or contract. If the [lsqbb]parties[rsqbb] 
[rtrif]consumer and creditor[ltrif] informally agree to a modification 
of the legal obligation, the modification should not be reflected in 
the disclosures unless it rises to the level of a change in the terms 
of the legal obligation. For example:
* * * * *
    3. Third-party buydowns. In certain transactions, a seller or other 
third party may pay an amount, either to the creditor or to the 
consumer, in order to reduce the consumer's payments [lsqbb]or buy down 
the interest rate[rsqbb] for all or a portion of the credit term. For 
example, a consumer and a bank agree to a mortgage with an interest 
rate of 15% and level payments over 25 years. By a separate agreement, 
the seller of the property agrees to subsidize the consumer's payments 
for the first two years of the mortgage, giving the consumer an 
effective rate of 12% for that period.
    i. If the [lsqbb]lower rate[rsqbb] [rtrif]third-party 
buydown[ltrif] is reflected in the credit contract between the consumer 
and the bank, the [rtrif]finance charge and all other disclosures 
affected by it[ltrif] [lsqbb]disclosures[rsqbb] must take the buydown 
into account [rtrif]as an amendment to the contract's interest rate 
provision[ltrif]. For example, the annual percentage rate must be a 
composite rate that takes account of both the lower initial rate and 
the higher subsequent rate, and the [lsqbb]payment schedule 
disclosures[rsqbb] [rtrif]disclosures required under Sec. Sec.  
1026.18(g), 1026.18(s), 1026.37(c), and 1026.38(c), as 
applicable,[ltrif] must reflect the two payment levels[rtrif], except 
as otherwise provided in those paragraphs[ltrif]. However, the amount 
paid by the seller would not be specifically reflected in the 
[rtrif]disclosure of the finance charge and other disclosures affected 
by it[ltrif] [lsqbb]disclosures[rsqbb] given by the bank, since that 
amount constitutes seller's points and thus is not part of the finance 
charge. [rtrif]The seller-paid amount is disclosed, however, as a 
credit from the seller in the summaries of transactions disclosed 
pursuant to Sec.  1026.38(j) and (k).[ltrif]
    ii. If the [lsqbb]lower rate[rsqbb] [rtrif]third-party 
buydown[ltrif] is not reflected in the credit contract between the 
consumer and the bank and the consumer is legally bound to the 15% rate 
from the outset, the [rtrif]disclosure of the finance charge and other 
disclosures affected by it[ltrif] [lsqbb]disclosures[rsqbb] given by 
the bank must not reflect the seller buydown in any way. For example, 
the annual percentage rate and [lsqbb]payment schedule[rsqbb] 
[rtrif]disclosures required under Sec. Sec.  1026.18(g), 1026.18(s), 
1026.37(c), and 1026.38(c), as applicable,[ltrif] would not take into 
account the reduction in the interest rate and payment level for the 
first two years resulting from the buydown. [rtrif]The seller-paid 
amount is, however, disclosed as a credit from the seller in the 
summaries of transactions disclosed pursuant to Sec.  1026.38(j) and 
(k).[ltrif]
    4. Consumer buydowns. In certain transactions, the consumer may pay 
an amount to the creditor to reduce the payments [lsqbb]or obtain a 
lower interest rate[rsqbb] on the transaction. Consumer buydowns must 
be reflected [rtrif]as an amendment to the contract's interest rate 
provision[ltrif] in the [rtrif] disclosure of the finance charge and 
other disclosures affected by it [ltrif] [lsqbb]disclosures[rsqbb] 
given for that transaction. To illustrate, in a mortgage transaction, 
the creditor and consumer agree to a note specifying a 14 percent 
interest rate. However, in a separate document, the consumer agrees to 
pay an amount to the creditor at consummation in return for [lsqbb]a 
reduction in the interest rate to 12 percent[rsqbb] [rtrif]lower 
payments[ltrif] for a portion of the mortgage term. The amount paid by 
the consumer may be deposited in an escrow account or may be retained 
by the creditor. Depending upon the buydown plan, the consumer's 
prepayment of the obligation may or may not result in a portion of the 
amount being credited or refunded to the consumer. In the [rtrif] 
disclosure of the finance charge and other disclosures affected by it 
[ltrif] [lsqbb]disclosures[rsqbb] given for the mortgage, the creditor 
must reflect the terms of the buydown agreement.
    i. For example:
* * * * *
    C. The [lsqbb]payment schedule[rsqbb] [rtrif]disclosures under 
Sec. Sec.  1026.18(g) and (s), 1026.37(c), and 1026.38(c), as 
applicable,[ltrif] must reflect the multiple [rtrif]rate and[ltrif] 
payment levels resulting from the buydown, [rtrif]except as otherwise 
provided in those sections. Further, for example, the transaction is 
disclosed as a step rate product under Sec. Sec.  1026.37(a)(10) and 
1026.38(a)(5)(iii).[ltrif]
    ii. The rules regarding consumer buydowns do not apply to 
transactions known as ``lender buydowns.'' In lender buydowns, a 
creditor pays an amount (either into an account or to the party to whom 
the obligation is sold) to reduce the consumer's payments or interest 
rate for all or a portion of the credit term. Typically, these 
transactions are structured as a buydown of the interest rate during an 
initial period of the transaction with a higher than usual rate for the 
remainder of the term. The [rtrif]disclosure of the finance charge and 
other disclosures affected by it[ltrif]

[[Page 51412]]

[lsqbb]disclosures[rsqbb] for lender buydowns should be based on the 
terms of the legal obligation between the consumer and the creditor. 
See comment 17(c)(1)-3 for the analogous rules concerning third-party 
buydowns.
    5. Split buydowns. In certain transactions, a third party (such as 
a seller) and a consumer both pay an amount to the creditor to reduce 
the interest rate. The creditor must include the portion paid by the 
consumer in the finance charge and disclose the corresponding multiple 
payment levels[rtrif], except as otherwise provided in Sec. Sec.  
1026.18(s), 1026.37(c), and 1026.38(c),[ltrif] and composite annual 
percentage rate. The portion paid by the third party and the 
corresponding reduction in interest rate, however, should not be 
reflected in the [rtrif]disclosure of the finance charge and other 
disclosures affected by it [ltrif] [lsqbb]disclosures[rsqbb] unless the 
lower rate is reflected in the credit contract. See the discussion on 
third-party and consumer buydown transactions elsewhere in the 
commentary to Sec.  1026.17(c).
* * * * *
    8. Basis of disclosures in variable-rate transactions. 
[rtrif]Except as otherwise provided in Sec. Sec.  1026.18(s), 1026.37 
and 1026.38, as applicable, the[ltrif] [lsqbb]The[rsqbb] disclosures 
for a variable-rate transaction must be given for the full term of the 
transaction and must be based on the terms in effect at the time of 
consummation. Creditors should base the disclosures only on the initial 
rate and should not assume that this rate will increase[rtrif], except 
as otherwise provided in Sec. Sec.  1026.18(s), 1026.37 and 
1026.38[ltrif]. For example, in a loan with an initial rate of 10 
percent and a 5 percentage points rate cap, creditors should base the 
disclosures on the initial rate and should not assume that this rate 
will increase 5 percentage points. However, in a variable-rate 
transaction with a seller buydown that is reflected in the credit 
contract, a consumer buydown, or a discounted or premium rate, 
disclosures should not be based solely on the initial terms. In those 
transactions, the disclosed annual percentage rate should be a 
composite rate based on the rate in effect during the initial period 
and the rate that is the basis of the variable-rate feature for the 
remainder of the term. See the commentary to Sec.  1026.17(c) for a 
discussion of buydown, discounted, and premium transactions and the 
commentary to Sec.  1026.19(a)(2) [rtrif], (e), and (f)[ltrif] for a 
discussion of the redisclosure in certain mortgage transactions with a 
variable-rate feature. [rtrif]See Sec. Sec.  1026.37(c) and 1026.38(c) 
for rules regarding disclosure of variable-rate transactions in the 
projected payments table for transactions subject to Sec.  1026.19(e) 
and (f).[ltrif]
* * * * *
    10. Discounted and premium variable-rate transactions. * * *
    i. When creditors use an initial interest rate that is not 
calculated using the index or formula for later rate adjustments, the 
disclosures should reflect a composite annual percentage rate based on 
the initial rate for as long as it is charged and, for the remainder of 
the term, the rate that would have been applied using the index or 
formula at the time of consummation. The rate at consummation need not 
be used if a contract provides for a delay in the implementation of 
changes in an index value. For example, if the contract specifies that 
rate changes are based on the index value in effect 45 days before the 
change date, creditors may use any index value in effect during the 45 
day period before consummation in calculating a composite annual 
percentage rate.
    ii. The effect of the multiple rates must also be reflected in the 
calculation and disclosure of the finance charge, total of payments, 
and [lsqbb]payment schedule[rsqbb] [rtrif]the disclosures required 
under Sec. Sec.  1026.18(g) and (s), 1026.37(c), and 1026.38(c), as 
applicable[ltrif].
* * * * *
    v. Examples of discounted variable-rate transactions include:
    A. A 30-year loan for $100,000 with no prepaid finance charges and 
rates determined by the Treasury bill rate plus two percent. Rate and 
payment adjustments are made annually. Although the Treasury bill rate 
at the time of consummation is 10 percent, the creditor sets the 
interest rate for one year at 9 percent, instead of 12 percent 
according to the formula. The disclosures should reflect a composite 
annual percentage rate of 11.63 percent based on 9 percent for one year 
and 12 percent for 29 years. Reflecting those two rate levels, the 
payment schedule [rtrif]disclosed pursuant to Sec.  1026.18(g)[ltrif] 
should show 12 payments of $804.62 and 348 payments of $1,025.31. 
[rtrif]Similarly, the disclosures required by Sec. Sec.  1026.18(s), 
1026.37(c), and 1026.38(c) should reflect the effect of this 
calculation.[ltrif] The finance charge should be $266,463.32 
and[rtrif], for transactions subject to Sec.  1026.18,[ltrif] the total 
of payments $366,463.32.
    B. Same loan as above, except with a two-percent rate cap on 
periodic adjustments. The disclosures should reflect a composite annual 
percentage rate of 11.53 percent based on 9 percent for the first year, 
11 percent for the second year, and 12 percent for the remaining 28 
years. Reflecting those three rate levels, the payment schedule 
[rtrif]disclosed pursuant to Sec.  1026.18(g)[ltrif] should show 12 
payments of $804.62, 12 payments of $950.09, and 336 payments of 
$1,024.34. [rtrif]Similarly, the disclosures required by Sec. Sec.  
1026.18(s), 1026.37(c), and 1026.38(c) should reflect the effect of 
this calculation.[ltrif] The finance charge should be $265,234.76 
and[rtrif], for transactions subject to Sec.  1026.18,[ltrif] the total 
of payments $365,234.76.
    C. Same loan as above, except with a 7\1/2\ percent cap on payment 
adjustments. The disclosures should reflect a composite annual 
percentage rate of 11.64 percent, based on 9 percent for one year and 
12 percent for 29 years. Because of the payment cap, five levels of 
payments should be reflected. The payment schedule [rtrif]disclosed 
pursuant to Sec.  1026.18(g)[ltrif] should show 12 payments of $804.62, 
12 payments of $864.97, 12 payments of $929.84, 12 payments of $999.58, 
and 312 payments of $1,070.04. [rtrif]Similarly, the disclosures 
required by Sec. Sec.  1026.18(s), 1026.37(c), and 1026.38(c) should 
reflect the effect of this calculation.[ltrif] The finance charge 
should be $277,040.60, and[rtrif], for transactions subject to Sec.  
1026.18,[ltrif] the total of payments $377,040.60.
* * * * *
    11. Examples of variable-rate transactions. Variable-rate 
transactions include:
* * * * *
    v. ``Price level adjusted mortgages'' or other indexed mortgages 
that have a fixed rate of interest but provide for periodic adjustments 
to payments and the loan balance to reflect changes in an index 
measuring prices or inflation. Disclosures are to be based on the fixed 
interest rate[rtrif], except as otherwise provided in Sec. Sec.  
1026.18(s), 1026.37, and 1026.38, as applicable[ltrif].
    12. Graduated payment adjustable rate mortgages. These mortgages 
involve both a variable interest rate and scheduled variations in 
payment amounts during the loan term. For example, under these plans, a 
series of graduated payments may be scheduled before rate adjustments 
affect payment amounts, or the initial scheduled payment may remain 
constant for a set period before rate adjustments affect the payment 
amount. In any case, the initial payment amount may be insufficient to 
cover the scheduled interest, causing negative amortization from the 
outset of the transaction. In these transactions, [rtrif]except as 
otherwise provided in

[[Page 51413]]

Sec. Sec.  1026.18(s), 1026.37(c), and 1026.38(c)[ltrif], the 
disclosures should treat these features as follows:
* * * * *
    iv. The [lsqbb]schedule of payments discloses[rsqbb] 
[rtrif]disclosures required by Sec.  1026.18(g) and (s) reflect[ltrif] 
the amount of any scheduled initial payments followed by an adjusted 
level of payments based on the initial interest rate. Since some 
mortgage plans contain limits on the amount of the payment adjustment, 
the [lsqbb]payment schedule[rsqbb] [rtrif]disclosures required by Sec.  
1026.18(g) and (s)[ltrif] may require several different levels of 
payments, even with the assumption that the original interest rate does 
not increase. [rtrif]For transactions subject to Sec.  1026.19(e) and 
(f), see Sec.  1026.37(c) and its commentary for a discussion of 
different rules for graduated payment adjustable rate mortgages.[ltrif]
* * * * *
    [rtrif]19. Rebates and loan premiums. In a loan transaction, the 
creditor may offer a premium in the form of cash or merchandise to 
prospective borrowers. Similarly, in a credit sale transaction, a 
seller's or manufacturer's rebate may be offered to prospective 
purchasers of the creditor's goods or services. Such premiums and 
rebates must be reflected in accordance with the terms of the legal 
obligation between the consumer and the creditor. Thus, if the creditor 
is legally obligated to provide the premium or rebate to the consumer 
as part of the credit transaction, the disclosures should reflect its 
value in the manner and at the time the creditor is obligated to 
provide it.[ltrif]
    Paragraph 17(c)(2)(i).
    1. Basis for estimates. [rtrif]Except as otherwise provided in 
Sec. Sec.  1026.19, 1026.37, and 1026.38, disclosures[ltrif] 
[lsqbb]Disclosures[rsqbb] may be estimated when the exact information 
is unknown at the time disclosures are made. Information is unknown if 
it is not reasonably available to the creditor at the time the 
disclosures are made. The ``reasonably available'' standard requires 
that the creditor, acting in good faith, exercise due diligence in 
obtaining information. For example, the creditor must at a minimum 
utilize generally accepted calculation tools, but need not invest in 
the most sophisticated computer program to make a particular type of 
calculation. The creditor normally may rely on the representations of 
other parties in obtaining information. For example, the creditor might 
look to the consumer for the time of consummation, to insurance 
companies for the cost of insurance, or to realtors for taxes and 
escrow fees. The creditor may utilize estimates in making disclosures 
even though the creditor knows that more precise information will be 
available by the point of consummation. However, new disclosures may be 
required under Sec.  1026.17(f) or Sec.  1026.19. [rtrif]For purposes 
of Sec.  1026.17(c)(2)(i), creditors must provide the actual amounts of 
the information required to be disclosed pursuant to Sec.  1026.19(e) 
and (f), subject to the estimation and redisclosure rules in those 
provisions.[ltrif]
    2. Labeling estimates. Estimates must be designated as such in the 
segregated disclosures. [rtrif]For the disclosures required by Sec.  
1026.19(e), use of the Loan Estimate form H-24 in appendix H to this 
part, pursuant to Sec.  1026.37(o), satisfies the requirement that the 
disclosure state clearly that the disclosure is an estimate. For all 
other disclosures, even though they[ltrif] [lsqbb]Even though other 
disclosures[rsqbb] are based on the same assumption on which a specific 
estimated disclosure was based, the creditor has [lsqbb]some[rsqbb] 
flexibility in labeling the estimates. Generally, only the particular 
disclosure for which the exact information is unknown is labeled as an 
estimate. However, when several disclosures are affected because of the 
unknown information, the creditor has the option of labeling either 
every affected disclosure or only the disclosure primarily affected. 
For example, when the finance charge is unknown because the date of 
consummation is unknown, the creditor must label the finance charge as 
an estimate and may also label as estimates the total of payments and 
the payment schedule. When many disclosures are estimates, the creditor 
may use a general statement, such as ``all numerical disclosures except 
the late payment disclosure are estimates,'' as a method to label those 
disclosures as estimates.
    3. Simple-interest transactions. If consumers do not make timely 
payments in a simple-interest transaction, some of the amounts 
calculated for Truth in Lending disclosures will differ from amounts 
that consumers will actually pay over the term of the transaction. 
Creditors may label disclosures as estimates in these 
transactions[rtrif], except as otherwise provided by Sec.  
1026.19[ltrif]. For example, because the finance charge and total of 
payments may be larger than disclosed if consumers make late payments, 
creditors may label the finance charge and total of payments as 
estimates. On the other hand, creditors may choose not to label 
disclosures as estimates[rtrif]. In all cases, creditors[ltrif] 
[lsqbb]and may[rsqbb] [rtrif]comply with Sec.  1026.17(c)(2)(i) by 
basing[ltrif] [lsqbb]base all[rsqbb] disclosures on the assumption that 
payments will be made on time [rtrif]and in the amounts required by the 
terms of the legal obligation[ltrif], disregarding any possible 
[lsqbb]inaccuracies[rsqbb] [rtrif]differences[ltrif] resulting from 
consumers' payment patterns.
    Paragraph 17(c)(2)(ii).
    1. Per-diem interest. Section 1026.17(c)(2)(ii) applies to any 
numerical amount (such as the finance charge, annual percentage rate, 
or payment amount) that is affected by the amount of the per-diem 
interest charge that will be collected at consummation. If the amount 
of per-diem interest used in preparing the disclosures for consummation 
is based on the information known to the creditor at the time the 
disclosure document is prepared, the disclosures are considered 
accurate under this rule, and affected disclosures are also considered 
accurate, even if the disclosures are not labeled as estimates. For 
example, if the amount of per-diem interest used to prepare disclosures 
is less than the amount of per-diem interest charged at consummation, 
and as a result the finance charge is understated by $200, the 
disclosed finance charge is considered accurate even though the 
understatement is not within the $100 tolerance of Sec.  1026.18(d)(1), 
and the finance charge was not labeled as an estimate. In this example, 
if in addition to the understatement related to the per-diem interest, 
a $90 fee is incorrectly omitted from the finance charge, causing it to 
be understated by a total of $290, the finance charge is considered 
accurate because the $90 fee is within the tolerance in Sec.  
1026.18(d)(1). [rtrif]For purposes of transactions subject to Sec.  
1026.19(e) and (f), the creditor shall disclosure the actual amount of 
per diem interest that will be collected at consummation, subject only 
to the disclosure rules in those sections.[ltrif]
* * * * *
    Paragraph 17(c)(4).
    1. Payment schedule irregularities. When one or more payments in a 
transaction differ from the others because of a long or short first 
period, the variations may be ignored in disclosing the payment 
schedule [rtrif] pursuant to Sec.  1026.18(g) or the disclosures 
required pursuant to Sec. Sec.  1026.18(s), 1026.37(c), or 
1026.38(c)[ltrif], finance charge, annual percentage rate, and other 
terms. For example:
* * * * *
    Paragraph 17(c)(5).
* * * * *
    2. Future event as maturity date. An obligation whose maturity date 
is

[[Page 51414]]

determined solely by a future event, as for example, a loan payable 
only on the sale of property, is not a demand obligation. Because no 
demand feature is contained in the obligation, demand disclosures under 
Sec.  1026.18(i) are inapplicable [rtrif]and demand disclosures under 
Sec.  1026.38(l)(2) are answered in the negative[ltrif]. The 
disclosures should be based on the creditor's estimate of the time at 
which the specified event will occur and [rtrif], except as otherwise 
provided in Sec.  1026.19(e) and (f),[ltrif] may indicate the basis for 
the creditor's estimate, as noted in the commentary to Sec.  
1026.17(a).
    3. Demand after stated period. Most demand transactions contain a 
demand feature that may be exercised at any point during the term, but 
certain transactions convert to demand status only after a fixed 
period. [lsqbb]For example, in States prohibiting due-on-sale clauses, 
the Federal National Mortgage Association (FNMA) requires mortgages 
that it purchases to include a call option rider that may be exercised 
after 7 years. These mortgages are generally written as long-term 
obligations, but contain a demand feature that may be exercised only 
within a 30-day period at 7 years.[rsqbb] The disclosures for 
[lsqbb]these transactions[rsqbb] [rtrif]a transaction that converts to 
demand status after a fixed period[ltrif] should be based upon the 
legally agreed-upon maturity date. Thus, [rtrif]for example,[ltrif] if 
a mortgage containing [lsqbb]the 7-year FNMA call option[rsqbb] 
[rtrif]a call option that the creditor may exercise during the first 30 
days of the eighth year after loan origination[ltrif] is written as a 
20-year obligation, the disclosures should be based on the 20-year 
term, with the demand feature disclosed under Sec.  1026.18(i)[rtrif]or 
Sec.  1026.38(l)(2), as applicable[ltrif].
    4. Balloon mortgages. Balloon payment mortgages, with payments 
based on a long-term amortization schedule and a large final payment 
due after a shorter term, are not demand obligations unless a demand 
feature is specifically contained in the contract. For example, a 
mortgage with a term of five years and a payment schedule based on 20 
years would not be treated as a mortgage with a demand feature, in the 
absence of any contractual demand provisions. In this type of mortgage, 
disclosures should be based on the five-year term. [rtrif]See 
Sec. Sec.  1026.37(c) and 1026.38(c) and their commentary for projected 
payment disclosures for balloon payment mortgages.[ltrif]
* * * * *
    17(d) Multiple creditors; multiple consumers.
* * * * *
    2. Multiple consumers. When two consumers are joint obligors with 
primary liability on an obligation, the disclosures may be given to 
either one of them. If one consumer is merely a surety or guarantor, 
the disclosures must be given to the principal debtor. In rescindable 
transactions, however, separate disclosures must be given to each 
consumer who has the right to rescind under Sec.  1026.23, although the 
disclosures required under Sec.  1026.19(b) need only be provided to 
the consumer who expresses an interest in a variable-rate loan program. 
[rtrif]In addition, the early disclosures required by Sec.  1026.19(a), 
(e), or (g), as applicable, may be provided to any consumer with 
primary liability on the obligation. Material disclosures, as defined 
in Sec.  1026.23(a)(3)(ii), under Sec.  1026.23(a) and the notice of 
the right to rescind required by Sec.  1026.23(b), however, must be 
given before consummation to each consumer who has the right to 
rescind, even if such consumer is not an obligor. See Sec. Sec.  
1026.2(a)(11), 1026.17(b), 1026.19(a), 1026.19(f), and 
1026.23(b).[ltrif]
    17(e) Effect of subsequent events.
    1. Events causing inaccuracies. [rtrif]Subject to Sec.  1026.19(e) 
and (f), inaccuracies[ltrif] [lsqbb]Inaccuracies[rsqbb] in disclosures 
are not violations if attributable to events occurring after the 
disclosures are made. For example, when the consumer fails to fulfill a 
prior commitment to keep the collateral insured and the creditor then 
provides the coverage and charges the consumer for it, such a change 
does not make the original disclosures inaccurate. The creditor may, 
however, be required to make new disclosures under Sec.  1026.17(f) or 
Sec.  1026.19 if the events occurred between disclosure and 
consummation or under Sec.  1026.20 if the events occurred after 
consummation. [rtrif]For rules regarding permissible changes to the 
information required to be disclosed by Sec.  1026.19(e) and (f), see 
Sec.  1026.19(e)(3) and (f)(4) and their commentary.[ltrif]
    17(f) Early disclosures.
    1. Change in rate or other terms. Redisclosure is required for 
changes that occur between the time disclosures are made and 
consummation if the annual percentage rate in the consummated 
transaction exceeds the limits prescribed in [lsqbb]this 
section,[rsqbb] [rtrif]Sec.  1026.17(f)[ltrif] even if the 
[lsqbb]initial[rsqbb] [rtrif]prior[ltrif] disclosures would be 
considered accurate under the tolerances in Sec.  1026.18(d) or 
1026.22(a). To illustrate:
    i. [lsqbb]General.[rsqbb] [rtrif]Transactions not secured by real 
property.[ltrif] A. [rtrif]For transactions not secured by real 
property, if[ltrif] [lsqbb]If[rsqbb] disclosures are made in a regular 
transaction on July 1, the transaction is consummated on July 15, and 
the actual annual percentage rate varies by more than \1/8\ of 1 
percentage point from the disclosed annual percentage rate, the 
creditor must either redisclose the changed terms or furnish a complete 
set of new disclosures before consummation. Redisclosure is required 
even if the disclosures made on July 1 are based on estimates and 
marked as such.
    B. In a regular transaction [rtrif]not secured by real property 
[ltrif], if early disclosures are marked as estimates and the disclosed 
annual percentage rate is within \1/8\ of 1 percentage point of the 
rate at consummation, the creditor need not redisclose the changed 
terms (including the annual percentage rate).
    [lsqbb]ii. Nonmortgage loan.[rsqbb] [rtrif]C.[ltrif] If disclosures 
[rtrif]for transactions not secured by real property[ltrif] are made on 
July 1, the transaction is consummated on July 15, and the finance 
charge increased by $35 but the disclosed annual percentage rate is 
within the permitted tolerance, the creditor must at least redisclose 
the changed terms that were not marked as estimates. See Sec.  
1026.18(d)(2) of this part.
    [lsqbb]iii.[rsqbb] [rtrif]ii. Reverse 
mortgages.[ltrif][lsqbb]Mortgage loan[rsqbb]. [lsqbb]At[rsqbb] 
[rtrif]In a transaction subject to Sec.  1026.19(a) and not Sec.  
1026.19(e) and (f), at[ltrif] the time [lsqbb]TILA disclosures[rsqbb] 
[rtrif]the disclosures required by Sec.  1026.19(a)[ltrif] are prepared 
in July, the loan closing is scheduled for July 31 and the creditor 
does not plan to collect per-diem interest at consummation. 
Consummation actually occurs on August 5, and per-diem interest for the 
remainder of August is collected as a prepaid finance charge. 
[lsqbb]Assuming there were no other changes requiring redisclosure, 
the[rsqbb] [rtrif]The[ltrif] creditor may rely on the disclosures 
prepared in July that were accurate when they were prepared. However, 
if the creditor prepares new disclosures in August that will be 
provided at consummation, the new disclosures must take into account 
the amount of the per-diem interest known to the creditor at that time.
    [rtrif]iii. Mortgages other than reverse mortgages and mortgage 
loans not secured by real property. For transactions secured by real 
property other than reverse mortgages, at the time the disclosures 
required by Sec.  1026.19(e) are prepared in July, the loan closing is 
scheduled for July 31 and the creditor does not plan to collect per-
diem interest at consummation. Consummation actually occurs on August 
5, and per-diem interest for the remainder of August is collected as a

[[Page 51415]]

prepaid finance charge. The creditor must make the disclosures required 
by Sec.  1026.19(f) three days before consummation, and the disclosures 
required by Sec.  1026.19(f) must take into account the amount of per-
diem interest that will be collected at consummation.[ltrif]
    2. Variable rate. The addition of a variable rate feature to the 
credit terms, after early disclosures are given, requires new 
disclosures. [rtrif]See Sec.  1026.19(e) and (f) to determine when new 
disclosures are required for transactions secured by real 
property.[ltrif]
    3. Content of new disclosures. [rtrif]Except as provided by Sec.  
1026.19(e) and (f), if[ltrif][lsqbb]If[rsqbb] redisclosure is required, 
the creditor has the option of either providing a complete set of new 
disclosures, or providing disclosures of only the terms that vary from 
those originally disclosed. See the commentary to Sec.  1026.19(a)(2).
    4. Special rules. In mortgage transactions subject to Sec.  1026.19 
[rtrif](a)[ltrif], the creditor must redisclose if, between the 
delivery of the required early disclosures and consummation, the annual 
percentage rate changes by more than a stated tolerance. When 
subsequent events occur after consummation, new disclosures are 
required only if there is a refinancing or an assumption within the 
meaning of Sec.  1026.20.
* * * * *
    17(g) Mail or telephone orders--delay in disclosures.
    1. Conditions for use. [rtrif]Except for extensions of credit 
subject to Sec.  1026.19(a) or (e), (f), and (g), when[ltrif] 
[lsqbb]When[rsqbb] the creditor receives a mail or telephone request 
for credit, the creditor may delay making the disclosures until the 
first payment is due if the following conditions are met:
* * * * *
    17(h) Series of sales--delay in disclosures.
    1. Applicability. [rtrif]Except for extensions of credit covered by 
Sec.  1026.19(a) or (e), (f), and (g), the [ltrif] [The] creditor may 
delay the disclosures for individual credit sales in a series of such 
sales until the first payment is due on the current sale, assuming the 
two conditions in this paragraph are met. If those conditions are not 
met, the general timing rules in Sec.  1026.17(b) apply.
* * * * *

Section 1026.18--Content of Disclosures

* * * * *
    [rtrif]3. Scope of coverage.
    i. Section 1026.18 applies to closed-end consumer credit 
transactions, other than transactions that are subject to Sec.  
1026.19(e) and (f). Section 1026.19(e) and (f) applies to closed-end 
consumer credit transactions that are secured by real property, other 
than reverse mortgages subject to Sec.  1026.33. Accordingly, the 
disclosures required by Sec.  1026.18 apply only to closed-end consumer 
credit transactions that are:
    A. Unsecured;
    B. Secured by personal property that is not a dwelling;
    C. Secured by personal property that is a dwelling and is not also 
secured by real property; or
    D. Reverse mortgages subject to Sec.  1026.33.
    ii. Of the foregoing transactions that are subject to Sec.  
1026.18, the creditor discloses a payment schedule pursuant to Sec.  
1026.18(g) for those described in paragraphs i.A and i.B of this 
comment. For transactions described in paragraphs i.C and i.D of this 
comment, the creditor discloses an interest rate and payment summary 
table pursuant to Sec.  1026.18(s). See also comments 18(g)-6 and 
18(s)-4 for additional guidance on the applicability to different 
transaction types of Sec. Sec.  1026.18(g) or (s) and 1026.19(e) and 
(f).
    iii. Because Sec.  1026.18 does not apply to transactions secured 
by real property, other than reverse mortgages, references in the 
section and its commentary to ``mortgages'' refer only to transactions 
described in paragraphs i.C and i.D of this comment, as 
applicable.[ltrif]
* * * * *
    18(b) Amount financed.
* * * * *
    [lsqbb]2. Rebates and loan premiums. In a loan transaction, the 
creditor may offer a premium in the form of cash or merchandise to 
prospective borrowers. Similarly, in a credit sale transaction, a 
seller's or manufacturer's rebate may be offered to prospective 
purchasers of the creditor's goods or services. At the creditor's 
option, these amounts may be either reflected in the Truth in Lending 
disclosures or disregarded in the disclosures. If the creditor chooses 
to reflect them in the Sec.  1026.18 disclosures, rather than disregard 
them, they may be taken into account in any manner as part of those 
disclosures.[rsqbb]
* * * * *
    Paragraph 18(b)(2).
    1. Adding other amounts. Fees or other charges that are not part of 
the finance charge and that are financed rather than paid separately at 
consummation of the transaction are included in the amount financed. 
Typical examples are [lsqbb]real estate settlement charges and premiums 
for voluntary credit life and disability insurance[rsqbb] 
[rtrif]government recording fees for deeds and premiums for insurance 
against loss of or damage to property[ltrif] excluded from the finance 
charge under Sec.  1026.4. This paragraph does not include any amounts 
already accounted for under Sec.  1026.18(b)(1), such as taxes, tag and 
title fees, or the costs of accessories or service policies that the 
creditor includes in the cash price.
* * * * *
    18(c) Itemization of amount financed.
* * * * *
    4. RESPA transactions. The Real Estate Settlement Procedures Act 
(RESPA) requires creditors to provide a good faith estimate of closing 
costs and a settlement statement listing the amounts paid by the 
consumer. [rtrif]Reverse mortgages[ltrif] [lsqbb]Transactions[rsqbb] 
subject to RESPA [rtrif]and Sec.  1026.18[ltrif] are exempt from the 
requirements of Sec.  1026.18(c) if the creditor complies with RESPA's 
requirements for a good faith estimate and settlement statement. The 
itemization of the amount financed need not be given, even though the 
content and timing of the good faith estimate and settlement statement 
under RESPA differ from the requirements of Sec. Sec.  1026.18(c) and 
1026.19(a)(2). If a creditor chooses to substitute RESPA's settlement 
statement for the itemization when redisclosure is required under Sec.  
1026.19(a)(2), the statement must be delivered to the consumer at or 
prior to consummation. The disclosures required by Sec. Sec.  
1026.18(c) and 1026.19(a)(2) may appear on the same page or on the same 
document as the good faith estimate or the settlement statement, so 
long as the requirements of Sec.  1026.17(a) are met.
* * * * *
    Paragraph 18(c)(1)(iv).
* * * * *
    2. Prepaid mortgage insurance premiums. [rtrif]Regulation X 
under[ltrif] RESPA[rtrif], 12 CFR 1024.8,[ltrif] requires creditors to 
give consumers a settlement statement disclosing the costs associated 
with [rtrif]reverse[ltrif] mortgage loan transactions. Included on the 
settlement statement are mortgage insurance premiums collected at 
settlement, which are prepaid finance charges. In calculating the total 
amount of prepaid finance charges, creditors should use the amount for 
mortgage insurance listed on the line for mortgage insurance on the 
settlement statement (line 1003 on HUD-1 or HUD 1-A), without 
adjustment, even if the actual amount collected at settlement may vary 
because of RESPA's escrow accounting rules. Figures for mortgage 
insurance disclosed in conformance with RESPA

[[Page 51416]]

shall be deemed to be accurate for purposes of Regulation Z.
* * * * *
    18(f) Variable rate.
* * * * *
    Paragraph 18(f)(1)(iv).
* * * * *
    2. Hypothetical example not required. The creditor need not provide 
a hypothetical example in the following transactions with a variable-
rate feature:
    i. Demand obligations with no alternate maturity date.
    ii. Private education loans as defined in Sec.  1026.46(b)(5).
    [lsqbb]iii. Multiple-advance construction loans disclosed pursuant 
to Appendix D, Part I.[rsqbb]
* * * * *
    18(g) Payment schedule.
* * * * *
    4. Timing of payments.
    i. General rule. * * *
    ii. Exception. In a limited number of circumstances, the beginning-
payment date is unknown and difficult to determine at the time 
disclosures are made. For example, a consumer may become obligated on a 
credit contract that contemplates the delayed disbursement of funds 
based on a contingent event, such as the completion of [home] repairs. 
Disclosures may also accompany loan checks that are sent by mail, in 
which case the initial disbursement and repayment dates are solely 
within the consumer's control. In such cases, if the beginning-payment 
date is unknown the creditor may use an estimated date and label the 
disclosure as an estimate pursuant to Sec.  1026.17(c). Alternatively, 
the disclosure may refer to the occurrence of a particular event, for 
example, by disclosing that the beginning payment is due ``30 days 
after the first loan disbursement.'' This information also may be 
included with an estimated date to explain the basis for the creditor's 
estimate. See comment 17(a)(1)-5.iii.
    5. [rtrif][lsqbb]Reserved[rsqbb][ltrif][lsqbb]Mortgage insurance. 
The payment schedule should reflect the consumer's mortgage insurance 
payments until the date on which the creditor must automatically 
terminate coverage under applicable law, even though the consumer may 
have a right to request that the insurance be cancelled earlier. The 
payment schedule must reflect the legal obligation, as determined by 
applicable State or other law. For example, assume that under 
applicable law, mortgage insurance must terminate after the 130th 
scheduled monthly payment, and the creditor collects at closing and 
places in escrow two months of premiums. If, under the legal 
obligation, the creditor will include mortgage insurance premiums in 
130 payments and refund the escrowed payments when the insurance is 
terminated, the payment schedule should reflect 130 premium payments. 
If, under the legal obligation, the creditor will apply the amount 
escrowed to the two final insurance payments, the payment schedule 
should reflect 128 monthly premium payments. (For assumptions in 
calculating a payment schedule that includes mortgage insurance that 
must be automatically terminated, see comments 17(c)(1)-8 and 17(c)(1)-
10.)[rsqbb]
    6. Mortgage transactions. Section 1026.18(g) applies 
[lsqbb]only[rsqbb] to closed-end transactions, other than transactions 
that are subject to Sec.  1026.18(s)[rtrif]or Sec.  1026.19(e) and 
(f)[ltrif]. Section 1026.18(s) applies to closed-end transactions 
secured by real property or a dwelling[rtrif], unless they are subject 
to Sec.  1026.19(e) and (f). Section 1026.19(e) and (f) applies to 
closed-end transactions secured by real property, other than reverse 
mortgages[ltrif]. Thus, if a closed-end consumer credit transaction is 
secured by real property or a dwelling [rtrif]and the transaction is a 
reverse mortgage or the dwelling is personal property[ltrif], the 
creditor discloses an interest rate and payment summary table in 
accordance with Sec.  1026.18(s) [lsqbb]and does not observe[rsqbb]. 
[rtrif]See comment 18(s)-4. If a closed-end consumer credit transaction 
is secured by real property and is not a reverse mortgage, the creditor 
discloses a projected payments table in accordance with Sec. Sec.  
1026.37(c) and 1026.38(c), as required by Sec.  1026.19(e) and (f). In 
all such cases, the creditor is not subject to[ltrif] the requirements 
of Sec.  1026.18(g). On the other hand, if a closed-end consumer credit 
transaction is not secured by real property or a dwelling [rtrif](for 
example, if it is unsecured or secured by an automobile)[ltrif], the 
creditor discloses a payment schedule in accordance with Sec.  
1026.18(g) and [lsqbb]does not observe[rsqbb] [rtrif]is not subject 
to[ltrif] the requirements of Sec.  1026.18(s) [rtrif]or Sec. Sec.  
1026.37(c) and 1026.38(c)[ltrif].
* * * * *
    Paragraph 18(g)(2).
    1. Abbreviated disclosure. The creditor may disclose an abbreviated 
payment schedule when the amount of each regularly scheduled payment 
(other than the first or last payment) includes an equal amount to be 
applied on principal and a finance charge computed by application of a 
rate to the decreasing unpaid balance. [lsqbb]This option is also 
available when mortgage-guarantee insurance premiums, paid either 
monthly or annually, cause variations in the amount of the scheduled 
payments, reflecting the continual decrease or increase in the premium 
due.[rsqbb] In addition, in transactions where payments vary because 
interest and principal are paid at different intervals, the two series 
of payments may be disclosed separately and the abbreviated payment 
schedule may be used for the interest payments. For example, in 
transactions with fixed quarterly principal payments and monthly 
interest payments based on the outstanding principal balance, the 
amount of the interest payments will change quarterly as principal 
declines. In such cases the creditor may treat the interest and 
principal payments as two separate series of payments, separately 
disclosing the number, amount, and due dates of principal payments, 
and, using the abbreviated payment schedule, the number, amount, and 
due dates of interest payments. This option may be used when interest 
and principal are scheduled to be paid on the same date of the month as 
well as on different dates of the month. The creditor using this 
alternative must disclose the dollar amount of the highest and lowest 
payments and make reference to the variation in payments.
    2. Combined payment schedule disclosures. Creditors may combine the 
option in this paragraph with the general payment schedule requirements 
in transactions where only a portion of the payment schedule meets the 
conditions of Sec.  1026.18(g)(2). For example, in a 
[rtrif]transaction[ltrif] [lsqbb]graduated payment mortgage[rsqbb] 
where payments rise sharply for five years and then decline over the 
next 25 years [lsqbb]because of decreasing mortgage insurance 
premiums[rsqbb], the first five years would be disclosed under the 
general rule in Sec.  1026.18(g) and the next 25 years according to the 
abbreviated schedule in Sec.  1026.18(g)(2).
* * * * *
    18(k) Prepayment.
    1. Disclosure required. The creditor must give a definitive 
statement of whether or not a [rtrif]prepayment[ltrif] penalty will be 
imposed or a [rtrif]prepayment[ltrif] rebate will be given.
    i. The fact that no [rtrif]prepayment[ltrif] penalty will be 
imposed may not simply be inferred from the absence of a 
[rtrif]prepayment[ltrif] penalty disclosure; the creditor must indicate 
that prepayment will not result in a [rtrif]prepayment[ltrif] penalty.
    ii. If a [rtrif]prepayment[ltrif] penalty or 
[rtrif]prepayment[ltrif] refund is possible for one type of prepayment, 
even though not for all, a positive disclosure is

[[Page 51417]]

required. This applies to any type of prepayment, whether voluntary or 
involuntary as in the case of prepayments resulting from acceleration.
    iii. Any difference in [rtrif]prepayment[ltrif] rebate or 
[rtrif]prepayment[ltrif] penalty policy, depending on whether 
prepayment is voluntary or not, must not be disclosed with the 
segregated disclosures.
    2. Rebate-penalty disclosure. A single transaction may involve both 
a precomputed finance charge and a finance charge computed by 
application of a rate to the unpaid balance (for example, mortgages 
with mortgage-guarantee insurance). In these cases, disclosures about 
both prepayment rebates and [rtrif]prepayment[ltrif] penalties are 
required. Sample form H-15 in appendix H to this part illustrates a 
mortgage transaction in which both rebate and penalty disclosures are 
necessary.
    3. Prepaid finance charge. The existence of a prepaid finance 
charge in a transaction does not, by itself, require a disclosure under 
Sec.  1026.18(k). A prepaid finance charge is not considered a 
[rtrif]prepayment[ltrif] penalty under Sec.  1026.18(k)(1), nor does it 
require a disclosure under Sec.  1026.18(k)(2). At its option, however, 
a creditor may consider a prepaid finance charge to be under Sec.  
1026.18(k)(2). If a disclosure is made under Sec.  1026.18(k)(2) with 
respect to a prepaid finance charge or other finance charge, the 
creditor may further identify that finance charge. For example, the 
disclosure may state that the borrower ``will not be entitled to a 
refund of the prepaid finance charge'' or some other term that 
describes the finance charge.
    Paragraph 18(k)(1).[rtrif]
    1. Examples of prepayment penalties. For purposes of Sec.  
1026.18(k)(1), the following are examples of prepayment penalties:
    i. A charge determined by treating the loan balance as outstanding 
for a period of time after prepayment in full and applying the interest 
rate to such ``balance,'' even if the charge results from interest 
accrual amortization used for other payments in the transaction under 
the terms of the loan contract. ``Interest accrual amortization'' 
refers to the method by which the amount of interest due for each 
period (e.g., month) in a transaction's term is determined. For 
example, ``monthly interest accrual amortization'' treats each payment 
as made on the scheduled, monthly due date even if it is actually paid 
early or late (until the expiration of any grace period). Thus, under 
the terms of a loan contract providing for monthly interest accrual 
amortization, if the amount of interest due on May 1 for the preceding 
month of April is $3,000, the loan contract will require payment of 
$3,000 in interest for the month of April whether the payment is made 
on April 20, on May 1, or on May 10. In this example, if the consumer 
prepays the loan in full on April 20 and if the accrued interest as of 
that date is $2,000, then assessment of a charge of $3,000 constitutes 
a prepayment penalty of $1,000 because the amount of interest actually 
earned through April 20 is only $2,000.
    ii. A fee, such as an origination or other loan closing cost, that 
is waived by the creditor on the condition that the consumer does not 
prepay the loan.
    iii. A minimum finance charge in a simple interest transaction.
    2. Fees that are not prepayment penalties. For purposes of Sec.  
1026.18(k)(1), fees which are not prepayment penalties include, for 
example:
    i. Fees imposed for preparing and providing documents when a loan 
is paid in full, whether or not the loan is prepaid, such as a loan 
payoff statement, a reconveyance document, or another document 
releasing the creditor's security interest in the dwelling that secures 
the loan.
    ii. Loan guarantee fees.[ltrif]
    [lsqbb]1. Penalty. This applies only to those transactions in which 
the interest calculation takes account of all scheduled reductions in 
principal, as well as transactions in which interest calculations are 
made daily. The term penalty as used here encompasses only those 
charges that are assessed strictly because of the prepayment in full of 
a simple-interest obligation, as an addition to all other amounts. 
Items which are penalties include, for example:
    i. Interest charges for any period after prepayment in full is 
made. (See the commentary to Sec.  1026.17(a)(1) regarding disclosure 
of interest charges assessed for periods after prepayment in full as 
directly related information.)
    ii. A minimum finance charge in a simple-interest transaction. (See 
the commentary to Sec.  1026.17(a)(1) regarding the disclosure of a 
minimum finance charge as directly related information.) Items which 
are not penalties include, for example, loan guarantee fees.[rsqbb]
    Paragraph 18(k)(2).
    1. Rebate of finance charge. i. This applies to any finance charges 
that do not take account of each reduction in the principal balance of 
an obligation. This category includes, for example:
    A. Precomputed finance charges such as add-on charges. [rtrif]This 
includes computing a refund of unearned finance charge, such as 
precomputed interest, by a method that is less favorable to the 
consumer than the actuarial method, as defined by section 933(d) of the 
Housing and Community Development Act of 1992, 15 U.S.C. 1615(d). For 
purposes of computing a refund of unearned interest, if using the 
actuarial method defined by applicable State law results in a refund 
that is greater than the refund calculated by using the method 
described in section 933(d) of the Housing and Community Development 
Act of 1992, creditors should use the State law definition in 
determining if a refund is a prepayment penalty.[ltrif]
    B. Charges that take account of some but not all reductions in 
principal, such as mortgage guarantee insurance assessed on the basis 
of an annual declining balance, when the principal is reduced on a 
monthly basis.
    ii. No description of the method of computing earned or unearned 
finance charges is required or permitted as part of the segregated 
disclosures under this section.
* * * * *
    18(r) Required deposit.
* * * * *
    6. Examples of amounts excluded. The following are among the types 
of deposits that need not be treated as required deposits:
    i. Requirement that a borrower be a customer or a member even if 
that involves a fee or a minimum balance.
    ii. Required property insurance escrow on a mobile home 
transaction.
    iii. Refund of interest when the obligation is paid in full.
    iv. Deposits that are immediately available to the consumer.
    v. Funds deposited with the creditor to be disbursed (for example, 
for construction) before the loan proceeds are advanced.
    vi. [rtrif][lsqbb]Reserved[rsqbb][ltrif] [lsqbb]Escrow of 
condominium fees.[rsqbb]
    vii. Escrow of loan proceeds to be released when the repairs are 
completed.
    18(s) Interest rate and payment summary for mortgage transactions.
    1. In general. Section 1026.18(s) prescribes format and content for 
disclosure of interest rates and monthly (or other periodic) payments 
for [rtrif]reverse mortgages and certain transactions secured by 
dwellings that are personal property[ltrif] [lsqbb]mortgage 
loans[rsqbb]. The information in Sec.  1026.18(s)(2) through (4) is 
required to be in the form of a table, except as otherwise provided, 
with headings and format substantially similar to model clause H-4(E), 
H-4(F), H-4(G), or H-

[[Page 51418]]

4(H) in appendix H to this part. A disclosure that does not include the 
shading shown in a model clause but otherwise follows the model 
clause's headings and format is substantially similar to that model 
clause. Where Sec.  1026.18(s)(2) through (4) or the applicable model 
clause requires that a column or row of the table be labeled using the 
word ``monthly'' but the periodic payments are not due monthly, the 
creditor should use the appropriate term, such as ``bi-weekly'' or 
``quarterly.'' In all cases, the table should have no more than five 
vertical columns corresponding to applicable interest rates at various 
times during the loan's term; corresponding payments would be shown in 
horizontal rows. Certain loan types and terms are defined for purposes 
of Sec.  1026.18(s) in Sec.  1026.18(s)(7).
* * * * *
    [rtrif]4. Scope of coverage in relation to Sec.  1026.19(e) and 
(f). Section 1026.18(s) applies to transactions secured by a real 
property or a dwelling, other than transactions that are subject to 
Sec.  1026.19(e) and (f). Those provisions apply to closed-end 
transactions secured by real property, other than reverse mortgages. 
Accordingly, Sec.  1026.18(s) governs only closed-end reverse mortgages 
and closed-end transactions secured by a dwelling that is personal 
property (such as a mobile home that is not deemed real property under 
State or other applicable law).[ltrif]
* * * * *
    18(s)(3) Payments for amortizing loans.
* * * * *
    Paragraph 18(s)(3)(i)(C).
* * * * *
    2. Mortgage insurance [rtrif]or any functional equivalent[ltrif]. 
[rtrif]For purposes of Sec.  1026.18(s), ``mortgage insurance'' means 
insurance against the nonpayment of, or default on, an individual 
mortgage. ``Mortgage guarantees'' (such as a United States Department 
of Veterans Affairs or United States Department of Agriculture 
guarantee) provide coverage similar to mortgage insurance, even if not 
technically considered insurance under State or other applicable law. 
For purposes of Sec.  1026.18(s), ``mortgage insurance or any 
functional equivalent'' includes any mortgage guarantee.[ltrif] Payment 
amounts under Sec.  1026.18(s)(3)(i) should reflect the consumer's 
mortgage insurance payments [rtrif]or any functionally equivalent 
fee[ltrif] until the date on which the creditor must automatically 
terminate coverage under applicable law, even though the consumer may 
have a right to request that the insurance be cancelled earlier. The 
payment amount must reflect the terms of the legal obligation, as 
determined by applicable State or other law. For example, assume that 
under applicable law, mortgage insurance must terminate after the 130th 
scheduled monthly payment, and the creditor collects at closing and 
places in escrow two months of premiums. If, under the legal 
obligation, the creditor will include mortgage insurance premiums in 
130 payments and refund the escrowed payments when the insurance is 
terminated, payment amounts disclosed through the 130th payment should 
reflect premium payments. If, under the legal obligation, the creditor 
will apply the amount escrowed to the two final insurance payments, 
payments disclosed through the 128th payment should reflect premium 
payments. The escrow amount reflected on the disclosure should include 
mortgage insurance premiums even if they are not escrowed and even if 
there is no escrow account established for the transaction.
* * * * *

Section 1026.19--Certain Mortgage and Variable-Rate Transactions

    19(a)(1)(i) Time of disclosures.
    1. Coverage. This section requires early disclosure of credit terms 
in [rtrif]reverse[ltrif] mortgage transactions [rtrif]subject to Sec.  
1026.33[ltrif] that are secured by a consumer's dwelling [lsqbb](other 
than home equity lines of credit subject to Sec.  1026.40 or mortgage 
transactions secured by an interest in a timeshare plan)[rsqbb] that 
are also subject to the Real Estate Settlement Procedures Act (RESPA) 
and its implementing Regulation X. To be covered by Sec.  
1026.19[rtrif](a)[ltrif], a transaction must be a Federally related 
mortgage loan under RESPA. ``Federally related mortgage loan'' is 
defined under RESPA (12 U.S.C. 2602) and Regulation X (12 CFR 1024.2), 
and is subject to any interpretations by the Bureau.
* * * * *
    [lsqbb]19(a)(5) Timeshare plans.
    Paragraph 19(a)(5)(ii).
    1. Timing. A mortgage transaction secured by a consumer's interest 
in a ``timeshare plan,'' as defined in 11 U.S.C. 101(53D), that is also 
a Federally related mortgage loan under RESPA is subject to the 
requirements of Sec.  1026.19(a)(5) instead of the requirements of 
Sec.  1026.19(a)(1) through Sec.  1026.19(a)(4). See comment 
19(a)(1)(i)-1. Early disclosures for transactions subject to Sec.  
1026.19(a)(5) must be given (a) before consummation or (b) within three 
business days after the creditor receives the consumer's written 
application, whichever is earlier. The general definition of ``business 
day'' in Sec.  1026.2(a)(6)--a day on which the creditor's offices are 
open to the public for substantially all of its business functions--
applies for purposes of Sec.  1026.19(a)(5)(ii). See comment 2(a)(6)-1. 
These timing requirements are different from the timing requirements 
under Sec.  1026.19(a)(1)(i). Timeshare transactions covered by Sec.  
1026.19(a)(5) may be consummated any time after the disclosures 
required by Sec.  1026.19(a)(5)(ii) are provided.
    2. Use of estimates. If the creditor does not know the precise 
credit terms, the creditor must base the disclosures on the best 
information reasonably available and indicate that the disclosures are 
estimates under Sec.  1026.17(c)(2). If many of the disclosures are 
estimates, the creditor may include a statement to that effect (such as 
``all numerical disclosures except the late-payment disclosure are 
estimates'') instead of separately labeling each estimate. In the 
alternative, the creditor may label as an estimate only the items 
primarily affected by unknown information. (See the commentary to Sec.  
1026.17(c)(2).) The creditor may provide explanatory material 
concerning the estimates and the contingencies that may affect the 
actual terms, in accordance with the commentary to Sec.  1026.17(a)(1).
    3. Written application. For timeshare transactions, creditors may 
rely on comment 19(a)(1)(i)-3 in determining whether a ``written 
application'' has been received.
    4. Denied or withdrawn applications. For timeshare transactions, 
creditors may rely on comment 19(a)(1)(i)-4 in determining that 
disclosures are not required by Sec.  1026.19(a)(5)(ii) because the 
consumer's application will not or cannot be approved on the terms 
requested or the consumer has withdrawn the application.
    5. Itemization of amount financed. For timeshare transactions, 
creditors may rely on comment 19(a)(1)(i)-5 in determining whether 
providing the good faith estimates of settlement costs required by 
RESPA satisfies the requirement of Sec.  1026.18(c) to provide an 
itemization of the amount financed.
    Paragraph 19(a)(5)(iii).
* * * * *
    1. Consummation or settlement. For extensions of credit secured by 
a consumer's timeshare plan, when corrected disclosures are required, 
they must be given no later than ``consummation or settlement.''

[[Page 51419]]

``Consummation'' is defined in Sec.  1026.2(a). ``Settlement'' is 
defined in Regulation X (12 CFR 1024.2(b)) and is subject to any 
interpretations issued by the Bureau. In some cases, a creditor may 
delay redisclosure until settlement, which may be at a time later than 
consummation. If a creditor chooses to redisclose at settlement, 
disclosures may be based on the terms in effect at settlement, rather 
than at consummation. For example, in a variable-rate transaction, a 
creditor may choose to base disclosures on the terms in effect at 
settlement, despite the general rule in comment 17(c)(1)-8 that 
variable-rate disclosures should be based on the terms in effect at 
consummation.
    2. Content of new disclosures. Creditors may rely on comment 
19(a)(2)(ii)-2 in determining the content of corrected disclosures 
required under Sec.  1026.19(a)(5)(iii).[rsqbb]
* * * * *
    [rtrif]19(e) Mortgage loans secured by real property--Early 
disclosures.
    19(e)(1)(i) Creditor.
    1. Requirements. Section 1026.19(e)(1)(i) requires early disclosure 
of credit terms in closed-end credit transactions that are secured by 
real property, other than reverse mortgages. These disclosures must be 
provided in good faith. Except as otherwise provided in Sec.  
1026.19(e), a disclosure is in good faith if it is consistent with the 
best information reasonably available to the creditor at the time the 
disclosure is provided.
    19(e)(1)(ii) Mortgage broker.
    1. Requirements. A mortgage broker may provide the disclosures 
required under Sec.  1026.19(e)(1)(i) instead of the creditor. By 
assuming this responsibility, the mortgage broker becomes responsible 
for complying with all of the relevant requirements as if it were the 
creditor, meaning that ``mortgage broker'' should be read in the place 
of ``creditor'' for all the relevant provisions of Sec.  1026.19(e), 
except to the extent that such a reading would create responsibility 
for mortgage brokers under Sec.  1026.19(f). For example, comment 
19(e)(4)-2 states that creditors comply with the requirements of Sec.  
1026.19(e)(4) if the revised disclosures are reflected in the 
disclosures required by Sec.  1026.19(f)(1)(i). ``Mortgage broker'' 
could not be read in place of ``creditor'' in comment 19(e)(4)-2 
because the mortgage brokers are not responsible for the disclosures 
required by Sec.  1026.19(f)(1)(i).
    2. Broker responsibilities. If a mortgage broker issues any 
disclosure under Sec.  1026.19(e), the mortgage broker must comply with 
the requirements of Sec.  1026.19(e). For example, if the mortgage 
broker receives sufficient information to complete an application, the 
mortgage broker must issue the disclosures required under Sec.  
1026.19(e)(1)(i) within three business days in accordance with Sec.  
1026.19(e)(1)(iii). If the mortgage broker subsequently receives 
information sufficient to establish that a disclosure provided under 
Sec.  1026.19(e)(1)(i) must be reissued under Sec.  1026.19(e)(3)(iv), 
then the mortgage broker is responsible for ensuring that a revised 
disclosure is provided. If a mortgage broker issues any disclosure 
under Sec.  1026.19(e), the mortgage broker must also comply with the 
requirements of Sec.  1026.25. For example, if a mortgage broker issues 
the disclosure required under Sec.  1026.19(e)(1)(i), it must maintain 
records for three years, in compliance with Sec.  1026.25(c)(1)(i), and 
must maintain such records in an electronic, machine-readable format, 
in compliance with Sec.  1026.25(c)(1)(iii).
    3. Creditor responsibilities. If a mortgage broker issues any 
disclosure required under Sec.  1026.19(e) in the creditor's place, the 
creditor remains responsible under Sec.  1026.19(e) for ensuring that 
the requirements of Sec.  1026.19(e) have been satisfied. For example, 
the creditor must ensure that the broker provides the disclosures 
required under Sec.  1026.19(e) not later than three business days 
after the mortgage broker received information sufficient to constitute 
an application, as defined in Sec.  1026.2(a)(3)(ii). The creditor does 
not satisfy the requirements of Sec.  1026.19(e) if it provides 
duplicative disclosures. For example, a creditor does not meet its 
burden by issuing disclosures required under Sec.  1026.19(e) that 
mirror ones already issued by the broker for the purpose of 
demonstrating that the consumer received timely disclosures. If the 
broker provides an erroneous disclosure, the creditor is responsible 
and may not issue a revised disclosure correcting the error. The 
creditor is expected to maintain communication with the broker to 
ensure that the broker is acting in place of the creditor. Disclosures 
provided by a broker in accordance with Sec.  1026.19(e)(1)(ii) satisfy 
the creditor's obligation under Sec.  1026.19(e)(1)(i).
    4. Broker provision of preliminary written estimates specific to 
the consumer. Section 1026.19(e)(2)(ii) requires creditors to provide 
consumers with a disclosure indicating that the written estimate is not 
the Loan Estimate required by RESPA and TILA, if a creditor provides a 
consumer with certain written estimates of specific credit terms or 
costs. Section 1026.19(e)(1)(ii) states that, if a mortgage broker 
provides any disclosure required by Sec.  1026.19(e), the mortgage 
broker must comply with the requirements in Sec.  1026.19(e) related to 
such disclosure. Thus, Sec.  1026.19(e)(1)(ii) requires mortgage 
brokers to comply with Sec.  1026.19(e)(2)(ii) if a mortgage broker 
provides any disclosures under Sec.  1026.19(e). For example, if a 
mortgage broker never provides disclosures required by Sec.  
1026.19(e), the mortgage broker need not include the disclosure 
required by Sec.  1026.19(e)(2)(ii) on written information provided to 
consumers.
    19(e)(1)(iii) Timing.
    1. Timing and use of estimates. The disclosures required by Sec.  
1026.19(e)(1)(i) must be delivered not later than three business days 
after the creditor receives the consumer's application. For example, if 
an application is received on Monday, the creditor satisfies this 
requirement by either hand delivering the disclosures on or before 
Thursday, or placing them in the mail on or before Thursday, assuming 
each weekday is a business day. For purposes of Sec.  
1026.19(e)(1)(iii), the term ``business day'' means all calendar days 
except Sundays and legal public holidays referred to in Sec.  
1026.2(a)(6). See comment 2(a)(6)-2. If the creditor does not know the 
precise credit terms, the creditor must base the disclosures on the 
best information reasonably available.
    2. Waiting period. The seven-business-day waiting period begins 
when the creditor delivers the disclosures or places them in the mail, 
not when the consumer receives or is presumed to have received the 
disclosures. For example, if a creditor delivers the early disclosures 
to the consumer in person or places them in the mail on Monday, June 1, 
consummation may occur on or after Tuesday, June 9, the seventh 
business day following delivery or mailing of the early disclosures, 
because, for the purposes of Sec.  1026.19(e)(1)(iii), Saturday is a 
business day, pursuant to Sec.  1026.2(a)(6).
    3. Denied or withdrawn applications. The creditor may determine 
within the three-business-day period that the application will not or 
cannot be approved on the terms requested, such as when a consumer's 
credit score is lower than the minimum score required for the terms the 
consumer applied for, or the consumer applies for a type or amount of 
credit that the creditor does not offer. In that case, or if the 
consumer withdraws the application within the

[[Page 51420]]

three-business-day period, the creditor need not make the disclosures 
required under Sec.  1026.19(e)(1)(i). If the creditor fails to provide 
early disclosures and the transaction is later consummated on the terms 
originally applied for, then the creditor does not comply with Sec.  
1026.19(e)(1)(i). If, however, the consumer amends the application 
because of the creditor's unwillingness to approve it on the terms 
originally applied for, no violation occurs for not providing 
disclosures based on those original terms. But the amended application 
is a new application subject to Sec.  1026.19(e)(1)(i).
    19(e)(1)(iv) Delivery.
    1. Mail delivery. Section 1026.19(e)(1)(iv) provides that, if any 
disclosures required under Sec.  1026.19(e)(1)(i) are not provided to 
the consumer in person, the consumer is presumed to have received the 
disclosures three business days after they are mailed or delivered to 
the address specified by the consumer. This presumption may be rebutted 
by providing evidence that the consumer received the disclosures 
earlier than three business days. For example, if the creditor sends 
the disclosures via overnight mail on Monday, and the consumer signs 
for receipt of the overnight delivery on Tuesday, the creditor could 
demonstrate that the disclosures were received on Tuesday, thereby 
rebutting the presumption that the disclosures were received on 
Thursday, three business days after the disclosures were sent.
    2. Electronic delivery. The presumption established in Sec.  
1026.19(e)(1)(iv) applies to methods of electronic delivery, such as 
email. For example, if a creditor sends a disclosure required under 
Sec.  1026.19(e) via email on Monday, pursuant to Sec.  
1026.19(e)(1)(iv) the consumer is presumed to have received the 
disclosure on Thursday, three business days later. However, the 
creditor may rebut the presumption by providing evidence that the 
consumer received the emailed disclosures earlier. Creditors using 
electronic delivery methods, such as email, must also comply with Sec.  
1026.17(a)(1). For example, if a creditor delivers the disclosures 
required by Sec.  1026.19(e)(1)(i) to a consumer via email, but the 
creditor did not obtain the consumer's consent to receive disclosures 
via email prior to delivering the disclosures, then the creditor does 
not comply with Sec.  1026.17(a)(1), and the creditor does not comply 
with Sec.  1026.19(e)(1)(i), assuming the disclosures were not provided 
in a different manner in accordance with the timing requirements of 
Sec.  1026.19(e)(1)(iii).
    19(e)(1)(v) Consumer's waiver of waiting period before 
consummation.
    1. Modification or waiver. A consumer may modify or waive the right 
to the seven-business-day waiting period required by Sec.  
1026.19(e)(1)(iii) only after the creditor makes the disclosures 
required by Sec.  1026.19(e)(1)(i). The consumer must have a bona fide 
personal financial emergency that necessitates consummating the credit 
transaction before the end of the waiting period. Whether these 
conditions are met is determined by the facts surrounding individual 
situations. The imminent sale of the consumer's home at foreclosure, 
where the foreclosure sale will proceed unless loan proceeds are made 
available to the consumer during the waiting period, is one example of 
a bona fide personal financial emergency. Each consumer who is 
primarily liable on the legal obligation must sign the written 
statement for the waiver to be effective.
    2. Examples of waivers within the seven-business-day waiting 
period. If the early disclosures are delivered to the consumer in 
person on Monday, June 1, the seven-business-day waiting period ends on 
Tuesday, June 9. If on Monday, June 1, the consumer executes a waiver 
of the seven-business-day waiting period, the final disclosures 
required by Sec.  1026.19(f)(1)(i) could then be delivered three days 
before consummation, as required by Sec.  1026.19(f)(1)(ii), on 
Tuesday, June 2, and the loan can be consummated on Friday, June 5.
    19(e)(1)(vi) Shopping for settlement service providers.
    1. Permission to shop. Section 1026.19(e)(1)(vi)(A) states that the 
creditor may impose reasonable minimum requirements regarding the 
qualifications of the provider. For example, the creditor may require 
that a settlement agent chosen by the consumer must be appropriately 
licensed in the relevant jurisdiction. Similarly, the creditor may 
require that the homeowner's insurance carrier chosen by the consumer 
have a minimum rating by an independent insurance rating service. In 
contrast, a creditor does not permit a consumer to shop for purposes of 
Sec.  1026.19(e)(1)(vi) if the creditor requires the consumer to choose 
a provider from a list provided by creditor. The requirements of Sec.  
1026.19(e)(1)(vi)(B) and (C) do not apply if the creditor does not 
permit the consumer to shop consistent with Sec.  1026.19(e)(1)(vi)(A).
    2. Disclosure of services for which the consumer may shop. Section 
1026.19(e)(1)(vi)(C) requires the creditor to identify the services for 
which the consumer is permitted to shop in the disclosures provided 
pursuant to Sec.  1026.19(e)(1)(i). See Sec.  1026.37(f)(3) regarding 
the content and format for this disclosure.
    3. Written list of providers. If the creditor permits the consumer 
to shop for a settlement service, Sec.  1026.19(e)(1)(vi)(C) requires 
the creditor to provide the consumer with a written list identifying 
available providers of that service and stating that the consumer may 
choose a different provider for that service. The settlement service 
providers identified on such written list must correspond to the 
settlement services for which the consumer may shop, disclosed pursuant 
to Sec.  1026.37(f)(3). See form H-27 in appendix H to this part for a 
model list. See also comment 19(e)(1)(ii)-4 regarding mortgage broker 
provision of the written list of settlement service providers.
    4. Identification of available providers. Section 
1026.19(e)(1)(vi)(C) provides that the creditor must identify 
settlement service providers that are available to the consumer. A 
creditor does not comply with the identification requirement in Sec.  
1026.19(e)(1)(vi)(C) unless it provides sufficient information to allow 
the consumer to contact the provider, such as the name under which the 
provider does business and the provider's address and telephone number. 
Similarly, a creditor does not comply with the availability requirement 
in Sec.  1026.19(e)(1)(vi)(C) if it provides a written list consisting 
of only settlement service providers that are no longer in business or 
that do not provide services where the consumer or property is located. 
If the creditor determines that there is only one available settlement 
service provider, the creditor need only identify that provider on the 
written list.
    5. Statement that consumer may choose different provider. Section 
1026.19(e)(1)(vi)(C) requires the creditor to include in the written 
list a statement that the consumer may choose a provider that is not 
included on that list. See form H-27 in appendix H to this part for an 
example of such a statement.
    6. Additional information on written list. The creditor may include 
a statement on the written list that the listing of a settlement 
service provider does not constitute an endorsement of that service 
provider. The creditor may also identify in the written list providers 
of services for which the consumer is not permitted to shop, provided 
that the creditor clearly and expressly

[[Page 51421]]

distinguishes those services from the services for which the consumer 
is permitted to shop. This may be accomplished by placing the services 
under different headings. For example, if the list provided pursuant to 
Sec.  1026.19(e)(1)(vi)(C) identifies providers of pest inspections, 
homeowner's insurance, and surveys, but the consumer may select a 
provider, other than those identified on the list, for only the 
homeowner's insurance carrier and surveyor, then the list must 
specifically inform the consumer that the consumer is permitted to 
select a provider, other than a provider identified on the list, for 
only the homeowner's insurance carrier and the surveyor.
    7. Relation to RESPA and Regulation X. Section 1026.19 does not 
prohibit creditors from including affiliates on the written list under 
Sec.  1026.19(e)(1)(vi). However, a creditor that includes affiliates 
on the written list must also comply with 12 CFR 1024.15. Furthermore, 
the written list is a ``referral'' under 12 CFR 1024.14(f).
    19(e)(2) Pre-disclosure activity.
    19(e)(2)(i) Imposition of fees on consumer.
    19(e)(2)(i)(A) Fee restriction.
    1. Fees restricted. A creditor or other person may not impose any 
fee, such as for an application, appraisal, or underwriting, until the 
consumer has received the disclosures required by Sec.  
1026.19(e)(1)(i) and indicated an intent to proceed with the 
transaction. The only exception to the fee restriction allows the 
creditor or other person to impose a bona fide and reasonable fee for 
obtaining a consumer's credit report, pursuant to Sec.  
1026.19(e)(2)(i)(B).
    2. Intent to proceed. A consumer may indicate intent to proceed 
with a transaction in any manner the consumer chooses, unless a 
particular manner of communication is required by the creditor, 
provided that the creditor does not assume silence is indicative of 
intent. The creditor must document this communication to satisfy the 
requirements of Sec.  1026.25. For example, oral communication in 
person immediately upon delivery of the disclosures required by Sec.  
1026.19(e)(1)(i) is sufficiently indicative of intent. Oral 
communication over the phone, written communication via email, or 
signing a pre-printed form are also sufficiently indicative of intent 
if such actions occur after receipt of the disclosures required by 
Sec.  1026.19(e)(1)(i). However, a creditor may not deliver the 
disclosures, wait for some period of time for the consumer to respond, 
and then charge the consumer a fee for an appraisal if the consumer 
does not respond, even if the creditor disclosed that it would do so.
    3. Timing of fees. At any time prior to delivery of the required 
disclosures, the creditor may impose a credit report fee as provided in 
Sec.  1026.19(e)(2)(i)(B). The consumer must receive the disclosures 
required by this section and indicate an intent to proceed with the 
mortgage loan transaction before paying or incurring any other fee 
imposed by a creditor or other person in connection with the consumer's 
application for a mortgage loan that is subject to Sec.  
1026.19(e)(1)(i).
    4. Collection of fees. A creditor complies with Sec.  
1026.19(e)(2)(i)(A) if:
    i. The creditor receives a consumer's written application directly 
from the consumer and does not collect any fee, other than a fee for 
obtaining a consumer's credit report, until the consumer receives the 
early mortgage loan disclosure and indicates an intent to proceed.
    ii. A third party submits a consumer's written application to a 
creditor and both the creditor and third party do not collect any fee, 
other than a fee for obtaining a consumer's credit report, until the 
consumer receives the early mortgage loan disclosure from the creditor 
and indicates an intent to proceed.
    iii. A third party submits a consumer's written application to a 
creditor following a different creditor's denial of the consumer's 
application (or following the consumer's withdrawal of that 
application), and, if a fee already has been assessed, the new creditor 
or third party does not collect or impose any additional fee until the 
consumer receives an early mortgage loan disclosure from the new 
creditor and indicates an intent to proceed.
    5. Fees ``imposed by'' a person. For purposes of Sec.  1026.19(e), 
a fee is ``imposed by'' a person if the person requires a consumer to 
provide a method for payment, even if the payment is not made at that 
time. For example, if a creditor requires the consumer to provide a 
$500 check to pay for a ``processing fee'' before the consumer receives 
the disclosures required by Sec.  1026.19(e)(1)(i) and the consumer 
subsequently indicates intent to proceed, then the creditor does not 
comply with Sec.  1026.19(e)(2), even if the creditor states that the 
check will not be cashed until after the disclosures required by Sec.  
1026.19(e)(1)(i) are received by the consumer and the consumer 
indicates intent to proceed. Similarly, a creditor does not comply with 
the requirements of Sec.  1026.19(e)(2) if the creditor requires the 
consumer to provide a credit card number before the consumer receives 
the disclosures required by Sec.  1026.19(e)(1)(i) and the consumer 
subsequently indicates intent to proceed, even if the creditor promises 
not to charge the consumer's credit card for the $500 processing fee 
until after the disclosures required by Sec.  1026.19(e)(1)(i) are 
received by the consumer and the consumer subsequently indicates intent 
to proceed. In contrast, a creditor complies with Sec.  1026.19(e)(2) 
if the creditor requires the consumer to provide a credit card number 
before the consumer receives the disclosures required by Sec.  
1026.19(e)(1)(i) and subsequently indicates intent to proceed if the 
consumer's authorization is only to pay for the cost of a credit 
report. This is so even if the creditor maintains the consumer's credit 
card number on file and charges the consumer a $500 processing fee 
after the disclosures required by Sec.  1026.19(e)(1)(i) are received 
and the consumer subsequently indicates intent to proceed, provided 
that the creditor requested and received a separate authorization for 
the processing fee from the consumer after the consumer received the 
disclosures required by Sec.  1026.19(e)(1)(i).
    19(e)(2)(i)(B) Exception to fee restriction.
    1. Requirements. A creditor or other person may impose a fee before 
the consumer receives the required disclosures if it is for purchasing 
a credit report on the consumer. The fee also must be bona fide and 
reasonable in amount. For example, a creditor may collect a fee for 
obtaining a credit report if it is in the creditor's ordinary course of 
business to obtain a credit report. If the criteria in Sec.  
1026.19(e)(2)(i)(B) are met, the creditor must accurately describe or 
refer to this fee, for example, as a ``credit report fee.''
    19(e)(2)(ii) Written information provided to consumer.
    1. Requirements. Section 1026.19(e)(2)(ii) requires the creditor to 
include a notice on certain written estimates provided to the consumer 
before the disclosures required by Sec.  1026.19(e)(1)(i) are provided. 
The requirement applies only to written information specific to the 
consumer. For example, if the creditor provides a document showing the 
estimated monthly payment for a mortgage loan, and the estimate was 
based on the estimated loan amount and the consumer's estimated credit 
score, then the creditor must include the warning on the document. In 
contrast, if the creditor provides the consumer with a preprinted list 
of closing costs common in the consumer's area, the creditor

[[Page 51422]]

need not include the warning. Similarly, the warning would not be 
required on a preprinted list of available rates for different loan 
products. This requirement does not apply to an advertisement, as 
defined in Sec.  1026.2(a)(2). See also comment 19(e)(1)(ii)-4 
regarding mortgage broker provision of written estimates specific to 
the consumer.
    19(e)(2)(iii) Verification of information.
    1. Requirements. The creditor may collect from the consumer any 
information that it requires prior to providing the early disclosures, 
including information not listed in Sec.  1026.2(a)(3)(ii). However, 
the creditor is not permitted to require, before providing the 
disclosures required by Sec.  1026.19(e)(1)(i), that the consumer 
submit documentation to verify the information provided by the 
consumer. For example, the creditor may ask for the names, account 
numbers, and balances of the consumer's checking and savings accounts, 
but the creditor may not require the consumer to provide bank 
statements, or similar documentation, to support the information the 
consumer provides orally before providing the disclosures required by 
Sec.  1026.19(e)(1)(i). See also Sec.  1026.2(a)(3) and the related 
commentary regarding the definition of application.
    19(e)(3) Good faith determination for estimates of closing costs.
    19(e)(3)(i) General rule.
    1. Requirement. Section 1026.19(e)(3)(i) provides the general rule 
that an estimated charge disclosed pursuant to Sec.  1026.19(e) is not 
in good faith if the charge paid by or imposed upon the consumer 
exceeds the amount originally disclosed. Although Sec.  
1026.19(e)(3)(ii) and (iii) provide exceptions to the general rule, the 
charges that remain subject to Sec.  1026.19(e)(3)(i) include, but are 
not limited to, the following:
    i. Fees paid to the creditor.
    ii. Fees paid to a mortgage broker.
    iii. Fees paid to an affiliate of the creditor or a mortgage 
broker.
    iv. Fees paid to an unaffiliated third party if the creditor did 
not permit the consumer to select a third party service provider, other 
than those providers identified on the written list provided pursuant 
to Sec.  1026.19(e)(1)(vi).
    v. Transfer taxes.
    2. Fees ``paid to'' a person. For purposes of Sec.  1026.19(e), a 
fee is not considered ``paid to'' a person if the person does not 
retain the fee, or if the person retains the fee as reimbursement for 
an amount it has already paid to another party. For example, if a 
consumer pays the creditor an appraisal fee in advance of the real 
estate closing and the creditor subsequently uses those funds to pay 
another party for an appraisal, then the appraisal fee is not ``paid 
to'' the creditor for the purposes of Sec.  1026.19(e). Similarly, if a 
creditor pays for an appraisal in advance of the real estate closing 
and the consumer pays the creditor an appraisal fee at the real estate 
closing, then the fee is not ``paid to'' the creditor for the purposes 
of Sec.  1026.19(e), even though the creditor retains the fee, because 
the payment is a reimbursement for an amount already paid.
    3. Transfer taxes and recording fees. See comments 37(g)(1)-1, -2, 
-3 and -4 for a discussion of the difference between transfer taxes and 
recording fees.
    4. Specific credits, rebates, or reimbursements. An item 
identified, on the disclosures provided pursuant to Sec.  1026.19(e), 
as a payment from a creditor to the consumer to pay for a specific fee, 
such as a credit, rebate, or reimbursement, is not subject to the good 
faith determination requirements in Sec.  1026.19(e)(3)(i) or (ii) if 
the increased specific credit, rebate, or reimbursement actually 
reduces the cost to the consumer. Specific credits, rebates, or 
reimbursements may not be disclosed or revised in a way that achieves 
what would otherwise violate the requirements of Sec.  1026.19(e)(3)(i) 
and (ii). For example, assume the creditor originally disclosed a $100 
pest inspection fee credit to cover the cost of a $100 pest inspection 
fee paid to an affiliated provider and subject to Sec.  
1026.19(e)(3)(i). If the pest inspection fee subsequently increases to 
$150, and the creditor increases the amount of the pest inspection fee 
credit from $100 to $150 to pay for the increase, the credit is not 
being revised in a way that would otherwise violate the requirements of 
Sec.  1026.19(e)(3)(i) because, although the disclosed amount 
increased, the amount paid by the consumer did not. However, if the 
creditor disclosed a $150 pest inspection fee credit to cover the cost 
of a $150 pest inspection fee paid to an affiliated provider and 
subject to Sec.  1026.19(e)(3)(i), and the creditor subsequently 
decreases the pest inspection fee credit from $150 to $100, even though 
the pest inspection fee remained at $150, then the requirements of 
Sec.  1026.19(e)(3)(i) have been violated because, although the 
disclosed amount did not increase, the amount paid by the consumer for 
this service did increase.
    5. Lender credits. The disclosure of ``lender credits,'' as 
identified in Sec.  1026.37(g)(6)(ii), is required by Sec.  
1026.19(e)(1)(i). These are payments from the creditor to the consumer 
that do not pay for a particular fee on the disclosures provided 
pursuant to Sec.  1026.19(e)(1)(i). These non-specific credits are 
negative charges to the consumer--as the lender credit decreases, the 
overall cost to the consumer increases. Thus, an actual lender credit 
provided at the real estate closing that is less than the estimated 
lender credit provided pursuant to Sec.  1026.19(e)(1)(i) is an 
increased charge to the consumer for purposes of determining good faith 
under Sec.  1026.19(e)(3)(i). For example, if the creditor provides a 
$750 estimate for lender credits in the disclosures required by Sec.  
1026.19(e)(1)(i), but only a $500 lender credit is actually provided to 
the consumer at the real estate closing, the creditor has not complied 
with Sec.  1026.19(e)(3)(i) because, although the actual lender credit 
was less than the estimated lender credit provided in the revised 
disclosures, the overall cost to the consumer increased and, therefore, 
did not comply with Sec.  1026.19(e)(3)(i). See also Sec.  
1026.19(e)(3)(iv)(D) and comment 19(e)(3)(iv)(D)-1 for a discussion of 
lender credits in the context of interest rate dependent charges.
    19(e)(3)(ii) Limited increases permitted for certain charges.
    1. Requirements. Section 1026.19(e)(3)(ii) provides that certain 
estimated charges are in good faith if the sum of all such charges paid 
by or imposed on the consumer does not exceed the sum of all such 
charges disclosed pursuant to Sec.  1026.19(e) by more than ten 
percent. Section 1026.19(e)(3)(ii) permits this limited increase for 
only the following items:
    i. Fees paid to an unaffiliated third party if the creditor 
permitted the consumer to select a settlement service provider that is 
not on the list provided pursuant to Sec.  1026.19(e)(1)(vi) and 
discloses that the consumer may do so on that list.
    ii. Recording fees.
    2. Aggregate increase limited to ten percent. Pursuant to Sec.  
1026.19(e)(3)(ii), whether an individual estimated charge subject to 
Sec.  1026.19(e)(3)(ii) is in good faith depends on whether the sum of 
all charges subject to Sec.  1026.19(e)(3)(ii) increase by more than 
ten percent, even if a particular charge does not increase by more than 
ten percent. For example, if, in the disclosures provided pursuant to 
Sec.  1026.19(e)(1)(i), the creditor includes a $300 estimated fee for 
a settlement agent, the settlement agent fee is included in the 
category of charges subject to Sec.  1026.19(e)(3)(ii), and the sum of 
all charges subject to Sec.  1026.19(e)(3)(ii) (including the

[[Page 51423]]

settlement agent fee) equals $1,000, then the creditor does not violate 
Sec.  1026.19(e)(3)(ii) if the actual settlement agent fee exceeds ten 
percent (i.e., exceeds $330), provided that the sum of all such charges 
does not exceed ten percent (i.e., $1,100). Section 1026.19(e)(3)(ii) 
also provides flexibility in disclosing individual fees by focusing on 
aggregate amounts. For example, assume that, in the disclosures 
provided pursuant to Sec.  1026.19(e)(1)(i), the sum of all estimated 
charges subject to Sec.  1026.19(e)(3)(ii) equals $1,000. If the 
creditor does not include an estimated charge for a notary fee but a 
$10 notary fee is charged to the consumer, and the notary fee is 
subject to Sec.  1026.19(e)(3)(ii), then the creditor does not violate 
Sec.  1026.19(e)(1)(i) if the sum of all amounts charged to the 
consumer subject to Sec.  1026.19(e)(3)(ii) does not exceed $1,100, 
even though an individual notary fee was not included in the estimated 
disclosures provided pursuant to Sec.  1026.19(e)(1)(i).
    3. Services for which the consumer may, but does not, select a 
settlement service provider. Good faith is determined pursuant to Sec.  
1026.19(e)(3)(ii), instead of Sec.  1026.19(e)(3)(i), if the creditor 
permits the consumer to shop for a settlement service provider, 
consistent with Sec.  1026.19(e)(1)(vi)(A). Section 1026.19(e)(3)(ii) 
provides that if the creditor requires a service in connection with the 
mortgage loan transaction, and permits the consumer to shop for that 
service consistent with Sec.  1026.19(e)(1)(vi)(A), but the consumer 
either does not select a settlement service provider or chooses a 
settlement service provider identified by the creditor on the list, 
then good faith is determined pursuant to Sec.  1026.19(e)(3)(ii)(A), 
instead of Sec.  1026.19(e)(3)(i) and subject to the other requirements 
in Sec.  1026.19(e)(3)(ii)(B) and (C). For example, if, in the 
disclosures provided pursuant to Sec. Sec.  1026.19(e)(1)(i) and 
1026.37(f)(3), a creditor discloses an estimated fee for an 
unaffiliated settlement agent and permits the consumer to shop for that 
service, but the consumer either does not choose a provider, or chooses 
a provider identified by the creditor on the written list provided 
pursuant to Sec.  1026.19(e)(1)(vi)(C), then the estimated settlement 
agent fee is included with the fees that may, in aggregate, increase by 
no more than ten percent for the purposes of Sec.  1026.19(e)(3)(ii). 
If, however, the consumer chooses a provider that is not on the written 
list, then good faith is determined according to Sec.  
1026.19(e)(3)(iii).
    4. Recording fees. Section 1026.19(e)(3)(ii) provides that an 
estimate of recording fees is in good faith if the conditions specified 
in Sec.  1026.19(e)(3)(ii)(A), (B), and (C) are satisfied. However, the 
condition specified in Sec.  1026.19(e)(3)(ii)(B), that the charge not 
be paid to an affiliate of the creditor, is inapplicable for recording 
fees. The condition specified in Sec.  1026.19(e)(3)(ii)(C), that the 
creditor permits the consumer to shop for the service, is similarly 
inapplicable. Therefore, estimates of recording fees need only satisfy 
the condition specified in Sec.  1026.19(e)(3)(ii)(A) to meet the 
requirements of Sec.  1026.19(e)(3)(ii).
    19(e)(3)(iii) Variations permitted for certain charges.
    1. Good faith requirement for prepaid interest, property insurance 
premiums, and impound amounts. Estimates of prepaid interest, property 
insurance premiums, and impound amounts must be consistent with the 
best information reasonably available to the creditor at the time the 
disclosures are provided. Differences between the amounts of such 
charges disclosed under Sec.  1026.19(e)(1)(i) and the amounts of such 
charges paid by or imposed on the consumer do not necessarily 
constitute a lack of good faith, so long as the original estimated 
charge, or lack of an estimated charge for a particular service, was 
based on the best information reasonably available to the creditor at 
the time the disclosure was provided. For example, if the creditor 
requires homeowner's insurance but fails to include a homeowner's 
insurance premium on the estimates provided pursuant to Sec.  
1026.19(e)(1)(i), then the creditor's failure to disclose does not 
comply with Sec.  1026.19(e)(3)(iii). However, if the creditor does not 
require flood insurance and the subject property is located in an area 
where floods frequently occur, but not specifically located in a zone 
where flood insurance is required, failure to include flood insurance 
on the original estimates provided pursuant to Sec.  1026.19(e)(1)(i) 
does not constitute a lack of good faith under Sec.  
1026.19(e)(3)(iii). Or, if the creditor knows that the loan must close 
on the 15th of the month but estimates prepaid interest to be paid from 
the 30th of that month, then the under-disclosure does not comply with 
Sec.  1026.19(e)(3)(iii).
    2. Good faith requirement for required services chosen by the 
consumer. If a service is required by the creditor, the creditor 
permits the consumer to shop for that service consistent with Sec.  
1026.19(e)(1)(vi)(A), the creditor provides the list required by Sec.  
1026.19(e)(1)(vi)(C), and the consumer chooses a service provider that 
is not on that list to perform that service, then the actual amounts of 
such fees need not be compared to the original estimates for such fees 
to perform the good faith analysis required by Sec.  1026.19(e)(3)(i) 
or (ii). Differences between the amounts of such charges disclosed 
pursuant to Sec.  1026.19(e)(1)(i) and the amounts of such charges paid 
by or imposed on the consumer do not necessarily constitute a lack of 
good faith. However, the original estimated charge, or lack of an 
estimated charge for a particular service, must be made based on the 
best information reasonably available to the creditor at that time. For 
example, if the consumer informs the creditor that the consumer will 
choose a settlement agent not identified by the creditor on the written 
list provided pursuant to Sec.  1026.19(e)(1)(vi)(C), and the creditor 
subsequently discloses an unreasonably low estimated settlement agent 
fee, then the under-disclosure does not comply with Sec.  
1026.19(e)(3)(iii). If the creditor permits the consumer to shop 
consistent with Sec.  1026.19(e)(1)(vi)(A) but fails to provide the 
list required by Sec.  1026.19(e)(1)(vi)(C), good faith is determined 
pursuant to Sec.  1026.19(e)(3)(ii) instead of Sec.  1026.19(e)(3)(iii) 
regardless of the provider selected by the consumer, unless the 
provider is an affiliate of the creditor in which case good faith is 
determined pursuant to Sec.  1026.19(e)(3)(i).
    3. Good faith requirement for non-required services chosen by the 
consumer. Differences between the amounts of estimated charges for 
services not required by the creditor disclosed pursuant to Sec.  
1026.19(e)(1)(i) and the amounts of such charges paid by or imposed on 
the consumer do not necessarily constitute a lack of good faith. For 
example, if the consumer informs the creditor that the consumer will 
obtain a type of inspection not required by the creditor, the creditor 
may include the charge for that item in the disclosures provided 
pursuant to Sec.  1026.19(e)(1)(i), but the actual amount of the 
inspection fee need not be compared to the original estimate for the 
inspection fee to perform the good faith analysis required by Sec.  
1026.19(e)(3)(iii). However, the original estimated charge, or lack of 
an estimated charge for a particular service, must still be made based 
on the best information reasonably available to the creditor at the 
time that the estimate was provided. For example, if the subject 
property is located in a jurisdiction where

[[Page 51424]]

consumers are customarily represented at closing by their own attorney, 
but the creditor fails to include a fee for the consumer's attorney, or 
includes an unreasonably low estimate for such fee, on the original 
estimates provided pursuant to Sec.  1026.19(e)(1)(i), then the 
creditor's failure to disclose, or under-estimation, does not comply 
with Sec.  1026.19(e)(3)(iii).
    19(e)(3)(iv) Revised estimates.
    1. Requirement. Pursuant to Sec.  1026.19(e)(3)(i) and (ii), good 
faith is determined by calculating the difference between the estimated 
charges originally provided pursuant to Sec.  1026.19(e)(1)(i) and the 
actual charges paid by the consumer. Section 1026.19(e)(3)(iv) provides 
the exception to this rule. Pursuant to Sec.  1026.19(e)(3)(iv), a 
charge paid by or imposed on the consumer may exceed the originally 
estimated charge if the revision is due to one of the reasons specified 
in Sec.  1026.19(e)(3)(iv)(A) through (F).
    2. Actual increase. The revised disclosures may reflect increased 
charges only to the extent that the reason for revision, as identified 
in Sec.  1026.19(e)(3)(iv)(A) through (F), actually increased the 
particular charge. For example, if a consumer requests a rate lock 
extension, then the revised disclosures may reflect a new rate lock 
extension fee, but the fee may be no more than the rate lock extension 
fee charged by the creditor in its usual course of business, and other 
charges unrelated to the rate lock extension may not change.
    3. Documentation requirement. In order to comply with Sec.  
1026.25, creditors must retain records demonstrating compliance with 
the requirements of Sec.  1026.19(e). For example, if revised 
disclosures are provided because of a changed circumstance under Sec.  
1026.19(e)(3)(iv)(A) affecting settlement costs, the creditor must be 
able to show compliance with Sec.  1026.19(e) by documenting the 
original estimate of the cost at issue, explaining the reason for 
revision and how it affected settlement costs, showing that the 
corrected disclosure increased the estimate only to the extent that the 
reason for revision actually increased the cost, and showing that the 
timing requirements of Sec.  1026.19(e)(4) were satisfied. However, the 
documentation requirement does not require separate corrected 
disclosures for each change. A creditor may provide corrected 
disclosures reflecting multiple changed circumstances, provided that 
the creditor's documentation demonstrates that each correction complies 
with the requirements of Sec.  1026.19(e).
    19(e)(3)(iv)(A) Changed circumstance affecting settlement charges.
    1. Requirement. Except for the items identified in Sec.  
1026.19(e)(3) (iii), revised charges are compared to actual charges if 
the revision was caused by a changed circumstance. See also comment 
19(e)(3)(iv)(A)-2 regarding the definition of a changed circumstance. 
The following examples illustrate the application of this provision:
    i. Assume a creditor provides a $200 estimated appraisal fee 
pursuant to Sec.  1026.19(e)(1)(i), which will be paid to an affiliated 
appraiser and therefore may not increase for purposes of determining 
good faith under Sec.  1026.19(e)(3)(i), except as provided in Sec.  
1026.19(e)(3)(iv). The estimate was based on information provided by 
the consumer at application, which included information indicating that 
the subject property was a single-family dwelling. Upon arrival at the 
subject property, the appraiser discovers that the property is actually 
a single-family dwelling located on a farm. A different schedule of 
appraisal fees applies to residences located on farms. A changed 
circumstance has occurred (i.e., information provided by the consumer 
is found to be inaccurate after the disclosures required under Sec.  
1026.19(e)(1)(i) were provided), which caused an increase in the cost 
of the appraisal. Therefore, if the creditor issues revised disclosures 
with the corrected appraisal fee, the actual appraisal fee of $400 paid 
at the real estate closing by the consumer will be compared to the 
revised appraisal fee of $400 to determine if the actual fee has 
increased above the estimated fee. However, if the creditor failed to 
provide revised disclosures, then the actual appraisal fee of $400 must 
be compared to the originally disclosed estimated appraisal fee of 
$200.
    ii. Assume a creditor provides a $400 estimate of title fees, which 
are included in the category of fees which may not increase by more 
than ten percent for the purposes of determining good faith under Sec.  
1026.19(e)(3)(ii), except as provided in Sec.  1026.19(e)(3)(iv). An 
unreleased lien is discovered and the title company must perform 
additional work to release the lien. However, the additional costs 
amount to only a five percent increase over the sum of all fees 
included in the category of fees which may not increase by more than 
ten percent. A changed circumstance has occurred (i.e., new 
information), but costs have not increased by more than ten percent. 
Therefore, if the creditor issues revised disclosures, when the 
disclosures required by Sec.  1026.19(f)(1)(i) are delivered, the 
actual title fees of $500 may not be compared to the revised title fees 
of $500; they must be compared to the originally estimated title fees 
of $400.
    2. Changed circumstance. A changed circumstance may be an 
extraordinary event beyond the control of any interested party. For 
example, a war or a natural disaster would be an extraordinary event 
beyond the control of an interested party. A changed circumstance may 
also be an unexpected event specific to the consumer or the 
transaction. For example, if the creditor provided an estimate of title 
insurance on the disclosures required under Sec.  1026.19(e)(1)(i), but 
the title insurer goes out of business during underwriting, then this 
unexpected event specific to the transaction is a changed circumstance. 
A changed circumstance may also be information specific to the consumer 
or transaction that the creditor relied upon when providing the 
disclosures required under Sec.  1026.19(e)(1)(i) and that was 
inaccurate or changed after the disclosures were provided. For example, 
if the creditor relied on the consumer's income when providing the 
disclosures required under Sec.  1026.19(e)(1)(i), and the consumer 
represented to the creditor that the consumer had an annual income of 
$90,000, but underwriting determines that the consumer's annual income 
is only $80,000, then this inaccuracy in information relied upon is a 
changed circumstance. Or, assume two co-applicants applied for a 
mortgage loan. One applicant's income was $30,000, while the other 
applicant's income was $50,000. If the creditor relied on the combined 
income of $80,000 when providing the disclosures required under Sec.  
1026.19(e)(1)(i), but the applicant earning $30,000 becomes unemployed 
during underwriting, thereby reducing the combined income to $50,000, 
then this change in information relied upon is a changed circumstance. 
A changed circumstance may also be the discovery of new information 
specific to the consumer or transaction that the creditor did not rely 
on when providing the original disclosures. For example, if the 
creditor relied upon the value of the property in providing the 
disclosures required under Sec.  1026.19(e)(1)(i), but during 
underwriting a neighbor of the seller, upon learning of the impending 
sale of the property, files a claim contesting the boundary of the 
property to be sold, then this new information specific to

[[Page 51425]]

the transaction is a changed circumstance.
    3. Six pieces of information presumed collected, but not required. 
Section 1026.19(e)(1)(iii) requires creditors to deliver the 
disclosures not later than the third business day after the creditor 
receives the consumer's application, which Sec.  1026.2(a)(3)(ii) 
defines as six pieces of information. A creditor is not required to 
collect the consumer's name, monthly income, or social security number 
to obtain a credit report, the property address, an estimate of the 
value of the property, or the mortgage loan amount sought. However, for 
purposes of determining whether an estimate is provided in good faith 
under Sec.  1026.19(e)(1)(i), a creditor is presumed to have collected 
these six pieces of information. For example, if a creditor provides 
the disclosures required by Sec.  1026.19(e)(1)(i) prior to receiving 
the property address from the consumer, the creditor cannot 
subsequently claim that the receipt of the property address is a 
changed circumstance pursuant to Sec.  1026.19(e)(3)(iv)(A) or (B).
    19(e)(3)(iv)(B) Changed circumstance affecting eligibility.
    1. Requirement. If changed circumstances cause a change in the 
consumer's eligibility for specific loan terms disclosed pursuant to 
Sec.  1026.19(e)(1)(i) and revised disclosures are provided reflecting 
such change, the final amounts paid by the consumer may be compared to 
the revised estimated disclosures to determine if the actual fee has 
increased above the estimated fee. For example, assume that, prior to 
providing the disclosures required by Sec.  1026.19(e)(1)(i), the 
creditor believed that the consumer was eligible for a loan program 
that did not require an appraisal. The creditor then provides the 
estimated disclosures required by Sec.  1026.19(e)(1)(i), which do not 
include an estimated charge for an appraisal. During underwriting it is 
discovered that the consumer was delinquent on mortgage loan payments 
in the past, making the consumer ineligible for the loan program 
originally identified on the estimated disclosures, but the consumer 
remains eligible for a different program that requires an appraisal. If 
the creditor provides revised disclosures reflecting the new program 
and including the appraisal fee, then the actual appraisal fee will be 
compared to the revised appraisal fee to determine if the actual fee 
has increased above the estimated fee. However, if the revised 
disclosures also include increased estimates for title fees, the actual 
title fees must be compared to the original estimates because the 
increased title fees do not stem from the change in eligibility. See 
also Sec.  1026.19(e)(3)(iv)(A) and comment 19(e)(3)(iv)(A)-2 regarding 
the definition of changed circumstances.
    19(e)(3)(iv)(C) Revisions requested by the consumer.
    1. Requirement. If the consumer requests revisions to the 
transaction that affect items disclosed pursuant to Sec.  
1026.19(e)(1)(i), and the creditor provides revised disclosures 
reflecting the consumer's requested changes, the final disclosures are 
compared to the revised disclosures to determine whether the actual fee 
has increased above the estimated fee. For example, assume that the 
consumer decides to grant a power of attorney authorizing a family 
member to consummate the transaction on the consumer's behalf after the 
disclosures required under Sec.  1026.19(e)(1)(i) are provided. If the 
creditor provides revised disclosures reflecting the fee to record the 
power of attorney, then the actual charges will be compared to the 
revised charges to determine if the fees have increased.
    19(e)(3)(iv)(D) Interest rate dependent charges.
    1. Requirements. If the interest rate is not set when the 
disclosures required by Sec.  1026.19(e)(1)(i) are delivered, a valid 
reason for revision exists when the interest rate is subsequently set, 
at which point Sec.  1026.19(e)(3)(iv)(D) requires the creditor to 
issue a revised version of the disclosures required by Sec.  
1026.19(e)(1)(i) reflecting the revised interest rate, bona fide 
discount points, and lender credits. The following examples illustrate 
this requirement:
    i. Assume a creditor sets the interest rate by executing a rate 
lock agreement with the consumer. If such an agreement exists when the 
disclosures required by Sec.  1026.19(e)(1)(i) are originally provided, 
then the actual bona fide discount points and lender credits are 
compared to the estimated bona fide discount points and lender credits 
included in the disclosures originally provided pursuant to Sec.  
1026.19(e)(1)(i) for the purpose of determining good faith pursuant to 
Sec.  1026.19(e)(3)(i). If the consumer enters into a rate lock 
agreement with the creditor after the disclosures required by Sec.  
1026.19(e)(1)(i) were provided, then Sec.  1026.19(e)(3)(iv)(D) 
requires the creditor to provide revised disclosures reflecting any 
revised bona fide discount points and lender credits, in which case the 
actual bona fide discount points and lender credits are compared to the 
revised bona fide discount points and lender credits for the purpose of 
determining good faith pursuant to Sec.  1026.19(e)(3)(i).
    ii. Assume a creditor does not offer rate lock agreements, but 
instead sets the interest rate on all mortgage loan transactions 
according to the interest rate in effect seven days prior to 
consummation. Section 1026.19(e)(3)(iv)(D) requires the creditor to 
issue a revised version of the disclosures required by Sec.  
1026.19(e)(1)(i) reflecting the set interest rate, bona fide discount 
points, and lender credits. The actual bona fide discount points and 
lender credits are compared to the revised bona fide discount points 
and lender credits for the purpose of determining good faith pursuant 
to Sec.  1026.19(e)(3)(i).
    19(e)(3)(iv)(E) Expiration.
    1. Requirements. Section 1026.19(e)(3)(i) provides the general rule 
that the actual fees charged cannot exceed the fees disclosed pursuant 
to Sec.  1026.19(e)(1)(i). An exception to that rule applies if the 
creditor provides revised versions of the disclosures required by Sec.  
1026.19(e)(1)(i) because the consumer indicates an intent to proceed 
with the transaction more than ten business days after the disclosures 
were originally provided. However, Sec.  1026.19(e)(3)(iv)(E) requires 
no justification for the change other than the lapse of ten business 
days. For example, assume a creditor includes a $500 underwriting fee 
on the disclosures provided pursuant to Sec.  1026.19(e)(1)(i) and the 
creditor delivers those disclosures on a Monday. If the consumer 
indicates intent to proceed 11 business days later, the creditor may 
provide new disclosures with a $700 underwriting fee. In this example 
Sec.  1026.19(e) and Sec.  1026.25 require the creditor to document 
that a new disclosure was provided pursuant to Sec.  
1026.19(e)(3)(iv)(E), but do not require the creditor to document a 
reason for the increase in the underwriting fee.
    19(e)(3)(iv)(F) Delayed settlement date on a construction loan.
    1. Requirements. A loan for the purchase of a home either to be 
constructed or under construction is considered a construction loan to 
build a home for the purposes of Sec.  1026.19(e)(3)(iv)(F). For 
example, a loan to purchase and build a home that has yet to be 
constructed, or a loan to purchase a home on which construction is 
currently underway, is a construction loan to build a home for the 
purposes of Sec.  1026.19(e)(3)(iv)(F). However, if a use and occupancy 
permit has been issued for the home prior to the issuance of the Loan 
Estimate, then the home is not considered to be under construction and 
the transaction would not be a construction loan to build a

[[Page 51426]]

home for the purposes of Sec.  1026.19(e)(3)(iv)(F).
    19(e)(4) Provision of revised disclosures.
    1. Three-day requirement. Section 1026.19(e)(4) provides that the 
creditor must deliver revised disclosures within three business days of 
receiving information sufficient to establish that a reason for 
revision, as specified under Sec.  1026.19(e)(3)(iv)(A) through (F), 
has occurred. The following examples illustrate these requirements:
    i. Assume a creditor requires a pest inspection. The unaffiliated 
pest inspection company informs the creditor on Monday that the subject 
property contains evidence of termite damage, requiring a further 
inspection, the cost of which will cause an increase in estimated 
settlement charges subject to Sec.  1026.19(e)(3)(ii) by more than ten 
percent. The creditor must deliver revised disclosures by Thursday to 
comply with Sec.  1026.19(e)(4)(i).
    ii. Assume a creditor receives information on Monday that, because 
of a changed circumstance under Sec.  1026.19(e)(3)(iv)(A), the title 
fees will increase by an amount totaling six percent of the originally 
estimated settlement charges subject to Sec.  1026.19(e)(3)(ii). The 
creditor had received information three weeks before that, because of a 
changed circumstance under Sec.  1026.19(e)(3)(iv)(A), the appraisal 
fees increased by an amount totaling five percent of the originally 
estimated settlement charges subject to Sec.  1026.19(e)(3)(ii). Thus, 
on Monday, the creditor has received sufficient information to 
establish a valid reason for revision and must provide revised 
disclosures reflecting the 11 percent increase by Thursday to comply 
with Sec.  1026.19(e)(4)(i).
    iii. Assume a creditor requires an appraisal. The creditor receives 
the appraisal report, which indicates that the value of the home is 
significantly lower than expected. However, the creditor has reason to 
doubt the validity of the appraisal report. A reason for revision has 
not been established because the creditor reasonably believes that the 
appraisal report is incorrect. The creditor then chooses to send a 
different appraiser for a second opinion, but the second appraiser 
returns a similar report. At this point, the creditor has received 
information sufficient to establish that a reason for revision has, in 
fact, occurred, and must provide corrected disclosures within three 
business days of receiving the second appraisal report. In this 
example, in order to comply with Sec.  1026.19(e)(3)(iv) and Sec.  
1026.25, the creditor must maintain records documenting the creditor's 
doubts regarding the validity of the appraisal to demonstrate that the 
reason for revision did not occur upon receipt of the first appraisal 
report.
    2. Revised disclosures may not be delivered at the same time as the 
final disclosures. Creditors comply with the requirements of Sec.  
1026.19(e)(4) if the revised disclosures are reflected in the 
disclosures required by Sec.  1026.19(f)(1)(i). For example, if the 
creditor is scheduled to meet with the consumer and provide the 
disclosures required by Sec.  1026.19(f)(1)(i) on Wednesday, and the 
APR becomes inaccurate on Tuesday, the creditor would comply with the 
requirements of Sec.  1026.19(e)(4) by providing the disclosures 
required by Sec.  1026.19(f)(1)(i) reflecting the revised APR on 
Wednesday. However, the creditor would not comply with the requirements 
of Sec.  1026.19(e)(4) if it provided both a revised version of the 
disclosures required by Sec.  1026.19(e)(1)(i) reflecting the revised 
APR on Wednesday, and also provided the disclosures required by Sec.  
1026.19(f)(1)(i) on Wednesday. Or, if the creditor is scheduled to 
email the disclosures required by Sec.  1026.19(f)(1)(i) to the 
consumer on Wednesday, and the consumer requests a change to the loan 
that would result in revised disclosures pursuant to Sec.  
1026.19(e)(3)(iv)(C) on Tuesday, the creditor would comply with the 
requirements Sec.  1026.19(e)(4) by providing the disclosures required 
by Sec.  1026.19(f)(1)(i) reflecting the consumer requested changes on 
Wednesday. However, the creditor would not comply if it provided both 
the disclosures required by Sec.  1026.19(e)(1)(i) reflecting consumer 
requested changes and the disclosures required by Sec.  
1026.19(f)(1)(i) on Wednesday.

Alternative 1--Paragraph (f)(1)

    19(f) Mortgage loans secured by real property--Final disclosures.
    19(f)(1) Provision.
    19(f)(1)(i) Scope.
    1. Requirements. Section 1026.19(f)(1)(i) requires disclosure of 
the actual terms of the credit transaction, and the actual costs 
associated with the settlement of that transaction, for closed-end 
credit transactions that are secured by real property, other than 
reverse mortgages subject to Sec.  1026.33. For example, if the 
creditor requires the consumer to pay money into a reserve account for 
the future payment of taxes, the creditor must disclose to the consumer 
the exact amount that the consumer is required to pay into the reserve 
account. If the disclosures provided pursuant to Sec.  1026.19(f)(1)(i) 
do not contain the actual terms of the transaction, the creditor does 
not violate Sec.  1026.19(f)(1)(i) if the creditor provides new 
disclosures that contain the actual terms of the transaction and 
complies with the other requirements of Sec.  1026.19(f), including the 
timing requirements in Sec.  1026.19(f)(1)(ii). For example, if the 
creditor provides the disclosures required by Sec.  1026.19(f)(1)(i) on 
Monday, June 1, but the consumer requests a change to the terms of the 
transaction on Tuesday, June 2, the creditor complies with Sec.  
1026.19(f)(1)(i) if it provides disclosures reflecting the revised 
terms of the transaction on or after Tuesday, June 2, assuming that the 
revised disclosures are also provided no later than three business days 
before consummation.
    19(f)(1)(ii) Timing.
    1. Timing. Except as provided in Sec.  1026.19(f)(1)(ii)(B) or 
(f)(2), the disclosures required by Sec.  1026.19(f)(1)(i) must be 
received by the consumer no later than three business days before 
consummation. For example, if consummation is scheduled for Thursday, 
the creditor satisfies this requirement by hand delivering the 
disclosures on Monday, assuming each weekday is a business day. For 
purposes of Sec.  1026.19(f)(1)(ii), the term ``business day'' means 
all calendar days except Sundays and legal public holidays referred to 
in Sec.  1026.2(a)(6). See comment 2(a)(6)-2. See comment 2(a)(6)-1.
    2. Receipt of disclosures three business days before consummation. 
Section 1026.19(f)(1)(ii) provides that the consumer must receive the 
disclosures no later than three business days before consummation. To 
comply with this requirement, the creditor must arrange for delivery 
accordingly. For example, if the consummation is scheduled for 
Thursday, the creditor satisfies this requirement by delivering the 
disclosures on Monday by way of electronic mail, provided the 
requirements of Sec.  1026.17(a)(1) relating to disclosures in 
electronic form are satisfied and assuming that each weekday is a 
business day. However, a creditor does not satisfy the requirements of 
Sec.  1026.19(f)(1)(ii) in this example if the creditor places the 
disclosures in the mail on Monday. A creditor would satisfy the 
requirements of Sec.  1026.19(f)(1)(ii) in this example if the creditor 
places the disclosures in the mail on Thursday of the previous week, 
because, for the purposes of Sec.  1026.19(f)(1)(ii), Saturday as a 
business day, pursuant to Sec.  1026.2(a)(6).
    3. Timeshares. For loans secured by timeshares, as defined under 11 
U.S.C.

[[Page 51427]]

101(53D), Sec.  1026.19(f)(1)(ii)(B) requires a creditor to ensure that 
the consumer receives the disclosures required under Sec.  
1026.19(f)(1)(i) as soon as reasonably practicable, but no later than 
consummation. For example, if a consumer provides the creditor with an 
application, as defined by Sec.  1026.2(a)(3), for a mortgage loan 
secured by a timeshare on Monday, June 1, the creditor may provide the 
consumer with the disclosures required by Sec.  1026.19(e)(1)(i) on the 
same day, pursuant to Sec.  1026.19(e)(1)(iii). If consummation of this 
transaction is scheduled for Friday, June 5, the creditor may provide 
the consumer with the disclosures required by Sec.  1026.19(f)(1)(i) on 
Tuesday, June 2, if doing so is reasonably practicable. If, however, 
consummation is scheduled for Tuesday, June 2, then the creditor 
complies with Sec.  1026.19(f)(1)(ii)(B) by providing the disclosures 
required by Sec.  1026.19(f)(1)(i) on Tuesday, June 2, the day of 
consummation. If the consumer provides the creditor with an 
application, as defined by Sec.  1026.2(a)(3), for a mortgage loan 
secured by a timeshare on Monday, June 1, and wishes to consummate the 
transaction on that same day, then the creditor complies with Sec.  
1026.19(e)(4)(ii) by providing the disclosures required by Sec.  
1026.19(f)(1)(i) instead of the disclosures required by Sec.  
1026.19(e)(1)(i) on Monday, June 1, and the creditor also complies with 
Sec.  1026.19(f)(1)(ii)(B) by providing the disclosures required by 
Sec.  1026.19(f)(1)(i) on Monday, June 1.
    19(f)(1)(iii) Delivery.
    1. Mail delivery. Section 1026.19(f)(1)(iii) provides that, if any 
disclosures required under Sec.  1026.19(f)(1)(i) are not provided to 
the consumer in person, the consumer is presumed to have received the 
disclosures three business days after they are mailed or delivered to 
the address specified by the consumer. This is a presumption which may 
be rebutted by providing evidence that the consumer received the 
disclosures earlier than three business days. For example, if the 
creditor sends the disclosures via overnight mail on Monday, and the 
consumer signs for receipt of the overnight delivery on Tuesday, the 
creditor could demonstrate that the disclosures were received on 
Tuesday, thereby rebutting the presumption that the disclosures were 
received on Thursday, three business days after the disclosures were 
sent.
    2. Electronic delivery. The presumption established in Sec.  
1026.19(f)(1)(iii) applies to methods of electronic delivery, such as 
email. For example, if a creditor sends a disclosure required under 
Sec.  1026.19(f) via email on Monday, pursuant to Sec.  
1026.19(f)(1)(iii) the consumer is presumed to have received the 
disclosure on Thursday, three business days later. However, the 
creditor may rebut the presumption by providing evidence that the 
consumer received the emailed disclosures earlier. Creditors using 
electronic delivery methods, such as email, must also comply with Sec.  
1026.17(a)(1). For example, if a creditor delivers the disclosures 
required by Sec.  1026.19(f)(1)(i) to a consumer via email, but the 
creditor did not obtain the consumer's consent to receive disclosures 
via email prior to delivering the disclosures, then the creditor does 
not comply with Sec.  1026.17(a)(1), and the creditor does not comply 
with Sec.  1026.19(f)(1)(i), assuming the disclosures were not provided 
in a different manner in accordance with the timing requirements of 
Sec.  1026.19(f)(1)(ii).
    19(f)(1)(iv) Consumer's waiver of waiting period before 
consummation.
    1. Modification or waiver. A consumer may modify or waive the right 
to the three-business-day waiting period required by Sec.  
1026.19(f)(1)(ii) only after the creditor makes the disclosures 
required by Sec.  1026.19(f)(1)(i). The consumer must have a bona fide 
personal financial emergency that necessitates consummating the credit 
transaction before the end of the waiting period. Whether these 
conditions are met is determined by the facts surrounding individual 
situations. The imminent sale of the consumer's home at foreclosure, 
where the foreclosure sale will proceed unless loan proceeds are made 
available to the consumer during the waiting period, is one example of 
a bona fide personal financial emergency. Each consumer who is 
primarily liable on the legal obligation must sign the written 
statement for the waiver to be effective.

Alternative 2--Paragraph (f)(1)

    19(f) Mortgage loans secured by real property--Final disclosures.
    19(f)(1) Provision.
    19(f)(1)(i) Scope.
    1. Requirements. Section 1026.19(f)(1)(i) requires disclosure of 
the actual terms of the credit transaction, and the actual costs 
associated with the settlement of that transaction, for closed-end 
credit transactions that are secured by real property, other than 
reverse mortgages subject to Sec.  1026.33. For example, if the 
creditor requires the consumer to pay money into a reserve account for 
the future payment of taxes, the creditor must disclose to the consumer 
the exact amount that the consumer is required to pay into the reserve 
account. If the disclosures provided pursuant to Sec.  1026.19(f)(1)(i) 
do not contain the actual terms of the transaction, the creditor does 
not violate Sec.  1026.19(f)(1)(i) if the creditor provides new 
disclosures that contain the actual terms of the transaction and 
complies with the other requirements of Sec.  1026.19(f), including the 
timing requirements in Sec.  1026.19(f)(1)(ii). For example, if the 
creditor provides the disclosures required by Sec.  1026.19(f)(1)(i) on 
Monday, June 1, but the consumer requests a change to the terms of the 
transaction on Tuesday, June 2, the creditor complies with Sec.  
1026.19(f)(1)(i) if it provides disclosures reflecting the revised 
terms of the transaction on or after Tuesday, June 2, assuming that the 
revised disclosures are also provided no later than three business days 
before consummation.
    19(f)(1)(ii) Timing.
    1. Timing. Except as provided in Sec.  1026.19(f)(1)(ii)(B) or 
(f)(2), the disclosures required by Sec.  1026.19(f)(1)(i) must be 
received by the consumer no later than three business days before 
consummation. For example, if consummation is scheduled for Thursday, 
the creditor satisfies this requirement by hand delivering the 
disclosures on Monday, assuming each weekday is a business day. For 
purposes of Sec.  1026.19(f)(1)(ii), the term ``business day'' means 
all calendar days except Sundays and legal public holidays referred to 
in Sec.  1026.2(a)(6). See comment 2(a)(6)-2. See comment 2(a)(6)-1.
    2. Receipt of disclosures three business days before consummation. 
Section 1026.19(f)(1)(ii) provides that the consumer must receive the 
disclosures no later than three business days before consummation. To 
comply with this requirement, the creditor must arrange for delivery 
accordingly. For example, if the consummation is scheduled for 
Thursday, the creditor satisfies this requirement by delivering the 
disclosures on Monday by way of electronic mail, provided the 
requirements of Sec.  1026.17(a)(1) relating to disclosures in 
electronic form are satisfied and assuming that each weekday is a 
business day. However, a creditor does not satisfy the requirements of 
Sec.  1026.19(f)(1)(ii) in this example if the creditor places the 
disclosures in the mail on Monday. A creditor would satisfy the 
requirements of Sec.  1026.19(f)(1)(ii) in this example if the creditor 
places the disclosures in the mail on Thursday of the previous week, 
because, for the purposes of

[[Page 51428]]

Sec.  1026.19(f)(1)(ii), Saturday as a business day, pursuant to Sec.  
1026.2(a)(6).
    3. Timeshares. For loans secured by timeshares, as defined under 11 
U.S.C. 101(53D), Sec.  1026.19(f)(1)(ii)(B) requires a creditor to 
ensure that the consumer receives the disclosures required under Sec.  
1026.19(f)(1)(i) as soon as reasonably practicable, but no later than 
consummation. For example, if a consumer provides the creditor with an 
application, as defined by Sec.  1026.2(a)(3), for a mortgage loan 
secured by a timeshare on Monday, June 1, the creditor may provide the 
consumer with the disclosures required by Sec.  1026.19(e)(1)(i) on the 
same day, pursuant to Sec.  1026.19(e)(1)(iii). If consummation of this 
transaction is scheduled for Friday, June 5, the creditor may provide 
the consumer with the disclosures required by Sec.  1026.19(f)(1)(i) on 
Tuesday, June 2, if doing so is reasonably practicable. If, however, 
consummation is scheduled for Tuesday, June 2, then the creditor 
complies with Sec.  1026.19(f)(1)(ii)(B) by providing the disclosures 
required by Sec.  1026.19(f)(1)(i) on Tuesday, June 2, the day of 
consummation. If the consumer provides the creditor with an 
application, as defined by Sec.  1026.2(a)(3), for a mortgage loan 
secured by a timeshare on Monday, June 1, and wishes to consummate the 
transaction on that same day, then the creditor complies with Sec.  
1026.19(e)(4)(ii) by providing the disclosures required by Sec.  
1026.19(f)(1)(i) instead of the disclosures required by Sec.  
1026.19(e)(1)(i) on Monday, June 1, and the creditor also complies with 
Sec.  1026.19(f)(1)(ii)(B) by providing the disclosures required by 
Sec.  1026.19(f)(1)(i) on Monday, June 1.
    19(f)(1)(iii) Delivery.
    1. Mail delivery. Section 1026.19(f)(1)(iii) provides that, if any 
disclosures required under Sec.  1026.19(f)(1)(i) are not provided to 
the consumer in person, the consumer is presumed to have received the 
disclosures three business days after they are mailed or delivered to 
the address specified by the consumer. This is a presumption which may 
be rebutted by providing evidence that the consumer received the 
disclosures earlier than three business days. For example, if the 
creditor sends the disclosures via overnight mail on Monday, and the 
consumer signs for receipt of the overnight delivery on Tuesday, the 
creditor could demonstrate that the disclosures were received on 
Tuesday, thereby rebutting the presumption that the disclosures were 
received on Thursday, three business days after the disclosures were 
sent.
    2. Electronic delivery. The presumption established in Sec.  
1026.19(f)(1)(iii) applies to methods of electronic delivery, such as 
email. For example, if a creditor sends a disclosure required under 
Sec.  1026.19(f) via email on Monday, pursuant to Sec.  
1026.19(f)(1)(iii) the consumer is presumed to have received the 
disclosure on Thursday, three business days later. However, the 
creditor may rebut the presumption by providing evidence that the 
consumer received the emailed disclosures earlier. Creditors using 
electronic delivery methods, such as email, must also comply with Sec.  
1026.17(a)(1). For example, if a creditor delivers the disclosures 
required by Sec.  1026.19(f)(1)(i) to a consumer via email, but the 
creditor did not obtain the consumer's consent to receive disclosures 
via email prior to delivering the disclosures, then the creditor does 
not comply with Sec.  1026.17(a)(1), and the creditor does not comply 
with Sec.  1026.19(f)(1)(i), assuming the disclosures were not provided 
in a different manner in accordance with the timing requirements of 
Sec.  1026.19(f)(1)(ii).
    19(f)(1)(iv) Consumer's waiver of waiting period before 
consummation.
    1. Modification or waiver. A consumer may modify or waive the right 
to the three-business-day waiting period required by Sec.  
1026.19(f)(1)(ii) only after the creditor makes the disclosures 
required by Sec.  1026.19(f)(1)(i). The consumer must have a bona fide 
personal financial emergency that necessitates consummating the credit 
transaction before the end of the waiting period. Whether these 
conditions are met is determined by the facts surrounding individual 
situations. The imminent sale of the consumer's home at foreclosure, 
where the foreclosure sale will proceed unless loan proceeds are made 
available to the consumer during the waiting period, is one example of 
a bona fide personal financial emergency. Each consumer who is 
primarily liable on the legal obligation must sign the written 
statement for the waiver to be effective.
    19(f)(1)(v) Settlement agent
    1. Requirements. A settlement agent may provide the disclosures 
required under Sec.  1026.19(f)(1)(i) instead of the creditor. By 
assuming this responsibility, the settlement agent becomes responsible 
for complying with all of the relevant requirements as if it were the 
creditor, meaning that ``settlement agent'' should be read in the place 
of ``creditor'' for all the relevant provisions of Sec.  1026.19(f), 
except where such a reading would create responsibility for settlement 
agent under Sec.  1026.19(e). For example, comment 19(f)(1)(ii)-3 
states that, if a consumer provides the creditor with an application 
for a mortgage loan secured by a timeshare on Monday, June 1, the 
creditor may provide the consumer with the disclosures required by 
Sec.  1026.19(e)(1)(i) on the same day, pursuant to Sec.  
1026.19(e)(1)(iii). ``Settlement agent'' could not be read in place of 
``creditor'' in comment 19(f)(1)(ii)-3 because the settlement agents 
are not responsible for the disclosures required by Sec.  
1026.19(e)(1)(i). To ensure timely and accurate compliance with the 
requirements of this section, the creditor and settlement agent need to 
effectively communicate.
    2. Settlement agent responsibilities. If a settlement agent issues 
any disclosure under Sec.  1026.19(f), the settlement agent must comply 
with the requirements of Sec.  1026.19(f). For example, the settlement 
agent must ensure that the consumer received the disclosures required 
under Sec.  1026.19(f)(1)(i) no later than three business days before 
consummation in accordance with Sec.  1026.19(f)(1)(ii). The settlement 
agent may assume the responsibility to provide some or all of the 
disclosures required by Sec.  1026.19(f). For example, both the 
creditor and the settlement agent comply with the requirements of Sec.  
1026.19(f)(1)(v) if the settlement agent agrees to complete only the 
portion of the disclosures required by Sec.  1026.19(f)(1)(i) related 
to closing costs for taxes, title fees, and insurance premiums, the 
creditor agrees to complete the remainder of the disclosures required 
by Sec.  1026.19(f)(1)(i), and either the settlement agent or the 
creditor provides the consumer with one single disclosure form 
containing all of the information required to be disclosed pursuant to 
Sec.  1026.19(f)(1)(i), in accordance with the other requirements in 
Sec.  1026.19(f), such as requirements related to timing and delivery.
    3. Creditor responsibilities. If a settlement agent provides 
disclosures required under Sec.  1026.19(f) in the creditor's place, 
the creditor remains responsible under Sec.  1026.19(f) for ensuring 
that the requirements of Sec.  1026.19(f) have been satisfied. For 
example, the creditor does not comply with Sec.  1026.19(f) if the 
settlement agent does not provide the disclosures required under Sec.  
1026.19(f)(1)(i), or if the consumer receives the disclosures later 
than three business days before consummation, in accordance with Sec.  
1026.19(f)(1)(ii). The creditor does not satisfy the requirements of 
Sec.  1026.19(f) if it provides duplicative disclosures. For example, a 
creditor does not satisfy its obligation by issuing disclosures

[[Page 51429]]

required under Sec.  1026.19(f) that mirror ones already issued by the 
settlement agent for the purpose of demonstrating that the consumer 
received timely disclosures. The creditor is expected to maintain 
communication with the settlement agent to ensure that the settlement 
agent is acting in place of the creditor. Disclosures provided by a 
settlement agent in accordance with Sec.  1026.19(f)(1)(v) satisfy the 
creditor's obligation under Sec.  1026.19(f)(1)(i).
    4. Shared responsibilities permitted. The settlement agent may 
assume the responsibility to provide some or all of the disclosures 
required by Sec.  1026.19(f). For example, the creditor complies with 
the requirements of Sec.  1026.19(f)(1)(i) and the settlement agent 
complies with the requirements of Sec.  1026.19(f)(1)(v) if the 
settlement agent agrees to complete only the portion of the disclosures 
required by Sec.  1026.19(f)(1)(i) related to closing costs for taxes, 
title fees, and insurance premiums, the creditor agrees to complete the 
remainder of the disclosures required by Sec.  1026.19(f)(1)(i), and 
either the settlement agent or the creditor provides the consumer with 
one single disclosure form containing all of the information required 
to be disclosed pursuant to Sec.  1026.19(f)(1)(i), in accordance with 
the other requirements in Sec.  1026.19(f), such as requirements 
related to timing and delivery.
    19(f)(2) Subsequent changes.
    19(f)(2)(i) Changes due to consumer and seller negotiations.
    1. Requirements. Section 1026.19(f)(2)(i) provides that the 
creditor need not comply with the timing requirements in Sec.  
1026.19(f)(1)(ii) if the revisions reflect changes to the transaction 
due to negotiations between the seller and the consumer, and such 
changes occur after the creditor provides the consumer with the 
disclosures required by Sec.  1026.19(f)(1)(i). For example:
    i . Assume consummation is scheduled for Thursday, the consumer 
received the disclosures required under Sec.  1026.19(f)(1)(i) on 
Monday, and a walk-through inspection occurs on Wednesday morning. 
During the walk-through the consumer discovers damage to the 
dishwasher. The seller agrees to credit the consumer $500 towards a new 
dishwasher. The creditor complies with the requirements of Sec.  
1026.19(f) if the creditor provides a revised disclosure at or before 
consummation on Thursday.
    ii. Assume consummation is scheduled for Friday and on Monday 
morning the creditor sends the disclosures via overnight delivery to 
the consumer, ensuring that the consumer receives the disclosures on 
Tuesday. On Monday night, the seller agrees to sell certain household 
furnishings to the consumer for an additional $1,000, to be paid at the 
real estate closing, and the consumer immediately informs the creditor 
of the change. The creditor may deliver revised disclosures at or 
before consummation. The creditor does not violate Sec.  1026.19(f) 
because the change to the transaction resulting from negotiations 
between the seller and consumer occurred after the creditor provided 
the final disclosures, regardless of the fact that the change occurred 
before the consumer had received the final disclosures.
    19(f)(2)(ii) Changes to the amount actually paid by the consumer.
    1. Requirements. Section 1026.19(f)(2)(ii) states that the creditor 
may provide revised disclosures without complying with the timing 
requirements in Sec.  1026.19(f)(1)(ii) if the amount actually paid by 
the consumer does not exceed the amount disclosed pursuant to Sec.  
1026.19(f)(1)(i) by more than $100, provided that the creditor delivers 
revised disclosures at or before consummation. For example, assume the 
disclosures provided pursuant to Sec.  1026.19(f)(1)(i) reflect $18,700 
as the total amount the consumer must pay at the real estate closing. 
If the disclosures reflect a homeowner's insurance premium of $800, but 
the premium is actually $850, the $50 understatement is not a violation 
of Sec.  1026.19(f)(1)(i). In such case, the creditor complies with 
Sec.  1026.19(f)(1)(i) by providing revised disclosures to the consumer 
at or before consummation, pursuant to Sec.  1026.19(f)(2)(ii), 
reflecting the revised $850 homeowner's insurance premium and the 
revised $18,750 as the total amount the consumer must pay at the real 
estate closing. See also comment 38(i)(9)(ii)-1.
    2. Other adjustments permitted. Revised disclosures provided at 
consummation may reflect adjustments pursuant to both Sec.  
1026.19(f)(2)(i) and (f)(2)(ii). Thus, although Sec.  1026.19(f)(2)(ii) 
limits the difference between the amount disclosed pursuant to Sec.  
1026.19(f)(1)(i) and the amount actually paid by the consumer to $100, 
the amount actually paid by the consumer may vary by more than $100 to 
the extent permitted by Sec.  1026.19(f)(2)(i). For example, if the 
disclosures reflect a homeowner's insurance premium of $800, but the 
premium is actually $850, the $50 understatement is not a violation of 
Sec.  1026.19(f)(1)(i). If, in addition to this understatement, the 
total amount due from the buyer increases by $500 as a result of 
consumer and seller negotiations, the creditor complies with Sec.  
1026.19(f)(1)(i) by providing revised disclosures reflecting the $550 
increase to the consumer at or before closing, pursuant to Sec.  
1026.19(f)(2)(ii). However, to comply with Sec.  1026.25, the creditor 
must maintain documentation demonstrating that $500 of the increase was 
due to negotiations between the consumer and the seller under Sec.  
1026.19(f)(2)(i), and that the remainder of the increase complied with 
Sec.  1026.19(f)(2)(ii).
    19(f)(2)(iii) Changes due to events occurring after consummation.
    1. Requirements. Section 1026.19(f)(2)(iii) requires the creditor 
to deliver revised disclosures within three business days of an event 
that occurs after consummation that causes the disclosures to become 
inaccurate, provided such inaccuracy results solely from payments to a 
government entity in connection with the transaction. For example:
    i. Assume consummation occurs on a Monday and the security 
instrument is recorded on Tuesday, the day after consummation. If the 
fees charged by the recorder's office differ from those disclosed 
pursuant to Sec.  1026.19(f)(1)(i), the creditor complies with Sec.  
1026.19(f)(1)(i) by revising the disclosures accordingly and delivering 
or placing them in the mail no later than Friday, three business days 
after Tuesday. However, if the fees charged by the recorder's office 
differ from those disclosed pursuant to Sec.  1026.19(f)(1)(i), but the 
security instrument is not recorded until the 28th day after 
consummation, the creditor does not comply with Sec.  1026.19(f)(1)(i) 
by placing the revised disclosures in the mail on that day, unless the 
creditor otherwise ensures that the consumer receives the revised 
disclosures by no later than 30 days after consummation, pursuant to 
Sec.  1026.19(f)(2)(iii).
    ii. Assume consummation occurs on a Monday and the security 
instrument is recorded on Tuesday, the day after consummation. If the 
transfer taxes owed to the State differ from those disclosed pursuant 
to Sec.  1026.19(f)(1)(i), then the creditor complies with Sec.  
1026.19(f)(1)(i) by revising the disclosures accordingly and delivering 
or placing them in the mail no later than Friday, three business days 
after Tuesday, and the consumer receives them no later than 30 days 
after consummation, pursuant to Sec.  1026.19(f)(2)(iii).
    iii. Assume consummation occurs on a Monday and the security 
instrument is recorded on Tuesday, the day after consummation. During 
the recording process it is discovered that the property is subject to 
an unpaid $500

[[Page 51430]]

nuisance abatement assessment, which was not disclosed pursuant to 
Sec.  1026.19(f)(1)(i). The creditor complies with Sec.  
1026.19(f)(1)(i) by revising the disclosures accordingly and delivering 
or placing them in the mail no later than Friday, three business days 
after Tuesday, and the consumer receives them no later than 30 days 
after consummation, pursuant to Sec.  1026.19(f)(2)(iii).
    iv. Assume consummation occurs on a Monday and the security 
instrument is recorded on Tuesday, the day after consummation. Assume 
further that ten days after consummation the municipality in which the 
property is located raises property taxes. Section 1026.19(f)(2)(iii) 
does not require the creditor to provide the consumer with a revised 
version of the disclosure required pursuant to Sec.  1026.19(f)(1)(i), 
because the increase in property tax rates is not in connection with 
the consumer's transaction.
    19(f)(2)(iv) Changes due to clerical errors.
    1. Requirements. Section 1026.19(f)(2)(iv) requires the creditor to 
deliver revised disclosures to the consumer if the disclosures provided 
pursuant to Sec.  1026.19(f)(1)(i) contain non-numeric clerical errors. 
An error is considered clerical if it does not affect a numerical 
disclosure and does not affect requirements imposed by Sec.  1026.19(e) 
or (f). For example, if the disclosure identifies the incorrect 
settlement service provider as the recipient of a payment, then Sec.  
1026.19(f)(2)(iv) requires the creditor to provide revised disclosures 
reflecting the corrected non-numeric disclosure as soon as reasonably 
practicable, but no later than 30 days after consummation.
    19(f)(2)(v) Refunds related to the good faith analysis.
    1. Requirements. Section 1026.19(f)(2)(v) provides that, if amounts 
paid at closing exceed the amounts specified under Sec.  
1026.19(e)(3)(i) or (ii), the creditor does not violate Sec.  
1026.19(e)(1)(i) if the creditor refunds the excess to the consumer as 
soon as reasonably practicable and no later than 30 days after 
consummation, and the creditor does not violate Sec.  1026.19(f)(1)(i) 
if the creditor delivers disclosures revised to reflect the refund of 
such excess as soon as reasonably practicable and no later than 30 days 
after consummation. For example, assume that at closing the consumer 
must pay four itemized charges that are subject to the good faith 
determination under Sec.  1026.19(e)(3)(i). If the actual amounts paid 
by the consumer for the four itemized charges subject to Sec.  
1026.19(e)(3)(i) exceeded their respective estimates on the disclosures 
required under Sec.  1026.19(e)(1)(i) by $30, $25, $25, and $10, then 
there would be a $90 excess amount above the limitations prescribed by 
Sec.  1026.19(e)(3)(i). If, further, the amounts paid by the consumer 
for services that are subject to the good faith determination under 
Sec.  1026.19(e)(3)(ii) totaled $1,190, but the respective estimates on 
the disclosures required under Sec.  1026.19(e)(1)(i) totaled only 
$1,000, then there would be a $90 excess amount above the limitations 
prescribed by Sec.  1026.19(e)(3)(ii). Consequently, to comply with 
Sec.  1026.19(f)(1)(i), the creditor must provide revised disclosures 
to the consumer reflecting the $180 refund of the excess amount 
collected. See comment 38(h)(3)-2 for additional guidance on disclosing 
refunds such as these.
    19(f)(3) Charges disclosed.
    19(f)(3)(i) Actual charge.
    1. Requirement. Section 1026.19(f)(3)(i) provides the general rule 
that the amount imposed on the consumer for any settlement service 
shall not exceed the amount actually received by the service provider 
for that service. Except as otherwise provided in Sec.  
1026.19(f)(3)(ii), a creditor violates Sec.  1026.19(f)(3)(i) if the 
amount imposed upon the consumer exceeds the amount actually received 
by the service provider for that service.
    19(f)(3)(ii) Average charge.
    1. Requirements. Average-charge pricing is the exception to the 
rule in Sec.  1026.19(f)(3)(i) that consumers shall not pay more than 
the exact amount charged by a settlement service provider for the 
performance of that service. See comment 19(f)(3)(i)-1. If the creditor 
develops representative samples of specific settlement costs for a 
particular class of transactions, the creditor may charge the average 
cost for that settlement service instead of the actual cost for such 
transactions. An average-charge program may not be used in a way that 
inflates the cost for settlement services overall.
    2. Defining the class of transactions. Section 1026.19(f)(3)(ii)(B) 
requires a creditor to use an appropriate period of time, appropriate 
geographic area, and appropriate type of loan to define a particular 
class of transaction. For purposes of Sec.  1026.19(f)(3)(ii)(B), a 
period of time is appropriate if the sample size is sufficient to 
obtain a representative sample, provided that the period of time is not 
less than 30 days and not more than six months. For purposes of Sec.  
1026.19(f)(3)(ii)(B), a geographic area and loan type are appropriate 
if the sample size is sufficient to obtain a representative sample, 
provided that the area and loan type are not defined in a way that 
pools costs between dissimilar populations. For example:
    i. Assume a creditor defines a geographic area that contains two 
subdivisions, one with a median appraisal cost of $200, and the other 
with a median appraisal cost of $1,000. This geographic area would not 
satisfy the requirements of Sec.  1026.19(f)(3)(ii) because the cost 
characteristics of the two populations are dissimilar. However, a 
geographic area would be appropriate if both subdivisions had a 
relatively normal distribution of appraisal costs, even if the 
distribution ranges from below $200 to above $1,000.
    ii. Assume a creditor defines a type of loan that includes two 
distinct rate products. The median recording fees for one product are 
$80, while the median recording fees for the other product are $130. 
This definition of loan type would not satisfy the requirements of 
Sec.  1026.19(f)(3)(ii) because the cost characteristics of the two 
products are dissimilar. However, a type of loan would be appropriate 
if both products had a relatively normal distribution of recording 
fees, even if the distribution ranges from below $80 to above $130.
    3. Uniform use. If a creditor chooses to use an average charge for 
a settlement service for a particular loan within a class, Sec.  
1026.19(f)(3)(ii)(C) requires the creditor to use that average charge 
for that service on all loans within the class. For example:
    i. Assume a creditor elects to use an average charge for appraisal 
fees. The creditor defines a class of transactions as all fixed-rate 
loans originated between January 1 and April 30 secured by real 
property located within a particular metropolitan statistical area. The 
creditor must then charge the average appraisal charge to all consumers 
obtaining fixed-rate loans originated between May 1 and August 30 
secured by real property located within the same metropolitan 
statistical area.
    ii. The example in paragraph i of this comment assumes that a 
consumer would not be required to pay the average appraisal charge 
unless an appraisal was required on that particular loan. Using the 
example above, if a consumer applies for a loan within the defined 
class, but already has an appraisal report acceptable to the creditor 
from a prior loan application, the creditor may not charge the consumer 
the average appraisal fee because an acceptable appraisal report has 
already been obtained for the consumer's application. Similarly,

[[Page 51431]]

although the creditor defined the class broadly to include all fixed-
rate loans, the creditor may not require the consumer to pay the 
average appraisal charge if the particular fixed-rate loan program the 
consumer applied for does not require an appraisal.
    4. Average amount paid. The average charge must correspond to the 
average amount paid by or imposed on consumers and sellers during the 
prior defined time period. For example, assume a creditor calculates an 
average tax certification fee based on four-month periods starting 
January 1 of each year. The tax certification fees charged to a 
consumer on May 20 may not exceed the average tax certification fee 
paid from January 1 through April 30. A creditor may delay the period 
by a reasonable amount of time if such delay is needed to perform the 
necessary analysis and update the affected systems, provided that each 
subsequent period is scheduled accordingly. For example, a creditor may 
define a four-month period from January 1 to April 30 and begin using 
the average charge from that period on May 15, provided the average 
charge is used until September 15, at which time the average charge for 
the period from May 1 to August 31 becomes effective.
    5. Adjustments based on retrospective analysis required. Creditors 
using average charges must ensure that the total amount paid by or 
imposed on consumers for a service does not exceed the total amount 
paid to the providers of that service for the particular class of 
transactions. A creditor may find that, even though it developed an 
average-cost pricing program in accordance with the requirements of 
Sec.  1026.19(f)(3)(ii), over time it has collected more from consumers 
than it has paid to settlement service providers. For example, assume a 
creditor defines a class of transactions and uses that class to develop 
an average charge of $135 for pest inspections. The creditor then 
charges $135 per transaction for 100 transactions from January 1 
through April 30, but the actual average cost to the creditor of pest 
inspections during this period is $115. The creditor then decreases the 
average charge for the May to August period to account for the lower 
average cost during the January to April period. At this point, the 
creditor has collected $2,000 more than it has paid to settlement 
service providers for pest inspections. The creditor then charges $115 
per transaction for 70 transactions from May 1 to August 30, but the 
actual average cost to the creditor of pest inspections during this 
period is $125. Based on the average cost to the creditor from the May 
to August period, the average charge to the consumer for the September 
to December period should be $125. However, while the creditor spent 
$700 more than it collected during the May to August period, it 
collected $1,300 more than it spent from January to August. In cases 
such as these, the creditor remains responsible for ensuring that the 
amount collected from consumers does not exceed the total amounts paid 
for the corresponding settlement services over time. The creditor may 
develop a variety of methods that achieve this outcome. For example, 
the creditor may choose to refund the proportional overage paid to the 
affected consumers. Or the creditor may choose to factor in the excess 
amount collected to decrease the average charge for an upcoming period. 
Although any method may comply with this requirement, a creditor is 
deemed to have complied if it defines a six-month time period and 
establishes a rolling monthly period of reevaluation. For example, 
assume a creditor defines a six-month time period from January 1 to 
June 30 and the creditor uses the average charge starting July 1. If, 
at the end of July, the creditor recalculates the average cost from 
February 1 to July 31, and then uses the recalculated average cost for 
transactions starting August 1, the creditor complies with the 
requirements of Sec.  1026.19(f)(3)(ii), even if the creditor actually 
collected more from consumers than was paid to providers over time.
    6. Adjustments based on prospective analysis permitted, but not 
required. A creditor may prospectively adjust average charges if it 
develops a statistically reliable and accurate method for doing so. For 
example, assume a creditor calculates average charges based on two time 
periods: winter (October 1 to March 31), and summer (April 1 to 
September 30). If the creditor can demonstrate that the average cost of 
a particular settlement service is always at least 15 percent more 
expensive during the winter period than the summer period, the creditor 
may increase the average charge for the next winter period by 15 
percent over the average cost for the current summer period, provided, 
however, that the creditor performs retrospective periodic adjustments, 
as explained in comment 19(f)(3)(ii)-5.
    7. Charges that vary with loan amount or property value. An average 
charge may not be used for any charge that varies according to the loan 
amount or property value. For example, an average charge may not be 
used for a transfer tax if the transfer tax is calculated as a 
percentage of the loan amount or property value. Average charges also 
may not be used for any insurance premium. For example, average charges 
may not be used for title insurance or for either the upfront premium 
or initial escrow deposit for hazard insurance.
    8. Prohibited by law. An average charge may not be used where 
prohibited by any applicable State or local law. For example, a 
creditor may not impose an average charge for an appraisal if 
applicable law prohibits creditors from collecting any amount in excess 
of the actual cost of the appraisal.
    9. Documentation required. To comply with Sec.  1026.25, a creditor 
must retain all documentation used to calculate the average charge for 
a particular class of transactions for at least two years after any 
settlement for which that average charge was used. The documentation 
must support the components and methods of calculation. For example, if 
a creditor calculates an average charge for a particular county 
recording fee by simply averaging all of the relevant fees paid in the 
prior month, the creditor need only retain the receipts for the 
individual recording fees, a ledger demonstrating that the total amount 
received did not exceed the total amount paid over time, and a document 
detailing the calculation. However, if a creditor develops complex 
algorithms for determining averages, not only must the creditor 
maintain the underlying receipts and ledgers, but the creditor must 
maintain documentation sufficiently detailed to allow an examiner to 
verify the accuracy of the calculations.
    19(f)(4) Transactions involving a seller.
    19(f)(4)(ii) Timing.
    1. Requirement. Section 1026.19(f)(4)(ii) provides that the person 
conducting the closing shall provide the disclosures required under 
Sec.  1026.19(f)(4)(i) no later than the day of consummation. If an 
event occurs after consummation that causes such disclosures to become 
inaccurate and such inaccuracy results solely from payments to a 
government entity, the person conducting the closing shall deliver 
revised disclosures to the seller no later than 30 days after 
consummation. Section 1026.19(f)(4)(i) requires disclosure of the items 
that relate to the seller's transaction. Thus, the person conducting 
the closing need only redisclose if an item related to the seller's 
transaction becomes inaccurate and such inaccuracy results solely from 
payments to a government entity. For example, assume a transaction 
where the seller pays the transfer tax, the consummation occurs on 
Monday, and the security instrument is recorded on

[[Page 51432]]

Tuesday, the day after consummation. If the transfer taxes owed to the 
State differ from those disclosed pursuant to Sec.  1026.19(f)(4)(i), 
the person conducting the settlement complies with Sec.  
1026.19(f)(4)(ii) by revising the disclosures accordingly and providing 
them to the seller no later than 30 days after consummation.
    19(g) Special information booklet at time of application.
    19(g)(1) Creditor to provide special information booklet.
    1. Revision of booklet. The Bureau may, after publishing a notice 
in the Federal Register, issue a revised or separate special 
information booklet that addresses transactions subject to Sec.  
1026.19(g). The Bureau may also choose to permit the forms or booklets 
of other Federal agencies. In such an event, the availability of the 
booklet or alternate materials for these transactions will be set forth 
in a notice in the Federal Register. The current version of the booklet 
can be accessed on the Bureau's Web site, www.consumerfinance.gov/learnmore.
    (2.) Multiple applicants. When two or more persons apply together 
for a loan, the creditor complies with Sec.  1026.19(g) if the creditor 
provides a copy of the booklet to one of the persons applying.
    19(g)(2) Permissible changes.
    1. Reproduction. The special information booklet may be reproduced 
in any form, provided that no changes are made, except as otherwise 
provided under Sec.  1026.19(g). Provision of the special information 
booklet as a part of a larger document does not satisfy the 
requirements of Sec.  1026.19(g). Any color, size and quality of paper, 
type of print, and method of reproduction may be used so long as the 
booklet is clearly legible.
    2. Other permissible changes. The special information booklet may 
be translated into languages other than English. Changes to the 
booklet, other those specified in Sec.  1026.19(g)(2)(i) through (iv), 
do not comply with Sec.  1026.19(g).[ltrif]

Section 1026.22--Determination of Annual Percentage Rate

    22(a) Accuracy of annual percentage rate.
* * * * *
    22(a)(4) Mortgage loans.
    1. Example. If a creditor improperly omits a $75 fee from the 
finance charge on a regular transaction, the understated finance charge 
is considered accurate under Sec.  1026.18(d)(1) [rtrif]or 
1026.38(o)(2), as applicable[ltrif], and the annual percentage rate 
corresponding to that understated finance charge also is considered 
accurate even if it falls outside the tolerance of \1/8\ of 1 
percentage point provided under Sec.  1026.22(a)(2). Because a $75 
error was made, an annual percentage rate corresponding to a $100 
understatement of the finance charge would not be considered accurate.
* * * * *

Section 1026.24--Advertising

* * * * *
    24(d) Advertisement of terms that require additional disclosures.
* * * * *
    24(d)(2) Additional terms.
* * * * *
    2. Disclosure of repayment terms. The phrase ``terms of repayment'' 
generally has the same meaning as the ``payment schedule'' required to 
be disclosed under Sec.  1026.18(g)[rtrif], the interest rate and 
payment summary table required to be disclosed pursuant to Sec.  
1026.18(s), or the projected payments table required to be disclosed 
pursuant to Sec. Sec.  1026.37(c) and 1026.38(c), as applicable[ltrif]. 
Section 1026.24(d)(2)(ii) provides flexibility to creditors in making 
this disclosure for advertising purposes. Repayment terms may be 
expressed in a variety of ways in addition to an exact repayment 
schedule; this is particularly true for advertisements that do not 
contemplate a single specific transaction. Repayment terms, however, 
must reflect the consumer's repayment obligations over the full term of 
the loan, including any balloon payment, see comment 24(d)(2)-3, not 
just the repayment terms that will apply for a limited period of time. 
For example:
    i. A creditor may use a unit-cost approach in making the required 
disclosure, such as ``48 monthly payments of $27.83 per $1,000 
borrowed.''
    ii. In an advertisement for credit secured by a dwelling, when any 
series of payments varies because of the inclusion of mortgage 
insurance premiums, a creditor may state the number and timing of 
payments, the fact that payments do not include amounts for mortgage 
insurance premiums, and that the actual payment obligation will be 
higher.
    iii. In an advertisement for credit secured by a dwelling, when one 
series of monthly payments will apply for a limited period of time 
followed by a series of higher monthly payments for the remaining term 
of the loan, the advertisement must state the number and time period of 
each series of payments, and the amounts of each of those payments. For 
this purpose, the creditor must assume that the consumer makes the 
lower series of payments for the maximum allowable period of time.
* * * * *

Subpart D--Miscellaneous

Section 1026.25--Record Retention

* * * * *
    [rtrif]25(c) Records related to certain requirements for mortgage 
loans.
    25(c)(1) Records related to requirements for loans secured by real 
property.
    1. Evidence of required actions. The creditor must retain evidence 
that it performed the required actions as well as made the required 
disclosures. This includes, for example, evidence that the creditor 
properly differentiated between affiliated and independent third party 
settlement service providers for determining good faith under Sec.  
1026.19(e)(3); evidence that the creditor properly documented the 
reason for revisions under Sec.  1026.19(e)(3)(iv); or evidence that 
the creditor properly calculated average cost under Sec.  
1026.19(f)(3)(ii).
    2. Mortgage brokers. See comment 19(e)(1)(ii)-2 regarding instances 
where Sec.  1026.19(e) imposes Sec.  1026.25(c) responsibilities on 
mortgage brokers.
    25(c)(1)(iii) Electronic records. (1.) Other recordkeeping formats 
may also be required. The requirements of Sec.  1026.25(c)(1)(iii) are 
in addition to any other recordkeeping formats that may be required by 
administrative agencies responsible for enforcing the 
regulation.[ltrif]
* * * * *

Section 1026.28--Effect on State Laws

    28(a) Inconsistent disclosure requirements.
    1. General. There are three sets of preemption criteria: one 
applies to the general disclosure and advertising rules of the 
regulation, and two apply to the credit billing provisions. Section 
1026.28 also provides for Bureau determinations of preemption. 
[rtrif]For purposes of determining whether a State law is inconsistent 
with the requirements of sections 4 and 5 of RESPA (other than the 
RESPA section 5(c) requirements regarding provision of a list of 
certified homeownership counselors) and Sec. Sec.  1026.19(e) and (f), 
1026.37, and 1026.38 under Sec.  1026.28, any reference to ``creditor'' 
in Sec.  1026.28 or this commentary includes a creditor, a mortgage 
broker, or a closing agent, as applicable.[ltrif]
* * * * *

Section 1026.29--State Exemptions

    29(a) General rule.
* * * * *

[[Page 51433]]

    2. Substantial similarity. The ``substantially similar'' standard 
requires that State statutory or regulatory provisions and State 
interpretations of those provisions be generally the same as the 
Federal Act and Regulation Z. This includes the requirement that State 
provisions for reimbursement to consumers for overcharges be at least 
equivalent to those required in section 108 of the Act. A State will be 
eligible for an exemption even if its law covers classes of 
transactions not covered by the Federal law. For example, if a State's 
law covers agricultural credit, this will not prevent the Bureau from 
granting an exemption for consumer credit, even though agricultural 
credit is not covered by the Federal law. [rtrif]For transactions 
subject to Sec.  1026.19(e) and (f), Sec.  1026.29(a)(1) requires that 
the State statutory or regulatory provisions and State interpretations 
of those provisions require disclosures that are generally the same as 
the disclosures required by Sec.  1026.19(e) and (f), with form and 
content as prescribed by Sec. Sec.  1026.37 and 1026.38.[ltrif]
* * * * *
    4. Exemptions granted. [rtrif]i.[ltrif] The Bureau recognizes 
exemptions granted by the Board of Governors of the Federal Reserve 
System prior to July 21, 2011, until and unless the Bureau makes and 
publishes any contrary determination. Effective October 1, 1982, the 
Board of Governors granted the following exemptions from portions of 
the revised Truth in Lending Act:
    [lsqbb]i.[rsqbb] [rtrif]A.[ltrif] Maine. Credit or lease 
transactions subject to the Maine Consumer Credit Code and its 
implementing regulations are exempt from chapters 2, 4 and 5 of the 
Federal Act. (The exemption does not apply to transactions in which a 
Federally chartered institution is a creditor or lessor.)
    [lsqbb]ii.[rsqbb] [rtrif]B.[ltrif] Connecticut. Credit transactions 
subject to the Connecticut Truth in Lending Act are exempt from 
chapters 2 and 4 of the Federal Act. (The exemption does not apply to 
transactions in which a Federally chartered institution is a creditor.)
    [lsqbb]iii.[rsqbb] [rtrif]C.[ltrif] Massachusetts. Credit 
transactions subject to the Massachusetts Truth in Lending Act are 
exempt from chapters 2 and 4 of the Federal Act. (The exemption does 
not apply to transactions in which a Federally chartered institution is 
a creditor.)
    [lsqbb]iv.[rsqbb] [rtrif]D.[ltrif] Oklahoma. Credit or lease 
transactions subject to the Oklahoma Consumer Credit Code are exempt 
from chapters 2 and 5 of the Federal Act. (The exemption does not apply 
to sections 132 through 135 of the Federal Act, nor does it apply to 
transactions in which a Federally chartered institution is a creditor 
or lessor.)
    [lsqbb]v.[rsqbb] [rtrif]E.[ltrif] Wyoming. Credit transactions 
subject to the Wyoming Consumer Credit Code are exempt from chapter 2 
of the Federal Act. (The exemption does not apply to transactions in 
which a Federally chartered institution is a creditor.)
    [rtrif]ii. Although RESPA and its implementing Regulation X do not 
provide procedures for granting State exemptions, for transactions 
subject to Sec.  1026.19(e) and (f), compliance with the requirements 
of Sec. Sec.  1026.19(e) and (f), 1026.37, and 1026.38 satisfies the 
requirements of sections 4 and 5 of the Real Estate Settlement 
Procedures Act (RESPA) (other than the RESPA section 5(c) requirements 
regarding provision of a list of certified homeownership counselors). 
If such a transaction is subject to one of the State exemptions 
previously granted by the Board of Governors and noted in comment 
29(a)-4.i above, however, then compliance with the requirements of any 
State laws and regulations incorporating the requirements of Sec. Sec.  
1026.19(e) and (f), 1026.37, and 1026.38 likewise satisfies the 
requirements of sections 4 and 5 of RESPA (other than the RESPA section 
5(c) requirements regarding provision of a list of certified 
homeownership counselors) and the provisions of Regulation X (12 CFR 
part 1024) implementing those sections of RESPA.[ltrif]
* * * * *

[rtrif]Section 1026.37--Content of Disclosures for Certain Mortgage 
Transactions (Loan Estimate)

    1. As applicable. The disclosures required by Sec.  1026.37 are to 
be made only as applicable, except as otherwise provided in Sec.  
1026.37(o). A disclosure that is not applicable to a particular 
transaction generally may be eliminated entirely. For example, in a 
transaction for which the creditor does not require homeowner's 
insurance, the disclosure required by Sec.  1026.37(m)(3) need not be 
included. Alternatively, the creditor generally may include disclosures 
that are not applicable to the transaction and note that they are ``not 
applicable'' or ``N/A.'' As provided in Sec.  1026.37(i) and (j), 
however, the adjustable payment and adjustable interest rate tables 
required by those paragraphs may be included only if those disclosures 
are applicable to the transaction and otherwise must be excluded.
    2. Format. See Sec.  1026.37(o) and its commentary for guidance on 
the proper format to be used in making the disclosures, as well as 
permissible modifications.
    37(a) General information.
    37(a)(3) Creditor.
    1. Multiple creditors. For transactions with multiple creditors, 
see Sec.  1026.17(d) and comment 17(d)-1 for further guidance. The 
creditor making the disclosures, however, must be identified as the 
creditor for purposes of Sec.  1026.37(a)(3).
    2. Mortgage broker as loan originator. In transactions involving a 
mortgage broker, the name of the creditor must be disclosed, if known, 
even if the mortgage broker provides the disclosures to the consumer.
    37(a)(4) Date issued.
    1. Applicable date. Section 1026.37(a)(4) requires disclosure of 
the date the creditor mails or delivers the Loan Estimate to the 
consumer. The creditor's method of delivery does not affect the date 
issued.
    37(a)(5) Applicants.
    1. Multiple consumers. If there is more than one consumer applying 
for the credit, Sec.  1026.37(a)(5) requires disclosure of the name and 
mailing address of each consumer on the Loan Estimate. If the number of 
consumers applying for the credit does not fit in the space allocated 
on the Loan Estimate, an additional page with that information may be 
appended to the end of the form. For additional information on 
permissible changes, see Sec.  1026.37(o) and its commentary.
    37(a)(6) Property.
    1. Alternate property address. Section 1026.37(a)(6) requires 
disclosure of the street address, if available, and the city, state, 
and zip code for the property that secures the credit. If there is no 
street address, Sec.  1026.37(a)(6) requires disclosure of a legal 
description or other location information for the property; however, 
disclosure of a zip code is required in all instances.
    37(a)(7) Sale price.
    1. Estimated property value. In transactions where there is no 
seller, such as in a refinancing, Sec.  1026.37(a)(7)(ii) requires the 
creditor to disclose the estimated value of the property identified in 
Sec.  1026.37(a)(6) at the time the disclosure is issued to the 
consumer. The creditor may use the estimate provided by the consumer at 
application, or if it has performed its own estimate of the property 
value by the time the disclosure is provided to the consumer, use that 
estimate. If the creditor has obtained any appraisals or valuations of 
the property for the application at the time the disclosure is

[[Page 51434]]

issued to the consumer, the value determined by the appraisal or 
valuation to be used during underwriting for the application is 
disclosed as the estimated property value.
    37(a)(8) Loan term.
    1. Adjustable loan term. Section 1026.37(a)(8) requires disclosure 
of the term to maturity of the credit transaction. If the term to 
maturity is adjustable, to comply with Sec.  1026.37(a)(8), the 
possible range of the loan term, including the maximum number of years 
possible under the terms of the legal obligation, must be disclosed. 
For example, if the loan term depends on the value of interest rate 
adjustments during the term of the loan, to calculate the maximum loan 
term, the creditor should assume that the interest rate rises as 
rapidly as possible after consummation, taking into account the terms 
of the legal obligation, including any applicable caps on interest rate 
adjustments and lifetime interest rate cap.
    37(a)(9) Purpose.
    1. General. Section 1026.37(a)(9) requires disclosure of the 
consumer's intended use of the credit extended. In ascertaining the 
consumer's intended use, Sec.  1026.37(a)(9) requires the creditor to 
consider all relevant information known to the creditor at the time of 
the disclosure. To the extent the purpose is not known, the creditor 
may rely on the consumer's stated purpose. The following examples 
illustrate when each of the permissible purposes should be disclosed:
    i. Purchase. The consumer intends to use the credit to purchase the 
property.
    ii. Refinance. The consumer refinances an existing obligation 
already secured by the consumer's dwelling to change the rate, term, or 
other loan features and may or may not receive cash from the 
transaction. For example, in a refinance with no cash provided, the new 
amount financed does not exceed the unpaid principal balance, any 
earned unpaid finance charge on the existing debt, and amounts 
attributed solely to the costs of the refinancing. Conversely, in a 
refinance with cash provided, the consumer refinances an existing 
mortgage obligation and receives money from the transaction that is in 
addition to the funds used to pay the unpaid principal balance, any 
earned unpaid finance charge on the existing debt, and amounts 
attributed solely to the costs of the refinancing. In such a 
transaction, the consumer may, for example, use the newly-extended 
credit to pay off the balance of the existing mortgage and other 
consumer debt, such as a credit card balance.
    iii. Construction. Section 1026.37(a)(9)(iii) requires the creditor 
to disclose that the loan is for construction in transactions where the 
creditor extends credit to finance only the cost of construction 
(``construction-only'' loan), whether it is new construction or a 
renovation project, and in transactions where a multiple advance loan 
may be permanently financed by the same creditor (``construction-to-
permanent'' loan). In a construction-only loan, the borrower may be 
required to make interest-only payments during the loan term with the 
balance commonly due at the end of the construction project. For 
additional guidance on disclosing construction-to-permanent loans, see 
Sec.  1026.17(c)(6)(ii) and comments 17(c)(6)-2 and -3.
    iv. Home equity loan. The creditor is required to disclose that the 
credit is for a ``home equity loan'' if the creditor extends credit for 
any purpose other than a purchase, refinancing, or construction. This 
disclosure applies whether the property that secures the loan is a 
first or subordinate lien.
    2. Refinance coverage. The disclosure requirements under Sec.  
1026.37(a)(9)(ii) apply to credit transactions that meet the definition 
of a refinancing under Sec.  1026.20(a) but that are made by any 
creditor. This differs from Sec.  1026.20(a), which applies only to 
refinancings undertaken by the original creditor or a holder or 
servicer of the original debt.
    37(a)(10) Product.
    1. No features. If the loan product disclosed pursuant to Sec.  
1026.37(a)(10) does not include any of the features described in Sec.  
1026.37(a)(10)(ii), only the product type and introductory and 
adjustment periods, if applicable, are disclosed. For example:
    i. Adjustable rate. When disclosing an adjustable rate product, the 
disclosure of the loan product must be preceded by the length of the 
introductory period and the frequency of the adjustment periods 
thereafter. Thus, for example, if the loan product is an adjustable 
rate with an introductory rate that remains the same for the first five 
years of the loan term and then adjusts every three years starting in 
year six, the disclosure required by Sec.  1026.37(10)(i) is ``5/3 
Adjustable Rate.''
    ii. Step rate. If the loan product is a step rate with an 
introductory interest rate that lasts for ten years and adjusts every 
year thereafter for the next five years, and then adjusts every three 
years for the next 15 years, the disclosure required by Sec.  
1026.37(a)(10)(i) is ``10/1/3 Step Rate.''
    iii. Fixed rate. If the loan product is not an adjustable rate or a 
step rate, as described in Sec.  1026.37(a)(10)(i), even if an 
additional feature described in Sec.  1026.37(a)(10)(ii) may change the 
consumer's periodic payment, the disclosure required by Sec.  
1026.37(a)(10)(i) is ``Fixed Rate.''
    2. Additional features. When disclosing a loan product with at 
least one of the features described in Sec.  1026.37(a)(10)(ii), Sec.  
1026.37(a)(10)(iii) and (iv) requires the disclosure of only the first 
applicable feature in the order of Sec.  1026.37(a)(10)(ii) and that it 
be preceded by the time period or the length of the introductory period 
and the frequency of the adjustment periods, as applicable, followed by 
a description of the loan product and its time period as provided for 
in Sec.  1026.37(a)(10)(i). For example:
    i. Negative amortization. Some loan products, such as payment-
option loans, permit the borrower to make payments that are 
insufficient to cover all of the interest accrued, and the unpaid 
interest is added to the principal balance. Where the loan product 
includes a loan feature that may cause the loan balance to increase, 
the disclosure required by Sec.  1026.37(a)(10)(ii)(A) is preceded by 
the time period that the negative amortization is permitted (e.g., ``2 
Year Negative Amortization''), followed by the loan product type. Thus, 
a fixed-rate product with a step-payment feature for the first two 
years of the legal obligation that may negatively amortize is disclosed 
as ``2 Year Negative Amortization, Fixed Rate.''
    ii. Interest only. When disclosing an ``Interest Only'' feature, as 
that term is defined in Sec.  1026.18(s)(7)(iv), the applicable time 
period must precede the label ``Interest Only.'' Thus, a fixed rate 
loan with only interest due for the first five years of the loan term 
is disclosed as ``5 Year Interest Only, Fixed Rate.'' If the interest 
only feature fails to cover the total interest due then the disclosure 
must reference the negative amortization feature and not the interest-
only feature (i.e., ``5 Year Negative Amortization, Fixed Rate'').
    iii. Step payment. When disclosing a step payment feature (which is 
sometimes also referred to as a graduated payment), the period of time 
over which the scheduled payments will increase must precede the label 
``Step Payment'' (e.g., ``5 Year Step Payment'') followed by the name 
of the loan product. Thus, a fixed-rate mortgage subject to a 5-year 
step-payment plan is disclosed as a ``5-Year Step Payment, Fixed 
Rate.''
    iv. Balloon payment. If a loan product includes a ``balloon 
payment,'' as that

[[Page 51435]]

term is defined in Sec.  1026.37(b)(5), the disclosure of the balloon 
payment feature, including the year the payment is due, precedes the 
disclosure of the loan product. Thus, if the loan product is an 
adjustable rate with an introductory rate that lasts for three years 
and adjusts each year thereafter until the balloon payment is due in 
the seventh year of the loan term, the disclosure required is ``Year 7 
Balloon Payment, 3/1 Step Rate.''
    v. Seasonal payment. If a loan product includes a seasonal payment 
feature, Sec.  1026.37(a)(10)(ii)(E) requires that the creditor 
disclose the feature. The feature is not, however, required to be 
disclosed with any preceding time period. Disclosure of the label 
``Seasonal Payment'' without any preceding number of years satisfies 
this requirement.
    37(a)(11) Loan type.
    1. Other loan type. If the transaction is a type other than a 
conventional, FHA, or VA loan, Sec.  1026.37(a)(11) requires the 
creditor to provide a name or brief description of the loan type. For 
example, a loan that is guaranteed or funded by the Federal government 
under the Rural Housing Service (RHS) of the U.S. Department of 
Agriculture is required to be disclosed under the subcategory 
``Other,'' because it is guaranteed or funded by a Federal agency, and 
therefore is not ``Conventional,'' but is neither a ``VA'' nor an 
``FHA'' loan. Section 1026.37(a)(11)(iv) requires a brief description 
of the loan type (e.g., ``RHS''). A loan that is insured or guaranteed 
by a State agency must also be disclosed as ``Other.''
    37(a)(12) Loan identification number (Loan ID #).
    1. Unique identifier. The unique loan identification number is 
determined by the lender. Because the number must be unique under Sec.  
1026.37(a)(12), different, but related, loan transactions with a single 
creditor may not share the same loan identification number.
    37(a)(13) Rate lock.
    1. Interest rate. For purposes of Sec.  1026.37(a)(13), the 
interest rate is set for a specific period of time if the rate will not 
vary during that period, other than under circumstances that are 
described in any rate-lock agreement between the creditor and consumer.
    2. Expiration date. Whether or not the interest rate is set for a 
specific period of time, Sec.  1026.37(a)(13) requires the creditor to 
provide the date and time the terms and costs disclosed in the Loan 
Estimate expire if the transaction is not yet consummated, or the terms 
and costs are not otherwise accepted or extended.
    3. Time zone. The disclosures required by Sec.  1026.37(13) 
requires the applicable time zone for all times provided, as determined 
by the creditor. For example, if the creditor is located in New York 
and determines that the Loan Estimate will expire at 5:00 p.m. in the 
time zone applicable to its location, while standard time is in effect, 
the disclosure must include a reference to the Eastern time zone (i.e., 
5:00 p.m. EST).
    37(b) Loan terms.
    1. Legal obligation. The disclosures required by Sec.  1026.37 must 
reflect good faith estimates of the credit terms to which the parties 
will be legally bound for the transaction. If certain terms of the 
transaction are known or reasonably should be known to the creditor, 
based on information such as the consumer's selection of a product type 
or other information in the consumer's application, Sec.  1026.37 
requires the creditor to disclose those credit terms. For example, if 
the consumer selects a product type with a prepayment penalty, the 
terms of the prepayment penalty known to the creditor at the time the 
disclosure is provided shall be set forth in the disclosure.
    37(b)(2) Interest rate.
    1. Initial interest rate if adjustable. The fully-indexed rate is 
defined in Sec.  1026.37(b)(2) as the index plus the margin at 
consummation. Although Sec.  1026.37(b)(2) refers to the index plus 
margin ``at consummation,'' if the index value that will be in effect 
at consummation is unknown at the time the disclosure is provided 
pursuant to Sec.  1026.19(e), such as for the disclosure delivered 
within three business days after receipt of a consumer's application, 
the fully-indexed rate disclosed under Sec.  1026.37(b)(2) may be based 
on the index in effect at the time the disclosure is provided. The 
index in effect at consummation (or the time the disclosure is provided 
pursuant to Sec.  1026.19(e)) need not be used if the contract provides 
for a delay in the implementation of changes in an index value. For 
example, if the contract specifies that rate changes are based on the 
index value in effect 45 days before the change date, creditors may use 
any index value in effect during the 45 days before consummation (or 
any earlier date of disclosure) in calculating the fully-indexed rate 
to be disclosed.
    37(b)(3) Principal and interest payment.
    1. Frequency of principal and interest payment. Pursuant to Sec.  
1026.37(o)(5)(i), if the contract provides for a unit-period of a 
month, such as a monthly payment schedule, the payment disclosed under 
Sec.  1026.37(b)(3) should be labeled ``Monthly Principal & Interest.'' 
If the contract requires bi-weekly payments of principal or interest, 
the payment should be labeled ``Bi-Weekly Principal & Interest.'' If a 
creditor voluntarily permits a payment schedule not provided for in the 
contract, such as an informal principal-reduction arrangement, the 
disclosure should reflect only the payment frequency provided for in 
the contract. See Sec.  1026.17(c)(1).
    2. Initial periodic payment if adjustable. Pursuant to Sec.  
1026.37(b)(3), the initial periodic payment amount that will be due 
under the terms of the legal obligation must be disclosed. If the 
initial periodic payment may vary based on an adjustment to an index, 
Sec.  1026.37(b)(3) requires that the disclosure be based on the fully-
indexed rate disclosed under Sec.  1026.37(b)(2). See comment 37(b)(2)-
1 for guidance regarding calculating the fully-indexed rate.
    37(b)(4) Prepayment penalty.
    1. Transaction includes a prepayment penalty. Section 1026.37(b)(4) 
requires disclosure of a statement of whether the transaction includes 
a prepayment penalty. If the transaction includes a prepayment penalty, 
Sec.  1026.37(b)(7) sets forth the information that must be disclosed 
under Sec.  1026.37(b)(4) (i.e., the maximum amount of the prepayment 
penalty that may be imposed under the terms of the loan contract and 
the date when the penalty will no longer be imposed). For an example of 
such disclosure, see form H-24 in appendix H to this part. The 
disclosure under Sec.  1026.37(b)(4) would apply to transactions where 
the terms of the loan contract provide for a prepayment penalty, even 
though it is not certain at the time of the disclosure whether the 
consumer will, in fact, make a payment to the creditor that would cause 
imposition of the penalty. For example, if the monthly interest accrual 
amortization method described in comment 37(b)(4)-2.i is used such that 
interest is assessed on the balance for a full month even if the 
consumer makes a full prepayment before the end of the month, as 
discussed in comment 37(b)(4)-2.i, the transaction includes a 
prepayment penalty that must be disclosed pursuant to Sec.  
1026.37(b)(4).
    2. Examples of prepayment penalties. For purposes of Sec.  
1026.37(b)(4), the following are examples of prepayment penalties:
    i. A charge determined by treating the loan balance as outstanding 
for a period of time after prepayment in full and applying the interest 
rate to such ``balance,'' even if the charge results from interest 
accrual amortization used

[[Page 51436]]

for other payments in the transaction under the terms of the loan 
contract. ``Interest accrual amortization'' refers to the method by 
which the amount of interest due for each period (e.g., month) in a 
transaction's term is determined. For example, ``monthly interest 
accrual amortization'' treats each payment as made on the scheduled, 
monthly due date even if it is actually paid early or late (until the 
expiration of any grace period). Thus, under the terms of a loan 
contract providing for monthly interest accrual amortization, if the 
amount of interest due on May 1 for the preceding month of April is 
$3,000, the loan contract will require payment of $3,000 in interest 
for the month of April whether the payment is made on April 20, on May 
1, or on May 10. In this example, if the consumer prepays the loan in 
full on April 20 and if the accrued interest as of that date is $2,000, 
then assessment of a charge of $3,000 constitutes a prepayment penalty 
of $1,000 because the amount of interest actually earned through April 
20 is only $2,000.
    ii. A fee, such as an origination or other loan closing cost, that 
is waived by the creditor on the condition that the consumer does not 
prepay the loan.
    iii A minimum finance charge in a simple interest transaction.
    iv. Computing a refund of unearned interest by a method that is 
less favorable to the consumer than the actuarial method, as defined by 
section 933(d) of the Housing and Community Development Act of 1992, 15 
U.S.C. 1615(d). For purposes of computing a refund of unearned 
interest, if using the actuarial method defined by applicable State law 
results in a refund that is greater than the refund calculated by using 
the method described in section 933(d) of the Housing and Community 
Development Act of 1992, creditors should use the State law definition 
in determining if a refund is a prepayment penalty.
    3. Fees that are not prepayment penalties. For purposes of Sec.  
1026.37(b)(4), fees which are not prepayment penalties include, for 
example:
    i. Fees imposed for preparing and providing documents when a loan 
is paid in full, whether or not the loan is prepaid, such as a loan 
payoff statement, a reconveyance document, or another document 
releasing the creditor's security interest in the dwelling that secures 
the loan.
    ii. Loan guarantee fees.
    4. Rebate of finance charge. For an obligation that includes a 
finance charge that does not take into account each reduction in the 
principal balance of the obligation, the disclosure under Sec.  
1026.37(b)(4) reflects whether or not the consumer is entitled to a 
rebate of any finance charge if the obligation is prepaid in full or 
part. Finance charges that do not take into account each reduction in 
the principal balance of an obligation may include precomputed finance 
charges. If any portion of an unearned precomputed finance charge will 
not be provided as a rebate upon full prepayment, the disclosure 
required by Sec.  1026.37(b)(4) will be an affirmative answer, indicate 
the maximum amount of such precomputed finance charge that may not be 
provided as a rebate to the consumer upon any prepayment, and when the 
period during which a full rebate would not be provided terminates, as 
required by Sec.  1026.37(b)(7). If, instead, there will be a full 
rebate of the precomputed finance charge and no other prepayment 
penalty imposed on the consumer, to comply with the requirements of 
Sec.  1026.37(b)(4) and (7), the creditor states a negative answer 
only. If the transaction involves both a precomputed finance charge and 
a finance charge computed by application of a rate to an unpaid 
balance, disclosure about both the entitlement to any rebate of the 
finance charge upon prepayment and any other prepayment penalty are 
made as one disclosure under Sec.  1026.37(b)(4), stating one 
affirmative or negative answer and an aggregated amount and time period 
for the information required by Sec.  1026.37(b)(7). For example, if in 
such a transaction, a portion of the precomputed finance charge will 
not be provided as a rebate and the loan contract also provides for a 
prepayment penalty based on the amount prepaid, both disclosures are 
made under Sec.  1026.37(b)(4) as one aggregate amount, stating the 
maximum amount and time period under Sec.  1026.37(b)(7). If the 
transaction instead provides a rebate of the precomputed finance charge 
upon prepayment, but imposes a prepayment penalty based on the amount 
prepaid, to comply with Sec.  1026.37(b)(4), the creditor states an 
affirmative answer and the information about the prepayment penalty, as 
required by Sec.  1026.37(b)(7). For further guidance and examples of 
these types of charges, see comment 18(k)(2)-1. For analogous guidance, 
see comment 18(k)-2. For further guidance on prepaid finance charges 
generally, see comment 18(k)-3.
    5. Additional guidance. For additional guidance generally on 
disclosures of prepayment penalties, see comment 18(k)-1.
    37(b)(5) Balloon payment.
    1. Regular periodic payment. The regular periodic payments used to 
determine whether a payment is a balloon payment under Sec.  
1026.37(b)(5) are the payments of principal and interest (or interest 
only, depending on the loan features) specified under the terms of the 
loan contract that are due from the consumer for two or more unit 
periods in succession. All regular periodic payments during the loan 
term are used to determine whether a particular payment is a balloon 
payment, regardless of whether the regular periodic payments have 
changed during the loan term due to rate adjustments or other payment 
changes permitted or required under the loan contract. If a specific 
payment is more than two times any one regular periodic payment during 
the loan term, then it is disclosed as a balloon payment under Sec.  
1026.37(b)(5) unless the specific payment itself is a regular periodic 
payment.
    i. For example, assume that, under a 15-year step-rate mortgage, 
the loan contract provides for scheduled monthly payments of $300 each 
during the years one through three and scheduled monthly payments of 
$700 each during years four through 15. If an irregular payment of 
$1,000 is scheduled during the final month of year 15, that payment is 
disclosed as a balloon payment under Sec.  1026.37(b)(5), because it is 
more than two times the regular periodic payment amount of $300 during 
years one through three. This is the case even though the irregular 
payment is not more than two times the regular periodic payment of $700 
per month during years four through fifteen. The $700 monthly payments 
during years four through fifteen are not balloon payments even though 
they are more than two times the regular periodic payments during years 
one through three, because they are regular periodic payments.
    ii. If the loan has an adjustable rate under which the regular 
periodic payments may increase after consummation, but the amounts of 
such payment increases (if any) are unknown at the time of 
consummation, then the regular periodic payments are based on the 
fully-indexed rate, except as otherwise determined by any premium or 
discounted rates, the application of any interest rate adjustment caps, 
or any other known, scheduled rates under the terms specified in the 
loan contract. For analogous guidance, see comments 17(c)(1)-8 and -10. 
For example, assume that, under a 30-year adjustable rate mortgage, (1) 
the loan contract requires monthly payments of $300 during years one 
through five, (2) the loan contract permits interest rate increases 
every three years starting in

[[Page 51437]]

the sixth year up to the fully-indexed rate, subject to caps on 
interest rate adjustments specified in the loan contract, (3) based on 
the application of the interest rate adjustment caps, the interest rate 
may increase to the fully-indexed rate starting in year nine, and (4) 
the monthly payment based on the fully-indexed rate is $700. The 
regular periodic payments during years one through five are $300 per 
month, because they are known and scheduled. The regular periodic 
payments during years six through eight are up to $700 per month, based 
on the fully-indexed rate but subject to the application of interest 
rate adjustment caps specified under the loan contract. The regular 
periodic payments during years nine through thirty are $700, based on 
the fully-indexed rate. Therefore, if an irregular payment of $1,000 is 
scheduled during the final month of year 30, that payment is disclosed 
as a balloon payment under Sec.  1026.37(b)(5), because it is more than 
two times the regular periodic payment amount of $300 during years one 
through five. This is the case even though the irregular payment is not 
more than two times the regular periodic payment during years nine 
through thirty (i.e., based on the fully-indexed rate). However, the 
regular periodic payments during years six through thirty themselves 
are not balloon payments, even though they may be more than two times 
the regular periodic payments during years one through five.
    iii. For a loan with a negative amortization feature, the regular 
periodic payment does not take into account the possibility that the 
consumer may exercise an option to make a payment greater than the 
scheduled periodic payment specified under the terms of the loan 
contract, if any.
    iv. The disclosure of balloon payments in the ``Projected 
Payments'' table under Sec.  1026.37(c) is governed by that section and 
its commentary, rather than Sec.  1026.37(b)(5), except that the 
determination, as a threshold matter, of whether a payment disclosed 
under Sec.  1026.37(c) is a balloon payment is made in accordance with 
Sec.  1026.37(b)(5) and its commentary.
    2. Single and double payment transactions. The definition of a 
``balloon payment'' under Sec.  1026.37(b)(5) includes the payments 
under transactions that require only one or two payments during the 
loan term, even though a single payment transaction does not require 
regular periodic payments, and a transaction with only two scheduled 
payments during the loan term may not require regular periodic 
payments.
    37(b)(7) Details about prepayment penalty and balloon payment.
    Paragraph 37(b)(7)(i).
    1. Maximum prepayment penalty. Section 1026.37(b)(7)(i) requires 
disclosure of the maximum amount of the prepayment penalty that may be 
imposed under the terms of the legal obligation. The creditor complies 
with Sec.  1026.37(b)(7)(i) when it assumes that the consumer prepays 
at a time when the prepayment penalty may be charged and that the 
consumer makes all payments prior to the prepayment on a timely basis 
and in the amount required by the terms of the legal obligation. The 
creditor must determine the maximum of each amount used in calculating 
the prepayment penalty. For example, if a transaction is fully 
amortizing and the prepayment penalty is two percent of the loan 
balance at the time of prepayment, the prepayment penalty amount should 
be determined by using the highest loan balance possible during the 
period in which the penalty may be imposed. If the loan is negatively 
amortizing and the prepayment penalty equals three percent of the loan 
balance in the first year and two percent in the second year during the 
first two years after loan origination, the creditor must determine the 
highest loan balance in each year and apply the respective two percent 
or three percent rate to such balance to determine the maximum amount. 
If more than one type of prepayment penalty applies, the creditor must 
aggregate the maximum amount of each type of prepayment penalty in the 
maximum penalty disclosed.
    37(b)(8) Timing.
    1. Timing. The timing of information required by Sec.  
1026.37(b)(8) starts with year number ``1,'' counting from the date 
that interest for the first scheduled periodic payment begins to 
accrue. For example, an interest rate that can first adjust at the 
beginning of the 13th month from the date that interest for the 
regularly scheduled periodic payment began to accrue would be disclosed 
as beginning to adjust in ``year 2.'' An interest rate that can first 
adjust at the beginning of the 61st month from the date that interest 
for the regularly scheduled periodic payment began to accrue would be 
disclosed as beginning to adjust in ``year 6.'' A monthly periodic 
principal and interest payment that begins to adjust at the 13th 
payment would be disclosed as beginning to adjust in ``year 2.''
    37(c) Projected payments.
    1. Definitions. For purposes of Sec.  1026.37(c), the terms 
``adjustable rate,'' ``fixed rate,'' ``negative amortization,'' and 
``interest-only'' have the meanings in Sec.  1026.37(a)(10).
    37(c)(1) Periodic payment or range of payments.
    Paragraph 37(c)(1)(i).
    1. Periodic payments. For purposes of Sec.  1026.37(c)(1)(i), the 
periodic payment is the regularly scheduled payment of principal and 
interest, mortgage insurance, and escrow payments described in Sec.  
1026.37(c)(2) without regard to any final payment that differs from 
other payments because of rounding to account for payment amounts 
including fractions of cents.
    Paragraph 37(c)(1)(i)(A).
    1. Periodic principal and interest payments. For purposes of Sec.  
1026.37(c)(1)(i)(A), periodic principal and interest payments may 
change when the interest rate, applicable interest rate caps, required 
periodic principal and interest payments, or ranges of such payments 
may change. Minor payment variations resulting solely from the fact 
that months have different numbers of days are not changes to periodic 
principal and interest payments.
    2. Negative amortization. In a loan that permits negative 
amortization, periodic principal and interest payments may change at 
the time of a scheduled recast of the mortgage loan and when the 
consumer must begin making fully amortizing payments of principal and 
interest. The disclosure should be based on the assumption that the 
consumer will make only the minimum payment required under the terms of 
the legal obligation, for the maximum amount of time permitted, taking 
into account potential changes to the interest rate. The table required 
by Sec.  1026.37(c) should also reflect any balloon payment that would 
result from making the minimum payment required under the terms of the 
legal obligation.
    3. Interest-only. In a loan that permits payment of only interest 
for a specified period, periodic principal and interest payments may 
change for purposes of Sec.  1026.37(c)(1)(i)(A) when the consumer must 
begin making fully amortizing periodic payments of principal and 
interest.
    Paragraph 37(c)(1)(i)(B).
    1. Balloon payment. For purposes of Sec.  1026.37(c)(1)(i)(B), 
whether a balloon payment occurs is determined pursuant to Sec.  
1026.37(b)(5) and its commentary. Although the existence of a balloon 
payment is determined pursuant to Sec.  1026.37(b)(5) and its 
commentary, balloon payment amounts to be disclosed under Sec.  
1026.37(c) are calculated in the same manner as periodic principal and 
interest

[[Page 51438]]

payments under Sec.  1026.37(c). For example, for a balloon payment 
amount that can change depending on previous interest rate adjustments 
that are based on the value of an index at the time of the adjustment, 
the balloon payment amounts are calculated using the assumptions for 
minimum and maximum interest rates described in Sec.  
1026.37(c)(1)(iii) and its commentary, and should be disclosed as a 
range of payments.
    Paragraph 37(c)(1)(i)(C).
    1. General. ``Mortgage insurance'' means insurance against the 
nonpayment of, or default on, an individual mortgage. For purposes of 
Sec.  1026.37(c), ``mortgage insurance coverage or any functional 
equivalent'' includes any mortgage guarantee that provides coverage 
similar to mortgage insurance (such as a United States Department of 
Veterans Affairs or United States Department of Agriculture guarantee), 
even if not technically considered insurance under State or other 
applicable law. The fees for such a guarantee are included in 
``mortgage insurance premiums.''
    2. Calculation. For purposes of Sec.  1026.37(c)(1)(i)(C), mortgage 
insurance premiums should be calculated based on the declining 
principal balance that will occur as a result of changes to the 
interest rate and payment amounts, assuming the fully-indexed rate 
applies at consummation, taking into account any introductory interest 
rates.
    3. Disclosure. The table required by Sec.  1026.37(c) should 
reflect the consumer's mortgage insurance premiums until the date on 
which the creditor must automatically terminate coverage under 
applicable law, even though the consumer may have a right to request 
that the insurance be cancelled earlier. Unlike termination of mortgage 
insurance, a subsequent decline in the consumer's mortgage insurance 
premiums is not, by itself, an event that requires the disclosure of 
additional separate periodic payments or ranges of payments in the 
table required by Sec.  1026.37(c). For example, some mortgage 
insurance programs annually adjust premiums based on the declining loan 
balance. Such annual adjustment to the amount of premiums would not 
require a separate disclosure of a periodic payment or range payments.
    Paragraph 37(c)(1)(ii).
    Paragraph 37(c)(1)(ii)(A).
    1. Balloon payments that are final payments. Section 
1026.37(c)(1)(ii)(A) is an exception to the general rule in Sec.  
1026.37(c)(1)(ii), and requires that a balloon payment that is 
scheduled as a final payment under the terms of the legal obligation is 
always disclosed as a separate periodic payment or range of payments. 
Balloon payments that are not final payments, such as a balloon payment 
due at the scheduled recast of a loan that permits negative 
amortization, are disclosed pursuant to the general rule in Sec.  
1026.37(c)(1)(ii).
    Paragraph 37(c)(1)(iii).
    1. Calculation of minimum and maximum payments. A range of payments 
is disclosed under Sec.  1026.37(c)(1)(iii) when the periodic principal 
and interest payments are not known at the time the disclosure is 
provided because they are subject to changes based on index rates at 
the time of an interest rate adjustment, or when multiple events are 
disclosed as a range of payments pursuant to Sec.  1026.37(c)(1)(ii). 
For such transactions, Sec.  1026.37(c)(1)(iii) requires the creditor 
to disclose both the minimum and maximum periodic principal and 
interest payments, expressed as a range. In disclosing the maximum 
possible interest rate under Sec.  1026.37(c), the creditor assumes 
that the interest rate will rise as rapidly as possible after 
consummation, taking into account the terms of the legal obligation, 
including any applicable caps on interest rate adjustments and lifetime 
interest rate cap. For a loan with no lifetime interest rate cap, the 
maximum rate is determined by reference to other applicable laws, such 
as State usury law. In disclosing the minimum possible interest rate 
for purposes of Sec.  1026.37(c), the creditor assumes that the 
interest rate will decrease as rapidly possible after consummation, 
taking into account any introductory rates, caps on interest rate 
adjustments, and lifetime interest rate floor. For an adjustable rate 
mortgage based on an index that has no lifetime interest rate floor, 
the minimum interest rate is equal to the margin.
    2. Ranges of payments. When a range of payments is required, Sec.  
1026.37(c)(1)(iii) requires the creditor to disclose the minimum and 
maximum amount for both the principal and interest payment under Sec.  
1026.37(c)(2)(i) and the total periodic payment under Sec.  
1026.37(c)(2)(iv). The amount required to be disclosed for mortgage 
insurance premiums pursuant to Sec.  1026.37(c)(2)(ii) and the amount 
payable into an escrow account pursuant to Sec.  1026.37(c)(2)(iii) 
shall not be disclosed as a range.
    3. Adjustable rate mortgages. For an adjustable rate mortgage, the 
periodic principal and interest payment at each time the interest rate 
may change will depend on the rate that applies at the time of the 
adjustment, which is not known at the time the disclosure is provided. 
As a result, the creditor discloses the minimum and maximum periodic 
principal and interest payment that could apply during each period 
disclosed pursuant to Sec.  1026.37(c)(1) after the first period.
    37(c)(2) Itemization.
    Paragraph 37(c)(2)(ii).
    1. Mortgage insurance. Mortgage insurance premiums should be 
reflected on the disclosure required by Sec.  1026.37(c) even if no 
escrow account is established for the payment of mortgage insurance 
premiums. If the consumer is not required to purchase mortgage 
insurance, the creditor shall disclose the mortgage insurance premium 
as ``0''.
    2. Periodic payments. The creditor discloses mortgage insurance 
premiums pursuant to Sec.  1026.37(c)(2)(ii) on the same periodic basis 
that payments for principal and interest are disclosed pursuant to 
Sec.  1026.37(c)(2)(i), even if mortgage insurance premiums are 
actually paid on some other periodic basis.
    Paragraph 37(c)(2)(iii).
    1. Escrow. The disclosure described in Sec.  1026.37(c)(2)(iii) is 
required only if the creditor will establish an escrow account for the 
payment of some or all of the charges described in Sec.  
1026.37(c)(4)(ii)(A) through (E).
    37(c)(3) Subheadings.
    Paragraph 37(c)(3)(ii).
    1. Years. Section 1026.37(c)(3)(ii) requires that each periodic 
payment or range of payments be disclosed under a subheading that 
states the number of years during which that payment or range of 
payments will apply and that such subheadings be stated in a sequence 
of whole years. For purposes of Sec.  1026.37(c), ``year'' is defined 
as the twelve-month interval beginning on the due date of the first 
periodic payment and each anniversary thereafter. For example, for a 
loan with a 30-year term that does not require mortgage insurance and 
requires interest-only payments for the first 60 months of the loan, 
then requires fixed, fully amortizing payments of principal and 
interest for the duration of the loan, the creditor would label the 
first disclosure of periodic payments as ``Years 1-5'' and the second 
disclosure of periodic payments or range of payments as ``Years 6-30.'' 
However, if that loan requires interest-only payments for the first 54 
months of the loan, then requires fixed, fully amortizing payments of 
principal and interest for the duration of the loan, the creditor would 
label the first disclosure of periodic payments as ``Years 1-4'' and 
the second disclosure of periodic

[[Page 51439]]

payments or range of payments as ``Years 5-30.'' Finally, if the loan 
that requires interest-only payments for the first 54 months also 
requires mortgage insurance that would automatically terminate under 
applicable law after the 100th month of the loan's term, the creditor 
would label the first disclosure of periodic payments as ``Years 1-4,'' 
the second disclosure of periodic payments or range of payments as 
``Years 5-8,'' and the third disclosure of periodic payments or range 
of payments as ``Years 9-30.''
    2. Loans with variable terms. If the loan term may increase based 
on an adjustment of the interest rate, the creditor must disclose the 
maximum loan term possible under the legal obligation. To calculate the 
maximum loan term, the creditor assumes that the interest rate rises as 
rapidly as possible, taking into account the terms of the legal 
obligation, including any applicable caps on interest rate adjustments 
and lifetime interest rate cap. See comment 37(a)(8)-1.
    37(c)(4) Taxes, insurance, and assessments.
    Paragraph 37(c)(4)(ii).
    1. Mortgage-related insurance premiums. Mortgage-related insurance 
premiums required by the creditor are those described Sec.  
1026.35(b)(3)(i) and its commentary, except that, for purposes of Sec.  
1026.37(c)(4)(ii), mortgage-related insurance premiums do not include 
mortgage insurance premiums disclosed pursuant to Sec.  
1026.37(c)(2)(ii). A creditor need not include premiums for mortgage-
related insurance that are not required as part of the legal obligation 
or under applicable law, such as optional earthquake insurance or 
credit insurance, or fees for optional debt suspension and debt 
cancellation agreements.
    2. Special assessments. Special assessments are imposed on the 
consumer at or before consummation, such as a one-time homeowners' 
association fee that will not be paid by the consumer in full at or 
before consummation.
    37(f) Closing cost details; loan costs.
    1. General description. The items disclosed under Sec.  1026.37(f) 
include services that the creditor or mortgage broker require for 
consummation, such as underwriting, appraisal, and title services.
    2. Mortgage broker. Official commentary under Sec.  
1026.19(e)(1)(ii) discusses the requirements and responsibilities of 
mortgage brokers that provide the disclosures required by Sec.  
1026.19(e), which include the disclosures set forth in Sec.  
1026.37(f).
    37(f)(1) Origination charges.
    1. Origination charges. Charges included under the subheading 
``Origination Charges'' pursuant to Sec.  1026.37(f)(1) are those 
charges paid by the consumer to the creditor and each loan originator 
for originating and extending the credit, regardless of how such fees 
are denominated. In accordance with Sec.  1026.37(o)(4), the dollar 
amounts disclosed under Sec.  1026.37(f)(1) must be rounded to the 
nearest whole dollar and the percentage amounts must be disclosed as an 
exact number up to three decimal places, except that decimal places 
shall not be disclosed if the percentage is a whole number. See comment 
19(e)(3)(i)-2 for a discussion of when a fee is considered to be ``paid 
to'' a person. See comment 36(a)-1 for a discussion of the meaning of 
``loan originator'' in connection with limits on compensation in a 
consumer credit transaction secured by a dwelling.
    2. Indirect loan originator compensation. Only charges paid 
directly by the consumer to compensate a loan originator are included 
in the amounts listed under Sec.  1026.37(f)(1). Compensation of a loan 
originator paid indirectly by the creditor through the interest rate is 
not itemized on the Loan Estimate required by Sec.  1026.19(e). 
However, pursuant to Sec.  1026.38(f)(1) such compensation is itemized 
on the Closing Disclosure required by Sec.  1026.19(f).
    3. Description of charges. Other than for points that the consumer 
will pay to the creditor to reduce the interest rate, for which 
specific language must be used, the creditor may use a general 
description to identify each service that is disclosed as an 
origination charge pursuant to Sec.  1026.37(f)(1). Items that are 
listed under the subheading ``Origination Charges'' may include, for 
example, application fee, origination fee, underwriting fee, processing 
fee, verification fee, and rate-lock fee.
    4. Points. If the consumer is not charged any points to reduce the 
interest rate, the creditor may leave blank the percentage of points 
disclosed under Sec.  1026.37(f)(1)(i), but must disclose a dollar 
amount of ``$0.''
    5. Itemization. Creditors determine the level of itemization of 
``Origination Charges'' that is appropriate under Sec.  1026.37(f)(1), 
subject to the limitations in Sec.  1026.37(f)(1)(ii).
    37(f)(2) Services you cannot shop for.
    1. Services disclosed. Items included under the subheading 
``Services You Cannot Shop For'' pursuant to Sec.  1026.37(f)(2) are 
for those services that the creditor requires in connection with the 
transaction that would be provided by persons other than the creditor 
or mortgage broker and for which the creditor does not permit the 
consumer to shop in accordance with Sec.  1026.19(e)(1)(vi)(A). Comment 
19(e)(1)(iv)-1 clarifies that a consumer is not permitted to shop if 
the consumer must choose a provider from a list provided by the 
creditor. Comment 19(e)(3)(i)-1 addresses determining good faith in 
providing estimates under Sec.  1026.19(e), including estimates for 
services for which the consumer cannot shop. Comments 19(e)(3)(iv)-1 
through -3 discuss limits and requirements applicable to providing 
revised estimates for services for which the consumer cannot shop.
    2. Examples of charges. Examples of the services to be disclosed 
pursuant to Sec.  1026.37(f)(2) might include appraisal fee, appraisal 
management company fee, credit report fee, flood determination fee, 
lender's attorney, tax status research fee, title--closing protection 
letter, and title--lender's coverage.
    3. Title insurance services. The services required to be labeled 
beginning with ``Title--'' pursuant to Sec.  1026.37(f)(2) or (3) are 
those required for the issuance of title insurance policies to the 
creditor in connection with the consummation of the transaction. These 
services may include, for example:
    i. Examination and evaluation, based on relevant law and title 
insurance underwriting principles and guidelines, of the title evidence 
to determine the insurability of the title being examined and what 
items to include or exclude in any title commitment and policy to be 
issued;
    ii. Preparation and issuance of the title commitment or other 
document that discloses the status of the title as it is proposed to be 
insured, identifies the conditions that must be met before the policy 
will be issued, and obligates the insurer to issue a policy of title 
insurance if such conditions are met;
    iii. Resolution of underwriting issues and taking the steps needed 
to satisfy any conditions for the issuance of the policies;
    iv. Preparation and issuance of the policy or policies of title 
insurance;
    v. Premiums for any title insurance coverage for the benefit of the 
creditor; and
    vi. Conducting the closing.
    4. Lender's title insurance policy. The amount disclosed for 
lender's title insurance coverage pursuant to Sec.  1026.37(f)(2) or 
(3) is the amount of the premium without any adjustment that might be 
made for the simultaneous purchase of an owner's title insurance 
policy. This amount should be disclosed as ``Title--Premium for 
Lender's Coverage,'' or in any similar manner

[[Page 51440]]

that clearly indicates the amount of the premium disclosed pursuant to 
Sec.  1026.37(f)(2) is for the lender's title insurance coverage. See 
comment 37(g)(4)-1 for a discussion of the disclosure of the premium 
for owner's title insurance coverage.
    37(f)(3) Services you can shop for.
    1. Services disclosed. Items included under the subheading 
``Services You Can Shop For'' pursuant to Sec.  1026.37(f)(3) are for 
those services: that the creditor requires in connection with its 
decision to make the loan; that would be provided by persons other than 
the creditor or mortgage broker; and for which the creditor allows the 
consumer to shop in accordance with Sec.  1026.19(e)(1)(vi)(A). 
Comments 19(e)(3)(ii)-1 through -3 address the determination of good 
faith in providing estimates of charges for services for which the 
consumer can shop. Comment 19(e)(3)(iii)-2 discusses the determination 
of good faith when the consumer chooses a provider that is not on the 
list the creditor provides to the consumer when the consumer is 
permitted to shop consistent with Sec.  1026.19(e)(1)(vi)(A). Comments 
19(e)(3)(iv)-1 through -3 discuss limits and requirements applicable to 
providing revised estimates for services for which the consumer can 
shop.
    2. Example of charges. Examples of the services to be listed under 
this subheading pursuant to Sec.  1026.37(f)(3) might include pest 
inspection fee, survey fee, title--closing agent fee, and title--
closing protection letter.
    3. Title insurance. See comments 37(f)(2)-3 and -4 for guidance on 
services that are to be labeled beginning with ``Title--'' and on 
calculating and labeling the amount disclosed for lender's title 
insurance pursuant to Sec.  1026.37(f)(3). See comment 37(g)(4)-1 for a 
discussion of the disclosure of the premium for owner's title insurance 
coverage.
    37(f)(6) Use of addenda.
    1. State law disclosures. If a creditor is required by State law to 
make additional disclosures that, pursuant to Sec.  1026.37(f)(6)(i), 
cannot be included in the disclosures required under Sec.  1026.37(f), 
the creditor may make those additional State law disclosures on a 
document whose pages are separate from, and are not presented as part 
of, the disclosures prescribed in Sec.  1026.37. See comment 37(o)(1)-
1.
    2. Reference to addendum. If an addendum is used as permitted under 
Sec.  1026.37(f)(6)(ii), an example of a label that would comply with 
the requirement for an appropriate reference on the last line is: ``See 
attached page for additional items you can shop for.''
    37(g) Closing cost details; other costs.
    1. General description. The items listed under the heading of 
``Other Costs'' pursuant to Sec.  1026.37(g) include services that are 
ancillary to the creditor's decision to evaluate the collateral and the 
consumer for the loan. The amounts disclosed for these items are: 
established by government action; determined by standard calculations 
applied to ongoing fixed costs; or based on an obligation incurred by 
the consumer independently of any requirement imposed by the creditor. 
Except for prepaid interest under Sec.  1026.37(g)(2)(iii), the 
creditor does not retain any of the amounts or portions of the amounts 
disclosed as Other Costs, nor does the creditor use any of the services 
listed to evaluate the collateral and the consumer for the loan.
    2. Charges pursuant to property contract. The creditor is required 
to disclose charges that are described in Sec.  1026.37(g)(1) through 
(3). Other charges that are required to be paid at or before closing 
pursuant to the property contract for sale between the consumer and 
seller are not disclosed on the Loan Estimate, except to the extent the 
creditor is aware of those charges when it issues the Loan Estimate. 
See Sec.  1026.37(g)(4) and comment 37(g)(4)-3.
    37(g)(1) Taxes and other government fees.
    1. Recording fees. Recording fees listed under Sec.  1026.37(g)(1) 
are fees assessed by a government authority to record and index the 
loan and title documents as required under State or local law. 
Recording fees are assessed based on the type of document to be 
recorded or its physical characteristics, such as the number of pages. 
Unlike transfer taxes, recording fees are not based on the sales price 
of the property or loan amount. For example, a fee for recording a 
subordination agreement that is $20, plus $3 for each page over three 
pages, is a recording fee, but a fee of $1,250 based on 0.5% of the 
loan amount is a transfer tax, and not a recording fee.
    2. Other government charges. Any charges or fees imposed by a State 
or local government that are not transfer taxes are aggregated with 
recording fees and disclosed under Sec.  1026.37(g)(1)(i).
    3. Transfer taxes--terminology. In general, transfer taxes listed 
under Sec.  1026.37(g)(1) are State and local government fees on 
mortgages and home sales that are based on the loan amount or sales 
price, while recording fees are State and local government fees for 
recording the loan and title documents. The name that is used under 
State or local law to refer to these amounts is not determinative of 
whether they are disclosed as transfer taxes or as recording fees and 
other taxes under Sec.  1026.37(g)(1).
    4. Transfer taxes--consumer. Only transfer taxes imposed on the 
consumer are disclosed on the Loan Estimate pursuant to Sec.  
1026.37(g)(1). State and local government transfer taxes are governed 
by State or local law, which determines if the seller or consumer is 
ultimately responsible for paying the transfer taxes. For example, if 
State law indicates a lien can attach to the consumer's acquired 
property if the transfer tax is not paid, the transfer tax is 
disclosed. If State or local law is unclear or does not specifically 
attribute transfer taxes to the seller or the consumer, the creditor is 
in compliance with requirements of Sec.  1026.37(g)(1) as long as the 
amount of the transfer tax disclosed is not less than the amount 
apportioned to the consumer using common practice in the locality of 
the property.
    5. Transfer taxes--seller. Transfer taxes paid by the seller in a 
purchase transaction are not disclosed on the Loan Estimate under Sec.  
1026.37(g)(1), but will be disclosed on the Closing Disclosure pursuant 
to Sec.  1026.38(g)(1)(ii).
    6. Deletion and addition of items. The lines and labels required by 
Sec.  1026.37(g)(1) may not be deleted, even if recording fees or 
transfer taxes are not charged to the consumer. No additional items may 
be listed under the subheading in Sec.  1026.37(g)(1).
    37(g)(2) Prepaids.
    1. Examples. Prepaid items required to be disclosed pursuant to 
Sec.  1026.37(g)(2) include the interest due at consummation for the 
period of time before the first scheduled payment is due and certain 
periodic charges that are required by the creditor to be paid at 
consummation. Each periodic charge listed as a prepaid item indicates, 
as applicable, the time period that the charge will cover, the daily 
amount, the percentage used to calculate the charge, and the total 
dollar amount of the charge. Examples of periodic charges that the 
creditor may require the consumer to pay at consummation include:
    i. Real estate property taxes due within 60 days after consummation 
of the transaction;
    ii. Past-due real estate property taxes;
    iii. Mortgage insurance premiums;
    iv. Flood insurance premiums; and
    v. Homeowner's insurance premiums.
    2. Interest rate. The interest rate disclosed pursuant to Sec.  
1026.37(g)(2)(iii) is the same interest rate disclosed pursuant to 
Sec.  1026.37(b)(2).

[[Page 51441]]

    3. Terminology. As used in Sec.  1026.37(g)(2), the terms 
``property taxes,'' ``homeowner's insurance,'' ``mortgage insurance'' 
have the same meaning as those terms are used in Sec.  1026.37(c) and 
its commentary.
    4. Deletion of items. The lines and labels required by paragraph 
(g)(2) may not be deleted, even if amounts for those labeled items are 
not charged to the consumer. If an amount for a labeled item is not 
charged to the consumer, the time period, daily amount, and percentage 
may be left blank.
    37(g)(3) Initial escrow payment at closing.
    1. Listed item not charged. Pursuant to Sec.  1026.37(g)(3), each 
periodic charge to be included in the escrow or reserve account must be 
itemized under the ``Initial Escrow Payment at Closing'' subheading, 
with a relevant label, monthly payment amount, and number of months 
expected to be collected at consummation. If an item required to be 
listed under Sec.  1026.37(g)(3)(i) through (iii) is not charged to the 
consumer, the monthly payment amount and time period may be left blank.
    2. Aggregate escrow account calculation. The aggregate escrow 
account adjustment required under Sec.  1026.38(g)(3) and 12 CFR 
1024.17(d)(2) is not included on the Loan Estimate under Sec.  
1026.37(g)(3).
    3. Terminology. As used in Sec.  1026.37(g)(3), the terms 
``property taxes,'' ``homeowner's insurance,'' and ``mortgage 
insurance'' have the same meaning as those terms are used in Sec.  
1026.37(c) and its commentary.
    4. Deletion of items. The lines and labels required by Sec.  
1026.37(g)(3) may not be deleted, even if amounts for those labeled 
items are not charged to the consumer.
    37(g)(4) Other.
    1. Basic owner's policy rate. The amount disclosed for an owner's 
title insurance premium pursuant to Sec.  1026.37(g)(4) is based on a 
basic owner's policy rate, and not on an ``enhanced'' title insurance 
policy premium. This amount should be disclosed as ``Title--Owner's 
Title Policy (optional),'' or in any similar manner that includes the 
introductory description ``Title--'' at the beginning of the label for 
the item, the parenthetical description ``(optional)'' at the end of 
the label, and clearly indicates the amount of the premium disclosed 
pursuant to Sec.  1026.37(g)(4) is for the owner's title insurance 
coverage. See comment 37(f)(2)-4 for a discussion of the disclosure of 
the premium for lender's title insurance coverage.
    2. Simultaneous title insurance premium rate in purchase 
transactions. The premium for an owner's title insurance policy for 
which a special rate may be available based on the simultaneous 
issuance of a lender's and an owner's policy is calculated and 
disclosed pursuant to Sec.  1026.37(g)(4) as follows:
    i. The title insurance premium for a lender's title policy is based 
on the full premium rate, consistent with Sec.  1026.37(f)(2) or 
(f)(3).
    ii. The owner's title insurance premium is calculated by taking the 
full owner's title insurance premium, adding the simultaneous issuance 
premium for the lender's coverage, and then deducting the full premium 
for lender's coverage.
    3. Designation of optional items. Products disclosed under Sec.  
1026.37(g)(4) for which the parenthetical description ``(optional)'' is 
included at the end of the label for the item include only items that 
are separate from any item disclosed on the Loan Estimate under 
paragraphs other than Sec.  1026.37(g)(4). For example, such items may 
include owner's title insurance, credit life insurance, debt suspension 
coverage, debt cancellation coverage, warranties of home appliances and 
systems, and similar products, when coverage is written in connection 
with a credit transaction that is subject to Sec.  1026.19(e). However, 
because the requirement in Sec.  1026.37(g)(4)(ii) applies to separate 
products only, additional coverage and endorsements on insurance 
otherwise required by the lender are not disclosed under Sec.  
1026.37(g)(4). See comments 4(b)(7) and (b)(8)-1 through -3 and 
comments 4(b)(10)-1 and -2 for descriptions of credit life insurance, 
debt suspension coverage, debt cancellation coverage, and similar 
coverage and for guidance on determining when such coverage is written 
in connection with a transaction subject to Sec.  1026.19(e).
    4. Examples. Examples of other items that are disclosed under Sec.  
1026.37(g)(4) if the creditor is aware of those items when it issues 
the Loan Estimate include commissions of real estate brokers or agents, 
additional payments to the seller to purchase personal property 
pursuant to the property contract, homeowner's association and 
condominium charges associated with the transfer of ownership, and fees 
for inspections not required by the creditor but paid by the consumer 
pursuant to the property contract. Although the consumer is obligated 
for these costs, they are not imposed upon the consumer by the creditor 
or loan originator. Therefore, they are not disclosed with the 
parenthetical description ``(optional)'' at the end of the label for 
the item, and they are disclosed pursuant to Sec.  1026.37(g) rather 
than Sec.  1026.37(f). Even if such items are not required to be 
disclosed on the Loan Estimate under Sec.  1026.37(g)(4), however, they 
may be required to be disclosed on the Closing Disclosure pursuant to 
Sec.  1026.38. Comment 19(e)(3)(iii)-3 discusses application of the 
good faith requirement for services chosen by the consumer that are not 
required by the creditor.
    37(g)(6) Total closing costs.
    Paragraph 37(g)(6)(ii).
    1. Lender credits. Section 1026.19(e)(1)(i) requires disclosure of 
lender credits as provided in Sec.  1026.37(g)(6)(ii). Comment 
19(e)(3)(i)-5 describes such lender credits as payments from the 
creditor to the consumer that do not pay for a particular fee on the 
disclosures provided under Sec.  1026.37. Comment 19(e)(3)(i)-4 
addresses payments by a creditor to a consumer to pay for particular 
fees.
    37(g)(8) Use of addenda.
    1. State law disclosures. If a creditor is required by State law to 
make additional disclosures that, pursuant to Sec.  1026.37(g)(8), 
cannot be included in the disclosures required under Sec.  1026.37(g), 
the creditor may make those additional State law disclosures on a 
separate document whose pages are physically separate from, and are not 
presented as part of, the disclosures prescribed in Sec.  1026.37. See 
comment 37(o)(1)-1.
    37(h) Calculating cash to close.
    1. Labels for amounts disclosed. Paragraph 37(h) describes the 
amounts that are used to calculate the estimated amount of cash or 
other form of payment that the consumer must provide at consummation. 
The labels used on the chart must correspond to the italicized 
descriptions of Sec.  1026.37(h)(1) through (7).
    37(h)(4) Deposit.
    1. A deposit must be disclosed in a purchase transaction. In any 
other type of transaction, any deposit amount is disclosed under Sec.  
1026.37(h)(4) as $0.
    37(h)(6) Seller credits.
    1. Credits to be disclosed. The seller credits known to the 
creditor at the time of application are disclosed under Sec.  
1026.37(h)(6). Seller credits that are not known by the creditor at the 
time of application are not disclosed under Sec.  1026.37(h)(6).
    37(h)(7) Adjustments and other credits.
    1. Other credits known at the time the Loan Estimate is issued. 
Amounts expected to be paid by third parties not involved in the 
transaction, such as gifts from family members and not otherwise

[[Page 51442]]

identified under Sec.  1026.37(h), would be included in the amount 
disclosed pursuant to Sec.  1026.37(h)(7) to the extent known by the 
creditor.
    2. Persons. The term ``persons'' as used in Sec.  1026.37(h)(7) 
includes all individuals and any entity, regardless of the legal 
structure of such entity.
    3. Credits. Only credits from parties other than the creditor or 
seller can be disclosed pursuant to Sec.  1026.37(h)(7). Seller credits 
and credits from the creditor are disclosed pursuant to Sec.  
1026.37(h)(6) and Sec.  1026.37(g)(6)(ii), respectively.
    4. Other credits to be disclosed. Other credits known to the 
creditor at the time of application are disclosed under Sec.  
1026.37(h)(7). Other credits that are not known by the creditor at the 
time of application are not disclosed under Sec.  1026.37(h)(7).
    37(h)(8) Estimated cash to close.
    1. Result of cash to close calculation. The total of Sec.  
1026.37(h)(1) through (7) is disclosed under Sec.  1026.37(h)(8) as 
either a positive number, a negative number, or zero. A positive number 
indicates the estimated amount that the consumer can be expected to pay 
at consummation. A negative number indicates the estimated amount that 
the consumer can receive at consummation. A result of zero indicates 
that the consumer is anticipated to neither pay any amount or receive 
any amount at consummation.
    37(i) Adjustable payment table.
    1. When table is not permitted to be disclosed. The disclosure 
described in Sec.  1026.37(i) is required only if the periodic 
principal and interest payment may change after consummation based on a 
loan term other than a change to the interest rate, or the transaction 
contains a seasonal payment product feature as described in Sec.  
1026.37(a)(10)(ii)(E). If the transaction does not contain such loan 
terms, this table may not appear on the Loan Estimate. See comment 37-
1.
    2. Periods to be disclosed. Section 1026.37(i)(1) through (4) 
requires disclosure of the periods during which interest-only, optional 
payment, step-payment, and seasonal payment product features will be in 
effect. The periods required to be disclosed should be disclosed by 
describing the number of payments counting from the first periodic 
payment due after consummation. The period of seasonal payments 
required to be disclosed by Sec.  1026.37(i)(4), to be clear and 
conspicuous, should be disclosed with a noun that identifies the unit-
period, because such feature may apply on a regular basis during the 
loan term that does not depend on when regular periodic payments begin. 
For example:
    i. Period from date of consummation. If a loan has an interest-only 
period for the first 60 regular periodic payments due after 
consummation, the disclosure states ``for your first 60 payments.''
    ii. Period during middle of loan term. If the loan has an interest-
only period between the 61st and 85th payments, the disclosure states 
``from your 61st to 85th payment.''
    iii. Multiple successive periods. If there are multiple periods 
during which a certain adjustable payment term applies, such as a 
period of step payments that occurs from the first to 12th payment, 
does not apply to the 13th through 24th payments, and occurs again from 
the 25th through 36th payments, the period disclosed is the entire span 
of all such periods. Accordingly, such period is disclosed as ``for 
your first 36 payments.''
    iv. Seasonal payments. For a seasonal payment product with a unit-
period of a month that does not require periodic payments for the 
months of June, July, and August each year during the loan term, 
because such feature depends on calendar months and not on when regular 
periodic payments begin, the period is disclosed as ``from June to 
August.'' For a transaction with a quarterly unit-period that does not 
require a periodic payment every third quarter during the loan term and 
does not depend on calendar months, the period is disclosed as ``every 
third payment.'' In the same transaction, if the seasonal payment 
feature ends after the twentieth quarter, the period is disclosed as 
``every quarter until the 20th quarter.''
    37(i)(5) Principal and interest payments.
    1. Statement of periodic payment frequency. The subheading required 
by Sec.  1026.37(i)(5) must include the unit-period of the transaction, 
such as ``quarterly,'' ``bi-weekly,'' or ``annual.'' This unit period 
should be the same as disclosed under Sec.  1026.37(b)(3). See Sec.  
1026.37(o)(5)(i).
    2. Initial payment adjustment unknown. The disclosure required by 
Sec.  1026.37(i)(5) must state the number of the first payment for 
which the regular periodic principal and interest payment may change. 
This payment is typically set forth in the legal obligation. However, 
if the exact payment number of the first adjustment is not known at the 
time the creditor provides the Loan Estimate, the creditor must 
disclose the earliest possible payment that may change under the terms 
of the legal obligation, based on the information available to the 
creditor at the time, as the initial payment number and amount.
    3. Subsequent changes. The disclosure required by Sec.  
1026.37(i)(5) must state the frequency of adjustments to the regular 
periodic principal and interest payment after the initial adjustment, 
if any, expressed in years, except if adjustments are more frequent 
than once every year, in which case the disclosure should be expressed 
as payments. If there is only one adjustment of the periodic payment 
under the terms of the legal obligation (for example, if the loan has 
an interest-only period for the first 60 payments and there are no 
adjustments to the payment after the end of the interest-only period), 
the disclosure should state: ``No subsequent changes.'' If the loan has 
graduated increases in the regular periodic payment every 12th payment, 
the disclosure should state: ``Every year.'' If the frequency of 
adjustments to the periodic payment may change under the terms of the 
legal obligation, the disclosure should state the smallest period of 
adjustments that may occur. For example, if an increase in the periodic 
payment is scheduled every sixth payment for 36 payments, and then 
every 12th payment for the next 24 payments, the disclosure should 
state: ``Every 6th payment.''
    4. Maximum payment. The disclosure required by Sec.  1026.37(i)(5) 
must state the larger of the maximum scheduled or maximum potential 
amount of a regular periodic principal and interest payment under the 
terms of the legal obligation, as well as the payment number of the 
first periodic principal and interest payment that can reach such 
amount. If the disclosed payment is scheduled, Sec.  1026.37(i)(5) 
requires that the disclosure state the payment number when such payment 
is reached with the preceding text, ``starting at.'' If the disclosed 
payment is only potential, as may be the case for a loan that permits 
optional payments, the disclosure states the earliest payment number 
when such payment can be reached with the preceding text, ``as early 
as.'' Section 1026.37(i)(5) requires that the first possible periodic 
principal and interest that can reach the maximum be disclosed. For 
example, for a fixed interest rate optional-payment loan with scheduled 
payments that result in negative amortization, the maximum periodic 
payment disclosed should be based on the consumer having elected to 
make the periodic payments that would increase the principal balance to 
the maximum amount at the latest time possible before the loan begins 
to fully amortize, which would cause the periodic principal and 
interest payment

[[Page 51443]]

to be the maximum possible. For example, if the earliest payment that 
could reach the maximum principal balance was the 41st payment at which 
time the loan would begin to amortize and the periodic principal and 
interest payment would be recalculated, but the last payment that 
permitted the principal balance to increase was the 60th payment, the 
disclosure required by Sec.  1026.37(i)(5) must assume the consumer 
only reached the maximum principal balance at the 60th payment because 
this would result in the maximum possible principal and interest 
payment under the terms of the legal obligation. The disclosure must 
state the periodic principal and interest payment based on this 
assumption and state ``as early as the 61st payment.''
    5. Payments that do not pay principal. Although the label of the 
disclosure required by Sec.  1026.37(i)(5) is ``Principal and Interest 
Payments,'' and the section refers to periodic principal and interest 
payments, it includes a scheduled periodic payment that only covers 
some or all of the interest that is due and not any principal (i.e., an 
interest-only or negatively amortizing payment).
    37(j) Adjustable interest rate table.
    1. When table is permitted to be disclosed. The disclosure 
described in Sec.  1026.37(j) is only required if the interest rate may 
increase after consummation, either based on changes to an index or 
scheduled changes to the interest rate. If the legal obligation does 
not permit the interest rate to adjust after consummation, such as for 
a ``Fixed Rate'' product under Sec.  1026.37(a)(10), this table is not 
permitted to appear on the Loan Estimate. The creditor may not disclose 
a blank table or a table with ``N/A'' inserted within each row. See 
comment 37-1.
    37(j)(1) Index and margin.
    1. Index and margin. The index disclosed pursuant to Sec.  
1026.37(j)(1) must be stated such that a consumer reasonably can 
identify it. A common abbreviation or acronym of the name of the index 
may be disclosed in place of the proper name of the index, if it is a 
commonly used public method of identifying the index. For example, 
``LIBOR'' may be disclosed instead of London Interbank Offered Rate. 
The margin should be disclosed as a percentage. For example, if the 
contract determines the interest rate by adding 4.25 percentage points 
to the index, the margin should be disclosed as ``4.25%.''
    37(j)(2) Increases in interest rate.
    1. Adjustments not based on an index. If the legal obligation 
includes both adjustments to the interest rate based on an external 
index and scheduled and pre-determined adjustments to the interest 
rate, such as for a ``Step Rate'' product under Sec.  1026.37(a)(10), 
the disclosure required by Sec.  1026.37(j)(1), and not Sec.  
1026.37(j)(2), must be provided pursuant to Sec.  1026.37(j)(2). The 
disclosure described in Sec.  1026.37(j)(2) is stated only if the 
product type does not permit the interest rate to adjust based on an 
external index.
    37(j)(3) Initial interest rate.
    1. Interest rate at consummation. In all cases, the interest rate 
in effect at consummation must be disclosed as the initial interest 
rate, even if it will apply only for a short period, such as one month.
    37(j)(4) Minimum and maximum interest rate.
    1. Minimum interest rate. The minimum rate required to be disclosed 
by Sec.  1026.37(j)(4) is the minimum interest rate that may occur at 
any time during the term of the transaction, after any introductory or 
``teaser'' interest rate expires, under the terms of the legal 
obligation, such as an interest rate ``floor.'' If the terms of the 
legal obligation do not state a minimum interest rate, the minimum 
interest rate that applies to the transaction under applicable law must 
be disclosed. If the terms of the legal obligation do not state a 
minimum interest rate, and no other minimum interest rate applies to 
the transaction under applicable law, the amount of the margin is 
disclosed.
    2. Maximum interest rate. The maximum interest rate required to be 
disclosed pursuant to Sec.  1026.37(j)(4) is the maximum interest rate 
possible under the terms of the legal obligation, such as an interest 
rate ``cap.'' If the terms of the legal obligation do not specify a 
maximum interest rate, the maximum interest rate permitted by 
applicable law, such as State usury law, must be disclosed.
    37(j)(5) Frequency of adjustments.
    1. Exact month unknown. The disclosure required by Sec.  
1026.37(j)(5) must state the first month for which the interest rate 
may change. This month is typically scheduled in the terms of the legal 
obligation. However, if the exact month is not known at the time the 
creditor provides the Loan Estimate, the creditor must disclose the 
earliest possible month under the terms of the legal obligation, based 
on the information available to the creditor at the time.
    37(j)(6) Limits on interest rate changes.
    1. Different limits on subsequent interest rate adjustments. If 
more than one limit applies to the amount of adjustments to the 
interest rate after the initial adjustment, the greatest limit on 
subsequent adjustments must be disclosed. For example, if the initial 
interest rate adjustment is capped at two percent, the second 
adjustment is capped at two and a half percent, and all subsequent 
adjustments are capped at three percent, the disclosure required by 
Sec.  1026.37(j)(6)(ii) states ``3%.''
    37(k) Contact information.
    1. NMLSR ID. Section 1026.37(k) requires the disclosure of an NMLSR 
identification (ID) number for each creditor, mortgage broker, and loan 
officer identified on the Loan Estimate. The NMLSR ID is a unique 
number or other identifier generally assigned by the Nationwide 
Mortgage Licensing System and Registry (NMLSR) to individuals 
registered or licensed through NMLSR to provide loan originating 
services. For more information, see the Secure and Fair Enforcement for 
Mortgage Licensing Act of 2008 (SAFE Act) sections 1503(3) and (12) and 
1504 (12 U.S.C. 5102(3) and (12) and 5103), and its implementing 
regulations (i.e., 12 CFR 1007.103(a) and 1008.103(a)(2)). An entity 
may also have an NMLSR ID. Thus, if the creditor, mortgage broker, or 
loan officer has obtained an NMLSR ID, the NMLSR IDs must be provided 
in the disclosures required by Sec.  1026.37(k)(1) and (2).
    2. License number or unique identifier. Section 1026.37(k)(1) and 
(2) requires the disclosure of a license number or unique identifier 
for the creditor, mortgage broker, and loan officer if such entity or 
individual has not obtained an NMLSR ID. In such event, if the 
applicable State, locality, or other regulatory body with 
responsibility for licensing and/or registering such entity's or 
individual's business activities has issued a license number or other 
unique identifier to such entity or individual, that number is 
disclosed.
    3. Contact. Section 1026.37(k)(2) requires the disclosure of the 
name and NMLSR ID of the loan officer for the consumer. The loan 
officer is generally the natural person employed by the person 
disclosed under Sec.  1026.37(k)(2) who interacts most frequently with 
the consumer and who has an NMLSR ID or, if none, a license number or 
other unique identifier to be disclosed under Sec.  1026.38(k)(2), as 
applicable.
    37(l) Comparisons.
    37(l)(1) In five years.
    1. Loans with terms of less than five years. In transactions with a 
scheduled loan term of less than 60 months, to comply with Sec.  
1026.37(l)(1), the creditor discloses the amounts paid through the end 
of the loan term.
    Paragraph 37(l)(1)(i).

[[Page 51444]]

    1. Calculation of total payments in five years. The amount 
disclosed pursuant to Sec.  1026.37(l)(1)(i) is the sum of principal, 
interest, mortgage insurance, and loan costs scheduled to be paid 
through the end of the 60th month after the due date of the first 
periodic payment. For purposes of Sec.  1026.37(l)(1)(i), interest is 
calculated using the fully-indexed rate at consummation and includes 
any prepaid interest. In addition, for purposes of Sec.  
1026.37(l)(1)(i), the creditor should assume that the consumer makes 
payments as scheduled and on time. For purposes of Sec.  
1026.37(l)(1)(i), mortgage insurance is defined pursuant to comment 
37(c)(1)(i)(C)-1 and includes prepaid or escrowed mortgage insurance. 
Loan costs are those costs disclosed pursuant to Sec.  1026.37(f).
    2. Negative amortization loans. For loans that permit negative 
amortization, the creditor calculates the total payments in five years 
using the negatively amortizing payment amount until the consumer must 
begin making fully amortizing payments under the terms of the legal 
obligation.
    Paragraph 37(l)(1)(ii).
    1. Calculation of principal paid in five years. The disclosure 
required by Sec.  1026.37(l)(1)(ii) is calculated in the same manner as 
the disclosure required by Sec.  1026.37(l)(1)(i), except that the 
disclosed amount reflects only the total payments to principal through 
the end of the 60th month after the due date of the first periodic 
payment.
    37(l)(3) Total interest percentage.
    1. General. When calculating the total interest percentage, the 
creditor assumes that the consumer will make each payment in full and 
on time, and will not make any additional payments.
    2. Adjustable-rate and step-rate mortgages. For adjustable-rate 
mortgages, Sec.  1026.37(1)(3) requires that the creditor compute the 
total interest percentage using the fully-indexed rate. For step-rate 
mortgages, Sec.  1026.37(l)(3) requires that the creditor compute the 
total interest percentage in accordance with Sec.  1026.17(c)(1) and 
its associated commentary.
    3. Negative amortization loans. For loans that permit negative 
amortization, Sec.  1026.37(l)(3) requires that the creditor compute 
the total interest percentage using the negatively amortizing payment 
amount until the consumer must begin making fully amortizing payments 
under the terms of the legal obligation.
    37(m) Other considerations.
    37(m)(1) Appraisal.
    1. Applicability. Section 1026.37 requires the disclosures required 
by this section to be made as applicable. The disclosure required by 
Sec.  1026.37(m)(1) is only applicable to transactions subject to Sec.  
1026.19(e) that are also subject either to 15 U.S.C. 1639h or 1691(e), 
as implemented by this part or Regulation B, 12 CFR part 1002, 
respectively. Accordingly, if a transaction is not also subject to 
either of these provisions, the disclosure required by Sec.  
1026.37(m)(1) may be omitted from the Loan Estimate.
    37(m)(2) Assumption.
    1. Disclosure. Section 1026.37(m)(2) requires the creditor to 
disclose whether or not a third party may be allowed to assume the loan 
on its original terms if the property is sold or transferred by the 
consumer. In many cases, the creditor cannot determine, at the time the 
disclosure is made, whether a loan may be assumable at a future date on 
its original terms. For example, the assumption clause commonly used in 
mortgages sold to the Federal National Mortgage Association and the 
Federal Home Loan Mortgage Corporation conditions an assumption on a 
variety of factors, such as the creditworthiness of the subsequent 
borrower, the potential for impairment of the creditor's security, and 
the execution of an assumption agreement by the subsequent borrower. If 
the creditor can determine that such assumption is not permitted, the 
creditor complies with Sec.  1026.37(m)(2) by disclosing that the loan 
is not assumable. In all other situations, including where assumption 
of a loan is permitted or is dependent on certain conditions or 
factors, or uncertainty exists as to the future assumability of a 
mortgage, the creditor complies with Sec.  1026.37(m)(2) by disclosing 
that, under certain conditions, the creditor may allow a third party to 
assume the loan on its original terms.
    2. Original terms. For purposes of Sec.  1026.37(m)(2), the phrase 
``original terms'' does not preclude the imposition of an assumption 
fee, but a modification of the legal obligation, such as a change in 
the contract interest rate, represents different terms.
    37(m)(3) Homeowner's insurance.
    1. Optional disclosure. Section 1026.37(m)(3) provides that 
creditors may, but are not required to, disclose a statement of whether 
homeowner's insurance is required on the property and whether the 
consumer may choose the insurance provider, labeled ``Homeowner's 
Insurance.''
    2. Relation to the finance charge. Section 1026.4(d)(2) describes 
the conditions under which a creditor may exclude premiums for 
homeowner's insurance from the finance charge. A creditor satisfies 
Sec.  1026.4(d)(2)(i) by disclosing the statement described in Sec.  
1026.37(m)(3).
    37(m)(4) Late payment.
    1. Definition. Section 1026.37(m)(4) requires a disclosure if 
charges are added to an individual delinquent installment by a creditor 
that otherwise considers the transaction ongoing on its original terms. 
Late payment charges do not include: (i) the right of acceleration; 
(ii) fees imposed for actual collection costs, such as repossession 
charges or attorney's fees; (iii) referral and extension charges; or 
(iv) the continued accrual of simple interest at the contract rate 
after the payment due date. However, an increase in the interest rate 
on account of a late payment by the consumer is a late payment charge 
to the extent of the increase.
    2. Applicability of State law. Many State laws authorize the 
calculation of late charges as either a percentage of the delinquent 
payment amount or a specified dollar amount, and permit the imposition 
of the lesser or greater of the two calculations. The language provided 
in the disclosure may reflect the requirements and alternatives allowed 
under State law.
    37(m)(6) Servicing.
    1. Creditor's intent. Section 1026.37(m)(6) requires the creditor 
to disclose whether it intends to service the loan directly or transfer 
servicing to another servicer after closing. A creditor complies with 
Sec.  1026.37(m)(6) if the disclosure reflects the creditor's intent at 
the time the Loan Estimate is issued.
    37(m)(7) Liability after foreclosure.
    1. When statement is not permitted to be disclosed. The statement 
required by Sec.  1026.37(m)(7) is permitted only under the condition 
specified by Sec.  1026.37(m)(7), specifically, if the purpose of the 
credit transaction is a refinance under Sec.  1026.37(a)(9).
    37(n) Signature statement.
    1. Signature line optional. Whether a signature line is provided 
under Sec.  1026.37(n) is determined solely by the creditor. If a 
signature line is provided, however, the disclosure must include the 
statement required by Sec.  1026.37(n)(1).
    2. Multiple consumers. If there is more than one consumer in the 
transaction, the first consumer signs as the applicant and each 
additional consumer signs as a ``co-applicant.'' If there is not enough 
space under the heading ``Confirm Receipt'' to provide signature lines 
for every consumer in the transaction, the creditor may add additional 
signature pages, as needed, at the end of the form for the remaining 
consumers' signatures.
    37(o) Form of disclosures.
    37(o)(1) General requirements.

[[Page 51445]]

    1. Clear and conspicuous; segregation. The clear and conspicuous 
standard requires that the disclosures required by Sec.  1026.37 be 
legible and in a readily understandable form. Section 1026.37(o)(1)(i) 
requires that the disclosures be grouped together, segregated from 
everything else, and provided on separate pages that are not commingled 
with any other documents or disclosures, including any other 
disclosures required by State or other laws. As required by Sec.  
1026.37(o)(3)(i), the disclosures for any transaction that is a 
federally related mortgage loan under Regulation X, 12 CFR 1024.2, must 
be made using the standard form H-24 in appendix H to this part. 
Accordingly, use of that form constitutes compliance with the clear and 
conspicuous and segregation requirements of Sec.  1026.37(o).
    2. Balloon payment financing with leasing characteristics. In 
certain credit sale or loan transactions, a consumer may reduce the 
dollar amount of the payments to be made during the transaction by 
agreeing to make, at the end of the loan term, a large final payment 
based on the expected residual value of the property. The consumer may 
have a number of options with respect to the final payment, including, 
among other things, retaining the property and making the final 
payment, refinancing the final payment, or transferring the property to 
the creditor in lieu of the final payment. Such transactions may have 
some of the characteristics of lease transactions subject to Regulation 
M (12 CFR part 1013), but are considered credit transactions where the 
consumer assumes the indicia of ownership, including the risks, 
burdens, and benefits of ownership, upon consummation. These 
transactions are governed by the disclosure requirements of this part 
instead of Regulation M. Under Sec.  1026.37(o)(1)(ii), creditors may 
not include any additional information with the disclosures required by 
Sec.  1026.37, except as provided in Sec.  1026.37(o)(5). Thus, the 
disclosures must show the large final payment as a balloon payment in 
the projected payments table required by Sec.  1026.37(c) and should 
not, for example, reflect the other options available to the consumer 
at maturity.
    37(o)(2) Estimated disclosures.
    1. Estimated amounts. Section 1026.37(o)(2) incorporates the 
``estimated'' designations reflected on form H-24 in appendix H to this 
part into the disclosure requirements of Sec.  1026.37, even if the 
relevant provision of Sec.  1026.37 does not expressly require 
disclosure of the word ``estimate.'' For example, Sec.  
1026.37(c)(2)(iv) requires disclosure of the total periodic payment 
labeled ``Total Monthly Payment,'' but the label on form H-24 contains 
the designation ``Estimated'' and thus, the label required by Sec.  
1026.37(c)(2)(iv) must contain the designation ``Estimated.'' Although 
many of the disclosures required by Sec.  1026.38 cross-reference their 
counterparts in Sec.  1026.37, Sec.  1026.38(t) incorporates the 
``estimated'' designations reflected on form H-25, not form H-24.
    37(o)(3) Form.
    1. Non-federally related mortgage loans. For a non-federally 
related mortgage loan, the creditor is not required to use form H-24 in 
appendix H to this part, although its use as a model form for such 
transactions, if properly completed with accurate content, constitutes 
compliance with the clear and conspicuous and segregation requirements 
of Sec.  1026.37(o)(1)(i). Even when the creditor elects not to use the 
model form, Sec.  1026.37(o)(1) requires that the disclosures be 
grouped together and segregated from everything else; contain only the 
information required by Sec.  1026.37(a) through (n); and be provided 
in the same order as they occur in form H-24, using the same relative 
positions of the headings, labels, and similar designations as shown in 
the form. In addition, Sec.  1026.37(o)(2) requires that the creditor 
include the designation of ``estimated'' for all headings, subheading, 
labels, and similar designations required by Sec.  1026.37 for which 
form H-24 contains the ``estimated'' designation in such heading, 
subheading, label, or similar designation. The disclosures required by 
this section comply with the requirement to be in a format 
substantially similar to form H-24 when provided on letter size (8.5'' 
x 11'') paper.
    37(o)(4) Rounding.
    1. Rounding. Consistent with Sec.  1026.2(b)(4), except as 
otherwise provided in Sec.  1026.37(o)(4), any amount required to be 
disclosed by Sec.  1026.37 must be disclosed as an exact numerical 
amount using decimal places where applicable, unless otherwise 
provided.
    2. Calculations. If a dollar amount that is required to be rounded 
by Sec.  1026.37(o)(4)(i) on the Loan Estimate is a total of one or 
more dollar amounts that are not required to be rounded, the total 
amount must be rounded consistent with Sec.  1026.37(o)(4)(i), but such 
component amounts used in the calculation must such exact numbers. In 
addition, if any such exact component amount is required to be 
disclosed under Sec.  1026.37, consistent with Sec.  1026.2(b)(4), it 
should be disclosed as an exact number. If an amount that is required 
to be rounded by Sec.  1026.37(o)(4)(i) on the Loan Estimate is a total 
of one or more components that are also required to be rounded by Sec.  
1026.37(o)(4)(i), the total amount must be calculated using such 
rounded amounts. For example, the subtotals required to be disclosed by 
Sec.  1026.37(f)(1), (2), and (3) are calculated using the rounded 
amounts disclosed under those subsections. See comment 37(o)(4)(i)(C)-
1. However, the amounts required to be disclosed by Sec.  1026.37(l) 
reference actual amounts for their components, rather than other 
amounts disclosed under Sec.  1026.37 and rounded pursuant to Sec.  
1026.37(o)(4)(i), and thus, they are calculated using exact numbers.
    37(o)(4)(i) Nearest dollar.
    Paragraph 37(o)(4)(i)(A).
    1. Rounding of dollar amounts. Section 1026.37(o)(4)(i)(A) requires 
that certain dollar amounts be rounded to the nearest whole dollar. For 
example, pursuant to Sec.  1026.37(o)(4)(i)(A), if Sec.  
1026.37(c)(2)(ii) requires disclosure of periodic mortgage insurance 
payments of $164.50, the creditor would disclose $165. However, if the 
periodic mortgage insurance payment required to be disclosed by Sec.  
1026.37(c)(2)(ii) were $164.49, the creditor would disclose $164.
    Paragraph 37(o)(4)(i)(B).
    1. Rounding of loan amount. Section 1026.37(o)(4)(i)(B) requires 
the loan amount to be disclosed without decimal places denoting cents 
if the amount of cents is zero. For example, if Sec.  1026.37(b)(1) 
requires disclosure of a loan amount of $481,516.23, the creditor 
discloses the amount as $481,516.23. However, if the loan amount 
required to be disclosed were $481,516.00, the creditor would disclose 
$481,516.
    Paragraph 37(o)(4)(i)(C).
    1. Rounding of the total monthly payment. Section 
1026.37(o)(4)(i)(C) requires the total monthly payment amount disclosed 
under Sec.  1026.37(c)(2)(iv) to be rounded if any of its components 
are rounded. For example, if the total monthly payment disclosed under 
disclosed under Sec.  1026.37(c)(2)(iv) is composed of a $2,000.49 
periodic principal and interest payment required to be disclosed by 
Sec.  1026.37(c)(2)(i) and a $164.49 periodic mortgage insurance 
payment required to be disclosed by Sec.  1026.37(c)(2)(ii), the 
creditor would calculate the total monthly payment by adding the exact 
periodic principal and interest payment of $2,000.49 and the rounded 
periodic mortgage insurance

[[Page 51446]]

payment of $164, round the total, and disclose $2,164.
    37(o)(4)(ii) Percentages.
    1. Decimal places. Section 1026.37(o)(4)(ii) requires the 
percentage amounts disclosed not to use decimal places, if the amount 
is a whole number. For example, a 7.005 percent annual percentage rate 
is disclosed in compliance with Sec.  1026.37(o)(4)(ii) as ``7.005%,'' 
but a 7.000 percent annual percentage rate would be disclosed as 
``7%.''
    37(o)(5) Exceptions.
    1. Permissible changes. The changes required or permitted by Sec.  
1026.37(o)(5) do not affect the substance, clarity, or meaningful 
sequence of the disclosure and therefore, are permissible. Any changes 
to the disclosure not specified in Sec.  1026.37(o)(5) or not permitted 
by other provisions of Sec.  1026.37, may affect the substance, 
clarity, or meaningful sequence of the disclosure and therefore are not 
permissible. Creditors making any changes that affect substance, 
clarity, or meaningful sequence will lose their protection from civil 
liability under TILA.
    2. Manual completion. Section 1026.37(o) does not require the 
creditor to use a computer, typewriter, or other word processor to 
complete the disclosure form. The person may fill in information and 
amounts required to be disclosed by Sec.  1026.37 on form H-24 in 
appendix H to this part by hand printing or using any other method, 
provided the person produces clear and legible text and uses the 
formatting required by form H-24, including replicating bold font where 
required. Completion by hand or typewriter does not provide an 
exemption from the requirement to keep records in an electronic, 
machine readable format under Sec.  1026.25.
    3. Contact information. If a transaction involves more than one 
creditor or mortgage broker, the space provided on form H-24 in 
appendix H to this part for the contact information required by Sec.  
1026.37(m) may be altered to add additional labels to accommodate the 
additional information of such parties, provided that the information 
required by Sec.  1026.37(l), (m), and (n) are disclosed on the same 
page as illustrated by form H-24. If the space provided on form H-24 in 
appendix H to this part does not allow for the disclosure of such 
contact and other information on the same page, an additional page may 
be added to provide the required contact information with an 
appropriate reference to the additional page.
    4. Signature lines. Section 1026.37(o) does not restrict the 
addition of signature lines to the disclosure required by Sec.  
1026.37, provided any signature lines appear only under the ``Confirm 
Receipt'' heading required by Sec.  1026.37(n) as illustrated by form 
H-24 in appendix H to this part. If the number of signatures requested 
by the creditor requires space for signature lines in excess of that 
provided on form H-24, an additional page may be added to accommodate 
the additional signature lines with an appropriate reference to the 
additional page. Such additional page should also contain the heading 
and statement required by Sec.  1026.37(n) in the format provided on 
form H-24.
    5. Additional page. Information required or permitted to be 
disclosed by Sec.  1026.37(o)(5) on a separate page should be formatted 
similarly to form H-24 in appendix H to this part, so as not affect the 
substance, clarity, or meaningful sequence of the disclosure. In 
addition, information provided on additional pages should be 
consolidated on as few pages as necessary to not affect the substance, 
clarity, or meaningful sequence of the disclosure.

Section 1026.38--Content of Disclosures for Certain Mortgage 
Transactions (Closing Disclosure)

    1. As applicable. The disclosures required by Sec.  1026.38 are to 
be made only as applicable. A disclosure that is not applicable to a 
particular transaction generally may be eliminated entirely. For 
example, the disclosure required by Sec.  1026.38(r) of the consumer or 
seller's real estate brokers may be eliminated for a transaction that 
does not involve such real estate brokers, such as a refinance or home 
equity loan. Alternatively, the creditor generally may include 
disclosures that are not applicable to the transaction and note that 
they are ``not applicable'' or ``N/A.''
    2. Format. See Sec.  1026.38(t) and its commentary for guidance on 
the proper format to be used in making the disclosures, as well as 
required and permissible modifications.
    38(a) General information.
    38(a)(3) Closing information.
    38(a)(3)(i) Date issued.
    1. Applicable date. For general guidance on identifying the date 
issued for the Closing Disclosure, see the commentary to Sec.  
1026.37(a)(4).
    38(a)(3)(iv) Agent.
    1. Agency name. Section 1026.38(a)(3)(iv) requires the name of the 
agency that employs the settlement agent. The name of the individual 
conducting the closing is not required.
    38(a)(3)(vi) Property.
    1. Alternative property location. For guidance on providing the 
location of a property that does not have a standard street address, 
see the commentary to Sec.  1026.37(a)(6).
    38(a)(3)(vii) Sale price.
    1. No seller. In transactions where there is no seller, such as in 
a refinancing, Sec.  1026.38(a)(3)(vii)(B) requires the creditor to 
disclose the appraised value of the property. To comply with this 
requirement, the creditor discloses the value determined by the 
appraisal or valuation used to determine approval of the credit 
transaction, or if a more recent appraisal or valuation has been obtain 
by the creditor, the value determined by the more recent appraisal or 
valuation.
    38(a)(4) Transaction information.
    1. Multiple borrowers and sellers. The name and address of each 
consumer and seller in the transaction must be provided under the 
heading ``Transaction Information.'' If the form does not provide 
enough space to include the required information for each seller, an 
additional page may be used and appended to the end of the form 
provided that the creditor complies with the requirements of Sec.  
1026.38(t)(3). For additional guidance on disclosing multiple 
borrowers, see the commentary to Sec.  1026.37(a)(5).
    2. No seller. In transactions where there is no seller, such as in 
a refinancing or home equity loan, this disclosure may be left blank.
    3. Multiple creditors. See commentary to Sec.  1026.37(a)(3) 
regarding identification requirements for multiple creditors.
    38(a)(5) Loan information.
    1. General. See commentary to Sec.  1026.37(a)(8) through (12) for 
guidance on the general requirements and definitions applicable to 
Sec.  1026.38(a)(5)(i) through (v).
    38(b) Loan terms.
    1. Guidance. See the commentary to Sec.  1026.37(b) for guidance on 
the content of the disclosures required by Sec.  1026.38(b).
    38(c) Projected payments.
    1. In general. For guidance on the disclosure of the projected 
payments table, see Sec.  1026.37(c) and its commentary.
    38(c)(1) Projected payments or range of payments.
    1. Escrow account analysis. The amount of estimated escrow payments 
disclosed on the Closing Disclosure is accurate if it differs from the 
estimated escrow payment disclosed on the Loan Estimate because of the 
escrow account analysis described in Regulation X, 12 CFR 1024.17.
    38(f) Closing cost details; loan costs.
    38(f)(1) Origination charges.
    1. Guidance in other comments. For a description of origination 
charges and

[[Page 51447]]

discount points, see comments 37(f)(1)-1, 2 and 3 of this part.
    2. Loan originator compensation. All compensation paid to a loan 
originator, as defined by Sec.  1026.36(a)(1), associated with the 
transaction, regardless of the party that pays the compensation, must 
be disclosed pursuant to Sec.  1026.38(f)(1). Compensation from the 
consumer to a loan originator will be designated as borrower-paid at or 
before closing, as applicable, on the Closing Disclosure. Compensation 
from the creditor to a loan originator will be designated as paid by 
others on the Closing Disclosure. Compensation to a loan originator 
from both the consumer and the creditor in the transaction is 
prohibited under Sec.  1026.36(d)(2).
    3. Calculating compensation to a loan originator from the creditor. 
The amount disclosed as paid from the creditor to a loan originator 
under Sec.  1026.38(f)(1) is the dollar value of salaries, commissions, 
and any financial or similar compensation provided to a loan originator 
by the creditor. For additional guidance and examples on the 
calculation of compensation paid to the loan originator from the 
creditor, see comments 36(d)(1)-1, -2, -3 and -6.
    38(f)(2) Services borrower did not shop for.
    1. Guidance in other comments. For examples of services, costs, and 
their descriptions disclosed under Sec.  1026.38(f)(2), see comments 
37(f)(2)-1, 2, 3 and 4 of this part.
    38(f)(3) Services borrower did shop for.
    1. Provider on written list. Items that were disclosed pursuant to 
Sec.  1026.37(f)(3) cannot be disclosed under this Sec.  1026.38(f)(3) 
when the consumer selected a provider contained on the written list 
provided under Sec.  1026.19(e)(1)(vi)(C). Instead, such costs are 
disclosed pursuant to Sec.  1026.38(f)(2).
    38(f)(5) Subtotal of loan costs.
    1. Charges subtotaled. The only charges that are loan costs that 
are subtotaled pursuant to Sec.  1026.38(f)(5) are those costs 
designated borrower-paid at or before closing. Charges which are loan 
costs designated seller-paid at or before closing, or paid by others, 
are not subtotaled pursuant to Sec.  1026.38(f)(5). The subtotal of 
charges that are seller-paid at or before closing or paid by others is 
disclosed under Sec.  1026.38(h)(2).
    38(g) Closing costs details; other costs.
    38(g)(1) Taxes and other government fees.
    1. Guidance. For additional guidance on taxes and other government 
fees, see comments 37(g)(1)-1, -2, -3 and -4.
    38(g)(2) Prepaids.
    1. Guidance. For additional guidance on prepaids, see comment 
37(g)(2)-1.
    2. Negative prepaid interest. The prepaid interest amount is 
disclosed as a negative number if the calculation of prepaid interest 
results in a negative number.
    3. No prepaid interest. If interest is not collected for a portion 
of a month or other period between closing and the date from which 
interest will be collected with the first monthly payment, then $0 must 
be disclosed under Sec.  1026.38(g)(2).
    38(g)(3) Initial escrow payment at closing.
    1. Initial escrow account itemization. The creditor must state the 
amount that it will require the consumer to place into a reserve or 
escrow account at consummation to be applied to recurring charges for 
property taxes, homeowner's and similar insurance, mortgage insurance, 
homeowner's association dues, condominium dues, and other periodic 
charges. Each periodic charge to be included in the escrow or reserve 
account must be itemized under the ``Initial Escrow Payment at 
Closing'' subheading, with a relevant label, monthly payment amount, 
and number of months collected at closing.
    2. Aggregate accounting. The method used to determine the aggregate 
adjustment for the purposes of establishing the escrow account is 
described in 12 CFR 1024.17(d)(2). Examples of this calculation 
methodology can be found in appendix E to 12 CFR part 1024.
    38(g)(4) Other.
    1. Costs disclosed. The costs disclosed under Sec.  1038(g)(4) 
include all real estate brokerage fees, homeowner's or condominium 
association charges paid at consummation, home warranties, inspection 
fees, and other fees that are part of the real estate closing but not 
required by the creditor or disclosed elsewhere under Sec.  1026.38.
    2. Owner's title insurance premium. In a jurisdiction where 
simultaneous issuance title insurance rates are permitted, any owner's 
title insurance premium disclosed under Sec.  1026.38(g)(4) is 
calculated by using the full owner's title insurance premium, adding 
any simultaneous issuance premium for issuance of lender's coverage, 
and then deducting the full premium for lender's coverage disclosed 
under Sec.  1026.38(f)(2) or (f)(3). Section 1026.38(g)(4)(i) requires 
that the disclosure of the cost of the premium for an owner's title 
insurance policy must include ``Title--'' at the beginning of the 
label. In addition, Sec.  1026.38(g)(4)(ii) requires that the 
disclosure of the cost of the premium for an owner's title insurance 
policy must include the parenthetical ``(optional)'' at the end of the 
label when designated borrower-paid at or before closing.
    3. Guidance. For additional guidance on the use of the term 
``(optional)'' under Sec.  1038(g)(4)(ii), see comment 37(g)(4)-3.
    38(g)(6) Subtotal of costs.
    1. Costs subtotaled. The only costs that are subtotaled pursuant to 
Sec.  1026.38(g)(6) are those costs that are designated borrower-paid 
at or before closing. Costs that are other costs designated seller-paid 
at or before closing, or paid by others, are not subtotaled pursuant to 
Sec.  1026.38(g)(6). The subtotal of charges that are designated 
seller-paid at or before closing or paid by others is disclosed under 
Sec.  1026.38(h)(2).
    38(h) Closing cost totals.
    Paragraph 38(h)(2).
    1. Charges paid by seller and by others subtotaled. All loan costs 
and other costs that are designated seller-paid at or before closing, 
or paid by others, are also totaled under Sec.  1026.38(h)(2).
    Paragraph 38(h)(3).
    1. General lender credits. When the consumer receives a generalized 
credit from creditor for closing costs, the amount of the credit must 
be disclosed. However, if such credit is attributable to a specific 
loan cost or other cost listed in the Closing Cost Details tables, 
pursuant to Sec.  1026.38(f) or (g), that amount should be reflected in 
the paid by others column in the Closing Cost Details tables under 
Sec.  1026.38(f) or (g). For a description of lender credits from the 
creditor, see comment 17(c)(1)-19. For a discussion of determining 
amounts of general lender credits, see comment 19(e)(3)(i)-5. For a 
discussion of lender credits for specific charges, see comment 
19(3)(i)-4.
    2. Credits for excess charges. Credits from the creditor to offset 
an amount charged in excess of the limitations described in Sec.  
1026.19(e)(ii) are disclosed pursuant to Sec.  1026.38(h)(3), along 
with a statement that such amount was paid to offset an excess charge, 
with funds other than closing funds. If an excess charge is discovered 
after the revised Closing Disclosure has been provided, the revised 
form must be provided to the consumer and other appropriate parties, as 
described under Sec.  1026.19(f)(2)(iii).
    Paragraph 38(h)(4).
    1. Consistent terminology and order of charges. On the Closing 
Disclosure the creditor must use terminology that is consistent with 
that used on the Loan Estimate to identify each corresponding

[[Page 51448]]

loan cost and other cost. In addition, Sec.  1026.38(h)(4) requires the 
creditor to list the costs disclosed under each subcategory of charges 
in a consistent order. If costs move between subheadings under Sec.  
1026.38(f)(2) and (f)(3) of this part, listing the costs in 
alphabetical order in each subheading category is considered to be in 
compliance with Sec.  1026.38(h)(4).
    38(i) Calculating cash to close.
    1. More prominent disclosures. Sections 1026.38(i)(1)(iii), 
1026.38(i)(2)(iii), 1026.38(i)(3)(iii), 1026.38(i)(4)(iii), 
1026.38(i)(5)(iii), 1026.38(i)(6)(iii), 1026.38(i)(7)(iii), and 
1026.38(i)(8)(iii) require that statements are given as to whether the 
``Final'' amount disclosed under each subparagraph (ii) of Sec. Sec.  
1026.38(i)(1) through (i)(8) is different or equal to, and in some 
cases whether the amount is greater than or less than, the 
corresponding ``Estimate'' amount disclosed under each subparagraph (i) 
of Sec. Sec.  1026.38(i)(1) through (i)(8). These statements are more 
prominent than the other disclosures under Sec.  1026.38(i). The 
statement of whether the estimated and final amounts are different, 
stated as a ``Yes'' or ``No'' in capital letters and boldface font, 
under the subheading ``Did this change?,'' as shown on form H-25 in 
appendix H to this part, complies with the requirement to state whether 
the amounts are different more prominently. Such statement of ``No'' 
satisfies the requirement to state that the estimated and final amounts 
are equal, and these sections do not provide for any narrative text to 
be included with such statement. The prominence requirement also 
requires that, in the event an increase or decrease in costs has 
occurred, certain words within the narrative text to be included under 
the subheading ``Did this change?'' for a ``Yes'' answer are displayed 
more prominently than other disclosures. For example, under Sec.  
1026.38(i)(1)(iii)(A), this more prominent statement could take the 
form of the phrases ``Total Loan Costs (D)'' and ``Total Other Costs 
(I)'' being shown in boldface, as shown on form H-25 in appendix H to 
this part. See comments 38(i)-3 and -4 for further guidance regarding 
the prominence of such statements.
    2. Statements of differences. The dollar amounts disclosed under 
Sec.  1026.38 generally are shown to two decimal places unless 
otherwise stated. See comment 38(t)(4)-1. As a result, any ``Final'' 
amount that is disclosed in the ``Calculating Cash to Close'' table 
under Sec.  1026.38(i) is shown to two decimal places unless otherwise 
stated. Pursuant to Sec.  1026.38(t)(4)(i)(C), however, any 
``Estimate'' amount that is disclosed in the ``Calculating Cash to 
Close'' table under Sec.  1026.38(i) is shown to the nearest dollar 
amount, and thus matches the corresponding estimated amount disclosed 
on the Loan Estimate's ``Calculating Cash to Close'' table under Sec.  
1026.37(h), which is shown to the nearest whole dollar pursuant to 
Sec.  1026.37(o)(4)(i)(A). For this reason, a ``Final'' amount shown to 
two decimal places could be a larger number than its corresponding 
``Estimate'' amount shown to the nearest whole dollar, when, in fact, 
the apparent increase is due solely to rounding. Therefore, for 
purposes of Sec. Sec.  1026.38(i)(1)(iii), 1026.38(i)(2)(iii), 
1026.38(i)(3)(iii), 1026.38(i)(4)(iii), 1026.38(i)(5)(iii), 
1026.38(i)(6)(iii), 1026.38(i)(7)(iii), and 1026.38(i)(8)(iii), each 
statement of a change between the amounts disclosed on the Loan 
Estimate and the Closing Disclosure is based on the actual, non-rounded 
estimate that would have been disclosed on the Loan Estimate under 
Sec.  1026.37(h) if it had been shown to two decimal places rather than 
a whole dollar amount. For example, if the ``Estimate'' amount of 
``Total Closing Costs'' disclosed under Sec.  1026.38(i)(1)(i) is 
$12,500, and the ``Final'' amount of ``Total Closing Costs'' disclosed 
under Sec.  1026.38(i)(1)(ii) is $12,500.35, then even though the table 
would appear to show a $0.35 increase in ``Total Closing Costs,'' no 
statement of such increase is given under Sec.  1026.38(i)(1)(iii) so 
long as the actual, non-rounded estimate (i.e., the estimated amount of 
``Total Closing Costs'' that would have been shown on the Loan Estimate 
to two decimal places) is equal to $12,500.35.
    3. Statements that the consumer should see details. The provisions 
of Sec.  1026.38(i)(4)(iii)(A), (i)(5)(iii)(A), (i)(7)(iii)(A), and 
(i)(8)(iii)(A) each require a statement that the consumer should see 
certain details of the closing costs disclosed under Sec.  1026.38(j). 
Form H-25 in appendix H to this part contains examples of these 
statements. For example, Sec.  1026.38(i)(7)(iii)(A) requires a 
statement that the consumer should see the details disclosed pursuant 
to Sec.  1026.38(j)(2)(v), and, as shown on form H-25, the statement, 
``See Seller Credits in Section L,'' in which the words ``Section L'' 
are boldface, complies with this provision. In addition, for example, 
Sec.  1026.38(i)(5)(iii)(A) requires a statement that the consumer 
should see the details disclosed pursuant to Sec.  1026.38(j)(2)(ii), 
and the following similar statement to that shown on form H-25 for 
Sec.  1026.38(i)(7)(iii)(A), ``See Deposit in Section L,'' complies 
with this provision.
    4. Statements of increases or decreases. The statements of whether 
there is a difference between the final and estimated amounts under the 
subheading ``Did this change?,'' as required by Sec.  1026.38(i). The 
provisions of Sec.  1026.38(i)(4)(iii)(A), (i)(5)(iii)(A), and 
(i)(6)(iii)(A) each require a statement of whether the amount increased 
or decreased from the estimated amount. Form H-25 in appendix H to this 
part contains an example of the statement required by Sec.  
1026.38(i)(6)(iii)(A). For the provisions of Sec.  
1026.38(i)(4)(iii)(A) and (i)(5)(iii)(A), the statement, ``You 
increased this payment,'' in which the word ``increased'' is boldface 
and is replaced with the word ``decreased'' as applicable, complies 
with this provision.
    38(i)(1) Total closing costs.
    Paragraph 38(i)(1)(i).
    1. Reference to disclosure of total closing costs. Under Sec.  
1026.38(i)(1)(i), the amount disclosed is labeled ``Total Closing 
Costs,'' and such label is accompanied by a reference to the disclosure 
of ``Total Closing Costs'' under Sec.  1026.38(h)(1). This reference 
may take the form, for example, of a cross-reference in parenthesis to 
the row on the table disclosed under Sec.  1026.38(h) that includes the 
itemized amount for ``Total Closing Costs,'' as shown on form H-25 in 
appendix H to this part.
    Paragraph 38(i)(1)(iii)(A).
    1. Statements and references regarding the total loan costs and 
total other costs. Under Sec.  1026.38(i)(1)(iii)(A), the statements 
under the subheading ``Did this change?'' that the consumer should see 
the total loan costs and total other costs subtotals disclosed on the 
Closing Disclosure under Sec.  1026.38(f)(4) and (g)(5) is made only if 
and to the extent the difference in the ``Total Closing Costs'' is 
attributable to differences in itemized charges that are included in 
either or both of such subtotals.
    i. For example, if an increase in the ``Total Closing Costs'' is 
attributable only to an increase in the appraisal fee (which is an 
itemized charge on the Closing Disclosure under the subheading 
``Services Borrower Did Not Shop For,'' itself under the heading ``Loan 
Costs''), then a statement is given under the subheading ``Did this 
change?'' that the consumer should see the total loan costs subtotal 
disclosed on the Closing Disclosure under Sec.  1026.38(f)(4). If the 
increase in ``Total Closing Costs'' is attributable only to an increase 
in recording fees (which is an itemized charge on the Closing 
Disclosure under the subheading ``Taxes

[[Page 51449]]

and Other Government Fees,'' itself under the heading ``Other Costs''), 
then a statement is given under the subheading ``Did this change?'' 
that the consumer should see the total other costs subtotal disclosed 
on the Closing Disclosure under Sec.  1026.38(g)(5). If, however, the 
increase is attributable in part to an increase in the appraisal fee 
and in part to an increase in the recording fee, then a statement is 
given under the subheading ``Did this change?'' that the consumer 
should see the total loan costs and total other costs subtotals 
disclosed on the Closing Disclosure under Sec.  1026.38(f)(4) and 
(g)(5).
    ii. For guidance regarding the requirement that this statement be 
accompanied by a reference to the disclosures of the total loan costs 
and total other costs under Sec. Sec.  1026.38(f)(4) and (g)(5), see 
comment 38(i)(1)(i)-1. For an example of such reference, see form H-25 
in appendix H to this part.
    2. Disclosure of excess amounts above limitations on increases in 
closing costs.
    i. Because certain closing costs, individually, are subject to the 
limitations on increases in closing costs under Sec.  1026.19(e)(3)(i) 
(e.g., fees paid to the creditor, transfer taxes, fees paid to an 
affiliate of the creditor), while other closing costs are collectively 
subject to the limitations on increases in closing costs under Sec.  
1026.19(e)(3)(ii) (e.g., recordation fees, fees paid to an unaffiliated 
third party identified by the creditor if the creditor permitted the 
consumer to shop for the service provider), Sec.  1026.38(i)(1)(iii)(A) 
requires the creditor or closing agent to calculate subtotals for each 
type of excess amount, and then add such subtotals together to yield 
the dollar amount to be disclosed in the table. See commentary to Sec.  
1026.19(e)(3) for additional guidance on calculating excess amounts 
above the limitations on increases in closing costs under Sec.  
1026.19(e)(3).
    ii. Under Sec.  1026.38(i)(1)(iii)(A), calculation of the excess 
amounts above the limitations on increases in closing costs takes into 
account that the itemized, estimated closing costs disclosed on the 
Loan Estimate will not result in charges to the consumer if the service 
is not actually provided at or before consummation. For example, if the 
Loan Estimate included under ``Services You Cannot Shop For'' a $30 
charge for a ``title courier fee,'' but the title company elects to 
hand-deliver the title documents package to the creditor at no charge, 
the $30 fee is not factored into the calculation of the ``Total Closing 
Costs'' that are subject to the limitations on increases in closing 
costs. However, if the title courier fee was assessed, but at only $15, 
the charge is factored into the calculation because the third party 
service was actually provided, albeit at a lower amount than estimated.
    iii. Under Sec.  1026.38(i)(1)(iii)(A), calculation of the excess 
amounts above the limitations on increases in closing costs takes into 
account that certain itemized charges listed on the Loan Estimate under 
the subheading ``Services You Can Shop For'' may be subject to 
different limitations depending on the circumstances. Such a charge 
would be subject to the limitations under Sec.  1026.19(e)(3)(i) if the 
consumer decided to use a provider affiliated with the creditor. 
However, the same charge would instead be subject to the limitations 
under Sec.  1026.19(e)(3)(ii) if the consumer selected a third party 
service provider unaffiliated with but identified by the creditor, and 
the creditor permitted the consumer to shop for the service provider. 
See commentary to Sec.  1026.19(e)(3) for additional guidance on 
calculating excess amounts above the limitations on increases in 
closing costs under Sec.  1026.19(e)(3).
    38(i)(2) Closing costs subtotal paid before closing.
    Paragraph 38(i)(2)(i).
    1. Estimate of closing costs subtotal paid before closing. Under 
Sec.  1026.38(i)(2)(i), the ``Estimate'' amount for ``Closing Costs 
Subtotal Paid Before Closing'' is always shown as ``$0,'' because an 
estimate of such amount is not disclosed on the Loan Estimate.
    Paragraph 38(i)(2)(iii)(B).
    1. Equal amount. Under Sec.  1026.38(i)(2)(iii)(B), the creditor or 
closing agent will give a statement that the ``Final'' amount disclosed 
under Sec.  1026.38(i)(2)(ii) is equal to the ``Estimate'' amount 
disclosed under Sec.  1026.38(i)(2)(i), only if the ``Final'' amount is 
$0, because the ``Estimate'' amount is always disclosed as $0 pursuant 
to Sec.  1026.38(i)(2)(i). See comment 38(i)(2)(i)-1.
    38(i)(4) Downpayment/funds from borrower.
    Paragraph 38(i)(4)(ii)(A).
    1. Downpayment. Under Sec.  1026.38(i)(4)(ii)(A), in a transaction 
that is a purchase as defined in Sec.  1026.37(a)(9)(i), the ``Final'' 
amount disclosed for ``Downpayment/Funds from Borrower'' reflects any 
change, following delivery of the Loan Estimate, in the amount of down 
payment required of the consumer. This change might result, for 
example, from an increase in the purchase price of the property.
    Paragraph 38(i)(4)(ii)(B).
    1. Funds from borrower. Section 1026.38(i)(4)(ii)(B) provides that, 
in a transaction other than a purchase as defined in Sec.  
1026.37(a)(9)(i), the ``Final'' amount disclosed for ``Downpayment/
Funds from Borrower'' is the amount of ``Funds from Borrower'' 
determined in accordance with Sec.  1026.38(i)(6)(iv). Under Sec.  
1026.38(i)(6)(iv), the ``Final'' amount of ``Funds from Borrower'' to 
be disclosed under Sec.  1026.38(i)(4)(ii)(B) is determined by 
subtracting from the total amount of all existing debt being satisfied 
in the real estate closing and disclosed under Sec.  1026.38(j)(1)(v) 
(except to the extent the satisfaction of such existing debt is 
disclosed under Sec.  1026.38(g)) the principal amount of the credit 
extended, and is disclosed either as a positive number or $0 depending 
on the result of the calculation. An increase in the ``Final'' amount 
of ``Funds from Borrower'' compared to the corresponding ``Estimate'' 
amount might result, for example, from a decrease in the amount of the 
credit extended or an increase in the payoff amount for the consumer's 
existing debt that is secured by the property. For additional guidance 
regarding the determination of the ``Funds from Borrower'' amount, see 
comment 38(i)(6)(ii)-1.
    Paragraph 38(i)(4)(iii)(A).
    1. Statement of differences. Section 1026.38(i)(4)(iii)(A) 
requires, as applicable, a statement that the consumer has increased or 
decreased this payment, along with a statement that the consumer should 
see the details disclosed under Sec.  1026.38(j)(1) or (j)(2), as 
applicable. The applicable disclosure to be referenced corresponds to 
the label on the Closing Disclosure under which the information 
accounting for the increase in the ``Downpayment/Funds from Borrower'' 
amount is disclosed. For example, in a transaction that is a purchase 
as defined in Sec.  1026.37(a)(9)(i), if the purchase price of the 
property has increased and therefore caused the ``Downpayment'' amount 
to increase, the statement, ``You increased this payment. See details 
in Section K,'' with the words ``increased'' and ``Section K'' in 
boldface text, complies with this requirement. In a purchase or 
refinancing transaction, in the event the amount of the credit extended 
by the creditor has decreased and therefore caused the ``Funds from 
Borrower'' amount to increase, the statement can read, for example, 
``You increased this payment. See details in Section L,'' with the same 
boldface text.
    38(i)(6) Funds for borrower.
    Paragraph 38(i)(6)(ii).
    1. Final funds for borrower. Section 1026.38(i)(6)(ii) provides 
that the

[[Page 51450]]

``Final'' amount for ``Funds for Borrower'' is determined in accordance 
with Sec.  1026.38(i)(6)(iv). Under Sec.  1026.38(i)(6)(iv), the 
``Final'' amount of ``Funds for Borrower'' to be disclosed under Sec.  
1026.38(i)(6)(ii) is determined by subtracting from the total amount of 
all existing debt being satisfied in the transaction and disclosed 
under Sec.  1026.38(j)(1)(v) (except to the extent the satisfaction of 
such existing debt is disclosed under Sec.  1026.38(g)) the principal 
amount of the credit extended (excluding any amount disclosed under 
Sec.  1026.38(i)(3)(ii), and is disclosed under Sec.  1026.38(i)(6)(ii) 
either as a negative number or $0.00 depending on the result of the 
calculation. The ``Final'' amount of ``Funds for Borrower'' disclosed 
under Sec.  1026.38(i)(6)(ii) is the amount to be disbursed to the 
consumer or a designee of the consumer at consummation, if any.
    38(i)(7) Seller credits.
    Paragraph 38(i)(7)(ii).
    1. Final seller credits. Under Sec.  1026.38(i)(7)(ii), the 
``Final'' amount of ``Seller Credits'' reflects any change, following 
the delivery of the Loan Estimate, in the amount of funds given by the 
seller to the consumer for generalized (i.e., lump sum) credits for 
closing costs or for allowances for items purchased separately (e.g., 
if the seller is a builder). Seller credits are distinguished from 
payments by the seller for items attributable to periods of time prior 
to consummation, which are among the ``Adjustments and Other Credits'' 
separately disclosed pursuant to Sec.  1026.38(i)(8). For additional 
guidance regarding seller credits, see comments 38(j)(2)(v)-1 and -2.
    38(i)(8) Adjustments and other credits.
    Paragraph 38(i)(8)(ii).
    1. Adjustments and other credits. Under Sec.  1026.38(i)(8)(ii), 
the ``Final'' amount for ``Adjustments and Other Credits'' would 
include, for example, prorations of taxes or homeowners' association 
fees, utilities used but not paid for by the seller, rent collected in 
advance by the seller from a tenant for a period extending beyond the 
consummation, and interest on loan assumptions. This category also 
includes generalized credits toward closing costs given by parties 
other than the seller. For additional guidance regarding adjustments 
and other credits, see commentary to Sec. Sec.  1026.37(h)(7), 
1026.38(j)(2)(vi), and 1026.38(j)(2)(xi). If the calculation required 
by Sec.  1026.38(i)(8)(ii) yields a negative number, the creditor or 
closing agent discloses the amount as a negative number.
    38(i)(9) Cash to close.
    Paragraph 38(i)(9)(ii).
    1. Final cash to close amount. The ``Final'' amount of ``Cash to 
Close'' disclosed under Sec.  1026.38(i)(9)(ii) is the same as the 
amount disclosed on the Closing Disclosure as ``Cash to Close'' under 
Sec.  1026.38(j)(3)(iii). If the calculation required by Sec.  
1026.38(i)(9)(ii) yields a negative number, the creditor or closing 
agent discloses the amount as a negative number.
    2. More prominent disclosure. Section 1026.38(i)(9)(ii) requires 
that the disclosure of the ``Final'' amount of ``Cash to Close'' be 
more prominent than the other disclosures under Sec.  1026.38(i). Such 
more prominent disclosure can take the form, for example, of boldface 
font, as shown on form H-25 in appendix H to this part.
    38(j) Summary of borrower's transaction.
    1. In general. It is permissible to have two separate Closing 
Disclosures in a transaction: One that reflects the consumer's costs 
and credits only, which is provided to the consumer, and one with the 
seller's costs and credits only, which is provided to the seller. See 
Sec.  1026.38(t)(5)(vii) and (viii). Some State laws may prohibit 
provision of information about the consumer to the seller and about the 
seller to the consumer.
    2. Addendums. Additional pages may be attached to the Closing 
Disclosure to add lines, as necessary, to accommodate the complete 
listing of all items required to be shown on the Closing Disclosure, 
and for the purpose of including customary recitals and information 
used locally in real estate closings (for example, breakdown of payoff 
figures, a breakdown of the consumer`s total monthly mortgage payments, 
an accounting of debits received and check disbursements, a statement 
stating receipt of funds, applicable special stipulations between 
consumer and seller, and the date funds are transferred). See Sec.  
1026.38(t)(5)(vi).
    3. Identical amounts. The amounts disclosed under the following 
provisions of Sec.  1026.38(j) are the same as the amounts disclosed 
under the corresponding provisions of Sec.  1026.38(k): Sec.  
1026.38(j)(1)(ii) and Sec.  1026.38(k)(1)(ii); Sec.  1026.38(j)(1)(iii) 
and Sec.  1026.38(k)(1)(iii); if the amount disclosed under Sec.  
1026.38(j)(1)(v) is attributable to contractual adjustments between the 
consumer and seller, Sec.  1026.38(j)(1)(v) and Sec.  
1026.38(k)(1)(iv); Sec.  1026.38(j)(1)(vii) and Sec.  
1026.38(k)(1)(vi); Sec.  1026.38(j)(1)(viii) and Sec.  
1026.38(k)(1)(vii); Sec.  1026.38(j)(1)(ix) and Sec.  
1026.38(k)(1)(viii); Sec.  1026.38(j)(1)(x) and Sec.  
1026.38(k)(1)(ix); Sec.  1026.38(j)(2)(iv) and Sec.  1026.38(k)(2)(iv); 
Sec.  1026.38(j)(2)(v) and Sec.  1026.38(k)(2)(vii); Sec.  
1026.38(j)(2)(viii) and Sec.  1026.38(k)(2)(x); Sec.  1026.38(j)(2)(ix) 
and Sec.  1026.38(k)(2)(xi); Sec.  1026.38(j)(2)(x) and Sec.  
1026.38(k)(2)(xii); and Sec.  1026.38(j)(2)(xi) and Sec.  
1026.38(k)(2)(xiii).
    38(j)(1) Itemization of amounts due from borrower.
    Paragraph 38(j)(1)(ii).
    1. Contract sales price and personal property. Section 
1026.38(j)(1)(ii) requires disclosure of the contract sales price of 
the property being sold, excluding the price of any tangible personal 
property if the consumer and seller have agreed to a separate price for 
such items. Personal property is defined by state law, but could 
include such items as carpets, drapes, and appliances. Manufactured 
homes are not considered personal property under Sec.  
1026.38(j)(1)(ii).
    Paragraph 38(j)(1)(v).
    1. Contractual adjustments. Section 1026.38(j)(1)(v) requires 
disclosure of amounts owed by the consumer that are not otherwise 
disclosed pursuant to Sec.  1026.38(j). For example, the following 
items must be disclosed under Sec.  1026.38(j), to the extent 
applicable:
    i. The balance in the seller's reserve account held in connection 
with an existing loan, if assigned to the consumer in a loan assumption 
transaction;
    ii. Any rent that the consumer will collect after the real estate 
closing for a period of time prior to the real estate closing; or
    iii. The treatment of any tenant security deposit.
    2. Other consumer charges. The amounts disclosed under Sec.  
1026.38(j)(1)(v) which are for charges owed by the consumer at the real 
estate closing not otherwise disclosed pursuant to Sec.  1026.38(f), 
(g), and (j) will not have a corresponding credit in the summary of 
seller's transaction under Sec.  1026.38(k)(1)(iv). For example, the 
amounts paid to any existing holders of liens on the property in a 
refinance transaction, and any outstanding real estate property taxes 
are disclosed under Sec.  1026.38(j)(1)(v) without a corresponding 
credit in the summary of seller's transaction under Sec.  
1026.38(k)(1)(iv).
    Paragraph 38(j)(1)(x).
    1. Additional adjustments. Examples of items for which adjustments 
may be made include taxes, other than those disclosed pursuant to Sec.  
1026.38(j)(1)(vii) and (viii), paid in advance for an entire year or 
other period, when the real

[[Page 51451]]

estate closing occurs prior to the expiration of the year or other 
period for which they were paid. Additional examples of items for which 
adjustments may be made include:
    i. Flood and hazard insurance premiums, if the consumer is being 
substituted as an insured under the same policy;
    ii. Mortgage insurance in loan assumptions;
    iii. Planned unit development or condominium association 
assessments paid in advance;
    iv. Fuel or other supplies on hand, purchased by the seller, which 
the consumer will use when consumer takes possession of the property; 
and
    v. Ground rent paid in advance.
    38(j)(2) Itemization of amounts already paid by or on behalf of 
borrower.
    Paragraph 38(j)(2)(ii).
    1. Deposit. All amounts paid into a trust account by the consumer 
pursuant to the contract of sale for real estate, any addenda thereto, 
or any other agreement between the consumer and seller must be 
disclosed under Sec.  1026.38(j)(2)(ii).
    2. Reduction of deposit when deposit used to pay for closing 
charges prior to closing. If the consumer's deposit has been applied 
toward a charge for a closing cost, the amount applied should not be 
included in the amount disclosed pursuant to Sec.  1026.38(j)(2)(ii), 
but instead should be shown on the appropriate line for the closing 
cost in the Closing Cost Detail tables pursuant to Sec.  1026.38(f) or 
(g), designated borrower-paid before closing.
    Paragraph 38(j)(2)(iii).
    1. First user loan. For purposes of Sec.  1026.38(j), a first user 
loan is a loan to finance construction of a new structure or purchase 
of manufactured home that is known at the time of consummation to be 
real property under state law, where the structure was constructed for 
sale or the manufactured home was purchased for purposes of resale and 
the loan is used as or converted to a loan to finance purchase by the 
first user. For other loans subject to Sec.  1026.19(f) that finance 
construction of a new structure or purchase of a manufactured home that 
is known at the time of consummation to be real property under State 
law, the sales price of the land and the construction cost or purchase 
price of the manufactured home should be disclosed separately and the 
amount of the loan in the current transaction must be disclosed. The 
remainder of the Closing Disclosure should be completed taking into 
account adjustments and charges related to the temporary financing and 
permanent financing that are known at the time of consummation.
    Paragraph 38(j)(2)(iv).
    1. Assumption of existing loan obligation of seller by consumer. 
The outstanding amount of any loan that the consumer is assuming, or 
subject to which the consumer is taking title to the property must be 
disclosed under Sec.  1026.38(j)(2)(iv).
    Paragraph 38(j)(2)(v).
    1. General seller credits. When the consumer receives a generalized 
credit from the seller for closing costs or where the seller (typically 
a builder) is making an allowance to the consumer for items to purchase 
separately, the amount of the credit must be disclosed. However, if the 
seller credit is attributable to a specific loan cost or other cost 
listed in the Closing Cost Details tables, pursuant to Sec.  1026.38(f) 
or (g), that amount should be reflected in the seller-paid column in 
the Closing Cost Details tables under Sec.  1026.38(f) or (g).
    2. Other seller credits. Any other obligations of the seller to be 
paid directly to the consumer, such as for issues identified at a walk-
through of the property prior to closing, are disclosed under Sec.  
1026.38(j)(2)(v).
    Paragraph 38(j)(2)(vi).
    1. Credits from any party other than the seller or creditor. 
Section 1026.38(j)(2)(vi) requires disclosure of a description and the 
amount of items paid by or on behalf of the consumer and not disclosed 
elsewhere under Sec.  1026.38(j)(2). For example, credits a consumer 
receives from a real estate agent or other third party, other than a 
seller or creditor, are disclosed pursuant to Sec.  1026.38(j)(2)(vi). 
However, if the credit is attributable to a specific closing cost 
listed in the Closing Cost Details tables under Sec.  1026.38(f) or 
(g), that amount should be reflected in the paid by others column on 
the Closing Cost Details tables and not in the disclosure required 
under Sec.  1026.38(j)(2)(vi). Similarly, if a real estate agent 
rebates a portion of the agent's commission to the consumer, the rebate 
should be listed as a credit along with a description of the rebate, 
which must include the name of the party giving the credit.
    2. Subordinate financing proceeds. Any financing arrangements or 
other new loans not otherwise disclosed pursuant to Sec.  
1026.38(j)(2)(iii) or (iv) must also be disclosed pursuant to Sec.  
1026.38(j)(2)(vi). For example, if the consumer is using a second 
mortgage or note to finance part of the purchase price, whether from 
the same creditor, another creditor, or the seller, the principal 
amount of the loan disclosed with a brief explanation. If the net 
proceeds of a second loan are less than the principal amount of the 
second loan, the net proceeds may be listed on the same line as the 
principal amount of the second loan. For an example, see form H-25 in 
appendix H to this part.
    3. Satisfaction of existing subordinate liens by consumer. For 
payments to subordinate lien holders by or on behalf of the consumer, 
disclosure of any amounts paid with funds other than closing funds, as 
defined under Sec.  1026.38(j)(4)(ii), in connection with the second 
mortgage payoff are required to be disclosed under Sec.  
1026.38(j)(2)(vi), with a statement that such amounts were paid outside 
of closing funds.
    4. Transferred escrow balances. In a refinance transaction, any 
transferred escrow balance is listed as a credit pursuant to Sec.  
1026.38(j)(2)(vi), along with a description of the transferred escrow 
balance.
    5. Gift funds. A credit must be disclosed for any money or other 
payments made by family members or third parties not otherwise 
associated with the transaction, along with a description of the nature 
of the funds provided under Sec.  1026.38(j)(2)(vi).
    Paragraph 38(j)(2)(xi).
    1. Examples. Examples of items that would be disclosed under Sec.  
1026.38(j)(2)(xi) include:
    i. Utilities used but not paid for by the seller;
    ii. Rent collected in advance by the seller from a tenant for a 
period extending beyond the closing date; and
    iii. Interest on loan assumptions.
    38(j)(3) Calculation of borrower's transaction.
    Paragraph 38(j)(3)(iii).
    1. Stating if a mount is due to or from consumer. To comply with 
Sec.  1026.38(j)(3)(iii), the creditor must state either the cash 
required from the consumer at consummation, or cash payable to the 
consumer at consummation, as described under Sec.  1026.38(j)(2)(iii).
    2. Methodology. To calculate the cash to close, total the amounts 
disclosed under Sec.  1026.38(j)(3)(i) and (ii). If that calculation 
results in a positive amount, the amount is due from the consumer. If 
the calculation results in a negative amount, the amount is due to the 
consumer.
    38(j)(4) Items paid outside of closing funds.
    Paragraph 38(j)(4)(i).
    1. Charges not paid with closing funds. Section 1026.38(j)(4)(i) 
requires that any charges not paid from closing funds but that 
otherwise are disclosed pursuant to Sec.  1026.38(j) be marked as 
``paid outside of closing'' or ``P.O.C.'' The disclosure must include a 
statement of the party making the payment, such as the consumer, 
seller, loan originator,

[[Page 51452]]

real estate agent, or any other person. For an example of a disclosure 
of a charge not made from closing funds, see form H-25 in appendix H to 
this part. For an explanation of what constitutes closing funds, see 
Sec.  1026.38(j)(4)(ii).
    2. Items paid without closing funds not included in totals. Charges 
that are paid outside of closing funds under Sec.  1026.38(j)(4)(i) 
should not be included in computing totals under Sec.  1026.38(j)(1) 
and (j)(2).
    38(k) Summary of seller's transaction.
    1. Transactions with no seller. Section 1026.38(k) does not apply 
in transactions where there is no seller, such as a refinance 
transaction.
    2. Extra line items. For guidance regarding the use of an addendum, 
see comment 38(j)-2.
    3. Identical amounts. For guidance regarding the amounts disclosed 
under certain provisions of Sec.  1026.38(k) are the same as amounts 
disclosed under certain provisions of Sec.  1026.38(j), see comment 
38(j)-3.
    38(k)(2) Itemization of amounts due from seller.
    Paragraph 38(k)(2)(ii).
    1. Excess deposit disbursed to seller by party other than closing 
agent. If the seller's real estate broker or other party who is not the 
closing agent has received and holds a deposit against the sales price 
(earnest money) which exceeds the fee or commission owed to that party, 
the excess deposit must be disclosed pursuant to Sec.  
1026.38(k)(2)(ii), if that party will provide the excess deposit 
directly to the seller, rather than through the closing agent.
    2. Distributions of deposit to seller prior to consummation. If the 
deposit or any portion thereof has been disbursed to the seller prior 
to closing, only the amount of the deposit that has not been 
distributed to the seller must be disclosed under Sec.  
1026.38(k)(2)(ii).
    Paragraph 38(k)(2)(iv).
    1. Assumption of existing loan obligation of seller by consumer. If 
the consumer is assuming or taking title subject to existing liens and 
the amounts of the outstanding balance of the lien are to be deducted 
from sales price, the amounts of the outstanding balance of the lien 
must be disclosed under Sec.  1026.38(k)(2)(iv).
    2. Other seller credits. Any other obligations of the seller to be 
paid directly to the consumer, such as credits for issues identified at 
a walk-through of the property prior to the real estate closing, are 
disclosed under Sec.  1026.38(k)(2)(vii).
    Paragraph 38(k)(2)(viii).
    1. Satisfaction of other seller obligations. Seller obligations, 
other than second liens, that must be paid off to clear title to the 
property must be disclosed pursuant to Sec.  1026.38(k)(2)(viii). 
Examples of disclosures pursuant to Sec.  1026.38(k)(2)(viii) include 
the satisfaction of outstanding liens imposed due to Federal, State, or 
local income taxes, real estate property tax liens, judgments against 
the seller reduced to lien upon the property, or any other obligations 
the seller wishes the closing agent to pay from their proceeds at the 
real estate closing.
    2. Consumer satisfaction of outstanding subordinate loans. If the 
consumer is satisfying existing liens which will not be deducted from 
the sales price, the amount of the outstanding balance of the loan must 
be disclosed under Sec.  1026.38(k)(2)(viii). For example, the amount 
of any second lien which will be paid as part of the real estate 
closing that is not deducted from the seller's proceeds under Sec.  
1026.38(k)(2)(iv), is disclosed under Sec.  1026.38(k)(2)(viii). For 
payments to the subordinate lien holder, any amounts paid must be 
disclosed, and other amounts paid by or on behalf of the seller must be 
disclosed as paid outside of closing funds under Sec.  
1026.38(j)(2)(vi). For additional discussion, see comment 38(j)(2)(vi)-
2.
    3. Escrows held by closing agent for payment of invoices received 
after consummation. Funds to be held by the closing agent for the 
payment of either repairs, or water, fuel, or other utility bills that 
cannot be prorated between the parties at closing because the amounts 
used by the seller prior to closing are not yet known must be disclosed 
under Sec.  1026.38(k)(2)(viii). Subsequent disclosure of the actual 
amount of these post-closing items to be paid from closing funds is 
optional.
    38(k)(3) Calculation of seller's transaction.
    1. Stating if amount is due to or from seller. To comply with Sec.  
1026.38(k)(3)(iii), the creditor must state either the cash required 
from the seller at closing, or cash payable to the seller at closing, 
as described under Sec.  1026.38(k)(2)(iii).
    2. Methodology. To calculate the cash due to or from the consumer, 
total the amounts disclosed under Sec.  1026.38(k)(3)(i) and (ii). If 
that calculation results in a positive amount, the amount is due to the 
seller. If the calculation results in a negative amount, the amount is 
due from the seller.
    38(k)(4) Items paid outside of closing funds.
    1. Guidance. For guidance regarding the disclosure of items paid 
with funds other than closing funds, see comments 38(j)(4)-1 and -2.
    38(l) Loan disclosures.
    38(l)(2) Demand feature.
    1. Covered features. See comment 18(i)-2 for a description of 
demand features triggering the disclosure requirements of Sec.  
1026.38(l)(2).
    38(l)(3) Late payment.
    1. Guidance. See the commentary to Sec.  1026.37(m)(4) for guidance 
on disclosing late payment requirements under Sec.  1026.38(l)(3).
    38(l)(7) Escrow account.
    Paragraph 38(l)(7)(i)(A)(2).
    1. Estimated costs not paid by escrow account funds. Section 
1026.38(l)(7)(i)(A)(2) requires the creditor to estimate the amount the 
consumer is likely to pay during the first year after consummation for 
charges described in Sec.  1026.37(c)(4)(ii) that are known to the 
creditor that will not be paid using escrow account funds. The creditor 
discloses this amount only if an escrow account will be established for 
the payment of any amounts described in Sec.  1026.37(c)(4)(ii). The 
creditor complies with this provision by disclosing the amount of such 
charges used to calculate the estimated taxes, insurance, and 
assessments disclosed pursuant to Sec.  1026.38(c)(1) as the total 
amount scheduled to be paid during the first year after consummation.
    Paragraph 38(l)(7)(i)(A)(4).
    1. Estimated costs paid using escrow account funds. The amount the 
consumer will be required to pay into an escrow account with each 
periodic payment during the first year after consummation pursuant to 
Sec.  1026.38(l)(7)(i)(A)(4) is the amount of estimated escrow payments 
disclosed pursuant to Sec.  1026.38(c)(1).
    Paragraph 38(l)(7)(i)(B)(1).
    1. Estimated costs paid directly by the consumer. The estimated 
total amount the consumer will pay directly for charges described in 
Sec.  1026.37(c)(4)(ii) that are known to the creditor in the absence 
of an escrow account during the first year after consummation pursuant 
to Sec.  1026.38(l)(7)(i)(B)(1) is the amount of estimated taxes, 
insurance, and assessments disclosed pursuant to Sec.  1026.38(c)(1) as 
the estimated total amount scheduled to be paid during the first year 
after consummation. The creditor discloses this amount only if no 
escrow account will be established for the payment of amounts described 
in Sec.  1026.37(c)(4)(ii).
    38(m) Adjustable payment table.
    1. Guidance. See the commentary to Sec.  1026.37(i) for guidance 
regarding the disclosure required by Sec.  1026.38(m).
    2. Master heading. The disclosure required by Sec.  1026.38(m) is 
required to be provided under a different master heading than the 
disclosure required by

[[Page 51453]]

Sec.  1026.37(i), but all other requirements applicable to the 
disclosure required by Sec.  1026.37(i) apply to the disclosure 
required by Sec.  1026.38(m).
    3. When table is not permitted to be disclosed. Like the disclosure 
required by Sec.  1026.37(i), the disclosure required by Sec.  
1026.38(m) is permitted only if the periodic principal and interest 
payment may change after consummation based on a loan term other than 
on an adjustment to the interest rate or if the transaction is a 
seasonal payment product as described under Sec.  
1026.37(a)(10)(ii)(E). If the transaction does not contain these terms, 
this table is not permitted on the Closing Disclosure. See comments 37-
1 and 37(i)-1.
    4. Final loan terms. The disclosures required by Sec.  1026.38(m) 
must include the information required by Sec.  1026.37(i), as 
applicable, but the creditor must make the disclosure using the 
information that is known at the time the disclosure is required to be 
provided by Sec.  1026.19(f).
    38(n) Adjustable interest rate table.
    1. Guidance. See the commentary to Sec.  1026.37(j) for guidance 
regarding the disclosures required by Sec.  1026.38(n).
    2. Master heading. The disclosure required by Sec.  1026.38(n) is 
required to be provided under a different master heading than the 
disclosure required by Sec.  1026.37(j), but all other requirements 
applicable to the disclosure required by Sec.  1026.37(j) apply to the 
disclosure required by Sec.  1026.38(n).
    3. When table is not permitted to be disclosed. Like the disclosure 
required by Sec.  1026.37(j), the disclosure required by Sec.  
1026.38(n) is permitted only if the interest rate may change after 
consummation based on the terms of the legal obligation. If the 
interest rate will not change after consummation, this table is not 
permitted on the Closing Disclosure. See comments 37-1 and 37(j)-1.
    4. Final loan terms. The disclosures required by Sec.  1026.38(n) 
must include the information required by Sec.  1026.37(j), as 
applicable, but the creditor must make the disclosure using the 
information that is known at the time the disclosure is required to be 
provided by Sec.  1026.19(f).
    38(o) Loan Calculations.
    38(o)(1) Total of payments.
    1. Calculation of total of payments. The total of payments is 
calculated in the same manner as the ``In 5 Years'' disclosure pursuant 
to Sec.  1026.37(l)(1)(i), except that the disclosed amount reflects 
the total payments through the end of the loan term. For guidance on 
the amounts included in the total of payments calculation, see comment 
37(1)(1)(i)-1.
    38(o)(2) Finance charge.
    1. Calculation of finance charge. The finance charge is calculated 
in accordance with the requirements of Sec.  1026.4 and its commentary 
and is expressed as a dollar amount.
    2. Disclosure. The finance charge is disclosed as a total amount; 
the components of the finance charge are not itemized.
    38(o)(3) Amount financed.
    1. Calculation of amount financed. The amount financed is 
calculated in accordance with the requirements of Sec.  1026.18(b) and 
its commentary.
    38(o)(5) Total interest percentage.
    1. In general. For guidance on calculation and disclosure of the 
total interest percentage, see Sec.  1026.37(l)(3) and its commentary.
    38(p) Other disclosures.
    38(p)(1) Appraisal.
    1. Applicability. Section 1026.38 provides that the disclosures 
must be made as applicable. The disclosure required by Sec.  
1026.38(p)(1) is only applicable to closed-end transactions subject to 
Sec.  1026.19(f) that are also subject either to 15 U.S.C. 1639h or 
1691(e), as implemented by this part or Regulation B, 12 CFR part 1002, 
respectively. Accordingly, if a transaction is not subject to either of 
those provisions, the disclosure required by Sec.  1026.38(p)(1) may be 
omitted from the Closing Disclosure.
    38(p)(3) Liability after foreclosure.
    1. State law requirements. If the creditor forecloses on the 
property and the proceeds of the foreclosure sale are less than the 
unpaid balance on the loan, whether the consumer has continued or 
additional responsibility for the loan balance after foreclosure, and 
the conditions under which liability occurs, will vary by state. 
Section 1026.38(p)(3) requires the creditor to provide a brief 
description of the applicable State's requirements. Any type of 
protection afforded by State law, other than a statute of limitations 
that only limits the timeframe in which a creditor may seek redress, 
requires a statement that State law may protect the consumer from 
liability for the unpaid balance.
    38(q) Questions notice.
    Paragraph 38(q)(3).
    1. Prominent question mark. The notice required under Sec.  
1026.38(q) includes a prominent question mark. This prominent question 
mark is an aspect of form H-25 in appendix H to this part, the standard 
form or model form, as applicable, pursuant to Sec.  1026.38(t). If the 
creditor or closing agent deviates from the depiction of the question 
mark as shown on form H-25, the creditor or closing agent complies with 
Sec.  1026.38(q) if (1) the size and location of the question mark on 
the Closing Disclosure are substantially similar in size and location 
to the question mark shown on form H-25, and (2) the creditor or 
closing agent otherwise complies with Sec.  1026.38(t)(5) regarding 
permissible changes to the form of the Closing Disclosure.
    38(r) Contact information.
    1. Each person to be identified. Form H-25 in appendix H to this 
part includes the contact information required to be disclosed under 
Sec.  1026.38(r) generally in a five-column tabular format (i.e., there 
are columns from left to right that disclose the contact information 
for the creditor, mortgage broker, consumer's real estate broker, 
seller's real estate broker, and closing agent). Because Sec.  1026.38 
requires disclosures only to the extent applicable, columns are either 
left blank or filled in with ``N/A'' where no such person is 
participating in the transaction. For example, if there is no mortgage 
broker involved in the transaction, the column for the mortgage broker 
is either left blank or filled in with ``N/A.'' Conversely, in the 
event the transaction involves more than one of each such person (e.g., 
two seller's real estate brokers splitting a commission), the contact 
information table may be altered to accommodate the information for 
such persons, provided that the other information is disclosed on the 
same page. If the format of the page does not accommodate the addition 
of such information, an additional table to accommodate the information 
may be provided on a separate page, with an appropriate reference to 
the additional table. See Sec.  1026.38(t)(2)(x). A creditor or closing 
agent may also omit a column on the table that is inapplicable or, if 
necessary, replace an inapplicable column with the contact information 
for the additional person.
    2. Name of person. Where Sec.  1026.38(r)(1) calls for disclosure 
of the name of the person participating in the transaction, the 
person's legal name (e.g., the name used for registration, 
incorporation, or chartering purposes), the person's trade name, if 
any, or an abbreviation of the person's legal name or the trade name is 
disclosed, so long as the disclosure is clear and conspicuous as 
required by Sec.  1026.38(t)(1)(i). For example, if the creditor's 
legal name is ``Alpha Beta Chi Bank and Trust Company, N.A.'' and its 
trade name is ``ABC Bank,'' then under Sec.  1026.38(r)(1) the full 
legal name, the trade name, or an abbreviation such as

[[Page 51454]]

``ABC Bank & Trust Co.'' may be disclosed. However, the abbreviation 
``Bank & Trust Co.'' is not distinct as to enable a consumer to 
identify the person, and therefore would not be clear and conspicuous. 
If the creditor, mortgage broker, seller's real estate broker, 
consumer's real estate broker, or closing agent participating in the 
transaction is a natural person, the natural person's name is listed in 
the Sec.  1026.38(r)(1) and (r)(4) disclosures (assuming that such 
natural person is the primary contact for the consumer or seller, as 
applicable).
    3. Address. The address disclosed under Sec.  1026.38(r)(2) is the 
identified person's place of business where the primary contact for the 
transaction is located (usually the local office), rather than a 
general corporate headquarters address. If a natural person's name is 
to be disclosed under Sec.  1026.38(r)(1), see comment 38(r)-2, the 
business address of such natural person is listed (assuming that such 
natural person is the primary contact for the consumer or seller, as 
applicable).
    4. NMLSR ID. Section 1026.38(r)(3) and (5) requires the disclosure 
of an NMLSR identification (ID) number for each person identified in 
the table. The NMLSR ID is a unique number or other identifier that is 
generally assigned by the Nationwide Mortgage Licensing System & 
Registry (NMLSR) to individuals registered or licensed through NMLSR to 
provide loan originating services (for more information, see the Secure 
and Fair Enforcement for Mortgage Licensing Act of 2008 (SAFE Act) 
sections 1503(3) and (12) and 1504, 12 U.S.C. 5102(3) and (12) and 
5103, and its implementing regulations (i.e., 12 CFR 1007.103(a) and 
1008.103(a)(2)). An entity may also have an NMLSR ID. Thus, any NMLSR 
ID that is obtained by a creditor or mortgage broker entity disclosed 
under Sec.  1026.38(r)(1), as applicable, or a natural person disclosed 
under Sec.  1026.38(r)(4), either as required under the SAFE Act or 
otherwise, is disclosed. If the creditor, mortgage broker, or natural 
person has an NMLSR ID and a separate license number or unique 
identifier issued by the applicable State, locality, or other 
regulatory body with responsibility for licensing and/or registering 
such entity or person's business activities, only the NMLSR ID is 
disclosed. Because Sec.  1026.38 requires disclosures only to the 
extent applicable, the table is left blank, or ``N/A'' is entered, for 
these disclosures in the columns corresponding to persons that have no 
NMLSR ID and no license number or unique identifier to be disclosed 
under Sec.  1026.38(r)(3) and (5), see comment 38(r)-5; provided that, 
the creditor or closing agent may omit the column from the table or, if 
necessary, replace the column with the contact information for an 
additional person. See Sec.  1026.38(t)(2)(xii) and comment 38(r)-1.
    5. License number or unique identifier. Section 1026.38(r)(3) and 
(5) requires the disclosure of a license number or unique identifier 
for each person (including natural persons) identified in the table if 
the applicable State, locality, or other regulatory body with 
responsibility for licensing and/or registering such person's business 
activities has issued a license number or other unique identifier to 
such person, and that person's NMLSR ID number has not already been 
disclosed under Sec.  1026.38(r)(3) and (5). See comment 38(r)-4. 
Because Sec.  1026.38 requires disclosures only to the extent 
applicable, the table is either left blank or ``N/A'' is entered for 
these disclosures in the columns corresponding to persons who are not 
subject to the issuance of such a license number or unique identifier 
and who have not obtained an NMLSR ID to be disclosed under Sec.  
1026.38(r)(3) and (5) (see comment 38(r)-4); provided that, the 
creditor or closing agent may omit the column from the table or, if 
necessary, replace the column with the contact information for an 
additional person. See Sec.  1026.38(t)(2)(xii) and comment 38(r)-1.
    6. Contact. Section 1026.38(r)(4) requires the disclosure of the 
primary contact for the consumer. The primary contact is the natural 
person employed by the person disclosed under Sec.  1026.38(r)(1) who 
interacts most frequently with the consumer and who has an NMLSR ID or, 
if none, a license number or other unique identifier to be disclosed 
under Sec.  1026.38(r)(5), as applicable. See comments 38(r)-4 and -5. 
For example, if the senior loan officer employed by the creditor or 
mortgage broker disclosed under Sec.  1026.38(r)(1) has an NMLSR ID, 
but the consumer meets with a different loan officer to complete the 
application and answer questions, the senior loan officer's name is 
disclosed under Sec.  1026.38(r)(4) unless the other loan officer also 
has an NMLSR ID, in which case the other loan officer's name is 
disclosed. Further, if the sales agent employed by the consumer's real 
estate broker disclosed under Sec.  1026.38(r)(1) has a State-issued 
brokers' license number, but the consumer meets with an associate sales 
agent to tour the property being purchased and complete the sales 
contract, the sale's agent's name is disclosed under Sec.  
1026.38(r)(4) unless the associate sales agent also has a State-issued 
license number, in which case the associate sales agent's name is 
disclosed. Moreover, if the closing attorney employed by the closing 
agent disclosed under Sec.  1026.38(r)(1) has a State-issued closing 
agent license number, but the consumer meets with a secretary to fill 
out any necessary documentation prior to the closing and to answer 
questions, the closing attorney's name is disclosed under Sec.  
1026.38(r)(4) since a secretary is only performing clerical functions.
    38(s) Signature statement.
    1. General requirements. See the commentary to Sec.  1026.37(n) for 
guidance regarding optional signature requirements and signature lines 
for multiple consumers.
    38(t) Form of disclosures.
    38(t)(1) General requirements.
    1. Clear and conspicuous; segregation. The clear and conspicuous 
standard requires that the disclosures required by Sec.  1026.38 be 
legible and in a readily understandable form. The disclosures also must 
be grouped together, segregated from everything else, and provided on 
separate pages that are not commingled with any other documents or 
disclosures, including any other disclosures required by State or other 
laws. As required by Sec.  1026.38(t)(2), the disclosures for any 
transaction that is a federally related mortgage loan under Regulation 
X, 12 CFR 1024.2, must be made using the standard form H-25 in appendix 
H to this part. Accordingly, use of that form constitutes compliance 
with the clear and conspicuous and segregation requirements of Sec.  
1026.38(t).
    2. Balloon payment financing with leasing characteristics. In 
certain credit sale or loan transactions, a consumer may reduce the 
dollar amount of the payments to be made during the course of the 
transaction by agreeing to make, at the end of the loan term, a large 
final payment based on the expected residual value of the property. The 
consumer may have a number of options with respect to the final 
payment, including, among other things, retaining the property and 
making the final payment, refinancing the final payment, or 
transferring the property to the creditor in lieu of the final payment. 
Such transactions may have some of the characteristics of lease 
transactions subject to Regulation M (12 CFR part 1013), but are 
considered credit transactions where the consumer assumes the indicia 
of ownership, including the risks, burdens and benefits of ownership, 
upon consummation. These transactions are governed by the disclosure 
requirements of this part instead of Regulation M.

[[Page 51455]]

Under Sec.  1026.38(t)(2), creditors may not include any additional 
information in the disclosures required by Sec.  1026.38. Thus, the 
disclosures must show the large final payment as a balloon payment in 
the projected payments table required by Sec.  1026.38(c) and should 
not, for example, reflect the other options available to the consumer 
at maturity.
    38(t)(2) Estimated disclosures.
    1. Estimated amounts. Although certain amounts are estimated when 
provided on the disclosure required by Sec.  1026.37, many of these 
amounts, must be actual amounts rather than estimates in accordance 
with the requirements of Sec.  1026.19(f), even though the 
corresponding provision of Sec.  1026.38 cross-references a counterpart 
in Sec.  1026.37. Section 1026.38(t)(2) provides that, if a master 
heading, heading, subheading, label, or similar designation contains 
the word ``estimated'' in form H-25 in appendix H to this part, that 
heading, label, or similar designation shall contain the word 
``estimated.'' Thus, Sec.  1026.38(t)(2) incorporates the ``estimated'' 
designations reflected on form H-25 into the requirements of Sec.  
1026.38. See comment 37(o)(2)-1.
    38(t)(3) Form.
    1. Non-federally related mortgage loans. For a transaction that a 
non-federally related mortgage loan, the creditor is not required to 
use form H-25 in appendix H to this part, although its use as a model 
form for such transactions, if properly completed with accurate 
content, constitutes compliance with the clear and conspicuous and 
segregation requirements of Sec.  1026.38(t)(1)(i). Even when the 
creditor elects not to use the model form, Sec.  1026.38(t)(1)(ii) 
requires that the disclosures contain only the information required by 
Sec.  1026.38(a) through (s), and that the creditor make the 
disclosures in the same order as they occur in H-25, use the same 
headings, labels, and similar designations as used in the form (many of 
which also are expressly required by Sec.  1026.38(a) through (s)), and 
position the disclosures relative to those designations in the same 
manner as shown in the form. In order to be in a format substantially 
similar to form H-25, the disclosures required by this section must be 
provided on letter size (8.5 x 11) paper.
    38(t)(4) Rounding.
    1. Generally. Consistent with Sec.  1026.2(b)(4), any amount 
required to be disclosed by Sec.  1026.38 must be disclosed as an exact 
numerical amount using decimal places where applicable, unless 
otherwise provided. For example, Sec.  1026.38(t)(4) requires that the 
loan amount be disclosed using decimal places even if the amount of 
cents is zero. Accordingly, in contrast to the amounts disclosed under 
Sec.  1026.37(b)(1), loan amounts disclosed pursuant to Sec.  
1026.38(b) are disclosed with decimal places even if they denote zero 
cents.
    2. Guidance. For guidance regarding the requirements of Sec.  
1026.38(t)(4), see the commentary to Sec.  1026.37(o)(4).
    38(t)(5) Exceptions.
    1. Permissible changes. The changes required and permitted by Sec.  
1026.38(t)(5) do not affect the substance, clarity, or meaningful 
sequence of the disclosure and therefore, are permissible. Any changes 
to the disclosure not specified in Sec.  1026.38(t)(5) or not permitted 
by other provisions of Sec.  1026.38, may affect the substance, 
clarity, or meaningful sequence of the disclosure. Creditors making any 
changes that do not conform to these requirements will lose their 
protection from civil liability under TILA.
    2. Manual completion. The creditor or settlement agent preparing 
the form is not required to use a computer, typewriter, or other word 
processor to complete the disclosure required by this section. The 
creditor or settlement may fill in information and amounts required to 
be disclosed by this section on form H-25 in appendix H to this part by 
hand printing or using any other method, provided the person produces 
clear and legible text and uses the formatting required by this 
section, including replicating bold font where required. Completion by 
hand or typewriter does not provide an exemption from the requirement 
to keep records in an electronic, machine readable format under Sec.  
1026.25.
    3. Contact information. If a transaction involves more than one 
creditor or mortgage broker, the space provided on form H-25 in 
appendix H to this part for the contact information required by Sec.  
1026.38(r) may be altered to accommodate the information for such 
parties, provided that the information required by Sec.  1026.38(o), 
(p), (q), (r), and (s) are disclosed on the same page as illustrated by 
form H-25. If the space provided on form H-25 does not allow for the 
disclosure of such contact and other information on the same page, an 
additional page may be added to provide the required contact 
information with an appropriate reference to the additional page.
    4. Signature lines. Section 1026.38(t) does not restrict the 
addition of signature lines to the disclosure required by Sec.  
1026.38, provided any signature lines for confirmations of receipt of 
the disclosure appear only under the ``Confirm Receipt'' heading 
required by Sec.  1026.38(s) as illustrated by form H-25 in appendix H 
to this part. If the number of signatures requested by the creditor for 
confirming receipt of the disclosure requires space for signature lines 
in excess of that provided on form H-25, an additional page may be 
added to accommodate the additional signature lines with an appropriate 
reference to the additional page. Such additional page should also 
contain the heading and statement required by Sec.  1026.38(s) in the 
format provided on form H-25. Signatures for a purpose other than 
confirming receipt of the form may be obtained on a separate page, and 
consistent with Sec.  1026.38(t)(1)(i), not on the same page as the 
information required by Sec.  1026.38.
    5. Additional page. Information required or permitted to be 
disclosed by Sec.  1026.38(t)(5) on a separate page should be formatted 
similarly to form H-25 in appendix H to this part, so as not affect the 
substance, clarity, or meaningful sequence of the disclosure. In 
addition, information provided on additional pages should be 
consolidated on as few pages as necessary to not affect the substance, 
clarity, or meaningful sequence of the disclosure.
    6. Page numbers. References required by provisions of Sec.  1026.38 
to information disclosed pursuant to other provisions of the section, 
as illustrated on form H-25 in appendix H, may be altered to refer to 
the appropriate page number of the form containing such information.
    38(t)(5)(iv) Line numbers (Closing Cost Details).
    1. Line numbers; Closing Cost Details. Section 1026.38(t)(5)(iv) 
permits the deletion of unused lines from the disclosures required by 
Sec.  1026.38(f)(1), (2) and (3) and (g)(1), (2), (3), and (4), if 
necessary to allow the addition of lines to other sections that require 
them for the required disclosures. This provision permits creditors and 
settlement agents to use the space gained from deleting unused lines 
for additional lines to accommodate all of the costs that are required 
to be itemized. For example, if the only origination charge required by 
Sec.  1026.38(f)(1) is points, the remaining seven lines illustrated on 
form H-25 in appendix H to this part may be deleted and added to the 
disclosure required by Sec.  1026.38(g)(4), if seven lines in addition 
to those provided on form H-25 are necessary to accommodate such 
disclosure.

[[Page 51456]]

    38(t)(5)(v) Additional page (Closing Cost Details).
    1. Additional page; Closing Cost Details. Section 1026.38(t)(5)(v) 
permits the disclosure of the information required by Sec.  1026.38(f), 
(g), and (h) over two pages, but only if form H-25 in appendix H to 
this part, as modified pursuant to Sec.  1026.38(t)(5)(iv), does not 
accommodate all of the costs required to be disclosed on one page. If 
the deletion of unused lines and the addition of such lines to other 
sections permits the disclosures required by Sec.  1026.38(f), (g), and 
(h) to fit on one page, modification pursuant to Sec.  1026. 
38(t)(5)(v) is not permissible.
    2. Separate pages for Loan Costs and Other Costs. The modification 
permitted by Sec.  1026.38(t)(5)(v) allows the information required by 
Sec.  1026.38(f), (g), and (h) to be disclosed over two pages. Under 
this modification, the information required by Sec.  1026.38(h) must 
remain on the same page as the information required by Sec.  
1026.38(g). Accordingly, the Loan Costs and Other Costs sections of 
form H-25 in appendix H to this part may each appear on their own page, 
but the Other Costs section must appear on the same page as the Total 
Closing Costs section. The modifications permitted by Sec.  
1026.38(t)(5)(iv) and (v) may be used in conjunction to ensure 
disclosure of Sec.  1026.38(f) on one page and Sec.  1026.38(g) and (h) 
on one separate page.
    38(t)(5)(viii) Transaction without a seller.
    1. Calculating Cash to Close. The modifications permitted by Sec.  
1026.38(t)(5)(viii)(C) to the table required to be disclosed by Sec.  
1026.38(i) should be factored into the calculation of the total amount 
required by Sec.  1026.38(i)(9)(ii). In addition, the modifications 
should be factored into the disclosures required by Sec.  1026.38(i) to 
be disclosed under the subheading ``Estimate,'' using the estimated 
amounts disclosed or used in calculating the disclosures under Sec.  
1026.37.
    2. Appraised Property Value. The modifications permitted by Sec.  
1026.38(t)(5)(viii) do not specifically refer to the label required by 
Sec.  1026.38(a)(3)(vii)(B) for transactions that do not involve a 
seller, because the label is required by that section and is a 
requirement and not considered a modification. As required by Sec.  
1026.38(a)(3)(vii)(B), a form used for a transaction that does not 
involve a seller and is modified pursuant to Sec.  1026.38(t)(5)(viii) 
must contain the label ``Appraised Prop. Value'' and the information 
required by Sec.  1026.38(a)(3)(vii)(B).
    38(t)(5)(x) Customary recitals and information.
    1. Customary recitals and information. Section 1026.38(t)(5)(x) 
permits an additional page to be added to the disclosure for customary 
recitals and information used locally in real estate settlements. 
Examples of such information include breakdown of payoff figures, a 
breakdown of the consumer's total monthly mortgage payments, check 
disbursements, a statement indicating receipt of funds, applicable 
special stipulations between buyer and seller, and the date funds are 
transferred.[ltrif]

Section 1026.39--Mortgage transfer disclosures.

* * * * *
    39(d) Content of required disclosures.
* * * * *
    [rtrif]2. Partial Payment Policy. The disclosures required by Sec.  
1026.39(d)(5) must identify whether the covered person accepts payments 
from the consumer that are less than the full amount due and, if so, 
provide a description of such policy. The disclosures required by Sec.  
1026.39(d)(5) apply only to a closed-end consumer credit transaction 
secured by a dwelling or real property, other than a reverse mortgage 
transaction subject to Sec.  1026.33. For example, an open or closed-
end consumer credit transaction secured by a principal dwelling is a 
mortgage loan under Sec.  1026.39(a) and a covered person must provide 
the disclosures required by Sec.  1026.39(d)(1) through (4). However, 
the covered person is only required to include the partial payment 
policy disclosure required by Sec.  1026.39(d)(5) if the transaction is 
a closed-end non-reverse mortgage transaction. If the dwelling in the 
same transaction is not a principal dwelling (e.g., it is used solely 
for vacation purposes), the disclosure required by Sec.  1026.39 is not 
required for an open-end credit transaction, because the transaction is 
not secured by a principal dwelling. If the transaction that is 
transferred is a non-reverse mortgage closed-end consumer credit 
transaction secured by nonresidential real property, the transaction is 
a mortgage loan requiring a covered person to provide the disclosures 
under Sec.  1026.39(d)(1) through (5).[ltrif]
* * * * *
    [rtrif]Paragraph 39(d)(5).
    1. Format of Disclosure. Section 1026.39(d)(5) requires disclosure 
of the partial payment policy of covered persons for closed-end 
mortgage loans. A covered person may utilize the format of the 
disclosure illustrated by form H-25 in appendix H to this part for the 
information required to be disclosed by Sec.  1026.38(l)(5). For 
example, the statement required Sec.  1026.39(d)(5)(iii) that a new 
covered person may have a different partial payments policy may be 
disclosed using the language illustrated by form H-25, which states 
``If this loan is sold, your new lender may have a different policy.'' 
The text illustrated by form H-25 may be modified to suit the format of 
the covered person's disclosure under Sec.  1026.39. For example, the 
format illustrated by form H-25 begins with the text, ``Your lender 
will,'' which may not be suitable to the format of the covered person's 
other disclosures under Sec.  1026.39. This text may be modified to 
suit the format of the covered person's integrated disclosure, using a 
phrase such as ``We will'' or ``We are your new lender and have a 
different Partial Payment Policy than your previous lender. Under our 
policy we will.'' Any modifications must be appropriate and not affect 
the substance, clarity, or meaningful sequence of the 
disclosure.[ltrif]
* * * * *

Appendix D--Multiple-Advance Construction Loans

* * * * *

    6. Relation to Sec.  1026.18(s). A creditor must disclose an 
interest rate and payment summary table for [rtrif]certain[ltrif] 
transactions secured by [lsqbb]real property or[rsqbb] a dwelling, 
pursuant to Sec.  1026.18(s), instead of the general payment 
schedule required by Sec.  1026.18(g). Accordingly, 
[rtrif]some[ltrif] home construction loans that are secured by 
[lsqbb]real property or[rsqbb] a dwelling are subject to Sec.  
1026.18(s) and not Sec.  1026.18(g). [rtrif]See comment app. D-7 for 
a discussion of transactions that are subject to Sec. Sec.  1026.37 
and 1026.38.[ltrif] Under Sec.  1026.17(c)(6)(ii), when a multiple-
advance construction loan may be permanently financed by the same 
creditor, the construction phase and the permanent phase may be 
treated as either one transaction or more than one transaction. 
[rtrif]Following are illustrations of the application of appendix D 
to transactions subject to Sec.  1026.18(s), under each of these two 
alternatives:[ltrif]
    i. If a creditor uses appendix D and elects pursuant to Sec.  
1026.17(c)(6)(ii) to disclose the construction and permanent phases 
as separate transactions, the construction phase must be disclosed 
according to the rules in Sec.  1026.18(s). Under Sec.  1026.18(s), 
the creditor must disclose the applicable interest rates and 
corresponding periodic payments during the construction phase in an 
interest rate and payment summary table. The provision in appendix 
D, part I.A.3, which allows the creditor to omit the number and 
amounts of any interest payments ``in disclosing the payment 
schedule under Sec.  1026.18(g)'' does not apply because the 
transaction is governed

[[Page 51457]]

by Sec.  1026.18(s) rather than Sec.  1026.18(g). Also, because the 
construction phase is being disclosed as a separate transaction and 
its terms do not repay all principal, the creditor must disclose a 
balloon payment, pursuant to Sec.  1026.18(s)(5).
    ii. On the other hand, if the creditor elects to disclose the 
construction and permanent phases as a single transaction, 
[rtrif]where interest is payable on the amount actually advanced for 
the time it is outstanding,[ltrif] the construction phase must be 
disclosed pursuant to appendix D, part II.C[rtrif].1[ltrif], which 
provides that the creditor shall disclose the repayment schedule 
without reflecting the number or amounts of payments of interest 
only that are made during the construction phase. Appendix D also 
provides, however, that creditors must disclose (outside of the 
table) the fact that interest payments must be made and the timing 
of such payments. The interest rate and payment summary table 
disclosed under Sec.  1026.18(s) [rtrif]in such cases[ltrif] must 
reflect only the permanent phase of the transaction. Therefore, in 
determining the rates and payments that must be disclosed in the 
columns of the table, creditors should apply the requirements of 
Sec.  1026.18(s) to the permanent phase only. For example, under 
Sec.  1026.18(s)(2)(i)(A) or Sec.  1026.18(s)(2)(i)(B)(1), as 
applicable, the creditor should disclose the interest rate 
corresponding to the first installment due under the permanent phase 
and not any rate applicable during the construction phase.
    [rtrif]7. Relation to Sec. Sec.  1026.37 and 1026.38. A creditor 
must disclose a projected payments table for certain transactions 
secured by real property, pursuant to Sec. Sec.  1026.37(c) and 
1026.38(c), instead of the general payment schedule required by 
Sec.  1026.18(g). Accordingly, some home construction loans that are 
secured by real property are subject to Sec. Sec.  1026.37(c) and 
1026.38(c) and not Sec.  1026.18(g). See comment app. D-6 for a 
discussion of transactions that are subject to Sec.  1026.18(s). 
Under Sec.  1026.17(c)(6)(ii), when a multiple-advance construction 
loan may be permanently financed by the same creditor, the 
construction phase and the permanent phase may be treated as either 
one transaction or more than one transaction. Following are 
illustrations of the application of appendix D to transactions 
subject to Sec. Sec.  1026.37(c) and 1026.38(c), under each of these 
two alternatives:
    i. If a creditor uses appendix D and elects pursuant to Sec.  
1026.17(c)(6)(ii) to disclose the construction and permanent phases 
as separate transactions, the construction phase must be disclosed 
according to the rules in Sec. Sec.  1026.37(c) and 1026.38(c). 
Under Sec. Sec.  1026.37(c) and 1026.38(c), the creditor must 
disclose the periodic payments during the construction phase in a 
projected payments table. The provision in appendix D, part I.A.3, 
which allows the creditor to omit the number and amounts of any 
interest payments ``in disclosing the payment schedule under Sec.  
1026.18(g)'' does not apply because the transaction is governed by 
Sec. Sec.  1026.37(c) and 1026.38(c) rather than Sec.  1026.18(g). 
The creditor determines the amount of the interest-only payment to 
be made during the construction phase using the assumption in 
appendix D, part I.A.1. Also, because the construction phase is 
being disclosed as a separate transaction and its terms do not repay 
all principal, the creditor must disclose the construction phase 
transaction as a product with a balloon payment feature, pursuant to 
Sec. Sec.  1026.37(a)(10)(ii)(D) and 1026.38(a)(5)(iii), in addition 
to reflecting the balloon payment in the projected payments table.
    ii. If the creditor elects to disclose the construction and 
permanent phases as a single transaction, the repayment schedule 
must be disclosed pursuant to appendix D, part II.C.2. Under 
appendix D, part II.C.2, the projected payments table must reflect 
the interest-only payments during the construction phase in a first 
column, followed by the appropriate column(s) reflecting the 
amortizing payments for the permanent phase. The creditor determines 
the amount of the interest-only payment to be made during the 
construction phase using the assumption in appendix D, part 
II.A.1.[ltrif]
* * * * *

Appendix H--Closed-End [lsqbb]Model[rsqbb] Forms and Clauses

* * * * *
    16. Samples H-13 through H-15. These samples illustrate various 
[lsqbb]mortgage[rsqbb] [rtrif]closed-end[ltrif] transactions. 
[rtrif]Samples H-13 and H-15 are for transactions subject to Sec.  
1026.17(a).[ltrif] [lsqbb]They assume that the mortgages are subject 
to the Real Estate Settlement Procedures Act (RESPA). As a result, 
no option regarding the itemization of the amount financed has been 
included in the samples, because providing the good faith estimates 
of settlement costs required by RESPA satisfies Truth in Lending's 
amount financed itemization requirement. (See Sec.  
1026.18(c).)[rsqbb] [rtrif]Samples H-13 and H-15 do not illustrate 
the requirements of Sec.  1026.18(c) or (p) regarding the 
itemization of the amount financed and a reference to contract 
documents. See form H-2 for a model for these requirements.[ltrif]
* * * * *
    19. Sample H-15. This sample illustrates a graduated payment 
[lsqbb]mortgage[rsqbb] [rtrif]transaction subject to Sec.  
1026.17(a)[ltrif] with a 5-year graduation period and a 7\1/2\ 
percent yearly increase in payments. The loan amount is $44,900, 
payable in 360 monthly installments at a simple interest rate of 
14.75%. Two points ($898), as well as an initial 
[lsqbb]mortgage[rsqbb] guarantee insurance premium of $225.00, are 
included in the prepaid finance charge. The [lsqbb]mortgage[rsqbb] 
guarantee insurance premiums are calculated on the basis of \1/4\ of 
1% of the outstanding principal balance under an annual reduction 
plan. The abbreviated disclosure permitted under Sec.  1026.18(g)(2) 
is used for the payment schedule for years 6 through 30. The 
prepayment disclosure refers to both penalties and rebates because 
information about penalties is required for the simple interest 
portion of the obligation and information about rebates is required 
for the [lsqbb]mortgage[rsqbb] [rtrif]guarantee[ltrif] insurance 
portion of the obligation.
* * * * *

    Dated: July 9, 2012.
Richard Cordray,
Director, Bureau of Consumer Financial Protection.
[FR Doc. 2012-17663 Filed 8-6-12; 4:15 pm]
BILLING CODE 4810-25-P

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