2012 Truth in Lending Act (Regulation Z) Mortgage Servicing, 57317-57406 [2012-19977]

Download as PDF Vol. 77 Monday, No. 180 September 17, 2012 Part III Bureau of Consumer Financial Protection tkelley on DSK3SPTVN1PROD with PROPOSALS3 12 CFR Part 1026 2012 Truth in Lending Act (Regulation Z) Mortgage Servicing; Proposed Rule VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\17SEP3.SGM 17SEP3 57318 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules BUREAU OF CONSUMER FINANCIAL PROTECTION 12 CFR Part 1026 [Docket No. CFPB–2012–0033] RIN 3170–AA14 2012 Truth in Lending Act (Regulation Z) Mortgage Servicing Bureau of Consumer Financial Protection. ACTION: Proposed rule with request for public comment. AGENCY: The Bureau of Consumer Financial Protection (the Bureau or CFPB) is proposing to amend Regulation Z, which implements the Truth in Lending Act (TILA), and the official interpretation of the regulation. The proposed amendments implement the Dodd-Frank Wall Street Reform and Consumer Protection Act (the DoddFrank Act or DFA) provisions regarding mortgage loan servicing. Specifically, this proposal implements Dodd-Frank Act sections addressing initial rate adjustment notices for adjustable-rate mortgages (ARMs), periodic statements for residential mortgage loans, and prompt crediting of mortgage payments and response to requests for payoff amounts. The proposed revisions also amend current rules governing the scope, timing, content, and format of current disclosures to consumers occasioned by the interest rate adjustments of their variable-rate transactions. Published elsewhere in today’s Federal Register, the Bureau proposes companion regulations regarding mortgage servicing through amendments to Regulation X, which implements the Real Estate Settlement Procedures Act (RESPA). DATES: Comments must be received on or before October 9, 2012, except that comments on the Paperwork Reduction Act analysis in part IX of the Federal Register notice must be received on or before November 16, 2012. ADDRESSES: You may submit comments identified by Docket No. CFPB–2012– 0033 or RIN 3170–AA14, by any of the following methods: • Electronic: http:// www.regulations.gov. Follow the instructions for submitting comments. • Mail/Hand Delivery/Courier: Monica Jackson, Office of the Executive Secretary, Bureau of Consumer Financial Protection, 1700 G Street NW., Washington, DC 20552. Instructions: All submissions must include the agency name and docket number or Regulatory Information tkelley on DSK3SPTVN1PROD with PROPOSALS3 SUMMARY: VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 Number (RIN) for this rulemaking. In general, all comments received will be posted without change to http:// 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. e-Rulemaking Initiative The Bureau is working with the Cornell e-Rulemaking Initiative (CeRI) on a pilot project, Regulation Room, to use different Web technologies and approaches to enhance public understanding and participation in Bureau rulemakings and to evaluate the advantages and disadvantages of these techniques. The TILA and RESPA proposed rulemakings on mortgage servicing are the subject of the project. The Bureau has undertaken this project to increase effective public involvement in the rulemaking process and strongly encourages all parties interested in this rulemaking to visit the Regulation Room Web site, http:// www.regulationroom.org, to learn about the Bureau’s proposed mortgage servicing rules and the rulemaking process, to discuss the issues in the rules with other persons and groups, and to participate in drafting a summary of that discussion that CeRI will submit to the Bureau. Note that Regulation Room is sponsored by CeRI, and is not an official United States Government Web site. Participating in the discussion on that site will not result in individual formal comments that will be included in the Bureau’s rulemaking record. If you would like to add a formal comment, please do so through the means identified above. The Bureau anticipates that CeRI will submit to the Bureau’s rulemaking docket a summary of the discussion that occurs on the Regulation Room site and that participants will have a chance to review a draft and suggest changes before the summary is submitted. For questions about this project, please contact Whitney Patross, Attorney, Office of Regulations, at (202) 435–7700. FOR FURTHER INFORMATION CONTACT: PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 Regulation Z (TILA): Whitney Patross, Attorney and Marta Tanenhaus, Senior Counsel at (202) 435–7700; Office of Regulations; Division of Research, Markets, and Regulations; Bureau of Consumer Financial Protection; 1700 G Street NW., Washington, DC 20552. Regulation X (RESPA): Jane Gao, Mitchell E. Hochberg, and Michael Scherzer, Counsels at (202) 435–7700; Office of Regulations; Division of Research, Markets, and Regulations; Bureau of Consumer Financial Protection; 1700 G Street NW., Washington, DC 20552. SUPPLEMENTARY INFORMATION: I. Overview A. Background The recent financial crisis exposed pervasive consumer protection problems across major segments of the mortgage servicing industry. As millions of borrowers fell behind on their loans, many servicers failed to provide the level of service necessary to serve the needs of those borrowers. Many servicers simply had not made the investments in resources and infrastructure necessary to service large numbers of delinquent loans. Existing weaknesses in servicer practices, including inadequate recordkeeping and document management and lack of oversight of service providers, made it harder to sort out borrower problems to achieve optimal results. In addition, many servicers took short cuts that made things even worse. As one review of fourteen major servicers found, companies ‘‘emphasize[d] speed and cost efficiency over quality and accuracy’’ in their foreclosure processes.1 The Dodd-Frank Act (Pub. L. 111– 203, July 21, 2010) adopts several new servicing protections.2 The Bureau has the authority to promulgate regulations to implement the new servicing protections. These changes will significantly improve disclosures to make it easier for consumers to monitor their mortgage loans and servicers’ activities. The changes also address critical servicer practices, including error resolution, prompt crediting of payments, and ‘‘force-placing’’ insurance where borrowers have 1 Federal Reserve System, Office of the Comptroller of the Currency, & Office of Thrift Supervision, Interagency Review of Foreclosure Policies and Practices, at 5 (Apr. 2011) (Interagency Foreclosure Report), available at http:// www.occ.gov/news-issuances/news-releases/2011/ nr-occ-2011-47a.pdf. 2 See Dodd-Frank Act sections 1418, 1420, 1463, and 1464. E:\FR\FM\17SEP3.SGM 17SEP3 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules allowed their hazard insurance policies to lapse. The Dodd-Frank Act also gives the Bureau discretionary authority to develop additional servicing rules. The Bureau proposes to use this authority to adopt requirements relating to reasonable information management policies and procedures, early intervention with delinquent borrowers, continuity of contact, and procedures for evaluating and responding to loss mitigation applications when the servicer makes loss mitigation options available in the ordinary course of business. These proposals address fundamental problems that underlie many consumer complaints and recent regulatory and enforcement actions. The Bureau believes these changes will reduce avoidable foreclosures and improve general customer service. The proposals cover nine major topics, as summarized below. The Bureau’s proposal is split into two parts because Congress imposed some requirements under TILA and some under RESPA.3 This proposed rule would amend Regulation Z, which implements TILA, to implement provisions concerning adjustable-rate mortgage (ARM) disclosures, payoff statements, and payment crediting under sections 1418, 1420, and 1464 of the Dodd-Frank Act and to harmonize similar existing requirements. tkelley on DSK3SPTVN1PROD with PROPOSALS3 B. Scope of Coverage The proposed rules generally apply to closed-end mortgage loans, with certain exceptions. Under the proposed amendments to Regulation X, open-end lines of credit and certain other loans, such as construction loans and business-purpose loans, are excluded. Under the proposed amendments to Regulation Z, the periodic statement and ARMs disclosure provisions apply only to closed-end mortgage loans, but the prompt crediting and payoff statement provisions apply both to open-end and closed-end mortgage loans. In addition, reverse mortgages and timeshares are excluded from the periodic statement requirement, and certain construction loans are excluded from the ARM disclosure requirements. As discussed below, the Bureau is seeking comment on whether to exempt small servicers from certain requirements or modify certain requirements for small servicers. 3 Note that TILA and RESPA differ in their terminology. Consumers and creditors are the defined terms used in Regulation Z. Borrowers and lenders are the defined terms used in Regulation X. VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 C. Summary The proposals cover nine major topics, summarized below. More details can be found in the proposed rules, which are split into two notices issued under TILA and RESPA, respectively. 1. Periodic billing statements. The Dodd-Frank Act generally mandates that servicers of closed-end residential mortgage loans (other than reverse mortgages) must send a periodic statement for each billing cycle. These statements must meet the timing, form, and content requirements provided for in the rule. The proposal contains sample forms that servicers could use. The periodic statement requirement generally would not apply for fixed-rate loans if the servicer provides a coupon book, so long as the coupon book contains certain information specified in the rule and certain other information is made available to the consumer. The proposal also includes an exception for small servicers that service 1,000 or fewer mortgage loans and service only mortgage loans that they originated or own. 2. Adjustable-rate mortgage interestrate adjustment notices. Servicers would have to provide a consumer whose mortgage has an adjustable rate with a notice 60 to 120 days before an adjustment which causes the payment to change. The servicer would also have to provide an earlier notice 210 to 240 days prior to the first rate adjustment. This first notice may contain an estimate of the rate and payment change. Other than this initial notice, servicers would no longer be required to provide an annual notice if a rate adjustment does not result in an increase in the monthly payment. The proposal contains model and sample forms that servicers could use. 3. Prompt payment crediting and payoff payments. As required by the Dodd-Frank Act, servicers must promptly credit payments from borrowers, generally on the day of receipt. If a servicer receives a payment that is less than a full contractual payment, the payment may be held in a suspense account. When the amount in the suspense account covers a full installment of principal, interest, and escrow (if applicable), the proposal would require the servicer to apply the funds to the oldest outstanding payment owed. A servicer also would be required to send an accurate payoff balance to a consumer no later than seven business days after receipt of a written request from the borrower for such information. 4. Force-placed insurance. As required by the Dodd-Frank Act, servicers would not be permitted to PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 57319 charge a borrower for force-placed insurance coverage unless the servicer has a reasonable basis to believe the borrower has failed to maintain hazard insurance and has provided required notices. One notice to the borrower would be required at least 45 days before charging for forced-place insurance coverage, and a second notice would be required no earlier than 30 days after the first notice. The proposal contains model forms that servicers could use. If a borrower provides proof of hazard insurance coverage, then the servicer would be required to cancel any force-placed insurance policy and refund any premiums paid for periods in which the borrower’s policy was in place. In addition, if a servicer makes payments for hazard insurance from a borrower’s escrow account, a servicer would be required to continue those payments rather than force-placing a separate policy, even if there is insufficient money in the escrow account. The rule would also provide that charges related to forced place insurance (other than those subject to State regulation as the business of insurance or authorized by federal law for flood insurance) must relate to a service that was actually performed. Additionally, such charges would have to bear a reasonable relationship to the servicer’s cost of providing the service. 5. Error resolution and information requests. Pursuant to the Dodd-Frank Act, servicers would be required to meet certain procedural requirements for responding to information requests or complaints of errors. The proposal defines specific types of claims which constitute an error, such as a claim that the servicer misapplied a payment or assessed an improper fee. A borrower could assert an error either orally or in writing. Servicers could designate a specific phone number and address for borrowers to use. Servicers would be required to acknowledge the request or complaint within five days. Servicers would have to correct or respond to the borrower with the results of the investigation, generally within 30 to 45 days. Further, servicers generally would be required to acknowledge borrower requests for information and either provide the information or explain why the information is not available within a similar amount of time. A servicer would not be required to delay a scheduled foreclosure sale to consider a notice of error unless the error relates to the servicer’s improperly proceeding with a foreclosure sale during a borrower’s evaluation for alternatives to foreclosure. 6. Information management policies and procedures. Servicers would be E:\FR\FM\17SEP3.SGM 17SEP3 tkelley on DSK3SPTVN1PROD with PROPOSALS3 57320 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules required to establish reasonable information management policies and procedures. The reasonableness of a servicer’s policies and procedures would take into account the servicer’s size, scope, and nature of its operations. A servicer’s policies and procedures would satisfy the rule if the servicer regularly achieves the document retention and servicing file requirements, as well as certain objectives specified in the rule. Examples of such objectives include providing accurate and timely information to borrowers and the courts or enabling servicer personnel to have prompt access to documents and information submitted in connection with loss mitigation applications. In addition, a servicer must retain records relating to each mortgage until one year after the mortgage is discharged or servicing is transferred, and must create a mortgage servicing file for each loan containing certain specified documents and information. 7. Early intervention with delinquent borrowers. Servicers would be required to make good faith efforts to notify delinquent borrowers of loss mitigation options. If a borrower is 30 days late, the proposal would require servicers to make a good faith effort to notify the borrower orally and to let the borrower know that loss mitigations options may be available. If the borrower is 40 days late, the servicer would be required to provide the borrower with a written notice with certain specific information, including examples of loss mitigation options available, if applicable, and information on how to obtain more information about loss mitigation options. The notice would also provide information to the borrower about the foreclosure process. The rule contains model language servicers could use for these notices. 8. Continuity of contact with delinquent borrowers. Servicers would be required to provide delinquent borrowers with access to personnel to assist them with loss mitigation options where applicable. The proposal would require servicers to assign dedicated contact personnel for a borrower no later than five days after providing the early intervention notice. Servicers would be required to establish reasonable policies and procedures designed to ensure that the servicer personnel perform certain specified functions where applicable, such as access the borrower’s records and provide the borrower with information about how and when to apply for a loss mitigation option and about the status of the application. VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 9. Loss mitigation procedures. Servicers that offer loss mitigation options to borrowers would be required to implement procedures to ensure that complete loss mitigation applications are reasonably evaluated before proceeding with a scheduled foreclosure sale. The proposal would require servicers to exercise reasonable diligence to secure information or documents required to make an incomplete loss mitigation application complete. In certain circumstances, this could include notifying the borrower within five days of receiving an incomplete application. Within 30 days of receiving a borrower’s complete application, the servicer would be required to evaluate the borrower for all available options, and, if the denial pertains to a requested loan modification, notify the borrower of the reasons for the servicer’s decision, and provide the borrower with at least a 14day period within which to appeal the decision. The proposal would require that appeals be decided within 30 days by different personnel than those responsible for the initial decision. A servicer that receives a complete application for a loss mitigation option could not proceed with a foreclosure sale unless (i) the servicer had denied the borrower’s application and the time for any appeal had expired; (ii) the servicer had offered a loss mitigation option which the borrower declined or failed to accept within 14 days of the offer; or (iii) the borrower failed to comply with the terms of a loss mitigation agreement. The proposal would require that deadlines for submitting an application for a loss mitigation option be no earlier than 90 days before a scheduled foreclosure sale. D. Small Servicers As discussed below, the Bureau convened a Small Business Regulatory Enforcement Fairness Act (SBREFA) panel to assess the impact of the possible rules on small servicers and to help the Bureau determine to what extent it may be appropriate to consider adjusting these standards for small servicers, to the extent permitted by law. Informed by this process, this proposal contains an exemption from the periodic statement requirement for certain small servicers. The Bureau seeks comment on whether other exemptions might be appropriate for small servicers. E. Effective Date As discussed below, the Bureau is seeking comment on when this final rule should be effective. Because the PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 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 rules will require servicers to make 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. II. Background A. Overview of the Mortgage Servicing Market and Market Failures 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.4 Mortgage servicers play a vital role within the broader market by undertaking the dayto-day management of mortgage loans on behalf of lenders who hold the loans in their portfolios or (where a loan has been securitized) investors who are entitled to the loan proceeds.5 Over 60% of mortgage loans are serviced by mortgage servicers for investors. Servicers’ duties typically include billing borrowers for amounts due, collecting and allocating payments, maintaining and disbursing funds from escrow accounts, reporting to creditors or investors, and pursuing collection and loss mitigation activities (including foreclosures and loan modifications) with respect to delinquent borrowers. Indeed, without dedicated companies to perform these activities, it is 4 Inside Mortgage Finance, Outstanding 1–4 Family Mortgage Securities, Mortgage Market Statistical Annual (2012). For general background on the market and the recent mortgage crisis, see the 2012 TILA–RESPA Proposal available at http://www.consumerfinance.gov/ knowbeforeyouowe/. 5 As of the end of 2011, approximately 33% of outstanding mortgage loans were held in portfolio, 57% of mortgage loans were owned through mortgage-backed securities issued by government sponsored enterprises (GSEs), and 11% of loans were owned through private label mortgage-backed securities. Inside Mortgage Finance, Issue 2012:13, at 11 (March 30, 2012). A securitization results in the economic separation of the legal title to the mortgage loan and a beneficial interest in the mortgage loan obligation. In a securitization transaction, a securitization trust is the owner or assignee of a mortgage loan. An investor is a creditor of the trust and is entitled to cash flows that are derived from the proceeds of the mortgage loans. In general, certain investors (or an insurer entitled to act on behalf of the investors) may direct the trust to take action as the owner or assignee of the mortgage loans for the benefit of the investors or insurers. See, e.g., Adam Levitin & Tara Twomey, Mortgage Servicing, 28 Yale J. on Reg., 1, 11 (2011) (Levitin & Twomey). E:\FR\FM\17SEP3.SGM 17SEP3 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS3 questionable whether a secondary market for mortgage-backed securities would exist in this country.6 Several aspects of the mortgage servicing business make it uniquely challenging for consumer protection purposes. Given the nature of their activities, servicers can have a direct and profound impact on borrowers. However, industry compensation practices and the structure of the mortgage servicing industry create wide variations in servicers’ incentives to provide effective customer service to borrowers. Also, because borrowers cannot choose their own servicers, it is particularly difficult for them to protect themselves from shoddy service or harmful practices. Mortgage servicing is performed by banks, thrifts, credit unions, and nonbank servicers under a variety of business models. In some cases, creditors service mortgage loans that they originate or purchase and hold in portfolio. Other creditors sell the ownership of the underlying mortgage loan, but retain the mortgage servicing rights in order to retain the relationship with the borrower, as well as the servicing fee and other ancillary income. In still other cases, servicers have no role at all in origination or loan ownership, but rather purchase mortgage servicing rights on securitized loans or are hired to service a portfolio lender’s loans.7 These different servicing structures can create difficulties for borrowers if the servicer makes mistakes, fails to invest sufficient resources in its servicing operations, or does not properly service the borrower’s loan. Although the mortgage servicing industry has numerous participants, the industry is highly concentrated, with the five largest servicers servicing approximately 55% percent of outstanding mortgage loans in this country.8 Small servicers generally operate in discrete segments of the market, for example, by specializing in 6 See, e.g., Levitin & Twomey at 11 (‘‘All securitizations involved third-party servicers * * * [m]ortgage servicers provide the critical link between mortgage borrowers and the SPV and RMBS investors, and servicing arrangements are an indispensable part of securitization.’’). 7 See, e.g., Diane Thompson, Foreclosing Modifications: How Servicer Incentives Discourage Loan Modifications, 86 Wash. L. Rev. 755, 763 (2011) (Thompson), available at: http:// digital.law.washington.edu/dspace-law/bitstream/ handle/1773.1/1074/86WLR755.pdf. 8 See, e.g, Top Mortgage Servicers in 2011 (Inside Mortg. Fin., Bethesda, Md.), Mar. 30, 2012, at 12. As of the end of the fourth quarter of 2011, the top 5 largest servicers serviced $5.66 trillion of mortgage loans. See id. VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 servicing delinquent loans, or by servicing loans that they originate.9 Contracts between the servicer and the mortgage loan owner specify the rights and responsibilities of each party. In the context of securitized loans, the contracts may require the servicer to balance the competing interests of different classes of investors when borrowers become delinquent. Certain provisions in servicing contracts may limit the servicer’s ability to offer certain types of loan modifications to borrowers. Such contracts also may limit the circumstances under which investors can transfer servicing rights to a different servicer. Compensation structures vary somewhat for loans held in portfolio and securitized loans,10 but have tended to make pure mortgage servicing (where the servicer has no role in origination) a high-volume, low-margin business in which servicers have little incentive to invest in customer service. A servicer will expect to recoup its investment in purchasing mortgage servicing rights and earn a profit through a net servicing fee (which is expressed as a constant rate assessed on unpaid mortgage balances),11 fees assessed on borrowers, interest float on payment accounts between receipt and disbursement, and cross-marketing other products and services to borrowers. Under this business model, servicers act primarily as payment collectors and processors, and provide minimal customer service to ensure profitability. Servicers also have an incentive to look for opportunities to impose fees on borrowers to enhance revenues and are generally not subject to market 9 See, e.g., Fitch Ratings, U.S. Residential and Small Balance Commercial Mortgage Servicer Rating Criteria, at 14–15 (Jan. 31, 2011), available at www.fitchratings.com. 10 At securitization, the cash flow that was part of interest income is bifurcated between the loan and the mortgage servicing right (MSR). The MSR represents the present value of all the cash flows, both positive and negative, related to servicing a mortgage. Prime MSRs are largely created by the GSE minimum servicing fee rate, which is calculated as 25 basis points (bps) per annum. The servicing fee rate is typically paid to the servicer monthly and the monthly amount owed is calculated by multiplying the pro rata portion of the servicing fee rate by the stated principal balance of the mortgage loan at the payment due date. Accounting rules require that a capitalized asset be created if the ‘‘compensation’’ for servicing (including float/ancillary) exceeds ‘‘adequate compensation.’’ For loans held in portfolio, there is no bifurcation of the interest income from the loan. The owner of the loan simply negotiates pricing, terms, and standards with the servicer, which, at larger institutions, is typically a separate affiliate or subsidiary of the owner of the loans. PowerPoint Presentation, Keefe, Bruyette & Woods, Inc., KBW Mortgage Matters: Mortgage Servicing Primer, 3 (April 17, 2012). 11 See, e.g., Thompson, 86 Wash. L. Rev. 755, 767. PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 57321 discipline because consumers have no opportunity to switch providers. Additionally, servicers may have financial incentives to foreclose rather than engage in loss mitigation.12 These attributes of the servicing market created problems for certain borrowers even prior to the national mortgage crisis. For example, borrowers experienced problems with mortgage servicers even during regional mortgage market downturns that preceded the mortgage crisis.13 Borrowers were subjected to improper fees that servicers had no reasonable basis to impose on borrowers, improper force-placed insurance practices, and improper foreclosure and bankruptcy practices.14 When the mortgage crisis erupted, many servicers were ill-equipped to handle the high volumes of delinquent mortgages, loan modification requests, and foreclosures they were required to process. These servicers lacked the infrastructure, trained staff, controls, and procedures needed to manage effectively the flood of delinquent mortgages they were forced to handle. Consumer harm has manifested in many different areas, and major servicers have entered into significant settlement agreements with Federal and State governmental authorities. For example, in April 2011, the Office of the Comptroller of the Currency (OCC) and the Federal Reserve Board (the Board) undertook formal enforcement actions against several major servicers for unsafe and unsound residential mortgage loan servicing practices.15 12 Why Servicers Foreclose When They Should Modify and Other Puzzles of Servicer Behavior, NCLC p.v (October 2009), (‘‘Servicers, unlike investors or homeowners, do not generally lose money on foreclosure. Servicers may even make money on a foreclosure.’’), Diane Thompson, The Need for National Mortgage Servicing Standards (May 12, 2011), at 15 (‘‘* * * modification will also likely reduce future income, cost more in the present in staffing, and delay recovery of expenses. Moreover, the foreclosure process itself generates significant income for servicers.’’) 13 See Problems in Mortgage Servicing from Modification to Foreclosure: Hearings Before the Comm. on Banking, Housing and Urban Affairs, S. Hrg. 111–987, 111th Cong. 53–54 (2010) (statement of Thomas J. Miller, Iowa Attorney General) (Miller Testimony). See also, Kurt Eggert, Limiting Abuse and Opportunism by Mortgage Servicers 15:3 Housing Policy Debate (2004), available at http:// ssrn.com/abstract=992095. 14 See Kurt Eggert, Limiting Abuse and Opportunism by Mortgage Servicers 15:3 Housing Policy Debate (2004), available at http://ssrn.com/ abstract=992095 (collecting cases). 15 OCC Press Release, OCC Takes Enforcement Action Against Eight Servicers for Unsafe and Unsound Foreclosure Practices (April 13, 2011), available at http://www.occ.treas.gov/newsissuances/news-releases/2011/nr-occ-2011-47.html, and Federal Reserve Board Press Release, Federal Reserve Issues Enforcement Actions Related to Deficient Practices in Residential Mortgage Loan E:\FR\FM\17SEP3.SGM Continued 17SEP3 57322 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS3 These enforcement actions generally focused on practices relating to (1) filing of foreclosure documents without, for example, proper affidavits or notarizations; (2) failing to always ensure that loan documents were properly endorsed or assigned and, if necessary, in the possession of the appropriate party at the appropriate time; (3) failing to devote sufficient financial, staffing, and managerial resources to ensure proper administration of foreclosure processes; (4) failing to devote adequate oversight, internal controls, policies and procedures, compliance risk management, internal audit, third party management, and training to foreclosure processes; and (5) failing to sufficiently oversee outside counsel and other thirdparty providers handling foreclosurerelated services.16 Congress has held significant detailed hearings on the issue of servicer ‘‘robo-signing’’ of foreclosure related documentation.17 Servicers have also misled, or failed to communicate with, borrowers, lost or mishandled borrower-provided documents supporting loan modification requests, and generally provided inadequate service to delinquent borrowers. These problems became pervasive in broad segments of the mortgage servicing industry and had profound impacts on borrowers, particularly delinquent borrowers.18 The Bureau further understands from mortgage investors that there is a pervasive belief that servicers are making discretionary decisions based on the best interests of the servicer rather than to achieve results that will benefit owners or assignees of mortgages loans. When servicers hold a second lien that is behind a first lien owned by a different owner or assignee, one study has found a lower likelihood of liquidation and modification, and a higher likelihood of inaction by a Servicing (April 13, 2011), available at http:// www.federalreserve.gov/newsevents/press/ enforcement/20110413a.htm, and accompanying documents. In addition to enforcement actions against major servicers, Federal agencies have also undertaken formal enforcement actions against major service providers to mortgage servicers. See id. 16 See id. None of the servicers admitted or denied the OCC’s or Federal Reserve Board’s findings. 17 See, e.g., Problems in Mortgage Servicing from Modification to Foreclosure: Hearings Before the Comm. on Banking, Housing and Urban Affairs, S. Hrg. 111–987, 111th Cong. 53–54 (2010) (statement of Diane E. Thompson, NCLC) (Thompson Testimony). 18 See U.S. Government Accountability Office, Troubled Asset Relief Program: Further Actions Needed to Fully and Equitably Implement Foreclosure Mitigation Actions, at 14–16 (June 2010); Miller Testimony at 54. VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 servicer.19 Specifically, ‘‘liquidation and modification of securitized first mortgages are 60% [to] 70% less likely respectively and no action is 13% more likely when the servicer of that securitized first mortgage holds on its portfolio the second lien attached to the first mortgage.’’ 20 These failures to take actions that may benefit both consumers and owners or assignees of first lien mortgage loans harm consumers. The mortgage servicing industry, however, is not monolithic. Some servicers provide high levels of customer service. Some of these servicers may be compensated by investors in a way that incentivizes them to provide high levels of customer service in order to optimize investor outcomes. Other servicers provide high levels of customer service because they rely on providing other products and services to consumers and thus have an interest in preserving their reputations and relationships with their consumers. For example, as discussed further below, small servicers that the Bureau consulted as part of a process required under SBREFA described their businesses as requiring a ‘‘high touch’’ model of customer service both to ensure loan performance and maintain a strong reputation in their local communities.21 B. Mortgage Servicing Consumer Protection Regulation Before the Recent Crisis Prior to the adoption of the DoddFrank Act, the mortgage servicing industry was subject to limited Federal consumer financial protection regulation. RESPA set forth basic protections with respect to mortgage servicing that were implemented by the U.S. Department of Housing and Urban Development (HUD). These included required disclosures at application concerning whether the lender intended to service the mortgage loan and disclosures upon an actual transfer of servicing rights.22 RESPA further imposed substantive and disclosure requirements for escrow account management and required servicers to respond to ‘‘qualified written requests’’—written error resolution or information requests relating to a 19 Sumit Agarwal et. Al, Second Liens and the Holdup Problem in First Mortgage Renegotiation (December 2011), available at http://ssrn.com/ abstract=2022501. 20 Id. 21 See U.S. Consumer Fin. Prot., Bureau, Final Report of the Small Business Review Panel on CFPB’s Proposals Under Consideration for Mortgage Servicing Rulemaking (June 11, 2012) (‘‘SBREFA Final Report’’), available at: http:// www.consumerfinance.gov. 22 See 12 U.S.C. 2605(a)–(e). PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 restricted definition of the ‘‘servicing’’ of the borrower’s mortgage loan.23 TILA set forth requirements on creditors that were implemented by servicers, including disclosures regarding interest rate adjustments on adjustable rate mortgage loans. Regulation Z, which implements TILA, was amended by the Board to include certain limited requirements directly on servicers, such as requirements to timely credit payments, provide payoff balances and prohibit pyramiding of late fees.24 Servicers also had some obligations under other Federal laws, including, for example, the Servicemembers Civil Relief Act.25 Although TILA and RESPA did not impose many requirements on servicers, servicers were still required to navigate overlapping requirements governing their servicing responsibilities. In addition to Federal law, servicers were required to consider the impact of State and even local regulation on mortgage servicing. Servicers also had to comply with investor requirements to the extent they serviced loans owned or guaranteed by various types of entities. These include (1) servicing guidelines required by Federal National Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage Corporation (Freddie Mac), together known as the government-sponsored enterprises (GSEs), as well as servicing guidelines required by the Government National Mortgage Association (Ginnie Mae); (2) government insured program guidelines issued by the Federal Housing Administration (FHA), Department of Veterans Affairs (VA), and the Rural Housing Service; (3) contractual agreements with investors (such as pooling and servicing agreements and subservicing contracts); and (4) bank or institution policies. All those requirements remain in effect today and going forward. C. The National Mortgage Settlement and Other Regulatory Actions In response to the unprecedented mortgage crisis and pervasive problems in mortgage servicing, including the systemic violation of State foreclosure laws by many of the largest servicers, State and Federal regulators have engaged in a number of individual servicing related enforcement and regulatory actions over the last few years and have begun discussions about comprehensive national standards. 23 See 12 U.S.C. 2605(e) and 2609. 12 CFR 1026.36(c). 25 See 50 U.S.C. App. 501 et seq. 24 See E:\FR\FM\17SEP3.SGM 17SEP3 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules For example, 49 State attorneys general,26 joined by numerous Federal agencies including the Bureau, entered into a National Mortgage Settlement (National Mortgage Settlement) with the nation’s five largest servicers in February 2012.27 The National Mortgage Settlement applies to loans held in portfolio and serviced by the five largest servicers. Loans owned by GSEs, private investors, or smaller servicers are not covered by the settlement. Exhibit A to each of the settlements is a Settlement Term Sheet, which sets forth standards that each of the five largest servicers must follow to comply with the terms of the settlement.28 The settlement standards contained in the Settlement Term Sheet are sub-divided into the following eight categories: (1) Foreclosure and bankruptcy information and documentation; (2) third-party provider oversight; (3) bankruptcy; (4) loss mitigation; (5) protections for military personnel; (6) restrictions on servicing fees; (7) force-placed insurance; and (8) general servicer duties and prohibitions. In addition to the settlement, other Federal regulatory agencies have issued guidance on mortgage servicing and loan modifications,29 conducted coordinated reviews of the nation’s largest servicers,30 and taken enforcement actions against individual companies.31 The Bureau and other 26 Oklahoma elected not to join the settlement. National Mortgage Settlement is available at http://www.nationalmortgagesettlement.com/. The five servicers subject to the settlement are Bank of America, JP Morgan Chase, Wells Fargo, CitiMortgage, and Ally/GMAC. 28 See http:// www.nationalmortgagesettlement.com/. 29 Office of the Comptroller of the Currency, Bulletin 2011–29 (June 30, 2011), available at: http://www.occ.gov/news-issuances/bulletins/2011/ bulletin-2011-29.html; Letter from Edward J. DeMarco, Acting Director of FHFA, to Hon. Elijah E. Cummings, Ranking Member, Committee on Oversight and Government Reform, U.S. House of Representatives (Jan. 20, 2012), available at http:// www.fhfa.gov/webfiles/23056/ PrincipalForgivenessltr12312.pdf; Guidance, Home Affordable Modification Program, available at: https://www.hmpadmin.com/portal/programs/ guidance.jsp. FHFA, Frequently Asked Questions— Servicing Alignment Initiative, available at: http:// www.fhfa.gov/webfiles/21191/FAQs42811Final.pdf. 30 See Interagency Foreclosure Report, a joint review of foreclosure processing of 14 federally regulated mortgage servicers during the fourth quarter of 2010 by the Federal Reserve System, Office of the Comptroller of the Currency, and Office of Thrift Supervision. 31 See Interagency Foreclosure Report at 5; Federal Reserve Board, Press Release (May 24, 2012), available at: http://www.federalreserve.gov/ newsevents/press/enforcement/20120524a.htm; Federal Reserve Board, Press Release (February 27, 2012), available at: http://www.federalreserve.gov/ newsevents/press/enforcement/20120227a.htm; Office of the Comptroller of the Currency, News Release 2011–47 (April 13, 2011), available at: tkelley on DSK3SPTVN1PROD with PROPOSALS3 27 The VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 Federal agencies have also engaged since spring 2011 in informal discussions about the potential development of national mortgage servicing standards through regulations and guidance. The Bureau’s proposed rules under Regulation Z and X represent another important step towards establishing uniform minimum national standards. When adopted in final form, the Bureau’s rules will apply to all mortgage servicers, whether depository institutions or non-depository institutions, and to all segments of the mortgage market, regardless of the ownership of the loan. The proposals focus both on implementing the specific mortgage servicing requirements of the Dodd-Frank Act and on addressing broader systemic problems that the Bureau believes are critical to ensure that the mortgage servicing market functions to serve consumer needs. To that end, the proposed TILA and RESPA mortgage servicing rules incorporate elements from four categories of the National Mortgage Settlement—(1) Foreclosure and bankruptcy information and documentation, (4) loss mitigation, (6) restrictions on servicing fees, and (7) force-placed insurance. In addition, the proposed requirement to maintain reasonable information management policies and procedures addresses oversight of service providers, which impacts category (2) of the settlement. The Bureau continues to consider whether to incorporate other settlement standards into rules or guidance, either alone or in conjunction with other Federal regulatory agencies; certain requests for comment in this proposal reflect these considerations. The Bureau is also continuing ongoing discussions with other regulators to ensure appropriate coordination of rulemaking and other initiatives relating to mortgage servicing issues. D. The Statutory Requirements and Additional Proposals The Dodd-Frank Act mandates several protections for homeowners in the servicing of their loans. The Act requires new disclosures, specifically periodic statements (unless coupon books are provided in certain circumstances), notices prior to the reset of adjustable-rate mortgages, and forceplaced insurance notices. These disclosures are designed to provide consumers with comprehensive and comprehensible information when they need it and in a form they can use, so http://www.occ.gov/news-issuances/news-releases/ 2011/nr-occ-2011-47.html. PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 57323 they can better manage their obligations and avoid unnecessary problems. The Dodd-Frank Act also imposes new requirements on servicers to respond in a timely way to borrowers who assert that their servicer made an error. The statute also requires servicers to respond in a timely way to borrower requests for information. The Dodd-Frank Act contains requirements relating to the prompt crediting of payments, so that consumers are not wrongly penalized with late fees or other fees because servicers did not credit their payments quickly. The statute also requires servicers to provide timely responses to consumer requests for payoff amounts, so consumers can get this information when they need it, such as when refinancing. The Bureau is proposing additional standards to improve the way servicers treat all borrowers, including delinquent borrowers. Some servicers have made it very difficult for delinquent borrowers to explore and take advantage of potential alternatives to foreclosure. For example, servicers have frequently neglected to reach out or respond to such borrowers to discuss alternatives to foreclosure, lost or misplaced the documents of borrowers who have sought modifications or other relief, failed to keep track of borrower communications, and forced borrowers who have invested substantial time communicating with an employee of the servicer to repeat the process with a different employee.32 To address these concerns, the Bureau is proposing new servicing standards in four areas. First, servicers would have to establish and maintain reasonable information management policies and procedures. These policies and procedures would have to be reasonably designed to achieve certain objectives and address certain obligations, including accessing and providing accurate information, evaluating borrowers for loss mitigation options, facilitating oversight of, and compliance by, service providers, and facilitating servicing transfers. Second, servicers would have to intervene early with delinquent borrowers to provide them with information about, and encourage them to explore, available alternatives to foreclosure. Third, servicers would have to provide delinquent borrowers with a point of contact that provides continuity 32 See, e.g., Larry Cordell et al., The Incentives of Mortgage Servicers: Myths and Realities, at 9 (Federal Reserve Board, Working Paper No. 2008– 46, Sept. 2008). E:\FR\FM\17SEP3.SGM 17SEP3 57324 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules in the borrowers’ dealings with the servicer. At such point of contact, staff must have access to complete records about that borrower, including records of prior communications with the borrower, and be able to assist the borrower in pursuing loss mitigation options. Fourth, servicers that offer loss mitigation options in the ordinary course of business would be required to follow certain procedures to ensure that borrowers’ completed loss mitigation applications are evaluated in a timely manner, that borrowers are notified of the results, and that borrowers have a right to appeal the denial of a loan modification option. Servicers would also be required to provide borrowers who submit incomplete loss mitigation applications with timely notice about the additional documents or information needed to make a loss mitigation application complete. The Bureau recognizes that a one-sizefits-all approach may not be optimal with regard to either the mandated or additional requirements. As discussed below, the Bureau seeks comment on to what extent it may be appropriate to adjust these standards for small servicers. III. Summary of Statute and Rulemaking Process tkelley on DSK3SPTVN1PROD with PROPOSALS3 A. Overview of the Statute The Dodd-Frank Act imposes certain new requirements related to mortgage servicing. Some of these new requirements are amendments to TILA addressed in this proposal and others are amendments to RESPA, addressed in the 2012 RESPA Servicing Proposal. TILA amendments. There are three new mortgage servicing requirements under TILA. First, for closed-end credit transactions secured by a consumer’s principal residence, section 1418 of the Dodd-Frank Act adds a new section 128A to TILA. TILA section 128A states that, for hybrid ARMs with a fixed interest rate for an introductory period that adjusts or resets to a variable interest rate at the end of such period, a notice must be provided six months prior to the initial adjustment of the interest rate for closed-end credit transactions secured by a consumer’s principal residence. Section 1418 of the Dodd-Frank Act permits the Bureau to extend this requirement to ARMs that are not hybrid ARMs. Second, section 1420 of the DoddFrank Act, which adds section 128(f) to TILA, requires the creditor, assignee, or servicer of any residential mortgage loan to transmit to the borrower, for each billing cycle, a periodic statement that VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 sets forth certain specified information in a conspicuous and prominent manner. The statute also gives the Bureau the authority to require additional content to be included in the periodic statement. The statute provides an exception to the periodic statement requirement for fixed-rate loans where the borrower is given a coupon book containing substantially the same information as the statement. Third, section 1464 of the Dodd-Frank Act adds sections 129F and 129G to TILA, which generally codify existing Regulation Z requirements for the prompt crediting of mortgage payments received by servicers in connection with consumer credit transactions secured by a consumer’s dwelling. The statute also generally codifies the Regulation Z requirement on accurate and timely responses to borrower requests for payoff amounts. RESPA amendments. Section 1463 of the Dodd-Frank Act imposes a number of new servicing related requirements under RESPA that broadly relate to force-placed insurance and error resolution/responses to requests for information. First, the statute prohibits a servicer from obtaining force-placed hazard insurance, unless there is a reasonable basis to believe the borrower has failed to comply with the loan contract’s requirement to maintain property insurance. A servicer may not impose any charge on any borrower for force-placed insurance with respect to any property secured by a federally related mortgage, unless the servicer sends, by first-class mail, two written notices to the borrower, at least 30 days apart. The notices must remind borrowers of their obligation to maintain hazard insurance on the property, alert borrowers to the servicer’s lack of evidence of insurance coverage, tell borrowers what they must do to demonstrate that they have coverage, and state that the servicer may obtain coverage at the borrower’s expense if the borrower fails to provide evidence of coverage. Servicers must terminate force-placed insurance coverage and refund to borrowers any premiums charged during any period when the borrower had private insurance coverage. The statute also provides that all charges imposed on the borrower related to force-placed insurance, apart from charges subject to State regulation as the business of insurance, must be bona fide and reasonable. Second, the statute prohibits certain acts and practices by servicers of federally related mortgages with regard to resolving errors and responding to requests for information. Specifically, the statute prohibits servicers of PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 federally related mortgages from charging fees for responding to valid qualified written requests. The statute also provides that a servicer of a federally related mortgage must not fail to take timely action to respond to a borrower’s requests to correct errors relating to: Allocation of payments, final balances for purposes of paying off the loan, avoiding foreclosure, or other standard servicer duties. Finally, the statue requires a servicer of a federally related mortgage to respond within ten business days to a request from a borrower to provide the identity, address, and other relevant contact information about the owner or assignee of the loan. The statue also reduces the amount of time that servicers of federally related mortgages have to correct errors and respond to inquiries generally, as well as refund escrow accounts upon payoff.33 In addition, the statute provides that a servicer of a federally related mortgage must ‘‘comply with any other obligation found by the Consumer Financial Protection Bureau, by regulation, to be appropriate to carry out the consumer protection purposes of this Act.’’ 34 This provision gives the Bureau broad authority to adopt additional regulations to govern the conduct of servicers of federally related mortgage loans. In light of the systemic problems in the mortgage servicing industry, the Bureau is proposing to exercise this authority to require servicers of federally related mortgages to: Establish reasonable information management policies and procedures; undertake early intervention with delinquent borrowers; provide delinquent borrowers with continuity of contact with staff equipped to assist them; and require servicers that offer loss mitigation options in the ordinary course of business to follow certain procedures when evaluating loss mitigation applications. The statute also requires a creditor or servicer to send accurate and timely responses to borrower requests for payoff amounts for home loans. The statutory provisions with enumerated mortgage servicing requirements become effective on January 21, 2013, unless final rules are issued on or before that date. B. Outreach and Consumer Testing The Bureau has conducted extensive outreach in developing the mortgage servicing proposals. Bureau staff met 33 Other changes in section 1463 of the DoddFrank Act relate to increases in penalties for violations. These provisions are not addressed in this rulemaking. 34 12 U.S.C. 2605(k)(1)(E). E:\FR\FM\17SEP3.SGM 17SEP3 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS3 with mortgage servicers, force-placed insurance carriers, industry trade associations, consumer advocates, other Federal regulatory agencies, and other interested parties to discuss various aspects of the statute and the servicing industry. In preparing this proposed rule, the Bureau solicited input from small servicers through a Small Business Review Panel (SBREFA 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).35 The Small Business Review Panel’s findings and recommendations are contained in the Final Report of the Small Business Review Panel on CFPB’s Proposals Under Consideration for Mortgage Servicing Rulemaking (SBREFA Final Report).36 The Bureau also engaged in other meetings and roundtables with a variety of other stakeholders to gather factual information about the servicing industry and to discuss various elements of the Bureau’s proposals as they were being developed. As discussed above and in connection with section 1022 of the Dodd-Frank Act below, the Bureau has also consulted with relevant Federal regulators both regarding the Bureau’s specific proposals and the need for and potential contents of national mortgage servicing standards in general. As it considers public comment and works to develop final rules on mortgage servicing, the Bureau will continue to seek input from all interested parties. In addition, the Bureau engaged ICF Macro (Macro), a research and consulting firm that specializes in designing disclosures and consumer testing, to conduct one-on-one cognitive interviews regarding disclosures connected with mortgage servicing. During the first quarter of 2012, the Bureau and Macro worked closely to develop and test disclosures that would satisfy the requirements of the DoddFrank Act and provide information to consumers in a manner that would be understandable and useful. These disclosures related to the ARM notices, the force-placed insurance notices, and the periodic statements. Macro conducted three rounds of one-on-one 35 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)). 36 See SBREFA Final Report, supra note 22. VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 cognitive interviews with a total of 31 participants in the Baltimore, Maryland metro area (Towson, Maryland), Memphis, Tennessee, and Los Angeles, California. Participants were all consumers who held a mortgage loan and represented a range of ages and education levels. Efforts were made to recruit a significant number of participants who had trouble making mortgage payments in the last two years. During the interviews, participants were shown disclosure forms for periodic statements, ARM interest rate adjustment notices for the new disclosures required by Dodd-Frank Act section 1418, and force-placed insurance notices. Participants were asked specific questions to test their understanding of the information presented in each of the disclosures, how easily they could find various pieces of information presented in each of the disclosures, as well as to learn about how they would use the information presented in each of the disclosures. The disclosures were revised after each round of testing. Specific findings from the consumer testing are discussed in detail throughout the SUPPLEMENTARY INFORMATION where relevant.37 C. Other Dodd-Frank Act MortgageRelated Rulemakings Including this proposal, the Bureau currently is engaged in seven rulemakings relating to mortgage credit to implement requirements of the DoddFrank Act: • TILA–RESPA Integration: On July 9, 2012, the Bureau released proposed rules and forms combining the TILA mortgage loan disclosures with the Good Faith Estimate (GFE) and settlement statement required under RESPA, pursuant to DFA section 1032(f) as well as sections 4(a) of RESPA and 105(b) of TILA, as amended by DFA sections 1098 and 1100A, respectively. 12 U.S.C. 2603(a); 15 U.S.C. 1604(b) (the 2012 TILA–RESPA Proposal).38 • HOEPA: On July 9, 2012, the Bureau released proposed rules 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 DFA sections 1431 through 1433. 15 U.S.C. 37 ICF Macro International, Inc., Summary of Findings: Design and Testing of Mortgage Servicing Disclosures (Aug. 2012), available at: http://www. consumerfinance.gov/notice-and-comment/ (report on consumer testing submitted to the U.S. Consumer Fin. Prot. Bureau). 38 Available at http://www.consumerfinance.gov/ notice-and-comment/. PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 57325 1602(bb) and 1639.39 Such loans have requirements on servicers related to payoff statements, late fees, prepayment penalties, and fees for loan modifications or deferrals. • 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 DFA sections 1402 through 1405. 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 DFA 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 DFA 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. 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 (ATR 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 39 Id. E:\FR\FM\17SEP3.SGM 17SEP3 tkelley on DSK3SPTVN1PROD with PROPOSALS3 57326 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules other provisions, pursuant to TILA section 129D as established by DoddFrank Act sections 1461 and 1462. 15 U.S.C. 1639d. With the exception of the requirements being implemented in the 2012 TILA–RESPA Proposal, the DoddFrank 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. Therefore, the Bureau is providing 60 days for comment on those proposals, which will ensure that the Bureau receives comments with sufficient time remaining to issue final rules by January 21, 2013. 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 a proposed approach 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 VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 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. D. Small Servicers The small entity representatives (SERs) who provided feedback to the SBREFA panel generally emphasized that their business models required a ‘‘high touch’’ approach to customer service and that they did not engage in many of the practices that contributed to the mortgage market process. The SERs indicated that they take a proactive approach to providing consumer information, resolving errors and working with delinquent borrowers to find alternatives to foreclosure. Nevertheless, they indicated that some elements of the proposals under consideration were not consistent with their current business practices and expressed concern about the need to begin providing extensive documentation to prove compliance with the proposed standards. The SERs urged the Bureau to adopt standards that would allow small servicers to stay in the market and provide choices to consumers with the new compliance burdens.40 The SERs were particularly concerned about the costs and burdens of complying with the periodic statement requirements, as well as certain aspects of the process for resolving errors and responding to inquiries.41 Informed by this process, the Bureau is proposing to exempt certain small servicers from the periodic statement requirement. The Bureau is also proposing that certain requirements, such as the requirement to maintain reasonable information management policies and procedures under Regulation X, should be applied in light of the scale of the servicer’s operations as well as other contextual factors. The Bureau does not believe that these provisions, described more fully below in the section-by-section analysis of the applicable proposal, would impair consumer protection. The Bureau is also seeking comment more broadly on whether other exemptions or adjustments for small servicers would be warranted to reduce regulatory Final Report, supra note 22, at 16, 21. Final Report, supra note 22, at 16–19, 21, and 23–24. burden while appropriately balancing consumer protections. E. Request for Comment on Effective Date The Bureau specifically requests comment on the appropriate effective date for each of the servicing-related rules contained in this proposal and the 2012 RESPA Servicing Proposal. As discussed above, the Dodd-Frank Act servicing requirements take effect automatically on January 21, 2013, unless final rules are issued on or before that date.42 Where rules are required to be issued, the Dodd-Frank Act permits the Bureau to provide up to 12 months for implementation. For all other rules, the implementation period is left to the discretion of the Bureau. Given the significant consumer benefits offered by the proposals and the challenges faced by delinquent borrowers in dealing with their servicers, the Bureau generally believes that the final rules should be made effective as soon as possible. However, the Bureau understands that various elements of the final rules would require servicers to adopt or revise existing software to generate compliant disclosures, retrain staff, assess and revise policies and procedures, and/or take other implementation measures. The Bureau therefore seeks detailed comment on the nature and length of implementation process for each individual servicing rule and in light of interactions between the rules. The Bureau is particularly interested in analyzing the impacts on both consumers and servicers of a staggered implementation sequence as compared to imposing a single date by which all rules must be implemented. The Bureau also notes that some companies may also need to implement other new requirements under other parts of the Dodd-Frank Act, as described above. The Bureau believes based on conversations and analysis to date that there is more overlap and interaction among the various proposals relating to mortgage origination than there is between the servicing proposals and the origination proposals. However, the Bureau seeks comment specifically on this issue and on whether the general cumulative burden on entities that are subject to both sets of rules will complicate implementation. Finally, the Bureau seeks comment on any particular implementation challenges faced by small servicers, and on whether an extended implementation period would be 40 SBREFA 41 SBREFA PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 42 Public Law 111–203, 124 Stat. 1376, section 1400(c) (2010). E:\FR\FM\17SEP3.SGM 17SEP3 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules appropriate or useful. For instance, to the extent that small servicers rely heavily on outside software vendors, the Bureau seeks comment on whether a delayed effective date would provide significant relief if the vendors will have to develop software solutions for larger servicers on a shorter timeline anyway. The Bureau also seeks comment on the impacts of delayed implementation on consumers and on other market participants. tkelley on DSK3SPTVN1PROD with PROPOSALS3 IV. Discussion of Major Proposed Revisions The proposed amendments to Regulation Z implement sections 1418 (initial ARM interest rate adjustment notice), 1420 (periodic statements) and 1464 (prompt crediting and provision of payoff statements) of the Dodd-Frank Act, which in turn amend TILA. The amendment also proposes to revise current Regulation Z ARM disclosure rules for consistency with DFA section 1418. The proposed revision eliminates the ARM interest rate adjustment notice required at least once each year during which an interest rate adjustment is implemented without resulting in a corresponding payment change. A. Current and Proposed Interest Rate Adjustment Disclosures To implement DFA section 1418, the Bureau is proposing to revise § 1026.20(d) to require that creditors, assignees, or servicers provide notices to consumers six to seven months prior to the first time the interest rate of their adjustable-rate mortgages adjusts. In contrast to this one-time disclosure, Regulation Z currently requires notice to consumers regarding each adjustment of their adjustable-rate mortgages. Under current rule § 1026.20(c), creditors must provide consumers with a notice of interest rate adjustment for variable-rate transactions subject to § 1026.19(b) at least 25, but no more than 120, calendar days before a payment at a new level is due. For the reasons discussed below, the Bureau is proposing in § 1026.20(c), among other things, to change the minimum time for providing advance notice to consumers from 25 days to 60 days before payment at a new level is due. The maximum time for advance notice would remain the same: 120 days prior to the due date of the first payment at a new level. Current § 1026.20(c) also requires creditors to provide consumers with an adjustment notice at least once each year during which an interest rate adjustment is implemented without resulting in a corresponding payment change. The Bureau is proposing to eliminate this provision. As explained VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 in more detail below in the section-bysection analysis, the Bureau believes that certain Dodd-Frank Act amendments to TILA and the Bureau’s proposed amendments that would implement those provisions provide consumers with much of the information contained in the annual notice, thereby greatly minimizing its value for consumers. In the interest of harmonizing the two proposed ARM disclosures, the coverage, content, and format of proposed § 1026.20(c) and (d) closely track one another and incorporate most of the content currently required by § 1026.20(c). Historic context of § 1026.20(c) rate adjustment disclosures. The Board adopted the rule that is current § 1026.20(c) in 1987, as part of a larger revision of Regulation Z.43 In 2009, the Board proposed to revise regulations governing ARM disclosures as part of a larger revision of closed-end provisions in Regulation Z (2009 Closed-End Proposal). In that proposal, the Board said that, in 1987, it set the minimum time for providing notice of a rate adjustment at 25 days before payment at new level is due in order to track the rules of the OCC and to provide creditors with flexibility in giving adjustment notices for a variety of ARMs.44 It also noted that, as of 2009, neither the OCC nor any other Federal financial institution supervisory agency had any comprehensive disclosure requirements for ARMs.45 Since 1987, the popularity of ARMs has increased, especially during the period from 2002 to 2007.46 Beginning in 2007, ARM growth began to slow as consumers experienced difficulty repaying such loans and concerns grew about the risk of payment shock that ARMs pose.47 According to Freddie Mac, ‘‘[i]n June 2004, ARMs hit a peak share of 40% of the home-purchase market but by early 2009, that share had fallen to just 3%, according to the Federal Housing Finance Agency.’’ 48 Generally, ARMs are financing just over 10% of new home-purchase loans but are expected to rise to a 14% share of that market in 2012.49 For many consumers, the current era of declining interest rates has reduced 43 52 FR 48665 (Dec. 24, 1987). FR 43232, 43269 (Aug. 26, 2009) (citing 52 FR 48665, 48668 (Dec. 24, 1987)). 45 Id. at 43272. 46 Id. at 43269. 47 Id. 48 Press Release, Freddie Mac, Freddie Mac Releases 28th Annual ARM Survey Results (January 18, 2012), available at: http://freddiemac. mediaroom.com/index.php?s=12329&item=109996. 49 Id. 44 74 PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 57327 the incidence of the significant payment increases that can accompany ARM interest rate adjustments. Anecdotal evidence from mortgage servicers with which the Bureau has conducted outreach supports this conclusion. To the extent interest rates rise in the future, ARM interest rate adjustments may result in significant payment increases for many consumers. The popularity of adjustable-rate mortgages, which provide the opportunity for reduced interest rates, also may increase along with the advent of higher interest rates. Regardless of current market conditions, ARMs can pose a risk of payment shock. Therefore, it is critical that consumers receive advance notice of ARM payment changes so that, if their rates increase, they can prepare to make higher mortgage payments or pursue alternative plans, such as seeking to refinance their loans. Timing of current and proposed ARM regulations. DFA section 1418 requires that interest rate adjustment disclosures be provided to consumers six to seven months before the interest rate adjusts for the first time (which is equivalent to 210 to 240 days before payment at a new level is due). Generally, this much advance notice will require disclosure of an estimated new interest rate and payment instead of exact amounts. This is because ARM contracts generally require an index value published closer to the adjustment date to calculate the adjusted interest rate and new payment. Nevertheless, the consumer would be put on notice of upcoming changes and would have ample time to refinance or pursue other alternatives if the estimate indicates a potential increase in payments that the consumer cannot afford. Current § 1026.20(c) requires notice of rate adjustments resulting in a corresponding payment change at least 25 days prior to when payment at a new level is due. This notice, unlike the one required under DFA section 1418, provides the actual, not estimated, new interest rate and payment. Twenty-five days likely does not provide sufficient time for consumers to refinance, pursue other alternatives, or adjust their finances to make higher payments. Research conducted for the years 2004 through 2007 also suggested that a requirement to provide ARM adjustment disclosures 60, rather than 25, days before payment at a new level is due more closely reflects the time needed for E:\FR\FM\17SEP3.SGM 17SEP3 57328 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS3 consumers to refinance a loan.50 In the current market, the nation’s biggest mortgage lenders take an average of more than 70 days to complete a refinance.51 For these reasons, proposed § 1026.20(c) revises the time frame for providing the ARM adjustment notice from the current 25 to 120 days to 60 to 120 days before payment at a new level is due. Under the proposed rule, consumers will know the actual amount of their new interest rate and payment at least 60 days before the new payment is due. Most existing ARMs will be able to comply with this proposed timing. The Bureau proposes grandfathering existing ARMs that contractually will not be able to comply with the new timing, i.e., those with look-back periods of less than 45 days. See section-by-section analysis for proposed § 1026.20(c) for a full discussion of timing and look-back periods. Content of current and proposed ARM regulations. The Bureau is generally proposing to retain the content required by current § 1026.20(c). Proposed § 1026.20(c) would require additional information such as a statement that the consumer’s interest rate is scheduled to adjust, the adjustment may change the mortgage payment, the time period the current interest rate has been in effect, and the dates of the future rate adjustments; the date when the new payment is due after the adjustment; any interest rate or payment limits; any unapplied carryover interest and the earliest date it could be applied; additional amortization information for negatively-amortizing and interest-only loans; and the amount and expiration date of any prepayment penalty. Much of this additional content was proposed by the Board’s 2009 Closed-End Proposal to amend Regulation Z’s payment change interest rate adjustment disclosures.52 The initial interest rate adjustment notices proposed by § 1026.20(d) include much of the same information listed above for proposed § 1026.20(c). The content of the two proposed notices in § 1026.20(c) and (d) closely track one another in order to promote consistency and simplify compliance. However, proposed § 1026.20(c), which applies to the ongoing disclosures at each interest rate adjustment that results in a 50 Robert B. Avery, Kenneth P. Brevoort, & Glenn B. Canner, The 2007 HMDA Data, 94 Fed. Reserve Bull. A107 (Dec. 23, 2008). 51 Nick Timiraos & Ruth Simon, Borrowers Face Big Delays in Refinancing Mortgages, Wall St. J., May 9, 2012, at A1, available at: http://online. wsj.com/article/SB100014240527023034590045 77364102737025584.html. 52 74 FR 43232, 43269–73 (Aug. 26, 2009). VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 corresponding payment change, would not require some of the disclosures mandated for the initial interest rate adjustment notices by DFA section 1418. These disclosures include a list of alternatives consumers may pursue, including refinancing, renegotiation of loan terms, payment forbearance, and pre-foreclosure sales; contact information for the appropriate State housing finance agency; and information on how to access a list of government-certified counseling agencies and programs. The Bureau believes it is not necessary to provide this information in § 1026.20(c) notices because much of it will be provided to consumers through other mortgage servicing measures implemented by the Dodd-Frank Act. For example, new TILA section 128(f), which would be implemented by proposed rule § 1026.41 for periodic statements, each billing cycle would provide information on how to contact the appropriate State housing finance authority and how to access a list of government-certified counseling agencies and programs. Also, the early intervention provisions of the 2012 RESPA Servicing Proposal would require this same information as well as examples of alternatives consumers may want to consider. Finally, consumers will have received this information pursuant to § 1026.20(d) the first time their adjustable-rate mortgages adjust. The model forms proposed for § 1026.20(c) and (d) closely track one another and disclose virtually the same information, except for the additional information proposed for § 1026.20(d), as discussed above, and the reference to estimates in the proposed § 1026.20(d) notices. The Bureau believes that harmonizing the two proposed rules regarding ARM interest rate adjustment disclosures would ease the burden of compliance for creditors, assignees, and servicers while providing consumers with consistent information in similar notices. The Bureau is proposing model and sample forms 53 for both § 1026.20(c) and (d). The Bureau worked with Macro to design and test the forms for § 1026.20(d), but did not specifically test § 1026.20(c) notices. See Part II.B above. Because of the similarity in the model forms for both proposed rules, the results of the testing of § 1026.20(d) forms is relevant for proposed 53 The Bureau proposes four model forms for the ARM adjustment notices: Two forms for the § 1026.20(c) ARM payment change notices, one labeled a model form and the other a sample form and two forms for the § 1026.20(d) ARM initial interest rate adjustment notices, one labeled a model form and the other a sample form. See Appendix H–4(D)(1)–(4). PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 § 1026.20(c) as well. Thus, throughout the section-by-section analysis for § 1026.20(c), the Bureau refers to the testing results for § 1026.20(d) where the information and concepts tested are identical in the model forms for both proposed § 1026.20(c) and (d). B. Proposed Rule Regarding Prompt Crediting of Mortgage Payments and Response to Requests for Payoff Amounts DFA section 1464(a) codifies the existing Regulation Z requirements in § 1026.36(c)(1)(i) on prompt crediting of payments. The proposed modifications to § 1026.36(c) would clarify the handling of partial payments. The proposal would limit application of the current prompt crediting provision, existing § 1026.36(c)(1)(i), to full contractual payments (as opposed to all payments), and add a new provision, § 1026.36(c)(1)(ii), to address the handing of partial payments (anything less than a full contractual payment). DFA section 1464(b) generally codifies the existing Regulation Z requirement in § 1026.36(c)(3) to provide payoff statements, with modifications relating to the scope and timing of the requirement, and the need for the request to be written. Proposed modifications to § 1026.36(c) reflect these changes. As part of implementing these changes, the Bureau is proposing a reorganization of the requirements in § 1026.36(c). C. Proposed Rule Regarding Periodic Statements DFA section 1420 establishes new TILA section 128(f), requiring periodic statements for residential mortgage loans to be provided each billing cycle. The statute requires that a creditor, assignee, or servicer disclose certain information in the periodic statement, along with ‘‘such other information as the Bureau may prescribe in regulations.’’ 54 The statute requires the Bureau to develop and prescribe a standard form for this disclosure, taking into account that the required statements may be transmitted in writing or electronically.55 The statute also provides an exemption to the periodic statement requirement for fixed-rate loans where the creditor, assignee, or servicer provides the obligor with a coupon book which provides substantially the same information as the periodic statement.56 54 TILA section 128(f)(1)(H). section 128(f)(2). 56 TILA section 128(f)(3). 55 TILA E:\FR\FM\17SEP3.SGM 17SEP3 tkelley on DSK3SPTVN1PROD with PROPOSALS3 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules Proposed § 1026.41 contains the periodic statement requirement. Paragraph (a) establishes the general requirement for creditors, assignees, or servicers to provide a periodic statement. Paragraphs (b)–(d) establish requirements for the timing, form, content, and layout of the statement. Paragraph (e) sets forth exemptions from the periodic statement requirement. The periodic statement is designed to serve a variety of purposes, including informing consumers of their payment obligations, providing the consumer with information about their mortgage in an easily readable and understandable format, creating a record of the transaction to aid in error detection and resolution, and providing information to certain delinquent borrowers. The Bureau is proposing sample forms in accordance with TILA section 129(f)(2). The Bureau examined several forms used today by various servicers, considered how these forms met the needs of consumers, and identified changes that would benefit consumers. As discussed above in part II.B, the Bureau worked with Macro to design and test sample forms. The proposed periodic statement is designed to provide information to consumers in a format they can easily understand and use. As such, the proposed regulation would require certain related pieces of information to be grouped together. The proposed formatting requirements of the periodic statement are discussed in detail in the section-by-section analysis for proposed § 1026.41(d). The proposed periodic statement is also designed to provide additional information to consumers in several potentially confusing scenarios: Partial payments, payment-option loans, and delinquency. First, the handling of partial payments would be clarified on the periodic statement, both on the transaction activity line and in the past payment breakdown. Additionally, if funds are held in a suspense or unapplied funds account, the proposed rule would require a message on what must be done to release the funds. Second, payments for payment-option loans would be clarified by listing the options in the Amount Due section, and providing details about each of the options in the Explanation of Amount Due section. Finally, delinquent consumers would receive information in several places on the periodic statement. The overdue amount would be stated in the Explanation of Amount Due section, and any fees would be listed in the Transaction Activity section. The breakdown of past payments will help VerDate Mar<15>2010 21:14 Sep 14, 2012 Jkt 226001 the consumer understand how past payments were applied, which can be confusing. Additionally, consumers who are more than 45 days delinquent will have a delinquency information included in the periodic statement providing specific information about their loan. These requirements are discussed in greater detail in the section-by-section analysis on proposed § 1026.41 below. Finally, the proposal contains several exemptions from the periodic statement requirement. One exemption is for fixed-rate loans using coupon books that meet certain requirements, as set forth in TILA 128(f)(3). Another exemption clarifies that timeshares are not subject to the periodic statement requirement as per the definition of ‘‘residential mortgage loan.’’ 57 The Bureau is also proposing exemptions for reverse mortgages and certain small servicers. V. Legal Authority The Bureau is issuing this proposed rule pursuant to its authority under TILA and the Dodd-Frank Act. Section 1061 of the Dodd-Frank Act 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.’’ 58 TILA, Title X of the Dodd-Frank Act, and certain subtitles and provisions of Title XIV of the Dodd Frank Act, are Federal consumer financial laws.59 Accordingly, the Bureau has authority to issue regulations pursuant to TILA, Title X, and the enumerated subtitles and provisions of Tile XIV, including to implement the additions and amendments to TILA’s mortgage servicing requirements made by Title XIV of the Dodd-Frank Act. Sections 1418, 1420 and 1464 of the Dodd-Frank Act create new requirements under TILA in new sections 128A, 128(f), and 129F and 129G, respectively. Section 1418 of the 57 TILA section 103(cc)(5). U.S.C. 5581(a)(1). 59 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), Dodd-Frank section 1400(b), 15 U.S.C. 1601 note (defining ‘‘enumerated consumer laws’’ to include certain subtitles and provisions of Title XIV). 58 12 PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 57329 Dodd-Frank Act amends Regulation Z to require that certain disclosures be provided to consumers with hybrid adjustable-rate mortgages secured by the consumer’s principal residence the first time the interest resets or adjusts. Additionally, the savings clause in TILA section 128A(c) allows the Bureau to require this notice for adjustable-rate mortgage loans that are not hybrid adjustable-rate loans. DFA section 1420 requires that a periodic statement be provided to consumers for each billing cycle of a consumer’s closed-end mortgage secured by a dwelling, except for fixed-rate loans with coupon books containing substantially the same information. The statute requires a list of specific information that must be included in the periodic statement. Additionally, pursuant to TILA section 128(f)(1)(H), the periodic statement must also include such information as the Bureau may require in regulations. DFA section 1464 generally requires the prompt crediting of mortgage payments in connection with consumer credit transactions secured by a consumer’s principal dwelling and an accurate timely response to requests for payoff amounts for home loans. In addition to proposing rules to implement these TILA provisions of the Dodd-Frank Act, the Bureau proposes amending current TILA interest rate adjustment disclosures required by § 1026.20(c) as proposed § 1026.20(c). The proposed rule also relies on the rulemaking and exception authorities specifically granted to the Bureau by TILA and the Dodd-Frank Act, including the authorities discussed below: The 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. The purposes of TILA are ‘‘to assure a meaningful disclosure of credit terms so that the consumers will be able to compare more readily the various credit terms available and avoid the uninformed use of credit’’ and to protect consumers against inaccurate and unfair credit billing practices. TILA section 102(a); 15 U.S.C. 1601(a). E:\FR\FM\17SEP3.SGM 17SEP3 tkelley on DSK3SPTVN1PROD with PROPOSALS3 57330 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules Historically, TILA section 105(a) has served as a broad source of authority for rules that promote the informed use of credit and avoid unfair credit billing practices through required disclosures and substantive regulation of certain practices. Dodd-Frank Act section 1100A additionally clarifies the Bureau’s TILA 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 that the Bureau has 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 60 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, helping consumers avoid the uninformed use of credit, and protecting consumers against inaccurate and unfair credit billing practices. See TILA section 102(a); 15 U.S.C. 1601(a). 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 60 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. VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 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: (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. The Dodd-Frank Act 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 is a Federal consumer financial law. Accordingly, the Bureau proposes to exercise its authority under DFA section 1022(b) to prescribe rules under TILA that carry out the purposes and prevent evasion of those laws. Dodd-Frank Act section 1032. Section 1032(a) of the Dodd-Frank Act governs PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 disclosures and 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 DFA 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 DFA 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 awareness, understanding of, and responses to disclosures or communications about the risks, costs, and benefits of consumer financial products or services. 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, DFA 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. DFA section 1032(b)(2); 12 U.S.C. 5532(b)(2). As discussed in the sectionby-section analysis for proposed §§ 1026.20(d) and 1026.41, the Bureau is proposing model forms for ARM interest rate adjustment notices and periodic E:\FR\FM\17SEP3.SGM 17SEP3 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules statements. As discussed in this notice, the Bureau is proposing these model forms pursuant to its authority under DFA section 1032(b)(1). 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), 15 U.S.C. 1602(cc), 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, DFA section 1405(b) is a broad source of authority to modify the disclosure requirements of TILA. 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). See the section-by-section analysis for each proposed section for further elaboration on legal authority. VI. Section-by-Section Analysis A. Regulation Z tkelley on DSK3SPTVN1PROD with PROPOSALS3 Section 1026.17 General Disclosure Requirements 17(a) Form of Disclosures 17(a)(1) Section 1026.17(a)(1) contains form requirements generally applicable to disclosures under subpart C. The Bureau proposes to make certain modifications to these requirements as applicable to the ARM interest rate VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 adjustment payment change notices under proposed § 1026.20(c) and the initial ARM interest rate adjustment notices under proposed § 1026.20(d). Section 1026.17(a) requires, among other things, that certain disclosures contain only information directly related to that disclosure. Current § 1026.20(c) is not included in the list of disclosures subject to this requirement. Further, commentary to § 1026.17(a)(1) states that the disclosures required by current § 1026.20(c) are not subject to the general segregation requirements under § 1026.17(a)(1). The payment change notice proposed by § 1026.20(c) is intended to inform consumers of upcoming changes to their interest rate and mortgage payments and to give them time to explore alternatives. The Bureau does not believe that the form requirements applicable to current § 1026.20(c) notices are sufficient to highlight and emphasize important information consumers need to make decisions about their adjustable-rate mortgages. Presenting information to consumers separate from other information enhances consumers’ awareness of the material. Therefore, the Bureau proposes to amend § 1026.17(a)(1) and comment 17(a)(1)–2.ii to add proposed § 1026.20(c) to the enumerated disclosures required to contain only information directly related to the disclosure and to require that proposed § 1026.20(c) disclosures be grouped together and segregated from everything else. Other § 1026.17(a)(1) requirements, such as that disclosures be clear and conspicuous, in writing, and provided electronically subject to compliance with Electronic Signatures in Global and National Commerce Act (E-Sign Act) (15 U.S.C. 7001 et seq.), would continue to apply to § 1026.20(c). TILA section 128A provides that the initial ARM interest rate adjustment notices, which the Bureau proposes to implement in proposed § 1026.20(d), be ‘‘separate and distinct from all other correspondence to the consumer.’’ Accordingly, the Bureau proposes to revise § 1026.17(a), to make clear that the proposed § 1026.20(d) disclosures are not subject to the general segregation requirement under that section but rather, pursuant to proposed § 1026.20(d), are required to be separate and distinct from all other correspondence. See comment 20(d) for further discussion of the separate and distinct requirement. Other requirements of § 1026.17(a), such as that disclosures be clear and conspicuous, in writing, and provided PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 57331 electronically subject to compliance with the E-Sign Act, would apply to the proposed § 1026.20(d) disclosures. The proposed application of § 1026.17(a)(1), as modified, to proposed § 1026.20(c) and (d) is authorized, in part, under TILA section 122, which requires that disclosures under TILA be clear and conspicuous, in accordance with regulations of the Bureau. The requirements are further authorized under TILA section 105(a) because the Bureau believes that the proposed form requirements are necessary and proper to effectuate the purposes of TILA to assure a meaningful disclosure of credit terms, avoid the uninformed use of credit, and protect consumers against inaccurate and unfair credit billing practices by ensuring that consumers understand the content of the proposed ARM notices. Moreover, as discussed below, the disclosures proposed under § 1026.20(c) are authorized, among other provisions, under TILA section 128(f)(2), which authorizes the Bureau to develop and prescribe a standard form for the disclosures required under TILA section 128(f). As to proposed § 1026.20(d) disclosures, DFA section 1418, TILA section 128A(b) specifically provides that the disclosures shall be in writing, separate and distinct from all other correspondence. In addition, the Bureau believes, consistent with DFA section 1032(a), that the proposed application of § 1026.17(a)(1), as modified, to § 1026.20(d) will ensure that the features of ARM loans are effectively disclosed to consumers in a manner that allows consumers to understand the information disclosed. The Bureau further believes, consistent with DFA section 1405(a), that it is proper to modify DFA section 1418 to apply the form requirements in proposed § 1026.17(a)(1) to improve consumer awareness and understanding of ARM adjustments. 17(b) Time of Disclosures The Bureau is proposing to revise § 1026.17(b) to add proposed § 1026.20(d) to the list of variable-rate disclosure provisions with special timing requirements. This proposed amendment would alert creditors, assignees, and servicers that, as with proposed § 1026.20(c) payment adjustment notices, there are timing requirements particular to the proposed § 1026.20(d) initial interest rate adjustment notices. E:\FR\FM\17SEP3.SGM 17SEP3 57332 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules 17(c) Basis of Disclosures and Use of Estimates to delete the reference to § 1026.20(c) in comment 18(f)–1. Section 1026.20 Subsequent Disclosure Requirements 17(c)(1) Section 1026.19 Certain Mortgage and Variable-Rate Transactions 20(c) Rate Adjustments Current § 1026.20(c) requires that disclosures be provided to consumers with variable-rate mortgages each time an adjustment results in a corresponding payment change and at least once each year during which an interest rate adjustment is implemented without a corresponding payment change. The current rule does not differentiate between the content required for the annual notice and the notices required each time the interest rate adjustment results in a corresponding payment change. Current § 1026.20(c) requires that adjustment notices disclose the following: (1) The current and prior interest rates for the loan; (2) the index values upon which the current and prior interest rates are based; (3) the extent to which the creditor has foregone any increase in the interest rate; (4) the contractual effects of the adjustment, including the payment due after the adjustment is made, and a statement of the loan balance; and (5) the payment, if different from the payment due after adjustment, that would be required to fully amortize the loan at the new interest rate over the remainder of the loan term. The Bureau proposes two major changes to § 1026.20(c). First, the Bureau proposes eliminating the annual notice sent each year during which an interest rate adjustment is implemented without a corresponding payment change. As explained in more detail below, the Bureau believes that DoddFrank Act amendments to TILA, and the Bureau’s proposed amendments to Regulation Z that would implement those provisions, would provide consumers with much of the information contained in the annual notice thereby greatly minimizing the need for its protections. Second, the proposal updates current § 1026.20(c) by adding disclosures that the Bureau believes will enhance protections for consumers with ARMs. The proposed revisions to § 1026.20(c) also harmonize with the requirements the Bureau is proposing for the initial ARM interest rate adjustment notice under § 1026.20(d), thereby promoting consistency between the Regulation Z ARM provisions. Elimination of annual disclosure. First, proposed § 1026.20(c) eliminates the annual notice requirement under the current rule. The Bureau believes that consumers who receive the current annual notice, such as consumers with ARMs with payment caps, would Section 1026.17(c)(1) requires disclosures to reflect the terms of the legal obligation between the parties. Current comment 17(c)(1)–1 provides that, under this requirement, disclosures generally must reflect the credit terms to which the parties are legally bound as of the outset of the transaction, but that in the case of disclosures required under § 1026.20(c), the disclosures shall reflect the credit terms to which the parties are legally bound when the disclosures are provided. The Bureau proposes revising comment 17(c)(1)–1 to make clear that the disclosures required under proposed § 1026.20(d), like those under proposed § 1026.20(c), shall reflect the credit terms to which the parties are legally bound when the disclosures are provided, rather than at the outset of the transaction. Section 1026.18 Content of Disclosures 18(f) Variable Rate tkelley on DSK3SPTVN1PROD with PROPOSALS3 18(f)–1 Current comment 18(f)–1 clarifies that creditors electing to substitute § 1026.19(b) disclosures for § 1026.18(f)(1) disclosures, as permitted by § 1026.18(f)(1) and (3), may, but need not, also provide disclosures required by current § 1026.20(c). Under current § 1026.20(c), disclosures are permissive in such cases because the § 1026.19(b) substitution is only permitted for variable-rate transactions not secured by the consumer’s principal dwelling or variable-rate transactions secured by the consumers’ principal dwelling, but with a term of one year or less. These transactions are not covered by current § 1026.20(c). Thus, current comment 18(f)–1 does not alter the legal requirements applicable to creditors. The clarification was, however, helpful because current § 1026.20(c) crossreferences § 1026.19(b) and applies to transactions covered by § 1026.19(b). The Bureau proposes to delete this reference to § 1026.20(c) from the comment because it is no longer helpful since neither proposed § 1026.20(c) nor (d) cross-references § 1026.19(b) and those proposed provisions define their scope of coverage without reference to § 1026.19(b). Moreover, proposed § 1026.20(c) or (d) apply to some ARMs with terms of one year or less such that applying the current comment would create an unwarranted exception to the requirement to provide ARM notices to consumers with those types of ARMs. For these reasons, the Bureau proposes VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 19(b) Certain Variable Rate Transactions 19(b)–4 Other Variable-Rate Regulations The Bureau proposes revising comment 19(b)–4 to delete reference to current § 1026.20(c) and (d). Current comment 19(b)–4 explains that transactions in which the creditor is required to comply with and has complied with the disclosure requirements of the variable-rate regulations of other Federal agencies are exempt from the requirements of § 1026.20(c) by virtue of current § 1026.20(d). Consistent with the proposed deletion of current § 1026.20(d), the Bureau proposes revising comment 19(b)–4 to delete reference to current § 1026.20(c) and (d). 19(b)–5.i.C Certain Mortgage and Variable-Rate Transactions The Bureau proposes revising comment 19(b)–5.i.C to cross-reference other commentary that makes clear that proposed § 1026.20(c) and (d) do not apply to ‘‘price-level-adjusted 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. 19(b)(2)(xi)–1 Adjustment Notices Pursuant to current § 1026.19(b)(2)(xi), disclosures regarding the type of information that will be provided in notices of interest rate adjustments and the timing of such notices must be provided to consumers applying for variable-rate transactions secured by the consumer’s principal dwelling with a term greater than one year. Current comment 19(b)(2)(xi)–1 clarifies that these disclosures include information regarding the content and timing of disclosures consumers will receive pursuant to current § 1026.20(c). The Bureau proposes adding reference to proposed § 1026.20(d) to the comment, since those disclosures would be provided to consumers under the Bureau’s proposed rule. The proposed comment also makes conforming changes to the text suggested for describing the ARM notices to reflect the timing and content of the disclosures proposed by § 1026.20(c) and (d). PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 E:\FR\FM\17SEP3.SGM 17SEP3 tkelley on DSK3SPTVN1PROD with PROPOSALS3 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules receive much of the same information in the periodic statement under proposed § 1026.41, discussed below. The proposed periodic statement would provide consumers with comprehensive information about their mortgages each billing cycle. The periodic statement would include some of the same key information provided to consumers under the current § 1026.20(c) annual notice, such as the current interest rate and the date after which that rate would adjust. It also would provide other information that may be useful to consumers who would receive the § 1026.20(c) annual ARM notice, including the existence and amount of any prepayment penalty; allocation of the consumer’s payment by principal, interest, and escrow; the amount of the outstanding principal; contact information for the State housing finance authority; and information to access a list of Federally-certified housing counselors. In light of the amount, type, and frequency of the information the Bureau proposes to provide in the periodic statement to consumers with ARMs that are subject to the current § 1026.20(c) annual ARM interest rate notice, the Bureau proposes to eliminate the requirement for the annual notice as duplicative and as potentially contributing to information overload that could deflect consumer attention away from the information such consumers would receive in other required disclosures. The Bureau solicits comments on the need, value, or use of retaining the annual notice required under current § 1026.20(c) for consumers whose ARM interest rates adjust during the course of a year without resulting in corresponding payment changes. The Bureau proposes to delete comments 20(c)(1)–1 and 20(c)(4)–1 which, among other things, address the content of the § 1026.20(c) annual notice the Bureau is proposing to eliminate. Current comment 20(c)(1)–1 also explains, among other things, the meaning of the terms ‘‘current’’ and ‘‘prior’’ rates and that in disclosing all other rates that applied during the period between notices, the creditor may disclose a range of the highest and lowest rates during that year period. Current comment 20(c)(4)–1, among other things, defines the term loan ‘‘balance’’ and explains that a ‘‘contractual effect’’ of a rate adjustment includes disclosure of any change in the term or maturity of the loan if the change resulted from the rate adjustment. The Bureau also proposes deletion of these current comments as they relate to the recurring disclosures VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 that would be required by proposed § 1026.20(c) for interest rate adjustments resulting in a corresponding payment change. The Bureau proposes to replace these comments with the new commentary discussed below. Amendment of payment change disclosure. Second, proposed § 1026.20(c) would amend existing § 1026.20(c) as it relates to interest rate adjustments that result in a corresponding payment change. The proposal retains much of the content required in the current notice and also would require disclosure of additional information that the Bureau believes would help consumers better understand and manage their adjustable-rate mortgages. The proposed revisions to current § 1026.20(c) harmonize with the initial ARM interest rate adjustment notice proposed by § 1026.20(d). The Bureau believes that promoting consistency between the ARM disclosure provisions of § 1026.20(c) and (d) would reduce compliance burdens on industry and minimize consumer confusion. Creditors, assignees, and servicers. The Bureau also proposes to amend § 1026.20(c) to provide that it applies to creditors, assignees, and servicers. Current § 1026.20(c) applies to creditors and existing comment 20(c)–1 clarifies that the requirements of § 1026.20(c) also apply to subsequent holders, i.e., assignees. The Bureau’s proposal provides that § 1026.20(c) would apply to servicers, as well as to creditors and assignees. Proposed comment 20(c)–1 clarifies that a creditor, assignee, or servicer that no longer owns the mortgage loan or the mortgage servicing rights is not subject to the requirements of § 1026.20(c). As discussed below, proposed § 1026.20(c) is authorized under, among other authorities, TILA section 128(f), which applies to creditors, assignees, and servicers. The proposal is consistent with proposed § 1026.20(d) such that both proposed § 1026.20(c) and (d) would apply to creditors, assignees and servicers. The Bureau believes that applying § 1026.20(c) to creditors and assignees, but not servicers, would compromise consumers’ recourse in the case of a violation of § 1026.20(c). Many creditors and assignees do not service the loans they own and instead sell the mortgage servicing rights to a third party. The servicer is the party with which consumers have contact on an ongoing basis regarding their mortgages. Consumers send their payments to the servicer and communicate with the servicer regarding any questions or problems with their mortgage that may PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 57333 arise. Where the owner and the servicer are different entities, consumers may not know the identity of the owner and may not even realize that the servicer is not the owner of their mortgage. Moreover, it can be difficult for consumers to ascertain the identity of the creditor or assignee, even though servicers would be required to identify the owner of a mortgage under rules proposed pursuant to DFA section 1463. Thus, in the case of a violation of proposed § 1026.20(c), consumers should be able to seek relief against the servicer as the primary party from whom they receive service and with whom they maintain communication regarding their mortgages. See below, section 20(d), for a discussion of application of proposed § 1026.20(d) initial ARM interest rate adjustment notices to assignees. The same rationale applies to proposed § 1026.20(c) ARM payment adjustment notices. Proposed comment 20(c)–1 explains that any provision of subpart C that applies to the disclosures required by § 1026.20(c) also applies to creditors, assignees, and servicers. This is the case even where the other provisions of subpart C refer only to creditors. For the reasons discussed above, the Bureau proposes that the requirements of other regulations that apply to the § 1026.20(c) ARM payment adjustment notices apply to servicers as well as to creditors and assignees. The proposal also would delete current comment 20(c)–1, which, among other things, refers to subsequent holders, in favor of consistent usage of the term assignee in proposed § 1026.20(c) and (d). It would also delete comment 20(c)–3 as duplicative of the § 1026.17(c)(1) requirement that the disclosures reflect the terms of the parties’ legal obligations. Conversions. Proposed § 1026.20(c) also applies to ARMs converting to fixed-rate mortgages when the adjustment to the interest rate results in a corresponding payment change. Providing this notice would alert consumers to their new interest rate and payment following conversion from an ARM to a fixed-rate mortgage. Proposed comment 20(c)–2 explains that, in the case of an open-end account converting to a closed-end adjustable-rate mortgage, § 1026.20(c) disclosures are not required until the implementation of the first interest rate adjustment that results in a corresponding payment change postconversion. Under the proposed rule, this conversion is analogous to consummation. Thus, like other ARMs subject to the requirements of proposed § 1026.20(c), disclosures for these types of converted ARMs would not be E:\FR\FM\17SEP3.SGM 17SEP3 tkelley on DSK3SPTVN1PROD with PROPOSALS3 57334 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules required until the first interest rate adjustment following the conversion which results in a corresponding payment change. The proposed rule is consistent with existing commentary and proposed § 1026.20(d) regarding conversions. See current comment 20(c)–1. Authority. The Bureau proposes to amend § 1026.20(c) pursuant to its authority under TILA section 105(a). For the reasons discussed in the section-bysection analysis for each of the proposed amendments to § 1026.20(c), the Bureau believes that the proposed amendments are necessary and proper to effectuate the purposes of TILA to assure a meaningful disclosure of credit terms, avoid the uninformed use of credit, and protect consumers against inaccurate and unfair credit billing practices. Proposed § 1026.20(c) also is authorized under TILA section 128(f), which requires that certain information enumerated in the statute be provided to consumers every billing cycle in a periodic statement and also confers on the Bureau the authority to require periodic disclosure of ‘‘[s]uch other information as the Bureau may prescribe in regulations.’’ Proposed § 1026.20(c) is further authorized under DFA section 1405(b), which permits the Bureau to modify disclosure requirements where such modification is in the interest of consumers and the public. Although TILA section 128(f) authorizes the Bureau to require that the content for the § 1026.20(c) ARM notices be included in the periodic statement, the Bureau believes, for the reasons set forth above and below, that consumers would be better served if this information was provided as a separate disclosure. Under proposed § 1026.17(a), the proposed § 1026.20(c) ARM payment adjustment notice would have to be provided separate and distinct from the periodic statement. The disclosures required by proposed § 1026.20(c), however, may be provided to consumers together with the periodic statement, depending on the mode of delivery, in the same envelope or as an additional attachment to the email. The Bureau also believes that the interest of consumers and the public interest would be better served by receiving the § 1026.20(c) ARM notice, within the time frame discussed below, each time the ARM interest rate adjusts resulting in a corresponding payment change, rather than with each billing cycle. VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 20(c)(1) Coverage of Rate Adjustment Disclosures 20(c)(1)(i) In General Proposed § 1026.20(c)(1) defines an adjustable-rate mortgage, for purposes of § 1026.20(c), as a closed-end consumer credit transaction secured by the consumer’s principal dwelling in which the annual percentage rate may increase after consummation. Current § 1026.20(c) requires disclosures only for adjustments to the interest rate in variable-rate transactions subject to § 1026.19(b), which is limited to loans secured by the consumer’s principal dwelling with a term of greater than one year. The Bureau proposes deleting the cross-reference to § 1026.19(b), thereby expanding the scope of proposed § 1026.20(c) to include loans with terms of one year or less. Proposed § 1026.20(c)(1)(i) would replace current § 1026.20(c) and comment 20(c)–1 with regard to which loans are subject to the interest rate adjustment disclosures. There is one type of short-term ARM that the Bureau proposes to except from the requirements of § 1026.20(c): Construction loans with terms of one year or less. See section 20(c)(1)(ii) below for a full discussion of this proposed exception for construction ARMs with terms of one year or less. The Bureau solicits comment on whether there are other ARMs with terms of less than one year and whether the proposed 60-day minimum notice period is appropriate for such loans. See section 20(c)(2) below for a full discussion of the timing proposed for § 1026.20(c). If the 60-day period is not appropriate, the Bureau solicits comment on what period would be appropriate that would also provide consumers with sufficient notice of a payment change. This proposal regarding coverage is consistent with the statutory requirements of TILA section 128A and proposed § 1026.20(d) in that those provisions generally apply to all ARMs, regardless of term length. Thus, the proposal to expand § 1026.20(c) to ARMs with terms of one year or less would harmonize the coverage of the two types of ARM adjustment notices, thereby ensuring that both § 1026.20(d) notices and § 1026.20(c) notices, when required, are provided to the same consumers. The Bureau proposes using the terms ‘‘adjustable-rate mortgage’’ or ‘‘ARM’’ to replace the term ‘‘variable-rate transaction’’ in current § 1026.20(c). Proposed comment 20(c)(1)(i)–1 clarifies that the term ‘‘variable-rate transaction,’’ as used in § 1026.19(b) and elsewhere in Regulation Z, is synonymous with the term ‘‘adjustable-rate mortgage’’ or PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 ‘‘ARM’’, except where specifically distinguished. The Bureau proposes this revision because ‘‘adjustable-rate mortgage’’ or ‘‘ARM’’ are the terms commonly used for mortgages covered by current and proposed § 1026.20(c). Proposed comment 20(c)(1)(i)–1 also clarifies that the requirements of § 1026.20(c)(1)(i) are not limited to transactions financing the initial acquisition of the consumer’s principal dwelling, but also would apply to other closed-end ARM transactions secured by the consumer’s principal dwelling, consistent with current comment 19(b)– 1 and current § 1026.20(c). 20(c)(1)(ii) Exceptions Proposed § 1026.20(c)(1)(ii) sets forth two exceptions to the disclosure requirements of § 1026.20(c). These exceptions apply to: (1) Construction loans with terms of one year or less; and (2) the first adjustment to an ARM if the first payment at the adjusted level is due within 210 days after consummation and the actual, not estimated, new interest rate was disclosed at consummation, in the initial ARM interest rate adjustment notice that would be required by proposed § 1026.20(d). Proposed comments 20(c)(1)(ii)–1 and –2 provide further explanation. Proposed § 1026.20(d) also would except the same construction loans. As discussed in more detail below in connection with the notice required for an initial ARM interest rate adjustment under § 1026.20(d), the Bureau also considered, but decided against, permitting or requiring small creditors, assignees, and servicers to include in the periodic statement the information required for the first payment change notice under proposed § 1026.20(c). The Bureau also considered this option with regard to all notices that small entities would be required to provide to consumers under proposed § 1026.20(c). As discussed further below, the Bureau solicits comments from small entities— and from creditors, assignees, and servicers in general—as to whether small entities or all creditors, assignees, and servicers should be permitted or required to provide the information required in the first payment change notices under proposed § 1026.20(c) in the periodic statement instead of as a separate ARM notice and whether this should be done for all § 1026.20(c) notices. Regarding the first exception the Bureau proposes, construction loans generally have short terms of six months to one year and are subject to frequent interest rate adjustments, usually monthly or quarterly. The construction E:\FR\FM\17SEP3.SGM 17SEP3 tkelley on DSK3SPTVN1PROD with PROPOSALS3 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules period usually involves several disbursements of funds at times and in amounts that are unknown at the beginning of that period. The consumer generally pays only accrued interest until construction is completed. The creditor, assignee, or servicer, in addition to disbursing payments in stages, closely monitors the progress of construction. Generally, at the completion of the construction, the construction loan is converted into permanent financing in which the loan amount is amortized just as in a standard mortgage transaction. See comment 17(c)(6)–2 for additional information on construction loans. The frequent interest rate adjustments, multiple disbursements of funds, short loan term, and on-going communication between the creditor, assignee, or servicer and consumer, distinguish construction loans from other ARMs. These loans are meant to function as bridge financing until construction is completed and permanent financing can be put in place. Consumers with construction ARM loans are not at risk of payment shock like other ARMs where interest rates change less frequently. Moreover, given the frequency of interest rate adjustments on construction loans, creditors, assignees, or servicers would have difficulty complying with the proposed requirement to provide the notice to consumers 60 to 120 days before payment at a new level is due for each adjustment resulting in a corresponding payment change. For these reasons, providing notices under § 1026.20(c) for these loans would not provide a meaningful benefit to the consumer nor improve consumers’ awareness and understanding of their construction loans with terms of one year or less. Proposed comment 20(c)(1)(i)–1 applies the standards in comment 19(b)–1 for determining the term of a construction loan. The second exception, for the first adjustment to an ARM causing a payment change if the first payment at the adjusted level is due within 210 days after consummation, would apply only if the exact interest rate, not an estimate, is disclosed at consummation. For ARMs adjusting within six months of consummation, i.e., 210 days before the first payment is due at the new level, the disclosures proposed by § 1026.20(d) must be provided at consummation. The recency of consummation obviates the need for the § 1026.20(c) notice in this circumstance because consumers would have been apprised of the upcoming adjustment and payment change just months prior to its occurrence and their mortgages VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 would be so new as to not require the alerts in the notice regarding pursuing alternatives. Thus, providing § 1026.20(c) disclosures in these circumstances would be duplicative, not contribute to consumer awareness and understanding, and not provide a meaningful benefit to consumers. Proposed comment 20(c)(1)(ii)–3 discusses other loans to which the proposed rule does not apply. Proposed comment 20(c)(1)(ii)–3 is consistent with proposed comment 20(d)(1)(ii)–2 with regard to the loans which are not subject to the proposed ARM disclosure rules. Certain Regulation Z provisions treat some of these loans as variable-rate transactions, even if they are structured as fixed-rate transactions. The proposed comment clarifies that, for purposes of § 1026.20(c), the following loans, if fixed-rate transactions, are not ARMs and therefore not subject to ARM notices pursuant to § 1026.20(c): Shared-equity or shared-appreciation mortgages; price-level adjusted 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; graduated-payment mortgages or steprate transactions; renewable balloonpayment instruments; and preferred-rate loans. The particular features of these types of loans may trigger interest rate or payment changes over the term of the loan or at the time the consumer pays off the final balance. However, these changes are based on factors other than a change in the value of an index or a formula. Because the enumerated loans are not ARMs they are not covered by proposed § 1026.20(c) and require no disclosures under this section. Proposed and current § 1026.20(c) are generally consistent with regard to the ARMs to which they do not apply. The principal difference is that current § 1026.20(c) does apply to renewable balloon-payment instruments and preferred-rate loans, even if they are structured as fixed-rate transactions while proposed § 1026.20(c) would not apply to such loans. See § 1026.19(b) and comment 19(b)–5.i.A and B. Also, as discussed above, current § 1026.20(c) does not apply to loans with terms of one year or less. This category includes construction loans, which are excepted from coverage under proposed § 1026.20(c). Logically, the Bureau’s proposed exception for initial § 1026.20(c) ARM adjustments if the first payment at the adjusted level is due within 210 days of consummation is inapplicable to the current rule since proposed § 1026.20(d) is not yet implemented to replace the current PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 57335 § 1026.20(c) disclosures provided at consummation. Like proposed comment 20(c)(1)(ii)–3, current comment 20(c)–2 clarifies that § 1026.20(c) does not apply to sharedequity or shared-appreciation mortgages or to price-level adjusted or other such indexed mortgages. The current rule cross-references § 1026.19(b) and applies to all variable-rate transactions covered by that rule. Comment 19(b)–4 explains that graduated-payment mortgages and step-rate transactions without variable-rate features are not subject to § 1026.19(b). Therefore, like the proposed rule, such loans are not subject to current § 1026.20(c). The current rule does not mention renewable balloon-payment instruments and preferred-rate loans, but current § 1026.20(c) applies to these loan products through the rule’s crossreference to § 1026.19(b) and therefore to comment 19(b)–5.i.A and B. As discussed above, these loans are not adjustable-rate mortgages and the Bureau does not believe that it is appropriate to require the disclosures in proposed § 1026.20(c) for such loans. The particular features of these types of loans may trigger interest rate or payment changes over the term of the loan or at the time the consumer pays off the final balance. However, these changes are based on factors other than a change in the value of an index or a formula. For example, whether or when the interest rate will adjust for a preferred-rate loan with a fixed interest rate is likely not knowable to the creditor, assignee, or servicer 60 to 120 days in advance of the due date for the first payment at a new level after the adjustment. This is because the loss of the preferred rate is based on factors other than a formula or change in the value of an index agreed to at consummation. Like the Bureau’s proposed rule, the Board also proposed to remove renewable balloon-payment instruments and preferred-rate loans from coverage under § 1026.20(c) in its 2009 Closed-End Proposal.61 20(c)(2) Timing and Content of Rate Adjustment Disclosures Proposed § 1026.20(c)(2) would require that ARM disclosures be provided to consumers 60 to 120 days before payment at a new level is due. Under current § 1026.20(c), notices must be provided to consumers 25 to 120 days before payment at a new level is due. Thus, the proposed rule would increase the minimum advance notice to consumers from 25 to 60 days before a new payment amount is due. There are 61 74 E:\FR\FM\17SEP3.SGM FR 43232, 43264, 43387 (Aug. 26, 2009). 17SEP3 tkelley on DSK3SPTVN1PROD with PROPOSALS3 57336 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules two circumstances under which the rule proposes a different time frame, which are discussed below. Proposed comment 20(c)(2)–1 would replace current comment 20(c)–1 regarding timing. Current and proposed § 1026.20(c) disclosures provide consumers with their actual new interest rate and payment. The disclosures proposed by § 1026.20(d) likely would provide estimates of these amounts. The longer time frame proposed by the rule is intended to give consumers adequate time to refinance or take other actions based on these exact amounts, if they are not able to make higher payments. The current minimum time of 25 days does not give consumers sufficient time to pursue meaningful alternatives such as refinancing, home sale, loan modification, forbearance, or deed in lieu of foreclosure. In the current market, ‘‘it now takes the nation’s biggest mortgage lenders an average of more than 70 days to complete a refinance.62 Even if consumers elect not to refinance or pursue other alternatives, the proposed rule would give them more time to adjust their finances to the actual amount of an increase in their mortgage payments. The Bureau believes that for most adjustable-rate mortgages, the proposed 60-day minimum time frame would provide sufficient time for creditors, assignees, and servicers to comply with the proposed rule. Through outreach to servicers of adjustable-rate mortgages it appears that, for most ARMs, servicers know the index value from which the new interest rate and payment are calculated at least 45 days before the date of the interest rate adjustment. Because interest generally is paid one month in arrears, this mean that, for most ARMs, servicers know the index value approximately 75 days before the due date of the first new payment, depending on the number of days in the month during which interest begins accruing at the new rate. Creditors, assignees, and servicers generally refer to the date the adjusted interest rate goes into effect as the ‘‘change date.’’ The ‘‘look-back period’’ is the number of days prior to the change date on which the index value will be selected which serves as the basis for the new interest rate and payment. In general, interest rate change dates occur on the first of the month to correspond with payment due dates. Thus, the due date for the new payment generally falls on the first of the month following the change date. Based on outreach conducted by the Bureau, it appears that small servicers 62 Timiraos & Simon, supra note 52. VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 often send out the payment change notices required by § 1026.20(c) on the same day the index value is selected. In that case, for a loan with a 45-day lookback period, the notice is ready 45 days before the change date and, with an approximately 30-day billing cycle between the change date and the date payment at the new level is due, the interest rate adjustment notice can be provided to the consumer approximately 75 days before the new payment is due. Under these circumstances, the servicer could comfortably comply with a rule requiring that notice be provided to consumers 60 days before the payment at a new level is due. On the other hand, many large creditors, assignees, or servicers conduct what is referred to as a ‘‘verification period’’ before sending out the notices required by § 1026.20(c). This verification period generally takes anywhere from three to ten days and involves confirming the index rate and other quality control measures to insure the notices are correct.63 In these cases, for a loan with a 45-day look-back period, the payment change notices can be provided between approximately 42 and 35 days prior to the change date, which is either 70 to 73 or 63 to 66 days before the new payment is due, depending on the verification period used and the length of the billing cycle. Under these circumstances, payment change notices could be provided to consumers within the 60-day period, even assuming a verification period of up to thirteen days. For loans with the shortest verification period of three days, the payment change notice could be provided to consumers within 70 days prior to payment due at a new level. In sum, it appears that for most ARMs, creditors, assignees, or servicers could comply with the 60-day time period proposed by the Bureau. The Bureau solicits comment about this proposed timing of the § 1026.20(c) notice. Some ARMs have look-back periods shorter than 45 days. For example, ARMs backed by the FHA and VA often have look-back periods of 15 or 30 days. For some ARMs, the calculation date is the first business day of the month that precedes the effective date of the interest rate change. Since the first day of that month may not fall on a business day, the look-back period may be less 63 No creditor, assignee, or servicer contacted by the Bureau used a system employing an automatic feed of information from the publisher of an index source. All data was entered and verified manually. PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 than 30 days, excluding any verification period. In two circumstances, the Bureau is proposing a different time period from the proposed 60 to 120 days. The Bureau proposes that existing ARMs with look-back periods of less than 45 days that were originated before a specified date provide the notices required under this proposed rule within 25 to 120 days before payment at a new level is due. The Bureau proposes that the specified date be July 21, 2013. The Bureau understands that the creditors, assignees, or servicers of such loans would not be able to comply with the 60- to 120-day time frame proposed in § 1026.20(c). Although this time frame would shorten the advance notice provided to some consumers, the Bureau is proposing to grandfather these ARMs in order to prevent altering existing contractual agreements regarding the look-back period. Thus, going forward, ARMs must be structured to permit compliance with the proposed 60- to 120-day time frame. The Bureau solicits comment on whether it should grandfather existing ARMs with lookback periods of less than 45 days. The Bureau also seeks comment on whether July 21, 2013 is an appropriate time frame for grandfathering existing ARMs with look-back periods of less than 45 days or if another time period would be more appropriate and why. If not, the Bureau seeks comment on what would be an appropriate time frame for the expiration of the grandfathering period. The Bureau also solicits comments on whether other adjustable-rate mortgages should be allowed to continue with a 25- to 120-day period. The Bureau also proposes to alter the timing requirements for ARMs that adjust for the first time within 60 days of consummation where the actual, not estimated, new interest rate was not disclosed at consummation. (If the actual interest rate was disclosed at consummation, such loans would be excepted from the rule pursuant to proposed § 1026.20(c)(1)(ii)). The creditors, assignees, or servicers of such loans would not be able to comply with the proposed 60-day time frame. For such loans, the disclosures proposed by § 1026.20(c) must be provided to consumers as soon as practicable, but not less than 25 days before a payment at a new level is due. The Bureau solicits comment about the feasibility of applying the proposed 60-day period to ARMs that have lookback period of less than 45 days. The Bureau solicits comments about whether a look-back period of 45 days or longer is feasible going forward for loans that currently use shorter look- E:\FR\FM\17SEP3.SGM 17SEP3 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules back periods and, if not, why not. The Bureau solicits comments on the extent, if any, to which the relative length of the look-back period may affect the interest rate risk for the creditor, assignee, or servicer. For all ARMs, the Bureau solicits comments on the operational changes that would be required to provide § 1026.20(c) notices at least 60 days before payment at a new level is due. Comment is requested on any factors that would hinder compliance with this time frames. In light of technological and other advances since the promulgation of current § 1026.20(c) in 1987, the Bureau also solicits comment on whether, and if so why, lengthy verification periods are necessary and on the feasibility of reducing the length of these verification periods. tkelley on DSK3SPTVN1PROD with PROPOSALS3 20(c)(2)(i) Statement Regarding Changes to Interest Rate and Payment For interest rate adjustments resulting in corresponding payment changes, proposed § 1026.20(c)(2)(i)(A) would inform consumers that, under the terms of their adjustable-rate mortgage, the specific period in which their interest rate stayed the same will end on a certain date and that their interest rate and mortgage payment will change on that date. This disclosure is similar to the pre-consummation disclosures provided to consumers pursuant to current § 1026.19(b)(2)(i) and § 1026.37(i) as recently proposed by the 2012 TILA–RESPA Proposal. Under proposed § 1026.20(c)(2)(i)(B), the creditor, assignee, or servicer must include in the disclosure the date of the impending and future interest rate adjustments. Proposed § 1026.20(c)(2)(i)(C) would require disclosure of any other changes to the loan taking place on the same day of the rate adjustment, such as changes in amortization caused by the expiration of interest-only or payment-option features. The first ARM model form tested did not contain the proposed statement informing consumers of impending and future changes to their interest rate and the basis for these changes. Although participants understood that their interest rate was adjusting and this would affect their payment, they did not understand that these changes would occur periodically subject to the terms of their mortgage contract. Inclusion of this statement in the second round of testing successfully resolved this confusion. All but one consumer tested in round two and three of testing understood that, under the scenario VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 presented to them, their interest rate would change annually.64 20(c)(2)(ii) Table With Current and New Interest Rates and Payments Proposed § 1026.20(c)(2)(ii) would require disclosure of the following information in the form of a table: (A) The current and new interest rates; (B) the current and new periodic payment amounts and the date the first new payment is due; and (C) for interest-only or negatively- mortizing payments, the amount of the current and new payment allocated to interest, principal, and property taxes and mortgage-related insurance, as applicable. The information in this table would appear within the larger table containing all the required disclosures. This table would follow the same order as, and have headings and format substantially similar to, those in the table in Forms H–4(D)(1) and (2) in Appendix H of subpart C. The Bureau learned through consumer testing that, when presented with information in a logical order, consumers more easily grasped the complex concepts contained in the proposed § 1026.20(c) notice. For example, the form begins by informing consumers of the basic purpose of the notice: Their interest rate is going to adjust, when it will adjust, and the adjustment will change their mortgage payment. This introduction is immediately followed by a visual illustration of this information in the form of a table comparing consumers’ current and new interest rates. Based on consumer testing, the Bureau believes that consumer understanding is enhanced by presenting the information in a simple manner, grouped together by concept, and in a specific order that allows consumers the opportunity to build upon knowledge gained. For these reasons, the Bureau proposes that creditors, assignees, or servicers disclose the information in the table as set forth in Forms H–4(D)(1) and (2) in Appendix H. Proposed § 1026.20(c)(2)(ii) replaces current § 1026.20(c)(1) and (4), but retains the obligation to disclose the current and new interest rates and the amount of the new payment. Proposed § 1026.20(c)(2)(ii)(A) also would require disclosure of the date when the consumer must start paying the new payment and proposed comment § 1026.20(c)(2)(ii)(A)–1 clarifies that the new interest rate must be the actual rate, not an estimate. Proposed rule § 1026.20(c)(2)(ii) also replaces the language ‘‘prior’’ and ‘‘current’’ in the current rule with the terms ‘‘current’’ 64 Macro PO 00000 Report, supra note 38, at vii. Frm 00021 Fmt 4701 Sfmt 4702 57337 and ‘‘new,’’ respectively, and deletes comment 20(c)(2)–1 which, among other things, uses the terms ‘‘prior’’ and ‘‘current.’’ This change is designed to make clear that ‘‘current’’ means the interest rate and payment in effect prior to the interest rate adjustment and ‘‘new’’ means the interest rate and payment resulting from the interest rate adjustment. Proposed comment 20(c)(2)(ii)(A)–1 defines the term ‘‘current’’ interest rate as the one in effect on the date of the disclosure. This more succinct definition replaces the lengthy definition of ‘‘prior interest rates’’ in current comment 20(c)(1) as the interest rate disclosed in the last notice, as well as all other interest rates applied to the transaction in the period since the last notice, or, if there had been no prior adjustment notice, the interest rate applicable at consummation and all other interest rates applied to the transaction in the period since consummation. In all rounds of testing, consumers were presented with model forms with tables depicting a scenario in which the interest rate and payment would increase as a result of the adjustment. All participants in all rounds of testing understood that their interest rate and payment were going to increase and when these changes would occur.65 Current ARM notices are not required to show the allocation of payments among principal, interest, and escrow accounts for any ARM. The Bureau proposes including this information in the table for interest-only and negatively-amortizing ARMs. The Bureau believes this information would help consumers better understand the risk of these products by demonstrating that their payments would not reduce the principal. The Bureau also believes providing the payment allocation would help consumers understand the effect of the interest rate adjustment, especially in the case of a change in the ARM’s features coinciding with the interest rate adjustment, such as the expiration of an interest-only or payment-option feature. Since payment allocation may change over time, the proposed rule would require disclosure of the expected payment allocation for the first payment period during which the adjusted interest rate would apply. The allocation of payment disclosure was tested in the third round of testing. The rate adjustment notice tested showed the following scenario: The first adjustment of a 3/1 hybrid ARM—an ARM with a fixed interest rate for three years followed by annual interest rate 65 Id. E:\FR\FM\17SEP3.SGM 17SEP3 tkelley on DSK3SPTVN1PROD with PROPOSALS3 57338 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules adjustments—with interest-only payments for the first three years. On the date of the adjustment, the interestonly feature would expire and the ARM would become amortizing. Only about half of participants understood that their payments were changing from interest-only to amortizing. Participants generally understood the concept of allocation of payments but were confused by the table in the notice that broke out principal and interest for the current payment, but combined the two for the new amount. As a result, this table was revised so that separate amounts for principal and interest were shown for all payments.66 The Bureau recognizes that certain Dodd-Frank Act amendments to TILA will restrict origination of nonamortizing and negatively-amortizing loans. For example, TILA section 129C and the 2011 ATR (Ability to Repay) Proposal which would implement that provision, generally require creditors to determine that a consumer can repay a mortgage loan and include a requirement that these determinations assume a fully-amortizing loan. Thus, this law and regulation, when finalized, will restrict the origination of risky mortgages such as interest-only and negatively-amortizing ARMs. Other Dodd-Frank amendments to TILA, such as the proposed periodic statement provisions discussed below, will provide payment allocation information to consumers for each billing cycle. Thus, consumers who currently have interest-only or negatively-amortizing loans or may obtain such loans in the future will receive information about the interestonly or negatively-amortizing features of their loans through the payment allocation information in the periodic statement. Also, as noted above, consumer testing showed that participants were confused by the allocation table. Since the Bureau was not able to test a revised version of the model form to see if it rectified the confusion caused by the allocation table or if the concepts of interest-only and negatively-amortizing ARMs themselves are the source of the confusion, the Bureau is uncertain of the value of disclosing this information to consumers in the ARM interest rate adjustment notice. In view of these changes to the law and the outcome of consumer testing, the Bureau solicits comments on whether to include allocation information for interest-only 66 Id. at vii–viii. This revision to the allocation disclosure, which is identical in the proposed § 1026.20(c) and (d) notices, was made after the third round of testing of the § 1026.20(d) notice, and therefore was not tested with consumers. VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 and negatively-amortizing ARMs in the table proposed above. 20(c)(2)(iii) Explanation of How the Interest Rate Is Determined Proposed § 1026.20(c)(2)(iii) would require the ARM disclosures to explain how the interest rate is determined. Consumer testing revealed that consumers generally have difficulty understanding the relationship of the index, margin, and interest rate.67 Therefore, the Bureau is proposing a relatively brief and simple explanation that the new interest rate is calculated by taking the published index rate and adding a certain number of percentage points, called the ‘‘margin.’’ Proposed § 1026.20(c)(2)(iii) would also require disclosure of the specific amount of the margin. The proposed explanation of how the consumer’s new interest rate is determined, such as adjustment of the index by the addition of a margin, mirrors the pre-consummation disclosure required around the time of application by current § 1026.19(b)(2)(iii) and TILA section 128A requirements for initial interest rate disclosures. It also parallels the preconsummation disclosure of the index and margin proposed in the 2012 TILA– RESPA Proposal. Proposed § 1026.20(c) also would require disclosure of the name and published source of the index or formula, as required in other disclosures by § 1026.19(b)(2)(ii) and TILA section 128A. The proposed rule would replace the current § 1026.20(c)(2) required disclosure of the index values upon which the ‘‘current’’ and ‘‘prior’’ interest rates are based. The Bureau believes that providing consumers with index values is less valuable than providing them with their actual interest rates. Current comment 20(c)(2)–1, which addresses the requirement to disclose current and prior interest rate, would also be deleted. Consumer testing indicated that the explanation helped consumers better understand the relationship between interest rate, index, and margin. It also helped dispel the notion held by many consumers in the initial rounds of testing that lenders subjectively determined their new interest rate at each adjustment.68 The Bureau believes that its proposed rule and forms strike an appropriate balance between providing consumers with key information necessary to understand the basic interest rate adjustment of their 67 Id. 20(c)(2)(iv) Rate Limits and Unapplied Carryover Interest Proposed § 1026.20(c)(2)(iv) would require the disclosure of any limits on the interest rate or payment increases at each adjustment and over the life of the loan. It also would require disclosure of the extent to which the creditor has foregone any increase in the interest rate due to a limit, called unapplied carryover interest. Disclosure of rate limits is not required by the current rule. The Bureau believes that knowing the limitations of their ARM rates and payments would help consumers understand the consequences of interest rate adjustments and weigh the relative benefits of pursuing alternatives. For example, if an adjustment causes a significant increase in the consumer’s payment, knowing how much more the interest rate or payment could increase could help inform a consumer’s decision on whether or not to seek alternative financing. Both proposed § 1026.20(c)(2)(iv) and current § 1026.20(c)(3) require disclosure of any foregone interest rate increase. Unlike the current rule, the proposed rule would require an explanation in the ARM payment change notice that the additional interest was not applied due to a rate limit and provide the earliest date such foregone interest may be applied. Proposed comment 20(c)(2)(iv)–1 regarding unapplied interest closely parallels, and would replace, current comment 20(c)(3)–1. The proposed comment explains that disclosure of foregone interest would apply only to transactions permitting interest rate carryover. It further explains that the amount of the interest increase foregone is the amount that, subject to rate caps, can be added to future interest rate adjustments to increase, or offset decreases in, the rate determined according to the index or formula. Consumers had difficulty understanding the concept of interest rate carryover when it was introduced during the third round of testing. This difficulty may have been due to the simultaneous introduction of other complex notions, such as interest-only or negatively-amortizing features and the allocation of interest, principal, and escrow payments for such loans. In response, the Bureau has simplified the explanation of carryover interest.69 The Bureau recognizes that the disclosure of rate limits and unapplied at viii. 68 Id. PO 00000 adjustable-rate mortgages without overloading consumers with complex and confusing technical information. Frm 00022 69 Id. Fmt 4701 Sfmt 4702 E:\FR\FM\17SEP3.SGM at viii–ix. 17SEP3 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS3 carryover interest provide information that may help consumers better understand their ARMs. However, the Bureau is considering whether the help this information may provide outweighs its distraction from other more key information. Also, as explained above, consumers had difficulty understanding the concept of carryover interest and the Bureau does not want this difficulty to diminish the effectiveness of the proposed § 1026.20(c) disclosures. The Bureau solicits comment on whether to include rate limits and unapplied carryover interest in the proposed § 1026.20(c) disclosures. 20(c)(2)(v) Explanation of How the New Payment Is Determined Proposed § 1026.20(c)(2)(v) would require ARM disclosures to explain how the new payment is determined, including (A) the index or formula, (B) any adjustment to the index or formula, such as by addition of the margin or application of previously foregone interest, (C) the loan balance, and (D) the length of the remaining loan term. This explanation is consistent with the disclosures provided at the time of application pursuant to § 1026.19(b)(2)(iii). It is also consistent with the TILA section 128A requirement to disclose the assumptions upon which the new payment is based, which the Bureau proposes to implement in proposed § 1026.20(d), and thus promotes consistency among Regulation Z ARM disclosures. The current rule, as explained in comment 20(c)(4)–1, which the proposed rule would delete, requires disclosure of the contractual effects of the adjustment. This includes the payment due after the adjustment is made and whether the payment has been adjusted. The proposed rule would require disclosure of this information as well as the name of the index and any specific adjustment to the index, such as the addition of a margin or an adjustment due to carryover interest. Proposed comment 20(c)(2)(v)(B)–1 explains that a disclosure regarding the application of previously foregone interest is required only for transactions permitting interest rate carryover. The proposed comment further explains that foregone interest is any percentage added or carried over to the interest rate because a rate cap prevented the increase at an earlier adjustment. As discussed above, the Bureau found that this explanation helped consumers better understand how the index or formula and margin determine their new payment and dispelled the notion held by many consumers in the initial rounds of testing that the lender VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 subjectively determined their new interest rate, and thus the new payment, at each adjustment. The proposal would require disclosure of both the loan balance and the remaining loan term expected on the date of the interest rate adjustment. The current rule requires disclosure of the loan balance but not the remaining loan term. The date on which the balance is taken differs slightly in proposed § 1026.20(c) from the current rule. Current comment 20(c)(4)–1 explains that the balance disclosed is the one that serves as the basis for calculating the new adjusted payment while the Bureau proposes disclosure of a more current balance, i.e., the one expected on the date of the adjustment. Both the proposed rule and the current rule, as explained in current comment 20(c)(4)– 1, provide for disclosure of any change in the term or maturity of the loan caused by the adjustment. Disclosure of the four key assumptions upon which the new payment is based provides a succinct overview of how the interest rate adjustment works. It also demonstrates that factors other than the index can increase consumers’ interest rates and payments. Disclosures of these factors would provide consumers with a snapshot of the current status of their adjustable-rate mortgages and with basic information to help them make decisions about keeping their current loan or shopping for alternatives. Current comment 20(c)(4)–1 requires disclosure of certain information related to loans that are not fully amortizing. Disclosure of similar information is proposed in § 1026.20(c)(2)(vi), discussed below. 20(c)(2)(vi) Interest-Only and NegativeAmortization Statement and Payment Proposed § 1026.20(c)(2)(vi) would require § 1026.20(c) notices to include a statement regarding the allocation of payments to principal and interest for interest-only or negatively-amortizing loans. If negative amortization occurs as a result of the interest rate adjustment, the proposed rule would require disclosure of the payment necessary to fully amortize such loans at the new interest rate over the remainder of the loan term. As explained in proposed comment 20(c)(2)(vi)–1, for interest-only loans, the statement would inform the consumer that the new payment covers all of the interest but none of the principal owed and, therefore, will not reduce the loan balance. For negativelyamortizing ARMs, the statement would inform the consumer that the new payment covers only part of the interest and none of the principal, and therefore PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 57339 the unpaid interest will add to the balance or increase the term of the loan. The current rule, clarified by current comment 20(c)(5)–1, requires disclosure of the payment necessary to fully amortize loans that become negativelyamortizing as a result of the adjustment but does not require the statement regarding amortization. Proposed § 1026.20(c)(2)(vi) and proposed comments 20(c)(2)(vi)–1 and 20(c)(2)(vi)–2 would replace the current rule and current comment 20(c)(5)–1. Both current § 1026.20(c) and the Board’s 2009 Closed-End Proposal to revise § 1026.20(c) include, for ARMs that become negatively amortizing as a result of the interest rate adjustment, disclosure of the payment necessary to fully amortize those loans at the new interest rate over the remainder of the loan term. However, the Bureau believes there are countervailing considerations regarding whether to include this information in proposed § 1026.20(c). The Bureau recognizes that certain Dodd-Frank Act amendments to TILA will restrict origination of nonamortizing and negatively-amortizing loans. For example, TILA section 129C and the 2011 ATR Proposal that would implement that provision, generally require creditors to determine that a consumer can repay a mortgage loan and include a requirement that these determinations assume a fullyamortizing loan. Thus, this law and regulation, when finalized, will restrict the origination of risky mortgages such as interest-only and negativelyamortizing ARMs. Other Dodd-Frank amendments to TILA, such as the periodic statement proposed by § 1026.41, will include information about non-amortizing and negatively-amortizing loans in each billing cycle, such as an allocation of payments. Thus, consumers who currently have interest-only and negatively-amortizing ARMs or may obtain such loans in the future will receive certain information about the interest-only or negatively-amortizing features of their loans in another disclosure, although this will not include the payment required to fully amortize negatively-amortizing loans. Disclosure of the payment necessary to fully amortize negatively-amortizing loans was not consumer tested but testing of the table showing the payment allocation of interest-only and negatively-amortizing ARMs indicated that consumers were confused by the concept of amortization. Thus, the Bureau is weighing the value of disclosing specific information regarding amortization, such as the payment needed to fully amortize E:\FR\FM\17SEP3.SGM 17SEP3 57340 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS3 negatively-amortizing ARMs. In view of these changes to the law and the outcome of consumer testing, the Bureau solicits comments on whether to include the payment required to amortize ARMs that became negatively amortizing as a result of an interest rate adjustment. 20(c)(2)(vii) Prepayment Penalty Proposed § 1026.20(c)(2)(vii) would require disclosure of the circumstances under which any prepayment penalty may be imposed, such as selling or refinancing the principal residence, the time period during which such penalty would apply, and the maximum dollar amount of the penalty. The current rule does not have this requirement. The proposed rule cross-references the definition of prepayment penalty in subpart E, § 1026.41(d)(7)(iv), in the proposed rule for periodic statements. Interest rate adjustments may cause payment shock or require consumers to pay their mortgage at a rate they may no longer be able to afford, prompting them to consider alternatives such as refinancing. In order to fully understand the implications of such actions, the Bureau believes that consumers should know whether prepayment penalties may apply. Such information should include the maximum penalty in dollars that may apply and the time period during which the penalty may be imposed. The dollar amount of the penalty, as opposed to a percentage, is more meaningful to consumers. The Bureau also proposes disclosure of any prepayment penalty in § 1026.20(d) ARM rate adjustment notices and in the periodic statements proposed by § 1026.41. Consumer testing of the periodic statement included a scenario in which a prepayment penalty applied. Most participants understood that a prepayment penalty applied if they paid off the balance of their loan early, but some participants were unclear whether it applied to the sale of the home, refinancing, or other alternative actions consumers could pursue in lieu of maintaining their adjustable-rate mortgages.70 For this reason, the Bureau proposes to clarify the circumstances under which a prepayment penalty would apply. The proposed forms would alert consumers that a prepayment penalty may apply if they pay off their loan, refinance, or sell their home before the stated date. The Bureau recognizes that DoddFrank Act amendments to TILA, such as 129C and the 2011 ATR Proposal that would implement that provision, would 70 Id. at vi. VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 significantly restrict a lender’s ability to impose prepayment penalties. Other Dodd-Frank amendments to TILA, such as the proposed periodic statement, would provide consumers with information about their prepayment penalties for each billing cycle. Thus, consumers who currently have ARMs with prepayment penalty provisions or may obtain such loans in the future would generally receive information about them at frequent intervals in another disclosure. In view of these changes to the law, the Bureau solicits comments on whether to include information regarding prepayment penalties in proposed § 1026.20(c). 20(c)(3) Format of Disclosures As discussed above, the Bureau proposes to make § 1026.20(c) subject to certain of the § 1026.17(a)(1) form requirement to which § 1026.20(c) disclosures are currently not subject. These requirements include grouping the disclosures together, segregating them from everything else, and prohibiting inclusion of any information not directly related to the § 1026.20(c) disclosures.71 As discussed above in connection with Section 17(a)(1), this revises the current rule but the Bureau believes the revision is necessary to effectively highlight information for consumers about changes to their ARM interest rates and payments. 20(c)(3)(i) All Disclosures in Tabular Form Proposed § 1026.20(c)(3)(i) would require that the ARM adjustment disclosures be provided in the form of a table and in the same order as, and with headings and format substantially similar to, Forms H–4(D)(1) and (2) in Appendix H to subpart C for interest rate adjustments resulting in a corresponding payment change. The proposed ARM adjustment notice contains complex concepts challenging for consumers to understand. For example, consumer testing revealed that participants generally had difficulty understanding the relationship among index, margin, and interest rate.72 They also had difficulty with the concepts of amortization and interest rate carryover.73 As a starting point, the Bureau looked at the model forms developed by the Board for its 2009 Closed-End Proposal to amend 71 Other § 1026.17(a)(1) form requirements that currently apply to § 1026.20(c) would continue to apply, such as the option of providing the disclosures to consumers in electronic form, subject to compliance with consumer consent and other applicable provisions of the E-Sign Act. 72 Macro Report, supra note 38, at viii. 73 Id. at viii–ix. PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 § 1026.20(c). The Bureau then conducted its own consumer testing. The Bureau’s testing showed that consumers can more readily understand these concepts when the information is presented to them in a simple manner and in the groupings contained in the model forms. The Bureau also observed that consumers more readily understood the concepts when they were presented in a logical order, with one concept presented as a foundation to understanding other concepts. For example, the form begins by informing consumers of the purpose of the notice: That their interest rate is going to adjust, when it will adjust, and that the adjustment will change their mortgage payment. This introduction is immediately followed by a table visually showing consumers’ current and new interest rates. In another example, the proposed notice informs consumers about their index rate and margin before explaining how the new payment is calculated based on those factors, as well as other factors such as the loan balance and remaining loan term. Based on consumer testing, the Bureau believes that consumer understanding is enhanced by presenting the information in a simple manner, grouped together by concept, and in a specific order that allows consumers the opportunity to build upon knowledge gained. For these reasons, the Bureau proposes that creditors, assignees, or servicers disclose the information required by proposed § 1026.20(c) with headings, content, and format substantially similar to Forms H–4(D)(1) and (2) in Appendix H to this part. Over the course of consumer testing, participant comprehension improved with each successive iteration of the model form. As a result, the Bureau believes that displaying the information in tabular form focuses consumer attention and lends to greater understanding. Similarly, the Bureau found that the particular content and order of the information, as well as the specific headings and format used, presented the information in a way that consumers both could understand and from which they could benefit. 20(c)(3)(ii) Format of Interest Rate and Payment Table Proposed § 1026.20(c)(3)(ii) would require tabular format for ARM payment change notices of: The current and new interest rates, the current and new payments, and the date the first new payment is due. For interest-only and negatively-amortizing ARMs, the table would also include the allocation of E:\FR\FM\17SEP3.SGM 17SEP3 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules payments. This table would be located within the table proposed by § 1026.20(c)(3)(i). This table is substantially similar to the one tested by the Board for its 2009 Closed-End Proposal to revise § 1026.20(c). The proposal would require the table to follow the same order as, and have headings, content, and format substantially similar to, Forms H– 4(D)(1) and (2) in Appendix H of subpart C. Disclosing the current interest rate and payment in the same table allows consumers to readily compare those rates with the adjusted rate and new payment. Consumer testing revealed that nearly all participants were readily able to identify the table and understand the content.74 The new interest rate and payment and date the first new payment is due is key information the consumer must know in order to commence payment at the new rate. For these reasons, the Bureau proposes locating this information prominently in the disclosure. tkelley on DSK3SPTVN1PROD with PROPOSALS3 20(d) Initial Rate Adjustments Elimination of current § 1026.20(d). Current § 1026.20(d) permits creditors to substitute information provided in accordance with variable-rate subsequent disclosure regulations of other Federal agencies for the disclosures required by § 1026.20(c). In the 2009 Closed-End Proposal, the Board proposed amending the regulation that is now § 1026.20, including deleting the provision that is current § 1026.20(d). The Board stated that, as of August 2009, there were ‘‘[n]o comprehensive disclosure requirements for variable-rate mortgage transactions * * * in effect under the regulations of the other Federal financial institution supervisory agencies.’’ 75 The Board explained that when it originally adopted the provision in 1987, as footnote 45c of § 226.20(c) of Regulation Z,76 the regulations of other financial institution supervisory agencies— namely the OCC, the Federal Home Loan Bank Board (the FHLBB), and HUD—contained subsequent disclosure requirements for ARMs.77 The Bureau proposes deleting the current content of § 1026.20(d) because it is not aware of any other Federal 74 Id. at vii. FR 43232, 43272 (Aug. 26, 2009). 76 Regulation Z was previously implemented by the Board at 12 CFR 226. In light of the general transfer of the Board’s rulemaking authority for TILA to the Bureau, the Bureau adopted an interim final rule recodifying the Board’s Regulation Z at 12 CRF 1026. 77 74 FR 43232, 43273 (citing 52 FR 48665, 48671 (Dec. 24, 1987)). 75 74 VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 financial institution supervisory agency rules requiring comprehensive disclosure requirements for ARMs. The Bureau solicits comment on whether there is any reason to retain this provision. The Bureau solicits comments, for example, on whether this proposed regulatory change would have implications for rights under the Alternative Mortgage Transaction Parity Act. For the reasons discussed above with respect to proposed § 1026.20(c), the Bureau proposes this deletion pursuant to its authority under TILA sections 105(a) and 128(f)(1)(H) and DFA section 1405(b). New initial ARM interest rate adjustment disclosures. In the section that would be left vacant by the proposed deletion of § 1026.20(d), the Bureau proposes to implement the initial ARM adjustment notice mandated by TILA section 128A. Proposed § 1026.20(d) would require disclosure to consumers with certain adjustable-rate mortgages, approximately six months prior to the initial interest rate adjustment, of key information about the upcoming adjustment, including the new rate and payment and options for pursuing alternatives to their adjustable-rate mortgage. This initial ARM adjustment notice would harmonize with the ARM payment change notice that would be required under the proposed revisions to § 1026.20(c). The Bureau believes that promoting consistency between the ARM disclosure provisions of proposed § 1026.20(c) and (d) would reduce compliance burdens on industry and minimize consumer confusion. Form of delivery. As required under TILA section 128A(b), proposed § 1026.20(d) would require that the initial ARM interest rate adjustment notices be provided to consumers in writing, separate and distinct from all other correspondence. Proposed comment 20(d)–2 explains that to satisfy this requirement, the notices must be mailed or delivered separately from any other material. For example, in the case of mailing the disclosure, there should be no material in the envelope other than the initial interest rate adjustment notice. In the case of emailing the disclosure, the only attachment should be the initial interest rate adjustment notice. This requirement contrasts with proposed § 1026.20(c), which would be subject to the less stringent segregation requirements of § 1026.17(a)(1), as amended by the Bureau’s proposal. The proposed comment further explains that the notices proposed by § 1026.20(d) may be provided to consumers in electronic form with consumer consent, pursuant to the requirements of PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 57341 § 1026.17(a)(1). The Bureau solicits comments on whether consumer protection would be compromised by providing § 1026.20(d) notices on a separate piece of paper but in the same envelope or as email correspondence with other messages from the creditor, assignee, or servicer. Creditors, assignees, and servicers. Proposed § 1026.20(d) applies to creditors, assignees, and servicers. Proposed comment 20(d)–1 clarifies that a creditor, assignee, or servicer that no longer owns the mortgage loan or the mortgage servicing rights is not subject to the requirements of § 1026.20(c). This proposed language tracks, in part, the requirements of TILA section 128A that creditors and servicers must provide the initial ARM interest rate adjustment notices, but adds assignees to the list of covered persons. The Bureau believes that holding creditors, but not assignees, liable under the regulation would result in inconsistent levels of consumer protection and an unlevel playing field for owners of mortgages. It is a common practice for creditors to sell many or all of the loans they originate rather than hold them in portfolio. If the creditor were to sell the ARM, the consumer would have no recourse against the subsequent holder for violations of § 1026.20(d) if assignees were not made subject to § 1026.20(d). Shielding assignees from liability under the proposed rule would have particularly deleterious effects on consumers seeking relief against a servicer to whom an assignee sold the ARM’s mortgage servicing rights, if that servicer had insufficient resources to satisfy a judgment the consumer may obtain for violations of § 1026.20(d). Consumers who happen to have ARMs sold by the original creditor to a subsequent holder would have less protection under the regulation than consumers with ARMs that are retained in portfolio by the creditor originating the loan. It also would create an unfair advantage for assignees. The Bureau believes that the protections afforded under proposed § 1026.20(d) should not be determined by the happenstance of loan ownership or favor one sector of the mortgage market over another. For these reasons, the Bureau proposes to make assignees, along with creditors and servicers, subject to the requirements § 1026.20(d). Proposed comment 20(d)–1 explains that any provision of subpart C that applies to the disclosures required by § 1026.20(d) also applies to creditors, assignees, and servicers. This is the case even where the other provisions of subpart C refer only to creditors. For the reasons discussed above, the Bureau E:\FR\FM\17SEP3.SGM 17SEP3 tkelley on DSK3SPTVN1PROD with PROPOSALS3 57342 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules proposes that the requirements of other regulations that apply to the § 1026.20(d) initial ARM interest rate adjustment notices apply to assignees as well as to creditors and servicers. The extension of the requirement to assignees is authorized under TILA section 105(a) because, for the reasons discussed above, it is necessary and proper to effectuate the purposes of TILA, including to assure a meaningful disclosure of credit terms and protect the consumer against unfair credit billing practices, and to prevent circumvention or evasion of TILA. The Bureau also proposes to use its authority under DFA section 1405(b) to extend the applicability of the initial ARM adjustment notices under TILA section 128A to assignees. As discussed above, this extension would serve the interest of consumers and the public interest. Application of proposed § 1026.20(d) to assignees is consistent with current § 1026.20(c) commentary applying that disclosure requirement to subsequent holders. Application of proposed § 1026.20(d) to creditors, assignees, and servicers also promotes consistency with proposed § 1026.20(c) and the periodic statement proposed by § 1026.41, which also apply to creditors, assignees, and servicers. Timing. Proposed § 1026.20(d) generally follows the statutory requirement in TILA section 128A that the initial interest rate adjustment notice must be provided to consumers during the one-month period that ends six months before the date on which the interest rate in effect during the introductory period ends. Thus, the disclosure must be provided six to seven months before the initial interest rate adjustment. The § 1026.20(d) disclosures are designed to avoid payment shock so as to put consumers on notice of upcoming changes to their adjustable-rate mortgages that may result in higher payments. The six to seven month advance notice allows sufficient time for consumers to consider their alternatives if the notice discloses an increase in payment that they cannot afford. One alternative consumers might consider is refinancing their home. In the current market, ‘‘it now takes the nation’s biggest mortgage lenders an average of more than 70 days to complete a refinance . * * * ’’ 78 In the interest of consistency within Regulation Z, proposed § 1026.20(d) ties its timing requirement to the date the first payment at a new level is due rather than the date of the interest rate adjustment. This is consistent with the time frame for both current and 78 Timiraos & Simon, supra note 52. VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 proposed § 1026.20(c). Since interest generally is paid in arrears, for most ARMs, this adds another approximately 30 days to the time frame for delivery of the disclosures. Thus, the notices proposed by § 1026.20(d) must be provided to consumers seven to eight months in advance of payment at the adjusted rate. Measured in days, the initial interest rate adjustment disclosures are due at least 210, but not more than 240, days before the first payment at the adjusted level is due. By tying the timing of the disclosure to the date payment at a new level is due and calculating it in days rather than months, proposed § 1026.20(d) is more precise, since months can vary in length, and maintains consistency with the timing requirements of proposed § 1026.20(c). Pursuant to TILA section 128A, for ARMs adjusting for the first time within six months after consummation, the proposed § 1026.20(d) initial interest rate adjustment notices must be provided at consummation. The proposed rule states that when this occurs, the disclosure must be provided 210 days before the first date payment at a new level is due. The proposed rule ties the timing of this requirement to days rather than months, thereby ensuring both internal consistency and consistency with § 1026.20(c). Proposed comment 20(d)–2 explains that the timing requirements exclude any grace period. It also explains that the date the first payment at the adjusted level is due is the same as the due date of the first payment calculated using the adjusted interest rate. SBREFA. The small entity representatives (SERs) that advised the SBREFA panel on the mortgage servicing rules under consideration by the Bureau expressed doubt as to the value of the § 1026.20(d) notices because providing the notices so many months in advance of the interest rate adjustment would require disclosure of an estimated, rather than the actual, interest rate and payment due.79 Several SERS expressed concern that the estimates would confuse consumers. They also noted that, in addition to the requirement to provide initial interest rate adjustment notices under § 1026.20(d), servicers would remain obliged to also provide a later notice in the case of a payment change, pursuant to § 1026.20(c), for the initial rate adjustments in order to apprise consumers of the actual amount of their interest rate and payment resulting from the adjustment. They expressed 79 See SBREFA Final Report, supra note 22, at 20– 21, 29–30. PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 concerns about the one-time development costs and on-going costs associated with providing both the initial ARM adjustment notices and the recurring notices under § 1026.20(c).80 Consistent with this recommendation, after conclusion of the SBREFA process, the Bureau conducted further policy analysis of a possible exemption for small creditors, assignees, and servicers. After additional consideration, however, the Bureau decided to propose that notices under both § 1026.20(c) and § 1026.20(d) be provided. The Bureau believes that the two notices serve related but distinct purposes, such that eliminating the § 1026.20(c) notice could harm consumers. In particular, the § 1026.20(d) notice is designed to provide consumers with very early warning that their rates are about to change, so that consumers can begin exploring other options. If the consumer chooses not to do so or has not completed that process, a notice closer to the adjustment date that reflects the actual rather than estimated change in payment is still valuable to the consumer as both a second warning and budgeting tool. While the ARM interest rate adjustment information proposed for the first payment change notice required by proposed § 1026.20(c) could be provided in the periodic statement that would be provided to consumers under proposed § 1026.41, discussed below, rather than as a standalone notice under § 1026.20(c), the Bureau notes that that might require greater programming complexity in connection with the periodic statements. In addition, the Bureau is proposing to exempt certain small servicers from the periodic statement requirement. The Bureau also believes that the amount of burden reduction for servicers from an exemption from providing a § 1026.20(c) notice in connection with an initial interest rate adjustment would be extremely minimal, given that servicers would have to maintain systems to generate § 1026.20(c) notices for each subsequent interest rate adjustment resulting in a corresponding payment change. Thus, excepting small servicers from providing the first § 1026.20(c) notice would not provide a significant reduction in burden. The Bureau also considered whether to except small servicers, creditors, and assignees from the initial ARM interest rate notice required by § 1026.20(d). The SERs expressed concern that consumers would be confused by receiving estimates, rather than their actual new interest rate and payment, in the 80 Id. E:\FR\FM\17SEP3.SGM 17SEP3 tkelley on DSK3SPTVN1PROD with PROPOSALS3 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules § 1026.20(d) notice.81 However, the Bureau believes the best approach to address this concern is to clarify the contents of the notice, rather than eliminate it entirely. Congress has made a specific policy judgment that an early notice has value to consumers. Creating an exemption for small creditors, assignees, and servicers would deprive certain consumers of the benefits that Congress intended, specifically advance notice seven to eight months before payment at a new level is due after the initial interest rate adjustment to allow consumers time to weigh the potential impacts of a rate change and to explore alternative actions. An exception would also deprive certain consumers of the information provided in the § 1026.20(d) notice about alternatives and how to contact their State housing finance authority and access a list of government-certified counseling agencies and programs. On balance, the Bureau does not believe that the § 1026.20(d) notice imposes a significant burden on small entities because it is a one-time notice. Moreover, the notice is designed to be consistent with the § 1026.20(c) notice in order to, among other things, reduce the burden on industry. For these reasons, the Bureau proposes generally to require all creditors, assignees, and servicers to provide the ARM interest rate adjustment notices required by proposed § 1026.20(c) and (d). However, the Bureau seeks comment on the issues raised by the two sets of disclosures, particularly whether the burden imposed on small entities by the requirements of § 1026.20(d) outweighs the consumer protection benefits afforded by the early notice of the initial ARM interest rate adjustment. The Bureau also solicits comment on whether small servicers (or creditors, assignees, and servicers in general) that provide a periodic statement to a consumer with an ARM should be permitted or required to provide the information required by § 1026.20(c), for an initial interest rate adjustment for which a notice under § 1026.20(d) is required, in a periodic statement provided to consumers 60 to 120 days before payment at a new level is due. The Bureau further solicits comment on whether to permit or require all § 1026.20(c) notices required by the proposed rule to be incorporated into periodic statements in lieu of providing a separate notice. Conversions. Proposed comment 20(d)–3 explains that in the case of an open-end account converting to a closed-end adjustable-rate mortgage, 81 Id. at 21. VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 § 1026.20(d) disclosures are not required until the implementation of the initial interest rate adjustment postconversion. Under the proposed rule, the conversion is analogous to consummation. Thus, like other ARMs subject to the requirements of proposed § 1026.20(d), disclosures for these converted ARMs would not be required until the first interest rate adjustment following the conversion. This proposal is consistent with the § 1026.20(c) proposal for open-end accounts converting to closed-end adjustable-rate mortgages. 20(d)(1) Coverage of the Initial Rate Adjustment Disclosures 20(d)(1)(i) In General Proposed § 1026.20(d)(1)(i) defines an adjustable-rate mortgage or ARM as a closed-end consumer credit transaction secured by the consumer’s principal dwelling in which the annual percentage rate may increase after consummation. The proposed rule uses the wording from the definitions of ‘‘adjustable-rate’’ and ‘‘variable-rate’’ mortgage in subpart C of Regulation Z. It does this to promote consistency within the regulation. Proposed comment 20(d)(1)(i)–1 explains that the definition of ARM means variable-rate mortgage as that term is used elsewhere in subpart C of Regulation Z, except as provided in proposed comment 20(d)(1)(ii)–2. Applicability to closed-end transactions. The Bureau believes that TILA section 128A and the implementing disclosures in proposed 1026.20(d) primarily benefit consumers with closed-end adjustable-rate mortgages. In contrast, open-end credit transactions secured by a consumer’s dwelling (home equity plans) with adjustable-rate features are subject to distinct disclosure requirements under TILA and subpart B of Regulation Z that substitute for the proposed § 1026.20(c) and (d) disclosures. Therefore, as discussed below, the Bureau proposes to use its authority under TILA section 105(a) and (f) to exempt adjustable-rate home equity plans from the requirements of proposed § 1026.20(d). Section 127A of TILA and § 1026.40(b) and (d) of Regulation Z require the disclosure of specific information about home equity plans at the time an application is provided to the consumer. These disclosures include specific information about variable or adjustable-rate plans, including, among other things, the fact that the plan has a variable or adjustable-rate feature, the index used in making adjustments and a source of PO 00000 Frm 00027 Fmt 4701 Sfmt 4702 57343 information about the index, an explanation of how the index is adjusted such as by the addition of a margin, and information about frequency of and limitations to changes to the applicable rate, payment amount, and index. See § 1026.40(d)(12). The required account opening disclosures for home equity plans also must include information about any variable or adjustable-rate feature, including the circumstances under which rates may increase, limitations on the increase, and the effect of any increase. See § 1026.6(a)(1)(ii) and (3)(vii). Thus, Regulation Z already contains a comprehensive scheme for disclosing to consumers the variable or adjustablerate features of home equity plans. The Bureau believes that requiring servicers to provide information about the index and an explanation of how the interest rate and payment would be determined, as required by TILA section 128A and proposed by § 1026.20(d), in connection with home equity plans would be inconsistent with, and largely duplicative of, the current disclosure regime and would be confusing and unhelpful for consumers. Moreover, unlike closed-end adjustable-rate mortgages, consumers with home equity plans generally may draw from the adjustable-rate feature on the account at any time. Thus, providing the good faith estimate of the amount of the monthly payment that would apply after the interest rate adjustment, as required by TILA section 128A and proposed by § 1026.20(d), would not be useful because the estimate would be based on the outstanding loan balance at the time the notice is given, which would change after the notice is given anytime the consumer withdraws funds. Finally, the alerts to consumers required by TILA section 128A and proposed by § 1026.20(d) would not provide a benefit to consumers with home equity plans with adjustable-rate features. Generally, introductory periods for adjustable-rate features on home equity plans tend to last less than six months. The Bureau believes it is unlikely consumers would consider pursuing alternatives so close in time to opening their home equity plans. Two other factors also support the Bureau’s use of the TILA section 105(a) exemption authority to exclude home equity plans from the requirements of proposed § 1026.20(d). First, use of the term ‘‘consummation’’ in TILA section 128A supports the application of proposed § 1026.20(d) only to closedend transactions. Regulation Z generally requires disclosures for closed-end credit transactions to be provided ‘‘before consummation of the E:\FR\FM\17SEP3.SGM 17SEP3 tkelley on DSK3SPTVN1PROD with PROPOSALS3 57344 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules transaction.’’ By contrast, Regulation Z generally requires account opening disclosures for open-end credit transactions to be provided ‘‘before the first transaction is made under the plan.’’ See § 1026.17(b) and § 1026.5(b)(1)(i). Because Regulation Z uses the term ‘‘consummation’’ in connection with closed-end credit transactions, use of the word ‘‘consummation’’ in DFA section 1418 supports the Bureau’s proposed exemption for open-end home equity plans from the requirements of § 1026.20(d). Second, DFA section 1418 is codified in TILA section 128A. The adjacent and similarly numbered provision, TILA section 128, is entitled and applies only to ‘‘Consumer Credit not under Open End Credit Plans.’’ Congress’s placement of the new ARM disclosure requirement in a segment of TILA that applies only to closed-end credit transactions further supports the Bureau’s decision to exempt open-end credit transactions, in this case variable or adjustable-rate home equity plans, from the requirements of that section. For the reasons discussed above, exempting home equity plans from the requirements of § 1026.20(d) is necessary and proper under TILA section 105(a) to further the consumer protection purposes of TILA and facilitate compliance. As discussed above, the Bureau believes that the information contained in the notice proposed by § 1026.20(d) would not be meaningful to consumers with home equity plans that have adjustable-rate features and could lead to information overload and confusion for those consumers. The Bureau further proposes the exemption for open-end transactions pursuant to its authority under TILA section 105(f). As discussed above, because open-end transactions are subject to their own regulatory scheme, are not structured in such a way as to garner benefit from the disclosures proposed by § 1026.20(d), and the placement of 128A in TILA indicates congressional intent to limit its coverage to closed-end transactions, the Bureau believes, in light of the factors in TILA section 105(f)(2), that requiring the proposed § 1026.20(d) notice for openend accounts that have adjustable-rate features would not provide a meaningful benefit to consumers. Specifically, the Bureau considers that the exemption is proper irrespective of the amount of the loan or the status of the borrower (including related financial arrangements, financial sophistication, and the importance to the borrower of the loan). The Bureau further notes, in light of TILA section VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 105(f)(2)(D), that the requirements in § 1026.20(d) would only apply to loans secured by the consumer’s principal dwelling. Savings Clause. Regarding other categories of loans to which proposed § 1026.20(d) would apply, the statute’s provisions apply to hybrid ARMs, which it defines as ‘‘consumer credit transaction[s] secured by the consumer’s principal residence with a fixed interest rate for an introductory period that adjusts or resets to a variable interest rate after such period.’’ 82 The statute, however, has a ‘‘savings clause,’’ that allows the Bureau to require the initial interest rate adjustment notice for loans that are not hybrid ARMs. The Bureau proposes to use this authority generally to extend the disclosure requirements of proposed § 1026.20(d) to ARMs that are not hybrid. The Bureau believes this approach is necessary because both hybrid ARMs and those that are not hybrid may subject consumers to the same payment shock that the advance notice of the first interest rate adjustment is designed to address. For example, both 3/1 hybrid ARMs, where the initial interest rate is fixed for three years and then adjusts every year after that, and 3/3 ARMs, where the initial interest rate adjusts after three years and then every three years after that, adjust for the first time after three years and present the same potential payment shock to consumers holding either mortgage. The same is true for 5/1 hybrid ARMs and 5/5 ARMs, 7/1 hybrid ARMs and 7/7 ARMs, 10/1 hybrid ARMs and 10/10 ARMs, etc. In sum, conventional ARMs and hybrid ARMs can have the same initial periods without an interest rate adjustment and thus, the same potential jump in their interest rates at the time of the first interest rate adjustment. Proposed comment 20(d)(1)(i)–1 clarifies that the initial ARM adjustment notice are not limited to transactions financing the initial acquisition of the consumer’s principal dwelling but also would apply to other closed-end ARM transactions secured by the consumer’s principal dwelling, consistent with current comment 19(b)–1 and proposed § 1026.20(c). 20(d)(1)(ii) Exceptions Proposed § 1026.20(d)(1)(ii) excepts construction loans with terms of one 82 TILA section 128A. For example, a 3⁄1 hybrid ARM has a three-year introductory period with a fixed interest rate, after which the interest rate adjusts annually. ARMs that are not hybrid, on the other hand, have no period with a fixed rate of interest. Such ARMs start out with a rate that adjusts at set intervals, such as 3⁄3 (adjusts every three years), 5⁄5 (adjusts every five years), etc. PO 00000 Frm 00028 Fmt 4701 Sfmt 4702 year or less from the disclosure requirements of § 1026.20(d). Proposed § 1026.20(c) includes the same exception. Proposed comment 20(d)(1)(ii)–1 applies the standards in comment 19(b)–1 for determining the term of a construction loan. Construction loans generally have short terms of six months to one year and are subject to frequent interest rate adjustments, usually monthly or quarterly. The construction period usually involves several disbursements of funds at times and in amounts that are unknown at the beginning of that period. The consumer generally pays only accrued interest until construction is completed. The creditor, assignee, or servicer, in addition to disbursing payments in stages, closely monitors the progress of construction. Generally, at the completion of the construction, the construction loan is converted into permanent financing in which the loan amount is amortized just as in a standard mortgage transaction. See comment 17(c)(6)–2 for additional information on construction loans. The frequent interest rate adjustments, multiple disbursements of funds, the short loan term, and on-going communication between the creditor, assignee, or servicer and consumer distinguish construction loans from other ARMs. These loans are meant to function as bridge financing until construction is completed and permanent financing can be put in place. Consumers with construction ARM loans are not at risk of payment shock like other ARM where interest rates change less frequently. Moreover, given the frequency of interest rate adjustments on construction loans, creditors, assignees, or servicers would have difficulty complying with the proposed requirement to provide the notice to consumers 210 to 240 days before the first payment at the adjusted level is due. For these reasons, providing notices under § 1026.20(d) for these loans would not provide a meaningful benefit to the consumer nor improve consumers’ awareness and understanding of their construction loans with terms of less than one year. Authority. Accordingly, the Bureau proposes to use its authority under TILA section 105(a) to except construction loans with terms of one year or less from the requirements of proposed § 1026.20(d). As explained above, the disclosure requirements of § 1026.20(d) would be confusing and difficult to comply with in the context of a shortterm construction loan. Thus, exempting such loans is necessary and proper under TILA section 105(a) to further the consumer protection E:\FR\FM\17SEP3.SGM 17SEP3 tkelley on DSK3SPTVN1PROD with PROPOSALS3 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules purposes of TILA and facilitate compliance. The Bureau further proposes the exemption for construction loans pursuant to its authority under TILA section 105(f). For the reasons discussed above, the Bureau believes, in light of the factors in TILA section 105(f)(2), that requiring the § 1026.20(d) notice for construction loans with terms of one year or less would not provide a meaningful benefit to consumers. Specifically, the Bureau considers that the exemption is proper irrespective of the amount of the loan or the status of the borrower (including related financial arrangements, financial sophistication, and the importance to the borrower of the loan). The Bureau further notes, in light of TILA section 105(f)(2)(D), that the requirements in § 1026.20(d) would only apply to loans secured by the consumer’s principal dwelling. The Bureau solicits comment on whether there are other ARMs with terms of less than one year, and whether such ARMs should be excepted from the requirements of § 1026.20(d). If the time period of the advance notice for consumers required by § 1026.20(d) is not appropriate for these short-term ARMs, the Bureau solicits comment on what period would be appropriate that would also provide consumers with sufficient notice of the estimated initial adjusted interest rate and any new payment. Proposed comment 20(d)(1)(ii)–2 discusses other loans to which the proposed rule does not apply. Proposed comment 20(d)(1)(ii)–2 is consistent with proposed comment 20(c)(1)(ii)–3 with regard to the loans which are not subject to the proposed ARM disclosure rules. Certain Regulation Z provisions treat some of these loans as variable-rate transactions, even if they are structured as fixed-rate transactions. The proposed comment clarifies that, for purposes of proposed § 1026.20(d), the following loans, if fixed-rate transactions, are not ARMs and therefore are not subject to ARM notices pursuant to § 1026.20(d): Shared-equity or shared-appreciation mortgages; price-level adjusted 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; graduated-payment mortgages or steprate transactions; renewable balloonpayment instruments; and preferred-rate loans. The particular features of these types of loans may trigger interest rate or payment changes over the term of the loan or at the time the consumer pays off the final balance. However, these changes are based on factors other than VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 a change in the value of an index or a formula. For example, whether or when the interest rate will adjust for the first time for a preferred-rate loan with a fixed interest rate is likely not knowable six to seven months in advance of the adjustment. This is because the loss of the preferred rate is based on factors other than a formula or change in the value of an index agreed to at consummation. Because the enumerated loans are not ARMs they are not covered by TILA section 128A or proposed § 1026.20(d) and require no disclosures under this rule. 20(d)(2) Content of Initial Rate Adjustment Disclosures Statutorily-required content. TILA section 128A requires that the following content be included in the § 1026.20(d) initial rate adjustment notice: (1) Any index or formula used in adjusting or resetting the interest rate and a source of information about the index or formula; (2) an explanation of how the new rate and payment would be determined, including how the index may be adjusted, such as by the addition of a margin; (3) a good faith estimate, based on accepted industry standards, of the amount of the resulting monthly payment after the adjustment or reset and the assumptions on which the estimate is based; (4) a list of alternatives that the consumers may pursue, including refinancing, renegotiation of loan terms, payment forbearance, and pre-foreclosure sales, and descriptions of actions the consumer must take to pursue these alternatives; (5) contact information for HUD- or State housing agency-approved housing counselors or programs reasonably available; and (6) contact information for the State housing finance authority for the State where the consumer resides. The Bureau interprets the explanation of how the interest rate and payments will be determined set forth in (2) above to require disclosure of any adjustment to the index, for example, the amount of any margin and an explanation of what a margin is; the loan balance; the length of the remaining term of the loan; and any change in the term or maturity of the loan caused by the interest rate adjustment. The Bureau interprets the good faith estimate, required under (3) above, to require disclosure, when available, of the exact amount of the new monthly payment after the interest rate adjustment. As discussed below, the Bureau believes that in most cases the lengthy advance notice required by proposed § 1026.20(d) will necessitate disclosure in the initial ARM interest PO 00000 Frm 00029 Fmt 4701 Sfmt 4702 57345 rate adjustment notices of estimates of the new interest rate and payment, rather than exact amounts. The Bureau believes, however, that a good faith estimate would require disclosure of the exact amount of the new monthly payment, if known, rather than an estimate. The Bureau interprets the assumptions on which the good faith estimate is based to require disclosure, among other things, of the current interest rate and payment, as well as the amount of the new interest rate after the adjustment, if known, or an estimate if the exact amount of the new interest rate is not known. As with the new payment amount, the Bureau believes that generally only an estimate of the new interest rate will be available at the time the notice is provided, but interprets the statute to require disclosure of the exact amount of the new interest rate, if this amount is available. Even if this content were not contemplated under the statute, the Bureau believes it would be appropriate to use its adjustment authority to require disclosure of such information for the reasons discussed below. Additional content. In addition to the content explicitly required under the statute, the Bureau proposes, as discussed in more detail below, to require the ARM initial interest rate notices to include the date of the disclosures; the telephone number of the creditor, assignee, or servicer; statements specifying that the consumer’s interest rate is scheduled to adjust pursuant to the terms of the loan, that the adjustment may effect a change in the mortgage payment, the specific time period the current interest rate has been in effect, the dates of the upcoming and future interest rate adjustments, and any other changes to loan terms, features, or options taking effect on the same date as the interest rate adjustment; the due date of the first payment after the adjustment; for interest-only or negatively-amortizing payments, the amount of the current and new payment allocated to principal, interest, and taxes and insurance in escrow, as applicable; a statement regarding payment allocation for interest-only and negatively-amortizing loans, including the payment required to fully amortize an ARM that becomes negatively-amortizing as a result of the interest rate adjustment; any interest rate or payment limits and any foregone interest; if the new interest rate or new payment provided is an estimate, a statement that another disclosure containing the actual new interest rate and payment will be provided within a specified time period—if the actual E:\FR\FM\17SEP3.SGM 17SEP3 tkelley on DSK3SPTVN1PROD with PROPOSALS3 57346 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules interest rate adjustment results in a corresponding payment change; and the amount and expiration date of any prepayment penalty and the circumstances under which such penalty might apply. The proposed additional content, including the content that the Bureau interprets to be required under the statute, is authorized under TILA section 105(a). As further discussed below, the proposed additional content is necessary and proper to assure that consumers understand the consequences of the upcoming ARM rate adjustments and have sufficient time to adjust their behavior accordingly, thereby avoiding the uninformed use of credit and protecting consumers against inaccurate and unfair credit billing practices. The proposed additional content is further authorized under DFA section 1032 by assuring that the key features of consumers’ adjustable-rate mortgage, over the term of the ARM, are ‘‘fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand [its] costs, benefits, and risks.’’ The proposed additional information better informs consumers of the implications of interest-rate adjustments before they happen and thus enables them to weigh their options going forward. For the same reasons, the Bureau believes, consistent with DFA section 1405(b), that the proposed additional content would improve consumer awareness and understanding of their residential ARM loans and is thus in the interest of consumers and the public interest. The proposed additional content is also consistent with TILA section 128A(b) itself, which provides a non-exclusive list of required content, thereby statutorily contemplating additional content. Good faith estimate. As noted above, TILA section 128A provides that the § 1026.20(d) interest rate adjustment disclosures should include ‘‘[a] good faith estimate, based on accepted industry standards * * * of the amount of the monthly payment that will apply after the date of the adjustment or reset, and the assumptions on which the estimate is based.’’ ARM contracts generally provide that the calculation of the new interest rate and payment be based on an index value published closer to the date of the interest rate adjustment than those available during the time frame within which creditors, assignees, and servicers must provide the initial ARM interest rate adjustments pursuant to § 1026.20(d). See 20(c)(2) above for a full discussion of the time frame generally required for VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 ascertaining the index rate used to calculate the adjusted interest rate and new payment. Thus, it is unlikely creditors, assignees, and servicers will be able to disclose the actual new interest rate and payment in the initial ARM interest rate notices. For this reason, consistent with the language of the statute regarding estimates, proposed § 1026.20(d)(2) provides that if the new interest rate or any other calculation using the new interest rate is not known as of the date of the disclosure, use of an estimate, labeled as such, is permissible. The Bureau interprets the statutory good faith standard to require disclosure of the actual amounts if they are available at the time the creditor, assignee, or servicer provides the initial ARM interest rate adjustment notices to consumers pursuant to the time frame required by proposed § 1026.20(d). Since the notice is designed to alert consumers to upcoming changes to their mortgage and to provide consumers with the time needed to take ameliorative actions should the new interest rate and payment be too high, providing the actual new payment would benefit consumers. Across all rounds of consumer testing, most participants shown notices containing estimates of the new rate and payment understood that these amounts were estimates that could change before payment at a new level was due.83 To implement the requirements of TILA section 128A that the good faith estimate of the new payment be based on accepted industry standards, proposed § 1026.20(d) would require that any estimate be calculated using the index figure disclosed in the source of information described in proposed § 1026.20(d)(2)(iii)(A) within fifteen business days prior to the date of the disclosure. Linking the date of the notice to the date of the index value used to estimate the new interest rate and payment would prevent consumer confusion as to the recency of the index value. As discussed above under Section 20(c)(2), the fifteen-day period allows creditors, assignees, and servicers sufficient time to calculate the estimates and perform any necessary quality control measures before providing the § 1026.20(d) notices to consumers. 20(d)(2)(i) Date of the Disclosure Proposed § 1026.20(d)(2)(i) would require that the initial ARM adjustment notice include the date of the disclosure. In order to group together all data regarding the ARM, proposed 83 Macro PO 00000 Report, supra note 38, at viii. Frm 00030 Fmt 4701 Sfmt 4702 § 1026.20(d)(3)(ii) would require that the date appear outside of and above the table described in proposed § 1026.20(d)(3)(i). Proposed comment 20(d)(2)(i)–1 explains that the date would be the date the creditor, assignee, or servicer generates the notice. It also must be within fifteen business days after publication of the index level used to calculate the adjusted interest rate and new payment, if it is an estimate and not the actual adjusted interest rate and new payment.84 Because the disclosures must be provided to consumers so far in advance, the Bureau expects estimates will be used in most cases. Tying the date of the disclosure to the date of the index level should prevent consumer confusion as to the recency of the index value upon which the estimated interest rate and new payment are based. 20(d)(2)(ii) Statement Regarding Change to Interest Rate and Payment Proposed § 1026.20(d)(2)(ii)(A) would require the initial ARM interest rate adjustment notices to include a statement alerting consumers that, under the terms of their adjustable-rate mortgage, the specific period in which their interest rate stayed the same will end on a certain date, that their interest rate may change on that date, and that any change in their interest rate may result in a change to their mortgage payment. This information is similar to the information required to be disclosed in the pre-consummation disclosures provided to consumers pursuant to current § 1026.19(b)(2)(i) and § 1026.37(i), recently proposed in the 2012 TILA–RESPA Proposal. Proposed comment 20(d)(2)(ii)(A)–1 clarifies that the current interest rate is the one in effect on the date of the disclosure. Proposed § 1026.20(d)(2)(ii)(B) would require the proposed initial ARM interest rate adjustment notices to include the dates of the impending and future interest rate adjustments and inform consumers that these changes are dictated by the terms of their adjustablerate mortgages. Proposed § 1026.20(d)(2)(ii)(C) also would require the § 1026.20(d) disclosures to inform consumers of any other loan changes taking place on the same day as the adjustment, such as changes in amortization caused by the expiration of interest-only or payment-option features. The first ARM model form tested did not contain the statement required by proposed § 1026.20(d)(2)(ii) informing consumers of impending and future changes to their interest rate and the 84 See E:\FR\FM\17SEP3.SGM proposed § 1026.20(d)(2). 17SEP3 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS3 basis for these changes. Although participants understood that their interest rate was adjusting and their payment might change as a result, they did not understand that these changes would occur periodically subject to the terms of their mortgage contract. Inclusion of this statement in the second round of testing successfully resolved this confusion. All but one consumer tested in rounds two and three of testing understood that, under the scenario presented to them, their interest rate would change on an annual basis.85 20(d)(2)(iii) Table With Current and New Interest Rates and Payments Proposed § 1026.20(d)(2)(iii) would require disclosure of the following information in the form of a table: (A) The current and new interest rates; (B) the current and new periodic payment amounts and the date the first new payment is due; and (C) for interest-only or negatively-amortizing payments, the amount of the current and estimated new payment allocated to interest, principal, and property taxes and mortgage-related insurance, as applicable. The information in this table would appear within the larger table containing the other required disclosures, except for the date of the disclosure. This table would follow the same order as, and have headings and format substantially similar to, those in the table in Forms H–4(D)(3) and (4) in Appendix H of subpart C. The Bureau learned through consumer testing that, when presented with information in a logical order, consumers more easily grasped the complex concepts contained in the proposed § 1026.20(d) notice. For example, the form begins by informing consumers of the basic purpose of the notice: Their interest rate is going to adjust, when it will adjust, and the adjustment will change their mortgage payment. This introduction is immediately followed by a visual illustration of this information in the form of a table comparing the consumers’ current and new interest rates. Based on consumer testing, the Bureau believes that consumer understanding is enhanced by presenting the information in a simple manner, grouped together by concept, and in a specific order that allows consumers the opportunity to build upon knowledge gained. For these reasons, the Bureau proposes that creditors, assignees, or servicers disclose the information in the table as set forth in Forms H–4(D)(3) and (4) in Appendix H. 85 Macro Report, supra note 38, at vii. VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 In all rounds of testing, consumers were presented with model forms with tables depicting a scenario in which the interest rate and payment would increase as a result of the adjustment. All participants in all rounds of testing understood that their interest rate and payment were going to increase and when these changes would occur.86 The Bureau proposes including allocation information in the table for interest-only and negatively-amortizing ARMs. The Bureau believes this information would help consumers better understand the risk of these products by demonstrating that their payments would not reduce the loan principal. The Bureau also believes providing the payment allocation would help consumers understand the effect of the interest rate adjustment, especially in the case of a change in the ARM’s features coinciding with the interest rate adjustment, such as the expiration of an interest-only or payment-option feature. Since payment allocation may change over time, the proposed rule would require disclosure of the expected payment allocation for the first payment period during which the adjusted interest rate will apply. The allocation of payment disclosure was tested in the third round of testing. The notice tested showed the scenario of a 3⁄1 hybrid ARM with interest-only payments for the first three years of the loan adjusting for the first time. On the date of the adjustment, the interest-only feature would expire and the ARM would become amortizing. Only about half of participants understood that their payments would be changing from interest-only to amortizing. Participants generally understood the concept of allocation of payments but were confused by the table in the notice that broke out principal and interest for the current payment, but combined the two for the new amount. As a result, this table was revised so that separate amounts for principal and interest were shown for all payments.87 The Bureau recognizes that certain Dodd-Frank Act amendments to TILA will restrict origination of nonamortizing and negatively-amortizing loans. For example, TILA section 129C and the 2011 ATR Proposal that would implement that provision, generally require creditors to determine that a consumer can repay a mortgage loan and include a requirement that these determinations assume a fullyamortizing loan. Thus, this law and 86 Id. 87 Id. at vii–viii. This revision was made after the third round of testing, and therefore was not tested with consumers. PO 00000 Frm 00031 Fmt 4701 Sfmt 4702 57347 regulation, when finalized, will restrict the origination of risky mortgages such as interest-only and negativelyamortizing ARMs. Other Dodd-Frank amendments to TILA, such as the proposed periodic statement provisions discussed below, will provide payment allocation information to consumers for each billing cycle. Thus, consumers who currently have interest-only or negatively-amortizing loans or may obtain such loans in the future will receive information about the interestonly or negatively-amortizing features of their loans through the payment allocation information in the periodic statement. Also, as noted above, consumer testing showed that participants were confused by the allocation table. Since the Bureau was not able to test a revised version of the form to see if it rectified the confusion caused by the allocation table or if the concepts of non-amortizing and negatively-amortizing ARMs themselves are the source of the confusion, the Bureau questions the value of disclosing this information to consumers in the ARM interest rate adjustment notice. In view of these changes to the law and the outcome of consumer testing, the Bureau solicits comments on whether to include allocation information for interest-only and negatively-amortizing ARMs in the table proposed above. 20(d)(2)(iv) Explanation of How the Interest Rate Is Determined TILA section 128A mandates that the initial interest rate adjustment notices include any index or formula used in making adjustments to or resetting the interest rate, and a source of information about the index or formula. Accordingly, proposed § 1026.20(d)(2)(iv)(A) would require disclosure of the name and published source of the index or formula. This disclosure requirement is consistent with the pre-consummation disclosure requirements of current rule § 1026.19(b)(2)(iii). Proposed § 1026.37(i), part of the 2012 TILA– RESPA Proposal, likewise would require disclosure of the index name prior to consummation. TILA section 128A also mandates that the initial interest rate disclosures include an explanation of how the new interest rate and payment would be determined, including an explanation of how the index was adjusted, such as by the addition of a margin. Proposed § 1026.20(d)(2)(iv) would require § 1026.20(d) notices to include an explanation of how the new interest rate is determined. This disclosure requirement is consistent with the pre- E:\FR\FM\17SEP3.SGM 17SEP3 57348 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS3 consummation disclosure requirements of current rule § 1026.19(b)(2)(iii). The 2012 TILA–RESPA Proposal’s proposed 1026.37(i) likewise would require disclosure prior to consummation of the amount of the margin expressed as a percentage. Consumer testing revealed that consumers generally have difficulty understanding the relationship of the index, margin, and interest rate.88 Therefore, the Bureau is proposing a relatively brief and simple explanation that the new interest rate is calculated by taking the published index rate and adding a certain number of percentage points, called the ‘‘margin.’’ Proposed § 1026.20(d)(2)(iii) also includes the specific amount of the margin. Consumer testing indicated that the explanation helped consumers better understand the relationship between the interest rate, index, and margin. It also helped dispel the notion held by many of the consumers in the initial rounds of testing that the lender subjectively determined their new interest rate at each adjustment.89 The Bureau believes that its proposed rule and forms strike an appropriate balance between providing consumers with key information necessary to understand the basic interest rate adjustment of their adjustable-rate mortgages without overloading consumers with complex and confusing technical information. 20(d)(2)(v) Rate Limits Proposed rule § 1026.20(d)(2)(v) would require the disclosure of any limits on the interest rate or payment increases at each adjustment and over the life of the loan. The Bureau believes that knowing the limitations of their ARM rates and payments would help consumers understand the consequences of each interest rate adjustment and weigh the relative benefits of the alternatives that would be required to be disclosed under proposed § 1026.20(d)(2)(viii). For example, if an adjustment might cause a significant increase in the consumer’s payment, knowing how much more the interest rate or payment could increase could help inform a consumer’s decision on whether or not to seek alternative financing. Proposed § 1026.20(d)(2)(v) also requires disclosure of the extent to which the creditor, assignee, or servicer has foregone any increase in the interest rate. If there is foregone interest, it would require disclosure that the additional interest was not applied due to a rate limit and include the earliest 88 Id. date such foregone interest may be applied. Proposed comment 20(d)(2)(iv)–1 explains that disclosure of foregone interest would apply only to transactions permitting interest rate carryover. It further explains that the amount of increase foregone at the initial adjustment is the amount that, subject to rate caps, can be added to future interest rate adjustments to increase, or offset decreases in, the rate determined according to the index or formula. Consumers had difficulty understanding the concept of interest rate carryover when it was introduced during the third round of testing. This difficulty may have been due to the simultaneous introduction of other complex notions, such as interest-only or negatively-amortizing features and the allocation of interest, principal, and escrow payments for such loans. In response, the Bureau has simplified the explanation of carryover interest.90 The Bureau recognizes that the disclosure of rate limits and unapplied carryover interest provide information that may help consumers better understand their ARMs. However, the Bureau is considering whether the help this information would provide outweighs its distraction from other more key information. Also, as explained above, consumers had difficulty understanding the concept of carryover interest and the Bureau is concerned this difficulty might diminish the effectiveness of the proposed § 1026.20(d) disclosures. The Bureau solicits comment on whether to include rate limits and unapplied carryover interest in the proposed § 1026.20(d) disclosures. 20(d)(2)(vi) Explanation of How the New Payment Is Determined TILA section 128A mandates that the initial interest rate notices include an explanation of how the new interest rate and payment would be determined, including an explanation of how the index was adjusted, such as by the addition of a margin. Proposed § 1026.20(d)(2)(vi) would implement this statutory provision by requiring the content discussed below. This proposed disclosure is consistent with the disclosures required at the time of application pursuant to current§ 1026.19(b)(2)(iii). It is also consistent with content required under proposed § 1026.20(c) and thus promotes consistency in Regulation Z ARM disclosures. The disclosure required under proposed § 1026.20(d)(2)(vi) explains at viii. 89 Id. VerDate Mar<15>2010 90 Id. 20:28 Sep 14, 2012 Jkt 226001 PO 00000 at viii-ix. Frm 00032 Fmt 4701 Sfmt 4702 that the new payment is based on (A) the index or formula, (B) any adjustment to the index or formula, such as by addition of the margin, (C) the loan balance, (D) the length of the remaining loan term, and, (E) if the new interest rate or new payment provided is an estimate, a statement that another disclosure containing the actual new interest rate and new payment will be provided to the consumer 2 to 4 months prior to the date the first new payment is due, if the interest rate adjustment causes a corresponding change in payment, pursuant to § 1026.20(c). The proposal would require disclosure of both the loan balance and the remaining loan term expected on the date of the interest rate adjustment. The proposed rule also would require disclosure of any change in the term or maturity of the loan caused by the adjustment. As discussed in proposed § 1026.20(d)(2)(iv) above, the Bureau found that this explanation helped consumers better understand how the index or formula and margin determine their new payment and dispelled the notion held by many consumers in the initial rounds of testing that, at each adjustment, the lender subjectively determined their new interest rate, and thus the new payment. Disclosure of the four key assumptions upon which the new payment is based provides a succinct overview of how the interest rate adjustment works. It also demonstrates that factors other than the index can increase consumers’ interest rates and payments. Disclosures of these factors would provide consumers with a snapshot of the current status of their adjustable-rate mortgages and with basic information to help them make decisions about keeping their current loan or shopping for alternatives. If an estimated new interest rate and new payment is used, the statement that the consumer will receive another disclosure with the actual new interest rate and new payment, if the interest rate adjustment results in a corresponding payment change, notifies consumers that the creditor, assignee, or servicer will inform them of the actual rate and payment two to four months in advance of the date their first new payment is due. 20(d)(2)(vii) Interest-Only and NegativeAmortization Statement and Payment Proposed § 1026.20(d)(2)(vii) would require § 1026.20(d) notices to include a statement regarding the allocation of payments to principal and interest for interest-only or negatively-amortizing loans. If negative amortization occurs as a result of the interest rate adjustment, E:\FR\FM\17SEP3.SGM 17SEP3 tkelley on DSK3SPTVN1PROD with PROPOSALS3 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules the proposed rule would require disclosure of the payment necessary to fully amortize such loans at the new interest rate over the remainder of the loan term. As explained in proposed comment 20(d)(2)(vii)–1, for interestonly loans, the statement would inform the consumer that the new payment covers all of the interest but none of the principal owed and, therefore, will not reduce the loan balance. For negativelyamortizing ARMs, the statement would inform the consumer that the new payment covers only part of the interest and none of the principal, and therefore the unpaid interest will add to the balance or increase the term of the loan. Both current § 1026.20(c) and the Board’s 2009 Closed-End Proposal to revise § 1026.20(c) include, for ARMs that become negatively amortizing as a result of the interest rate adjustment, disclosure of the payment necessary to fully amortize loans at the new interest rate over the remainder of the loan term. However, the Bureau believes there are countervailing considerations regarding whether to include this information in proposed § 1026.20(d). The Bureau recognizes that certain Dodd-Frank Act amendments to TILA will restrict origination of nonamortizing and negatively-amortizing loans. For example, TILA section 129C and the 2011 ATR Proposal that would implement that provision, generally require creditors to determine that a consumer can repay a mortgage loan and include a requirement that these determinations assume a fullyamortizing loan. Thus, this law and regulation, when finalized, will restrict the origination of risky mortgages such as interest-only and negativelyamortizing ARMs. Other Dodd-Frank Act amendments to TILA, such as the periodic statement proposed by § 1026.41, will include information about non-amortizing and negatively-amortizing loans in each billing cycle, such as an allocation of payments. Thus, consumers who currently have interest-only and negatively-amortizing ARMs or may obtain such loans in the future will receive certain information about the interest-only or negatively-amortizing features of their loans in another disclosure, although this will not include the payment required to fully amortize negatively-amortizing loans. The payment necessary to fully amortize these loans was not consumer tested but testing of the table showing the payment allocation of interest-only and negatively-amortizing ARMs indicated that consumers were confused by this concept. Thus, the Bureau is weighing the value of disclosing specific VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 information regarding amortization, such as the payment needed to fully amortize negatively-amortizing ARMs. In view of these changes to the law and the outcome of consumer testing, the Bureau solicits comments on whether to include the payment required to amortize ARMs that became negatively amortizing as a result of an interest rate adjustment. 20(d)(2)(viii) List of Alternatives TILA section 128A mandates that the initial interest rate adjustment notices include a list of alternatives consumers may pursue before adjustment or reset and descriptions of the actions consumers must take to pursue these alternatives. These alternatives include refinancing, renegotiation of loan terms, payment forbearance, and preforeclosure sales. Proposed § 1026.20(d)(2)(viii) would require disclosure in § 1026.20(d) initial ARM interest rate notices of the four alternatives set forth in the statute. The Bureau proposes to use simpler, commonly used terms in the model forms to describe the alternatives when possible. The proposed model forms present the list as possibilities for consumers seeking alternatives to the upcoming changes to their interest rate and payment. The proposed forms also explain that most of the alternatives are subject to approval by the lender. All participants tested in the first and second round of testing were able to identify the list of alternatives.91 The list of alternatives generally and concisely describes the actions consumers must take to pursue these alternatives, such as contacting their lender or another lender. Another action consumers may take to pursue these alternatives is contacting government organizations. Proposed § 1026.20(d)(2)(xi) would require disclosure in the initial ARM interest rate adjustment notice of information on how to contact such agencies, including the contact information for the State housing finance authority for the State in which the consumer resides and the Web site and telephone number to access the most current list of homeownership counselors or counseling organizations either made available by the Bureau or maintained by HUD. The Bureau proposes to require disclosure of this concise list of alternatives in lieu of a more detailed account of actions consumers may take in order to maximize the effectiveness of the disclosure without weighing it down 91 Id. PO 00000 at viii. Frm 00033 with information that may not add significant value. 20(d)(ix) Prepayment Penalty Proposed § 1026.20(c)(d)(ix) would require disclosure of the circumstances under which any prepayment penalty may be imposed, such as selling or refinancing the principal dwelling, the time period during which such penalty would apply, and the maximum dollar amount of the penalty. The proposed rule cross-references the definition of prepayment penalty in subpart E under § 1026.41(d)(7)(iv) in the proposed rule for periodic statements. Interest rate adjustments may cause payment shock or require consumers to pay their mortgage at a rate they may no longer be able to afford, prompting them to consider alternatives such as refinancing. In order to fully understand the implications of such actions, the Bureau believes that consumers should know whether prepayment penalties may apply. Such information should include the maximum penalty (in dollars) that may apply and the time period during which the penalty may be imposed. The dollar amount of the penalty, as opposed to a percentage, is more meaningful to consumers. The Bureau also proposes disclosure of any prepayment penalty in § 1026.20(c) ARM payment change notices and the periodic statements proposed by § 1026.41. Consumer testing of the periodic statement included a scenario in which a prepayment penalty applied. Most participants understood that a prepayment penalty applied if they paid off the balance of their loan early, but some participants were unclear whether it applied to the sale of the home, refinancing, or other alternative actions consumers could pursue in lieu of maintaining their adjustable-rate mortgages.92 For this reason, the Bureau proposes to clarify the circumstances under which a prepayment penalty would apply. The proposed forms alert consumers that a prepayment penalty may apply if they pay off their loan, refinance, or sell their home before the stated date. The Bureau recognizes that DoddFrank Act amendments to TILA, such as 129C and the 2011 ATR Proposal proposing to implement that provision, would significantly restrict a lender’s ability to impose prepayment penalties. Other Dodd-Frank amendments to TILA, such as the proposed periodic statement, would provide consumers with information about their prepayment penalty for each billing 92 Id. Fmt 4701 Sfmt 4702 57349 E:\FR\FM\17SEP3.SGM at vi. 17SEP3 57350 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules cycle. Thus, consumers who currently have ARMs with prepayment penalty provisions or may obtain such loans in the future would generally receive information about them at frequent intervals in another disclosure. In view of these changes to the law, the Bureau solicits comments on whether to include information regarding prepayment penalties in proposed § 1026.20(d). tkelley on DSK3SPTVN1PROD with PROPOSALS3 20(d)(2)(x) Telephone Number of Creditor, Assignee, or Servicer Proposed § 1026.20(d)(2)(x) would require disclosure of the telephone number of the creditor, assignee, or servicer for consumers to call if they anticipate having problems paying the new payment. 20(d)(2)(xi) Contact Information for Government Agencies and Counseling Agencies or Programs TILA section 128A mandates that the initial interest rate adjustment notices include the name, mailing and Internet address, and telephone number of the State housing finance authority (as defined in section 1301 of FIRREA) for the State in which the consumer resides. Proposed § 1026.20(d)(2)(xi) would implement this statutory mandate by requiring inclusion of this information in the § 1026.20(d) initial interest rate adjustment notice. Two other mortgage servicing rulemakings proposed by the Bureau, the periodic statement, see below, and the early intervention for delinquent borrowers in the 2012 RESPA Servicing Proposal, also would require contact information for the State housing finance authority. However, those proposals would require the contact information for the State in which the property is located rather than in which the consumer resides, since the scope of those proposed rules is not limited to a consumer’s principal dwelling. This is consistent with the proposed ARM rule since the consumer’s principal dwelling should be located in the State in which the property is located. The Bureau seeks comment on how to address any compliance difficulties posed by this inconsistency. TILA section 128A also mandates that the initial interest rate adjustment notices include the names, mailing and Internet addresses, and telephone numbers of counseling agencies or programs reasonably available to the consumer that have been certified or approved and made publicly available by HUD or a State housing finance authority. On July 9, 2012, the Bureau released proposed rules to implement other VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 Dodd-Frank Act requirements expanding protections for ‘‘high-cost’’ mortgage loans under HOEPA, including a requirement that borrowers receive housing counseling (2012 HOEPA Proposal).93 The 2012 HOEPA proposal also proposed to implement other homeownership-counselingrelated requirements that are not amendments to HOEPA, including a proposed amendment to Regulation X that lenders provide a list of five homeownership counselors or counseling organizations to applicants for a federally related mortgage loan.94 The Bureau has taken an alternative approach with regard to the initial ARM interest rate adjustment notice and proposes to use its exception authority to require creditors, assignees, and servicers simply to provide the Web site address to access either the Bureau list or the HUD list of homeownership counseling agencies and programs,95 instead of requiring contact information for a list of specific counseling agencies or programs. The Bureau believes that this approach appropriately balances consumer and industry interests based on the following considerations: The ARM notice required by proposed § 1026.20(d) has limited space and contains a significant amount of important technical information about the consumer’s loan. Including too much information could overwhelm consumers and minimize the value of the other information contained in the notice. Also, not all consumers would benefit from the counselor information, although it would provide an important benefit for those consumers who face 93 See 2012 HOEPA Proposal, available at http://files.consumerfinance.gov/f/ 201207_cfpb_proposed-rule_high-cost-mortgageprotections.pdf, at 29–35. 94 The list provided by the lender pursuant to the 2012 HOEPA Proposal would include only homeownership counselors or counseling organizations from either the most current list of homeownership counselors or counseling organizations made available by the Bureau for use by lenders, or the most current list maintained by HUD of homeownership counselors or counseling organizations certified by HUD, or otherwise approved by HUD. The 2012 HOEPA Proposal proposed that the list include five homeownership counselors or counseling organizations located in the zip code of the loan applicant’s current address, or, if there are not the requisite five counselors or counseling organizations in that zip code, then counselors or organizations within the zip code or zip codes closest to the loan applicant’s current address. To facilitate compliance with the proposed list requirement, the Bureau is expecting to develop a Web site portal that would allow lenders to type in the loan applicant’s zip code to generate the requisite list, which could then be printed for distribution to the loan applicant. See 2012 HOEPA Proposal at 31–32 (discussing proposed Regulation X § 1024.20(a)). 95 At the time of publishing, the Bureau list was not yet available; the HUD list is available at http://www.hud.gov/offices/hsg/sfh/hcc/hcs.cfm. PO 00000 Frm 00034 Fmt 4701 Sfmt 4702 financial difficulties if their initial interest rate adjustment may cause their mortgage payments to significantly increase. Finally, importing updated information from the Bureau or HUD Web site would involve more programming burden than simply listing one of the agencies’ Web sites. Providing consumers with the Web site address for either the Bureau or HUD list of homeownership counseling agencies and programs would streamline the disclosure and present clear and concise information for the consumer to use. However, directing consumers to the actual list would allow them to choose a conveniently located program or agency and to locate other programs or agencies if those contacted initially could not help the consumer at that time. The Bureau seeks comment on whether this proposal strikes an appropriate balance, and on the benefits and burdens to both consumers and industry of requiring that a list of several individual housing counselors be included in the initial ARM interest rate adjustment notice. Authority. The Bureau proposes to use its authority under TILA sections 105(a) and (f) and DFA section 1405(b) to exempt creditors, assignees, and servicers from the requirement in TILA section 128A to include in the initial ARM interest rate adjustment notice contact information for specific government-certified counseling agencies or programs reasonably available to the consumer, and its authority under TILA section 105(a) and DFA section 1405(b) to instead require that the initial ARM interest rate adjustment notice contain information that directs consumers to the Bureau list or HUD list of homeownership counselors or counseling agencies. For the reasons discussed above, the Bureau believes that the proposed exception and addition is necessary and proper under TILA section 105(a) both to effectuate the purposes of TILA—to promote the informed use of credit and protect consumers against inaccurate and unfair credit billing practices—and to facilitate compliance. Moreover, the Bureau believes, in light of the factors in TILA section 105(f), that disclosure of the government-certified counseling agencies or programs reasonably available to the consumer specified in TILA section 128A would not provide a meaningful benefit to consumers. Specifically, the Bureau considers that the exemption is proper irrespective of the amount of the loan and the status of the borrower (including related financial arrangements, financial sophistication, and the importance to the borrower of the loan). The Bureau E:\FR\FM\17SEP3.SGM 17SEP3 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS3 further notes, in light of TILA section 105(f)(2)(D), that the requirements in § 1026.20(d) would only apply to loans secured by the consumer’s principal dwelling. Moreover, in the estimation of the Bureau, the proposed exemption would simplify the initial ARM adjustment notice and improve the housing counselor information provided to the consumer, thus furthering the consumer protection purposes of TILA. In addition, consistent with section 1405(b) of the Dodd-Frank Act, the Bureau believes that the proposed modification of the requirements in TILA section 128A would improve consumer awareness and understanding and is in the interest of consumers and in the public interest. 20(d)(3) Format of Initial Rate Adjustment Disclosures As discussed above, the Bureau proposes to make proposed § 1026.20(d) subject to certain of the general form requirements of § 1026.17(a)(1), including requiring that the disclosure be clear and conspicuous, in writing, and in a form consumers can keep, and giving creditors, assignees, and servicers the option of providing the disclosures to consumers in electronic form, subject to compliance with consumer consent and other applicable provisions of the ESign Act. However, as discussed above, because § 1026.20(d) disclosures are subject to the statutory requirement that they must be provided separate and distinct from all other correspondence, the Bureau proposes to amend § 1026.17(a) to provide that the general segregation and grouping requirements in that provision would not apply to § 1026.20(d). Authority. In addition, as described below, § 1026.20(d)(3) proposes additional form requirements for initial ARM adjustment notices. For the reasons described below, these requirements are authorized under TILA section 105(a) and DFA sections 1032(a) and 1405(b). As discussed in the section-by-section analysis for each of the proposed sections of § 1026.20(d)(3), the Bureau believes, consistent with TILA section 105(a), that the proposed formatting requirements are necessary and proper to effectuate the purposes of TILA to assure a meaningful disclosure of credit terms, to avoid the uninformed use of credit, and to protect consumers against inaccurate and unfair credit billing practices. Further the Bureau believes, consistent with DFA section 1032(a), that the proposed formatting requirements ensure that the features of the ARM loans covered by proposed § 1026.20(d) are fully, accurately, and effectively disclosed to consumers in a VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 manner that permits them to understand the costs, benefits, and risks associated with such loans, in light of their individual facts and circumstances. Moreover, consistent with DFA section 1405(b), the Bureau believes that modification of the provision in TILA section 128A to require the proposed format discussed below would improve consumer awareness and understanding of residential mortgage loans transactions involving ARMs, and is thus in the interest of consumers and in the public interest. 20(d)(3)(i) All Disclosures in Tabular Form, Except the Date Proposed § 1026.20(d)(3)(i) would require that, except for the date of the notice, the initial ARM adjustment disclosures be provided in the form of a table and in the same order as, and with headings and format substantially similar to, Forms H–4(D)(3) and (4) in Appendix H to subpart C for initial interest rate adjustments. The proposed ARM adjustment notice contains complex concepts challenging for consumers to understand. For example, consumer testing revealed that participants generally had difficulty understanding the relationship among index, margin, and interest rate.96 They also had difficulty with the concepts of amortization and interest rate carryover.97 As a starting point, the Bureau looked at the model forms developed by the Board for its 2009 Closed-End Proposal to amend § 1026.20(c). The Bureau then conducted its own consumer testing. The Bureau’s testing showed that consumers can more readily understand these concepts when the information is presented to them in a simple manner and in the groupings contained in the model forms. The Bureau also observed that consumers more readily understood the concepts when they were presented in a logical order, with one concept presented as a foundation to understanding other concepts. For example, the form begins by informing consumers of the purpose of the form: That their interest rate is going to adjust, when it will adjust, and that the adjustment may change their mortgage payment. This introduction is immediately followed by a table visually showing the consumers’ current and estimated new interest rates. In another example, the proposed notice informs consumers about their index rate and margin before explaining how the new payment is calculated based on those factors as well as other factors 96 Macro 97 Id. PO 00000 Report, supra note 38, at viii. at viii-ix. Frm 00035 Fmt 4701 Sfmt 4702 57351 such as the loan balance and remaining loan term. Based on consumer testing, the Bureau believes that consumer understanding is enhanced by presenting the information in a simple manner, grouped together by concept, and in a specific order that allows consumers the opportunity to build upon knowledge gained. For these reasons, the Bureau proposes that creditors, assignees, or servicers disclose the information required by proposed § 1026.20(d) with headings, content, and format substantially similar to Forms H–4(D)(3) and (4) in Appendix H to this part. Over the course of consumer testing, participant comprehension improved with each successive iteration of the model form. As a result, the Bureau believes that displaying the information in tabular form focuses consumer attention and lends to greater understanding. Similarly, the Bureau found that the particular content and order of the information, as well as the specific headings and format used, presented the information in a way that consumers both could understand and from which they could benefit. 20(d)(3)(ii) Format of Date of Disclosure Proposed § 1026.20(d)(3)(ii) would require that the date of the disclosure appear outside of and above the table required by proposed § 1026.20(d)(3)(i). As discussed above with respect to paragraph 20(d)(2)(i), the date would be segregated since it is not information specific to the consumer’s adjustablerate mortgage. 20(d)(3)(iii) Format of Interest Rate and Payment Table Proposed § 1026.20(d)(3)(iii) would require tabular format for initial ARM interest rate adjustment notices for interest rates, payments, and the allocation of payments for loans that are interest-only or are negatively amortizing. This table would be located within the table proposed by § 1026.20(d)(3)(i). This table is substantially similar to the one tested by the Board for its 2009 Closed-End Proposal to revise § 1026.20(c). The proposal would require the table to follow the same order as, and have headings and format substantially similar to, Forms H–4(D)(3) and (4) in Appendix H of subpart C. Disclosing the current interest rate and payment in the same table allows consumers to readily compare them with the estimated or actual adjusted rate and new payment. Consumer testing revealed that nearly all participants were readily able to E:\FR\FM\17SEP3.SGM 17SEP3 57352 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules identify and understood the table and its contents.98 The estimated or actual new interest rate and payment and date the first new payment is due is key information the consumer must know in order to commence payment at the new rate. For these reasons, the Bureau proposes locating this information prominently in the disclosure. Section 1026.36 Prohibited Acts or Practices in Connection With Credit Secured by a Dwelling tkelley on DSK3SPTVN1PROD with PROPOSALS3 36(c) Servicing Practices Existing § 1026.36(c) provides requirements for servicers in connection with a consumer credit transaction secured by a consumer’s principal dwelling. Essentially, such servicers must promptly credit payments, must not ‘‘pyramid’’ late fees, and must provide payoff statements at the consumer’s request. The Dodd-Frank Act essentially codifies the § 1026.36(c) provisions on prompt crediting and payoff statements with minor changes, as discussed below. The Bureau is amending Regulation Z both to implement the new statutory requirements, and to address the related issue of the handling of partial payments. Currently, Regulation Z addresses prompt crediting in § 1026.36(c)(1)(i). The Bureau is proposing limiting the scope of existing § 1026.36(c)(1)(i) to full contractual payments, and addressing partial payments (anything less than a full contractual payment) in proposed § 1026.36(c)(1)(ii), as discussed below. The Bureau proposes to retain the substantive requirements on nonconforming payments currently in § 1026.36(c)(2), but to move them to paragraph (c)(1)(iii). Likewise, the Bureau does not propose to change the Regulation Z provision addressing ‘‘pyramiding’’ of late fees currently in § 1026.36(c)(1)(ii), but only to move the provision to new paragraph (c)(3). Finally, the Bureau is proposing four substantive changes to the provisions on payoff statements, currently located in § 1026.36(c)(1)(iii), as well as to move these provisions to proposed paragraph 36(c)(3). The Bureau believes these changes to Regulation Z are best implemented by restructuring paragraph (c) and simplifying some of the language. This restructuring generally is not intended to make any substantive changes. All substantive changes to the paragraph (c) are discussed below. 98 Id. at vii. VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 36(c)(1)(i) Full Contractual Payments DFA section 1464(a) established TILA section 129F, which codifies existing Regulation Z § 1026.36(c)(1)(i) with regard to prompt crediting of mortgage loan payments. The statute and the existing regulation both provide generally that ‘‘no servicer shall fail to credit a payment to the consumer’s loan account as of the date of receipt, except when a delay in crediting does not result in any charge to the consumer or in the reporting of negative information to a consumer reporting agency.’’ Proposed new paragraph (c)(1)(i) generally restates existing (c)(1)(i) with the only change that the existing regulation applies to all payments, while proposed (c)(1)(i) would be limited to full contractual payments. The Bureau is proposing to establish new § 1026.36(c)(1)(ii) to clarify servicers’ obligations when they receive a partial payment (anything less than a full contractual payment), as discussed below. As discussed above, proposed § 1026.36(c)(i) generally tracks the Dodd-Frank Act and current regulation, but changes the reference to ‘‘a payment’’ to ‘‘a full contractual payment’’ and makes minor modifications to reflect the proposed restructuring of the regulation. The proposed regulation text provides that a full contractual payment covers principal, interest, and escrow (if applicable), but not late fees. The Bureau engaged in outreach and found that many servicers already apply payments that cover principal, interest, and escrow (if applicable) without deducting late fees. This ensures that consumers get the full benefit of having made a payment. The Bureau seeks comment as to whether late fees should also be included in the definition of a full contractual payment. 36(c)(1)(ii) Partial Payments Current Regulation Z does not define what constitutes a ‘‘payment’’ for purposes of the crediting requirement, but leaves that question to be determined by the contractual documents and other applicable law. Specifically, current comment 36(c)(1)(i)–2 refers to ‘‘the legal obligation between the consumer and the creditor’’ as determined by ‘‘applicable state or other law’’ to determine whether a partial payment is a ‘‘payment’’ under the payment crediting provisions. Outreach to consumer and industry stakeholders revealed that partial payments are currently handled in a variety of ways. Some lenders do not accept partial PO 00000 Frm 00036 Fmt 4701 Sfmt 4702 payments, some lenders apply partial payments, and some lenders send partial payments to a suspense or unapplied funds account. Currently there is no Federal regulation that governs such accounts. The Bureau is proposing to address partial payments in new § 1026.36(c)(1)(ii). Proposed § 1026.36(c)(1)(ii) provides specific rules regarding the handling of partial payments and suspense accounts. New paragraph (c)(1)(ii) would require, consistent with the proposed periodic statement requirements in § 1026.41 discussed below, that if a servicer holds a partial payment, meaning any payment less than a full contractual payment, in a suspense or unapplied funds account, the servicer must disclose on the periodic statement the amount of funds held in such account. The servicer must also disclose when such funds will be applied to the outstanding payments due on the account. This proposed requirement is authorized under TILA section 129(f), which requires creditors, assignees, and servicers to send statements for each billing cycle including ‘‘[s]uch other information as the Bureau may prescribe in regulations.’’ Additionally, proposed § 1026.36(c)(1)(ii) provides that if a servicer holds a partial payment in a suspense or unapplied funds account, once there are sufficient funds in the account to cover a full contractual payment, the servicer must apply those funds to the oldest outstanding payment due. The proposed requirement that the funds be applied to the oldest outstanding payment would advance the date of delinquency by one billing cycle, and thus benefit the consumer. For example, suppose a previously current consumer must make a $1,000 monthly payment, and the consumer paid $500 on January 1st and $500 on February 1st. When the second $500 payment is made, a full contractual payment of $1,000 (assuming late fees are not included in the definition of full contractual payment) is in the suspense account and must be applied to the January payment. Thus, this consumer would only be one month delinquent at the end of February. The Bureau interprets the language in TILA section 129F(a), that servicers must ‘‘credit’’ payments as of the date of receipt, except when a delay in crediting does not result in ‘‘any charge’’ to the consumer to authorize the proposed requirement that partial payments held in suspense accounts be credited to the oldest outstanding payment when a full contractual payment accumulates. Crediting the funds to a payment that E:\FR\FM\17SEP3.SGM 17SEP3 tkelley on DSK3SPTVN1PROD with PROPOSALS3 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules was not the most delinquent would result in a charge to the consumer by extending the duration of the delinquency. To the extent not required under TILA section 129F(a), the Bureau believes this proposed requirement regarding crediting of funds is authorized under TILA section 105(a). As explained above, the Bureau believes the requirement is necessary and proper to effectuate the purpose of TILA to protect consumers against inaccurate and unfair credit billing practices by ensuring that funds held in a suspense account are promptly applied to the oldest outstanding payment when sufficient funds accumulate in such an account to cover a full contractual payment. Proposed comment 36(c)(1)(ii)–1 describes the servicer’s options upon receipt of a partial payment, including: Crediting the payment on receipt, returning the payment, or holding the payment in a suspense or unapplied funds account. The proposed regulation would leave servicers significant flexibility in the handling of partial payments in accordance with contractual terms and other applicable law, for instance by rejecting the payment, crediting it immediately, or holding it in a suspense account. However, the proposed rule would also ensure greater consistency in the handling of suspense accounts by requiring, consistent with proposed § 1026.41, that servicers disclose on the periodic statement that the funds are being held in such accounts and, once sufficient funds accumulate to cover a full contractual payment, that the servicer apply the funds to the oldest outstanding payment owed by the consumer. If sufficient funds accumulate to cover more than one full contractual payment, these funds would be applied to the next oldest outstanding payment. Partial payment amounts would be treated as described above. The Bureau believes this proposed approach would clarify servicers’ obligations in processing both full contractual payment and partial payments, as well as ensure all payments are properly applied. The proposed disclosures would help consumers understand that their payments are being held in a suspense account rather than having been applied, and when those partial payments would be applied. Additionally, requiring application to the oldest outstanding payment when a full payment accumulates will provide protection to consumers, as well as reduce the outstanding principal balance on certain consumer loans. VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 Finally, the Bureau seeks comment on if this approach is the proper way to address suspense accounts, and specifically, whether there should be time requirements on returning partial payments. If a servicer chooses not to accept a partial payment, must that payment be returned within a specific amount of time, and if so, how long should that time be? Additionally, the SBREFA Panel recommended the Bureau consider if additional flexibility can be provided in the proposed rule for small servicers, to the extent their current practices differ from the proposal and provide appropriate consumer protections.99 The Bureau seeks comment on whether the proposed rule differs from existing small servicer practices, and if so, how additional flexibility can be provided while still providing appropriate consumer protection. 36(c)(1)(iii) Non-Conforming Payments TILA section 129F(b) further provides that ‘‘[i]f a servicer specifies in writing requirements for the consumer to follow in making payments, but accepts a payment that does not conform to the requirements, the servicer shall credit the payment as of 5 days after receipt.’’ This provision codifies the treatment of non-conforming payments in current § 1026.36(c)(2). The Bureau is not making any substantive changes to this provision, as the current rule is clear and provides protection for consumers, but the Bureau proposes to redesignate the section as new § 1026.36(c)(1)(iii). The Bureau notes that payments held in a suspense or unapplied funds account, as addressed in proposed § 1026.36(c)(1)(ii) discussed above, would not be considered to have been ‘‘accepted’’ by the servicer. Thus, under the Bureau’s proposal, partial payments retained in suspense or unapplied funds accounts are treated as payments that have not been accepted subject to § 1026.36(c)(1)(ii), as opposed to nonconforming payments that have been accepted subject to proposed § 1026.36(c)(1)(iii), which must be credited within five days of receipt. 36(c)(2) Prohibition on Pyramiding of Late Fees The Bureau is not proposing any substantive changes to existing 36(c)(1)(ii), prohibiting the pyramiding of late fees. However the Bureau proposes redesignating this as new paragraph 36(c)(2). 99 SBREFA PO 00000 Final Report, supra note 22, at 32. Frm 00037 Fmt 4701 Sfmt 4702 57353 36(c)(3) Payoff Statements DFA section 1464(b) established TILA section 129G, which requires that a creditor or servicer send an accurate payoff balance amount to the consumer within a reasonable time, but in no case more than seven business days, after the receipt of a written request for such balance from or on behalf of the consumer. This provision generally codifies existing § 1026.36(c)(1)(iii) of Regulation Z regarding provision of payoff statements with four substantive changes. First, while existing Regulation Z only applied the requirements to servicers, the statute applies the requirements to both servicers and creditors. Second, the statute applies the prompt response requirement to ‘‘home loans,’’ rather than consumer credit transactions secured by the consumer’s principal dwelling. Third, the statute limits the reasonable time for responding to not more than seven business days; by contrast, existing comment 36(c)(1)(iii)–1 generally creates a five business day safe harbor for responding, but notes that it might be reasonable to take longer to respond in certain circumstances. Fourth, the statute requires a prompt response only to written requests for payoff amounts, while the existing regulation requires a prompt response to all such requests. Due to the reorganization of paragraph (c), the proposed provisions on payoff statements will be located in paragraph (c)(3). Covered persons. Existing § 1026.36(c)(1)(iii) applies to servicers. TILA section 129G, as established by DFA section 1464(b), applies the payoff statement requirement to creditors and servicers. For the reasons discussed in the section-by-section analysis of § 1026.20(d) above, the Bureau interprets this to mean the payoff statement provision applies to creditors, assignees, and servicers as applicable. Proposed comment 36(c)(3)–1 clarifies that a creditor who no longer owns the mortgage loan or the mortgage servicing rights is not ‘‘applicable’’ and therefore not subject to the payoff statement requirements. The Bureau notes that the other subparts of paragraph (c) continue to be limited to servicers. Scope. Existing § 1026.36(c)(1)(iii) is limited to consumer credit transactions secured by principal dwellings. The Bureau is proposing to expand the scope of the provision to consumer credit transactions secured by all dwellings. TILA section 129G, as established by DFA section 1464(b), applies the payoff statement requirement to ‘‘home loans,’’ a term not used elsewhere in TILA. The Bureau interprets this term to expand E:\FR\FM\17SEP3.SGM 17SEP3 57354 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS3 the scope of the requirement from consumer credit transaction secured by principal dwellings to consumer credit transactions secured by any dwelling. Thus, the proposed regulation applies to consumer credit transactions (both open- and closed-end), secured by a dwelling, not just a principal dwelling. The Bureau notes that the other subparts of paragraph (c) continue to be limited to consumer credit transactions secured by a consumer’s principal dwelling. Seven business days. Existing § 1026.36(c)(1)(iii) requires the payoff statement to be sent within a reasonable amount of time, and comment 36(c)(1)(iii)–1 clarifies that a reasonable time is ‘‘within 5 business days under most circumstances.’’ New TILA section 129G provides that a reasonable time may not be more than seven business days after the receipt of the request. Proposed § 1026.36(c)(3) reflects this change. Because of this change, the Bureau proposes removing existing comment 36(c)(1)(iii)–1. Written requests. Existing § 1026.36(c)(1)(iii) requires the payoff statement to be sent after a request is received from the consumer. New TILA section 129G limits the requirement to provide a prompt response to ‘‘written requests’’ for payoff statements. Thus proposed new paragraph (c)(3) would require payoff statements to be provided after receipt of a written request. Related comment (c)(3)–3 (renumbered from (c)(1)(iii)–3)), which provides examples of reasonable requirements the servicer may establish for payoff requests, is also updated to reflect this change. The SBREFA Panel recommended the Bureau consider if additional flexibility can be provided in the proposed rule for small servicers, to the extend their current practices differ from the proposal and provide appropriate consumer protections.100 The Bureau seeks comment on whether the proposed rule differs from existing small servicer practices, and if so, how additional flexibility can be provided while still providing appropriate consumer protection. Section 1026.41 Periodic Statements for Residential Mortgage Loans Proposed § 1026.41 would establish the periodic statement requirement for residential mortgage loans. This section implements TILA section 128(f) as established by DFA section 1420. The statute requires the periodic statement to disclose seven items of information (the amount of the principal obligation, current interest rate and reset date if applicable, information on prepayment 100 Id. VerDate Mar<15>2010 penalties and late fees, contact information for the servicer, and housing counselor information), as well as such other information as the Bureau may prescribe in regulations.101 The Bureau believes the periodic statement would provide the greatest value to consumers by also providing information regarding upcoming payment obligations and the application of past payments; a list of recent transaction activity; additional account information; and delinquency information. Thus, the Bureau proposes pursuant to TILA section 129(f)(1)(H) that each periodic statement also include this additional information. TILA section 128(f) applies the requirement to provide a periodic statement to creditors, assignees, and servicers of residential mortgage loans. To increase readability, proposed § 1026.41 uses the term ‘‘servicer’’ to describe the entities covered by the proposed requirement, and defines servicer to mean creditors, assignees, or servicers for the purposes of § 1026.41. This terminology is also used in the section-by-section analysis for proposed § 1026.41. The statute applies the periodic statement to ‘‘the creditor, assignee, or servicer.’’ Comment 41(a)– 3 clarifies that only one periodic statement must be sent to the consumer each billing cycle, while the creditor, assignee and servicer are subject to the periodic statement requirement, they may decide among themselves who will sent the statement. Comment 41(a)–4 clarifies that a creditor who no longer owns the mortgage loan or the mortgage servicing rights is not ‘‘applicable’’ and therefore not subject to the requirements. The Bureau interpretation of the statute would not apply the ongoing periodic statement requirements to an entity that originated the loan, but has sold both the loan and the servicing rights and no longer has any connection to the loan. As proposed, the periodic statement carefully balances the need to provide consumers with sufficient information against the risk of overwhelming consumers with too much information. The proposed requirements are designed to make the statement easy to read, whether provided in a paper form or electronically. The Bureau believes that imposing a requirement that information be grouped would present the information in a logical format, while allowing servicers flexibility in customizing the statement. Thus, the proposed regulations discussed below would require the following groupings of information: 101 TILA 20:28 Sep 14, 2012 Jkt 226001 PO 00000 section 129(f)(1). Frm 00038 Fmt 4701 Sfmt 4702 • The Amount Due: The most prominent disclosure on the statement would be the amount due. The due date of the payment due and information on the late fee is also included in this grouping. • Explanation of Amount Due: This grouping would include a breakdown of the amount due, showing allocation to principal, interest, and escrow. This grouping would also provide the total sum of any fees or charges imposed, and any amount of past due payment. • Past Payment Breakdown: This grouping would include a breakdown of how previous payments were applied. • Transaction Activity: This grouping would be a list of any activity that credits or debits the outstanding account balance, for example, charges imposed or payments received. The periodic statement would also include the following information: • Certain messages as required at certain times (for example, information on funds held in a suspense or unapplied funds account). • Contact information for the servicer. • Account information as required by the statute, including the amount of the principal obligation, current interest rate, and when it might change (if applicable), information on prepayment penalties (if applicable) and late fees, contact information for the servicer, and housing counselor information. • Finally, additional delinquency information would be required when a consumer is more than 45 days delinquent on his or her loan. Each of these disclosures is discussed below. Additionally, the proposed regulation sets forth requirements regarding the timing and form of the periodic statement and establishes exemptions to the requirement to provide a periodic statement. 41(a) In General Proposed § 1026.41(a) states the general requirement that, for a closedend consumer credit transaction secured by a dwelling, a creditor, assignee, or servicer must transmit to the consumer for each billing cycle a periodic statement meeting the timing, form, and content requirements of § 1026.41, unless an exemption applies. As discussed below, the proposed requirements and exemptions are authorized under TILA sections 128(f), and 105(a) and (f), and DFA sections 1032(a) and 1405(b). As discussed above, the periodic statement is intended to serve a variety of purposes, including informing consumers of their payment obligations, providing information about the E:\FR\FM\17SEP3.SGM 17SEP3 tkelley on DSK3SPTVN1PROD with PROPOSALS3 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules mortgage loan, creating a record of transactions that increase or decrease the outstanding balance, providing the information needed to identify and assert errors, and providing information when borrowers are delinquent. To meet these goals, paragraphs (b), (c), and (d) respectively, propose the requirements for the timing, form, content, and layout of the periodic statement. Paragraph (e) proposes exemptions from the proposed periodic statement requirement. Entities covered. TILA section 128(f) imposes the periodic statement requirement on creditors, assignees, and servicers. Proposed § 1026.41(a) would implement this provision by specifying that the duty to transmit periodic statements applies to the servicer, defined to mean creditor, assignee, or servicer. The consumer is only required to receive one periodic statement each billing cycle, but creditors, assignees, and servicers would all be responsible for ensuring that the consumer receives a periodic statement that meets the requirements of § 1026.41. Scope. Under TILA section 128(f), the periodic statement requirement applies to residential mortgage loans. The term ‘‘residential mortgage loan’’ is generally defined in TILA section 103(cc)(5) to mean any consumer credit transaction that is secured by a mortgage, deed of trust, or other equivalent consensual security interest on a dwelling or on residential real property that includes a dwelling, other than a consumer credit transaction under an open-end credit plan. Consistent with this definition, proposed paragraph (a) would apply the periodic statement requirement to ‘‘any closed-end consumer credit transaction secured by a dwelling.’’ This language implements the substantive scope of the statute; no substantive change is intended. Transmit to the consumer. Proposed § 1026.41(a) would require the servicer to transmit the periodic statement to the consumer. The term ‘‘transmit’’ is used in the statute. Use of this term would indicate that the servicer must do more than simply make the statement available; the statement would be required to be sent to the consumer. Paper statements mailed to the consumer would meet this requirement. As discussed below with respect to proposed § 1026.41(c), if the servicer is using an electronic method of distribution, a servicer may send the consumer an email indicating that the statement is available, rather than attaching the statement itself, to account for information security concerns. Proposed comment 41(a)–1 clarifies that joint obligors need not receive separate statements; a single statement VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 addressed to both of them would satisfy the periodic statement requirement. Billing cycles. Proposed § 1026.41(a) would require a periodic statement to be sent each ‘‘billing cycle.’’ The billing cycle corresponds to the frequency of payments, as established by the legal obligation of the consumer as determined by the mortgage note and any subsequent modifications to that obligation. Thus, if a loan requires the consumer to make monthly payments, that consumer will have a monthly billing cycle. Likewise, if a consumer makes quarterly payments, that consumer will have a quarterly billing cycle. Based on industry outreach, the Bureau has learned of other alternatives to monthly billing cycles. Some loans may be timed to accommodate consumers employed in seasonal industries (for example, a loan may have 10 payments over the course of a year). For such loans the billing cycle may not align with the calendar months. Another non-monthly payment arrangement may occur when payments are made every other week, or other similar less-thenmonthly periods. For example, servicers and consumers may arrange a bi-weekly payment program to align mortgage payments with the consumer’s paychecks. Such billing cycles may be arrangements with the servicer that do not modify the legal obligation of the consumer. In such cases, a periodic statement may, but is not required to, reflect this modified payment cycle. The Bureau realizes that a requirement to provide statements every other week may be costly for servicers and unhelpful to consumers. In addition, such a short cycle may cause problems with information on the statement being outdated. Thus, paragraph (a) allows that if a loan has a billing cycle shorter than a period of 31 days (for example, a bi-weekly billing cycle), a periodic statement covering an entire month may be used. Related proposed comment 41(a)–2 clarifies how such a single statement would aggregate information from multiple billing cycles. Authority. Proposed paragraph (a) implements new TILA section 128(f)(1) requiring that a creditor, assignee, or servicer, with respect to any closed-end consumer credit transaction secured by a dwelling must transmit a periodic statement to the consumer. In addition, the Bureau proposes in paragraph (a) to use its authority under TILA section 105(a) and (f) and DFA section 1405(b) to exempt creditors, assignees, and servicers of residential mortgage loans from the requirement in TILA section 128(f)(1)(G) to transmit periodic PO 00000 Frm 00039 Fmt 4701 Sfmt 4702 57355 statement each billing cycle when the billing cycle is less than a month, and to instead permit servicers to provide an aggregated periodic statement covering an entire month. For the reasons discussed above, the Bureau believes that the proposed exception is necessary and proper under TILA section 105(a) both to effectuate the purposes of TILA—to promote the informed use of credit and protect consumers against inaccurate and unfair credit billing practices—and to facilitate compliance. Moreover, the Bureau believes, in light of the factors in TILA section 105(f), that sending periodic statements more than once a month would not provide a meaningful benefit to consumers. Specifically, the Bureau considers that the exemption is proper irrespective of the amount of the loan, the status of the borrower (including related financial arrangements, financial sophistication, and the importance to the borrower of the loan), or whether the loan is secured by the principal residence of the consumer. Further, in the estimation of the Bureau, consistent with DFA section 1405(b), the proposed exemption will prevent the consumer confusion that might result from receiving multiple periodic statements in close sequence, thus furthering the consumer protection purposes of the statute. Paragraph (b) interprets the statutory requirement that a periodic statement must be provided for each billing cycle by requiring the periodic statement be delivered or placed in the mail within a reasonably prompt time after the close of the grace period of the previous billing cycle. Paragraph (c) invokes authority under TILA sections 105(a), 122, and 128(f)(2) to require that the disclosures must be made clearly and conspicuously in writing, or electronically if the consumer agrees, and in a form the consumer may keep. The Bureau also interprets the statute to mandate certain of these form requirements. As discussed in more detail below, the Bureau generally proposes to impose the periodic statement requirement pursuant to its authority under TILA sections 128(f) and 105(a), and DFA sections 1032(a) and 1405(b). 41(b) Timing of the Periodic Statement Proposed § 1026.41(b) provides that the periodic statement must be sent within a reasonably prompt time after the close of the grace period of the previous billing cycle. Proposed comment 41(b)–1 provides that four days after the close of any grace period would be considered reasonably prompt. E:\FR\FM\17SEP3.SGM 17SEP3 tkelley on DSK3SPTVN1PROD with PROPOSALS3 57356 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules For the first payment on the mortgage loan, proposed paragraph (b) would require that the first periodic statement be sent no later than 10 days before this first payment is due. This adjustment is necessary because there is no previous billing cycle from which to time the sending of the first statement. The periodic statement serves the dual purposes of giving an accounting of payments received since the pervious periodic statement, and reminding the consumer about the upcoming payment. To achieve these dual purposes, the periodic statement must arrive after the last payment was received and before the next payment is due, which can be a relatively narrow window. If a payment is due on the first of the month, grace periods may give the consumer as late as the 15th of the month to make that payment. Thus, if a statement is sent before the 15th of the month, that statement may not reflect the consumer’s most recent payment, or any late charge imposed due to a late payment. However, if a statement is sent at the close of the month, that statement may not arrive before the next payment is due on the first day of the next month. Allowing a few days for processing and mailing of statements creates a tight timeframe. The Bureau seeks comment on whether the proposed regulation appropriately addresses this timeframe. Additionally, the Bureau seeks comment on whether it is operationally difficult to have the first statement delivered or placed in the mail 10 days before the first payment is due. The Bureau interprets the requirement in TILA section 128(f) that periodic statements be sent for ‘‘each billing cycle’’ to authorize the timing requirements proposed in § 1026.41(b). In addition, the proposed timing requirements are authorized under TILA section 105(a), and DFA sections 1032(a) and 1405(b). For the reasons noted above, the Bureau believes, consistent with TILA section 105(a), that the proposed requirements are necessary and proper to effectuate the purposes of TILA to assure a meaningful disclosure of credit terms and protect consumers against inaccurate and unfair credit billing practices by assuring that consumers receive the periodic statement at a time that is useful to them. In addition, consistent with DFA section 1032(a), the Bureau believes that the proposed timing requirements help ensure that the features of consumers’ residential mortgage loans, both initially and over the term of the loan, are effectively disclosed to consumers in a manner that permits them to understand the costs, benefits, and risks associated VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 with the loan. Moreover, consistent with DFA section 1405(b), the Bureau believes that the proposed timing requirements would improve consumer awareness and understanding of their residential mortgage loans by assuring that consumers receive the periodic statements at a meaningful time, after their last payment is made and before their next payment is due, and that proposed requirements are thus in the interest of consumers. 41(c) Form of the Periodic Statement Proposed § 1026.41(c) provides that the periodic statement disclosures required by section § 1026.41 must be made clearly and conspicuously in writing, or electronically, if the consumer agrees, and in a form the consumer may keep. TILA section 128(f)(1) specifies that periodic statements must be ‘‘conspicuous and prominent,’’ and TILA section 128(f)(2) requires the Bureau to develop and prescribe a standard form to be transmitted in writing or electronically. The Bureau proposes to implement these provisions, in part through the form requirements set forth in proposed § 1026.41(c) and the related forms provided in Appendix H–28. In addition, the proposed form requirements are authorized under TILA section 122, which requires the disclosures under TILA be clear and conspicuous, TILA section 105(a) and DFA sections 1032(a) and 1405(b). As discussed below, the Bureau believes, consistent with TILA section 105(a), that the proposed form requirements are necessary and proper to effectuate the purposes of TILA to assure a meaningful disclosure of credit terms and protect the consumer against inaccurate and unfair credit billing practices by assuring that the periodic statement sent to consumers is in a form that they can understand. In addition, consistent with DFA section 1032(a), the Bureau believes that the proposed form requirements help ensure that the features of consumers’ residential mortgage loans, both initially and over the term of the loan, are effectively disclosed to consumers in a manner that permits them to understand the costs, benefits, and risks associated with the loan. Moreover, consistent with DFA section 1405(b), the Bureau believes that the proposed form requirements would improve consumer awareness and understanding of their residential mortgage loans by assuring that the periodic statements sent to consumers are in a useable form that is easy to understand and that the form requirements are thus in the interest of consumers and the public interest. PO 00000 Frm 00040 Fmt 4701 Sfmt 4702 Clear and conspicuous. TILA section 122 requires that disclosures under TILA be clear and conspicuous. Existing § 1026.31(b) generally implements this requirement with respect to disclosures required by subpart E, where new § 1026.41 will be located. Section 1026.31(b) applies only to creditors, however. Thus, to make this requirement applicable to servicers (defined to include creditors and assignees), proposed paragraph 41(c) would require, consistent with TILA section 122 and existing § 1026.31(b), that the periodic statement be clear and conspicuous. Proposed comment 41(c)– 1 clarifies the clear and conspicuous standard, stating that it generally requires that disclosures be in a reasonably understandable form, and explains that other information may be included on the statement, so long as that other information does not overwhelm or obscure the required disclosures. Thus, information that is traditionally found on their periodic statements, but not proposed as required by this regulation, such as the servicer’s logo, information on payment methods, or additional information on escrow accounts, may continue to be included on periodic statements. Additional information. Proposed comment 41(c)–2 states that nothing in this subpart prohibits a servicer from including additional information or combining disclosures required by other laws with the disclosures required by § 1026.41, unless such prohibition is expressly set forth in § 1026.41 or the applicable law. For example, the grouping requirements discussed below may not be overridden by additional information in the statement. Based on industry outreach, the Bureau understands that some institutions provide a combined statement for mortgage loans and other financial products. For example if a consumer has both a checking account and a mortgage with a credit union, the consumer may receive a single combined statement. The Bureau seeks comment on how servicers would actually combine statements. In particular, the Bureau notes that difficulties may arise when different disclosures have different timing requirements, and when multiple disclosures have requirements that information be presented on the first page of the statement. For example, if both mortgage loan disclosures and credit card disclosures are required to be on the first page of a statement, how would these statements be combined? Electronic distribution. TILA section 128(f)(2) provides that periodic statements ‘‘may be transmitted in E:\FR\FM\17SEP3.SGM 17SEP3 tkelley on DSK3SPTVN1PROD with PROPOSALS3 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules writing or electronically.’’ Consistent with this provision, proposed § 1026.41(c) would allow statements to be provided electronically, if the consumer agrees. As discussed above, the requirement to transmit a periodic statement to the consumer may be met by sending the consumer an e-mail notification that the statement is available, rather than e-mailing the statement itself in light of information security concerns. This paragraph would require only affirmative consent by the consumer to receive statements, not compliance with E-Sign verification procedures. The Bureau does not believe E-Sign consent is required by the statute. E-Sign is designed to provide an electronic alternative to required writings. The statute, however, requires only periodic ‘‘statements’’ as opposed to ‘‘writings’’ to be transmitted to consumers. Additionally, the statute contemplates electronic statements, as TILA section 129(f)(2) provides that the Bureau shall prescribe a standard form, taking into account that the statements required may be transmitted in writing or electronically. Thus, the Bureau believes that Congress did not intend to require E-Sign verification procedures. The Bureau seeks comment as to whether additional requirements should be placed on when a consumer consents to receiving electronic statements. For example, must consent be obtained or confirmed electronically in a manner that demonstrates that the consumer is able to access information electronically? The Bureau also seeks comment on whether consumers who already receive electronic statements should be deemed as having consented to receive statements electronically. Additionally, the Bureau seeks comment on whether consumers who have auto-debit set up to deduct payments from their bank account should be deemed as having consented to receive statements electronically. Retainability. Proposed § 1026.41(c) would require the disclosure be provided in a form the consumer may keep. Paper statements sent by mail or provided in person, would satisfy this requirement. If electronic statements are used, they must be in a form which the consumer can print or download. Sample forms. Proposed § 1026.41(c) also states that sample forms are provided in Appendix H–28, and that appropriate use of these forms will be deemed to comply with the section. The sample forms were developed through consumer testing as discussed in part III.B above, and are intended to give guidance regarding compliance with proposed § 1026.41. However, they are not required forms, and any VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 arrangements of the information that meet the requirements of proposed § 1026.41 would be considered in compliance with the section. The sample forms also contain additional information (for example, a tear-off coupon on the bottom) that is not required to be on the form, but is included to give context to the sample. These proposed regulations and sample forms were crafted to give servicers flexibility in designing their periodic statements. The Bureau proposes these sample forms pursuant to its authority, inter alia, under TILA section 128(f)(2). 41(d) Content and Layout of the Periodic Statement Proposed § 1026.41(d) contains content and layout requirements that implement, in part, TILA section 128(f), and is additionally authorized under TILA section 105(a) and DFA sections 1302(a) and 1405(b). The content required by paragraph (d) is authorized under TILA section 128(f)(1). Such content is authorized as follows: • Statutorily-required content: TILA sections 128(f)(1)(a) through (g) requires the inclusion of certain items of information in the periodic statement. The proposed regulation generally implement these provisions by requiring the content set forth in § 1026.41(d)(1)(ii), (6) and (7), and the description of late fees in § 1026.41(d)(4). • Additional content: TILA section 128(f)(1)(H) requires inclusion in periodic statements of such other information as the Bureau may prescribe by regulation. The remainder of the content of the periodic statement is proposed under this authority. The grouping and other form requirements of the layout in paragraph (d) implement, in part, the requirement under TILA section 128(f)(1) that the content of the periodic statement be presented in a conspicuous and prominent manner, and under TILA section 128(f)(2) for the Bureau to develop and prescribe a standard form for the periodic statement disclosure. In addition, as discussed above with respect to the form requirements under § 1026.41(c) and for the reasons explained below, the proposed grouping and form requirements under § 1026.41(d) are authorized under TILA section 105(a) and DFA sections 1032(a) and 1405(b). The periodic statement is designed to provide the consumer with information in an easy-to-read format. The goal of the proposed grouping and form requirements is to highlight key information—the amount due—and PO 00000 Frm 00041 Fmt 4701 Sfmt 4702 57357 organize information so the statement would not be overwhelming to the consumer. The commentary to paragraph (d), discussed below, reflects these goals. Exemptions and adjustments: TILA section 128(f)(1)(G) requires the periodic statement to include the names, addresses and other contact information for government-certified counseling agencies or programs reasonably available to the consumer. For the reasons discussed below, the Bureau proposes to use its authority under TILA section 105(a) and (f) to exempt servicers from having to include this information in periodic statements to and to instead require the periodic statement to include contact information for the State housing finance authority for the State in which the property is located and information to access the HUD list or Bureau list of homeownership counselors or counseling organizations. This adjustment is additionally authorized under DFA section 1405(b). Close proximity. Proposed § 1026.41(d) would require specific disclosures be grouped together and presented in close proximity. Information is grouped together to aid the consumer in understanding relatively complex information about their mortgage. The General Design Principles discussed in the Macro final report (Macro Report) include grouping together related concepts and figures because consumers are likely to find it easier to absorb and make sense of financial forms if the information is grouped in a logical way.102 Proposed comment 41(d)–1 clarifies that close proximity requires items to be grouped together and set off from the other groupings of items. This can be accomplished, for example, by including lines or boxes on the statement, or by including white space between the groupings. Items required to be in close proximity should not have any intervening text between them. The close proximity standard is found in other parts of Regulation Z, including §§ 1026.24(b) and 1026.48. In both provisions, the commentary interprets close proximity to require the information to be located immediately next to or directly above or below, without any intervening text or graphical displays.103 Information not applicable. Proposed comment 41(d)–2 provides that information that is not applicable to the loan may be omitted from a periodic statement. For example, if a loan does 102 Macro 103 See E:\FR\FM\17SEP3.SGM Report, supra note 38, at 4. comments 24(b)–2 and 48–3 respectively. 17SEP3 57358 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS3 not have a prepayment penalty, the periodic statement may omit the prepayment penalty disclosure. Terminology. Proposed comment 41(d)–3 provides that the periodic statement may use terminology other than that found on the sample forms so long as the new terminology is commonly understood. This gives servicers the flexibility to use regional terminology or commonly used terms with which consumers are familiar. For example, during consumer testing in California, participants were confused by the use of the term ‘‘escrow.’’ One participant explained that in California, the term ‘‘escrow’’ refers to an account set up to hold funds until a homebuyer closes on the house. This participant said he was more familiar with the term ‘‘impound account’’ to refer to the account holding funds for taxes and insurance.104 In this example, use of the term ‘‘impound account’’ to refer to the escrow account for taxes and insurance would be permitted for periodic statements provided to consumers in California. 41(d)(1) Amount Due Proposed § 1026.41(d)(1) would require the periodic statement to provide information on the amount due, the payment due date, and the amount of any fee that would be assessed for a late payment, as well as the date on which that fee would be imposed if payment is not received. This information would have to be grouped together and located at the top of the first page of the statement. The amount due would have to be more prominent than any information on the page. This is consistent with the general principle of designing disclosures to highlight the most important information for consumers to make it easy for them to find.105 A primary purpose of the periodic statement is to alert the consumer to upcoming payment obligations. The Bureau interprets TILA section 129(f)(E), which requires the periodic statement to include a description of any late payment fees, to require disclosure of the amount of any fees that would be assessed for late payments as well as the date the fee would be imposed if the payment has not been received, as well as other information regarding late fees discussed below. Although information concerning the amount due and the payment due date is not enumerated in the statute, the Bureau believes that this is the information the consumer is most likely to need. Because of the Report, supra note 38, at 12. at 4. importance of this information, it is placed in the prominent position of the top of the first page, and the total amount must be the most prominent item on the page. In consumer testing, all participants were able to identify the amount due on the sample periodic statement presented to them.106 If the consumer has a payment-option loan, each of the payment options must be displayed with the amount due information. An example of such a statement is included in proposed Appendix H–28(C). Additionally, the Explanation of Amount Due would require inclusion of information about how each of the payment options will affect the outstanding loan balance. A form with such a box was tested during consumer testing. All but one of the participants were able to understand the effects the different payment options would have on their loan balance—that the loan balance would decrease, stay the same (for interest-only payments) or increase.108 A sample form is provided in Appendix H–28(C). 41(d)(2) Explanation of Amount Due Proposed § 1026.41(d)(2) would require periodic statements to include an explanation of the amount due, providing the monthly payment amount, including the allocation of that payment to principal, interest and escrow (if applicable). Additionally, the statement would have to provide the total fees or charges incurred since the last statement, and any amount past-due (which would include both over-due payments and over-due fees). This information would have to be grouped together in close proximity and located on the first page of the statement. The Explanation of Amount Due is intended to give consumers a snapshot of why they are being asked to pay the amount due. At a glance, consumers would be able to see their payment amount; how much is allocated to principal, interest and escrow (if applicable); and the total fees or other charges incurred since the last statement; and any post-due amounts. In this section, the fees incurred since the last statement would be shown in aggregate; a breakdown of the individual fees would be provided in the Transaction Activity section, discussed below. Additionally, this section would show the total of past due payments and fees from previous billing cycles. In the first round of consumer testing, Macro tested the form to see if participants were able to understand what charges constituted the total amount due. The sample form used in testing showed a late payment fee. After looking at the Explanation of Amount Due, all participants understood the amount due included a regular monthly payment and a late fee.107 This indicates that the Explanation of Amount Due helps consumers understand the amount they need to pay. If the consumer has a payment-option loan, a breakdown of each of the payment options would be required in the Explanation of Amount Due. 41(d)(3) Past Payment Breakdown Proposed paragraph (d)(3) would require periodic statements to include a snapshot of how past payments have been applied. Proposed § 1026.41(d)(3)(i) would require the periodic statement to include both the total of all payments received since the last statement and a breakdown of how those payments were applied to principal, interest, escrow, fees, and charges, and any partial payment or suspense account (if applicable). Proposed § 1026.41(d)(3)(ii) would require the total of all payments received since the beginning of the calendar year and a breakdown of how those payments were applied to principal, interest, escrow, fees, and charges, as well as the amount currently held in any partial payment or suspense account (if applicable). This information would have to be grouped together in close proximity, and located on the first page of the statement. The past payment breakdown disclosure serves several purposes on the periodic statement, including creating a record of payment application, providing the consumer information needed to assert any errors, and providing information about the mortgage expenses. The breakdown in paragraph (d)(3)(i), showing all payments made since the last statement, would allow the consumer to confirm that his or her payments was properly applied. If the payments were not properly applied, the breakdown would provide the consumers the information needed to assert an error. Although testing participants had some confusion about partial payments as discussed below, they were able to identify how their payments had been applied based on the past payment breakdown information included on the sample statement.109 Both the breakdown since the last billing cycle and the breakdown of the 104 Macro 106 See 105 Id. 107 Id. VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 PO 00000 id. at 6. Frm 00042 108 Id. 109 Id. Fmt 4701 Sfmt 4702 E:\FR\FM\17SEP3.SGM at 14. at 9. 17SEP3 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS3 year-to-date play an important role in educating the consumer. The payments since the last statement inform consumers of how much their outstanding principal has decreased, while the year-to-date information educates consumers on the costs of their mortgage loan. Consumer testing revealed that consumers may be surprised by how much of their payment is going to interest or fees as opposed to principal. Aggregated over the year-to-date can bring this expense to a consumers’ attention, and motivate them to possibly change behaviors that are generating significant expenses. For example, consumers who habitually submit their payment a few days late may correct this behavior if they realize it is costing them hundreds of dollars a year. The breakdown of all payments made in the current calendar year to date is of particular importance in educating consumers about their loans, especially since there is no other mandated year-end summary of all payments received and their application. The past payment breakdown, of both the payments since the last statement, and payments for the year to date, provides the consumer with important information that is not currently required to be disclosed. Partial Payments. Proposed comment 41(d)(3)-1 provides guidance on how partial payments that have been sent to a suspense account should be reflected in the past payments breakdown section of the periodic statement. The proposed comment provides illustrative examples of how partial payments sent to a suspense account should be listed as unapplied funds since the last statement and year to date. Consumer testing revealed that consumers have very little understanding about how partial payments are handled.110 As discussed in part IV.C above, the periodic statement is designed to help consumers understand how partial payments are processed. The past payment breakdown is useful in communicating information about partial payments and suspense accounts to consumers. 41(d)(4) Transaction Activity Proposed § 1026.41(d)(4) would require the periodic statement to include a Transaction Activity section that lists any activity since the last statement that credits or debits the outstanding account balance. For each transaction, the statement would include the date of the transaction, a description of the transaction, and the amount of the transaction. This information must be grouped together, 110 Id. at 11. VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 but may be provided anywhere on the statement. Proposed comment 41(d)(4)–1 clarifies that transaction activity includes any activity that credits or debits the outstanding loan balance. For example, proposed comment 41(d)(4)–1 states that transaction activity would include, without limitation, payments received and applied, payments received and sent to a suspense account, and the imposition of any fee or charge. Thus, the Transaction Activity section would provide a list of all charges and payments, covering the time from the last statement until the current statement is printed. This disclosure would allow the consumer to understand what charges are being imposed and provide further detail regarding the aggregated numbers found in the ‘‘Explanation of Amount Due’’ section. The Transaction Activity section would provide a record of the account since the last statement, allowing the consumer to review for errors, ensure payments were received, and understand any and all costs. If a servicer receives a partial payment and decides to return the payment to the consumer, such a payment would not need to be included as a line item in the Transaction Activity section, because this activity would neither credit nor debit the outstanding account balance. The Bureau seeks comment on whether the periodic statement should be required to include a message under paragraph (d)(5) when a partial payment is returned to the consumer. Late fee description. Proposed comment 41(d)(4)–2 clarifies that the description of any late fee charge in the transaction activity section includes the date of the late fee, the amount of the late fee, and the fact that a late fee was imposed. The Bureau interprets TILA section 129(f)(E), which requires that the periodic statement include ‘‘a description’’ of any late payment fees, to require disclosure of this information, as well as information regarding late fees discussed above. Suspense accounts. Proposed comment 41(d)(4)–3 clarifies that if a partial payment is sent to a suspense account, the fact of the transfer should be reflected in the transaction description (for example, a partial payment entry in the transaction activity might read: ‘‘Partial payment sent to suspense account’’), the funds sent to the suspense account should be reflected in the unapplied funds section of the past payment breakdown, and an explanation of what must be done to release the funds should be provided in the messages section. The messages section, discussed below, should PO 00000 Frm 00043 Fmt 4701 Sfmt 4702 57359 include an explanation of what the consumer must do to release the funds from the suspense account. 41(d)(5) Messages Proposed § 1026.41(d)(5) would require a message on the front of the statement if a partial payment of funds is being held in a suspense account regarding what must be done for the funds to be applied. The Bureau seeks comment on what, if any, additional messages should be required. In particular, the Bureau seeks comment on whether there should be a required disclosure where the consumer has a negatively-amortizing or interestonly loan. Additionally, the Bureau seeks comment on whether there should be a required disclosure on private mortgage insurance and when it may be eliminated. Finally, the Bureau seeks comment as to if more than one message is required, and if so, should these be grouped together and should these messages be required to be on the first page of the statement? 41(d)(6) Contact Information Proposed § 1026.41(d)(6) would require that the periodic statement contain contact information specifying where a consumer may obtain information regarding the mortgage. Proposed comment 41(d)(6)–2 clarifies that this contact information must be the same as the contact information for asserting errors or requesting information. The Bureau seeks comment on whether consumers are likely to contact the servicer for information other than errors or inquiries, which would necessitate a different number being included on the periodic statement. Proposed § 1026.41(d)(6) provides that the contact information provided must include a toll-free telephone number. Proposed comment 41(d)(6)–1 clarifies that the servicer may provide additional information, such as a web address, at its option. Proposed § 1026.41(d)(6) does not require that the contact information be set off in a separate section, but simply that it be included on the front page of the statement. This proposed requirement would allow servicers to include this information with their company name and logo at the top of the page or elsewhere on the statement. 41(d)(7) Account Information Proposed § 1026.41(d)(7) would require that the following information about the mortgage, as required by the statute, be included on the statement: The amount of principal obligation, the current interest rate in effect for the loan, the date on which the interest rate E:\FR\FM\17SEP3.SGM 17SEP3 tkelley on DSK3SPTVN1PROD with PROPOSALS3 57360 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules may next reset or adjust, the amount of any prepayment penalty, and information on housing counselors. This information may be included anywhere on the statement. This information may, but need not be, grouped together. While the sample form has this information on the first page, the servicer is not required to include this information on the first page. Prepayment penalty. Proposed § 1026.41(d)(7)(iv) defines a prepayment penalty as ‘‘a charge imposed for paying all or part of a transaction’s principal before the date on which the principal is due.’’ This definition is further clarified in the proposed commentary. Proposed comment 41(d)(7)(iv)–1 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 41(d)(7)(iv)–1.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 states, 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 accrued in the month during which the consumer prepaid. Proposed comment 41(d)(7)(iv)–2 clarifies that a prepayment penalty does not include: (1) Fees imposed for preparing and providing documents when a loan is paid in full, if the fees are imposed 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 VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 dwelling that secures the loan; or (2) loan guarantee fees. The definition of prepayment penalty in proposed § 1026.41(d)(7)(iv) and comments 41(d)(7)(iv)–1 and –2 substantially incorporate the definitions of and guidance on prepayment penalties from other rulemakings addressing mortgages and, as necessary, reconciles their differences. For example, the Bureau is proposing to incorporate the language from the Board’s 2009 Closed-End 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 the term prepayment penalty. The Bureau expects to coordinate the definition of the term prepayment penalty in proposed § 1026.41(d)(7)(iv) with the definitions in other pending rulemakings relating to mortgages. The Bureau seeks comment on the feasibility of disclosing the amount of any prepayment penalty, as the amount of the penalty could depend on the timing or amount of prepayment, and if a preferable alternative would be to disclose the maximum amount of a prepayment penalty. Alternatively, the Bureau seeks comment on whether a better alternative would be for the periodic statement to disclose the existence of a prepayment penalty in place of the amount. Housing counselors. Proposed § 1026.41(d)(7)(v) would require the periodic statement to include contact information for the State housing finance authority for the State in which the property is located, and information to access either the Bureau list or the HUD list of homeownership counselors or counseling organizations. TILA section 128(f)(1)(G) requires the periodic statement to include the names, addresses, telephone numbers and Internet addresses of counseling agencies or programs reasonably available to the consumer that have been certified or approved and made publically available by the Secretary of Housing and Urban Development or a State housing finance authority. On July 9, 2012, the Bureau released the 2012 HOEPA Proposal to implement other Dodd-Frank Act provisions, PO 00000 Frm 00044 Fmt 4701 Sfmt 4702 including the requirement to provide a list of housing counselors in connection with the application process for mortgage loans.111 In connection with those requirements, the Bureau proposed to require creditors to provide a list of five homeownership counselors or counseling organizations to applicants for various categories of mortgage loans. The Bureau also indicated that it is expecting to develop a website portal that would allow lenders to type in the loan applicant’s zip code to generate the requisite list, which could then be printed for distribution to the loan applicant. This will allow creditors to access lists of the housing counselors with a minimum amount of effort.112 In connection with the periodic statement requirement, however, the Bureau is proposing to use its exception authority to require servicers simply to list where consumers can find a list of counselors, rather than to reproduce a list of counselors in each billing cycle. The Bureau believes that this approach appropriately balances consumer and servicer interests based on several considerations. First, the Bureau is concerned about information overload for consumers. The periodic statement contains a significant amount of information already. While consumers who are deciding whether to take out a mortgage loan in the first instance may greatly benefit from consultation with a housing counselor, that likelihood is greatly reduced with regard to consumers receiving regular periodic statements on existing loans. Second, the burden on servicers to import the list of counselors into a periodic statement document or to attach a list with each billing cycle is significantly higher than with regard to a single provision of the list. Space on the periodic statements is limited, and importing updated information from the CFPB website each cycle would involve more programming burden than simply listing the two agencies’ websites in the first instance. To address these concerns, the proposal would require that the periodic 111 See 2012 HOEPA Proposal, available at http://files.consumerfinance.gov/f/ 201207_cfpb_proposed-rule_high-cost-mortgageprotections.pdf, at 29–35. 112 The list provided by the lender pursuant to the 2012 HOEPA Proposal would include only homeownership counselors or counseling organizations from either the most current list of homeownership counselors or counseling organizations made available by the Bureau for use by lenders, or the most current list maintained by HUD of homeownership counselors or counseling organizations certified by HUD, or otherwise approved by HUD. See id. at 32–33. E:\FR\FM\17SEP3.SGM 17SEP3 tkelley on DSK3SPTVN1PROD with PROPOSALS3 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules statements include the contact information to access the State housing finance authority for the State in which the property is located, and the website and telephone number to access either the Bureau list or the HUD list of homeownership counselors or counseling organizations.113 Directing consumers to this information would allow them to choose a program or agency conveniently located for them, and would allow the consumer to locate other programs or agencies if those contacted initially could not help the consumer at that time. The Bureau seeks comment on whether this proposal strikes an appropriate balance, and on the benefits and burdens to both borrowers and servicers of requiring that a list of several individual housing counselors be included in or with the periodic statement. Because housing counselor information may not be relevant to consumers who are current and not facing any problems, the proposal does not require this information to be on the front of the statement. The Bureau seeks comment if this information should be required to be located on the front of this statement. In a related requirement, when the delinquency information is provided, the proposed regulations would require that the delinquency information contain a reference to this housing counselor information. This would ensures that the housing counselor information would be brought to the attention of delinquent consumers. These provisions are discussed further below. The Bureau expects to coordinate the housing counselor information requirement in proposed § 1026.41(d)(7)(v) with the definitions in other pending rulemakings concerning mortgage loans that address housing counselors. The Bureau believes that, to the extent consistent with consumer protection objectives, adopting a consistent approach to providing housing counselor information across its various pending rulemakings will facilitate compliance. The Bureau notes that other housing counselor requirements (for example, the ARMs initial interest rate adjustment notification) require the contact information for the State housing finance authority for the State in which the consumer resides (as opposed to the State in which the property is located). While the Bureau expects the State in which the property is located will most often be the State where the consumer 113 At the time of publishing, the Bureau list was not yet available and the HUD list is available at http://www.hud.gov/offices/hsg/sfh/hcc/hcs.cfm. VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 resides, under certain circumstances (a vacation home), these may be different States. Additionally, the Bureau notes that a difference in regulation requirements for different disclosures may increase compliance costs for servicers. The Bureau seeks comment on which State housing finance authority’s contact information should be required on the periodic statement. The Bureau proposes to use its authority under TILA section 105(a) and (f) and DFA section 1405(b) to exempt creditors, assignees, and servicers of residential mortgage loans from the requirement in TILA section 128(f)(1)(G) to include in periodic statements contact information for governmentcertified counseling agencies or programs reasonably available to the consumer, and to instead require that periodic statements disclose the State housing finance authority for the State in which the property is located and information to access either the Bureau list or HUD list of homeownership counselors or organizations. For the reasons discussed above, the Bureau believes that the proposed exception and addition is necessary and proper under TILA section 105(a) both to effectuate the purposes of TILA—to promote the informed use of credit and protect consumers against inaccurate and unfair credit billing practices—and to facilitate compliance. Moreover, the Bureau believes, in light of the factors in TILA section 105(f), that disclosure of the information specified in TILA section 128(f)(1)(G) would not provide a meaningful benefit to consumers. Specifically, the Bureau considers that the exemption is proper irrespective of the amount of the loan, the status of the borrower (including related financial arrangements, financial sophistication, and the importance to the borrower of the loan), or whether the loan is secured by the principal residence of the consumer. Further, in the estimation of the Bureau, the proposed exemption will simplify the periodic statement, and improve the housing counselor information provided to the consumer, thus furthering the consumer protection purposes of the statute. In addition, consistent with DFA section 1405(b), the Bureau believes that the proposed modification of the requirements in TILA section 128(f)(1)(G) will improve consumer awareness and understanding and is in the interest of consumers and in the public interest. 41(d)(8) Delinquency Notice Proposed § 1026.41(d)(8) would require that if the consumer is more than 45 days delinquent, the servicer must include on the periodic statement PO 00000 Frm 00045 Fmt 4701 Sfmt 4702 57361 certain delinquency information grouped together. The accounting of mortgage payments is confusing at best, and becomes significantly more complicated in a delinquency scenario. The combination of fees, partial payments being sent to suspense accounts, and application of payments to oldest outstanding payments due can quickly lead to confusion. Additionally, consumers in delinquency are often facing stress due to the situation that left them unable to make their mortgage payments. The proposed early intervention rules would require servicers to disclose information about loss mitigation or loan modification, but this information would not be customized to individual consumers. The delinquency notice, discussed below, would provide information that is tailored to the specific consumer. This information would benefit the consumer in several ways. First, this notice would ensure that the consumer is aware of the delinquency as well as potential consequences. Second, this information would ensure that the consumer has the information about his or her loan. For example, certain loan modification programs are tied to specific timelines in delinquency. This information would ensure that consumers understand the timeline for their delinquency so they can benefit from early intervention information. Finally, the delinquency information would create a record of how payments were applied, which would both help consumers understand the amount due and give consumers the information needed to become aware of any errors so they could use the appropriate error resolution procedures. Delinquency date and risks. Proposed paragraph (d)(8)(i) would require the periodic statement to include the date on which the consumer became delinquent. Many timelines relevant to the loss mitigation and foreclosure processes are based on the number of days of delinquency. For example, under certain programs consumers may not be eligible for a loan modification unless they are at least 60 days delinquent. However consumers may not know the date on which he or she was first considered delinquent. This can be especially confusing in a scenario where the consumer is making partial payments. Proposed paragraph (d)(8)(ii) would require the periodic statement to include a statement reminding the consumer of potential risks of delinquency, for example, late fees may be assessed or, after a number of months, the consumer can be subject to foreclosure. E:\FR\FM\17SEP3.SGM 17SEP3 tkelley on DSK3SPTVN1PROD with PROPOSALS3 57362 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules A recent account history. Proposed paragraph (d)(8)(iii) would require the periodic statement to include a recent account history as part of the delinquency information. The accounting associated with mortgage loan payments is complicated, and can be even more so in delinquency situations. The accrual of fees and the application of payments to past months can make it very difficult for consumers to understand the exact amount he or she owes on the loan, and how that total was calculated. Additionally, this complex accounting makes it very difficult for a consumer to identify errors in of payment allocations. Although some of this information would be available from previous periodic statements, the Bureau believes that providing a separate recent account history is warranted under the circumstances. The Bureau believes that the recent account history would enable the consumer to understand how past payments were applied, provide the information needed to identify any errors, and provide the information necessary to make financial decisions. Proposed paragraph (d)(8)(iii) would require the account history to show the amount due for each billing cycle, or the date on which a payment for a billing cycle was considered fully paid. The date on which the payment was considered fully paid is included to help a consumer understand that a past payment that was previously delinquent has been considered paid. For example, suppose a delinquent consumer does not make a payment in January, but makes a regular payment in February. Without the account history, the consumer would not be able to verify that payments were properly applied. The account history is limited to the lesser of the past 6 months or the last time the account was current to avoid creating a long list that could overwhelm the rest of the periodic statement. Notice of any loan modification programs. Proposed paragraph (d)(8)(iv) would require the periodic statement to include as part of the delinquency information in the periodic statement notice of any acceptance into a modification program, either trial or permanent, create a record of acceptance into the modification program. Notice if the loan has been referred to foreclosure. Proposed paragraph (d)(8)(v) would require the periodic statement to include, as part of the delinquency information notice, that the loan has been referred to foreclosure, if VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 applicable, to ensure that the consumer is aware of any pending foreclosure. Total amount to bring the loan current. Proposed paragraph (d)(8)(vi) would require that the total amount needed to bring the loan current be included in the delinquency information to ensure that consumers knows how much money they must pay to bring the loan back to current status. Housing counselor information reference. Proposed paragraph (d)(8)(vii) would require that the delinquency notice also contain a statement directing the consumer to the housing counselor information located on the statement, as proposed by paragraph (d)(7)(v). For example, if the housing counselor information is on the back of the statement, the delinquency information, on the front of the statement, would direct consumers to the back of the statement. 45 Days. The delinquency information is intended to assist consumers who have fallen behind on their mortgage payments. The proposal would not require provision of this information until the consumer is 45 days delinquent. The Bureau recognizes that not all delinquencies indicate troubled consumers; a single missed payment may be the result of other factors such as misdirected mail. Such consumers would likely be notified of a single missed payment by their servicer, and the lack of payment received would be reflected on the next periodic statement. These consumers would receive minimal additional benefit from the delinquency information, and, if this is a frequent occurrence, such consumers might become accustomed to ignoring the delinquency information. By contrast, two missed payments likely indicate a potentially more serious issue, unlike simply failing to remember to send in a payment on time. Thus, the delinquency information would be required at 45 days to ensure receipt of this information by a borrower who missed two consecutive payments. 41(e) Exemptions 41(e)(1) Reverse Mortgages Proposed § 1026.41(e)(1) exempts reverse mortgages, as defined by § 1026.33(a), from the periodic statement requirement. The Bureau is proposing this exemption for reverse mortgages because the periodic statement requirement was designed for a traditional mortgage product. Information that would be relevant and useful on a reverse mortgage statement differs substantially from the information required on the periodic statement. Incorporating the unique PO 00000 Frm 00046 Fmt 4701 Sfmt 4702 aspects of a reverse mortgage into the periodic statement regulations would require massive alterations to the form and regulation. The Bureau believes that it is more appropriate to address consumer protections relating to reverse mortgages in a separate comprehensive rulemaking. The Bureau proposes to use its authority under TILA sections 105(a) and (f) and DFA section 1405(b) to exempt reverse mortgages from the requirement in TILA section 128(f) to provide periodic statements. For the reasons discussed above, the Bureau believes the proposed exemption is necessary and proper under TILA section 105(a) both to effectuate the purposes of TILA, and to facilitate compliance. Moreover, the Bureau believes, in light of the factors in TILA section 105(f), that disclosure of the information specified in TILA section 128(f)(1) would not provide a meaningful benefit to consumers of reverse mortgages. Specifically, the Bureau considers that the exemption is proper irrespective of the amount of the loan, the status of the borrower (including related financial arrangements, financial sophistication, and the importance to the borrower of the loan), or whether the loan is secured by the principal residence of the consumer. Further, in the estimation of the Bureau, the proposed exemption would further the consumer protection purposes of the statute by avoiding the consumer confusion that would result by applying the same disclosure requirements to reverse mortgages as other mortgages and leaving reverse mortgages to be addressed in a comprehensive reverse mortgage rulemaking. In addition, consistent with DFA section 1405(b), the Bureau believes that the proposed modification of the requirements in TILA section 128(f) to exempt reverse mortgages would improve consumer awareness and understanding and is in the interest of consumers and in the public interest. 41(e)(2) Time Shares Proposed § 1026.41(e)(2) would clarify that timeshares as defined by 11 U.S.C. 101 (53(D)) are exempt from the periodic statement requirement. TILA section 128(f) provides that the periodic statement requirement applies to residential mortgage loans. The definition of residential mortgage loans set forth in TILA section 103(cc)(5) specifies that timeshares do not fall under this definition. E:\FR\FM\17SEP3.SGM 17SEP3 tkelley on DSK3SPTVN1PROD with PROPOSALS3 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules 41(e)(3) Coupon Book Exemption Proposed § 1026.41(e)(3) would implement the statutory exemption for fixed-rate loans for which the servicer provides a coupon book containing substantially similar information as found in the periodic statement. The Bureau recognizes the value of the coupon book as striking a balance between ensuring consumers receive important information, and providing a low burden method for servicers to comply with the periodic statement requirements. As such, the Bureau seeks to effectuate the coupon book exemption. The nature of a coupon book (both its smaller size and static nature) creates difficulties in including substantially similar information as would be on a periodic statement. The main problem is the static nature of a coupon book. Because a coupon book may cover an entire year or more, it cannot include information that changes on a monthly basis. By contrast, a periodic statement can provide dynamic information that changes on a monthly basis. To address this problem, the Bureau is proposing to modify the coupon book exception permitted by TILA section 128(f)(3) to apply the exception where the coupon book contains certain static information and other dynamic information is made accessible to the consumer. Proposed comment 41(e)(3)–1 defines ‘‘fixed-rate’’ by reference to § 1026.18(s)(7)(iii), which defines ‘‘fixed-rate mortgage’’ as a transaction secured by a dwelling that is not an adjustable-rate or a step-rate mortgage. Proposed comment 41(e)(3)–2 explains what a coupon book is. The Bureau proposes to use its authority under TILA section 105(a) to give effect to the coupon book exemption in TILA section 128(f)(3). TILA section 128(f)(3) provides an exemption to the periodic statement for fixed-rate loans when a coupon book that contains substantially similar information to the periodic statement is provided. Using its authority under TILA section 128(f)(1)(H), the Bureau has added certain dynamic items to the periodic statement that would be infeasible to include in a coupon book. The Bureau is proposing to use its TILA 105(a) authority to permit use of a coupon book even where certain dynamic information is not included in the book so long as such information is made available via the inquiry process. The Bureau believes this proposed exemption is necessary and proper to facilitate compliance. Information in the coupon book. Proposed paragraph (e)(3)(i) would VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 require the following information to be included on each coupon within the book: The payment due date, the amount due, and the amount and date that any late fee will be incurred. In specifying the amount due on each coupon, servicers would assume that all prior payments have been paid in full. Proposed paragraph (e)(3)(ii) would require the following information to be included in the coupon book itself, though it need not be on each coupon: The amount of the principal loan balance, the interest rate in effect for the loan, the date on which the interest rate may next change; the amount of any prepayment fee that may be charged, the contact information for the servicer, and housing counselor information. Each of these items is discussed above in the section-by-section analysis of proposed paragraph (d). The coupon book would also be required to disclose information on how the consumer may obtain the dynamic information discussed below. The information described above may, but is not required to be, included on each coupon. Instead, it may be included anywhere in the coupon book, including on the covers, or on filler pages, as explained by proposed comment 41(e)(3)–3. Because the outstanding principal balance will typically change during the time period covered by the coupon book, proposed comment 41(e)(3)–4 clarifies that a coupon book need only include the outstanding principal balance at the beginning of that time period. Information made available. As discussed above, due to the static nature of the coupon book, certain dynamic information that is required to be included on periodic statements cannot be included. To use the coupon book provision, the proposed rule would require that the dynamic information be made available upon the consumer’s request. The servicer could provide the information orally, or in writing, or electronically, if the consumer consents. Thus, proposed paragraph (e)(3)(iii) would require the following dynamic information be made available to the consumer upon request: The monthly payment amount, including a breakdown showing how much, if any, will be allocated to principal, interest, and any escrow account; the total of fees or charges imposed since the last payment period; any payment amount past due; the total of all payments received since the beginning of the payment period, including a breakdown of how much, if any, of those payments was applied to principal, interest, escrow, fees and charges, and any partial payment suspense accounts; the PO 00000 Frm 00047 Fmt 4701 Sfmt 4702 57363 total of all payments received since the beginning of the calendar year, including a breakdown of how much, if any, of those payments was applied to principal, interest, escrow, fees and charges, and how much is currently in any partial payment or suspense account; and a list of all the transaction activity (as defined in proposed comment 41(d)(4)–1) that occurred since the payment period. The Bureau seeks comment on whether requiring servicers to make this information available would impose significant burden or costs that exceed consumer benefits. In particular, the Bureau seeks comment on whether providing the past payment breakdown information would impose greater burden then benefits. Delinquency information. Because of the importance of the delinquency information, proposed paragraph (e)(3)(iv) would require that to qualify for the coupon book exception, the delinquency information required by proposed § 1026.41(d)(8), discussed above, to be sent to the consumer in writing for each billing cycle for which the consumer is more than 45 days delinquent at the beginning of the billing cycle. 41(e)(4) Small Servicer Exemption Proposed paragraph (e)(4) would exempt certain smaller servicers from the duty to provide periodic statements for certain loans. A small servicer would be defined as a servicer (i) who services 1,000 or fewer mortgage loans; and (ii) only services mortgage loans for which the servicer or an affiliate is the owner or assignee, or for which the servicer or an affiliate is the entity to whom the mortgage loan obligation was initially payable. The Bureau has decided to propose this exemption after careful consideration of the benefits and burdens of the periodic statement requirement. As proposed, the Bureau believes that the periodic statement will be helpful to consumers because it will provide a well-integrated communication that not only contains information about upcoming payments due, but also information about loan status, fees charged, past payment crediting, and potential resources and other useful information for consumers who have fallen behind in their payments. The Bureau believes that providing a single-integrated document, in place of a number of other communications that contain fragments of this information can be more efficient for consumers and servicers alike. And in light of the historic problems that have been reported in parts of the E:\FR\FM\17SEP3.SGM 17SEP3 tkelley on DSK3SPTVN1PROD with PROPOSALS3 57364 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules servicing industry, the periodic statement could be a useful tool for consumers to monitor their servicers’ performance and identify any issues or errors as soon as they occur. At the same time, the Bureau recognizes that the servicing industry is not monolithic. Producing a periodic statement with the elements proposed in § 1026.41 requires sophisticated programming to place individualized information on each borrower’s statement for each billing cycle. The Bureau recognizes that very small servicers would likely have to rely on outside vendors to develop or modify existing systems to produce statements in compliance with the rule. As discussed further below, the Bureau received detailed information from the SBREFA panel process confirming the technological and operational challenges faced by small servicers, as well as postage and other expenses that would be associated with providing periodic statements on an ongoing basis. Because small servicers maintain small portfolios, the SBREFA participants emphasized that they cannot spread fixed costs across a large number of loans the way that larger servicers can. Where small servicers already have incentives to provide high levels of customer contact and information, the Bureau believes that the circumstances may warrant exempting those servicers from complying with the periodic statement requirement. In particular, small servicers that make loans in their local communities and then either hold their loans in portfolio or retain the servicing rights have incentives to maintain ‘‘high-touch’’ customer service models. Affirmative communications with consumers help such servicers (and their affiliates) to ensure loan performance, protect their reputations in their communities, and market other consumer financial products and services.114 Because those servicers have a long-term relationship with the borrowers, their incentives with regard to charging fees and other servicing practices may be more aligned with borrower interests. These motivations to ensure a good relationship incentivize good customer service, including making information about upcoming payments, fees charged and payment history, and information for distressed borrowers easily available to consumers by other means. The Bureau believes, however, that both conditions are necessary to warrant a possible exemption from the periodic statement rule—that is, that an exemption may be appropriate only for servicers that service a relatively small number of loans and that originated the loans and either retained ownership or servicing rights. Larger servicers are likely to be much more reliant on and sophisticated users of computer technology in order to manage their operations efficiently. In such situations, implementation of the periodic statement requirement is likely to be somewhat easier to accomplish and perhaps even provide technological benefits for the servicers. Larger servicers also generally operate in a larger number of communities under circumstances in which the ‘‘high touch’’ model of customer service is not practicable. In light of this fact and the consumer benefits from integrated communications, the Bureau does not believe it would be appropriate to exempt all servicers who originate loans that they then hold in portfolio or with respect to which they retain servicing rights, without regard to size. SBREFA Panel. The proposed exemption is consistent with feedback that the Bureau received from small entity representatives during the SBREFA panel process regarding the potentially significant burdens that would be imposed by a periodic statement requirement. Participants explained that they already provided much of the information in the proposed periodic statement through alternative means, including correspondence, more limited periodic statements, coupon books, passbooks, and telephone conversations.115 Even where SERs did not affirmatively provide particular items of information to borrowers, they stated that their companies would generally provide it on request. However, the participants emphasized repeatedly that consolidating all of the information into a single monthly dynamic statement would be difficult for small servicers.116 The SERs explained that due to their small size, they generally do not maintain in-house technological expertise and would generally use thirdparty vendors to develop periodic statements. Due to their small size, they believed they would have no control over these vendor costs.117 Additionally, the small servicers have smaller portfolios over which to spread the fixed costs of producing periodic statements. Such servicers stated they 114 See Re-Thinking Loan Serving, Prime Alliance Loan Servicing, p. 8 (April 2010) available at: http://cuinsight.com/media/doc/ WhitePaper_CaseStudy/ wpcs_ReThinking_LoanServicing_May2010.pdf. 19. VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 115 SBREFA Final Report, supra note 22, at 16– 116 Id. 117 Id. PO 00000 at 17. Frm 00048 Fmt 4701 Sfmt 4702 are unable to gain cost efficiencies and cannot effectively spread the implementation costs of periodic statements across their loan portfolios. Finally, several SERs stated that simply mailing periodic statements could cost thousands of dollars per month beyond some of their current alternative communication channels, such as coupon books or passbooks. Small Servicer Defined. The Bureau lacks the data necessary to precisely calibrate the amount of burden that would be imposed by the periodic statement requirement on servicers of different sizes. However, the Bureau believes that a threshold of 1,000 loans serviced may be an appropriate approximation to limit the proposed exemption to smaller servicers in the market. Assuming that, on average, most loans are refinanced about every five years, this threshold works out to an average of 200 originations per year. The Bureau estimates that a small servicer of this size would earn about $600,000 annually in servicing fee revenues.118 The SERs estimated that the periodic statement burden could cost thousands of dollars each month.119 For comparison, the Bureau notes that the top 100 mortgage servicers, as measured by size of unpaid principal balance serviced, (which together have approximately 82% of the mortgage servicing market share 120) each service in excess of $3 billion of unpaid principal balance. In addition to the 1,000 loan threshold, the exemption from the 118 This estimate assumes that a servicer generates a net mortgage servicing fee rate of 35 basis points and that the average unpaid principal balance on the 1,000 loans is $175,000. The 35 basis points represents a blend of different mortgage servicing asset quality. Mortgage servicing fees for conventional servicing are generally 25 basis points; mortgage servicing fees for subprime mortgage loans or loans sold to trusts guaranteed by Ginnie Mae may vary between 40–50 basis points. Servicers are also able to generate ancillary income from sources other than the mortgage servicing fee, including additional fee revenue, such as late fees, and float on principal, interest and escrow payments, the composition of which may vary significantly among servicers. The Bureau believes that 35 basis points is a reasonable assumption in current market conditions. See, e.g., Newcastle Investment Corp., Form 10–Q, filed May 10, 2012, at 15–16, available at http://www.sec.gov/Archives/edgar/data/ 1175483/000138713112001455/nct10q_033112.htm (last accessed June 13, 2012 (describing REIT investment in excess mortgage servicing rights (MSRs) from a portfolio of MSRs generating an initial weighted average total mortgage servicing fee amount of 35 basis points). 119 SBREFA Final Report, supra note 22, at 19. (One SER estimated it could cost an additional $11,000 per month in on-going support, another SER estimated that a vendor might charge $1,000– $2,000 per month in fees, a third SER estimated monthly costs of $2,200 based on a cost of $1 per statement). 120 Inside Mortgage Finance, Issue 2012:13 (March 30, 2012) at 12. E:\FR\FM\17SEP3.SGM 17SEP3 tkelley on DSK3SPTVN1PROD with PROPOSALS3 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules periodic statement would be limited to entities that exclusively service loans that they or an affiliate originated or was the entity to which the obligation was initially payable. A servicer must both exclusively service such loans and satisfy the 1000-loan threshold to qualify for the small servicer exemption. The exemption is limited to these servicers because of the incentive discussed above. The proposed commentary clarifies the application of the small servicer definition. Proposed comment 41(e)(4)– 1 states that loans obtained by a servicer or an affiliate in connection with a merger or acquisition are considered loans for which the servicer or an affiliate is the creditor to whom the mortgage loan is initially payable. The proposed rule also states that in determining whether a small servicer services 1,000 mortgage loans or less, a servicer is evaluated based on its size as of January 1 for the remainder of the calendar year. A servicer that, together with its affiliates, crosses the threshold will have six months or until the beginning of the next calendar year, whichever is later, to begin providing periodic statements. Proposed comment 41(e)(4)–2 gives examples for calculating when a servicer who crosses the 1,000 loan threshold would need to begin sending periodic statements. The purpose of this provision is to permit a servicer that crosses the 1,000 loan threshold a period of time (the greater of either six months, or until the beginning of the next calendar year) to bring the servicer’s operations into compliance with the periodic statement provisions for which the servicer was previously exempt. Proposed comments 41(e)(4)–3 clarifies when subservicers or servicers who do not own the loans they are servicing, do not qualify for the small servicer exemption, even if such servicers are below the 1,000 loan threshold. Proposed comment 41(e)(4)–4 clarifies if a servicer subservices mortgage loans for a master servicer that does not meet the small servicer exemption, the subservicer cannot claim the benefit of the exemption, even if it services 1,000 or fewer loans. The Bureau believes that permitting an exemption in such circumstance could potentially exempt a larger master servicer from the obligation to provide periodic statements, even if it has master servicing responsibility for several thousand loans. The Bureau seeks comment on all aspects of the proposed exemption, particularly whether the regulation VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 should exempt small servicers,121 and, if so, whether the proposed scope and definition of a small servicer is appropriate. Specifically, should the test be the one proposed regarding origination, and is 1,000 or less the appropriate size threshold? The Bureau particularly requests data on implementation costs and the level of general activity by small servicers. The Bureau also seeks comment on whether it would be appropriate to exempt small servicers from other elements of the proposed servicing rules under TILA and RESPA. Authority. The Bureau proposes to exercise its authority under TILA section 105(a) and (f), and DFA section 1405(b) to exempt small servicers from the periodic statement requirement under TILA section 128(f). For the reasons discussed above, the Bureau believes the proposed exemption is necessary and proper under TILA section 105(a) to facilitate compliance. As discussed above, it would be very expensive for small servicers to incur the initial costs of setting up a system to send periodic statements, as a result, such servicers may choose to exit the market. In addition, consistent with TILA section 105(f) and in light of the factors in that provision, the Bureau believes that requiring small servicers to comply with the periodic statement requirement specified in TILA section 128(f) would not provide a meaningful benefit to consumers in the form of useful information or protection. The Bureau believes that the business model of small servicers ensures their consumers already receive the necessary information, and that requiring them to provide periodic statements would impose significant costs and burden. Specifically, the Bureau believes that the exemption is proper without regard to the amount of the loan, the status of the borrower (including related financial arrangements, financial sophistication, and the importance to the borrower of the loan), or whether the loan is secured by the principal residence of the consumer. In addition, consistent with DFA section 1405(b), for the reasons discussed above, the Bureau believes that the proposed modification of the requirements in TILA section 128(f) to exempt small servicers would further the consumer protection purposes of TILA. Appendix H to Part 1026 The Bureau proposes to exercise its authority under TILA section 105(c) to 121 As discussed above, for the purposes of § 1026.41, the term ‘‘servicer’’ includes creditors, assignees and servicers. PO 00000 Frm 00049 Fmt 4701 Sfmt 4702 57365 propose model and sample forms for § 1026.20(c) and (d). Appendix H–4(D) to Part 1026 The Bureau proposes to exercise its authority under TILA section 105(c) to propose model and sample forms for § 1026.20(c) and (d). Appendices G and H—Open-End and Closed-End Model Forms and Clauses Proposed revisions to Appendices G and H–1 would add the appendix sections that would illustrate examples of the model forms and sample forms for the ARM disclosures proposed by § 1026.20(c) and (d) to the list of appendix sections illustrating examples of other model disclosures required by Regulation Z whose format or content may not be changed by creditors. Appendix H—Closed Model Forms and Clauses-7(i) Proposed revisions to Appendix H– 7(i) would include § 1026.20(d), as well as § 1026.20(c), as the types of models illustrated in this appendix. The proposed revision also would add text so that the provision stated that the Appendix H–4(D) includes examples of the two types of model forms for adjustable-rate mortgages: § 1026.20(d) initial adjustment notices and § 1026.20(c) payment change notices for adjustments resulting in corresponding payment changes. 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, HUD, the FHFA, and the Federal Trade Commission, including regarding consistency with any prudential, market, or systemic objectives administered by such agencies.122 The Bureau also held discussions with or solicited feedback from the U.S. Department of Agriculture Rural Housing Service, the Farm Credit Administration, the FHA, and the VA regarding the potential impacts of the proposed rule on those entities’ loan programs. In this rulemaking, the Bureau proposes to amend Regulation Z, which implements TILA, and the official commentary to the regulation, as part of 122 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. E:\FR\FM\17SEP3.SGM 17SEP3 57366 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules its implementation of the Dodd-Frank Act amendments to TILA’s mortgage servicing rules. The proposed amendments to Regulation Z implement Dodd-Frank Act Sections 1418 (initial interest rate adjustment notice for ARMs), 1420 (periodic statement), and 1464 (prompt crediting of mortgage payments and response to requests for payoff amounts). The proposed rule would also revise certain existing regulatory requirements for disclosing rate and payment changes to adjustablerate mortgages in current § 1026.20(c). Elsewhere in today’s Federal Register, the Bureau is also publishing the 2012 RESPA Servicing Proposal that would implement section 1463 of the DoddFrank Act. The RESPA proposal addresses procedures for obtaining force-placed insurance; procedures for investigating and resolving alleged errors and responding to requests for information; reasonable information management policies and procedures; early intervention for delinquent borrowers; continuity of contact for delinquent borrowers; and lossmitigation procedures. As discussed in part II above, mortgage servicing has been marked by pervasive and profound consumer protection problems. As a result of these problems, Congress included in the Dodd-Frank Act the provisions described above, which specifically address mortgage servicing. The new protections in the rules proposed under TILA and RESPA would significantly improve the transparency of mortgage loans after origination, provide substantive protections to consumers, enhance consumers’ ability to obtain information from and dispute errors with servicers, and provide consumers, particularly distressed and delinquent consumers, with better customer service when dealing with servicers. tkelley on DSK3SPTVN1PROD with PROPOSALS3 A. Provisions To Be Analyzed The analysis below considers the benefits, costs, and impacts of the following major proposed provisions: 1. New initial interest rate adjustment notices for most closed-end adjustablerate mortgages. 2. Changes in the format, content, and timing of the Regulation Z § 1026.20(c) disclosure for most closed-end adjustable-rate mortgages. 3. New periodic statement disclosure for most closed-end mortgages. 4. Prompt crediting of payments for consumer credit transactions (both open- and closed-end) secured by the consumer’s principal dwelling and response to requests for payoff amounts from consumers with consumer credit VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 transactions (both open- and closedend) secured by a dwelling. With respect to each major proposed 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 on the analysis of the potential benefits, costs and impacts of the proposal. B. Baseline for Analysis The amendments to TILA are selfeffectuating, and the Dodd-Frank Act does not require the Bureau to adopt regulations to implement these amendments. Specifically, the proposed provisions regarding the new initial interest rate adjustment notice and the new periodic statement disclosure implement self-effectuating amendments to TILA. Thus, many costs and benefits of these proposed provisions would arise largely or entirely from the statute, not from the proposed rule. The proposed provisions would provide substantial benefits compared to allowing these TILA amendments to take effect alone, even without the proposed additional content and other features of the disclosures, by clarifying parts of the statute that are ambiguous. Greater clarity on these issues should reduce the compliance burdens on covered persons by reducing costs for attorneys and compliance officers as well as potential costs of over-compliance and unnecessary litigation. Moreover, the costs that these provisions would impose beyond those imposed by the statute itself are likely to be minimal. DFA section 1022 permits the Bureau to consider the benefits, costs, and impacts of the proposed rule solely compared to the state of the world in which the statute takes effect without an implementing regulation. To provide the public better information about the benefits and costs of the statute, however, the Bureau has chosen to consider the benefits, costs, and impacts of the major provisions of the proposed rule against a pre-statutory baseline (i.e., to consider the benefits, costs, and impacts of the relevant provisions of the Dodd-Frank Act and the regulation combined). The proposed provisions regarding prompt crediting of payments and response to requests for payoff amounts also implement self-effectuating amendments to TILA. These amendments to TILA, however, largely codify existing Regulation Z provisions in § 1026.36(c). Thus, the pre-statute and post-statute baselines are PO 00000 Frm 00050 Fmt 4701 Sfmt 4702 substantially the same. The proposed provisions would clarify servicer 123 duties that are ambiguous under the statute and existing regulations. Finally, the proposed provisions regarding the § 1026.20(c) disclosure for adjustable-rate mortgages impose obligations on servicers 124 that are authorized, but not required, under TILA sections 105(a) and 128(f) and DFA section 1405(b). With respect to proposed § 1026.20(c), the Bureau has chosen to consider the benefits, costs, and impacts of the proposed provisions against the baseline provided by the current provisions of § 1026.20(c). The Bureau has discretion in future rulemakings to choose the most appropriate baseline for that particular rulemaking. C. Coverage of the Proposal Each proposed provision covers certain consumer credit transactions secured by a dwelling, as described further in each section below. D. Potential Benefits and Costs to Consumers and Covered Persons 1. New Initial Interest Rate Adjustment Notice for Adjustable-Rate Mortgages Section 1418 of the Dodd-Frank Act requires servicers to provide a new disclosure to consumers who have hybrid ARMs. The disclosure concerns the initial interest rate adjustment and must be given either (a) between 6 and 7 months prior to such initial interest rate adjustment or (b) at consummation of the mortgage if the initial interest rate adjustment occurs during the first six months after consummation. The Bureau proposes to implement this provision by requiring that the disclosure be given at least 210, but not more than 240, days before the first payment at the adjusted level is due. The Bureau, relying upon the savings clause in TILA section 128A(b), proposes to broaden the scope of the proposed rule to include ARMs that are not hybrid. The proposed disclosure would include the content required by the statute, except for providing contact information for housing counseling agencies and programs (where the proposed rule provides an alternative disclosure), and certain additional information. Finally, as explained above, the Bureau conducted three rounds of consumer testing. The 123 Reference in parts VII, VIII, and IX to ‘‘servicers’’ with regard to the proposed rule for requests for payoff amounts means creditors and servicers. 124 Reference in parts VII, VIII, and IX to ‘‘servicers’’ with regard to the proposed rules for adjustable-rate mortgages means creditors, assignees, and servicers. E:\FR\FM\17SEP3.SGM 17SEP3 tkelley on DSK3SPTVN1PROD with PROPOSALS3 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules disclosures were revised after each round of testing to improve their effectiveness with consumers. Benefits to consumers. The information in the proposed interest rate adjustment notice would provide a number of benefits to consumers with closed-end adjustable-rate mortgages at the initial interest rate adjustment. These benefits may be broadly categorized as facilitating (a) the choice of an alternative to making the new payment, including refinancing; (b) the correction of any errors in the adjusted payment; (c) the budgeting of household resources; and (d) the accumulation of equity by certain consumers (i.e., those with interest-only or negativelyamortizing payments). Individual items in the disclosure may provide more than one of these benefits. The proposed rule would require disclosure of the new interest rate and payment—the exact amount, where available, or an estimate, where exact amounts are unavailable. Disclosing an estimate of the interest rate and any new payment at least 210, but not more than 240, days before the first payment at the adjusted level is due would give consumers a significant amount of time in which to pursue alternatives to repaying the loan at the adjusted level. When interest rates are stable, the estimate is informative about the future mortgage payment, and consumers benefit from being able to plan future budgets or to address a problem with affordability, perhaps by refinancing. The estimate is less informative about the future mortgage payment when interest rates are volatile, but under any circumstances, an estimated payment that is well above the highest amount that the consumer can afford alerts the consumer to a potential problem and the need to gather additional information. While some consumers with adjustable-rate mortgages may benefit from disclosure of any potential new interest rate and payment (or estimates of these amounts) well before payment is due, the benefits from this information are likely greatest when provided prior to the initial interest rate adjustment. Subsequent interest rate adjustments reflect the difference between two fully indexed interest rates (i.e., interest rates that are the sum of a benchmark rate and a margin). In contrast, the initial interest rate adjustment may reflect the difference between an interest rate that is below the fully indexed rate at the time of origination (a so-called ‘‘teaser’’ or ‘‘introductory’’ rate) and a rate that is fully indexed at the time of adjustment. For example, in 2005, the teaser rate on subprime ARMs with an initial fixed- VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 rate period of two or three years was 3.5 percentage points below the fully indexed rate.125 As a result, mortgages originated in that year faced a potentially large change in the interest rate and payment, or ‘‘payment shock,’’ at the first adjustment. Furthermore, consumers facing the initial interest rate adjustment may fail to anticipate even the possibility of a change in payment, since this is necessarily the first time since origination that the payment could change. Consumers facing payment shock or an unanticipated change in payment also benefit from having additional time to plan future budgets or to address a problem with affordability. Thus, consumers facing the initial interest rate adjustment may benefit from the proposed notice through both the information it provides regarding the potentially new interest rate and payment and the additional time it provides consumers to adapt. A number of items on the proposed disclosure would help the consumer respond to problems with making the new payment. In addition to information on the amount of the new payment, the proposed disclosure lists alternatives to making the new payment and gives a brief explanation of each alternative. It explains the circumstances under which any prepayment penalty may be imposed and the maximum amount of the penalty. It provides information on rate limits that may affect future payment changes. It provides the telephone number of the creditor, assignee, or servicer to call if the consumer anticipates having problems making the new payment. Finally, it gives contact information for the State housing authority and information to access certain lists of homeownership counselors made available by Federal agencies. All of this information benefits a consumer who needs to find an alternative to making the new payment. Certain items on the proposed disclosure may assist the consumer in detecting any errors in the computation of the new payment estimate. The proposed disclosure provides an explanation of how the new interest rate and payment are determined, including the index or formula used and any additional adjustment, such as a margin added to the index. It also states any limits on the increase in the interest rate or payment at each adjustment and over the life of the loan. This information may also facilitate consumers’ ability to compare their current mortgage against 125 See Christopher Mayer, Karen Pence, & Shane Sherlund, The Rise in Mortgage Defaults, 23 J. Econ. Persps. 27, 37 (2009). PO 00000 Frm 00051 Fmt 4701 Sfmt 4702 57367 competing products and provide other benefits, but at the very least it assists consumers in verifying the accuracy of the new estimated payment. Finally, certain items on the proposed disclosure may facilitate the accumulation of equity by consumers with interest-only or negativelyamortizing payments. For these consumers, the disclosure states the amount of both the current and the expected new payment allocated to principal, interest, and escrow, as applicable.126 The disclosure also states that the new payment will not be allocated to pay loan principal. If negative amortization occurs as a result of the adjustment, the disclosure must state the payment required to fully amortize the loan at the new interest rate. The proposed disclosure alerts consumers with these types of loans to features that bear on equity accumulation, and it provides this information at a time when these consumers may be evaluating their mortgage terms and considering refinancing. As discussed above, the Bureau is proposing formatting requirements for the initial interest rate adjustment notice. These requirements benefit consumers by facilitating consumer understanding of the information in the disclosures. Except for the date of the notice, the proposed rule requires that the disclosures must be provided in the form of a table and in the same order as, and with headings and format substantially similar to, certain forms provided with the proposed rule. The Bureau’s testing showed that consumers readily understood the information in the notice when the terms and calculations were presented in the groupings and logical order contained in the model forms. While there is no formula for producing the ideal disclosure, the proposed formatting requirements are generally informed by decades of consumer testing. The Bureau believes that disclosures that satisfy the proposed formatting requirements likely provide greater benefits to consumers than both the 126 The current payment allocation would also appear on the proposed periodic statement disclosure. However, listing the current and expected new payment allocation in one disclosure benefits consumers by making clear any differences between the two allocations. The Bureau recognizes that the benefit of information in a particular disclosure may be mitigated to the extent that the same information is available in other disclosures that are provided at the same (or nearly the same) time. E:\FR\FM\17SEP3.SGM 17SEP3 57368 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS3 alternatives tested and disclosures that do not satisfy these requirements.127 Magnitude of the benefits to consumers. Research shows that consumers make important decisions about housing finance at the initial interest rate adjustment. Consumers often choose to prepay at the initial interest rate adjustment, and the greater the payment shock, the greater the likelihood of prepayment. These results hold for conventional ARMs originated in the 1990s as well as for subprime hybrid ARMs (2/28 and 3/27) originated in the 2000s.128 More controversial is the question of whether payment shock at the initial interest rate adjustment causes default. In general, data from the 2000s does not find a causal relationship between payment shock at the initial interest rate adjustment and default.129 However, for consumers with certain hybrid ARMs originated in the 2000s, a substantial number experienced a payment shock of at least 5% at the initial interest rate adjustment, and some research finds that the default rate for these loans was three times higher than it would have been if the payment had not changed.130 Whether or not the proposed initial interest rate adjustment notice would reduce default under certain conditions, the disclosure may generally facilitate the important decisions about housing finance that consumers make at the initial interest rate adjustment. Extrapolating from FHFA data, the Bureau estimates that approximately 285,000 adjustable-rate mortgages will have an initial interest rate adjustment in each of the next three years. Few adjustable-rate mortgages in recent years have had teaser rates; however, 127 For a general discussion of disclosure formatting, disclosure testing and consumer benefits, see Jeanne Hogarth & Ellen Merry, Designing Disclosures to Inform Consumer Financial Decisionmaking: Lessons Learned from Consumer Testing, 97 Fed. Reserve Bull. 1 (Aug. 2011). 128 Brent W. Ambrose & Michael LaCour-Little, Prepayment Risk in Adjustable Rate Mortgages Subject to Initial Year Discounts: Some New Evidence, 29 Real Est. Econs. 305 (2001) (showing that the expiration of teaser rates causes more ARM prepayments, using data from the 1990s). The same result, using data from the 2000s and focusing on subprime mortgages, is reported in Shane Sherland, The Past, Present and Future of Subprime Mortgages, (Div. of Research & Statistics and Div. of Monetary Affairs, Fed. Reserve Bd., Washington, D.C. 2008); The result that larger payment increases generally cause more ARM prepayments, using data from the 1980s, appears in James Vanderhoff, Adjustable and Fixed Rate Mortgage Termination, Option Values and Local Market Conditions, 24 Real Est. Econs. 379 (1996). 129 Mayer, Pence, & Sherlund, supra note 125, at 37. 130 Anthony Pennington-Cross & Giang Ho, The Termination of Subprime Hybrid and Fixed-Rate Mortgages, 38 Real Est. Econs. 399, 420 (2010). VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 consumers with these mortgages may benefit from shifting to a fixed-rate mortgage. If the new initial interest rate adjustment notice prompts just 1% of consumers who receive the notice to refinance and these consumers save $50 per month, the annual savings to consumers would be over $1.7 million. The Bureau does not have the data necessary to fully quantify the benefits of the proposed initial interest rate adjustment notice to consumers. Certain consumers with adjustable-rate mortgages will be aware of the upcoming initial interest rate adjustment and the possibility of refinancing or (if there is a payment adjustment) considering alternatives to making a new payment, of needing to reallocate household resources in light of a new payment, of addressing an error in computing a new payment, and of reviewing the household balance sheet in light of an interest-only or negatively-amortizing loan. The Bureau is not aware of data with which it could fully quantify the value of the information in the disclosure to these consumers or determine the savings to them in time and other resources from not having to obtain this information from other sources. Furthermore, there are other consumers with adjustable-rate mortgages who may be uninformed or misinformed (or perhaps forgetful) about the upcoming initial interest rate adjustment, the possibility of an error in computing a potential new payment, or the financial implications of interestonly and negatively-amortizing loans on equity accumulation. The Bureau is not aware of data with which it could quantify the benefits to these consumers of becoming better informed about these features of their mortgages. However, the Bureau believes that the proposed initial interest rate adjustment notice may provide substantial benefits to these consumers. Costs to consumers. As explained below in the discussion of costs to covered persons, the cost per disclosure would be about $2.60. This estimate takes into account both one-time costs (amortized over five years) and annual production and distribution costs.131 Under conservative assumptions, in the illustration above, the benefits to consumers who receive the disclosure would be $6. Given the small cost per disclosure, the Bureau believes that consumers would see at most a minimal increase in fees or charges. Servicers may in general 131 In this and subsequent numerical discussions, ‘‘amortizing’’ an amount $x over a certain number of years means making equal payments in each year that sum up to $x. PO 00000 Frm 00052 Fmt 4701 Sfmt 4702 attempt to shift a cost increase onto others and consumers may ultimately bear part of an increase that falls nominally on servicers. For the proposed initial interest rate adjustment notice, however, the costs to be shifted are small. Furthermore, even if servicers did attempt to shift the costs, it is not clear that consumers would bear them. Consider, for example, servicers who bid for servicing rights on mortgages originated by others. The additional costs associated with providing the initial rate adjustment notice may cause servicers to bid less aggressively for certain servicing rights. In this case, lenders or investors may bear some of the cost. Servicers may also attempt to obtain higher compensation for servicing from originators. Originators may respond by attempting to increase fees or charges at origination or by increasing the cost of credit. In this case consumers may bear some of the costs, but not necessarily all of them. The relative sensitivity of supply and demand in these inter-related markets would determine the proportion of the cost increase borne by different persons, including consumers. The proposed rule limits how servicers may present the required information in the disclosure. Servicers would have to present the required information in a format substantially similar to the format of the proposed model forms. The Bureau recognizes the possibility that constraints on the way servicers present information to consumers may prohibit the use of more effective forms that servicers are using or may develop. The constraints would then impose a cost on consumers. The Bureau does not believe there are any such costs in this case. The Bureau is unaware of any efforts by servicers to develop an initial interest rate adjustment notice that meets the requirements of the Dodd-Frank Act and provides the benefits to consumers of the proposed model forms. The Bureau worked closely with Macro to develop the model disclosures, conducted three rounds of consumer testing, and revised the disclosure after testing. During the SBREFA process, the Bureau received comments from some SERs that disclosing an estimate of the new monthly payment may confuse certain consumers. The Bureau believes that clearly stating on the form that the new monthly payment is an estimate and that consumers will receive a notice with the exact amounts two to four months prior to the date the first payment at the adjusted level is due (in cases where the interest rate adjustment results in a corresponding payment change) will mitigate consumer E:\FR\FM\17SEP3.SGM 17SEP3 tkelley on DSK3SPTVN1PROD with PROPOSALS3 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules confusion on this point. The Bureau notes that section 1418 of the DoddFrank Act requires disclosure of a good faith estimate of the new monthly payment. In addition, servicers must provide an accurate statement of the new monthly payment in the notice if it is available; and if it is not available, then consumers will receive an accurate statement of the new monthly payment between 60 and 120 days before the first payment is due, if the interest rate adjustment causes a corresponding change in payment pursuant to the proposed § 1026.20(c) disclosure. Benefits to covered persons. The timing and the content of the proposed initial interest rate adjustment notice may provide certain benefits to servicers. Servicers benefit when distressed consumers contact them well in advance of a possible increase in interest rate and payment, since early communication gives servicers and consumers more time to work together constructively. The proposed disclosure provides consumers with substantial advance notice about their potential future payment and alternatives. Distressed consumers with such notice may be more likely to contact their servicer well in advance of an increase in payment, work constructively with their servicer, and, if necessary, explore alternatives. Costs to covered persons. The proposed initial interest rate adjustment notice will result in certain compliance costs to covered persons. Servicers (or their vendors) may need to adapt their software and compliance systems to produce the new form. The new proposed form would also provide to borrowers information that is not currently disclosed to them, including information that is specific to each loan. Servicers (or their vendors) may not have ready access to all of this additional loan-level information; for example, if some of this additional information is stored in a database that is not regularly accessed by systems that produce the current disclosures. The Bureau seeks information from servicers and vendors that provide services to servicers with respect to operations regarding the storage of loan-level information and the costs of providing the proposed new loan-level information to consumers. Some of the information provided in the proposed initial interest rate adjustment notice is also provided in the proposed revisions to the § 1026.20(c) disclosure. The Bureau believes that harmonizing the two disclosures would mitigate the compliance burden for servicers and VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 reduce the aggregate production costs to servicers. Based on discussions with servicers and software vendors to date, the Bureau believes that servicers will for the most part use vendors for one-time software and IT upgrades and for ongoing production and distribution (i.e., mailing) of the disclosure. Servicers will also incur one-time costs to learn about the proposed rule, but those costs will be minimal. Furthermore, the Bureau believes that under existing mortgage servicing contracts, vendors would absorb the one-time software and IT costs and ongoing production costs of disclosures for large- and medium-sized servicers but pass along these costs to small servicers. All servicers would pay distribution costs. Based on discussions with industry and extrapolating from FHFA data, the Bureau estimates the one-time cost of the proposed disclosure to be just over $3 million for 12,800 servicers. Amortizing this cost over five years and combining it with annual costs of $139,000 gives a total annual cost of $58 per servicer, or $2.60 per notice. The use of vendors substantially mitigates the costs of revising software and IT, as the efforts of a single vendor addresses the needs of a large number of servicers. The ongoing costs reflect the fact that there will be relatively few initial interest rate adjustments on adjustablerate mortgages over the next few years. For small servicers, the one-time cost of the proposed disclosure is $2.3 million. This also gives a total annual cost of about $58 per servicer. However, it is not possible to estimate the number of initial interest rate adjustment notices that small servicers will produce each year, since the Bureau is not aware of any reasonably obtainable data on the loan portfolios of small servicers. The Bureau believes that the number is small since the total number of mortgages serviced by small servicers is small and the notice is given only once to each ARM borrower. The Bureau seeks comment on these estimates and asks interested parties to provide data, research, and other information that may inform the further consideration of these costs. The Bureau recognizes that certain financial benefits to consumers from the initial interest rate adjustment notice may have an associated financial cost to covered persons. Servicer compensation is not directly tied to the interest rate on a consumer’s mortgage, but rather to the unpaid principal balance. Thus, when a consumer refinances a mortgage at a lower interest rate, one servicer incurs a cost but another has a benefit. On the PO 00000 Frm 00053 Fmt 4701 Sfmt 4702 57369 other hand, if a consumer refinances from an adjustable-rate mortgage to a fifteen year fixed-rate mortgage, then the consumer would pay off the unpaid principal balance more quickly and servicer income would fall. Servicers may also receive reduced fee income from delinquent borrowers (or investors) if the notice helps borrowers avoid delinquency. The Bureau believes that the proposed initial interest rate adjustment notice is likely to have a small effect on the costs to servicers through the channels just described, but the Bureau seeks data with which it may further consider these costs. Finally, as discussed in part VI, the Bureau considered but decided not to except small servicers from the proposed initial interest rate adjustment notice. The Bureau is not proposing an exception for small servicers because an exception would deprive certain consumers of the seven to eight months advance notice before payment at a new level is due that is provided by the disclosure and the information about alternatives and how to contact various sources of assistance. Conversely, the Bureau believes that the benefit to small entities from an exception would be small. Vendors will spread the one-time software and IT costs of the notice over many small servicers and the annual costs will be small since the proposed notice is given just once to each consumer with an adjustable-rate mortgage. As discussed above, the Bureau believes that five annual payments of $58 by each small servicer will fully amortize the one-time cost of the proposed interest rate adjustment notice. 2. Changes in the Format, Content, and Timing of the Regulation Z § 1026.20(c) Disclosure for Adjustable-Rate Mortgages Under current § 1026.20(c), creditors must mail or deliver to consumers whose payments will change as a result of an interest rate adjustment a notice of interest rate adjustment for variable-rate transactions subject to § 1026.19(b) at least 25, but no more than 120, calendar days before a payment at a new level is due. Creditors must also provide an annual disclosure to consumers whose interest rate, but not mortgage payment, changes during the year covered by the disclosure. The Bureau is proposing to eliminate the annual disclosure. Thus, the discussion below relates exclusively to the payment change disclosure required under § 1026.20(c).132 The 132 As discussed in part VI, the Bureau believes that annual notice is duplicative given the proposed E:\FR\FM\17SEP3.SGM Continued 17SEP3 57370 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS3 Bureau is proposing to change the minimum time for providing advance notice to consumers from 25 days to 60 days before payment at a new level is due, with an accommodation for existing ARMs with look-back periods of less than 45 days.133 The maximum time for advance notice would remain the same: 120 days prior to the due date of the first payment at a new level. The coverage, content, and format of the revised § 1026.20(c) disclosure closely tracks the coverage, content, and format of the proposed initial interest rate adjustment disclosure. Benefits to consumers. Regarding the change in timing, the Bureau does not believe that the current minimum of 25 days provides sufficient time for consumers to pursue meaningful alternatives such as refinancing, home sale, loan modification, forbearance, or deed in lieu of foreclosure. Nor does this minimum provide sufficient time for consumers to adjust household finances to cover new payments. The Board’s 2009 Closed-End Proposal stated that HMDA data for the years 2004 through 2007 suggested that a requirement to provide ARM adjustment disclosures 60, rather than 25, days before payment at a new level is due more closely reflects the time needed for consumers to refinance a loan. Regarding the proposed changes in the content of the § 1026.20(c) disclosure, the Bureau believes that it is helpful to consumers to receive similar notices for similar purposes. Thus, the Bureau believes there is some consumer benefit in harmonizing the § 1026.20(c) disclosure with the proposed initial interest rate adjustment disclosure. However, the two disclosures are triggered by different (although related) events and the benefit of the information to consumers is somewhat different. Both the current and proposed § 1026.20(c) disclosure provide the current and upcoming interest rate and payment (not an estimate) and the date periodic statement, which would provide much of the same information. Thus, eliminating the annual notice reduces costs for servicers with little or no loss in benefits to consumers. 133 As explained above, the Bureau is aware that for certain ARMs, there is currently less than 60 days between the date on which the index value is selected that serves as the basis for the new payment and the date on which payment at a new level is due. It may therefore be difficult for servicers to provide a notice of interest rate adjustment within 60 days of the date on which payment at a new level is due. The Bureau may provide an accommodation for some of these ARMs by requiring a different minimum time for providing this advance notice. The Bureau solicits comments on the operational changes that would be required to provide § 1026.20(c) notices at least 60 days before payment at a new level is due. VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 the first new payment is due. This information facilitates household budgeting and may alert the consumer to a potential problem with affordability. Proposed § 1026.20(c) requires the disclosure to include an explanation of how the new interest rate and payment are determined, including the index or formula used, any margin added, and any previously foregone interest increase applied. The proposed disclosure also states any limits on the interest rate or payment increase at each adjustment and over the life of the loan. This information assists the consumer in detecting any errors in the computation of the new payment. In contrast, the current § 1026.20(c) disclosure provides the index value without any explanation and does not provide information about limits on interest rate or payment increases. Information provided in the proposed § 1026.20(c) disclosure facilitates the evaluation of alternatives to paying the new amount due. For example, the proposed disclosure provides an explanation of the circumstances under which any prepayment penalty may be imposed and the maximum amount of the penalty, which highlights the direct cost of refinancing into a different loan. Also, disclosure of key features of the loan like the new allocation of payments for interest-only and negativelyamortizing ARMs, the rate limit per year and over the life of the loan, and warnings about interest-only payments and increases in the loan balance may also facilitate the comparison of the current loan with alternatives. Disclosures required by current § 1026.20(c) do not provide any of this information. The proposed § 1026.20(c) disclosure provides the same information as the proposed initial interest rate adjustment notice regarding features of the mortgage that affect the accumulation of equity. The disclosure of the loan balance itself is useful for this purpose. For interestonly or negatively-amortizing loans, the disclosure states the amount of the new payment allocated to pay principal, interest, and taxes and insurance in escrow, as applicable, and that the new payment will not be allocated to pay loan principal. If negative amortization will occur due to the interest rate adjustment, the disclosure states the payment required to fully amortize the loan at the new interest rate. The proposed disclosure alerts consumers with these types of loans to features that bear on equity accumulation, and it provides this information at a time when these consumers may be evaluating their mortgage terms and PO 00000 Frm 00054 Fmt 4701 Sfmt 4702 considering refinancing. In contrast, the current § 1026.20(c) disclosures provide only the loan balance and information about the payment required to fully amortize the loan at the new interest rate if the interest rate adjustment caused the negative amortization. As noted above, the Bureau recognizes that the benefit to consumers of information in a particular disclosure may be attenuated to the extent that the same information is available in other disclosures that are provided at the same (or nearly the same) time. However, some of the information on the proposed § 1026.20(c) disclosure that also appears on the proposed periodic statement disclosure is provided on the § 1026.20(c) disclosure in order to facilitate comparisons between the current and new payment before the new payment is due. Since the proposed § 1026.20(c) disclosure is provided only if the payment changes, the benefit to consumers from receiving the same information on both disclosures is likely greater than the benefit of receiving this information only on the periodic statement disclosure.134 Finally, the Bureau is proposing formatting requirements for the § 1026.20(c) disclosure similar to those for the initial interest rate adjustment notice. As discussed above, these requirements benefit consumers by facilitating consumer understanding of the information in the disclosures. The proposed rule provides that the disclosures must be provided in the form of a table and in the same order as, and with headings and format substantially similar to, certain forms provided with the proposed rule. The Bureau’s testing of the same information proposed for inclusion in § 1026.20(c) notice in the proposed § 1026.20(d) notice showed that consumers readily understood the information in the notice when the terms and calculations were presented in the logical order contained in the model forms. As discussed above, while there is no formula for producing the ideal disclosure, the Bureau believes that disclosures that satisfy the proposed formatting requirements likely provide greater benefits to consumers than both the alternatives tested and disclosures that do not satisfy these requirements. 134 Of course, a consumer who receives the proposed § 1026.20(c) disclosure may derive little additional benefit from shortly thereafter receiving the same information on the proposed periodic statement disclosure. There would, however, likely be little cost saving for servicers in not having to provide the information on the proposed periodic statement disclosure that also appears on the § 1026.20(c) disclosure for just one or two months. E:\FR\FM\17SEP3.SGM 17SEP3 tkelley on DSK3SPTVN1PROD with PROPOSALS3 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules Extrapolating from FHFA data, the Bureau estimates that approximately 650,000 adjustable-rate mortgages will adjust in each of the next three years. To illustrate the possible benefits of the proposed § 1026.20(c) disclosure, suppose that the proposed change in the timing of the disclosure from 25 days to 60 days before payment at a new level is due prompts certain consumers to refinance one month sooner. If the change in timing provides just 5% of consumers with ARMs a one-time benefit of $50, the annual savings to consumers would be over $1.6 million. Costs to consumers. As explained further in the discussion of costs to covered persons, the proposed provisions would produce a minimal increase in costs, about 80 cents per disclosure. This estimate takes into account both one-time additional costs (amortized over five years) and additional annual production and distribution costs. Under conservative assumptions, in the illustration above, the benefit to consumers would be $2.50 per disclosure. Given the small additional cost per disclosure, the Bureau believes that consumers would not see any increase in fees or charges. Servicers may in general attempt to shift a cost increase onto others and consumers may ultimately bear part of an increase that falls nominally on servicers. For the proposed § 1026.20(c) disclosure, however, the costs to be shifted are very small. Thus, the proposed disclosure is not likely to impose any cost increase on consumers. As with the proposed initial interest rate adjustment notice, the proposed rule limits how servicers may present the required information in the proposed § 1026.20(c) disclosure. Servicers would have to present the required information in a format substantially similar to the format of the proposed model form. The Bureau recognizes the possibility that constraints on the way servicers present information to consumers may prohibit the use of more effective forms that servicers are using or may develop. The constraints would then impose a cost on consumers. The Bureau does not believe there are any such costs in this case. The Bureau is unaware of any efforts by servicers to develop a payment adjustment notice that meets the requirements of proposed § 1026.20(c) and provides the benefits to consumers of the proposed model forms. As discussed above, some consumers have adjustable-rate mortgages with look-back periods shorter than 45 days. For example, FHA and VA ARMs often have look-back periods of 15 or 30 days. VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 These ARMs contractually will not be able to comply with the proposal to require sending the § 1026.20(c) disclosure 60 to 120 days before payment at a new level is due. The Bureau is proposing grandfathering these existing ARMs. Going forward, however, ARMs must be structured to permit compliance with the proposed 60- to 120-day time frame. Initial outreach suggests that the absence of adjustable-rate mortgages with short look-back periods will not reduce the mortgage options available to consumers. It is possible, however, that mortgages with short look-back periods may have certain cost advantages to servicers or investors in certain interest rate environments (e.g., when rates are rising quickly) and that competition may translate some of these advantages into benefits to consumers. In this case, the proposed 60- to 120-day time frame would impose a cost on consumers. The Bureau seeks comments on both the grandfathering provision and general requirement for compliance with the proposed time frame going forward. Benefits to covered persons. The timing and content of the proposed § 1026.20(c) disclosure may provide certain benefits to servicers. Servicers benefit when distressed consumers contact them in advance of a possible increase in interest rate and payment, since early communication gives servicers and consumers more time to work together constructively. Changing the minimum time for providing advance notice to consumers from 25 days to 60 days before payment at a new level is due provides essential household budgeting information to consumers sooner. Distressed consumers may then contact their servicer sooner, and the servicer and the consumer would then have additional time to work together and if necessary to explore alternatives. Costs to covered persons. The proposed modifications of the § 1026.20(c) disclosure will result in certain compliance costs to covered persons. Servicers (or their vendors) may need to adapt their software and compliance systems to produce the revised disclosure. The revised disclosure would also provide to borrowers information that is not currently disclosed to them, including information that is specific to each loan. Servicers (or their vendors) may not have ready access to all of this additional loan-level information; for example, if some of this additional information is stored in a database that is not regularly accessed by systems that produce the current disclosures. The Bureau solicits information about PO 00000 Frm 00055 Fmt 4701 Sfmt 4702 57371 servicer and vendor operations regarding the storage of loan-level information and the costs of providing the proposed new loan-level information to consumers. As discussed above, some of the information provided in the proposed revisions to the § 1026.20(c) disclosure is also provided in the proposed initial interest rate adjustment disclosure. The Bureau believes that harmonizing the two disclosures would mitigate the compliance burden for servicers and reduce the aggregate production costs to servicers. Based on discussions with servicers and software vendors to date, the Bureau believes that, in general, servicers of all sizes will incur minimal one-time costs to learn about the proposed provision. They will for the most part use vendors for one-time software and IT upgrades and for producing and distributing (i.e., mailing) the disclosure. Under existing vendor contracts, large servicers will not be charged for the upgrades and production but may be charged for distribution. Smaller servicers may be charged for all these costs, but they service relatively few loans so in aggregate these costs are small. Based on discussions with industry and extrapolating from FHFA data, the Bureau estimates one-time costs of just under $2 million for the 12,800 servicers overall. Amortizing this cost over five years and combining it with annual costs of $129,000 gives a total annual cost of $41 per servicer, or 80 cents per disclosure. For small servicers, the one-time cost is $1.65 million. This also gives a total additional annual cost of about bout $41 per servicer. The Bureau is not aware of any reasonably obtainable data on the loan portfolios of small servicers, so it is not possible to estimate the number of disclosure that small servicers would produce each year. The Bureau seeks comment on these estimates and asks interested parties to provide data, research, and other information that may inform the further consideration of these costs. The Bureau recognizes that certain financial benefits to consumers from the revised § 1026.20(c) disclosure may have an associated financial cost to covered persons. The discussion of this point for the initial interest rate adjustment notice applies equally to the revised § 1026.20(c) disclosure. Finally, as discussed above, the Bureau recognizes that there may be costs to covered persons from extending the minimum advance notice period to 60 days. Mortgages with short look-back periods may have certain cost advantages in certain interest rate E:\FR\FM\17SEP3.SGM 17SEP3 57372 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules environments (e.g., when rates are rising quickly). The Bureau seeks comments on both the grandfathering provision and general requirement for compliance with the proposed time frame going forward. tkelley on DSK3SPTVN1PROD with PROPOSALS3 3. New Periodic Statement Disclosure for Certain Mortgages Section 1420 of the Dodd-Frank Act requires the creditor, assignee, or servicer of any residential mortgage loan to transmit to the consumer, for each billing cycle, a periodic statement that sets forth certain specified information in a clear and conspicuous manner. The statute also gives the Bureau the authority to require servicers 135 to include additional content to be included in the periodic statement. The statute provides an exception to the periodic statement requirement for fixed-rate loans where the consumer is given a coupon book containing substantially the same information as the statement. The proposed rule would require the periodic statement to include the content listed in the statute, as applicable, as well as billing information, payment application information, and information that may be helpful to distressed or delinquent consumers. In accordance with the statute, the proposed rule provides a coupon book exemption for fixed-rate loans when the consumer is given a coupon book with certain of the information required by the periodic statement. The proposed rule also has exemptions for small servicers, reverse mortgages, and timeshares. The proposed periodic statement disclosure would be provided to all consumers with a closed-end residential mortgage, unless one of the exemptions applies. Benefits to consumers. The Bureau does not have representative information on the extent to which servicers currently provide consumers with coupon books, billing statements, or periodic statements that may comply with the proposed rule. Servicers do have an incentive to provide consumers with basic billing information. This includes the payment due date, amount of any late payment fee, amount due, and current interest rate. This information also appears on the proposed periodic statement. While this basic information provides benefits to consumers, those benefits are already provided for by current disclosures. The 135 Reference in parts VII, VIII, and IX to ‘‘servicers’’ with regard to the proposed rule for the periodic statement, means creditors, assignees, and servicers. VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 proposed periodic statement will also contain information that could appear on a coupon book that does provide additional benefits to consumers, for example, the housing counselor information. There is other information that appears on billing statements and coupon books but is accurate only if the consumer always makes the scheduled payment on time and no other payment. This information is accurate because it follows a set formula. It includes the outstanding principal balance, total payments made since the beginning of the calendar year, and the breakdown of payments into principal, interest, and escrow. This information is not accurate, however, if the borrower makes an extra payment, provides a partial payment, or misses a payment entirely. All of this aforementioned information appears on the proposed periodic statement. However, on the proposed periodic statement, the information would be accurate even if the consumer makes an extra payment, provides a partial payment, or misses a payment entirely. Consumers generally benefit from having accurate information about payments in order to monitor the servicer, assert errors if necessary, and track the accumulation of equity. However, delinquent consumers may especially benefit from tracking the effects of delinquency on equity so they can effectively determine how to allocate income and consider options for refinancing. For these consumers, the proposed periodic statement may provide large benefits relative to coupon books or billing statements that do not provide the aforementioned information. Finally, there is information that simply cannot be provided on a coupon book or on a billing statement that provides the same information as a coupon book. This includes fees or charges imposed since the last periodic statement, partial payments, past due payments, and a wide range of delinquency information and information about loan modifications and foreclosure. Consumers who are more than 45 days delinquent will have a delinquency notice included on the periodic statement (or provided to them if their servicer is using a coupon book) providing specific information about the delinquency of their loan. This is one way the servicer may catch the attention of the consumer. The messages section provides an additional route. The only message the proposed rule requires the servicer to provide concerns partial payments; however, the proposal also PO 00000 Frm 00056 Fmt 4701 Sfmt 4702 seeks comment on other messages that should be required. Consumers who make partial payments may benefit from knowing what they must do to have the funds in a suspense or unapplied funds account applied to the outstanding balance. All of this information is useful to distressed or delinquent consumers who may need to assert an error and evaluate alternatives to paying the current mortgage. A consumer with past due amounts on a mortgage, car, and credit card would need information about the past due amounts and how the fees and charges accumulate in order to determine the most advantageous way of reducing total debt. The information generally benefits consumers who are managing a variety of debts and who want to know the least costly way of increasing their total debt or the most advantageous way of reducing their total debt. The Bureau is proposing grouping requirements in the format of the periodic statement. The grouping requirement presents the information in a logical format and may facilitate consumer understanding of the information in the different components of the disclosure. The General Design Principles discussed in the Macro Final Report, discussed in the section-bysection analysis, include grouping together related concepts and figures because consumers are likely to find it easier to absorb and make sense of financial forms if the information is grouped in a logical way. The Bureau also tested model periodic statement disclosures that satisfy the grouping requirements. As discussed above, while there is no formula for producing the ideal disclosure, the Bureau believes that disclosures that satisfy the grouping requirement are likely to provide greater benefits to consumers than disclosures that do not. There are two main exceptions to the proposed periodic statement requirement. The first, provided by statute, is an exception for consumers with fixed-rate mortgages and coupon books that contain certain information. As discussed above, the fixed or formulaic information on coupon books will be accurate for consumers who make only scheduled payments. Consumers with fixed-rate mortgages never have to manage a changed payment amount. However, the Bureau does not have ready access to data on whether they are less likely to make additional payments, partial payments or miss a payment and may obtain substantially reduced benefits because of the exception. E:\FR\FM\17SEP3.SGM 17SEP3 tkelley on DSK3SPTVN1PROD with PROPOSALS3 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules The Bureau is also proposing an exception for small servicers. A small servicer would be defined as a servicer (i) who services 1,000 or fewer mortgage loans and (ii) that only services mortgage loans for which the servicer or an affiliate is the owner or assignee, or for which the servicer or an affiliate is the entity to whom the mortgage loan obligation was initially payable. Such small servicers will not have to provide the proposed periodic statement. As discussed in the section-by-section analysis on § 1026.41(e)(4), the Bureau believes that servicers that meet both conditions generally provide consumers with ready access to the information on the proposed periodic statement, but possibly through other channels. Servicers that meet the first condition face either a reduction in the value of an asset on its portfolio or the loss of an investment in the relationship with the consumer which was established by originating if they provide poor servicing. Servicers that also service relatively few loans have an incentive to commit to a ‘‘high-touch’’ business model that offers highly responsive customer service. The Bureau believes that servicers that meet both conditions can and generally do provide their customers with ready access to comprehensive information about their payments, amounts due and other account information through a variety of channels. Thus, the Bureau believes that the proposed exemption would produce at most a minimal reduction in benefits to the customers of small servicers. Using regulatory filings, the Bureau roughly estimates that approximately 49 million consumers would receive the proposed periodic statement disclosure (even taking into account the small servicer exception). To illustrate the possible benefits of the disclosure, suppose 10% save 15 minutes each year because the proposed disclosure provides them with information about their loan or payments that their billing statements or coupon books may not provide (e.g., a past payment breakdown) and they would spend 15 minutes obtaining this information, say by contacting their servicer by phone, mail or some other means. This is a savings of 1.225 million hours per year, or almost $21 million at the median wage of $17 per hour. Benefits to covered persons. Providing the proposed content on a regular basis to consumers may reduce the frequency with which consumers contact the servicer for information and reduce the time servicers spend answering consumer questions. Servicers also benefit from reduced costs when they manage fewer partial payments and VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 delinquencies and can resolve delinquencies sooner. Costs to covered persons. The proposed periodic statement disclosure will result in certain compliance costs to servicers. Servicers (or their vendors) may need to adapt their software and compliance systems to produce the new disclosure. The new proposed disclosure would also provide to borrowers information that is not currently disclosed to them, including information that is specific to each loan. Servicers (or their vendors) may not have ready access to all of this additional loan-level information; for example, if some of this additional information is stored in a database that is not regularly accessed by systems that produce the current disclosures. The Bureau solicits information about servicer and vendor operations regarding the storage of loan-level information and the costs of providing the proposed new loan-level information to consumers. The Bureau believes that, in general, servicers of all sizes will incur minimal one-time costs to learn about the proposed provision. Based on information provided by servicers and by software vendors, the Bureau believe that servicers will use vendors for onetime software and IT upgrades and for producing and distributing (i.e., mailing) the disclosure. Under existing vendor contracts, large servicers will not be charged for the upgrades and production but may be charged for distribution. Smaller servicers may be charged for all these costs, but they service relatively few loans so in aggregate these costs are small. The Bureau is not aware of any reasonably obtainable data that would allow an accurate calculation of the additional annual cost from the proposed disclosure per servicer. This calculation would depend critically on the number of servicers not covered by the exception and the number of adjustable-rate mortgages with coupon books that these servicers currently service. A plausible illustration is that 2,013 servicers not covered by the exception begin providing 1 million consumers (i.e., those with coupon books and adjustable rate mortgages) twelve new disclosures per year at fifty cents per disclosure, for an average annual cost of $2,981 per servicer. This figure does not include the additional annual cost to these servicers of providing the information on the proposed periodic statement disclosure that is not currently provided on their existing billing statements. The Bureau welcomes comment on this estimate and asks interested parties to provide data, PO 00000 Frm 00057 Fmt 4701 Sfmt 4702 57373 research, and other information that may inform the further consideration of the costs of the proposed periodic statement disclosure. The small servicer exemption in proposed § 1026.41(e)(4) would benefit small servicers by providing an alternative, and potentially less expensive, means of compliance with the periodic statement requirement. The SBREFA panel stated that a periodic statement requirement would impose significant burdens on small servicers. The panel explained that while much of the information in the proposed periodic statement was already being provided through alternative means and most of the information is available on request, consolidating this information into a single monthly dynamic statement is difficult for small servicers. The SERs expressed that due to their small size, they would not be able to have in-house expertise and would generally use third-party vendors to develop periodic statements. Due to their small size, they believe they would have no control over these vendor costs. Additionally, the small servicers have a smaller portfolio over which to spread the fixed costs of producing periodic statements. Such servicers stated they are unable to gain cost efficiencies and cannot effectively spread the implementation costs of periodic statements across their loan portfolios. Finally, even the costs of mailing monthly statements could be significant to the extent that small servicers currently use alternative information methods (such as coupon books for adjustable-rate mortgages, or passbooks). For small servicers, the cost savings from the proposed exception equals the costs not incurred to begin providing periodic statements or to improve existing disclosures to consumers who would be required to receive the periodic statement under the proposal. The only consumers who need not receive the proposed disclosure are those with fixed-rate mortgages and coupon books. The Bureau believes that this is a relatively small fraction of the loans held on portfolio or sold with servicing retained by servicers with less than 1,000 loans. Thus, small servicers would have to increase the content of existing disclosures or begin providing the periodic statement disclosure to almost all of their consumers. However, many of these consumers receive billing statements, so there would not be additional distribution costs from the proposed disclosure, and the exception does not mitigate costs that would not be incurred. There is no reasonably available data with which the Bureau can accurately E:\FR\FM\17SEP3.SGM 17SEP3 57374 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS3 estimate the number of these consumers or the mix of new disclosures and improved disclosures. However, based on regulatory data, the Bureau believes that approximately 10,800 small servicers service 2.3 million mortgages. Based on discussions with industry, the Bureau believes that each periodic statement would cost a range of 20–50 cents to provide. Thus, a reasonable estimate of the cost savings for small servicers from the proposed exception is $6 million–$14 million. The Bureau seeks data and other information with which it may further consider the question of the cost savings from the proposed small servicer exception. 4. Prompt Crediting of Payments and Response to Requests for Payoff Amounts DFA section 1464(a) codifies existing Regulation Z § 1026.36(c)(1)(i) on prompt crediting. The Bureau is proposing an additional requirement for the handling of partial payments (i.e., payments that are not full contractual payments). Under the proposal, if servicers hold partial payments in a suspense account, once the amount in the account equals a full contractual payment, the servicer must credit the payment to the most delinquent outstanding payment. The Bureau proposes to define a full contractual payment as a payment covering principal, interest and escrow (if applicable). A proposed alternative to the definition would include late fees. DFA section 1464(b) requires that a creditor or servicer of a home loan send an accurate payoff balance within a reasonable time, but in no case more than seven business days, after the receipt of a written request for such balance from or on behalf of the consumer. This generally codifies existing Regulation Z § 1026.36(c)(1)(iii) on payoff statements. Benefits and costs to consumers. The proposed provision on prompt crediting generally ensures that consumers benefit from every effort that they make to pay their mortgage debt. The proposed provision helps consumers manage and reduce default by clarifying the rules servicers must follow when processing partial payments. As the statute largely codifies an existing regulation, the benefits and costs to consumers from a pre-statute baseline are small. However, the existing regulation does not specifically address the handling of partial payments. As discussed above, the proposed regulation would leave servicers significant flexibility in the handling of partial payments but would also ensure greater consistency in the VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 handling of suspense accounts. The Bureau believes this proposed approach would clarify servicers’ obligations in processing both full contractual payment and partial payments, as well as ensure all payments are properly applied. The proposed disclosures would help consumers understand the processing of their payments. Additionally, requiring application to the oldest outstanding payment when a full payment accumulates will provide protection to consumers, as well as reduce the outstanding principal balance on certain consumer loans. The Bureau requests comment on the benefits and costs to consumers of including late fees in the definition of a full contractual payment. Not including late fees in the definition of a full contractual payment would require servicers to credit a payment that covered principal, interest and escrow even if late fees were outstanding. Consumers who made such a payment would benefit from having that payment credited. While some servicers currently follow this practice, other servicers who hold such payments in suspense accounts until the fees are paid would be required to change their practices. Benefits and costs to covered persons. As the statute largely codifies an existing regulation, the benefits and costs to covered persons from a prestatute baseline are small. The proposed provision on prompt crediting may cause certain covered persons with different crediting practices to forfeit some fee income or float income, but the Bureau has no data with which to determine whether this is the case. The Bureau requests comment on the benefits and costs to covered persons of including late fees in the definition of a full contractual payment. 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 § 1026 Overall, the impact of the rule on depository institutions and credit unions depends on a number of factors, including the institutions’ current software and compliance systems and the current practices of third-party service providers. Based on discussions with industry, the Bureau believes that larger depositories and credit unions will incur only minimal costs from this rulemaking. The initial interest rate adjustment notice is a new disclosure, but the Bureau believes that the larger depository institutions and credit PO 00000 Frm 00058 Fmt 4701 Sfmt 4702 unions (of those with $10 billion or less in total assets) use third-party vendors who will, under current contracts, absorb the information collection and data processing costs. The Bureau believes that vendors do not absorb the costs of mailing disclosures, and based on discussions with industry the Bureau understands that 70–80% of consumers have not elected to receive disclosures electronically. Relatively few adjustablerate mortgages have been originated in recent years, however, and so the number that will adjust for the first time in the near term will be small. The costs to the larger depositories and credit unions (of those with $10 billion or less in total assets) from the proposed changes to the two other proposed disclosures will also be minimal. The Bureau expects that the information collection and data processing costs of the periodic statement disclosure and the proposed changes in the § 1026.20(c) disclosure will largely be absorbed by third-party vendors. The Bureau believes that the mailing costs of the periodic statement disclosure are likely to be the same as those for billing statements that it would replace. The proposed provision on periodic statements would require consumers who use a coupon book for payments on an adjustable-rate mortgage to receive a periodic statement, but the number of such consumers is small. The mailing costs of the proposed § 1026.20(c) disclosure would be the same as the mailing costs of the current disclosure. The Bureau believes that smaller depositories and credit unions may incur some additional costs from this rulemaking. Smaller depositories also use third-party vendors, but the Bureau believes that contracts with these vendors may allow them to pass along the information collection and data processing costs to the servicers. Even for smaller depository servicers, however, the additional costs from the two proposed disclosures for adjustablerate mortgage are likely to be small. There will be few initial interest rate adjustments in the near term, and servicers currently are required to send the § 1026.20(c) disclosure. Thus, most new costs will come from the one-time and ongoing costs of providing the periodic statement disclosure. As discussed above, the Bureau is proposing to exempt certain small servicers from the periodic statement disclosure requirement if they service fewer than 1,000 loans and either hold the loans in portfolio or originated them. Using Call Report data, the Bureau concludes that almost all servicers with under $175 million in E:\FR\FM\17SEP3.SGM 17SEP3 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules assets would qualify for this exemption, as would many servicers with greater assets. However, the Bureau will examine this question further and requests data and additional information on the small servicers who would qualify for the proposed exemption. Based on discussions with industry, the Bureau believes that the vast majority of depositories and credit unions, of any size, are already in compliance with the proposed provisions for prompt crediting of payments and response to requests for payoff amounts. tkelley on DSK3SPTVN1PROD with PROPOSALS3 2. Impact of the Proposed Provisions on Consumers in Rural Areas Consumers in rural areas may experience benefits from the proposed rule that are different in certain respects from the benefits experienced by consumers in general. Consumers in rural areas may be more likely to obtain mortgages from small local banks and credit unions that either service the loans in portfolio or sell the loans and retain the servicing rights. These servicers may already provide most of the benefits to consumers that the proposed rule is designed to provide, including the benefits to consumers with adjustable-rate mortgages. On the other hand, it is also possible that a lack of alternatives for consumers in some rural areas regarding lenders who also service mortgages may cause the proposed rule to provide rural consumers with greater benefits than the rule may provide to other consumers. The Bureau will further consider the impact of the proposed rule on consumers in rural areas. The Bureau 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 and additional proposed modifications before finalizing the proposal. As noted below, there are a number of areas where additional information would allow the Bureau to better estimate the benefits and costs of this proposal. In addition, the Bureau asks interested parties to provide general information, data, and research results on: • How consumers might respond to the information proposed for inclusion in the new initial interest rate adjustment disclosure, the additional VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 information proposed for inclusion in the revised Regulation Z § 1026.20(c) disclosure, and the information proposed for inclusion in the new periodic statement disclosures; • The coverage and format of these proposed disclosures; • The benefits to consumers from the disclosures listed above; and • The potential impact on servicers and on the functioning of the servicing market from the disclosures listed above and the prompt crediting requirement. The Bureau also requests specific information on the costs to covered persons of complying with the proposal, such as revising compliance software and systems. 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 the National Mortgage License System (NMLS) 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 regulatory agencies for states and territories and mortgage loan originators under the SAFE Act, NMLS contains basic identifying information for non-depository 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.136 To date, the Bureau has received basic data on the firms in the NMLS and de-identified data and tabulations of data from the MCR. These data were used, along with HMDA data, to help estimate the number and characteristics of non136 More information about the Mortgage Call Report can be found at http:// mortgage.nationwidelicensingsystem.org/slr/ common/mcr/Pages/default.aspx. PO 00000 Frm 00059 Fmt 4701 Sfmt 4702 57375 depository 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 non-depository lenders engaging in various mortgage origination and servicing activities. As such, it supplements the Bureau’s current data for non-depository 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 Good Faith Estimate 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 E:\FR\FM\17SEP3.SGM 17SEP3 tkelley on DSK3SPTVN1PROD with PROPOSALS3 57376 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules 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 the Dodd-Frank Act. 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 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%) 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 5,000 newly originated mortgages sampled from the prototype NMDB. Based on the 2011 pilot, a response rate of 50% 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 nonresponse 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 publicly 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 VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 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-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 SBREFA 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 SBREFA 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 describes 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 PO 00000 Frm 00060 Fmt 4701 Sfmt 4702 with regard to obtaining this information. The Bureau first notifies the Chief Counsel for Advocacy (Chief Counsel) of the 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 identifies the SERs, the 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. 5 U.S.C. 609(b)(2). The Bureau convenes a SBREFA Panel for such rule consisting wholly of fulltime 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 OMB, and the Chief Counsel. 5 U.S.C. 609(b)(3). The SBREFA Panel reviews any material the Bureau has prepared in connection with the SBREFA process and collects the 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.137 5 U.S.C. 609(b)(4). Not later than 60 days after the date the Bureau convenes the SBREFA Panel, the panel reports on the comments of the SERs and its findings as to the issues on which the SBREFA 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 April 9, 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 137 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, record keeping, 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), 603(b)(4), 603(b)(5), 603(c). E:\FR\FM\17SEP3.SGM 17SEP3 tkelley on DSK3SPTVN1PROD with PROPOSALS3 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules from small entity representatives to inform the SBREFA Panel pursuant to sections 609(b)(2) and 609(b)(4) of the RFA, the Bureau, in consultation with the Chief Counsel, identified five categories of small entities that may be subject to the proposed rule for purposes of the IRFA: Commercial banks/savings institutions, credit unions, non-depositories engaged primarily in lending funds with real estate as collateral (included in NAICS 522292), non-depositories primarily engaged in loan servicing (included in NAICS 522390), and certain non-profit organizations. Section 3 of the IRFA, in 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 then, in consultation with the Chief Counsel, selected 16 small entity representatives to participate in the SBREFA process. As described in chapter 7 of the SBREFA Final Report, described below, the SERs selected by the Bureau in consultation with the Chief Counsel 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, suburban, or metropolitan areas). On April 10, 2012, the Bureau convened the SBREFA Panel pursuant to section 609(b)(3) of the RFA. Afterwards, to collect the advice and recommendations of the SERs under section 609(b)(4) of the RFA, the SBREFA Panel held an outreach meeting/teleconference with the small entity representatives on April 24, 2012. To help the small entity representatives prepare for the outreach meeting beforehand, the SBREFA 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.138 All 16 small entity representatives participated in the outreach meeting either in person or by telephone. The SBREFA Panel also provided the small entity representatives with an opportunity to 138 The Bureau posted these materials on its website and invited the public to email remarks on the materials. See http:// www.consumerfinance.gov/pressreleases/consumerfinancial-protection-bureau-outlines-borrowerfriendly-approach-to-mortgage-servicing/ (the materials are accessible via the links within this document). VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 submit written feedback until May 1, 2012. In response, the SBREFA Panel received written feedback from five of the representatives.139 On June 11, 2012, the SBREFA Panel submitted to the Director of the Bureau, Richard Cordray, a written SBREFA Final 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 small entity representatives who were selected to advise the SBREFA Panel; a summary of the SBREFA Panel’s outreach to obtain the advice and recommendations of those small entity representatives; a discussion of the comments and recommendations of the small entity representatives; and a discussion of the SBREFA Panel findings, focusing on the statutory elements required under section 603 of the RFA. 5 U.S.C. 609(b)(5).140 In preparing this proposed rule and the IRFA, the Bureau has carefully considered the feedback from the small entity representatives participating in the SBREFA process and the findings and recommendations in the SBREFA Final 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 SBREFA Panel, as applicable. The SBREFA process provided the SBREFA 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 SBREFA Panel prepared the SBREFA Final Report at a preliminary stage of the proposal’s development and that the SBREFA Final Report—in particular, the SBREFA Panel’s findings and recommendations—should be considered in that light. Also, any options identified in the SBREFA Final Report for reducing the proposed rule’s regulatory impact on small entities were expressly subject to further consideration, analysis, and data collection by the Bureau to ensure that the options identified were practicable, enforceable, and consistent with TILA, the Dodd-Frank Act, and their statutory purposes. The proposed rule and the IRFA reflect further consideration, analysis, and data collection by the Bureau. 139 This written feedback is attached as appendix A to the SBREFA Final Report, discussed below. 140 SBREFA Final Report, supra note 22. PO 00000 Frm 00061 Fmt 4701 Sfmt 4702 57377 B. Initial Regulatory Flexibility Analysis Under RFA section 603(a), 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, RFA section 603(d) 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); DFA section 1100G(d)(1). 1. Description of the Reasons Why Agency Action Is Being Considered As discussed in the Overview, part I above, mortgage servicing has been marked by pervasive and profound consumer protection problems. As a result of these problems, Congress included a number of provisions in the Dodd-Frank Act specifically to address mortgage servicing. These provisions are DFA sections 1418 (initial rate adjustment notice for adjustable-rate E:\FR\FM\17SEP3.SGM 17SEP3 tkelley on DSK3SPTVN1PROD with PROPOSALS3 57378 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules mortgages (ARMs)), 1420 (periodic statement), 1463 (amending RESPA), and 1464 (prompt crediting of mortgage payments and response to requests for payoff amounts). The Bureau also proposes to amend current rule § 1026.20(c) to harmonize with DFA section 1418, although not required by statute. The Dodd-Frank Act and TILA authorize the Bureau to adopt implementing regulations for the statutory provisions provided by DFA sections 1418, 1420, and 1464. The Bureau is using this authority to propose regulations in order to provide servicers with clarity about their statutory obligations under these three provisions. The Bureau is also proposing to adjust servicers’ statutory obligations, including the obligations of small servicers, in certain circumstances. The Bureau is taking this action in order to ease burden when doing so would not sacrifice adequate protection of consumers. Elsewhere in today’s Federal Register, the Bureau is publishing a proposed rule issued under RESPA that would implement DFA section 1463, the 2012 RESPA Servicing Proposal, which addresses procedures for obtaining force-placed insurance; procedures for investigating and resolving alleged errors and responding to requests for information; reasonable information management policies and procedures; early intervention for delinquent borrowers; and continuity of contact for delinquent borrowers. The new statutory requirements take effect automatically on January 21, 2013, as written in the statute, unless final rules are issued prior to that date. The Dodd-Frank Act provides the Bureau with limited authority to extend the effective date of statutory requirements when adopting implementing regulations. The Bureau will consider the time servicers need to come into compliance in determining the effective date. The Bureau’s proposed rules under Regulation Z and X represent another important step towards establishing uniform minimum national standards. As discussed in part II above, other Federal regulatory agencies have issued guidance on mortgage servicing and loan modifications and taken enforcement actions against mortgage servicers (including that National Mortgage Settlement, discussed in part II.C above). These varied regulatory responses are understandable when viewed as a response to an unprecedented mortgage crisis and significant problems in the servicing of mortgage loans. Ultimately, VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 however, both borrowers and mortgage servicers will be better served by having uniform national standards that govern mortgage servicing. When adopted in final form, the Bureau’s rules will generally apply to all mortgage servicers, whether depository institutions or non-depository institutions, and to all segments of the mortgage market, regardless of the ownership of the loan. 2. Succinct Statement of the Objectives of, and Legal Basis for, the Proposed Rule DFA section 1418 requires servicers to provide a new disclosure to consumers who have hybrid ARMs. The disclosure concerns the initial interest rate adjustment and must be given either (a) between six and seven months prior to such initial interest rate adjustment or (b) at consummation of the mortgage if the initial interest rate adjustment occurs during the first six months after consummation. The Bureau proposes implementing TILA section 128A(b) by broadening the scope of the proposed rule generally to adjustable-rate mortgages, not just hybrid ARMs. The proposed new ARM disclosure for the initial interest rate adjustment provides the content listed in the statute and certain additional information. The disclosure provides, among other things, information about the terms of the loan, a description of the way the new rate and upcoming payment would be determined, a good faith estimate of the upcoming payment, and information that may be especially useful to distressed and delinquent borrowers. The proposed revisions to the Regulation Z § 1026.20(c) disclosure would harmonize the timeframe and content requirements with those of the new ARM disclosure. The Bureau believes that the current era of declining interest rates has reduced the payment shock that can result from ARM interest rate adjustments. If interest rates increase quickly, however, then payment shock may also increase. Furthermore, the popularity of adjustable-rate mortgages, which provide the opportunity for reduced interest rates during an introductory period, likely would increase along with the advent of higher interest rates. The proposed rule is intended to mitigate the consequences of payment shock by ensuring that consumers have sufficient time to identify and execute the best course of action. As explained above, the proposed rule would implement DFA section 1418 requirements for the initial ARM interest rate adjustment notice, which PO 00000 Frm 00062 Fmt 4701 Sfmt 4702 generally will be provided to consumers between six and seven months prior to the initial interest rate adjustment. The Bureau also proposes to revise the timeframe of the Regulation Z § 1026.20(c) disclosure for rate adjustments that result in an accompanying payment change, from the current 25 to 120 days before payment at a new level is due to 60 to 120 days before payment at a new level is due. DFA section 1420 generally requires the creditor, assignee, or servicer of a residential mortgage loan to transmit to the borrower, for each billing cycle, a periodic statement that sets forth certain specified information in a clear and conspicuous manner. The statute also gives the Bureau the authority to require additional content to be included in the periodic statement. The statute provides an exception to the periodic statement requirement for fixed-rate loans where the consumer is given a coupon book containing substantially the same information as the statement. The proposed periodic statement disclosure would require the periodic statement to include the content listed in the statute, as well as additional loan information, billing information, and information that may be helpful to distressed or delinquent borrowers. In accordance with the statute, the proposed rule has a coupon book exemption for fixed-rate loans when the borrower is given a coupon with certain information required by the periodic statement and information to access other information included in the periodic statement. The proposed rule also has exemptions for certain small servicers, reverse mortgages, and timeshares. The proposed periodic statement is designed to serve a variety of purposes. These purposes include informing consumers of their payment obligation, providing consumers with information about their mortgage in an easily read and understood format, creating a record of the transaction to aid in error detection and resolution, and providing information to distressed or delinquent borrowers. The Bureau understands that most borrowers will need only some of the information in the disclosure on a regular basis. However, distressed and delinquent borrowers will likely need more information. The proposed periodic statement disclosure was subjected to three rounds of consumer testing and refinement to identify the content and format that best promote consumer understanding. DFA section 1464 generally codifies requirements for the prompt crediting of E:\FR\FM\17SEP3.SGM 17SEP3 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules mortgage payments received by servicers in connection with consumer credit transactions secured by a consumer’s principal dwelling. The statute also generally codifies the requirement to provide an accurate and timely response to a borrower request for payoff amounts for home loans. The proposed rule would require that once funds in a suspense account equal a full contractual payment that the servicer must credit the payment to the most delinquent outstanding payment. The proposed rule also would require a servicer to send an accurate payoff balance, in no case more than seven business days, after the receipt of a written request for such balance from or on behalf of the consumer. The objective of the prompt crediting requirement is to ensure that consumers benefit from every effort that they make to pay their mortgage debt. However, the Bureau understands that requiring immediate crediting of partial payments might induce some servicers to return partial payments. The Bureau believes that this outcome would not serve the interests of consumers who have demonstrated that they are trying to pay their mortgage debt. The objective of the payoff statement provision is to ensure that consumers can obtain this basic information about their mortgage debt in a timely way. This information is generally useful to consumers but must be provided in a timely way for selling or refinancing a home or modifying a mortgage loan. 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 SBREFA Final 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.141 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.142 During the SBREFA Panel process, the Bureau identified five categories of small entities that may be subject to the proposed rule for purposes of the RFA: Commercial banks/savings institutions 143 (NAICS 522110 and 522120), credit unions (NAICS 522130), firms providing real estate credit 57379 (NAICS 522292), firms engaged in other activities related to credit intermediation (NAICS 522390), and small non-profit organizations. Commercial banks, savings institutions, and credit unions are small businesses if they have $175 million or less in assets. Firms providing real estate credit and firms engaged in other activities related to credit intermediation are small businesses if average annual receipts do not exceed $7 million. A small non-profit organization is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. Small nonprofit organizations engaged in mortgage servicing typically perform a number of activities directed at increasing the supply of affordable housing in their communities. Some small non-profit organizations originate and service mortgage loans for low and moderate income individuals while others purchase loans or the mortgage servicing rights on loans originated by local community development lenders. Servicing income is a substantial source of revenue for some small non-profit organizations while others receive most of their income from grants or investments.144 The following table provides the Bureau’s estimate of the number and types of entities that may be affected by the proposals under consideration: TABLE 1—ESTIMATED NUMBER OF AFFECTED ENTITIES AND SMALL ENTITIES BY NAICS CODE AND ENGAGEMENT IN CLOSED-END MORTGAGE LOAN SERVICING Category NAICS tkelley on DSK3SPTVN1PROD with PROPOSALS3 Commercial banks & savings institutions. Credit unions ................................ Real estate credit ......................... Other activities related to credit intermediation (includes loan servicing). Small entity threshold 522110, 522120 522130 522292 522390 Total entities Small entities Entities engaged in mortgage loan servicing Small entities engaged in mortgage loan servicing $175,000,000 assets 7,724 4,250 7,502 4,098 $175,000,000 assets $7,000,000 revenues $7,000,000 revenues 7,491 5,791 5,494 6,568 5,152 5,319 5,190 4,270 1,388 800 For commercial banks, savings institutions, and credit unions, the number of entities and asset sizes were obtained from December 2010 Call Report data as compiled by SNL Financial. Banks and savings institutions are counted as engaging in mortgage loan servicing if they hold closed-end loans secured by one to four family residential property or they are servicing mortgage loans for others. Credit unions are counted as engaging in mortgage loan servicing if they have closed-end one to four family mortgages in portfolio, or hold real estate loans that have been sold but remain serviced by the institution. For firms providing real estate credit and firms engaged in other activities related to credit intermediation, the total number of entities and small entities comes from the 2007 Economic Census. The total number of these entities engaged in mortgage loan servicing is based on a special analysis of data from the Nationwide Mortgage 141 The current SBA size standards are found on SBA’s Web site at http://www.sba.gov/content/ table-small-business-size-standards. 142 See id. 143 Savings institutions include thrifts, savings banks, mutual banks, and similar institutions. 144 The Bureau is continuing to refine its description of small non-profit organizations engaged in mortgage loan servicing and working to estimate the number of these entities, but it is not possible to estimate the number of these entities at this time. Non-profits and small non-profits engaged in mortgage loan servicing would be included under real estate credit if their primary activity is originating loans and under other activities related to credit intermediation if their primary activity is servicing. VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 PO 00000 Frm 00063 Fmt 4701 Sfmt 4702 E:\FR\FM\17SEP3.SGM 17SEP3 57380 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules Licensing System and Registry and is current as of Q1 2011. The total equals the number of non-depositories that engage in mortgage loan servicing, including tax-exempt entities, except for those mortgage loan servicers (if any) that do not engage in any mortgagerelated activities that require a State license. The estimated number of small entities engaged in mortgage loan servicing is based on predicting the likelihood that an entity’s revenue is less than the $7 million threshold based on the relationship between servicer portfolio size and servicer rank in data from Inside Mortgage Finance.145 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 or recordkeeping requirements. The possible compliance costs for small entities from each major component of the proposed rule are presented below. The Bureau presents these costs against a pre-statute baseline. Benefits to consumers from the proposed rule are discussed in the DFA section 1022 analysis in part VII above. (i) ARM—Notice 6 Months Prior to Initial Interest Rate Adjustment tkelley on DSK3SPTVN1PROD with PROPOSALS3 DFA section 1418 amends TILA by adding a new requirement that a creditor or servicer provide a notice regarding the initial interest rate adjustment of a hybrid adjustable-rate mortgage at the end of the introductory period either (a) between six and seven months prior to the adjustment, or (b) at consummation of the mortgage if the first adjustment occurs during the first six months after consummation. The Bureau proposes to use the authority granted by TILA section 128A(b) to require this notice for hybrid as well as ARMs that are not hybrid (1⁄1, 3⁄3, 5⁄5, etc.).146 The proposed form would require the content listed in the statute. This includes, in part, a good faith estimate of the amount of the resulting payment; a list of alternatives that the consumer may pursue, including refinancing and 145 The CFPB is continuing to refine its estimate of the number of firms providing real estate credit and engaging in other activities related to credit intermediation that are small and which engage in mortgage loan servicing. 146 Conventional ARMs, unlike hybrid ARMs which have a period with a fixed rate of interest, start with an adjustable rate and that rate readjusts at even intervals. VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 loan modification; and information on how to contact housing counselors approved by HUD or a State housing finance authority. Additionally, the Bureau is proposing certain required additional information including details about the loan, key terms of the ARM, and information about the upcoming payment. The new disclosure may provide some benefit to servicers. Distressed borrowers who contact servicers well in advance of a possible increase in the interest rate and payment may have more time in which to pursue an alternative financing solution. Information about loss mitigation alternatives and the availability of housing counseling may prompt borrowers to work proactively and constructively with their servicers. The new disclosure will likely impose one-time and ongoing costs on servicers. Servicers will need to obtain system upgrades from vendors or make programming changes themselves. One SER reported the changes could take two to four days of IT support. These would be one-time costs. The Bureau is mitigating the one-time cost by providing servicers with tested model forms. SERs noted that producing and sending the new disclosures would impose new costs on them either directly or through vendor charges. The ongoing costs are mitigated somewhat since the disclosures can be provided to consumers in electronic form with consumer consent. One SER noted that vendors have not provided cost quotes at this point. A number of SERs expressed concern that the proposed initial ARM interest rate adjustment disclosure would confuse borrowers because it would only provide an estimate that would not accurately reflect the actual adjusted rate. The costs and benefits to consumers of the initial interest rate adjustment disclosure are discussed in the DFA section 1022 analysis in part VII above. (ii) Revised 1026.20(c) Notice The Bureau is also proposing changes to existing Regulation Z § 1026.20(c). The existing provision applies to all ARMs and requires a disclosure prior to each interest rate adjustment that effects a change in payment and annually for interest rate adjustments that do not cause payment changes. The Bureau is proposing to eliminate the annual notice. The Bureau also proposes to amend the current disclosures requiring a notice each time an interest rate adjustment causes a corresponding change in payment. PO 00000 Frm 00064 Fmt 4701 Sfmt 4702 Regarding timing, the Bureau proposes changing the timeframe for providing the payment change notice to consumers from 25 to 120 days before payment at a new level is due to 60 to 120 days before payment at a new level is due. SERs did not identify any costs associated with this change and two reported they already provide the disclosure 60 to 100 days before payment at a new level is due. One SER reported that the new rate is calculated 45 days prior to the rate change date. This SER provides the borrower with a notice a minimum of 25 days, and typically 42 days, prior to the new interest rate becoming effective. This SER stated that the new interest rate becomes effective 55–72 days prior to the due date of the new payment. Another SER reported substantially similar numbers. The timing of the disclosures reported by these SERs is consistent with the proposed new timeframe. Regarding content, the Bureau is considering proposing content for the revised 1026.20(c) notices that closely tracks the content it is proposing for the ARM initial interest rate adjustment notices pursuant to DFA section 1418. Servicers will need to obtain one-time system upgrades from vendors or make programming changes themselves. Given the substantial similarity of the revised 1026.20(c) form and the initial ARM interest rate adjustment notice, the Bureau believes that the additional ongoing cost of producing the revised form, on top of the initial ARM interest rate adjustment form, will be minimal. (iii) Periodic Statements As discussed in the section-by-section analysis above, DFA section 1420 amends TILA by adding a new requirement that a servicer of any residential mortgage loan provide a periodic statement to the consumer for each billing cycle. The Bureau tested a model periodic statement with consumers. The proposed rule has the following exemptions: Fixed-rate mortgages with coupon books, certain small servicers, reverse mortgages, and timeshares. These proposed provisions are discussed separately below. The proposed periodic statement requirement imposes one-time and ongoing costs on small servicers. The specific types of costs incurred by a servicer depend on whether the servicer produces the proposed periodic statement in-house or uses a third-party vendor. In-house one-time costs include the development of a new form, system reprogramming or acquisition, and E:\FR\FM\17SEP3.SGM 17SEP3 tkelley on DSK3SPTVN1PROD with PROPOSALS3 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules perhaps new or updated software. Inhouse ongoing costs for production include additional system use and staff time. In-house ongoing costs would also include paper, printing, and mailing costs for distributing the periodic statement to borrowers who do not give permission to receive the disclosure electronically. Vendors may also charge an initial one-time cost for developing a new form as well as ongoing costs for producing and distributing the statement. The SERs who use vendors stated that they did not know what their vendors would charge so they could comply with the new periodic statement requirement. The SERs agreed that the one-time charge would be different from what they would be charged if they were the only entity making the change. Vendors can spread the one-time costs of new regulatory requirements over many servicers. Small servicers reported a range of one-time costs of complying with the proposed provision. One non-depository SER estimated it would cost $150,000– $500,000 to convert to a new periodic statement system, a depository institution SER estimated a cost of $150,000–$200,000, and a credit union SER estimated a cost of $30,000– $40,000. Estimates of ongoing costs ranged from $11,000 per month from a non-depository SER to $2,200 per month from a depository SER; the latter estimated ongoing costs would be approximately $1 per statement. One depository SER estimated $5,000– $6,000 per month in production costs, before postage. The Bureau understands that the estimates of ongoing costs from the SERs did not exclude the costs of periodic statements, coupon books, or other payment mechanisms that they currently provide borrowers. Some of the SERs stated that they currently provide borrowers with a periodic statement that contains much of the information required under the proposal. However, none of the SERs stated that they include contact information for housing counseling agencies or programs of the type required by DFA section 1420. As explained above in the section-bysection analysis, the Bureau is proposing to use authority under TILA sections 105(a) and (f) and DFA Section 1405(b) to require periodic statements to provide only information about where a borrower can access a complete list of housing counselors. The Bureau believes that the proposed provision will impose a substantially smaller burden than the statutory requirement. VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 In accordance with DFA section 1420, the proposed rule would include a coupon book exemption for fixed-rate loans where the consumer is given a coupon book with certain of the information required by the periodic statement. It is not possible to estimate the share of residential mortgage loans serviced by small servicers that would qualify for this exception. If this provision is included in the final rule, it is possible that small servicers would provide coupon books to all borrowers with fixed-rate mortgages. Many of the SERs reported that they provide consumers with coupon books for ARMs. However, there is no data with which to estimate the fraction of small servicer portfolio loans that are in fixedrate mortgages; in fact, the Bureau understands that many small servicer portfolio loans are adjustable-rate mortgages. The Bureau is also proposing a small servicer exemption. Servicers servicing 1,000 or fewer loans, all of which they must either own or have originated, would be eligible. A preliminary analysis indicates that all but 13 small insured depositories and credit unions would be covered by the exemption and would not have to provide the proposed periodic statement disclosure. The Bureau does not currently have the data necessary to estimate the number of small entity non-depositories that would be covered by the exemption. However, data from depositories suggests that approximately 584 small entity non-depositories (65% of the 800 small entity non-depositories) would be covered by the exemption.147 As discussed in the DFA section 1022 analysis in part VII.F, the Bureau is currently working to gather additional data that may be relevant to estimating the number of small non-depositories covered by the small servicer exemption. These data may include additional data from the National Mortgage License System (NMLS) 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 is also continuing its outreach efforts with industry and requests interested parties to provide data, research results, and other information relating to this issue. 147 Roughly 35% of depositories that earn less than $7 million from servicing also have too many loans to qualify for the small servicer exemption. Extrapolating to non-depositories, roughly 35% of non-depositories that earn less than $7 million from servicing—and are small entities—also service too many loans to qualify for the small servicer exemption. PO 00000 Frm 00065 Fmt 4701 Sfmt 4702 57381 Finally, the proposed rule has exemptions for reverse mortgages and timeshares. Information that would be relevant and useful on a reverse mortgage statement differs substantially from the information required on the periodic statement; see the section-bysection analysis for further discussion. The proposed rule also exempts timeshares as these are not residential mortgage loans as defined in TILA. (iv) Prompt Crediting and Request for Payoff Amounts DFA section 1464(a) generally codifies existing Regulation Z § 1026.36 on prompt crediting. The Bureau is further proposing a new requirement for the handling of partial payments (i.e., payments that are not full contractual payments). Under the proposal, if servicers hold partial payments in a suspense account, then once the amount in the account equals a full contractual payment, the servicer must credit the payment to the most delinquent outstanding payment. DFA section 1464(b) requires that a creditor or servicer of a home loan send an accurate payoff balance within a reasonable time, but in no case more than seven business days, after the receipt of a written request for such balance from or on behalf of the borrower. This essentially codifies existing Regulation Z § 1026.36 on payoff statements, except that Regulation Z requires payoff statements to be sent within a reasonable time and creates a safe harbor for responses sent within five business days. The SERs generally reported that these provisions would have no impact on them as they are already in compliance. In correspondence, one SER suggested that the seven day maximum for payoff amounts should be even shorter, to prevent other servicers from delaying closings. (v) 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 reporting, 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. E:\FR\FM\17SEP3.SGM 17SEP3 57382 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS3 The Bureau anticipates that the professional skills required for compliance with the proposed rule are the same or similar to those required in the ordinary course of business of the small entities affected by the proposed rule. Compliance by the small entities that will be affected by the proposed rule will require continued performance of the basic functions that they perform today: Generating disclosure forms and crediting partial payments from borrowers either immediately or when they constitute a full payment. 5. Identification, to the Extent Practicable, of All Relevant Federal Rules Which May Duplicate, Overlap, or Conflict With the Proposed Rule The Dodd-Frank Act codified certain requirements contained in existing regulations and in some cases imposed new requirements that expand or vary the scope of existing regulations. The Bureau is working to eliminate conflicts and to harmonize the earlier rules with the new statutory requirements. In general, the existing and expanded regulations cover the following topics: • New Regulation Z ARM disclosures, as required by DFA section 1418, will be provided six to seven months prior to the initial adjustment of interest rates. These disclosures will provide similar information to existing Regulation Z § 1026.20(c) notices, however there are timing differences, and the new notice is required only for the first rate adjustment. The DFA section 1418 notice is intended to be sent early enough for the consumer to take action (i.e. refinance or apply for a loan modification) before the monthly payment increases. • Regulation Z § 1026.36(c)(1)(i) contains a prompt crediting provision that is generally codified by the prompt crediting provision in DFA section 1464(a). • Regulation Z § 1026.36(c) addresses the application of payments. The Bureau is proposing modifying this rule to mandate the application of funds to the most delinquent outstanding payment if a full contractual payment has accumulated in any suspense or unapplied funds account. • Regulation Z 1026.36(c)(1)(iii) contains a provision regarding payoff amount requests that is generally codified by the Dodd Frank Act. Elsewhere in today’s Federal Register, the Bureau is publishing a proposed rule that would implement DFA section 1463 and is issued under RESPA. The RESPA proposal addresses procedures for obtaining force-placed insurance; procedures for investigating and resolving alleged errors and responding VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 to requests for information; reasonable information management policies and procedures; early intervention for delinquent borrowers; and continuity of contact for delinquent borrowers. These regulations do not duplicate, overlap, or conflict and the Bureau is not aware of any other Federal regulations that currently duplicate, overlap, or conflict with the proposals under consideration. 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 (i) New Initial Interest Rate Adjustment Notice for Adjustable-Rate Mortgages As discussed above, DFA section 1418 requires servicers to provide a new disclosure to consumers who have hybrid ARMs regarding the initial interest rate adjustment. The Bureau is proposing to use its discretionary authority to require the initial interest rate adjustment notice for ARMs that are not hybrid (e.g., 1⁄1, 3⁄3, 5⁄5, etc.) as well. Thus, the disclosure under the original statutory language would have a smaller economic impact on small entities. The Bureau opted for its current proposal because all ARMs, not just hybrid ARMs, may subject consumers to the same payment shock after the introductory period expires. Consumers with ARMs that are not hybrid would therefore also benefit from the protections provided by the new disclosure. The Bureau also considered whether to except small servicers from the proposed initial ARM interest rate adjustment notice. The SERs did express some concern about the onetime and ongoing costs of providing the proposed notice. They expressed concern that consumers would be confused by receiving estimates rather than their actual new interest rate and payment. The Bureau believes an exception would deprive certain consumers of the seven to eight months advance notice before payment at a new level is due provided by the disclosure. This advance notice is designed to allow consumers time to weigh their alternatives and pursue alternative actions. An exception would also deprive certain consumers of the information provided in the notice about alternatives and how to contact their State housing finance authority and counseling agencies and programs. The Bureau recognizes that the proposed initial ARM interest rate PO 00000 Frm 00066 Fmt 4701 Sfmt 4702 adjustment notice will impose some burden on small servicers, but it does not believe that it will impose a significant burden since it is a one-time notice. The Bureau seeks comment on whether the burden imposed on small entities by the requirements of the initial rate adjustment notice outweighs the consumer protection benefits it affords. (ii) Regulation Z § 1026.20(c) Disclosure for Adjustable-Rate Mortgages The Bureau is proposing to change the timing of the ARM payment change notice required under current § 1026.20(c) to be provided to consumers from 25 to 120 days before payment at a new level is due to 60 to 120 days before payment at a new level is due. The longer lead time is designed to give consumers time to refinance or take other ameliorative actions if they are not financially equipped to pay their mortgages at an increased adjusted rate. The Bureau recognizes that the longer lead time may impose a burden on small servicers. According to outreach conducted by the Bureau, small servicers often are able to send out the ARM payment change notices required by § 1026.20(c) on the same day the index value is selected. In that case, for a loan with a 45-day look-back period, the notice is ready 45 days before the change date and, with the 28 to 31 days between the change date and the date payment at the new level is due, the interest rate adjustment notice goes out to the consumer 73 to 76 days before the new payment is due. Under these circumstances, small servicers could provide the payment change notice within the 60 day minimum period. The Bureau is also proposing an alternative 25-day minimum period for certain existing adjustable-rate mortgages in which the mortgage note requires a look-back period of less than 45 days. (iii) Periodic Statements As discussed above, DFA section 1420 requires servicers to provide a new periodic statement to the consumer for each billing cycle. The proposed rule would generally require both the content listed in the statute, additional billing information, and information about how to dispute and resolve errors. The Bureau is proposing to use its discretionary authority to require the additional information. Thus, the disclosure under the original statutory language would impose a smaller economic impact on small entities that must provide the periodic statement disclosure. E:\FR\FM\17SEP3.SGM 17SEP3 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules The Bureau believes the additional information provides important consumer benefits. Only some of the information in the disclosure will be required to be provided to consumers on a regular basis. However, distressed or delinquent borrowers will likely need more information. The proposed periodic statement disclosure was the subject of three rounds of consumer testing and refinement to identify the form, content, headings, and format that best promotes consumer understanding. As discussed above, the Bureau is proposing a small servicer exemption. Servicers servicing 1,000 or fewer loans, all of which they must either own or have originated, would be eligible. As discussed above, the Bureau believes that almost all small insured depositories and credit unions would be covered by the exemption. The Bureau does not currently have the data necessary to estimate the number of small entity non-depositories that would be covered by the exemption. However, the Bureau is currently working to gather additional data that may be relevant to estimating the number of small non-depositories covered by the small servicer exemption. (iv) Prompt Crediting and Request for Payoff Amounts As discussed above, the SERs generally reported that the proposed provisions regarding prompt crediting and payoff amounts would have no impact on them as they are already in compliance. In correspondence, one SER suggested that the seven day maximum for payoff amounts should be even shorter, to prevent other servicers from delaying closings. tkelley on DSK3SPTVN1PROD with PROPOSALS3 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 April 9, 2012 that the Bureau would collect the advice and recommendations of the same SERs identified in consultation with the Chief Counsel through the SBREFA Panel process concerning any projected impact of the proposed rule on the cost of credit for small entities as well as 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 VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 small entities.148 The Bureau sought to collect the advice and recommendations of the SERs during the SBREFA Panel outreach meeting regarding these issues because, as small financial service providers, the SERs could provide valuable input on any such impact related to the proposed rule.149 At the time the Bureau circulated the SBREFA materials to the SERs in advance of the SBREFA Panel outreach meeting, it had no evidence that the proposals 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 only to 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.150 At the SBREFA Panel outreach meeting, the Bureau asked the SERs a series of questions regarding cost of business credit issues.151 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 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. The SERs had few comments on the impact on the cost of business credit. While they took this time to express concerns that these regulations would increase their costs, they said these regulations would have little to no impact on the cost of business credit. When asked, one SER mentioned that at times people may use a home-secured loan to finance a business, which was 148 See 5 U.S.C. 603(d)(2). The Bureau provided this notification as part of the notification and other information provided to the Chief Counsel with respect to the SBREFA Panel process pursuant to RFA section 609(b)(1). 149 See 5 U.S.C. 603(d)(2)(B). 150 See TILA section 104(1); RESPA section 7(a)(1). 151 See SBREFA Final Report, supra note 22, at 154–55 (appendix D, PowerPoint slides from the SBREFA Panel outreach meeting, ‘‘Topic 7: Impact on the Cost of Business Credit’’). PO 00000 Frm 00067 Fmt 4701 Sfmt 4702 57383 corroborated by a different SER based on his personal experience with starting a business. The Bureau is generally interested in the use of personal homesecured credit to finance a business and invites interested parties to provide data and other factual information on this issue. Based on the feedback obtained from SERs at the outreach meeting, the Bureau currently does not anticipate that the proposed rule will result in an increase in the cost of credit for small business entities. To further evaluate this question, the Bureau solicits comment on whether the proposed rule will have any impact on the cost of credit for small entities. IX. Paperwork Reduction Act The Bureau’s information collection requirements contained in this proposed rule, and identified as such, will be submitted to 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 Paperwork Reduction Act, the Bureau may not conduct or sponsor, and a person is not required to respond to, an information collection unless the information collection displays a valid OMB control number. The title of this information collection is 2012 Truth in Lending Act (Regulation Z) Mortgage Servicing. The frequency of response is on-occasion. This proposed rule would amend Regulation Z. Regulation Z currently contains collections of information approved by OMB, and the Bureau’s OMB control number for Regulation Z is 3170–0015 (Truth in Lending Act (Regulation Z) 12 CFR 1026). As described below, the proposed rule would amend the collections of information currently in Regulation Z. The information collection would be required to provide benefits for consumers and would be mandatory. See 15 U.S.C. 1601 et seq. Because the Bureau does not collect any information, no issue of confidentiality arises. The likely respondents would be federally-insured depository institutions (such as commercial banks, savings banks, and credit unions) and nondepository institutions that service consumer mortgage loans. Under the proposed rule, the Bureau generally would 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 (together, the Bureau depository E:\FR\FM\17SEP3.SGM 17SEP3 57384 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules respondents), and certain nondepository servicers (the Bureau nondepository respondents). The Bureau and the FTC generally both have enforcement authority over nondepository institutions under Regulation Z. Accordingly, the Bureau has allocated to itself half of its estimated burden to Bureau non-depository respondents. Other Federal agencies, including the FTC, 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. Using the Bureau’s burden estimation methodology, the total estimated burden under the proposed changes to Regulation Z for the roughly 12,813 institutions, including Bureau respondents,152 that are estimated to service consumer mortgages subject to the proposed rule would be approximately 25,000 one-time burden hours and 74,000 ongoing burden hours per year. The aggregate estimates of total burdens presented in this part IX are based on estimates averaged 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. tkelley on DSK3SPTVN1PROD with PROPOSALS3 A. Information Collection Requirements The Bureau is proposing four changes to the information collection requirements in Regulation Z. First, as previously discussed, proposed § 1026.20(d) regarding adjustable-rate mortgages would require creditors, assignees, and servicers to send a new initial rate adjustment disclosure at least 210, but not more than 240, days before the date the first payment is due after the initial rate adjustment. The new disclosure includes, among other things, information regarding the calculation of the new interest rate and information to assist consumers in the event the consumer requires alternative financing. Second, proposed § 1026.20(c) regarding adjustable-rate mortgages would change 152 For purposes of this PRA analysis, the Bureau’s depository respondents under the proposed rule are 130 depository institutions and depository institution affiliates that service closedend consumer mortgages. The Bureau’s nondepository respondents are an estimated 1,388 nondepository servicers. Unless otherwise specified, all references to burden hours and costs for the Bureau respondents for the collection requirements under the proposed rule are based on a calculation of the burden from all of the Bureau’s depository respondents and half of the burden from the Bureau’s non-depository respondents. VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 the format, content, and timing of the existing rate adjustment disclosure. The proposed rule would change the minimum time for providing advance notice to consumers from 25 days to 60 days before payment at a new level is due. Servicers would be required to provide certain information that they may not currently disclose, but would no longer be required to notify consumers of a rate adjustment if the payment is unchanged. Third, proposed § 1026.41 would require a new periodic statement disclosure. The required content would include billing information, such as the amount due, payment due date, and information on any late fees; information on recent transaction activity and how payments were applied; general loan information, such as the interest rate and when it may next adjustment, outstanding principal balance, etc.; and other information that may be helpful to troubled borrowers. Certain small servicers (those servicing less than 1,000 mortgages and own or originated all the loans they are servicing) would be exempt from this requirement. Fixed-rate mortgages would be exempt if the servicer provides the consumer with a coupon book that contained certain information, and makes other information available to the consumer. Fourth, proposed § 1026.36 would make changes to the existing requirements on servicers to promptly credit borrower payments that satisfy payment rules specified by a servicer. Proposed § 1026.36 would also make changes to the existing requirements on creditors and servicers to provide an accurate payoff balance upon request. An information collection is created by the proposed requirement to provide accurate payoff statements. B. Burden Analysis Under the Four Proposed Information Collection Requirements 153 1. New Initial Rate Adjustment Notice for Adjustable-Rate Mortgages All CFPB respondents would have a one-time burden under this requirement 153 Based on discussions with industry, the Bureau assumes that all depository respondents except for one large entity and 95% of nondepository respondents (100% of small nondepository respondents) use third-party vendors for one-time software and IT capability and for ongoing production and distribution activities associated with disclosures. The Bureau believes at this time that under existing mortgage servicing contracts, vendors would absorb the one-time software and IT costs and ongoing production costs of disclosures for large- and medium-sized respondents but pass along these costs to small respondents. The Bureau will further consider the extent to which respondents use third-party vendors and the extent PO 00000 Frm 00068 Fmt 4701 Sfmt 4702 associated with reviewing the regulation. Certain CFPB respondents would have a one-time burden from creating software and IT capability to produce the new disclosure. The Bureau estimates this one-time burden to be 140 hours for CFPB depository respondents and 1,488 hours and $115,000 for CFPB non-depository respondents.154 Certain CFPB respondents would have ongoing burden associated with the IT used in producing the disclosure. All CFPB respondents would have ongoing costs associated with distributing (e.g., mailing) the disclosure. The Bureau estimates this ongoing burden to be 600 hours and $63,000 for CFPB depository respondents and 70 hours and $3,400 for CFPB non-depository respondents. 2. Changes in the Regulation Z § 1026.20(c) Disclosure for AdjustableRate Mortgages All CFPB respondents would have a one-time burden under this requirement associated with reviewing the regulation. Certain CFPB respondents would have one-time burden from creating software and IT capability to provide the additional content in the disclosure. The Bureau estimates this one-time burden to be 165 hours for CFPB depository respondents and 600 hours and $58,000 for CFPB nondepository respondents. Regarding ongoing burden, the Bureau is proposing to require the disclosure only when the interest rate adjustment results in a corresponding change in the required payment. The Bureau believes it would be usual and customary to provide consumers with a disclosure under these circumstances. Thus, the Bureau believes there is no burden from distribution costs for purposes of PRA from the proposed § 1026.20(c) disclosure. The Bureau recognizes that there is content in the proposed disclosure beyond what may be usual and customary to provide. Bureau respondents that do not use vendors and certain small respondents that use vendors will incur production costs associated with this extra content, and this is burden for purposes of PRA. The Bureau estimates the ongoing burden to be 1,400 hours for CFPB depository respondents and 110 hours and $8,000 for CFPB non-depository respondents. to which third-party vendors charge various costs to different types of respondents, and the Bureau seeks data and other factual information from interested parties on these issues. 154 Dollar figures include estimated costs to vendors. E:\FR\FM\17SEP3.SGM 17SEP3 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules 3. New Periodic Statement All CFPB respondents that are not exempt would have a one-time burden under this requirement associated with reviewing the regulation. Certain CFPB respondents would have a one-time burden from creating software and IT capability to modify existing periodic disclosures or produce a new disclosure. The proposed disclosure incorporates all of the information in billing statements that many respondents already provide. However, the additional data fields and formatting requirements may not be usual and customary. The Bureau estimates this one-time burden to be 170 hours for CFPB depository respondents and 600 hours and $20,000 for CFPB nondepository respondents. Regarding ongoing burden, consumers who currently receive a periodic statement or billing statement are receiving these disclosures in the normal course of business. The Bureau believes that most other consumers with mortgages receive a coupon book or other type of payment medium, such as a passbook. The statute provides that servicers do not have to provide the periodic statement disclosure to 4. Prompt Crediting of Payments and Response to Requests for Payoff Amounts associated with reviewing the regulation. Certain CFPB respondents would have a one-time burden from creating software and IT costs associated with changes in the payoff statement disclosure. The Bureau estimates this one-time burden to be 110 hours for CFPB depository respondents and 500 hours and $115,000 for CFPB nondepository respondents. Regarding ongoing burden, the Bureau understands that the proposed payoff statement will replace a pre-existing disclosure that respondents are currently providing in the normal course of business. The Bureau does not believe that proposed changes to the content and timing of the existing disclosure will significantly change the ongoing production or distribution costs of the notice currently provided in the normal course of business. The Bureau estimates the ongoing burden to be 1,650 hours and $178,000 for CFPB depository respondents and 200 hours and $9,600 for CFPB non-depository respondents. All CFPB respondents would have a one-time burden under this requirement C. Summary of Burden Hours for CFPB Respondents consumers who have both a fixed-rate mortgage and a coupon book. Thus, the only consumers who are not already receiving a billing statement or periodic disclosure to whom servicers will have to begin providing the periodic statement disclosure under the proposed rule are those with both an adjustable-rate mortgage and a coupon book. The burden of distributing the proposed periodic statement disclosure to these consumers is, for purposes of PRA, the ongoing burden from distribution costs from the proposed periodic statement disclosure. The Bureau recognizes that there is content in the proposed periodic statement disclosure beyond what may be usual and customary to provide in existing billing statements. The Bureau estimates the ongoing burden to be 52,000 hours and $5,600,000 for CFPB depository respondents and 6,300 hours and $300,000 for CFPB non-depository respondents. Disclosures per respondent Respondents Ongoing: ARM 20(c) Notice ....................................................... ARM 20(d) Notice ....................................................... Periodic Statements .................................................... Prompt Crediting & Payoff Statements ...................... One-Time: ARM 20(c) Notice ....................................................... ARM 20(d) Notice ....................................................... Periodic Statements .................................................... Prompt Crediting & Payoff Statements ...................... tkelley on DSK3SPTVN1PROD with PROPOSALS3 D. 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. All comments will become a matter of public record. Comments on the collection of information requirements should be sent to the VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 57385 Hours burden per disclosure 824 824 564 824 700 300 35,800 800 824 824 564 824 1 1 1 1 Office of Management and Budget (OMB), Attention: Desk Officer 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. Text of the Proposed Revisions Certain conventions have been used to highlight the proposed changes to the text of the regulation and official interpretation. New language is shown inside ﬂbold-faced arrowsﬁ, while language that would be removed is set off with øbold-faced brackets¿. PO 00000 Frm 00069 Fmt 4701 Sfmt 4702 0.002777778 0.002881756 0.002881756 0.002881756 Total burden hours Total vendor costs $8,000 67,000 5,914,000 188,000 1,000 2,000 1,000 1,000 0.93 1.97 1.36 0.77 1,000 1,000 58,000 2,000 58,000 115,000 20,000 115,000 List of Subjects in 12 CFR Part 1026 Advertising, Consumer protection, Credit, Credit unions, Mortgages, National banks, Reporting and recordkeeping requirements, Savings associations, Truth in lending. Authority and Issuance For the reasons set forth above, the Bureau of Consumer Financial Protection proposes to amend 12 CFR part 1026, as follows: PART 1026—TRUTH IN LENDING (REGULATION Z) 1. The authority citation for part 1026 continues to read as follows: 12 U.S.C. 5512, 5581; 15 U.S.C. 1601 et seq. E:\FR\FM\17SEP3.SGM 17SEP3 57386 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules Subpart C—Closed-End Credit 2. Section 1026.17 is amended by revising paragraphs (a)(1) and (b) to read as follows: tkelley on DSK3SPTVN1PROD with PROPOSALS3 § 1026.17 General disclosure requirements. (a) Form of disclosures. (1) The creditor shall make the disclosures required by this subpart clearly and conspicuously in writing, in a form that the consumer may keep. The disclosures required by this subpart 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.). The disclosures required by §§ 1026.17(g), 1026.19(b), and 1026.24 may be provided to the consumer in electronic form without regard to the consumer consent or other provisions of the E-Sign Act in the circumstances set forth in those sections. ﬂExcept for § 1026.20(d), which requires disclosures to be provided separate and distinct from all other correspondence, theﬁ øThe¿ disclosures shall be grouped together, shall be segregated from everything else, and shall not contain any information not directly related to the disclosures required under § 1026.18ﬂ, § 1026.20(c),ﬁ or § 1026.47. The disclosures may include an acknowledgment of receipt, the date of the transaction, and the consumer’s name, address, and account number. The following disclosures may be made together with or separately from other required disclosures: The creditor’s identity under § 1026.18(a), the variable rate example under § 1026.18(f)(1)(iv), insurance or debt cancellation under § 1026.18(n), and certain security interest charges under § 1026.18(o). The itemization of the amount financed under § 1026.18(c)(1) must be separate from the other disclosures under § 1026.18, except for private education loan disclosures made in compliance with § 1026.47. * * * * * (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)ﬂand (d)ﬁ. For private education loan disclosures made in compliance with § 1026.47, special timing requirements are set forth in VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 § 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. * * * * * 3. Section 1026.20 is amended by revising the section heading and paragraphs (c) and (d) to read as follows: § 1026.20 øSubsequent d¿ﬂDﬁisclosure requirementsﬂ regarding postconsummation eventsﬁ. * * * * * (c) øVariable-rate¿ ﬂRateﬁ adjustments. ﬂThe creditor, assignee, or servicer of an adjustable-rate mortgage shall provide disclosures to consumers, as described in § 1026.20(c), in connection with the adjustment of interest rates resulting in a corresponding adjustment to the payment. To the extent that other provisions of subpart C apply to the disclosures required by this section, those provisions apply to assignees and servicers as well as to creditors. The disclosures required under this section also shall be provided for an interest rate adjustment resulting from the conversion of an adjustable-rate mortgage to a fixed-rate transaction, if that interest rate adjustment results in a corresponding payment change.ﬁ øExcept as provided in paragraph (d) of this section, an adjustment to the interest rate with or without a corresponding adjustment to the payment in a variable-rate transaction subject to § 1026.19(b) is an event requiring new disclosures to the consumer. At least once each year during which an interest rate adjustment is implemented without an accompanying payment change, and at least 25, but no more than 120, calendar days before a payment at a new level is due, the following disclosures, as applicable, must be delivered or placed in the mail: (1) The current and prior interest rates. (2) The index values upon which the current and prior interest rates are based. (3) The extent to which the creditor has foregone any increase in the interest rate. (4) The contractual effects of the adjustment, including the payment due after the adjustment is made, and a statement of the loan balance. (5) The payment, if different from that referred to in paragraph (c)(4) of this section, that would be required to fully amortize the loan at the new interest rate over the remainder of the loan term.¿ PO 00000 Frm 00070 Fmt 4701 Sfmt 4702 ﬂ(1) Coverage of rate adjustment disclosures. (i) In General. For purposes of § 1026.20(c), an adjustable-rate mortgage or ‘‘ARM’’ is a closed-end consumer credit transaction secured by the consumer’s principal dwelling in which the annual percentage rate may increase after consummation. (ii) Exceptions. The requirements of § 1026.20(c) do not apply to: (A) Construction loans with terms of one year or less; or (B) The first adjustment to an ARM if the first payment at the adjusted level is due within 210 days after consummation and the actual, not estimated, new interest rate was disclosed at consummation pursuant to § 1026.20(d). (2) Timing and content of rate adjustment disclosures with a change in payment. Disclosures required by § 1026.20(c) must be provided to consumers at least 60, but no more than 120 days before a payment at a new level is due. Disclosures must be provided to consumers at least 25, but no more than 120 days before a payment at a new level is due for ARMs originated prior to July 21, 2013 in which the mortgage note requires the adjusted interest rate and payment to be calculated based on the index figure available as of a date that is less than 45 days prior to the adjustment date. Disclosures must be provided to consumers as soon as practicable, but not less than 25 days before a payment at a new level is due for the first adjustment to an ARM if it occurs within 60 days of consummation and the actual, not estimated, new interest rate was not disclosed at consummation. The disclosures must provide the following information: (i) A statement providing: (A) An explanation that under the terms of the consumer’s adjustable-rate mortgage, the specific time period in which the current interest rate has been in effect is ending and that the interest rate and mortgage payment will change; (B) The effective date of the interest rate adjustment, and when additional future interest rate changes are scheduled to occur; and (C) Any other changes to loan terms, features, or options taking effect on the same date as the interest rate adjustment, such as the expiration of interest-only or payment-option features; (ii) A table containing the following information: (A) The current and new interest rates; (B) The current and new payments and the date the first new payment is due; and E:\FR\FM\17SEP3.SGM 17SEP3 tkelley on DSK3SPTVN1PROD with PROPOSALS3 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules (C) For interest-only or negativelyamortizing payments, the amount of the current and new payment allocated to principal, interest, and taxes and insurance in escrow, as applicable. The current payment allocation disclosed shall be based on the expected payment allocation for the last payment prior to the date of the disclosure. The new payment allocation disclosed shall be based on the expected payment allocation for the first payment for which the new interest rate will apply; (iii) An explanation of how the interest rate is determined, including: (A) The specific index or formula used in making adjustments and a source of information about the index or formula; and (B) Any adjustment to the index, including the amount of any margin and an explanation that the margin is the addition of a certain number of percentage points to the index; (iv) Any limits on the interest rate or payment increases at each adjustment and over the life of the loan, as applicable, including the extent to which such limits result in the creditor, assignee, or servicer foregoing any increase in the interest rate and the earliest date that such foregone interest may apply to additional future interest rate adjustments, subject to those limits; (v) An explanation of how the new payment is determined, including: (A) The index or formula used; (B) The amount of any adjustment to the index or formula, for example, by the addition of a margin or application of previously foregone interest increase; (C) The loan balance expected on the date of the interest rate adjustment; and (D) The length of the remaining loan term expected on the date of the interest rate adjustment. Any change in the term or maturity of the loan caused by the adjustment also shall be disclosed; (vi) For interest-only or negativelyamortizing loans, a statement that the new payment will not be allocated to pay loan principal. If negative amortization occurs as a result of the adjustment, the statement shall set forth the payment required to fully amortize the loan at the new interest rate over the remainder of the loan term or to fully amortize the loan without extending the loan term; and (vii) The circumstances under which any prepayment penalty, as defined in subpart E by § 1026.41(d)(7)(iv), may be imposed when consumers fully repay their adjustable-rate mortgages, such as when selling or refinancing their principal residence, the time period during which the penalty may be imposed, and the maximum amount (in VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 dollars) of the penalty possible during that time period. (3) Format of disclosures. (i) The disclosures required by § 1026.20(c) shall be provided in the form of the table and in the same order as, and with headings and format substantially similar to, Forms H–4(D)(1) and (2) in Appendix H to this part; and (ii) The disclosures required by paragraph (c)(2)(ii) shall be in the form of a table located within the table described in paragraph (c)(3)(i) of this section. These disclosures shall appear in the same order as, and with headings and format substantially similar to, the table inside the larger table in Forms H– 4(D)(1) and (2) in Appendix H to this part.ﬁ (d) øInformation provided in accordance with variable-rate subsequent disclosure regulations of other Federal agencies may be substituted for the disclosure required by paragraph (c) of this section.¿ﬂ Initial rate adjustments. The creditor, assignee, or servicer of an adjustablerate mortgage shall provide disclosures to consumers, as described in § 1026.20(d), in connection with the initial interest rate adjustment. To the extent that other provisions of subpart C apply to the disclosures required by this section, those provisions apply to assignees and servicers as well as to creditors. The disclosures shall be provided in writing, separate and distinct from all other correspondence. The disclosures shall be provided at least 210, but no more than 240, days before the first payment at the adjusted level is due. If the first payment at the adjusted level is due within the first 210 days after consummation, the disclosures shall be provided at consummation. (1) Coverage of initial rate adjustment disclosures. (i) In general. For purposes of § 1026.20(d), an adjustable-rate mortgage or ‘‘ARM’’ is a closed-end consumer credit transaction secured by the consumer’s principal dwelling in which the annual percentage rate may increase after consummation. (ii) Exceptions. The requirements of § 1026.20(d) do not apply to construction loans with terms of one year or less. (2) Content of initial rate adjustment disclosures. If the new interest rate (or the new payment calculated from the new interest rate) is not known as of the date of the disclosure, an estimate shall be disclosed and labeled as such. This estimate shall be based on the index figure reported in the source of information described in paragraph (d)(2)(iv)(A) within fifteen business days prior to the date of the disclosure. The PO 00000 Frm 00071 Fmt 4701 Sfmt 4702 57387 disclosures required by § 1026.20(d) shall provide the following: (i) The date of the disclosure; (ii) A statement providing: (A) An explanation that under the terms of the consumer’s adjustable-rate mortgage, the specific time period in which the current interest rate has been in effect is ending and that any change in the interest rate may result in a change in the mortgage payment; (B) The effective date of the interest rate adjustment and when additional future interest rate changes are scheduled to occur; and (C) Any other changes to loan terms, features, or options taking effect on the same date as the interest rate adjustment, such as the expiration of interest-only or payment-option features; (iii) A table containing the following information: (A) The current and new interest rates; (B) The current and new payments and the date the first new payment is due; and (C) For interest-only or negativelyamortizing payments, the amount of the current and new payment allocated to principal, interest, and taxes and insurance in escrow, as applicable. The current payment allocation disclosed shall be based on the expected payment allocation for the last payment prior to the date of the disclosure. The new payment allocation disclosed shall be based on the expected payment allocation for the first payment for which the new interest rate will apply; (iv) An explanation of how the interest rate is determined, including: (A) The specific index or formula used in making adjustments and a source of information about the index or formula; and (B) Any adjustment to the index, including the amount of any margin and an explanation that the margin is the addition of a certain number of percentage points to the index; (v) Any limits on the interest rate or payment increases at each adjustment and over the life of the loan, as applicable, including the extent to which such limits result in the creditor, assignee, or servicer foregoing any increase in the interest rate and the earliest date that such foregone interest may apply to additional future interest rate adjustments, subject to those limits; (vi) An explanation of how the new payment is determined, including: (A) The index or formula used; (B) The amount of any adjustment to the index or formula, for example, by the addition of a margin; (C) The loan balance expected on the date of the interest rate adjustment; E:\FR\FM\17SEP3.SGM 17SEP3 tkelley on DSK3SPTVN1PROD with PROPOSALS3 57388 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules (D) The length of the remaining loan term expected on the date of the interest rate adjustment. Any change in the term or maturity of the loan caused by the adjustment also shall be disclosed; and (E) If the new interest rate or new payment provided is an estimate, a statement that another disclosure containing the actual new interest rate and new payment will be provided to the consumer 2 to 4 months prior to the date the first new payment is due for interest rate adjustments that result in a corresponding payment change, pursuant to § 1026.20(c); (vii) For interest-only or negativelyamortizing loans, a statement that the new payment will not be allocated to pay loan principal. If negative amortization occurs as a result of the adjustment, the statement shall set forth the payment required to fully amortize the loan at the new interest rate over the remainder of the loan term or to fully amortize the loan without extending the loan term; (viii) A list of the following alternatives to paying at the new rate that consumers may pursue and a brief explanation of each alternative: (A) Refinancing the loan with the current or other lender; (B) Selling the property and using the proceeds to pay off the loan; (C) Modifying the terms of the loan with the lender; or (D) Arranging payment forbearance with the lender; (ix) The circumstances under which any prepayment penalty, as defined in subpart E by § 1026.41(d)(7)(iv), may be imposed when consumers fully repay their adjustable-rate mortgages, such as when selling or refinancing their principal residence, the time period during which the penalty may be imposed, and the maximum amount (in dollars) of the penalty possible during that time period; (x) The telephone number of the creditor, assignee, or servicer for consumers to call if they anticipate not being able to make the new payment; and (xi) The mailing and Internet addresses and telephone number to access the State housing finance authority (as defined in Section 1301 of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989) for the State in which the consumer resides, and the Web site and telephone number to access either the Bureau list or the HUD list of homeownership counselors or counseling organizations. (3) Format of initial rate adjustment disclosures. (i) Except for the disclosures provided by paragraph (d)(2)(i), the disclosures required by VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 § 1026.20(d) shall be provided in the form of a table and in the same order as, and with headings and format substantially similar to, Forms H– 4(D)(3) and (4) in Appendix H to this part; (ii) The disclosures required by paragraph (d)(2)(i) shall appear outside of and above the table required in paragraph (d)(3)(i); and (iii) The disclosures required by paragraph (d)(2)(iii) shall be in the form of a table located within the table described in paragraph (d)(3)(i) of this section. These disclosures shall appear in the same order as, and with headings and format substantially similar to, the table inside the larger table in Forms H– 4(D)(3) and (4) in Appendix H to this part. ﬁ Subpart E—Special Rules for Certain Home Mortgage Transactions 4. Section 1026.36 is amended by revising paragraph (c) to read as follows: § 1026.36 Prohibited acts or practices in connection with a credit secured by a dwelling. * * * * * (c) Servicing practices. ﬂ For purposes of this paragraph (c), the terms ‘‘servicer’’ and ‘‘servicing’’ have the same meanings as provided in 12 CFR 1024.2(b). (1) Payment Processing. In connection with a consumer credit transaction secured by a consumer’s principal dwelling: (i) Full contractual payments. No servicer shall fail to credit a full contractual payment to the consumer’s loan account as of the date of receipt, except when a delay in crediting does not result in any charge to the consumer or in the reporting of negative information to a consumer reporting agency, or except as provided in paragraph (c)(1)(iii) of this section. A full contractual payment is an amount sufficient to cover principal, interest, and escrow (if applicable) for a given billing cycle. A payment qualifies as a full contractual payment even if it does not include amounts required to cover late fees or other fees that have been assessed. (ii) Partial payments. Any servicer that retains a partial payment, meaning any payment less than a full contractual payment, in a suspense or unapplied funds account shall: (A) Disclose to the consumer the total amount of funds held in such suspense or unapplied funds account on the periodic statement required by § 1026.41, if a periodic statement is required. PO 00000 Frm 00072 Fmt 4701 Sfmt 4702 (B) Promptly apply funds held in the suspense or unapplied funds account to the oldest outstanding payment when sufficient funds accumulate in such account to cover a full contractual payment. (iii) Non-conforming payments. If a servicer specifies in writing requirements for the consumer to follow in making payments, but accepts a payment that does not conform to the requirements, the servicer shall credit the payment as of 5 days after receipt. (2) No pyramiding of late fees. In connection with a consumer credit transaction secured by a consumer’s principal dwelling, a servicer shall not impose any late fee or delinquency charge for a payment if: (i) Such a fee or charge is attributable solely to failure of the consumer to pay a late fee or delinquency charge on an earlier payment; and (ii) The payment is otherwise a full contractual payment received on the due date, or within any applicable grace period. (3) Payoff Statements. In connection with a consumer credit transaction secured by a consumer’s dwelling, a creditor, assignee or servicer, as applicable, must provide an accurate statement of the total outstanding balance that would be required to pay the consumer’s obligation in full as of a specified date. The statement shall be provided within a reasonable time, but in no case more than 7 business days, after receiving a written request from the consumer or any person acting on behalf of the consumer.ﬁ ø(1) In connection with a consumer credit transaction secured by a consumer’s principal dwelling, no servicer shall: (i) Fail to credit a payment to the consumer’s loan account as of the date of receipt, except when a delay in crediting does not result in any charge to the consumer or in the reporting of negative information to a consumer reporting agency, or except as provided in paragraph (c)(2) of this section; (ii) Impose on the consumer any late fee or delinquency charge in connection with a payment, when the only delinquency is attributable to late fees or delinquency charges assessed on an earlier payment, and the payment is otherwise a full payment for the applicable period and is paid on its due date or within any applicable grace period; or (iii) Fail to provide, within a reasonable time after receiving a request from the consumer or any person acting on behalf of the consumer, an accurate statement of the total outstanding balance that would be required to satisfy E:\FR\FM\17SEP3.SGM 17SEP3 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules the consumer’s obligation in full as of a specified date. (2) If a servicer specifies in writing requirements for the consumer to follow in making payments, but accepts a payment that does not conform to the requirements, the servicer shall credit the payment as of 5 days after receipt. (3) For purposes of this paragraph (c), the terms ‘‘servicer’’ and ‘‘servicing’’ have the same meanings as provided in 12 CFR 1024.2(b), as amended.¿ * * * * * 5. Section 1026.41 is added to read as follows: tkelley on DSK3SPTVN1PROD with PROPOSALS3 ﬂ§ 1026.41 Periodic statements for residential mortgage loans. (a) In general. A servicer of a closedend consumer credit transaction secured by a dwelling, must transmit to the consumer for each billing cycle a periodic statement meeting the requirements of paragraphs (b), (c), and (d) of this section, unless an exemption in paragraph (e) of this section applies. If a loan has a billing cycle shorter than a period of 31 days (for example, a biweekly billing cycle), a periodic statement covering an entire month may be used. For the purposes of this section, servicer is defined to mean creditor, assignee, or servicer, as applicable. (b) Timing of the periodic statement. The periodic statement must be delivered or placed in the mail within a reasonably prompt time after the payment due date or the end of any grace period provided for the previous billing cycle. The first periodic statement must be sent no later than 10 days before the first payment is due. (c) Form of the periodic statement. The creditor, assignee, or servicer must make the disclosures required by this section clearly and conspicuously in writing, or electronically if the consumer agrees, and in a form that the consumer may keep. Sample forms for periodic statements are provided in Appendix H–28. Proper use of these forms will be deemed in compliance with this section. (d) Content and layout of the periodic statement. The periodic statement shall contain the information in this paragraph (d), in the manner described below. (1) Amount due. The following disclosures must be grouped together in close proximity to each other, and be located at the top of the first page of the statement: (i) The payment due date; (ii) The amount of any late payment fee, and the date on which that fee will be imposed if payment has not been received; and VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 (iii) The amount due. The amount due must be more prominent than other disclosures on the page. If a loan has multiple payment options, the amount due under each of the payment options must be listed. (2) Explanation of amount due. The following items must be grouped together in close proximity to each other and located on the first page of the statement: (i) The monthly payment amount, including a breakdown showing how much, if any, will be applied to principal, interest, and escrow. If a loan has multiple payment options, a breakdown of each of the payment options must be listed along with a statement whether the principal balance will increase, decrease or stay the same for each option listed; (ii) The total sum of any fees or charges imposed since the last statement; and (iii) Any payment amount past due. (3) Past Payment Breakdown. The following items must be grouped together in close proximity to each other and located on the first page of the statement: (i) The total of all payments received since the last statement, including a breakdown showing how much, if any, of those payments was applied to principal, interest, escrow, fees and charges, and any partial payment or suspense account; and (ii) The total of all payments received since the beginning of the current calendar year, including a breakdown of how much, if any, of those payments was applied to principal, interest, escrow, fees and charges, and the amount currently held in any partial payment or suspense account. (4) Transaction activity. A list of all the transaction activity that occurred since the last statement must be included on the periodic statement. For purposes of this paragraph (d)(4), transaction activity means any activity that credits or debits the outstanding account balance. The transaction activity must include the date of the transaction, a brief description of the transaction, and the amount of the transaction for each activity on the list. (5) Messages. If a statement reflects a partial payment that was placed in a suspense or unapplied funds account, the periodic statement must state what must be done for the funds to be applied. Such statement must be on the front page of the statement. (6) Contact information. The periodic statement must include a toll-free telephone number and, if applicable, an electronic mailing address that may be used by the consumer to obtain PO 00000 Frm 00073 Fmt 4701 Sfmt 4702 57389 information about the mortgage, on the front page of the statement. (7) Account information. The following items must be provided on the statement: (i) The amount of the outstanding principal balance; (ii) The current interest rate in effect for the loan; (iii) The date on which the interest rate may next change; and (iv) The amount of any prepayment penalty that may be charged. For the purposes of this paragraph (d)(7)(iv), 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. (v) Housing counselor information. The periodic statement must include the website address, if applicable, and telephone number to access: (A) any State housing finance authority (as defined in Section 1301 of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989) for the State in which the property is located; and (B) Either the Bureau list or the HUD list of homeownership counselors or counseling organizations. (8) Delinquency information. If the consumer is more than 45 days delinquent, the following items must be grouped together in close proximity to each other and located on the first page of the statement: (i) The date on which the consumer became delinquent; (ii) A statement alerting the consumer to possible risks, such as foreclosure, and expenses that may be incurred if the delinquency is not cured; (iii) An account history showing the consumer, for the lesser of the past 6 months or the period since the last time the account was current, the amount due for each billing cycle, or if a payment was fully paid, the date on which it was considered fully paid; (iv) Notice of any loan modification programs (trial or permanent) to which the consumer has been accepted, if applicable; (v) Notice that the loan has been referred to foreclosure, if applicable; (vi) The total payment amount needed to bring the loan current; and (vii) A statement directing the consumer to the housing counselor information required by (d)(7)(v). (e) Exemptions. (1) Reverse Mortgages. Reverse mortgage transactions, as defined by § 1026.33(a), are exempt from the requirements of this section. (2) Timeshare. Timeshare plans, as defined by 11 U.S.C. 101(53(D)), are exempt from the requirements of this section. E:\FR\FM\17SEP3.SGM 17SEP3 57390 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules (3) Coupon Book Exemption. The requirements of paragraph (a) do not apply to fixed-rate loans if the creditor, assignee, or servicer: (i) Provides the consumer with a coupon book that includes on each coupon the information listed in paragraph (d)(1) of this section; (ii) Provides the consumer with a coupon book that includes anywhere in the coupon book: (A) The account information listed in paragraph (d)(7) of this section; (B) The contact information for the servicer, listed in paragraph (d)(6) of this section; and (C) Information on how the consumer can obtain the information listed in paragraph (e)(3)(iii) of this section. (iii) Makes the following information available to the consumer by telephone, writing or electronically, if the consumer consents: (A) The information in Explanation of Amount Due, listed in paragraph (d)(2) of this section; (B) The past payment breakdown information, listed in paragraph (d)(3) of this section; and (C) The transaction activity information listed in paragraph (d)(4) of this section; (iv) Provides the consumer the information listed in paragraphs (d)(8) of this section in writing, for any billing cycle during which the borrower is more than 45 days delinquent. (4) Small Servicer Exemption. A creditor, assignee or servicer is exempt from the requirements of this section for loans serviced by a small servicer. To qualify as a small servicer, a servicer must meet all of the following requirements: (i) Service 1,000 or fewer mortgage loans. In determining whether a small servicer services 1,000 mortgage loans or fewer, a servicer is evaluated based on its size as of January 1 for the remainder of the calendar year. A servicer that, together with its affiliates, crosses the threshold will have six months or until the beginning of the next calendar year, whichever is later, to begin compliance other than as a small servicer. (ii) Only service mortgage loans for which the servicer (or an affiliate) is the owner or assignee or the servicer (or an affiliate) is the entity to whom the mortgage loan obligation was initially payable.ﬁ 6. Appendix H to Part 1026 is amended by removing the entry for H– 4(D) Variable-Rate Model Clauses (§ 1026.20(c)), adding entries for H– 4(D)(1), H–4(D)(2), H–4(D)(3), and H– 4(D)(4), adding entries for H–28(A), H– 28(B), H–28(C), and H–28(D), and removing and adding entries in the table of contents at the beginning of the appendix to read as follows: Appendix H to Part 1026—Closed-End Model Forms and Clauses * * * * * øH–4(D) Variable-Rate Model Clauses (§ 1026.20(c))¿ ﬂH–4(D)(1) Adjustable-Rate Mortgage Model Form (§ 1026.20(c)) H–4(D)(2) Adjustable-Rate Mortgage Sample Form (§ 1026.20(c)) H–4(D)(3) Adjustable-Rate Mortgage Model Form (§ 1026.20(d)) H–4(D)(4) Adjustable-Rate Mortgage Sample Form (§ 1026.20(d))ﬁ * * * * * ﬂH–28(A) Sample Form of Periodic Statement H–28(B) Sample Form of Periodic Statement with Delinquency Box H–28(C) Sample Form of Periodic Statement for a Payment-Options Loan H–28(D) Sample Clause for Housing Counselor Contact Informationﬁ * * * * * BILLING CODE 4810–AM–P VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 PO 00000 Frm 00074 Fmt 4701 Sfmt 4702 E:\FR\FM\17SEP3.SGM 17SEP3 EP17SE12.000</GPH> tkelley on DSK3SPTVN1PROD with PROPOSALS3 H–4(D)(1) Model Form for § 1026.20(c) Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules 57391 VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 PO 00000 Frm 00075 Fmt 4701 Sfmt 4702 E:\FR\FM\17SEP3.SGM 17SEP3 EP17SE12.001</GPH> tkelley on DSK3SPTVN1PROD with PROPOSALS3 H–4(D)(2) Sample Form for § 1026.20(c) 57392 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 PO 00000 Frm 00076 Fmt 4701 Sfmt 4702 E:\FR\FM\17SEP3.SGM 17SEP3 EP17SE12.002</GPH> tkelley on DSK3SPTVN1PROD with PROPOSALS3 H–4(D)(3) Model Form for § 1026.20(d) VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 PO 00000 Frm 00077 Fmt 4701 Sfmt 4725 E:\FR\FM\17SEP3.SGM 17SEP3 57393 EP17SE12.003</GPH> tkelley on DSK3SPTVN1PROD with PROPOSALS3 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules 57394 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 PO 00000 Frm 00078 Fmt 4701 Sfmt 4702 E:\FR\FM\17SEP3.SGM 17SEP3 EP17SE12.004</GPH> tkelley on DSK3SPTVN1PROD with PROPOSALS3 H–4(D)(4) Sample Form for § 1026.20(d) VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 PO 00000 Frm 00079 Fmt 4701 Sfmt 4725 E:\FR\FM\17SEP3.SGM 17SEP3 57395 EP17SE12.005</GPH> tkelley on DSK3SPTVN1PROD with PROPOSALS3 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules 57396 * * VerDate Mar<15>2010 * ﬂH–28(A) Sample Form of Periodic Statement * 20:28 Sep 14, 2012 Jkt 226001 PO 00000 Frm 00080 Fmt 4701 Sfmt 4702 E:\FR\FM\17SEP3.SGM 17SEP3 EP17SE12.006</GPH> tkelley on DSK3SPTVN1PROD with PROPOSALS3 * Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules 57397 VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 PO 00000 Frm 00081 Fmt 4701 Sfmt 4702 E:\FR\FM\17SEP3.SGM 17SEP3 EP17SE12.007</GPH> tkelley on DSK3SPTVN1PROD with PROPOSALS3 H–28(B) Sample Form of Periodic Statement With Delinquency Box Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules H–28(C) Sample Form of Periodic Statement for a Payment-Options Loan VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 PO 00000 Frm 00082 Fmt 4701 Sfmt 4702 E:\FR\FM\17SEP3.SGM 17SEP3 EP17SE12.008</GPH> tkelley on DSK3SPTVN1PROD with PROPOSALS3 57398 tkelley on DSK3SPTVN1PROD with PROPOSALS3 BILLING CODE 4810–AM–C H–28(D) Sample Clause for Housing Counselor Contact Information Housing Counselor Information: If you would like counseling or assistance, you can contact the following: • U.S. Department of Housing and Urban Development (HUD): For a list of counseling agencies or programs in your area, go to VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 http://www.hud.gov/offices/hsg/sfh/hcc/ hcs.cfm or call 800–569–4287. • Tennessee Housing Development Agency, 404 James Robertson Pkwy, Ste 1200, Nashville, TN 37243–0900, 615–815– 2200 or 1–800–228–THDA, www.thda.org. ﬁ 7. In Supplement I to Part 1026: PO 00000 Frm 00083 Fmt 4701 Sfmt 4702 57399 A. Under Section 1026.17—General Disclosure Requirements, revise paragraphs 17(a)(1)–2.ii and 17(c)(1)–1. B. Under Section 1026.18—Content of Disclosures, revise paragraph 18(f)–1. C. Under Section 1026.19—Certain Mortgage and Variable-Rate Transactions, revise paragraphs 19(b)–4, 19(b)–5.i.C and 19(b)(2)(xi). E:\FR\FM\17SEP3.SGM 17SEP3 EP17SE12.009</GPH> Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS3 57400 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules D. Under Section 1026.20— Subsequent Disclosure Requirements: i. Revise the section heading. ii. Amend 20(c) Variable-Rate Adjustments by revising paragraphs 1. and 2. and removing paragraph 3. iii. Remove subheading Paragraph 20(c)(1) and remove paragraph 1. under this subheading. iv. New subheading Paragraph 20(c)(1)(i) is added and paragraph 1. under this subheading is added. v. New subheading Paragraph 20(c)(1)(ii) is added and paragraphs 1., 2., and 3. under this subheading are added. vi. Amend Paragraph 20(c)(2) by revising paragraph 1. vii. New subheading Paragraph 20(c)(2)(ii)(A) is added and paragraph 1. under this subheading is added. viii. New subheading Paragraph 20(c)(2)(iv) is added and paragraph 1. under this subheading is added. ix. New subheading Paragraph 20(c)(2)(v)(B) is added and paragraph 1. under this subheading is added. x. New subheading Paragraph 20(c)(2)(vi) is added and paragraphs 1. and 2. under this subheading are added. xi. Remove subheading Paragraph 20(c)(3) and remove paragraph 1. under this subheading. xii. Remove subheading Paragraph 20(c)(4) and remove paragraph 1. under this subheading. xiii. Remove subheading Paragraph 20(c)(5) and remove paragraph 1. under this subheading. xiv. New subheading Paragraph 20(d) is added and paragraphs 1., 2., and 3. under this subheading are added. xv. New subheading Paragraph 20(d)(1)(i) is added and paragraph 1. under this subheading is added. xvi. New subheading Paragraph 20(d)(1)(ii) is added and paragraphs 1. and 2. under this subheading are added. xvii. New subheading Paragraph 20(d)(2)(i) is added and paragraph 1. under this subheading is added. xviii. New subheading Paragraph 20(d)(2)(iii)(A) is added and paragraph 1. under this subheading is added. xix. New subheading Paragraph 20(d)(2)(v) is added and paragraph 1. under this subheading is added. xx. New subheading Paragraph 20(d)(2)(vii) is added and paragraphs 1. and 2. under this subheading are added. xxi. New subheading Paragraph 20(d)(2)(viii) is added and paragraph 1. under this subheading is added. E. Under Section 1026.36(c)— Servicing Practices: i. Under subheading Paragraph 36(c)(1)(iii), remove paragraph 1. ii. New subheading Paragraph 36(c)(3) is added and paragraph 1. under this subheading is added. VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 iii. Redesignate existing paragraphs 2., 3., and 4. under subheading Paragraph 36(c)(1)(iii) as new paragraphs 2., 3., and 4., respectively, under subheading Paragraph 36(c)(3). iv. Redesignate existing paragraphs 1., 2., and 3. under subheading Paragraph 36(c)(2) as new paragraphs 1., 2., and 3., respectively, under subheading Paragraph 36(c)(1)(iii). v. Redesignate existing paragraph 1 under subheading Paragraph 36(c)(1)(ii) as paragraph 1 under subheading Paragraph 36(c)(2). vi. Under subheading Paragraph 36(c)(1)(ii), add new paragraph 1. vii. Under subheading Paragraph 36(c)(3), revise the first sentence of new paragraph 1 and the first sentence of new paragraph 2. F. Add new Section 1026.41— Periodic Statements for Residential Mortgage Loans: i. New section heading Section 41— Periodic Statements for Residential Mortgage Loans is added. ii. New subheading 41(a) In General is added and paragraphs 1., 2., 3., and 4. under this subheading are added. iii. New subheading 41(b) Timing of the Periodic Statement is added and paragraph 1. under this subheading is added. iv. New subheading 41(c) Form of the Periodic Statement is added and paragraphs 1., 2., and 3. under this subheading are added. v. New subheading 41(d) Content and Format of the Periodic Statement is added and paragraphs 1., 2., and 3. under this subheading are added. vi. New subheading 41(d)(3) Past Payment Breakdown is added and paragraph 1. under this subheading is added. vii. New subheading 41(d)(4) Transaction Activity is added and paragraphs 1., 2., and 3. under this subheading are added. viii. New subheading 41(d)(6) Contact Information is added and paragraphs 1. and 2. under this subheading are added. ix. New subheading 41(d)(7)(iv) Prepayment Penalty is added and paragraphs 1. and 2. under this subheading are added. x. New subheading 41(e) Exemptions is added and paragraph 1. under this subheading is added. xi. New subheading 41(e)(3) Coupon Book Exemption is added and paragraphs 1., 2., 3., and 4. under this subheading are added. xii. New subheading 41(e)(4) Small Servicers is added and paragraphs 1., 2., 3., and 4. under this subheading are added. G. Under Appendices G and H— Open-End and Closed-End Model Forms and Clauses, revise paragraph 1. PO 00000 Frm 00084 Fmt 4701 Sfmt 4702 H. Under Appendix H—Closed-End Model Forms and Clauses, revise paragraph 7(i). The revisions and additions read as follows: Supplement I to Part 1026—Official Interpretations * * * * * Subpart C—Closed-End Credit * * * * * Section 1026.17—General Disclosures Requirements 17(a) Form of Disclosures Paragraph 17(a)(1) * * * * * 2. * * * (ii) The general segregation requirement described in this subparagraph does not apply to the disclosures required under ø§ ¿§ 1026.19(b) øand 1026.20(c)¿ although the disclosures must be clear and conspicuous. * * * * * 17(c) Basis of Disclosures and Use of Estimates Paragraph 17(c)(1) 1. Legal obligation. The disclosures shall reflect the credit terms to which the parties are legally bound as of the outset of the transaction. In the case of disclosures required under § 1026.20(c) ﬂand (d)ﬁ, the disclosures shall reflect the credit terms to which the parties are legally bound when the disclosures are provided. The legal obligation is determined by applicable state law or other law. (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. * * * * * Section 1026.18—Content of Disclosures * * * * * 18(f)—Variable Rate 1. Coverage. The requirements of § 1026.18(f) apply to all transactions in which the terms of the legal obligation allow the creditor to increase the rate originally disclosed to the consumer. It includes not only increases in the interest rate but also increases in other components, such as the rate of required credit life insurance. The provisions, however, do not apply to increases resulting from delinquency (including late payment), default, assumption, acceleration or transfer of the collateral. Section 1026.18(f)(1) applies to variable-rate transactions that are not secured by the consumer’s principal dwelling and to those that are secured by the principal dwelling but have a term of one year or less. E:\FR\FM\17SEP3.SGM 17SEP3 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules Section 1026.18(f)(2) applies to variable-rate transactions that are secured by the consumer’s principal dwelling and have a term greater than one year. Moreover, transactions subject to § 1026.18(f)(2) are subject to the special early disclosure requirements of § 1026.19(b). (However, ‘‘shared-equity’’ or ‘‘shared-appreciation’’ mortgages are subject to the disclosure requirements of § 1026.18(f)(1) and not to the requirements of §§ 1026.18(f)(2) and 1026.19(b) regardless of the general coverage of those sections.) Creditors are permitted under § 1026.18(f)(1) to substitute in any variable-rate transaction the disclosures required under § 1026.19(b) for those disclosures ordinarily required under § 1026.18(f)(1). Creditors who provide variable-rate disclosures under § 1026.19(b) must comply with all of the requirements of that section, including the timing of disclosures, and must also provide the disclosures required under § 1026.18(f)(2). øCreditors substituting § 1026.19(b) disclosures for § 1026.18(f)(1) disclosures may, but need not, also provide disclosures pursuant to § 1026.20(c)¿. (Substitution of disclosures under § 1026.18(f)(1) in transactions subject to § 1026.19(b) is not permitted.) * * * * * Section 1026.19—Certain Mortgage and Variable-Rate Transactions 19(b) Certain Variable-Rate Transactions tkelley on DSK3SPTVN1PROD with PROPOSALS3 * * * * * * 4. Other variable-rate regulations. Transactions in which the creditor is required to comply with and has complied with the disclosure requirements of the variable-rate regulations of other Federal agencies are exempt from the requirements of § 1026.19(b), by virtue of § 1026.19(d)ø, and are exempt from the requirements of § 1026.20(c), by virtue of § 1026.20(d)¿. The exception is also available to creditors that are required by State law to comply with the Federal variable-rate regulations noted above. Creditors using this exception should comply with the timing requirements of those regulations rather than the timing requirements of Regulation Z in making the variable-rate disclosures. 5. * * * i. * * * A. * * * B. * * * C. ‘‘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. The disclosures under § 1026.19(b)(1) are not applicable to such loans, nor are the following provisions to the extent they relate to the determination of the interest rate by the addition of a margin, changes in the interest rate, or interest rate discounts: § 1026.19(b)(2)(i), (iii), (iv), (v), (vi), (vii), (viii), and (ix). (See comments 20(c)ø– 2¿ﬂ(1)(ii)–3.ii, 20(d)(1)(ii)–2.ii,ﬁand 30–1 regarding the inapplicability of variable-rate adjustment notices and interest rate limitations to price-level-adjusted or similar mortgages.) * * * VerDate Mar<15>2010 * * 20:28 Sep 14, 2012 Jkt 226001 Paragraph 19(b)(2)(xi) 1. Adjustment notices. A creditor must disclose to the consumer the type of information that will be contained in subsequent notices of adjustments and when such notices will be provided. (See the commentary to § 1026.20(c) ﬂand (d)ﬁ regarding notices of adjustments.) For example, the disclosure ﬂprovided pursuant to § 1026.20(d)ﬁ might state, ‘‘You will be notified ﬂat least 210, but not more than 240, days before the first payment at the adjusted level is due after the initial adjustment of the loan. This notice will contain information about the adjustment, including the interest rate, payment amount, and loan balance.’’ The disclosure provided pursuant to § 1026.20(c) might state, ‘‘You will be notifiedﬁ at least ø25¿ﬂ60ﬁ, but no more than 120, days before the due date of a payment at a new level. This notice will contain information about the ﬂadjustment, including theﬁøindex and¿ interest ørates¿ ﬂrateﬁ, payment amount, and loan balance.’’ øIn transactions where there may be interest rate adjustments without corresponding payment adjustments in a year, the disclosure might read, ‘‘You will be notified once each year during which interest rate adjustments, but no payment adjustments, have been made to your loan. This notice will contain information about the index and interest rates, payment amount, and loan balance.’’¿ * * * * Section 1026.20 [Subsequent] Disclosure Requirements ﬂRegarding PostConsummation Eventsﬁ 20(c) øVariable-¿ﬂRﬁate adjustments 1. ﬂCreditors, assignees, and servicers. Creditors, assignees, and servicers are subject to the requirements of § 1026.20(c), unless they no longer own the applicable adjustablerate mortgage or the mortgage servicing rights. Creditors, assignees, and servicers are also subject to the requirements of any provision of subpart C that applies to § 1026.20(c). For example, the form requirements of § 1026.17(a) apply to § 1026.20(c) disclosures and thus, assignees and servicers, as well as creditors, are subject to those requirements. 2. Conversions. In addition to the disclosures required by this section for the interest rate adjustment of an adjustable-rate mortgage, § 1026.20(c) disclosures are also required for an ARM converting to a fixedrate transaction when the adjustment to the interest rate results in a corresponding payment change. When an open-end account converts to a closed-end adjustable-rate mortgage, § 1026.20(c) disclosures are not required until the implementation of an interest rate adjustment post-conversion that results in a corresponding payment change. For example, for an open-end account that converts to a closed-end 3/1 hybrid ARM, the first § 1026.20(c) disclosure would not be required until three years after conversion, and only if that first adjustment resulted in payment change. ﬁøTiming of adjustment notices. This section requires a creditor (or a subsequent holder) to provide certain disclosures in cases where an adjustment to PO 00000 Frm 00085 Fmt 4701 Sfmt 4702 57401 the interest rate is made in a variable-rate transaction subject to § 1026.19(b). There are two timing rules, depending on whether payment changes accompany interest rate changes. A creditor is required to provide at least one notice each year during which interest rate adjustments have occurred without corresponding payment adjustments. For payment adjustments, a creditor must deliver or place in the mail notices to borrowers at least 25, but not more than 120, calendar days before a payment at a new level is due. The timing rules also apply to the notice required to be given in connection with the adjustment to the rate and payment that follows conversion of a transaction subject to § 1026.19(b) to a fixed-rate transaction. (In cases where an open-end account is converted to a closed-end transaction subject to § 1026.19(b), the requirements of this section do not apply until adjustments are made following conversion.) 2. Exceptions. Section 1026.20(c) does not apply to ‘‘shared-equity,’’ ‘‘sharedappreciation,’’ or ‘‘price level adjusted’’ or similar mortgages. 3. Basis of disclosures. The disclosures required under this section shall reflect the terms of the parties’ legal obligation, as required under § 1026.17(c)(1). Paragraph 20(c)(1) 1. Current and prior interest rates. The requirements under this paragraph are satisfied by disclosing the interest rate used to compute the new adjusted payment amount (current rate) and the adjusted interest rate that was disclosed in the last adjustment notice, as well as all other interest rates applied to the transaction in the period since the last notice (prior rates). (If there has been no prior adjustment notice, the prior rates are the interest rate applicable to the transaction at consummation, as well as all other interest rates applied to the transaction in the period since consummation.) If no payment adjustment has been made in a year, the current rate is the new adjusted interest rate for the transaction, and the prior rates are the adjusted interest rate applicable to the loan at the time of the last adjustment notice, and all other rates applied to the transaction in the period between the current and last adjustment notices. In disclosing all other rates applied to the transaction during the period between notices, a creditor may disclose a range of the highest and lowest rates applied during that period.¿ ﬂParagraph 20(c)(1)(i) 1. In general. An adjustable-rate mortgage, as defined under this section, is a variablerate transaction as that term is used in subpart C, except as distinguished by commentary to § 1026.20(c)(1)(ii)–3. The requirements of this section are not limited to transactions financing the initial acquisition of the consumer’s principal dwelling. Paragraph 20(c)(1)(ii) 1. Construction loans. In determining the term of a construction loan that may be permanently financed by the same creditor or assignee, the creditor or assignee may treat E:\FR\FM\17SEP3.SGM 17SEP3 57402 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS3 the construction and the permanent phases as separate transactions with distinct terms to maturity or as a single combined transaction. 2. First new payment due within 210 days after consummation. Section 1026.20(c) disclosures are not required for ARMs if the first payment at the adjusted level is due within 210 days after consummation, when the actual new interest rate (not an estimate) is disclosed at consummation pursuant to § 1026.20(d). This exception is intended to avoid duplicative disclosures, since § 1026.20(d) requires disclosures at consummation if the first payment at the adjusted level is due within 210 days after consummation. For example, the creditor, assignee, or servicer would not be required to provide the disclosures required by § 1026.20(c) for the first time the interest rate adjusts for an ARM if the first payment at the adjusted level was due 120 days after consummation and the actual adjusted interest rate was disclosed at consummation pursuant to § 1026.20(d). 3. Non-adjustable-rate mortgages. For purposes of this section, the following transactions, if structured as fixed-rate and not adjustable-rate mortgages, are not subject to § 1026.20(c): i. Shared-equity or shared-appreciation mortgages; ii. Price-level adjusted 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; iii. Graduated-payment mortgages or steprate transactions; iv. Renewable balloon-payment instruments; or v. Preferred-rate loans.ﬁ Paragraph 20(c)(2) 1. øCurrent and prior index values. This section requires disclosure of the index or formula values used to compute the current and prior interest rates disclosed in § 1026.20(c)(1). The creditor need not disclose the margin used in computing the rates. If the prior interest rate was not based on an index or formula value, the creditor also need not disclose the value of the index that would otherwise have been used to compute the prior interest rate.¿ ﬂTiming. The requirement that the disclosures must be provided between 60 to 120 days ‘‘before a payment at the new level is due’’ requires the creditor, assignee, or servicer to provide the notice to consumers 60 to 120 days prior to the due date, excluding any grace period, of the first payment calculated using the adjusted interest rate. For example, assume an ARM has a 45-day ‘‘look-back’’ period. In such an ARM, the most recent index figure available as of the date 45 days before a new interest rate goes into effect is used to determine the new interest rate. Because interest generally is paid in arrears, the first payment at the new level would not be due until the end of the billing cycle after the new interest rate goes into effect, typically a period of 28 to 31 days. Assume also that the creditor, assignee, or servicer has a 3-day verification period in which to verify the interest rate and VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 perform other quality control measures before providing the notice to consumers. In this case, depending on the delivery method, the creditor, assignee, or servicer can provide the notice to consumers as early as 70 to 73 days before payment at the new level is due. Because creditors, assignees, or servicers cannot comply with the disclosure timing requirements for ARMs adjusting for the first time within 60 days of consummation when the new interest rate is not known at consummation, the disclosures required under § 1026.20(c) for such loans must be provided as soon as practicable, but not less than 25 days before payment at a new level is due. Paragraph 20(c)(2)(ii)(A) 1. The current and new interest rates. The current interest rate is the interest rate that applies on the date the disclosure is provided to the consumer. The new interest rate is the actual interest rate that will apply on the date of the adjustment. The new interest rate is used to determine the new payment. The ‘‘new interest rate’’ has the same meaning as the ‘‘adjusted interest rate.’’ Paragraph 20(c)(2)(iv) 1. Rate limits and unapplied index increases. The disclosures regarding foregone interest increases apply only to transactions permitting interest rate carryover. The amount of increase foregone at any adjustment is the amount that, subject to rate caps, can be added to future interest rate adjustments to increase, or offset decreases in, the rate determined by using the index or formula. Paragraph 20(c)(2)(v)(B) 1. Application of a previously foregone interest increase. The disclosures regarding foregone interest increases apply only to transactions permitting interest rate carryover. Foregone interest is any percentage added or carried over to the new interest rate because a rate cap prevented the increase at an earlier adjustment. Paragraph 20(c)(2)(vi) 1. Amortization statement. For interestonly loans, § 1026.20(c)(2)(vi) requires a statement that the new payment covers all of the interest but none of the principal, and therefore will not reduce the loan balance. For negatively-amortizing loans, § 1026.20(c)(2)(vi) requires a statement that the new payment covers only part of the interest and none of the principal, and therefore the unpaid interest will be added to the balance of the loan or will increase the term of the loan. 2. Amortization payment. Disclosure of the payment needed to fully amortize the loan at the new interest rate is required only when negative amortization occurs as a result of the adjustment. The disclosure is not required simply because a loan has interest-only or partially-amortizing payments. For example, an ARM with a five-year term and payments based on a longer amortization schedule, in which the final payment will equal the periodic payment plus the remaining unpaid balance, does not require disclosure of the payment necessary to fully amortize the loan in the remainder of the five-year term. A PO 00000 Frm 00086 Fmt 4701 Sfmt 4702 disclosure is also not required when the new payment is sufficient to prevent negative amortization but the final loan payment will be a different amount due to rounding.ﬁ øParagraph 20(c)(3) 1. Unapplied index increases. The requirement that the consumer receive information about the extent to which the creditor has foregone any increase in the interest rate applies only to those transactions permitting interest rate carryover. The amount of increase that is foregone at an adjustment is the amount that, subject to rate caps, can be applied to future adjustments independently to increase, or offset decreases in, the rate that is determined according to the index or formula. Paragraph 20(c)(4) 1. Contractual effects of the adjustment. The contractual effects of an interest rate adjustment must be disclosed including the payment due after the adjustment is made whether or not the payment has been adjusted. A contractual effect of a rate adjustment would include, for example, disclosure of any change in the term or maturity of the loan if the change resulted from the rate adjustment. In transactions in which paying the periodic payments will not fully amortize the outstanding balance at the end of the loan term and where the final payment will equal the periodic payment plus the remaining unpaid balance, the amount of the adjusted payment must be disclosed if such payment has changed as a result of the rate adjustment. A statement of the loan balance also is required. The balance required to be disclosed is the balance on which the new adjusted payment is based. If no payment adjustment is disclosed in the notice, the balance disclosed should be the loan balance on which the payment disclosed under § 1026.20(c)(5) is based, if applicable, or the balance at the time the disclosure is prepared. Paragraph 20(c)(5) 1. Fully-amortizing payment. This paragraph requires a disclosure only when negative amortization occurs as a result of the adjustment. A disclosure is not required simply because a loan calls for interest-only or partially amortizing payments. For example, in a transaction with a five-year term and payments based on a longer amortization schedule, and where the final payment will equal the periodic payment plus the remaining unpaid balance, the creditor would not have to disclose the payment necessary to fully amortize the loan in the remainder of the five-year term. A disclosure is required, however, if the payment disclosed under § 1026.20(c)(4) is not sufficient to prevent negative amortization in the loan. The adjustment notice must state the payment required to prevent negative amortization. (This paragraph does not apply if the payment disclosed in § 1026.20(c)(4) is sufficient to prevent negative amortization in the loan but the final payment will be a different amount due to rounding.)¿ E:\FR\FM\17SEP3.SGM 17SEP3 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules ﬂ Paragraph 20(d) 1. Creditors, assignees, and servicers. Creditors, assignees, and servicers are subject to the requirements of § 1026.20(d), unless they no longer own the applicable adjustablerate mortgage or the mortgage servicing rights. Creditors, assignees, and servicers are also subject to the requirements of any provision of subpart C that applies to § 1026.20(d). For example, the requirements of § 1026.17(a) with regard to providing disclosures to consumers electronically, apply to § 1026.20(d) disclosures and thus, assignees and servicers, as well as creditors, are subject to those requirements. 2. Timing and form of initial rate adjustment. The requirement that the disclosures be provided in writing, separate and distinct from all other correspondence, means that the initial ARM interest rate adjustment notice must be mailed or delivered separately from any other material. For example, in the case of mailing the disclosure, there should be no material in the envelope other than the § 1026.20(d) initial ARM interest rate adjustment notice. In the case of emailing the disclosure, the only attachment should be the initial ARM interest rate adjustment notice. The requirement that the disclosures be provided between 210 to 240 days ‘‘before the first payment at the adjusted level is due’’ means the creditor, assignee, or servicer must provide the notice to consumers 210 to 240 days prior to the due date, excluding any grace period, of the first payment calculated using the adjusted interest rate. Creditors, assignees, or servicers may provide the initial ARM interest rate adjustment notices to consumers in electronic form if they comply with the electronic delivery requirements in § 1026.17(a)(1). 3. Conversions. When an open-end account converts to a closed-end adjustable-rate mortgage, § 1026.20(d) disclosures are not required until the implementation of the initial interest rate adjustment postconversion. For example, for an open-end account that converts to a closed-end 3/1 hybrid ARM, § 1026.20(d) disclosures would not be required until three years after conversion, when the interest rate adjusts for the first time. tkelley on DSK3SPTVN1PROD with PROPOSALS3 Paragraph 20(d)(1)(i) 1. In general. An adjustable-rate mortgage, as defined under this section, is a variablerate transaction as that term is used in subpart C, except as distinguished by commentary to § 1026.20(d)(1)(ii)–2. The requirements of this section are not limited to transactions financing the initial acquisition of the consumer’s principal dwelling. Paragraph 20(d)(1)(ii) 1. Construction loans. In determining the term of a construction loan that may be permanently financed by the same creditor or assignee, the creditor or assignee may treat the construction and the permanent phases as separate transactions with distinct terms to maturity or as a single combined transaction. 2. Non-adjustable-rate mortgages. For purposes of this section, the following transactions, if structured as fixed-rate and VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 57403 not adjustable-rate mortgages, are not subject to § 1026.20(d): i. Shared-equity or shared-appreciation mortgages; ii. Price-level adjusted 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; iii. Graduated-payment mortgages or steprate transactions; iv. Renewable balloon-payment instruments; or v. Preferred-rate loans. Paragraph 20(d)(2)(viii) 1. List of alternatives. The list of alternatives provided to consumers should avoid technical terms and explain the alternatives using the terms and explanations in Form H–4(D)(3) and (4) in Appendix H to this part. For the alternative ‘‘payment forbearance,’’ the disclosure should explain that payment forbearance temporarily gives the consumer more time to pay. ﬁ Paragraph 20(d)(2)(i) * 1. Date of the disclosure. The date that appears on the disclosure is the date the creditor, assignee, or servicer generates the notice to be provided to the consumer. Section 1026.36—Prohibited Acts or Practices in Connection With Credit Secured by a Dwelling Paragraph 20(d)(2)(iii)(A) 1. The current and new interest rates. The current interest rate is the interest rate that applies on the date of the disclosure, pursuant to § 1026.20(d)(2). The new interest rate is the interest rate used to calculate the new payment and may be an estimate pursuant to § 1026.20(d)(2). The ‘‘new interest rate’’ has the same meaning as the ‘‘adjusted interest rate.’’ Paragraph 20(d)(2)(v) 1. Rate limits and unapplied index increases. The disclosures regarding foregone interest increases apply only to transactions permitting interest rate carryover. The amount of increase foregone at the first interest rate adjustment is the amount that, subject to rate caps, can be added to future interest rate adjustments to increase, or offset decreases in, the rate determined by using the index or formula. Paragraph 20(d)(2)(vii) 1. Amortization statement. For interestonly loans, § 1026.20(d)(2)(vii) requires a statement that the new payment covers all of the interest but none of the principal, and therefore will not reduce the loan balance. For negatively-amortizing loans, § 1026.20(d)(2)(vii) requires a statement that the new payment covers only part of the interest and none of the principal, and therefore the unpaid interest will add to the balance of the loan or will increase the term of the loan. 2. Amortization payment. Disclosure of the payment needed to fully amortize the loan at the new interest rate is required only when negative amortization occurs as a result of the adjustment. The disclosure is not required simply because a loan has interest-only or partially-amortizing payments. For example, an ARM with a five-year term and payments based on a longer amortization schedule, in which the final payment will equal the periodic payment plus the remaining unpaid balance, does not require disclosure of the payment necessary to fully amortize the loan in the remainder of the five-year term. A disclosure is also not required when the new payment is sufficient to prevent negative amortization but the final loan payment will be a different amount due to rounding. PO 00000 Frm 00087 Fmt 4701 Sfmt 4702 * * * * * Subpart E—Special Rules for Certain Home Mortgage Transactions * * * * ﬂParagraph 36(c)(1)(ii) 1. Handling of Partial Payments. If a servicer receives a partial payment from a consumer, to the extent not prohibited by applicable law and the legal obligation between the parties, the servicer may take any of the following actions: (i) Credit the partial payment upon receipt; or (ii) Return the partial payment to the consumer; or (iii) Hold the payment in a suspense or unapplied funds account. If the payment is held in a suspense or unapplied funds account, this must be reflected on the periodic statement, in accordance with § 1026.41. When sufficient funds accumulate to cover a full contractual payment, they must be applied to the oldest outstanding payment. Paragraph 36(c)(1)(iii) 1. Payment requirements. The servicer may specify reasonable requirements for making payments in writing, such as requiring that payments be accompanied by the account number or payment coupon; setting a cut-off hour for payment to be received, or setting different hours for payment by mail and payments made in person; specifying that only checks or money orders should be sent by mail; specifying that payment is to be made in U.S. dollars; or specifying one particular address for receiving payments, such as a post office box. The servicer may be prohibited, however, from requiring payment solely by preauthorized electronic fund transfer. (See Section 913 of the Electronic Fund Transfer Act, 15 U.S.C. 1693k.) 2. Payment requirements—limitations. Requirements for making payments must be reasonable; it should not be difficult for most consumers to make conforming payments. For example, it would be reasonable to require a cut-off time of 5 p.m. for receipt of a mailed check at the location specified by the servicer for receipt of such check. 3. Implied guidelines for payments. In the absence of specified requirements for making payments, payments may be made at any location where the servicer conducts business; any time during the servicer’s normal business hours; and by cash, money order, draft, or other similar instrument in E:\FR\FM\17SEP3.SGM 17SEP3 57404 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules properly negotiable form, or by electronic fund transfer if the servicer and consumer have so agreed.ﬁ øParagraph 36(c)(1)(ii)¿ ﬂParagraph 36(c)(2)ﬁ 1. Pyramiding of late fees. The prohibition on pyramiding of late fees in this subsection should be construed consistently with the ‘‘credit practices rule’’ of the Federal Trade Commission, 16 CFR 444.4. øParagraph 36(c)(1)(iii)¿ tkelley on DSK3SPTVN1PROD with PROPOSALS3 ﬂParagraph 36(c)(3)ﬁ ø1. Reasonable time. The payoff statement must be provided to the consumer, or person acting on behalf of the consumer, within a reasonable time after the request. For example, it would be reasonable under most circumstances to provide the statement within five business days of receipt of a consumer’s request. This time frame might be longer, for example, when the servicer is experiencing an unusually high volume of refinancing requests.¿ ﬂ1. As Applicable. A creditor who no longer owns the mortgage loan or the mortgage servicing rights is not ‘‘applicable’’ and therefore is not subject to the requirements of this section to provide a periodic statement.ﬁ 2. Person acting on behalf of the consumer. For purposes of § 1026.36(c)ø(1)(iii)¿ﬂ(3)ﬁ, a person acting on behalf of the consumer may include the consumer’s representative, such as an attorney representing the individual, a non-profit consumer counseling or similar organization, or a creditor with which the consumer is refinancing and which requires the payoff statement to complete the refinancing. A servicer may take reasonable measures to verify the identity of any person acting on behalf of the consumer and to obtain the consumer’s authorization to release information to any such person before the ‘‘reasonable time’’ period begins to run. 3. Payment requirements. The servicer may specify reasonable requirements for making payoff requests, such as requiring requests to be øin writing and¿ directed to a mailing address, email address, or fax number specified by the servicer øor orally to a telephone number specified by the servicer,¿ or any other reasonable requirement or method. If the consumer does not follow these requirements, a longer time frame for responding to the request would be reasonable. 4. Accuracy of payoff statements. Payoff statements must be accurate when issued. øParagraph 36(c)(2) 1. Payment requirements. The servicer may specify reasonable requirements for making payments in writing, such as requiring that payments be accompanied by the account number or payment coupon; setting a cut-off hour for payment to be received, or setting different hours for payment by mail and payments made in person; specifying that only checks or money orders should be sent by mail; specifying that payment is to be made in U.S. dollars; or specifying one particular address for receiving payments, VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 such as a post office box. The servicer may be prohibited, however, from requiring payment solely by preauthorized electronic fund transfer. (See Section 913 of the Electronic Fund Transfer Act, 15 U.S.C. 1693k.) 2. Payment requirements—limitations. Requirements for making payments must be reasonable; it should not be difficult for most consumers to make conforming payments. For example, it would be reasonable to require a cut-off time of 5 p.m. for receipt of a mailed check at the location specified by the servicer for receipt of such check. 3. Implied guidelines for payments. In the absence of specified requirements for making payments, payments may be made at any location where the servicer conducts business; any time during the servicer’s normal business hours; and by cash, money order, draft, or other similar instrument in properly negotiable form, or by electronic fund transfer if the servicer and consumer have so agreed.¿ * * * * * ﬂSection 41—Periodic Statements for Residential Mortgage Loans 41(a) In General 1. Recipient of Periodic Statement. When two consumers are joint obligors with primary liability on a mortgage loan, the disclosures may be given to either one of them. For example, if a husband and wife jointly own a home, the servicer need not send statements to both the husband and the wife; a single statement may be sent. 2. Billing Cycles Shorter than a 31-Day Period. If a loan has a billing cycle shorter than a period of 31 days (for example, a biweekly billing cycle), a periodic statement covering an entire month may be used. Such statement should separately list the upcoming payment due dates and amounts due, as required by paragraph (d)(1), and list all transaction activity that occurred during the related time period, as required by paragraph (d)(4). Such statement may aggregate the information for the Explanation of Amount Due, as required by paragraph (d)(2), and Past Payment Breakdown, as required by paragraph (d)(3). 3. One Statement per Billing Cycle. The periodic statement requirement applies to the ‘‘creditor, assignee, or servicer as applicable.’’ The creditor, assignee, or servicer are all subject to this requirement, however only one statement must be sent to the consumer each billing cycle. When two or more parties are subject to this requirement, they may decide among themselves who will send the statement. 4. As Applicable. A creditor who no longer owns the mortgage loan or the mortgage servicing rights is not ‘‘applicable’’ and therefore is not subject to the requirements of this section to provide a periodic statement. 41(b) Timing of the Periodic Statement 1. Reasonably Prompt Time. Delivering or placing the periodic statement in the mail within 4 days of close the grace period of the previous billing cycle would be considered reasonably prompt. PO 00000 Frm 00088 Fmt 4701 Sfmt 4702 41(c) Form of the Periodic Statement 1. Clear and Conspicuous Standard. The ‘‘clear and conspicuous’’ standard generally requires that disclosures be in a reasonably understandable form. Except where otherwise provided, the standard does not prohibit adding to the required disclosures, as long as the additional information does not overwhelm or obscure the required disclosures. For example, while certain information about the escrow account (such as the account balance) is not required on the periodic statement, this information may be included. 2. Additional information; disclosures required by other laws. Nothing in this subpart prohibits a servicer from including additional information or combining disclosures required by other laws with the disclosures required by this subpart, unless such prohibition is expressly set forth in this subpart, such as the grouping requirements of paragraph 41(d) or other applicable law. 3. Electronic Distribution. The periodic statement may be provided electronically if the consumer agrees. The consumer must give affirmative consent to receive statements electronically. Due to concerns about information security, if statements are provided electronically, the creditor, assignee or servicer may send the consumer a notification that their statement is available, with a link to where the statement can be accessed. 41(d) Content and Format of the Periodic Statement 1. Close Proximity. Paragraph (d) requires several disclosures to be provided in close proximity. To meet this requirement, the items to be provided in close proximity must be grouped together, and set off from the other groupings of items. This could be accomplished in a variety of ways, for example, by presenting the information in boxes, or by arranging the items on the document and including spacing between the groupings. Items in close proximity may not have any intervening text between them. 2. Not Applicable. If an item required by paragraph (d) or (e) of this section is not applicable to the loan, it may be omitted from the periodic statement or coupon book. For example, if there is no prepayment penalty associated with a loan, the prepayment penalty disclosures need not be provided on the periodic statement. 3. Terminology. A servicer may use terminology other than that found on the sample periodic statement, so long as the new terminology is commonly understood. For example, servicers may take into consideration regional differences in terminology and refer to the account for the collection of taxes and insurance, commonly referred to as the ‘‘escrow account,’’ as an ‘‘impound account.’’ 41(d)(3) Past Payment Breakdown 1. Partial Payments. The disclosure of any portion of payments since the last statement that was applied to a partial payment or suspense account as required by (d)(3)(i) should reflect any funds that were received in the time period covered by the transaction activity of that statement and that were sent E:\FR\FM\17SEP3.SGM 17SEP3 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules to a suspense or unapplied funds account. The disclosure of any portion of payments since the beginning of the calendar year that was sent to a partial payment or suspense account as required by (d)(3)(ii) should reflect all funds that are currently held in a suspense or unapplied funds account. For example: (i) Suppose a payment of $1000 is due, but the consumer only sends in $600 on January 1, which is held in a suspense account. Further assume there are no fees charged on this account. Assuming there are no other funds in suspense account, the January statement should reflect: Unapplied funds since last statement—$600. Unapplied funds YTD—$600. (ii) Assuming the same facts as Example (i) above, except that during February the consumer sends in $300 and this too is held in the suspense account. The statement should reflect: Unapplied funds since last statement—$300. Unapplied funds YTD— $900. (iii) Assuming the same facts as Example (ii) above, except that during March the consumer sends in $400. Of this payment, $100 completes a full contractual payment when added to the $900 in funds already held in the suspense account. This $1000 should be applied to the January payment, and the remaining $300 would be held in the suspense account. The statement should reflect: Unapplied funds since last statement—$300. Unapplied Funds YTD— $300. 41(d)(4) Transaction Activity 1. Meaning. Transaction activity includes any activity that credits or debits the outstanding account balance. Examples of transactions include, without limitation: (i) Payments received and applied; (ii) Payments received and held in a suspense account; (iii) The imposition of any fees (for example late fees); and (iv) The imposition of any charges (for example, private mortgage insurance). 2. Description of Late Fees. The description of any late fee charges includes the date of the late fee, the amount of the late fee, and the fact that a late fee was imposed. 3. Partial Payments. If a partial payment is sent to a suspense or unapplied funds account, this fact must be in the transaction description along with the date and amount of the payment, an explanation of what must be done for the payments to be applied must be provided on the front of the statement, and the funds must be included as unapplied funds in the information required by (d)(3) Past Payment Breakdown. tkelley on DSK3SPTVN1PROD with PROPOSALS3 41(d)(6) Contact Information 1. A toll-free telephone number is required. Additional contact information, such as a web address, may also be provided at the servicer’s option. 2. If servicer has provided a telephone number for error resolution and inquiries pursuant to 12 CFR 1024.35 and § 1024.36, that number should be provided in the contact information section. VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 41(d)(7)(iv) Prepayment Penalty 1. Examples of prepayment penalties. For purposes of § 1026.41(d)(7)(iv), 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. 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. 2. Fees that are not prepayment penalties. For purposes of § 1026.41(d)(7)(iv), fees which are not prepayment penalties include, for example: i. Fees imposed for preparing and providing documents when a loan is paid in full, if such fees are imposed whether or not the loan is prepaid. Examples include 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. 41(e) Exemptions 1. Information made available. Information made available by the servicer may be obtained through the inquiry process in § 1024.36. PO 00000 Frm 00089 Fmt 4701 Sfmt 4702 57405 41(e)(3) Coupon Book Exemption 1. Fixed Rate. ‘‘Fixed rate’’ is to be construed consistently with § 1026.18(s)(7)(iii). 2. Coupon Book. A coupon book is a booklet provided to the consumer with a page for each billing cycle during a set period of time (often covering one year). These pages are designed to be torn off and returned to the servicer with a payment for each billing cycle. Additional information about the loan is often included on or inside the front or back cover, or on filler pages in the coupon book. 3. Information location. The information required by paragraph (e)(3)(ii) need not be provided on each coupon, but should be provided somewhere in the coupon book. Such information could be located e.g., on or inside the front or back cover, or on filler pages in the coupon book. 4. Outstanding Principal Balance. Paragraph (e)(3)(ii)(A) requires the information listed in paragraph (d)(7) to be included in the coupon book. Paragraph (d)(7)(i) requires the disclosure of amount of the outstanding principal balance. For the purposes of the coupon book, the servicer need only disclose the principal balance at the beginning of the time period covered by the coupon book. 41(e)(4) Small Servicers 1. Loans obtained by merger or acquisition. Any mortgage loans obtained by a servicer or an affiliate as part of a merger or acquisition, or as part of the acquisition of all of the assets or liabilities of a branch office of a lender should be considered mortgage loans for which the servicer or an affiliate are the lender to whom the mortgage loan is initially payable. A branch office means either an office of a depository institution that is approved as a branch by a Federal or state supervisory agency or an office of a for-profit mortgage lending institution (other than a depository institution) that takes applications from the public for mortgage loans. 2. Threshold. In determining whether a small servicer services 1,000 mortgage loans or less, a servicer is evaluated based on its size as of January 1 for the remainder of the calendar year. A servicer that, together with its affiliates, crosses the threshold will have six months or until the beginning of the next calendar year, whichever is later, to begin compliance other than as a small servicer. Examples: i. A servicer that crosses the loan threshold on October 1 would no longer be considered a small servicer on April 1 of the following year. ii. A servicer that crosses the loan threshold on February 1 would no longer be considered a small servicer on January 1 of the following year. 3. Small servicers that do not qualify for the exemption. A servicer that services any mortgage loans that are not owned by the servicer or an affiliate or for which the servicer or an affiliate were not the entity to whom the obligation was initially payable is not a small servicer. For example, if a servicer acquires mortgage servicing rights to service mortgage loans the servicer or an affiliate does not own and did not originate is not a small servicer. E:\FR\FM\17SEP3.SGM 17SEP3 57406 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Proposed Rules 4. Master servicing responsibilities. The periodic statement requirements apply to master servicers. A subservicer that meets the small servicer definition cannot claim the benefit of any small servicer exemption for mortgage loans that are master serviced by an entity that does not qualify for the small servicer exemption.ﬁ * * * * * Appendices G and H—Open-End and Closed-End Model Forms and Clauses tkelley on DSK3SPTVN1PROD with PROPOSALS3 1. Permissible changes. Although use of the model forms and clauses is not required, creditors using them properly will be deemed to be in compliance with the regulation with regard to those disclosures. ﬂFor purposes of the model forms and samples in H–4(D), the term creditors refers to creditors, assignees, and servicers.ﬁ Creditors may make certain changes in the format or content of the forms and clauses and may delete any disclosures that are inapplicable to a transaction or a plan without losing the Act’s protection from liability, except formatting changes may not be made to model forms and samples in ﬂH–4(D),ﬁH–18, H–19, H–20, H–21, H–22, H–23, G–2(A), G–3(A), G–4(A), VerDate Mar<15>2010 20:28 Sep 14, 2012 Jkt 226001 G–10(A)–(E), G–17(A)–(D), G–18(A) (except as permitted pursuant to § 1026.7(b)(2), G– 18(B)–(C), G–19, G–20, and G–21, or to the model clauses in H–4(E), H–4(F), H–4(G), and H–4(H). Creditors may modify the heading of the second column shown in Model Clause H–4(H) to read ‘‘first adjustment’’ or ‘‘first increase,’’ as applicable, pursuant to § 1026.18(s)(2)(i)(C). The rearrangement of the model forms and clauses may not be so extensive as to affect the substance, clarity, or meaningful sequence of the forms and clauses. Creditors making revisions with that effect will lose their protection from civil liability. Except as otherwise specifically required, acceptable changes include, for example: i. Using the first person, instead of the second person, in referring to the borrower. ii. Using ‘‘borrower’’ and ‘‘creditor’’ instead of pronouns. iii. Rearranging the sequences of the disclosures. iv. Not using bold type for headings. v. Incorporating certain State ‘‘plain English’’ requirements. vi. Deleting inapplicable disclosures by whiting out, blocking out, filling in ‘‘N/A’’ (not applicable) or ‘‘0,’’ crossing out, leaving PO 00000 Frm 00090 Fmt 4701 Sfmt 9990 blanks, checking a box for applicable items, or circling applicable items. (This should permit use of multipurpose standard forms.) vii. Using a vertical, rather than a horizontal, format for the boxes in the closedend disclosures. * * * * * Appendix H—Closed Model Forms and øClause¿ * * * * * 7. * * * i. Model H–4(D) illustrates the adjustment ønotice¿ﬂnoticesﬁ required under § 1026.20(c)ﬂand (d)ﬁ, and provides examples of ﬂ§ 1026.20(c)ﬁpayment change notices and ﬂ§ 1026.20(d) initialﬁøannual¿ notices of interest rate øchanges¿ ﬂadjustmentsﬁ. * * * * * Dated: August 9, 2012. Richard Cordray, Director, Bureau of Consumer Financial Protection. [FR Doc. 2012–19977 Filed 9–7–12; 4:15 pm] BILLING CODE 4810–AM–P E:\FR\FM\17SEP3.SGM 17SEP3

Agencies

BUREAU OF CONSUMER FINANCIAL PROTECTION

[Federal Register Volume 77, Number 180 (Monday, September 17, 2012)]
[Proposed Rules]
[Pages 57317-57406]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-19977]

[[Page 57317]]

Vol. 77

Monday,

No. 180

September 17, 2012

Part III

Bureau of Consumer Financial Protection

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12 CFR Part 1026

2012 Truth in Lending Act (Regulation Z) Mortgage Servicing; Proposed
Rule

Federal Register / Vol. 77 , No. 180 / Monday, September 17, 2012 /
Proposed Rules

[[Page 57318]]

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BUREAU OF CONSUMER FINANCIAL PROTECTION

12 CFR Part 1026

[Docket No. CFPB-2012-0033]
RIN 3170-AA14

2012 Truth in Lending Act (Regulation Z) Mortgage Servicing

AGENCY: Bureau of Consumer Financial Protection.

ACTION: Proposed rule with request for public comment.

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SUMMARY: The Bureau of Consumer Financial Protection (the Bureau or
CFPB) is proposing to amend Regulation Z, which implements the Truth in
Lending Act (TILA), and the official interpretation of the regulation.
The proposed amendments implement the Dodd-Frank Wall Street Reform and
Consumer Protection Act (the Dodd-Frank Act or DFA) provisions
regarding mortgage loan servicing. Specifically, this proposal
implements Dodd-Frank Act sections addressing initial rate adjustment
notices for adjustable-rate mortgages (ARMs), periodic statements for
residential mortgage loans, and prompt crediting of mortgage payments
and response to requests for payoff amounts. The proposed revisions
also amend current rules governing the scope, timing, content, and
format of current disclosures to consumers occasioned by the interest
rate adjustments of their variable-rate transactions.
Published elsewhere in today's Federal Register, the Bureau
proposes companion regulations regarding mortgage servicing through
amendments to Regulation X, which implements the Real Estate Settlement
Procedures Act (RESPA).

DATES: Comments must be received on or before October 9, 2012, except
that comments on the Paperwork Reduction Act analysis in part IX of the
Federal Register notice must be received on or before November 16,
2012.

ADDRESSES: You may submit comments identified by Docket No. CFPB-2012-
0033 or RIN 3170-AA14, by any of the following methods:
Electronic: http://www.regulations.gov. Follow the
instructions for submitting comments.
Mail/Hand Delivery/Courier: Monica Jackson, Office of the
Executive Secretary, Bureau of Consumer Financial Protection, 1700 G
Street NW., Washington, DC 20552.
Instructions: All submissions must include the agency name and
docket number or Regulatory Information Number (RIN) for this
rulemaking. In general, all comments received will be posted without
change to http://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.

e-Rulemaking Initiative

The Bureau is working with the Cornell e-Rulemaking Initiative
(CeRI) on a pilot project, Regulation Room, to use different Web
technologies and approaches to enhance public understanding and
participation in Bureau rulemakings and to evaluate the advantages and
disadvantages of these techniques. The TILA and RESPA proposed
rulemakings on mortgage servicing are the subject of the project. The
Bureau has undertaken this project to increase effective public
involvement in the rulemaking process and strongly encourages all
parties interested in this rulemaking to visit the Regulation Room Web
site, http://www.regulationroom.org, to learn about the Bureau's
proposed mortgage servicing rules and the rulemaking process, to
discuss the issues in the rules with other persons and groups, and to
participate in drafting a summary of that discussion that CeRI will
submit to the Bureau.
Note that Regulation Room is sponsored by CeRI, and is not an
official United States Government Web site. Participating in the
discussion on that site will not result in individual formal comments
that will be included in the Bureau's rulemaking record. If you would
like to add a formal comment, please do so through the means identified
above. The Bureau anticipates that CeRI will submit to the Bureau's
rulemaking docket a summary of the discussion that occurs on the
Regulation Room site and that participants will have a chance to review
a draft and suggest changes before the summary is submitted. For
questions about this project, please contact Whitney Patross, Attorney,
Office of Regulations, at (202) 435-7700.

FOR FURTHER INFORMATION CONTACT:
Regulation Z (TILA): Whitney Patross, Attorney and Marta Tanenhaus,
Senior Counsel at (202) 435-7700; Office of Regulations; Division of
Research, Markets, and Regulations; Bureau of Consumer Financial
Protection; 1700 G Street NW., Washington, DC 20552.
Regulation X (RESPA): Jane Gao, Mitchell E. Hochberg, and Michael
Scherzer, Counsels at (202) 435-7700; Office of Regulations; Division
of Research, Markets, and Regulations; Bureau of Consumer Financial
Protection; 1700 G Street NW., Washington, DC 20552.

SUPPLEMENTARY INFORMATION:

I. Overview

A. Background

The recent financial crisis exposed pervasive consumer protection
problems across major segments of the mortgage servicing industry. As
millions of borrowers fell behind on their loans, many servicers failed
to provide the level of service necessary to serve the needs of those
borrowers. Many servicers simply had not made the investments in
resources and infrastructure necessary to service large numbers of
delinquent loans. Existing weaknesses in servicer practices, including
inadequate recordkeeping and document management and lack of oversight
of service providers, made it harder to sort out borrower problems to
achieve optimal results. In addition, many servicers took short cuts
that made things even worse. As one review of fourteen major servicers
found, companies ``emphasize[d] speed and cost efficiency over quality
and accuracy'' in their foreclosure processes.\1\
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\1\ Federal Reserve System, Office of the Comptroller of the
Currency, & Office of Thrift Supervision, Interagency Review of
Foreclosure Policies and Practices, at 5 (Apr. 2011) (Interagency
Foreclosure Report), available at http://www.occ.gov/news-issuances/news-releases/2011/nr-occ-2011-47a.pdf.
---------------------------------------------------------------------------

The Dodd-Frank Act (Pub. L. 111-203, July 21, 2010) adopts several
new servicing protections.\2\ The Bureau has the authority to
promulgate regulations to implement the new servicing protections.
These changes will significantly improve disclosures to make it easier
for consumers to monitor their mortgage loans and servicers'
activities. The changes also address critical servicer practices,
including error resolution, prompt crediting of payments, and ``force-
placing'' insurance where borrowers have

[[Page 57319]]

allowed their hazard insurance policies to lapse.
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\2\ See Dodd-Frank Act sections 1418, 1420, 1463, and 1464.
---------------------------------------------------------------------------

The Dodd-Frank Act also gives the Bureau discretionary authority to
develop additional servicing rules. The Bureau proposes to use this
authority to adopt requirements relating to reasonable information
management policies and procedures, early intervention with delinquent
borrowers, continuity of contact, and procedures for evaluating and
responding to loss mitigation applications when the servicer makes loss
mitigation options available in the ordinary course of business. These
proposals address fundamental problems that underlie many consumer
complaints and recent regulatory and enforcement actions. The Bureau
believes these changes will reduce avoidable foreclosures and improve
general customer service. The proposals cover nine major topics, as
summarized below.
The Bureau's proposal is split into two parts because Congress
imposed some requirements under TILA and some under RESPA.\3\ This
proposed rule would amend Regulation Z, which implements TILA, to
implement provisions concerning adjustable-rate mortgage (ARM)
disclosures, payoff statements, and payment crediting under sections
1418, 1420, and 1464 of the Dodd-Frank Act and to harmonize similar
existing requirements.
---------------------------------------------------------------------------

\3\ Note that TILA and RESPA differ in their terminology.
Consumers and creditors are the defined terms used in Regulation Z.
Borrowers and lenders are the defined terms used in Regulation X.
---------------------------------------------------------------------------

B. Scope of Coverage

The proposed rules generally apply to closed-end mortgage loans,
with certain exceptions. Under the proposed amendments to Regulation X,
open-end lines of credit and certain other loans, such as construction
loans and business-purpose loans, are excluded. Under the proposed
amendments to Regulation Z, the periodic statement and ARMs disclosure
provisions apply only to closed-end mortgage loans, but the prompt
crediting and payoff statement provisions apply both to open-end and
closed-end mortgage loans. In addition, reverse mortgages and
timeshares are excluded from the periodic statement requirement, and
certain construction loans are excluded from the ARM disclosure
requirements. As discussed below, the Bureau is seeking comment on
whether to exempt small servicers from certain requirements or modify
certain requirements for small servicers.

C. Summary

The proposals cover nine major topics, summarized below. More
details can be found in the proposed rules, which are split into two
notices issued under TILA and RESPA, respectively.
1. Periodic billing statements. The Dodd-Frank Act generally
mandates that servicers of closed-end residential mortgage loans (other
than reverse mortgages) must send a periodic statement for each billing
cycle. These statements must meet the timing, form, and content
requirements provided for in the rule. The proposal contains sample
forms that servicers could use. The periodic statement requirement
generally would not apply for fixed-rate loans if the servicer provides
a coupon book, so long as the coupon book contains certain information
specified in the rule and certain other information is made available
to the consumer. The proposal also includes an exception for small
servicers that service 1,000 or fewer mortgage loans and service only
mortgage loans that they originated or own.
2. Adjustable-rate mortgage interest-rate adjustment notices.
Servicers would have to provide a consumer whose mortgage has an
adjustable rate with a notice 60 to 120 days before an adjustment which
causes the payment to change. The servicer would also have to provide
an earlier notice 210 to 240 days prior to the first rate adjustment.
This first notice may contain an estimate of the rate and payment
change. Other than this initial notice, servicers would no longer be
required to provide an annual notice if a rate adjustment does not
result in an increase in the monthly payment. The proposal contains
model and sample forms that servicers could use.
3. Prompt payment crediting and payoff payments. As required by the
Dodd-Frank Act, servicers must promptly credit payments from borrowers,
generally on the day of receipt. If a servicer receives a payment that
is less than a full contractual payment, the payment may be held in a
suspense account. When the amount in the suspense account covers a full
installment of principal, interest, and escrow (if applicable), the
proposal would require the servicer to apply the funds to the oldest
outstanding payment owed. A servicer also would be required to send an
accurate payoff balance to a consumer no later than seven business days
after receipt of a written request from the borrower for such
information.
4. Force-placed insurance. As required by the Dodd-Frank Act,
servicers would not be permitted to charge a borrower for force-placed
insurance coverage unless the servicer has a reasonable basis to
believe the borrower has failed to maintain hazard insurance and has
provided required notices. One notice to the borrower would be required
at least 45 days before charging for forced-place insurance coverage,
and a second notice would be required no earlier than 30 days after the
first notice. The proposal contains model forms that servicers could
use. If a borrower provides proof of hazard insurance coverage, then
the servicer would be required to cancel any force-placed insurance
policy and refund any premiums paid for periods in which the borrower's
policy was in place. In addition, if a servicer makes payments for
hazard insurance from a borrower's escrow account, a servicer would be
required to continue those payments rather than force-placing a
separate policy, even if there is insufficient money in the escrow
account. The rule would also provide that charges related to forced
place insurance (other than those subject to State regulation as the
business of insurance or authorized by federal law for flood insurance)
must relate to a service that was actually performed. Additionally,
such charges would have to bear a reasonable relationship to the
servicer's cost of providing the service.
5. Error resolution and information requests. Pursuant to the Dodd-
Frank Act, servicers would be required to meet certain procedural
requirements for responding to information requests or complaints of
errors. The proposal defines specific types of claims which constitute
an error, such as a claim that the servicer misapplied a payment or
assessed an improper fee. A borrower could assert an error either
orally or in writing. Servicers could designate a specific phone number
and address for borrowers to use. Servicers would be required to
acknowledge the request or complaint within five days. Servicers would
have to correct or respond to the borrower with the results of the
investigation, generally within 30 to 45 days. Further, servicers
generally would be required to acknowledge borrower requests for
information and either provide the information or explain why the
information is not available within a similar amount of time. A
servicer would not be required to delay a scheduled foreclosure sale to
consider a notice of error unless the error relates to the servicer's
improperly proceeding with a foreclosure sale during a borrower's
evaluation for alternatives to foreclosure.
6. Information management policies and procedures. Servicers would
be

[[Page 57320]]

required to establish reasonable information management policies and
procedures. The reasonableness of a servicer's policies and procedures
would take into account the servicer's size, scope, and nature of its
operations. A servicer's policies and procedures would satisfy the rule
if the servicer regularly achieves the document retention and servicing
file requirements, as well as certain objectives specified in the rule.
Examples of such objectives include providing accurate and timely
information to borrowers and the courts or enabling servicer personnel
to have prompt access to documents and information submitted in
connection with loss mitigation applications. In addition, a servicer
must retain records relating to each mortgage until one year after the
mortgage is discharged or servicing is transferred, and must create a
mortgage servicing file for each loan containing certain specified
documents and information.
7. Early intervention with delinquent borrowers. Servicers would be
required to make good faith efforts to notify delinquent borrowers of
loss mitigation options. If a borrower is 30 days late, the proposal
would require servicers to make a good faith effort to notify the
borrower orally and to let the borrower know that loss mitigations
options may be available. If the borrower is 40 days late, the servicer
would be required to provide the borrower with a written notice with
certain specific information, including examples of loss mitigation
options available, if applicable, and information on how to obtain more
information about loss mitigation options. The notice would also
provide information to the borrower about the foreclosure process. The
rule contains model language servicers could use for these notices.
8. Continuity of contact with delinquent borrowers. Servicers would
be required to provide delinquent borrowers with access to personnel to
assist them with loss mitigation options where applicable. The proposal
would require servicers to assign dedicated contact personnel for a
borrower no later than five days after providing the early intervention
notice. Servicers would be required to establish reasonable policies
and procedures designed to ensure that the servicer personnel perform
certain specified functions where applicable, such as access the
borrower's records and provide the borrower with information about how
and when to apply for a loss mitigation option and about the status of
the application.
9. Loss mitigation procedures. Servicers that offer loss mitigation
options to borrowers would be required to implement procedures to
ensure that complete loss mitigation applications are reasonably
evaluated before proceeding with a scheduled foreclosure sale. The
proposal would require servicers to exercise reasonable diligence to
secure information or documents required to make an incomplete loss
mitigation application complete. In certain circumstances, this could
include notifying the borrower within five days of receiving an
incomplete application. Within 30 days of receiving a borrower's
complete application, the servicer would be required to evaluate the
borrower for all available options, and, if the denial pertains to a
requested loan modification, notify the borrower of the reasons for the
servicer's decision, and provide the borrower with at least a 14-day
period within which to appeal the decision. The proposal would require
that appeals be decided within 30 days by different personnel than
those responsible for the initial decision. A servicer that receives a
complete application for a loss mitigation option could not proceed
with a foreclosure sale unless (i) the servicer had denied the
borrower's application and the time for any appeal had expired; (ii)
the servicer had offered a loss mitigation option which the borrower
declined or failed to accept within 14 days of the offer; or (iii) the
borrower failed to comply with the terms of a loss mitigation
agreement. The proposal would require that deadlines for submitting an
application for a loss mitigation option be no earlier than 90 days
before a scheduled foreclosure sale.

D. Small Servicers

As discussed below, the Bureau convened a Small Business Regulatory
Enforcement Fairness Act (SBREFA) panel to assess the impact of the
possible rules on small servicers and to help the Bureau determine to
what extent it may be appropriate to consider adjusting these standards
for small servicers, to the extent permitted by law. Informed by this
process, this proposal contains an exemption from the periodic
statement requirement for certain small servicers. The Bureau seeks
comment on whether other exemptions might be appropriate for small
servicers.

E. Effective Date

As discussed below, 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
rules will require servicers to make 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.

II. Background

A. Overview of the Mortgage Servicing Market and Market Failures

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.\4\ Mortgage
servicers play a vital role within the broader market by undertaking
the day-to-day management of mortgage loans on behalf of lenders who
hold the loans in their portfolios or (where a loan has been
securitized) investors who are entitled to the loan proceeds.\5\ Over
60% of mortgage loans are serviced by mortgage servicers for investors.
---------------------------------------------------------------------------

\4\ Inside Mortgage Finance, Outstanding 1-4 Family Mortgage
Securities, Mortgage Market Statistical Annual (2012). For general
background on the market and the recent mortgage crisis, see the
2012 TILA-RESPA Proposal available at http://www.consumerfinance.gov/knowbeforeyouowe/.
\5\ As of the end of 2011, approximately 33% of outstanding
mortgage loans were held in portfolio, 57% of mortgage loans were
owned through mortgage-backed securities issued by government
sponsored enterprises (GSEs), and 11% of loans were owned through
private label mortgage-backed securities. Inside Mortgage Finance,
Issue 2012:13, at 11 (March 30, 2012). A securitization results in
the economic separation of the legal title to the mortgage loan and
a beneficial interest in the mortgage loan obligation. In a
securitization transaction, a securitization trust is the owner or
assignee of a mortgage loan. An investor is a creditor of the trust
and is entitled to cash flows that are derived from the proceeds of
the mortgage loans. In general, certain investors (or an insurer
entitled to act on behalf of the investors) may direct the trust to
take action as the owner or assignee of the mortgage loans for the
benefit of the investors or insurers. See, e.g., Adam Levitin & Tara
Twomey, Mortgage Servicing, 28 Yale J. on Reg., 1, 11 (2011)
(Levitin & Twomey).
---------------------------------------------------------------------------

Servicers' duties typically include billing borrowers for amounts
due, collecting and allocating payments, maintaining and disbursing
funds from escrow accounts, reporting to creditors or investors, and
pursuing collection and loss mitigation activities (including
foreclosures and loan modifications) with respect to delinquent
borrowers. Indeed, without dedicated companies to perform these
activities, it is

[[Page 57321]]

questionable whether a secondary market for mortgage-backed securities
would exist in this country.\6\
---------------------------------------------------------------------------

\6\ See, e.g., Levitin & Twomey at 11 (``All securitizations
involved third-party servicers * * * [m]ortgage servicers provide
the critical link between mortgage borrowers and the SPV and RMBS
investors, and servicing arrangements are an indispensable part of
securitization.'').
---------------------------------------------------------------------------

Several aspects of the mortgage servicing business make it uniquely
challenging for consumer protection purposes. Given the nature of their
activities, servicers can have a direct and profound impact on
borrowers. However, industry compensation practices and the structure
of the mortgage servicing industry create wide variations in servicers'
incentives to provide effective customer service to borrowers. Also,
because borrowers cannot choose their own servicers, it is particularly
difficult for them to protect themselves from shoddy service or harmful
practices.
Mortgage servicing is performed by banks, thrifts, credit unions,
and non-bank servicers under a variety of business models. In some
cases, creditors service mortgage loans that they originate or purchase
and hold in portfolio. Other creditors sell the ownership of the
underlying mortgage loan, but retain the mortgage servicing rights in
order to retain the relationship with the borrower, as well as the
servicing fee and other ancillary income. In still other cases,
servicers have no role at all in origination or loan ownership, but
rather purchase mortgage servicing rights on securitized loans or are
hired to service a portfolio lender's loans.\7\
---------------------------------------------------------------------------

\7\ See, e.g., Diane Thompson, Foreclosing Modifications: How
Servicer Incentives Discourage Loan Modifications, 86 Wash. L. Rev.
755, 763 (2011) (Thompson), available at: http://digital.law.washington.edu/dspace-law/bitstream/handle/1773.1/1074/86WLR755.pdf.
---------------------------------------------------------------------------

These different servicing structures can create difficulties for
borrowers if the servicer makes mistakes, fails to invest sufficient
resources in its servicing operations, or does not properly service the
borrower's loan. Although the mortgage servicing industry has numerous
participants, the industry is highly concentrated, with the five
largest servicers servicing approximately 55% percent of outstanding
mortgage loans in this country.\8\ Small servicers generally operate in
discrete segments of the market, for example, by specializing in
servicing delinquent loans, or by servicing loans that they
originate.\9\
---------------------------------------------------------------------------

\8\ See, e.g, Top Mortgage Servicers in 2011 (Inside Mortg.
Fin., Bethesda, Md.), Mar. 30, 2012, at 12. As of the end of the
fourth quarter of 2011, the top 5 largest servicers serviced $5.66
trillion of mortgage loans. See id.
\9\ See, e.g., Fitch Ratings, U.S. Residential and Small Balance
Commercial Mortgage Servicer Rating Criteria, at 14-15 (Jan. 31,
2011), available at www.fitchratings.com.
---------------------------------------------------------------------------

Contracts between the servicer and the mortgage loan owner specify
the rights and responsibilities of each party. In the context of
securitized loans, the contracts may require the servicer to balance
the competing interests of different classes of investors when
borrowers become delinquent. Certain provisions in servicing contracts
may limit the servicer's ability to offer certain types of loan
modifications to borrowers. Such contracts also may limit the
circumstances under which investors can transfer servicing rights to a
different servicer.
Compensation structures vary somewhat for loans held in portfolio
and securitized loans,\10\ but have tended to make pure mortgage
servicing (where the servicer has no role in origination) a high-
volume, low-margin business in which servicers have little incentive to
invest in customer service. A servicer will expect to recoup its
investment in purchasing mortgage servicing rights and earn a profit
through a net servicing fee (which is expressed as a constant rate
assessed on unpaid mortgage balances),\11\ fees assessed on borrowers,
interest float on payment accounts between receipt and disbursement,
and cross-marketing other products and services to borrowers. Under
this business model, servicers act primarily as payment collectors and
processors, and provide minimal customer service to ensure
profitability. Servicers also have an incentive to look for
opportunities to impose fees on borrowers to enhance revenues and are
generally not subject to market discipline because consumers have no
opportunity to switch providers. Additionally, servicers may have
financial incentives to foreclose rather than engage in loss
mitigation.\12\
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\10\ At securitization, the cash flow that was part of interest
income is bifurcated between the loan and the mortgage servicing
right (MSR). The MSR represents the present value of all the cash
flows, both positive and negative, related to servicing a mortgage.
Prime MSRs are largely created by the GSE minimum servicing fee
rate, which is calculated as 25 basis points (bps) per annum. The
servicing fee rate is typically paid to the servicer monthly and the
monthly amount owed is calculated by multiplying the pro rata
portion of the servicing fee rate by the stated principal balance of
the mortgage loan at the payment due date. Accounting rules require
that a capitalized asset be created if the ``compensation'' for
servicing (including float/ancillary) exceeds ``adequate
compensation.'' For loans held in portfolio, there is no bifurcation
of the interest income from the loan. The owner of the loan simply
negotiates pricing, terms, and standards with the servicer, which,
at larger institutions, is typically a separate affiliate or
subsidiary of the owner of the loans. PowerPoint Presentation,
Keefe, Bruyette & Woods, Inc., KBW Mortgage Matters: Mortgage
Servicing Primer, 3 (April 17, 2012).
\11\ See, e.g., Thompson, 86 Wash. L. Rev. 755, 767.
\12\ Why Servicers Foreclose When They Should Modify and Other
Puzzles of Servicer Behavior, NCLC p.v (October 2009), (``Servicers,
unlike investors or homeowners, do not generally lose money on
foreclosure. Servicers may even make money on a foreclosure.''),
Diane Thompson, The Need for National Mortgage Servicing Standards
(May 12, 2011), at 15 (``* * * modification will also likely reduce
future income, cost more in the present in staffing, and delay
recovery of expenses. Moreover, the foreclosure process itself
generates significant income for servicers.'')
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These attributes of the servicing market created problems for
certain borrowers even prior to the national mortgage crisis. For
example, borrowers experienced problems with mortgage servicers even
during regional mortgage market downturns that preceded the mortgage
crisis.\13\ Borrowers were subjected to improper fees that servicers
had no reasonable basis to impose on borrowers, improper force-placed
insurance practices, and improper foreclosure and bankruptcy
practices.\14\
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\13\ See Problems in Mortgage Servicing from Modification to
Foreclosure: Hearings Before the Comm. on Banking, Housing and Urban
Affairs, S. Hrg. 111-987, 111th Cong. 53-54 (2010) (statement of
Thomas J. Miller, Iowa Attorney General) (Miller Testimony). See
also, Kurt Eggert, Limiting Abuse and Opportunism by Mortgage
Servicers 15:3 Housing Policy Debate (2004), available at http://ssrn.com/abstract=992095.
\14\ See Kurt Eggert, Limiting Abuse and Opportunism by Mortgage
Servicers 15:3 Housing Policy Debate (2004), available at http://ssrn.com/abstract=992095 (collecting cases).
---------------------------------------------------------------------------

When the mortgage crisis erupted, many servicers were ill-equipped
to handle the high volumes of delinquent mortgages, loan modification
requests, and foreclosures they were required to process. These
servicers lacked the infrastructure, trained staff, controls, and
procedures needed to manage effectively the flood of delinquent
mortgages they were forced to handle. Consumer harm has manifested in
many different areas, and major servicers have entered into significant
settlement agreements with Federal and State governmental authorities.
For example, in April 2011, the Office of the Comptroller of the
Currency (OCC) and the Federal Reserve Board (the Board) undertook
formal enforcement actions against several major servicers for unsafe
and unsound residential mortgage loan servicing practices.\15\

[[Page 57322]]

These enforcement actions generally focused on practices relating to
(1) filing of foreclosure documents without, for example, proper
affidavits or notarizations; (2) failing to always ensure that loan
documents were properly endorsed or assigned and, if necessary, in the
possession of the appropriate party at the appropriate time; (3)
failing to devote sufficient financial, staffing, and managerial
resources to ensure proper administration of foreclosure processes; (4)
failing to devote adequate oversight, internal controls, policies and
procedures, compliance risk management, internal audit, third party
management, and training to foreclosure processes; and (5) failing to
sufficiently oversee outside counsel and other third-party providers
handling foreclosure-related services.\16\ Congress has held
significant detailed hearings on the issue of servicer ``robo-signing''
of foreclosure related documentation.\17\
---------------------------------------------------------------------------

\15\ OCC Press Release, OCC Takes Enforcement Action Against
Eight Servicers for Unsafe and Unsound Foreclosure Practices (April
13, 2011), available at http://www.occ.treas.gov/news-issuances/news-releases/2011/nr-occ-2011-47.html, and Federal Reserve Board
Press Release, Federal Reserve Issues Enforcement Actions Related to
Deficient Practices in Residential Mortgage Loan Servicing (April
13, 2011), available at http://www.federalreserve.gov/newsevents/press/enforcement/20110413a.htm, and accompanying documents. In
addition to enforcement actions against major servicers, Federal
agencies have also undertaken formal enforcement actions against
major service providers to mortgage servicers. See id.
\16\ See id. None of the servicers admitted or denied the OCC's
or Federal Reserve Board's findings.
\17\ See, e.g., Problems in Mortgage Servicing from Modification
to Foreclosure: Hearings Before the Comm. on Banking, Housing and
Urban Affairs, S. Hrg. 111-987, 111th Cong. 53-54 (2010) (statement
of Diane E. Thompson, NCLC) (Thompson Testimony).
---------------------------------------------------------------------------

Servicers have also misled, or failed to communicate with,
borrowers, lost or mishandled borrower-provided documents supporting
loan modification requests, and generally provided inadequate service
to delinquent borrowers. These problems became pervasive in broad
segments of the mortgage servicing industry and had profound impacts on
borrowers, particularly delinquent borrowers.\18\
---------------------------------------------------------------------------

\18\ See U.S. Government Accountability Office, Troubled Asset
Relief Program: Further Actions Needed to Fully and Equitably
Implement Foreclosure Mitigation Actions, at 14-16 (June 2010);
Miller Testimony at 54.
---------------------------------------------------------------------------

The Bureau further understands from mortgage investors that there
is a pervasive belief that servicers are making discretionary decisions
based on the best interests of the servicer rather than to achieve
results that will benefit owners or assignees of mortgages loans. When
servicers hold a second lien that is behind a first lien owned by a
different owner or assignee, one study has found a lower likelihood of
liquidation and modification, and a higher likelihood of inaction by a
servicer.\19\ Specifically, ``liquidation and modification of
securitized first mortgages are 60% [to] 70% less likely respectively
and no action is 13% more likely when the servicer of that securitized
first mortgage holds on its portfolio the second lien attached to the
first mortgage.'' \20\ These failures to take actions that may benefit
both consumers and owners or assignees of first lien mortgage loans
harm consumers.
---------------------------------------------------------------------------

\19\ Sumit Agarwal et. Al, Second Liens and the Holdup Problem
in First Mortgage Renegotiation (December 2011), available at http://ssrn.com/abstract=2022501.
\20\ Id.
---------------------------------------------------------------------------

The mortgage servicing industry, however, is not monolithic. Some
servicers provide high levels of customer service. Some of these
servicers may be compensated by investors in a way that incentivizes
them to provide high levels of customer service in order to optimize
investor outcomes. Other servicers provide high levels of customer
service because they rely on providing other products and services to
consumers and thus have an interest in preserving their reputations and
relationships with their consumers. For example, as discussed further
below, small servicers that the Bureau consulted as part of a process
required under SBREFA described their businesses as requiring a ``high
touch'' model of customer service both to ensure loan performance and
maintain a strong reputation in their local communities.\21\
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\21\ See U.S. Consumer Fin. Prot., Bureau, Final Report of the
Small Business Review Panel on CFPB's Proposals Under Consideration
for Mortgage Servicing Rulemaking (June 11, 2012) (``SBREFA Final
Report''), available at: http://www.consumerfinance.gov.
---------------------------------------------------------------------------

B. Mortgage Servicing Consumer Protection Regulation Before the Recent
Crisis

Prior to the adoption of the Dodd-Frank Act, the mortgage servicing
industry was subject to limited Federal consumer financial protection
regulation. RESPA set forth basic protections with respect to mortgage
servicing that were implemented by the U.S. Department of Housing and
Urban Development (HUD). These included required disclosures at
application concerning whether the lender intended to service the
mortgage loan and disclosures upon an actual transfer of servicing
rights.\22\ RESPA further imposed substantive and disclosure
requirements for escrow account management and required servicers to
respond to ``qualified written requests''--written error resolution or
information requests relating to a restricted definition of the
``servicing'' of the borrower's mortgage loan.\23\
---------------------------------------------------------------------------

\22\ See 12 U.S.C. 2605(a)-(e).
\23\ See 12 U.S.C. 2605(e) and 2609.
---------------------------------------------------------------------------

TILA set forth requirements on creditors that were implemented by
servicers, including disclosures regarding interest rate adjustments on
adjustable rate mortgage loans. Regulation Z, which implements TILA,
was amended by the Board to include certain limited requirements
directly on servicers, such as requirements to timely credit payments,
provide payoff balances and prohibit pyramiding of late fees.\24\
Servicers also had some obligations under other Federal laws,
including, for example, the Servicemembers Civil Relief Act.\25\
---------------------------------------------------------------------------

\24\ See 12 CFR 1026.36(c).
\25\ See 50 U.S.C. App. 501 et seq.
---------------------------------------------------------------------------

Although TILA and RESPA did not impose many requirements on
servicers, servicers were still required to navigate overlapping
requirements governing their servicing responsibilities. In addition to
Federal law, servicers were required to consider the impact of State
and even local regulation on mortgage servicing. Servicers also had to
comply with investor requirements to the extent they serviced loans
owned or guaranteed by various types of entities. These include (1)
servicing guidelines required by Federal National Mortgage Association
(Fannie Mae) and the Federal Home Loan Mortgage Corporation (Freddie
Mac), together known as the government-sponsored enterprises (GSEs), as
well as servicing guidelines required by the Government National
Mortgage Association (Ginnie Mae); (2) government insured program
guidelines issued by the Federal Housing Administration (FHA),
Department of Veterans Affairs (VA), and the Rural Housing Service; (3)
contractual agreements with investors (such as pooling and servicing
agreements and subservicing contracts); and (4) bank or institution
policies. All those requirements remain in effect today and going
forward.

C. The National Mortgage Settlement and Other Regulatory Actions

In response to the unprecedented mortgage crisis and pervasive
problems in mortgage servicing, including the systemic violation of
State foreclosure laws by many of the largest servicers, State and
Federal regulators have engaged in a number of individual servicing
related enforcement and regulatory actions over the last few years and
have begun discussions about comprehensive national standards.

[[Page 57323]]

For example, 49 State attorneys general,\26\ joined by numerous
Federal agencies including the Bureau, entered into a National Mortgage
Settlement (National Mortgage Settlement) with the nation's five
largest servicers in February 2012.\27\ The National Mortgage
Settlement applies to loans held in portfolio and serviced by the five
largest servicers. Loans owned by GSEs, private investors, or smaller
servicers are not covered by the settlement.
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\26\ Oklahoma elected not to join the settlement.
\27\ The National Mortgage Settlement is available at http://www.nationalmortgagesettlement.com/. The five servicers subject to
the settlement are Bank of America, JP Morgan Chase, Wells Fargo,
CitiMortgage, and Ally/GMAC.
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Exhibit A to each of the settlements is a Settlement Term Sheet,
which sets forth standards that each of the five largest servicers must
follow to comply with the terms of the settlement.\28\ The settlement
standards contained in the Settlement Term Sheet are sub-divided into
the following eight categories: (1) Foreclosure and bankruptcy
information and documentation; (2) third-party provider oversight; (3)
bankruptcy; (4) loss mitigation; (5) protections for military
personnel; (6) restrictions on servicing fees; (7) force-placed
insurance; and (8) general servicer duties and prohibitions.
---------------------------------------------------------------------------

\28\ See http://www.nationalmortgagesettlement.com/.
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In addition to the settlement, other Federal regulatory agencies
have issued guidance on mortgage servicing and loan modifications,\29\
conducted coordinated reviews of the nation's largest servicers,\30\
and taken enforcement actions against individual companies.\31\ The
Bureau and other Federal agencies have also engaged since spring 2011
in informal discussions about the potential development of national
mortgage servicing standards through regulations and guidance.
---------------------------------------------------------------------------

\29\ Office of the Comptroller of the Currency, Bulletin 2011-29
(June 30, 2011), available at: http://www.occ.gov/news-issuances/bulletins/2011/bulletin-2011-29.html; Letter from Edward J. DeMarco,
Acting Director of FHFA, to Hon. Elijah E. Cummings, Ranking Member,
Committee on Oversight and Government Reform, U.S. House of
Representatives (Jan. 20, 2012), available at http://www.fhfa.gov/webfiles/23056/PrincipalForgivenessltr12312.pdf; Guidance, Home
Affordable Modification Program, available at: https://www.hmpadmin.com/portal/programs/guidance.jsp. FHFA, Frequently
Asked Questions--Servicing Alignment Initiative, available at:
http://www.fhfa.gov/webfiles/21191/FAQs42811Final.pdf.
\30\ See Interagency Foreclosure Report, a joint review of
foreclosure processing of 14 federally regulated mortgage servicers
during the fourth quarter of 2010 by the Federal Reserve System,
Office of the Comptroller of the Currency, and Office of Thrift
Supervision.
\31\ See Interagency Foreclosure Report at 5; Federal Reserve
Board, Press Release (May 24, 2012), available at: http://www.federalreserve.gov/newsevents/press/enforcement/20120524a.htm;
Federal Reserve Board, Press Release (February 27, 2012), available
at: http://www.federalreserve.gov/newsevents/press/enforcement/20120227a.htm; Office of the Comptroller of the Currency, News
Release 2011-47 (April 13, 2011), available at: http://www.occ.gov/news-issuances/news-releases/2011/nr-occ-2011-47.html.
---------------------------------------------------------------------------

The Bureau's proposed rules under Regulation Z and X represent
another important step towards establishing uniform minimum national
standards. When adopted in final form, the Bureau's rules will apply to
all mortgage servicers, whether depository institutions or non-
depository institutions, and to all segments of the mortgage market,
regardless of the ownership of the loan. The proposals focus both on
implementing the specific mortgage servicing requirements of the Dodd-
Frank Act and on addressing broader systemic problems that the Bureau
believes are critical to ensure that the mortgage servicing market
functions to serve consumer needs. To that end, the proposed TILA and
RESPA mortgage servicing rules incorporate elements from four
categories of the National Mortgage Settlement--(1) Foreclosure and
bankruptcy information and documentation, (4) loss mitigation, (6)
restrictions on servicing fees, and (7) force-placed insurance. In
addition, the proposed requirement to maintain reasonable information
management policies and procedures addresses oversight of service
providers, which impacts category (2) of the settlement.
The Bureau continues to consider whether to incorporate other
settlement standards into rules or guidance, either alone or in
conjunction with other Federal regulatory agencies; certain requests
for comment in this proposal reflect these considerations. The Bureau
is also continuing ongoing discussions with other regulators to ensure
appropriate coordination of rulemaking and other initiatives relating
to mortgage servicing issues.

D. The Statutory Requirements and Additional Proposals

The Dodd-Frank Act mandates several protections for homeowners in
the servicing of their loans. The Act requires new disclosures,
specifically periodic statements (unless coupon books are provided in
certain circumstances), notices prior to the reset of adjustable-rate
mortgages, and force-placed insurance notices. These disclosures are
designed to provide consumers with comprehensive and comprehensible
information when they need it and in a form they can use, so they can
better manage their obligations and avoid unnecessary problems.
The Dodd-Frank Act also imposes new requirements on servicers to
respond in a timely way to borrowers who assert that their servicer
made an error. The statute also requires servicers to respond in a
timely way to borrower requests for information.
The Dodd-Frank Act contains requirements relating to the prompt
crediting of payments, so that consumers are not wrongly penalized with
late fees or other fees because servicers did not credit their payments
quickly. The statute also requires servicers to provide timely
responses to consumer requests for payoff amounts, so consumers can get
this information when they need it, such as when refinancing.
The Bureau is proposing additional standards to improve the way
servicers treat all borrowers, including delinquent borrowers. Some
servicers have made it very difficult for delinquent borrowers to
explore and take advantage of potential alternatives to foreclosure.
For example, servicers have frequently neglected to reach out or
respond to such borrowers to discuss alternatives to foreclosure, lost
or misplaced the documents of borrowers who have sought modifications
or other relief, failed to keep track of borrower communications, and
forced borrowers who have invested substantial time communicating with
an employee of the servicer to repeat the process with a different
employee.\32\
---------------------------------------------------------------------------

\32\ See, e.g., Larry Cordell et al., The Incentives of Mortgage
Servicers: Myths and Realities, at 9 (Federal Reserve Board, Working
Paper No. 2008-46, Sept. 2008).
---------------------------------------------------------------------------

To address these concerns, the Bureau is proposing new servicing
standards in four areas. First, servicers would have to establish and
maintain reasonable information management policies and procedures.
These policies and procedures would have to be reasonably designed to
achieve certain objectives and address certain obligations, including
accessing and providing accurate information, evaluating borrowers for
loss mitigation options, facilitating oversight of, and compliance by,
service providers, and facilitating servicing transfers.
Second, servicers would have to intervene early with delinquent
borrowers to provide them with information about, and encourage them to
explore, available alternatives to foreclosure.
Third, servicers would have to provide delinquent borrowers with a
point of contact that provides continuity

[[Page 57324]]

in the borrowers' dealings with the servicer. At such point of contact,
staff must have access to complete records about that borrower,
including records of prior communications with the borrower, and be
able to assist the borrower in pursuing loss mitigation options.
Fourth, servicers that offer loss mitigation options in the
ordinary course of business would be required to follow certain
procedures to ensure that borrowers' completed loss mitigation
applications are evaluated in a timely manner, that borrowers are
notified of the results, and that borrowers have a right to appeal the
denial of a loan modification option. Servicers would also be required
to provide borrowers who submit incomplete loss mitigation applications
with timely notice about the additional documents or information needed
to make a loss mitigation application complete.
The Bureau recognizes that a one-size-fits-all approach may not be
optimal with regard to either the mandated or additional requirements.
As discussed below, the Bureau seeks comment on to what extent it may
be appropriate to adjust these standards for small servicers.

III. Summary of Statute and Rulemaking Process

A. Overview of the Statute

The Dodd-Frank Act imposes certain new requirements related to
mortgage servicing. Some of these new requirements are amendments to
TILA addressed in this proposal and others are amendments to RESPA,
addressed in the 2012 RESPA Servicing Proposal.
TILA amendments. There are three new mortgage servicing
requirements under TILA. First, for closed-end credit transactions
secured by a consumer's principal residence, section 1418 of the Dodd-
Frank Act adds a new section 128A to TILA. TILA section 128A states
that, for hybrid ARMs with a fixed interest rate for an introductory
period that adjusts or resets to a variable interest rate at the end of
such period, a notice must be provided six months prior to the initial
adjustment of the interest rate for closed-end credit transactions
secured by a consumer's principal residence. Section 1418 of the Dodd-
Frank Act permits the Bureau to extend this requirement to ARMs that
are not hybrid ARMs.
Second, section 1420 of the Dodd-Frank Act, which adds section
128(f) to TILA, requires the creditor, assignee, or servicer of any
residential mortgage loan to transmit to the borrower, for each billing
cycle, a periodic statement that sets forth certain specified
information in a conspicuous and prominent manner. The statute also
gives the Bureau the authority to require additional content to be
included in the periodic statement. The statute provides an exception
to the periodic statement requirement for fixed-rate loans where the
borrower is given a coupon book containing substantially the same
information as the statement.
Third, section 1464 of the Dodd-Frank Act adds sections 129F and
129G to TILA, which generally codify existing Regulation Z requirements
for the prompt crediting of mortgage payments received by servicers in
connection with consumer credit transactions secured by a consumer's
dwelling. The statute also generally codifies the Regulation Z
requirement on accurate and timely responses to borrower requests for
payoff amounts.
RESPA amendments. Section 1463 of the Dodd-Frank Act imposes a
number of new servicing related requirements under RESPA that broadly
relate to force-placed insurance and error resolution/responses to
requests for information. First, the statute prohibits a servicer from
obtaining force-placed hazard insurance, unless there is a reasonable
basis to believe the borrower has failed to comply with the loan
contract's requirement to maintain property insurance. A servicer may
not impose any charge on any borrower for force-placed insurance with
respect to any property secured by a federally related mortgage, unless
the servicer sends, by first-class mail, two written notices to the
borrower, at least 30 days apart. The notices must remind borrowers of
their obligation to maintain hazard insurance on the property, alert
borrowers to the servicer's lack of evidence of insurance coverage,
tell borrowers what they must do to demonstrate that they have
coverage, and state that the servicer may obtain coverage at the
borrower's expense if the borrower fails to provide evidence of
coverage. Servicers must terminate force-placed insurance coverage and
refund to borrowers any premiums charged during any period when the
borrower had private insurance coverage. The statute also provides that
all charges imposed on the borrower related to force-placed insurance,
apart from charges subject to State regulation as the business of
insurance, must be bona fide and reasonable.
Second, the statute prohibits certain acts and practices by
servicers of federally related mortgages with regard to resolving
errors and responding to requests for information. Specifically, the
statute prohibits servicers of federally related mortgages from
charging fees for responding to valid qualified written requests. The
statute also provides that a servicer of a federally related mortgage
must not fail to take timely action to respond to a borrower's requests
to correct errors relating to: Allocation of payments, final balances
for purposes of paying off the loan, avoiding foreclosure, or other
standard servicer duties.
Finally, the statue requires a servicer of a federally related
mortgage to respond within ten business days to a request from a
borrower to provide the identity, address, and other relevant contact
information about the owner or assignee of the loan. The statue also
reduces the amount of time that servicers of federally related
mortgages have to correct errors and respond to inquiries generally, as
well as refund escrow accounts upon payoff.\33\
---------------------------------------------------------------------------

\33\ Other changes in section 1463 of the Dodd-Frank Act relate
to increases in penalties for violations. These provisions are not
addressed in this rulemaking.
---------------------------------------------------------------------------

In addition, the statute provides that a servicer of a federally
related mortgage must ``comply with any other obligation found by the
Consumer Financial Protection Bureau, by regulation, to be appropriate
to carry out the consumer protection purposes of this Act.'' \34\ This
provision gives the Bureau broad authority to adopt additional
regulations to govern the conduct of servicers of federally related
mortgage loans. In light of the systemic problems in the mortgage
servicing industry, the Bureau is proposing to exercise this authority
to require servicers of federally related mortgages to: Establish
reasonable information management policies and procedures; undertake
early intervention with delinquent borrowers; provide delinquent
borrowers with continuity of contact with staff equipped to assist
them; and require servicers that offer loss mitigation options in the
ordinary course of business to follow certain procedures when
evaluating loss mitigation applications.
---------------------------------------------------------------------------

\34\ 12 U.S.C. 2605(k)(1)(E).
---------------------------------------------------------------------------

The statute also requires a creditor or servicer to send accurate
and timely responses to borrower requests for payoff amounts for home
loans.
The statutory provisions with enumerated mortgage servicing
requirements become effective on January 21, 2013, unless final rules
are issued on or before that date.

B. Outreach and Consumer Testing

The Bureau has conducted extensive outreach in developing the
mortgage servicing proposals. Bureau staff met

[[Page 57325]]

with mortgage servicers, force-placed insurance carriers, industry
trade associations, consumer advocates, other Federal regulatory
agencies, and other interested parties to discuss various aspects of
the statute and the servicing industry.
In preparing this proposed rule, the Bureau solicited input from
small servicers through a Small Business Review Panel (SBREFA 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).\35\ The Small Business Review Panel's findings and
recommendations are contained in the Final Report of the Small Business
Review Panel on CFPB's Proposals Under Consideration for Mortgage
Servicing Rulemaking (SBREFA Final Report).\36\
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\35\ 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)).
\36\ See SBREFA Final Report, supra note 22.
---------------------------------------------------------------------------

The Bureau also engaged in other meetings and roundtables with a
variety of other stakeholders to gather factual information about the
servicing industry and to discuss various elements of the Bureau's
proposals as they were being developed. As discussed above and in
connection with section 1022 of the Dodd-Frank Act below, the Bureau
has also consulted with relevant Federal regulators both regarding the
Bureau's specific proposals and the need for and potential contents of
national mortgage servicing standards in general. As it considers
public comment and works to develop final rules on mortgage servicing,
the Bureau will continue to seek input from all interested parties.
In addition, the Bureau engaged ICF Macro (Macro), a research and
consulting firm that specializes in designing disclosures and consumer
testing, to conduct one-on-one cognitive interviews regarding
disclosures connected with mortgage servicing. During the first quarter
of 2012, the Bureau and Macro worked closely to develop and test
disclosures that would satisfy the requirements of the Dodd-Frank Act
and provide information to consumers in a manner that would be
understandable and useful. These disclosures related to the ARM
notices, the force-placed insurance notices, and the periodic
statements. Macro conducted three rounds of one-on-one cognitive
interviews with a total of 31 participants in the Baltimore, Maryland
metro area (Towson, Maryland), Memphis, Tennessee, and Los Angeles,
California. Participants were all consumers who held a mortgage loan
and represented a range of ages and education levels. Efforts were made
to recruit a significant number of participants who had trouble making
mortgage payments in the last two years. During the interviews,
participants were shown disclosure forms for periodic statements, ARM
interest rate adjustment notices for the new disclosures required by
Dodd-Frank Act section 1418, and force-placed insurance notices.
Participants were asked specific questions to test their understanding
of the information presented in each of the disclosures, how easily
they could find various pieces of information presented in each of the
disclosures, as well as to learn about how they would use the
information presented in each of the disclosures. The disclosures were
revised after each round of testing. Specific findings from the
consumer testing are discussed in detail throughout the SUPPLEMENTARY
INFORMATION where relevant.\37\
---------------------------------------------------------------------------

\37\ ICF Macro International, Inc., Summary of Findings: Design
and Testing of Mortgage Servicing Disclosures (Aug. 2012), available
at: http://www.consumerfinance.gov/notice-and-comment/ (report on
consumer testing submitted to the U.S. Consumer Fin. Prot. Bureau).
---------------------------------------------------------------------------

C. Other Dodd-Frank Act Mortgage-Related Rulemakings

Including this proposal, the Bureau currently is engaged in seven
rulemakings relating to mortgage credit to implement requirements of
the Dodd-Frank Act:
TILA-RESPA Integration: On July 9, 2012, the Bureau
released proposed rules and forms combining the TILA mortgage loan
disclosures with the Good Faith Estimate (GFE) and settlement statement
required under RESPA, pursuant to DFA section 1032(f) as well as
sections 4(a) of RESPA and 105(b) of TILA, as amended by DFA sections
1098 and 1100A, respectively. 12 U.S.C. 2603(a); 15 U.S.C. 1604(b) (the
2012 TILA-RESPA Proposal).\38\
---------------------------------------------------------------------------

\38\ Available at http://www.consumerfinance.gov/notice-and-comment/.
---------------------------------------------------------------------------

HOEPA: On July 9, 2012, the Bureau released proposed rules
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 DFA sections 1431 through 1433. 15
U.S.C. 1602(bb) and 1639.\39\ Such loans have requirements on servicers
related to payoff statements, late fees, prepayment penalties, and fees
for loan modifications or deferrals.
---------------------------------------------------------------------------

\39\ Id.
---------------------------------------------------------------------------

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 DFA sections 1402
through 1405. 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 DFA 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 DFA 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. 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 (ATR 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

[[Page 57326]]

other provisions, pursuant to TILA section 129D as established by Dodd-
Frank Act sections 1461 and 1462. 15 U.S.C. 1639d.
With the exception of the requirements being implemented in the
2012 TILA-RESPA Proposal, 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. Therefore, the Bureau
is providing 60 days for comment on those proposals, which will ensure
that the Bureau receives comments with sufficient time remaining to
issue final rules by January 21, 2013. 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 a proposed approach 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.

D. Small Servicers

The small entity representatives (SERs) who provided feedback to
the SBREFA panel generally emphasized that their business models
required a ``high touch'' approach to customer service and that they
did not engage in many of the practices that contributed to the
mortgage market process. The SERs indicated that they take a proactive
approach to providing consumer information, resolving errors and
working with delinquent borrowers to find alternatives to foreclosure.
Nevertheless, they indicated that some elements of the proposals under
consideration were not consistent with their current business practices
and expressed concern about the need to begin providing extensive
documentation to prove compliance with the proposed standards. The SERs
urged the Bureau to adopt standards that would allow small servicers to
stay in the market and provide choices to consumers with the new
compliance burdens.\40\ The SERs were particularly concerned about the
costs and burdens of complying with the periodic statement
requirements, as well as certain aspects of the process for resolving
errors and responding to inquiries.\41\
---------------------------------------------------------------------------

\40\ SBREFA Final Report, supra note 22, at 16, 21.
\41\ SBREFA Final Report, supra note 22, at 16-19, 21, and 23-
24.
---------------------------------------------------------------------------

Informed by this process, the Bureau is proposing to exempt certain
small servicers from the periodic statement requirement. The Bureau is
also proposing that certain requirements, such as the requirement to
maintain reasonable information management policies and procedures
under Regulation X, should be applied in light of the scale of the
servicer's operations as well as other contextual factors. The Bureau
does not believe that these provisions, described more fully below in
the section-by-section analysis of the applicable proposal, would
impair consumer protection. The Bureau is also seeking comment more
broadly on whether other exemptions or adjustments for small servicers
would be warranted to reduce regulatory burden while appropriately
balancing consumer protections.

E. Request for Comment on Effective Date

The Bureau specifically requests comment on the appropriate
effective date for each of the servicing-related rules contained in
this proposal and the 2012 RESPA Servicing Proposal. As discussed
above, the Dodd-Frank Act servicing requirements take effect
automatically on January 21, 2013, unless final rules are issued on or
before that date.\42\ Where rules are required to be issued, the Dodd-
Frank Act permits the Bureau to provide up to 12 months for
implementation. For all other rules, the implementation period is left
to the discretion of the Bureau.
---------------------------------------------------------------------------

\42\ Public Law 111-203, 124 Stat. 1376, section 1400(c) (2010).
---------------------------------------------------------------------------

Given the significant consumer benefits offered by the proposals
and the challenges faced by delinquent borrowers in dealing with their
servicers, the Bureau generally believes that the final rules should be
made effective as soon as possible. However, the Bureau understands
that various elements of the final rules would require servicers to
adopt or revise existing software to generate compliant disclosures,
retrain staff, assess and revise policies and procedures, and/or take
other implementation measures. The Bureau therefore seeks detailed
comment on the nature and length of implementation process for each
individual servicing rule and in light of interactions between the
rules. The Bureau is particularly interested in analyzing the impacts
on both consumers and servicers of a staggered implementation sequence
as compared to imposing a single date by which all rules must be
implemented.
The Bureau also notes that some companies may also need to
implement other new requirements under other parts of the Dodd-Frank
Act, as described above. The Bureau believes based on conversations and
analysis to date that there is more overlap and interaction among the
various proposals relating to mortgage origination than there is
between the servicing proposals and the origination proposals. However,
the Bureau seeks comment specifically on this issue and on whether the
general cumulative burden on entities that are subject to both sets of
rules will complicate implementation.
Finally, the Bureau seeks comment on any particular implementation
challenges faced by small servicers, and on whether an extended
implementation period would be

[[Page 57327]]

appropriate or useful. For instance, to the extent that small servicers
rely heavily on outside software vendors, the Bureau seeks comment on
whether a delayed effective date would provide significant relief if
the vendors will have to develop software solutions for larger
servicers on a shorter timeline anyway. The Bureau also seeks comment
on the impacts of delayed implementation on consumers and on other
market participants.

IV. Discussion of Major Proposed Revisions

The proposed amendments to Regulation Z implement sections 1418
(initial ARM interest rate adjustment notice), 1420 (periodic
statements) and 1464 (prompt crediting and provision of payoff
statements) of the Dodd-Frank Act, which in turn amend TILA. The
amendment also proposes to revise current Regulation Z ARM disclosure
rules for consistency with DFA section 1418. The proposed revision
eliminates the ARM interest rate adjustment notice required at least
once each year during which an interest rate adjustment is implemented
without resulting in a corresponding payment change.

A. Current and Proposed Interest Rate Adjustment Disclosures

To implement DFA section 1418, the Bureau is proposing to revise
Sec. 1026.20(d) to require that creditors, assignees, or servicers
provide notices to consumers six to seven months prior to the first
time the interest rate of their adjustable-rate mortgages adjusts. In
contrast to this one-time disclosure, Regulation Z currently requires
notice to consumers regarding each adjustment of their adjustable-rate
mortgages.
Under current rule Sec. 1026.20(c), creditors must provide
consumers with a notice of interest rate adjustment for variable-rate
transactions subject to Sec. 1026.19(b) at least 25, but no more than
120, calendar days before a payment at a new level is due. For the
reasons discussed below, the Bureau is proposing in Sec. 1026.20(c),
among other things, to change the minimum time for providing advance
notice to consumers from 25 days to 60 days before payment at a new
level is due. The maximum time for advance notice would remain the
same: 120 days prior to the due date of the first payment at a new
level.
Current Sec. 1026.20(c) also requires creditors to provide
consumers with an adjustment notice at least once each year during
which an interest rate adjustment is implemented without resulting in a
corresponding payment change. The Bureau is proposing to eliminate this
provision. As explained in more detail below in the section-by-section
analysis, the Bureau believes that certain Dodd-Frank Act amendments to
TILA and the Bureau's proposed amendments that would implement those
provisions provide consumers with much of the information contained in
the annual notice, thereby greatly minimizing its value for consumers.
In the interest of harmonizing the two proposed ARM disclosures,
the coverage, content, and format of proposed Sec. 1026.20(c) and (d)
closely track one another and incorporate most of the content currently
required by Sec. 1026.20(c).
Historic context of Sec. 1026.20(c) rate adjustment disclosures.
The Board adopted the rule that is current Sec. 1026.20(c) in 1987, as
part of a larger revision of Regulation Z.\43\ In 2009, the Board
proposed to revise regulations governing ARM disclosures as part of a
larger revision of closed-end provisions in Regulation Z (2009 Closed-
End Proposal). In that proposal, the Board said that, in 1987, it set
the minimum time for providing notice of a rate adjustment at 25 days
before payment at new level is due in order to track the rules of the
OCC and to provide creditors with flexibility in giving adjustment
notices for a variety of ARMs.\44\ It also noted that, as of 2009,
neither the OCC nor any other Federal financial institution supervisory
agency had any comprehensive disclosure requirements for ARMs.\45\
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\43\ 52 FR 48665 (Dec. 24, 1987).
\44\ 74 FR 43232, 43269 (Aug. 26, 2009) (citing 52 FR 48665,
48668 (Dec. 24, 1987)).
\45\ Id. at 43272.
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Since 1987, the popularity of ARMs has increased, especially during
the period from 2002 to 2007.\46\ Beginning in 2007, ARM growth began
to slow as consumers experienced difficulty repaying such loans and
concerns grew about the risk of payment shock that ARMs pose.\47\
According to Freddie Mac, ``[i]n June 2004, ARMs hit a peak share of
40% of the home-purchase market but by early 2009, that share had
fallen to just 3%, according to the Federal Housing Finance Agency.''
\48\ Generally, ARMs are financing just over 10% of new home-purchase
loans but are expected to rise to a 14% share of that market in
2012.\49\
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\46\ Id. at 43269.
\47\ Id.
\48\ Press Release, Freddie Mac, Freddie Mac Releases 28th
Annual ARM Survey Results (January 18, 2012), available at: http://freddiemac.mediaroom.com/index.php?s=12329&item=109996.
\49\ Id.
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For many consumers, the current era of declining interest rates has
reduced the incidence of the significant payment increases that can
accompany ARM interest rate adjustments. Anecdotal evidence from
mortgage servicers with which the Bureau has conducted outreach
supports this conclusion. To the extent interest rates rise in the
future, ARM interest rate adjustments may result in significant payment
increases for many consumers. The popularity of adjustable-rate
mortgages, which provide the opportunity for reduced interest rates,
also may increase along with the advent of higher interest rates.
Regardless of current market conditions, ARMs can pose a risk of
payment shock. Therefore, it is critical that consumers receive advance
notice of ARM payment changes so that, if their rates increase, they
can prepare to make higher mortgage payments or pursue alternative
plans, such as seeking to refinance their loans.
Timing of current and proposed ARM regulations. DFA section 1418
requires that interest rate adjustment disclosures be provided to
consumers six to seven months before the interest rate adjusts for the
first time (which is equivalent to 210 to 240 days before payment at a
new level is due). Generally, this much advance notice will require
disclosure of an estimated new interest rate and payment instead of
exact amounts. This is because ARM contracts generally require an index
value published closer to the adjustment date to calculate the adjusted
interest rate and new payment. Nevertheless, the consumer would be put
on notice of upcoming changes and would have ample time to refinance or
pursue other alternatives if the estimate indicates a potential
increase in payments that the consumer cannot afford.
Current Sec. 1026.20(c) requires notice of rate adjustments
resulting in a corresponding payment change at least 25 days prior to
when payment at a new level is due. This notice, unlike the one
required under DFA section 1418, provides the actual, not estimated,
new interest rate and payment. Twenty-five days likely does not provide
sufficient time for consumers to refinance, pursue other alternatives,
or adjust their finances to make higher payments. Research conducted
for the years 2004 through 2007 also suggested that a requirement to
provide ARM adjustment disclosures 60, rather than 25, days before
payment at a new level is due more closely reflects the time needed for

[[Page 57328]]

consumers to refinance a loan.\50\ In the current market, the nation's
biggest mortgage lenders take an average of more than 70 days to
complete a refinance.\51\
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\50\ Robert B. Avery, Kenneth P. Brevoort, & Glenn B. Canner,
The 2007 HMDA Data, 94 Fed. Reserve Bull. A107 (Dec. 23, 2008).
\51\ Nick Timiraos & Ruth Simon, Borrowers Face Big Delays in
Refinancing Mortgages, Wall St. J., May 9, 2012, at A1, available
at: http://online.wsj.com/article/SB10001424052702303459004577364102737025584.html.
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For these reasons, proposed Sec. 1026.20(c) revises the time frame
for providing the ARM adjustment notice from the current 25 to 120 days
to 60 to 120 days before payment at a new level is due. Under the
proposed rule, consumers will know the actual amount of their new
interest rate and payment at least 60 days before the new payment is
due. Most existing ARMs will be able to comply with this proposed
timing. The Bureau proposes grandfathering existing ARMs that
contractually will not be able to comply with the new timing, i.e.,
those with look-back periods of less than 45 days. See section-by-
section analysis for proposed Sec. 1026.20(c) for a full discussion of
timing and look-back periods.
Content of current and proposed ARM regulations. The Bureau is
generally proposing to retain the content required by current Sec.
1026.20(c). Proposed Sec. 1026.20(c) would require additional
information such as a statement that the consumer's interest rate is
scheduled to adjust, the adjustment may change the mortgage payment,
the time period the current interest rate has been in effect, and the
dates of the future rate adjustments; the date when the new payment is
due after the adjustment; any interest rate or payment limits; any
unapplied carryover interest and the earliest date it could be applied;
additional amortization information for negatively-amortizing and
interest-only loans; and the amount and expiration date of any
prepayment penalty. Much of this additional content was proposed by the
Board's 2009 Closed-End Proposal to amend Regulation Z's payment change
interest rate adjustment disclosures.\52\
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\52\ 74 FR 43232, 43269-73 (Aug. 26, 2009).
---------------------------------------------------------------------------

The initial interest rate adjustment notices proposed by Sec.
1026.20(d) include much of the same information listed above for
proposed Sec. 1026.20(c). The content of the two proposed notices in
Sec. 1026.20(c) and (d) closely track one another in order to promote
consistency and simplify compliance. However, proposed Sec.
1026.20(c), which applies to the ongoing disclosures at each interest
rate adjustment that results in a corresponding payment change, would
not require some of the disclosures mandated for the initial interest
rate adjustment notices by DFA section 1418. These disclosures include
a list of alternatives consumers may pursue, including refinancing,
renegotiation of loan terms, payment forbearance, and pre-foreclosure
sales; contact information for the appropriate State housing finance
agency; and information on how to access a list of government-certified
counseling agencies and programs. The Bureau believes it is not
necessary to provide this information in Sec. 1026.20(c) notices
because much of it will be provided to consumers through other mortgage
servicing measures implemented by the Dodd-Frank Act. For example, new
TILA section 128(f), which would be implemented by proposed rule Sec.
1026.41 for periodic statements, each billing cycle would provide
information on how to contact the appropriate State housing finance
authority and how to access a list of government-certified counseling
agencies and programs. Also, the early intervention provisions of the
2012 RESPA Servicing Proposal would require this same information as
well as examples of alternatives consumers may want to consider.
Finally, consumers will have received this information pursuant to
Sec. 1026.20(d) the first time their adjustable-rate mortgages adjust.
The model forms proposed for Sec. 1026.20(c) and (d) closely track
one another and disclose virtually the same information, except for the
additional information proposed for Sec. 1026.20(d), as discussed
above, and the reference to estimates in the proposed Sec. 1026.20(d)
notices. The Bureau believes that harmonizing the two proposed rules
regarding ARM interest rate adjustment disclosures would ease the
burden of compliance for creditors, assignees, and servicers while
providing consumers with consistent information in similar notices.
The Bureau is proposing model and sample forms \53\ for both Sec.
1026.20(c) and (d). The Bureau worked with Macro to design and test the
forms for Sec. 1026.20(d), but did not specifically test Sec.
1026.20(c) notices. See Part II.B above. Because of the similarity in
the model forms for both proposed rules, the results of the testing of
Sec. 1026.20(d) forms is relevant for proposed Sec. 1026.20(c) as
well. Thus, throughout the section-by-section analysis for Sec.
1026.20(c), the Bureau refers to the testing results for Sec.
1026.20(d) where the information and concepts tested are identical in
the model forms for both proposed Sec. 1026.20(c) and (d).
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\53\ The Bureau proposes four model forms for the ARM adjustment
notices: Two forms for the Sec. 1026.20(c) ARM payment change
notices, one labeled a model form and the other a sample form and
two forms for the Sec. 1026.20(d) ARM initial interest rate
adjustment notices, one labeled a model form and the other a sample
form. See Appendix H-4(D)(1)-(4).
---------------------------------------------------------------------------

B. Proposed Rule Regarding Prompt Crediting of Mortgage Payments and
Response to Requests for Payoff Amounts

DFA section 1464(a) codifies the existing Regulation Z requirements
in Sec. 1026.36(c)(1)(i) on prompt crediting of payments. The proposed
modifications to Sec. 1026.36(c) would clarify the handling of partial
payments. The proposal would limit application of the current prompt
crediting provision, existing Sec. 1026.36(c)(1)(i), to full
contractual payments (as opposed to all payments), and add a new
provision, Sec. 1026.36(c)(1)(ii), to address the handing of partial
payments (anything less than a full contractual payment).
DFA section 1464(b) generally codifies the existing Regulation Z
requirement in Sec. 1026.36(c)(3) to provide payoff statements, with
modifications relating to the scope and timing of the requirement, and
the need for the request to be written. Proposed modifications to Sec.
1026.36(c) reflect these changes.
As part of implementing these changes, the Bureau is proposing a
reorganization of the requirements in Sec. 1026.36(c).

C. Proposed Rule Regarding Periodic Statements

DFA section 1420 establishes new TILA section 128(f), requiring
periodic statements for residential mortgage loans to be provided each
billing cycle. The statute requires that a creditor, assignee, or
servicer disclose certain information in the periodic statement, along
with ``such other information as the Bureau may prescribe in
regulations.'' \54\ The statute requires the Bureau to develop and
prescribe a standard form for this disclosure, taking into account that
the required statements may be transmitted in writing or
electronically.\55\ The statute also provides an exemption to the
periodic statement requirement for fixed-rate loans where the creditor,
assignee, or servicer provides the obligor with a coupon book which
provides substantially the same information as the periodic
statement.\56\
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\54\ TILA section 128(f)(1)(H).
\55\ TILA section 128(f)(2).
\56\ TILA section 128(f)(3).

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[[Page 57329]]

Proposed Sec. 1026.41 contains the periodic statement requirement.
Paragraph (a) establishes the general requirement for creditors,
assignees, or servicers to provide a periodic statement. Paragraphs
(b)-(d) establish requirements for the timing, form, content, and
layout of the statement. Paragraph (e) sets forth exemptions from the
periodic statement requirement.
The periodic statement is designed to serve a variety of purposes,
including informing consumers of their payment obligations, providing
the consumer with information about their mortgage in an easily
readable and understandable format, creating a record of the
transaction to aid in error detection and resolution, and providing
information to certain delinquent borrowers.
The Bureau is proposing sample forms in accordance with TILA
section 129(f)(2). The Bureau examined several forms used today by
various servicers, considered how these forms met the needs of
consumers, and identified changes that would benefit consumers. As
discussed above in part II.B, the Bureau worked with Macro to design
and test sample forms.
The proposed periodic statement is designed to provide information
to consumers in a format they can easily understand and use. As such,
the proposed regulation would require certain related pieces of
information to be grouped together. The proposed formatting
requirements of the periodic statement are discussed in detail in the
section-by-section analysis for proposed Sec. 1026.41(d).
The proposed periodic statement is also designed to provide
additional information to consumers in several potentially confusing
scenarios: Partial payments, payment-option loans, and delinquency.
First, the handling of partial payments would be clarified on the
periodic statement, both on the transaction activity line and in the
past payment breakdown. Additionally, if funds are held in a suspense
or unapplied funds account, the proposed rule would require a message
on what must be done to release the funds. Second, payments for
payment-option loans would be clarified by listing the options in the
Amount Due section, and providing details about each of the options in
the Explanation of Amount Due section. Finally, delinquent consumers
would receive information in several places on the periodic statement.
The overdue amount would be stated in the Explanation of Amount Due
section, and any fees would be listed in the Transaction Activity
section. The breakdown of past payments will help the consumer
understand how past payments were applied, which can be confusing.
Additionally, consumers who are more than 45 days delinquent will have
a delinquency information included in the periodic statement providing
specific information about their loan. These requirements are discussed
in greater detail in the section-by-section analysis on proposed Sec.
1026.41 below.
Finally, the proposal contains several exemptions from the periodic
statement requirement. One exemption is for fixed-rate loans using
coupon books that meet certain requirements, as set forth in TILA
128(f)(3). Another exemption clarifies that timeshares are not subject
to the periodic statement requirement as per the definition of
``residential mortgage loan.'' \57\ The Bureau is also proposing
exemptions for reverse mortgages and certain small servicers.
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\57\ TILA section 103(cc)(5).
---------------------------------------------------------------------------

V. Legal Authority

The Bureau is issuing this proposed rule pursuant to its authority
under TILA and the Dodd-Frank Act. Section 1061 of the Dodd-Frank Act
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.'' \58\ TILA, Title X of the
Dodd-Frank Act, and certain subtitles and provisions of Title XIV of
the Dodd Frank Act, are Federal consumer financial laws.\59\
Accordingly, the Bureau has authority to issue regulations pursuant to
TILA, Title X, and the enumerated subtitles and provisions of Tile XIV,
including to implement the additions and amendments to TILA's mortgage
servicing requirements made by Title XIV of the Dodd-Frank Act.
---------------------------------------------------------------------------

\58\ 12 U.S.C. 5581(a)(1).
\59\ 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), Dodd-Frank
section 1400(b), 15 U.S.C. 1601 note (defining ``enumerated consumer
laws'' to include certain subtitles and provisions of Title XIV).
---------------------------------------------------------------------------

Sections 1418, 1420 and 1464 of the Dodd-Frank Act create new
requirements under TILA in new sections 128A, 128(f), and 129F and
129G, respectively. Section 1418 of the Dodd-Frank Act amends
Regulation Z to require that certain disclosures be provided to
consumers with hybrid adjustable-rate mortgages secured by the
consumer's principal residence the first time the interest resets or
adjusts. Additionally, the savings clause in TILA section 128A(c)
allows the Bureau to require this notice for adjustable-rate mortgage
loans that are not hybrid adjustable-rate loans. DFA section 1420
requires that a periodic statement be provided to consumers for each
billing cycle of a consumer's closed-end mortgage secured by a
dwelling, except for fixed-rate loans with coupon books containing
substantially the same information. The statute requires a list of
specific information that must be included in the periodic statement.
Additionally, pursuant to TILA section 128(f)(1)(H), the periodic
statement must also include such information as the Bureau may require
in regulations. DFA section 1464 generally requires the prompt
crediting of mortgage payments in connection with consumer credit
transactions secured by a consumer's principal dwelling and an accurate
timely response to requests for payoff amounts for home loans. In
addition to proposing rules to implement these TILA provisions of the
Dodd-Frank Act, the Bureau proposes amending current TILA interest rate
adjustment disclosures required by Sec. 1026.20(c) as proposed Sec.
1026.20(c).
The proposed rule also relies on the rulemaking and exception
authorities specifically granted to the Bureau by TILA and the Dodd-
Frank Act, including the authorities discussed below:

The 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. The
purposes of TILA are ``to assure a meaningful disclosure of credit
terms so that the consumers will be able to compare more readily the
various credit terms available and avoid the uninformed use of credit''
and to protect consumers against inaccurate and unfair credit billing
practices. TILA section 102(a); 15 U.S.C. 1601(a).

[[Page 57330]]

Historically, TILA section 105(a) has served as a broad source of
authority for rules that promote the informed use of credit and avoid
unfair credit billing practices through required disclosures and
substantive regulation of certain practices. Dodd-Frank Act section
1100A additionally clarifies the Bureau's TILA 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 that the Bureau has 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 \60\ that apply to the high-cost mortgages referred to
in TILA section 103(bb), 15 U.S.C. 1602(bb).
---------------------------------------------------------------------------

\60\ 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.
---------------------------------------------------------------------------

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, helping
consumers avoid the uninformed use of credit, and protecting consumers
against inaccurate and unfair credit billing practices. See TILA
section 102(a); 15 U.S.C. 1601(a).
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:
(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.

The Dodd-Frank Act

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 is a Federal consumer financial law. Accordingly, the Bureau
proposes to exercise its authority under DFA section 1022(b) to
prescribe rules under TILA that carry out the purposes and prevent
evasion of those laws.
Dodd-Frank Act section 1032. Section 1032(a) of the Dodd-Frank Act
governs disclosures and 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 DFA 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 DFA 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 awareness, understanding of,
and responses to disclosures or communications about the risks, costs,
and benefits of consumer financial products or services. 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, DFA 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. DFA section
1032(b)(2); 12 U.S.C. 5532(b)(2). As discussed in the section-by-
section analysis for proposed Sec. Sec. 1026.20(d) and 1026.41, the
Bureau is proposing model forms for ARM interest rate adjustment
notices and periodic

[[Page 57331]]

statements. As discussed in this notice, the Bureau is proposing these
model forms pursuant to its authority under DFA section 1032(b)(1).
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), 15 U.S.C. 1602(cc), 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, DFA section 1405(b) is a broad source
of authority to modify the disclosure requirements of TILA.
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).
See the section-by-section analysis for each proposed section for
further elaboration on legal authority.

VI. Section-by-Section Analysis

A. Regulation Z

Section 1026.17 General Disclosure Requirements
17(a) Form of Disclosures
17(a)(1)
Section 1026.17(a)(1) contains form requirements generally
applicable to disclosures under subpart C. The Bureau proposes to make
certain modifications to these requirements as applicable to the ARM
interest rate adjustment payment change notices under proposed Sec.
1026.20(c) and the initial ARM interest rate adjustment notices under
proposed Sec. 1026.20(d).
Section 1026.17(a) requires, among other things, that certain
disclosures contain only information directly related to that
disclosure. Current Sec. 1026.20(c) is not included in the list of
disclosures subject to this requirement. Further, commentary to Sec.
1026.17(a)(1) states that the disclosures required by current Sec.
1026.20(c) are not subject to the general segregation requirements
under Sec. 1026.17(a)(1).
The payment change notice proposed by Sec. 1026.20(c) is intended
to inform consumers of upcoming changes to their interest rate and
mortgage payments and to give them time to explore alternatives. The
Bureau does not believe that the form requirements applicable to
current Sec. 1026.20(c) notices are sufficient to highlight and
emphasize important information consumers need to make decisions about
their adjustable-rate mortgages. Presenting information to consumers
separate from other information enhances consumers' awareness of the
material. Therefore, the Bureau proposes to amend Sec. 1026.17(a)(1)
and comment 17(a)(1)-2.ii to add proposed Sec. 1026.20(c) to the
enumerated disclosures required to contain only information directly
related to the disclosure and to require that proposed Sec. 1026.20(c)
disclosures be grouped together and segregated from everything else.
Other Sec. 1026.17(a)(1) requirements, such as that disclosures be
clear and conspicuous, in writing, and provided electronically subject
to compliance with Electronic Signatures in Global and National
Commerce Act (E-Sign Act) (15 U.S.C. 7001 et seq.), would continue to
apply to Sec. 1026.20(c).
TILA section 128A provides that the initial ARM interest rate
adjustment notices, which the Bureau proposes to implement in proposed
Sec. 1026.20(d), be ``separate and distinct from all other
correspondence to the consumer.'' Accordingly, the Bureau proposes to
revise Sec. 1026.17(a), to make clear that the proposed Sec.
1026.20(d) disclosures are not subject to the general segregation
requirement under that section but rather, pursuant to proposed Sec.
1026.20(d), are required to be separate and distinct from all other
correspondence. See comment 20(d) for further discussion of the
separate and distinct requirement. Other requirements of Sec.
1026.17(a), such as that disclosures be clear and conspicuous, in
writing, and provided electronically subject to compliance with the E-
Sign Act, would apply to the proposed Sec. 1026.20(d) disclosures.
The proposed application of Sec. 1026.17(a)(1), as modified, to
proposed Sec. 1026.20(c) and (d) is authorized, in part, under TILA
section 122, which requires that disclosures under TILA be clear and
conspicuous, in accordance with regulations of the Bureau. The
requirements are further authorized under TILA section 105(a) because
the Bureau believes that the proposed form requirements are necessary
and proper to effectuate the purposes of TILA to assure a meaningful
disclosure of credit terms, avoid the uninformed use of credit, and
protect consumers against inaccurate and unfair credit billing
practices by ensuring that consumers understand the content of the
proposed ARM notices. Moreover, as discussed below, the disclosures
proposed under Sec. 1026.20(c) are authorized, among other provisions,
under TILA section 128(f)(2), which authorizes the Bureau to develop
and prescribe a standard form for the disclosures required under TILA
section 128(f).
As to proposed Sec. 1026.20(d) disclosures, DFA section 1418, TILA
section 128A(b) specifically provides that the disclosures shall be in
writing, separate and distinct from all other correspondence. In
addition, the Bureau believes, consistent with DFA section 1032(a),
that the proposed application of Sec. 1026.17(a)(1), as modified, to
Sec. 1026.20(d) will ensure that the features of ARM loans are
effectively disclosed to consumers in a manner that allows consumers to
understand the information disclosed. The Bureau further believes,
consistent with DFA section 1405(a), that it is proper to modify DFA
section 1418 to apply the form requirements in proposed Sec.
1026.17(a)(1) to improve consumer awareness and understanding of ARM
adjustments.
17(b) Time of Disclosures
The Bureau is proposing to revise Sec. 1026.17(b) to add proposed
Sec. 1026.20(d) to the list of variable-rate disclosure provisions
with special timing requirements. This proposed amendment would alert
creditors, assignees, and servicers that, as with proposed Sec.
1026.20(c) payment adjustment notices, there are timing requirements
particular to the proposed Sec. 1026.20(d) initial interest rate
adjustment notices.

[[Page 57332]]

17(c) Basis of Disclosures and Use of Estimates
17(c)(1)
Section 1026.17(c)(1) requires disclosures to reflect the terms of
the legal obligation between the parties. Current comment 17(c)(1)-1
provides that, under this requirement, disclosures generally must
reflect the credit terms to which the parties are legally bound as of
the outset of the transaction, but that in the case of disclosures
required under Sec. 1026.20(c), the disclosures shall reflect the
credit terms to which the parties are legally bound when the
disclosures are provided. The Bureau proposes revising comment
17(c)(1)-1 to make clear that the disclosures required under proposed
Sec. 1026.20(d), like those under proposed Sec. 1026.20(c), shall
reflect the credit terms to which the parties are legally bound when
the disclosures are provided, rather than at the outset of the
transaction.
Section 1026.18 Content of Disclosures
18(f) Variable Rate
18(f)-1
Current comment 18(f)-1 clarifies that creditors electing to
substitute Sec. 1026.19(b) disclosures for Sec. 1026.18(f)(1)
disclosures, as permitted by Sec. 1026.18(f)(1) and (3), may, but need
not, also provide disclosures required by current Sec. 1026.20(c).
Under current Sec. 1026.20(c), disclosures are permissive in such
cases because the Sec. 1026.19(b) substitution is only permitted for
variable-rate transactions not secured by the consumer's principal
dwelling or variable-rate transactions secured by the consumers'
principal dwelling, but with a term of one year or less. These
transactions are not covered by current Sec. 1026.20(c). Thus, current
comment 18(f)-1 does not alter the legal requirements applicable to
creditors. The clarification was, however, helpful because current
Sec. 1026.20(c) cross-references Sec. 1026.19(b) and applies to
transactions covered by Sec. 1026.19(b).
The Bureau proposes to delete this reference to Sec. 1026.20(c)
from the comment because it is no longer helpful since neither proposed
Sec. 1026.20(c) nor (d) cross-references Sec. 1026.19(b) and those
proposed provisions define their scope of coverage without reference to
Sec. 1026.19(b). Moreover, proposed Sec. 1026.20(c) or (d) apply to
some ARMs with terms of one year or less such that applying the current
comment would create an unwarranted exception to the requirement to
provide ARM notices to consumers with those types of ARMs. For these
reasons, the Bureau proposes to delete the reference to Sec.
1026.20(c) in comment 18(f)-1.
Section 1026.19 Certain Mortgage and Variable-Rate Transactions
19(b) Certain Variable Rate Transactions
19(b)-4 Other Variable-Rate Regulations
The Bureau proposes revising comment 19(b)-4 to delete reference to
current Sec. 1026.20(c) and (d). Current comment 19(b)-4 explains that
transactions in which the creditor is required to comply with and has
complied with the disclosure requirements of the variable-rate
regulations of other Federal agencies are exempt from the requirements
of Sec. 1026.20(c) by virtue of current Sec. 1026.20(d). Consistent
with the proposed deletion of current Sec. 1026.20(d), the Bureau
proposes revising comment 19(b)-4 to delete reference to current Sec.
1026.20(c) and (d).
19(b)-5.i.C Certain Mortgage and Variable-Rate Transactions
The Bureau proposes revising comment 19(b)-5.i.C to cross-reference
other commentary that makes clear that proposed Sec. 1026.20(c) and
(d) do not apply to ``price-level-adjusted 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.
19(b)(2)(xi)-1 Adjustment Notices
Pursuant to current Sec. 1026.19(b)(2)(xi), disclosures regarding
the type of information that will be provided in notices of interest
rate adjustments and the timing of such notices must be provided to
consumers applying for variable-rate transactions secured by the
consumer's principal dwelling with a term greater than one year.
Current comment 19(b)(2)(xi)-1 clarifies that these disclosures include
information regarding the content and timing of disclosures consumers
will receive pursuant to current Sec. 1026.20(c). The Bureau proposes
adding reference to proposed Sec. 1026.20(d) to the comment, since
those disclosures would be provided to consumers under the Bureau's
proposed rule. The proposed comment also makes conforming changes to
the text suggested for describing the ARM notices to reflect the timing
and content of the disclosures proposed by Sec. 1026.20(c) and (d).
Section 1026.20 Subsequent Disclosure Requirements
20(c) Rate Adjustments
Current Sec. 1026.20(c) requires that disclosures be provided to
consumers with variable-rate mortgages each time an adjustment results
in a corresponding payment change and at least once each year during
which an interest rate adjustment is implemented without a
corresponding payment change.
The current rule does not differentiate between the content
required for the annual notice and the notices required each time the
interest rate adjustment results in a corresponding payment change.
Current Sec. 1026.20(c) requires that adjustment notices disclose the
following: (1) The current and prior interest rates for the loan; (2)
the index values upon which the current and prior interest rates are
based; (3) the extent to which the creditor has foregone any increase
in the interest rate; (4) the contractual effects of the adjustment,
including the payment due after the adjustment is made, and a statement
of the loan balance; and (5) the payment, if different from the payment
due after adjustment, that would be required to fully amortize the loan
at the new interest rate over the remainder of the loan term.
The Bureau proposes two major changes to Sec. 1026.20(c). First,
the Bureau proposes eliminating the annual notice sent each year during
which an interest rate adjustment is implemented without a
corresponding payment change. As explained in more detail below, the
Bureau believes that Dodd-Frank Act amendments to TILA, and the
Bureau's proposed amendments to Regulation Z that would implement those
provisions, would provide consumers with much of the information
contained in the annual notice thereby greatly minimizing the need for
its protections. Second, the proposal updates current Sec. 1026.20(c)
by adding disclosures that the Bureau believes will enhance protections
for consumers with ARMs. The proposed revisions to Sec. 1026.20(c)
also harmonize with the requirements the Bureau is proposing for the
initial ARM interest rate adjustment notice under Sec. 1026.20(d),
thereby promoting consistency between the Regulation Z ARM provisions.
Elimination of annual disclosure. First, proposed Sec. 1026.20(c)
eliminates the annual notice requirement under the current rule. The
Bureau believes that consumers who receive the current annual notice,
such as consumers with ARMs with payment caps, would

[[Page 57333]]

receive much of the same information in the periodic statement under
proposed Sec. 1026.41, discussed below. The proposed periodic
statement would provide consumers with comprehensive information about
their mortgages each billing cycle. The periodic statement would
include some of the same key information provided to consumers under
the current Sec. 1026.20(c) annual notice, such as the current
interest rate and the date after which that rate would adjust. It also
would provide other information that may be useful to consumers who
would receive the Sec. 1026.20(c) annual ARM notice, including the
existence and amount of any prepayment penalty; allocation of the
consumer's payment by principal, interest, and escrow; the amount of
the outstanding principal; contact information for the State housing
finance authority; and information to access a list of Federally-
certified housing counselors.
In light of the amount, type, and frequency of the information the
Bureau proposes to provide in the periodic statement to consumers with
ARMs that are subject to the current Sec. 1026.20(c) annual ARM
interest rate notice, the Bureau proposes to eliminate the requirement
for the annual notice as duplicative and as potentially contributing to
information overload that could deflect consumer attention away from
the information such consumers would receive in other required
disclosures. The Bureau solicits comments on the need, value, or use of
retaining the annual notice required under current Sec. 1026.20(c) for
consumers whose ARM interest rates adjust during the course of a year
without resulting in corresponding payment changes.
The Bureau proposes to delete comments 20(c)(1)-1 and 20(c)(4)-1
which, among other things, address the content of the Sec. 1026.20(c)
annual notice the Bureau is proposing to eliminate. Current comment
20(c)(1)-1 also explains, among other things, the meaning of the terms
``current'' and ``prior'' rates and that in disclosing all other rates
that applied during the period between notices, the creditor may
disclose a range of the highest and lowest rates during that year
period. Current comment 20(c)(4)-1, among other things, defines the
term loan ``balance'' and explains that a ``contractual effect'' of a
rate adjustment includes disclosure of any change in the term or
maturity of the loan if the change resulted from the rate adjustment.
The Bureau also proposes deletion of these current comments as they
relate to the recurring disclosures that would be required by proposed
Sec. 1026.20(c) for interest rate adjustments resulting in a
corresponding payment change. The Bureau proposes to replace these
comments with the new commentary discussed below.
Amendment of payment change disclosure. Second, proposed Sec.
1026.20(c) would amend existing Sec. 1026.20(c) as it relates to
interest rate adjustments that result in a corresponding payment
change. The proposal retains much of the content required in the
current notice and also would require disclosure of additional
information that the Bureau believes would help consumers better
understand and manage their adjustable-rate mortgages. The proposed
revisions to current Sec. 1026.20(c) harmonize with the initial ARM
interest rate adjustment notice proposed by Sec. 1026.20(d). The
Bureau believes that promoting consistency between the ARM disclosure
provisions of Sec. 1026.20(c) and (d) would reduce compliance burdens
on industry and minimize consumer confusion.
Creditors, assignees, and servicers. The Bureau also proposes to
amend Sec. 1026.20(c) to provide that it applies to creditors,
assignees, and servicers. Current Sec. 1026.20(c) applies to creditors
and existing comment 20(c)-1 clarifies that the requirements of Sec.
1026.20(c) also apply to subsequent holders, i.e., assignees. The
Bureau's proposal provides that Sec. 1026.20(c) would apply to
servicers, as well as to creditors and assignees. Proposed comment
20(c)-1 clarifies that a creditor, assignee, or servicer that no longer
owns the mortgage loan or the mortgage servicing rights is not subject
to the requirements of Sec. 1026.20(c).
As discussed below, proposed Sec. 1026.20(c) is authorized under,
among other authorities, TILA section 128(f), which applies to
creditors, assignees, and servicers. The proposal is consistent with
proposed Sec. 1026.20(d) such that both proposed Sec. 1026.20(c) and
(d) would apply to creditors, assignees and servicers.
The Bureau believes that applying Sec. 1026.20(c) to creditors and
assignees, but not servicers, would compromise consumers' recourse in
the case of a violation of Sec. 1026.20(c). Many creditors and
assignees do not service the loans they own and instead sell the
mortgage servicing rights to a third party. The servicer is the party
with which consumers have contact on an ongoing basis regarding their
mortgages. Consumers send their payments to the servicer and
communicate with the servicer regarding any questions or problems with
their mortgage that may arise. Where the owner and the servicer are
different entities, consumers may not know the identity of the owner
and may not even realize that the servicer is not the owner of their
mortgage. Moreover, it can be difficult for consumers to ascertain the
identity of the creditor or assignee, even though servicers would be
required to identify the owner of a mortgage under rules proposed
pursuant to DFA section 1463. Thus, in the case of a violation of
proposed Sec. 1026.20(c), consumers should be able to seek relief
against the servicer as the primary party from whom they receive
service and with whom they maintain communication regarding their
mortgages. See below, section 20(d), for a discussion of application of
proposed Sec. 1026.20(d) initial ARM interest rate adjustment notices
to assignees. The same rationale applies to proposed Sec. 1026.20(c)
ARM payment adjustment notices.
Proposed comment 20(c)-1 explains that any provision of subpart C
that applies to the disclosures required by Sec. 1026.20(c) also
applies to creditors, assignees, and servicers. This is the case even
where the other provisions of subpart C refer only to creditors. For
the reasons discussed above, the Bureau proposes that the requirements
of other regulations that apply to the Sec. 1026.20(c) ARM payment
adjustment notices apply to servicers as well as to creditors and
assignees.
The proposal also would delete current comment 20(c)-1, which,
among other things, refers to subsequent holders, in favor of
consistent usage of the term assignee in proposed Sec. 1026.20(c) and
(d). It would also delete comment 20(c)-3 as duplicative of the Sec.
1026.17(c)(1) requirement that the disclosures reflect the terms of the
parties' legal obligations.
Conversions. Proposed Sec. 1026.20(c) also applies to ARMs
converting to fixed-rate mortgages when the adjustment to the interest
rate results in a corresponding payment change. Providing this notice
would alert consumers to their new interest rate and payment following
conversion from an ARM to a fixed-rate mortgage. Proposed comment
20(c)-2 explains that, in the case of an open-end account converting to
a closed-end adjustable-rate mortgage, Sec. 1026.20(c) disclosures are
not required until the implementation of the first interest rate
adjustment that results in a corresponding payment change post-
conversion. Under the proposed rule, this conversion is analogous to
consummation. Thus, like other ARMs subject to the requirements of
proposed Sec. 1026.20(c), disclosures for these types of converted
ARMs would not be

[[Page 57334]]

required until the first interest rate adjustment following the
conversion which results in a corresponding payment change. The
proposed rule is consistent with existing commentary and proposed Sec.
1026.20(d) regarding conversions. See current comment 20(c)-1.
Authority. The Bureau proposes to amend Sec. 1026.20(c) pursuant
to its authority under TILA section 105(a). For the reasons discussed
in the section-by-section analysis for each of the proposed amendments
to Sec. 1026.20(c), the Bureau believes that the proposed amendments
are necessary and proper to effectuate the purposes of TILA to assure a
meaningful disclosure of credit terms, avoid the uninformed use of
credit, and protect consumers against inaccurate and unfair credit
billing practices. Proposed Sec. 1026.20(c) also is authorized under
TILA section 128(f), which requires that certain information enumerated
in the statute be provided to consumers every billing cycle in a
periodic statement and also confers on the Bureau the authority to
require periodic disclosure of ``[s]uch other information as the Bureau
may prescribe in regulations.'' Proposed Sec. 1026.20(c) is further
authorized under DFA section 1405(b), which permits the Bureau to
modify disclosure requirements where such modification is in the
interest of consumers and the public.
Although TILA section 128(f) authorizes the Bureau to require that
the content for the Sec. 1026.20(c) ARM notices be included in the
periodic statement, the Bureau believes, for the reasons set forth
above and below, that consumers would be better served if this
information was provided as a separate disclosure. Under proposed Sec.
1026.17(a), the proposed Sec. 1026.20(c) ARM payment adjustment notice
would have to be provided separate and distinct from the periodic
statement. The disclosures required by proposed Sec. 1026.20(c),
however, may be provided to consumers together with the periodic
statement, depending on the mode of delivery, in the same envelope or
as an additional attachment to the email. The Bureau also believes that
the interest of consumers and the public interest would be better
served by receiving the Sec. 1026.20(c) ARM notice, within the time
frame discussed below, each time the ARM interest rate adjusts
resulting in a corresponding payment change, rather than with each
billing cycle.
20(c)(1) Coverage of Rate Adjustment Disclosures
20(c)(1)(i) In General
Proposed Sec. 1026.20(c)(1) defines an adjustable-rate mortgage,
for purposes of Sec. 1026.20(c), as a closed-end consumer credit
transaction secured by the consumer's principal dwelling in which the
annual percentage rate may increase after consummation. Current Sec.
1026.20(c) requires disclosures only for adjustments to the interest
rate in variable-rate transactions subject to Sec. 1026.19(b), which
is limited to loans secured by the consumer's principal dwelling with a
term of greater than one year. The Bureau proposes deleting the cross-
reference to Sec. 1026.19(b), thereby expanding the scope of proposed
Sec. 1026.20(c) to include loans with terms of one year or less.
Proposed Sec. 1026.20(c)(1)(i) would replace current Sec. 1026.20(c)
and comment 20(c)-1 with regard to which loans are subject to the
interest rate adjustment disclosures.
There is one type of short-term ARM that the Bureau proposes to
except from the requirements of Sec. 1026.20(c): Construction loans
with terms of one year or less. See section 20(c)(1)(ii) below for a
full discussion of this proposed exception for construction ARMs with
terms of one year or less. The Bureau solicits comment on whether there
are other ARMs with terms of less than one year and whether the
proposed 60-day minimum notice period is appropriate for such loans.
See section 20(c)(2) below for a full discussion of the timing proposed
for Sec. 1026.20(c). If the 60-day period is not appropriate, the
Bureau solicits comment on what period would be appropriate that would
also provide consumers with sufficient notice of a payment change. This
proposal regarding coverage is consistent with the statutory
requirements of TILA section 128A and proposed Sec. 1026.20(d) in that
those provisions generally apply to all ARMs, regardless of term
length. Thus, the proposal to expand Sec. 1026.20(c) to ARMs with
terms of one year or less would harmonize the coverage of the two types
of ARM adjustment notices, thereby ensuring that both Sec. 1026.20(d)
notices and Sec. 1026.20(c) notices, when required, are provided to
the same consumers.
The Bureau proposes using the terms ``adjustable-rate mortgage'' or
``ARM'' to replace the term ``variable-rate transaction'' in current
Sec. 1026.20(c). Proposed comment 20(c)(1)(i)-1 clarifies that the
term ``variable-rate transaction,'' as used in Sec. 1026.19(b) and
elsewhere in Regulation Z, is synonymous with the term ``adjustable-
rate mortgage'' or ``ARM'', except where specifically distinguished.
The Bureau proposes this revision because ``adjustable-rate mortgage''
or ``ARM'' are the terms commonly used for mortgages covered by current
and proposed Sec. 1026.20(c).
Proposed comment 20(c)(1)(i)-1 also clarifies that the requirements
of Sec. 1026.20(c)(1)(i) are not limited to transactions financing the
initial acquisition of the consumer's principal dwelling, but also
would apply to other closed-end ARM transactions secured by the
consumer's principal dwelling, consistent with current comment 19(b)-1
and current Sec. 1026.20(c).
20(c)(1)(ii) Exceptions
Proposed Sec. 1026.20(c)(1)(ii) sets forth two exceptions to the
disclosure requirements of Sec. 1026.20(c). These exceptions apply to:
(1) Construction loans with terms of one year or less; and (2) the
first adjustment to an ARM if the first payment at the adjusted level
is due within 210 days after consummation and the actual, not
estimated, new interest rate was disclosed at consummation, in the
initial ARM interest rate adjustment notice that would be required by
proposed Sec. 1026.20(d). Proposed comments 20(c)(1)(ii)-1 and -2
provide further explanation. Proposed Sec. 1026.20(d) also would
except the same construction loans.
As discussed in more detail below in connection with the notice
required for an initial ARM interest rate adjustment under Sec.
1026.20(d), the Bureau also considered, but decided against, permitting
or requiring small creditors, assignees, and servicers to include in
the periodic statement the information required for the first payment
change notice under proposed Sec. 1026.20(c). The Bureau also
considered this option with regard to all notices that small entities
would be required to provide to consumers under proposed Sec.
1026.20(c). As discussed further below, the Bureau solicits comments
from small entities--and from creditors, assignees, and servicers in
general--as to whether small entities or all creditors, assignees, and
servicers should be permitted or required to provide the information
required in the first payment change notices under proposed Sec.
1026.20(c) in the periodic statement instead of as a separate ARM
notice and whether this should be done for all Sec. 1026.20(c)
notices.
Regarding the first exception the Bureau proposes, construction
loans generally have short terms of six months to one year and are
subject to frequent interest rate adjustments, usually monthly or
quarterly. The construction

[[Page 57335]]

period usually involves several disbursements of funds at times and in
amounts that are unknown at the beginning of that period. The consumer
generally pays only accrued interest until construction is completed.
The creditor, assignee, or servicer, in addition to disbursing payments
in stages, closely monitors the progress of construction. Generally, at
the completion of the construction, the construction loan is converted
into permanent financing in which the loan amount is amortized just as
in a standard mortgage transaction. See comment 17(c)(6)-2 for
additional information on construction loans.
The frequent interest rate adjustments, multiple disbursements of
funds, short loan term, and on-going communication between the
creditor, assignee, or servicer and consumer, distinguish construction
loans from other ARMs. These loans are meant to function as bridge
financing until construction is completed and permanent financing can
be put in place. Consumers with construction ARM loans are not at risk
of payment shock like other ARMs where interest rates change less
frequently. Moreover, given the frequency of interest rate adjustments
on construction loans, creditors, assignees, or servicers would have
difficulty complying with the proposed requirement to provide the
notice to consumers 60 to 120 days before payment at a new level is due
for each adjustment resulting in a corresponding payment change. For
these reasons, providing notices under Sec. 1026.20(c) for these loans
would not provide a meaningful benefit to the consumer nor improve
consumers' awareness and understanding of their construction loans with
terms of one year or less. Proposed comment 20(c)(1)(i)-1 applies the
standards in comment 19(b)-1 for determining the term of a construction
loan.
The second exception, for the first adjustment to an ARM causing a
payment change if the first payment at the adjusted level is due within
210 days after consummation, would apply only if the exact interest
rate, not an estimate, is disclosed at consummation. For ARMs adjusting
within six months of consummation, i.e., 210 days before the first
payment is due at the new level, the disclosures proposed by Sec.
1026.20(d) must be provided at consummation. The recency of
consummation obviates the need for the Sec. 1026.20(c) notice in this
circumstance because consumers would have been apprised of the upcoming
adjustment and payment change just months prior to its occurrence and
their mortgages would be so new as to not require the alerts in the
notice regarding pursuing alternatives. Thus, providing Sec.
1026.20(c) disclosures in these circumstances would be duplicative, not
contribute to consumer awareness and understanding, and not provide a
meaningful benefit to consumers.
Proposed comment 20(c)(1)(ii)-3 discusses other loans to which the
proposed rule does not apply. Proposed comment 20(c)(1)(ii)-3 is
consistent with proposed comment 20(d)(1)(ii)-2 with regard to the
loans which are not subject to the proposed ARM disclosure rules.
Certain Regulation Z provisions treat some of these loans as variable-
rate transactions, even if they are structured as fixed-rate
transactions. The proposed comment clarifies that, for purposes of
Sec. 1026.20(c), the following loans, if fixed-rate transactions, are
not ARMs and therefore not subject to ARM notices pursuant to Sec.
1026.20(c): Shared-equity or shared-appreciation mortgages; price-level
adjusted 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;
graduated-payment mortgages or step-rate transactions; renewable
balloon-payment instruments; and preferred-rate loans. The particular
features of these types of loans may trigger interest rate or payment
changes over the term of the loan or at the time the consumer pays off
the final balance. However, these changes are based on factors other
than a change in the value of an index or a formula. Because the
enumerated loans are not ARMs they are not covered by proposed Sec.
1026.20(c) and require no disclosures under this section.
Proposed and current Sec. 1026.20(c) are generally consistent with
regard to the ARMs to which they do not apply. The principal difference
is that current Sec. 1026.20(c) does apply to renewable balloon-
payment instruments and preferred-rate loans, even if they are
structured as fixed-rate transactions while proposed Sec. 1026.20(c)
would not apply to such loans. See Sec. 1026.19(b) and comment 19(b)-
5.i.A and B. Also, as discussed above, current Sec. 1026.20(c) does
not apply to loans with terms of one year or less. This category
includes construction loans, which are excepted from coverage under
proposed Sec. 1026.20(c). Logically, the Bureau's proposed exception
for initial Sec. 1026.20(c) ARM adjustments if the first payment at
the adjusted level is due within 210 days of consummation is
inapplicable to the current rule since proposed Sec. 1026.20(d) is not
yet implemented to replace the current Sec. 1026.20(c) disclosures
provided at consummation.
Like proposed comment 20(c)(1)(ii)-3, current comment 20(c)-2
clarifies that Sec. 1026.20(c) does not apply to shared-equity or
shared-appreciation mortgages or to price-level adjusted or other such
indexed mortgages. The current rule cross-references Sec. 1026.19(b)
and applies to all variable-rate transactions covered by that rule.
Comment 19(b)-4 explains that graduated-payment mortgages and step-rate
transactions without variable-rate features are not subject to Sec.
1026.19(b). Therefore, like the proposed rule, such loans are not
subject to current Sec. 1026.20(c).
The current rule does not mention renewable balloon-payment
instruments and preferred-rate loans, but current Sec. 1026.20(c)
applies to these loan products through the rule's cross-reference to
Sec. 1026.19(b) and therefore to comment 19(b)-5.i.A and B. As
discussed above, these loans are not adjustable-rate mortgages and the
Bureau does not believe that it is appropriate to require the
disclosures in proposed Sec. 1026.20(c) for such loans. The particular
features of these types of loans may trigger interest rate or payment
changes over the term of the loan or at the time the consumer pays off
the final balance. However, these changes are based on factors other
than a change in the value of an index or a formula. For example,
whether or when the interest rate will adjust for a preferred-rate loan
with a fixed interest rate is likely not knowable to the creditor,
assignee, or servicer 60 to 120 days in advance of the due date for the
first payment at a new level after the adjustment. This is because the
loss of the preferred rate is based on factors other than a formula or
change in the value of an index agreed to at consummation. Like the
Bureau's proposed rule, the Board also proposed to remove renewable
balloon-payment instruments and preferred-rate loans from coverage
under Sec. 1026.20(c) in its 2009 Closed-End Proposal.\61\
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\61\ 74 FR 43232, 43264, 43387 (Aug. 26, 2009).
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20(c)(2) Timing and Content of Rate Adjustment Disclosures
Proposed Sec. 1026.20(c)(2) would require that ARM disclosures be
provided to consumers 60 to 120 days before payment at a new level is
due. Under current Sec. 1026.20(c), notices must be provided to
consumers 25 to 120 days before payment at a new level is due. Thus,
the proposed rule would increase the minimum advance notice to
consumers from 25 to 60 days before a new payment amount is due. There
are

[[Page 57336]]

two circumstances under which the rule proposes a different time frame,
which are discussed below. Proposed comment 20(c)(2)-1 would replace
current comment 20(c)-1 regarding timing.
Current and proposed Sec. 1026.20(c) disclosures provide consumers
with their actual new interest rate and payment. The disclosures
proposed by Sec. 1026.20(d) likely would provide estimates of these
amounts. The longer time frame proposed by the rule is intended to give
consumers adequate time to refinance or take other actions based on
these exact amounts, if they are not able to make higher payments. The
current minimum time of 25 days does not give consumers sufficient time
to pursue meaningful alternatives such as refinancing, home sale, loan
modification, forbearance, or deed in lieu of foreclosure. In the
current market, ``it now takes the nation's biggest mortgage lenders an
average of more than 70 days to complete a refinance.\62\ Even if
consumers elect not to refinance or pursue other alternatives, the
proposed rule would give them more time to adjust their finances to the
actual amount of an increase in their mortgage payments.
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\62\ Timiraos & Simon, supra note 52.
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The Bureau believes that for most adjustable-rate mortgages, the
proposed 60-day minimum time frame would provide sufficient time for
creditors, assignees, and servicers to comply with the proposed rule.
Through outreach to servicers of adjustable-rate mortgages it appears
that, for most ARMs, servicers know the index value from which the new
interest rate and payment are calculated at least 45 days before the
date of the interest rate adjustment. Because interest generally is
paid one month in arrears, this mean that, for most ARMs, servicers
know the index value approximately 75 days before the due date of the
first new payment, depending on the number of days in the month during
which interest begins accruing at the new rate.
Creditors, assignees, and servicers generally refer to the date the
adjusted interest rate goes into effect as the ``change date.'' The
``look-back period'' is the number of days prior to the change date on
which the index value will be selected which serves as the basis for
the new interest rate and payment. In general, interest rate change
dates occur on the first of the month to correspond with payment due
dates. Thus, the due date for the new payment generally falls on the
first of the month following the change date.
Based on outreach conducted by the Bureau, it appears that small
servicers often send out the payment change notices required by Sec.
1026.20(c) on the same day the index value is selected. In that case,
for a loan with a 45-day look-back period, the notice is ready 45 days
before the change date and, with an approximately 30-day billing cycle
between the change date and the date payment at the new level is due,
the interest rate adjustment notice can be provided to the consumer
approximately 75 days before the new payment is due. Under these
circumstances, the servicer could comfortably comply with a rule
requiring that notice be provided to consumers 60 days before the
payment at a new level is due.
On the other hand, many large creditors, assignees, or servicers
conduct what is referred to as a ``verification period'' before sending
out the notices required by Sec. 1026.20(c). This verification period
generally takes anywhere from three to ten days and involves confirming
the index rate and other quality control measures to insure the notices
are correct.\63\ In these cases, for a loan with a 45-day look-back
period, the payment change notices can be provided between
approximately 42 and 35 days prior to the change date, which is either
70 to 73 or 63 to 66 days before the new payment is due, depending on
the verification period used and the length of the billing cycle. Under
these circumstances, payment change notices could be provided to
consumers within the 60-day period, even assuming a verification period
of up to thirteen days. For loans with the shortest verification period
of three days, the payment change notice could be provided to consumers
within 70 days prior to payment due at a new level.
---------------------------------------------------------------------------

\63\ No creditor, assignee, or servicer contacted by the Bureau
used a system employing an automatic feed of information from the
publisher of an index source. All data was entered and verified
manually.
---------------------------------------------------------------------------

In sum, it appears that for most ARMs, creditors, assignees, or
servicers could comply with the 60-day time period proposed by the
Bureau. The Bureau solicits comment about this proposed timing of the
Sec. 1026.20(c) notice.
Some ARMs have look-back periods shorter than 45 days. For example,
ARMs backed by the FHA and VA often have look-back periods of 15 or 30
days. For some ARMs, the calculation date is the first business day of
the month that precedes the effective date of the interest rate change.
Since the first day of that month may not fall on a business day, the
look-back period may be less than 30 days, excluding any verification
period.
In two circumstances, the Bureau is proposing a different time
period from the proposed 60 to 120 days. The Bureau proposes that
existing ARMs with look-back periods of less than 45 days that were
originated before a specified date provide the notices required under
this proposed rule within 25 to 120 days before payment at a new level
is due. The Bureau proposes that the specified date be July 21, 2013.
The Bureau understands that the creditors, assignees, or servicers of
such loans would not be able to comply with the 60- to 120-day time
frame proposed in Sec. 1026.20(c). Although this time frame would
shorten the advance notice provided to some consumers, the Bureau is
proposing to grandfather these ARMs in order to prevent altering
existing contractual agreements regarding the look-back period. Thus,
going forward, ARMs must be structured to permit compliance with the
proposed 60- to 120-day time frame. The Bureau solicits comment on
whether it should grandfather existing ARMs with look-back periods of
less than 45 days. The Bureau also seeks comment on whether July 21,
2013 is an appropriate time frame for grandfathering existing ARMs with
look-back periods of less than 45 days or if another time period would
be more appropriate and why. If not, the Bureau seeks comment on what
would be an appropriate time frame for the expiration of the
grandfathering period. The Bureau also solicits comments on whether
other adjustable-rate mortgages should be allowed to continue with a
25- to 120-day period.
The Bureau also proposes to alter the timing requirements for ARMs
that adjust for the first time within 60 days of consummation where the
actual, not estimated, new interest rate was not disclosed at
consummation. (If the actual interest rate was disclosed at
consummation, such loans would be excepted from the rule pursuant to
proposed Sec. 1026.20(c)(1)(ii)). The creditors, assignees, or
servicers of such loans would not be able to comply with the proposed
60-day time frame. For such loans, the disclosures proposed by Sec.
1026.20(c) must be provided to consumers as soon as practicable, but
not less than 25 days before a payment at a new level is due.
The Bureau solicits comment about the feasibility of applying the
proposed 60-day period to ARMs that have look-back period of less than
45 days. The Bureau solicits comments about whether a look-back period
of 45 days or longer is feasible going forward for loans that currently
use shorter look-

[[Page 57337]]

back periods and, if not, why not. The Bureau solicits comments on the
extent, if any, to which the relative length of the look-back period
may affect the interest rate risk for the creditor, assignee, or
servicer.
For all ARMs, the Bureau solicits comments on the operational
changes that would be required to provide Sec. 1026.20(c) notices at
least 60 days before payment at a new level is due. Comment is
requested on any factors that would hinder compliance with this time
frames. In light of technological and other advances since the
promulgation of current Sec. 1026.20(c) in 1987, the Bureau also
solicits comment on whether, and if so why, lengthy verification
periods are necessary and on the feasibility of reducing the length of
these verification periods.
20(c)(2)(i) Statement Regarding Changes to Interest Rate and Payment
For interest rate adjustments resulting in corresponding payment
changes, proposed Sec. 1026.20(c)(2)(i)(A) would inform consumers
that, under the terms of their adjustable-rate mortgage, the specific
period in which their interest rate stayed the same will end on a
certain date and that their interest rate and mortgage payment will
change on that date. This disclosure is similar to the pre-consummation
disclosures provided to consumers pursuant to current Sec.
1026.19(b)(2)(i) and Sec. 1026.37(i) as recently proposed by the 2012
TILA-RESPA Proposal.
Under proposed Sec. 1026.20(c)(2)(i)(B), the creditor, assignee,
or servicer must include in the disclosure the date of the impending
and future interest rate adjustments. Proposed Sec.
1026.20(c)(2)(i)(C) would require disclosure of any other changes to
the loan taking place on the same day of the rate adjustment, such as
changes in amortization caused by the expiration of interest-only or
payment-option features.
The first ARM model form tested did not contain the proposed
statement informing consumers of impending and future changes to their
interest rate and the basis for these changes. Although participants
understood that their interest rate was adjusting and this would affect
their payment, they did not understand that these changes would occur
periodically subject to the terms of their mortgage contract. Inclusion
of this statement in the second round of testing successfully resolved
this confusion. All but one consumer tested in round two and three of
testing understood that, under the scenario presented to them, their
interest rate would change annually.\64\
---------------------------------------------------------------------------

\64\ Macro Report, supra note 38, at vii.
---------------------------------------------------------------------------

20(c)(2)(ii) Table With Current and New Interest Rates and Payments
Proposed Sec. 1026.20(c)(2)(ii) would require disclosure of the
following information in the form of a table: (A) The current and new
interest rates; (B) the current and new periodic payment amounts and
the date the first new payment is due; and (C) for interest-only or
negatively- mortizing payments, the amount of the current and new
payment allocated to interest, principal, and property taxes and
mortgage-related insurance, as applicable. The information in this
table would appear within the larger table containing all the required
disclosures.
This table would follow the same order as, and have headings and
format substantially similar to, those in the table in Forms H-4(D)(1)
and (2) in Appendix H of subpart C. The Bureau learned through consumer
testing that, when presented with information in a logical order,
consumers more easily grasped the complex concepts contained in the
proposed Sec. 1026.20(c) notice. For example, the form begins by
informing consumers of the basic purpose of the notice: Their interest
rate is going to adjust, when it will adjust, and the adjustment will
change their mortgage payment. This introduction is immediately
followed by a visual illustration of this information in the form of a
table comparing consumers' current and new interest rates. Based on
consumer testing, the Bureau believes that consumer understanding is
enhanced by presenting the information in a simple manner, grouped
together by concept, and in a specific order that allows consumers the
opportunity to build upon knowledge gained. For these reasons, the
Bureau proposes that creditors, assignees, or servicers disclose the
information in the table as set forth in Forms H-4(D)(1) and (2) in
Appendix H.
Proposed Sec. 1026.20(c)(2)(ii) replaces current Sec.
1026.20(c)(1) and (4), but retains the obligation to disclose the
current and new interest rates and the amount of the new payment.
Proposed Sec. 1026.20(c)(2)(ii)(A) also would require disclosure of
the date when the consumer must start paying the new payment and
proposed comment Sec. 1026.20(c)(2)(ii)(A)-1 clarifies that the new
interest rate must be the actual rate, not an estimate. Proposed rule
Sec. 1026.20(c)(2)(ii) also replaces the language ``prior'' and
``current'' in the current rule with the terms ``current'' and ``new,''
respectively, and deletes comment 20(c)(2)-1 which, among other things,
uses the terms ``prior'' and ``current.'' This change is designed to
make clear that ``current'' means the interest rate and payment in
effect prior to the interest rate adjustment and ``new'' means the
interest rate and payment resulting from the interest rate adjustment.
Proposed comment 20(c)(2)(ii)(A)-1 defines the term ``current''
interest rate as the one in effect on the date of the disclosure. This
more succinct definition replaces the lengthy definition of ``prior
interest rates'' in current comment 20(c)(1) as the interest rate
disclosed in the last notice, as well as all other interest rates
applied to the transaction in the period since the last notice, or, if
there had been no prior adjustment notice, the interest rate applicable
at consummation and all other interest rates applied to the transaction
in the period since consummation.
In all rounds of testing, consumers were presented with model forms
with tables depicting a scenario in which the interest rate and payment
would increase as a result of the adjustment. All participants in all
rounds of testing understood that their interest rate and payment were
going to increase and when these changes would occur.\65\
---------------------------------------------------------------------------

\65\ Id.
---------------------------------------------------------------------------

Current ARM notices are not required to show the allocation of
payments among principal, interest, and escrow accounts for any ARM.
The Bureau proposes including this information in the table for
interest-only and negatively-amortizing ARMs. The Bureau believes this
information would help consumers better understand the risk of these
products by demonstrating that their payments would not reduce the
principal. The Bureau also believes providing the payment allocation
would help consumers understand the effect of the interest rate
adjustment, especially in the case of a change in the ARM's features
coinciding with the interest rate adjustment, such as the expiration of
an interest-only or payment-option feature. Since payment allocation
may change over time, the proposed rule would require disclosure of the
expected payment allocation for the first payment period during which
the adjusted interest rate would apply.
The allocation of payment disclosure was tested in the third round
of testing. The rate adjustment notice tested showed the following
scenario: The first adjustment of a 3/1 hybrid ARM--an ARM with a fixed
interest rate for three years followed by annual interest rate

[[Page 57338]]

adjustments--with interest-only payments for the first three years. On
the date of the adjustment, the interest-only feature would expire and
the ARM would become amortizing. Only about half of participants
understood that their payments were changing from interest-only to
amortizing. Participants generally understood the concept of allocation
of payments but were confused by the table in the notice that broke out
principal and interest for the current payment, but combined the two
for the new amount. As a result, this table was revised so that
separate amounts for principal and interest were shown for all
payments.\66\
---------------------------------------------------------------------------

\66\ Id. at vii-viii. This revision to the allocation
disclosure, which is identical in the proposed Sec. 1026.20(c) and
(d) notices, was made after the third round of testing of the Sec.
1026.20(d) notice, and therefore was not tested with consumers.
---------------------------------------------------------------------------

The Bureau recognizes that certain Dodd-Frank Act amendments to
TILA will restrict origination of non-amortizing and negatively-
amortizing loans. For example, TILA section 129C and the 2011 ATR
(Ability to Repay) Proposal which would implement that provision,
generally require creditors to determine that a consumer can repay a
mortgage loan and include a requirement that these determinations
assume a fully-amortizing loan. Thus, this law and regulation, when
finalized, will restrict the origination of risky mortgages such as
interest-only and negatively-amortizing ARMs.
Other Dodd-Frank amendments to TILA, such as the proposed periodic
statement provisions discussed below, will provide payment allocation
information to consumers for each billing cycle. Thus, consumers who
currently have interest-only or negatively-amortizing loans or may
obtain such loans in the future will receive information about the
interest-only or negatively-amortizing features of their loans through
the payment allocation information in the periodic statement. Also, as
noted above, consumer testing showed that participants were confused by
the allocation table. Since the Bureau was not able to test a revised
version of the model form to see if it rectified the confusion caused
by the allocation table or if the concepts of interest-only and
negatively-amortizing ARMs themselves are the source of the confusion,
the Bureau is uncertain of the value of disclosing this information to
consumers in the ARM interest rate adjustment notice. In view of these
changes to the law and the outcome of consumer testing, the Bureau
solicits comments on whether to include allocation information for
interest-only and negatively-amortizing ARMs in the table proposed
above.
20(c)(2)(iii) Explanation of How the Interest Rate Is Determined
Proposed Sec. 1026.20(c)(2)(iii) would require the ARM disclosures
to explain how the interest rate is determined. Consumer testing
revealed that consumers generally have difficulty understanding the
relationship of the index, margin, and interest rate.\67\ Therefore,
the Bureau is proposing a relatively brief and simple explanation that
the new interest rate is calculated by taking the published index rate
and adding a certain number of percentage points, called the
``margin.'' Proposed Sec. 1026.20(c)(2)(iii) would also require
disclosure of the specific amount of the margin.
---------------------------------------------------------------------------

\67\ Id. at viii.
---------------------------------------------------------------------------

The proposed explanation of how the consumer's new interest rate is
determined, such as adjustment of the index by the addition of a
margin, mirrors the pre-consummation disclosure required around the
time of application by current Sec. 1026.19(b)(2)(iii) and TILA
section 128A requirements for initial interest rate disclosures. It
also parallels the pre-consummation disclosure of the index and margin
proposed in the 2012 TILA-RESPA Proposal. Proposed Sec. 1026.20(c)
also would require disclosure of the name and published source of the
index or formula, as required in other disclosures by Sec.
1026.19(b)(2)(ii) and TILA section 128A.
The proposed rule would replace the current Sec. 1026.20(c)(2)
required disclosure of the index values upon which the ``current'' and
``prior'' interest rates are based. The Bureau believes that providing
consumers with index values is less valuable than providing them with
their actual interest rates. Current comment 20(c)(2)-1, which
addresses the requirement to disclose current and prior interest rate,
would also be deleted.
Consumer testing indicated that the explanation helped consumers
better understand the relationship between interest rate, index, and
margin. It also helped dispel the notion held by many consumers in the
initial rounds of testing that lenders subjectively determined their
new interest rate at each adjustment.\68\ The Bureau believes that its
proposed rule and forms strike an appropriate balance between providing
consumers with key information necessary to understand the basic
interest rate adjustment of their adjustable-rate mortgages without
overloading consumers with complex and confusing technical information.
---------------------------------------------------------------------------

\68\ Id.
---------------------------------------------------------------------------

20(c)(2)(iv) Rate Limits and Unapplied Carryover Interest
Proposed Sec. 1026.20(c)(2)(iv) would require the disclosure of
any limits on the interest rate or payment increases at each adjustment
and over the life of the loan. It also would require disclosure of the
extent to which the creditor has foregone any increase in the interest
rate due to a limit, called unapplied carryover interest. Disclosure of
rate limits is not required by the current rule. The Bureau believes
that knowing the limitations of their ARM rates and payments would help
consumers understand the consequences of interest rate adjustments and
weigh the relative benefits of pursuing alternatives. For example, if
an adjustment causes a significant increase in the consumer's payment,
knowing how much more the interest rate or payment could increase could
help inform a consumer's decision on whether or not to seek alternative
financing.
Both proposed Sec. 1026.20(c)(2)(iv) and current Sec.
1026.20(c)(3) require disclosure of any foregone interest rate
increase. Unlike the current rule, the proposed rule would require an
explanation in the ARM payment change notice that the additional
interest was not applied due to a rate limit and provide the earliest
date such foregone interest may be applied.
Proposed comment 20(c)(2)(iv)-1 regarding unapplied interest
closely parallels, and would replace, current comment 20(c)(3)-1. The
proposed comment explains that disclosure of foregone interest would
apply only to transactions permitting interest rate carryover. It
further explains that the amount of the interest increase foregone is
the amount that, subject to rate caps, can be added to future interest
rate adjustments to increase, or offset decreases in, the rate
determined according to the index or formula.
Consumers had difficulty understanding the concept of interest rate
carryover when it was introduced during the third round of testing.
This difficulty may have been due to the simultaneous introduction of
other complex notions, such as interest-only or negatively-amortizing
features and the allocation of interest, principal, and escrow payments
for such loans. In response, the Bureau has simplified the explanation
of carryover interest.\69\
---------------------------------------------------------------------------

\69\ Id. at viii-ix.
---------------------------------------------------------------------------

The Bureau recognizes that the disclosure of rate limits and
unapplied

[[Page 57339]]

carryover interest provide information that may help consumers better
understand their ARMs. However, the Bureau is considering whether the
help this information may provide outweighs its distraction from other
more key information. Also, as explained above, consumers had
difficulty understanding the concept of carryover interest and the
Bureau does not want this difficulty to diminish the effectiveness of
the proposed Sec. 1026.20(c) disclosures. The Bureau solicits comment
on whether to include rate limits and unapplied carryover interest in
the proposed Sec. 1026.20(c) disclosures.
20(c)(2)(v) Explanation of How the New Payment Is Determined
Proposed Sec. 1026.20(c)(2)(v) would require ARM disclosures to
explain how the new payment is determined, including (A) the index or
formula, (B) any adjustment to the index or formula, such as by
addition of the margin or application of previously foregone interest,
(C) the loan balance, and (D) the length of the remaining loan term.
This explanation is consistent with the disclosures provided at the
time of application pursuant to Sec. 1026.19(b)(2)(iii). It is also
consistent with the TILA section 128A requirement to disclose the
assumptions upon which the new payment is based, which the Bureau
proposes to implement in proposed Sec. 1026.20(d), and thus promotes
consistency among Regulation Z ARM disclosures.
The current rule, as explained in comment 20(c)(4)-1, which the
proposed rule would delete, requires disclosure of the contractual
effects of the adjustment. This includes the payment due after the
adjustment is made and whether the payment has been adjusted. The
proposed rule would require disclosure of this information as well as
the name of the index and any specific adjustment to the index, such as
the addition of a margin or an adjustment due to carryover interest.
Proposed comment 20(c)(2)(v)(B)-1 explains that a disclosure regarding
the application of previously foregone interest is required only for
transactions permitting interest rate carryover. The proposed comment
further explains that foregone interest is any percentage added or
carried over to the interest rate because a rate cap prevented the
increase at an earlier adjustment. As discussed above, the Bureau found
that this explanation helped consumers better understand how the index
or formula and margin determine their new payment and dispelled the
notion held by many consumers in the initial rounds of testing that the
lender subjectively determined their new interest rate, and thus the
new payment, at each adjustment.
The proposal would require disclosure of both the loan balance and
the remaining loan term expected on the date of the interest rate
adjustment. The current rule requires disclosure of the loan balance
but not the remaining loan term. The date on which the balance is taken
differs slightly in proposed Sec. 1026.20(c) from the current rule.
Current comment 20(c)(4)-1 explains that the balance disclosed is the
one that serves as the basis for calculating the new adjusted payment
while the Bureau proposes disclosure of a more current balance, i.e.,
the one expected on the date of the adjustment. Both the proposed rule
and the current rule, as explained in current comment 20(c)(4)-1,
provide for disclosure of any change in the term or maturity of the
loan caused by the adjustment.
Disclosure of the four key assumptions upon which the new payment
is based provides a succinct overview of how the interest rate
adjustment works. It also demonstrates that factors other than the
index can increase consumers' interest rates and payments. Disclosures
of these factors would provide consumers with a snapshot of the current
status of their adjustable-rate mortgages and with basic information to
help them make decisions about keeping their current loan or shopping
for alternatives.
Current comment 20(c)(4)-1 requires disclosure of certain
information related to loans that are not fully amortizing. Disclosure
of similar information is proposed in Sec. 1026.20(c)(2)(vi),
discussed below.
20(c)(2)(vi) Interest-Only and Negative-Amortization Statement and
Payment
Proposed Sec. 1026.20(c)(2)(vi) would require Sec. 1026.20(c)
notices to include a statement regarding the allocation of payments to
principal and interest for interest-only or negatively-amortizing
loans. If negative amortization occurs as a result of the interest rate
adjustment, the proposed rule would require disclosure of the payment
necessary to fully amortize such loans at the new interest rate over
the remainder of the loan term. As explained in proposed comment
20(c)(2)(vi)-1, for interest-only loans, the statement would inform the
consumer that the new payment covers all of the interest but none of
the principal owed and, therefore, will not reduce the loan balance.
For negatively-amortizing ARMs, the statement would inform the consumer
that the new payment covers only part of the interest and none of the
principal, and therefore the unpaid interest will add to the balance or
increase the term of the loan. The current rule, clarified by current
comment 20(c)(5)-1, requires disclosure of the payment necessary to
fully amortize loans that become negatively-amortizing as a result of
the adjustment but does not require the statement regarding
amortization. Proposed Sec. 1026.20(c)(2)(vi) and proposed comments
20(c)(2)(vi)-1 and 20(c)(2)(vi)-2 would replace the current rule and
current comment 20(c)(5)-1.
Both current Sec. 1026.20(c) and the Board's 2009 Closed-End
Proposal to revise Sec. 1026.20(c) include, for ARMs that become
negatively amortizing as a result of the interest rate adjustment,
disclosure of the payment necessary to fully amortize those loans at
the new interest rate over the remainder of the loan term. However, the
Bureau believes there are countervailing considerations regarding
whether to include this information in proposed Sec. 1026.20(c).
The Bureau recognizes that certain Dodd-Frank Act amendments to
TILA will restrict origination of non-amortizing and negatively-
amortizing loans. For example, TILA section 129C and the 2011 ATR
Proposal that would implement that provision, generally require
creditors to determine that a consumer can repay a mortgage loan and
include a requirement that these determinations assume a fully-
amortizing loan. Thus, this law and regulation, when finalized, will
restrict the origination of risky mortgages such as interest-only and
negatively-amortizing ARMs.
Other Dodd-Frank amendments to TILA, such as the periodic statement
proposed by Sec. 1026.41, will include information about non-
amortizing and negatively-amortizing loans in each billing cycle, such
as an allocation of payments. Thus, consumers who currently have
interest-only and negatively-amortizing ARMs or may obtain such loans
in the future will receive certain information about the interest-only
or negatively-amortizing features of their loans in another disclosure,
although this will not include the payment required to fully amortize
negatively-amortizing loans. Disclosure of the payment necessary to
fully amortize negatively-amortizing loans was not consumer tested but
testing of the table showing the payment allocation of interest-only
and negatively-amortizing ARMs indicated that consumers were confused
by the concept of amortization. Thus, the Bureau is weighing the value
of disclosing specific information regarding amortization, such as the
payment needed to fully amortize

[[Page 57340]]

negatively-amortizing ARMs. In view of these changes to the law and the
outcome of consumer testing, the Bureau solicits comments on whether to
include the payment required to amortize ARMs that became negatively
amortizing as a result of an interest rate adjustment.
20(c)(2)(vii) Prepayment Penalty
Proposed Sec. 1026.20(c)(2)(vii) would require disclosure of the
circumstances under which any prepayment penalty may be imposed, such
as selling or refinancing the principal residence, the time period
during which such penalty would apply, and the maximum dollar amount of
the penalty. The current rule does not have this requirement. The
proposed rule cross-references the definition of prepayment penalty in
subpart E, Sec. 1026.41(d)(7)(iv), in the proposed rule for periodic
statements.
Interest rate adjustments may cause payment shock or require
consumers to pay their mortgage at a rate they may no longer be able to
afford, prompting them to consider alternatives such as refinancing. In
order to fully understand the implications of such actions, the Bureau
believes that consumers should know whether prepayment penalties may
apply. Such information should include the maximum penalty in dollars
that may apply and the time period during which the penalty may be
imposed. The dollar amount of the penalty, as opposed to a percentage,
is more meaningful to consumers.
The Bureau also proposes disclosure of any prepayment penalty in
Sec. 1026.20(d) ARM rate adjustment notices and in the periodic
statements proposed by Sec. 1026.41. Consumer testing of the periodic
statement included a scenario in which a prepayment penalty applied.
Most participants understood that a prepayment penalty applied if they
paid off the balance of their loan early, but some participants were
unclear whether it applied to the sale of the home, refinancing, or
other alternative actions consumers could pursue in lieu of maintaining
their adjustable-rate mortgages.\70\ For this reason, the Bureau
proposes to clarify the circumstances under which a prepayment penalty
would apply. The proposed forms would alert consumers that a prepayment
penalty may apply if they pay off their loan, refinance, or sell their
home before the stated date.
---------------------------------------------------------------------------

\70\ Id. at vi.
---------------------------------------------------------------------------

The Bureau recognizes that Dodd-Frank Act amendments to TILA, such
as 129C and the 2011 ATR Proposal that would implement that provision,
would significantly restrict a lender's ability to impose prepayment
penalties. Other Dodd-Frank amendments to TILA, such as the proposed
periodic statement, would provide consumers with information about
their prepayment penalties for each billing cycle. Thus, consumers who
currently have ARMs with prepayment penalty provisions or may obtain
such loans in the future would generally receive information about them
at frequent intervals in another disclosure. In view of these changes
to the law, the Bureau solicits comments on whether to include
information regarding prepayment penalties in proposed Sec.
1026.20(c).
20(c)(3) Format of Disclosures
As discussed above, the Bureau proposes to make Sec. 1026.20(c)
subject to certain of the Sec. 1026.17(a)(1) form requirement to which
Sec. 1026.20(c) disclosures are currently not subject. These
requirements include grouping the disclosures together, segregating
them from everything else, and prohibiting inclusion of any information
not directly related to the Sec. 1026.20(c) disclosures.\71\ As
discussed above in connection with Section 17(a)(1), this revises the
current rule but the Bureau believes the revision is necessary to
effectively highlight information for consumers about changes to their
ARM interest rates and payments.
---------------------------------------------------------------------------

\71\ Other Sec. 1026.17(a)(1) form requirements that currently
apply to Sec. 1026.20(c) would continue to apply, such as the
option of providing the disclosures to consumers in electronic form,
subject to compliance with consumer consent and other applicable
provisions of the E-Sign Act.
---------------------------------------------------------------------------

20(c)(3)(i) All Disclosures in Tabular Form
Proposed Sec. 1026.20(c)(3)(i) would require that the ARM
adjustment disclosures be provided in the form of a table and in the
same order as, and with headings and format substantially similar to,
Forms H-4(D)(1) and (2) in Appendix H to subpart C for interest rate
adjustments resulting in a corresponding payment change.
The proposed ARM adjustment notice contains complex concepts
challenging for consumers to understand. For example, consumer testing
revealed that participants generally had difficulty understanding the
relationship among index, margin, and interest rate.\72\ They also had
difficulty with the concepts of amortization and interest rate
carryover.\73\ As a starting point, the Bureau looked at the model
forms developed by the Board for its 2009 Closed-End Proposal to amend
Sec. 1026.20(c). The Bureau then conducted its own consumer testing.
---------------------------------------------------------------------------

\72\ Macro Report, supra note 38, at viii.
\73\ Id. at viii-ix.
---------------------------------------------------------------------------

The Bureau's testing showed that consumers can more readily
understand these concepts when the information is presented to them in
a simple manner and in the groupings contained in the model forms. The
Bureau also observed that consumers more readily understood the
concepts when they were presented in a logical order, with one concept
presented as a foundation to understanding other concepts. For example,
the form begins by informing consumers of the purpose of the notice:
That their interest rate is going to adjust, when it will adjust, and
that the adjustment will change their mortgage payment. This
introduction is immediately followed by a table visually showing
consumers' current and new interest rates. In another example, the
proposed notice informs consumers about their index rate and margin
before explaining how the new payment is calculated based on those
factors, as well as other factors such as the loan balance and
remaining loan term.
Based on consumer testing, the Bureau believes that consumer
understanding is enhanced by presenting the information in a simple
manner, grouped together by concept, and in a specific order that
allows consumers the opportunity to build upon knowledge gained. For
these reasons, the Bureau proposes that creditors, assignees, or
servicers disclose the information required by proposed Sec.
1026.20(c) with headings, content, and format substantially similar to
Forms H-4(D)(1) and (2) in Appendix H to this part.
Over the course of consumer testing, participant comprehension
improved with each successive iteration of the model form. As a result,
the Bureau believes that displaying the information in tabular form
focuses consumer attention and lends to greater understanding.
Similarly, the Bureau found that the particular content and order of
the information, as well as the specific headings and format used,
presented the information in a way that consumers both could understand
and from which they could benefit.
20(c)(3)(ii) Format of Interest Rate and Payment Table
Proposed Sec. 1026.20(c)(3)(ii) would require tabular format for
ARM payment change notices of: The current and new interest rates, the
current and new payments, and the date the first new payment is due.
For interest-only and negatively-amortizing ARMs, the table would also
include the allocation of

[[Page 57341]]

payments. This table would be located within the table proposed by
Sec. 1026.20(c)(3)(i). This table is substantially similar to the one
tested by the Board for its 2009 Closed-End Proposal to revise Sec.
1026.20(c). The proposal would require the table to follow the same
order as, and have headings, content, and format substantially similar
to, Forms H-4(D)(1) and (2) in Appendix H of subpart C.
Disclosing the current interest rate and payment in the same table
allows consumers to readily compare those rates with the adjusted rate
and new payment. Consumer testing revealed that nearly all participants
were readily able to identify the table and understand the content.\74\
The new interest rate and payment and date the first new payment is due
is key information the consumer must know in order to commence payment
at the new rate. For these reasons, the Bureau proposes locating this
information prominently in the disclosure.
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\74\ Id. at vii.
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20(d) Initial Rate Adjustments
Elimination of current Sec. 1026.20(d). Current Sec. 1026.20(d)
permits creditors to substitute information provided in accordance with
variable-rate subsequent disclosure regulations of other Federal
agencies for the disclosures required by Sec. 1026.20(c). In the 2009
Closed-End Proposal, the Board proposed amending the regulation that is
now Sec. 1026.20, including deleting the provision that is current
Sec. 1026.20(d). The Board stated that, as of August 2009, there were
``[n]o comprehensive disclosure requirements for variable-rate mortgage
transactions * * * in effect under the regulations of the other Federal
financial institution supervisory agencies.'' \75\ The Board explained
that when it originally adopted the provision in 1987, as footnote 45c
of Sec. 226.20(c) of Regulation Z,\76\ the regulations of other
financial institution supervisory agencies--namely the OCC, the Federal
Home Loan Bank Board (the FHLBB), and HUD--contained subsequent
disclosure requirements for ARMs.\77\
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\75\ 74 FR 43232, 43272 (Aug. 26, 2009).
\76\ Regulation Z was previously implemented by the Board at 12
CFR 226. In light of the general transfer of the Board's rulemaking
authority for TILA to the Bureau, the Bureau adopted an interim
final rule recodifying the Board's Regulation Z at 12 CRF 1026.
\77\ 74 FR 43232, 43273 (citing 52 FR 48665, 48671 (Dec. 24,
1987)).
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The Bureau proposes deleting the current content of Sec.
1026.20(d) because it is not aware of any other Federal financial
institution supervisory agency rules requiring comprehensive disclosure
requirements for ARMs. The Bureau solicits comment on whether there is
any reason to retain this provision. The Bureau solicits comments, for
example, on whether this proposed regulatory change would have
implications for rights under the Alternative Mortgage Transaction
Parity Act. For the reasons discussed above with respect to proposed
Sec. 1026.20(c), the Bureau proposes this deletion pursuant to its
authority under TILA sections 105(a) and 128(f)(1)(H) and DFA section
1405(b).
New initial ARM interest rate adjustment disclosures. In the
section that would be left vacant by the proposed deletion of Sec.
1026.20(d), the Bureau proposes to implement the initial ARM adjustment
notice mandated by TILA section 128A. Proposed Sec. 1026.20(d) would
require disclosure to consumers with certain adjustable-rate mortgages,
approximately six months prior to the initial interest rate adjustment,
of key information about the upcoming adjustment, including the new
rate and payment and options for pursuing alternatives to their
adjustable-rate mortgage. This initial ARM adjustment notice would
harmonize with the ARM payment change notice that would be required
under the proposed revisions to Sec. 1026.20(c). The Bureau believes
that promoting consistency between the ARM disclosure provisions of
proposed Sec. 1026.20(c) and (d) would reduce compliance burdens on
industry and minimize consumer confusion.
Form of delivery. As required under TILA section 128A(b), proposed
Sec. 1026.20(d) would require that the initial ARM interest rate
adjustment notices be provided to consumers in writing, separate and
distinct from all other correspondence. Proposed comment 20(d)-2
explains that to satisfy this requirement, the notices must be mailed
or delivered separately from any other material. For example, in the
case of mailing the disclosure, there should be no material in the
envelope other than the initial interest rate adjustment notice. In the
case of emailing the disclosure, the only attachment should be the
initial interest rate adjustment notice. This requirement contrasts
with proposed Sec. 1026.20(c), which would be subject to the less
stringent segregation requirements of Sec. 1026.17(a)(1), as amended
by the Bureau's proposal. The proposed comment further explains that
the notices proposed by Sec. 1026.20(d) may be provided to consumers
in electronic form with consumer consent, pursuant to the requirements
of Sec. 1026.17(a)(1). The Bureau solicits comments on whether
consumer protection would be compromised by providing Sec. 1026.20(d)
notices on a separate piece of paper but in the same envelope or as
email correspondence with other messages from the creditor, assignee,
or servicer.
Creditors, assignees, and servicers. Proposed Sec. 1026.20(d)
applies to creditors, assignees, and servicers. Proposed comment 20(d)-
1 clarifies that a creditor, assignee, or servicer that no longer owns
the mortgage loan or the mortgage servicing rights is not subject to
the requirements of Sec. 1026.20(c). This proposed language tracks, in
part, the requirements of TILA section 128A that creditors and
servicers must provide the initial ARM interest rate adjustment
notices, but adds assignees to the list of covered persons. The Bureau
believes that holding creditors, but not assignees, liable under the
regulation would result in inconsistent levels of consumer protection
and an unlevel playing field for owners of mortgages.
It is a common practice for creditors to sell many or all of the
loans they originate rather than hold them in portfolio. If the
creditor were to sell the ARM, the consumer would have no recourse
against the subsequent holder for violations of Sec. 1026.20(d) if
assignees were not made subject to Sec. 1026.20(d). Shielding
assignees from liability under the proposed rule would have
particularly deleterious effects on consumers seeking relief against a
servicer to whom an assignee sold the ARM's mortgage servicing rights,
if that servicer had insufficient resources to satisfy a judgment the
consumer may obtain for violations of Sec. 1026.20(d). Consumers who
happen to have ARMs sold by the original creditor to a subsequent
holder would have less protection under the regulation than consumers
with ARMs that are retained in portfolio by the creditor originating
the loan. It also would create an unfair advantage for assignees. The
Bureau believes that the protections afforded under proposed Sec.
1026.20(d) should not be determined by the happenstance of loan
ownership or favor one sector of the mortgage market over another. For
these reasons, the Bureau proposes to make assignees, along with
creditors and servicers, subject to the requirements Sec. 1026.20(d).
Proposed comment 20(d)-1 explains that any provision of subpart C
that applies to the disclosures required by Sec. 1026.20(d) also
applies to creditors, assignees, and servicers. This is the case even
where the other provisions of subpart C refer only to creditors. For
the reasons discussed above, the Bureau

[[Page 57342]]

proposes that the requirements of other regulations that apply to the
Sec. 1026.20(d) initial ARM interest rate adjustment notices apply to
assignees as well as to creditors and servicers.
The extension of the requirement to assignees is authorized under
TILA section 105(a) because, for the reasons discussed above, it is
necessary and proper to effectuate the purposes of TILA, including to
assure a meaningful disclosure of credit terms and protect the consumer
against unfair credit billing practices, and to prevent circumvention
or evasion of TILA. The Bureau also proposes to use its authority under
DFA section 1405(b) to extend the applicability of the initial ARM
adjustment notices under TILA section 128A to assignees. As discussed
above, this extension would serve the interest of consumers and the
public interest. Application of proposed Sec. 1026.20(d) to assignees
is consistent with current Sec. 1026.20(c) commentary applying that
disclosure requirement to subsequent holders. Application of proposed
Sec. 1026.20(d) to creditors, assignees, and servicers also promotes
consistency with proposed Sec. 1026.20(c) and the periodic statement
proposed by Sec. 1026.41, which also apply to creditors, assignees,
and servicers.
Timing. Proposed Sec. 1026.20(d) generally follows the statutory
requirement in TILA section 128A that the initial interest rate
adjustment notice must be provided to consumers during the one-month
period that ends six months before the date on which the interest rate
in effect during the introductory period ends. Thus, the disclosure
must be provided six to seven months before the initial interest rate
adjustment. The Sec. 1026.20(d) disclosures are designed to avoid
payment shock so as to put consumers on notice of upcoming changes to
their adjustable-rate mortgages that may result in higher payments. The
six to seven month advance notice allows sufficient time for consumers
to consider their alternatives if the notice discloses an increase in
payment that they cannot afford. One alternative consumers might
consider is refinancing their home. In the current market, ``it now
takes the nation's biggest mortgage lenders an average of more than 70
days to complete a refinance . * * * '' \78\
---------------------------------------------------------------------------

\78\ Timiraos & Simon, supra note 52.
---------------------------------------------------------------------------

In the interest of consistency within Regulation Z, proposed Sec.
1026.20(d) ties its timing requirement to the date the first payment at
a new level is due rather than the date of the interest rate
adjustment. This is consistent with the time frame for both current and
proposed Sec. 1026.20(c). Since interest generally is paid in arrears,
for most ARMs, this adds another approximately 30 days to the time
frame for delivery of the disclosures. Thus, the notices proposed by
Sec. 1026.20(d) must be provided to consumers seven to eight months in
advance of payment at the adjusted rate. Measured in days, the initial
interest rate adjustment disclosures are due at least 210, but not more
than 240, days before the first payment at the adjusted level is due.
By tying the timing of the disclosure to the date payment at a new
level is due and calculating it in days rather than months, proposed
Sec. 1026.20(d) is more precise, since months can vary in length, and
maintains consistency with the timing requirements of proposed Sec.
1026.20(c).
Pursuant to TILA section 128A, for ARMs adjusting for the first
time within six months after consummation, the proposed Sec.
1026.20(d) initial interest rate adjustment notices must be provided at
consummation. The proposed rule states that when this occurs, the
disclosure must be provided 210 days before the first date payment at a
new level is due. The proposed rule ties the timing of this requirement
to days rather than months, thereby ensuring both internal consistency
and consistency with Sec. 1026.20(c).
Proposed comment 20(d)-2 explains that the timing requirements
exclude any grace period. It also explains that the date the first
payment at the adjusted level is due is the same as the due date of the
first payment calculated using the adjusted interest rate.
SBREFA. The small entity representatives (SERs) that advised the
SBREFA panel on the mortgage servicing rules under consideration by the
Bureau expressed doubt as to the value of the Sec. 1026.20(d) notices
because providing the notices so many months in advance of the interest
rate adjustment would require disclosure of an estimated, rather than
the actual, interest rate and payment due.\79\ Several SERS expressed
concern that the estimates would confuse consumers. They also noted
that, in addition to the requirement to provide initial interest rate
adjustment notices under Sec. 1026.20(d), servicers would remain
obliged to also provide a later notice in the case of a payment change,
pursuant to Sec. 1026.20(c), for the initial rate adjustments in order
to apprise consumers of the actual amount of their interest rate and
payment resulting from the adjustment. They expressed concerns about
the one-time development costs and on-going costs associated with
providing both the initial ARM adjustment notices and the recurring
notices under Sec. 1026.20(c).\80\
---------------------------------------------------------------------------

\79\ See SBREFA Final Report, supra note 22, at 20-21, 29-30.
\80\ Id.
---------------------------------------------------------------------------

Consistent with this recommendation, after conclusion of the SBREFA
process, the Bureau conducted further policy analysis of a possible
exemption for small creditors, assignees, and servicers. After
additional consideration, however, the Bureau decided to propose that
notices under both Sec. 1026.20(c) and Sec. 1026.20(d) be provided.
The Bureau believes that the two notices serve related but distinct
purposes, such that eliminating the Sec. 1026.20(c) notice could harm
consumers. In particular, the Sec. 1026.20(d) notice is designed to
provide consumers with very early warning that their rates are about to
change, so that consumers can begin exploring other options. If the
consumer chooses not to do so or has not completed that process, a
notice closer to the adjustment date that reflects the actual rather
than estimated change in payment is still valuable to the consumer as
both a second warning and budgeting tool. While the ARM interest rate
adjustment information proposed for the first payment change notice
required by proposed Sec. 1026.20(c) could be provided in the periodic
statement that would be provided to consumers under proposed Sec.
1026.41, discussed below, rather than as a standalone notice under
Sec. 1026.20(c), the Bureau notes that that might require greater
programming complexity in connection with the periodic statements. In
addition, the Bureau is proposing to exempt certain small servicers
from the periodic statement requirement.
The Bureau also believes that the amount of burden reduction for
servicers from an exemption from providing a Sec. 1026.20(c) notice in
connection with an initial interest rate adjustment would be extremely
minimal, given that servicers would have to maintain systems to
generate Sec. 1026.20(c) notices for each subsequent interest rate
adjustment resulting in a corresponding payment change. Thus, excepting
small servicers from providing the first Sec. 1026.20(c) notice would
not provide a significant reduction in burden.
The Bureau also considered whether to except small servicers,
creditors, and assignees from the initial ARM interest rate notice
required by Sec. 1026.20(d). The SERs expressed concern that consumers
would be confused by receiving estimates, rather than their actual new
interest rate and payment, in the

[[Page 57343]]

Sec. 1026.20(d) notice.\81\ However, the Bureau believes the best
approach to address this concern is to clarify the contents of the
notice, rather than eliminate it entirely. Congress has made a specific
policy judgment that an early notice has value to consumers. Creating
an exemption for small creditors, assignees, and servicers would
deprive certain consumers of the benefits that Congress intended,
specifically advance notice seven to eight months before payment at a
new level is due after the initial interest rate adjustment to allow
consumers time to weigh the potential impacts of a rate change and to
explore alternative actions. An exception would also deprive certain
consumers of the information provided in the Sec. 1026.20(d) notice
about alternatives and how to contact their State housing finance
authority and access a list of government-certified counseling agencies
and programs.
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\81\ Id. at 21.
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On balance, the Bureau does not believe that the Sec. 1026.20(d)
notice imposes a significant burden on small entities because it is a
one-time notice. Moreover, the notice is designed to be consistent with
the Sec. 1026.20(c) notice in order to, among other things, reduce the
burden on industry. For these reasons, the Bureau proposes generally to
require all creditors, assignees, and servicers to provide the ARM
interest rate adjustment notices required by proposed Sec. 1026.20(c)
and (d). However, the Bureau seeks comment on the issues raised by the
two sets of disclosures, particularly whether the burden imposed on
small entities by the requirements of Sec. 1026.20(d) outweighs the
consumer protection benefits afforded by the early notice of the
initial ARM interest rate adjustment.
The Bureau also solicits comment on whether small servicers (or
creditors, assignees, and servicers in general) that provide a periodic
statement to a consumer with an ARM should be permitted or required to
provide the information required by Sec. 1026.20(c), for an initial
interest rate adjustment for which a notice under Sec. 1026.20(d) is
required, in a periodic statement provided to consumers 60 to 120 days
before payment at a new level is due. The Bureau further solicits
comment on whether to permit or require all Sec. 1026.20(c) notices
required by the proposed rule to be incorporated into periodic
statements in lieu of providing a separate notice.
Conversions. Proposed comment 20(d)-3 explains that in the case of
an open-end account converting to a closed-end adjustable-rate
mortgage, Sec. 1026.20(d) disclosures are not required until the
implementation of the initial interest rate adjustment post-conversion.
Under the proposed rule, the conversion is analogous to consummation.
Thus, like other ARMs subject to the requirements of proposed Sec.
1026.20(d), disclosures for these converted ARMs would not be required
until the first interest rate adjustment following the conversion. This
proposal is consistent with the Sec. 1026.20(c) proposal for open-end
accounts converting to closed-end adjustable-rate mortgages.
20(d)(1) Coverage of the Initial Rate Adjustment Disclosures
20(d)(1)(i) In General
Proposed Sec. 1026.20(d)(1)(i) defines an adjustable-rate mortgage
or ARM as a closed-end consumer credit transaction secured by the
consumer's principal dwelling in which the annual percentage rate may
increase after consummation. The proposed rule uses the wording from
the definitions of ``adjustable-rate'' and ``variable-rate'' mortgage
in subpart C of Regulation Z. It does this to promote consistency
within the regulation. Proposed comment 20(d)(1)(i)-1 explains that the
definition of ARM means variable-rate mortgage as that term is used
elsewhere in subpart C of Regulation Z, except as provided in proposed
comment 20(d)(1)(ii)-2.
Applicability to closed-end transactions. The Bureau believes that
TILA section 128A and the implementing disclosures in proposed
1026.20(d) primarily benefit consumers with closed-end adjustable-rate
mortgages. In contrast, open-end credit transactions secured by a
consumer's dwelling (home equity plans) with adjustable-rate features
are subject to distinct disclosure requirements under TILA and subpart
B of Regulation Z that substitute for the proposed Sec. 1026.20(c) and
(d) disclosures. Therefore, as discussed below, the Bureau proposes to
use its authority under TILA section 105(a) and (f) to exempt
adjustable-rate home equity plans from the requirements of proposed
Sec. 1026.20(d).
Section 127A of TILA and Sec. 1026.40(b) and (d) of Regulation Z
require the disclosure of specific information about home equity plans
at the time an application is provided to the consumer. These
disclosures include specific information about variable or adjustable-
rate plans, including, among other things, the fact that the plan has a
variable or adjustable-rate feature, the index used in making
adjustments and a source of information about the index, an explanation
of how the index is adjusted such as by the addition of a margin, and
information about frequency of and limitations to changes to the
applicable rate, payment amount, and index. See Sec. 1026.40(d)(12).
The required account opening disclosures for home equity plans also
must include information about any variable or adjustable-rate feature,
including the circumstances under which rates may increase, limitations
on the increase, and the effect of any increase. See Sec.
1026.6(a)(1)(ii) and (3)(vii).
Thus, Regulation Z already contains a comprehensive scheme for
disclosing to consumers the variable or adjustable-rate features of
home equity plans. The Bureau believes that requiring servicers to
provide information about the index and an explanation of how the
interest rate and payment would be determined, as required by TILA
section 128A and proposed by Sec. 1026.20(d), in connection with home
equity plans would be inconsistent with, and largely duplicative of,
the current disclosure regime and would be confusing and unhelpful for
consumers. Moreover, unlike closed-end adjustable-rate mortgages,
consumers with home equity plans generally may draw from the
adjustable-rate feature on the account at any time. Thus, providing the
good faith estimate of the amount of the monthly payment that would
apply after the interest rate adjustment, as required by TILA section
128A and proposed by Sec. 1026.20(d), would not be useful because the
estimate would be based on the outstanding loan balance at the time the
notice is given, which would change after the notice is given anytime
the consumer withdraws funds. Finally, the alerts to consumers required
by TILA section 128A and proposed by Sec. 1026.20(d) would not provide
a benefit to consumers with home equity plans with adjustable-rate
features. Generally, introductory periods for adjustable-rate features
on home equity plans tend to last less than six months. The Bureau
believes it is unlikely consumers would consider pursuing alternatives
so close in time to opening their home equity plans.
Two other factors also support the Bureau's use of the TILA section
105(a) exemption authority to exclude home equity plans from the
requirements of proposed Sec. 1026.20(d). First, use of the term
``consummation'' in TILA section 128A supports the application of
proposed Sec. 1026.20(d) only to closed-end transactions. Regulation Z
generally requires disclosures for closed-end credit transactions to be
provided ``before consummation of the

[[Page 57344]]

transaction.'' By contrast, Regulation Z generally requires account
opening disclosures for open-end credit transactions to be provided
``before the first transaction is made under the plan.'' See Sec.
1026.17(b) and Sec. 1026.5(b)(1)(i). Because Regulation Z uses the
term ``consummation'' in connection with closed-end credit
transactions, use of the word ``consummation'' in DFA section 1418
supports the Bureau's proposed exemption for open-end home equity plans
from the requirements of Sec. 1026.20(d). Second, DFA section 1418 is
codified in TILA section 128A. The adjacent and similarly numbered
provision, TILA section 128, is entitled and applies only to ``Consumer
Credit not under Open End Credit Plans.'' Congress's placement of the
new ARM disclosure requirement in a segment of TILA that applies only
to closed-end credit transactions further supports the Bureau's
decision to exempt open-end credit transactions, in this case variable
or adjustable-rate home equity plans, from the requirements of that
section.
For the reasons discussed above, exempting home equity plans from
the requirements of Sec. 1026.20(d) is necessary and proper under TILA
section 105(a) to further the consumer protection purposes of TILA and
facilitate compliance. As discussed above, the Bureau believes that the
information contained in the notice proposed by Sec. 1026.20(d) would
not be meaningful to consumers with home equity plans that have
adjustable-rate features and could lead to information overload and
confusion for those consumers. The Bureau further proposes the
exemption for open-end transactions pursuant to its authority under
TILA section 105(f). As discussed above, because open-end transactions
are subject to their own regulatory scheme, are not structured in such
a way as to garner benefit from the disclosures proposed by Sec.
1026.20(d), and the placement of 128A in TILA indicates congressional
intent to limit its coverage to closed-end transactions, the Bureau
believes, in light of the factors in TILA section 105(f)(2), that
requiring the proposed Sec. 1026.20(d) notice for open-end accounts
that have adjustable-rate features would not provide a meaningful
benefit to consumers. Specifically, the Bureau considers that the
exemption is proper irrespective of the amount of the loan or the
status of the borrower (including related financial arrangements,
financial sophistication, and the importance to the borrower of the
loan). The Bureau further notes, in light of TILA section 105(f)(2)(D),
that the requirements in Sec. 1026.20(d) would only apply to loans
secured by the consumer's principal dwelling.
Savings Clause. Regarding other categories of loans to which
proposed Sec. 1026.20(d) would apply, the statute's provisions apply
to hybrid ARMs, which it defines as ``consumer credit transaction[s]
secured by the consumer's principal residence with a fixed interest
rate for an introductory period that adjusts or resets to a variable
interest rate after such period.'' \82\ The statute, however, has a
``savings clause,'' that allows the Bureau to require the initial
interest rate adjustment notice for loans that are not hybrid ARMs. The
Bureau proposes to use this authority generally to extend the
disclosure requirements of proposed Sec. 1026.20(d) to ARMs that are
not hybrid. The Bureau believes this approach is necessary because both
hybrid ARMs and those that are not hybrid may subject consumers to the
same payment shock that the advance notice of the first interest rate
adjustment is designed to address. For example, both 3/1 hybrid ARMs,
where the initial interest rate is fixed for three years and then
adjusts every year after that, and 3/3 ARMs, where the initial interest
rate adjusts after three years and then every three years after that,
adjust for the first time after three years and present the same
potential payment shock to consumers holding either mortgage. The same
is true for 5/1 hybrid ARMs and 5/5 ARMs, 7/1 hybrid ARMs and 7/7 ARMs,
10/1 hybrid ARMs and 10/10 ARMs, etc. In sum, conventional ARMs and
hybrid ARMs can have the same initial periods without an interest rate
adjustment and thus, the same potential jump in their interest rates at
the time of the first interest rate adjustment.
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\82\ TILA section 128A. For example, a \3/1\ hybrid ARM has a
three-year introductory period with a fixed interest rate, after
which the interest rate adjusts annually. ARMs that are not hybrid,
on the other hand, have no period with a fixed rate of interest.
Such ARMs start out with a rate that adjusts at set intervals, such
as \3/3\ (adjusts every three years), \5/5\ (adjusts every five
years), etc.
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Proposed comment 20(d)(1)(i)-1 clarifies that the initial ARM
adjustment notice are not limited to transactions financing the initial
acquisition of the consumer's principal dwelling but also would apply
to other closed-end ARM transactions secured by the consumer's
principal dwelling, consistent with current comment 19(b)-1 and
proposed Sec. 1026.20(c).
20(d)(1)(ii) Exceptions
Proposed Sec. 1026.20(d)(1)(ii) excepts construction loans with
terms of one year or less from the disclosure requirements of Sec.
1026.20(d). Proposed Sec. 1026.20(c) includes the same exception.
Proposed comment 20(d)(1)(ii)-1 applies the standards in comment 19(b)-
1 for determining the term of a construction loan.
Construction loans generally have short terms of six months to one
year and are subject to frequent interest rate adjustments, usually
monthly or quarterly. The construction period usually involves several
disbursements of funds at times and in amounts that are unknown at the
beginning of that period. The consumer generally pays only accrued
interest until construction is completed. The creditor, assignee, or
servicer, in addition to disbursing payments in stages, closely
monitors the progress of construction. Generally, at the completion of
the construction, the construction loan is converted into permanent
financing in which the loan amount is amortized just as in a standard
mortgage transaction. See comment 17(c)(6)-2 for additional information
on construction loans.
The frequent interest rate adjustments, multiple disbursements of
funds, the short loan term, and on-going communication between the
creditor, assignee, or servicer and consumer distinguish construction
loans from other ARMs. These loans are meant to function as bridge
financing until construction is completed and permanent financing can
be put in place. Consumers with construction ARM loans are not at risk
of payment shock like other ARM where interest rates change less
frequently. Moreover, given the frequency of interest rate adjustments
on construction loans, creditors, assignees, or servicers would have
difficulty complying with the proposed requirement to provide the
notice to consumers 210 to 240 days before the first payment at the
adjusted level is due. For these reasons, providing notices under Sec.
1026.20(d) for these loans would not provide a meaningful benefit to
the consumer nor improve consumers' awareness and understanding of
their construction loans with terms of less than one year.
Authority. Accordingly, the Bureau proposes to use its authority
under TILA section 105(a) to except construction loans with terms of
one year or less from the requirements of proposed Sec. 1026.20(d). As
explained above, the disclosure requirements of Sec. 1026.20(d) would
be confusing and difficult to comply with in the context of a short-
term construction loan. Thus, exempting such loans is necessary and
proper under TILA section 105(a) to further the consumer protection

[[Page 57345]]

purposes of TILA and facilitate compliance. The Bureau further proposes
the exemption for construction loans pursuant to its authority under
TILA section 105(f). For the reasons discussed above, the Bureau
believes, in light of the factors in TILA section 105(f)(2), that
requiring the Sec. 1026.20(d) notice for construction loans with terms
of one year or less would not provide a meaningful benefit to
consumers. Specifically, the Bureau considers that the exemption is
proper irrespective of the amount of the loan or the status of the
borrower (including related financial arrangements, financial
sophistication, and the importance to the borrower of the loan). The
Bureau further notes, in light of TILA section 105(f)(2)(D), that the
requirements in Sec. 1026.20(d) would only apply to loans secured by
the consumer's principal dwelling.
The Bureau solicits comment on whether there are other ARMs with
terms of less than one year, and whether such ARMs should be excepted
from the requirements of Sec. 1026.20(d). If the time period of the
advance notice for consumers required by Sec. 1026.20(d) is not
appropriate for these short-term ARMs, the Bureau solicits comment on
what period would be appropriate that would also provide consumers with
sufficient notice of the estimated initial adjusted interest rate and
any new payment.
Proposed comment 20(d)(1)(ii)-2 discusses other loans to which the
proposed rule does not apply. Proposed comment 20(d)(1)(ii)-2 is
consistent with proposed comment 20(c)(1)(ii)-3 with regard to the
loans which are not subject to the proposed ARM disclosure rules.
Certain Regulation Z provisions treat some of these loans as variable-
rate transactions, even if they are structured as fixed-rate
transactions. The proposed comment clarifies that, for purposes of
proposed Sec. 1026.20(d), the following loans, if fixed-rate
transactions, are not ARMs and therefore are not subject to ARM notices
pursuant to Sec. 1026.20(d): Shared-equity or shared-appreciation
mortgages; price-level adjusted 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; graduated-payment mortgages or step-rate transactions;
renewable balloon-payment instruments; and preferred-rate loans. The
particular features of these types of loans may trigger interest rate
or payment changes over the term of the loan or at the time the
consumer pays off the final balance. However, these changes are based
on factors other than a change in the value of an index or a formula.
For example, whether or when the interest rate will adjust for the
first time for a preferred-rate loan with a fixed interest rate is
likely not knowable six to seven months in advance of the adjustment.
This is because the loss of the preferred rate is based on factors
other than a formula or change in the value of an index agreed to at
consummation. Because the enumerated loans are not ARMs they are not
covered by TILA section 128A or proposed Sec. 1026.20(d) and require
no disclosures under this rule.
20(d)(2) Content of Initial Rate Adjustment Disclosures
Statutorily-required content. TILA section 128A requires that the
following content be included in the Sec. 1026.20(d) initial rate
adjustment notice: (1) Any index or formula used in adjusting or
resetting the interest rate and a source of information about the index
or formula; (2) an explanation of how the new rate and payment would be
determined, including how the index may be adjusted, such as by the
addition of a margin; (3) a good faith estimate, based on accepted
industry standards, of the amount of the resulting monthly payment
after the adjustment or reset and the assumptions on which the estimate
is based; (4) a list of alternatives that the consumers may pursue,
including refinancing, renegotiation of loan terms, payment
forbearance, and pre-foreclosure sales, and descriptions of actions the
consumer must take to pursue these alternatives; (5) contact
information for HUD- or State housing agency-approved housing
counselors or programs reasonably available; and (6) contact
information for the State housing finance authority for the State where
the consumer resides.
The Bureau interprets the explanation of how the interest rate and
payments will be determined set forth in (2) above to require
disclosure of any adjustment to the index, for example, the amount of
any margin and an explanation of what a margin is; the loan balance;
the length of the remaining term of the loan; and any change in the
term or maturity of the loan caused by the interest rate adjustment.
The Bureau interprets the good faith estimate, required under (3)
above, to require disclosure, when available, of the exact amount of
the new monthly payment after the interest rate adjustment. As
discussed below, the Bureau believes that in most cases the lengthy
advance notice required by proposed Sec. 1026.20(d) will necessitate
disclosure in the initial ARM interest rate adjustment notices of
estimates of the new interest rate and payment, rather than exact
amounts. The Bureau believes, however, that a good faith estimate would
require disclosure of the exact amount of the new monthly payment, if
known, rather than an estimate. The Bureau interprets the assumptions
on which the good faith estimate is based to require disclosure, among
other things, of the current interest rate and payment, as well as the
amount of the new interest rate after the adjustment, if known, or an
estimate if the exact amount of the new interest rate is not known. As
with the new payment amount, the Bureau believes that generally only an
estimate of the new interest rate will be available at the time the
notice is provided, but interprets the statute to require disclosure of
the exact amount of the new interest rate, if this amount is available.
Even if this content were not contemplated under the statute, the
Bureau believes it would be appropriate to use its adjustment authority
to require disclosure of such information for the reasons discussed
below.
Additional content. In addition to the content explicitly required
under the statute, the Bureau proposes, as discussed in more detail
below, to require the ARM initial interest rate notices to include the
date of the disclosures; the telephone number of the creditor,
assignee, or servicer; statements specifying that the consumer's
interest rate is scheduled to adjust pursuant to the terms of the loan,
that the adjustment may effect a change in the mortgage payment, the
specific time period the current interest rate has been in effect, the
dates of the upcoming and future interest rate adjustments, and any
other changes to loan terms, features, or options taking effect on the
same date as the interest rate adjustment; the due date of the first
payment after the adjustment; for interest-only or negatively-
amortizing payments, the amount of the current and new payment
allocated to principal, interest, and taxes and insurance in escrow, as
applicable; a statement regarding payment allocation for interest-only
and negatively-amortizing loans, including the payment required to
fully amortize an ARM that becomes negatively-amortizing as a result of
the interest rate adjustment; any interest rate or payment limits and
any foregone interest; if the new interest rate or new payment provided
is an estimate, a statement that another disclosure containing the
actual new interest rate and payment will be provided within a
specified time period--if the actual

[[Page 57346]]

interest rate adjustment results in a corresponding payment change; and
the amount and expiration date of any prepayment penalty and the
circumstances under which such penalty might apply.
The proposed additional content, including the content that the
Bureau interprets to be required under the statute, is authorized under
TILA section 105(a). As further discussed below, the proposed
additional content is necessary and proper to assure that consumers
understand the consequences of the upcoming ARM rate adjustments and
have sufficient time to adjust their behavior accordingly, thereby
avoiding the uninformed use of credit and protecting consumers against
inaccurate and unfair credit billing practices. The proposed additional
content is further authorized under DFA section 1032 by assuring that
the key features of consumers' adjustable-rate mortgage, over the term
of the ARM, are ``fully, accurately, and effectively disclosed to
consumers in a manner that permits consumers to understand [its] costs,
benefits, and risks.'' The proposed additional information better
informs consumers of the implications of interest-rate adjustments
before they happen and thus enables them to weigh their options going
forward. For the same reasons, the Bureau believes, consistent with DFA
section 1405(b), that the proposed additional content would improve
consumer awareness and understanding of their residential ARM loans and
is thus in the interest of consumers and the public interest. The
proposed additional content is also consistent with TILA section
128A(b) itself, which provides a non-exclusive list of required
content, thereby statutorily contemplating additional content.
Good faith estimate. As noted above, TILA section 128A provides
that the Sec. 1026.20(d) interest rate adjustment disclosures should
include ``[a] good faith estimate, based on accepted industry standards
* * * of the amount of the monthly payment that will apply after the
date of the adjustment or reset, and the assumptions on which the
estimate is based.'' ARM contracts generally provide that the
calculation of the new interest rate and payment be based on an index
value published closer to the date of the interest rate adjustment than
those available during the time frame within which creditors,
assignees, and servicers must provide the initial ARM interest rate
adjustments pursuant to Sec. 1026.20(d). See 20(c)(2) above for a full
discussion of the time frame generally required for ascertaining the
index rate used to calculate the adjusted interest rate and new
payment. Thus, it is unlikely creditors, assignees, and servicers will
be able to disclose the actual new interest rate and payment in the
initial ARM interest rate notices. For this reason, consistent with the
language of the statute regarding estimates, proposed Sec.
1026.20(d)(2) provides that if the new interest rate or any other
calculation using the new interest rate is not known as of the date of
the disclosure, use of an estimate, labeled as such, is permissible.
The Bureau interprets the statutory good faith standard to require
disclosure of the actual amounts if they are available at the time the
creditor, assignee, or servicer provides the initial ARM interest rate
adjustment notices to consumers pursuant to the time frame required by
proposed Sec. 1026.20(d). Since the notice is designed to alert
consumers to upcoming changes to their mortgage and to provide
consumers with the time needed to take ameliorative actions should the
new interest rate and payment be too high, providing the actual new
payment would benefit consumers. Across all rounds of consumer testing,
most participants shown notices containing estimates of the new rate
and payment understood that these amounts were estimates that could
change before payment at a new level was due.\83\
---------------------------------------------------------------------------

\83\ Macro Report, supra note 38, at viii.
---------------------------------------------------------------------------

To implement the requirements of TILA section 128A that the good
faith estimate of the new payment be based on accepted industry
standards, proposed Sec. 1026.20(d) would require that any estimate be
calculated using the index figure disclosed in the source of
information described in proposed Sec. 1026.20(d)(2)(iii)(A) within
fifteen business days prior to the date of the disclosure. Linking the
date of the notice to the date of the index value used to estimate the
new interest rate and payment would prevent consumer confusion as to
the recency of the index value. As discussed above under Section
20(c)(2), the fifteen-day period allows creditors, assignees, and
servicers sufficient time to calculate the estimates and perform any
necessary quality control measures before providing the Sec.
1026.20(d) notices to consumers.
20(d)(2)(i) Date of the Disclosure
Proposed Sec. 1026.20(d)(2)(i) would require that the initial ARM
adjustment notice include the date of the disclosure. In order to group
together all data regarding the ARM, proposed Sec. 1026.20(d)(3)(ii)
would require that the date appear outside of and above the table
described in proposed Sec. 1026.20(d)(3)(i).
Proposed comment 20(d)(2)(i)-1 explains that the date would be the
date the creditor, assignee, or servicer generates the notice. It also
must be within fifteen business days after publication of the index
level used to calculate the adjusted interest rate and new payment, if
it is an estimate and not the actual adjusted interest rate and new
payment.\84\ Because the disclosures must be provided to consumers so
far in advance, the Bureau expects estimates will be used in most
cases. Tying the date of the disclosure to the date of the index level
should prevent consumer confusion as to the recency of the index value
upon which the estimated interest rate and new payment are based.
---------------------------------------------------------------------------

\84\ See proposed Sec. 1026.20(d)(2).
---------------------------------------------------------------------------

20(d)(2)(ii) Statement Regarding Change to Interest Rate and Payment
Proposed Sec. 1026.20(d)(2)(ii)(A) would require the initial ARM
interest rate adjustment notices to include a statement alerting
consumers that, under the terms of their adjustable-rate mortgage, the
specific period in which their interest rate stayed the same will end
on a certain date, that their interest rate may change on that date,
and that any change in their interest rate may result in a change to
their mortgage payment. This information is similar to the information
required to be disclosed in the pre-consummation disclosures provided
to consumers pursuant to current Sec. 1026.19(b)(2)(i) and Sec.
1026.37(i), recently proposed in the 2012 TILA-RESPA Proposal. Proposed
comment 20(d)(2)(ii)(A)-1 clarifies that the current interest rate is
the one in effect on the date of the disclosure.
Proposed Sec. 1026.20(d)(2)(ii)(B) would require the proposed
initial ARM interest rate adjustment notices to include the dates of
the impending and future interest rate adjustments and inform consumers
that these changes are dictated by the terms of their adjustable-rate
mortgages. Proposed Sec. 1026.20(d)(2)(ii)(C) also would require the
Sec. 1026.20(d) disclosures to inform consumers of any other loan
changes taking place on the same day as the adjustment, such as changes
in amortization caused by the expiration of interest-only or payment-
option features.
The first ARM model form tested did not contain the statement
required by proposed Sec. 1026.20(d)(2)(ii) informing consumers of
impending and future changes to their interest rate and the

[[Page 57347]]

basis for these changes. Although participants understood that their
interest rate was adjusting and their payment might change as a result,
they did not understand that these changes would occur periodically
subject to the terms of their mortgage contract. Inclusion of this
statement in the second round of testing successfully resolved this
confusion. All but one consumer tested in rounds two and three of
testing understood that, under the scenario presented to them, their
interest rate would change on an annual basis.\85\
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\85\ Macro Report, supra note 38, at vii.
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20(d)(2)(iii) Table With Current and New Interest Rates and Payments
Proposed Sec. 1026.20(d)(2)(iii) would require disclosure of the
following information in the form of a table: (A) The current and new
interest rates; (B) the current and new periodic payment amounts and
the date the first new payment is due; and (C) for interest-only or
negatively-amortizing payments, the amount of the current and estimated
new payment allocated to interest, principal, and property taxes and
mortgage-related insurance, as applicable. The information in this
table would appear within the larger table containing the other
required disclosures, except for the date of the disclosure.
This table would follow the same order as, and have headings and
format substantially similar to, those in the table in Forms H-4(D)(3)
and (4) in Appendix H of subpart C. The Bureau learned through consumer
testing that, when presented with information in a logical order,
consumers more easily grasped the complex concepts contained in the
proposed Sec. 1026.20(d) notice. For example, the form begins by
informing consumers of the basic purpose of the notice: Their interest
rate is going to adjust, when it will adjust, and the adjustment will
change their mortgage payment. This introduction is immediately
followed by a visual illustration of this information in the form of a
table comparing the consumers' current and new interest rates. Based on
consumer testing, the Bureau believes that consumer understanding is
enhanced by presenting the information in a simple manner, grouped
together by concept, and in a specific order that allows consumers the
opportunity to build upon knowledge gained. For these reasons, the
Bureau proposes that creditors, assignees, or servicers disclose the
information in the table as set forth in Forms H-4(D)(3) and (4) in
Appendix H.
In all rounds of testing, consumers were presented with model forms
with tables depicting a scenario in which the interest rate and payment
would increase as a result of the adjustment. All participants in all
rounds of testing understood that their interest rate and payment were
going to increase and when these changes would occur.\86\
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\86\ Id.
---------------------------------------------------------------------------

The Bureau proposes including allocation information in the table
for interest-only and negatively-amortizing ARMs. The Bureau believes
this information would help consumers better understand the risk of
these products by demonstrating that their payments would not reduce
the loan principal. The Bureau also believes providing the payment
allocation would help consumers understand the effect of the interest
rate adjustment, especially in the case of a change in the ARM's
features coinciding with the interest rate adjustment, such as the
expiration of an interest-only or payment-option feature. Since payment
allocation may change over time, the proposed rule would require
disclosure of the expected payment allocation for the first payment
period during which the adjusted interest rate will apply.
The allocation of payment disclosure was tested in the third round
of testing. The notice tested showed the scenario of a \3/1\ hybrid ARM
with interest-only payments for the first three years of the loan
adjusting for the first time. On the date of the adjustment, the
interest-only feature would expire and the ARM would become amortizing.
Only about half of participants understood that their payments would be
changing from interest-only to amortizing. Participants generally
understood the concept of allocation of payments but were confused by
the table in the notice that broke out principal and interest for the
current payment, but combined the two for the new amount. As a result,
this table was revised so that separate amounts for principal and
interest were shown for all payments.\87\
---------------------------------------------------------------------------

\87\ Id. at vii-viii. This revision was made after the third
round of testing, and therefore was not tested with consumers.
---------------------------------------------------------------------------

The Bureau recognizes that certain Dodd-Frank Act amendments to
TILA will restrict origination of non-amortizing and negatively-
amortizing loans. For example, TILA section 129C and the 2011 ATR
Proposal that would implement that provision, generally require
creditors to determine that a consumer can repay a mortgage loan and
include a requirement that these determinations assume a fully-
amortizing loan. Thus, this law and regulation, when finalized, will
restrict the origination of risky mortgages such as interest-only and
negatively-amortizing ARMs.
Other Dodd-Frank amendments to TILA, such as the proposed periodic
statement provisions discussed below, will provide payment allocation
information to consumers for each billing cycle. Thus, consumers who
currently have interest-only or negatively-amortizing loans or may
obtain such loans in the future will receive information about the
interest-only or negatively-amortizing features of their loans through
the payment allocation information in the periodic statement. Also, as
noted above, consumer testing showed that participants were confused by
the allocation table. Since the Bureau was not able to test a revised
version of the form to see if it rectified the confusion caused by the
allocation table or if the concepts of non-amortizing and negatively-
amortizing ARMs themselves are the source of the confusion, the Bureau
questions the value of disclosing this information to consumers in the
ARM interest rate adjustment notice. In view of these changes to the
law and the outcome of consumer testing, the Bureau solicits comments
on whether to include allocation information for interest-only and
negatively-amortizing ARMs in the table proposed above.
20(d)(2)(iv) Explanation of How the Interest Rate Is Determined
TILA section 128A mandates that the initial interest rate
adjustment notices include any index or formula used in making
adjustments to or resetting the interest rate, and a source of
information about the index or formula. Accordingly, proposed Sec.
1026.20(d)(2)(iv)(A) would require disclosure of the name and published
source of the index or formula. This disclosure requirement is
consistent with the pre-consummation disclosure requirements of current
rule Sec. 1026.19(b)(2)(iii). Proposed Sec. 1026.37(i), part of the
2012 TILA-RESPA Proposal, likewise would require disclosure of the
index name prior to consummation.
TILA section 128A also mandates that the initial interest rate
disclosures include an explanation of how the new interest rate and
payment would be determined, including an explanation of how the index
was adjusted, such as by the addition of a margin. Proposed Sec.
1026.20(d)(2)(iv) would require Sec. 1026.20(d) notices to include an
explanation of how the new interest rate is determined. This disclosure
requirement is consistent with the pre-

[[Page 57348]]

consummation disclosure requirements of current rule Sec.
1026.19(b)(2)(iii). The 2012 TILA-RESPA Proposal's proposed 1026.37(i)
likewise would require disclosure prior to consummation of the amount
of the margin expressed as a percentage.
Consumer testing revealed that consumers generally have difficulty
understanding the relationship of the index, margin, and interest
rate.\88\ Therefore, the Bureau is proposing a relatively brief and
simple explanation that the new interest rate is calculated by taking
the published index rate and adding a certain number of percentage
points, called the ``margin.'' Proposed Sec. 1026.20(d)(2)(iii) also
includes the specific amount of the margin.
---------------------------------------------------------------------------

\88\ Id. at viii.
---------------------------------------------------------------------------

Consumer testing indicated that the explanation helped consumers
better understand the relationship between the interest rate, index,
and margin. It also helped dispel the notion held by many of the
consumers in the initial rounds of testing that the lender subjectively
determined their new interest rate at each adjustment.\89\ The Bureau
believes that its proposed rule and forms strike an appropriate balance
between providing consumers with key information necessary to
understand the basic interest rate adjustment of their adjustable-rate
mortgages without overloading consumers with complex and confusing
technical information.
---------------------------------------------------------------------------

\89\ Id.
---------------------------------------------------------------------------

20(d)(2)(v) Rate Limits
Proposed rule Sec. 1026.20(d)(2)(v) would require the disclosure
of any limits on the interest rate or payment increases at each
adjustment and over the life of the loan. The Bureau believes that
knowing the limitations of their ARM rates and payments would help
consumers understand the consequences of each interest rate adjustment
and weigh the relative benefits of the alternatives that would be
required to be disclosed under proposed Sec. 1026.20(d)(2)(viii). For
example, if an adjustment might cause a significant increase in the
consumer's payment, knowing how much more the interest rate or payment
could increase could help inform a consumer's decision on whether or
not to seek alternative financing.
Proposed Sec. 1026.20(d)(2)(v) also requires disclosure of the
extent to which the creditor, assignee, or servicer has foregone any
increase in the interest rate. If there is foregone interest, it would
require disclosure that the additional interest was not applied due to
a rate limit and include the earliest date such foregone interest may
be applied. Proposed comment 20(d)(2)(iv)-1 explains that disclosure of
foregone interest would apply only to transactions permitting interest
rate carryover. It further explains that the amount of increase
foregone at the initial adjustment is the amount that, subject to rate
caps, can be added to future interest rate adjustments to increase, or
offset decreases in, the rate determined according to the index or
formula.
Consumers had difficulty understanding the concept of interest rate
carryover when it was introduced during the third round of testing.
This difficulty may have been due to the simultaneous introduction of
other complex notions, such as interest-only or negatively-amortizing
features and the allocation of interest, principal, and escrow payments
for such loans. In response, the Bureau has simplified the explanation
of carryover interest.\90\
---------------------------------------------------------------------------

\90\ Id. at viii-ix.
---------------------------------------------------------------------------

The Bureau recognizes that the disclosure of rate limits and
unapplied carryover interest provide information that may help
consumers better understand their ARMs. However, the Bureau is
considering whether the help this information would provide outweighs
its distraction from other more key information. Also, as explained
above, consumers had difficulty understanding the concept of carryover
interest and the Bureau is concerned this difficulty might diminish the
effectiveness of the proposed Sec. 1026.20(d) disclosures. The Bureau
solicits comment on whether to include rate limits and unapplied
carryover interest in the proposed Sec. 1026.20(d) disclosures.
20(d)(2)(vi) Explanation of How the New Payment Is Determined
TILA section 128A mandates that the initial interest rate notices
include an explanation of how the new interest rate and payment would
be determined, including an explanation of how the index was adjusted,
such as by the addition of a margin. Proposed Sec. 1026.20(d)(2)(vi)
would implement this statutory provision by requiring the content
discussed below. This proposed disclosure is consistent with the
disclosures required at the time of application pursuant to
currentSec. 1026.19(b)(2)(iii). It is also consistent with content
required under proposed Sec. 1026.20(c) and thus promotes consistency
in Regulation Z ARM disclosures.
The disclosure required under proposed Sec. 1026.20(d)(2)(vi)
explains that the new payment is based on (A) the index or formula, (B)
any adjustment to the index or formula, such as by addition of the
margin, (C) the loan balance, (D) the length of the remaining loan
term, and, (E) if the new interest rate or new payment provided is an
estimate, a statement that another disclosure containing the actual new
interest rate and new payment will be provided to the consumer 2 to 4
months prior to the date the first new payment is due, if the interest
rate adjustment causes a corresponding change in payment, pursuant to
Sec. 1026.20(c).
The proposal would require disclosure of both the loan balance and
the remaining loan term expected on the date of the interest rate
adjustment. The proposed rule also would require disclosure of any
change in the term or maturity of the loan caused by the adjustment.
As discussed in proposed Sec. 1026.20(d)(2)(iv) above, the Bureau
found that this explanation helped consumers better understand how the
index or formula and margin determine their new payment and dispelled
the notion held by many consumers in the initial rounds of testing
that, at each adjustment, the lender subjectively determined their new
interest rate, and thus the new payment. Disclosure of the four key
assumptions upon which the new payment is based provides a succinct
overview of how the interest rate adjustment works. It also
demonstrates that factors other than the index can increase consumers'
interest rates and payments. Disclosures of these factors would provide
consumers with a snapshot of the current status of their adjustable-
rate mortgages and with basic information to help them make decisions
about keeping their current loan or shopping for alternatives. If an
estimated new interest rate and new payment is used, the statement that
the consumer will receive another disclosure with the actual new
interest rate and new payment, if the interest rate adjustment results
in a corresponding payment change, notifies consumers that the
creditor, assignee, or servicer will inform them of the actual rate and
payment two to four months in advance of the date their first new
payment is due.
20(d)(2)(vii) Interest-Only and Negative-Amortization Statement and
Payment
Proposed Sec. 1026.20(d)(2)(vii) would require Sec. 1026.20(d)
notices to include a statement regarding the allocation of payments to
principal and interest for interest-only or negatively-amortizing
loans. If negative amortization occurs as a result of the interest rate
adjustment,

[[Page 57349]]

the proposed rule would require disclosure of the payment necessary to
fully amortize such loans at the new interest rate over the remainder
of the loan term. As explained in proposed comment 20(d)(2)(vii)-1, for
interest-only loans, the statement would inform the consumer that the
new payment covers all of the interest but none of the principal owed
and, therefore, will not reduce the loan balance. For negatively-
amortizing ARMs, the statement would inform the consumer that the new
payment covers only part of the interest and none of the principal, and
therefore the unpaid interest will add to the balance or increase the
term of the loan.
Both current Sec. 1026.20(c) and the Board's 2009 Closed-End
Proposal to revise Sec. 1026.20(c) include, for ARMs that become
negatively amortizing as a result of the interest rate adjustment,
disclosure of the payment necessary to fully amortize loans at the new
interest rate over the remainder of the loan term. However, the Bureau
believes there are countervailing considerations regarding whether to
include this information in proposed Sec. 1026.20(d).
The Bureau recognizes that certain Dodd-Frank Act amendments to
TILA will restrict origination of non-amortizing and negatively-
amortizing loans. For example, TILA section 129C and the 2011 ATR
Proposal that would implement that provision, generally require
creditors to determine that a consumer can repay a mortgage loan and
include a requirement that these determinations assume a fully-
amortizing loan. Thus, this law and regulation, when finalized, will
restrict the origination of risky mortgages such as interest-only and
negatively-amortizing ARMs.
Other Dodd-Frank Act amendments to TILA, such as the periodic
statement proposed by Sec. 1026.41, will include information about
non-amortizing and negatively-amortizing loans in each billing cycle,
such as an allocation of payments. Thus, consumers who currently have
interest-only and negatively-amortizing ARMs or may obtain such loans
in the future will receive certain information about the interest-only
or negatively-amortizing features of their loans in another disclosure,
although this will not include the payment required to fully amortize
negatively-amortizing loans. The payment necessary to fully amortize
these loans was not consumer tested but testing of the table showing
the payment allocation of interest-only and negatively-amortizing ARMs
indicated that consumers were confused by this concept. Thus, the
Bureau is weighing the value of disclosing specific information
regarding amortization, such as the payment needed to fully amortize
negatively-amortizing ARMs. In view of these changes to the law and the
outcome of consumer testing, the Bureau solicits comments on whether to
include the payment required to amortize ARMs that became negatively
amortizing as a result of an interest rate adjustment.
20(d)(2)(viii) List of Alternatives
TILA section 128A mandates that the initial interest rate
adjustment notices include a list of alternatives consumers may pursue
before adjustment or reset and descriptions of the actions consumers
must take to pursue these alternatives. These alternatives include
refinancing, renegotiation of loan terms, payment forbearance, and pre-
foreclosure sales. Proposed Sec. 1026.20(d)(2)(viii) would require
disclosure in Sec. 1026.20(d) initial ARM interest rate notices of the
four alternatives set forth in the statute. The Bureau proposes to use
simpler, commonly used terms in the model forms to describe the
alternatives when possible.
The proposed model forms present the list as possibilities for
consumers seeking alternatives to the upcoming changes to their
interest rate and payment. The proposed forms also explain that most of
the alternatives are subject to approval by the lender. All
participants tested in the first and second round of testing were able
to identify the list of alternatives.\91\
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\91\ Id. at viii.
---------------------------------------------------------------------------

The list of alternatives generally and concisely describes the
actions consumers must take to pursue these alternatives, such as
contacting their lender or another lender. Another action consumers may
take to pursue these alternatives is contacting government
organizations. Proposed Sec. 1026.20(d)(2)(xi) would require
disclosure in the initial ARM interest rate adjustment notice of
information on how to contact such agencies, including the contact
information for the State housing finance authority for the State in
which the consumer resides and the Web site and telephone number to
access the most current list of homeownership counselors or counseling
organizations either made available by the Bureau or maintained by HUD.
The Bureau proposes to require disclosure of this concise list of
alternatives in lieu of a more detailed account of actions consumers
may take in order to maximize the effectiveness of the disclosure
without weighing it down with information that may not add significant
value.
20(d)(ix) Prepayment Penalty
Proposed Sec. 1026.20(c)(d)(ix) would require disclosure of the
circumstances under which any prepayment penalty may be imposed, such
as selling or refinancing the principal dwelling, the time period
during which such penalty would apply, and the maximum dollar amount of
the penalty. The proposed rule cross-references the definition of
prepayment penalty in subpart E under Sec. 1026.41(d)(7)(iv) in the
proposed rule for periodic statements.
Interest rate adjustments may cause payment shock or require
consumers to pay their mortgage at a rate they may no longer be able to
afford, prompting them to consider alternatives such as refinancing. In
order to fully understand the implications of such actions, the Bureau
believes that consumers should know whether prepayment penalties may
apply. Such information should include the maximum penalty (in dollars)
that may apply and the time period during which the penalty may be
imposed. The dollar amount of the penalty, as opposed to a percentage,
is more meaningful to consumers.
The Bureau also proposes disclosure of any prepayment penalty in
Sec. 1026.20(c) ARM payment change notices and the periodic statements
proposed by Sec. 1026.41. Consumer testing of the periodic statement
included a scenario in which a prepayment penalty applied. Most
participants understood that a prepayment penalty applied if they paid
off the balance of their loan early, but some participants were unclear
whether it applied to the sale of the home, refinancing, or other
alternative actions consumers could pursue in lieu of maintaining their
adjustable-rate mortgages.\92\ For this reason, the Bureau proposes to
clarify the circumstances under which a prepayment penalty would apply.
The proposed forms alert consumers that a prepayment penalty may apply
if they pay off their loan, refinance, or sell their home before the
stated date.
---------------------------------------------------------------------------

\92\ Id. at vi.
---------------------------------------------------------------------------

The Bureau recognizes that Dodd-Frank Act amendments to TILA, such
as 129C and the 2011 ATR Proposal proposing to implement that
provision, would significantly restrict a lender's ability to impose
prepayment penalties. Other Dodd-Frank amendments to TILA, such as the
proposed periodic statement, would provide consumers with information
about their prepayment penalty for each billing

[[Page 57350]]

cycle. Thus, consumers who currently have ARMs with prepayment penalty
provisions or may obtain such loans in the future would generally
receive information about them at frequent intervals in another
disclosure. In view of these changes to the law, the Bureau solicits
comments on whether to include information regarding prepayment
penalties in proposed Sec. 1026.20(d).
20(d)(2)(x) Telephone Number of Creditor, Assignee, or Servicer
Proposed Sec. 1026.20(d)(2)(x) would require disclosure of the
telephone number of the creditor, assignee, or servicer for consumers
to call if they anticipate having problems paying the new payment.
20(d)(2)(xi) Contact Information for Government Agencies and Counseling
Agencies or Programs
TILA section 128A mandates that the initial interest rate
adjustment notices include the name, mailing and Internet address, and
telephone number of the State housing finance authority (as defined in
section 1301 of FIRREA) for the State in which the consumer resides.
Proposed Sec. 1026.20(d)(2)(xi) would implement this statutory mandate
by requiring inclusion of this information in the Sec. 1026.20(d)
initial interest rate adjustment notice. Two other mortgage servicing
rulemakings proposed by the Bureau, the periodic statement, see below,
and the early intervention for delinquent borrowers in the 2012 RESPA
Servicing Proposal, also would require contact information for the
State housing finance authority. However, those proposals would require
the contact information for the State in which the property is located
rather than in which the consumer resides, since the scope of those
proposed rules is not limited to a consumer's principal dwelling. This
is consistent with the proposed ARM rule since the consumer's principal
dwelling should be located in the State in which the property is
located. The Bureau seeks comment on how to address any compliance
difficulties posed by this inconsistency.
TILA section 128A also mandates that the initial interest rate
adjustment notices include the names, mailing and Internet addresses,
and telephone numbers of counseling agencies or programs reasonably
available to the consumer that have been certified or approved and made
publicly available by HUD or a State housing finance authority.
On July 9, 2012, the Bureau released proposed rules to implement
other Dodd-Frank Act requirements expanding protections for ``high-
cost'' mortgage loans under HOEPA, including a requirement that
borrowers receive housing counseling (2012 HOEPA Proposal).\93\ The
2012 HOEPA proposal also proposed to implement other homeownership-
counseling-related requirements that are not amendments to HOEPA,
including a proposed amendment to Regulation X that lenders provide a
list of five homeownership counselors or counseling organizations to
applicants for a federally related mortgage loan.\94\
---------------------------------------------------------------------------

\93\ See 2012 HOEPA Proposal, available at http://files.consumerfinance.gov/f/201207_cfpb_proposed-rule_high-cost-mortgage-protections.pdf, at 29-35.
\94\ The list provided by the lender pursuant to the 2012 HOEPA
Proposal would include only homeownership counselors or counseling
organizations from either the most current list of homeownership
counselors or counseling organizations made available by the Bureau
for use by lenders, or the most current list maintained by HUD of
homeownership counselors or counseling organizations certified by
HUD, or otherwise approved by HUD. The 2012 HOEPA Proposal proposed
that the list include five homeownership counselors or counseling
organizations located in the zip code of the loan applicant's
current address, or, if there are not the requisite five counselors
or counseling organizations in that zip code, then counselors or
organizations within the zip code or zip codes closest to the loan
applicant's current address. To facilitate compliance with the
proposed list requirement, the Bureau is expecting to develop a Web
site portal that would allow lenders to type in the loan applicant's
zip code to generate the requisite list, which could then be printed
for distribution to the loan applicant. See 2012 HOEPA Proposal at
31-32 (discussing proposed Regulation X Sec. 1024.20(a)).
---------------------------------------------------------------------------

The Bureau has taken an alternative approach with regard to the
initial ARM interest rate adjustment notice and proposes to use its
exception authority to require creditors, assignees, and servicers
simply to provide the Web site address to access either the Bureau list
or the HUD list of homeownership counseling agencies and programs,\95\
instead of requiring contact information for a list of specific
counseling agencies or programs. The Bureau believes that this approach
appropriately balances consumer and industry interests based on the
following considerations:
---------------------------------------------------------------------------

\95\ At the time of publishing, the Bureau list was not yet
available; the HUD list is available at http://www.hud.gov/offices/hsg/sfh/hcc/hcs.cfm.
---------------------------------------------------------------------------

The ARM notice required by proposed Sec. 1026.20(d) has limited
space and contains a significant amount of important technical
information about the consumer's loan. Including too much information
could overwhelm consumers and minimize the value of the other
information contained in the notice. Also, not all consumers would
benefit from the counselor information, although it would provide an
important benefit for those consumers who face financial difficulties
if their initial interest rate adjustment may cause their mortgage
payments to significantly increase. Finally, importing updated
information from the Bureau or HUD Web site would involve more
programming burden than simply listing one of the agencies' Web sites.
Providing consumers with the Web site address for either the Bureau
or HUD list of homeownership counseling agencies and programs would
streamline the disclosure and present clear and concise information for
the consumer to use. However, directing consumers to the actual list
would allow them to choose a conveniently located program or agency and
to locate other programs or agencies if those contacted initially could
not help the consumer at that time. The Bureau seeks comment on whether
this proposal strikes an appropriate balance, and on the benefits and
burdens to both consumers and industry of requiring that a list of
several individual housing counselors be included in the initial ARM
interest rate adjustment notice.
Authority. The Bureau proposes to use its authority under TILA
sections 105(a) and (f) and DFA section 1405(b) to exempt creditors,
assignees, and servicers from the requirement in TILA section 128A to
include in the initial ARM interest rate adjustment notice contact
information for specific government-certified counseling agencies or
programs reasonably available to the consumer, and its authority under
TILA section 105(a) and DFA section 1405(b) to instead require that the
initial ARM interest rate adjustment notice contain information that
directs consumers to the Bureau list or HUD list of homeownership
counselors or counseling agencies. For the reasons discussed above, the
Bureau believes that the proposed exception and addition is necessary
and proper under TILA section 105(a) both to effectuate the purposes of
TILA--to promote the informed use of credit and protect consumers
against inaccurate and unfair credit billing practices--and to
facilitate compliance. Moreover, the Bureau believes, in light of the
factors in TILA section 105(f), that disclosure of the government-
certified counseling agencies or programs reasonably available to the
consumer specified in TILA section 128A would not provide a meaningful
benefit to consumers. Specifically, the Bureau considers that the
exemption is proper irrespective of the amount of the loan and the
status of the borrower (including related financial arrangements,
financial sophistication, and the importance to the borrower of the
loan). The Bureau

[[Page 57351]]

further notes, in light of TILA section 105(f)(2)(D), that the
requirements in Sec. 1026.20(d) would only apply to loans secured by
the consumer's principal dwelling. Moreover, in the estimation of the
Bureau, the proposed exemption would simplify the initial ARM
adjustment notice and improve the housing counselor information
provided to the consumer, thus furthering the consumer protection
purposes of TILA. In addition, consistent with section 1405(b) of the
Dodd-Frank Act, the Bureau believes that the proposed modification of
the requirements in TILA section 128A would improve consumer awareness
and understanding and is in the interest of consumers and in the public
interest.
20(d)(3) Format of Initial Rate Adjustment Disclosures
As discussed above, the Bureau proposes to make proposed Sec.
1026.20(d) subject to certain of the general form requirements of Sec.
1026.17(a)(1), including requiring that the disclosure be clear and
conspicuous, in writing, and in a form consumers can keep, and giving
creditors, assignees, and servicers the option of providing the
disclosures to consumers in electronic form, subject to compliance with
consumer consent and other applicable provisions of the E-Sign Act.
However, as discussed above, because Sec. 1026.20(d) disclosures are
subject to the statutory requirement that they must be provided
separate and distinct from all other correspondence, the Bureau
proposes to amend Sec. 1026.17(a) to provide that the general
segregation and grouping requirements in that provision would not apply
to Sec. 1026.20(d).
Authority. In addition, as described below, Sec. 1026.20(d)(3)
proposes additional form requirements for initial ARM adjustment
notices. For the reasons described below, these requirements are
authorized under TILA section 105(a) and DFA sections 1032(a) and
1405(b). As discussed in the section-by-section analysis for each of
the proposed sections of Sec. 1026.20(d)(3), the Bureau believes,
consistent with TILA section 105(a), that the proposed formatting
requirements are necessary and proper to effectuate the purposes of
TILA to assure a meaningful disclosure of credit terms, to avoid the
uninformed use of credit, and to protect consumers against inaccurate
and unfair credit billing practices. Further the Bureau believes,
consistent with DFA section 1032(a), that the proposed formatting
requirements ensure that the features of the ARM loans covered by
proposed Sec. 1026.20(d) are fully, accurately, and effectively
disclosed to consumers in a manner that permits them to understand the
costs, benefits, and risks associated with such loans, in light of
their individual facts and circumstances. Moreover, consistent with DFA
section 1405(b), the Bureau believes that modification of the provision
in TILA section 128A to require the proposed format discussed below
would improve consumer awareness and understanding of residential
mortgage loans transactions involving ARMs, and is thus in the interest
of consumers and in the public interest.
20(d)(3)(i) All Disclosures in Tabular Form, Except the Date
Proposed Sec. 1026.20(d)(3)(i) would require that, except for the
date of the notice, the initial ARM adjustment disclosures be provided
in the form of a table and in the same order as, and with headings and
format substantially similar to, Forms H-4(D)(3) and (4) in Appendix H
to subpart C for initial interest rate adjustments.
The proposed ARM adjustment notice contains complex concepts
challenging for consumers to understand. For example, consumer testing
revealed that participants generally had difficulty understanding the
relationship among index, margin, and interest rate.\96\ They also had
difficulty with the concepts of amortization and interest rate
carryover.\97\ As a starting point, the Bureau looked at the model
forms developed by the Board for its 2009 Closed-End Proposal to amend
Sec. 1026.20(c). The Bureau then conducted its own consumer testing.
---------------------------------------------------------------------------

\96\ Macro Report, supra note 38, at viii.
\97\ Id. at viii-ix.
---------------------------------------------------------------------------

The Bureau's testing showed that consumers can more readily
understand these concepts when the information is presented to them in
a simple manner and in the groupings contained in the model forms. The
Bureau also observed that consumers more readily understood the
concepts when they were presented in a logical order, with one concept
presented as a foundation to understanding other concepts. For example,
the form begins by informing consumers of the purpose of the form: That
their interest rate is going to adjust, when it will adjust, and that
the adjustment may change their mortgage payment. This introduction is
immediately followed by a table visually showing the consumers' current
and estimated new interest rates. In another example, the proposed
notice informs consumers about their index rate and margin before
explaining how the new payment is calculated based on those factors as
well as other factors such as the loan balance and remaining loan term.
Based on consumer testing, the Bureau believes that consumer
understanding is enhanced by presenting the information in a simple
manner, grouped together by concept, and in a specific order that
allows consumers the opportunity to build upon knowledge gained. For
these reasons, the Bureau proposes that creditors, assignees, or
servicers disclose the information required by proposed Sec.
1026.20(d) with headings, content, and format substantially similar to
Forms H-4(D)(3) and (4) in Appendix H to this part.
Over the course of consumer testing, participant comprehension
improved with each successive iteration of the model form. As a result,
the Bureau believes that displaying the information in tabular form
focuses consumer attention and lends to greater understanding.
Similarly, the Bureau found that the particular content and order of
the information, as well as the specific headings and format used,
presented the information in a way that consumers both could understand
and from which they could benefit.
20(d)(3)(ii) Format of Date of Disclosure
Proposed Sec. 1026.20(d)(3)(ii) would require that the date of the
disclosure appear outside of and above the table required by proposed
Sec. 1026.20(d)(3)(i). As discussed above with respect to paragraph
20(d)(2)(i), the date would be segregated since it is not information
specific to the consumer's adjustable-rate mortgage.
20(d)(3)(iii) Format of Interest Rate and Payment Table
Proposed Sec. 1026.20(d)(3)(iii) would require tabular format for
initial ARM interest rate adjustment notices for interest rates,
payments, and the allocation of payments for loans that are interest-
only or are negatively amortizing. This table would be located within
the table proposed by Sec. 1026.20(d)(3)(i). This table is
substantially similar to the one tested by the Board for its 2009
Closed-End Proposal to revise Sec. 1026.20(c). The proposal would
require the table to follow the same order as, and have headings and
format substantially similar to, Forms H-4(D)(3) and (4) in Appendix H
of subpart C.
Disclosing the current interest rate and payment in the same table
allows consumers to readily compare them with the estimated or actual
adjusted rate and new payment. Consumer testing revealed that nearly
all participants were readily able to

[[Page 57352]]

identify and understood the table and its contents.\98\ The estimated
or actual new interest rate and payment and date the first new payment
is due is key information the consumer must know in order to commence
payment at the new rate. For these reasons, the Bureau proposes
locating this information prominently in the disclosure.
---------------------------------------------------------------------------

\98\ Id. at vii.
---------------------------------------------------------------------------

Section 1026.36 Prohibited Acts or Practices in Connection With Credit
Secured by a Dwelling
36(c) Servicing Practices
Existing Sec. 1026.36(c) provides requirements for servicers in
connection with a consumer credit transaction secured by a consumer's
principal dwelling. Essentially, such servicers must promptly credit
payments, must not ``pyramid'' late fees, and must provide payoff
statements at the consumer's request. The Dodd-Frank Act essentially
codifies the Sec. 1026.36(c) provisions on prompt crediting and payoff
statements with minor changes, as discussed below. The Bureau is
amending Regulation Z both to implement the new statutory requirements,
and to address the related issue of the handling of partial payments.
Currently, Regulation Z addresses prompt crediting in Sec.
1026.36(c)(1)(i). The Bureau is proposing limiting the scope of
existing Sec. 1026.36(c)(1)(i) to full contractual payments, and
addressing partial payments (anything less than a full contractual
payment) in proposed Sec. 1026.36(c)(1)(ii), as discussed below. The
Bureau proposes to retain the substantive requirements on non-
conforming payments currently in Sec. 1026.36(c)(2), but to move them
to paragraph (c)(1)(iii). Likewise, the Bureau does not propose to
change the Regulation Z provision addressing ``pyramiding'' of late
fees currently in Sec. 1026.36(c)(1)(ii), but only to move the
provision to new paragraph (c)(3). Finally, the Bureau is proposing
four substantive changes to the provisions on payoff statements,
currently located in Sec. 1026.36(c)(1)(iii), as well as to move these
provisions to proposed paragraph 36(c)(3).
The Bureau believes these changes to Regulation Z are best
implemented by restructuring paragraph (c) and simplifying some of the
language. This restructuring generally is not intended to make any
substantive changes. All substantive changes to the paragraph (c) are
discussed below.
36(c)(1)(i) Full Contractual Payments
DFA section 1464(a) established TILA section 129F, which codifies
existing Regulation Z Sec. 1026.36(c)(1)(i) with regard to prompt
crediting of mortgage loan payments. The statute and the existing
regulation both provide generally that ``no servicer shall fail to
credit a payment to the consumer's loan account as of the date of
receipt, except when a delay in crediting does not result in any charge
to the consumer or in the reporting of negative information to a
consumer reporting agency.'' Proposed new paragraph (c)(1)(i) generally
restates existing (c)(1)(i) with the only change that the existing
regulation applies to all payments, while proposed (c)(1)(i) would be
limited to full contractual payments. The Bureau is proposing to
establish new Sec. 1026.36(c)(1)(ii) to clarify servicers' obligations
when they receive a partial payment (anything less than a full
contractual payment), as discussed below.
As discussed above, proposed Sec. 1026.36(c)(i) generally tracks
the Dodd-Frank Act and current regulation, but changes the reference to
``a payment'' to ``a full contractual payment'' and makes minor
modifications to reflect the proposed restructuring of the regulation.
The proposed regulation text provides that a full contractual payment
covers principal, interest, and escrow (if applicable), but not late
fees. The Bureau engaged in outreach and found that many servicers
already apply payments that cover principal, interest, and escrow (if
applicable) without deducting late fees. This ensures that consumers
get the full benefit of having made a payment. The Bureau seeks comment
as to whether late fees should also be included in the definition of a
full contractual payment.
36(c)(1)(ii) Partial Payments
Current Regulation Z does not define what constitutes a ``payment''
for purposes of the crediting requirement, but leaves that question to
be determined by the contractual documents and other applicable law.
Specifically, current comment 36(c)(1)(i)-2 refers to ``the legal
obligation between the consumer and the creditor'' as determined by
``applicable state or other law'' to determine whether a partial
payment is a ``payment'' under the payment crediting provisions.
Outreach to consumer and industry stakeholders revealed that partial
payments are currently handled in a variety of ways. Some lenders do
not accept partial payments, some lenders apply partial payments, and
some lenders send partial payments to a suspense or unapplied funds
account. Currently there is no Federal regulation that governs such
accounts. The Bureau is proposing to address partial payments in new
Sec. 1026.36(c)(1)(ii).
Proposed Sec. 1026.36(c)(1)(ii) provides specific rules regarding
the handling of partial payments and suspense accounts. New paragraph
(c)(1)(ii) would require, consistent with the proposed periodic
statement requirements in Sec. 1026.41 discussed below, that if a
servicer holds a partial payment, meaning any payment less than a full
contractual payment, in a suspense or unapplied funds account, the
servicer must disclose on the periodic statement the amount of funds
held in such account. The servicer must also disclose when such funds
will be applied to the outstanding payments due on the account. This
proposed requirement is authorized under TILA section 129(f), which
requires creditors, assignees, and servicers to send statements for
each billing cycle including ``[s]uch other information as the Bureau
may prescribe in regulations.''
Additionally, proposed Sec. 1026.36(c)(1)(ii) provides that if a
servicer holds a partial payment in a suspense or unapplied funds
account, once there are sufficient funds in the account to cover a full
contractual payment, the servicer must apply those funds to the oldest
outstanding payment due. The proposed requirement that the funds be
applied to the oldest outstanding payment would advance the date of
delinquency by one billing cycle, and thus benefit the consumer. For
example, suppose a previously current consumer must make a $1,000
monthly payment, and the consumer paid $500 on January 1st and $500 on
February 1st. When the second $500 payment is made, a full contractual
payment of $1,000 (assuming late fees are not included in the
definition of full contractual payment) is in the suspense account and
must be applied to the January payment. Thus, this consumer would only
be one month delinquent at the end of February. The Bureau interprets
the language in TILA section 129F(a), that servicers must ``credit''
payments as of the date of receipt, except when a delay in crediting
does not result in ``any charge'' to the consumer to authorize the
proposed requirement that partial payments held in suspense accounts be
credited to the oldest outstanding payment when a full contractual
payment accumulates. Crediting the funds to a payment that

[[Page 57353]]

was not the most delinquent would result in a charge to the consumer by
extending the duration of the delinquency. To the extent not required
under TILA section 129F(a), the Bureau believes this proposed
requirement regarding crediting of funds is authorized under TILA
section 105(a). As explained above, the Bureau believes the requirement
is necessary and proper to effectuate the purpose of TILA to protect
consumers against inaccurate and unfair credit billing practices by
ensuring that funds held in a suspense account are promptly applied to
the oldest outstanding payment when sufficient funds accumulate in such
an account to cover a full contractual payment.
Proposed comment 36(c)(1)(ii)-1 describes the servicer's options
upon receipt of a partial payment, including: Crediting the payment on
receipt, returning the payment, or holding the payment in a suspense or
unapplied funds account.
The proposed regulation would leave servicers significant
flexibility in the handling of partial payments in accordance with
contractual terms and other applicable law, for instance by rejecting
the payment, crediting it immediately, or holding it in a suspense
account. However, the proposed rule would also ensure greater
consistency in the handling of suspense accounts by requiring,
consistent with proposed Sec. 1026.41, that servicers disclose on the
periodic statement that the funds are being held in such accounts and,
once sufficient funds accumulate to cover a full contractual payment,
that the servicer apply the funds to the oldest outstanding payment
owed by the consumer. If sufficient funds accumulate to cover more than
one full contractual payment, these funds would be applied to the next
oldest outstanding payment. Partial payment amounts would be treated as
described above.
The Bureau believes this proposed approach would clarify servicers'
obligations in processing both full contractual payment and partial
payments, as well as ensure all payments are properly applied. The
proposed disclosures would help consumers understand that their
payments are being held in a suspense account rather than having been
applied, and when those partial payments would be applied.
Additionally, requiring application to the oldest outstanding payment
when a full payment accumulates will provide protection to consumers,
as well as reduce the outstanding principal balance on certain consumer
loans.
Finally, the Bureau seeks comment on if this approach is the proper
way to address suspense accounts, and specifically, whether there
should be time requirements on returning partial payments. If a
servicer chooses not to accept a partial payment, must that payment be
returned within a specific amount of time, and if so, how long should
that time be? Additionally, the SBREFA Panel recommended the Bureau
consider if additional flexibility can be provided in the proposed rule
for small servicers, to the extent their current practices differ from
the proposal and provide appropriate consumer protections.\99\ The
Bureau seeks comment on whether the proposed rule differs from existing
small servicer practices, and if so, how additional flexibility can be
provided while still providing appropriate consumer protection.
---------------------------------------------------------------------------

\99\ SBREFA Final Report, supra note 22, at 32.
---------------------------------------------------------------------------

36(c)(1)(iii) Non-Conforming Payments
TILA section 129F(b) further provides that ``[i]f a servicer
specifies in writing requirements for the consumer to follow in making
payments, but accepts a payment that does not conform to the
requirements, the servicer shall credit the payment as of 5 days after
receipt.'' This provision codifies the treatment of non-conforming
payments in current Sec. 1026.36(c)(2). The Bureau is not making any
substantive changes to this provision, as the current rule is clear and
provides protection for consumers, but the Bureau proposes to
redesignate the section as new Sec. 1026.36(c)(1)(iii).
The Bureau notes that payments held in a suspense or unapplied
funds account, as addressed in proposed Sec. 1026.36(c)(1)(ii)
discussed above, would not be considered to have been ``accepted'' by
the servicer. Thus, under the Bureau's proposal, partial payments
retained in suspense or unapplied funds accounts are treated as
payments that have not been accepted subject to Sec.
1026.36(c)(1)(ii), as opposed to non-conforming payments that have been
accepted subject to proposed Sec. 1026.36(c)(1)(iii), which must be
credited within five days of receipt.
36(c)(2) Prohibition on Pyramiding of Late Fees
The Bureau is not proposing any substantive changes to existing
36(c)(1)(ii), prohibiting the pyramiding of late fees. However the
Bureau proposes redesignating this as new paragraph 36(c)(2).
36(c)(3) Payoff Statements
DFA section 1464(b) established TILA section 129G, which requires
that a creditor or servicer send an accurate payoff balance amount to
the consumer within a reasonable time, but in no case more than seven
business days, after the receipt of a written request for such balance
from or on behalf of the consumer. This provision generally codifies
existing Sec. 1026.36(c)(1)(iii) of Regulation Z regarding provision
of payoff statements with four substantive changes. First, while
existing Regulation Z only applied the requirements to servicers, the
statute applies the requirements to both servicers and creditors.
Second, the statute applies the prompt response requirement to ``home
loans,'' rather than consumer credit transactions secured by the
consumer's principal dwelling. Third, the statute limits the reasonable
time for responding to not more than seven business days; by contrast,
existing comment 36(c)(1)(iii)-1 generally creates a five business day
safe harbor for responding, but notes that it might be reasonable to
take longer to respond in certain circumstances. Fourth, the statute
requires a prompt response only to written requests for payoff amounts,
while the existing regulation requires a prompt response to all such
requests. Due to the reorganization of paragraph (c), the proposed
provisions on payoff statements will be located in paragraph (c)(3).
Covered persons. Existing Sec. 1026.36(c)(1)(iii) applies to
servicers. TILA section 129G, as established by DFA section 1464(b),
applies the payoff statement requirement to creditors and servicers.
For the reasons discussed in the section-by-section analysis of Sec.
1026.20(d) above, the Bureau interprets this to mean the payoff
statement provision applies to creditors, assignees, and servicers as
applicable. Proposed comment 36(c)(3)-1 clarifies that a creditor who
no longer owns the mortgage loan or the mortgage servicing rights is
not ``applicable'' and therefore not subject to the payoff statement
requirements. The Bureau notes that the other subparts of paragraph (c)
continue to be limited to servicers.
Scope. Existing Sec. 1026.36(c)(1)(iii) is limited to consumer
credit transactions secured by principal dwellings. The Bureau is
proposing to expand the scope of the provision to consumer credit
transactions secured by all dwellings. TILA section 129G, as
established by DFA section 1464(b), applies the payoff statement
requirement to ``home loans,'' a term not used elsewhere in TILA. The
Bureau interprets this term to expand

[[Page 57354]]

the scope of the requirement from consumer credit transaction secured
by principal dwellings to consumer credit transactions secured by any
dwelling. Thus, the proposed regulation applies to consumer credit
transactions (both open- and closed-end), secured by a dwelling, not
just a principal dwelling. The Bureau notes that the other subparts of
paragraph (c) continue to be limited to consumer credit transactions
secured by a consumer's principal dwelling.
Seven business days. Existing Sec. 1026.36(c)(1)(iii) requires the
payoff statement to be sent within a reasonable amount of time, and
comment 36(c)(1)(iii)-1 clarifies that a reasonable time is ``within 5
business days under most circumstances.'' New TILA section 129G
provides that a reasonable time may not be more than seven business
days after the receipt of the request. Proposed Sec. 1026.36(c)(3)
reflects this change. Because of this change, the Bureau proposes
removing existing comment 36(c)(1)(iii)-1.
Written requests. Existing Sec. 1026.36(c)(1)(iii) requires the
payoff statement to be sent after a request is received from the
consumer. New TILA section 129G limits the requirement to provide a
prompt response to ``written requests'' for payoff statements. Thus
proposed new paragraph (c)(3) would require payoff statements to be
provided after receipt of a written request. Related comment (c)(3)-3
(renumbered from (c)(1)(iii)-3)), which provides examples of reasonable
requirements the servicer may establish for payoff requests, is also
updated to reflect this change.
The SBREFA Panel recommended the Bureau consider if additional
flexibility can be provided in the proposed rule for small servicers,
to the extend their current practices differ from the proposal and
provide appropriate consumer protections.\100\ The Bureau seeks comment
on whether the proposed rule differs from existing small servicer
practices, and if so, how additional flexibility can be provided while
still providing appropriate consumer protection.
---------------------------------------------------------------------------

\100\ Id.
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Section 1026.41 Periodic Statements for Residential Mortgage Loans
Proposed Sec. 1026.41 would establish the periodic statement
requirement for residential mortgage loans. This section implements
TILA section 128(f) as established by DFA section 1420. The statute
requires the periodic statement to disclose seven items of information
(the amount of the principal obligation, current interest rate and
reset date if applicable, information on prepayment penalties and late
fees, contact information for the servicer, and housing counselor
information), as well as such other information as the Bureau may
prescribe in regulations.\101\ The Bureau believes the periodic
statement would provide the greatest value to consumers by also
providing information regarding upcoming payment obligations and the
application of past payments; a list of recent transaction activity;
additional account information; and delinquency information. Thus, the
Bureau proposes pursuant to TILA section 129(f)(1)(H) that each
periodic statement also include this additional information.
---------------------------------------------------------------------------

\101\ TILA section 129(f)(1).
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TILA section 128(f) applies the requirement to provide a periodic
statement to creditors, assignees, and servicers of residential
mortgage loans. To increase readability, proposed Sec. 1026.41 uses
the term ``servicer'' to describe the entities covered by the proposed
requirement, and defines servicer to mean creditors, assignees, or
servicers for the purposes of Sec. 1026.41. This terminology is also
used in the section-by-section analysis for proposed Sec. 1026.41. The
statute applies the periodic statement to ``the creditor, assignee, or
servicer.'' Comment 41(a)-3 clarifies that only one periodic statement
must be sent to the consumer each billing cycle, while the creditor,
assignee and servicer are subject to the periodic statement
requirement, they may decide among themselves who will sent the
statement. Comment 41(a)-4 clarifies that a creditor who no longer owns
the mortgage loan or the mortgage servicing rights is not
``applicable'' and therefore not subject to the requirements. The
Bureau interpretation of the statute would not apply the on-going
periodic statement requirements to an entity that originated the loan,
but has sold both the loan and the servicing rights and no longer has
any connection to the loan.
As proposed, the periodic statement carefully balances the need to
provide consumers with sufficient information against the risk of
overwhelming consumers with too much information. The proposed
requirements are designed to make the statement easy to read, whether
provided in a paper form or electronically. The Bureau believes that
imposing a requirement that information be grouped would present the
information in a logical format, while allowing servicers flexibility
in customizing the statement. Thus, the proposed regulations discussed
below would require the following groupings of information:
The Amount Due: The most prominent disclosure on the
statement would be the amount due. The due date of the payment due and
information on the late fee is also included in this grouping.
Explanation of Amount Due: This grouping would include a
breakdown of the amount due, showing allocation to principal, interest,
and escrow. This grouping would also provide the total sum of any fees
or charges imposed, and any amount of past due payment.
Past Payment Breakdown: This grouping would include a
breakdown of how previous payments were applied.
Transaction Activity: This grouping would be a list of any
activity that credits or debits the outstanding account balance, for
example, charges imposed or payments received.

The periodic statement would also include the following information:

Certain messages as required at certain times (for
example, information on funds held in a suspense or unapplied funds
account).
Contact information for the servicer.
Account information as required by the statute, including
the amount of the principal obligation, current interest rate, and when
it might change (if applicable), information on prepayment penalties
(if applicable) and late fees, contact information for the servicer,
and housing counselor information.
Finally, additional delinquency information would be
required when a consumer is more than 45 days delinquent on his or her
loan. Each of these disclosures is discussed below.

Additionally, the proposed regulation sets forth requirements regarding
the timing and form of the periodic statement and establishes
exemptions to the requirement to provide a periodic statement.
41(a) In General
Proposed Sec. 1026.41(a) states the general requirement that, for
a closed-end consumer credit transaction secured by a dwelling, a
creditor, assignee, or servicer must transmit to the consumer for each
billing cycle a periodic statement meeting the timing, form, and
content requirements of Sec. 1026.41, unless an exemption applies. As
discussed below, the proposed requirements and exemptions are
authorized under TILA sections 128(f), and 105(a) and (f), and DFA
sections 1032(a) and 1405(b).
As discussed above, the periodic statement is intended to serve a
variety of purposes, including informing consumers of their payment
obligations, providing information about the

[[Page 57355]]

mortgage loan, creating a record of transactions that increase or
decrease the outstanding balance, providing the information needed to
identify and assert errors, and providing information when borrowers
are delinquent. To meet these goals, paragraphs (b), (c), and (d)
respectively, propose the requirements for the timing, form, content,
and layout of the periodic statement. Paragraph (e) proposes exemptions
from the proposed periodic statement requirement.
Entities covered. TILA section 128(f) imposes the periodic
statement requirement on creditors, assignees, and servicers. Proposed
Sec. 1026.41(a) would implement this provision by specifying that the
duty to transmit periodic statements applies to the servicer, defined
to mean creditor, assignee, or servicer. The consumer is only required
to receive one periodic statement each billing cycle, but creditors,
assignees, and servicers would all be responsible for ensuring that the
consumer receives a periodic statement that meets the requirements of
Sec. 1026.41.
Scope. Under TILA section 128(f), the periodic statement
requirement applies to residential mortgage loans. The term
``residential mortgage loan'' is generally defined in TILA section
103(cc)(5) to mean any consumer credit transaction that is secured by a
mortgage, deed of trust, or other equivalent consensual security
interest on a dwelling or on residential real property that includes a
dwelling, other than a consumer credit transaction under an open-end
credit plan. Consistent with this definition, proposed paragraph (a)
would apply the periodic statement requirement to ``any closed-end
consumer credit transaction secured by a dwelling.'' This language
implements the substantive scope of the statute; no substantive change
is intended.
Transmit to the consumer. Proposed Sec. 1026.41(a) would require
the servicer to transmit the periodic statement to the consumer. The
term ``transmit'' is used in the statute. Use of this term would
indicate that the servicer must do more than simply make the statement
available; the statement would be required to be sent to the consumer.
Paper statements mailed to the consumer would meet this requirement. As
discussed below with respect to proposed Sec. 1026.41(c), if the
servicer is using an electronic method of distribution, a servicer may
send the consumer an email indicating that the statement is available,
rather than attaching the statement itself, to account for information
security concerns.
Proposed comment 41(a)-1 clarifies that joint obligors need not
receive separate statements; a single statement addressed to both of
them would satisfy the periodic statement requirement.
Billing cycles. Proposed Sec. 1026.41(a) would require a periodic
statement to be sent each ``billing cycle.'' The billing cycle
corresponds to the frequency of payments, as established by the legal
obligation of the consumer as determined by the mortgage note and any
subsequent modifications to that obligation. Thus, if a loan requires
the consumer to make monthly payments, that consumer will have a
monthly billing cycle. Likewise, if a consumer makes quarterly
payments, that consumer will have a quarterly billing cycle.
Based on industry outreach, the Bureau has learned of other
alternatives to monthly billing cycles. Some loans may be timed to
accommodate consumers employed in seasonal industries (for example, a
loan may have 10 payments over the course of a year). For such loans
the billing cycle may not align with the calendar months. Another non-
monthly payment arrangement may occur when payments are made every
other week, or other similar less-then-monthly periods. For example,
servicers and consumers may arrange a bi-weekly payment program to
align mortgage payments with the consumer's paychecks. Such billing
cycles may be arrangements with the servicer that do not modify the
legal obligation of the consumer. In such cases, a periodic statement
may, but is not required to, reflect this modified payment cycle.
The Bureau realizes that a requirement to provide statements every
other week may be costly for servicers and unhelpful to consumers. In
addition, such a short cycle may cause problems with information on the
statement being outdated. Thus, paragraph (a) allows that if a loan has
a billing cycle shorter than a period of 31 days (for example, a bi-
weekly billing cycle), a periodic statement covering an entire month
may be used. Related proposed comment 41(a)-2 clarifies how such a
single statement would aggregate information from multiple billing
cycles.
Authority. Proposed paragraph (a) implements new TILA section
128(f)(1) requiring that a creditor, assignee, or servicer, with
respect to any closed-end consumer credit transaction secured by a
dwelling must transmit a periodic statement to the consumer. In
addition, the Bureau proposes in paragraph (a) to use its authority
under TILA section 105(a) and (f) and DFA section 1405(b) to exempt
creditors, assignees, and servicers of residential mortgage loans from
the requirement in TILA section 128(f)(1)(G) to transmit periodic
statement each billing cycle when the billing cycle is less than a
month, and to instead permit servicers to provide an aggregated
periodic statement covering an entire month. For the reasons discussed
above, the Bureau believes that the proposed exception is necessary and
proper under TILA section 105(a) both to effectuate the purposes of
TILA--to promote the informed use of credit and protect consumers
against inaccurate and unfair credit billing practices--and to
facilitate compliance. Moreover, the Bureau believes, in light of the
factors in TILA section 105(f), that sending periodic statements more
than once a month would not provide a meaningful benefit to consumers.
Specifically, the Bureau considers that the exemption is proper
irrespective of the amount of the loan, the status of the borrower
(including related financial arrangements, financial sophistication,
and the importance to the borrower of the loan), or whether the loan is
secured by the principal residence of the consumer. Further, in the
estimation of the Bureau, consistent with DFA section 1405(b), the
proposed exemption will prevent the consumer confusion that might
result from receiving multiple periodic statements in close sequence,
thus furthering the consumer protection purposes of the statute.
Paragraph (b) interprets the statutory requirement that a periodic
statement must be provided for each billing cycle by requiring the
periodic statement be delivered or placed in the mail within a
reasonably prompt time after the close of the grace period of the
previous billing cycle.
Paragraph (c) invokes authority under TILA sections 105(a), 122,
and 128(f)(2) to require that the disclosures must be made clearly and
conspicuously in writing, or electronically if the consumer agrees, and
in a form the consumer may keep. The Bureau also interprets the statute
to mandate certain of these form requirements.
As discussed in more detail below, the Bureau generally proposes to
impose the periodic statement requirement pursuant to its authority
under TILA sections 128(f) and 105(a), and DFA sections 1032(a) and
1405(b).
41(b) Timing of the Periodic Statement
Proposed Sec. 1026.41(b) provides that the periodic statement must
be sent within a reasonably prompt time after the close of the grace
period of the previous billing cycle. Proposed comment 41(b)-1 provides
that four days after the close of any grace period would be considered
reasonably prompt.

[[Page 57356]]

For the first payment on the mortgage loan, proposed paragraph (b)
would require that the first periodic statement be sent no later than
10 days before this first payment is due. This adjustment is necessary
because there is no previous billing cycle from which to time the
sending of the first statement.
The periodic statement serves the dual purposes of giving an
accounting of payments received since the pervious periodic statement,
and reminding the consumer about the upcoming payment. To achieve these
dual purposes, the periodic statement must arrive after the last
payment was received and before the next payment is due, which can be a
relatively narrow window. If a payment is due on the first of the
month, grace periods may give the consumer as late as the 15th of the
month to make that payment. Thus, if a statement is sent before the
15th of the month, that statement may not reflect the consumer's most
recent payment, or any late charge imposed due to a late payment.
However, if a statement is sent at the close of the month, that
statement may not arrive before the next payment is due on the first
day of the next month. Allowing a few days for processing and mailing
of statements creates a tight timeframe. The Bureau seeks comment on
whether the proposed regulation appropriately addresses this timeframe.
Additionally, the Bureau seeks comment on whether it is operationally
difficult to have the first statement delivered or placed in the mail
10 days before the first payment is due.
The Bureau interprets the requirement in TILA section 128(f) that
periodic statements be sent for ``each billing cycle'' to authorize the
timing requirements proposed in Sec. 1026.41(b). In addition, the
proposed timing requirements are authorized under TILA section 105(a),
and DFA sections 1032(a) and 1405(b). For the reasons noted above, the
Bureau believes, consistent with TILA section 105(a), that the proposed
requirements are necessary and proper to effectuate the purposes of
TILA to assure a meaningful disclosure of credit terms and protect
consumers against inaccurate and unfair credit billing practices by
assuring that consumers receive the periodic statement at a time that
is useful to them. In addition, consistent with DFA section 1032(a),
the Bureau believes that the proposed timing requirements help ensure
that the features of consumers' residential mortgage loans, both
initially and over the term of the loan, are effectively disclosed to
consumers in a manner that permits them to understand the costs,
benefits, and risks associated with the loan. Moreover, consistent with
DFA section 1405(b), the Bureau believes that the proposed timing
requirements would improve consumer awareness and understanding of
their residential mortgage loans by assuring that consumers receive the
periodic statements at a meaningful time, after their last payment is
made and before their next payment is due, and that proposed
requirements are thus in the interest of consumers.
41(c) Form of the Periodic Statement
Proposed Sec. 1026.41(c) provides that the periodic statement
disclosures required by section Sec. 1026.41 must be made clearly and
conspicuously in writing, or electronically, if the consumer agrees,
and in a form the consumer may keep. TILA section 128(f)(1) specifies
that periodic statements must be ``conspicuous and prominent,'' and
TILA section 128(f)(2) requires the Bureau to develop and prescribe a
standard form to be transmitted in writing or electronically. The
Bureau proposes to implement these provisions, in part through the form
requirements set forth in proposed Sec. 1026.41(c) and the related
forms provided in Appendix H-28. In addition, the proposed form
requirements are authorized under TILA section 122, which requires the
disclosures under TILA be clear and conspicuous, TILA section 105(a)
and DFA sections 1032(a) and 1405(b). As discussed below, the Bureau
believes, consistent with TILA section 105(a), that the proposed form
requirements are necessary and proper to effectuate the purposes of
TILA to assure a meaningful disclosure of credit terms and protect the
consumer against inaccurate and unfair credit billing practices by
assuring that the periodic statement sent to consumers is in a form
that they can understand. In addition, consistent with DFA section
1032(a), the Bureau believes that the proposed form requirements help
ensure that the features of consumers' residential mortgage loans, both
initially and over the term of the loan, are effectively disclosed to
consumers in a manner that permits them to understand the costs,
benefits, and risks associated with the loan. Moreover, consistent with
DFA section 1405(b), the Bureau believes that the proposed form
requirements would improve consumer awareness and understanding of
their residential mortgage loans by assuring that the periodic
statements sent to consumers are in a useable form that is easy to
understand and that the form requirements are thus in the interest of
consumers and the public interest.
Clear and conspicuous. TILA section 122 requires that disclosures
under TILA be clear and conspicuous. Existing Sec. 1026.31(b)
generally implements this requirement with respect to disclosures
required by subpart E, where new Sec. 1026.41 will be located. Section
1026.31(b) applies only to creditors, however. Thus, to make this
requirement applicable to servicers (defined to include creditors and
assignees), proposed paragraph 41(c) would require, consistent with
TILA section 122 and existing Sec. 1026.31(b), that the periodic
statement be clear and conspicuous. Proposed comment 41(c)-1 clarifies
the clear and conspicuous standard, stating that it generally requires
that disclosures be in a reasonably understandable form, and explains
that other information may be included on the statement, so long as
that other information does not overwhelm or obscure the required
disclosures. Thus, information that is traditionally found on their
periodic statements, but not proposed as required by this regulation,
such as the servicer's logo, information on payment methods, or
additional information on escrow accounts, may continue to be included
on periodic statements.
Additional information. Proposed comment 41(c)-2 states that
nothing in this subpart prohibits a servicer from including additional
information or combining disclosures required by other laws with the
disclosures required by Sec. 1026.41, unless such prohibition is
expressly set forth in Sec. 1026.41 or the applicable law. For
example, the grouping requirements discussed below may not be
overridden by additional information in the statement.
Based on industry outreach, the Bureau understands that some
institutions provide a combined statement for mortgage loans and other
financial products. For example if a consumer has both a checking
account and a mortgage with a credit union, the consumer may receive a
single combined statement. The Bureau seeks comment on how servicers
would actually combine statements. In particular, the Bureau notes that
difficulties may arise when different disclosures have different timing
requirements, and when multiple disclosures have requirements that
information be presented on the first page of the statement. For
example, if both mortgage loan disclosures and credit card disclosures
are required to be on the first page of a statement, how would these
statements be combined?
Electronic distribution. TILA section 128(f)(2) provides that
periodic statements ``may be transmitted in

[[Page 57357]]

writing or electronically.'' Consistent with this provision, proposed
Sec. 1026.41(c) would allow statements to be provided electronically,
if the consumer agrees. As discussed above, the requirement to transmit
a periodic statement to the consumer may be met by sending the consumer
an e-mail notification that the statement is available, rather than e-
mailing the statement itself in light of information security concerns.
This paragraph would require only affirmative consent by the consumer
to receive statements, not compliance with E-Sign verification
procedures. The Bureau does not believe E-Sign consent is required by
the statute. E-Sign is designed to provide an electronic alternative to
required writings. The statute, however, requires only periodic
``statements'' as opposed to ``writings'' to be transmitted to
consumers. Additionally, the statute contemplates electronic
statements, as TILA section 129(f)(2) provides that the Bureau shall
prescribe a standard form, taking into account that the statements
required may be transmitted in writing or electronically. Thus, the
Bureau believes that Congress did not intend to require E-Sign
verification procedures. The Bureau seeks comment as to whether
additional requirements should be placed on when a consumer consents to
receiving electronic statements. For example, must consent be obtained
or confirmed electronically in a manner that demonstrates that the
consumer is able to access information electronically? The Bureau also
seeks comment on whether consumers who already receive electronic
statements should be deemed as having consented to receive statements
electronically. Additionally, the Bureau seeks comment on whether
consumers who have auto-debit set up to deduct payments from their bank
account should be deemed as having consented to receive statements
electronically.
Retainability. Proposed Sec. 1026.41(c) would require the
disclosure be provided in a form the consumer may keep. Paper
statements sent by mail or provided in person, would satisfy this
requirement. If electronic statements are used, they must be in a form
which the consumer can print or download.
Sample forms. Proposed Sec. 1026.41(c) also states that sample
forms are provided in Appendix H-28, and that appropriate use of these
forms will be deemed to comply with the section. The sample forms were
developed through consumer testing as discussed in part III.B above,
and are intended to give guidance regarding compliance with proposed
Sec. 1026.41. However, they are not required forms, and any
arrangements of the information that meet the requirements of proposed
Sec. 1026.41 would be considered in compliance with the section. The
sample forms also contain additional information (for example, a tear-
off coupon on the bottom) that is not required to be on the form, but
is included to give context to the sample. These proposed regulations
and sample forms were crafted to give servicers flexibility in
designing their periodic statements. The Bureau proposes these sample
forms pursuant to its authority, inter alia, under TILA section
128(f)(2).
41(d) Content and Layout of the Periodic Statement
Proposed Sec. 1026.41(d) contains content and layout requirements
that implement, in part, TILA section 128(f), and is additionally
authorized under TILA section 105(a) and DFA sections 1302(a) and
1405(b).
The content required by paragraph (d) is authorized under TILA
section 128(f)(1). Such content is authorized as follows:
Statutorily-required content: TILA sections 128(f)(1)(a)
through (g) requires the inclusion of certain items of information in
the periodic statement. The proposed regulation generally implement
these provisions by requiring the content set forth in Sec.
1026.41(d)(1)(ii), (6) and (7), and the description of late fees in
Sec. 1026.41(d)(4).
Additional content: TILA section 128(f)(1)(H) requires
inclusion in periodic statements of such other information as the
Bureau may prescribe by regulation. The remainder of the content of the
periodic statement is proposed under this authority.
The grouping and other form requirements of the layout in paragraph
(d) implement, in part, the requirement under TILA section 128(f)(1)
that the content of the periodic statement be presented in a
conspicuous and prominent manner, and under TILA section 128(f)(2) for
the Bureau to develop and prescribe a standard form for the periodic
statement disclosure. In addition, as discussed above with respect to
the form requirements under Sec. 1026.41(c) and for the reasons
explained below, the proposed grouping and form requirements under
Sec. 1026.41(d) are authorized under TILA section 105(a) and DFA
sections 1032(a) and 1405(b).
The periodic statement is designed to provide the consumer with
information in an easy-to-read format. The goal of the proposed
grouping and form requirements is to highlight key information--the
amount due--and organize information so the statement would not be
overwhelming to the consumer. The commentary to paragraph (d),
discussed below, reflects these goals.
Exemptions and adjustments: TILA section 128(f)(1)(G) requires the
periodic statement to include the names, addresses and other contact
information for government-certified counseling agencies or programs
reasonably available to the consumer. For the reasons discussed below,
the Bureau proposes to use its authority under TILA section 105(a) and
(f) to exempt servicers from having to include this information in
periodic statements to and to instead require the periodic statement to
include contact information for the State housing finance authority for
the State in which the property is located and information to access
the HUD list or Bureau list of homeownership counselors or counseling
organizations. This adjustment is additionally authorized under DFA
section 1405(b).
Close proximity. Proposed Sec. 1026.41(d) would require specific
disclosures be grouped together and presented in close proximity.
Information is grouped together to aid the consumer in understanding
relatively complex information about their mortgage. The General Design
Principles discussed in the Macro final report (Macro Report) include
grouping together related concepts and figures because consumers are
likely to find it easier to absorb and make sense of financial forms if
the information is grouped in a logical way.\102\
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\102\ Macro Report, supra note 38, at 4.
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Proposed comment 41(d)-1 clarifies that close proximity requires
items to be grouped together and set off from the other groupings of
items. This can be accomplished, for example, by including lines or
boxes on the statement, or by including white space between the
groupings. Items required to be in close proximity should not have any
intervening text between them. The close proximity standard is found in
other parts of Regulation Z, including Sec. Sec. 1026.24(b) and
1026.48. In both provisions, the commentary interprets close proximity
to require the information to be located immediately next to or
directly above or below, without any intervening text or graphical
displays.\103\
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\103\ See comments 24(b)-2 and 48-3 respectively.
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Information not applicable. Proposed comment 41(d)-2 provides that
information that is not applicable to the loan may be omitted from a
periodic statement. For example, if a loan does

[[Page 57358]]

not have a prepayment penalty, the periodic statement may omit the
prepayment penalty disclosure.
Terminology. Proposed comment 41(d)-3 provides that the periodic
statement may use terminology other than that found on the sample forms
so long as the new terminology is commonly understood. This gives
servicers the flexibility to use regional terminology or commonly used
terms with which consumers are familiar. For example, during consumer
testing in California, participants were confused by the use of the
term ``escrow.'' One participant explained that in California, the term
``escrow'' refers to an account set up to hold funds until a homebuyer
closes on the house. This participant said he was more familiar with
the term ``impound account'' to refer to the account holding funds for
taxes and insurance.\104\ In this example, use of the term ``impound
account'' to refer to the escrow account for taxes and insurance would
be permitted for periodic statements provided to consumers in
California.
---------------------------------------------------------------------------

\104\ Macro Report, supra note 38, at 12.
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41(d)(1) Amount Due
Proposed Sec. 1026.41(d)(1) would require the periodic statement
to provide information on the amount due, the payment due date, and the
amount of any fee that would be assessed for a late payment, as well as
the date on which that fee would be imposed if payment is not received.
This information would have to be grouped together and located at the
top of the first page of the statement. The amount due would have to be
more prominent than any information on the page. This is consistent
with the general principle of designing disclosures to highlight the
most important information for consumers to make it easy for them to
find.\105\ A primary purpose of the periodic statement is to alert the
consumer to upcoming payment obligations. The Bureau interprets TILA
section 129(f)(E), which requires the periodic statement to include a
description of any late payment fees, to require disclosure of the
amount of any fees that would be assessed for late payments as well as
the date the fee would be imposed if the payment has not been received,
as well as other information regarding late fees discussed below.
Although information concerning the amount due and the payment due date
is not enumerated in the statute, the Bureau believes that this is the
information the consumer is most likely to need. Because of the
importance of this information, it is placed in the prominent position
of the top of the first page, and the total amount must be the most
prominent item on the page. In consumer testing, all participants were
able to identify the amount due on the sample periodic statement
presented to them.\106\
---------------------------------------------------------------------------

\105\ Id. at 4.
\106\ See id. at 6.
---------------------------------------------------------------------------

If the consumer has a payment-option loan, each of the payment
options must be displayed with the amount due information. An example
of such a statement is included in proposed Appendix H-28(C).
41(d)(2) Explanation of Amount Due
Proposed Sec. 1026.41(d)(2) would require periodic statements to
include an explanation of the amount due, providing the monthly payment
amount, including the allocation of that payment to principal, interest
and escrow (if applicable). Additionally, the statement would have to
provide the total fees or charges incurred since the last statement,
and any amount past-due (which would include both over-due payments and
over-due fees). This information would have to be grouped together in
close proximity and located on the first page of the statement.
The Explanation of Amount Due is intended to give consumers a
snapshot of why they are being asked to pay the amount due. At a
glance, consumers would be able to see their payment amount; how much
is allocated to principal, interest and escrow (if applicable); and the
total fees or other charges incurred since the last statement; and any
post-due amounts. In this section, the fees incurred since the last
statement would be shown in aggregate; a breakdown of the individual
fees would be provided in the Transaction Activity section, discussed
below. Additionally, this section would show the total of past due
payments and fees from previous billing cycles. In the first round of
consumer testing, Macro tested the form to see if participants were
able to understand what charges constituted the total amount due. The
sample form used in testing showed a late payment fee. After looking at
the Explanation of Amount Due, all participants understood the amount
due included a regular monthly payment and a late fee.\107\ This
indicates that the Explanation of Amount Due helps consumers understand
the amount they need to pay.
---------------------------------------------------------------------------

\107\ Id.
---------------------------------------------------------------------------

If the consumer has a payment-option loan, a breakdown of each of
the payment options would be required in the Explanation of Amount Due.
Additionally, the Explanation of Amount Due would require inclusion of
information about how each of the payment options will affect the
outstanding loan balance. A form with such a box was tested during
consumer testing. All but one of the participants were able to
understand the effects the different payment options would have on
their loan balance--that the loan balance would decrease, stay the same
(for interest-only payments) or increase.\108\ A sample form is
provided in Appendix H-28(C).
---------------------------------------------------------------------------

\108\ Id. at 14.
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41(d)(3) Past Payment Breakdown
Proposed paragraph (d)(3) would require periodic statements to
include a snapshot of how past payments have been applied. Proposed
Sec. 1026.41(d)(3)(i) would require the periodic statement to include
both the total of all payments received since the last statement and a
breakdown of how those payments were applied to principal, interest,
escrow, fees, and charges, and any partial payment or suspense account
(if applicable). Proposed Sec. 1026.41(d)(3)(ii) would require the
total of all payments received since the beginning of the calendar year
and a breakdown of how those payments were applied to principal,
interest, escrow, fees, and charges, as well as the amount currently
held in any partial payment or suspense account (if applicable). This
information would have to be grouped together in close proximity, and
located on the first page of the statement.
The past payment breakdown disclosure serves several purposes on
the periodic statement, including creating a record of payment
application, providing the consumer information needed to assert any
errors, and providing information about the mortgage expenses.
The breakdown in paragraph (d)(3)(i), showing all payments made
since the last statement, would allow the consumer to confirm that his
or her payments was properly applied. If the payments were not properly
applied, the breakdown would provide the consumers the information
needed to assert an error. Although testing participants had some
confusion about partial payments as discussed below, they were able to
identify how their payments had been applied based on the past payment
breakdown information included on the sample statement.\109\
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\109\ Id. at 9.
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Both the breakdown since the last billing cycle and the breakdown
of the

[[Page 57359]]

year-to-date play an important role in educating the consumer. The
payments since the last statement inform consumers of how much their
outstanding principal has decreased, while the year-to-date information
educates consumers on the costs of their mortgage loan. Consumer
testing revealed that consumers may be surprised by how much of their
payment is going to interest or fees as opposed to principal.
Aggregated over the year-to-date can bring this expense to a consumers'
attention, and motivate them to possibly change behaviors that are
generating significant expenses. For example, consumers who habitually
submit their payment a few days late may correct this behavior if they
realize it is costing them hundreds of dollars a year. The breakdown of
all payments made in the current calendar year to date is of particular
importance in educating consumers about their loans, especially since
there is no other mandated year-end summary of all payments received
and their application. The past payment breakdown, of both the payments
since the last statement, and payments for the year to date, provides
the consumer with important information that is not currently required
to be disclosed.
Partial Payments. Proposed comment 41(d)(3)-1 provides guidance on
how partial payments that have been sent to a suspense account should
be reflected in the past payments breakdown section of the periodic
statement. The proposed comment provides illustrative examples of how
partial payments sent to a suspense account should be listed as
unapplied funds since the last statement and year to date. Consumer
testing revealed that consumers have very little understanding about
how partial payments are handled.\110\ As discussed in part IV.C above,
the periodic statement is designed to help consumers understand how
partial payments are processed. The past payment breakdown is useful in
communicating information about partial payments and suspense accounts
to consumers.
---------------------------------------------------------------------------

\110\ Id. at 11.
---------------------------------------------------------------------------

41(d)(4) Transaction Activity
Proposed Sec. 1026.41(d)(4) would require the periodic statement
to include a Transaction Activity section that lists any activity since
the last statement that credits or debits the outstanding account
balance. For each transaction, the statement would include the date of
the transaction, a description of the transaction, and the amount of
the transaction. This information must be grouped together, but may be
provided anywhere on the statement.
Proposed comment 41(d)(4)-1 clarifies that transaction activity
includes any activity that credits or debits the outstanding loan
balance. For example, proposed comment 41(d)(4)-1 states that
transaction activity would include, without limitation, payments
received and applied, payments received and sent to a suspense account,
and the imposition of any fee or charge. Thus, the Transaction Activity
section would provide a list of all charges and payments, covering the
time from the last statement until the current statement is printed.
This disclosure would allow the consumer to understand what charges are
being imposed and provide further detail regarding the aggregated
numbers found in the ``Explanation of Amount Due'' section. The
Transaction Activity section would provide a record of the account
since the last statement, allowing the consumer to review for errors,
ensure payments were received, and understand any and all costs. If a
servicer receives a partial payment and decides to return the payment
to the consumer, such a payment would not need to be included as a line
item in the Transaction Activity section, because this activity would
neither credit nor debit the outstanding account balance. The Bureau
seeks comment on whether the periodic statement should be required to
include a message under paragraph (d)(5) when a partial payment is
returned to the consumer.
Late fee description. Proposed comment 41(d)(4)-2 clarifies that
the description of any late fee charge in the transaction activity
section includes the date of the late fee, the amount of the late fee,
and the fact that a late fee was imposed. The Bureau interprets TILA
section 129(f)(E), which requires that the periodic statement include
``a description'' of any late payment fees, to require disclosure of
this information, as well as information regarding late fees discussed
above.
Suspense accounts. Proposed comment 41(d)(4)-3 clarifies that if a
partial payment is sent to a suspense account, the fact of the transfer
should be reflected in the transaction description (for example, a
partial payment entry in the transaction activity might read: ``Partial
payment sent to suspense account''), the funds sent to the suspense
account should be reflected in the unapplied funds section of the past
payment breakdown, and an explanation of what must be done to release
the funds should be provided in the messages section. The messages
section, discussed below, should include an explanation of what the
consumer must do to release the funds from the suspense account.
41(d)(5) Messages
Proposed Sec. 1026.41(d)(5) would require a message on the front
of the statement if a partial payment of funds is being held in a
suspense account regarding what must be done for the funds to be
applied.
The Bureau seeks comment on what, if any, additional messages
should be required. In particular, the Bureau seeks comment on whether
there should be a required disclosure where the consumer has a
negatively-amortizing or interest-only loan. Additionally, the Bureau
seeks comment on whether there should be a required disclosure on
private mortgage insurance and when it may be eliminated. Finally, the
Bureau seeks comment as to if more than one message is required, and if
so, should these be grouped together and should these messages be
required to be on the first page of the statement?
41(d)(6) Contact Information
Proposed Sec. 1026.41(d)(6) would require that the periodic
statement contain contact information specifying where a consumer may
obtain information regarding the mortgage. Proposed comment 41(d)(6)-2
clarifies that this contact information must be the same as the contact
information for asserting errors or requesting information. The Bureau
seeks comment on whether consumers are likely to contact the servicer
for information other than errors or inquiries, which would necessitate
a different number being included on the periodic statement. Proposed
Sec. 1026.41(d)(6) provides that the contact information provided must
include a toll-free telephone number. Proposed comment 41(d)(6)-1
clarifies that the servicer may provide additional information, such as
a web address, at its option. Proposed Sec. 1026.41(d)(6) does not
require that the contact information be set off in a separate section,
but simply that it be included on the front page of the statement. This
proposed requirement would allow servicers to include this information
with their company name and logo at the top of the page or elsewhere on
the statement.
41(d)(7) Account Information
Proposed Sec. 1026.41(d)(7) would require that the following
information about the mortgage, as required by the statute, be included
on the statement: The amount of principal obligation, the current
interest rate in effect for the loan, the date on which the interest
rate

[[Page 57360]]

may next reset or adjust, the amount of any prepayment penalty, and
information on housing counselors. This information may be included
anywhere on the statement. This information may, but need not be,
grouped together. While the sample form has this information on the
first page, the servicer is not required to include this information on
the first page.
Prepayment penalty. Proposed Sec. 1026.41(d)(7)(iv) defines a
prepayment penalty as ``a charge imposed for paying all or part of a
transaction's principal before the date on which the principal is
due.'' This definition is further clarified in the proposed commentary.
Proposed comment 41(d)(7)(iv)-1 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 41(d)(7)(iv)-1.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 states, 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 accrued in the month during which
the consumer prepaid.
Proposed comment 41(d)(7)(iv)-2 clarifies that a prepayment penalty
does not include: (1) Fees imposed for preparing and providing
documents when a loan is paid in full, if the fees are imposed 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; or (2) loan
guarantee fees.
The definition of prepayment penalty in proposed Sec.
1026.41(d)(7)(iv) and comments 41(d)(7)(iv)-1 and -2 substantially
incorporate the definitions of and guidance on prepayment penalties
from other rulemakings addressing mortgages and, as necessary,
reconciles their differences. For example, the Bureau is proposing to
incorporate the language from the Board's 2009 Closed-End 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 the term prepayment penalty.
The Bureau expects to coordinate the definition of the term
prepayment penalty in proposed Sec. 1026.41(d)(7)(iv) with the
definitions in other pending rulemakings relating to mortgages.
The Bureau seeks comment on the feasibility of disclosing the
amount of any prepayment penalty, as the amount of the penalty could
depend on the timing or amount of prepayment, and if a preferable
alternative would be to disclose the maximum amount of a prepayment
penalty. Alternatively, the Bureau seeks comment on whether a better
alternative would be for the periodic statement to disclose the
existence of a prepayment penalty in place of the amount.
Housing counselors. Proposed Sec. 1026.41(d)(7)(v) would require
the periodic statement to include contact information for the State
housing finance authority for the State in which the property is
located, and information to access either the Bureau list or the HUD
list of homeownership counselors or counseling organizations.
TILA section 128(f)(1)(G) requires the periodic statement to
include the names, addresses, telephone numbers and Internet addresses
of counseling agencies or programs reasonably available to the consumer
that have been certified or approved and made publically available by
the Secretary of Housing and Urban Development or a State housing
finance authority.
On July 9, 2012, the Bureau released the 2012 HOEPA Proposal to
implement other Dodd-Frank Act provisions, including the requirement to
provide a list of housing counselors in connection with the application
process for mortgage loans.\111\ In connection with those requirements,
the Bureau proposed to require creditors to provide a list of five
homeownership counselors or counseling organizations to applicants for
various categories of mortgage loans. The Bureau also indicated that it
is expecting to develop a website portal that would allow lenders to
type in the loan applicant's zip code to generate the requisite list,
which could then be printed for distribution to the loan applicant.
This will allow creditors to access lists of the housing counselors
with a minimum amount of effort.\112\
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\111\ See 2012 HOEPA Proposal, available at http://files.consumerfinance.gov/f/201207_cfpb_proposed-rule_high-cost-mortgage-protections.pdf, at 29-35.
\112\ The list provided by the lender pursuant to the 2012 HOEPA
Proposal would include only homeownership counselors or counseling
organizations from either the most current list of homeownership
counselors or counseling organizations made available by the Bureau
for use by lenders, or the most current list maintained by HUD of
homeownership counselors or counseling organizations certified by
HUD, or otherwise approved by HUD. See id. at 32-33.
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In connection with the periodic statement requirement, however, the
Bureau is proposing to use its exception authority to require servicers
simply to list where consumers can find a list of counselors, rather
than to reproduce a list of counselors in each billing cycle. The
Bureau believes that this approach appropriately balances consumer and
servicer interests based on several considerations.
First, the Bureau is concerned about information overload for
consumers. The periodic statement contains a significant amount of
information already. While consumers who are deciding whether to take
out a mortgage loan in the first instance may greatly benefit from
consultation with a housing counselor, that likelihood is greatly
reduced with regard to consumers receiving regular periodic statements
on existing loans.
Second, the burden on servicers to import the list of counselors
into a periodic statement document or to attach a list with each
billing cycle is significantly higher than with regard to a single
provision of the list. Space on the periodic statements is limited, and
importing updated information from the CFPB website each cycle would
involve more programming burden than simply listing the two agencies'
websites in the first instance.
To address these concerns, the proposal would require that the
periodic

[[Page 57361]]

statements include the contact information to access the State housing
finance authority for the State in which the property is located, and
the website and telephone number to access either the Bureau list or
the HUD list of homeownership counselors or counseling
organizations.\113\ Directing consumers to this information would allow
them to choose a program or agency conveniently located for them, and
would allow the consumer to locate other programs or agencies if those
contacted initially could not help the consumer at that time. The
Bureau seeks comment on whether this proposal strikes an appropriate
balance, and on the benefits and burdens to both borrowers and
servicers of requiring that a list of several individual housing
counselors be included in or with the periodic statement.
---------------------------------------------------------------------------

\113\ At the time of publishing, the Bureau list was not yet
available and the HUD list is available at http://www.hud.gov/offices/hsg/sfh/hcc/hcs.cfm.
---------------------------------------------------------------------------

Because housing counselor information may not be relevant to
consumers who are current and not facing any problems, the proposal
does not require this information to be on the front of the statement.
The Bureau seeks comment if this information should be required to be
located on the front of this statement. In a related requirement, when
the delinquency information is provided, the proposed regulations would
require that the delinquency information contain a reference to this
housing counselor information. This would ensures that the housing
counselor information would be brought to the attention of delinquent
consumers. These provisions are discussed further below.
The Bureau expects to coordinate the housing counselor information
requirement in proposed Sec. 1026.41(d)(7)(v) with the definitions in
other pending rulemakings concerning mortgage loans that address
housing counselors. The Bureau believes that, to the extent consistent
with consumer protection objectives, adopting a consistent approach to
providing housing counselor information across its various pending
rulemakings will facilitate compliance. The Bureau notes that other
housing counselor requirements (for example, the ARMs initial interest
rate adjustment notification) require the contact information for the
State housing finance authority for the State in which the consumer
resides (as opposed to the State in which the property is located).
While the Bureau expects the State in which the property is located
will most often be the State where the consumer resides, under certain
circumstances (a vacation home), these may be different States.
Additionally, the Bureau notes that a difference in regulation
requirements for different disclosures may increase compliance costs
for servicers. The Bureau seeks comment on which State housing finance
authority's contact information should be required on the periodic
statement.
The Bureau proposes to use its authority under TILA section 105(a)
and (f) and DFA section 1405(b) to exempt creditors, assignees, and
servicers of residential mortgage loans from the requirement in TILA
section 128(f)(1)(G) to include in periodic statements contact
information for government-certified counseling agencies or programs
reasonably available to the consumer, and to instead require that
periodic statements disclose the State housing finance authority for
the State in which the property is located and information to access
either the Bureau list or HUD list of homeownership counselors or
organizations. For the reasons discussed above, the Bureau believes
that the proposed exception and addition is necessary and proper under
TILA section 105(a) both to effectuate the purposes of TILA--to promote
the informed use of credit and protect consumers against inaccurate and
unfair credit billing practices--and to facilitate compliance.
Moreover, the Bureau believes, in light of the factors in TILA section
105(f), that disclosure of the information specified in TILA section
128(f)(1)(G) would not provide a meaningful benefit to consumers.
Specifically, the Bureau considers that the exemption is proper
irrespective of the amount of the loan, the status of the borrower
(including related financial arrangements, financial sophistication,
and the importance to the borrower of the loan), or whether the loan is
secured by the principal residence of the consumer. Further, in the
estimation of the Bureau, the proposed exemption will simplify the
periodic statement, and improve the housing counselor information
provided to the consumer, thus furthering the consumer protection
purposes of the statute. In addition, consistent with DFA section
1405(b), the Bureau believes that the proposed modification of the
requirements in TILA section 128(f)(1)(G) will improve consumer
awareness and understanding and is in the interest of consumers and in
the public interest.
41(d)(8) Delinquency Notice
Proposed Sec. 1026.41(d)(8) would require that if the consumer is
more than 45 days delinquent, the servicer must include on the periodic
statement certain delinquency information grouped together. The
accounting of mortgage payments is confusing at best, and becomes
significantly more complicated in a delinquency scenario. The
combination of fees, partial payments being sent to suspense accounts,
and application of payments to oldest outstanding payments due can
quickly lead to confusion. Additionally, consumers in delinquency are
often facing stress due to the situation that left them unable to make
their mortgage payments. The proposed early intervention rules would
require servicers to disclose information about loss mitigation or loan
modification, but this information would not be customized to
individual consumers. The delinquency notice, discussed below, would
provide information that is tailored to the specific consumer. This
information would benefit the consumer in several ways. First, this
notice would ensure that the consumer is aware of the delinquency as
well as potential consequences. Second, this information would ensure
that the consumer has the information about his or her loan. For
example, certain loan modification programs are tied to specific
timelines in delinquency. This information would ensure that consumers
understand the timeline for their delinquency so they can benefit from
early intervention information. Finally, the delinquency information
would create a record of how payments were applied, which would both
help consumers understand the amount due and give consumers the
information needed to become aware of any errors so they could use the
appropriate error resolution procedures.
Delinquency date and risks. Proposed paragraph (d)(8)(i) would
require the periodic statement to include the date on which the
consumer became delinquent. Many timelines relevant to the loss
mitigation and foreclosure processes are based on the number of days of
delinquency. For example, under certain programs consumers may not be
eligible for a loan modification unless they are at least 60 days
delinquent. However consumers may not know the date on which he or she
was first considered delinquent. This can be especially confusing in a
scenario where the consumer is making partial payments. Proposed
paragraph (d)(8)(ii) would require the periodic statement to include a
statement reminding the consumer of potential risks of delinquency, for
example, late fees may be assessed or, after a number of months, the
consumer can be subject to foreclosure.

[[Page 57362]]

A recent account history. Proposed paragraph (d)(8)(iii) would
require the periodic statement to include a recent account history as
part of the delinquency information. The accounting associated with
mortgage loan payments is complicated, and can be even more so in
delinquency situations. The accrual of fees and the application of
payments to past months can make it very difficult for consumers to
understand the exact amount he or she owes on the loan, and how that
total was calculated. Additionally, this complex accounting makes it
very difficult for a consumer to identify errors in of payment
allocations. Although some of this information would be available from
previous periodic statements, the Bureau believes that providing a
separate recent account history is warranted under the circumstances.
The Bureau believes that the recent account history would enable
the consumer to understand how past payments were applied, provide the
information needed to identify any errors, and provide the information
necessary to make financial decisions. Proposed paragraph (d)(8)(iii)
would require the account history to show the amount due for each
billing cycle, or the date on which a payment for a billing cycle was
considered fully paid. The date on which the payment was considered
fully paid is included to help a consumer understand that a past
payment that was previously delinquent has been considered paid. For
example, suppose a delinquent consumer does not make a payment in
January, but makes a regular payment in February. Without the account
history, the consumer would not be able to verify that payments were
properly applied. The account history is limited to the lesser of the
past 6 months or the last time the account was current to avoid
creating a long list that could overwhelm the rest of the periodic
statement.
Notice of any loan modification programs. Proposed paragraph
(d)(8)(iv) would require the periodic statement to include as part of
the delinquency information in the periodic statement notice of any
acceptance into a modification program, either trial or permanent,
create a record of acceptance into the modification program.
Notice if the loan has been referred to foreclosure. Proposed
paragraph (d)(8)(v) would require the periodic statement to include, as
part of the delinquency information notice, that the loan has been
referred to foreclosure, if applicable, to ensure that the consumer is
aware of any pending foreclosure.
Total amount to bring the loan current. Proposed paragraph
(d)(8)(vi) would require that the total amount needed to bring the loan
current be included in the delinquency information to ensure that
consumers knows how much money they must pay to bring the loan back to
current status.
Housing counselor information reference. Proposed paragraph
(d)(8)(vii) would require that the delinquency notice also contain a
statement directing the consumer to the housing counselor information
located on the statement, as proposed by paragraph (d)(7)(v). For
example, if the housing counselor information is on the back of the
statement, the delinquency information, on the front of the statement,
would direct consumers to the back of the statement.
45 Days. The delinquency information is intended to assist
consumers who have fallen behind on their mortgage payments. The
proposal would not require provision of this information until the
consumer is 45 days delinquent. The Bureau recognizes that not all
delinquencies indicate troubled consumers; a single missed payment may
be the result of other factors such as misdirected mail. Such consumers
would likely be notified of a single missed payment by their servicer,
and the lack of payment received would be reflected on the next
periodic statement. These consumers would receive minimal additional
benefit from the delinquency information, and, if this is a frequent
occurrence, such consumers might become accustomed to ignoring the
delinquency information. By contrast, two missed payments likely
indicate a potentially more serious issue, unlike simply failing to
remember to send in a payment on time. Thus, the delinquency
information would be required at 45 days to ensure receipt of this
information by a borrower who missed two consecutive payments.
41(e) Exemptions
41(e)(1) Reverse Mortgages
Proposed Sec. 1026.41(e)(1) exempts reverse mortgages, as defined
by Sec. 1026.33(a), from the periodic statement requirement. The
Bureau is proposing this exemption for reverse mortgages because the
periodic statement requirement was designed for a traditional mortgage
product. Information that would be relevant and useful on a reverse
mortgage statement differs substantially from the information required
on the periodic statement. Incorporating the unique aspects of a
reverse mortgage into the periodic statement regulations would require
massive alterations to the form and regulation. The Bureau believes
that it is more appropriate to address consumer protections relating to
reverse mortgages in a separate comprehensive rulemaking.
The Bureau proposes to use its authority under TILA sections 105(a)
and (f) and DFA section 1405(b) to exempt reverse mortgages from the
requirement in TILA section 128(f) to provide periodic statements. For
the reasons discussed above, the Bureau believes the proposed exemption
is necessary and proper under TILA section 105(a) both to effectuate
the purposes of TILA, and to facilitate compliance.
Moreover, the Bureau believes, in light of the factors in TILA
section 105(f), that disclosure of the information specified in TILA
section 128(f)(1) would not provide a meaningful benefit to consumers
of reverse mortgages. Specifically, the Bureau considers that the
exemption is proper irrespective of the amount of the loan, the status
of the borrower (including related financial arrangements, financial
sophistication, and the importance to the borrower of the loan), or
whether the loan is secured by the principal residence of the consumer.
Further, in the estimation of the Bureau, the proposed exemption would
further the consumer protection purposes of the statute by avoiding the
consumer confusion that would result by applying the same disclosure
requirements to reverse mortgages as other mortgages and leaving
reverse mortgages to be addressed in a comprehensive reverse mortgage
rulemaking.
In addition, consistent with DFA section 1405(b), the Bureau
believes that the proposed modification of the requirements in TILA
section 128(f) to exempt reverse mortgages would improve consumer
awareness and understanding and is in the interest of consumers and in
the public interest.
41(e)(2) Time Shares
Proposed Sec. 1026.41(e)(2) would clarify that timeshares as
defined by 11 U.S.C. 101 (53(D)) are exempt from the periodic statement
requirement. TILA section 128(f) provides that the periodic statement
requirement applies to residential mortgage loans. The definition of
residential mortgage loans set forth in TILA section 103(cc)(5)
specifies that timeshares do not fall under this definition.

[[Page 57363]]

41(e)(3) Coupon Book Exemption
Proposed Sec. 1026.41(e)(3) would implement the statutory
exemption for fixed-rate loans for which the servicer provides a coupon
book containing substantially similar information as found in the
periodic statement. The Bureau recognizes the value of the coupon book
as striking a balance between ensuring consumers receive important
information, and providing a low burden method for servicers to comply
with the periodic statement requirements. As such, the Bureau seeks to
effectuate the coupon book exemption. The nature of a coupon book (both
its smaller size and static nature) creates difficulties in including
substantially similar information as would be on a periodic statement.
The main problem is the static nature of a coupon book. Because a
coupon book may cover an entire year or more, it cannot include
information that changes on a monthly basis. By contrast, a periodic
statement can provide dynamic information that changes on a monthly
basis. To address this problem, the Bureau is proposing to modify the
coupon book exception permitted by TILA section 128(f)(3) to apply the
exception where the coupon book contains certain static information and
other dynamic information is made accessible to the consumer.
Proposed comment 41(e)(3)-1 defines ``fixed-rate'' by reference to
Sec. 1026.18(s)(7)(iii), which defines ``fixed-rate mortgage'' as a
transaction secured by a dwelling that is not an adjustable-rate or a
step-rate mortgage. Proposed comment 41(e)(3)-2 explains what a coupon
book is.
The Bureau proposes to use its authority under TILA section 105(a)
to give effect to the coupon book exemption in TILA section 128(f)(3).
TILA section 128(f)(3) provides an exemption to the periodic statement
for fixed-rate loans when a coupon book that contains substantially
similar information to the periodic statement is provided. Using its
authority under TILA section 128(f)(1)(H), the Bureau has added certain
dynamic items to the periodic statement that would be infeasible to
include in a coupon book. The Bureau is proposing to use its TILA
105(a) authority to permit use of a coupon book even where certain
dynamic information is not included in the book so long as such
information is made available via the inquiry process. The Bureau
believes this proposed exemption is necessary and proper to facilitate
compliance.
Information in the coupon book. Proposed paragraph (e)(3)(i) would
require the following information to be included on each coupon within
the book: The payment due date, the amount due, and the amount and date
that any late fee will be incurred. In specifying the amount due on
each coupon, servicers would assume that all prior payments have been
paid in full.
Proposed paragraph (e)(3)(ii) would require the following
information to be included in the coupon book itself, though it need
not be on each coupon: The amount of the principal loan balance, the
interest rate in effect for the loan, the date on which the interest
rate may next change; the amount of any prepayment fee that may be
charged, the contact information for the servicer, and housing
counselor information. Each of these items is discussed above in the
section-by-section analysis of proposed paragraph (d). The coupon book
would also be required to disclose information on how the consumer may
obtain the dynamic information discussed below. The information
described above may, but is not required to be, included on each
coupon. Instead, it may be included anywhere in the coupon book,
including on the covers, or on filler pages, as explained by proposed
comment 41(e)(3)-3.
Because the outstanding principal balance will typically change
during the time period covered by the coupon book, proposed comment
41(e)(3)-4 clarifies that a coupon book need only include the
outstanding principal balance at the beginning of that time period.
Information made available. As discussed above, due to the static
nature of the coupon book, certain dynamic information that is required
to be included on periodic statements cannot be included. To use the
coupon book provision, the proposed rule would require that the dynamic
information be made available upon the consumer's request. The servicer
could provide the information orally, or in writing, or electronically,
if the consumer consents. Thus, proposed paragraph (e)(3)(iii) would
require the following dynamic information be made available to the
consumer upon request: The monthly payment amount, including a
breakdown showing how much, if any, will be allocated to principal,
interest, and any escrow account; the total of fees or charges imposed
since the last payment period; any payment amount past due; the total
of all payments received since the beginning of the payment period,
including a breakdown of how much, if any, of those payments was
applied to principal, interest, escrow, fees and charges, and any
partial payment suspense accounts; the total of all payments received
since the beginning of the calendar year, including a breakdown of how
much, if any, of those payments was applied to principal, interest,
escrow, fees and charges, and how much is currently in any partial
payment or suspense account; and a list of all the transaction activity
(as defined in proposed comment 41(d)(4)-1) that occurred since the
payment period.
The Bureau seeks comment on whether requiring servicers to make
this information available would impose significant burden or costs
that exceed consumer benefits. In particular, the Bureau seeks comment
on whether providing the past payment breakdown information would
impose greater burden then benefits.
Delinquency information. Because of the importance of the
delinquency information, proposed paragraph (e)(3)(iv) would require
that to qualify for the coupon book exception, the delinquency
information required by proposed Sec. 1026.41(d)(8), discussed above,
to be sent to the consumer in writing for each billing cycle for which
the consumer is more than 45 days delinquent at the beginning of the
billing cycle.
41(e)(4) Small Servicer Exemption
Proposed paragraph (e)(4) would exempt certain smaller servicers
from the duty to provide periodic statements for certain loans. A small
servicer would be defined as a servicer (i) who services 1,000 or fewer
mortgage loans; and (ii) only services mortgage loans for which the
servicer or an affiliate is the owner or assignee, or for which the
servicer or an affiliate is the entity to whom the mortgage loan
obligation was initially payable.
The Bureau has decided to propose this exemption after careful
consideration of the benefits and burdens of the periodic statement
requirement. As proposed, the Bureau believes that the periodic
statement will be helpful to consumers because it will provide a well-
integrated communication that not only contains information about
upcoming payments due, but also information about loan status, fees
charged, past payment crediting, and potential resources and other
useful information for consumers who have fallen behind in their
payments. The Bureau believes that providing a single-integrated
document, in place of a number of other communications that contain
fragments of this information can be more efficient for consumers and
servicers alike. And in light of the historic problems that have been
reported in parts of the

[[Page 57364]]

servicing industry, the periodic statement could be a useful tool for
consumers to monitor their servicers' performance and identify any
issues or errors as soon as they occur.
At the same time, the Bureau recognizes that the servicing industry
is not monolithic. Producing a periodic statement with the elements
proposed in Sec. 1026.41 requires sophisticated programming to place
individualized information on each borrower's statement for each
billing cycle. The Bureau recognizes that very small servicers would
likely have to rely on outside vendors to develop or modify existing
systems to produce statements in compliance with the rule. As discussed
further below, the Bureau received detailed information from the SBREFA
panel process confirming the technological and operational challenges
faced by small servicers, as well as postage and other expenses that
would be associated with providing periodic statements on an ongoing
basis. Because small servicers maintain small portfolios, the SBREFA
participants emphasized that they cannot spread fixed costs across a
large number of loans the way that larger servicers can.
Where small servicers already have incentives to provide high
levels of customer contact and information, the Bureau believes that
the circumstances may warrant exempting those servicers from complying
with the periodic statement requirement. In particular, small servicers
that make loans in their local communities and then either hold their
loans in portfolio or retain the servicing rights have incentives to
maintain ``high-touch'' customer service models. Affirmative
communications with consumers help such servicers (and their
affiliates) to ensure loan performance, protect their reputations in
their communities, and market other consumer financial products and
services.\114\ Because those servicers have a long-term relationship
with the borrowers, their incentives with regard to charging fees and
other servicing practices may be more aligned with borrower interests.
These motivations to ensure a good relationship incentivize good
customer service, including making information about upcoming payments,
fees charged and payment history, and information for distressed
borrowers easily available to consumers by other means.
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\114\ See Re-Thinking Loan Serving, Prime Alliance Loan
Servicing, p. 8 (April 2010) available at: http://cuinsight.com/media/doc/WhitePaper_CaseStudy/wpcs_ReThinking_LoanServicing_May2010.pdf.
---------------------------------------------------------------------------

The Bureau believes, however, that both conditions are necessary to
warrant a possible exemption from the periodic statement rule--that is,
that an exemption may be appropriate only for servicers that service a
relatively small number of loans and that originated the loans and
either retained ownership or servicing rights. Larger servicers are
likely to be much more reliant on and sophisticated users of computer
technology in order to manage their operations efficiently. In such
situations, implementation of the periodic statement requirement is
likely to be somewhat easier to accomplish and perhaps even provide
technological benefits for the servicers. Larger servicers also
generally operate in a larger number of communities under circumstances
in which the ``high touch'' model of customer service is not
practicable. In light of this fact and the consumer benefits from
integrated communications, the Bureau does not believe it would be
appropriate to exempt all servicers who originate loans that they then
hold in portfolio or with respect to which they retain servicing
rights, without regard to size.
SBREFA Panel. The proposed exemption is consistent with feedback
that the Bureau received from small entity representatives during the
SBREFA panel process regarding the potentially significant burdens that
would be imposed by a periodic statement requirement. Participants
explained that they already provided much of the information in the
proposed periodic statement through alternative means, including
correspondence, more limited periodic statements, coupon books,
passbooks, and telephone conversations.\115\ Even where SERs did not
affirmatively provide particular items of information to borrowers,
they stated that their companies would generally provide it on request.
However, the participants emphasized repeatedly that consolidating all
of the information into a single monthly dynamic statement would be
difficult for small servicers.\116\
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\115\ SBREFA Final Report, supra note 22, at 16-19.
\116\ Id.
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The SERs explained that due to their small size, they generally do
not maintain in-house technological expertise and would generally use
third-party vendors to develop periodic statements. Due to their small
size, they believed they would have no control over these vendor
costs.\117\ Additionally, the small servicers have smaller portfolios
over which to spread the fixed costs of producing periodic statements.
Such servicers stated they are unable to gain cost efficiencies and
cannot effectively spread the implementation costs of periodic
statements across their loan portfolios. Finally, several SERs stated
that simply mailing periodic statements could cost thousands of dollars
per month beyond some of their current alternative communication
channels, such as coupon books or passbooks.
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\117\ Id. at 17.
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Small Servicer Defined. The Bureau lacks the data necessary to
precisely calibrate the amount of burden that would be imposed by the
periodic statement requirement on servicers of different sizes.
However, the Bureau believes that a threshold of 1,000 loans serviced
may be an appropriate approximation to limit the proposed exemption to
smaller servicers in the market. Assuming that, on average, most loans
are refinanced about every five years, this threshold works out to an
average of 200 originations per year. The Bureau estimates that a small
servicer of this size would earn about $600,000 annually in servicing
fee revenues.\118\ The SERs estimated that the periodic statement
burden could cost thousands of dollars each month.\119\ For comparison,
the Bureau notes that the top 100 mortgage servicers, as measured by
size of unpaid principal balance serviced, (which together have
approximately 82% of the mortgage servicing market share \120\) each
service in excess of $3 billion of unpaid principal balance.
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\118\ This estimate assumes that a servicer generates a net
mortgage servicing fee rate of 35 basis points and that the average
unpaid principal balance on the 1,000 loans is $175,000. The 35
basis points represents a blend of different mortgage servicing
asset quality. Mortgage servicing fees for conventional servicing
are generally 25 basis points; mortgage servicing fees for subprime
mortgage loans or loans sold to trusts guaranteed by Ginnie Mae may
vary between 40-50 basis points. Servicers are also able to generate
ancillary income from sources other than the mortgage servicing fee,
including additional fee revenue, such as late fees, and float on
principal, interest and escrow payments, the composition of which
may vary significantly among servicers. The Bureau believes that 35
basis points is a reasonable assumption in current market
conditions. See, e.g., Newcastle Investment Corp., Form 10-Q, filed
May 10, 2012, at 15-16, available at http://www.sec.gov/Archives/edgar/data/1175483/000138713112001455/nct-10q_033112.htm (last
accessed June 13, 2012 (describing REIT investment in excess
mortgage servicing rights (MSRs) from a portfolio of MSRs generating
an initial weighted average total mortgage servicing fee amount of
35 basis points).
\119\ SBREFA Final Report, supra note 22, at 19. (One SER
estimated it could cost an additional $11,000 per month in on-going
support, another SER estimated that a vendor might charge $1,000-
$2,000 per month in fees, a third SER estimated monthly costs of
$2,200 based on a cost of $1 per statement).
\120\ Inside Mortgage Finance, Issue 2012:13 (March 30, 2012) at
12.
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In addition to the 1,000 loan threshold, the exemption from the

[[Page 57365]]

periodic statement would be limited to entities that exclusively
service loans that they or an affiliate originated or was the entity to
which the obligation was initially payable. A servicer must both
exclusively service such loans and satisfy the 1000-loan threshold to
qualify for the small servicer exemption. The exemption is limited to
these servicers because of the incentive discussed above.
The proposed commentary clarifies the application of the small
servicer definition. Proposed comment 41(e)(4)-1 states that loans
obtained by a servicer or an affiliate in connection with a merger or
acquisition are considered loans for which the servicer or an affiliate
is the creditor to whom the mortgage loan is initially payable.
The proposed rule also states that in determining whether a small
servicer services 1,000 mortgage loans or less, a servicer is evaluated
based on its size as of January 1 for the remainder of the calendar
year. A servicer that, together with its affiliates, crosses the
threshold will have six months or until the beginning of the next
calendar year, whichever is later, to begin providing periodic
statements. Proposed comment 41(e)(4)-2 gives examples for calculating
when a servicer who crosses the 1,000 loan threshold would need to
begin sending periodic statements. The purpose of this provision is to
permit a servicer that crosses the 1,000 loan threshold a period of
time (the greater of either six months, or until the beginning of the
next calendar year) to bring the servicer's operations into compliance
with the periodic statement provisions for which the servicer was
previously exempt.
Proposed comments 41(e)(4)-3 clarifies when subservicers or
servicers who do not own the loans they are servicing, do not qualify
for the small servicer exemption, even if such servicers are below the
1,000 loan threshold.
Proposed comment 41(e)(4)-4 clarifies if a servicer subservices
mortgage loans for a master servicer that does not meet the small
servicer exemption, the subservicer cannot claim the benefit of the
exemption, even if it services 1,000 or fewer loans. The Bureau
believes that permitting an exemption in such circumstance could
potentially exempt a larger master servicer from the obligation to
provide periodic statements, even if it has master servicing
responsibility for several thousand loans.
The Bureau seeks comment on all aspects of the proposed exemption,
particularly whether the regulation should exempt small servicers,\121\
and, if so, whether the proposed scope and definition of a small
servicer is appropriate. Specifically, should the test be the one
proposed regarding origination, and is 1,000 or less the appropriate
size threshold? The Bureau particularly requests data on implementation
costs and the level of general activity by small servicers. The Bureau
also seeks comment on whether it would be appropriate to exempt small
servicers from other elements of the proposed servicing rules under
TILA and RESPA.
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\121\ As discussed above, for the purposes of Sec. 1026.41, the
term ``servicer'' includes creditors, assignees and servicers.
---------------------------------------------------------------------------

Authority. The Bureau proposes to exercise its authority under TILA
section 105(a) and (f), and DFA section 1405(b) to exempt small
servicers from the periodic statement requirement under TILA section
128(f). For the reasons discussed above, the Bureau believes the
proposed exemption is necessary and proper under TILA section 105(a) to
facilitate compliance. As discussed above, it would be very expensive
for small servicers to incur the initial costs of setting up a system
to send periodic statements, as a result, such servicers may choose to
exit the market. In addition, consistent with TILA section 105(f) and
in light of the factors in that provision, the Bureau believes that
requiring small servicers to comply with the periodic statement
requirement specified in TILA section 128(f) would not provide a
meaningful benefit to consumers in the form of useful information or
protection. The Bureau believes that the business model of small
servicers ensures their consumers already receive the necessary
information, and that requiring them to provide periodic statements
would impose significant costs and burden. Specifically, the Bureau
believes that the exemption is proper without regard to the amount of
the loan, the status of the borrower (including related financial
arrangements, financial sophistication, and the importance to the
borrower of the loan), or whether the loan is secured by the principal
residence of the consumer. In addition, consistent with DFA section
1405(b), for the reasons discussed above, the Bureau believes that the
proposed modification of the requirements in TILA section 128(f) to
exempt small servicers would further the consumer protection purposes
of TILA.
Appendix H to Part 1026
The Bureau proposes to exercise its authority under TILA section
105(c) to propose model and sample forms for Sec. 1026.20(c) and (d).
Appendix H-4(D) to Part 1026
The Bureau proposes to exercise its authority under TILA section
105(c) to propose model and sample forms for Sec. 1026.20(c) and (d).
Appendices G and H--Open-End and Closed-End Model Forms and Clauses
Proposed revisions to Appendices G and H-1 would add the appendix
sections that would illustrate examples of the model forms and sample
forms for the ARM disclosures proposed by Sec. 1026.20(c) and (d) to
the list of appendix sections illustrating examples of other model
disclosures required by Regulation Z whose format or content may not be
changed by creditors.
Appendix H--Closed Model Forms and Clauses-7(i)
Proposed revisions to Appendix H-7(i) would include Sec.
1026.20(d), as well as Sec. 1026.20(c), as the types of models
illustrated in this appendix. The proposed revision also would add text
so that the provision stated that the Appendix H-4(D) includes examples
of the two types of model forms for adjustable-rate mortgages: Sec.
1026.20(d) initial adjustment notices and Sec. 1026.20(c) payment
change notices for adjustments resulting in corresponding payment
changes.

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, HUD, the FHFA, and the Federal
Trade Commission, including regarding consistency with any prudential,
market, or systemic objectives administered by such agencies.\122\ The
Bureau also held discussions with or solicited feedback from the U.S.
Department of Agriculture Rural Housing Service, the Farm Credit
Administration, the FHA, and the VA regarding the potential impacts of
the proposed rule on those entities' loan programs.
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\122\ 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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In this rulemaking, the Bureau proposes to amend Regulation Z,
which implements TILA, and the official commentary to the regulation,
as part of

[[Page 57366]]

its implementation of the Dodd-Frank Act amendments to TILA's mortgage
servicing rules. The proposed amendments to Regulation Z implement
Dodd-Frank Act Sections 1418 (initial interest rate adjustment notice
for ARMs), 1420 (periodic statement), and 1464 (prompt crediting of
mortgage payments and response to requests for payoff amounts). The
proposed rule would also revise certain existing regulatory
requirements for disclosing rate and payment changes to adjustable-rate
mortgages in current Sec. 1026.20(c).
Elsewhere in today's Federal Register, the Bureau is also
publishing the 2012 RESPA Servicing Proposal that would implement
section 1463 of the Dodd-Frank Act. The RESPA proposal addresses
procedures for obtaining force-placed insurance; procedures for
investigating and resolving alleged errors and responding to requests
for information; reasonable information management policies and
procedures; early intervention for delinquent borrowers; continuity of
contact for delinquent borrowers; and loss-mitigation procedures.
As discussed in part II above, mortgage servicing has been marked
by pervasive and profound consumer protection problems. As a result of
these problems, Congress included in the Dodd-Frank Act the provisions
described above, which specifically address mortgage servicing. The new
protections in the rules proposed under TILA and RESPA would
significantly improve the transparency of mortgage loans after
origination, provide substantive protections to consumers, enhance
consumers' ability to obtain information from and dispute errors with
servicers, and provide consumers, particularly distressed and
delinquent consumers, with better customer service when dealing with
servicers.

A. Provisions To Be Analyzed

The analysis below considers the benefits, costs, and impacts of
the following major proposed provisions:
1. New initial interest rate adjustment notices for most closed-end
adjustable-rate mortgages.
2. Changes in the format, content, and timing of the Regulation Z
Sec. 1026.20(c) disclosure for most closed-end adjustable-rate
mortgages.
3. New periodic statement disclosure for most closed-end mortgages.
4. Prompt crediting of payments for consumer credit transactions
(both open- and closed-end) secured by the consumer's principal
dwelling and response to requests for payoff amounts from consumers
with consumer credit transactions (both open- and closed-end) secured
by a dwelling.
With respect to each major proposed 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 on the analysis of the potential benefits, costs and
impacts of the proposal.

B. Baseline for Analysis

The amendments to TILA are self-effectuating, and the Dodd-Frank
Act does not require the Bureau to adopt regulations to implement these
amendments. Specifically, the proposed provisions regarding the new
initial interest rate adjustment notice and the new periodic statement
disclosure implement self-effectuating amendments to TILA. Thus, many
costs and benefits of these proposed provisions would arise largely or
entirely from the statute, not from the proposed rule. The proposed
provisions would provide substantial benefits compared to allowing
these TILA amendments to take effect alone, even without the proposed
additional content and other features of the disclosures, by clarifying
parts of the statute that are ambiguous. Greater clarity on these
issues should reduce the compliance burdens on covered persons by
reducing costs for attorneys and compliance officers as well as
potential costs of over-compliance and unnecessary litigation.
Moreover, the costs that these provisions would impose beyond those
imposed by the statute itself are likely to be minimal.
DFA section 1022 permits the Bureau to consider the benefits,
costs, and impacts of the proposed rule solely compared to the state of
the world in which the statute takes effect without an implementing
regulation. To provide the public better information about the benefits
and costs of the statute, however, the Bureau has chosen to consider
the benefits, costs, and impacts of the major provisions of the
proposed rule against a pre-statutory baseline (i.e., to consider the
benefits, costs, and impacts of the relevant provisions of the Dodd-
Frank Act and the regulation combined).
The proposed provisions regarding prompt crediting of payments and
response to requests for payoff amounts also implement self-
effectuating amendments to TILA. These amendments to TILA, however,
largely codify existing Regulation Z provisions in Sec. 1026.36(c).
Thus, the pre-statute and post-statute baselines are substantially the
same. The proposed provisions would clarify servicer \123\ duties that
are ambiguous under the statute and existing regulations.
---------------------------------------------------------------------------

\123\ Reference in parts VII, VIII, and IX to ``servicers'' with
regard to the proposed rule for requests for payoff amounts means
creditors and servicers.
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Finally, the proposed provisions regarding the Sec. 1026.20(c)
disclosure for adjustable-rate mortgages impose obligations on
servicers \124\ that are authorized, but not required, under TILA
sections 105(a) and 128(f) and DFA section 1405(b). With respect to
proposed Sec. 1026.20(c), the Bureau has chosen to consider the
benefits, costs, and impacts of the proposed provisions against the
baseline provided by the current provisions of Sec. 1026.20(c).
---------------------------------------------------------------------------

\124\ Reference in parts VII, VIII, and IX to ``servicers'' with
regard to the proposed rules for adjustable-rate mortgages means
creditors, assignees, and servicers.
---------------------------------------------------------------------------

The Bureau has discretion in future rulemakings to choose the most
appropriate baseline for that particular rulemaking.

C. Coverage of the Proposal

Each proposed provision covers certain consumer credit transactions
secured by a dwelling, as described further in each section below.

D. Potential Benefits and Costs to Consumers and Covered Persons

1. New Initial Interest Rate Adjustment Notice for Adjustable-Rate
Mortgages
Section 1418 of the Dodd-Frank Act requires servicers to provide a
new disclosure to consumers who have hybrid ARMs. The disclosure
concerns the initial interest rate adjustment and must be given either
(a) between 6 and 7 months prior to such initial interest rate
adjustment or (b) at consummation of the mortgage if the initial
interest rate adjustment occurs during the first six months after
consummation.
The Bureau proposes to implement this provision by requiring that
the disclosure be given at least 210, but not more than 240, days
before the first payment at the adjusted level is due. The Bureau,
relying upon the savings clause in TILA section 128A(b), proposes to
broaden the scope of the proposed rule to include ARMs that are not
hybrid. The proposed disclosure would include the content required by
the statute, except for providing contact information for housing
counseling agencies and programs (where the proposed rule provides an
alternative disclosure), and certain additional information. Finally,
as explained above, the Bureau conducted three rounds of consumer
testing. The

[[Page 57367]]

disclosures were revised after each round of testing to improve their
effectiveness with consumers.
Benefits to consumers. The information in the proposed interest
rate adjustment notice would provide a number of benefits to consumers
with closed-end adjustable-rate mortgages at the initial interest rate
adjustment. These benefits may be broadly categorized as facilitating
(a) the choice of an alternative to making the new payment, including
refinancing; (b) the correction of any errors in the adjusted payment;
(c) the budgeting of household resources; and (d) the accumulation of
equity by certain consumers (i.e., those with interest-only or
negatively-amortizing payments). Individual items in the disclosure may
provide more than one of these benefits.
The proposed rule would require disclosure of the new interest rate
and payment--the exact amount, where available, or an estimate, where
exact amounts are unavailable. Disclosing an estimate of the interest
rate and any new payment at least 210, but not more than 240, days
before the first payment at the adjusted level is due would give
consumers a significant amount of time in which to pursue alternatives
to repaying the loan at the adjusted level. When interest rates are
stable, the estimate is informative about the future mortgage payment,
and consumers benefit from being able to plan future budgets or to
address a problem with affordability, perhaps by refinancing. The
estimate is less informative about the future mortgage payment when
interest rates are volatile, but under any circumstances, an estimated
payment that is well above the highest amount that the consumer can
afford alerts the consumer to a potential problem and the need to
gather additional information.
While some consumers with adjustable-rate mortgages may benefit
from disclosure of any potential new interest rate and payment (or
estimates of these amounts) well before payment is due, the benefits
from this information are likely greatest when provided prior to the
initial interest rate adjustment. Subsequent interest rate adjustments
reflect the difference between two fully indexed interest rates (i.e.,
interest rates that are the sum of a benchmark rate and a margin). In
contrast, the initial interest rate adjustment may reflect the
difference between an interest rate that is below the fully indexed
rate at the time of origination (a so-called ``teaser'' or
``introductory'' rate) and a rate that is fully indexed at the time of
adjustment. For example, in 2005, the teaser rate on subprime ARMs with
an initial fixed-rate period of two or three years was 3.5 percentage
points below the fully indexed rate.\125\ As a result, mortgages
originated in that year faced a potentially large change in the
interest rate and payment, or ``payment shock,'' at the first
adjustment. Furthermore, consumers facing the initial interest rate
adjustment may fail to anticipate even the possibility of a change in
payment, since this is necessarily the first time since origination
that the payment could change. Consumers facing payment shock or an
unanticipated change in payment also benefit from having additional
time to plan future budgets or to address a problem with affordability.
Thus, consumers facing the initial interest rate adjustment may benefit
from the proposed notice through both the information it provides
regarding the potentially new interest rate and payment and the
additional time it provides consumers to adapt.
---------------------------------------------------------------------------

\125\ See Christopher Mayer, Karen Pence, & Shane Sherlund, The
Rise in Mortgage Defaults, 23 J. Econ. Persps. 27, 37 (2009).
---------------------------------------------------------------------------

A number of items on the proposed disclosure would help the
consumer respond to problems with making the new payment. In addition
to information on the amount of the new payment, the proposed
disclosure lists alternatives to making the new payment and gives a
brief explanation of each alternative. It explains the circumstances
under which any prepayment penalty may be imposed and the maximum
amount of the penalty. It provides information on rate limits that may
affect future payment changes. It provides the telephone number of the
creditor, assignee, or servicer to call if the consumer anticipates
having problems making the new payment. Finally, it gives contact
information for the State housing authority and information to access
certain lists of homeownership counselors made available by Federal
agencies. All of this information benefits a consumer who needs to find
an alternative to making the new payment.
Certain items on the proposed disclosure may assist the consumer in
detecting any errors in the computation of the new payment estimate.
The proposed disclosure provides an explanation of how the new interest
rate and payment are determined, including the index or formula used
and any additional adjustment, such as a margin added to the index. It
also states any limits on the increase in the interest rate or payment
at each adjustment and over the life of the loan. This information may
also facilitate consumers' ability to compare their current mortgage
against competing products and provide other benefits, but at the very
least it assists consumers in verifying the accuracy of the new
estimated payment.
Finally, certain items on the proposed disclosure may facilitate
the accumulation of equity by consumers with interest-only or
negatively-amortizing payments. For these consumers, the disclosure
states the amount of both the current and the expected new payment
allocated to principal, interest, and escrow, as applicable.\126\ The
disclosure also states that the new payment will not be allocated to
pay loan principal. If negative amortization occurs as a result of the
adjustment, the disclosure must state the payment required to fully
amortize the loan at the new interest rate. The proposed disclosure
alerts consumers with these types of loans to features that bear on
equity accumulation, and it provides this information at a time when
these consumers may be evaluating their mortgage terms and considering
refinancing.
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\126\ The current payment allocation would also appear on the
proposed periodic statement disclosure. However, listing the current
and expected new payment allocation in one disclosure benefits
consumers by making clear any differences between the two
allocations. The Bureau recognizes that the benefit of information
in a particular disclosure may be mitigated to the extent that the
same information is available in other disclosures that are provided
at the same (or nearly the same) time.
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As discussed above, the Bureau is proposing formatting requirements
for the initial interest rate adjustment notice. These requirements
benefit consumers by facilitating consumer understanding of the
information in the disclosures. Except for the date of the notice, the
proposed rule requires that the disclosures must be provided in the
form of a table and in the same order as, and with headings and format
substantially similar to, certain forms provided with the proposed
rule. The Bureau's testing showed that consumers readily understood the
information in the notice when the terms and calculations were
presented in the groupings and logical order contained in the model
forms. While there is no formula for producing the ideal disclosure,
the proposed formatting requirements are generally informed by decades
of consumer testing. The Bureau believes that disclosures that satisfy
the proposed formatting requirements likely provide greater benefits to
consumers than both the

[[Page 57368]]

alternatives tested and disclosures that do not satisfy these
requirements.\127\
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\127\ For a general discussion of disclosure formatting,
disclosure testing and consumer benefits, see Jeanne Hogarth & Ellen
Merry, Designing Disclosures to Inform Consumer Financial
Decisionmaking: Lessons Learned from Consumer Testing, 97 Fed.
Reserve Bull. 1 (Aug. 2011).
---------------------------------------------------------------------------

Magnitude of the benefits to consumers. Research shows that
consumers make important decisions about housing finance at the initial
interest rate adjustment. Consumers often choose to prepay at the
initial interest rate adjustment, and the greater the payment shock,
the greater the likelihood of prepayment. These results hold for
conventional ARMs originated in the 1990s as well as for subprime
hybrid ARMs (2/28 and 3/27) originated in the 2000s.\128\
---------------------------------------------------------------------------

\128\ Brent W. Ambrose & Michael LaCour-Little, Prepayment Risk
in Adjustable Rate Mortgages Subject to Initial Year Discounts: Some
New Evidence, 29 Real Est. Econs. 305 (2001) (showing that the
expiration of teaser rates causes more ARM prepayments, using data
from the 1990s). The same result, using data from the 2000s and
focusing on subprime mortgages, is reported in Shane Sherland, The
Past, Present and Future of Subprime Mortgages, (Div. of Research &
Statistics and Div. of Monetary Affairs, Fed. Reserve Bd.,
Washington, D.C. 2008); The result that larger payment increases
generally cause more ARM prepayments, using data from the 1980s,
appears in James Vanderhoff, Adjustable and Fixed Rate Mortgage
Termination, Option Values and Local Market Conditions, 24 Real Est.
Econs. 379 (1996).
---------------------------------------------------------------------------

More controversial is the question of whether payment shock at the
initial interest rate adjustment causes default. In general, data from
the 2000s does not find a causal relationship between payment shock at
the initial interest rate adjustment and default.\129\ However, for
consumers with certain hybrid ARMs originated in the 2000s, a
substantial number experienced a payment shock of at least 5% at the
initial interest rate adjustment, and some research finds that the
default rate for these loans was three times higher than it would have
been if the payment had not changed.\130\
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\129\ Mayer, Pence, & Sherlund, supra note 125, at 37.
\130\ Anthony Pennington-Cross & Giang Ho, The Termination of
Subprime Hybrid and Fixed-Rate Mortgages, 38 Real Est. Econs. 399,
420 (2010).
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Whether or not the proposed initial interest rate adjustment notice
would reduce default under certain conditions, the disclosure may
generally facilitate the important decisions about housing finance that
consumers make at the initial interest rate adjustment. Extrapolating
from FHFA data, the Bureau estimates that approximately 285,000
adjustable-rate mortgages will have an initial interest rate adjustment
in each of the next three years. Few adjustable-rate mortgages in
recent years have had teaser rates; however, consumers with these
mortgages may benefit from shifting to a fixed-rate mortgage. If the
new initial interest rate adjustment notice prompts just 1% of
consumers who receive the notice to refinance and these consumers save
$50 per month, the annual savings to consumers would be over $1.7
million.
The Bureau does not have the data necessary to fully quantify the
benefits of the proposed initial interest rate adjustment notice to
consumers. Certain consumers with adjustable-rate mortgages will be
aware of the upcoming initial interest rate adjustment and the
possibility of refinancing or (if there is a payment adjustment)
considering alternatives to making a new payment, of needing to
reallocate household resources in light of a new payment, of addressing
an error in computing a new payment, and of reviewing the household
balance sheet in light of an interest-only or negatively-amortizing
loan. The Bureau is not aware of data with which it could fully
quantify the value of the information in the disclosure to these
consumers or determine the savings to them in time and other resources
from not having to obtain this information from other sources.
Furthermore, there are other consumers with adjustable-rate mortgages
who may be uninformed or misinformed (or perhaps forgetful) about the
upcoming initial interest rate adjustment, the possibility of an error
in computing a potential new payment, or the financial implications of
interest-only and negatively-amortizing loans on equity accumulation.
The Bureau is not aware of data with which it could quantify the
benefits to these consumers of becoming better informed about these
features of their mortgages. However, the Bureau believes that the
proposed initial interest rate adjustment notice may provide
substantial benefits to these consumers.
Costs to consumers. As explained below in the discussion of costs
to covered persons, the cost per disclosure would be about $2.60. This
estimate takes into account both one-time costs (amortized over five
years) and annual production and distribution costs.\131\ Under
conservative assumptions, in the illustration above, the benefits to
consumers who receive the disclosure would be $6.
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\131\ In this and subsequent numerical discussions,
``amortizing'' an amount $x over a certain number of years means
making equal payments in each year that sum up to $x.
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Given the small cost per disclosure, the Bureau believes that
consumers would see at most a minimal increase in fees or charges.
Servicers may in general attempt to shift a cost increase onto others
and consumers may ultimately bear part of an increase that falls
nominally on servicers. For the proposed initial interest rate
adjustment notice, however, the costs to be shifted are small.
Furthermore, even if servicers did attempt to shift the costs, it is
not clear that consumers would bear them. Consider, for example,
servicers who bid for servicing rights on mortgages originated by
others. The additional costs associated with providing the initial rate
adjustment notice may cause servicers to bid less aggressively for
certain servicing rights. In this case, lenders or investors may bear
some of the cost. Servicers may also attempt to obtain higher
compensation for servicing from originators. Originators may respond by
attempting to increase fees or charges at origination or by increasing
the cost of credit. In this case consumers may bear some of the costs,
but not necessarily all of them. The relative sensitivity of supply and
demand in these inter-related markets would determine the proportion of
the cost increase borne by different persons, including consumers.
The proposed rule limits how servicers may present the required
information in the disclosure. Servicers would have to present the
required information in a format substantially similar to the format of
the proposed model forms. The Bureau recognizes the possibility that
constraints on the way servicers present information to consumers may
prohibit the use of more effective forms that servicers are using or
may develop. The constraints would then impose a cost on consumers. The
Bureau does not believe there are any such costs in this case. The
Bureau is unaware of any efforts by servicers to develop an initial
interest rate adjustment notice that meets the requirements of the
Dodd-Frank Act and provides the benefits to consumers of the proposed
model forms. The Bureau worked closely with Macro to develop the model
disclosures, conducted three rounds of consumer testing, and revised
the disclosure after testing.
During the SBREFA process, the Bureau received comments from some
SERs that disclosing an estimate of the new monthly payment may confuse
certain consumers. The Bureau believes that clearly stating on the form
that the new monthly payment is an estimate and that consumers will
receive a notice with the exact amounts two to four months prior to the
date the first payment at the adjusted level is due (in cases where the
interest rate adjustment results in a corresponding payment change)
will mitigate consumer

[[Page 57369]]

confusion on this point. The Bureau notes that section 1418 of the
Dodd-Frank Act requires disclosure of a good faith estimate of the new
monthly payment. In addition, servicers must provide an accurate
statement of the new monthly payment in the notice if it is available;
and if it is not available, then consumers will receive an accurate
statement of the new monthly payment between 60 and 120 days before the
first payment is due, if the interest rate adjustment causes a
corresponding change in payment pursuant to the proposed Sec.
1026.20(c) disclosure.
Benefits to covered persons. The timing and the content of the
proposed initial interest rate adjustment notice may provide certain
benefits to servicers. Servicers benefit when distressed consumers
contact them well in advance of a possible increase in interest rate
and payment, since early communication gives servicers and consumers
more time to work together constructively. The proposed disclosure
provides consumers with substantial advance notice about their
potential future payment and alternatives. Distressed consumers with
such notice may be more likely to contact their servicer well in
advance of an increase in payment, work constructively with their
servicer, and, if necessary, explore alternatives.
Costs to covered persons. The proposed initial interest rate
adjustment notice will result in certain compliance costs to covered
persons. Servicers (or their vendors) may need to adapt their software
and compliance systems to produce the new form. The new proposed form
would also provide to borrowers information that is not currently
disclosed to them, including information that is specific to each loan.
Servicers (or their vendors) may not have ready access to all of this
additional loan-level information; for example, if some of this
additional information is stored in a database that is not regularly
accessed by systems that produce the current disclosures. The Bureau
seeks information from servicers and vendors that provide services to
servicers with respect to operations regarding the storage of loan-
level information and the costs of providing the proposed new loan-
level information to consumers.
Some of the information provided in the proposed initial interest
rate adjustment notice is also provided in the proposed revisions to
the Sec. 1026.20(c) disclosure. The Bureau believes that harmonizing
the two disclosures would mitigate the compliance burden for servicers
and reduce the aggregate production costs to servicers.
Based on discussions with servicers and software vendors to date,
the Bureau believes that servicers will for the most part use vendors
for one-time software and IT upgrades and for ongoing production and
distribution (i.e., mailing) of the disclosure. Servicers will also
incur one-time costs to learn about the proposed rule, but those costs
will be minimal. Furthermore, the Bureau believes that under existing
mortgage servicing contracts, vendors would absorb the one-time
software and IT costs and ongoing production costs of disclosures for
large- and medium-sized servicers but pass along these costs to small
servicers. All servicers would pay distribution costs.
Based on discussions with industry and extrapolating from FHFA
data, the Bureau estimates the one-time cost of the proposed disclosure
to be just over $3 million for 12,800 servicers. Amortizing this cost
over five years and combining it with annual costs of $139,000 gives a
total annual cost of $58 per servicer, or $2.60 per notice. The use of
vendors substantially mitigates the costs of revising software and IT,
as the efforts of a single vendor addresses the needs of a large number
of servicers. The ongoing costs reflect the fact that there will be
relatively few initial interest rate adjustments on adjustable-rate
mortgages over the next few years.
For small servicers, the one-time cost of the proposed disclosure
is $2.3 million. This also gives a total annual cost of about $58 per
servicer. However, it is not possible to estimate the number of initial
interest rate adjustment notices that small servicers will produce each
year, since the Bureau is not aware of any reasonably obtainable data
on the loan portfolios of small servicers. The Bureau believes that the
number is small since the total number of mortgages serviced by small
servicers is small and the notice is given only once to each ARM
borrower. The Bureau seeks comment on these estimates and asks
interested parties to provide data, research, and other information
that may inform the further consideration of these costs.
The Bureau recognizes that certain financial benefits to consumers
from the initial interest rate adjustment notice may have an associated
financial cost to covered persons. Servicer compensation is not
directly tied to the interest rate on a consumer's mortgage, but rather
to the unpaid principal balance. Thus, when a consumer refinances a
mortgage at a lower interest rate, one servicer incurs a cost but
another has a benefit. On the other hand, if a consumer refinances from
an adjustable-rate mortgage to a fifteen year fixed-rate mortgage, then
the consumer would pay off the unpaid principal balance more quickly
and servicer income would fall. Servicers may also receive reduced fee
income from delinquent borrowers (or investors) if the notice helps
borrowers avoid delinquency. The Bureau believes that the proposed
initial interest rate adjustment notice is likely to have a small
effect on the costs to servicers through the channels just described,
but the Bureau seeks data with which it may further consider these
costs.
Finally, as discussed in part VI, the Bureau considered but decided
not to except small servicers from the proposed initial interest rate
adjustment notice. The Bureau is not proposing an exception for small
servicers because an exception would deprive certain consumers of the
seven to eight months advance notice before payment at a new level is
due that is provided by the disclosure and the information about
alternatives and how to contact various sources of assistance.
Conversely, the Bureau believes that the benefit to small entities from
an exception would be small. Vendors will spread the one-time software
and IT costs of the notice over many small servicers and the annual
costs will be small since the proposed notice is given just once to
each consumer with an adjustable-rate mortgage. As discussed above, the
Bureau believes that five annual payments of $58 by each small servicer
will fully amortize the one-time cost of the proposed interest rate
adjustment notice.
2. Changes in the Format, Content, and Timing of the Regulation Z Sec.
1026.20(c) Disclosure for Adjustable-Rate Mortgages
Under current Sec. 1026.20(c), creditors must mail or deliver to
consumers whose payments will change as a result of an interest rate
adjustment a notice of interest rate adjustment for variable-rate
transactions subject to Sec. 1026.19(b) at least 25, but no more than
120, calendar days before a payment at a new level is due. Creditors
must also provide an annual disclosure to consumers whose interest
rate, but not mortgage payment, changes during the year covered by the
disclosure. The Bureau is proposing to eliminate the annual disclosure.
Thus, the discussion below relates exclusively to the payment change
disclosure required under Sec. 1026.20(c).\132\ The

[[Page 57370]]

Bureau is proposing to change the minimum time for providing advance
notice to consumers from 25 days to 60 days before payment at a new
level is due, with an accommodation for existing ARMs with look-back
periods of less than 45 days.\133\ The maximum time for advance notice
would remain the same: 120 days prior to the due date of the first
payment at a new level. The coverage, content, and format of the
revised Sec. 1026.20(c) disclosure closely tracks the coverage,
content, and format of the proposed initial interest rate adjustment
disclosure.
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\132\ As discussed in part VI, the Bureau believes that annual
notice is duplicative given the proposed periodic statement, which
would provide much of the same information. Thus, eliminating the
annual notice reduces costs for servicers with little or no loss in
benefits to consumers.
\133\ As explained above, the Bureau is aware that for certain
ARMs, there is currently less than 60 days between the date on which
the index value is selected that serves as the basis for the new
payment and the date on which payment at a new level is due. It may
therefore be difficult for servicers to provide a notice of interest
rate adjustment within 60 days of the date on which payment at a new
level is due. The Bureau may provide an accommodation for some of
these ARMs by requiring a different minimum time for providing this
advance notice. The Bureau solicits comments on the operational
changes that would be required to provide Sec. 1026.20(c) notices
at least 60 days before payment at a new level is due.
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Benefits to consumers. Regarding the change in timing, the Bureau
does not believe that the current minimum of 25 days provides
sufficient time for consumers to pursue meaningful alternatives such as
refinancing, home sale, loan modification, forbearance, or deed in lieu
of foreclosure. Nor does this minimum provide sufficient time for
consumers to adjust household finances to cover new payments. The
Board's 2009 Closed-End Proposal stated that HMDA data for the years
2004 through 2007 suggested that a requirement to provide ARM
adjustment disclosures 60, rather than 25, days before payment at a new
level is due more closely reflects the time needed for consumers to
refinance a loan.
Regarding the proposed changes in the content of the Sec.
1026.20(c) disclosure, the Bureau believes that it is helpful to
consumers to receive similar notices for similar purposes. Thus, the
Bureau believes there is some consumer benefit in harmonizing the Sec.
1026.20(c) disclosure with the proposed initial interest rate
adjustment disclosure. However, the two disclosures are triggered by
different (although related) events and the benefit of the information
to consumers is somewhat different.
Both the current and proposed Sec. 1026.20(c) disclosure provide
the current and upcoming interest rate and payment (not an estimate)
and the date the first new payment is due. This information facilitates
household budgeting and may alert the consumer to a potential problem
with affordability.
Proposed Sec. 1026.20(c) requires the disclosure to include an
explanation of how the new interest rate and payment are determined,
including the index or formula used, any margin added, and any
previously foregone interest increase applied. The proposed disclosure
also states any limits on the interest rate or payment increase at each
adjustment and over the life of the loan. This information assists the
consumer in detecting any errors in the computation of the new payment.
In contrast, the current Sec. 1026.20(c) disclosure provides the index
value without any explanation and does not provide information about
limits on interest rate or payment increases.
Information provided in the proposed Sec. 1026.20(c) disclosure
facilitates the evaluation of alternatives to paying the new amount
due. For example, the proposed disclosure provides an explanation of
the circumstances under which any prepayment penalty may be imposed and
the maximum amount of the penalty, which highlights the direct cost of
refinancing into a different loan. Also, disclosure of key features of
the loan like the new allocation of payments for interest-only and
negatively-amortizing ARMs, the rate limit per year and over the life
of the loan, and warnings about interest-only payments and increases in
the loan balance may also facilitate the comparison of the current loan
with alternatives. Disclosures required by current Sec. 1026.20(c) do
not provide any of this information.
The proposed Sec. 1026.20(c) disclosure provides the same
information as the proposed initial interest rate adjustment notice
regarding features of the mortgage that affect the accumulation of
equity. The disclosure of the loan balance itself is useful for this
purpose. For interest-only or negatively-amortizing loans, the
disclosure states the amount of the new payment allocated to pay
principal, interest, and taxes and insurance in escrow, as applicable,
and that the new payment will not be allocated to pay loan principal.
If negative amortization will occur due to the interest rate
adjustment, the disclosure states the payment required to fully
amortize the loan at the new interest rate. The proposed disclosure
alerts consumers with these types of loans to features that bear on
equity accumulation, and it provides this information at a time when
these consumers may be evaluating their mortgage terms and considering
refinancing. In contrast, the current Sec. 1026.20(c) disclosures
provide only the loan balance and information about the payment
required to fully amortize the loan at the new interest rate if the
interest rate adjustment caused the negative amortization.
As noted above, the Bureau recognizes that the benefit to consumers
of information in a particular disclosure may be attenuated to the
extent that the same information is available in other disclosures that
are provided at the same (or nearly the same) time. However, some of
the information on the proposed Sec. 1026.20(c) disclosure that also
appears on the proposed periodic statement disclosure is p