Federal Housing Administration (FHA): Strengthening the Home Equity Conversion Mortgage Program, 31769-31825 [2016-11631]
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Vol. 81
Thursday,
No. 97
May 19, 2016
Part III
Department of Housing and Urban
Development
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24 CFR Parts 30 and 206
Federal Housing Administration (FHA): Strengthening the Home Equity
Conversion Mortgage Program; Proposed Rule
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DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT
24 CFR Parts 30 and 206
[Docket No. FR–5353–P–01]
RIN 2502–AI79
Federal Housing Administration (FHA):
Strengthening the Home Equity
Conversion Mortgage Program
Office of the Assistant
Secretary for Housing—Federal Housing
Commissioner, HUD.
ACTION: Proposed rule.
AGENCY:
This rule proposes to codify
several significant changes to FHA’s
Home Equity Conversion Mortgage
program that were previously issued
under the authority granted to HUD in
the Housing and Economic Recovery
Act of 2008 and the Reverse Mortgage
Stabilization Act of 2013, and to make
additional regulatory changes. The
Home Equity Conversion Mortgage
program is FHA’s reverse mortgage
program that enables seniors who have
equity in their homes to withdraw a
portion of the accumulated equity. The
intent of the Home Equity Conversion
Mortgage program is to ease the
financial burden on elderly
homeowners facing increased health,
housing, and subsistence costs at a time
of reduced income. FHA’s mission is to
serve underserved markets, which must
be balanced with HUD’s inherent, as
well as, statutory obligation under the
National Housing Act to protect the
FHA insurance funds. The impacts of
the recent financial crisis, including a
decline in property values, shrinking
retirement accounts, and changing
borrower demographics placed seniors
with Home Equity Conversion
Mortgages at an increased risk of losing
their homes due to their inability to
make tax and insurance payments.
During this time, the FHA HECM
program was the only reverse mortgage
program available for seniors. The above
referenced economic and market factors,
combined with certain program features,
resulted in increased risk to the Mutual
Mortgage Insurance Fund (MMIF). This
rulemaking strengthens the FHA HECM
program and codifies changes made
under the Reverse Mortgage
Stabilization Act of 2013 that reduce
risk to the MMIF and increase the
sustainability of this important program
for seniors.
DATES: Comment Due Date: July 18,
2016.
ADDRESSES: Interested persons are
invited to submit comments regarding
this proposed rule to the Regulations
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SUMMARY:
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Division, Office of General Counsel,
Department of Housing and Urban
Development, 451 7th Street SW., Room
10276, Washington, DC 20410–0500.
Communications must refer to the above
docket number and title. There are two
methods for submitting public
comments. All submissions must refer
to the above docket number and title.
1. Submission of Comments by Mail.
Comments may be submitted by mail to
the Regulations Division, Office of
General Counsel, Department of
Housing and Urban Development, 451
7th Street SW., Room 10276,
Washington, DC 20410–0500.
2. Electronic Submission of
Comments. Interested persons may
submit comments electronically through
the Federal eRulemaking Portal at
www.regulations.gov. HUD strongly
encourages commenters to submit
comments electronically. Electronic
submission of comments allows the
commenter maximum time to prepare
and submit a comment, ensures timely
receipt by HUD, and enables HUD to
make them immediately available to the
public. Comments submitted
electronically through the
www.regulations.gov Web site can be
viewed by other commenters and
interested members of the public.
Commenters should follow the
instructions provided on that site to
submit comments electronically.
Note: To receive consideration as public
comments, comments must be submitted
through one of the two methods specified
above. Again, all submissions must refer to
the docket number and title of the rule.
No Facsimile Comments. Facsimile
(fax) comments are not acceptable.
Public Inspection of Public
Comments. All properly submitted
comments and communications
submitted to HUD will be available for
public inspection and copying between
8 a.m. and 5 p.m. weekdays at the above
address. Due to security measures at the
HUD Headquarters building, an
appointment to review the public
comments must be scheduled in
advance by calling the Regulations
Division at 202–708–3055 (this is not a
toll-free number). Individuals with
speech or hearing impairments may
access this number via TTY by calling
the Federal Relay Service at 800–877–
8339 (this is a toll-free number). Copies
of all comments submitted are available
for inspection and downloading at
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Karin Hill, Senior Policy Advisor, Office
of Single Family Housing, Department
of Housing and Urban Development,
451 7th Street SW., Room 9282,
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Washington, DC 20410–8000; telephone
number 202–402–3084 (this is not a tollfree number). Persons with hearing or
speech challenges may access this
number through TTY by calling the tollfree Federal Relay Service at 800–877–
8339.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
A. Purpose of Regulatory Action
Since the 2008 housing and economic
recession, the Home Equity Conversion
Mortgage (HECM) portfolio has
experienced major borrower
demographic and behavioral changes
that have caused additional risk to the
Mutual Mortgage Insurance Fund
(MMIF). Some of the changes include
shifting from a predominately adjustable
interest rate mortgage with borrowers
receiving payments over time using the
line of credit, modified term, or
modified tenure payment options to a
fixed interest rate mortgage with
borrowers drawing large amounts of
HECM proceeds at the time of closing;
younger borrowers with higher amounts
of property indebtedness; and
increasing property charge defaults.
While program changes made prior to
and during 2013, such as consolidating
the HECM Standard and HECM Saver
products, did improve the stability of
the HECM program, the HECM portfolio
has continued to experience volatility,
with an estimated economic value of
negative $1.2 billion as reported in
FHA’s Fiscal Year (FY) 2014 report to
Congress. The HECM Portfolio received
favorable actuarial results in 2015
reflecting the positive impact of
program changes and an improving
housing market. However it is critical to
remain vigilant in monitoring program
performance and policy to ensure the
soundness of the MMIF.
Recognizing the need to stabilize the
HECM program and ensure it remains a
sustainable program, Congress passed,
and the President signed into law, the
Reverse Mortgage Stabilization Act of
2013 (RMSA). The RMSA gave FHA the
tools to make, through mortgagee letter,1
changes to the HECM program that are
necessary to improve the fiscal safety
and soundness of the program. Under
this authority, FHA implemented a
number of changes to the HECM
program, including the Financial
Assessment and Property Charge
Funding Requirements; deferring the
due and payable status for Eligible NonBorrowing Spouses; limiting
disbursements during the first 12
1 Mortgagee letters issued under the authority
granted to HUD in RMSA will be identified
throughout this rule as RMSA mortgagee letters.
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months of the HECM; and eliminating
future draws on fixed interest rate
HECMs. Through this rulemaking, FHA
proposes to codify these policies, with
amendments as discussed in the
preamble. In addition, FHA proposes a
number of new policies, which are
discussed below and in the preamble.
Many of these proposed changes will
contribute to the stability of the HECM
program and decrease risk to the MMIF,
and others will provide needed updates
to a program which began as a
‘‘demonstration program’’ and which
has not been substantially updated in
over 20 years.
So that all regulatory requirements are
codified in the HECM regulations, FHA
also proposes to codify HECM program
changes made by mortgagee letter 2
under the Housing and Economic
Recovery Act of 2008 (HERA), which
implemented the HECM for Purchase
program and established new
origination fee limits, and to amend the
initial and monthly mortgage insurance
premium (MIP) limits to correspond
with statutory changes.
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B. Summary of Major Provisions of the
Regulatory Action in Question
In this rule, FHA proposes to codify
existing policy which has been
implemented by mortgagee letters under
various statutory authorities; implement
statutory changes; issue new origination
and servicing policies; and clarify
existing regulatory language. The main
policy provisions are discussed below.
Implementing Statutory Changes and
Codifying Existing Policies
Implemented Under Statutory Authority
Financial Assessment and Property
Charge Funding Requirements. As
implemented through RMSA Mortgagee
Letter 2014–21, mortgagees are required
to perform a Financial Assessment of
the prospective borrower prior to loan
approval, which considers the
prospective borrower’s credit history,
cash flow and residual income,
extenuating circumstances, and
compensating factors. Based on the
results of the Financial Assessment, the
mortgagee may require a Life
Expectancy Set Aside (LESA) for the
payment of certain property charges. For
fixed interest rate HECMs, if a LESA is
required, it may only be a Fully-Funded
LESA. For adjustable interest rate
HECMs, if a LESA is required, the
mortgagee may require either a Partiallyor Fully-Funded LESA. Proceeds from a
Partially-Funded LESA will be
2 Mortgagee letters issued under the authority
granted to HUD in HERA will be identified
throughout this rule as HERA mortgagee letters.
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disbursed to the borrower semi-annually
to be used to assist in the payment of
property charges; for Fully-Funded
LESA, mortgagees disburse funds
directly to the tax authority or insurance
company for the payment of certain
property charges when they are due. If
the mortgagee does not require a FullyFunded LESA, a borrower with an
adjustable or fixed interest rate HECM,
may elect to have a Fully-Funded LESA.
Deferring the Due and Payable Status
for Eligible Non-Borrowing Spouses.
RMSA Mortgagee Letter 2014–07, as
amended by RMSA Mortgagee Letter
2015–02, established a Deferral Period,
during which the due and payable
status of a HECM is deferred after the
death of the last surviving borrower for
an Eligible Non-Borrowing Spouse,
provided eligibility and all other FHA
requirements are, and continue to be,
satisfied. In addition, the new policy
required the principal limit to be based
on the age of the youngest borrower or
Eligible Non-Borrowing Spouse, instead
of only the youngest borrower. The new
policy also provided for a 30-day period
for the Eligible Non-Borrowing Spouse
to cure a default and to reinstate a
Deferral Period.
Limiting Disbursements during the
First 12 Months of the HECM. Through
RMSA Mortgagee Letter 2014–21, FHA
limited initial disbursements for
HECMs. For fixed and adjustable
interest rate HECMs, the funds
advanced to the borrower at closing and
during the First 12-Month Disbursement
Period could not exceed the greater of
60 percent of the principal limit; or
Mandatory Obligations plus an
additional 10 percent of the principal
limit.
While FHA does not intend to change
the current limit at this time, this rule
provides flexibility for this limit to be
changed in the future to respond to
market changes or other factors.
Specifically, this rule revises the
percentages such that the 60 percent
will never be less than 50 percent, and
the additional percentage will never be
less than 10 percent.
Eliminating Future Draws on Fixed
Interest Rate HECMs. Ginnie Mae issued
an All Participants Memorandum, APM
14–04, announcing that fixed interest
rate HECM loans with future draws
would be ineligible for securitization on
or after June 1, 2014. As a result of APM
14–04, in RMSA Mortgagee Letter 2014–
11, FHA limited the insurability of fixed
interest rate mortgages under the HECM
program to mortgages with the Single
Lump Sum payment option, which does
not allow for future draws after closing.
HECM for Purchase Program. HECM
for Purchase program requirements are
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currently in HERA Mortgagee Letter
2009–11. This rule intends to codify the
HECM for Purchase program
requirements, with a few important
changes. First, this rule would require
prospective borrowers of HECM for
Purchase transactions to complete the
required HECM counseling prior to
signing a sales contract and/or making
an earnest money deposit, unless
otherwise provided by the
Commissioner, instead of allowing them
to complete the counseling before or
after the initial application is submitted
to the mortgagee. In addition,
amendments to the prohibition on
interested party contributions are
proposed in this rule. FHA proposes to
permit the seller to pay fees required to
be paid by the seller under state or local
law and to purchase the Home Warranty
policy, and to allow the Commissioner
to define the types and parameters of
other allowable interested party
contributions through Federal Register
notice for comment.
Allowable Loan Origination Fees and
Charges. FHA implemented the loan
origination fee limits imposed by HERA
through HERA Mortgagee Letter 2008–
34. In this rule, FHA proposes to clarify
that such loan origination fee limits
include expenses incurred in
originating, processing and closing the
HECM.
Amount of MIP. FHA proposes
changes to the allowable initial and
monthly MIP charges to reflect that
HECMs are now obligations of the
MMIF instead of the General Insurance
Fund, and to reflect statutory
amendments to the National Housing
Act providing FHA with a wider range
of acceptable MIP charges. FHA is not
changing actual MIP charges, which
may be set outside of the rulemaking
process by mortgagee letter or other
similar administrative issuance.
New Origination and Servicing Policies
Disclosure of Available HECM
Program Options. This rule proposes to
require mortgagees to inform potential
HECM borrowers of all of the HECM
products, features and options that FHA
insures, in a manner acceptable to the
Commissioner, irrespective of the
particular HECM products offered by
the mortgagee.
Capping Lifetime Interest Rate
Adjustments for Adjustable Interest Rate
Products. For annual adjustable interest
rate HECMs, this rule proposes to cap
periodic interest rate increases and
decreases at one percentage point and
cap lifetime interest rate increases and
decreases at five percentage points. For
monthly adjustable interest rate HECMs,
this rule proposes to cap lifetime
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increases or decreases to the interest
rate at five percentage points.
Interest Rate Lock-In. This rule
proposes to amend the definition of
‘‘expected average mortgage interest
rate,’’ to provide that the mortgagee,
with the agreement of the borrower, may
lock-in the expected average mortgage
interest rate prior to the date of loan
closing or establish the expected average
mortgage interest rate on the date of
loan closing.
Super Liens. This rule proposes to
require, as a condition for a HECM to be
eligible for loan assignment, that the
HECM mortgage be in lien status prior
to homeowners association and condo
association liens.
Appraisal Requirements. This rule
proposes to require the mortgagee to
have the property appraised no later
than 30 days after receipt of the request
by an applicable party in connection
with a pending property sale; the
property must be appraised within 30
days of a foreclosure sale.
Limiting Reimbursement of Property
Charge Advances. This rule proposes to
limit insurance claim reimbursement to
a mortgagee to two years of payments
for: (a) Taxes, ground rents, water rates,
and utility charges that can result in
liens prior to the mortgage; (b) special
assessments, which are noted on the
application for insurance or which
become liens after the insurance of the
mortgage; and (c) hazard insurance
premiums on the mortgaged property
not in excess of a reasonable rate. The
rule also provides flexibility to allow
the Commissioner to approve an
extension of the two-year limit.
Including Utilities as Property
Charges. FHA proposes to amend the
definition of ‘‘property charges’’ to
include utilities as a borrower
responsibility, when failure to pay such
utilities would result in a lien and
would potentially trigger a due and
payable event.
Acquisition and Sale of Property. This
rule proposes to replace the requirement
that the property be sold for at least 95
percent of the appraised value with a
more flexible provision which allows
the Commissioner to lower this amount
as necessary to adapt to market
conditions and other factors. This rule
also proposes to require that the closing
costs from the sale be no more than 11
percent of the sales price.
Cash for Keys. This rule proposes to
incentivize parties with legal authority
to dispose of a property that serves as
the security for a HECM to complete a
deed in lieu of foreclosure more quickly.
C. Costs and Benefits
This proposed rule will codify
program changes that have reduced
risks to both FHA and to borrowers:
Implementation of limits on fixed-rate
full draw loans (full draw loans expose
FHA to high risk of insurance loss, and
such loans are often not sustainable
solutions for borrowers since they do
not provide the borrower with future
access to HECM proceeds); a Financial
Assessment to enable mortgagees to
determine if the HECM enables
borrowers to comply with the mortgage
requirements and that the HECM is a
sustainable solution for borrowers;
protection to Eligible Non-Borrowing
Spouses from foreclosure after the death
of the last borrower, and removed
incentives for borrowers to obtain
higher principal limits by using only the
age of the older spouse through quitclaiming the younger spouse from the
title; and a Property Charge Set Aside
which will reduce the incidence of
borrower defaults due to noncompliance with the mortgage
obligation for the borrower to make
timely payment of property taxes,
hazard insurance, and other charges.
The new changes to the HECM program
will reduce foreclosures arising from
these defaults, which will benefit FHA,
borrowers, and communities where
properties are located; give FHA more
flexibility to accept short sales on
properties where market conditions
warrant; provide homeowners with the
ability to purchase a more suitable home
without incurring the costs of two loan
closings and offer greater interest rate
protection to borrowers who choose an
adjustable interest rate HECM through
new annual and life of loan rate
adjustment caps. Together, these
changes may initially reduce HECM
origination volume, although the
potential demand for HECM is expected
to remain high.
The social benefits that may be
realized by this rule also include
reducing resolution costs and borrower
distress in cases where loans are no
longer sustainable; improved
sustainability of the MMIF, which
would enhance the choice and
wellbeing of future borrowers; and
increased protections for borrowers,
including those afforded non-borrowing
spouses, those resulting from transfer of
more interest rate risk from borrowers to
lenders (who are likely better able to
manage this risk), and those from
improving the ultimate sustainability of
HECM loans related to financial
assessment changes.
The policies discussed in this rule
may reduce FHA HECM insurance
endorsements by $1.9 billion per year,
representing transfers from potential
HECM borrowers to other debtors;
reduce FHA MMIF credit subsidy
(equivalent to increasing the economic
value to FHA) for the HECM portfolio by
$42 million per year, representing
transfers from mortgagees to FHA;
reduce foreclosures due to tax and
insurance default by up to 6,000 cases
(totaling about $1.5 billion in loan
amount) per year, along with reduction
in ancillary costs of foreclosures to
neighborhoods and local governments;
reduce loan origination costs for 2,000
‘‘HECM for Purchase’’ borrowers, saving
them $12 million per year representing
transfers from mortgagees to borrowers;
and increase margins on adjustable
interest rate HECMs paid by all
borrowers, resulting in transfers from
borrowers to mortgagees of between
$21.7 and $27.2 million per year, but
which will eventually be offset by
approximately equal transfers from
mortgagees to those borrowers whose
loans are seasoned in rising rate
environments.
Other costs from the rule would
include reduced borrowers’ choice and
the well-being of those borrowers who
may not meet the eligibility
requirements, or who no longer have
access to as much upfront cash. The
table below and the bullet points that
follow display the benefits, costs, and
transfers of this proposed rule.
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Benefits
Costs
Transfers
4,400 fewer foreclosures per year from tax and
insurance default.
• $1.1 billion aggregate unpaid principal balance
Reduce FHA HECM insurance endorsements
by $1.9 billion per year, thereby reducing
choices for potential HECM borrowers to
access home equity.
Increase margins on HECM ARMs paid by all
borrowers, resulting in transfers from borrowers to mortgagees of between $21.7
and $27.2 million per year.
• These transfers will eventually be offset by
approximately equal transfers from mortgagees to those borrowers whose loans are
seasoned in rising rate environments.
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Benefits
Costs
• Reduction in ancillary costs of foreclosures to neighborhoods, borrowers,
and local governments
Reduced loan origination costs for 2,000
‘‘HECM for Purchase’’ borrowers per year.
• Total benefit of $12 million per year
• Frees resources for other purposes
No additional costs ..........................................
Other benefits include the following:
• Improving the financial condition
of the FHA MMIF due to:
Æ Fewer foreclosures;
Æ Persistently lower insured loan
balances over time, due to limits on
initial disbursement; and
Æ More flexibility for FHA to accept
short sales on properties where market
conditions warrant.
• Improving public perception of
HECM regarding overall program
viability and public benefits derived
from program
Æ Reduces risks to both FHA and to
borrowers associated with fixed-rate full
draw loans (full draw loans expose FHA
to high risk of insurance loss, and such
loans are often not suitable for
borrowers);
Æ Helps borrowers and their housing
counselors determine if a HECM is a
sustainable option for them through the
use of a Financial Assessment;
Æ Provides protection to Eligible NonBorrowing Spouses from foreclosure,
and removes incentives for borrowers to
obtain higher principal limits than they
would otherwise be eligible for by using
only the age of the older spouse; and
Æ Reduces the incidence of borrower
defaults due to non-compliance with the
mortgage obligation.
• Providing greater interest rate
protection to borrowers who choose an
ARM through new annual and life-ofloan rate adjustment caps
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II. Background
The HECM program, authorized by
section 255 of the National Housing Act
(NHA) (12 U.S.C. 1715z–20), is FHA’s
reverse mortgage insurance program.
Subsection 255(c) of the NHA gives
FHA the authority to establish the terms
and conditions under which it will
insure HECMs. The regulations for this
program are codified in 24 CFR part
206. The HECM program enables FHAapproved mortgagees to extend insured
mortgage financing to eligible
borrowers, 62 years of age or older, who
want to convert the equity in their
homes into liquid assets. The
withdrawal of equity may take a variety
of forms, as authorized by the NHA and
selected by the borrower. The home,
which serves as security for the
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Transfers
mortgage, must be, and continue to be,
the borrower’s principal residence
during the life of the borrower. For
adjustable interest rate HECMs, equity
payments to the borrower may be in the
form of monthly disbursements for life
or a fixed term of years, disbursements
from a line of credit advance or a
combination of monthly disbursements
and a line of credit. For fixed interest
rate HECMs, equity payments to the
borrower must be in the form of a single
lump sum disbursement at closing.
The maximum amount of equity in
the home that is available to a borrower
under a HECM loan is the ‘‘principal
limit’’ that is calculated for that loan.
The borrower retains ownership of the
property and may sell the home at any
time keeping any residual sale proceeds
in excess of the outstanding loan
balance. Until the mortgage is repaid,
and regardless of whether or not
additional disbursements under the
mortgage are permissible, interest on the
mortgage, mortgage insurance
premiums, and servicing charges, where
applicable, continue to accrue.
The Housing and Economic Recovery
Act of 2008 (Public Law 110–289,
approved July 30, 2008) (HERA)
impacted the HECM program in a
number of important ways, including
providing for the HECM for Purchase
program, establishing new origination
fee limits, and transferring obligations
arising under the HECM program to the
Mutual Mortgage Insurance Fund
(MMIF).
First, HERA provides HECM
borrowers with the opportunity to
purchase a new principal residence
with HECM loan proceeds, known as
the HECM for Purchase program.
Specifically, section 2122(a)(9) of HERA
amended section 255 of the NHA to
authorize FHA to insure HECMs used
for the purchase of 1- to 4-family
dwelling units. In HERA Mortgagee
Letter 2008–33,3 issued on October 20,
2008, FHA provided that these new
HECM for Purchase transactions must
satisfy existing HECM requirements and
the provisions announced in the HERA
3 Mortgagee letters issued under the authority
granted to HUD in HERA will be identified
throughout this rule as HERA mortgagee letters.
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No additional transfers.
mortgagee letter. Following the
publication of this HERA mortgagee
letter, the reverse mortgage industry
sought additional guidance and
clarification concerning the HECM for
Purchase program. On March 27, 2009,
FHA issued HERA Mortgagee Letter
2009–11, which contained additional
guidance and therefore superseded
HERA Mortgagee Letter 2008–33. It is
FHA’s intent to codify the HECM for
Purchase program requirements
throughout FHA’s part 206 regulations,
except as otherwise discussed in this
preamble.4
On October 31, 2008, FHA issued
HERA Mortgagee Letter 2008–34, which,
consistent with HERA, established new
limits on the origination fee that may be
charged for HECMs. Specifically, the
loan origination fee limit is the greater
of $2,500; or two percent of the
maximum claim amount of the
mortgage, up to a maximum claim
amount of $200,000, plus one percent of
any portion of the maximum claim
amount that is greater than $200,000,
but not to exceed $6,000.
Section 2118(b)(2) of HERA
transferred obligations arising under the
HECM program, for loans endorsed on
or after October 1, 2008, from the FHA
General Insurance Fund to the MMIF.
By statute, the Secretary has a fiduciary
duty to protect the MMIF.5 In addition,
subsection 202(a)(6) of the NHA
provides that if, pursuant to an
independent actuarial study of the
MMIF required under subsection
202(a)(4), the Secretary determines that
the MMIF is not meeting the operational
goals established under subsection
202(a)(7) or there is a substantial
probability that the MMIF will not
maintain its established target subsidy
rate, the Secretary may either make
programmatic adjustments under this
title as necessary to reduce the risk to
4 The following sections of HERA Mortgagee
Letter 2009–11 are guidance in their entirety and
will not be codified in this rule: Ineligible Property
Types, Verification of Funding Sources, Gap
Financing, Suspensions and Debarments, Enhanced
Counseling, Right of Rescission, Closing Guidance,
Data Entry Requirements, and Required Documents
for Endorsement. Other guidance provisions in this
HERA mortgagee letter are identified elsewhere in
this preamble.
5 See subsection 202(a)(3) of the NHA.
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the MMIF, or make appropriate
premium adjustments.
FHA’s FY 2012 report to Congress on
the financial status of the MMIF, issued
November 16, 2012, reported substantial
stress in the HECM program and
projected the economic value of the
HECM portfolio to be negative $2.8
billion.6 The losses to the MMIF
apparent in the FY 2012 report to
Congress provided the impetus for the
passage of the Reverse Mortgage
Stabilization Act of 2013, and the
resulting administrative actions by FHA,
which are discussed below in this
preamble. Subsequent reports to
Congress on the status of the MMIF have
continued to show substantial stress due
to the HECM portfolio, necessitating the
additional programmatic changes
proposed in this rule. For example,
although the FY 2013 report to Congress
showed a strengthened capital position
of the HECM portfolio, that was the
result of a combination of a mandatory
appropriation of $1.7 billion and a
transfer of more than $4 billion from the
Forward loan portfolio to the HECM
portfolio.7 FHA’s FY 2014 report to
Congress showed that the estimated
economic value of the HECM portfolio
changed from a positive $6.5 billion to
a negative $1.2 billion.8 These projected
deficits were the result of many factors,
including the impact of the recession,
the housing crisis, borrowers living
longer than anticipated, and the shift
from borrowers selecting adjustable
interest rate HECMs with disbursements
taken over time to fixed interest rate
transactions with larger disbursements
at closing. The favorable actuarial
results the HECM Portfolio received in
2015 reflect the positive impact of
program changes made in response to
2012 through 2014 performance and an
improving housing market.
In order to mitigate the projected
negative impact of future HECM books
of business on the MMIF and to ensure
the continued availability of the
program as a sustainable solution for the
senior borrower, immediate action was
imperative. Congress passed the Reverse
Mortgage Stabilization Act of 2013
(RMSA), which was signed into law on
August 9, 2013 (Pub. L. 113–29), giving
HUD the tools to make immediate and
necessary changes to the HECM
program. Specifically, RMSA amends
subsection 255(h) of the NHA to
authorize the Secretary to ‘‘establish, by
notice or mortgagee letter, any
6 See https://portal.hud.gov/hudportal/documents/
huddoc?id=F12MMIFundRepCong111612.pdf.
7 See https://portal.hud.gov/hudportal/documents/
huddoc?id=FY2013RepCongFinStMMIFund.pdf.
8 See https://portal.hud.gov/hudportal/documents/
huddoc?id=FY2014FHAAnnRep11_17_14.pdf.
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additional or alternative requirements
that the Secretary, in the Secretary’s
discretion, determines are necessary to
improve the fiscal safety and soundness
of the HECM program.’’ Using the
authority granted to HUD by RMSA,
FHA made several critical changes to
the HECM program through mortgagee
letters,9 and FHA proposes to codify,
and in some cases modify, those
program changes in this rule.
FHA’s first action under RMSA was
the issuance of RMSA Mortgagee Letter
2013–27 10 on September 3, 2013, titled
‘‘Changes to the Home Equity
Conversion Mortgage Program
Requirements.’’ The RMSA mortgagee
letter implemented several changes to
the HECM program, which included
initial disbursement limits, the Single
Lump Sum payment option,11 a
Financial Assessment of HECM
borrowers that assesses their capacity
and willingness to meet his/her
documented financial obligations and
the ability to comply with the
obligations of the HECM and policy
guidelines regarding the payment of
property charges, and a LESA. FHA
subsequently issued RMSA Mortgagee
Letter 2013–33 12 on September 25,
2013, to elaborate on these policy
changes and make certain clarifying
changes.
FHA solicited public comment on
RMSA Mortgagee Letter 2013–27
through a notice published on
September 12, 2013, in the Federal
Register at 78 FR 56576 titled ‘‘Changes
to the Home Equity Conversion
Mortgage Program Requirements:
Financial Assessment—Solicitation of
Comment.’’ The public comment period
for the September 12, 2013, notice
closed on October 15, 2013, and FHA
received 13 public comments.13
Comments were received from
nonprofit, nongovernmental and
advocacy organizations serving seniors,
a trade organization for financial
institutions involved in the origination
and securitization of reverse mortgages,
a reverse mortgage firm, and other
9 Mortgagee letters issued under the authority
granted to HUD in RMSA will be identified
throughout this rule as RMSA mortgagee letters.
10 RMSA Mortgagee Letter 2013–27 was
superseded in its entirety by RMSA Mortgagee
Letter 2014–21.
11 FHA initially referred to this payment option
as the ‘‘Single Disbursement Lump Sum’’ payment
option, but for simplicity, FHA is renaming this
payment option the ‘‘Single Lump Sum’’ payment
option.
12 RMSA Mortgagee Letter 2013–33 was
superseded in its entirety by RMSA Mortgagee
Letter 2014–21.
13 Comment 0011 was a duplicate of Comment
0012 and has not been counted in this number.
Comment 0015 was received on October 22, 2013,
but FHA accepted submission of that comment.
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interested parties. In general, the
comments applauded FHA’s efforts and
supported the establishment of some
type of Financial Assessment to
determine whether or not a prospective
HECM borrower will be able to meet the
financial obligations of the mortgage
and whether the HECM is a sustainable
option for the senior. However, many
commenters expressed concern that the
new Financial Assessment requirements
were unnecessarily onerous to
accomplishing FHA’s goals.
In response to these public comments,
and in further reliance on the authority
of the RMSA, FHA issued RMSA
Mortgagee Letter 2014–21, titled
‘‘Revised Changes to the Home Equity
Conversion Mortgage (HECM) Program
Requirements,’’ on November 10, 2014.
This RMSA mortgagee letter
consolidated and revised policy
requirements issued under RMSA
Mortgagee Letters 2013–27 and 2013–
33, and superseded those mortgagee
letters in their entirety. Of significance,
this mortgagee letter revised FHA’s
HECM credit standing and Financial
Assessment requirements, as well as the
Property Charge Funding Requirements,
and set policy for unused LESA funds
during a Deferral Period 14 and upon
termination of the loan. This RMSA
mortgagee letter also revised
requirements announced in RMSA
Mortgagee Letter 2014–11, discussed
below, to clarify that a borrower with a
fixed interest rate HECM may be
reimbursed for the cost of materials,
under certain conditions, when repairs
must be completed after loan closing.
On April 25, 2014, FHA established
additional and alternative program
requirements concerning due and
payable status for HECMs with Case
Numbers assigned on or after August 4,
2014, where there is a Non-Borrowing
Spouse at the time of loan closing,
through the issuance of RMSA
Mortgagee Letter 2014–07. Subsection
255(j) of the NHA provides that a HECM
that does not contain a ‘‘Safeguard to
Prevent Displacement of Homeowner,’’
which defers repayment of the loan
obligation until ‘‘the homeowner’s
death, the sale of the home, or the
occurrence of other events specified in
regulations of the Secretary,’’ is
ineligible for FHA insurance. FHA has,
since the inception of the HECM
program, interpreted this provision in
its regulations as requiring HECMs be
called due and payable upon the death
of the last surviving borrower, the sale
of the home, and other conditions,
14 The Deferral Period is discussed later in the
preamble in relation to RMSA Mortgagee Letter
2014–07.
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including the failure to reside in the
property and the failure to pay required
taxes. FHA continues to believe that its
original interpretation gives full force
and effect to the intent of the statute.
Nevertheless, an alternative
interpretation of subsection 255(j) of the
NHA, which would extend the mortgage
insurance eligibility requirements
concerning the safeguard to the
borrower and any Eligible NonBorrowing Spouse of the borrower at the
time of origination, has been advanced.
RMSA Mortgagee Letter 2014–07, as
amended by RMSA Mortgagee Letter
2015–02,15 implemented, prospectively
only, this alternative interpretation of
subsection 255(j) of the NHA in order to
ensure the viability of the HECM
program and the MMIF.
In general, RMSA Mortgagee Letter
2014–07 established a Deferral Period,
during which the due and payable
status resulting from the death of the
last surviving borrower of a HECM is
deferred based on the continued
satisfaction of the established
requirements for a Non-Borrowing
Spouse and all other FHA requirements.
This RMSA mortgagee letter also
required that the mortgagee base the
principal limit on the age of the
youngest borrower or Non-Borrowing
Spouse, instead of only the youngest
borrower.
FHA solicited public comment on
RMSA Mortgagee Letter 2014–07
through a notice published on May 2,
2014, in the Federal Register at 79 FR
25147 titled ‘‘Home Equity Conversion
Mortgage (HECM) Program: NonBorrowing Spouse—Solicitation of
Comment.’’ The public comment period
on the May 2, 2014, notice closed on
June 2, 2014, and FHA received 10
public comments. Comments were
received from a HECM servicer, a
national reverse mortgage association,
and other interested parties. In general,
many comments applauded and
supported FHA’s efforts to provide
protections to Non-Borrowing Spouses
and ensure the viability of the HECM
program. However, commenters sought
clarification on many issues.
In response to the public comments,
FHA issued RMSA Mortgagee Letter
2015–02 to amend, and where conflicts
were present, to supersede, RMSA
Mortgagee Letter 2014–07. In general,
RMSA Mortgagee Letter 2015–02
defined two categories of NonBorrowing Spouses: Ineligible NonBorrowing Spouse and Eligible NonBorrowing Spouse. The Ineligible NonBorrowing Spouse is a Non-Borrowing
15 RMSA
Mortgagee Letter 2015–02 is discussed
later in this preamble.
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Spouse who is ineligible to receive the
benefit of the Deferral Period, and as a
result, whose age will not be used to
determine the principal limit. The
Eligible Non-Borrowing Spouse is a
Non-Borrowing Spouse, who, at the
time of origination, is eligible to receive
the benefit of the Deferral Period, and as
a result, whose age, if younger than the
age of the borrower(s), will be used to
determine the principal limit. The
RMSA mortgagee letter also provided
for a 30-day period to cure a default and
reinstate a Deferral Period if an Eligible
Non-Borrowing Spouse fails to meet a
required obligation of the Mortgage and
provided clarification for the
‘‘Seasoning Requirements for Existing
Non-HECM Liens’’ section of RMSA
Mortgagee Letter 2014–21, discussed
above.
On June 18, 2014, FHA issued RMSA
Mortgagee Letter 2014–11, titled ‘‘Home
Equity Conversion Mortgage (HECM)
Program: Limit on Insurability of Fixed
Interest Rate Products under the HECM
Program.’’ Prior to FHA’s issuance of
this RMSA mortgagee letter, Ginnie Mae
issued an All Participants
Memorandum, APM 14–04, announcing
that fixed interest rate HECM loans with
future draws would be ineligible for
securitization on or after June 1, 2014.16
As a result of APM 14–04, FHA found
it necessary to limit the insurability of
fixed interest rate mortgages under the
HECM program to mortgages with the
Single Lump Sum payment option, and
to disallow the use of the Single Lump
Sum payment option for adjustable
interest rate HECMs, which FHA did
through the issuance of RMSA
Mortgagee Letter 2014–11.
FHA solicited public comment on
RMSA Mortgagee Letter 2014–11
through a notice published on July 10,
2014, in the Federal Register at 79 FR
39408 titled ‘‘Home Equity Conversion
Mortgage (HECM) Program: Limit on
Insurability of Fixed Interest Rate
Products Under the HECM Program—
Solicitation of Comment.’’ The public
comment period for the July 10, 2014,
notice closed on August 11, 2014, and
FHA received 2 public comments. In
response to public comments, and as
mentioned above, RMSA Mortgagee
Letter 2014–21 revised requirements
announced in RMSA Mortgagee Letter
2014–11.
The mortgagee letters discussed
above, which were issued under HERA
and RMSA, contain both program
changes implemented through
requirements that, except for the
16 See https://www.ginniemae.gov/doing_business_
with_ginniemae/issuer_resources/Pages/
mbsguideapmslibdisppage.aspx?ParamID=27.
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31775
authority granted by HERA or RMSA,
would have been issued in the format of
regulations rather than another form of
notice, and material that is typically
characterized as guidance. It is FHA’s
intent to codify only the regulatory
content of Mortgagee Letters 2008–34,
2009–11, 2014–07, 2014–11, 2014–21,
and 2015–02. These mortgagee letters
will remain in effect for HECMs to
which they are applicable and which
have FHA Case Numbers assigned prior
to the effective date of a final rule.
III. This Proposed Rule
The regulatory changes proposed by
this rule are summarized below. For
ease of review, section III.A. of this
preamble pertains to changes made to
24 CFR part 30 and section III.B. of this
preamble pertains to changes made to
24 CFR part 206. Section III.B. is
organized into three sections. Section
III.B.1. discusses changes which are
proposed to be applied across the board
to FHA’s part 206 regulations. Section
III.B.2. includes the remaining
substantive HECM program
amendments proposed by this rule, in
order of appearance in the codified
regulations, and identifies whether the
amendment simply codifies a program
change already implemented by
mortgagee letter; codifies and further
amends a program change already
implemented by mortgagee letter, taking
into account changed circumstances and
public comments received on various
Federal Register notices issued for
comment; or is a new program change.
Finally, the technical amendments are
discussed in section III.B.3. of this
preamble.
A. Civil Money Penalties: Certain
Prohibited Conduct—24 CFR Part 30
Currently, HUD’s regulation at 24 CFR
30.35, which sets HUD’s policy
regarding taking civil money penalty
action against mortgagees or lenders,
does not include references to the
requirements of FHA’s HECM program
in 24 CFR part 206. In this rule, FHA
proposes new amendments which
would expand two provisions to include
specific reference to the HECM
regulations. First, in § 30.35(a)(8), this
rule proposes to allow the Mortgagee
Review Board to initiate a civil money
penalty action against a mortgagee or
lender who knowingly and materially
fails to timely submit documents that
are complete and accurate in connection
with a claim for insurance benefits in
accordance with § 206.127. Second, in
§ 30.35(a)(10), this rule proposes to
allow the Mortgagee Review Board to
initiate a civil money penalty action
against a mortgagee or lender who
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knowingly and materially fails to
service FHA mortgages in accordance
with the requirements of 24 CFR part
206.
B. Home Equity Conversion Mortgage
Insurance—24 CFR Part 206
1. Global Changes to Part 206
Throughout the regulations, the term
‘‘Secretary’’ will be changed to
‘‘Commissioner’’ because
‘‘Commissioner,’’ rather than
‘‘Secretary’’ is the term used to refer to
the official who heads FHA and in most
cases, ‘‘FHA’’ will replace ‘‘HUD’’ to
provide more specificity. In addition, in
most cases, the term ‘‘mortgagor’’ will
be changed to ‘‘borrower’’ which will be
defined in § 206.3 to mean a mortgagor
who is an original borrower under the
Loan Agreement and Note, not
including a borrower’s successors and
assigns. In most cases, the term
‘‘payment’’ will be changed to
‘‘disbursement’’. These changes are
designed to help bring consistency to
the terminology used regarding the
HECM program and eliminate confusion
about the meaning of certain terms.
2. Substantive Changes to Regulations
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Subpart A—General
Definitions (§ 206.3)
Borrower. In order to distinguish
borrowers from mortgagors, this rule
proposes to add a definition of
‘‘borrower’’ to mean a mortgagor who is
an original borrower under the HECM
Loan Agreement and Note, not
including a borrower’s successors and
assigns. Each borrower shall be on title,
shall also be a mortgagor, and shall sign
all applicable HECM loan documents.
Borrower’s Advance. The definition of
‘‘Borrower’s Advance’’ originated in
RMSA Mortgagee Letter 2014–11, and
was subsequently updated in RMSA
Mortgagee Letter 2014–21. Taken
together, those RMSA mortgagee letters
provided that ‘‘Borrower’s Advance’’
means funds advanced to the borrower
at the closing of a fixed interest rate
HECM which may not exceed the
greater of 60 percent of the principal
limit; or Mandatory Obligations plus an
additional 10 percent of the principal
limit. In this rule, FHA proposes to
codify a definition of ‘‘Borrower’s
Advance’’ that does not include the
actual calculation, which can more
appropriately be found in the section
regarding the calculation of payments,
§ 206.25, such that the ‘‘Borrower’s
Advance’’ would be the funds advanced
to the borrower at the closing of a fixed
interest rate HECM. In this rule, FHA
proposes to make changes to the
calculation of the Borrower’s Advance
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to allow the Commissioner flexibility in
setting these amounts, but such changes
are discussed later in this preamble in
relation to § 206.25.
CMT Index. This proposed rule
eliminates the definition of One-month
Constant Maturity Treasury (CMT)
Index and instead adds a more general
definition of CMT Index, since FHA’s
regulations also permit the use of the
one-year CMT Index.
Commissioner. This proposed rule
adds a definition of ‘‘Commissioner’’ to
mean the Federal Housing
Commissioner or the Commissioner’s
authorized representative, and as a
result of this addition, eliminates the
now unnecessary definition of
‘‘Secretary’’.
Contract of insurance. FHA proposes
to define ‘‘contract of insurance’’
instead of citing to 24 CFR 203.251(j),
and proposes to amend the definition to
specifically be applicable to FHA’s part
206 regulations such that ‘‘contract of
insurance’’ means the agreement
evidenced by the issuance of a Mortgage
Insurance Certificate or by the
endorsement of the Commissioner upon
the credit instrument given in
connection with an insured mortgage,
incorporating by reference regulations
in subpart C of this part and the
applicable provisions of the NHA.
Deferral Period. The term ‘‘Deferral
Period’’ was introduced and defined in
RMSA Mortgagee Letter 2014–07, and
subsequently updated in RMSA
Mortgagee Letter 2015–02. Taken
together, those RMSA mortgagee letters
provide that ‘‘Deferral Period’’ means
the period of time following the death
of the last surviving borrower during
which the due and payable status of a
HECM is deferred for an Eligible NonBorrowing Spouse provided that the
Qualifying Attributes and all other FHA
requirements continue to be satisfied.
FHA proposes to codify this definition.
Eligible Non-Borrowing Spouse. The
term ‘‘Eligible Non-Borrowing Spouse’’
was introduced in RMSA Mortgagee
Letter 2015–02. ‘‘Eligible NonBorrowing Spouse’’ means a NonBorrowing Spouse who meets all
Qualifying Attributes for a Deferral
Period. FHA proposes to codify this
definition.
Estate planning service firm. This rule
proposes to update the definition of
‘‘estate planning service firm’’ in § 206.3
to conform to changes made to § 206.41
which specify counseling requirements
for Eligible and Ineligible NonBorrowing Spouses. In addition,
because participating agencies are
approved under subpart B of 24 CFR
part 214, not § 206.41, this rule proposes
to change references regarding the
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approval of participating agencies in
§ 206.41 to more accurately reflect the
requirements of subpart B of 24 CFR
part 214.
Expected average mortgage interest
rate. ‘‘Expected average mortgage
interest rate’’ is currently defined at
§ 206.3 to mean the interest rate used to
calculate the principal limit and the
future disbursements to the borrower.
RMSA Mortgagee Letter 2014–11
amended the definition of ‘‘expected
average mortgage interest rate’’ for fixed
interest rate HECMs to provide that the
expected average mortgage interest rate
is the same as the fixed mortgage (Note)
interest rate and is set simultaneously
with the fixed interest rate. This rule
proposes to codify that amendment, and
to also further amend the definition of
‘‘expected average mortgage interest
rate’’ due to an inadvertent past error.
On July 20, 2007, at 72 FR 40048, FHA
published a final rule adding additional
indices to adjust interest rates for FHAinsured single family mortgage loans,
including HECM loans. The July 20,
2007, final rule inadvertently amended
the definition in the HECM regulations
of ‘‘expected average mortgage interest
rate’’ to mean that the expected average
mortgage interest rate is ‘‘[e]stablished
based on the date the initial loan is
signed by the mortgagor.’’ However,
industry practice has been that the
mortgagee may lock-in the expected
average mortgage interest rate for
HECMs at the time the initial loan
application is signed by the borrower or
prior to the date of closing. Locking in
the expected average mortgage interest
rate provides HECM borrowers with the
comfort of knowing that the expected
average mortgage interest rate cannot
increase during the interest rate lock-in
period and subsequently reduce the
principal limit. FHA therefore proposes
to amend the definition of ‘‘expected
average mortgage interest rate,’’ to
provide that the mortgagee, with the
agreement of the borrower, may lock in
the expected average mortgage interest
rate prior to the date of loan closing or
establish the expected average mortgage
interest rate on the date of loan closing.
In accordance with changes proposed to
§ 206.21(b), if the expected average
mortgage interest rate is locked in prior
to closing, the margin on an adjustable
interest rate loan is also locked in at the
same time and is the difference between
the expected average mortgage interest
rate and the value of the appropriate
index at the time of rate lock-in.
First 12-Month Disbursement Period.
This proposed rule codifies the
definition of ‘‘First 12-Month
Disbursement Period’’ from RMSA
Mortgagee Letter 2014–21 to mean the
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period beginning on the day of loan
closing and ending on the day before the
loan closing anniversary date. When the
day before the anniversary date of loan
closing falls on a Federally-observed
holiday, Saturday, or Sunday, the end
period will be on the next business day
after the Federally-observed holiday,
Saturday, or Sunday.
HECM. This proposed rule adds a
definition of ‘‘HECM’’ to mean a Home
Equity Conversion Mortgage.
HECM counselor. The current
definition of ‘‘Home Equity Conversion
Mortgage (HECM) counselor’’ in § 206.3
defines a HECM counselor as an
‘‘individual who provides statutorily
required counseling to clients who may
be eligible for or interested in obtaining
an FHA-insured HECM . . .’’ However,
it has recently come to FHA’s attention
that interested parties may be providing
counseling, and their financial
relationship with prospective or current
HECM borrowers or Non-Borrowing
Spouses may impact their provision of
counseling services. In § 206.3, FHA
proposes to change the term ‘‘Home
Equity Conversion Mortgage (HECM)
counselor’’ to ‘‘HECM counselor’’, for
simplicity, and to amend the definition
to state, consistent with subsection
255(d)(2)(B) of the NHA, that a HECM
counselor must be an independent
third-party that is currently active on
FHA’s HECM Counselor Roster and that
is not, either directly or indirectly,
associated with or compensated by, a
party involved in originating, servicing,
or funding the HECM, or the sale of
annuities, investments, long-term care
insurance or any other type of financial
or insurance product.
Ineligible Non-Borrowing Spouse. The
term ‘‘Ineligible Non-Borrowing
Spouse’’ was introduced in RMSA
Mortgagee Letter 2015–02 to mean a
Non-Borrowing Spouse who does not
meet all Qualifying Attributes for a
Deferral Period. FHA proposes to codify
this definition.
Initial Disbursement Limit. The
phrase ‘‘Initial Disbursement Limit’’ is
defined in RMSA Mortgagee Letter
2014–21 to mean the maximum
disbursement to a borrower of an
adjustable interest rate HECM allowed
at loan closing and during the First 12Month Disbursement Period, which is
the greater of 60 percent of the principal
limit; or the sum of Mandatory
Obligations and 10 percent of the
principal limit. In this rule, FHA
proposes to codify a definition of
‘‘Initial Disbursement Limit’’ that does
not include the actual calculation,
which can more appropriately be found
in the section regarding the calculation
of payments, § 206.25, such that the
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‘‘Initial Disbursement Limit’’ would be
the maximum amount of funds that can
be advanced to the borrower of an
adjustable interest rate HECM at loan
closing and during the First 12-Month
Disbursement Period. FHA proposes to
make changes to the calculation of the
Initial Disbursement Limit to allow the
Commissioner flexibility in setting the
limit, but such changes are discussed
later in the preamble in relation to
§ 206.25.
Loan documents. FHA currently
defines ‘‘mortgage’’ to include the credit
instrument, or Note, secured by the lien,
and the loan agreement. In this
rulemaking, FHA takes the opportunity
to add a specific definition for ‘‘loan
documents’’ which would include the
credit instrument, or Note, secured by
the lien, and the loan agreement because
these documents are not actually the
mortgage.
Mandatory Obligations. The term
‘‘Mandatory Obligations’’ was defined
in RMSA Mortgagee Letter 2014–21 as
the fees and charges incurred in
connection with the origination of the
HECM that are requirements for loan
approval or disbursements for a Repair
Set Aside. In this rule, FHA proposes to
clarify that Mandatory Obligations are
fees and charges incurred in connection
with the origination of the HECM that
are requirements for loan approval and
which will be paid either at closing or
during the First 12-Month Disbursement
Period in accordance with § 206.25. In
§ 206.25, as discussed later in this
preamble, FHA proposes to codify the
lists of Mandatory Obligations from
RMSA Mortgagee Letter 2014–21, but
also proposes to amend the lists to give
the Commissioner the flexibility to
include, as Mandatory Obligations,
other charges or fees established
through notice.17
Maximum claim amount. The
‘‘maximum claim amount’’ is currently
defined in § 206.3 as the lesser of the
appraised value of the property, as
determined by the appraisal used in
underwriting the loan, or the maximum
dollar amount for an area established by
the Secretary for a one-family residence
under subsection 203(b)(2) of the NHA,
as adjusted where applicable under
section 214 of the NHA, as of the date
of loan closing. In this rule, FHA
proposes to instead reference
subsections 255(g) and (m) of the NHA
because section 255 of the NHA
contains the statutory requirements of
the HECM program. FHA also proposes
to include, as an option for determining
17 The term ‘‘notice’’ includes mortgagee letters
and other forms of written notice, unless otherwise
specified.
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the maximum claim amount, the sales
price of the property being purchased
for the sole purpose of being the
principal residence, such that the
‘‘maximum claim amount’’ means the
lesser of the appraised value of the
property, the sales price of the property,
or the national mortgage limit, which is
consistent with the maximum claim
amount calculation in HERA Mortgagee
Letter 2009–11.
MIP. FHA proposes to amend the
definition of ‘‘MIP’’ in § 206.3 to replace
the cross-cite to 24 CFR 203.251(k) with
the actual definition, such that ‘‘MIP’’
means the mortgage insurance premium
paid by the mortgagee to the
Commissioner in consideration of the
contract of insurance.
Mortgage. In an effort to provide
greater clarity, FHA proposes to remove
the last sentence in the definition of
‘‘mortgage’’ in § 206.3. The loan
documents which are not actually the
mortgage will be more appropriately
defined under a new definition of ‘‘loan
documents’’ and FHA will eliminate the
unnecessary and partially inaccurate
reference to the parties to the loan
agreement.
Mortgagee. FHA proposes to amend
the definition of ‘‘mortgagee’’ in § 206.3
to replace the reference to subsection
255(b)(2) of the NHA with the actual
definition, such that ‘‘mortgagee’’ means
the original lender under a mortgage
and its successors and assigns, as are
approved by the Commissioner.
Mortgagor. In order to distinguish
HECM mortgagors from HECM
borrowers, FHA proposes to clarify the
definition of a HECM ‘‘mortgagor’’ in
§ 206.3 to mean each original HECM
mortgagor under a HECM and his heirs,
executors, administrators and assigns.
HECM mortgagors also include nonborrowing owners who are on title to
the property and, consequently, must
sign the HECM Mortgage but do not sign
the HECM Note or Loan Agreement, and
therefore are not borrowers. A NonBorrowing Spouse may or may not be a
mortgagor; for example, in a community
property state, a Non-Borrowing Spouse
will always be a mortgagor.
Non-Borrowing Spouse. The term
‘‘Non-Borrowing Spouse’’ was
introduced in RMSA Mortgagee Letter
2014–07 and means the spouse, as
defined by the law of the state in which
the spouse and borrower reside or the
state of celebration, of the HECM
borrower at the time of closing and who
is also not a borrower. FHA proposes to
codify this definition.
Participating agency. FHA proposes to
use the term ‘‘participating agency’’ in
§ 206.302 and in the definition of
‘‘estate planning service firm’’ in
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§ 206.3, and therefore proposes to
provide a definition for the term in
§ 206.3. The definition would mirror the
definition in the Housing Counseling
regulations at § 214.3, such that
‘‘participating agency’’ means all
housing counseling and intermediary
organizations participating in HUD’s
Housing Counseling program, including
HUD-approved agencies, and affiliates
and branches of HUD-approved
intermediaries, HUD-approved multistate organizations (MSOs), and state
housing finance agencies.
Principal limit. FHA proposes to
update the definition of ‘‘principal
limit’’ to reflect the changes made in
RMSA Mortgagee Letters 2014–07 and
2015–02 regarding Non-Borrowing
Spouses, and in RMSA Mortgagee Letter
2014–11 regarding the changes made to
the fixed interest rate product, as well
as new changes discussed below.
‘‘Principal limit’’ would be amended to
mean the maximum amount calculated
by taking into account the age of the
youngest borrower or Eligible NonBorrowing Spouse, the expected average
mortgage interest rate, and the
maximum claim amount. Because
individual principal limit factors are
published, FHA proposes to eliminate
the sentence stating that a person who
is over the age of 95 will be treated as
though he is 95 for the purposes of
calculating the principal limit.
However, in order to eliminate this
sentence in § 206.3 and not impact the
formula for the calculation of tenure
payments in § 206.25(f), FHA proposes
to make clear in § 206.25(f) that in
calculating tenure payments for a
borrower over the age of 95, the age of
95 will be used. In addition, the current
regulatory definition states that the
principal limit increases each month at
a rate equal to one-twelfth of the
mortgage interest rate in effect at that
time, plus one-twelfth of one-half
percent per annum. FHA proposes to
amend this calculation such that the
principal limit increases each month at
a rate equal to one-twelfth of the
mortgage interest rate in effect at that
time, plus one-twelfth of the annual
mortgage insurance rate, so that a
regulatory change is not necessary if the
Commissioner changes the annual MIP,
which the Commissioner may do
through notice under existing authority.
As stated in RMSA Mortgagee Letter
2014–11, for adjustable interest rate
HECMs, the increase in principal limit
may be made available to the borrower
each month, except that there may be
restrictions on draws during the First-12
Month Disbursement Period; for fixed
interest rate HECMs, although the
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principal limit will continue to increase
at the rate established by the
Commissioner, the funds will not be
available for the borrower to draw
against after loan closing.
Principal residence. The definition of
‘‘principal residence’’ was amended in
RMSA Mortgagee Letter 2014–07 to
account for changes made regarding
Non-Borrowing Spouses, and is being
further amended in this proposed rule
to account for additional changes made
in RMSA Mortgagee Letter 2015–02
which introduced the concepts of
Eligible and Ineligible Non-Borrowing
Spouses. ‘‘Principal residence’’ will be
amended to mean the dwelling where
the borrower and, if applicable, NonBorrowing Spouse, maintains his
permanent place of abode, and typically
spends the majority of the calendar year.
Content from § 206.39 that addresses a
borrower who is in a health care
institution, as clarified in RMSA
Mortgagee Letter 2014–07, has been
moved to the definition of ‘‘principal
residence’’ in § 206.3. The definition of
‘‘principal residence’’ will also cover a
Non-Borrowing Spouse who is
temporarily in a health care institution
provided certain conditions are met. In
addition, during a Deferral Period, the
property shall continue to be considered
the principal residence of any Eligible
Non-Borrowing Spouse who is
temporarily in a health care institution,
provided certain conditions are met.
Property charges. The term ‘‘property
charges’’ was defined in RMSA
Mortgagee Letter 2014–21, and FHA
proposes to codify that definition with
only slight revisions, to mean the
obligations of the borrower that are,
unless otherwise specified, defined as
property taxes, hazard insurance
premiums, any applicable flood
insurance premiums, ground rents,
condominium fees, planned unit
development fees, homeowners
association fees, any other special
assessments that may be levied by
municipalities or state law, and utilities.
While RMSA Mortgagee Letter 2014–21
did not include utilities in the
definition of ‘‘property charges,’’ FHA
proposes to include utilities as a
borrower responsibility. FHA has
experienced situations where borrowers
have not paid utilities, and as a result,
large liens for utilities are placed on the
property. When FHA pays the insurance
claim on the property, FHA reimburses
the mortgagee for the utility lien
amount. Failure to pay utilities that
result in a lien against the property
would potentially trigger a due and
payable event. By expressly including
these utilities as borrower
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responsibilities, FHA is limiting
reimbursement of such expenses.
Qualifying Attributes. The term
‘‘Qualifying Attributes’’ was introduced
in RMSA Mortgagee Letter 2014–07.
FHA proposes to amend the definition
of ‘‘Qualifying Attributes’’ to fit with
additional program changes introduced
in RMSA Mortgagee Letter 2015–02, to
mean the requirements which must be
met by a Non-Borrowing Spouse in
order to be an Eligible Non-Borrowing
Spouse.
Preemption (§ 206.8)
In this rule, FHA proposes to add
counseling charges as an example of
loan advances to be included in the
amount secured by the mortgage, and
FHA also proposes to condense some
previously listed examples that meet the
definition of ‘‘property charges’’, as
newly defined in § 206.3.
Subpart B—Eligibility; Endorsement
Disclosure of Available HECM Program
Options (§ 206.13)
Section 206.17 allows mortgagees to
provide all payment plan options and
fixed and adjustable interest rate
mortgages to HECM borrowers. Section
206.43(a) requires mortgagees to
disclose the costs of obtaining the
mortgage, and provide a Good Faith
Estimate and other applicable Truth in
Lending disclosures to the borrower so
the borrower has knowledge of which
charges are, and which charges are not,
required to obtain the mortgage.
For several years, the fees and charges
associated with reverse mortgages have
been structured to allow the borrower to
benefit in a manner of their choosing by
selecting from various HECM products.
However, the volume of adjustable
interest rate HECMs declined to
approximately 30 percent of the total
HECMs endorsed for insurance during
2010–2012. On June 28, 2012, the
Consumer Financial Protection Bureau
(CFPB) published its ‘‘Reverse
Mortgages Report to Congress’’,18 which
revealed the practice of many
mortgagees failing to inform borrowers
of the availability and benefits of
adjustable interest rate mortgages.
In response to these concerns, this
rule proposes to add § 206.13, which
would require that mortgagees inform
potential HECM borrowers of all of the
HECM products, features and options
that FHA insures, in a manner
acceptable to the Commissioner,
irrespective of the particular HECM
products offered by the mortgagee,
18 See https://files.consumerfinance.gov/a/assets/
documents/201206_cfpb_Reverse_Mortgage_
Report.pdf.
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including (1) fixed interest rate
mortgages with the Single Lump Sum
payment option; (2) adjustable interest
rate mortgages with tenure, term, and
line of credit disbursement options, or
a combination of these disbursement
options; (3) any other disbursement
options that FHA will insure; and (4)
initial mortgage insurance premium
options, and how those affect the
availability of other mortgage and
disbursement options. This regulatory
change is designed to provide a
balanced approach in educating and
equipping borrowers with the
information needed to determine which
options will best meet their short- and
long-term goals, as well as their
financial capacity.
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Insurance (§ 206.15)
It has come to FHA’s attention that
the last sentence in § 206.15, which
currently states, ‘‘The mortgagee shall
execute for the Secretary the loan
agreement included in the term
‘mortgage’ as defined in § 206.3,’’ may
result in confusion regarding FHA’s role
in the loan agreement. The loan
agreement has been, and continues to
be, an agreement between the borrower
and the mortgagee. FHA is taking the
opportunity provided by this
rulemaking to eliminate any potential
confusion caused by the language in
§ 206.15 regarding the execution of the
loan agreement by removing the last
sentence in this section.
In addition, because the Lender
Insurance program is currently
unavailable for the HECM program,
FHA proposes to remove reference to
the Lender Insurance program in
§ 206.15 at this time.
Eligible Mortgages: General (§ 206.17)
In RMSA Mortgagee Letter 2013–27,19
FHA introduced the Single Lump Sum
payment option as a payment option for
fixed and adjustable interest rate
HECMs. In RMSA Mortgagee Letter
2014–11, however, FHA limited fixed
interest rate HECMs to the Single Lump
Sum payment option, and prohibited
adjustable interest rate HECMs from
using the Single Lump Sum payment
option. These changes require FHA to
amend § 206.17 to bring it into
alignment with the current HECM
program requirements. Because the
payment options are now dependent
upon the type of interest rate, FHA
proposes to merge the content of current
paragraphs (a) and (b) into one
19 Mortgagee Letter 2013–27 was later superseded
by Mortgagee Letter 2014–21, but the applicable
policy change which this rule proposes to codify
was announced in Mortgagee Letter 2014–11, prior
to the publication of Mortgagee Letter 2014–21.
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paragraph (b), while reserving paragraph
(a). The new paragraph (b) would
further specify that fixed interest rate
HECMs must use the Single Lump Sum
payment option, and that adjustable
interest rate HECMs must provide for
the term, tenure, line of credit, modified
term or modified tenure payment
options.
Payment Options (§ 206.19)
Current § 206.19 describes term,
tenure and line of credit payment
options. FHA proposes to amend this
section by also including descriptions of
the Single Lump Sum, modified term
and modified tenure payment options.
As mentioned above, the Single Lump
Sum payment option was first
introduced in RMSA Mortgagee Letter
2013–27, and then subsequently
discussed and limited to fixed interest
rate HECMs in RMSA Mortgagee Letter
2014–11. FHA proposes to codify the
description and requirements of the
Single Lump Sum payment option in
§ 206.19. Sections 206.17 and 206.25
currently provide for modified term or
modified tenure payment options, but
§ 206.19 did not previously describe the
modified term or modified tenure
payment options by themselves; they
were listed as a subparagraph of
paragraph (d), which discusses
principal limit set asides. When a
portion of the principal limit is set aside
to be drawn down as a line of credit,
such ‘‘set aside’’ is more appropriately
characterized as a payment option
(modified term or modified tenure
payment option) than as a principal
limit set aside, so FHA proposes to
update § 206.19 accordingly in this
rulemaking.
FHA also proposes to amend current
paragraph (d) (proposed paragraph (f))
to reflect changes made to FHA’s
principal limit set aside policies. The
LESA was first introduced in RMSA
Mortgagee Letter 2013–27, but, after
considering public comments, the LESA
was substantially revised through
RMSA Mortgagee Letter 2014–21. The
LESA is discussed in more detail later
in this preamble, as FHA proposes to
codify its requirements in § 206.205, but
FHA proposes to also amend § 206.19 to
reflect that when required by FHA’s
regulations in § 206.205, or selected by
the borrower in accordance with
§ 206.205, the mortgagee shall set aside
a portion of the principal limit in a
LESA to be used to pay certain property
taxes, including special assessments
levied by municipalities or state law,
and flood and hazard insurance
premiums. In addition, when the
borrower has an adjustable interest rate
HECM and is not required to have a
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LESA, the borrower may elect to have
the mortgagee pay property charges.
In this section, FHA also proposes to
codify requirements announced in
RMSA Mortgagee Letters 2014–11 and
2014–21 regarding the limitation on
disbursements during the First 12Month Disbursement Period. Under
these RMSA mortgagee letters,
disbursements may not be made during
the First 12-Month Disbursement Period
in excess of the Initial Disbursement
Limit or the Borrower’s Advance, as
applicable. In this rule, however, FHA
is requesting public comment regarding
exceptions to this limitation. While
FHA’s intent of limiting draws during
the first 12 months of the HECM was to
ensure that funds remained available to
borrowers over time and were available
when borrowers needed them, FHA
recognizes that there may be some
limited circumstances, such as medical
emergencies or death of a loved one,
which may necessitate allowing draws
beyond the established limits.
FHA specifically requests public
comment on the following questions:
(1) What types of medical
emergencies or other circumstances may
result in exceptions to the draw limits
during the First 12-Month Disbursement
Period, such as hospice care, illness
requiring extensive therapy (e.g.,
chemotherapy, dialysis, physical
therapy), terminal medical conditions,
serious illness, and catastrophic
accidents resulting in incapacitation of
the borrower or death of a spouse?
(2) What kind of documentation
should be required to support the
anticipated or actual financial impact of
such exigent circumstances?
Finally, in new § 206.19(h), which
incorporates the contents of current
paragraph (f), FHA proposes to clarify
the policy announced in RMSA
Mortgagee Letter 2014–21 regarding
partial repayment for term, tenure, line
of credit, modified term and modified
tenure payment options in paragraph
(h)(2). RMSA Mortgagee Letter 2014–21
states that if a borrower makes a partial
repayment of the outstanding loan
balance during the First 12-Month
Disbursement Period, the mortgagee
must increase the available principal
limit by the amount applied toward the
outstanding loan balance, up to an
amount not to exceed the Initial
Disbursement Limit or the principal
limit, as applicable. FHA proposes to
clarify that any partial repayment shall
be applied in accordance with the terms
contained in the Note. Similarly, in
§ 206.19(h)(3), FHA proposes to clarify
that for the Single Lump Sum payment
option, if the borrower makes a partial
repayment of the outstanding loan
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balance any time after loan closing and
before the contract of insurance is
terminated, the mortgagee shall apply
the funds in accordance with the terms
contained in the Note, but that any
resulting increase in the principal limit
shall not be available for the borrower
to draw against.
Interest Rate (§ 206.21)
Section 206.21 provides requirements
related to fixed and adjustable interest
rate HECMs, including disclosure
requirements. As discussed earlier in
this preamble in the discussion of the
definition of ‘‘expected average
mortgage interest rate’’ in § 206.3, FHA
proposes to amend paragraph
§ 206.21(b), which applies to adjustable
interest rate HECMs, to make
conforming changes consistent with the
proposed changes to that definition,
which would allow for the interest rate
to be locked-in prior to closing. If the
interest rate was locked-in prior to
closing, then amended § 206.21(b)
would provide that the margin used to
determine interest rate adjustments is
the difference between the expected
average mortgage interest rate and the
value of the appropriate index at the
time of rate lock-in.
Current regulations at § 206.21(b)
provide that for annual adjustable
interest rate HECMs, periodic interest
rate increases and decreases are capped
at two percentage points and there is a
five or six percentage point cap over the
life of the loan, depending on whether
the loan is a one- or three-year
adjustable rate mortgage (five percentage
point cap) or a five-, seven-, or ten-year
adjustable rate mortgage (six percentage
point cap). These caps, although
modeled after § 203.49, vary from the
levels set in § 203.49. FHA proposes to
remove reference to three-, five-,
seven-, and ten-year adjustable interest
rate HECMs because FHA only offers to
insure one-year annual adjustable
interest rate HECMs and monthly
adjustable interest rate HECMs.
FHA also proposes to amend the cap
level on one-year annual adjustable rate
HECMs to more closely align with those
of forward mortgages and to provide
enhanced interest rate protection for
borrowers. As such, FHA proposes that
for the annual adjustable interest rate
mortgages, periodic interest rate
increases and decreases are capped at
one percentage point and there is a five
percentage point cap over the life of the
loan.
Section 206.21(b)(2) permits
mortgagees who offer an annual
adjustable interest rate mortgage the
opportunity to offer a monthly
adjustable interest rate mortgage using
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the Constant Maturity Treasury (CMT)
or London Interbank Offer Rate (LIBOR)
interest rate index without defining the
rate of change that can occur during a
12-month cycle or over the life to the
loan. A similar limit on lifetime interest
rate adjustments for monthly adjustable
interest rate HECMs would reduce risk
to the borrower and the MMIF by
reducing potential principal balance
growth, and providing access to
additional funds for the borrower.
Therefore, this proposal revises
§ 206.21(b)(2) to provide that
adjustments to the mortgage interest rate
over the entire term of the monthly
adjustable interest rate HECM may not
result in a change in either direction
from the initial contract interest rate of
more than five percentage points.
In addition, in § 206.21(b), FHA
references regulations in § 203.49.
Specifically in § 206.21(b)(2), FHA
references an ‘‘index as provided in
§ 203.49(a), (b), and (f)(1).’’ To provide
greater clarity, FHA proposes to restate
these requirements in FHA’s part 206
regulations, as applicable to the HECM
program, instead of cross-referencing to
other parts of FHA’s regulations.
Finally, in § 206.21(c), which pertains
to pre-loan disclosures as related to
interest rates, FHA proposes to make
very minor changes to further clarify
FHA’s regulation and to update its
reference to Truth in Lending
disclosures, which are now codified at
12 CFR part 1026.
Shared Appreciation (§ 206.23)
FHA seeks public comment on the
utility of FHA’s shared appreciation
regulation. Specifically, FHA requests
comment on the following questions: Do
mortgagees have an interest in offering
this program or if there is little or no
interest, should HUD remove it from the
regulations?
Calculation of Disbursements (§ 206.25)
Sections 206.25, titled ‘‘Calculation of
payments’’, and 206.29, titled ‘‘Initial
disbursement of mortgage proceeds’’ of
FHA’s current regulations contain
similar content and FHA would like to
take the opportunity provided by this
rulemaking to streamline these sections
by moving content of § 206.29 into
§ 206.25(d) as applicable, and removing
§ 206.29. Specifically, FHA proposes to
add a new paragraph (d) which provides
that mortgage proceeds may not be
disbursed until closing or after the
expiration of the 3-day rescission period
under 12 CFR part 1026, if applicable.
Items that were previously listed as
exceptions to the prohibition on
disbursements are now covered as
Mandatory Obligations. The remaining
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paragraphs in § 206.25 will be
renumbered.
FHA also proposes to make other
changes to § 206.25, including codifying
program changes implemented through
RMSA mortgagee letters and making
related programmatic changes, as
discussed below in this preamble.
FHA implemented changes to the
maximum initial disbursement available
to borrowers in RMSA Mortgagee Letter
2014–21. The Initial Disbursement Limit
is applicable to all adjustable interest
rate HECMs and is the maximum
disbursement allowed to a borrower at
loan closing and during the First 12Month Disbursement Period. In RMSA
Mortgagee Letter 2014–21, the Initial
Disbursement Limit was set at the
greater of 60 percent of the principal
limit; or the sum of Mandatory
Obligations and 10 percent of the
principal limit. In this rule, FHA
proposes to revise this formula to allow
the Commissioner flexibility in setting
these limits, such that the Initial
Disbursement Limit shall not exceed the
lesser of: (1) The greater of an amount
established by the Commissioner
through notice which shall not be less
than 50 percent of the principal limit; or
the sum of Mandatory Obligations and
a percentage of the principal limit
established by the Commissioner
through notice which shall not be less
than 10 percent; or (2) the principal
limit less the sum of the funds in the
LESA for payment beyond the First 12Month Disbursement Period and the
Servicing Fee Set Aside. While FHA
does not intend to change the current
amounts at this time, which are set at 60
percent and 10 percent, respectively,
this change is necessary for FHA to have
the flexibility to raise or lower these
amounts to meet the operational goals of
the MMIF and respond to future market
changes or other factors as necessary.
In addition, while it is FHA’s current
policy that the amount drawn at any
point in time and over time may not
exceed the available principal limit,
FHA’s new language makes clear that
the Initial Disbursement Limit may
never exceed the amount of the
principal limit remaining after the funds
in the LESA for payment beyond the
First 12-Month Disbursement Period
and the Servicing Fee Set Aside are
subtracted; the funds in these set asides
are not available to the borrower. If the
greater of the percentage of the principal
limit established by the Commissioner
or Mandatory Obligations plus a
percentage of the principal limit
established by the Commissioner
exceeds the amount of the principal
limit available to the borrower, the
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borrower may only receive the amount
of the principal limit available.
FHA also proposes to clarify that if
the borrower draws or will draw an
additional percentage beyond
Mandatory Obligations in accordance
with the Initial Disbursement Limit
calculation in § 206.25(a)(1), the
borrower must notify the mortgagee at
closing of the exact amount of the
additional percentage of the principal
limit that the borrower will draw or that
the borrower wants to have available for
future draws during the First 12-Month
Disbursement Period, and that such
election cannot be increased or
decreased after closing. The amount
drawn impacts the initial MIP amount,
so it is particularly important for
borrowers and mortgagees to know if the
amount the borrower elects to withdraw
during the First 12-Month Disbursement
Period will exceed the lesser MIP
threshold.
The Borrower’s Advance is applicable
to all fixed interest rate HECMs and is
calculated using the same formula as the
Initial Disbursement Limit. In this rule,
FHA proposes to make the same
changes to the calculation of the
Borrower’s Advance, such that the
Borrower’s Advance shall not exceed
the lesser of: (1) The greater of an
amount established by the
Commissioner through notice which
shall not be less than 50 percent of the
principal limit; or the sum of Mandatory
Obligations and a percentage of the
principal limit established by the
Commissioner through notice which
shall not be less than 10 percent; or (2)
the principal limit less the sum of the
funds in the LESA for payment beyond
the First 12-Month Disbursement Period
and the Servicing Fee Set Aside. While
FHA does not intend to change the
current amounts at this time, which are
set at 60 percent and 10 percent,
respectively, this change is necessary for
FHA to have the flexibility to raise or
lower these amounts to meet the
operational goals of the MMIF and to
respond to future market changes or
other factors as necessary.
In addition, while it is FHA’s current
policy that the amount drawn at any
point in time and over time may not
exceed the available principal limit,
FHA’s new language makes clear that
the Borrower’s Advance may never
exceed the amount of the principal limit
remaining after the funds in the LESA
for payment beyond the First 12-Month
Disbursement Period and the Servicing
Fee Set Aside are subtracted; the funds
in these set asides are not available to
the borrower. If the greater of the
percentage of the principal limit
established by the Commissioner or
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Mandatory Obligations plus a
percentage of the principal limit
established by the Commissioner
exceeds the amount of the principal
limit available to the borrower, the
borrower may only receive the amount
of the principal limit available.
FHA also proposes to clarify that if
the borrower draws or will draw an
additional percentage beyond
Mandatory Obligations in accordance
with the Borrower’s Advance
calculation in § 206.25(a)(2), the
borrower must notify the mortgagee at
closing of the exact amount of the
additional percentage of the principal
limit that the borrower will draw at
closing, and that such election cannot
be increased or decreased after closing.
The amount drawn impacts the initial
MIP amount, so it is particularly
important for borrowers and mortgagees
to know if the amount the borrower
elects to withdraw at closing will
exceed the lesser MIP threshold.
Mandatory Obligations for traditional,
refinance and purchase transactions
were listed in RMSA Mortgagee Letter
2014–21. In this rule, FHA proposes to
codify those lists in § 206.25(b) and
§ 206.25(c), but also proposes to add
flood certifications to the lists, which
was inadvertently excluded from the
lists in RMSA Mortgagee Letter 2014–
21.
FHA proposes to make conforming
changes to the term, tenure and line of
credit paragraphs, and proposes to
codify changes made to these payment
options in RMSA Mortgagee Letters
2014–07 and 2014–21, including the
requirement that the sum of
disbursements made during the First 12Month Disbursement Period may not
exceed the Initial Disbursement Limit or
Borrower’s Advance, as applicable.
Consistent with changes proposed to
§ 206.19(h) regarding disbursement
limits, FHA also proposes to amend
§ 206.25 to provide the Commissioner
with flexibility to allow disbursements
during the First 12-Month Disbursement
Period to exceed the Initial
Disbursement Limit. Further, FHA
clarifies that at the end of the First 12Month Disbursement Period, the
borrower may request a payment plan
change or merely a recalculation of the
current payment plan.
In § 206.25, FHA also proposes to add
a new paragraph (h) to describe the
Single Lump Sum payment option and
codify the requirements for this
payment option, as set out in RMSA
Mortgagee Letter 2014–21. Although the
name has slightly changed from the
‘‘Single Lump Sum Disbursement’’
payment option to the ‘‘Single Lump
Sum’’ payment option, the requirements
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set out in the RMSA mortgagee letter are
unchanged.
Finally, FHA proposes to slightly
amend current paragraph (e) titled
‘‘Payment of MIP and interest,’’ which
will be renamed paragraph (i), to
provide greater clarity around the
timing of when the MIP is due.
Change in Payment Option (§ 206.26)
Section 206.26 allows the borrower to
request a change in payment option,
provided certain conditions are met.
Changes implemented by RMSA
Mortgagee Letters 2014–11 and 2014–21
impacted the conditions under which a
payment plan change is permitted, and
FHA proposes to codify those changes
in § 206.26.
RMSA Mortgagee Letter 2014–11
instituted limits on the fixed interest
rate product, such that fixed interest
rate HECMs are only eligible for the
Single Lump Sum payment option.
Multiple draws are not permitted under
this option, and therefore borrowers
with fixed interest rate HECMs may not
request a change in payment option.
Adjustable interest rate HECMs, on the
other hand, are eligible for payment
option changes. However, during the
First 12-Month Disbursement Period,
payment option changes which would
cause disbursements to exceed the
Initial Disbursement Limit are not
permissible. At the end of the First 12Month Disbursement Period, borrowers
may request a recalculation of their
current payment option, or may change
to any other permissible payment
option.
Together, RMSA Mortgagee Letters
2014–11 and 2014–21 also provide that
for adjustable interest rate HECMs,
when repairs are completed without
using all of the Repair Set Aside, the
mortgagee must transfer the remaining
funds available in the Repair Set Aside
to a line of credit. In this rule, FHA
proposes to include the option to
transfer the remaining funds to a
modified term or modified tenure
payment option in order to provide
borrowers with more options when they
have an existing term or tenure payment
option and there are funds left in the
Repair Set Aside that the mortgagee
needs to transfer to them. For fixed
interest rate HECMs, on the other hand,
unused funds in the Repair Set Aside
may not be provided to the borrower,
except that the borrower may be able to
be reimbursed for repair materials
purchased by the borrower (but not for
labor provided by the borrower).
Mortgage Provisions (§ 206.27)
RMSA Mortgagee Letter 2014–07, as
amended by RMSA Mortgagee Letter
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2015–02, requires the mortgage to
include provisions deferring the due
and payable status that occurs as a
result of the death of the last surviving
borrower, for an Eligible Non-Borrowing
Spouse, and prohibiting the
continuation of payments under the
reverse mortgage during a Deferral
Period. FHA proposes to codify these
requirements in § 206.27(b).
Section 206.27(b)(2) currently
requires the borrower to maintain
hazard insurance on the property in an
amount acceptable to the Secretary and
the mortgagee. FHA proposes to add
more specificity to this provision to
remove the potential risk of litigation
related to hazard insurance coverage.
Specifically, FHA proposes to require
the borrower to insure all improvements
on the property that serves as collateral
for the HECM whether now in existence
or subsequently erected, against any
hazards, casualties, and contingencies,
including but not limited to fire and
flood, for which the mortgagee requires
insurance. FHA also proposes to
provide that such insurance shall be
maintained in the amount, and for the
period of time, that are necessary to
protect the mortgagee’s investment.
Whether or not the mortgagee imposes
a flood insurance requirement, FHA
proposes to require the borrower to, at
a minimum, insure all improvements on
the property, whether now in existence
or subsequently erected, against loss by
floods to the extent required by the
Commissioner. If the mortgagee imposes
insurance requirements, all insurance
would be required to be carried with
companies acceptable to the mortgagee,
and the insurance policies and any
renewals would be required to be held
by the mortgagee and include loss
payable clauses in favor of and in a form
acceptable to the mortgagee.
Section 206.27(b)(6) currently
requires the borrower to pay taxes,
hazard insurance premiums, ground
rents and assessments in a timely
manner. As a result of changes made to
property charge payment requirements
in RMSA Mortgagee Letter 2014–21,
FHA proposes to amend this paragraph
to require that the borrower provide for
the payment of property charges in
accordance with § 206.205. This will
cover circumstances in which property
charges are paid from a LESA, where a
borrower elects to have the mortgagee
pay the property charges, or where a
borrower pays property charges. A
discussion of the property charge
payment requirements can be found
later in the preamble.
Section 206.27(c) lists the conditions
which cause the HECM to become due
and payable, which include when the
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borrower dies and the property is not
the principal residence of at least one
surviving borrower. As mentioned
above, RMSA Mortgagee Letters 2014–
07 and 2015–02 provide for a deferral of
the due and payable status upon the
death of the last surviving borrower
where there is an Eligible NonBorrowing Spouse. Therefore, it is
necessary to amend § 206.27(c) to
provide an exception that defers the due
and payable status if the requirements of
the Deferral Period are met.
Another condition which may result
in the HECM becoming due and payable
is when the borrower does not pay
property charges as required by the
mortgage and § 206.205. This specific
situation has always been captured
under the current provision in
§ 206.27(c)(2)(iii), which provides that
the outstanding loan balance is due and
payable upon HUD-approval when an
obligation of the borrower under the
mortgage is not performed. Due to an
increase in property charge defaults,
however, FHA proposes to specifically
and clearly articulate that the borrower’s
non-payment of property charges in
accordance with § 206.205 is a
condition which can cause the HECM to
become due and payable with the
approval of the Commissioner.
Finally, § 206.27(d) discusses second
mortgages. This section requires that
unless otherwise provided, a second
mortgage must be given to HUD before
a Mortgage Insurance Certificate is
issued. Where the Commissioner elects
to not require a second mortgage prior
to the issuance of a Mortgage Insurance
Certificate, it is important that FHA is
still able to protect its security interest;
therefore, FHA proposes to allow the
Commissioner to require a second
mortgage at a later date when not
required prior to issuance of the
Mortgage Insurance Certificate. RMSA
Mortgagee Letter 2014–11 changed the
structure of the fixed interest rate
product to allow only a single
disbursement and eliminated the need
for fixed interest rate HECMs to have a
second mortgage. FHA does not need to
codify this policy because it is covered
under the language ‘‘unless otherwise
provided’’ in the current regulation.
Allowable Charges and Fees (§ 206.31)
Current section 206.31(a)(1) permits
loan origination fees and allows the
Secretary to establish fee limits.
However, in 2008, HERA established
limits on the loan origination fee that
may be charged for HECMs, such that
the loan origination fee limit is the
greater of $2,500 or two percent of the
maximum claim amount of the
mortgage, up to a maximum claim
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amount of $200,000, plus one percent of
any portion of the maximum claim
amount that is greater than $200,000;
and the total amount of the loan
origination fee may not exceed $6,000.
FHA implemented these limits through
HERA Mortgagee Letter 2008–34 and in
this rule, FHA proposes to codify these
limits in § 206.31(a)(1). FHA also
proposes to clarify that such loan
origination fee includes expenses
incurred in originating, processing and
closing the HECM.
Current section 206.31(a)(1) also
prohibits borrowers from paying any
origination fees in addition to those that
are permitted to be paid to the
mortgagee (which includes amounts
paid by a mortgagee to a mortgage
broker or sponsored third-party
originator). This paragraph permits a
mortgage broker’s fee to be included as
part of the origination fee if the
mortgage broker was engaged
independently by the borrower and
there is no financial interest between
the mortgage broker and the mortgagee.
This provision has caused significant
confusion, and to address that
confusion, FHA proposes to amend
§ 206.31(a)(1) to clarify that the
prohibition is on additional fees paid by
a borrower beyond the loan origination
fee limit, and does not prohibit the
provision of compensation to a
sponsored third-party originator by a
mortgagee.
No Outstanding Unpaid Obligations
(§ 206.32)
FHA proposes to amend this section
to make conforming changes that
correspond with the introduction of
Mandatory Obligations in RMSA
Mortgagee Letter 2014–21. Pursuant to
RMSA Mortgagee Letter 2014–21, initial
Repair Set Asides to pay for repairs
where the need for repairs was
discovered prior to or at closing are
considered Mandatory Obligations and
are included in the initial disbursement.
Therefore, they should not be included
as an exception in this section.
Age of Borrower (§ 206.33)
Section 206.33 requires the youngest
borrower to be at least 62 year of age at
the time the mortgagee submits the
application for insurance. FHA finds
that it is unnecessary for the youngest
borrower to be 62 at the loan application
stage, and instead proposes to require
that the youngest borrower be at least 62
years of age at the time of loan closing
which will insure compliance with the
statutory requirement that the borrower
be 62 at endorsement.
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Limitation on Number of Mortgages
(§ 206.34)
Permitting multiple HECMs at one
time is contrary to the intent of the
program to insure the property which
serves as the borrower’s primary
residence. FHA is taking the
opportunity afforded by this rule to
clarify policy in this regard. The
proposed rule adds a new § 206.34,
which states that once a borrower has
obtained an insured HECM, the
borrower may not close on another
HECM unless the existing insured
mortgage is satisfied at, or prior to,
closing, except for cases of divorce
where an ex-spouse, who had
previously jointly obtained a HECM
with their ex-spouse, has relinquished
title as evidenced by a recorded deed.
FHA believes that the final divorce
decree and the recorded quit claim, or
its equivalent, are considered the only
legal acknowledgement of transfer, but
FHA is seeking feedback on the
following question: What additional
forms of documentation should be
considered to confirm that an ex-spouse
has been removed from the existing loan
and has no financial obligation?
In addition, FHA intends the
prohibition on closing another HECM
unless the existing insured mortgage is
satisfied to mean, in the case of a deed
in lieu on an existing HECM where a
borrower seeks to obtain a new HECM,
the deed in lieu must be fully executed
and recorded before a borrower is
eligible for a new HECM. New § 206.34
also proposes to codify material in
HERA Mortgagee Letter 2009–11 to state
that current HECM borrowers that plan
to sell their existing residence and use
the HECM for Purchase program to
obtain a new principal residence must
pay off the existing FHA-insured
mortgage before the HECM for Purchase
mortgage can be insured. The material
on rental properties in HERA Mortgagee
Letter 2009–11 does not rise to the level
of regulation, and as such, will not be
codified.
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Title of Property Which is Security for
HECM (§ 206.35)
Currently, § 206.35 requires a HECM
borrower or borrowers to hold full title
to the property which is the security for
the mortgage, as ‘‘borrower’’ is newly
defined in § 206.3. It had come to FHA’s
attention that Non-Borrowing Spouses
or other non-borrowing owners were, at
times, quit claiming their interest in the
property prior to closing, and then being
put back onto the title of the property.
FHA believes that the new Deferral
Period policy for Eligible NonBorrowing Spouses has reduced the
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need for this practice, but nonetheless
finds it important to amend the full-title
requirement to provide that NonBorrowing Spouses and non-borrowing
owners may stay on title to the property
serving as the security interest for the
HECM, making them mortgagors. This
proposed change would eliminate the
burden on Non-Borrowing Spouses or
other heirs who remain on title of
having to establish legal ownership of
the property upon the death of the
borrowing spouse.
Seasoning Requirements for Existing
Non-HECM Liens (§ 206.36)
RMSA Mortgagee Letter 2014–21, as
amended by RMSA Mortgagee Letter
2015–02, created seasoning
requirements for existing non-HECM
liens. The RMSA mortgagee letters
provide that mortgagees can only permit
the payoff of existing non-HECM liens
using HECM proceeds if the liens have
been in place for longer than 12 months
or have resulted in less than $500 cash
to the borrower, and that mortgagees
must review and provide the necessary
documentation illustrating that the
seasoning requirements have been met.
FHA does not intend to change its
current policy, whereby mortgagees can
only permit the payoff of existing nonHECM liens using HECM proceeds if the
liens have been in place for longer than
12 months or have resulted in cash to
the borrower in an amount of $500 or
less. However, FHA recognizes the
importance of being able to adjust this
seasoning requirement in the future if
necessitated by the market or borrower
characteristics. Therefore, FHA
proposes to allow the Commissioner to
impose seasoning requirements through
notice, but provides that any such
requirements imposed by future notice
may not be more stringent than the
policy currently in place. Further,
although the specific documentation
processes were outlined in the RMSA
mortgagee letters, those processes are
more suitable for guidance and will not
be codified in § 206.36.
Credit Standing (§ 206.37)
In the past, there have been an
increasing number of tax and hazard
insurance defaults by borrowers.
Section 206.37 currently provides that
each borrower must have a general
credit standing that is satisfactory, but
provides no further requirements.
Therefore, in RMSA Mortgagee Letter
2013–27, FHA established a
requirement for a Financial Assessment
of a potential borrower’s financial
capacity and willingness to comply with
mortgage provisions. As mentioned
earlier in this preamble, after
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considering public comments, FHA
published revised Financial Assessment
and Property Charge Funding
Requirements in RMSA Mortgagee
Letter 2014–21, which superseded
RMSA Mortgagee Letter 2013–27.
In this rule, FHA proposes to codify
the Financial Assessment requirements
announced in RMSA Mortgagee Letter
2014–21 in § 206.37.20 Mortgagees will
be required to perform a Financial
Assessment of the prospective borrower
prior to loan approval, which will
consider the prospective borrower’s
credit history, cash flow and residual
income, extenuating circumstances, and
compensating factors. Financial
Assessments must be conducted in a
uniform manner that does not
discriminate because of race, color,
religion, sex, national origin, familial
status, disability, marital status, actual
or perceived sexual orientation, gender
identity, source of income of the
prospective borrower, or location of the
property, and which complies with all
applicable laws and regulations.
Some of the Financial Assessment
material in RMSA Mortgagee Letter
2014–21 is better suited as guidance and
will therefore not be codified in
§ 206.37. For example, the provision
permitting mortgagees to obtain a credit
report prior to the completion of HECM
counseling does not rise to the level of
regulation and should be treated as
guidance. In addition, the examples of
extenuating circumstances and
compensating factors are more suitable
for guidance.
Principal Residence (§ 206.39)
As mentioned earlier, some of the
content from § 206.39, as clarified by
RMSA Mortgagee Letter 2014–07, is
being moved to the actual definition of
‘‘principal residence’’ in § 206.3. In
§ 206.39(a), FHA proposes to codify
changes implemented in RMSA
Mortgagee Letter 2015–02 to state that
the property must be the principal
residence of each Eligible NonBorrowing Spouse at closing and must
remain the principal residence to
maintain eligibility for the Deferral
Period.
In new § 206.39(b), FHA proposes to
codify program changes made in HERA
Mortgagee Letter 2009–11 which require
borrowers in the HECM for Purchase
program to occupy the property within
60 days from the date of closing, and
also to update the HECM for Purchase
requirements to impose this 60-day
requirement on Eligible Non-Borrowing
Spouses, bringing this provision into
20 Property Charge Funding Requirements can be
found in § 206.205.
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alignment with the Non-Borrowing
Spouse policy announced in RMSA
Mortgagee Letters 2014–07 and 2015–
02.
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Disclosure, Verification and
Certifications (§ 206.40)
Section 206.40 currently provides for
the disclosure and verification of Social
Security and Employer Identification
Numbers for the borrower. As a result of
changes made to the HECM program
regarding Non-Borrowing Spouses in
RMSA Mortgagee Letter 2014–07, as
amended by RMSA Mortgagee Letter
2015–02, FHA proposes to amend
§ 206.40 to codify the requirements that
an Eligible Non-Borrowing Spouse must
comply with the same disclosure and
verification of Social Security and
Employer Identification Numbers
required of the borrower, and that all
borrowers and Non-Borrowing Spouses
must provide all necessary certifications
to HUD and the mortgagee.
In addition, FHA proposes to add a
new paragraph (c) to address
circumstances in which FHA has been
unable to find and communicate with
borrowers concerning their HECMs. In
this new paragraph, FHA proposes to
allow the Commissioner to require a
borrower to designate an agent or other
party to act on his behalf when FHA is
unable to make contact or communicate
with the borrower. Even when not
required, FHA would allow the
borrower to voluntarily designate an
agent or other person to act on his
behalf.
Counseling (§ 206.41)
FHA currently requires prospective
borrowers and Non-Borrowing Spouses
to receive counseling. FHA is taking the
opportunity provided by this
rulemaking to amend § 206.41 to
include the specific requirements that
apply when there are Eligible or
Ineligible Non-Borrowing Spouses,
consistent with the program changes
implemented by RMSA Mortgagee
Letters 2014–07 and 2015–02. In
addition, FHA proposes to provide the
Commissioner with the flexibility to
require HECM counselors, through
notice, to discuss any other
requirements with prospective
borrowers and Non-Borrowing Spouses.
Finally, consistent with current
requirements, and as articulated in
RMSA Mortgagee Letter 2014–07, FHA
proposes to amend § 206.41(c) to codify
the requirements that HECM counselors
provide each borrower with a certificate
saying that the borrower and NonBorrowing Spouse, if applicable, have
received counseling. Instead of
requiring each borrower to provide the
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mortgagee with a copy of the certificate,
this rule proposes to instead require the
HECM counselor to upload the
certificate into the appropriate
electronic database.
FHA also proposes to require
prospective borrowers of HECM for
Purchase transactions to complete the
required HECM counseling prior to
signing a sales contract and/or making
an earnest money deposit, unless
otherwise provided by the
Commissioner, instead of allowing them
to complete the counseling before or
after the initial application is submitted
to the mortgagee. FHA believes it is
beneficial for the borrower to
understand the requirements of the
HECM for Purchase program prior to
committing to purchase a home using a
HECM.
Monetary Investment for HECM for
Purchase Program (§ 206.44)
HERA Mortgagee Letter 2009–11
requires that HECM for Purchase
borrowers provide a monetary
investment that will be applied to
satisfy the difference between the
principal limit and the sale price for the
property, plus any HECM loan-related
fees that are not financed into the loan,
minus the amount of the earnest
deposit. The HERA mortgagee letter also
provides that HECM borrowers may
choose to provide a larger investment
amount in order to retain a portion of
the available HECM proceeds for future
draws, and specifies permissible
funding sources. FHA proposes to
codify these requirements in a new
§ 206.44, except as discussed below.
In the ‘‘Monetary Investment’’ section,
the provision that states that HECM
borrowers may choose to provide a
larger investment amount in order to
retain a portion of the HECM proceeds
does not rise to the level of regulation
and therefore will not be codified.
In the ‘‘Funding Sources’’ section,
material regarding the disallowed
funding sources, which was, at the time
of issuance of the HERA mortgagee
letter, taken directly from a HUD
Handbook, was guidance and is no
longer FHA’s policy. In addition, the
prohibition on seller contributions,
which will more accurately be referred
to as interested party contributions 21
throughout this rule, will remain in
effect for FHA Case Numbers assigned
prior to the effective date of the final
21 Interested party contributions encompasses the
use of loan discount points, interest rate buydowns, closing cost down payment assistance,
builder incentives, and gifts of personal property
given by the seller or any other party involved in
the transaction, which were set out separately in
HERA Mortgagee Letter 2009–11.
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rule, but will be amended in this rule
for FHA Case Numbers assigned on or
after the effective date of the final rule.
The current prohibition on interested
party contributions is unique and
redirects expenses customarily paid by
the seller or other interested parties to
the buyer in HECM for Purchase
transactions. In this rule, FHA proposes
to permit limited interested party
contributions, and to allow the
Commissioner flexibility to define the
types and parameters of other allowable
interested party contributions in the
future through Federal Register notice
for public comment. FHA proposes to
specifically allow the seller to pay fees
required to be paid by the seller under
state or local law and to purchase the
Home Warranty policy. These changes
would remove barriers to HECM for
Purchase transactions which exist in
state or local jurisdictions which require
certain seller-paid costs.
Eligible Properties (§ 206.45)
Currently, § 206.45(a) provides that a
mortgage must be on real estate held in
fee simple, or on a leasehold under a
lease for not less than 99 years which
is renewable, or under a lease having a
remaining period of not less than 50
years beyond the date of the 100th
birthday of the youngest mortgagor. This
section was written to implement
subsection 255(b)(4) of the NHA.
However, Public Law 111–22, signed
into law on May 20, 2009, amended
subsection 255(b)(4) of the NHA to
replace the language regarding a lease
having a remaining period of not less
than 50 years beyond the date of the
100th birthday of the youngest
mortgagor with ‘‘a lease that has a term
that ends no earlier than the minimum
number of years, as specified by the
Secretary, beyond the actuarial life
expectancy of the mortgagor or
comortgagor, whichever is the later
date.’’ FHA is taking the opportunity
provided by this rulemaking to update
its regulation at § 206.45(a) to require
that, to be eligible for insurance, a
mortgage must be on real estate held in
fee simple; or on a leasehold that is
under a lease with a duration lasting
until the later of: (1) 99 years, if such
lease is renewable; or (2) the actuarial
life expectancy of the youngest
mortgagor plus a number of years
specified by the Commissioner,22 which
shall not be more than 99 years.
22 While section 255(b)(4) of the NHA specifically
provides that the ‘‘Secretary’’ shall specify the
minimum number of years for a lease term, FHA
proposes to use the term ‘‘Commissioner’’ to more
accurately reflect HUD’s delegations of authority
from the Secretary to the Commissioner.
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In addition, paragraphs (c) and (e)
reference requirements in §§ 203.16a,
203.40, 203.41, and 234.66. To provide
greater clarity, FHA proposes to restate
requirements, as applicable to the
HECM program, in FHA’s part 206
regulations instead of cross-referencing
to other parts of FHA’s regulations.
Therefore, FHA proposes to amend
paragraph (c) by restating the flood
insurance requirements, and to move
and restate the property location
requirements from current paragraph (c)
to a new paragraph (f). FHA also
proposes to restate the permissible
restrictions on conveyance in paragraph
(e).
In § 206.45(g), FHA proposes to codify
and amend requirements announced in
HERA Mortgagee Letter 2009–11. HERA
Mortgagee Letter 2009–11 defined a
‘‘HECM for Purchase’’ as a real estate
purchase where title to the property is
transferred to the HECM borrower and,
at the time of closing, the HECM first
and second liens will be the only liens
against the property. HERA Mortgagee
Letter 2009–11 also provided that only
properties where construction is
completed are eligible for insurance
under the HECM for Purchase program.
While it has always been FHA’s intent
that these properties be habitable, in
this rule, FHA proposes to include
habitability, as evidenced by a
Certificate of Occupancy or similar
document, as a criterion for insurance
eligibility. FHA will not codify the
provision which states that loan
proceeds may be used to satisfy
outstanding payment obligations
associated with a land contract, contract
for deed, or similar purchase
arrangements that will ensure the
property meets FHA’s title
requirements, as this is interpretive
guidance.
Property Standards; Repair Work
(§ 206.47)
RMSA Mortgagee Letter 2014–11
provided that no unused Repair Set
Aside funds for fixed interest rate
HECMs could be made available to the
borrower under any circumstance. After
issuing RMSA Mortgagee Letter 2014–
11, FHA published a notice in the
Federal Register on July 10, 2014, at 79
FR 39408, soliciting comment on the
RMSA mortgagee letter. FHA received
two public comments, and one of those
comments requested clarification on the
aforementioned prohibition. In response
to this comment, FHA clarified its
policy in RMSA Mortgagee Letter 2014–
21 to provide that borrowers with either
fixed or adjustable interest rate HECMs
could not be reimbursed for labor, but
could be reimbursed for the cost of
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materials, under certain conditions,
when repairs are being completed after
loan closing. FHA proposes to codify its
policy which allows borrowers to be
reimbursed from the Repair Set Aside
for the actual cost of repair materials by
specifying that paragraph (c) applies to
the reimbursement of contractors and
creating a new paragraph (d) for the
reimbursement of borrowers.
In paragraphs (c) and (d), FHA
proposes amendments related to the
inspection requirements. Currently,
paragraph (c), which is the only
paragraph in this section that discusses
inspections, requires the post-repair
inspection(s) of the property to be
completed by an inspector approved by
HUD. However, FHA published a
proposed rule on February 6, 2013, at 78
FR 8448, which, in part, proposed to
remove its Inspector Roster regulations.
Therefore, to allow for consistency
between inspection requirements for the
HECM program and any future changes
to FHA’s forward mortgage program
related to inspectors, FHA proposes to
broaden the language used in § 206.47 to
provide that the inspector or other
qualified individual must be acceptable
to the Commissioner.
FHA also proposes to codify HECM
for Purchase program requirements
announced in HERA Mortgagee Letter
2009–11 in a new paragraph (e) to state
that in HECM for Purchase transactions,
where major property deficiencies
threaten the health and safety of the
homeowner or jeopardize the soundness
and security of the property, all repairs
must be completed by the seller prior to
closing. Appraisers are required to
complete the appraisal report as
‘‘Subject To’’ the completion of the
repairs. Additional content in the
‘‘Repair and Property Set Asides
Section’’ of HERA Mortgagee Letter
2009–11 listing examples of major
property deficiencies will not be
codified, as it is guidance material. In
addition, FHA will not codify the
material regarding HECM borrowers
continuing to have the option to elect to
have the mortgagee set aside funds for
the payment of property charges
because borrowers are now subject to
the Financial Assessment Property
Charge Funding Requirements
implemented by RMSA Mortgagee
Letter 2014–21, which may or may not
allow them to elect to have the
mortgagee set aside funds for the
payment of property charges.
Eligibility of Mortgages Involving a
Dwelling Unit in a Condominium
(§ 206.51)
The current regulation at § 206.51
requires that where the mortgage
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involves a dwelling unit in a
condominium, the project in which the
condominium is located must be
committed to a plan of condominium
ownership by deed or other instrument
acceptable to the Secretary, but the
regulation also provides a limited
exception for some loans on single units
in unapproved condominium projects.
This ‘‘spot approval’’ exception was
removed from the FHA condominium
policy under HERA, and therefore, this
rule proposes to eliminate this
exception from § 206.51.
Eligible Sale of Property—HECM for
Purchase (§ 206.52)
HERA Mortgagee Letter 2009–11
requires that mortgagees providing
HECM financing for HECM for Purchase
transactions comply with the FHA
regulation at 24 CFR 203.37a. To
provide greater clarity, FHA proposes to
restate these requirements in FHA’s part
206 regulations, as applicable to the
HECM for Purchase program, instead of
cross-referencing to other parts of FHA’s
regulations. These requirements
encompass requirements set out in
HERA Mortgagee Letter 2009–11
regarding a mortgagee’s responsibility to
prohibit property flipping practices for
properties which are the subject of
HECM for Purchase transactions. The
content regarding the importance of
prospective borrowers being aware of
coercive actions against them is
guidance and will not be codified.
Refinancings (§ 206.53)
This proposed rule updates FHA’s
regulation at § 206.105 which governs
the MIP paid in connection with HECM
loans. These proposed changes reflect
statutory amendments to the NHA that
provide FHA with additional flexibility
in establishing the initial MIP for FHAinsured mortgages up to 3 percent of the
amount of the original insured principal
obligation of the mortgage and are
discussed later in the preamble. The
proposed rule makes a conforming
change to § 206.53(c), which describes
the initial MIP limit for the refinancing
of HECM mortgage loans.
In addition, FHA proposes to move
the content of current § 206.53(c) into a
new subparagraph (c)(1), and also
proposes to revise the wording of new
§ 206.53(c)(1), for clarity. These
proposed changes do not alter the
substantive aspect of the subject
regulation. Consistent with subsection
203(c)(2)(A) of the NHA, the revision to
§ 206.53(c) clarifies that the initial MIP
may not exceed the difference between:
Three percent of the maximum claim
amount for the new HECM loan, and the
amount of the initial MIP already
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charged and paid by the borrower for
the existing HECM loan being
refinanced.
In new § 206.53(c)(2), FHA proposes
to codify HECM for Purchase program
requirements implemented by HERA
Mortgagee Letter 2009–11 which
provide that existing HECM borrowers
who participate in a HECM for Purchase
transaction are ineligible for a refinance
transaction because the HECM refinance
authority is only applicable when the
property that serves as collateral for
FHA-insurance remains the same. As a
result of this addition, FHA proposes to
eliminate the first sentence of
§ 206.53(a), which states that this
section implements subsection 255(k) of
the NHA. While that statement remains
true, the HECM for Purchase program
authority rests in subsection 255(m) of
the NHA, and to avoid any potential
confusion, FHA simply prefers to
eliminate the specific reference to
subsection 255(k) of the NHA.
Deferral of Due and Payable Status
(§§ 206.55, 206.57, 206.59, 206.61)
RMSA Mortgagee Letter 2014–07, as
amended by RMSA Mortgagee Letter
2015–02, implemented an alternative
interpretation of subsection 255(j) of the
NHA to provide viable options for NonBorrowing Spouses to remain in the
homes they had previously shared with
their borrower spouses after the death of
their spouses. In general, if the last
surviving borrower predeceases an
Eligible Non-Borrowing Spouse, and if
the Deferral Period requirements are
satisfied, the due and payable status
will be deferred for as long as the
Eligible Non-Borrowing Spouse
continues to meet the Qualifying
Attributes, the Deferral Period
requirements, all applicable terms and
conditions of the mortgage and loan
documents and all other applicable FHA
requirements. In addition, except for
limited circumstances, mortgagees are
required to provide Eligible NonBorrowing Spouses with 30 days to cure
defaults that occur during the Deferral
Period and reinstate the Deferral Period.
In this rule, FHA proposes to codify
the Deferral Period requirements set out
in RMSA Mortgagee Letters 2014–07
and 2015–02 in new sections 206.55,
206.57, 206.59, and 206.61, with minor
changes as discussed below.
The policy currently in effect as a
result of RMSA Mortgagee Letters 2014–
07 and 2015–02 provides for three
Qualifying Attributes: (1) The NonBorrowing Spouse must have been the
spouse of a HECM borrower at the time
of loan closing and remained the spouse
of such HECM borrower for the duration
of the HECM borrower’s lifetime; (2) the
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Non-Borrowing Spouse must have been
properly disclosed to the mortgagee at
origination and specifically named as an
Eligible Non-Borrowing Spouse in the
HECM mortgage and loan documents;
and (3) the Non-Borrowing Spouse must
have occupied, and must continue to
occupy, the property securing the
HECM as his or her principal residence.
In this rule, FHA proposes to give the
Commissioner flexibility to set other
Qualifying Attributes criteria as
necessary through the publication of a
Federal Register notice for comment.
The Qualifying Attributes criteria is
found in § 206.55(c).
RMSA Mortgagee Letter 2015–02
stated that an ‘‘Eligible Non-Borrowing
Spouse may become an Ineligible NonBorrowing Spouse should any of the
Qualifying Attributes cease to be met
during the loan term.’’ FHA takes the
opportunity provided by this
rulemaking to replace ‘‘may become’’
with ‘‘shall become’’ to make clear in
§ 206.55(c)(3) that if the Qualifying
Attributes cease to be met, the
previously Eligible Non-Borrowing
Spouse will become an Ineligible NonBorrowing Spouse.
FHA also takes the opportunity
provided by this rulemaking to clarify
that ‘‘ongoing legal right to remain’’
means a legal right to remain for life.
This clarified requirement is found in
§ 206.55(d)(1). Further, FHA proposes to
clarify in § 206.55(f) that nothing in
§ 206.55 may be construed as
interrupting or interfering with the right
of the borrower’s estate or heir(s) to
dispose of the property if they are
otherwise legally entitled to do so.
FHA also proposes to clarify in
§ 206.59(d) that mortgagees must notify
the Eligible Non-Borrowing Spouse
within 30 days of the Deferral Period
ending, unless the Deferral Period is
reinstated. Also, this rule proposes to
require the mortgagee to obtain
documentation validating the reason for
the cessation or reinstatement of the
Deferral Period.
RMSA Mortgagee Letter 2014–07
specifically states that the proceeds of a
HECM will not be disbursed to the
borrower, borrower’s estate, or the NonBorrowing Spouse once the HECM is in
a deferred due and payable status. FHA
proposes to amend this statement in
§ 206.61(a) to broaden it and to clarify
that during a Deferral Period, HECM
proceeds may not be disbursed to any
party, except as otherwise determined
by the Commissioner through notice.
RMSA Mortgagee Letter 2014–07 also
states that funds may be disbursed from
a Repair Set Aside during a Deferral
Period for the purpose of paying for
repairs identified prior to origination as
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necessary to the insurance of the HECM,
but that such repairs may only be paid
for using the Repair Set Aside if the
repairs are satisfactorily completed
during the time period established in
the Rider. However, FHA recognizes
that there are situations in which, for a
variety of reasons, repairs may not be
completed within the originally
established timeframe. Therefore, FHA
proposes to provide flexibility to
involved parties by allowing the
Commissioner to extend the time period
in which repairs must be completed in
§ 206.61(b).
Subpart C—Contract Rights and
Obligations
Sale, Assignment and Pledge of Insured
Mortgages (§ 206.101)
FHA’s current regulation at § 206.101
refers to §§ 203.430 through 203.435. To
provide greater clarity, in § 206.101,
FHA proposes to restate these
requirements, as applicable to the
HECM program, instead of crossreferencing to other parts of FHA’s
regulations.
Insurance Funds (§ 206.102)
Currently, § 206.102 provides that
mortgages insured under part 206 shall
be obligations of the General Insurance
Fund. However, Section 2118(b)(2) of
HERA transferred obligations arising
under the HECM program, for loans
endorsed on or after October 1, 2008,
from the FHA General Insurance Fund
to the MMIF. This proposed rule
updates the regulations accordingly.
Payment of MIP (§ 206.103)
FHA proposes to provide in § 206.103
that the payment of MIP shall be made
to the Commissioner by the mortgagee
in cash until the HECM is paid in full,
foreclosed or a deed in lieu of
foreclosure is recorded, or the property
is otherwise sold, instead of until the
contract of insurance is terminated.
Amount of MIP (§ 206.105)
This proposed rule updates § 206.105
which governs the MIP paid in
connection with HECM loans.
Currently, § 206.105(a) provides for an
initial MIP of two percent of the
maximum claim amount; § 206.105(b)
provides for a monthly MIP that accrues
daily on the outstanding loan balance at
a rate equivalent to 0.5 percent per
annum and is added to the outstanding
loan balance when paid to the Secretary.
As previously noted, HERA
transferred obligations arising under the
HECM program from the FHA General
Insurance Fund to the MMIF. Each
FHA-insured mortgage which is an
obligation of the MMIF is subject to the
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premium structure at subsection
203(c)(2)(A) of the NHA. As amended by
HERA, subsection 203(c)(2)(A) states, in
part, that ‘‘the Secretary shall establish
and collect, at the time of insurance, a
single premium payment in an amount
not exceeding 3 percent of the amount
of the original insured principal
obligation of the mortgage.’’
In addition, NHA subsection
203(c)(2)(B) addresses annual mortgage
insurance premiums. On August 12,
2010, the President signed into law
Public Law 111–229,23 which amended
NHA subsection 203(c)(2)(B) to provide
the Secretary with additional flexibility
regarding the annual mortgage
insurance premiums. Subsection
203(c)(2)(B) provides the Secretary with
the discretion to decide to establish and
collect annual mortgage insurance
premiums in an amount not exceeding
1.50 percent of the remaining insured
principal balance, or up to 1.55 percent
for any mortgage involving an original
principal obligation that is greater than
95 percent of appraised value of the
property.
Public Law 111–229 also provides the
Secretary with the discretion to adjust
the initial MIP and annual MIP through
notice published in the Federal Register
or mortgagee letter which establishes
the effective date for any premium
adjustment therein.
With respect to the HECM program,
for purposes of establishing the initial
MIP, the original insured principal
obligation of the mortgage is the
maximum claim amount; therefore,
consistent with the amendments to
subsection 203(c)(2)(A) of the NHA, this
proposed rule revises § 206.105(a) to
specify that the Commissioner 24 may
charge an initial MIP of up to three
percent of the maximum claim amount.
This rule also proposes to revise
§ 206.105(b), consistent with the
amendments to subsection 203(c)(2)(B)
of the NHA, to provide that the
Commissioner 25 may establish and
23 The title of this public law is ‘‘To increase the
flexibility of the Secretary of Housing and Urban
Development with respect to the amount of
premiums charged for FHA single family housing
mortgage insurance and other purposes.’’
24 While subsection 203(c)(2)(A) specifically
provides that the ‘‘Secretary’’ shall establish and
collect an initial MIP not to exceed three percent
of the maximum claim amount, FHA proposes to
use the term ‘‘Commissioner’’ to more accurately
reflect HUD’s delegations of authority from the
Secretary to the Commissioner.
25 While subsection 203(c)(2)(B) specifically
provides the ‘‘Secretary’’ with discretion to decide
whether to establish and collect annual MIP in an
amount not exceeding 1.50 percent of the remaining
insured principal balance, or up to 1.55 percent for
any mortgage involving an original principal
obligation that is greater than 95 percent of
appraised value of the property, FHA proposes to
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collect an annual MIP, which will
accrue from the closing date, in an
amount not to exceed 1.50 percent of
the remaining insured principal
balance, or up to 1.55 percent for any
mortgage involving an original principal
obligation that is greater than 95 percent
of the appraised value of the property.
FHA proposes to clarify that the MIP
may be added to the loan balance when
paid to the Commissioner. Moreover,
the proposed rule adds a new paragraph
(d) in § 206.105 stating the
Commissioner’s authority to adjust the
amount of the initial and monthly MIP
through notice.26
In addition, FHA proposes to codify
provisions from RMSA Mortgagee Letter
2014–21 regarding the calculation of the
initial MIP in a new paragraph (c) to
§ 206.105. Under existing authority, and
as discussed above, the initial MIP may
be adjusted by FHA through notice.
Therefore, FHA proposes to codify the
general framework for calculating the
initial MIP, as described in RMSA
Mortgagee Letter 2014–21, but not the
specific initial MIP amounts, and will
instead update the specific initial MIP
amounts by notice, as necessary. FHA
also proposes to make clear that any
amount of funds set aside in a Servicing
Fee Set Aside will not affect the initial
MIP amount, even for those funds
scheduled for payment during the First12 Month Disbursement Period.
Mortgagee Election of Assignment or
Shared Premium Option (§ 206.107)
FHA proposes to make conforming
amendments to § 206.107(a) to account
for the Deferral Period, which was
introduced in RMSA Mortgagee Letter
2014–07. Specifically, in paragraph
(a)(1), FHA proposes to clarify that the
mortgagee may assign the HECM to the
Commissioner if the outstanding loan
balance is equal to or greater than 98
percent of the maximum claim amount,
regardless of deferral status, or the
borrower has requested a payment
which exceeds the difference between
the maximum claim amount and the
outstanding loan balance and certain
conditions, as specified in this section,
are met. In subparagraph (a)(1)(iii), FHA
proposes to expand upon one of these
conditions, such that the HECM is either
use the term ‘‘Commissioner’’ to more accurately
reflect HUD’s delegations of authority from the
Secretary to the Commissioner.
26 While Public Law 111–229 provides the
‘‘Secretary’’ with the discretion to adjust the initial
MIP and annual MIP through notice published in
the Federal Register or mortgagee letter, FHA
proposes to use the term ‘‘Commissioner’’ to more
accurately reflect HUD’s delegations of authority
from the Secretary to the Commissioner and
‘‘notice’’ to more concisely convey the method of
notification.
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not due and payable under
§ 206.27(c)(1), or its due and payable
status under § 206.27(c)(1) has been
deferred pursuant to a Deferral Period.
FHA is also slightly revising the
wording of § 206.107(a)(1)(iv) to clarify
that the mortgagee shall have the option
of assigning the mortgage to the
Commissioner only if an event
described in § 206.27(c)(2) has not
occurred or the Commissioner has been
notified of such occurrence but has
denied approval for the mortgage to be
due and payable.
Finally, to provide greater clarity, in
§ 206.107, FHA proposes to replace the
cross-references to requirements in
FHA’s part 203 regulations with the
actual requirements, as applicable to the
HECM program, or cross-references to
other sections within part 206.
FHA seeks public comment on the
utility of FHA’s shared premium option.
Specifically, FHA requests comment on
the following questions: Do mortgagees
anticipate selecting the shared premium
option in the future, and if not, what is
the reasoning for not selecting the
shared premium option?
Amount of Mortgagee Share of Premium
(§ 206.109)
In current § 206.109, the amount of
the mortgagee share of premium is
determined based upon the age of the
youngest borrower. To be consistent
with the changes FHA made to the
calculation of the principal limit in
RMSA Mortgagee Letters 2014–07 and
2015–02, which bases the age factor on
the age of the youngest borrower or
Eligible Non-Borrowing Spouse, FHA
proposes to amend § 206.109 to base the
mortgagee share of premium on the age
of the youngest borrower or Eligible
Non-Borrowing Spouse.
Late Charge and Interest (§ 206.113)
In § 206.113(a), FHA currently
requires the payment of a late charge
when initial and monthly MIP are
remitted to the Commissioner 10 days
after the payment date in § 206.111(b).
In § 206.113(b), FHA currently requires
the mortgagee to pay interest on initial
and monthly MIP remitted to the
Commissioner more than 30 days after
closing, and interest on monthly MIP
remitted to the Commissioner more than
30 days after the payment date
prescribed in § 206.111(b). However,
FHA now has a web-based loan
servicing system which was not in
existence when this section was initially
promulgated. This system, currently
called HERMIT, reduces the amount of
time needed to remit MIP. Therefore, it
is no longer necessary to have such long
time periods. In paragraph (a) of
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§ 206.113, FHA proposes to reduce the
time period to 5 days for late charges.
In paragraph (b) of § 206.113, FHA
proposes to require the mortgagee to pay
interest on initial MIP remitted to the
Commissioner more than 20 days after
closing, and interest on monthly MIP
remitted to the Commissioner more than
5 days after the date in § 206.111(b).
In paragraph (c) of this section, FHA
proposes to clarify that any interest, in
addition to late charge, owed may not be
added to the outstanding loan balance
and must be paid by the mortgagee.
Insurance of Mortgage (§ 206.115)
FHA proposes to add a new § 206.115
to capture the content of § 203.255. As
mentioned throughout this preamble, to
provide greater clarity, FHA proposes to
restate content from part 203 in FHA’s
part 206 regulations, as applicable to the
HECM program, instead of crossreferencing to part 203 of FHA’s
regulations. Because the Lender
Insurance program is currently
unavailable for the HECM program, the
Lender Insurance requirements of
§ 203.255 will not be included in this
section.
In this section, FHA also proposes to
add content originally from § 203.257
regarding creation of the mortgage
insurance contract in paragraph (f).
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Refunds (§ 206.116)
FHA’s current regulation provides
that no amount of the initial MIP shall
be refundable. However, FHA
recognizes that there are certain
circumstances in which a refund would
be warranted. Therefore, FHA proposes
to provide for exemptions as authorized
by the Commissioner.
Commissioner Authorized To Make
Payments (§ 206.121)
Paragraph (c) of § 206.121 addresses
second mortgages. Subsection
255(i)(2)(C) of the NHA permits FHA to
require a subordinate mortgage from the
borrower at any time in order to secure
repayments of any funds advanced, or to
be advanced to, the borrower.
Throughout part 206, including
§ 206.121(c), FHA proposes to amend its
regulations to permit the Commissioner,
through notice, to require or not require
a subordinate mortgage, which will
align FHA’s policy with the flexibility
provided by the NHA. This flexibility
will allow FHA to make a strategic
decision about the necessity of
subordinate mortgages, given various
market factors and market changes.
The Commissioner has already stated,
through RMSA Mortgagee Letter 2014–
11, which limited the fixed interest rate
product to the Single Lump Sum
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payment option, that the HECM Second
Security Instrument and HECM Second
Note were no longer required for fixed
interest rate HECMs because there is no
longer a risk of the Commissioner
having to pay future advances to the
borrower. At this time, the
Commissioner is not changing the fixed
interest rate HECM subordinate
mortgage policy announced in RMSA
Mortgagee Letter 2014–11. However,
instead of codifying this change, FHA
chooses to maintain the flexibility
provided by subsection 255(i)(2)(C) of
the NHA which allows the
Commissioner to require a subordinate
mortgage from the borrower of fixed or
adjustable interest rate HECMs.
Claim Procedures in General (§ 206.123)
FHA proposes to make changes to this
section that correspond with changes
made to the definitions in § 206.3. In
§ 206.3, FHA proposes to add a new
definition of borrower and amend the
definition of mortgagor, such that a
mortgagor means each original
mortgagor under a mortgage and his
heirs, executors, administrators and
assigns; a borrower means a mortgagor
who is an original borrower under the
Loan Agreement and Note, but not
including a borrower’s successors and
assigns. With these changes, it is no
longer necessary for § 206.123(b) to
provide for an expanded definition of
mortgagor. Therefore, FHA proposes to
amend newly renumbered paragraph
(a)(2)(iii) such that it applies to
borrowers and other permissible parties,
which would include mortgagors as
newly defined in § 206.3, and to remove
and reserve paragraph (b).
Acquisition and Sale of the Property
(§ 206.125)
The regulation at § 206.125(a) sets out
the initial requirements of the mortgagee
when the mortgage becomes due and
payable. Paragraph (a)(1) currently
requires the mortgagee to notify the
Commissioner whenever the mortgage is
due and payable under § 206.27(c)(1) or
(c)(2). FHA proposes to provide more
specificity to the timing of the required
notification. FHA also proposes to make
amendments to this paragraph in
conformity with program changes made
in RMSA Mortgagee Letters 2014–07
and 2015–02 regarding the Deferral
Period. Together, these changes would
require the mortgagee to notify the
Commissioner within 60 days of the
mortgage becoming due and payable
when the conditions stated in the
mortgage, as required by § 206.27(c)(1),
have occurred or when the Deferral
Period ends; the mortgagee is also
required to notify the Commissioner
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within 30 days of one of the conditions
stated in the mortgage, as required by
§ 206.27(c)(2), occurring.
FHA seeks public comment on the
following questions: What is an
appropriate timeframe, and how should
such a timeframe be calculated, when
title to the property insuring the HECM
has been conveyed, since the mortgagee
will not necessarily know that title has
been conveyed or the date conveyance
has occurred?
The current paragraph (a)(2) requires
the mortgagee to provide notification to
the borrower of the due and payable
status, unless the mortgage is due and
payable as a result of the borrower’s
death. FHA proposes to make
conforming amendments to this
paragraph as a result of program
changes made in RMSA Mortgagee
Letters 2014–07 and 2015–02
implementing a Deferral Period for
Eligible Non-Borrowing Spouses, such
that the mortgagee would be required to
notify the borrower, Eligible NonBorrowing Spouse, borrower’s estate
and borrower’s heir(s), as applicable,
within 30 days of the later of notifying
the Commissioner of the due and
payable status or receiving approval, if
needed; the applicable party would
have 30 days to engage in one of the
permissible actions outlined in
paragraph (a)(2) as discussed
immediately below.
FHA proposes to make new changes
to the permissible actions outlined in
paragraph (a)(2), as well as conforming
changes to bring the regulation in line
with policy changes announced in
RMSA Mortgagee Letter 2015–02. First,
FHA proposes to amend paragraph
(a)(2)(i) to include mortgagee advances
as a required item for payment. Second,
in paragraph (a)(2)(ii), which currently
provides that the property may be sold
for at least 95 percent of the appraised
value, FHA proposes to provide more
flexibility to the Commissioner to alter
this percentage. The 95 percent
requirement has proven at times to be
too high, leading to unwanted
foreclosures that possibly could have
been avoided through sale of the
property. This has been particularly true
in recent years. The downturn in the
housing market has resulted in
declining values and an oversupply of
housing stock. The market downturn
highlights the need for flexibility in
establishing the minimum percentage of
the appraised value that FHA will
accept after sale of the property securing
the mortgage loan. To address this
concern, this rule proposes to replace
the 95 percent requirement with
flexibility for the Commissioner to
establish such amount, which shall not
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exceed 95 percent of the appraised
value. FHA also proposes to make
changes in this paragraph which will
limit the amount of money FHA is
paying through the claims process for
closing costs. In conducting its oversight
of the claims process, FHA is aware that
some mortgagees are including
excessive closing costs in their
insurance claims. To stop this from
occurring in the future, FHA proposes to
more closely align HECM’s policy
regarding net proceeds requirements
with those requirements for preforeclosure and Real Estate-Owned
(REO) property policies, by requiring
that the closing costs from the sale not
exceed 11 percent of the sales price. In
paragraph (a)(2)(iv), FHA proposes to
codify the cure provision announced in
RMSA Mortgagee Letter 2015–02, and in
paragraph (a)(2)(vi), FHA proposes to
allow for other actions as permitted by
the Commissioner through notice.
FHA proposes to add paragraph (a)(4)
to codify program changes announced
in RMSA Mortgagee Letters 2014–07
and 2015–02 such that an Eligible NonBorrowing Spouse could correct the
condition which resulted in the Deferral
Period ending and have the mortgage
reinstated in accordance with
§ 206.57(d).
FHA proposes to amend paragraph (b)
to correct an inadvertent drafting error
resulting from an interim rule published
on August 16, 1995. Prior to the
effective date of this interim rule,
§ 206.125(b) provided that when a
HECM became due and payable
(typically upon the borrower’s death),
the property could be appraised at the
borrower’s request and at the borrower’s
expense. Section 206.125(b) also
required the property to be appraised no
later than 15 days before a foreclosure
sale. Since FHA required the mortgagee
to bid the appraised value for HECM
foreclosures, an appraisal was needed
before the foreclosure. The reason the
borrower, or more likely, the borrower’s
estate might also want an appraisal is to
help the estate decide whether to
exercise its option to sell the property
for the lesser of the outstanding loan
balance or appraised value, per
§ 206.125(c). This short sale option is in
FHA’s interest, as it avoids foreclosure,
holding, and sales expenses. However,
to avoid such expenses, the estate
would need to be provided with the
appraised value much earlier than 15
days before the foreclosure sale.
Therefore, FHA published an interim
rule on August 16, 1995, at 60 FR 42754,
stating in the preamble that it was
requiring the mortgagee to appraise the
property within 30 days of the
borrower’s death ‘‘instead’’ of 15 days
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before the foreclosure sale. However, the
actual text of the rule provided for both
the 30-day appraisal and 15-day
appraisal, thereby inadvertently
requiring two appraisals. This proposed
change would correct multi-appraisal
ordering that is costly to the mortgagee
and to FHA by amending paragraph (b)
to instead require the mortgagee to have
the property appraised no later than 30
days after receipt of the request by an
applicable party in connection with a
potential property sale, and when a
foreclosure sale is occurring, the
appraisal must be performed within 30
days of the foreclosure sale.
In paragraph (c), FHA provides greater
clarity around which parties are
permitted to sell the property. FHA
proposes to clarify that when the HECM
is not due and payable, the borrower or
an authorized representative of the
borrower may sell the property for at
least the lesser of the outstanding loan
balance or appraised value; when the
HECM is due and payable, the borrower
or other party with legal right to dispose
of the property may sell the property for
a discounted percentage of appraised
value in accordance with
§ 206.125(a)(2)(ii).
To provide more clarity around the
timing requirements for mortgagees to
initiate foreclosure, FHA proposes to
amend paragraph (d)(1) of this section to
base the six month timeframe within
which a mortgagee must commence
foreclosure off of the due date, as newly
defined in proposed § 206.129(d)(1).
Further, in paragraph (d)(2) of this
section, in order to clarify existing
policy, FHA proposes to add ‘‘city or
municipality’’ after State, such that if
the laws of the State, city or
municipality in which the mortgaged
property is located or Federal
bankruptcy law does not permit
foreclosure within the aforementioned
timeframe, the mortgagee must initiate
foreclosure within six months after the
expiration of the time during which
such foreclosure is prohibited by such
laws. FHA also proposes to amend
paragraph (d)(4) to allow the mortgagee
to bid at a foreclosure sale an amount
at least equal to the sum of the
outstanding loan balance and incurred
expenses, when that amount is less than
the appraised value.
FHA proposes to amend paragraph (f)
to clarify that a party with legal right to
dispose of the property may provide the
mortgagee with a deed in lieu of
foreclosure. This rule also proposes to
require that a deed in lieu of
foreclosure, whether provided by the
borrower or other party with legal right
to dispose of the property, must be
provided within 9 months of the due
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date. FHA did not previously impose a
time period for this requirement, but
limiting this to 9 months is important
because such a timeframe will allow the
borrower or other party with legal right
to dispose of the property 6 months to
attempt to sell the property and an
additional 3 months to obtain a title
search and get the deed signed,
provided that title is clear. In this
section, FHA also proposes to create a
Cash for Keys initiative to incentivize
borrowers to deed the property within 6
months of the due date.
Section 206.125(g) requires a
mortgagee to make diligent efforts to sell
the property within six months from the
date the mortgagee acquired the
property. FHA recognizes that there may
be circumstances in which it is
appropriate to provide more time, and
therefore has reserved the ability to
allow for additional time within which
the mortgagee must sell the property.
Application for Insurance Benefits
(§ 206.127)
When the mortgagee acquires title,
FHA’s current regulation at § 206.127
requires mortgagees to apply for the
payment of insurance benefits within 15
days after the sale of the property by the
mortgagee. If the property is not sold
within six months from the date the
mortgagee acquired title, the mortgagee
must apply for another appraisal within
a specified time period and apply for
insurance benefits within 15 days of
receipt of the new appraisal. When a
party other than the mortgagee acquires
title, FHA’s current regulation at
§ 206.127 requires that the mortgagee
apply for payment of the insurance
benefits within 15 days after the other
party acquires title. It has come to
FHA’s attention that mortgagees have
experienced challenges in meeting these
short time periods. Therefore, in this
rule, FHA proposes to extend these time
periods to 30 days, and where the
mortgagee acquires title, FHA also
proposes to provide flexibility to the
Commissioner to extend the 30-day time
period.
In addition, in § 206.127(a)(2), FHA’s
current regulation requires that
mortgagees bear the cost of the appraisal
where the mortgagee acquires title but
does not sell the property within six
months of acquiring title; however, this
cost has historically been reimbursed
through the claim process. FHA
proposes to clarify that mortgagees are
permitted to add the cost of the
appraisal to the claim amount.
Section 206.127(c) refers to §§ 203.351
and 203.353. To provide greater clarity,
FHA proposes to restate these
requirements in part 206, as applicable
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to the HECM program, instead of crossreferencing to other parts of FHA’s
regulations. These requirements will be
restated, as applicable to the HECM
program, in §§ 206.135(a) and 206.136,
respectively, and cited to in
§ 206.127(c).
Finally, FHA proposes to add a new
paragraph (d) to clarify that mortgagees
may only file an application for
insurance benefits provided the contract
of insurance has not terminated.
Payment of Claim (§ 206.129)
FHA proposes to revise § 206.129(d),
which governs the computation of the
amount of a HECM insurance claim.
This determination is based on the
mortgage ‘‘due date’’, which is the date
the HECM became due and payable.
Paragraph (d), as currently written,
provides that the due date is the date
the mortgagee notified the Secretary of
the borrower’s death under
§ 206.27(c)(1) or the date the Secretary
granted approval to accelerate the loan
under § 206.27(c)(2). These regulations
do not account for the existence of a
Deferral Period, as implemented by
RMSA Mortgagee Letters 2014–07 and
2015–02. Accordingly, FHA proposes to
revise § 206.129(d) in paragraph (d)(1) to
provide that the due date is the date
when the mortgagee notifies or should
have notified the Commissioner that the
mortgage is due and payable under the
conditions stated in § 206.27(c)(1), or
the date that the Deferral Period, as
provided for in the mortgage by
§ 206.27(c)(3), ends; or the date the
Commissioner approves a due and
payable request as provided in the
mortgage by § 206.27(c)(2).
The regulation at § 206.129(d) also
provides for reimbursement to the
mortgagee as part of the mortgage
insurance claim when the mortgagee
advances its corporate funds for the
payment of property charges. The
proposed rule, in general, prospectively
limits insurance claim reimbursement to
a mortgagee for advancement of the
following property charges to two years
of payments for each such charge,
except that the Commissioner may
approve an extension under such
circumstances, terms, and conditions
determined and specified as acceptable
to the Commissioner: Taxes, ground
rents, water rates, and utility charges
that are liens prior to the mortgage;
special assessments, which are noted on
the application for insurance or which
become liens after the insurance of the
mortgage; and hazard insurance
premiums on the mortgaged property.
FHA understands that borrowers may
run into unexpected financial difficulty,
causing their mortgagees to advance
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property charges in order to avoid
declaring the loan due and payable.
However, it is FHA’s position that the
need for property charge advances for a
period greater than two years is a strong
indication that a borrower’s income and
HECM proceeds are insufficient to meet
the borrower’s living expenses and
cover property charges. The new limit
on claims for insurance benefits for
advances of property charges is
intended to address this concern by
encouraging mortgagees and borrowers
to proactively work out mutually
advantageous methods that will enable
payment of property charges by the
borrower or repayment of the property
charges advanced by the mortgagee to
avoid a due and payable status.
However, FHA also recognizes that an
absolute two year limitation may be too
strict in certain circumstances and
potentially cut-off attempts by the
borrower and mortgagee to work out
such solutions due to the deadline.
Accordingly, this proposed rule
authorizes limited exceptions to the two
year period under circumstances
prescribed by the Commissioner, but
does not convey any right to the
borrower to reach a resolution with the
mortgagee.
In addition, § 206.129(d) refers to
various sections in part 203 and
§ 204.322(l). To provide greater clarity,
in § 206.129(d), FHA proposes to restate
the requirements of part 203, as
applicable to the HECM program,
instead of cross-referencing to part 203.
FHA also proposes, however, to
eliminate the reference to § 204.322(l)
altogether because it no longer exists.
Finally, FHA seeks feedback on the
utility of instituting a pro rata interest
and expense curtailment policy as was
recently proposed for FHA’s forward
mortgages in Federal Housing
Administration (FHA): Single Family
Mortgage Insurance Maximum Time
Period for Filing Insurance Claims,
Curtailment of Interest and
Disallowance of Operating Expenses
Incurred Beyond Certain Established
Timeframes (FR–5742–P–01). FHA
specifically asks the follow questions:
(1) Should the HECM program
provide for the pro rata curtailment of
debenture interest and reduction of
expenses incurred as a result of the
mortgagee’s delay in filing the mortgage
insurance claim, and if so, how should
such a policy be structured to ensure
feasible implementation?
(2) What expenses are caused by or
increase as a result of the mortgagee’s
delay in filing a mortgage insurance
claim, and what expenses are not
impacted by such a delay?
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Termination of Insurance Contract
(§ 206.133)
FHA proposes to revise paragraph (b)
to renumber current paragraph (b) as
(b)(1) and to add a new subparagraph (2)
specific to termination of the insurance
contract when a claim for insurance
benefits will be presented.
Paragraph (e) of § 206.133 refers to the
provisions of § 203.295 concerning
voluntary terminations. To provide
greater clarity, FHA proposes to restate
the requirements of § 203.295, as
applicable to the HECM program, in this
section, instead of cross-referencing to a
section in part 203.
In paragraph (f) FHA takes the
opportunity provided by this
rulemaking to clarify that when the
insurance contract is terminated, the
rights of the mortgagee shall also
terminate. The current regulation
unintentionally also references the
rights of the borrower, but the borrower
does not have any rights in regards to
the insurance contract; that contract is
between FHA and the mortgagee. In this
paragraph, FHA also proposes to state
that all obligations of the Commissioner
shall cease immediately upon
termination of the insurance contract,
and such will apply prospectively.
Additional Requirements: §§ 206.134–
206.146
As mentioned numerous times
throughout this preamble, FHA is using
the opportunity provided by this
rulemaking to eliminate confusing
cross-references to other parts of FHA’s
regulations and replace them with
requirements specifically applicable to
the HECM program. This is particularly
true of part 203 references, for which
regulations were written for the FHA
forward mortgage product; the forward
and reverse mortgage programs differ in
many respects. In addition, cross
references were appropriate at the time
when the HECM program was a
demonstration program of only 2,500
loans. This is no longer the case as the
HECM program has been a full-fledged
program for almost 20 years. Therefore,
FHA proposes to add sections 206.134
through 206.146, which convey the
content of a number of part 203
regulations, as applicable to the HECM
program.
FHA proposes to make a few
substantive changes from these part 203
provisions. In § 206.134, which contains
material from § 203.343, FHA proposes
to account for situations in which a
dwelling is rebuilt upon an existing lot.
Currently this section only allows the
mortgagee, with the consent of the
Commissioner, to accept an addition to
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or substitution of security for the
purpose of removing a dwelling to a
new lot, but FHA has encountered
situations in which rebuilding a
dwelling on the same lot is desirable. In
§ 206.135, which contains content from
§ 203.351, FHA proposes to amend the
timing for the recorded assignment
instrument, such that it must be
forwarded to the Commissioner as soon
as it is received by the mortgagee, but
it need not be provided on the date the
application for assignment is submitted.
When the application for assignment is
submitted, only a proposed assignment
instrument would be required. Finally,
in § 206.136, FHA proposes to address
concerns with super lien states by
requiring the HECM mortgage to be in
first lien status prior to homeowners
association and condo association liens.
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Subpart D—Servicing Responsibilities
Providing Information (§ 206.203)
The current regulation at § 206.203(a)
requires that the mortgagee provide the
borrower with an annual statement
summarizing mortgage activity during
the calendar year. FHA has discovered
that this requirement may have the
potential for deferring notification to
borrowers of important actions affecting
their mortgage accounts. Further,
current § 206.203(b) provides that the
mortgagee shall provide the borrower
with a statement of the account every
time the mortgagee makes a line of
credit disbursement. This may have the
potential to impose an undue
administrative burden on mortgagees,
and also to deluge borrowers with
multiple statements if several line of
credit disbursements are requested
within a given month. To alleviate these
concerns, this proposed rule would
revise § 206.203 to require the
mortgagee to provide the borrower with
a single statement at the end of each
month summarizing account activity.
The monthly statement shall be in a
format acceptable to the Commissioner
and contain the information that is
currently required annually under
§ 206.203(a) for the specific month
covered by the statement, as well as for
the calendar year as of the date of the
statement. This rule would therefore
remove the requirements that the
mortgagee provide the borrower with a
statement of account activity every time
it makes a line of credit payment or
recalculates the monthly payments.
The current regulation at § 206.203(c)
requires the mortgagee to provide the
borrower with the name of the
mortgagee’s employee who has been
specifically designated to respond to
HECM loan inquiries. The requirement
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that a specific individual be named has
proven to be impracticable, given the
large number of HECM loans serviced
by mortgagees and the fact that such
inquiries are typically addressed by a
team of employees rather than a single
individual. Therefore, FHA proposes to
require that the borrower be provided
with the telephone number where the
borrower may speak to employee(s)
designated to address inquiries
concerning their HECM loans. The use
of the word ‘‘speak’’ in the regulatory
language is deliberate. Although
mortgagees would no longer be required
to provide the name of a specific
employee, it is important for mortgagees
to ensure that their employees are
tasked with receiving and responding to
calls from HECM borrowers as opposed
to having such calls routed to voicemail
or handled through email.
In addition, because it is necessary for
FHA to have access to information
regarding individual accounts as part of
FHA’s oversight, in § 206.203(c)(3), FHA
proposes to require mortgagees to
respond to FHA requests for information
concerning individual accounts, which
mirrors forward mortgage requirements.
Finally, the regulation at § 206.203(c)
currently provides that the ‘‘forward
mortgage’’ requirements at § 203.508(a)
and (b) pertaining to loan information to
borrowers are also applicable to the
HECM program. As mentioned earlier in
this preamble, in order to provide
greater clarity, FHA proposes to restate
requirements in FHA’s part 206
regulations, as applicable to the HECM
program, instead of cross-referencing to
other parts of FHA’s regulations.
Accordingly, FHA proposes to amend
§ 206.203 to provide the actual
requirements of § 203.508(a) and (b) as
applicable to the HECM program.
Property Charges (§ 206.205)
RMSA Mortgagee Letter 2014–21 27
implemented substantial changes to
FHA’s Property Charge Funding
Requirements in § 206.205 to address
increasing property charge defaults,
which resulted in higher payouts of
insurance claims. RMSA Mortgagee
Letter 2014–21 provided that property
charges are obligations of the borrower
that are defined as taxes, hazard
insurance premiums, any applicable
flood insurance premiums, ground
rents, condominium fees, and any other
special assessments that may be levied
by municipalities or state law.
27 FHA initially implemented changes to HECM’s
Property Charge Funding Requirements in RMSA
Mortgagee Letter 2013–27, but that RMSA
mortgagee letter was superseded by RMSA
Mortgagee Letter 2014–21.
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The current regulation at § 206.205
provided that borrowers were
responsible for the payment of property
charges, but allowed the borrower to
elect to require the mortgagee to pay
certain property charges by withholding
funds from monthly payments due to
the borrower or by charging such funds
to a line of credit. FHA’s new policy,
announced in RMSA Mortgagee Letter
2014–21, however, provided additional
methods for the payment of property
charges, and specified the conditions
under which these methods must or
may be used.
Based on the results of the Financial
Assessment, for fixed or adjustable
interest rate HECMs, the mortgagee may
require a LESA for the payment of
certain property charges. For fixed
interest rate HECMs, if a LESA is
required, it must be a Fully-Funded
LESA. For adjustable interest rate
HECMs only, based on the results of the
Financial Assessment, the mortgagee
may require the LESA to be Partially- or
Fully-Funded. If the mortgagee does not
require a LESA, a borrower who selects
an adjustable interest rate HECM may
elect to have a Fully-Funded LESA,
elect to have the mortgagee pay such
property charges, or elect to be
responsible for the independent
payment of all property charges. If the
mortgagee does not require a LESA, a
borrower with a fixed interest rate
HECM may elect to have a Fully-Funded
LESA or elect to be responsible for the
independent payment of all property
charges.
This rule proposes to amend
§ 206.205 to codify FHA’s property
charge requirements announced in
RMSA Mortgagee Letter 2014–21 with
some exceptions and further
amendments as discussed below.
As mentioned earlier in this preamble
in regards to the definition of ‘‘property
charges,’’ RMSA Mortgagee Letter 2014–
21 did not include utilities in its
definition, but FHA is now proposing to
add utilities as a borrower
responsibility. Corresponding
amendments are proposed for the
definition of ‘‘property charges’’ in
§ 206.3.
RMSA Mortgagee Letter 2014–21
listed specific details about the
information that a mortgagee must
provide to the borrower in the section
titled ‘‘Information to the Mortgagor.’’ In
this rule, FHA does not propose to
codify in FHA’s part 206 regulations the
requirement regarding information to be
provided to borrowers because that
section of RMSA Mortgagee Letter
2014–21 is more appropriately
characterized as guidance.
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Similarly, RMSA Mortgagee Letter
2014–21 listed specific details about
what is to be included in a notice to the
borrower when the borrower fails to
make property charge payments in
sections titled ‘‘Mortgagor Non-Payment
of Property Charges—Fully-Funded Life
Expectancy Set Aside—Adjustable Rate
HECMs’’ and ‘‘Mortgagor Non-Payment
of Property Charges—Partially-Funded
Life Expectancy Set Aside.’’ In this rule,
FHA does not propose to codify in
FHA’s part 206 regulations the
requirements regarding information that
is to be provided to borrowers because
that content is more appropriately
characterized as guidance.
RMSA Mortgagee Letter 2014–21
states that if the insured first mortgage
is assigned to the Commissioner, or if
payments are made through the second
mortgage under the Demand
Assignment process, the Commissioner
is not required to assume the
responsibility for property charge
payments, but may continue to
administer payments for property
charges for borrowers from any funds
available in the LESA. In this rule, FHA
proposes to further provide that for
adjustable interest rate HECMs, if the
LESA has a positive remaining balance
but funds are insufficient to pay all
property charges due or semi-annual
disbursements to the borrower, the
Commissioner may provide the
remaining funds to the borrower as line
of credit.
FHA is also proposing amendments to
§ 206.205 that were not included in
RMSA Mortgagee Letter 2014–21 for
situations in which the borrower is not
required to have a LESA and elects to
pay the property charges himself. The
failure to pay required property charges
not only places the borrower at risk of
foreclosure and loss of the home, and
prompts mortgagees to incur the costs of
advancing its corporate funds, but it
also potentially increases losses to the
MMIF. Specifically, FHA is proposing to
require the mortgagee to notify the
borrower and Commissioner that an
obligation of the mortgage has not been
performed within 30 days of the
mortgagee becoming aware of a missed
property charge payment and there are
no available HECM funds from which
the mortgagee can make the payment.
The borrower would then have 30 days
to respond to the mortgagee to explain
the circumstances which resulted in the
non-payment. FHA also proposes to
state that the mortgagee may provide
any permissible loss mitigation options
to the borrower. If the borrower is
unable or unwilling to repay the
mortgagee for any funds advanced by
the mortgagee to pay property charges
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outside of a LESA, the mortgagee must
submit a due and payable request under
the provisions of § 206.27(c)(2).
Allowable Charges and Fees After
Endorsement (§ 206.207)
In § 206.207(a), FHA’s current
regulation includes references to a
number of regulatory provisions in part
203. To provide greater clarity, FHA
proposes to restate these requirements
in FHA’s part 206 regulations, as
applicable to the HECM program,
instead of cross-referencing to other
parts of FHA’s regulations.
In § 206.207(b), FHA proposes to
clarify that a mortgagee may collect a
servicing charge beginning with the
month of closing and continuing
through a Deferral Period. FHA also
proposes to allow a servicing charge to
be included in the mortgage Note rate,
in an amount set by the Commissioner
through notice which shall be between
36 and 150 basis points.
FHA specifically solicits public
comment on the following questions:
(1) What is an appropriate servicing
fee range (minimum and maximum
dollar amounts) for the flat monthly
servicing fee, and what factors support
the upper and lower bounds of that
range?
(2) What is an appropriate servicing
fee range, in basis points, that could be
included in the Note rate, and what
factors support the upper and lower
bounds of that range?
Prepayment (§ 206.209)
FHA proposes to make clarifying
changes in paragraph (a) to distinguish
from when a borrower repays a
mortgage in full and prepays a mortgage
in part. FHA also proposes to add a new
paragraph (c) to specify that any funds
received from a partial prepayment
must be applied in accordance with the
Note.
Determination of Principal Residence
and Contact Information (§ 206.211)
The current regulation at § 206.211
requires that the mortgagee verify, at
least annually, whether the property is
the principal residence of at least one
borrower. To further facilitate
communications between the mortgagee
and borrower, this proposed rule builds
upon this provision by requiring that
the mortgagee also verify the borrower’s
contact information, including whether
the borrower may voluntarily wish to
designate an alternative point of contact
for notifications from the mortgagee.
In addition, FHA proposes to codify
changes made to the determination of
principal residence and contact
information that were implemented by
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RMSA Mortgagee Letters 2014–07 and
2015–02. Consistent with the
requirements announced in these RMSA
mortgagee letters, FHA proposes to
amend § 206.211 to require the
mortgagee, where an Eligible NonBorrowing Spouse has been identified,
to obtain an additional certification
from the borrower confirming the
Eligible Non-Borrowing Spouse remains
his or her spouse and the Eligible NonBorrowing Spouse continues to reside in
the property as his or her principal
residence. Upon the death of a borrower
with an Eligible Non-Borrowing Spouse,
the Eligible Non-Borrowing Spouse is
required to submit the annual
certification as long as that spouse
remains an Eligible Non-Borrowing
Spouse.
Subpart E—HECM Counselor Roster
HECM Counselor Roster (§§ 206.302,
206.304, 206.306 and 206.308)
FHA proposes to clarify that
counselors, in addition to being listed
on the HECM Counselor Roster, must be
employed by a participating agency.
FHA proposes to define ‘‘participating
agency’’ in § 206.3.
FHA proposes to make minor
amendments to §§ 206.304, 206.306 and
206.308 to differentiate between when a
counselor is a ‘‘housing counselor,’’ and
when a counselor becomes a ‘‘HECM
counselor.’’
In addition, FHA proposes to remove
the grandfathering clause in § 206.304(c)
because the time for which it was
applicable has passed.
3. Technical Amendments
The definition of ‘‘principal limit’’ in
§ 206.3 incorrectly cites to § 209.209(b).
The correct citation is § 206.209(b).
In § 206.9(a), FHA cites to
requirements in section 255(b)(3) of the
NHA, but § 206.9(a) should actually cite
to subsections 255(b)(2) and 255(d)(1) of
the NHA.
In § 206.16, the reference to § 206.17
should be changed to § 206.107.
In § 206.23(d), the third ‘‘mortgagee’’
should be changed to ‘‘mortgage’’.
In § 206.43(b)(1), the reference to
§ 206.29 should be changed to § 206.25,
as § 206.29 has been merged with
§ 206.25.
In § 206.53(b), the references to
paragraphs (c) and (d) should be
changed to (d) and (e), respectively.
In § 206.125(a)(3), ‘‘forclosure’’ is
misspelled and should be changed to
‘‘foreclosure’’ and in § 206.125(c), the
two references to § 206.27(e) should be
changed to § 206.27(d), as paragraph (e)
does not exist.
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‘‘Mortagee’’ in § 206.127(a)(2) should
be changed to ‘‘mortgagee’’ to correct an
inadvertent spelling error.
In § 206.43(a), a reference is made to
24 CFR 3500.7, and in § 206.201(c)(2)(i),
a reference is made to 24 CFR
3500.21(e)(2). However, effective July
21, 2011, title X of the Dodd-Frank Wall
Street Reform and Consumer Protection
Act (Dodd-Frank Act) transferred
rulemaking authority for a number of
consumer financial protection laws from
seven Federal agencies to the Bureau of
Consumer Financial Protection (Bureau)
as of July 21, 2011, including, from
HUD, the Real Estate Settlement
Procedures Act of 1974 (RESPA) which
had previously been implemented in
HUD’s Regulation X, 24 CFR part 3500.
See sections 1061 and 1098 of the DoddFrank Act. In these section, FHA
proposes to cite to 12 CFR 1024.7 and
12 CFR 1024.21(e)(2), respectively,
where these provisions are now
codified.
In current § 206.205(d), which FHA
proposes to redesignate as
§ 206.205(d)(1), the reference to
§ 206.121(a) is incorrect and should be
changed to § 206.121(b).
IV. Questions for Commenters
HUD welcomes comments on all
aspects of the proposal, including the
Regulatory Impact Analysis (RIA)
attached to this proposed rule. In
addition, there are several provisions in
the rule that FHA would like to note for
special consideration and is seeking
public comments.
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A. Maximum Closing Costs Allowed on
Sale of Property
The flexibility provided in this rule to
sell properties for less than the full
appraised value necessitates limits to
the amount of closing costs FHA should
allow to be deducted from sales
proceeds. This rule proposes to require
that the closing costs from the sale be no
more than 11 percent of the sales price.
FHA specifically invites comments
regarding
1. Is 11 percent a reasonable cap?
FHA chose this percentage based on the
policy for sale of its REO inventory,
which allows for payment of 6 percent
sales commission and 5 percent for
other closing costs, but is interested in
comments to indicate whether the
amount should be higher or lower, and
why the commenter believes the
adjustment is appropriate.
2. Should FHA implement a tiered
approach to the maximum percent of
closing costs in relation to the sales
price? For example, should a property
selling for under $100,000 be allowed a
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higher percentage of closing costs than
a property selling for over $100,000?
3. Should FHA implement a tiered
approach to the maximum dollar
amount of closing costs in relation to
the sales price? For example, should a
property selling for under $100,000 be
allowed a different dollar amount than
a property selling for over $100,000?
B. Utilities
FHA proposes to amend the definition
of ‘‘property charges’’ to include
utilities as a borrower obligation under
the terms of the Mortgage that must be
satisfied by the borrower, as applied in
§ 206.205 of the proposed rule. Failure
to pay utilities that result in a lien
against the property would potentially
trigger a due and payable event. FHA
requests comments on this proposal and
the following:
1. What utilities, if any, should be
defined as property charges?
2. When should a utility bill result in
due and payable status?
3. How do mortgagees currently
receive notice of delinquent utility bills
and potential liens on the property?
C. Property Inspection & Repairs
Subsequent to Closing
With the dwelling serving as security
for the loan, it is important that the
dwelling be maintained as the loan ages.
To ensure that the borrower complies
with their obligation under the mortgage
to maintain the property in good repair,
FHA is considering establishing a
requirement in the final rule for
Mortgagees to conduct periodic
inspections of the property for the life
of the HECM and allowing the cost of
inspection to be included as a
reasonable and customary charge that
may be collected and added to the
borrower’s loan balance. If such a
requirement is included in the final rule
and the property requires repairs, FHA
anticipates that where funds are
available from the HECM proceeds for
adjustable interest rate HECMs, it may
allow the mortgagee to establish a
Repair Set Aside to ensure that
necessary repairs are made. FHA would
further anticipate that where a property
inspection during a Deferral Period
identifies necessary repairs, a Repair Set
Aside may not be established. The
Eligible Non-Borrowing Spouse would
be responsible for making any required
repairs identified during a Deferral
Period within a specified timeframe.
FHA specifically invites comment on
the following questions:
1. What is the appropriate frequency
of property inspections, including
whether more or less frequent
inspections may be necessary under
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31793
certain conditions (for example, if a
property is newly constructed, a prior
inspection indicated disrepair, or
following a disaster event), and whether
interior and exterior inspections should
be required at the same frequency?
2. Should inspections consist of
exterior inspections only, or should they
also include interior inspections?
3. Should the borrower be required to
complete the repairs within one year of
the date the property was inspected?
4. When no HECM funds are available
and the borrower or, if applicable,
Eligible Non-Borrowing Spouse, does
not have funds to make the needed
repairs, how else might repairs be
funded?
5. What types or categories of items
for repair should a property inspector
identify as being necessary? In what
ways, if any, should this differ from the
condition status of the property at
origination?
6. What are the methods and
standards the property inspector should
employ when conducting the property
inspection to identify items that are in
need of repair?
7. If a Repair Set Aside was
established to complete repairs
identified during a periodic inspection
and the HECM borrower passes away
prior to the completion of repairs,
should FHA consider allowing funds to
be disbursed from a Repair Set Aside
during a Deferral Period for the purpose
of paying for necessary repairs
identified during the property
inspection?
8. What would be the potential costs
to borrowers and servicers associated
with periodic inspections? What
benefits would result from periodic
inspections and do they outweigh these
costs?
9. As an alternative to the requirement
proposed by this rule, HUD could
require inspections consistent with the
risks presented in each loan, such as the
amount of the outstanding balance in
relation to the value of the property and
the age of the home. Would such an
approach be more effective for both
maintaining the value of the property
and reducing costs for FHA and
borrowers?
D. Non-Borrowing Spouse
Communication
FHA understands that Non-Borrowing
Spouses and successors in interest may
face difficulties after the death of the
borrower in understanding and
exercising their rights with regard to the
mortgage. In addition to the counseling
required for all borrowers, the proposed
rule would require additional housing
counseling for Non-Borrowing Spouses
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to explain how and when the HECM
would become due and payable. FHA
specifically invites comment on the
following questions:
1. What difficulties have NonBorrowing Spouses, heirs, and
successors in interest had in obtaining
information about HECMs and
understanding and exercising their
rights?
2. What adjustments could FHA make
to this rule to address the identified
difficulties and facilitate
communication with Non-Borrowing
Spouses, heirs, and successors in
interest?
E. Regulatory Impact Analysis—Benefits
and Costs
HUD also welcomes comments on all
aspects of the RIA to this proposed rule
and would welcome any additional
information or insight commenters may
have on the benefits and costs of each
provision of the rule. HUD’s full RIA is
available for review and comment at
Regulations.gov.
V. Findings and Certifications
Paperwork Reduction Act
The information collection
requirements contained in this proposed
rule are pending approval by the Office
of Management and Budget (OMB)
under the Paperwork Reduction Act of
1995 (44 U.S.C. 3501–3520) and
assigned OMB Collection Numbers
2502–0524 and 2502–0611. In
accordance with the Paperwork
Reduction Act, an agency may not
conduct or sponsor, and a person is not
required to respond to, a collection of
information unless the collection
displays a currently valid OMB control
number.
The burden of the information
collections in this proposed rule is
estimated as follows:
REPORTING AND RECORDKEEPING BURDEN
Number of responses
per respondent
Estimated average time
for requirement
(in hours)
10
10,000 ...........................
0.17 ...............................
1,700.
10
10,000 ...........................
0.10 ...............................
1,000.
10
10,000 ...........................
0.10 ...............................
1,000.
206.211 NBS Annual Occupancy Certification .....
10
10
10
12,844,433 (automated)
10,000 (manual) ............
24,000 ...........................
0.15 (automated) ..........
1 (manual) .....................
0.33 ...............................
1,926,665 (automated)
10,000 (manual).
7,920.
Totals .............................................................
10
12,908,433 ....................
.......................................
1,948,285.
Number of
respondents
Section reference
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206.59 Mortgagee notifies NBS of the end of the
Deferral Period.
206.125 Mortgagee notifies NBS of D&P status
and applicable options.
206.125 Notification of D&P status to HUD when
Deferral Period ends.
206.203 Information Sharing with HUD ................
In accordance with 5 CFR
1320.8(d)(1), HUD is soliciting
comments from members of the public
and affected agencies concerning this
collection of information to:
(1) Evaluate whether the proposed
collection of information is necessary
for the proper performance of the
functions of the agency, including
whether the information will have
practical utility;
(2) Evaluate the accuracy of the
agency’s estimate of the burden of the
proposed collection of information;
(3) Enhance the quality, utility, and
clarity of the information to be
collected; and
(4) Minimize the burden of the
collection of information on those who
are to respond; including through the
use of appropriate automated collection
techniques or other forms of information
technology, e.g., permitting electronic
submission of responses.
Interested persons are invited to
submit comments regarding the
information collection requirements in
this rule. Comments must refer to the
proposal by name and docket number
(FR–5353) and must be sent to: HUD
Desk Officer, Office of Management and
Budget, New Executive Office Building,
Washington, DC 20503, Fax number:
(202) 395–6947 and Reports Liaison
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Officer, Department of Housing and
Urban Development, 451 Seventh Street
SW., Washington, DC 20410.
Regulatory Review—Executive Orders
12866 and 13563
The Office of Management and Budget
(OMB) reviewed this proposed rule
under Executive Order 12866 (entitled
‘‘Regulatory Planning and Review’’).
OMB determined that this rule was an
economically significant rule under the
order. The docket file is available for
public inspection in the Regulations
Division, Office of General Counsel,
U.S. Department of Housing and Urban
Development, 451 7th Street SW., Room
10276, Washington, DC, 20410–0500.
The Initial Economic Analysis prepared
for this rule is also available for public
inspection in the Regulations Division.
Due to security measures at the HUD
Headquarters building, an advance
appointment to review the public
comments must be scheduled by calling
the Regulations Division at (202) 708–
3055 (this is not a toll-free number).
Individuals with speech or hearing
impairments may access this number
via TTY by calling the Federal Relay
Service at (800) 877–8339.
Executive Order 13563 (Improving
Regulations and Regulatory Review)
directs executive agencies to analyze
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Estimated annual
burden (in hours)
regulations that are ‘‘outmoded,
ineffective, insufficient, or excessively
burdensome, and to modify, streamline,
expand, or repeal them in accordance
with what has been learned. Executive
Order 13563 also directs that, where
relevant, feasible, and consistent with
regulatory objectives, and to the extent
permitted by law, agencies are to
identify and consider regulatory
approaches that reduce burdens and
maintain flexibility and freedom of
choice for the public. This rule reduces
burdens on mortgagees by codifying all
regulatory policy related to the HECM
program in one place. Absent this
proposed rule, mortgagees would have
to deduce the current program
requirements by comparing a number of
mortgagee letters to the current HECM
regulations at 24 CFR part 206 and
determining which regulatory content
has, in effect, been superseded by HERA
and RMSA mortgagee letters.
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
(5 U.S.C. 601 et seq.), generally requires
an agency to conduct a regulatory
flexibility analysis 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
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Federal Register / Vol. 81, No. 97 / Thursday, May 19, 2016 / Proposed Rules
number of small entities. Many of the
policies discussed in this proposed rule,
such as the requirement that mortgagees
perform a Financial Assessment of
prospective HECM borrowers, the
requirements of the HECM for Purchase
program, the introduction of the Single
Lump Sum payment option, and the
limitation on disbursements during the
First 12-Month Disbursement Period,
have already been implemented by
mortgagees large and small. The
codification of these policies will not
impact large or small mortgagees, other
than easing burden by providing them
with one location to find all HECM
regulatory requirements.
The new policy changes proposed by
this rule would address important
concerns with the HECM program,
including the risk the program has, in
the past, posed to the MMIF, as well as
the continued availability of this
program for seniors. Some of the new
policy proposals are expected to relieve
burdens on all mortgagees, large and
small. For example, the amendment to
the definition of ‘‘expected average
mortgage interest rate’’ providing the
mortgagee with the ability to lock-in the
expected average mortgage interest rate
prior to the date of loan closing will
align the provision with current
industry policy. Removing the
duplicative appraisal requirement and
creating a Cash for Keys incentive
structure will both relieve burden on
mortgagees. Other policies are expected
to increase burdens on mortgagees,
although are not expected to raise to the
level of having a significant impact on
a substantial number of small entities.
For example, all mortgagees would be
required to disclose all available HECM
program options. To minimize the effect
of this provision on all mortgagees, FHA
intends to create disclosure documents
listing all available options for
mortgagees to provide to prospective
borrowers. Also, while new lifetime
interest rate caps for monthly adjustable
interest rate HECMs will affect large and
small mortgagees, the impact will be
limited because the industry currently
self-imposes a 10 percent life-of-loan
cap on monthly adjustable interest rate
HECMs. FHA believes that these
policies are reasonable and provide
mitigating features so that the FHAapproved mortgagees, large and small,
will not be adversely affect by these
policies.
Notwithstanding FHA’s determination
that this rule will not have a significant
effect on a substantial number of small
entities, FHA specifically invites
comments regarding any less
burdensome alternatives to this rule that
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will meet HUD’s objectives as described
in the preamble to this rule.
Environmental Impact
A Finding of No Significant Impact
with respect to the environment has
been made in accordance with HUD
regulations in 24 CFR part 50 that
implement section 102(2)(C) of the
National Environmental Policy Act of
1969 (42 U.S.C. 4332(2)(C)). The
Finding is available for public
inspection during regular business
hours in the Regulations Division,
Office of General Counsel, Department
of Housing and Urban Development,
451 7th Street SW., Room 10276,
Washington, DC 20410–0500. Due to
security measures at the HUD
Headquarters building, please schedule
an appointment to review the Finding
by calling the Regulations Division at
(202) 708–3055 (this is not a toll-free
number). Individuals with speech or
hearing impairments may access this
number via TTY by calling the Federal
Relay Service at (800) 877–8339.
Executive Order 13132, Federalism
Executive Order 13132 (entitled
‘‘Federalism’’) prohibits an agency from
publishing any rule that has federalism
implications if the rule imposes either
substantial direct compliance costs on
state and local governments and is not
required by statute, or the rule preempts
state law, unless the agency meets the
consultation and funding requirements
of section 6 of the Executive Order. This
rule would not have federalism
implications and would not impose
substantial direct compliance costs on
state and local governments or preempt
state law within the meaning of the
Executive Order.
Catalog of Federal Domestic Assistance
The Catalog of Federal Domestic
Assistance number for Home Equity
Conversion Mortgages is 14.183.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates
Reform Act of 1995 (2 U.S.C. 1531–
1538) (UMRA) establishes requirements
for federal agencies to assess the effects
of their regulatory actions on state,
local, and tribal governments, and on
the private sector. This rule would not
impose any federal mandates on any
state, local, or tribal governments, or on
the private sector, within the meaning of
the UMRA.
List of Subjects
24 CFR Part 30
Administrative practice and
procedure, Grant programs-housing and
community development, Loan
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31795
programs-housing and community
development, Mortgage insurance,
Penalties.
24 CFR Part 206
Aged condominiums, loan programs,
housing and community development,
mortgage insurance, reporting and
recordkeeping requirements.
Accordingly, for the reasons stated in
the preamble, HUD proposes to amend
24 CFR parts 30 and 206 to read as
follows:
PART 30—CIVIL MONEY PENALTIES:
CERTAIN PROHIBITED CONDUCT
1. The authority citation for part 30
continues to read as follows:
■
Authority: 12 U.S.C. 1701q–1; 1703, 1723i,
1735f–14, and 1735f–15; 15 U.S.C. 1717a; 28
U.S.C. 2461 note; 42 U.S.C. 1437z–1 and
3535(d).
2. Revise paragraphs (a)(8) and (a)(10)
of § 30.35 to read as follows:
■
§ 30.35
Mortgagees and lenders.
(a) * * *
(8) Fails to timely submit documents
that are complete and accurate in
connection with a conveyance of a
property or a claim for insurance
benefits, in accordance with §§ 203.365,
203.366 or 203.368; or a claim for
insurance benefits in accordance with
§ 206.127 of this title.
*
*
*
*
*
(10) Fails to service FHA insured
mortgages, in accordance with the
requirements of 24 CFR parts 201, 203,
206 and 235.
*
*
*
*
*
■ 3. Revise part 206 to read as follows:
PART 206—HOME EQUITY
CONVERSION MORTGAGE
INSURANCE
Subpart A—General
Sec.
206.1 Purpose.
206.3 Definitions.
206.7 Effect of amendments.
206.8 Preemption.
Subpart B—Eligibility; Endorsement
206.9 Eligible mortgagees.
206.13 Disclosure of available HECM
program options.
206.15 Insurance.
Mortgages
206.17 Eligible Mortgages: General.
206.19 Payment options.
206.21 Interest rate.
206.23 Shared appreciation.
206.25 Calculation of disbursements.
206.26 Change in payment option.
206.27 Mortgage provisions.
206.31 Allowable charges and fees.
206.32 No outstanding unpaid obligations.
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Eligible Borrowers
206.33 Age of borrower.
206.34 Limitation on number of mortgages.
206.35 Title of property which is security
for HECM.
206.36 Seasoning requirements for existing
non-HECM liens.
206.37 Credit standing.
206.39 Principal residence.
206.40 Disclosure, verification and
certifications.
206.41 Counseling.
206.43 Information to borrower.
206.44 Monetary investment for HECM for
Purchase program.
Eligible Properties
206.45 Eligible properties.
206.47 Property standards; repair work.
206.51 Eligibility of mortgages involving a
dwelling unit in a condominium.
206.52 Eligible sale of property—HECM for
Purchase.
Refinancing of Existing Home Equity
Conversion Mortgages
206.53 Refinancing a HECM loan.
Deferral of Due and Payable Status
206.55 Deferral of due and payable status
for Eligible Non-Borrowing Spouses.
206.57 Cure provision enabling
reinstatement of Deferral Period.
206.59 Obligations of mortgagee.
206.61 HECM proceeds during a Deferral
Period.
Sale, Assignment and Pledge
206.101 Sale, assignment and pledge of
insured mortgages.
206.102 Insurance Funds.
Authority: 12 U.S.C. 1715b, 1715z–20; 42
U.S.C. 3535(d).
Mortgage Insurance Premiums
206.103 Payment of MIP.
206.105 Amount of MIP.
206.107 Mortgagee election of assignment
or shared premium option.
206.109 Amount of mortgagee share of
premium.
206.111 Due date of MIP.
206.113 Late charge and interest.
206.115 Insurance of mortgage.
206.116 Refunds.
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HUD Responsibility to Borrowers
206.117 General.
206.119 [Reserved]
206.121 Commissioner authorized to make
payments.
Claim Procedure
206.123 Claim procedures in general.
206.125 Acquisition and sale of the
property.
206.127 Application for insurance benefits.
206.129 Payment of claim.
Condominiums
206.131 Contract rights and obligations for
mortgages on individual dwelling units
in a condominium.
Termination of Insurance Contract
206.133 Termination of insurance contract.
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Subpart D—Servicing Responsibilities
206.201 Mortgage servicing generally;
sanctions.
206.203 Providing information.
206.205 Property charges.
206.207 Allowable charges and fees after
endorsement.
206.209 Prepayment.
206.211 Determination of principal
residence and contact information.
Subpart E—HECM Counselor Roster
206.300 General.
206.302 Establishment of the HECM
Counselor Roster.
206.304 Eligibility for placement on the
HECM Counselor Roster.
206.306 Removal from the HECM
Counselor Roster.
206.308 Continuing education requirements
of counselors listed on the HECM
Counselor Roster.
Subpart C—Contract Rights and
Obligations
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Additional Requirements
206.134 Partial release, addition or
substitution of security.
206.135 Application for insurance benefits
and fiscal data.
206.136 Conditions for assignment.
206.137 Effect of noncompliance with
regulations.
206.138 Mortgagee’s liability for certain
expenditures.
206.140 Inspection and preservation of
properties.
206.141 Property condition.
206.142 Adjustment for damage or neglect.
206.143 Certificate of property condition.
206.144 Final payment.
206.145 Items deducted from payment.
206.146 Debenture interest rate.
Subpart A—General
§ 206.1
Purpose.
The purposes of the Home Equity
Conversion Mortgage (HECM) Insurance
program are set out in section 255(a) of
the National Housing Act, Public Law
73–479, 48 STAT. 1246 (12 U.S.C.
1715z–20) (‘‘NHA’’).
§ 206.3
Definitions.
As used in this part, the following
terms shall have the meaning indicated.
Borrower means a mortgagor who is
an original borrower under the HECM
Loan Agreement and Note. The term
does not include successors or assigns
of a borrower.
Borrower’s Advance means the funds
advanced to the borrower at the closing
of a fixed interest rate HECM in
accordance with § 206.25.
CMT Index means the U.S. Constant
Maturity Treasury Index.
Commissioner means the Federal
Housing Commissioner or the
Commissioner’s authorized
representative.
Contract of insurance means the
agreement evidenced by the issuance of
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a Mortgage Insurance Certificate or by
the endorsement of the Commissioner
upon the credit instrument given in
connection with an insured mortgage,
incorporating by reference the
regulations in subpart C of this part and
the applicable provisions of the
National Housing Act.
Day means calendar day, except
where the term business day is used.
Deferral Period means the period of
time following the death of the last
surviving borrower during which the
due and payable status of a HECM is
deferred for an Eligible Non-Borrowing
Spouse provided that the Qualifying
Attributes and all other FHA
requirements continue to be satisfied.
Eligible Non-Borrowing Spouse means
a Non-Borrowing Spouse who meets all
Qualifying Attributes for a Deferral
Period.
Estate planning service firm means an
individual or entity that is not a
mortgagee approved under part 202 of
this chapter or a participating agency
approved under subpart B of 24 CFR
part 214 and that charges a fee that is:
(1) Contingent on the prospective
borrower obtaining a mortgage loan
under this part, except the origination
fee authorized by § 206.31 or a fee
specifically authorized by the
Commissioner; or
(2) For information that borrowers
and Eligible and Ineligible NonBorrowing Spouses, if applicable, must
receive under § 206.41, except a fee by:
(i) A participating agency approved
under subpart B of 24 CFR part 214; or
(ii) An individual or company, such
as an attorney or accountant, in the
bona fide business of generally
providing tax or other legal or financial
advice; or
(3) For other services that the provider
of the services represents are, in whole
or in part, for the purpose of improving
a prospective borrower’s access to
mortgages covered by this part, except
where the fee is for services specifically
authorized by the Commissioner.
Expected average mortgage interest
rate means the interest rate used to
calculate the principal limit established
at closing. For fixed interest rate
HECMs, the expected average mortgage
interest rate is the same as the fixed
mortgage (Note) interest rate and is set
simultaneously with the fixed interest
rate. For adjustable interest rate HECMs,
it is either the sum of the mortgagee’s
margin plus the weekly average yield for
U.S. Treasury securities adjusted to a
constant maturity of 10 years, or it is the
sum of the mortgagee’s margin plus the
10-year LIBOR swap rate, depending on
which interest rate index is chosen by
the borrower. The margin is determined
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by the mortgagee and is defined as the
amount that is added to the index value
to compute the expected average
mortgage interest rate. The index type
(CMT or LIBOR) used to calculate the
expected average mortgage interest rate
must be the same index type used to
calculate mortgage interest rate
adjustments—commingling of index
types is not allowed. The mortgagee’s
margin is the same margin used to
determine the initial interest rate and
the periodic adjustments to the interest
rate. Mortgagees, with the agreement of
the borrower, may simultaneously lockin the expected average mortgage
interest rate and the mortgagee’s margin
prior to the date of loan closing or
simultaneously establish the expected
average mortgage interest rate and the
mortgagee’s margin on the date of loan
closing.
First 12-Month Disbursement Period
means the period beginning on the day
of loan closing and ending on the day
before the loan closing anniversary date.
When the day before the anniversary
date of loan closing falls on a Federallyobserved holiday, Saturday, or Sunday,
the end period will be on the next
business day after the Federallyobserved holiday, Saturday or Sunday.
HECM means a Home Equity
Conversion Mortgage.
HECM counselor means an
independent third-party that is
currently active on FHA’s HECM
Counselor Roster and that is not, either
directly or indirectly, associated with or
compensated by, a party involved in
originating, servicing, or funding the
HECM, or the sale of annuities,
investments, long-term care insurance,
or any other type of financial or
insurance product who provides
statutorily required counseling to
prospective borrowers who may be
eligible for or interested in obtaining an
FHA-insured HECM. This counseling
assists elderly prospective borrowers
who seek to convert equity in their
homes into income that can be used to
pay for home improvements, medical
costs, living expenses, or other
expenses.
Ineligible Non-Borrowing Spouse
means a Non-Borrowing Spouse who
does not meet all Qualifying Attributes
for a Deferral Period.
Initial Disbursement Limit means the
maximum amount of funds that can be
advanced to a borrower of an adjustable
interest rate HECM allowed at loan
closing and during the First 12-Month
Disbursement Period in accordance with
§ 206.25.
Insured mortgage means a mortgage
which has been insured as evidenced by
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the issuance of a Mortgage Insurance
Certificate.
LIBOR means the London Interbank
Offered Rate.
Loan documents mean the credit
instrument, or Note, secured by the lien,
and the loan agreement.
Mandatory Obligations are fees and
charges incurred in connection with the
origination of the HECM that are
requirements for loan approval and
which will be paid at closing or during
the First 12-Month Disbursement Period
in accordance with § 206.25.
Maximum claim amount means the
lesser of the appraised value of the
property, as determined by the appraisal
used in underwriting the loan; the sales
price of the property being purchased
for the sole purpose of being the
principal residence; or the national
mortgage limit for a one-family
residence under subsections 255(g) or
(m) of the National Housing Act (as
adjusted where applicable under section
214 of the National Housing Act) as of
the date of loan closing. The initial
mortgage insurance premium must not
be taken into account in the calculation
of the maximum claim amount. Closing
costs must not be taken into account in
determining appraised value.
MIP means the mortgage insurance
premium paid by the mortgagee to the
Commissioner in consideration of the
contract of insurance.
Mortgage means a first lien on real
estate under the laws of the jurisdiction
where the real estate is located. If the
dwelling unit is in a condominium, the
term mortgage means a first lien
covering a fee interest or eligible
leasehold interest in a one-family unit
in a condominium project, together with
an undivided interest in the common
areas and facilities serving the project,
and such restricted common areas and
facilities as may be designated. The term
refers to a security instrument creating
a lien, whether called a mortgage, deed
of trust, security deed, or another term
used in a particular jurisdiction.
Mortgagee means original lender
under a mortgage and its successors and
assigns, as are approved by the
Commissioner.
Mortgagor means each original
mortgagor under a HECM mortgage and
his heirs, executors, administrators and
assigns.
Non-Borrowing Spouse means the
spouse, as defined by the law of the
state in which the spouse and borrower
reside or the state of celebration, of the
HECM borrower at the time of closing
and who is also not a borrower.
Participating agency means all
housing counseling and intermediary
organizations participating in HUD’s
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31797
Housing Counseling program, including
HUD-approved agencies, and affiliates
and branches of HUD-approved
intermediaries, HUD-approved multistate organizations (MSOs), and state
housing finance agencies.
Principal limit means the maximum
amount calculated, taking into account
the age of the youngest borrower or
Eligible Non-Borrowing Spouse, the
expected average mortgage interest rate,
and the maximum claim amount. The
principal limit is calculated for the first
month that a mortgage could be
outstanding using factors provided by
the Commissioner. It increases each
month thereafter at a rate equal to onetwelfth of the mortgage interest rate in
effect at that time, plus one-twelfth of
the annual mortgage insurance rate. For
an adjustable interest rate HECM, the
principal limit increase may be made
available for the borrower each month
thereafter except that the availability
during the First 12-Month Disbursement
Period may be restricted. Although the
principal limit of a fixed interest rate
HECM will continue to increase at the
rate provided by the Commissioner, no
further funds may be made available for
the borrower to draw against after
closing. The principal limit may
decrease because of insurance or
condemnation proceeds applied to the
outstanding loan balance under
§ 206.209(b).
Principal residence means the
dwelling where the borrower and, if
applicable, Non-Borrowing Spouse,
maintain their permanent place of
abode, and typically spend the majority
of the calendar year. A person may have
only one principal residence at any one
time. The property shall be considered
to be the principal residence of any
borrower who is temporarily in a health
care institution provided the borrower’s
residency in a health care institution
does not exceed twelve consecutive
months. The property shall be
considered to be the principal residence
of any Non-Borrowing Spouse, who is
temporarily in a health care institution,
as long as the property is the principal
residence of his or her borrower spouse,
who physically resides in the property.
During a Deferral Period, the property
shall continue to be considered to be the
principal residence of any NonBorrowing Spouse, who is temporarily
in a health care institution, provided he
or she qualified as an Eligible NonBorrowing Spouse and physically
occupied the property immediately
prior to entering the health care
institution and his or her residency in
a health care institution does not exceed
twelve consecutive months.
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Property charges means, unless
otherwise specified, obligations of the
borrower that include property taxes,
hazard insurance premiums, any
applicable flood insurance premiums,
ground rents, condominium fees,
planned unit development fees,
homeowners association fees, any other
special assessments that may be levied
by municipalities or state law, and
utilities.
Qualifying Attributes means the
requirements which must be met by a
Non-Borrowing Spouse in order to be an
Eligible Non-Borrowing Spouse.
§ 206.7
Effect of amendments.
The regulations in this part may be
amended by the Commissioner at any
time and from time to time, in whole or
in part, but amendments to subparts B
and C of this part will not adversely
affect the interests of a mortgagee on any
mortgage to be insured for which either
the Direct Endorsement mortgagee or
Lender Insurance mortgagee has
approved the borrower and all terms
and conditions of the mortgage, or the
Commissioner has made a commitment
to insure. Such amendments will not
adversely affect the interests of a
borrower in the case of a default by a
mortgagee where the Commissioner
makes payments to the borrower.
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§ 206.8
Preemption.
(a) Lien priority. The full amount
secured by the mortgage shall have the
same priority over any other liens on the
property as if the full amount had been
disbursed on the date the initial
disbursement was made, regardless of
the actual date of any disbursement. The
amount secured by the mortgage shall
include all direct payments by the
mortgagee to the borrower and all other
loan advances permitted by the
mortgage for any purpose, including
loan advances for interest, property
charges, mortgage insurance premiums,
required repairs, servicing charges,
counseling charges and costs of
collection, regardless of when the
payments or loan advances were made.
The priority provided by this section
shall apply notwithstanding any State
constitution, law or regulation.
(b) Second mortgage. If the
Commissioner holds a second mortgage,
it shall have a priority subordinate only
to the first mortgage (and any senior
liens permitted by paragraph (a) of this
section).
(b) HUD approved mortgagees. Any
mortgagee authorized under paragraph
(a) of this section and approved under
part 202 of this chapter, except an
investing mortgagee approved under
§ 202.9 of this chapter, is eligible to
apply for insurance. A mortgagee
approved under §§ 202.6, 202.7, 202.9
or 202.10 of this chapter may purchase,
hold and sell mortgages insured under
this part without additional approval.
§ 206.13 Disclosure of available HECM
program options.
At the time of initial contact, the
mortgagee shall inform the prospective
HECM borrower, in a manner acceptable
to the Commissioner, of all products,
features and options of the HECM
program that FHA will insure under this
part, including: Fixed interest rate
mortgages with the Single Lump Sum
payment option; adjustable interest rate
mortgages with tenure, term, and line of
credit disbursement options, or a
combination of these; any other FHA
insurable disbursement options; and
initial mortgage insurance premium
options, and how those affect the
availability of other mortgage and
disbursement options.
§ 206.15
Eligible Mortgages
Subpart B—Eligibility; Endorsement
§ 206.17
§ 206.9
Eligible mortgagees.
(a) Statutory requirements. See
sections (b)(2) and 255(d)(1) of the NHA.
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Insurance.
Mortgages originated under this part
must be endorsed through the Direct
Endorsement program under § 203.5 of
this chapter, except that any references
to § 203.255 in § 203.5 shall mean
§ 206.115. The mortgagee shall submit
the information as described in
§ 206.115(b) for the Direct Endorsement
program; the certificate of housing
counseling as described in § 206.41; a
copy of the title insurance commitment
satisfactory to the Commissioner (or
other acceptable title evidence if the
Commissioner has determined not to
require title insurance under
§ 206.45(a)); the mortgagee’s election of
either the assignment or shared
premium option under § 206.107; and
any other documentation required by
the Commissioner. If the mortgagee has
complied with the requirements of
§§ 203.3 and 203.5, except that any
reference to § 203.255 in these sections
shall mean § 206.115 for purposes of
this section, and other requirements of
this part, and the mortgage is
determined to be eligible, the
Commissioner will endorse the
mortgage for insurance by issuing a
Mortgage Insurance Certificate.
Eligible Mortgages: General.
(a) [Reserved]
(b) Interest rate and payment options.
A HECM shall provide for either fixed
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or adjustable interest rates in
accordance with § 206.21.
(1) Fixed interest rate mortgages shall
use the Single Lump Sum payment
option (§ 206.19(e)).
(2) Adjustable interest rate mortgages
shall initially provide for the term
(§ 206.19(a)), the tenure (§ 206.19(b)),
the line of credit (§ 206.19(c)), or a
modified term or modified tenure
(§ 206.19(d)) payment option, subject to
a later change in accordance with
§ 206.26.
(c) Shared appreciation. A mortgage
may provide for shared appreciation in
accordance with § 206.23.
§ 206.19
Payment options.
(a) Term payment option. Under the
term payment option, equal monthly
payments are made by the mortgagee to
the borrower for a fixed term of months
chosen by the borrower in accordance
with this section and § 206.25(e), unless
the mortgage is prepaid in full or
becomes due and payable earlier under
§ 206.27(c).
(b) Tenure payment option. Under the
tenure payment option, equal monthly
payments are made by the mortgagee to
the borrower in accordance with this
section and with § 206.25(f) unless the
mortgage is prepaid in full or becomes
due and payable under § 206.27(c).
(c) Line of credit payment option.
Under the line of credit payment option,
payments are made by the mortgagee to
the borrower at times and in amounts
determined by the borrower as long as
the amounts do not exceed the payment
amounts permitted by § 206.25.
(d) Modified term or modified tenure
payment option. Under the modified
term or modified tenure payment
options, equal monthly payments are
made by the mortgagee and the
mortgagee shall set aside a portion of
the principal limit to be drawn down as
a line of credit as long as the amounts
do not exceed the payment amounts
permitted by § 206.25.
(e) Single Lump Sum payment option.
Under the Single Lump Sum payment
option, the Borrower’s Advance will be
made by the mortgagee to the borrower
in an amount that does not exceed the
payment amount permitted in § 206.25.
The Single Lump Sum payment option
will be available only for fixed interest
rate HECMs. Set asides requiring
disbursements after close may be offered
in accordance with paragraphs (f)(1)
through (3) of this section.
(f) Principal limit set asides. (1)
Repair Set Aside. When repairs required
by § 206.47 will be completed after
closing, the mortgagee shall set aside a
portion of the principal limit equal to
150 percent of the Commissioner’s
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estimated cost of repairs, plus the repair
administration fee.
(2) Property Charge Set Aside. (i) Life
Expectancy Set Aside (LESA). When
required by § 206.205(b)(1) or selected
by the borrower under
§ 206.205(b)(2)(ii), the mortgagee shall
set aside a portion of the principal limit,
consistent with the requirements of
§ 206.205, for payment of the following
property charges: Property taxes
including special assessments levied by
municipalities or state law, and flood
and hazard insurance premiums.
(ii) Borrower elects to have mortgagee
pay property charges. (A) First year
property charges. When required by
§ 206.205(d), the mortgagee shall set
aside a portion of the principal limit for
payment of the following property
charges that must be paid during the
First 12-Month Disbursement Period:
Property taxes including special
assessments levied by municipalities or
state law, and flood and hazard
insurance premiums. The mortgagee’s
estimate of withholding amount shall be
based on the best information available
as to probable payments which will be
required to be made for property charges
in the coming year. The mortgagee may
not require the withholding of amounts
in excess of the current estimated total
annual requirement, unless expressly
requested by the borrower. Each
month’s withholding for property
charges shall equal one-twelfth of the
annual amounts as reasonably estimated
by the mortgagee.
(B) Property charges for subsequent
years. For subsequent year property
charges, the mortgagee’s estimate of
withholding amount shall be based on
the best information available as to
probable payments which will be
required to be made for property charges
in the coming year. If actual
disbursements during the preceding
year are used as the basis, the resulting
estimate may deviate from those
disbursements by as much as ten
percent. The mortgagee may not require
the withholding of amounts in excess of
the current estimated total annual
requirement, unless expressly requested
by the borrower. Each month’s
withholding for property charges shall
equal one-twelfth of the annual amounts
as reasonably estimated by the
mortgagee.
(3) Servicing Fee Set Aside. When
servicing charges will be made as
permitted by § 206.207(b), the mortgagee
shall set aside a portion of the principal
limit sufficient to cover charges through
a period equal to the payment term
which would be used to calculate tenure
payments under § 206.25(f).
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(g) Interest accrual and repayment.
The interest charged on the outstanding
loan balance shall begin to accrue from
the funding date and shall be added to
the outstanding loan balance monthly as
provided in the mortgage. Under all
payment options, repayment of the
outstanding loan balance is deferred
until the mortgage becomes due and
payable under § 206.27(c).
(h) Disbursement limits. (1) For all
HECMs, no disbursements shall be
made under any of the payment options,
notwithstanding anything to the
contrary in this section or in § 206.25,
in an amount which shall cause the
outstanding loan balance after the
payment to exceed any maximum
mortgage amount stated in the security
instruments or to otherwise exceed the
amount secured by a first lien.
(2) For adjustable interest rate
HECMs: (i) No disbursements shall be
made under any of the payment options
during the First 12-Month Disbursement
Period in excess of the Initial
Disbursement Limit, unless otherwise
permitted by the Commissioner.
(ii) If the borrower makes a partial
prepayment of the outstanding loan
balance during the First 12-Month
Disbursement Period, the mortgagee
shall apply the funds from the partial
prepayment in accordance with the
Note.
(3) For fixed interest rate HECMs, if
the borrower makes a partial
prepayment of the outstanding loan
balance any time after loan closing and
before the contract of insurance is
terminated, the mortgagee shall apply
the funds from the partial prepayment
in accordance with the Note. Any
increase in the available principal limit
by the amount applied towards the
outstanding loan balance shall not be
available for the borrower to draw
against.
§ 206.21
Interest rate.
(a) Fixed interest rate. A fixed interest
rate is agreed upon by the borrower and
mortgagee.
(b) Adjustable interest rate. An initial
expected average mortgage interest rate,
which defines the mortgagee’s margin,
is agreed upon by the borrower and
mortgagee as of the date of loan closing,
or as of the date of rate lock-in, if the
expected average mortgage interest rate
was locked-in prior to closing. The
interest rate shall be adjusted in one of
two ways depending on the option
selected by the borrower, in accordance
with paragraphs (b)(1) and (b)(2) of this
section. Whenever an interest rate is
adjusted, the new interest rate applies to
the entire loan balance. The difference
between the initial interest rate and the
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index figure applicable when the firm
commitment is issued shall equal the
margin used to determine interest rate
adjustments. If the expected average
mortgage interest rate is locked-in prior
to closing, the difference between the
expected rate and the value of the
appropriate index at the time of rate
lock-in shall equal the margin used to
determine interest rate adjustments.
(1) Annual adjustable interest rate
HECMs. A mortgagee offering an annual
adjustable interest rate shall offer a
mortgage with an interest rate cap
structure that limits the periodic interest
rate increases and decreases as follows:
(i) Types of mortgages insurable. The
types of adjustable interest rate
mortgages that are insurable are those
for which the interest rate may be
adjusted annually by the mortgagee,
beginning after one year from the date
of the closing.
(ii) Interest rate index. Changes in the
interest rate charged on an adjustable
interest rate mortgage must correspond
either to changes in the one-year LIBOR
or to changes in the weekly average
yield on U.S. Treasury securities,
adjusted to a constant maturity of one
year. Except as otherwise provided in
this section, each change in the
mortgage interest rate must correspond
to the upward and downward change in
the index.
(iii) Frequency of interest rate
changes. (A) The interest rate
adjustments must occur annually,
calculated from the date of the closing,
except that the first adjustment shall be
no sooner than 12 months or later than
18 months.
(B) To set the new interest rate, the
mortgagee will determine the change
between the initial (i.e., base) index
figure and the current index figure, or
will add a specific margin to the current
index figure. The initial index figure
shall be the most recent figure available
before the date of mortgage loan
origination. The current index figure
shall be the most recent index figure
available 30 days before the date of each
interest rate adjustment.
(iv) Magnitude of changes. The
adjustable interest rate mortgage initial
contract interest rate shall be agreed
upon by the mortgagee and the
borrower. The first adjustment to the
contract interest rate shall take place in
accordance with the schedule set forth
under paragraph (b)(1)(iii) of this
section. Thereafter, for all annual
adjustable interest rate mortgages, the
adjustment shall be made annually and
shall occur on the anniversary date of
the first adjustment, subject to the
following conditions and limitations:
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(A) For all annual adjustable interest
rate HECMs, no single adjustment to the
interest rate shall result in a change in
either direction of more than one
percentage point from the interest rate
in effect for the period immediately
preceding that adjustment. Index
changes in excess of one percentage
point may not be carried over for
inclusion in an adjustment for a
subsequent year. Adjustments in the
effective rate of interest over the entire
term of the mortgage may not result in
a change in either direction of more
than five percentage points from the
initial contract interest rate.
(B) At each adjustment date for
annual adjustable interest rate HECMs,
changes in the index interest rate,
whether increases or decreases, must be
translated into the adjusted mortgage
interest rate, except that the mortgage
may provide for minimum interest rate
change limitations and for minimum
increments of interest rate changes.
(2) Monthly adjustable interest rate
HECMs. (i) If a mortgage meeting the
requirements of paragraph (b)(1) of this
section is offered, the mortgagee may
also offer a mortgage which provides for
monthly adjustments to the interest rate
such that changes in the interest rate
charged on an adjustable interest rate
mortgage correspond either to changes
in the one-year LIBOR or to changes in
the weekly average yield on U.S.
Treasury securities, adjusted to a
constant maturity of one year (except as
otherwise provided in this section, each
change in the mortgage interest rate
must correspond to the upward and
downward change in the index), or to
the one-month CMT index or one-month
LIBOR index, and which sets a
maximum interest rate that can be
charged.
(ii) Adjustments in the effective rate
of interest over the entire term of the
mortgage may not result in a change in
either direction of more than five
percentage points from the initial
contract interest rate.
(c) Pre-loan disclosure. (1) At the time
the mortgagee provides the borrower
with a loan application, a mortgagee
shall provide a borrower with a written
explanation of all adjustable interest
rate features of a mortgage. The
explanation must include the following
items:
(i) The circumstances under which
the rate may increase;
(ii) Any limitations on the increase;
and
(iii) The effect of an increase.
(2) Compliance with pre-loan
disclosure provisions of 12 CFR part
1026 (Truth in Lending) shall constitute
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full compliance with paragraph (c)(1) of
this section.
(d) Post-loan disclosure. At least 25
days before any adjustment to the
interest rate may occur, the mortgagee
must advise the borrower of the
following:
(1) The current index amount;
(2) The date of publication of the
index; and
(3) The new interest rate.
§ 206.23
Shared appreciation.
(a) Additional interest based on net
appreciated value. Any mortgage for
which the mortgagee has chosen the
shared premium option (§ 206.107) may
provide for shared appreciation. At the
time the mortgage becomes due and
payable or is paid in full, whichever
occurs first, the borrower shall pay an
additional amount of interest equal to a
percentage of any net appreciated value
of the property during the life of the
mortgage. The percentage of net
appreciated value to be paid to the
mortgagee, referred to as the
appreciation margin, shall be no more
than twenty-five percent, subject to an
effective interest rate cap of no more
than twenty percent.
(b) Computation of mortgagee share.
The mortgagee’s share of net
appreciated value is computed as
follows:
(1) If the outstanding loan balance at
the time the mortgagee’s share of net
appreciated value becomes payable is
less than the appraised value of the
property at the time of loan origination,
the mortgagee’s share is calculated by
subtracting the appraised value at the
time of loan origination from the
adjusted sales proceeds (i.e., sales
proceeds less transfer costs and capital
improvement costs incurred by the
borrower, but excluding any liens) and
multiplying by the appreciation margin.
(2) If the outstanding loan balance is
greater than the appraised value at the
time of loan origination but less than the
adjusted proceeds, the mortgagee’s share
is calculated by subtracting the
outstanding loan balance from the
adjusted sales proceeds and multiplying
by the appreciation margin.
(3) If the outstanding loan balance is
greater than the adjusted sales proceeds,
the net appreciated value is zero.
(4) If there has been no sale or transfer
involving satisfaction of the mortgage at
the time the mortgagee’s share of net
appreciated value becomes payable,
sales proceeds for purposes of this
section shall be the appraised value as
determined in accordance with
procedures approved by the
Commissioner.
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(c) Effective interest rate. To
determine the effective interest rate, the
amount of interest which accrued in the
twelve months prior to the sale of the
property or the prepayment is added to
the mortgagee’s share of the net
appreciated value. The sum of the
mortgagee’s share of the net appreciated
value and the interest, when divided by
the sum of the outstanding loan balance
at the beginning of the twelve month
period prior to sale or prepayment plus
the payments to or on behalf of the
borrower (but not including interest) in
the twelve months prior to the sale or
prepayment, shall not exceed an
effective interest rate of twenty percent.
(d) Disclosure. At the time the
mortgagee provides the borrower with a
loan application for a mortgage with
shared appreciation, the mortgagee shall
disclose to the borrower the principal
limit, payments and interest rate which
are applicable to a comparable mortgage
offered by the mortgagee without shared
appreciation.
§ 206.25
Calculation of disbursements.
(a) Initial disbursements— (1) Initial
Disbursement Limit—Adjustable
Interest Rate HECMs: for term, tenure,
line of credit, modified term, and
modified tenure payment options:
(i) The mortgagee is responsible for
determining the maximum Initial
Disbursement Limit.
(ii) The maximum disbursement
allowed at closing and during the First
12-Month Disbursement Period is the
lesser of:
(A) The greater of an amount
established by the Commissioner
through notice which shall not be less
than 50 percent of the principal limit; or
the sum of Mandatory Obligations and
a percentage of the principal limit
established by the Commissioner
through notice which shall not be less
than 10 percent; or
(B) The principal limit less the sum of
the funds in the LESA for payment
beyond the First 12-Month
Disbursement Period and the Servicing
Fee Set Aside.
(iii) The maximum amount in the
First 12-Month Disbursement Period or
at any point in time may not exceed the
principal limit.
(iv) Mortgagees shall monitor and
track all disbursements that occur at
loan closing and during the First 12Month Disbursement Period; the total
amount of disbursements shall not
exceed the maximum Initial
Disbursement Limit, unless otherwise
permitted by § 206.19(h).
(v) The borrower shall notify the
mortgagee at loan closing of the exact
amount of the additional percentage of
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the principal limit beyond Mandatory
Obligations that the borrower will draw
or that will remain available to be
drawn during the First 12-Month
Disbursement Period. The borrower may
not increase or decrease this election
after closing.
(2) Borrower’s Advance—Fixed
Interest Rate HECMs: For the Single
Lump Sum payment option:
(i) The mortgagee is responsible for
determining the maximum Borrower’s
Advance.
(ii) The disbursement shall only be
taken at the time of closing and the
maximum disbursement shall not
exceed the lesser of:
(A) The greater of an amount
established by the Commissioner
through notice which shall not be less
than 50 percent of the principal limit; or
the sum of Mandatory Obligations and
a percentage of the principal limit
established by the Commissioner
through notice which shall not be less
than 10 percent; or
(B) The principal limit less the sum of
the funds in the LESA for payment
beyond the First 12-Month
Disbursement Period and the Servicing
Fee Set Aside.
(iii) The maximum amount in the
First 12-Month Disbursement Period or
at any point in time may not exceed the
principal limit.
(iv) The borrower shall notify the
mortgagee at loan closing of the exact
amount of the additional percentage of
the principal limit beyond Mandatory
Obligations that the borrower will draw.
The borrower may not increase or
decrease this election after closing.
(b) Mandatory Obligations for
traditional and refinance transactions
include:
(1) Initial MIP under § 206.105(a);
(2) Loan origination fee;
(3) HECM counseling fee;
(4) Reasonable and customary
amounts, but not more than the amount
actually paid by the mortgagee for any
of the following items:
(i) Recording fees and recording taxes,
or other charges incident to the
recordation of the insured mortgage;
(ii) Credit report;
(iii) Survey, if required by the
mortgagee or the borrower;
(iv) Title examination;
(v) Mortgagee’s title insurance;
(vi) Fees paid to an appraiser for the
initial appraisal of the property; and
(vii) Flood certifications.
(5) Repair Set Asides;
(6) Repair administration fee;
(7) Delinquent Federal debt;
(8) Amounts required to discharge any
existing liens on the property;
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(9) Customary fees and charges for
warranties, inspections, surveys, and
engineer certifications;
(10) Funds to pay contractors who
performed repairs as a condition of
closing, in accordance with standard
FHA requirements for repairs required
by the appraiser;
(11) Property tax and flood and
hazard insurance payments required by
the mortgagee to be paid at loan closing;
(12) Property charges not included in
paragraph (b)(11) of this section and
which are scheduled for payment
during the First 12-Month Disbursement
Period, as follows:
(i) Adjustable Interest Rate HECMs.
(A) The total amount of property charge
payments scheduled for payment from
the borrower authorized option under
§ 206.205(d) during the First 12-Month
Disbursement Period;
(B) The total amount of semi-annual
disbursements scheduled to be made
during the First 12-Month Disbursement
Period to the borrower from a PartiallyFunded LESA; or
(C) The total amount of property
charges scheduled for payment during
the First 12-Month Disbursement Period
from a Fully-Funded LESA.
(D) Mortgagees shall use the actual
insurance premium and actual tax
amount; if a new tax bill has not been
issued, the mortgagee must use the prior
year’s amount multiplied by 1.04 or an
amount set by the Commissioner
through notice.
(ii) Fixed Interest Rate HECMs. (A)
The total amount of property charges
scheduled for payment during the First
12-Month Disbursement Period from a
Fully-Funded LESA.
(B) Mortgagees shall use the actual
insurance premium and actual tax
amount; if a new tax bill has not been
issued, the mortgagee must use the prior
year’s amount multiplied by 1.04 or an
amount set by the Commissioner
through notice; and
(13) Other charges as authorized by
the Commissioner through notice.
(c) Mandatory Obligations for HECM
for Purchase transactions include:
(1) Initial MIP under § 206.105(a);
(2) Loan origination fee;
(3) HECM counseling fee:
(4) Reasonable and customary
amounts, but not more than the amount
actually paid by the mortgagee for any
of the following items:
(i) Recording fees and recording taxes,
or other charges incident to the
recordation of the insured mortgage;
(ii) Credit report;
(iii) Survey, if required by the
mortgagee or the borrower;
(iv) Title examination;
(v) Mortgagee’s title insurance;
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(vi) Fees paid to an appraiser for the
initial appraisal of the property; and
(vii) Flood certifications.
(5) Delinquent Federal debt;
(6) Fees and charges for real estate
purchase contracts, warranties,
inspections, surveys, and engineer
certifications;
(7) The amount of the principal that
is advanced towards the purchase price
of the subject property;
(8) Property tax and flood and hazard
insurance payments required by the
mortgagee to be paid at loan closing;
(9) Property charges not included in
paragraph (c)(8) of this section and
which are scheduled for payment
during the First 12-Month Disbursement
Period, as follows:
(i) Adjustable Interest Rate HECMs.
(A) The total amount of property charge
payments scheduled for payment from
the borrower authorized option under
§ 206.205(d) during the First 12-Month
Disbursement Period;
(B) The total amount of semi-annual
disbursements scheduled to be made
during the First 12-Month Disbursement
Period to the borrower from a PartiallyFunded LESA; or
(C) The total amount of property
charges scheduled for payment during
the First 12-Month Disbursement Period
from a Fully-Funded LESA.
(D) Mortgagees shall use the actual
insurance premium and actual tax
amount; if a new tax bill has not been
issued, the mortgagee must use the prior
year’s amount multiplied by 1.04 or an
amount set by the Commissioner
through notice.
(ii) Fixed Interest Rate HECMs. (A)
The total amount of property charges
scheduled for payment during the First
12-Month Disbursement Period from a
Fully-Funded LESA.
(B) Mortgagees shall use the actual
insurance premium and actual tax
amount; if a new tax bill has not been
issued, the mortgagee must use the prior
year’s amount multiplied by 1.04 or an
amount set by the Commissioner
through notice; and
(10) Other charges as authorized by
the Commissioner through notice.
(d) Timing of disbursements.
Mortgage proceeds may not be
disbursed until after the expiration of
the 3-day rescission period under 12
CFR part 1026, if applicable.
(e) Monthly disbursements—term
option. (1) Using factors provided by the
Commissioner, the mortgagee shall
calculate the monthly disbursement so
that the sum of paragraphs (e)(1)(i) or
(e)(1)(ii) of this section added to
paragraphs (e)(1)(iii), (e)(1)(iv), and
(e)(1)(v) of this section shall be equal to
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the principal limit at the end of the
payment term.
(i) An initial disbursement under
paragraph (a) of this section plus any
initial servicing charge set aside under
§ 206.19(f)(3); or
(ii) The outstanding loan balance at
the time of a change in payment option
in accordance with § 206.26, plus any
remaining servicing charge set aside
under § 206.19(f)(3); and
(iii) The amount of the principal limit
set aside in accordance with § 206.19(f)
which is not included in amount set
aside in paragraphs (e)(1)(i) or (e)(1)(ii)
of this section;
(iv) All MIP or monthly charges due
to the Commissioner in lieu of mortgage
insurance premiums due through the
payment term; and
(v) All interest through the remainder
of the payment term. The expected
average mortgage interest rate shall be
used for this purpose.
(2) The mortgagee shall make all
monthly disbursements through the
payment term even if the outstanding
loan balance exceeds the principal limit
because the actual average mortgage
interest rate exceeds the expected
average mortgage interest rate unless the
HECM becomes due and payable under
§ 206.27(c). In the event of a deferral of
due and payable status in accordance
with § 206.27(c)(3), disbursements shall
cease immediately upon the death of the
borrower and no further disbursements
are permissible.
(3) Mortgagees shall ensure that term
monthly disbursements made to the
borrower during the First 12-Month
Disbursement Period do not exceed the
Initial Disbursement Limit. If the sum of
disbursements made during the First 12Month Disbursement Period would
exceed the Initial Disbursement Limit
for that time period, the mortgagee shall
decrease the monthly disbursements
during the First 12-Month Disbursement
Period to conform with the Initial
Disbursement Limit; upon conclusion of
the First 12-Month Disbursement
Period, the borrower may request a
payment plan recalculation.
(4) If the borrower makes a partial
prepayment of the outstanding loan
balance during the First 12-Month
Disbursement Period, the mortgagee
shall apply the funds from the partial
prepayment in accordance with the
Note.
(5) If the mortgagee receives
repayment from insurance or
condemnation proceeds after restoration
or repair of the damaged property, the
available principal limit and
outstanding loan balance shall be
reduced by the amount of such
payments.
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(f) Monthly disbursements—tenure
option. (1) Monthly disbursements
under the tenure payment option shall
be calculated as if the number of months
in the payment term equals 100 minus
the lesser of the age of the youngest
borrower or 95, multiplied by 12, but
payments shall continue until the
mortgage becomes due and payable
under § 206.27(c), except that in the
event that payments would exceed any
maximum mortgage amount stated in
the security instrument or would
otherwise exceed the amount secured by
the first lien, in accordance with
§ 206.19(h) payments will cease
immediately; payments may be
reinstated only in the event a new Note
and mortgage are executed in
accordance with § 206.27(b)(10); and in
the event of a deferral of due and
payable status in accordance with
§ 206.27(c)(3) payments will cease
immediately upon the death of the
borrower.
(2) Mortgagees shall ensure that
tenure monthly disbursements made to
the borrower during the First 12-Month
Disbursement Period do not exceed the
Initial Disbursement Limit. If the sum of
disbursements made during the First 12Month Disbursement Period would
exceed the Initial Disbursement Limit
for that time period, the mortgagee shall
decrease the monthly disbursements
during the First 12-Month Disbursement
Period to conform with the maximum
Initial Disbursement Limit; upon
conclusion of the First 12-Month
Disbursement Period, the borrower may
request a payment plan recalculation.
(3) If the borrower makes a partial
prepayment of the outstanding loan
balance during the First 12-Month
Disbursement Period, the mortgagee
shall apply the funds from the partial
prepayment in accordance with the
Note.
(4) If the mortgagee receives
repayment from insurance or
condemnation proceeds after restoration
or repair of the damaged property, the
available principal limit and
outstanding loan balance shall be
reduced by the amount of such
payments.
(g) Line of credit separately or with
monthly disbursements. If the borrower
has a line of credit, separately or
combined with the term or tenure
payment option, the principal limit is
divided into an amount set aside for
servicing charges under § 206.19(f)(3),
an amount equal to the line of credit
(including any portion of the principal
limit set aside for repairs or property
charges under § 206.19(f)(1) or (2)), and
the remaining amount of the principal
limit (if any). The line of credit amount
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increases at the same rate as the total
principal limit increases under § 206.3.
The sum of disbursements made during
the First 12-Month Disbursement Period
shall not exceed the Initial
Disbursement Limit. If a requested
disbursement would exceed the Initial
Disbursement Limit, the mortgagee may
make a partial disbursement to the
borrower for the amount that will not
exceed the limit. Upon the conclusion
of the First 12-Month Disbursement
Period, the borrower may request
subsequent disbursements up to the
available principal limit.
(h) Single Lump Sum payment option.
(1) Under the Single Lump Sum
payment option, the Borrower’s
Advance shall be made by the
mortgagee to the borrower in an amount
that does not exceed the maximum
allowable Borrower’s Advance under
paragraph (a)(2) of this section.
(2) If the borrower makes a partial
prepayment of the outstanding loan
balance any time after loan closing and
before the contract of insurance is
terminated, the mortgagee shall apply
the funds from the partial prepayment
in accordance with the Note.
(i) Payment of MIP and interest. At
the end of each month, including the
first month, interest accrued during that
month shall be added to the outstanding
loan balance. Where the first month is
a partial month, a prorated amount of
interest shall be added. Monthly MIP,
which will accrue from the closing date,
shall be added to the outstanding loan
balance beginning with the first day of
the second month after closing when
paid to the Commissioner.
(j) Mortgagee late charge. The
mortgagee shall pay a late charge to the
borrower for any late disbursement. If
the mortgagee does not mail or
electronically transfer a scheduled
monthly disbursement to the borrower
on the first business day of the month
or make a line of credit disbursement
within 5 business days of the date the
mortgagee received the request, the late
charge shall be 10 percent of the entire
amount that should have been paid to
the borrower for that month or as a
result of that request. In no event shall
the total late charge exceed five hundred
dollars. For each additional day that the
borrower does not receive payment, the
mortgagee shall pay interest at the
mortgage interest rate on the late
payment. Any late charge and interest
shall be paid from the mortgagee’s funds
and shall not be added to the
outstanding loan balance.
(k) No minimum payments. A
mortgagee shall not require, as a
condition of providing a loan secured by
a mortgage insured under this part, that
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§ 206.26
Change in payment option.
(a) General. The payment option may
be changed as provided in this section.
(b) Borrower request for payment plan
change—(1) Adjustable Interest Rate
HECMs. (i) During the First 12-Month
Disbursement Period, no payment plan
change shall cause disbursements to
exceed the Initial Disbursement Limit.
(ii) After the First 12-Month
Disbursement Period, as long as the
outstanding loan balance is less than the
principal limit, a borrower may request
a recalculation of the current payment
option, a change from any payment
option to another available payment
option or a disbursement of any amount
(not to exceed the difference between
the principal limit and the sum of the
outstanding loan balance and any set
asides for repairs, servicing charges or
property charges). A mortgage will
continue to bear interest at an adjustable
interest rate as agreed between the
mortgagee and the borrower at loan
origination. The mortgagee shall
recalculate any future monthly
payments in accordance with § 206.25.
(iii) Fee for change in payment. The
mortgagee may charge a fee, not to
exceed an amount determined by the
Commissioner, whenever there is a
payment plan change or whenever
payments are recalculated.
(iv) Limitations. The Commissioner
may, through notice, establish
limitations on the frequency of payment
plan changes, a minimum notice period
that a borrower must provide in order to
make a request under paragraph
(b)(1)(ii) of this section, or other
limitations on payment plan change
requests by the borrower.
(2) Fixed Interest Rate HECMs.
Borrowers may not request a change in
payment option.
(c) Change due to initial repairs.
When initial repairs after closing under
§ 206.47 are required using a Repair Set
Aside, mortgagees shall comply with the
following:
(1) Adjustable Interest Rate HECMs.
(i) If repairs after closing under § 206.47
are completed without using all of the
funds set aside for repairs, the
mortgagee shall transfer the remaining
amount to a line of credit, modified
term or modified tenure payment option
and inform the borrower of the sum
available to be drawn.
(ii) If repairs after closing under
§ 206.47 cannot be completed with the
funds set aside for repairs, the
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mortgagee may advance additional
funds to complete repairs from an
existing line of credit. If a line of credit
is not sufficient to make the advance or
if no line of credit exists, future monthly
disbursements shall be recalculated for
use as a line of credit in accordance
with § 206.25.
(iii) If repairs are not completed when
required by the mortgage, the mortgagee
shall stop monthly payments and the
mortgage shall convert to the line of
credit payment option. Until the repairs
are completed, the mortgagee shall make
no line of credit disbursements except
as needed to pay for repairs required by
the mortgage.
(2) Fixed Interest Rate HECMs. No
unused set aside funds shall be made
available to the borrower, except that a
borrower may be reimbursed for the cost
of repair materials (not including labor),
in accordance with § 206.47, under
conditions established by the
Commissioner.
§ 206.27
Mortgage provisions.
(a) Form. The mortgage shall be in a
form meeting the requirements of the
Commissioner.
(b) Provisions. The terms of the
mortgage shall contain an explanation of
how payments will be made to the
borrower, how interest will be charged
and when the mortgage will be due and
payable. The mortgage shall include a
provision deferring the due and payable
status that occurs because of the death
of the last surviving borrower for an
Eligible Non-Borrowing Spouse. It shall
also contain provisions designed to
ensure compliance with this part and
provisions on the following additional
matters:
(1) Disbursements by the mortgagee
under the term or tenure payment
options shall be mailed to the borrower
or electronically transferred to an
account of the borrower on the first
business day of each month beginning
with the first month after closing.
Disbursements under the line of credit
payment option shall be mailed to the
borrower or electronically transferred to
an account of the borrower within five
business days after the mortgagee has
received a written request for
disbursement by the borrower. In
accordance with § 206.55, in no event
may disbursements continue during a
Deferral Period.
(2) The borrower shall insure all
improvements on the property that
serves as collateral for the HECM
whether now in existence or
subsequently erected, against any
hazards, casualties, and contingencies,
including but not limited to fire and
flood, for which the mortgagee requires
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insurance. Such insurance shall be
maintained in the amount and for the
period of time that is necessary to
protect the mortgagee’s investment.
Whether or not the mortgagee imposes
a flood insurance requirement, the
borrower shall at a minimum insure all
improvements on the property, whether
now in existence or subsequently
erected, against loss by floods to the
extent required by the Commissioner. If
the mortgagee imposes insurance
requirements, all insurance shall be
carried with companies acceptable to
the mortgagee, and the insurance
policies and any renewals shall be held
by the mortgagee and shall include loss
payable clauses in favor of and in a form
acceptable to the mortgagee.
(3) The borrower shall not participate
in a real estate tax deferral program or
permit any liens to be recorded against
the property, unless such liens are
subordinate to the insured mortgage
and, if applicable, any second mortgage
held by the Commissioner.
(4) A mortgage may be prepaid in full
or in part in accordance with § 206.209.
(5) The borrower must keep the
property in good repair.
(6) The borrower must provide for the
payment of property charges in
accordance with § 206.205.
(7) The payment of monthly MIP may
be added to the outstanding principal
balance.
(8) The borrower shall have no
personal liability for payment of the
outstanding loan balance. The
mortgagee shall enforce the debt only
through sale of the property. The
mortgagee shall not be permitted to
obtain a deficiency judgment against the
borrower if the mortgage is foreclosed.
(9) If the mortgage is assigned to the
Commissioner under § 206.121(b), the
borrower shall not be liable for any
difference between the insurance
benefits paid to the mortgagee and the
outstanding loan balance including
accrued interest, owed by the borrower
at the time of the assignment.
(10) If State law limits the first lien
status of the mortgage as originally
executed and recorded to a maximum
amount of debt or a maximum number
of years, the borrower shall agree to
execute any additional documents
required by the mortgagee and approved
by the Commissioner to extend the first
lien status to an additional amount of
debt and an additional number of years
and to cause any other liens to be
removed or subordinated.
(c) Date the mortgage comes due and
payable. (1) The mortgage shall state
that the outstanding loan balance will
be due and payable in full if a borrower
dies and the property is not the
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principal residence of at least one
surviving borrower, except that the due
and payable status shall be deferred in
accordance with paragraph (c)(3) of this
section if the requirements of the
Deferral Period are met; or if a borrower
conveys all of his or her title in the
property and no other borrower retains
title to the property. For purposes of the
preceding sentence, a borrower retains
title in the property if the borrower
continues to hold title to any part of the
property in fee simple, as a leasehold
interest as set forth in § 206.45(a), or as
a life estate.
(2) The mortgage shall state that the
outstanding loan balance shall be due
and payable in full, upon approval of
the Commissioner, if any of the
following occur:
(i) The property ceases to be the
principal residence of a borrower for
reasons other than death and the
property is not the principal residence
of at least one other borrower;
(ii) For a period of longer than 12
consecutive months, a borrower fails to
occupy the property because of physical
or mental illness and the property is not
the principal residence of at least one
other borrower;
(iii) The borrower does not provide
for the payment of property charges in
accordance with § 206.205; or
(iv) An obligation of the borrower
under the mortgage is not performed.
(3) Deferral of due and payable status.
The mortgage documents shall contain a
provision deferring due and payable
status, called the Deferral Period, for an
Eligible Non-Borrowing Spouse until
the death of the last Eligible NonBorrowing Spouse or the requirements
of the Deferral Period in § 206.55 cease
to be met and have not been cured as
provided for in § 206.57.
(d) Second mortgage to
Commissioner. Unless otherwise
provided by the Commissioner, a
second mortgage to secure any
payments by the Commissioner as
provided in § 206.121(c) must be given
to the Commissioner before a Mortgage
Insurance Certificate is issued for the
mortgage. If the Commissioner does not
require a second mortgage to be given to
the Commissioner prior to the issuance
of a Mortgage Insurance Certificate, the
Commissioner may require a second
mortgage to be given to the
Commissioner at a later day in order to
secure payments by the Commissioner
as provided in § 206.121(c).
charges and fees incurred in connection
with the origination, processing and
closing of the mortgage loan:
(1) Loan Origination Fee. Mortgagees
may charge a loan origination fee and
may use such fee to pay for services
performed by a sponsored third-party
originator. The loan origination fee limit
shall be the greater of $2,500 or two
percent of the maximum claim amount
of $200,000, plus one percent of any
portion of the maximum claim amount
that is greater than $200,000.
Mortgagees may accept a lower
origination fee. Mortgagees may pay fees
for services performed by a sponsored
third-party originator and these fees
may be included as part of the loan
origination fee. The total amount of the
loan origination fee may not exceed
$6,000, except that the Commissioner
may through notice adjust the maximum
limit in accordance with the annual
percentage increase in the Consumer
Price Index of the Bureau of Labor
Statistics of the Department of Labor in
increments of $500 only when the
percentage increase in such index, when
applied to the maximum origination fee,
produces dollar increases that exceed
$500. The loan origination fee may be
fully financed with the mortgage.
(2) Reasonable and customary
amounts. Reasonable and customary
amounts, but not more than the amount
actually paid by the mortgagee, for any
of the following items:
(i) Recording fees and recording taxes,
or other charges incident to the
recordation of the insured mortgage;
(ii) Credit report;
(iii) Survey, if required by the
mortgagee or the borrower;
(iv) Title examination;
(v) Mortgagee’s title insurance;
(vi) Fees paid to an appraiser for the
initial appraisal of the property;
(vii) Flood certifications; and
(viii) Such other charges as may be
authorized by the Commissioner.
(b) Repair administration fee. If the
property requires repairs after closing in
order to meet FHA requirements, the
mortgagee may collect a fee for each
occurrence as compensation for
administrative duties relating to repair
work pursuant to § 206.47(c) and (d),
not to exceed the greater of one and onehalf percent of the amount advanced for
the repairs or fifty dollars. The
mortgagee shall collect the repair fee by
adding it to the outstanding loan
balance.
§ 206.31
§ 206.32 No outstanding unpaid
obligations.
Allowable charges and fees.
(a) Fees at closing. The mortgagee may
collect, either in cash at the time of
closing or through an initial payment
under the mortgage, the following
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In order for a mortgage to be eligible
under this part, a borrower must
establish to the satisfaction of the
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mortgagee that after the initial payment
of loan proceeds under § 206.25(a), there
will be no outstanding or unpaid
obligations incurred by the borrower in
connection with the mortgage
transaction, except for mortgage
servicing charges permitted under
§ 206.207(b) and any future Repair Set
Aside established pursuant to
§ 206.19(f)(1)(ii); and the initial
disbursement will not be used for any
payment to or on behalf of an estate
planning service firm.
Eligible Borrowers
§ 206.33
Age of borrower.
The youngest borrower shall be 62
years of age or older at the time of loan
closing.
§ 206.34 Limitation on number of
mortgages.
(a) Once a borrower has obtained an
insured mortgage under this part, the
borrower is eligible to obtain future
insured HECM loan financing if the
existing HECM is satisfied prior to or at
the closing of the new HECM, or as part
of divorce or annulment of a marriage
the ex-spouse, who had previously
jointly obtained a HECM with their exspouse, presents a final divorce decree
awarding all financial obligation of the
prior HECM to the other ex-spouse, and
has relinquished title as evidenced by a
recorded deed.
(b) Current HECM borrowers that plan
to sell their existing residence and use
the HECM for Purchase program to
obtain a new principal residence must
pay off the existing FHA-insured
mortgage before the HECM for Purchase
mortgage can be insured.
§ 206.35 Title of property which is security
for HECM.
(a) A mortgagor is not required to be
a borrower; however, any borrower is
required to be on title to the property
which serves as collateral for the HECM,
and is therefore, by definition, also a
mortgagor.
(b) The mortgagor shall hold title to
the entire property which is the security
for the mortgage. If there are multiple
mortgagors, all the mortgagors must
collectively hold title to the entire
property which is the security for the
mortgage. If one or more mortgagors
hold a life estate in the property, for
purposes of this section only, the term
‘‘mortgagor’’ shall include each holder
of a future interest in the property
(remainder or reversion) who has
executed the mortgage.
(c) If Non-Borrowing Spouses and
non-borrowing owners of the property
will continue to hold title to the
property which serves as collateral for
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the HECM, such Non-Borrowing
Spouses and non-borrowing owners
must sign the mortgage as mortgagors,
evidencing their commitment of the
property as security for the mortgage.
(d) All Non-Borrowing Spouses and
non-borrowing owners shall sign a
certification that:
(1) Consents to their spouse or other
borrowing owner obtaining the HECM;
(2) Acknowledges the terms and
conditions of the mortgage; and
(3) Acknowledges that the property
will serve as collateral for the HECM as
evidenced by mortgage lien(s).
§ 206.36 Seasoning requirements for
existing non-HECM liens.
(a) The Commissioner may establish,
through notice, seasoning requirements
for existing non-HECM liens. Such
seasoning requirements shall not
prohibit the payoff of existing nonHECM liens using HECM proceeds if the
liens have been in place for longer than
12 months or if the liens have resulted
in cash to the borrower in an amount of
$500 or less, whether at closing or
through cumulative draws prior to the
date of the initial HECM loan
application.
(b) Mortgagees must provide
documentation satisfactory to the
Commissioner as established by notice
that the seasoning requirement was met.
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§ 206.37
Credit standing.
(a) Each borrower shall have a general
credit standing satisfactory to the
Commissioner.
(b) Required Financial Assessment—
(1) Requirement for Financial
Assessment prior to loan approval. Prior
to loan approval, the mortgagee shall
assess the financial capacity of the
borrower to comply with the terms of
the mortgage and evaluate whether the
HECM is a sustainable solution for the
borrower, in accordance with
instructions established by the
Commissioner through notice. The
Financial Assessment shall consider the
borrower’s credit history, cash flow and
residual income, extenuating
circumstances, and compensating
factors.
(i) Credit history. In accordance with
FHA guidelines in existence at the time
of FHA Case Number assignment,
mortgagees shall conduct an in-depth
credit history analysis to determine if
the borrower has demonstrated the
willingness to meet his or her financial
obligations.
(ii) Cash flow and residual income
analysis. In accordance with FHA
guidelines in existence at the time of
FHA Case Number assignment,
mortgagees shall conduct a cash flow
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and residual income analysis to
determine the capacity of the borrower
to meet his or her documented financial
obligations with his or her documented
income.
(iii) Extenuating circumstances.
Where the borrower’s credit history
does not meet the criteria set by the
mortgagee based on FHA guidelines in
existence at the time of FHA Case
Number assignment, mortgagees shall
consider and document, as part of the
Financial Assessment, extenuating
circumstances that led to the credit
issues.
(iv) Compensating factors. The
mortgagee shall document and identify
in the Financial Assessment any
considered compensating factors.
(2) Completion and approval of
Financial Assessment. The Financial
Assessment shall be completed and
approved by a DE Underwriter
registered in HUD’s system of record by
the underwriting mortgagee.
(3) Nondiscrimination. (i) The
Financial Assessment shall be
conducted in a uniform manner that
shall not discriminate because of race,
color, religion, sex, national origin,
familial status, disability, marital status,
actual or perceived sexual orientation,
gender identity, source of income of the
borrower, location of the property, or
because the applicant has in good faith
exercised any right under the Consumer
Credit Protection Act (15 U.S.C. 1601 et
seq.).
(ii) The Financial Assessment shall be
conducted in compliance with all
applicable laws and regulations,
including but not limited to, the
following:
(A) Fair Housing Act (42 U.S.C. 3601
et seq.);
(B) Fair Credit Reporting Act (15
U.S.C. 1681 et seq.);
(C) Equal Credit Opportunity Act (15
U.S.C. 1691 et seq.); and
(D) 12 CFR part 1002.
§ 206.39
Principal residence.
(a) The property must be the principal
residence of each borrower, and if
applicable, Eligible Non-Borrowing
Spouse, at closing.
(b) HECM for Purchase. For HECM for
Purchase transactions, each borrower,
and if applicable, Eligible NonBorrowing Spouse, must occupy the
property within 60 days from the date
of closing.
§ 206.40 Disclosure, verification and
certifications.
(a) Disclosure and certification of
Social Security and Employer
Identification Numbers.
(1) Borrower. The borrower must meet
the requirements for the disclosure and
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31805
verification of Social Security and
Employer Identification Numbers, as
provided by part 200, subpart U, of this
chapter.
(2) Eligible Non-Borrowing Spouse.
The Eligible Non-Borrowing Spouse
shall comply with the requirements for
disclosure and verification of Social
Security and Employer Identification
Numbers by borrowers in paragraph
(a)(1) of this section.
(b) Certifications. Each borrower and
each Non-Borrowing Spouse shall
provide all required certifications to
HUD and the mortgagee, as required by
the Commissioner.
(c) Designation of agent. At the time
of origination, the Commissioner may
require a borrower to designate an agent
or other party to act on his behalf when
FHA is unable to make contact or to
communicate with the borrower. If such
designation is not required by the
Commissioner, and at any time, the
borrower may voluntarily designate
such agent or other person to act on his
behalf.
§ 206.41
Counseling.
(a) List provided. At the time of the
initial contact with the prospective
borrower, the mortgagee shall give the
borrower a list of the names, addresses,
and telephone numbers of HECM
counselors and their employing
agencies, which have been approved by
the Commissioner, in accordance with
subpart E of this part, as qualified and
able to provide the information
described in paragraph (b) of this
section. The borrower, any Eligible or
Ineligible Non-Borrowing Spouse and
any non-borrowing owner must receive
counseling.
(b) Information to be provided. (1) A
HECM counselor must discuss with the
borrower:
(i) The information required by
subsection 255(f) of the NHA;
(ii) Whether the borrower has signed
a contract or agreement with an estate
planning service firm that requires, or
purports to require, the borrower to pay
a fee on or after closing that may exceed
amounts permitted by the
Commissioner or this part;
(iii) If such a contract has been signed
under paragraph (b)(1)(ii) of this section,
the extent to which services under the
contract may not be needed or may be
available at nominal or no cost from
other sources, including the mortgagee;
and
(iv) Any other requirements
determined by the Commissioner.
(2) If the HECM borrower has an
Eligible Non-Borrowing Spouse, in
addition to meeting the requirements of
paragraph (b)(1) of this section, a HECM
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counselor shall discuss with the
borrower and Eligible Non-Borrowing
Spouse:
(i) The requirement that the Eligible
Non-Borrowing Spouse must obtain
ownership of the property or other legal
right to remain in the property for life,
upon the death of the last surviving
borrower;
(ii) A failure to obtain ownership or
other legal right to remain in the
property for life will result in the HECM
becoming due and payable and the
Eligible Non-Borrowing Spouse will not
receive the benefit of the Deferral
Period;
(iii) The requirement that the property
must be the principal residence of the
Eligible Non-Borrowing Spouse prior to
and after the death of the borrowing
spouse;
(iv) The requirement that the Eligible
Non-Borrowing Spouse fulfills all
obligations of the mortgage, including
the payment of property charges and
upkeep of the property; and
(v) Any other requirements
determined by the Commissioner.
(3) If the HECM borrower has an
Ineligible Non-Borrowing Spouse, in
addition to meeting the requirements of
paragraph (b)(1) of this section, a HECM
counselor shall discuss with the
borrower and Ineligible Non-Borrowing
Spouse:
(i) The Deferral Period will not be
applicable;
(ii) The HECM will become due and
payable upon the death of the last
surviving borrower; and
(iii) Any other requirements
determined by the Commissioner.
(c) Certificate. The HECM counselor
will provide the borrower with a
certificate stating that the borrower,
Non-Borrowing Spouse and nonborrowing owner, as applicable, has
received counseling. The HECM
counselor shall upload the certificate to
the appropriate electronic database.
(d) HECM for Purchase. For HECM for
Purchase transactions, prospective
borrowers shall complete the required
HECM counseling prior to signing a
sales contract and/or making an earnest
money deposit, unless a later date is
provided for by the Commissioner.
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§ 206.43
Information to borrower.
(a) Disclosure of costs of obtaining
mortgage. The mortgagee shall ensure
that the borrower has received full
disclosure of all costs of obtaining the
mortgage. The mortgagee shall ask the
borrower about any costs or other
obligations that the borrower has
incurred to obtain the mortgage, as
defined by the Commissioner, in
addition to providing the Good Faith
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Estimate required by 12 CFR 1024.7.
The mortgagee shall clearly state to the
borrower which charges are required to
obtain the mortgage and which are not
required to obtain the mortgage.
(b) Lump sum disbursement. (1) If the
borrower requests that at least 25
percent of the principal limit amount
(after deducting amounts excluded in
the following sentence) be disbursed at
closing to the borrower (or as otherwise
permitted by § 206.25), the mortgagee
must make sufficient inquiry at closing
to confirm that the borrower will not
use any part of the amount disbursed for
payments to or on behalf of an estate
planning service firm, with an
explanation of § 206.32 as necessary or
appropriate.
(2) This paragraph does not apply to
any part of the principal limit used for
the following:
(i) Initial MIP under § 206.105(a) or
fees and charges allowed under
§ 206.31(a) paid by the mortgagee from
mortgage proceeds instead of by the
borrower in cash; and
(ii) Amounts set aside in accordance
with § 206.19(f) for repairs under
§ 206.47, for property charges under
§ 206.205, or for servicing charges under
§ 206.207(b).
§ 206.44 Monetary investment for HECM
for Purchase program.
(a) Monetary investment. At closing,
HECM for Purchase borrowers shall
provide a monetary investment that will
be applied to satisfy the difference
between the principal limit and the sale
price for the property, plus any HECM
loan-related fees that are not financed
into the loan, minus the amount of the
earnest deposit.
(b) Funding sources. To satisfy the
required monetary investment,
borrowers may use:
(1) Cash on hand;
(2) Cash from the sale or liquidation
of the borrower’s assets;
(3) HECM mortgage proceeds; or
(4) Other approved funding sources as
determined by the Commissioner
through notice.
(c) Interested party contributions. (1)
The following interested party
contributions are permissible:
(i) Fees required to be paid by a seller
under state or local law; and
(ii) The purchase of the Home
Warranty policy by the seller.
(2) The Commissioner may define
additional permissible interested party
contributions and impose requirements
for permissible interested party
contributions through a notice for
comment published in the Federal
Register.
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Eligible Properties
§ 206.45
Eligible properties.
(a) Title. A mortgage must be on real
estate held in fee simple; or on a
leasehold that is under a lease with a
duration lasting until the later of: 99
years, if such lease is renewable; or the
actuarial life expectancy of the
mortgagor plus a number of years
specified by the Commissioner, which
shall not be more than 99 years. The
mortgagee shall obtain a title insurance
policy satisfactory to the Commissioner.
If the Commissioner determines that
title insurance for reverse mortgages is
not available for reasonable rates in a
state, then the Commissioner may
specify other acceptable forms of title
evidence in lieu of title insurance.
(b) Type of property. The property
shall include a dwelling designed
principally as a residence for one family
or such additional families as the
Commissioner shall determine. A
condominium unit designed for onefamily occupancy shall also be an
eligible property.
(c) Borrower and mortgagee
requirement for maintaining flood
insurance coverage. (1) If the mortgage
is to cover property improvements
(dwelling and related structures or
equipment essential to the value of the
property and subject to flood damage)
that:
(i) Are located in an area designated
by the Federal Emergency Management
Agency (FEMA) as a floodplain area
having special flood hazards; or
(ii) Are otherwise determined by the
Commissioner to be subject to a flood
hazard, and if flood insurance under the
National Flood Insurance Program
(NFIP) is available with respect to these
property improvements, the borrower
and mortgagee shall be obligated, by a
special condition to be included in the
mortgage commitment, to obtain and to
maintain NFIP flood insurance coverage
on the property improvements during
such time as the mortgage is insured.
(2) No mortgage may be insured that
covers property improvements located
in an area that has been identified by
FEMA as an area having special flood
hazards, unless the community in
which the area is situated is
participating in the NFIP and such
insurance is obtained by the borrower.
Such requirement for flood insurance
shall be effective one year after the date
of notification by FEMA to the chief
executive officer of a flood prone
community that such community has
been identified as having special flood
hazards.
(3) The flood insurance must be
maintained during such time as the
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mortgage is insured in an amount at
least equal to the lowest of the
following:
(i) 100 percent replacement cost of the
insurable value of the improvements,
which consists of the development or
project cost less estimated land cost; or
(ii) The maximum amount of the NFIP
insurance available with respect to the
particular type of the property; or
(iii) The outstanding principal
balance of the loan.
(d) Lead-based paint poisoning
prevention. If the appraiser of a
dwelling constructed prior to 1978 finds
defective paint surfaces, 24 CFR
200.810(d) shall apply unless the
borrower certifies that no child who is
less than six years of age resides or is
expected to reside in the dwelling,
except that any reference to ‘‘mortgagor’’
in 24 CFR 200.810(d) shall mean
‘‘borrower’’ for purposes of this
paragraph.
(e) Restrictions on conveyance. The
property must be freely marketable.
Conveyance of the property may only be
restricted as permitted under this
section, except that a right of first
refusal to purchase a unit in a
condominium project is permitted if the
right is held by the condominium
association for the project.
(1) As used in this section, legal
restrictions on conveyance means any
provision in any legal instrument, law
or regulation applicable to the borrower
or the mortgaged property, including
but not limited to a lease, deed, sales
contract, declaration of covenants,
declaration of condominium, option,
right of first refusal, will, or trust
agreement, that attempts to cause a
conveyance (including a lease) made by
the borrower to:
(i) Be void or voidable by a third
party;
(ii) Be the basis of contractual liability
of the borrower for breach of an
agreement not to convey, including
rights of first refusal, pre-emptive rights
or options related to borrower efforts to
convey;
(iii) Terminate or subject to
termination all or a part of the interest
held by the borrower in the mortgaged
property if a conveyance is attempted;
(iv) Be subject to the consent of a
third party;
(v) Be subject to limits on the amount
of sales proceeds retainable by the
seller; or
(vi) Be grounds for acceleration of the
insured mortgage or increase in the
interest rate.
(2) Policy of free assumability with no
restrictions. A HECM shall not be
eligible for insurance if the property
securing the HECM is subject to legal
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restrictions on conveyance, except as
permitted by this section.
(3) Exception for protective covenants
excluding non-elderly. Mortgaged
property may be subject to protective
covenants which prohibit or restrict
occupancy by, or transfer to, persons
who are not elderly if:
(i) The restrictions do not have an
undue effect on marketability; and
(ii) The restrictions do not constitute
illegal discrimination and are consistent
with the Fair Housing Act and all other
applicable nondiscrimination laws.
(4) Exceptions for specific
jurisdictions. Notwithstanding the
provisions of paragraph (e)(2) of this
section, mortgages insured on property
in the Northern Mariana Islands or
American Samoa shall not be ineligible
for insurance under this section solely
because applicable law does not permit
free alienability of title to all persons.
(f) Location of property. The
mortgaged property shall be located
within the United States, Puerto Rico,
Guam, the Virgin Islands, the
Commonwealth of the Northern Mariana
Islands, and American Samoa. The
mortgaged property, if otherwise
acceptable to the Commissioner, may be
located in any location where the
housing standards meet the
requirements of the Commissioner.
(g) HECM for Purchase. (1) A HECM
for Purchase transaction is where title to
the property is transferred to the HECM
borrower and, at the time of closing, the
HECM first and second liens, if
applicable, will be the only liens against
the property.
(2) Properties are eligible for FHA
insurance under the HECM for Purchase
program when construction is
completed and the property is habitable,
as evidenced by the issuance of a
Certificate of Occupancy or its
equivalent, by the local jurisdiction.
§ 206.47
Property standards; repair work.
(a) Need for repairs. Properties must
meet the applicable property
requirements of the Commissioner in
order to be eligible. Properties that do
not meet the property requirements
must be repaired in order to ensure that
the repaired property will serve as
adequate security for the insured
mortgage.
(b) Assurance that repairs are made.
The mortgage may be closed before the
repair work is completed if the
Commissioner estimates that the cost of
the remaining repair work will not
exceed 15 percent of the maximum
claim amount and the mortgage contains
provisions approved by the
Commissioner concerning payment for
the repairs.
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31807
(c) Reimbursement to contractor.
When repair work is completed after
closing by a contractor, the mortgagee
shall cause one or more inspections of
the property to be made by an inspector
or other qualified individual acceptable
to the Commissioner in order to ensure
that the repair work is satisfactory, and
prior to the release of funds from the
Repair Set Aside. The mortgagee shall
hold back a portion of the contract price
attributable to the work done before
each interim release of funds, and the
total of the hold backs will be released
after the final inspection and approval
of the release by the mortgagee. The
mortgagee shall ensure that all
mechanics’ and materialmen’s liens are
released of record.
(d) Reimbursement to borrower. The
mortgagee shall not reimburse the
borrower for any labor the borrower
performed. The mortgagee may
reimburse the borrower for the actual
cost of repair materials from the Repair
Set Aside, provided that the mortgagee
causes one or more inspections of the
property by an inspector or other
qualified individual acceptable to the
Commissioner and meets all
reimbursement requirements
established by the Commissioner.
(e) HECM for Purchase. For HECM for
Purchase transactions, where major
property deficiencies threaten the health
and safety of the homeowner or
jeopardize the soundness and security
of the property, all repairs must be
completed by the seller prior to closing.
Appraisers shall complete the appraisal
report as ‘‘Subject To’’ the completion of
the repairs.
§ 206.51 Eligibility of mortgages involving
a dwelling unit in a condominium.
If the mortgage involves a dwelling
unit in a condominium, the project in
which the unit is located shall have
been committed to a plan of
condominium ownership by deed, or
other recorded instrument, that is
acceptable to the Commissioner.
§ 206.52 Eligible sale of property–HECM
for Purchase.
(a) Sale by owner of record— (1)
Owner of record requirement. To be
eligible for a mortgage insured by FHA,
the property must be purchased from
the owner of record and the transaction
may not involve any sale or assignment
of the sales contract.
(2) Supporting documentation. The
mortgagee shall obtain documentation
verifying that the seller is the owner of
record and must submit this
documentation to FHA as part of the
application for mortgage insurance, in
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accordance with §§ 206.15 and
206.115(b)(9).
(b) Time restrictions on re-sales. (1)
General. The eligibility of a property for
a mortgage insured by FHA is
dependent on the time that has elapsed
between the date the seller acquired the
property (based upon the date of
settlement) and the date of execution of
the sales contract that will result in the
FHA mortgage insurance (the re-sale
date). The mortgagee shall obtain
documentation verifying compliance
with the time restrictions described in
this paragraph and must submit this
documentation to FHA as part of the
application for mortgage insurance, in
accordance with § 206.115(b).
(2) Re-sales occurring 90 days or less
following acquisition. If the re-sale date
is 90 days or less following the date of
acquisition by the seller, the property is
not eligible for a mortgage to be insured
by FHA.
(3) Re-sales occurring between 91
days and 180 days following
acquisition. (i) If the re-sale date is
between 91 days and 180 days following
acquisition by the seller, the property is
generally eligible for a mortgage insured
by FHA.
(ii) However, FHA will require that
the mortgagee obtain additional
documentation if the re-sale price is 100
percent over the purchase price. Such
documentation must include an
appraisal from another appraiser. The
mortgagee may also document its loan
file to support the increased value by
establishing that the increased value
results from the rehabilitation of the
property.
(iii) FHA may revise the level at
which additional documentation is
required under paragraph (b)(3) of this
section at 50 to 150 percent over the
original purchase price. FHA will revise
this level by Federal Register notice
with a 30 day delayed effective date.
(4) Authority to address property
flipping for re-sales occurring between
91 days and 12 months following
acquisition. (i) If the re-sale date is more
than 90 days after the date of acquisition
by the seller, but before the end of the
twelfth month after the date of
acquisition, the property is eligible for
a mortgage to be insured by FHA.
(ii) However, FHA may require that
the mortgagee provide additional
documentation to support the re-sale
value of the property if the re-sale price
is 5 percent or greater than the lowest
sales price of the property during the
preceding 12 months (as evidenced by
the contract of sale). At FHA’s
discretion, such documentation must
include, but is not limited to, an
appraisal from another appraiser. FHA
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may exclude re-sales of less than a
specific dollar amount from the
additional value documentation
requirements.
(iii) If the additional value
documentation supports a value of the
property that is more than 5 percent
lower than the value supported by the
first appraisal, the lower value will be
used to calculate the maximum claim
amount. Otherwise, the value supported
by the first appraisal will be used to
calculate the maximum claim amount.
(iv) FHA will announce its
determination to require additional
value documentation through issuance
of a Federal Register notice. The
requirement for additional value
documentation may be established
either on a nationwide or regional basis.
Further, the Federal Register notice will
specify the percentage increase in the
re-sale price that will trigger the need
for additional documentation, and will
specify the acceptable types of
documentation. The Federal Register
notice may also exclude re-sales of less
than a specific dollar amount from the
additional value documentation
requirements. Any such Federal
Register notice, and any subsequent
revisions, will be issued at least thirty
days before taking effect.
(v) The level at which additional
documentation is required under
paragraph (b)(4) of this section shall
supersede that under paragraph (b)(3) of
this section.
(5) Re-sales occurring more than 12
months following acquisition. If the resale date is more than 12 months
following the date of acquisition by the
seller, the property is eligible for a
mortgage insured by FHA.
(c) Exceptions to the time restrictions
on sales. The time restrictions on sales
described in paragraph (b) of this
section do not apply to:
(1) Sales by HUD of Real EstateOwned (REO) properties under 24 CFR
part 291 and of single family assets in
revitalization areas pursuant to section
204 of the NHA (12 U.S.C. 1710);
(2) Sales by another agency of the
United States Government of REO single
family properties pursuant to programs
operated by these agencies;
(3) Sales of properties by nonprofit
organizations approved to purchase
HUD REO single family properties at a
discount with resale restrictions;
(4) Sales of properties that were
acquired by the sellers by inheritance;
(5) Sales of properties purchased by
an employer or relocation agency in
connection with the relocation of an
employee;
(6) Sales of properties by state- and
federally-chartered financial institutions
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and government-sponsored enterprises
(GSEs);
(7) Sales of properties by local and
state government agencies; and
(8) Only upon announcement by FHA
through issuance of a notice, sales of
properties located in areas designated
by the President as federal disaster
areas. The notice will specify how long
the exception will be in effect.
(d) Sanctions and indemnification.
Failure of a mortgagee to comply with
the requirements of this section may
result in HUD requesting
indemnification of the mortgage loan, or
seeking other appropriate remedies
under 24 CFR part 25.
Refinancing of Existing Home Equity
Conversion Mortgages
§ 206.53
Refinancing a HECM loan.
(a) General. Except as otherwise
provided in this section, all
requirements applicable to the
insurance of HECMs under this part
apply to the insurance of refinanced
HECMs. FHA may, upon application by
a mortgagee, insure any mortgage given
to refinance an existing HECM insured
under this part, including loans
assigned to the Commissioner as
described in § 206.107(a)(1) and
§ 206.121(b) of this part.
(b) Definition of ‘‘total cost of the
refinancing’’. For purposes of
paragraphs (d) and (e) of this section,
the term ‘‘total cost of the refinancing’’
means the sum of the allowable charges
and fees permitted under § 206.31 and
the initial MIP described in § 206.105(a)
and paragraph (c) of this section.
(c) Initial MIP limit. (1) The initial
MIP paid by the mortgagee pursuant to
§ 206.105(a) shall not exceed the
difference between: Three percent of the
increase in the maximum claim amount
for the new HECM, minus the amount
of the initial MIP already charged and
paid by the borrower for the existing
HECM that is being refinanced. No
refunds will be given if the initial MIP
paid on the existing HECM exceeds the
initial MIP due on the new HECM.
(2) The HECM refinance authority is
only applicable when the property that
serves as collateral for the FHA-insured
mortgage remains the same.
(3) Existing HECM borrowers
refinancing an existing HECM are
eligible for a MIP reduction under the
conditions of this section, but existing
HECM borrowers who participate in a
HECM for Purchase transaction are
ineligible for a reduction in the initial
MIP.
(d) Anti-churning disclosure— (1)
Contents of anti-churning disclosure. In
addition to providing the required
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disclosures under § 206.43, the
mortgagee shall provide to the borrower
its best estimate of:
(i) The total cost of the refinancing to
the borrower; and
(ii) The increase in the borrower’s
principal limit as measured by the
estimated initial principal limit on the
mortgage to be insured less the current
principal limit on the HECM that is
being refinanced under this section.
(2) Timing of anti-churning
disclosure. The mortgagee shall provide
the anti-churning disclosure
concurrently with the disclosures
required under § 206.43.
(e) Waiver of counseling requirement.
The borrower and any Non-Borrowing
Spouse may elect not to receive
counseling under § 206.41, but only if:
(1) The original HECM was assigned
a Case Number on or after August 4,
2014, and the borrower and NonBorrowing Spouse, if applicable,
received counseling required under
§ 206.41; or where the original HECM
was assigned a Case Number prior to
August 4, 2014, and there is no
applicable Non-Borrowing Spouse.
(2) The borrower has received the
anti-churning disclosure required under
paragraph (d) of this section.
(3) The increase in the borrower’s
principal limit (as provided in the antichurning disclosure) exceeds the total
cost of the refinancing by an amount
established by the Commissioner
through Federal Register notice. FHA
may periodically update this amount
through publication of a notice in the
Federal Register. Publication of any
such revised amount will occur at least
30 days before the revision becomes
effective.
(4) The time between the date of the
closing on the original HECM and the
date of the application for refinancing
under this section does not exceed five
years (even if less than five years have
passed since a previous refinancing
under this section).
Deferral of Due and Payable Status
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§ 206.55 Deferral of due and payable
status for Eligible Non-Borrowing Spouses.
(a) Deferral Period. If the last
surviving borrower predeceases an
Eligible Non-Borrowing Spouse, and if
the requirements of paragraph (d) of this
section are satisfied, the due and
payable status will be deferred for as
long as the Eligible Non-Borrowing
Spouse continues to meet the Qualifying
Attributes in paragraph (c) of this
section and the requirements of
paragraphs (d) and (e).
(b) End of Deferral Period. (1) If a
Deferral Period ceases or becomes
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unavailable because a Non-Borrowing
Spouse no longer satisfies the
Qualifying Attributes and has become
an Ineligible Non-Borrowing Spouse, a
mortgagee may not provide an
opportunity to cure the default, and the
HECM will become immediately due
and payable as a result of the death of
the last surviving borrower.
(2) If a Deferral Period ceases but the
Eligible Non-Borrowing Spouse
continues to meet the Qualifying
Attributes, the mortgagee must provide
an Eligible Non-Borrowing Spouse with
30 days to cure the default, in
accordance with § 206.57.
(c) Qualifying Attributes. (1) In order
to qualify as an Eligible Non-Borrowing
Spouse, the Non-Borrowing Spouse
must:
(i) Have been the spouse of a HECM
borrower at the time of loan closing and
remained the spouse of such HECM
borrower for the duration of the HECM
borrower’s lifetime;
(ii) Have been properly disclosed to
the mortgagee at origination and
specifically named as an Eligible NonBorrowing Spouse in the HECM
mortgage and loan documents;
(iii) Have occupied, and continue to
occupy, the property securing the
HECM as his or her principal residence;
and
(iv) Meet any other requirements as
the Commissioner may prescribe by
Federal Register notice for comment.
(2) A Non-Borrowing Spouse who
meets the Qualifying Attributes in
paragraph (c)(1) of this section at
origination is an Eligible Non-Borrowing
Spouse and may not elect to be
ineligible for the Deferral Period. A
Non-Borrowing Spouse that is ineligible
for the Deferral Period at the time of
loan origination because he or she failed
to satisfy the Qualifying Attributes
requirements in paragraph (c)(1) of this
section is not subsequently eligible for
a Deferral Period when the borrowing
spouse dies or moves out of the home.
(3) An Eligible Non-Borrowing Spouse
shall become an Ineligible NonBorrowing Spouse should any of the
Qualifying Attributes requirements in
paragraph (c)(1) of this section cease to
be met.
(d) Additional requirements for
Deferral Period. An Eligible NonBorrowing Spouse must satisfy and
continue to satisfy the following
requirements:
(1) Within 90 days from the death of
the last surviving HECM borrower,
establish legal ownership or other
ongoing legal right to remain for life in
the property securing the HECM;
(2) After the death of the last
surviving borrower, ensure all other
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31809
obligations of the HECM borrower(s)
contained in the loan documents
continue to be satisfied; and
(3) After the death of the last
surviving borrower, ensure that the
HECM does not become eligible to be
called due and payable for any other
reason.
(e) Unaffected terms of HECM. All
applicable terms and conditions of the
mortgage and loan documents, and all
FHA requirements, continue to apply
and must be satisfied.
(f) Nothing in this section may be
construed as interrupting or interfering
with the ability of the borrower’s estate
or heir(s) to dispose of the property if
they are otherwise legally entitled to do
so.
§ 206.57 Cure provision enabling
reinstatement of Deferral Period.
(a) When the mortgagee is required by
§ 206.55(b)(2) to provide an Eligible
Non-Borrowing Spouse with 30 days to
cure the default, this section shall
apply.
(b) If the default is cured within the
30-day timeframe, the Deferral Period
shall be reinstated, unless:
(1) The mortgagee has reinstated the
Deferral Period within the past two
years immediately preceding the current
notification to the Eligible NonBorrowing Spouse that the mortgage is
due and payable;
(2) The reinstatement of the Deferral
Period will preclude foreclosure if the
mortgage becomes due and payable at a
later date; or
(3) The reinstatement of the Deferral
Period will adversely affect the priority
of the mortgage lien.
(c) If the default is not cured within
the 30-day timeframe, the mortgagee
shall proceed in accordance with the
established timeframes to initiate
foreclosure and reasonable diligence in
prosecuting foreclosure.
(d) Even after a foreclosure
proceeding has been initiated, the
mortgagee shall permit an Eligible NonBorrowing Spouse to cure the condition
which resulted in the Deferral Period
ceasing, consistent with § 206.55(b)(2),
and to reinstate the mortgage and
Deferral Period, and the mortgage
insurance shall continue in effect. The
mortgagee may require the Eligible NonBorrowing Spouse to pay any costs that
the mortgagee incurred to reinstate the
mortgage, including foreclosure costs
and reasonable attorney’s fees. Such
costs may not be added to the
outstanding loan balance and shall be
paid from some other source of funds.
The mortgagee shall reinstate the
Deferral Period unless:
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(1) The mortgagee has reinstated the
Deferral Period within the past two
years immediately preceding the latest
notification to the Eligible NonBorrowing Spouse that the mortgage is
due and payable;
(2) The reinstatement of the Deferral
Period will preclude foreclosure if the
mortgage becomes due and payable at a
later date; or
(3) The reinstatement of the Deferral
Period will adversely affect the priority
of the mortgage lien.
mstockstill on DSK3G9T082PROD with PROPOSALS3
§ 206.59
Obligations of mortgagee.
(a) Certifications and disclosures at
closing. At closing, the mortgagee shall
obtain the appropriate certification from
each borrower identified as married as
well as from each identified NonBorrowing Spouse. When a HECM
borrower has identified an Ineligible
Non-Borrowing Spouse, the mortgagee
shall also disclose the amount of
mortgage proceeds that would have
been available under the HECM if he or
she were an Eligible Non-Borrowing
Spouse.
(b) Divorce. In the event of a divorce
between the HECM borrower and
Eligible Non-Borrowing Spouse, a
mortgagee shall obtain a copy of the
final divorce decree and shall not
require the now Ineligible NonBorrowing Spouse to fulfill any further
requirements.
(c) Death of borrower. Within 30 days
of being notified of the death of the
borrower, the mortgagee shall:
(1) Obtain all certifications, as
required by the Commissioner, from the
Eligible Non-Borrowing Spouse, and
continue to obtain the required
certifications no less than annually
thereafter for the duration of the
Deferral Period; and
(2) Notify any Eligible Non-Borrowing
Spouse that the due and payable status
of the loan is in a Deferral Period only
for the amount of time that such Eligible
Non-Borrowing Spouse continues to
meet all requirements established by the
Commissioner.
(d) Non-compliance with
requirements. If the Eligible NonBorrowing Spouse ceases to meet any
requirements established by the
Commissioner, the mortgagee shall
notify the Eligible Non-Borrowing
Spouse within 30 days that the Deferral
Period has ended and the HECM is
immediately due and payable, unless
the Deferral Period is reinstated in
accordance with § 206.57. The
mortgagee shall obtain documentation
validating the reason for the cessation of
the Deferral Period and, if applicable,
the reason for reinstatement of the
Deferral Period.
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§ 206.61
Period.
HECM proceeds during a Deferral
(a) The HECM is not assumable.
HECM proceeds may not be disbursed to
any party during a Deferral Period,
except as determined by the
Commissioner through notice.
(b) If a Repair Set Aside was
established as a condition of the HECM,
funds may be disbursed from the Repair
Set Aside during a Deferral Period for
the sole purpose of paying the cost of
those repairs that were specifically
identified prior to origination as
necessary to the insurance of the HECM.
Repairs under this paragraph shall only
be paid for using funds from the Repair
Set Aside if the repairs are satisfactorily
completed during the time period
established in the Repair Rider or such
additional time as provided by the
Commissioner. Unused funds remaining
beyond the established time period shall
not be disbursed.
Subpart C—Contract Rights and
Obligations
Sale, Assignment and Pledge
§ 206.101 Sale, assignment and pledge of
insured mortgages.
(a) Sale of interests in insured
mortgages. No mortgagee may sell or
otherwise dispose of any mortgage
insured under this part, or group of
mortgages insured under this part, or
any partial interest in such mortgage or
mortgages by means of any agreement,
arrangement or device except pursuant
to this subpart.
(b) Sale of insured mortgage to
approved mortgagee. A mortgage
insured under this part may be sold to
another approved mortgagee. The seller
shall notify the Commissioner of the
sale within 15 calendar days, on a form
prescribed by the Commissioner and
acknowledged by the buyer.
(c) Effect of sale of insured mortgage.
When a mortgage insured under this
part is sold to another approved
mortgagee, the buyer shall thereupon
succeed to all the rights and become
bound by all the obligations of the seller
under the contract of insurance and the
seller shall be released from its
obligations under the contract, provided
that the seller shall not be relieved of its
obligation to pay mortgage insurance
premiums until the notice required by
§ 206.101(b) is received by the
Commissioner.
(d) Assignments, pledges and
transfers by approved mortgagee. (1) An
assignment, pledge, or transfer of a
mortgage or group of mortgages insured
under this part, not constituting a final
sale, may be made by an approved
mortgagee to another approved
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mortgagee provided the following
requirements are met:
(i) The assignor, pledgor or transferor
shall remain the mortgagee of record.
(ii) The Commissioner shall have no
obligation to recognize or deal with any
party other than the mortgagee of record
with respect to the rights, benefits and
obligations of the mortgagee under the
contract of insurance.
(2) An assignment or transfer of an
insured mortgage or group of insured
mortgages may be made by an approved
mortgagee to other than an approved
mortgagee provided the requirements
under paragraphs (d)(1)(i) and (d)(1)(ii)
of this section are met and the following
additional requirements are met:
(i) The assignee or transferee shall be
a corporation, trust or organization
(including but not limited to any
pension trust or profit-sharing plan)
which certifies to the approved
mortgagee that:
(A) It has assets of $100,000 or more;
and
(B) It has lawful authority to hold an
insured mortgage or group of insured
mortgages.
(ii) The assignment or transfer shall be
made pursuant to an agreement under
which the transferor or assignor is
obligated to take one of the following
alternate courses of action within 1 year
from the date of the assignment or
within such additional period of time as
may be approved by the Commissioner:
(A) The transferor or assignor shall
repurchase and accept a reassignment of
such mortgage or group of mortgages.
(B) The transferor or assignor shall
obtain a sale and transfer of such
mortgage or group of mortgages to an
approved mortgagee.
(3) Notice to or approval of the
Commissioner is not required in
connection with assignments, pledges or
transfers pursuant to this section.
(e) Declaration of trust. A sale of a
beneficial interest in a group of
mortgages insured under this part,
where the interest to be acquired is
related to all of the mortgages as an
entirety, rather than an interest in a
specific mortgage, shall be made only
pursuant to a declaration of trust, which
has been approved by the Commissioner
prior to any such sale.
(f) Transfers of partial interests. A
partial interest in a mortgage insured
under this part may be transferred under
a participation agreement without
obtaining the approval of the
Commissioner, if the following
conditions are met:
(1) Principal mortgagee. The insured
mortgage shall be held by an approved
mortgagee which, for the purposes of
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this section, shall be referred to as the
principal mortgagee.
(2) Interest of principal mortgagee.
The principal mortgagee shall retain and
hold for its own account a financial
interest in the insured mortgage.
(3) Qualification for holding partial
interest. A partial interest in an insured
mortgage shall be issued to and held
only by:
(i) A mortgagee approved by the
Commissioner; or
(ii) A corporation, trust or
organization (including, but not limited
to any pension fund, pension trust, or
profit-sharing plan) which certifies to
the principal mortgagee that:
(A) It has assets of $100,000 or more;
and
(B) It has lawful authority to acquire
a partial interest in an insured mortgage.
(4) Participation agreement
provisions. The participation agreement
shall include provisions that:
(i) The principal mortgagee shall
retain title to the mortgage and remain
the mortgagee of record under the
contract of mortgage insurance.
(ii) The Commissioner shall have no
obligation to recognize or deal with
anyone other than the principal
mortgagee with respect to the rights,
benefits and obligations of the
mortgagee under the contract of
insurance.
(iii) The mortgage and loan
documents shall remain in the custody
of the principal mortgagee.
(iv) The responsibility for servicing
the insured mortgages shall remain with
the principal mortgagee.
§ 206.102
Insurance Funds.
Loans endorsed for insurance under
this part, prior to October 1, 2008, shall
be obligations of the General Insurance
Fund. Loans endorsed for insurance
under this part, on or after October 1,
2008, shall be obligations of the Mutual
Mortgage Insurance Fund.
Mortgage Insurance Premiums
mstockstill on DSK3G9T082PROD with PROPOSALS3
§ 206.103
Payment of MIP.
(a) The payment of any MIP due
under this subpart shall be made to the
Commissioner by the mortgagee in cash
until an event described in paragraph
(b) or (c) of this section occurs.
(b) Payment of the mortgage. The MIP
shall no longer be remitted if the
mortgage is paid in full.
(c) Acquisition of title. (1) If the
mortgagee or a party other than the
mortgagee acquires title at a foreclosure
sale, or the mortgagee acquires title by
a deed in lieu of foreclosure, and the
mortgagee notifies the Commissioner
that a claim for the payment of the
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insurance benefits will not be presented,
the MIP shall no longer be remitted.
(2) If the mortgagee or a party other
than the mortgagee acquires title at a
foreclosure sale or the mortgagee
acquires title by a deed in lieu of
foreclosure, or where the property is
sold in accordance with § 206.125(c),
and a claim for the payment of the
insurance benefits will be presented, the
MIP shall no longer be remitted as of the
date of the foreclosure sale, the date the
deed in lieu of foreclosure is recorded,
or the date in which the sale in
accordance with § 206.125(c) is
completed, as applicable.
§ 206.105
Amount of MIP.
(a) Initial MIP. The mortgagee shall
pay to the Commissioner an initial MIP
that does not exceed three percent of the
maximum claim amount.
(b) Monthly MIP. The Commissioner
may establish and collect a monthly
MIP, which will accrue daily from the
closing date, at a rate not to exceed 1.50
percent of the remaining insured
principal balance, or up to 1.55 percent
for any mortgage involving an original
principal obligation that is greater than
95 percent of appraised value of the
property. A mortgagee may only add the
monthly MIP to the loan balance when
paid to the Commissioner.
(c) Calculation of the initial MIP. The
mortgagee shall calculate the initial MIP
based on the amount of funds the
borrower has elected to be made
available during the First 12-Month
Disbursement Period, except that the
calculation shall not include any funds
set aside in the Servicing Fee Set Aside,
if applicable. The initial MIP calculation
shall be determined based on the sum
of the following amounts:
(1) For adjustable interest rate
HECMs, the amount of Mandatory
Obligations, the amount disbursed to
the borrower at loan closing, and the
amount of the available Initial
Disbursement Limit not taken by the
borrower at loan closing that the
borrower selects to remain available
during the First 12-Month Disbursement
Period.
(2) For fixed interest rate HECMs, the
amount of Mandatory Obligations and
the amount disbursed to the borrower at
loan closing.
(d) Adjustments to initial or monthly
MIP. The Commissioner may adjust the
amount of any initial or monthly MIP
through notice. Such notice shall
establish the effective date of any
premium adjustment therein.
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31811
§ 206.107 Mortgagee election of
assignment or shared premium option.
(a) Election of option. Before the
mortgage is submitted for insurance
endorsement, the mortgagee shall elect
either the assignment option or the
shared premium option.
(1) Under the assignment option, the
mortgagee shall have the option of
assigning the mortgage to the
Commissioner if the outstanding loan
balance is equal to or greater than 98
percent of the maximum claim amount,
regardless of the deferral status, or the
borrower has requested a payment
which exceeds the difference between
the maximum claim amount and the
outstanding loan balance and:
(i) The mortgagee is current in making
the required payments under the
mortgage to the borrower;
(ii) The mortgagee is current in its
payment of the MIP (and late charges
and interest on the MIP, if any) to the
Commissioner;
(iii) The mortgage is not due and
payable under § 206.27(c)(1), or, if due
and payable under § 206.27(c)(1), its due
and payable status has been deferred
pursuant to a Deferral Period;
(iv) An event described in
§ 206.27(c)(2) has not occurred, or the
Commissioner has been so informed but
has denied approval for the mortgage to
be due and payable. At the mortgagee’s
option, the mortgagee may forgo
assignment of the mortgage and file a
claim under any of the circumstances
described in § 206.123(a)(3)–(5); and
(v) The mortgage is a first lien of
record and title to the property securing
the mortgage is good and marketable.
The provisions of § 206.136 pertaining
to mortgagee certifications also apply.
(2) Under the shared premium option,
the mortgagee may not assign a
mortgage to the Commissioner unless
the mortgagee fails to make payments
and the Commissioner demands
assignment (§ 206.123(a)(2)), but the
mortgagee shall only be required to
remit a reduced monthly MIP to the
Commissioner. The mortgagee shall
collect from the borrower the full
amount of the monthly MIP provided in
§ 206.105(b) but shall retain a portion of
the monthly MIP paid by the borrower
as compensation for the default risk
assumed by the mortgagee. The portion
of the MIP to be retained by a mortgagee
shall be determined by the
Commissioner as calculated in
§ 206.109. For a particular mortgage, the
applicable portion shall be determined
as of the date of the commitment. The
mortgagee retains the right to file a
claim under any of the circumstances
described in § 206.123(a)(2)–(5).
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(b) No election for shared
appreciation. Shared appreciation
mortgages shall be insured by the
Commissioner only under the shared
premium option.
§ 206.109 Amount of mortgagee share of
premium.
Using the factors provided by the
Commissioner, the amount of the
mortgagee share of the premium shall be
determined for each mortgage based
upon the age of the youngest borrower
or Eligible Non-Borrowing Spouse and
the expected average mortgage interest
rate.
§ 206.111
Due date of MIP.
(a) Initial MIP. The mortgagee shall
pay the initial MIP to the Commissioner
within fifteen days of closing and as a
condition to the endorsement of the
mortgage for insurance.
(b) Monthly MIP. Each monthly MIP
shall be due to the Commissioner on the
first business day of each month except
the month in which the mortgage is
closed.
§ 206.113
Late charge and interest.
(a) Late charge. Initial MIP remitted to
the Commissioner more than 5 days
after the payment date in § 206.111(a)
and monthly MIP remitted to the
Commissioner more than 5 days after
the payment date in § 206.111(b) shall
include a late charge of four percent of
the amount owed.
(b) Interest. In addition to any late
charge provided in paragraph (a) of this
section, the mortgagee shall pay interest
on any initial MIP remitted to the
Commissioner more than 20 days after
closing, and interest on any monthly
MIP remitted to the Commissioner more
than 5 days after the payment date
prescribed in § 206.111(b). Such interest
rate shall be paid at a rate set in
conformity with the Treasury Financial
Manual.
(c) Paid by mortgagee. Any late charge
and interest owed may not be added to
the outstanding loan balance and must
be paid by the mortgagee.
mstockstill on DSK3G9T082PROD with PROPOSALS3
§ 206.115
Insurance of mortgage.
(a) Mortgages with firm commitments.
For applications for insurance involving
mortgages not eligible to be originated
under the Direct Endorsement program
under § 203.5 (any reference to
§ 203.255 in § 203.5 shall mean
§ 206.115 for purposes of this section),
the Commissioner will endorse the
mortgage for insurance by issuing a
Mortgage Insurance Certificate.
(b) Endorsement with Direct
Endorsement processing. For
applications for insurance involving
mortgages originated under the Direct
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Endorsement program under § 203.5
(any reference to § 203.255 in § 203.5
shall mean § 206.115 for purposes of
this section), the mortgagee shall submit
to the Commissioner, within 60 days
after the date of closing of the loan or
such additional time as permitted by the
Commissioner, properly completed
documentation and certifications as
listed in this paragraph (b):
(1) Property appraisal upon a form
meeting the requirements of the
Commissioner (including, if required,
any additional documentation
supporting the appraised value of the
property under § 206.52), and a HUD
conditional commitment, or a Lender’s
Notice of Value issued by the Lender
Appraisal Processing Program (LAPP)
approved lender when the appraisal was
originally completed for use in a VA
application, but only if the appraiser
was also on the FHA roster as of the
effective date of the appraisal, and all
accompanying documents required by
the Commissioner;
(2) An application for insurance of the
mortgage in a form prescribed by the
Commissioner;
(3) A certified copy of the mortgage
and loan documents executed upon
forms which meet the requirements of
the Commissioner;
(4) An underwriter certification, on a
form prescribed by the Commissioner,
stating that the underwriter has
personally reviewed the appraisal report
and credit application (including the
analysis performed on the worksheets)
and that the proposed mortgage
complies with FHA underwriting
requirements, and incorporates each of
the underwriter certification items that
apply to the mortgage submitted for
endorsement, as set forth in the
applicable handbook or similar
publication that is distributed to all
Direct Endorsement mortgagees, except
that if FHA makes the TOTAL Mortgage
Scorecard available to HECM
mortgagees by setting out requirements
applicable for the use of the TOTAL
Mortgage Scorecard in a Federal
Register notice for comment, mortgagees
may follow such procedures and meet
such requirements in lieu of providing
the underwriter certification;
(5) Where applicable, a certificate
under oath and contract regarding use of
the dwelling for transient or hotel
purposes;
(6) Where an individual water or
sewer system is being used, an approval
letter from the local health authority
indicating approval of the system in
accordance with § 200.926d(f);
(7) A mortgage certification on a form
prescribed by the Commissioner, stating
that the authorized representative of the
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mortgagee who is making the
certification has personally reviewed
the mortgage documents and the
application for insurance endorsement,
and certifying that the mortgage
complies with the requirements of
paragraph (b) of this section. The
certification shall incorporate each of
the mortgagee certification items that
apply to the mortgage loan submitted for
endorsement, as set forth in the
applicable handbook or similar
publication that is distributed to all
Direct Endorsement mortgagees;
(8) Documents required by § 206.15;
(9) Documentation providing that the
seller is the owner of record in
accordance with § 206.52(a) and the
time restriction requirements of
§ 206.52(b) are met;
(10) For HECM for Purchase
transactions, a Certificate of Occupancy,
or its equivalent, if required for new
construction; and
(11) Such other documents as the
Commissioner may require.
(c) Pre-endorsement review for Direct
Endorsement. (1) Upon submission by
an approved mortgagee of the
documents required by paragraph (b) of
this section, the Commissioner will
review the documents and determine
that:
(i) The mortgage is executed on a form
which meets the requirements of the
Commissioner;
(ii) The mortgage maturity meets the
requirements of the applicable program;
(iii) The stated mortgage amount does
not exceed 150 percent of the maximum
claim amount;
(iv) All documents required by
paragraph (b) of this section are
submitted;
(v) All necessary certifications are
made in accordance with paragraph (b)
of this section;
(vi) There is no mortgage insurance
premium, late charge or interest due to
the Commissioner; and
(vii) The mortgage was not in default
when submitted for insurance or, if
submitted for insurance more than 60
days after closing, the mortgagee
certifies that the borrower is current in
paying all property charges or is
otherwise in compliance with all the
terms and conditions of the mortgage
documents.
(2) The Commissioner is authorized to
determine if there is any information
indicating that any certification or
required document is false, misleading,
or constitutes fraud or
misrepresentation on the part of any
party, or that the mortgage fails to meet
a statutory or regulatory requirement. If,
following this review, the mortgage is
determined to be eligible, the
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Commissioner will endorse the
mortgage for insurance by issuance of a
Mortgage Insurance Certificate. If the
mortgage is determined to be ineligible,
the Commissioner will inform the
mortgagee in writing of this
determination, and include the reasons
for the determination and any corrective
actions that may be taken.
(d) Submission by mortgagee other
than originating mortgagee. If the
originating mortgagee assigns the
mortgage to another approved mortgagee
before pre-endorsement review under
paragraph (c) of this section, the
assignee may submit the required
documents for pre-endorsement review
in the name of the originating
mortgagee. All certifications must be
executed by the originating mortgagee
(or its underwriter, if appropriate). The
purchasing mortgagee may pay any
required mortgage insurance premium,
late charge and interest.
(e) Post-Endorsement review for Direct
Endorsement. Following endorsement
for insurance, the Commissioner may
review all documents required by
paragraph (b) of this section. If,
following this review, the Commissioner
determines that the mortgage does not
satisfy the requirements of the Direct
Endorsement program, the
Commissioner may place the mortgagee
on Direct Endorsement probation, or
terminate the authority of the mortgagee
to participate in the Direct Endorsement
program pursuant to § 206.15, or refer
the matter to the Mortgagee Review
Board for action pursuant to part 25 of
this title.
(f) Creation of the contract. The
mortgage shall be an insured mortgage
from the date of the issuance of a
Mortgage Insurance Certificate, from the
date of the endorsement of the credit
instrument, or from the date of FHA’s
electronic acknowledgement to the
mortgagee that the mortgage is insured,
as applicable. The Commissioner and
the mortgagee are thereafter bound by
the regulations in this subpart with the
same force and to the same extent as if
a separate contract had been executed
relating to the insured mortgage,
including the provisions of the
regulations in this subpart and of the
National Housing Act.
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§ 206.116
Refunds.
No amount of the initial MIP shall be
refundable except as authorized by the
Commissioner.
HUD Responsibility to Borrowers
§ 206.117
General.
The Commissioner is required by
statute to take any action necessary to
provide a borrower with funds to which
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the borrower is entitled under the
mortgage and which the borrower does
not receive because of the default of the
mortgagee. The Commissioner may hold
a second mortgage to secure repayment
by the borrower under § 206.27(d).
Where the Commissioner does not hold
a second mortgage, but makes a
payment to the borrower, and such
payment is not reimbursed by the
mortgagee, the Commissioner shall
accept assignment of the first mortgage.
§ 206.119
[Reserved]
§ 206.121 Commissioner authorized to
make payments.
(a) Investigation. The Commissioner
will investigate all complaints by a
borrower concerning late payments. If
the Commissioner determines that the
mortgagee is unable or unwilling to
make all payments required under the
mortgage, including late charges, the
Commissioner shall pay such payments
and late charges to the borrower.
(b) Reimbursement or assignment.
The Commissioner may demand that
within 30 days from the demand, the
mortgagee reimburse the Commissioner,
with interest from the date of payment
by the Commissioner, or assign the
insured mortgage to the Commissioner.
Interest shall be paid at a rate set in
conformity with the Treasury Financial
Manual. If the mortgagee complies with
the reimbursement demand, then the
contract of insurance shall not be
affected. If the mortgagee complies by
assigning the mortgage for record within
30 days of the demand, then the
Commissioner shall pay an insurance
claim as provided in § 206.129(e)(3) and
assume all responsibilities of the
mortgagee under the first mortgage. If
the mortgagee fails to comply with the
demand within 30 days, the contract of
insurance will terminate as provided in
§ 206.133(c).
(c) Second mortgage. If the contract of
insurance is terminated as provided in
§ 206.133(c), all payments to the
borrower by the Commissioner will be
secured by the second mortgage, unless
otherwise provided by the
Commissioner. Payments will be due
and payable in the same manner as
under the insured first mortgage. The
liability of the borrower under the first
mortgage shall be limited to payments
actually made by the mortgagee to or on
behalf of the borrower (including prior
recoupment of the MIP remitted by the
mortgagee and billed to the borrower),
and shall exclude accrued interest,
whether or not it has been included in
the outstanding loan balance, and
shared appreciation, if any. Interest will
stop accruing on the first mortgage
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31813
when the Commissioner begins to make
payments under the second mortgage.
The first mortgage will not be due and
payable until the second mortgage is
due and payable.
Claim Procedure
§ 206.123
Claim procedures in general.
(a) Claims. Mortgagees may submit
claims for the payment of the mortgage
insurance benefits if:
(1) The conditions of § 206.107(a)(1)
pertaining to the optional assignment of
the mortgage by the mortgagee have
been met and the mortgagee assigns the
mortgage to the Commissioner;
(2) The mortgagee is unable or
unwilling to make the payments under
the mortgage and assigns the mortgage
to the Commissioner pursuant to the
Commissioner’s demand, as provided in
§ 206.121(b);
(3) The borrower or other permissible
party sells the property for less than the
outstanding loan balance and the
mortgagee releases the mortgage of
record to facilitate the sale, as provided
in § 206.125(c);
(4) The mortgagee acquires title to the
property by foreclosure or a deed in lieu
of foreclosure and sells the property as
provided in § 206.125(g) for an amount
which does not satisfy the outstanding
loan balance or fails to sell the property
as provided in § 206.127(a)(2); or
(5) The mortgagee forecloses and a
bidder other than the mortgagee
purchases the property for an amount
that is not sufficient to satisfy the
outstanding loan balance, as provided in
§ 206.125(e).
(b) [Reserved]
§ 206.125
property.
Acquisition and sale of the
(a) Initial action by the mortgagee. (1)
The mortgagee shall notify the
Commissioner within 60 days of the
mortgage becoming due and payable
when the conditions stated in the
mortgage, as required by § 206.27(c)(1)
have occurred or when the Deferral
Period ends. The mortgagee shall notify
the Commissioner within 30 days of one
of the conditions stated in the mortgage,
as required by § 206.27(c)(2), occurring.
(2) After notifying and receiving
approval of the Commissioner when
needed, the mortgagee shall notify the
borrower, Eligible Non-Borrowing
Spouse, borrower’s estate and
borrower’s heir(s), as applicable, within
30 days of the later of notifying the
Commissioner or receiving approval, if
needed, that the mortgage is due and
payable. The mortgagee shall give the
applicable party 30 days from the date
of notice to engage in the following
actions:
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(i) Pay the outstanding loan balance,
including any accrued interest, MIP,
and mortgagee advances in full;
(ii) Sell the property for an amount
not to be less than the amount
determined by the Commissioner
through notice, which shall not exceed
95 percent of the appraised value as
determined under § 206.125(b), with the
net proceeds of the sale to be applied
towards the outstanding loan balance. In
no event shall closing costs exceed 11
percent of the sales price. For the
purposes of this section, sell includes
the transfer of title by operation of law;
(iii) Provide the mortgagee with a
deed in lieu of foreclosure;
(iv) Correct the condition which
resulted in the mortgage coming due
and payable for reasons other than the
death of the last surviving borrower;
(v) For an Eligible Non-Borrowing
Spouse, correct the condition which
resulted in an end to the Deferral Period
in accordance with § 206.57; or
(vi) Such other actions as permitted
by the Commissioner through notice.
(3) For a borrower, even after a
foreclosure proceeding is begun, the
mortgagee shall permit the borrower to
correct the condition which resulted in
the mortgage coming due and payable
and to reinstate the mortgage, and the
mortgage insurance shall continue in
effect. The mortgagee may require the
borrower to pay any costs that the
mortgagee incurred to reinstate the
borrower, including foreclosure costs
and reasonable attorney’s fees. Such
costs shall be paid by adding them to
the outstanding loan balance. The
mortgagee may refuse reinstatement by
the borrower if:
(i) The mortgagee has accepted
reinstatement of the mortgage within the
past two years immediately preceding
the current notification to the borrower
that the mortgage is due and payable;
(ii) Reinstatement will preclude
foreclosure if the mortgage becomes due
and payable at a later date; or
(iii) Reinstatement will adversely
affect the priority of the mortgage lien.
(4) For an Eligible Non-Borrowing
Spouse, even after a foreclosure
proceeding has been initiated, the
mortgagee shall permit the Eligible NonBorrowing Spouse to cure the condition
which resulted in the Deferral Period
ceasing, in accordance with § 206.57(d).
(b) Appraisal. The mortgagee shall
have the property appraised by an
appraiser on the FHA roster no later
than 30 days after receipt of the request
by an applicable party in connection
with a potential property sale. The
property shall be appraised before a
foreclosure sale and have an effective
appraisal date that is no more than 30
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days before such sale. The appraisal
shall be at the requesting party’s
expense unless the mortgage is due and
payable. If the mortgage is due and
payable, the appraisal shall be at the
mortgagee’s expense but the mortgagee
shall have a right to be reimbursed out
of the proceeds of any sale by the
borrower or other permissible party.
(c) Sale by borrower or other
permissible party. Where the HECM is
not due and payable, the borrower or an
authorized representative of the
borrower may sell the property for at
least the lesser of the outstanding loan
balance or the appraised value. Where
the HECM is due and payable at the
time the contract for sale is executed,
the borrower or other party with legal
right to dispose of the property may sell
the property in accordance with the
amount established by
§ 206.125(a)(2)(ii). The mortgagee shall
satisfy the mortgage of record (and the
Commissioner will satisfy any second
mortgage required by the Commissioner
under § 206.27(d) of record) in order to
facilitate the sale, provided that there
are no junior liens (except the mortgage
to secure payments by the
Commissioner if required under
§ 206.27(d)) and all the net proceeds
from the sale are paid to the mortgagee.
(d) Initiation of foreclosure. (1) The
mortgagee shall commence foreclosure
of the mortgage within six months of the
due date defined in § 206.129(d)(1), or
within such additional time as may be
approved by the Commissioner.
(2) If the laws of the State, city or
municipality or other political
subdivision in which the mortgaged
property is located or if Federal
bankruptcy law does not permit the
commencement of the foreclosure in
accordance with § 206.125(d)(1), the
mortgagee shall commence foreclosure
within six months after the expiration of
the time during which such foreclosure
is prohibited by such laws.
(3) The mortgagee shall give written
notice to the Commissioner within 30
days after the initiation of foreclosure
proceedings, and shall exercise
reasonable diligence in prosecuting the
foreclosure proceedings to completion
and in acquiring title to and possession
of the property. A time frame that is
determined by the Commissioner to
constitute ‘‘reasonable diligence’’ for
each State is made available to
mortgagees.
(4) The mortgagee shall bid at the
foreclosure sale an amount at least equal
to the lesser of the sum of the
outstanding loan balance and any and
all other incurred expenses, or the
current appraised value of the property.
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(e) Other bidders at foreclosure sale.
If a party other than the mortgagee is the
successful bidder at the foreclosure sale,
the net proceeds of the sale shall be
applied to the outstanding loan balance.
(f) Deed in lieu of foreclosure. (1)(i) In
order to avoid delays and additional
expense as a result of instituting and
completing a foreclosure action, the
mortgagee shall accept a deed in lieu of
foreclosure from the borrower or other
party with legal right to dispose of the
property provided it is within 9 months
of the due date and the mortgagee is
able to obtain good and marketable title.
(ii) Cash for Keys. The Commissioner
may provide a financial incentive, in an
amount to be determined by the
Commissioner, to be paid by the
mortgagee and reimbursed through any
subsequent claim where a borrower or
other party with a legal right to do so
deeds the property within 6 months of
the due date.
(2) In exchange for the executed and
delivered deed, the mortgagee shall
cancel the credit instrument and deliver
it to the borrower and satisfy the
mortgage of record. If applicable, the
mortgagee shall request that the
Commissioner cancel the credit
instrument and deliver it to the
borrower and satisfy the mortgage of
record.
(g) Sale of the acquired property. (1)
Upon acquisition of the property by
foreclosure or deed in lieu of
foreclosure, the mortgagee shall take
possession of, preserve and repair the
property and shall make diligent efforts
to sell the property within six months
from the date the mortgagee acquired
the property, or such additional time as
provided by the Commissioner. The
mortgagee shall sell the property for an
amount not less than the appraised
value (as provided under paragraph (b)
of this section) unless the mortgagee
does not file an application for
insurance benefits or written permission
is obtained from the Commissioner
authorizing a sale at a lower price.
(2) Repairs shall not exceed those
required by local law, or the
requirements of the Commissioner or
the Secretary of Veterans Affairs if the
sale of the property is financed with a
mortgage insured by the Commissioner
or guaranteed, insured or taken by the
Secretary of Veterans Affairs. No other
repairs shall be made without the
specific advance approval of the
Commissioner.
(3) The mortgagee shall not enter into
a contract for the preservation, repair or
sale of the property with any officer,
employee, or owner of ten percent or
more interest in the mortgagee or with
any other person or organization having
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an identity of interest with the
mortgagee or with any relative of such
officer, employee, owner or person.
§ 206.127
benefits.
Application for insurance
(a) Mortgagee acquires title. (1) The
mortgagee shall apply for the payment
of the insurance benefits within 30 days
after the sale of the property by the
mortgagee or within such additional
time as approved by the Commissioner.
Application shall be made by notifying
the Commissioner of the sale of the
property, the sale price, and income and
expenses incurred in connection with
the acquisition, repair and sale of the
property.
(2) If the property will not be sold
within six months from the date the
mortgagee acquired title, the mortgagee
shall, at least 15 days prior to the
expiration of the six month period, have
the property appraised. Within 30 days
of receipt of the appraisal, the mortgagee
shall apply for the insurance benefits as
provided in paragraph (a) of this
section, substituting the appraised value
for the sale price. The mortgagee may
add the cost of the appraisal to the claim
amount.
(b) Party other than the mortgagee
acquires title. The mortgagee shall apply
for the payment of the insurance
benefits within 30 days after a party
other than the mortgagee acquires title
to the property. Application shall be
made by notifying the Commissioner of
the sale of the property and the sale
price. Transferring a portfolio that
includes REO properties to another
entity does not constitute a ‘‘sale’’ under
this section.
(c) Mortgagee assigns the mortgage.
The mortgagee shall file its claim for the
payment of the insurance benefits
within 15 days after the date the
mortgage is assigned for record to the
Commissioner. The application for the
payment of the insurance benefits shall
include the items listed in § 206.135(a)
and the certification required under
§ 206.136.
(d) Contract of insurance not
terminated. Mortgagees may only file an
application for insurance benefits
provided the contract of insurance has
not terminated.
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§ 206.129
Payment of claim.
(a) General. If the claim for the
payment of the insurance benefits is
acceptable to the Commissioner,
payment shall be made in cash in the
amount determined under this section.
(b) Limit on claim amount. (1) For
HECMs assigned Case Numbers prior to
[insert effective date of final rule], in no
case may the claim paid under this
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subpart exceed the maximum claim
amount. The interest allowance
provided in paragraphs (d)(3)(x), (e)(2)
and (f)(2)(i) of this section shall not be
included in determining the limit on the
claim amount.
(2) For HECMs assigned Case
Numbers on or after [insert effective
date of final rule], in no case may the
claim paid under this subpart exceed
the maximum claim amount, as defined
in § 206.3. The interest allowance
provided in paragraphs (d)(3)(x), (e)(2)
and (f)(2)(ii) of this section shall be
made in cash in the amount determined
under this section.
(c) Shared appreciation mortgages.
The terms loan balance and accrued
interest as used in this section do not
include interest attributable to the
mortgagee’s share of the appreciated
value of the property.
(d) Amount of payment—mortgagee
acquires title or is unsuccessful bidder.
This paragraph describes the amount of
payment if the mortgagee acquires title
by purchase, foreclosure, or deed in lieu
of foreclosure, or when a party other
than the mortgagee is the successful
bidder at the foreclosure sale.
(1) Due date means the date when the
mortgagee notifies or should have
notified the Commissioner that the
mortgage is due and payable under the
conditions stated in the mortgage, as
required by § 206.27(c)(1) or the date
that the Deferral Period, as provided for
in the mortgage by § 206.27(c)(3), ends;
or the date the Commissioner approved
a due and payable request as provided
for in the mortgage by § 206.27(c)(2).
(2) The amount of the claim shall be
computed by:
(i) Totaling the outstanding loan
balance and any accrued interest and
servicing fees which have not been
added to the outstanding loan balance
as of the due date, and allowances for
items set forth in paragraph (d)(3) of this
section; and
(ii) Subtracting from that total the
amount for which the property was sold
(or the appraised value determined
under § 206.127(a)(2)) and the items set
forth in paragraph (d)(4) of this section.
(3) The claim shall include items
listed in paragraphs (d)(2)(i) through
(xiv) of this section. For HECMs with
Case Numbers assigned on or after
[insert effective date of final rule], the
inclusion of items listed in paragraphs
(d)(2)(i), (ii), and (iii) of this section
shall be limited to two years of advances
made by the mortgagee on such
expenses. The Commissioner may
approve an extension of the two-year
limitation under such circumstances,
terms, and conditions determined and
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31815
specified as acceptable to the
Commissioner.
(i) Taxes, ground rents, water rates,
and utility charges that are liens prior to
the mortgage;
(ii) Special assessments, which are
noted on the application for insurance
or which become liens after the
insurance of the mortgage;
(iii) Hazard and flood insurance
premiums on the mortgaged property
not in excess of a reasonable rate;
(A) For purposes of this section,
reasonable rate means a rate that is not
in excess of the rate or advisory rate set
by the principal State-licensed rating
organization for essential property
insurance in the voluntary market, or if
coverage is available under a FAIR Plan,
the FAIR Plan rate;
(B) If a State has neither a FAIR Plan
nor a State-licensed rating organization
for essential property insurance in the
voluntary market, the mortgagee must
provide to the Home Ownership Center
(HOC) having jurisdiction, information
concerning the lowest rates available
from an insurer for the types of coverage
involved, with a request for a
determination of whether the rate is
reasonable. FHA will determine the rate
to be reasonable if it approximates the
rate assessed for comparable insurance
coverage applicable to similarly situated
properties in a State that offers a FAIR
Plan or maintains a State-licensed rating
organization;
(iv) Taxes imposed upon any deeds or
other instruments by which said
property was acquired by the mortgagee
pursuant to § 206.125;
(v) Reasonable payments made by the
mortgagee, with the approval of the
Commissioner, for the purpose of
protecting, operating, or preserving the
property, or removing debris from the
property;
(vi) Reasonable costs for performing
property inspections required by
§ 206.140 and to determine if the
property is vacant or abandoned are
considered to be costs of protecting,
operating or preserving the property;
(vii) Charges for the administration,
operation, maintenance, or repair of
community-owned property or the
maintenance or repair of the mortgaged
property, paid by the mortgagee for the
purpose of discharging an obligation
arising out of a covenant filed for record
prior to the issuance of the mortgage;
and charges for the repair or
maintenance of the mortgaged property
required by, and in an amount approved
by, the Commissioner under § 206.142;
(viii) Reasonable costs of the title
search ordered by the mortgagee, in
accordance with procedures prescribed
by FHA, to determine if the criteria for
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approval of the mortgagee’s acceptance
of a deed in lieu of foreclosure or to
determine clear title to complete a preforeclosure sale;
(ix) Foreclosure costs or costs of
acquiring the property in accordance
with such conditions as the
Commissioner shall prescribe;
(x) An amount equal to the interest
allowance which would have been
earned, from the due date to the date
when payment of the claim is made, if
the claim had been paid in debentures,
except that when the mortgagee fails to
meet any one of the applicable
requirements of §§ 206.125 and 206.127
of this subpart within the specified
time, and in a manner satisfactory to the
Commissioner (or within such further
time as the Commissioner may approve
in writing), the interest allowance in
such cash payment shall be computed
only to the date on which the particular
required action should have been taken
or to which it was extended.
(A) Debenture interest rate. The
debenture interest rate provided for in
§ 206.146 shall be used.
(B) Maturity of debentures.
Debentures shall mature 20 years from
the date of issue.
(C) Registration of debentures.
Debentures shall be registered as to
principal and interest.
(D) Form and amounts of debentures.
Debentures issued under this part shall
be in such form and amounts; and shall
be subject to such term and conditions;
and shall include such provisions for
redemption, if any, as may be prescribed
by the Commissioner, with the approval
of the Secretary of the Treasury; and
may be in book entry or certificated
registered form, or such other form as
the Commissioner by regulation may
prescribe.
(E) Redemption of debentures.
Debentures shall, at the option of the
Commissioner and with the approval of
the Secretary of the Treasury, be
redeemable at par plus accrued interest
on any semiannual interest payment
date on three months’ notice of
redemption given in such manner as the
Commissioner shall prescribe. The
debenture interest on the debentures
called for redemption shall cease on the
semiannual interest payment date
designated in the call notice. The
Commissioner may include with the
notice of redemption an offer to
purchase the debentures at par plus
accrued interest at any time during the
period between the notice of
redemption and the redemption date. If
the debentures are purchased by the
Commissioner after such call and prior
to the named redemption date, the
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debenture interest shall cease on the
date of purchase.
(F) Issue date of debentures. The issue
date of debentures is determined by the
due date as defined in paragraph (d)(1)
of this section.
(G) Cash adjustment. Any difference
of less than $50 between the amount of
debentures to be issued to the mortgagee
and the total amount of the mortgagee’s
claim, as approved by the
Commissioner, may be adjusted by the
issuance of a check in payment thereof;
(xi) Any amount of incentive paid by
the mortgagee in accordance with
§ 206.125(f)(1)(ii);
(xii) Costs of any appraisal under
§§ 206.125 or 206.127, provided that the
property was appraised after the
mortgage became due and payable and
that the mortgagee is not otherwise
reimbursed for such costs;
(xiii) Reasonable payments made by
the mortgagee for:
(A) Preservation and maintenance of
the property;
(B) Repairs necessary to meet the
objectives of the property standards
required for mortgages insured by the
Commissioner, those required by local
law, and such additional repairs as may
be specifically approved in advance by
the Commissioner; and
(C) Expenses in connection with the
sale of the property including a sales
commission at the rate customarily paid
in the community and, if the sale to the
buyer involves a mortgage insured by
the Commissioner or guaranteed by the
Secretary of Veterans Affairs, a discount
at a rate not to exceed the maximum
allowable by the Commissioner, as of
the date of execution of the discounted
loan; and
(xiv) A certification that the property
is undamaged in accordance with
§ 206.143.
(4) There shall be deducted from the
amount computed in paragraph (d)(2)(i)
of this section:
(i) The items listed in § 206.145; and
(ii) Any adjustment for damage or
neglect to the property pursuant to
§§ 206.140, 206.141, and 206.142.
(e) Amount of payment—assigned
mortgages. This paragraph describes the
amount of payment if the mortgagee
assigns a mortgage to the Commissioner
under § 206.107(a)(1) or § 206.121(b).
(1) When a mortgagee assigns a
mortgage which is eligible for
assignment under § 206.107(a)(1), the
amount of payment shall be computed
by subtracting from the outstanding loan
balance on the date of assignment all
cash retained by the mortgagee,
including amounts held or deposited for
the account of the borrower or to which
it is entitled under the mortgage
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transaction that have not been applied
in reduction of the principal mortgage
indebtedness, and any adjustments for
damage or neglect to the property
pursuant to §§ 206.140, 206.141 and
206.142.
(2) The claim shall also include:
(i) Reimbursement for such costs and
attorney’s fees as the Commissioner
finds were properly incurred in
connection with the assignment of the
mortgage to the Commissioner; and
(ii) An amount equivalent to the
interest allowance which will have been
earned from the date the mortgage was
assigned to the Commissioner to the
date the claim is paid, if the claim had
been paid in debentures, except that if
the mortgagee fails to meet any of the
requirements of § 206.127(c), or
§ 206.131 if applicable, within the
specified time and in a manner
satisfactory to the Commissioner (or
within such further time as the
Commissioner may approve in writing),
the interest allowance in the payment of
the claim shall be computed only to the
date on which the particular required
action should have been taken or to
which it was extended. The provisions
of paragraphs (d)(3)(x)(A)–(G) of this
section pertaining to debentures are
applicable except that the issue date of
the debentures shall be the date the
mortgage was assigned to the
Commissioner.
(3) When a mortgagee assigns a
mortgage under § 206.121(b) after
demand by the Commissioner, the
mortgagee will not receive the entire
claim payment as contained in
paragraphs (e)(1) and (2) of this section.
The amount of the claim shall be
computed by totaling the payments
made by the mortgagee to the borrower
or for the benefit of the borrower, and
subtracting from the total the cash
retained by the mortgagee, including
amounts held or deposited for the
account of the borrower or to which it
is entitled under the mortgage
transaction that have not been applied
in reduction of the principal mortgage
indebtedness, and any adjustments for
damage or neglect to the property
pursuant to §§ 206.141 and 206.142. The
claim shall also be reduced by an
amount determined by the
Commissioner to reimburse the
Commissioner for administrative
expenses incurred in assuming the
mortgagee’s responsibility under the
mortgage, which may include expenses
for staff time. If more than one mortgage
is assigned to the Commissioner, the
administrative expenses incurred for all
the mortgages assigned shall be
allocated among the mortgages as
determined by the Commissioner. The
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claim shall not include accrued interest
whether or not it has been included in
the loan balance.
(f) Amount of payment-borrower sells
the property. This paragraph describes
the amount of payment if the property
is sold in accordance with § 206.125(c)
to one other than the mortgagee for less
than the outstanding loan balance, and
the mortgagee releases the mortgage to
facilitate the sale.
(1)(i) For HECMs assigned Case
Numbers prior to [insert effective date of
final rule], the amount of the claim shall
be computed by totaling the outstanding
loan balance and any accrued interest
and servicing fees which have not been
added to the outstanding loan balance
on the date the deed is recorded, and an
allowance for items set forth in
paragraph (d)(3)(i)–(vii) and (d)(3)(xi) of
this section, and subtracting from the
total the amount for which the property
was sold.
(ii) For HECMs assigned Case
Numbers on or after [insert effective
date of final rule], the following
provisions apply.
(A) When the loan is not in due and
payable status. The amount of the claim
shall be computed by totaling the
outstanding loan balance and any
accrued interest and servicing fees
which have not been added to the
outstanding loan balance on the date the
deed is recorded, and an allowance for
items set forth in paragraph
(d)(3)(xiii)(C) of this section, and
subtracting from the total the amount for
which the property was sold.
(B) When the loan is in due and
payable status. The amount of the claim
shall be computed by totaling the
outstanding loan balance and any
accrued interest and servicing fees
which have not been added to the
outstanding loan balance as of the due
date, the items set forth in paragraph
(d)(3) of this section, and subtracting
from the total the amount for which the
property was sold.
(2)(i) For HECMs assigned Case
Numbers prior to [insert effective date of
final rule], the claim shall also include
an amount equivalent to the interest
allowance which would have been
earned from the date the deed is
recorded to the date when payment of
the claim is made, if the claim had been
paid in debentures, and in a manner
satisfactory to the Commissioner; the
interest allowance in such cash payment
shall be computed only to the date on
which the particular action should have
been taken or to which it was extended.
The provisions of paragraphs
(d)(3)(x)(A)–(G) of this section
pertaining to debentures apply except
that the issue date of the debentures is
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the date the deed is recorded instead of
the due date.
(ii) For HECMs assigned Case
Numbers on or after [insert effective
date of final rule], the following
provisions apply:
(A) When the loan is not in due and
payable status. The claim shall also
include an amount equivalent to the
interest allowance which would have
been earned from the date the deed is
recorded to the date when payment of
the claim is made, if the claim had been
paid in debentures, and in a manner
satisfactory to the Commissioner; the
interest allowance in such cash payment
shall be computed only to the date on
which the particular action should have
been taken or to which it was extended.
The provisions of paragraphs
(d)(3)(x)(A)–(G) of this section
pertaining to debentures apply except
that the issue date of the debentures
shall be the date the deed is recorded.
(B) When the loan is in due and
payable status. The claim shall also
include an amount equivalent to the
interest allowance which would have
been earned from the due date to the
date when payment of the claim is
made, if the claim had been paid in
debentures, except that when the
mortgagee fails to meet any of the
applicable requirements of §§ 206.125
and 206.127 within the specified time
determined by the due date, as defined
in paragraph (d)(1) of this section (or
within such further time as the
Commissioner may approve in writing),
and in a manner satisfactory to the
Commissioner; the interest allowance in
such cash payment shall be computed
only to the date on which the particular
action should have been taken or to
which it was extended. The provisions
of paragraphs (d)(3)(x)(A)–(G) of this
section pertaining to debentures apply.
Condominiums
§ 206.131 Contract rights and obligations
for mortgages on individual dwelling units
in a condominium.
(a) Additional requirements. The
requirements of this subpart shall be
applicable to mortgages on individual
dwelling units in a condominium,
except as modified by this section.
(b) References. The term property as
used in this subpart shall be construed
to include the individual dwelling unit
and the undivided interest in the
common areas and facilities as may be
designated.
(c) Assignment of the mortgage. If the
mortgagee assigns the mortgage on the
individual dwelling unit to the
Commissioner, the mortgagee shall
certify:
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31817
(1) To any changes in the plan of
apartment ownership including the
administration of the property;
(2) That as of the date the assignment
is filed for record, the family unit is
assessed and subject to assessment for
taxes pertaining only to that unit; and
(3) To the condition of the property as
of the date the assignment is filed for
record. Section 234.275 of this chapter
concerning the certification of condition
is incorporated by reference.
(d) Condition of the multifamily
structure. The provisions of § 234.270
(a) and (b) of this chapter concerning the
condition of the multifamily structure in
which the property is located shall be
applicable to mortgages insured under
this part which are assigned to the
Commissioner.
Termination of Insurance Contract
§ 206.133
contract.
Termination of insurance
(a) Payment of the mortgage. The
contract of insurance shall be
terminated if the mortgage is paid in
full.
(b) Acquisition of title. (1) If the
mortgagee or a party other than the
mortgagee acquires title at a foreclosure
sale, or the mortgagee acquires title by
a deed in lieu of foreclosure, and the
mortgagee notifies the Commissioner
that a claim for the payment of the
insurance benefits will not be presented,
the contract of insurance shall be
terminated.
(2) For HECMs with Case Numbers
assigned on or after [insert effective date
of final rule], if the mortgagee or a party
other than the mortgagee acquires title
at a foreclosure sale or the mortgagee
acquires title by a deed in lieu of
foreclosure and a claim for the payment
of the insurance benefits will be
presented, the contract of insurance
shall be terminated as of claim payment.
(c) Mortgagee fails to make payments.
If the mortgagee fails to make the
payments to the borrower as required
under the mortgage, and does not
reimburse the Commissioner or assign
the mortgage to the Commissioner
within 30 days from the demand by the
Commissioner for reimbursement or
assignment, the contract of insurance
shall automatically terminate. The
Commissioner may later reinstate the
contract of insurance, which shall
continue in force as if no termination
had occurred, upon reimbursement with
interest as provided in § 206.121. Upon
reinstatement, the mortgagee shall be
liable for all MIP which would have
been due if no termination had
occurred, including late charge and
interest as provided in § 206.113.
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(d) Notice of termination. The
mortgagee shall give written notice to
the Commissioner, or other notice
acceptable to the Commissioner, within
15 days of the occurrence of an event
under paragraphs (a) and (b) of this
section. No contract of insurance shall
be terminated under paragraphs (a) or
(b) of this section unless such notice is
given.
(e) Voluntary termination. The
borrower and the mortgagee may jointly
request the Commissioner to approve
the voluntary termination of the
mortgage insurance contract. Prior to
approval, the Commissioner shall make
certain that the borrower is aware of the
consequences which could arise out of
the voluntary termination of the
contract of insurance. The mortgagee
shall cancel the insurance endorsement
on the Mortgage Insurance Certificate or
Note upon receipt of notice from the
Commissioner that the contract of
insurance is terminated.
Notwithstanding any provision in a
mortgage instrument, there shall be no
voluntary termination charge due the
Commissioner on account of the
voluntary termination of any mortgage
insurance contract where the request for
termination is received by the
Commissioner.
(f) Effect of termination. When the
insurance contract is terminated all
rights of the mortgagee shall terminate,
including the right to file a claim for
insurance benefits. All obligations of the
Commissioner shall also cease
immediately.
Additional Requirements
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§ 206.134 Partial release, addition or
substitution of security.
(a) A mortgagee shall not release the
security or any part thereof, while the
mortgage is insured, without the prior
consent of the Commissioner.
(b) A mortgagee may, with the prior
consent of the Commissioner, accept an
addition to, or substitution of, security
for the purpose of removing the
dwelling to a new lot or replacing the
dwelling with a similar or like kind on
the existing lot under the following
conditions:
(1) The mortgagee obtains a good and
valid first lien on the property to which
the dwelling is removed or the existing
lot upon which the dwelling is rebuilt;
(2) All damages to the structure are
repaired or all rebuilding of the
structure is completed without cost to
FHA; and
(3) The property to which the
dwelling is removed or rebuilt is in an
area known to be reasonably free from
natural hazards or, if in a flood zone, the
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borrower will insure or reinsure under
the National Flood Insurance Program.
(c) A mortgagee may, without the
prior consent of the Commissioner,
accept an addition to, or substitution of,
security for the purpose of removing the
dwelling to a new lot under the
following conditions:
(1) The dwelling has survived an
earthquake or other disaster with little
damage, but continued location on the
property might be hazardous;
(2) The conditions stated in paragraph
(b) of this section exist; and
(3) Immediately following the
emergency removal the mortgagee
notifies the Commissioner of the reasons
for removal.
§ 206.135 Application for insurance
benefits and fiscal data.
(a) On the date the application for
assignment is filed, the mortgagee shall
submit to the Commissioner:
(1) Credit and security instrument.
The original credit and security
instruments assigned without recourse
or warranty, except that no act or
omission of the mortgagee shall have
impaired the validity and priority of the
mortgage.
(2) Proposed assignment instrument.
A copy of the proposed assignment of
mortgage.
(3) Hazard and flood insurance. All
hazard and flood insurance (if
applicable) policies held in connection
with the mortgaged property, together
with a copy of the mortgagee’s
notification to the carrier authorizing
the amendment of the loss payable
clause substituting the Commissioner as
the mortgagee.
(4) Rights and interests. An
assignment of all rights and interests
arising under the mortgage, and all
claims of the mortgagee against the
borrower or others arising out of the
mortgage transaction.
(5) Property. All property of the
borrower held by the mortgagee or to
which it is entitled (other than the cash
items which are to be retained by the
mortgagee).
(6) Records and accounts. All records,
ledger cards, documents, books, papers
and accounts relating to the mortgage
transaction.
(7) Additional information. Any
additional information or data which
the Commissioner may require.
(8) Title evidence. All title evidence
held by the mortgagee. It need not be
extended to include the recordation of
the assignment. The title insurance
policy shall be endorsed from the
mortgage insurance company up to the
point of assignment. At the point of
assignment, the Commissioner shall be
named insured under such policy.
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(b) All documents required in
paragraph (a) of this section must be
submitted and approved before a claim
for assignment may be submitted.
(c) Recorded assignment instrument.
The original of the recorded assignment
of mortgage shall be forwarded to the
Commissioner as soon as received by
the mortgagee, but in no case shall it be
longer than 12 months after recordation.
If the original of the assignment is not
available, a copy shall be furnished and
the original forwarded as soon as
possible.
§ 206.136
Conditions for assignment.
(a) In order for a HECM to be eligible
for assignment, the following must be
met:
(1) Priority of mortgage to liens. The
mortgage is prior to all mechanics’ and
materialmen’s liens, homeowners
association liens or condo association
liens filed of record, regardless of when
such liens attach, and prior to all liens
and encumbrances, or defects which
may arise based on any act or omission
by the mortgagee except such liens or
other matters as may have been
approved by the Commissioner.
(2) Amount due. The amount stated in
the instrument of assignment is actually
due and owing under the mortgage.
(3) Offsets or counterclaims. There are
no offsets or counterclaims thereto and
the mortgagee has a good right to assign.
(b) The mortgagee shall certify that
the conditions of paragraph (a) have
been met.
§ 206.137 Effect of noncompliance with
regulations.
If, for any reason, the mortgagee fails
to comply with the regulations in this
subpart, the Commissioner may hold
processing of the application for
insurance benefits in abeyance for a
reasonable time in order to permit the
mortgagee to comply. In the alternative
to holding processing in abeyance, the
Commissioner may reconvey title to the
property or reassign the mortgage to the
mortgagee, in which event the
application for insurance benefits shall
be considered as cancelled and the
mortgagee shall refund the insurance
benefits to the Commissioner as well as
other funds required by § 206.138 of this
part. The mortgagee may reapply for
insurance benefits at a subsequent date;
provided, however, that the mortgagee
may not be reimbursed for any expenses
incurred in connection with the
property after it has been reconveyed or
the mortgage reassigned by the
Commissioner, or paid any debenture
interest accrued after the date of initial
conveyance, whichever is earlier, and
there will be deducted from the
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insurance benefits any reduction in the
Commissioner’s estimate of the value of
the property occurring from the time of
reconveyance or mortgage reassignment
to the time of reapplication.
§ 206.138 Mortgagee’s liability for certain
expenditures.
Where the Commissioner accepts an
assignment, acquires a property after
accepting an assignment of a mortgage,
or otherwise pays a claim for insurance
benefits and thereafter it becomes
necessary for the Commissioner to
either reconvey the property or reassign
the mortgage to the mortgagee due to the
mortgagee’s noncompliance with these
regulations, the mortgagee shall
reimburse the Commissioner for all
expenses incurred in connection with
such acquisition and reconveyance or
reassignment. The reimbursement shall
include interest on the amount of
insurance benefits refunded by the
mortgagee from the date the insurance
benefits were paid to the date of refund
at an interest rate set in conformity with
the Treasury Fiscal Requirements
Manual, and the Commissioner’s cost of
holding the property or servicing the
mortgage, accruing on a daily basis,
from the date of assignment or claim
payment to the date of reconveyance or
reassignment. These costs are based on
the Commissioner’s estimate of the
taxes, maintenance and operating
expenses of the property, and
administrative expenses. Appropriate
adjustments shall be made by the
Commissioner on account of any
income received from the property.
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§ 206.140 Inspection and preservation of
properties.
The mortgagee, upon learning that a
property subject to a mortgage insured
under this part is vacant or abandoned,
shall be responsible for the inspection of
such property at least monthly, if the
loan is in a due and payable status.
When a mortgage is in due and payable
status and efforts to reach the borrower
or applicable party by telephone within
that period have been unsuccessful, the
mortgagee shall be responsible for a
visual inspection of the security
property to determine whether the
property is vacant. The mortgagee shall
take reasonable action to protect and
preserve such security property when it
is determined or should have been
determined to be vacant or abandoned
until assigned to the Commissioner or
an application for insurance benefits is
filed, if such action does not constitute
an illegal trespass. ‘‘Reasonable action’’
includes the commencement of
foreclosure within the time required by
§ 206.125.
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§ 206.141
Property condition.
(a) Condition at time of transfer.
When the mortgage is assigned to the
Commissioner or the property is sold by
the mortgagee, the property shall be
undamaged by fire, earthquake, flood, or
tornado, except as set forth in this
subpart.
(b) Damage to property by waste. The
mortgagee shall not be liable for damage
to the property by waste committed by
the borrower, its heirs, successors or
assigns in connection with mortgage
insurance claims.
(c) Mortgagee responsibility. The
mortgagee shall be responsible for:
(1) Damage by fire, flood, earthquake,
hurricane, or tornado; and
(2) Damage to or destruction of
security properties on which the loans
are in default and which properties are
vacant or abandoned, when such
damage or destruction is due to the
mortgagee’s failure to take reasonable
action to inspect, protect and preserve
such properties as required by
§ 206.140.
(d) Limitation. The mortgagee’s
responsibility for property damage shall
not exceed the amount of its insurance
claim as to a particular property.
§ 206.142
neglect.
Adjustment for damage or
(a) Except as provided for in
paragraphs (a)(1) and (a)(2) of this
section: if the property has been
damaged by fire, flood, earthquake,
hurricane, or tornado, the damage must
be repaired before assignment of the
mortgage to the Commissioner; if the
property has suffered damage because of
the mortgagee’s failure to take action as
required by § 206.140, the damage must
be repaired before the mortgagee sells
the property.
(1) If the prior approval of the
Commissioner is obtained, there will be
deducted from the insurance benefits
the Commissioner’s estimate of the cost
of repairing the damage or any
insurance recovery received by the
mortgagee, whichever is greater.
(2) If the property has been damaged
by fire and was not covered by fire
insurance at the time of the damage, or
the amount of insurance coverage was
inadequate to repair fully the damage,
only the amount of insurance recovery
received by the mortgagee, if any, will
be deducted from the insurance
benefits, provided the mortgagee
certifies, at the time that a claim is filed
for insurance benefits, that:
(i) At the time the mortgage was
insured, the property was covered by
fire insurance in an amount at least
equal to the lesser of 100 percent of the
insurable value of the improvements, or
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the principal loan balance of the
mortgage;
(ii) The insurer later cancelled this
coverage or refused to renew it for
reasons other than nonpayment of
premium;
(iii) The mortgagee made diligent
though unsuccessful efforts within 30
days of any cancellation or non-renewal
of hazard insurance, and at least
annually thereafter, to secure other
coverage or coverage under a FAIR Plan,
in an amount described in paragraph
(a)(2)(i) of this section, or if coverage to
such an extent was unavailable at a
reasonable rate, the greatest extent of
coverage that was available at a
reasonable rate;
(iv) The extent of coverage obtained
by the mortgagee in accordance with
paragraph (a)(2)(iii) of this section was
the greatest available at a reasonable
rate, or if the mortgagee was unable to
obtain insurance, none was available at
a reasonable rate; and
(v) The mortgagee took the actions
required by § 206.140.
(b) If the property has been damaged
during the time of the mortgagee’s
possession by events other than fire,
flood, earthquake, hurricane, or tornado,
or if it was damaged notwithstanding
reasonable action by the mortgagee as
required by § 206.140, the mortgagee
must provide notice of such damage to
the Commissioner and may not sell the
property until directed to do so by the
Commissioner. The Commissioner will
either:
(1) Allow the mortgagee to sell the
property damaged; or
(2) Require the mortgagee to repair the
damage before sale, and the
Commissioner will reimburse the
mortgagee for reasonable payments not
in excess of the Commissioner’s
estimate of the cost of repair, less any
insurance recovery.
§ 206.143
Certificate of property condition.
(a) The mortgagee shall certify that as
of the date the mortgagee sold the
property in accordance with
§ 206.125(g) or assignment of the
mortgage to the Commissioner, the
property was:
(1) Undamaged by fire, flood,
earthquake, hurricane or tornado; and
(2) Undamaged due to failure of the
mortgagee to take action as required by
§ 206.140; and
(3) Undamaged while the property
was in the possession of the mortgagee.
(b) In the absence of evidence to the
contrary, the mortgagee’s certificate or
description of the damage shall be
accepted by the Commissioner as
establishing the condition of the
property, as of the date of mortgagee
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sale or assignment of the mortgage to the
Commissioner.
§ 206.144
Final payment.
The mortgagee may not file any
supplemental claims to its mortgage
insurance claim after six months from
settlement by the Commissioner of the
claim payment except where the
Commissioner determines it appropriate
and expressly authorizes an extension of
time for supplemental claim filings.
§ 206.145
Items deducted from payment.
(a) There shall be deducted from the
total of the added items in § 206.129 the
following cash items:
(1) All amounts received by the
mortgagee on account of the mortgage
after the institution of foreclosure
proceedings or the acquisition of the
property or otherwise after due and
payable.
(2) All amounts received by the
mortgagee from any source relating to
the property on account of rent or other
income after deducting reasonable
expenses incurred in handling the
property.
(3) All cash retained by the mortgagee
including amounts held or deposited for
the account of the borrower or to which
it is entitled under the mortgage
transaction that have not been applied
in reduction of the outstanding loan
balance.
(4) With regard to claims filed
pursuant to successful short sales, all
amounts received by the mortgagee
relating to the sale of the property.
(b) [Reserved]
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§ 206.146
Debenture interest rate.
(a) Debentures shall bear interest from
the date of issue, payable semiannually
on the first day of January and the first
day of July of each year at the rate in
effect as of the day the commitment was
issued, or as of the date the mortgage
was endorsed for insurance, whichever
rate is higher. For applications
involving mortgages originated under
the single family Direct Endorsement
program, debentures shall bear interest
from the date of issue, payable
semiannually on the first day of January
and on the first day of July of each year
at the rate in effect as of the date the
mortgage was endorsed for insurance;
(b) For mortgages endorsed for
insurance after January 23, 2004, if an
insurance claim is paid in cash, the
debenture interest rate for purposes of
calculating such a claim shall be the
monthly average yield, for the month in
which the default on the mortgage
occurred, on United States Treasury
Securities adjusted to a constant
maturity of 10 years.
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Subpart D—Servicing Responsibilities
§ 206.201 Mortgage servicing generally;
sanctions.
(a) General. This subpart identifies
servicing practices that the
Commissioner considers acceptable
mortgage servicing practices of lending
institutions servicing mortgages insured
by the Commissioner. Failure to comply
with this subpart shall not be a basis for
denial of the insurance benefits, but a
pattern of refusal or failure to comply
will be cause for withdrawal of FHA
mortgagee approval.
(b) Importance of timely payments.
The paramount servicing responsibility
is to make timely payments in full as
required by the mortgage. Any failure of
a mortgagee to make all payments
required by the mortgage in a timely
manner will be grounds for
administrative sanctions authorized by
regulations, including 2 CFR part 2424
(Debarment, Suspension, and Limited
Denial of Participation), and 24 CFR
part 25 (Mortgagee Review Board).
(c) Responsibility for servicing. (1)
Servicing of insured mortgages must be
performed by a mortgagee that is
approved by FHA to service insured
mortgages. The servicer must fully
discharge the servicing responsibilities
of the mortgagee as outlined in this part.
The mortgagee shall remain fully
responsible to the Commissioner for
proper servicing, and the actions of its
servicer shall be considered to be the
actions of the mortgagee. The servicer
also shall be fully responsible to the
Commissioner for its actions as a
servicer.
(2) Whenever servicing of any
mortgage is transferred from one
mortgagee or servicer to another, notice
of the transfer of service shall be
delivered:
(i) By the transferor mortgagee or
servicer to the borrower. The
notification shall be delivered not less
than 15 days before the effective date of
the transfer and shall contain the
information required in 12 CFR
1024.21(e)(2); and
(ii) By the transferee mortgagee or
servicer:
(A) To the borrower. The notification
shall be delivered not less than 15 days
before the effective date of the transfer
and shall contain the information
required in 12 CFR 1024.21(e)(2); and
(B) To the Commissioner. This
notification shall be delivered within 15
days of the transfer, in a format
prescribed by the Commissioner.
§ 206.203
Providing information.
(a) Statements of account activity. The
mortgagee shall provide to the borrower
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a monthly statement regarding the
activity of the mortgage for each month,
as well as for the calendar year. The
statement shall summarize the total
principal amount which has been paid
to the borrower under the mortgage
during that calendar year, the MIP paid
to the Commissioner and charged to the
borrower, the total amount of deferred
interest added to the outstanding loan
balance, the total outstanding loan
balance and the current principal limit.
The mortgagee shall include an
accounting of all payments for property
charges. The statement shall be
provided to the borrower monthly until
the mortgage is paid in full by the
borrower. The mortgagee shall provide
the borrower with a new payment plan
every time it recalculates monthly
payments or the payment option is
changed. The statements shall be in a
format acceptable to the Commissioner.
(b) [Reserved]
(c) Servicing—Providing information.
(1) Mortgagees shall provide loan
information to borrowers and arrange
for individual loan consultation on
request. The mortgagee must establish
written procedures and controls to
assure prompt responses to inquiries.
One or more of the following means of
making information readily available to
borrowers is required:
(i) A servicing office staffed with
competent personnel located within 200
miles of the property, capable of
providing timely responses to requests
for information. Complete records need
not be maintained in such an office if
the staff is able to secure needed
information and pass it on to the
borrower.
(ii) Toll-free telephone service at an
office capable of providing needed
information.
(2)(i) All borrowers must be informed
of and reminded annually of the system
available for obtaining answers to loan
inquiries and the office from which
needed information may be obtained.
Toll-free telephone service need not be
provided to a borrower other than at the
office designated to serve the borrower
nor other than from the immediate
vicinity of the security property.
(ii) The mortgagee shall provide the
borrower with the telephone number
where the borrower may speak to
employee(s) specifically designated by
the mortgagee or its servicer to address
inquiries concerning mortgages insured
under this part. Such information shall
be provided annually and whenever the
servicer or the designated employee (or
employee group) changes.
(3) Mortgagees must respond to FHA
requests for information concerning
individual accounts.
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§ 206.205
Property charges.
(a) General. (1) The borrower shall be
responsible for the payment of the
following property charges before or on
the due date: Ground rents,
condominium fees, planned unit
development fees, homeowners
association fees and all utilities.
(2) Payment of the following property
charges are obligations of the borrower
and shall be made through the LESA, by
the borrower, or by the mortgagee, in
accordance with paragraphs (b) through
(e) of this section on or before the due
date: Property taxes, including any
special assessments levied by local or
State law, hazard insurance premiums,
and applicable flood insurance
premiums.
(b) Method of property charge
payment. (1) LESA required. For fixed
or adjustable interest rate HECMs, based
on the results of the Financial
Assessment, the mortgagee may require
the borrower to have a Fully-Funded
LESA for the payment of property
charges identified in paragraph (a)(2) of
this section. For adjustable interest rate
HECMs, based on the results of the
Financial Assessment, the mortgagee
may require the borrower to have a
Partially-Funded LESA for the payment
of property charges identified in
paragraph (a)(2) of this section.
(2) LESA not required. If, based on the
results of the Financial Assessment, the
mortgagee does not require the borrower
to have a LESA, the borrower shall elect
one of the following at closing, whereby
an election of the option in paragraph
(b)(2)(ii) or (iii) of this section cannot be
cancelled by the borrower:
(i) Borrower is responsible for the
independent payment of all property
charges;
(ii) Borrower elects to have a FullyFunded LESA for the payment of
property charges identified in paragraph
(a)(2) of this section; or
(iii) For adjustable interest rate
HECMs only, borrower elects to have
the mortgagee pay property charges
listed in paragraph (a)(2) of this section
and ground rents which would have
otherwise been required to be paid by
the borrower, in accordance with
paragraph (d) of this section.
(c) Life Expectancy Set Aside. (1)
General. (i) For a Fully-Funded LESA,
the mortgagee shall:
(A) Make payments for property
charges identified in paragraph (a)(2) of
this section before bills become
delinquent and establish controls to
ensure that the information needed to
pay such bills is obtained on a timely
basis;
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(B) Make early payments to take
advantage of a discount whenever it is
to the borrower’s advantage;
(C) Not charge the borrower penalties
for late payments for property charges
unless it can be shown that the penalty
was the direct result of the borrower’s
error or omission;
(D) Ensure that LESA funds are not
held in an escrow account;
(E) Add payments for property
charges to the outstanding loan balance
when the mortgagee disburses funds to
the taxing authority or insurance carrier;
and
(F) Provide written notification to the
borrower and FHA within 30 days of the
mortgagee receiving notification that a
property charge payment is outstanding
when there are no funds or insufficient
funds remaining in the LESA, and
recommend that the borrower speak
with a HUD-Approved Housing
Counselor.
(ii) For a Partially-Funded LESA, the
mortgagee shall:
(A) Ensure that LESA funds are
disbursed to the borrower semiannually;
(B) Establish controls to ensure the
taxing authority, insurance carrier, or
both, received the borrower’s payment;
(C) Ensure the LESA funds are not
held in an escrow account;
(D) Add payments disbursed to the
borrower for the payment of property
charges identified in paragraph (a)(2) to
the outstanding loan balance when the
mortgagee disburses the funds; and
(E) Provide written notification to the
borrower and FHA within 30 days of the
mortgagee receiving notification that a
property charge payment is outstanding
when there are no funds or insufficient
funds remaining in the LESA, and
recommend that the borrower speak
with a HUD-Approved Housing
Counselor.
(2) Calculation of property charges. (i)
The projected cost of property charges
that will be required over the life
expectancy of the youngest borrower
shall be calculated based on a formula
established by the Commissioner.
(ii) The mortgagee shall not require
any LESA to be funded in excess of the
projected cost of property charges.
(iii) For a Fully-Funded LESA, the
amount withheld from the mortgage
proceeds shall equal the projected cost
of property charges.
(iv) For a Partially-Funded LESA, the
amount withheld from the mortgage
proceeds is based on a calculation of the
gap in residual income and may not
exceed the projected cost of property
charges.
(v) Mortgagees shall use the HECM
Financial Assessment and Property
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31821
Charge Guide, or subsequent guide
issued by the Commissioner, to
determine whether a LESA is required;
view the formula for calculating the
projected costs of property charges; and
view the formulas for calculating the
Fully- and Partially-Funded LESA
amounts.
(3) Annual analysis of LESA.
Mortgagees shall perform an annual
analysis of the LESA to determine
whether the funds are sufficient to make
required distributions for the next year.
If funds are exhausted or there is an
insufficient balance determination, the
mortgagee shall notify the borrower, in
writing and within 15 calendar days of
the annual analysis of the
determination, that LESA funds are
exhausted or insufficient and the
borrower will be responsible for the
payment of property charges.
(4) Non-payment of property
charges—(i) Fully-Funded LESA for an
adjustable interest rate HECM with no
remaining funds. (A) If the LESA is
exhausted and the borrower fails to
make property charge payments, the
mortgagee shall use any available
principal limit to pay the outstanding
property charge amount in full and
charge the borrower’s account.
(B) The mortgagee shall provide the
borrower with a written notification
within 30 days of the mortgagee
receiving notification that a property
charge payment is outstanding. The
borrower shall have 30 days to respond
to the mortgagee to explain the
circumstances which resulted in the
non-payment.
(C) If there is no available principal
limit from which the mortgagee can pay
the property charge amount in full, and
the borrower fails to pay the property
charges, the mortgage will become due
and payable under § 206.27(c)(2).
(ii) Fully-Funded LESA for a fixed
interest rate HECM with no remaining
funds. If the LESA is exhausted and the
borrower fails to make property charge
payments, the mortgage will become
due and payable under § 206.27(c)(2).
(iii) Partially-Funded LESA with
remaining funds. If funds remain in the
LESA and the borrower fails to make
property charge payments, the
mortgagee shall:
(A) Immediately suspend future semiannual payments to the borrower from
the Partially-Funded LESA, although
scheduled and unscheduled payments
from the borrower’s payment option
may continue;
(B) Disburse funds from the PartiallyFunded LESA to pay the full amount
owed for the past due property charge;
and
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(C) Provide written notification to the
borrower, within 30 days of the
mortgagee receiving notification that a
property charge payment is outstanding,
that funds were advanced from the
Partially-Funded LESA to pay the
outstanding property charge. The
borrower shall have 30 days to respond
to the mortgagee to explain the
circumstances which resulted in the
non-payment.
(iv) Partially-Funded LESA with no
remaining funds. (A) If the LESA is
exhausted and the borrower fails to
make property charge payments when
due, the mortgagee shall use any funds
available in the principal limit to pay
the outstanding property charge amount
in full and charge the borrower’s
account.
(B) The mortgagee shall provide
written notification to the borrower
within 30 days of the mortgagee
receiving notification that a property
charge payment is outstanding. The
borrower shall have 30 days to respond
to the mortgagee to explain the
circumstances which resulted in the
non-payment.
(C) If there is no available principal
limit from which the mortgagee can pay
the property charge amount in full, and
the borrower fails to pay the property
charges, the mortgage will become due
and payable under § 206.27(c)(2).
(5) Unused LESA funds. During a
Deferral Period or when one of the
events listed in § 206.27(c)(1) or (c)(2)
have occurred, no unused funds from
the LESA shall be disbursed.
(6) Assignment of mortgage to the
Commissioner. If the insured first
mortgage is assigned to the
Commissioner, or if payments are made
through the second mortgage under the
Demand Assignment process, the
Commissioner is not required to assume
the responsibility for property charge
payments, but may continue to
administer payments for property
charges for a borrower with a FullyFunded LESA or semi-annual
disbursements to a borrower with a
Partially-Funded LESA to the extent
that there are any funds available in the
LESA. For adjustable interest rate
HECMs, if the LESA has a positive
remaining balance but funds are
insufficient to pay all property charges
due or semi-annual disbursements to
the borrower, the Commissioner may
provide the remaining funds to the
borrower as a line of credit.
(d) Borrower elects to have mortgagee
pay property charges. If, based on the
results of the Financial Assessment, the
mortgagee does not require the borrower
to have a LESA, for adjustable interest
rate HECMs, the borrower may elect at
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closing to require the mortgagee to pay
property charges identified in paragraph
(a)(2) of this section and ground rents by
withholding funds from monthly
payments due to the borrower or by
charging such funds to a line of credit.
This voluntary election to have funds
withheld by the mortgagee to pay
property charges cannot be canceled by
the borrower at any time. If the sum of
the outstanding loan balance and any
unused set aside for repairs and
servicing charges has reached the
principal limit or the HECM proceeds
are otherwise insufficient to pay the
property charges, the borrower shall pay
such property charges, even though the
borrower elected payment to be made by
the mortgagee.
(1) Assignment of mortgage to the
Commissioner. If the insured first
mortgage is assigned to the
Commissioner under § 206.107(a)(1) or
§ 206.121(b), or if payments are made
through the second mortgage under
§ 206.121(c), the Commissioner is not
required to assume the mortgagee’s
responsibility under paragraph (d) of
this section, despite the election by the
borrower.
(2) Mortgagee’s responsibilities. (i)
Funds withheld from payments due to
the borrower for property charges under
paragraph (d) of this section shall not be
paid into an escrow account. When
property charges are actually paid, the
mortgagee may add the amount paid to
the outstanding loan balance.
(ii) It is the mortgagee’s responsibility
to make disbursements for property
charges before bills become delinquent.
Mortgagees shall establish controls to
ensure that the information needed to
pay such bills is obtained on a timely
basis. Penalties for late payments for
property charges must not be charged to
the borrower unless it can be shown that
the penalty was the direct result of the
borrower’s error or omission. Early
payment of a bill to take advantage of
a discount should be made whenever it
is to the borrower’s benefit.
(iii) Not later than the end of the
second loan year the mortgagee shall
establish a system for the periodic
analysis of the amounts withheld from
monthly payments. The analysis shall
be performed at least once a year
thereafter. The amount shall be
adjusted, after analysis, to provide
sufficient available funds to make
anticipated disbursements during the
ensuing year. The borrower shall be
given at least ten days’ notice of
adjustment in the amount of
withholding and an adequate
explanation of the reasons for any
change. When the amount withheld is
analyzed in accordance with this
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paragraph, any surplus shall be paid to
the borrower and added to the
outstanding loan balance. Any shortage
shall be corrected through increasing
the monthly withholding as provided in
paragraph (d)(2)(iv) of this section. If
amounts withheld are insufficient to
pay a property charge before it is
delinquent, and the borrower could
request a payment equal to the shortage
under § 206.26(b), then the mortgagee
shall pay the full property charge and
treat payment of the shortage as a
payment requested by the borrower
under § 206.26(b).
(iv) The mortgagee’s estimate of
withholding amount shall be based on
the best information available as to
probable payments which will be
required to be made for property charges
in the coming year. If actual
disbursements during the preceding
year are used as the basis, the resulting
estimate may deviate from those
disbursements by as much as ten
percent. The mortgagee may not require
withholding in excess of the current
estimated total annual requirement,
unless expressly requested by the
borrower. Each monthly withholding for
property charges shall equal one-twelfth
of the annual amounts as reasonably
estimated by the mortgagee.
(e) Borrower elects to pay property
charges. (1) If, based on the results of
the Financial Assessment, the mortgagee
does not require the borrower to have a
LESA, the borrower may elect to be
responsible for the independent
payment of all property charges and
shall pay all property charges in a
timely manner and shall provide
evidence of payment to the mortgagee as
required in the mortgage.
(2) Failure to pay property charges. If
the borrower fails to pay the property
charges in a timely manner, and has not
elected to have the mortgagee make the
payments in accordance with paragraph
(d) of this section:
(i) The mortgagee may make the
payment for the borrower and charge
the borrower’s account if there are
available funds from which the
mortgagee may make payment. If a
pattern of missed payments occurs, the
mortgagee may establish procedures to
pay the property charges from the
borrower’s funds as if the borrower
elected to have the mortgagee pay the
property charges under this section.
(ii) The mortgagee shall provide a
written notification to the borrower and
notify the Commissioner that an
obligation of the mortgage has not been
performed within 30 days of the
mortgagee receiving notification of a
missed payment when there are no
available HECM funds from which the
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mortgagee may make payment. The
borrower shall have 30 days to respond
to the mortgagee to explain the
circumstances which resulted in the
non-payment. The mortgagee may
provide any permissible loss mitigation
made available by the Commissioner
through notice. If the borrower is unable
or unwilling to repay the mortgagee for
any funds advanced by the mortgagee to
pay property charges outside of a LESA,
the mortgagee shall submit a due and
payable request under the provisions of
§ 206.27(c)(2).
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§ 206.207 Allowable charges and fees after
endorsement.
(a) Reasonable and customary
charges. The mortgagee may collect
reasonable and customary charges and
fees from the borrower after insurance
endorsement, only to the extent that the
mortgagee is not reimbursed for such
fees by FHA, by adding them to the
outstanding loan balance, but only for:
Items listed in paragraph (a)(1) of this
section; items authorized by the
Commissioner under paragraph (a)(2) of
this section, or as provided at
§ 206.26(b)(1)(iii); or charges and fees
related to additional documents
described in § 206.27(b)(10) and related
title search costs.
(1)(i) Charges for substitution of a
hazard insurance policy at other than
the expiration of term of the existing
hazard insurance policy;
(ii) Attorney’s and trustee’s fees and
expenses actually incurred (including
the cost of appraisals and cost of
advertising) when a case has been
referred for foreclosure in accordance
with the provisions of this part after a
firm decision to foreclose if foreclosure
is not completed because of a
reinstatement of the account (no
attorney’s fee may be charged for the
services of the mortgagee’s or servicer’s
staff attorney or for the services of a
collection attorney other than the
attorney handling the foreclosure);
(iii) A trustee’s fee if the security
instrument in deed-of-trust states
provides for payment of such a fee for
execution of a satisfactory, release, or
trustee’s deed when the deed of trust is
paid in full;
(iv) Where permitted by the security
instrument, attorney’s fees and expenses
actually incurred in the defense of any
suit or legal proceeding wherein the
mortgagee shall be made a party thereto
by reason of the mortgage (no attorney’s
fee may be charged for the services of
the mortgagee’s or servicer’s staff
attorney); and
(v) Property preservation expenses
incurred pursuant to § 206.140.
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(2) Such other reasonable and
customary charges as may be authorized
by the Commissioner, but which shall
not include:
(i) Charges for servicing activities of
the mortgagee or servicer;
(ii) Fees charged by independent tax
servicer organizations which contract to
furnish data and information necessary
for the payment of property taxes;
(iii) Satisfaction, termination, or
reconveyance fees when a mortgage is
paid in full (other than as provided in
paragraph (a)(1)(iii) of this section); or
(iv) The fee for recordation of a
satisfaction of the mortgage in states
where recordation is the responsibility
of the mortgagee.
(b) Servicing charges. (1) If the
following conditions are met, the
mortgagee may include a servicing
charge in the mortgage Note rate,
starting with the month of loan closing
and continuing through the life of the
loan, including any applicable Deferral
Period:
(i) The charge is authorized by the
Commissioner;
(ii) The charge is selected by the
mortgagee;
(iii) The charge is within the range
established by the Commissioner, which
shall be set, through notice, in an
amount which shall be between 36 and
150 basis points. The Commissioner
may, through a Federal Register notice
for comment, extend the range of
permissible charges below 36 basis
points and above 150 basis points; and
(iv) The charge is disclosed as
required by § 206.43 to the borrower in
a manner acceptable to the
Commissioner at the time the mortgagee
provides the borrower with a loan
application; or
(2) If the following conditions are met,
the mortgagee may collect, starting with
the month of loan closing and
continuing through any applicable
Deferral Period, a fixed monthly charge
for servicing activities of the mortgagee
or servicer:
(i) The charge is authorized by the
Commissioner;
(ii) The charge is disclosed as
required by § 206.43 to the borrower in
a manner acceptable to the
Commissioner at the time the mortgagee
provides the borrower with a loan
application;
(iii) Amounts to pay the charge are set
aside as a portion of the principal limit
in accordance with § 206.19(f)(3); and
(iv) The charge is payable only from
the Servicing Fee Set Aside.
§ 206.209
Prepayment.
(a) No charge or penalty. The
borrower may repay a mortgage in full
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31823
or prepay a mortgage in part without
charge or penalty at any time, regardless
of any limitations on repayment or
prepayment stated in a mortgage.
(b) Insurance and condemnation
proceeds. If insurance or condemnation
proceeds are paid to the mortgagee, the
principal limit and the outstanding loan
balance shall be reduced by the amount
of the proceeds not applied to
restoration or repair of the damaged
property.
(c) Funds received from a partial
prepayment shall be applied in
accordance with the Note.
§ 206.211 Determination of principal
residence and contact information.
(a) Annual certification. At least once
during each calendar year, the
mortgagee shall verify the contact
information for the borrower(s) and
determine whether or not the property
is the principal residence of at least one
borrower. The mortgagee shall require
each borrower to make an annual
certification of his or her contact
information and principal residence. As
part of the annual certification, the
borrower may designate a point of
contact to receive copies of the
notifications from the mortgagee, and
who the mortgagee may contact if the
borrower is unwilling or unable to reply
to requests from the mortgagee. The
mortgagee may rely on the certification
unless it has information indicating that
the certification may be false.
(b) Requirements when an Eligible
Non-Borrowing Spouse exists. Where an
Eligible Non-Borrowing Spouse has
been identified, the mortgagee shall
obtain an additional annual certification
from the borrower confirming the
Eligible Non-Borrowing Spouse remains
his or her spouse and the Eligible NonBorrowing Spouse continues to reside in
the property as his or her principal
residence.
(1) Death of borrower with Eligible
Non-Borrowing Spouse. If a borrower
with an Eligible Non-Borrowing Spouse
has died, the mortgagee shall obtain the
annual certification in paragraph (a) of
this section from the Eligible NonBorrowing Spouse. For purposes of this
paragraph, the term ‘‘Eligible NonBorrowing Spouse’’ shall replace the
term ‘‘borrower’’ in paragraph (a) of this
section.
(2) Failure of previously Eligible NonBorrowing Spouse to reside in the
property as his or her principal
residence. If a Non-Borrowing Spouse
fails to reside in the property as his or
her principal residence, the NonBorrowing Spouse becomes an Ineligible
Non-Borrowing Spouse and the deferral
of due and payable status that would
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prevent the displacement of an Eligible
Non-Borrowing Spouse will no longer
be in effect. Once this occurs, the
Eligible Non-Borrowing Spouse annual
certifications are no longer required to
be obtained.
Subpart E—HECM Counselor Roster
§ 206.300
General.
This subpart provides for the
establishment of the HECM Counselor
Roster (Roster) and sets forth the
requirements for the operation of the
HECM Counselor Roster.
§ 206.302 Establishment of the HECM
Counselor Roster.
(a) HECM Counselor Roster. FHA
maintains a Roster of HECM counselors.
Only counselors listed on the Roster and
employed by a participating agency are
approved to provide HECM counseling.
A prospective borrower applying for a
HECM loan to be insured by FHA must
receive the required HECM counseling
from one of the counselors on the
Roster.
(b) Disclaimer. The inclusion of a
HECM counselor on the Roster does not
create or imply a warranty or
endorsement by FHA of the listed
counselor to a prospective HECM
borrower or to any other organization or
individual, nor does it represent a
warranty of any counseling provided by
the listed HECM counselor. The
inclusion of a counselor on the Roster
means that a listed counselor has met
the FHA-prescribed qualifications and
conditions for inclusion on the Roster
and that the counselor is approved to
provide HECM counseling by telephone
or face-to-face.
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§ 206.304 Eligibility for placement on the
HECM Counselor Roster.
(a) Application. To be considered for
placement on the Roster, a housing
counselor must apply to FHA in a form
and in a manner prescribed by the
Commissioner.
(b) Eligibility. FHA will approve an
application for placement on the Roster
if the application demonstrates that the
housing counselor:
(1) Is employed by a HUD-approved
housing counseling agency or an
affiliate of a HUD-approved
intermediary or State housing finance
agency;
(2) Successfully passed a standardized
HECM counseling exam administered
by FHA, or a party selected by FHA,
within the last 3 years. In order to
maintain eligibility, a HECM counselor
must successfully pass a standardized
HECM counseling exam every 3 years;
VerDate Sep<11>2014
20:10 May 18, 2016
Jkt 238001
(3) Received training and education
related to HECMs within the prior 2
years;
(4) Has access to and is supported by
technology that enables FHA to track
the results of the counseling offered to
each loan applicant, e.g., what action(s),
if any, did the client take after receiving
the HECM counseling; and
(5) Is not listed on:
(i) The General Services
Administration’s Suspension and
Debarment List;
(ii) HUD’s Limited Denial of
Participation List; or
(iii) HUD’s Credit Alert Interactive
Response System.
§ 206.306 Removal from the HECM
Counselor Roster.
(a) General. FHA reserves the right to
remove a HECM counselor from the
Roster, in accordance with this section.
(b) Cause for removal. Cause for
removal of a HECM counselor from the
Roster includes, but is not limited to:
(1) Failure to comply with the
education and training requirements of
§ 206.308;
(2) Failure to respond within a
reasonable time to HUD inquiries or
requests for documentation;
(3) Misrepresentation or fraudulent
statements;
(4) Promotion, representation, or
recommendation of any specific
mortgagee;
(5) Failure to comply with applicable
fair housing and civil rights
requirements;
(6) Failure to comply with applicable
statutes and regulations;
(7) Failure to comply with applicable
statutory counseling requirements found
at subsection 255(f) of the National
Housing Act, which include, but are not
limited to, providing information about:
Options other than a HECM, the
financial implications of entering into a
HECM, the tax consequences of a
HECM, and any other information that
HUD or the applicant may request;
(8) Failure to maintain any
registration, license, or certification
requirements of a State or local
authority;
(9) Unsatisfactory performance in
providing counseling to HECM loan
applicants. FHA may determine that a
HECM counselor’s performance is
unsatisfactory based on a review of
counseling files or other monitoring
activities, or if the counselor fails to
employ the minimum competencies, as
measured by the FHA-administered
HECM counseling exam; or
(10) For any other reason HUD
determines to be so serious as to justify
an administrative sanction.
PO 00000
Frm 00056
Fmt 4701
Sfmt 4702
(c) Automatic removal from HECM
Counselor Roster for failure to maintain
required State or local licensure. A
HECM counselor who is required to
maintain a State or local registration,
license, or certification and whose
registration or certification is revoked,
suspended, or surrendered will be
automatically suspended from the
Roster until FHA receives evidence
demonstrating that the local- or Stateimposed sanction has been lifted.
(d) Removal procedure. Except as
provided in paragraph (c) of this
section, the following procedures apply
to removal of a HECM counselor from
the Roster.
(1) FHA will give the HECM
counselor written notice of the proposed
removal. The notice will state the
reasons for and the duration of the
proposed removal.
(2) The HECM counselor will have 30
days from the date of receipt of the
notice (or such time as described in the
notice, but in no event less than a
period of 30 days) to submit a written
appeal of the proposed removal, along
with a written request for a conference.
(3) An FHA official will review the
appeal and render a response affirming,
modifying, or canceling the removal.
The FHA official will not be a person
who was involved in FHA’s initial
removal decision. FHA will respond
with a decision within 30 days after the
date of receiving the appeal or, if the
HECM counselor has requested a
conference, within 30 days after the
conference was held. FHA may extend
the 30-day period by providing written
notice to the counselor.
(4) If the HECM counselor does not
submit a timely written response, the
removal will be effective 31 days after
the date of FHA’s initial removal notice
(or after the period provided in the
notice, if longer than 30 days). If a
written response is submitted, and the
removal decision is affirmed or
modified, the removal will be effective
on the date of FHA’s notice affirming or
modifying the initial removal decision.
(e) Maximum time period of removal.
The maximum time period for removal
from the Roster is 12 months from the
effective date of removal for all removed
counselors. A counselor who has been
removed must apply for reinstatement
on the Roster.
(f) Placement on the Roster after
removal. A counselor who has been
removed from the Roster must apply for
reinstatement on the Roster (in
accordance with § 206.304) after the
period of the counselor’s removal from
the Roster has expired. FHA may
require the counselor to retake and pass
the HECM exam for reinstatement when
E:\FR\FM\19MYP3.SGM
19MYP3
Federal Register / Vol. 81, No. 97 / Thursday, May 19, 2016 / Proposed Rules
mstockstill on DSK3G9T082PROD with PROPOSALS3
the reason for removal from the Roster
was particularly egregious. Typically,
the counselor will not be required to
take and pass the HECM exam; however,
FHA must be ensured by the counselor
that the HECM counseling requirements
are understood and will be followed. An
application from a counselor for
reinstatement on the Roster will be
rejected if the period of the counselor’s
removal from the Roster has not
expired.
(g) Voluntary removal. A HECM
counselor will be removed from the
VerDate Sep<11>2014
20:10 May 18, 2016
Jkt 238001
Roster upon FHA’s receipt of a written
request from the counselor.
(h) Other action. Nothing in this
section prohibits HUD from taking such
other action against a HECM counselor
or from seeking any other remedy
against a counselor available to HUD by
statute or other authority.
§ 206.308 Continuing education
requirements of counselors listed on the
HECM Counselor Roster.
A HECM counselor listed on the
Roster must receive, on a continuing
basis, training, education, and technical
assistance related to HECMs. The HECM
PO 00000
Frm 00057
Fmt 4701
Sfmt 9990
31825
counselor must maintain evidence of
the successful completion of such
continuing education, and such
evidence must be made available to
FHA upon request. FHA will consider a
HECM counselor’s successful
completion of a HECM course no less
than once every 2 years as satisfying the
requirements of this section.
Dated: April 19, 2016.
Edward L. Golding,
Principal Deputy, Assistant Secretary for
Housing.
[FR Doc. 2016–11631 Filed 5–18–16; 8:45 am]
BILLING CODE 4210–67–P
E:\FR\FM\19MYP3.SGM
19MYP3
Agencies
[Federal Register Volume 81, Number 97 (Thursday, May 19, 2016)]
[Proposed Rules]
[Pages 31769-31825]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-11631]
[[Page 31769]]
Vol. 81
Thursday,
No. 97
May 19, 2016
Part III
Department of Housing and Urban Development
-----------------------------------------------------------------------
24 CFR Parts 30 and 206
Federal Housing Administration (FHA): Strengthening the Home Equity
Conversion Mortgage Program; Proposed Rule
Federal Register / Vol. 81 , No. 97 / Thursday, May 19, 2016 /
Proposed Rules
[[Page 31770]]
-----------------------------------------------------------------------
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Parts 30 and 206
[Docket No. FR-5353-P-01]
RIN 2502-AI79
Federal Housing Administration (FHA): Strengthening the Home
Equity Conversion Mortgage Program
AGENCY: Office of the Assistant Secretary for Housing--Federal Housing
Commissioner, HUD.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This rule proposes to codify several significant changes to
FHA's Home Equity Conversion Mortgage program that were previously
issued under the authority granted to HUD in the Housing and Economic
Recovery Act of 2008 and the Reverse Mortgage Stabilization Act of
2013, and to make additional regulatory changes. The Home Equity
Conversion Mortgage program is FHA's reverse mortgage program that
enables seniors who have equity in their homes to withdraw a portion of
the accumulated equity. The intent of the Home Equity Conversion
Mortgage program is to ease the financial burden on elderly homeowners
facing increased health, housing, and subsistence costs at a time of
reduced income. FHA's mission is to serve underserved markets, which
must be balanced with HUD's inherent, as well as, statutory obligation
under the National Housing Act to protect the FHA insurance funds. The
impacts of the recent financial crisis, including a decline in property
values, shrinking retirement accounts, and changing borrower
demographics placed seniors with Home Equity Conversion Mortgages at an
increased risk of losing their homes due to their inability to make tax
and insurance payments. During this time, the FHA HECM program was the
only reverse mortgage program available for seniors. The above
referenced economic and market factors, combined with certain program
features, resulted in increased risk to the Mutual Mortgage Insurance
Fund (MMIF). This rulemaking strengthens the FHA HECM program and
codifies changes made under the Reverse Mortgage Stabilization Act of
2013 that reduce risk to the MMIF and increase the sustainability of
this important program for seniors.
DATES: Comment Due Date: July 18, 2016.
ADDRESSES: Interested persons are invited to submit comments regarding
this proposed rule to the Regulations Division, Office of General
Counsel, Department of Housing and Urban Development, 451 7th Street
SW., Room 10276, Washington, DC 20410-0500. Communications must refer
to the above docket number and title. There are two methods for
submitting public comments. All submissions must refer to the above
docket number and title.
1. Submission of Comments by Mail. Comments may be submitted by
mail to the Regulations Division, Office of General Counsel, Department
of Housing and Urban Development, 451 7th Street SW., Room 10276,
Washington, DC 20410-0500.
2. Electronic Submission of Comments. Interested persons may submit
comments electronically through the Federal eRulemaking Portal at
www.regulations.gov. HUD strongly encourages commenters to submit
comments electronically. Electronic submission of comments allows the
commenter maximum time to prepare and submit a comment, ensures timely
receipt by HUD, and enables HUD to make them immediately available to
the public. Comments submitted electronically through the
www.regulations.gov Web site can be viewed by other commenters and
interested members of the public. Commenters should follow the
instructions provided on that site to submit comments electronically.
Note: To receive consideration as public comments, comments must
be submitted through one of the two methods specified above. Again,
all submissions must refer to the docket number and title of the
rule.
No Facsimile Comments. Facsimile (fax) comments are not acceptable.
Public Inspection of Public Comments. All properly submitted
comments and communications submitted to HUD will be available for
public inspection and copying between 8 a.m. and 5 p.m. weekdays at the
above address. Due to security measures at the HUD Headquarters
building, an appointment to review the public comments must be
scheduled in advance by calling the Regulations Division at 202-708-
3055 (this is not a toll-free number). Individuals with speech or
hearing impairments may access this number via TTY by calling the
Federal Relay Service at 800-877-8339 (this is a toll-free number).
Copies of all comments submitted are available for inspection and
downloading at www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Karin Hill, Senior Policy Advisor,
Office of Single Family Housing, Department of Housing and Urban
Development, 451 7th Street SW., Room 9282, Washington, DC 20410-8000;
telephone number 202-402-3084 (this is not a toll-free number). Persons
with hearing or speech challenges may access this number through TTY by
calling the toll-free Federal Relay Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
A. Purpose of Regulatory Action
Since the 2008 housing and economic recession, the Home Equity
Conversion Mortgage (HECM) portfolio has experienced major borrower
demographic and behavioral changes that have caused additional risk to
the Mutual Mortgage Insurance Fund (MMIF). Some of the changes include
shifting from a predominately adjustable interest rate mortgage with
borrowers receiving payments over time using the line of credit,
modified term, or modified tenure payment options to a fixed interest
rate mortgage with borrowers drawing large amounts of HECM proceeds at
the time of closing; younger borrowers with higher amounts of property
indebtedness; and increasing property charge defaults. While program
changes made prior to and during 2013, such as consolidating the HECM
Standard and HECM Saver products, did improve the stability of the HECM
program, the HECM portfolio has continued to experience volatility,
with an estimated economic value of negative $1.2 billion as reported
in FHA's Fiscal Year (FY) 2014 report to Congress. The HECM Portfolio
received favorable actuarial results in 2015 reflecting the positive
impact of program changes and an improving housing market. However it
is critical to remain vigilant in monitoring program performance and
policy to ensure the soundness of the MMIF.
Recognizing the need to stabilize the HECM program and ensure it
remains a sustainable program, Congress passed, and the President
signed into law, the Reverse Mortgage Stabilization Act of 2013 (RMSA).
The RMSA gave FHA the tools to make, through mortgagee letter,\1\
changes to the HECM program that are necessary to improve the fiscal
safety and soundness of the program. Under this authority, FHA
implemented a number of changes to the HECM program, including the
Financial Assessment and Property Charge Funding Requirements;
deferring the due and payable status for Eligible Non-Borrowing
Spouses; limiting disbursements during the first 12
[[Page 31771]]
months of the HECM; and eliminating future draws on fixed interest rate
HECMs. Through this rulemaking, FHA proposes to codify these policies,
with amendments as discussed in the preamble. In addition, FHA proposes
a number of new policies, which are discussed below and in the
preamble. Many of these proposed changes will contribute to the
stability of the HECM program and decrease risk to the MMIF, and others
will provide needed updates to a program which began as a
``demonstration program'' and which has not been substantially updated
in over 20 years.
---------------------------------------------------------------------------
\1\ Mortgagee letters issued under the authority granted to HUD
in RMSA will be identified throughout this rule as RMSA mortgagee
letters.
---------------------------------------------------------------------------
So that all regulatory requirements are codified in the HECM
regulations, FHA also proposes to codify HECM program changes made by
mortgagee letter \2\ under the Housing and Economic Recovery Act of
2008 (HERA), which implemented the HECM for Purchase program and
established new origination fee limits, and to amend the initial and
monthly mortgage insurance premium (MIP) limits to correspond with
statutory changes.
---------------------------------------------------------------------------
\2\ Mortgagee letters issued under the authority granted to HUD
in HERA will be identified throughout this rule as HERA mortgagee
letters.
---------------------------------------------------------------------------
B. Summary of Major Provisions of the Regulatory Action in Question
In this rule, FHA proposes to codify existing policy which has been
implemented by mortgagee letters under various statutory authorities;
implement statutory changes; issue new origination and servicing
policies; and clarify existing regulatory language. The main policy
provisions are discussed below.
Implementing Statutory Changes and Codifying Existing Policies
Implemented Under Statutory Authority
Financial Assessment and Property Charge Funding Requirements. As
implemented through RMSA Mortgagee Letter 2014-21, mortgagees are
required to perform a Financial Assessment of the prospective borrower
prior to loan approval, which considers the prospective borrower's
credit history, cash flow and residual income, extenuating
circumstances, and compensating factors. Based on the results of the
Financial Assessment, the mortgagee may require a Life Expectancy Set
Aside (LESA) for the payment of certain property charges. For fixed
interest rate HECMs, if a LESA is required, it may only be a Fully-
Funded LESA. For adjustable interest rate HECMs, if a LESA is required,
the mortgagee may require either a Partially- or Fully-Funded LESA.
Proceeds from a Partially-Funded LESA will be disbursed to the borrower
semi-annually to be used to assist in the payment of property charges;
for Fully-Funded LESA, mortgagees disburse funds directly to the tax
authority or insurance company for the payment of certain property
charges when they are due. If the mortgagee does not require a Fully-
Funded LESA, a borrower with an adjustable or fixed interest rate HECM,
may elect to have a Fully-Funded LESA.
Deferring the Due and Payable Status for Eligible Non-Borrowing
Spouses. RMSA Mortgagee Letter 2014-07, as amended by RMSA Mortgagee
Letter 2015-02, established a Deferral Period, during which the due and
payable status of a HECM is deferred after the death of the last
surviving borrower for an Eligible Non-Borrowing Spouse, provided
eligibility and all other FHA requirements are, and continue to be,
satisfied. In addition, the new policy required the principal limit to
be based on the age of the youngest borrower or Eligible Non-Borrowing
Spouse, instead of only the youngest borrower. The new policy also
provided for a 30-day period for the Eligible Non-Borrowing Spouse to
cure a default and to reinstate a Deferral Period.
Limiting Disbursements during the First 12 Months of the HECM.
Through RMSA Mortgagee Letter 2014-21, FHA limited initial
disbursements for HECMs. For fixed and adjustable interest rate HECMs,
the funds advanced to the borrower at closing and during the First 12-
Month Disbursement Period could not exceed the greater of 60 percent of
the principal limit; or Mandatory Obligations plus an additional 10
percent of the principal limit.
While FHA does not intend to change the current limit at this time,
this rule provides flexibility for this limit to be changed in the
future to respond to market changes or other factors. Specifically,
this rule revises the percentages such that the 60 percent will never
be less than 50 percent, and the additional percentage will never be
less than 10 percent.
Eliminating Future Draws on Fixed Interest Rate HECMs. Ginnie Mae
issued an All Participants Memorandum, APM 14-04, announcing that fixed
interest rate HECM loans with future draws would be ineligible for
securitization on or after June 1, 2014. As a result of APM 14-04, in
RMSA Mortgagee Letter 2014-11, FHA limited the insurability of fixed
interest rate mortgages under the HECM program to mortgages with the
Single Lump Sum payment option, which does not allow for future draws
after closing.
HECM for Purchase Program. HECM for Purchase program requirements
are currently in HERA Mortgagee Letter 2009-11. This rule intends to
codify the HECM for Purchase program requirements, with a few important
changes. First, this rule would require prospective borrowers of HECM
for Purchase transactions to complete the required HECM counseling
prior to signing a sales contract and/or making an earnest money
deposit, unless otherwise provided by the Commissioner, instead of
allowing them to complete the counseling before or after the initial
application is submitted to the mortgagee. In addition, amendments to
the prohibition on interested party contributions are proposed in this
rule. FHA proposes to permit the seller to pay fees required to be paid
by the seller under state or local law and to purchase the Home
Warranty policy, and to allow the Commissioner to define the types and
parameters of other allowable interested party contributions through
Federal Register notice for comment.
Allowable Loan Origination Fees and Charges. FHA implemented the
loan origination fee limits imposed by HERA through HERA Mortgagee
Letter 2008-34. In this rule, FHA proposes to clarify that such loan
origination fee limits include expenses incurred in originating,
processing and closing the HECM.
Amount of MIP. FHA proposes changes to the allowable initial and
monthly MIP charges to reflect that HECMs are now obligations of the
MMIF instead of the General Insurance Fund, and to reflect statutory
amendments to the National Housing Act providing FHA with a wider range
of acceptable MIP charges. FHA is not changing actual MIP charges,
which may be set outside of the rulemaking process by mortgagee letter
or other similar administrative issuance.
New Origination and Servicing Policies
Disclosure of Available HECM Program Options. This rule proposes to
require mortgagees to inform potential HECM borrowers of all of the
HECM products, features and options that FHA insures, in a manner
acceptable to the Commissioner, irrespective of the particular HECM
products offered by the mortgagee.
Capping Lifetime Interest Rate Adjustments for Adjustable Interest
Rate Products. For annual adjustable interest rate HECMs, this rule
proposes to cap periodic interest rate increases and decreases at one
percentage point and cap lifetime interest rate increases and decreases
at five percentage points. For monthly adjustable interest rate HECMs,
this rule proposes to cap lifetime
[[Page 31772]]
increases or decreases to the interest rate at five percentage points.
Interest Rate Lock-In. This rule proposes to amend the definition
of ``expected average mortgage interest rate,'' to provide that the
mortgagee, with the agreement of the borrower, may lock-in the expected
average mortgage interest rate prior to the date of loan closing or
establish the expected average mortgage interest rate on the date of
loan closing.
Super Liens. This rule proposes to require, as a condition for a
HECM to be eligible for loan assignment, that the HECM mortgage be in
lien status prior to homeowners association and condo association
liens.
Appraisal Requirements. This rule proposes to require the mortgagee
to have the property appraised no later than 30 days after receipt of
the request by an applicable party in connection with a pending
property sale; the property must be appraised within 30 days of a
foreclosure sale.
Limiting Reimbursement of Property Charge Advances. This rule
proposes to limit insurance claim reimbursement to a mortgagee to two
years of payments for: (a) Taxes, ground rents, water rates, and
utility charges that can result in liens prior to the mortgage; (b)
special assessments, which are noted on the application for insurance
or which become liens after the insurance of the mortgage; and (c)
hazard insurance premiums on the mortgaged property not in excess of a
reasonable rate. The rule also provides flexibility to allow the
Commissioner to approve an extension of the two-year limit.
Including Utilities as Property Charges. FHA proposes to amend the
definition of ``property charges'' to include utilities as a borrower
responsibility, when failure to pay such utilities would result in a
lien and would potentially trigger a due and payable event.
Acquisition and Sale of Property. This rule proposes to replace the
requirement that the property be sold for at least 95 percent of the
appraised value with a more flexible provision which allows the
Commissioner to lower this amount as necessary to adapt to market
conditions and other factors. This rule also proposes to require that
the closing costs from the sale be no more than 11 percent of the sales
price.
Cash for Keys. This rule proposes to incentivize parties with legal
authority to dispose of a property that serves as the security for a
HECM to complete a deed in lieu of foreclosure more quickly.
C. Costs and Benefits
This proposed rule will codify program changes that have reduced
risks to both FHA and to borrowers: Implementation of limits on fixed-
rate full draw loans (full draw loans expose FHA to high risk of
insurance loss, and such loans are often not sustainable solutions for
borrowers since they do not provide the borrower with future access to
HECM proceeds); a Financial Assessment to enable mortgagees to
determine if the HECM enables borrowers to comply with the mortgage
requirements and that the HECM is a sustainable solution for borrowers;
protection to Eligible Non-Borrowing Spouses from foreclosure after the
death of the last borrower, and removed incentives for borrowers to
obtain higher principal limits by using only the age of the older
spouse through quit-claiming the younger spouse from the title; and a
Property Charge Set Aside which will reduce the incidence of borrower
defaults due to non-compliance with the mortgage obligation for the
borrower to make timely payment of property taxes, hazard insurance,
and other charges. The new changes to the HECM program will reduce
foreclosures arising from these defaults, which will benefit FHA,
borrowers, and communities where properties are located; give FHA more
flexibility to accept short sales on properties where market conditions
warrant; provide homeowners with the ability to purchase a more
suitable home without incurring the costs of two loan closings and
offer greater interest rate protection to borrowers who choose an
adjustable interest rate HECM through new annual and life of loan rate
adjustment caps. Together, these changes may initially reduce HECM
origination volume, although the potential demand for HECM is expected
to remain high.
The social benefits that may be realized by this rule also include
reducing resolution costs and borrower distress in cases where loans
are no longer sustainable; improved sustainability of the MMIF, which
would enhance the choice and wellbeing of future borrowers; and
increased protections for borrowers, including those afforded non-
borrowing spouses, those resulting from transfer of more interest rate
risk from borrowers to lenders (who are likely better able to manage
this risk), and those from improving the ultimate sustainability of
HECM loans related to financial assessment changes.
The policies discussed in this rule may reduce FHA HECM insurance
endorsements by $1.9 billion per year, representing transfers from
potential HECM borrowers to other debtors; reduce FHA MMIF credit
subsidy (equivalent to increasing the economic value to FHA) for the
HECM portfolio by $42 million per year, representing transfers from
mortgagees to FHA; reduce foreclosures due to tax and insurance default
by up to 6,000 cases (totaling about $1.5 billion in loan amount) per
year, along with reduction in ancillary costs of foreclosures to
neighborhoods and local governments; reduce loan origination costs for
2,000 ``HECM for Purchase'' borrowers, saving them $12 million per year
representing transfers from mortgagees to borrowers; and increase
margins on adjustable interest rate HECMs paid by all borrowers,
resulting in transfers from borrowers to mortgagees of between $21.7
and $27.2 million per year, but which will eventually be offset by
approximately equal transfers from mortgagees to those borrowers whose
loans are seasoned in rising rate environments.
Other costs from the rule would include reduced borrowers' choice
and the well-being of those borrowers who may not meet the eligibility
requirements, or who no longer have access to as much upfront cash. The
table below and the bullet points that follow display the benefits,
costs, and transfers of this proposed rule.
------------------------------------------------------------------------
Benefits Costs Transfers
------------------------------------------------------------------------
4,400 fewer foreclosures per Reduce FHA HECM Increase margins on
year from tax and insurance insurance HECM ARMs paid by
default. endorsements by all borrowers,
$1.1 billion $1.9 billion per resulting in
aggregate unpaid principal year, thereby transfers from
balance. reducing choices borrowers to
for potential HECM mortgagees of
borrowers to access between $21.7 and
home equity. $27.2 million per
year.
These
transfers will
eventually be
offset by
approximately equal
transfers from
mortgagees to those
borrowers whose
loans are seasoned
in rising rate
environments.
[[Page 31773]]
Reduction in
ancillary costs of
foreclosures to
neighborhoods,
borrowers, and local
governments
Reduced loan origination No additional costs. No additional
costs for 2,000 ``HECM for transfers.
Purchase'' borrowers per
year.
Total benefit
of $12 million per year
Frees resources
for other purposes
------------------------------------------------------------------------
Other benefits include the following:
Improving the financial condition of the FHA MMIF due to:
[cir] Fewer foreclosures;
[cir] Persistently lower insured loan balances over time, due to
limits on initial disbursement; and
[cir] More flexibility for FHA to accept short sales on properties
where market conditions warrant.
Improving public perception of HECM regarding overall
program viability and public benefits derived from program
[cir] Reduces risks to both FHA and to borrowers associated with
fixed-rate full draw loans (full draw loans expose FHA to high risk of
insurance loss, and such loans are often not suitable for borrowers);
[cir] Helps borrowers and their housing counselors determine if a
HECM is a sustainable option for them through the use of a Financial
Assessment;
[cir] Provides protection to Eligible Non-Borrowing Spouses from
foreclosure, and removes incentives for borrowers to obtain higher
principal limits than they would otherwise be eligible for by using
only the age of the older spouse; and
[cir] Reduces the incidence of borrower defaults due to non-
compliance with the mortgage obligation.
Providing greater interest rate protection to borrowers
who choose an ARM through new annual and life-of-loan rate adjustment
caps
II. Background
The HECM program, authorized by section 255 of the National Housing
Act (NHA) (12 U.S.C. 1715z-20), is FHA's reverse mortgage insurance
program. Subsection 255(c) of the NHA gives FHA the authority to
establish the terms and conditions under which it will insure HECMs.
The regulations for this program are codified in 24 CFR part 206. The
HECM program enables FHA-approved mortgagees to extend insured mortgage
financing to eligible borrowers, 62 years of age or older, who want to
convert the equity in their homes into liquid assets. The withdrawal of
equity may take a variety of forms, as authorized by the NHA and
selected by the borrower. The home, which serves as security for the
mortgage, must be, and continue to be, the borrower's principal
residence during the life of the borrower. For adjustable interest rate
HECMs, equity payments to the borrower may be in the form of monthly
disbursements for life or a fixed term of years, disbursements from a
line of credit advance or a combination of monthly disbursements and a
line of credit. For fixed interest rate HECMs, equity payments to the
borrower must be in the form of a single lump sum disbursement at
closing.
The maximum amount of equity in the home that is available to a
borrower under a HECM loan is the ``principal limit'' that is
calculated for that loan. The borrower retains ownership of the
property and may sell the home at any time keeping any residual sale
proceeds in excess of the outstanding loan balance. Until the mortgage
is repaid, and regardless of whether or not additional disbursements
under the mortgage are permissible, interest on the mortgage, mortgage
insurance premiums, and servicing charges, where applicable, continue
to accrue.
The Housing and Economic Recovery Act of 2008 (Public Law 110-289,
approved July 30, 2008) (HERA) impacted the HECM program in a number of
important ways, including providing for the HECM for Purchase program,
establishing new origination fee limits, and transferring obligations
arising under the HECM program to the Mutual Mortgage Insurance Fund
(MMIF).
First, HERA provides HECM borrowers with the opportunity to
purchase a new principal residence with HECM loan proceeds, known as
the HECM for Purchase program. Specifically, section 2122(a)(9) of HERA
amended section 255 of the NHA to authorize FHA to insure HECMs used
for the purchase of 1- to 4-family dwelling units. In HERA Mortgagee
Letter 2008-33,\3\ issued on October 20, 2008, FHA provided that these
new HECM for Purchase transactions must satisfy existing HECM
requirements and the provisions announced in the HERA mortgagee letter.
Following the publication of this HERA mortgagee letter, the reverse
mortgage industry sought additional guidance and clarification
concerning the HECM for Purchase program. On March 27, 2009, FHA issued
HERA Mortgagee Letter 2009-11, which contained additional guidance and
therefore superseded HERA Mortgagee Letter 2008-33. It is FHA's intent
to codify the HECM for Purchase program requirements throughout FHA's
part 206 regulations, except as otherwise discussed in this
preamble.\4\
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\3\ Mortgagee letters issued under the authority granted to HUD
in HERA will be identified throughout this rule as HERA mortgagee
letters.
\4\ The following sections of HERA Mortgagee Letter 2009-11 are
guidance in their entirety and will not be codified in this rule:
Ineligible Property Types, Verification of Funding Sources, Gap
Financing, Suspensions and Debarments, Enhanced Counseling, Right of
Rescission, Closing Guidance, Data Entry Requirements, and Required
Documents for Endorsement. Other guidance provisions in this HERA
mortgagee letter are identified elsewhere in this preamble.
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On October 31, 2008, FHA issued HERA Mortgagee Letter 2008-34,
which, consistent with HERA, established new limits on the origination
fee that may be charged for HECMs. Specifically, the loan origination
fee limit is the greater of $2,500; or two percent of the maximum claim
amount of the mortgage, up to a maximum claim amount of $200,000, plus
one percent of any portion of the maximum claim amount that is greater
than $200,000, but not to exceed $6,000.
Section 2118(b)(2) of HERA transferred obligations arising under
the HECM program, for loans endorsed on or after October 1, 2008, from
the FHA General Insurance Fund to the MMIF. By statute, the Secretary
has a fiduciary duty to protect the MMIF.\5\ In addition, subsection
202(a)(6) of the NHA provides that if, pursuant to an independent
actuarial study of the MMIF required under subsection 202(a)(4), the
Secretary determines that the MMIF is not meeting the operational goals
established under subsection 202(a)(7) or there is a substantial
probability that the MMIF will not maintain its established target
subsidy rate, the Secretary may either make programmatic adjustments
under this title as necessary to reduce the risk to
[[Page 31774]]
the MMIF, or make appropriate premium adjustments.
---------------------------------------------------------------------------
\5\ See subsection 202(a)(3) of the NHA.
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FHA's FY 2012 report to Congress on the financial status of the
MMIF, issued November 16, 2012, reported substantial stress in the HECM
program and projected the economic value of the HECM portfolio to be
negative $2.8 billion.\6\ The losses to the MMIF apparent in the FY
2012 report to Congress provided the impetus for the passage of the
Reverse Mortgage Stabilization Act of 2013, and the resulting
administrative actions by FHA, which are discussed below in this
preamble. Subsequent reports to Congress on the status of the MMIF have
continued to show substantial stress due to the HECM portfolio,
necessitating the additional programmatic changes proposed in this
rule. For example, although the FY 2013 report to Congress showed a
strengthened capital position of the HECM portfolio, that was the
result of a combination of a mandatory appropriation of $1.7 billion
and a transfer of more than $4 billion from the Forward loan portfolio
to the HECM portfolio.\7\ FHA's FY 2014 report to Congress showed that
the estimated economic value of the HECM portfolio changed from a
positive $6.5 billion to a negative $1.2 billion.\8\ These projected
deficits were the result of many factors, including the impact of the
recession, the housing crisis, borrowers living longer than
anticipated, and the shift from borrowers selecting adjustable interest
rate HECMs with disbursements taken over time to fixed interest rate
transactions with larger disbursements at closing. The favorable
actuarial results the HECM Portfolio received in 2015 reflect the
positive impact of program changes made in response to 2012 through
2014 performance and an improving housing market.
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\6\ See https://portal.hud.gov/hudportal/documents/huddoc?id=F12MMIFundRepCong111612.pdf.
\7\ See https://portal.hud.gov/hudportal/documents/huddoc?id=FY2013RepCongFinStMMIFund.pdf.
\8\ See https://portal.hud.gov/hudportal/documents/huddoc?id=FY2014FHAAnnRep11_17_14.pdf.
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In order to mitigate the projected negative impact of future HECM
books of business on the MMIF and to ensure the continued availability
of the program as a sustainable solution for the senior borrower,
immediate action was imperative. Congress passed the Reverse Mortgage
Stabilization Act of 2013 (RMSA), which was signed into law on August
9, 2013 (Pub. L. 113-29), giving HUD the tools to make immediate and
necessary changes to the HECM program. Specifically, RMSA amends
subsection 255(h) of the NHA to authorize the Secretary to ``establish,
by notice or mortgagee letter, any additional or alternative
requirements that the Secretary, in the Secretary's discretion,
determines are necessary to improve the fiscal safety and soundness of
the HECM program.'' Using the authority granted to HUD by RMSA, FHA
made several critical changes to the HECM program through mortgagee
letters,\9\ and FHA proposes to codify, and in some cases modify, those
program changes in this rule.
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\9\ Mortgagee letters issued under the authority granted to HUD
in RMSA will be identified throughout this rule as RMSA mortgagee
letters.
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FHA's first action under RMSA was the issuance of RMSA Mortgagee
Letter 2013-27 \10\ on September 3, 2013, titled ``Changes to the Home
Equity Conversion Mortgage Program Requirements.'' The RMSA mortgagee
letter implemented several changes to the HECM program, which included
initial disbursement limits, the Single Lump Sum payment option,\11\ a
Financial Assessment of HECM borrowers that assesses their capacity and
willingness to meet his/her documented financial obligations and the
ability to comply with the obligations of the HECM and policy
guidelines regarding the payment of property charges, and a LESA. FHA
subsequently issued RMSA Mortgagee Letter 2013-33 \12\ on September 25,
2013, to elaborate on these policy changes and make certain clarifying
changes.
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\10\ RMSA Mortgagee Letter 2013-27 was superseded in its
entirety by RMSA Mortgagee Letter 2014-21.
\11\ FHA initially referred to this payment option as the
``Single Disbursement Lump Sum'' payment option, but for simplicity,
FHA is renaming this payment option the ``Single Lump Sum'' payment
option.
\12\ RMSA Mortgagee Letter 2013-33 was superseded in its
entirety by RMSA Mortgagee Letter 2014-21.
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FHA solicited public comment on RMSA Mortgagee Letter 2013-27
through a notice published on September 12, 2013, in the Federal
Register at 78 FR 56576 titled ``Changes to the Home Equity Conversion
Mortgage Program Requirements: Financial Assessment--Solicitation of
Comment.'' The public comment period for the September 12, 2013, notice
closed on October 15, 2013, and FHA received 13 public comments.\13\
Comments were received from nonprofit, nongovernmental and advocacy
organizations serving seniors, a trade organization for financial
institutions involved in the origination and securitization of reverse
mortgages, a reverse mortgage firm, and other interested parties. In
general, the comments applauded FHA's efforts and supported the
establishment of some type of Financial Assessment to determine whether
or not a prospective HECM borrower will be able to meet the financial
obligations of the mortgage and whether the HECM is a sustainable
option for the senior. However, many commenters expressed concern that
the new Financial Assessment requirements were unnecessarily onerous to
accomplishing FHA's goals.
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\13\ Comment 0011 was a duplicate of Comment 0012 and has not
been counted in this number. Comment 0015 was received on October
22, 2013, but FHA accepted submission of that comment.
---------------------------------------------------------------------------
In response to these public comments, and in further reliance on
the authority of the RMSA, FHA issued RMSA Mortgagee Letter 2014-21,
titled ``Revised Changes to the Home Equity Conversion Mortgage (HECM)
Program Requirements,'' on November 10, 2014. This RMSA mortgagee
letter consolidated and revised policy requirements issued under RMSA
Mortgagee Letters 2013-27 and 2013-33, and superseded those mortgagee
letters in their entirety. Of significance, this mortgagee letter
revised FHA's HECM credit standing and Financial Assessment
requirements, as well as the Property Charge Funding Requirements, and
set policy for unused LESA funds during a Deferral Period \14\ and upon
termination of the loan. This RMSA mortgagee letter also revised
requirements announced in RMSA Mortgagee Letter 2014-11, discussed
below, to clarify that a borrower with a fixed interest rate HECM may
be reimbursed for the cost of materials, under certain conditions, when
repairs must be completed after loan closing.
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\14\ The Deferral Period is discussed later in the preamble in
relation to RMSA Mortgagee Letter 2014-07.
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On April 25, 2014, FHA established additional and alternative
program requirements concerning due and payable status for HECMs with
Case Numbers assigned on or after August 4, 2014, where there is a Non-
Borrowing Spouse at the time of loan closing, through the issuance of
RMSA Mortgagee Letter 2014-07. Subsection 255(j) of the NHA provides
that a HECM that does not contain a ``Safeguard to Prevent Displacement
of Homeowner,'' which defers repayment of the loan obligation until
``the homeowner's death, the sale of the home, or the occurrence of
other events specified in regulations of the Secretary,'' is ineligible
for FHA insurance. FHA has, since the inception of the HECM program,
interpreted this provision in its regulations as requiring HECMs be
called due and payable upon the death of the last surviving borrower,
the sale of the home, and other conditions,
[[Page 31775]]
including the failure to reside in the property and the failure to pay
required taxes. FHA continues to believe that its original
interpretation gives full force and effect to the intent of the
statute. Nevertheless, an alternative interpretation of subsection
255(j) of the NHA, which would extend the mortgage insurance
eligibility requirements concerning the safeguard to the borrower and
any Eligible Non-Borrowing Spouse of the borrower at the time of
origination, has been advanced. RMSA Mortgagee Letter 2014-07, as
amended by RMSA Mortgagee Letter 2015-02,\15\ implemented,
prospectively only, this alternative interpretation of subsection
255(j) of the NHA in order to ensure the viability of the HECM program
and the MMIF.
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\15\ RMSA Mortgagee Letter 2015-02 is discussed later in this
preamble.
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In general, RMSA Mortgagee Letter 2014-07 established a Deferral
Period, during which the due and payable status resulting from the
death of the last surviving borrower of a HECM is deferred based on the
continued satisfaction of the established requirements for a Non-
Borrowing Spouse and all other FHA requirements. This RMSA mortgagee
letter also required that the mortgagee base the principal limit on the
age of the youngest borrower or Non-Borrowing Spouse, instead of only
the youngest borrower.
FHA solicited public comment on RMSA Mortgagee Letter 2014-07
through a notice published on May 2, 2014, in the Federal Register at
79 FR 25147 titled ``Home Equity Conversion Mortgage (HECM) Program:
Non-Borrowing Spouse--Solicitation of Comment.'' The public comment
period on the May 2, 2014, notice closed on June 2, 2014, and FHA
received 10 public comments. Comments were received from a HECM
servicer, a national reverse mortgage association, and other interested
parties. In general, many comments applauded and supported FHA's
efforts to provide protections to Non-Borrowing Spouses and ensure the
viability of the HECM program. However, commenters sought clarification
on many issues.
In response to the public comments, FHA issued RMSA Mortgagee
Letter 2015-02 to amend, and where conflicts were present, to
supersede, RMSA Mortgagee Letter 2014-07. In general, RMSA Mortgagee
Letter 2015-02 defined two categories of Non-Borrowing Spouses:
Ineligible Non-Borrowing Spouse and Eligible Non-Borrowing Spouse. The
Ineligible Non-Borrowing Spouse is a Non-Borrowing Spouse who is
ineligible to receive the benefit of the Deferral Period, and as a
result, whose age will not be used to determine the principal limit.
The Eligible Non-Borrowing Spouse is a Non-Borrowing Spouse, who, at
the time of origination, is eligible to receive the benefit of the
Deferral Period, and as a result, whose age, if younger than the age of
the borrower(s), will be used to determine the principal limit. The
RMSA mortgagee letter also provided for a 30-day period to cure a
default and reinstate a Deferral Period if an Eligible Non-Borrowing
Spouse fails to meet a required obligation of the Mortgage and provided
clarification for the ``Seasoning Requirements for Existing Non-HECM
Liens'' section of RMSA Mortgagee Letter 2014-21, discussed above.
On June 18, 2014, FHA issued RMSA Mortgagee Letter 2014-11, titled
``Home Equity Conversion Mortgage (HECM) Program: Limit on Insurability
of Fixed Interest Rate Products under the HECM Program.'' Prior to
FHA's issuance of this RMSA mortgagee letter, Ginnie Mae issued an All
Participants Memorandum, APM 14-04, announcing that fixed interest rate
HECM loans with future draws would be ineligible for securitization on
or after June 1, 2014.\16\ As a result of APM 14-04, FHA found it
necessary to limit the insurability of fixed interest rate mortgages
under the HECM program to mortgages with the Single Lump Sum payment
option, and to disallow the use of the Single Lump Sum payment option
for adjustable interest rate HECMs, which FHA did through the issuance
of RMSA Mortgagee Letter 2014-11.
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\16\ See https://www.ginniemae.gov/doing_business_with_ginniemae/issuer_resources/Pages/mbsguideapmslibdisppage.aspx?ParamID=27.
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FHA solicited public comment on RMSA Mortgagee Letter 2014-11
through a notice published on July 10, 2014, in the Federal Register at
79 FR 39408 titled ``Home Equity Conversion Mortgage (HECM) Program:
Limit on Insurability of Fixed Interest Rate Products Under the HECM
Program--Solicitation of Comment.'' The public comment period for the
July 10, 2014, notice closed on August 11, 2014, and FHA received 2
public comments. In response to public comments, and as mentioned
above, RMSA Mortgagee Letter 2014-21 revised requirements announced in
RMSA Mortgagee Letter 2014-11.
The mortgagee letters discussed above, which were issued under HERA
and RMSA, contain both program changes implemented through requirements
that, except for the authority granted by HERA or RMSA, would have been
issued in the format of regulations rather than another form of notice,
and material that is typically characterized as guidance. It is FHA's
intent to codify only the regulatory content of Mortgagee Letters 2008-
34, 2009-11, 2014-07, 2014-11, 2014-21, and 2015-02. These mortgagee
letters will remain in effect for HECMs to which they are applicable
and which have FHA Case Numbers assigned prior to the effective date of
a final rule.
III. This Proposed Rule
The regulatory changes proposed by this rule are summarized below.
For ease of review, section III.A. of this preamble pertains to changes
made to 24 CFR part 30 and section III.B. of this preamble pertains to
changes made to 24 CFR part 206. Section III.B. is organized into three
sections. Section III.B.1. discusses changes which are proposed to be
applied across the board to FHA's part 206 regulations. Section
III.B.2. includes the remaining substantive HECM program amendments
proposed by this rule, in order of appearance in the codified
regulations, and identifies whether the amendment simply codifies a
program change already implemented by mortgagee letter; codifies and
further amends a program change already implemented by mortgagee
letter, taking into account changed circumstances and public comments
received on various Federal Register notices issued for comment; or is
a new program change. Finally, the technical amendments are discussed
in section III.B.3. of this preamble.
A. Civil Money Penalties: Certain Prohibited Conduct--24 CFR Part 30
Currently, HUD's regulation at 24 CFR 30.35, which sets HUD's
policy regarding taking civil money penalty action against mortgagees
or lenders, does not include references to the requirements of FHA's
HECM program in 24 CFR part 206. In this rule, FHA proposes new
amendments which would expand two provisions to include specific
reference to the HECM regulations. First, in Sec. 30.35(a)(8), this
rule proposes to allow the Mortgagee Review Board to initiate a civil
money penalty action against a mortgagee or lender who knowingly and
materially fails to timely submit documents that are complete and
accurate in connection with a claim for insurance benefits in
accordance with Sec. 206.127. Second, in Sec. 30.35(a)(10), this rule
proposes to allow the Mortgagee Review Board to initiate a civil money
penalty action against a mortgagee or lender who
[[Page 31776]]
knowingly and materially fails to service FHA mortgages in accordance
with the requirements of 24 CFR part 206.
B. Home Equity Conversion Mortgage Insurance--24 CFR Part 206
1. Global Changes to Part 206
Throughout the regulations, the term ``Secretary'' will be changed
to ``Commissioner'' because ``Commissioner,'' rather than ``Secretary''
is the term used to refer to the official who heads FHA and in most
cases, ``FHA'' will replace ``HUD'' to provide more specificity. In
addition, in most cases, the term ``mortgagor'' will be changed to
``borrower'' which will be defined in Sec. 206.3 to mean a mortgagor
who is an original borrower under the Loan Agreement and Note, not
including a borrower's successors and assigns. In most cases, the term
``payment'' will be changed to ``disbursement''. These changes are
designed to help bring consistency to the terminology used regarding
the HECM program and eliminate confusion about the meaning of certain
terms.
2. Substantive Changes to Regulations
Subpart A--General
Definitions (Sec. 206.3)
Borrower. In order to distinguish borrowers from mortgagors, this
rule proposes to add a definition of ``borrower'' to mean a mortgagor
who is an original borrower under the HECM Loan Agreement and Note, not
including a borrower's successors and assigns. Each borrower shall be
on title, shall also be a mortgagor, and shall sign all applicable HECM
loan documents.
Borrower's Advance. The definition of ``Borrower's Advance''
originated in RMSA Mortgagee Letter 2014-11, and was subsequently
updated in RMSA Mortgagee Letter 2014-21. Taken together, those RMSA
mortgagee letters provided that ``Borrower's Advance'' means funds
advanced to the borrower at the closing of a fixed interest rate HECM
which may not exceed the greater of 60 percent of the principal limit;
or Mandatory Obligations plus an additional 10 percent of the principal
limit. In this rule, FHA proposes to codify a definition of
``Borrower's Advance'' that does not include the actual calculation,
which can more appropriately be found in the section regarding the
calculation of payments, Sec. 206.25, such that the ``Borrower's
Advance'' would be the funds advanced to the borrower at the closing of
a fixed interest rate HECM. In this rule, FHA proposes to make changes
to the calculation of the Borrower's Advance to allow the Commissioner
flexibility in setting these amounts, but such changes are discussed
later in this preamble in relation to Sec. 206.25.
CMT Index. This proposed rule eliminates the definition of One-
month Constant Maturity Treasury (CMT) Index and instead adds a more
general definition of CMT Index, since FHA's regulations also permit
the use of the one-year CMT Index.
Commissioner. This proposed rule adds a definition of
``Commissioner'' to mean the Federal Housing Commissioner or the
Commissioner's authorized representative, and as a result of this
addition, eliminates the now unnecessary definition of ``Secretary''.
Contract of insurance. FHA proposes to define ``contract of
insurance'' instead of citing to 24 CFR 203.251(j), and proposes to
amend the definition to specifically be applicable to FHA's part 206
regulations such that ``contract of insurance'' means the agreement
evidenced by the issuance of a Mortgage Insurance Certificate or by the
endorsement of the Commissioner upon the credit instrument given in
connection with an insured mortgage, incorporating by reference
regulations in subpart C of this part and the applicable provisions of
the NHA.
Deferral Period. The term ``Deferral Period'' was introduced and
defined in RMSA Mortgagee Letter 2014-07, and subsequently updated in
RMSA Mortgagee Letter 2015-02. Taken together, those RMSA mortgagee
letters provide that ``Deferral Period'' means the period of time
following the death of the last surviving borrower during which the due
and payable status of a HECM is deferred for an Eligible Non-Borrowing
Spouse provided that the Qualifying Attributes and all other FHA
requirements continue to be satisfied. FHA proposes to codify this
definition.
Eligible Non-Borrowing Spouse. The term ``Eligible Non-Borrowing
Spouse'' was introduced in RMSA Mortgagee Letter 2015-02. ``Eligible
Non-Borrowing Spouse'' means a Non-Borrowing Spouse who meets all
Qualifying Attributes for a Deferral Period. FHA proposes to codify
this definition.
Estate planning service firm. This rule proposes to update the
definition of ``estate planning service firm'' in Sec. 206.3 to
conform to changes made to Sec. 206.41 which specify counseling
requirements for Eligible and Ineligible Non-Borrowing Spouses. In
addition, because participating agencies are approved under subpart B
of 24 CFR part 214, not Sec. 206.41, this rule proposes to change
references regarding the approval of participating agencies in Sec.
206.41 to more accurately reflect the requirements of subpart B of 24
CFR part 214.
Expected average mortgage interest rate. ``Expected average
mortgage interest rate'' is currently defined at Sec. 206.3 to mean
the interest rate used to calculate the principal limit and the future
disbursements to the borrower. RMSA Mortgagee Letter 2014-11 amended
the definition of ``expected average mortgage interest rate'' for fixed
interest rate HECMs to provide that the expected average mortgage
interest rate is the same as the fixed mortgage (Note) interest rate
and is set simultaneously with the fixed interest rate. This rule
proposes to codify that amendment, and to also further amend the
definition of ``expected average mortgage interest rate'' due to an
inadvertent past error. On July 20, 2007, at 72 FR 40048, FHA published
a final rule adding additional indices to adjust interest rates for
FHA-insured single family mortgage loans, including HECM loans. The
July 20, 2007, final rule inadvertently amended the definition in the
HECM regulations of ``expected average mortgage interest rate'' to mean
that the expected average mortgage interest rate is ``[e]stablished
based on the date the initial loan is signed by the mortgagor.''
However, industry practice has been that the mortgagee may lock-in the
expected average mortgage interest rate for HECMs at the time the
initial loan application is signed by the borrower or prior to the date
of closing. Locking in the expected average mortgage interest rate
provides HECM borrowers with the comfort of knowing that the expected
average mortgage interest rate cannot increase during the interest rate
lock-in period and subsequently reduce the principal limit. FHA
therefore proposes to amend the definition of ``expected average
mortgage interest rate,'' to provide that the mortgagee, with the
agreement of the borrower, may lock in the expected average mortgage
interest rate prior to the date of loan closing or establish the
expected average mortgage interest rate on the date of loan closing. In
accordance with changes proposed to Sec. 206.21(b), if the expected
average mortgage interest rate is locked in prior to closing, the
margin on an adjustable interest rate loan is also locked in at the
same time and is the difference between the expected average mortgage
interest rate and the value of the appropriate index at the time of
rate lock-in.
First 12-Month Disbursement Period. This proposed rule codifies the
definition of ``First 12-Month Disbursement Period'' from RMSA
Mortgagee Letter 2014-21 to mean the
[[Page 31777]]
period beginning on the day of loan closing and ending on the day
before the loan closing anniversary date. When the day before the
anniversary date of loan closing falls on a Federally-observed holiday,
Saturday, or Sunday, the end period will be on the next business day
after the Federally-observed holiday, Saturday, or Sunday.
HECM. This proposed rule adds a definition of ``HECM'' to mean a
Home Equity Conversion Mortgage.
HECM counselor. The current definition of ``Home Equity Conversion
Mortgage (HECM) counselor'' in Sec. 206.3 defines a HECM counselor as
an ``individual who provides statutorily required counseling to clients
who may be eligible for or interested in obtaining an FHA-insured HECM
. . .'' However, it has recently come to FHA's attention that
interested parties may be providing counseling, and their financial
relationship with prospective or current HECM borrowers or Non-
Borrowing Spouses may impact their provision of counseling services. In
Sec. 206.3, FHA proposes to change the term ``Home Equity Conversion
Mortgage (HECM) counselor'' to ``HECM counselor'', for simplicity, and
to amend the definition to state, consistent with subsection
255(d)(2)(B) of the NHA, that a HECM counselor must be an independent
third-party that is currently active on FHA's HECM Counselor Roster and
that is not, either directly or indirectly, associated with or
compensated by, a party involved in originating, servicing, or funding
the HECM, or the sale of annuities, investments, long-term care
insurance or any other type of financial or insurance product.
Ineligible Non-Borrowing Spouse. The term ``Ineligible Non-
Borrowing Spouse'' was introduced in RMSA Mortgagee Letter 2015-02 to
mean a Non-Borrowing Spouse who does not meet all Qualifying Attributes
for a Deferral Period. FHA proposes to codify this definition.
Initial Disbursement Limit. The phrase ``Initial Disbursement
Limit'' is defined in RMSA Mortgagee Letter 2014-21 to mean the maximum
disbursement to a borrower of an adjustable interest rate HECM allowed
at loan closing and during the First 12-Month Disbursement Period,
which is the greater of 60 percent of the principal limit; or the sum
of Mandatory Obligations and 10 percent of the principal limit. In this
rule, FHA proposes to codify a definition of ``Initial Disbursement
Limit'' that does not include the actual calculation, which can more
appropriately be found in the section regarding the calculation of
payments, Sec. 206.25, such that the ``Initial Disbursement Limit''
would be the maximum amount of funds that can be advanced to the
borrower of an adjustable interest rate HECM at loan closing and during
the First 12-Month Disbursement Period. FHA proposes to make changes to
the calculation of the Initial Disbursement Limit to allow the
Commissioner flexibility in setting the limit, but such changes are
discussed later in the preamble in relation to Sec. 206.25.
Loan documents. FHA currently defines ``mortgage'' to include the
credit instrument, or Note, secured by the lien, and the loan
agreement. In this rulemaking, FHA takes the opportunity to add a
specific definition for ``loan documents'' which would include the
credit instrument, or Note, secured by the lien, and the loan agreement
because these documents are not actually the mortgage.
Mandatory Obligations. The term ``Mandatory Obligations'' was
defined in RMSA Mortgagee Letter 2014-21 as the fees and charges
incurred in connection with the origination of the HECM that are
requirements for loan approval or disbursements for a Repair Set Aside.
In this rule, FHA proposes to clarify that Mandatory Obligations are
fees and charges incurred in connection with the origination of the
HECM that are requirements for loan approval and which will be paid
either at closing or during the First 12-Month Disbursement Period in
accordance with Sec. 206.25. In Sec. 206.25, as discussed later in
this preamble, FHA proposes to codify the lists of Mandatory
Obligations from RMSA Mortgagee Letter 2014-21, but also proposes to
amend the lists to give the Commissioner the flexibility to include, as
Mandatory Obligations, other charges or fees established through
notice.\17\
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\17\ The term ``notice'' includes mortgagee letters and other
forms of written notice, unless otherwise specified.
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Maximum claim amount. The ``maximum claim amount'' is currently
defined in Sec. 206.3 as the lesser of the appraised value of the
property, as determined by the appraisal used in underwriting the loan,
or the maximum dollar amount for an area established by the Secretary
for a one-family residence under subsection 203(b)(2) of the NHA, as
adjusted where applicable under section 214 of the NHA, as of the date
of loan closing. In this rule, FHA proposes to instead reference
subsections 255(g) and (m) of the NHA because section 255 of the NHA
contains the statutory requirements of the HECM program. FHA also
proposes to include, as an option for determining the maximum claim
amount, the sales price of the property being purchased for the sole
purpose of being the principal residence, such that the ``maximum claim
amount'' means the lesser of the appraised value of the property, the
sales price of the property, or the national mortgage limit, which is
consistent with the maximum claim amount calculation in HERA Mortgagee
Letter 2009-11.
MIP. FHA proposes to amend the definition of ``MIP'' in Sec. 206.3
to replace the cross-cite to 24 CFR 203.251(k) with the actual
definition, such that ``MIP'' means the mortgage insurance premium paid
by the mortgagee to the Commissioner in consideration of the contract
of insurance.
Mortgage. In an effort to provide greater clarity, FHA proposes to
remove the last sentence in the definition of ``mortgage'' in Sec.
206.3. The loan documents which are not actually the mortgage will be
more appropriately defined under a new definition of ``loan documents''
and FHA will eliminate the unnecessary and partially inaccurate
reference to the parties to the loan agreement.
Mortgagee. FHA proposes to amend the definition of ``mortgagee'' in
Sec. 206.3 to replace the reference to subsection 255(b)(2) of the NHA
with the actual definition, such that ``mortgagee'' means the original
lender under a mortgage and its successors and assigns, as are approved
by the Commissioner.
Mortgagor. In order to distinguish HECM mortgagors from HECM
borrowers, FHA proposes to clarify the definition of a HECM
``mortgagor'' in Sec. 206.3 to mean each original HECM mortgagor under
a HECM and his heirs, executors, administrators and assigns. HECM
mortgagors also include non-borrowing owners who are on title to the
property and, consequently, must sign the HECM Mortgage but do not sign
the HECM Note or Loan Agreement, and therefore are not borrowers. A
Non-Borrowing Spouse may or may not be a mortgagor; for example, in a
community property state, a Non-Borrowing Spouse will always be a
mortgagor.
Non-Borrowing Spouse. The term ``Non-Borrowing Spouse'' was
introduced in RMSA Mortgagee Letter 2014-07 and means the spouse, as
defined by the law of the state in which the spouse and borrower reside
or the state of celebration, of the HECM borrower at the time of
closing and who is also not a borrower. FHA proposes to codify this
definition.
Participating agency. FHA proposes to use the term ``participating
agency'' in Sec. 206.302 and in the definition of ``estate planning
service firm'' in
[[Page 31778]]
Sec. 206.3, and therefore proposes to provide a definition for the
term in Sec. 206.3. The definition would mirror the definition in the
Housing Counseling regulations at Sec. 214.3, such that
``participating agency'' means all housing counseling and intermediary
organizations participating in HUD's Housing Counseling program,
including HUD-approved agencies, and affiliates and branches of HUD-
approved intermediaries, HUD-approved multi-state organizations (MSOs),
and state housing finance agencies.
Principal limit. FHA proposes to update the definition of
``principal limit'' to reflect the changes made in RMSA Mortgagee
Letters 2014-07 and 2015-02 regarding Non-Borrowing Spouses, and in
RMSA Mortgagee Letter 2014-11 regarding the changes made to the fixed
interest rate product, as well as new changes discussed below.
``Principal limit'' would be amended to mean the maximum amount
calculated by taking into account the age of the youngest borrower or
Eligible Non-Borrowing Spouse, the expected average mortgage interest
rate, and the maximum claim amount. Because individual principal limit
factors are published, FHA proposes to eliminate the sentence stating
that a person who is over the age of 95 will be treated as though he is
95 for the purposes of calculating the principal limit. However, in
order to eliminate this sentence in Sec. 206.3 and not impact the
formula for the calculation of tenure payments in Sec. 206.25(f), FHA
proposes to make clear in Sec. 206.25(f) that in calculating tenure
payments for a borrower over the age of 95, the age of 95 will be used.
In addition, the current regulatory definition states that the
principal limit increases each month at a rate equal to one-twelfth of
the mortgage interest rate in effect at that time, plus one-twelfth of
one-half percent per annum. FHA proposes to amend this calculation such
that the principal limit increases each month at a rate equal to one-
twelfth of the mortgage interest rate in effect at that time, plus one-
twelfth of the annual mortgage insurance rate, so that a regulatory
change is not necessary if the Commissioner changes the annual MIP,
which the Commissioner may do through notice under existing authority.
As stated in RMSA Mortgagee Letter 2014-11, for adjustable interest
rate HECMs, the increase in principal limit may be made available to
the borrower each month, except that there may be restrictions on draws
during the First-12 Month Disbursement Period; for fixed interest rate
HECMs, although the principal limit will continue to increase at the
rate established by the Commissioner, the funds will not be available
for the borrower to draw against after loan closing.
Principal residence. The definition of ``principal residence'' was
amended in RMSA Mortgagee Letter 2014-07 to account for changes made
regarding Non-Borrowing Spouses, and is being further amended in this
proposed rule to account for additional changes made in RMSA Mortgagee
Letter 2015-02 which introduced the concepts of Eligible and Ineligible
Non-Borrowing Spouses. ``Principal residence'' will be amended to mean
the dwelling where the borrower and, if applicable, Non-Borrowing
Spouse, maintains his permanent place of abode, and typically spends
the majority of the calendar year. Content from Sec. 206.39 that
addresses a borrower who is in a health care institution, as clarified
in RMSA Mortgagee Letter 2014-07, has been moved to the definition of
``principal residence'' in Sec. 206.3. The definition of ``principal
residence'' will also cover a Non-Borrowing Spouse who is temporarily
in a health care institution provided certain conditions are met. In
addition, during a Deferral Period, the property shall continue to be
considered the principal residence of any Eligible Non-Borrowing Spouse
who is temporarily in a health care institution, provided certain
conditions are met.
Property charges. The term ``property charges'' was defined in RMSA
Mortgagee Letter 2014-21, and FHA proposes to codify that definition
with only slight revisions, to mean the obligations of the borrower
that are, unless otherwise specified, defined as property taxes, hazard
insurance premiums, any applicable flood insurance premiums, ground
rents, condominium fees, planned unit development fees, homeowners
association fees, any other special assessments that may be levied by
municipalities or state law, and utilities. While RMSA Mortgagee Letter
2014-21 did not include utilities in the definition of ``property
charges,'' FHA proposes to include utilities as a borrower
responsibility. FHA has experienced situations where borrowers have not
paid utilities, and as a result, large liens for utilities are placed
on the property. When FHA pays the insurance claim on the property, FHA
reimburses the mortgagee for the utility lien amount. Failure to pay
utilities that result in a lien against the property would potentially
trigger a due and payable event. By expressly including these utilities
as borrower responsibilities, FHA is limiting reimbursement of such
expenses.
Qualifying Attributes. The term ``Qualifying Attributes'' was
introduced in RMSA Mortgagee Letter 2014-07. FHA proposes to amend the
definition of ``Qualifying Attributes'' to fit with additional program
changes introduced in RMSA Mortgagee Letter 2015-02, to mean the
requirements which must be met by a Non-Borrowing Spouse in order to be
an Eligible Non-Borrowing Spouse.
Preemption (Sec. 206.8)
In this rule, FHA proposes to add counseling charges as an example
of loan advances to be included in the amount secured by the mortgage,
and FHA also proposes to condense some previously listed examples that
meet the definition of ``property charges'', as newly defined in Sec.
206.3.
Subpart B--Eligibility; Endorsement
Disclosure of Available HECM Program Options (Sec. 206.13)
Section 206.17 allows mortgagees to provide all payment plan
options and fixed and adjustable interest rate mortgages to HECM
borrowers. Section 206.43(a) requires mortgagees to disclose the costs
of obtaining the mortgage, and provide a Good Faith Estimate and other
applicable Truth in Lending disclosures to the borrower so the borrower
has knowledge of which charges are, and which charges are not, required
to obtain the mortgage.
For several years, the fees and charges associated with reverse
mortgages have been structured to allow the borrower to benefit in a
manner of their choosing by selecting from various HECM products.
However, the volume of adjustable interest rate HECMs declined to
approximately 30 percent of the total HECMs endorsed for insurance
during 2010-2012. On June 28, 2012, the Consumer Financial Protection
Bureau (CFPB) published its ``Reverse Mortgages Report to
Congress'',\18\ which revealed the practice of many mortgagees failing
to inform borrowers of the availability and benefits of adjustable
interest rate mortgages.
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\18\ See https://files.consumerfinance.gov/a/assets/documents/201206_cfpb_Reverse_Mortgage_Report.pdf.
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In response to these concerns, this rule proposes to add Sec.
206.13, which would require that mortgagees inform potential HECM
borrowers of all of the HECM products, features and options that FHA
insures, in a manner acceptable to the Commissioner, irrespective of
the particular HECM products offered by the mortgagee,
[[Page 31779]]
including (1) fixed interest rate mortgages with the Single Lump Sum
payment option; (2) adjustable interest rate mortgages with tenure,
term, and line of credit disbursement options, or a combination of
these disbursement options; (3) any other disbursement options that FHA
will insure; and (4) initial mortgage insurance premium options, and
how those affect the availability of other mortgage and disbursement
options. This regulatory change is designed to provide a balanced
approach in educating and equipping borrowers with the information
needed to determine which options will best meet their short- and long-
term goals, as well as their financial capacity.
Insurance (Sec. 206.15)
It has come to FHA's attention that the last sentence in Sec.
206.15, which currently states, ``The mortgagee shall execute for the
Secretary the loan agreement included in the term `mortgage' as defined
in Sec. 206.3,'' may result in confusion regarding FHA's role in the
loan agreement. The loan agreement has been, and continues to be, an
agreement between the borrower and the mortgagee. FHA is taking the
opportunity provided by this rulemaking to eliminate any potential
confusion caused by the language in Sec. 206.15 regarding the
execution of the loan agreement by removing the last sentence in this
section.
In addition, because the Lender Insurance program is currently
unavailable for the HECM program, FHA proposes to remove reference to
the Lender Insurance program in Sec. 206.15 at this time.
Eligible Mortgages: General (Sec. 206.17)
In RMSA Mortgagee Letter 2013-27,\19\ FHA introduced the Single
Lump Sum payment option as a payment option for fixed and adjustable
interest rate HECMs. In RMSA Mortgagee Letter 2014-11, however, FHA
limited fixed interest rate HECMs to the Single Lump Sum payment
option, and prohibited adjustable interest rate HECMs from using the
Single Lump Sum payment option. These changes require FHA to amend
Sec. 206.17 to bring it into alignment with the current HECM program
requirements. Because the payment options are now dependent upon the
type of interest rate, FHA proposes to merge the content of current
paragraphs (a) and (b) into one paragraph (b), while reserving
paragraph (a). The new paragraph (b) would further specify that fixed
interest rate HECMs must use the Single Lump Sum payment option, and
that adjustable interest rate HECMs must provide for the term, tenure,
line of credit, modified term or modified tenure payment options.
---------------------------------------------------------------------------
\19\ Mortgagee Letter 2013-27 was later superseded by Mortgagee
Letter 2014-21, but the applicable policy change which this rule
proposes to codify was announced in Mortgagee Letter 2014-11, prior
to the publication of Mortgagee Letter 2014-21.
---------------------------------------------------------------------------
Payment Options (Sec. 206.19)
Current Sec. 206.19 describes term, tenure and line of credit
payment options. FHA proposes to amend this section by also including
descriptions of the Single Lump Sum, modified term and modified tenure
payment options. As mentioned above, the Single Lump Sum payment option
was first introduced in RMSA Mortgagee Letter 2013-27, and then
subsequently discussed and limited to fixed interest rate HECMs in RMSA
Mortgagee Letter 2014-11. FHA proposes to codify the description and
requirements of the Single Lump Sum payment option in Sec. 206.19.
Sections 206.17 and 206.25 currently provide for modified term or
modified tenure payment options, but Sec. 206.19 did not previously
describe the modified term or modified tenure payment options by
themselves; they were listed as a subparagraph of paragraph (d), which
discusses principal limit set asides. When a portion of the principal
limit is set aside to be drawn down as a line of credit, such ``set
aside'' is more appropriately characterized as a payment option
(modified term or modified tenure payment option) than as a principal
limit set aside, so FHA proposes to update Sec. 206.19 accordingly in
this rulemaking.
FHA also proposes to amend current paragraph (d) (proposed
paragraph (f)) to reflect changes made to FHA's principal limit set
aside policies. The LESA was first introduced in RMSA Mortgagee Letter
2013-27, but, after considering public comments, the LESA was
substantially revised through RMSA Mortgagee Letter 2014-21. The LESA
is discussed in more detail later in this preamble, as FHA proposes to
codify its requirements in Sec. 206.205, but FHA proposes to also
amend Sec. 206.19 to reflect that when required by FHA's regulations
in Sec. 206.205, or selected by the borrower in accordance with Sec.
206.205, the mortgagee shall set aside a portion of the principal limit
in a LESA to be used to pay certain property taxes, including special
assessments levied by municipalities or state law, and flood and hazard
insurance premiums. In addition, when the borrower has an adjustable
interest rate HECM and is not required to have a LESA, the borrower may
elect to have the mortgagee pay property charges.
In this section, FHA also proposes to codify requirements announced
in RMSA Mortgagee Letters 2014-11 and 2014-21 regarding the limitation
on disbursements during the First 12-Month Disbursement Period. Under
these RMSA mortgagee letters, disbursements may not be made during the
First 12-Month Disbursement Period in excess of the Initial
Disbursement Limit or the Borrower's Advance, as applicable. In this
rule, however, FHA is requesting public comment regarding exceptions to
this limitation. While FHA's intent of limiting draws during the first
12 months of the HECM was to ensure that funds remained available to
borrowers over time and were available when borrowers needed them, FHA
recognizes that there may be some limited circumstances, such as
medical emergencies or death of a loved one, which may necessitate
allowing draws beyond the established limits.
FHA specifically requests public comment on the following
questions:
(1) What types of medical emergencies or other circumstances may
result in exceptions to the draw limits during the First 12-Month
Disbursement Period, such as hospice care, illness requiring extensive
therapy (e.g., chemotherapy, dialysis, physical therapy), terminal
medical conditions, serious illness, and catastrophic accidents
resulting in incapacitation of the borrower or death of a spouse?
(2) What kind of documentation should be required to support the
anticipated or actual financial impact of such exigent circumstances?
Finally, in new Sec. 206.19(h), which incorporates the contents of
current paragraph (f), FHA proposes to clarify the policy announced in
RMSA Mortgagee Letter 2014-21 regarding partial repayment for term,
tenure, line of credit, modified term and modified tenure payment
options in paragraph (h)(2). RMSA Mortgagee Letter 2014-21 states that
if a borrower makes a partial repayment of the outstanding loan balance
during the First 12-Month Disbursement Period, the mortgagee must
increase the available principal limit by the amount applied toward the
outstanding loan balance, up to an amount not to exceed the Initial
Disbursement Limit or the principal limit, as applicable. FHA proposes
to clarify that any partial repayment shall be applied in accordance
with the terms contained in the Note. Similarly, in Sec. 206.19(h)(3),
FHA proposes to clarify that for the Single Lump Sum payment option, if
the borrower makes a partial repayment of the outstanding loan
[[Page 31780]]
balance any time after loan closing and before the contract of
insurance is terminated, the mortgagee shall apply the funds in
accordance with the terms contained in the Note, but that any resulting
increase in the principal limit shall not be available for the borrower
to draw against.
Interest Rate (Sec. 206.21)
Section 206.21 provides requirements related to fixed and
adjustable interest rate HECMs, including disclosure requirements. As
discussed earlier in this preamble in the discussion of the definition
of ``expected average mortgage interest rate'' in Sec. 206.3, FHA
proposes to amend paragraph Sec. 206.21(b), which applies to
adjustable interest rate HECMs, to make conforming changes consistent
with the proposed changes to that definition, which would allow for the
interest rate to be locked-in prior to closing. If the interest rate
was locked-in prior to closing, then amended Sec. 206.21(b) would
provide that the margin used to determine interest rate adjustments is
the difference between the expected average mortgage interest rate and
the value of the appropriate index at the time of rate lock-in.
Current regulations at Sec. 206.21(b) provide that for annual
adjustable interest rate HECMs, periodic interest rate increases and
decreases are capped at two percentage points and there is a five or
six percentage point cap over the life of the loan, depending on
whether the loan is a one- or three-year adjustable rate mortgage (five
percentage point cap) or a five-, seven-, or ten-year adjustable rate
mortgage (six percentage point cap). These caps, although modeled after
Sec. 203.49, vary from the levels set in Sec. 203.49. FHA proposes to
remove reference to three-, five-, seven-, and ten-year adjustable
interest rate HECMs because FHA only offers to insure one-year annual
adjustable interest rate HECMs and monthly adjustable interest rate
HECMs.
FHA also proposes to amend the cap level on one-year annual
adjustable rate HECMs to more closely align with those of forward
mortgages and to provide enhanced interest rate protection for
borrowers. As such, FHA proposes that for the annual adjustable
interest rate mortgages, periodic interest rate increases and decreases
are capped at one percentage point and there is a five percentage point
cap over the life of the loan.
Section 206.21(b)(2) permits mortgagees who offer an annual
adjustable interest rate mortgage the opportunity to offer a monthly
adjustable interest rate mortgage using the Constant Maturity Treasury
(CMT) or London Interbank Offer Rate (LIBOR) interest rate index
without defining the rate of change that can occur during a 12-month
cycle or over the life to the loan. A similar limit on lifetime
interest rate adjustments for monthly adjustable interest rate HECMs
would reduce risk to the borrower and the MMIF by reducing potential
principal balance growth, and providing access to additional funds for
the borrower. Therefore, this proposal revises Sec. 206.21(b)(2) to
provide that adjustments to the mortgage interest rate over the entire
term of the monthly adjustable interest rate HECM may not result in a
change in either direction from the initial contract interest rate of
more than five percentage points.
In addition, in Sec. 206.21(b), FHA references regulations in
Sec. 203.49. Specifically in Sec. 206.21(b)(2), FHA references an
``index as provided in Sec. 203.49(a), (b), and (f)(1).'' To provide
greater clarity, FHA proposes to restate these requirements in FHA's
part 206 regulations, as applicable to the HECM program, instead of
cross-referencing to other parts of FHA's regulations.
Finally, in Sec. 206.21(c), which pertains to pre-loan disclosures
as related to interest rates, FHA proposes to make very minor changes
to further clarify FHA's regulation and to update its reference to
Truth in Lending disclosures, which are now codified at 12 CFR part
1026.
Shared Appreciation (Sec. 206.23)
FHA seeks public comment on the utility of FHA's shared
appreciation regulation. Specifically, FHA requests comment on the
following questions: Do mortgagees have an interest in offering this
program or if there is little or no interest, should HUD remove it from
the regulations?
Calculation of Disbursements (Sec. 206.25)
Sections 206.25, titled ``Calculation of payments'', and 206.29,
titled ``Initial disbursement of mortgage proceeds'' of FHA's current
regulations contain similar content and FHA would like to take the
opportunity provided by this rulemaking to streamline these sections by
moving content of Sec. 206.29 into Sec. 206.25(d) as applicable, and
removing Sec. 206.29. Specifically, FHA proposes to add a new
paragraph (d) which provides that mortgage proceeds may not be
disbursed until closing or after the expiration of the 3-day rescission
period under 12 CFR part 1026, if applicable. Items that were
previously listed as exceptions to the prohibition on disbursements are
now covered as Mandatory Obligations. The remaining paragraphs in Sec.
206.25 will be renumbered.
FHA also proposes to make other changes to Sec. 206.25, including
codifying program changes implemented through RMSA mortgagee letters
and making related programmatic changes, as discussed below in this
preamble.
FHA implemented changes to the maximum initial disbursement
available to borrowers in RMSA Mortgagee Letter 2014-21. The Initial
Disbursement Limit is applicable to all adjustable interest rate HECMs
and is the maximum disbursement allowed to a borrower at loan closing
and during the First 12-Month Disbursement Period. In RMSA Mortgagee
Letter 2014-21, the Initial Disbursement Limit was set at the greater
of 60 percent of the principal limit; or the sum of Mandatory
Obligations and 10 percent of the principal limit. In this rule, FHA
proposes to revise this formula to allow the Commissioner flexibility
in setting these limits, such that the Initial Disbursement Limit shall
not exceed the lesser of: (1) The greater of an amount established by
the Commissioner through notice which shall not be less than 50 percent
of the principal limit; or the sum of Mandatory Obligations and a
percentage of the principal limit established by the Commissioner
through notice which shall not be less than 10 percent; or (2) the
principal limit less the sum of the funds in the LESA for payment
beyond the First 12-Month Disbursement Period and the Servicing Fee Set
Aside. While FHA does not intend to change the current amounts at this
time, which are set at 60 percent and 10 percent, respectively, this
change is necessary for FHA to have the flexibility to raise or lower
these amounts to meet the operational goals of the MMIF and respond to
future market changes or other factors as necessary.
In addition, while it is FHA's current policy that the amount drawn
at any point in time and over time may not exceed the available
principal limit, FHA's new language makes clear that the Initial
Disbursement Limit may never exceed the amount of the principal limit
remaining after the funds in the LESA for payment beyond the First 12-
Month Disbursement Period and the Servicing Fee Set Aside are
subtracted; the funds in these set asides are not available to the
borrower. If the greater of the percentage of the principal limit
established by the Commissioner or Mandatory Obligations plus a
percentage of the principal limit established by the Commissioner
exceeds the amount of the principal limit available to the borrower,
the
[[Page 31781]]
borrower may only receive the amount of the principal limit available.
FHA also proposes to clarify that if the borrower draws or will
draw an additional percentage beyond Mandatory Obligations in
accordance with the Initial Disbursement Limit calculation in Sec.
206.25(a)(1), the borrower must notify the mortgagee at closing of the
exact amount of the additional percentage of the principal limit that
the borrower will draw or that the borrower wants to have available for
future draws during the First 12-Month Disbursement Period, and that
such election cannot be increased or decreased after closing. The
amount drawn impacts the initial MIP amount, so it is particularly
important for borrowers and mortgagees to know if the amount the
borrower elects to withdraw during the First 12-Month Disbursement
Period will exceed the lesser MIP threshold.
The Borrower's Advance is applicable to all fixed interest rate
HECMs and is calculated using the same formula as the Initial
Disbursement Limit. In this rule, FHA proposes to make the same changes
to the calculation of the Borrower's Advance, such that the Borrower's
Advance shall not exceed the lesser of: (1) The greater of an amount
established by the Commissioner through notice which shall not be less
than 50 percent of the principal limit; or the sum of Mandatory
Obligations and a percentage of the principal limit established by the
Commissioner through notice which shall not be less than 10 percent; or
(2) the principal limit less the sum of the funds in the LESA for
payment beyond the First 12-Month Disbursement Period and the Servicing
Fee Set Aside. While FHA does not intend to change the current amounts
at this time, which are set at 60 percent and 10 percent, respectively,
this change is necessary for FHA to have the flexibility to raise or
lower these amounts to meet the operational goals of the MMIF and to
respond to future market changes or other factors as necessary.
In addition, while it is FHA's current policy that the amount drawn
at any point in time and over time may not exceed the available
principal limit, FHA's new language makes clear that the Borrower's
Advance may never exceed the amount of the principal limit remaining
after the funds in the LESA for payment beyond the First 12-Month
Disbursement Period and the Servicing Fee Set Aside are subtracted; the
funds in these set asides are not available to the borrower. If the
greater of the percentage of the principal limit established by the
Commissioner or Mandatory Obligations plus a percentage of the
principal limit established by the Commissioner exceeds the amount of
the principal limit available to the borrower, the borrower may only
receive the amount of the principal limit available.
FHA also proposes to clarify that if the borrower draws or will
draw an additional percentage beyond Mandatory Obligations in
accordance with the Borrower's Advance calculation in Sec.
206.25(a)(2), the borrower must notify the mortgagee at closing of the
exact amount of the additional percentage of the principal limit that
the borrower will draw at closing, and that such election cannot be
increased or decreased after closing. The amount drawn impacts the
initial MIP amount, so it is particularly important for borrowers and
mortgagees to know if the amount the borrower elects to withdraw at
closing will exceed the lesser MIP threshold.
Mandatory Obligations for traditional, refinance and purchase
transactions were listed in RMSA Mortgagee Letter 2014-21. In this
rule, FHA proposes to codify those lists in Sec. 206.25(b) and Sec.
206.25(c), but also proposes to add flood certifications to the lists,
which was inadvertently excluded from the lists in RMSA Mortgagee
Letter 2014-21.
FHA proposes to make conforming changes to the term, tenure and
line of credit paragraphs, and proposes to codify changes made to these
payment options in RMSA Mortgagee Letters 2014-07 and 2014-21,
including the requirement that the sum of disbursements made during the
First 12-Month Disbursement Period may not exceed the Initial
Disbursement Limit or Borrower's Advance, as applicable. Consistent
with changes proposed to Sec. 206.19(h) regarding disbursement limits,
FHA also proposes to amend Sec. 206.25 to provide the Commissioner
with flexibility to allow disbursements during the First 12-Month
Disbursement Period to exceed the Initial Disbursement Limit. Further,
FHA clarifies that at the end of the First 12-Month Disbursement
Period, the borrower may request a payment plan change or merely a
recalculation of the current payment plan.
In Sec. 206.25, FHA also proposes to add a new paragraph (h) to
describe the Single Lump Sum payment option and codify the requirements
for this payment option, as set out in RMSA Mortgagee Letter 2014-21.
Although the name has slightly changed from the ``Single Lump Sum
Disbursement'' payment option to the ``Single Lump Sum'' payment
option, the requirements set out in the RMSA mortgagee letter are
unchanged.
Finally, FHA proposes to slightly amend current paragraph (e)
titled ``Payment of MIP and interest,'' which will be renamed paragraph
(i), to provide greater clarity around the timing of when the MIP is
due.
Change in Payment Option (Sec. 206.26)
Section 206.26 allows the borrower to request a change in payment
option, provided certain conditions are met. Changes implemented by
RMSA Mortgagee Letters 2014-11 and 2014-21 impacted the conditions
under which a payment plan change is permitted, and FHA proposes to
codify those changes in Sec. 206.26.
RMSA Mortgagee Letter 2014-11 instituted limits on the fixed
interest rate product, such that fixed interest rate HECMs are only
eligible for the Single Lump Sum payment option. Multiple draws are not
permitted under this option, and therefore borrowers with fixed
interest rate HECMs may not request a change in payment option.
Adjustable interest rate HECMs, on the other hand, are eligible for
payment option changes. However, during the First 12-Month Disbursement
Period, payment option changes which would cause disbursements to
exceed the Initial Disbursement Limit are not permissible. At the end
of the First 12-Month Disbursement Period, borrowers may request a
recalculation of their current payment option, or may change to any
other permissible payment option.
Together, RMSA Mortgagee Letters 2014-11 and 2014-21 also provide
that for adjustable interest rate HECMs, when repairs are completed
without using all of the Repair Set Aside, the mortgagee must transfer
the remaining funds available in the Repair Set Aside to a line of
credit. In this rule, FHA proposes to include the option to transfer
the remaining funds to a modified term or modified tenure payment
option in order to provide borrowers with more options when they have
an existing term or tenure payment option and there are funds left in
the Repair Set Aside that the mortgagee needs to transfer to them. For
fixed interest rate HECMs, on the other hand, unused funds in the
Repair Set Aside may not be provided to the borrower, except that the
borrower may be able to be reimbursed for repair materials purchased by
the borrower (but not for labor provided by the borrower).
Mortgage Provisions (Sec. 206.27)
RMSA Mortgagee Letter 2014-07, as amended by RMSA Mortgagee Letter
[[Page 31782]]
2015-02, requires the mortgage to include provisions deferring the due
and payable status that occurs as a result of the death of the last
surviving borrower, for an Eligible Non-Borrowing Spouse, and
prohibiting the continuation of payments under the reverse mortgage
during a Deferral Period. FHA proposes to codify these requirements in
Sec. 206.27(b).
Section 206.27(b)(2) currently requires the borrower to maintain
hazard insurance on the property in an amount acceptable to the
Secretary and the mortgagee. FHA proposes to add more specificity to
this provision to remove the potential risk of litigation related to
hazard insurance coverage. Specifically, FHA proposes to require the
borrower to insure all improvements on the property that serves as
collateral for the HECM whether now in existence or subsequently
erected, against any hazards, casualties, and contingencies, including
but not limited to fire and flood, for which the mortgagee requires
insurance. FHA also proposes to provide that such insurance shall be
maintained in the amount, and for the period of time, that are
necessary to protect the mortgagee's investment. Whether or not the
mortgagee imposes a flood insurance requirement, FHA proposes to
require the borrower to, at a minimum, insure all improvements on the
property, whether now in existence or subsequently erected, against
loss by floods to the extent required by the Commissioner. If the
mortgagee imposes insurance requirements, all insurance would be
required to be carried with companies acceptable to the mortgagee, and
the insurance policies and any renewals would be required to be held by
the mortgagee and include loss payable clauses in favor of and in a
form acceptable to the mortgagee.
Section 206.27(b)(6) currently requires the borrower to pay taxes,
hazard insurance premiums, ground rents and assessments in a timely
manner. As a result of changes made to property charge payment
requirements in RMSA Mortgagee Letter 2014-21, FHA proposes to amend
this paragraph to require that the borrower provide for the payment of
property charges in accordance with Sec. 206.205. This will cover
circumstances in which property charges are paid from a LESA, where a
borrower elects to have the mortgagee pay the property charges, or
where a borrower pays property charges. A discussion of the property
charge payment requirements can be found later in the preamble.
Section 206.27(c) lists the conditions which cause the HECM to
become due and payable, which include when the borrower dies and the
property is not the principal residence of at least one surviving
borrower. As mentioned above, RMSA Mortgagee Letters 2014-07 and 2015-
02 provide for a deferral of the due and payable status upon the death
of the last surviving borrower where there is an Eligible Non-Borrowing
Spouse. Therefore, it is necessary to amend Sec. 206.27(c) to provide
an exception that defers the due and payable status if the requirements
of the Deferral Period are met.
Another condition which may result in the HECM becoming due and
payable is when the borrower does not pay property charges as required
by the mortgage and Sec. 206.205. This specific situation has always
been captured under the current provision in Sec. 206.27(c)(2)(iii),
which provides that the outstanding loan balance is due and payable
upon HUD-approval when an obligation of the borrower under the mortgage
is not performed. Due to an increase in property charge defaults,
however, FHA proposes to specifically and clearly articulate that the
borrower's non-payment of property charges in accordance with Sec.
206.205 is a condition which can cause the HECM to become due and
payable with the approval of the Commissioner.
Finally, Sec. 206.27(d) discusses second mortgages. This section
requires that unless otherwise provided, a second mortgage must be
given to HUD before a Mortgage Insurance Certificate is issued. Where
the Commissioner elects to not require a second mortgage prior to the
issuance of a Mortgage Insurance Certificate, it is important that FHA
is still able to protect its security interest; therefore, FHA proposes
to allow the Commissioner to require a second mortgage at a later date
when not required prior to issuance of the Mortgage Insurance
Certificate. RMSA Mortgagee Letter 2014-11 changed the structure of the
fixed interest rate product to allow only a single disbursement and
eliminated the need for fixed interest rate HECMs to have a second
mortgage. FHA does not need to codify this policy because it is covered
under the language ``unless otherwise provided'' in the current
regulation.
Allowable Charges and Fees (Sec. 206.31)
Current section 206.31(a)(1) permits loan origination fees and
allows the Secretary to establish fee limits. However, in 2008, HERA
established limits on the loan origination fee that may be charged for
HECMs, such that the loan origination fee limit is the greater of
$2,500 or two percent of the maximum claim amount of the mortgage, up
to a maximum claim amount of $200,000, plus one percent of any portion
of the maximum claim amount that is greater than $200,000; and the
total amount of the loan origination fee may not exceed $6,000. FHA
implemented these limits through HERA Mortgagee Letter 2008-34 and in
this rule, FHA proposes to codify these limits in Sec. 206.31(a)(1).
FHA also proposes to clarify that such loan origination fee includes
expenses incurred in originating, processing and closing the HECM.
Current section 206.31(a)(1) also prohibits borrowers from paying
any origination fees in addition to those that are permitted to be paid
to the mortgagee (which includes amounts paid by a mortgagee to a
mortgage broker or sponsored third-party originator). This paragraph
permits a mortgage broker's fee to be included as part of the
origination fee if the mortgage broker was engaged independently by the
borrower and there is no financial interest between the mortgage broker
and the mortgagee. This provision has caused significant confusion, and
to address that confusion, FHA proposes to amend Sec. 206.31(a)(1) to
clarify that the prohibition is on additional fees paid by a borrower
beyond the loan origination fee limit, and does not prohibit the
provision of compensation to a sponsored third-party originator by a
mortgagee.
No Outstanding Unpaid Obligations (Sec. 206.32)
FHA proposes to amend this section to make conforming changes that
correspond with the introduction of Mandatory Obligations in RMSA
Mortgagee Letter 2014-21. Pursuant to RMSA Mortgagee Letter 2014-21,
initial Repair Set Asides to pay for repairs where the need for repairs
was discovered prior to or at closing are considered Mandatory
Obligations and are included in the initial disbursement. Therefore,
they should not be included as an exception in this section.
Age of Borrower (Sec. 206.33)
Section 206.33 requires the youngest borrower to be at least 62
year of age at the time the mortgagee submits the application for
insurance. FHA finds that it is unnecessary for the youngest borrower
to be 62 at the loan application stage, and instead proposes to require
that the youngest borrower be at least 62 years of age at the time of
loan closing which will insure compliance with the statutory
requirement that the borrower be 62 at endorsement.
[[Page 31783]]
Limitation on Number of Mortgages (Sec. 206.34)
Permitting multiple HECMs at one time is contrary to the intent of
the program to insure the property which serves as the borrower's
primary residence. FHA is taking the opportunity afforded by this rule
to clarify policy in this regard. The proposed rule adds a new Sec.
206.34, which states that once a borrower has obtained an insured HECM,
the borrower may not close on another HECM unless the existing insured
mortgage is satisfied at, or prior to, closing, except for cases of
divorce where an ex-spouse, who had previously jointly obtained a HECM
with their ex-spouse, has relinquished title as evidenced by a recorded
deed.
FHA believes that the final divorce decree and the recorded quit
claim, or its equivalent, are considered the only legal acknowledgement
of transfer, but FHA is seeking feedback on the following question:
What additional forms of documentation should be considered to confirm
that an ex-spouse has been removed from the existing loan and has no
financial obligation?
In addition, FHA intends the prohibition on closing another HECM
unless the existing insured mortgage is satisfied to mean, in the case
of a deed in lieu on an existing HECM where a borrower seeks to obtain
a new HECM, the deed in lieu must be fully executed and recorded before
a borrower is eligible for a new HECM. New Sec. 206.34 also proposes
to codify material in HERA Mortgagee Letter 2009-11 to state that
current HECM borrowers that plan to sell their existing residence and
use the HECM for Purchase program to obtain a new principal residence
must pay off the existing FHA-insured mortgage before the HECM for
Purchase mortgage can be insured. The material on rental properties in
HERA Mortgagee Letter 2009-11 does not rise to the level of regulation,
and as such, will not be codified.
Title of Property Which is Security for HECM (Sec. 206.35)
Currently, Sec. 206.35 requires a HECM borrower or borrowers to
hold full title to the property which is the security for the mortgage,
as ``borrower'' is newly defined in Sec. 206.3. It had come to FHA's
attention that Non-Borrowing Spouses or other non-borrowing owners
were, at times, quit claiming their interest in the property prior to
closing, and then being put back onto the title of the property. FHA
believes that the new Deferral Period policy for Eligible Non-Borrowing
Spouses has reduced the need for this practice, but nonetheless finds
it important to amend the full-title requirement to provide that Non-
Borrowing Spouses and non-borrowing owners may stay on title to the
property serving as the security interest for the HECM, making them
mortgagors. This proposed change would eliminate the burden on Non-
Borrowing Spouses or other heirs who remain on title of having to
establish legal ownership of the property upon the death of the
borrowing spouse.
Seasoning Requirements for Existing Non-HECM Liens (Sec. 206.36)
RMSA Mortgagee Letter 2014-21, as amended by RMSA Mortgagee Letter
2015-02, created seasoning requirements for existing non-HECM liens.
The RMSA mortgagee letters provide that mortgagees can only permit the
payoff of existing non-HECM liens using HECM proceeds if the liens have
been in place for longer than 12 months or have resulted in less than
$500 cash to the borrower, and that mortgagees must review and provide
the necessary documentation illustrating that the seasoning
requirements have been met. FHA does not intend to change its current
policy, whereby mortgagees can only permit the payoff of existing non-
HECM liens using HECM proceeds if the liens have been in place for
longer than 12 months or have resulted in cash to the borrower in an
amount of $500 or less. However, FHA recognizes the importance of being
able to adjust this seasoning requirement in the future if necessitated
by the market or borrower characteristics. Therefore, FHA proposes to
allow the Commissioner to impose seasoning requirements through notice,
but provides that any such requirements imposed by future notice may
not be more stringent than the policy currently in place. Further,
although the specific documentation processes were outlined in the RMSA
mortgagee letters, those processes are more suitable for guidance and
will not be codified in Sec. 206.36.
Credit Standing (Sec. 206.37)
In the past, there have been an increasing number of tax and hazard
insurance defaults by borrowers. Section 206.37 currently provides that
each borrower must have a general credit standing that is satisfactory,
but provides no further requirements. Therefore, in RMSA Mortgagee
Letter 2013-27, FHA established a requirement for a Financial
Assessment of a potential borrower's financial capacity and willingness
to comply with mortgage provisions. As mentioned earlier in this
preamble, after considering public comments, FHA published revised
Financial Assessment and Property Charge Funding Requirements in RMSA
Mortgagee Letter 2014-21, which superseded RMSA Mortgagee Letter 2013-
27.
In this rule, FHA proposes to codify the Financial Assessment
requirements announced in RMSA Mortgagee Letter 2014-21 in Sec.
206.37.\20\ Mortgagees will be required to perform a Financial
Assessment of the prospective borrower prior to loan approval, which
will consider the prospective borrower's credit history, cash flow and
residual income, extenuating circumstances, and compensating factors.
Financial Assessments must be conducted in a uniform manner that does
not discriminate because of race, color, religion, sex, national
origin, familial status, disability, marital status, actual or
perceived sexual orientation, gender identity, source of income of the
prospective borrower, or location of the property, and which complies
with all applicable laws and regulations.
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\20\ Property Charge Funding Requirements can be found in Sec.
206.205.
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Some of the Financial Assessment material in RMSA Mortgagee Letter
2014-21 is better suited as guidance and will therefore not be codified
in Sec. 206.37. For example, the provision permitting mortgagees to
obtain a credit report prior to the completion of HECM counseling does
not rise to the level of regulation and should be treated as guidance.
In addition, the examples of extenuating circumstances and compensating
factors are more suitable for guidance.
Principal Residence (Sec. 206.39)
As mentioned earlier, some of the content from Sec. 206.39, as
clarified by RMSA Mortgagee Letter 2014-07, is being moved to the
actual definition of ``principal residence'' in Sec. 206.3. In Sec.
206.39(a), FHA proposes to codify changes implemented in RMSA Mortgagee
Letter 2015-02 to state that the property must be the principal
residence of each Eligible Non-Borrowing Spouse at closing and must
remain the principal residence to maintain eligibility for the Deferral
Period.
In new Sec. 206.39(b), FHA proposes to codify program changes made
in HERA Mortgagee Letter 2009-11 which require borrowers in the HECM
for Purchase program to occupy the property within 60 days from the
date of closing, and also to update the HECM for Purchase requirements
to impose this 60-day requirement on Eligible Non-Borrowing Spouses,
bringing this provision into
[[Page 31784]]
alignment with the Non-Borrowing Spouse policy announced in RMSA
Mortgagee Letters 2014-07 and 2015-02.
Disclosure, Verification and Certifications (Sec. 206.40)
Section 206.40 currently provides for the disclosure and
verification of Social Security and Employer Identification Numbers for
the borrower. As a result of changes made to the HECM program regarding
Non-Borrowing Spouses in RMSA Mortgagee Letter 2014-07, as amended by
RMSA Mortgagee Letter 2015-02, FHA proposes to amend Sec. 206.40 to
codify the requirements that an Eligible Non-Borrowing Spouse must
comply with the same disclosure and verification of Social Security and
Employer Identification Numbers required of the borrower, and that all
borrowers and Non-Borrowing Spouses must provide all necessary
certifications to HUD and the mortgagee.
In addition, FHA proposes to add a new paragraph (c) to address
circumstances in which FHA has been unable to find and communicate with
borrowers concerning their HECMs. In this new paragraph, FHA proposes
to allow the Commissioner to require a borrower to designate an agent
or other party to act on his behalf when FHA is unable to make contact
or communicate with the borrower. Even when not required, FHA would
allow the borrower to voluntarily designate an agent or other person to
act on his behalf.
Counseling (Sec. 206.41)
FHA currently requires prospective borrowers and Non-Borrowing
Spouses to receive counseling. FHA is taking the opportunity provided
by this rulemaking to amend Sec. 206.41 to include the specific
requirements that apply when there are Eligible or Ineligible Non-
Borrowing Spouses, consistent with the program changes implemented by
RMSA Mortgagee Letters 2014-07 and 2015-02. In addition, FHA proposes
to provide the Commissioner with the flexibility to require HECM
counselors, through notice, to discuss any other requirements with
prospective borrowers and Non-Borrowing Spouses. Finally, consistent
with current requirements, and as articulated in RMSA Mortgagee Letter
2014-07, FHA proposes to amend Sec. 206.41(c) to codify the
requirements that HECM counselors provide each borrower with a
certificate saying that the borrower and Non-Borrowing Spouse, if
applicable, have received counseling. Instead of requiring each
borrower to provide the mortgagee with a copy of the certificate, this
rule proposes to instead require the HECM counselor to upload the
certificate into the appropriate electronic database.
FHA also proposes to require prospective borrowers of HECM for
Purchase transactions to complete the required HECM counseling prior to
signing a sales contract and/or making an earnest money deposit, unless
otherwise provided by the Commissioner, instead of allowing them to
complete the counseling before or after the initial application is
submitted to the mortgagee. FHA believes it is beneficial for the
borrower to understand the requirements of the HECM for Purchase
program prior to committing to purchase a home using a HECM.
Monetary Investment for HECM for Purchase Program (Sec. 206.44)
HERA Mortgagee Letter 2009-11 requires that HECM for Purchase
borrowers provide a monetary investment that will be applied to satisfy
the difference between the principal limit and the sale price for the
property, plus any HECM loan-related fees that are not financed into
the loan, minus the amount of the earnest deposit. The HERA mortgagee
letter also provides that HECM borrowers may choose to provide a larger
investment amount in order to retain a portion of the available HECM
proceeds for future draws, and specifies permissible funding sources.
FHA proposes to codify these requirements in a new Sec. 206.44, except
as discussed below.
In the ``Monetary Investment'' section, the provision that states
that HECM borrowers may choose to provide a larger investment amount in
order to retain a portion of the HECM proceeds does not rise to the
level of regulation and therefore will not be codified.
In the ``Funding Sources'' section, material regarding the
disallowed funding sources, which was, at the time of issuance of the
HERA mortgagee letter, taken directly from a HUD Handbook, was guidance
and is no longer FHA's policy. In addition, the prohibition on seller
contributions, which will more accurately be referred to as interested
party contributions \21\ throughout this rule, will remain in effect
for FHA Case Numbers assigned prior to the effective date of the final
rule, but will be amended in this rule for FHA Case Numbers assigned on
or after the effective date of the final rule. The current prohibition
on interested party contributions is unique and redirects expenses
customarily paid by the seller or other interested parties to the buyer
in HECM for Purchase transactions. In this rule, FHA proposes to permit
limited interested party contributions, and to allow the Commissioner
flexibility to define the types and parameters of other allowable
interested party contributions in the future through Federal Register
notice for public comment. FHA proposes to specifically allow the
seller to pay fees required to be paid by the seller under state or
local law and to purchase the Home Warranty policy. These changes would
remove barriers to HECM for Purchase transactions which exist in state
or local jurisdictions which require certain seller-paid costs.
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\21\ Interested party contributions encompasses the use of loan
discount points, interest rate buy-downs, closing cost down payment
assistance, builder incentives, and gifts of personal property given
by the seller or any other party involved in the transaction, which
were set out separately in HERA Mortgagee Letter 2009-11.
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Eligible Properties (Sec. 206.45)
Currently, Sec. 206.45(a) provides that a mortgage must be on real
estate held in fee simple, or on a leasehold under a lease for not less
than 99 years which is renewable, or under a lease having a remaining
period of not less than 50 years beyond the date of the 100th birthday
of the youngest mortgagor. This section was written to implement
subsection 255(b)(4) of the NHA. However, Public Law 111-22, signed
into law on May 20, 2009, amended subsection 255(b)(4) of the NHA to
replace the language regarding a lease having a remaining period of not
less than 50 years beyond the date of the 100th birthday of the
youngest mortgagor with ``a lease that has a term that ends no earlier
than the minimum number of years, as specified by the Secretary, beyond
the actuarial life expectancy of the mortgagor or comortgagor,
whichever is the later date.'' FHA is taking the opportunity provided
by this rulemaking to update its regulation at Sec. 206.45(a) to
require that, to be eligible for insurance, a mortgage must be on real
estate held in fee simple; or on a leasehold that is under a lease with
a duration lasting until the later of: (1) 99 years, if such lease is
renewable; or (2) the actuarial life expectancy of the youngest
mortgagor plus a number of years specified by the Commissioner,\22\
which shall not be more than 99 years.
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\22\ While section 255(b)(4) of the NHA specifically provides
that the ``Secretary'' shall specify the minimum number of years for
a lease term, FHA proposes to use the term ``Commissioner'' to more
accurately reflect HUD's delegations of authority from the Secretary
to the Commissioner.
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[[Page 31785]]
In addition, paragraphs (c) and (e) reference requirements in
Sec. Sec. 203.16a, 203.40, 203.41, and 234.66. To provide greater
clarity, FHA proposes to restate requirements, as applicable to the
HECM program, in FHA's part 206 regulations instead of cross-
referencing to other parts of FHA's regulations. Therefore, FHA
proposes to amend paragraph (c) by restating the flood insurance
requirements, and to move and restate the property location
requirements from current paragraph (c) to a new paragraph (f). FHA
also proposes to restate the permissible restrictions on conveyance in
paragraph (e).
In Sec. 206.45(g), FHA proposes to codify and amend requirements
announced in HERA Mortgagee Letter 2009-11. HERA Mortgagee Letter 2009-
11 defined a ``HECM for Purchase'' as a real estate purchase where
title to the property is transferred to the HECM borrower and, at the
time of closing, the HECM first and second liens will be the only liens
against the property. HERA Mortgagee Letter 2009-11 also provided that
only properties where construction is completed are eligible for
insurance under the HECM for Purchase program. While it has always been
FHA's intent that these properties be habitable, in this rule, FHA
proposes to include habitability, as evidenced by a Certificate of
Occupancy or similar document, as a criterion for insurance
eligibility. FHA will not codify the provision which states that loan
proceeds may be used to satisfy outstanding payment obligations
associated with a land contract, contract for deed, or similar purchase
arrangements that will ensure the property meets FHA's title
requirements, as this is interpretive guidance.
Property Standards; Repair Work (Sec. 206.47)
RMSA Mortgagee Letter 2014-11 provided that no unused Repair Set
Aside funds for fixed interest rate HECMs could be made available to
the borrower under any circumstance. After issuing RMSA Mortgagee
Letter 2014-11, FHA published a notice in the Federal Register on July
10, 2014, at 79 FR 39408, soliciting comment on the RMSA mortgagee
letter. FHA received two public comments, and one of those comments
requested clarification on the aforementioned prohibition. In response
to this comment, FHA clarified its policy in RMSA Mortgagee Letter
2014-21 to provide that borrowers with either fixed or adjustable
interest rate HECMs could not be reimbursed for labor, but could be
reimbursed for the cost of materials, under certain conditions, when
repairs are being completed after loan closing. FHA proposes to codify
its policy which allows borrowers to be reimbursed from the Repair Set
Aside for the actual cost of repair materials by specifying that
paragraph (c) applies to the reimbursement of contractors and creating
a new paragraph (d) for the reimbursement of borrowers.
In paragraphs (c) and (d), FHA proposes amendments related to the
inspection requirements. Currently, paragraph (c), which is the only
paragraph in this section that discusses inspections, requires the
post-repair inspection(s) of the property to be completed by an
inspector approved by HUD. However, FHA published a proposed rule on
February 6, 2013, at 78 FR 8448, which, in part, proposed to remove its
Inspector Roster regulations. Therefore, to allow for consistency
between inspection requirements for the HECM program and any future
changes to FHA's forward mortgage program related to inspectors, FHA
proposes to broaden the language used in Sec. 206.47 to provide that
the inspector or other qualified individual must be acceptable to the
Commissioner.
FHA also proposes to codify HECM for Purchase program requirements
announced in HERA Mortgagee Letter 2009-11 in a new paragraph (e) to
state that in HECM for Purchase transactions, where major property
deficiencies threaten the health and safety of the homeowner or
jeopardize the soundness and security of the property, all repairs must
be completed by the seller prior to closing. Appraisers are required to
complete the appraisal report as ``Subject To'' the completion of the
repairs. Additional content in the ``Repair and Property Set Asides
Section'' of HERA Mortgagee Letter 2009-11 listing examples of major
property deficiencies will not be codified, as it is guidance material.
In addition, FHA will not codify the material regarding HECM borrowers
continuing to have the option to elect to have the mortgagee set aside
funds for the payment of property charges because borrowers are now
subject to the Financial Assessment Property Charge Funding
Requirements implemented by RMSA Mortgagee Letter 2014-21, which may or
may not allow them to elect to have the mortgagee set aside funds for
the payment of property charges.
Eligibility of Mortgages Involving a Dwelling Unit in a Condominium
(Sec. 206.51)
The current regulation at Sec. 206.51 requires that where the
mortgage involves a dwelling unit in a condominium, the project in
which the condominium is located must be committed to a plan of
condominium ownership by deed or other instrument acceptable to the
Secretary, but the regulation also provides a limited exception for
some loans on single units in unapproved condominium projects. This
``spot approval'' exception was removed from the FHA condominium policy
under HERA, and therefore, this rule proposes to eliminate this
exception from Sec. 206.51.
Eligible Sale of Property--HECM for Purchase (Sec. 206.52)
HERA Mortgagee Letter 2009-11 requires that mortgagees providing
HECM financing for HECM for Purchase transactions comply with the FHA
regulation at 24 CFR 203.37a. To provide greater clarity, FHA proposes
to restate these requirements in FHA's part 206 regulations, as
applicable to the HECM for Purchase program, instead of cross-
referencing to other parts of FHA's regulations. These requirements
encompass requirements set out in HERA Mortgagee Letter 2009-11
regarding a mortgagee's responsibility to prohibit property flipping
practices for properties which are the subject of HECM for Purchase
transactions. The content regarding the importance of prospective
borrowers being aware of coercive actions against them is guidance and
will not be codified.
Refinancings (Sec. 206.53)
This proposed rule updates FHA's regulation at Sec. 206.105 which
governs the MIP paid in connection with HECM loans. These proposed
changes reflect statutory amendments to the NHA that provide FHA with
additional flexibility in establishing the initial MIP for FHA-insured
mortgages up to 3 percent of the amount of the original insured
principal obligation of the mortgage and are discussed later in the
preamble. The proposed rule makes a conforming change to Sec.
206.53(c), which describes the initial MIP limit for the refinancing of
HECM mortgage loans.
In addition, FHA proposes to move the content of current Sec.
206.53(c) into a new subparagraph (c)(1), and also proposes to revise
the wording of new Sec. 206.53(c)(1), for clarity. These proposed
changes do not alter the substantive aspect of the subject regulation.
Consistent with subsection 203(c)(2)(A) of the NHA, the revision to
Sec. 206.53(c) clarifies that the initial MIP may not exceed the
difference between: Three percent of the maximum claim amount for the
new HECM loan, and the amount of the initial MIP already
[[Page 31786]]
charged and paid by the borrower for the existing HECM loan being
refinanced.
In new Sec. 206.53(c)(2), FHA proposes to codify HECM for Purchase
program requirements implemented by HERA Mortgagee Letter 2009-11 which
provide that existing HECM borrowers who participate in a HECM for
Purchase transaction are ineligible for a refinance transaction because
the HECM refinance authority is only applicable when the property that
serves as collateral for FHA-insurance remains the same. As a result of
this addition, FHA proposes to eliminate the first sentence of Sec.
206.53(a), which states that this section implements subsection 255(k)
of the NHA. While that statement remains true, the HECM for Purchase
program authority rests in subsection 255(m) of the NHA, and to avoid
any potential confusion, FHA simply prefers to eliminate the specific
reference to subsection 255(k) of the NHA.
Deferral of Due and Payable Status (Sec. Sec. 206.55, 206.57, 206.59,
206.61)
RMSA Mortgagee Letter 2014-07, as amended by RMSA Mortgagee Letter
2015-02, implemented an alternative interpretation of subsection 255(j)
of the NHA to provide viable options for Non-Borrowing Spouses to
remain in the homes they had previously shared with their borrower
spouses after the death of their spouses. In general, if the last
surviving borrower predeceases an Eligible Non-Borrowing Spouse, and if
the Deferral Period requirements are satisfied, the due and payable
status will be deferred for as long as the Eligible Non-Borrowing
Spouse continues to meet the Qualifying Attributes, the Deferral Period
requirements, all applicable terms and conditions of the mortgage and
loan documents and all other applicable FHA requirements. In addition,
except for limited circumstances, mortgagees are required to provide
Eligible Non-Borrowing Spouses with 30 days to cure defaults that occur
during the Deferral Period and reinstate the Deferral Period.
In this rule, FHA proposes to codify the Deferral Period
requirements set out in RMSA Mortgagee Letters 2014-07 and 2015-02 in
new sections 206.55, 206.57, 206.59, and 206.61, with minor changes as
discussed below.
The policy currently in effect as a result of RMSA Mortgagee
Letters 2014-07 and 2015-02 provides for three Qualifying Attributes:
(1) The Non-Borrowing Spouse must have been the spouse of a HECM
borrower at the time of loan closing and remained the spouse of such
HECM borrower for the duration of the HECM borrower's lifetime; (2) the
Non-Borrowing Spouse must have been properly disclosed to the mortgagee
at origination and specifically named as an Eligible Non-Borrowing
Spouse in the HECM mortgage and loan documents; and (3) the Non-
Borrowing Spouse must have occupied, and must continue to occupy, the
property securing the HECM as his or her principal residence. In this
rule, FHA proposes to give the Commissioner flexibility to set other
Qualifying Attributes criteria as necessary through the publication of
a Federal Register notice for comment. The Qualifying Attributes
criteria is found in Sec. 206.55(c).
RMSA Mortgagee Letter 2015-02 stated that an ``Eligible Non-
Borrowing Spouse may become an Ineligible Non-Borrowing Spouse should
any of the Qualifying Attributes cease to be met during the loan
term.'' FHA takes the opportunity provided by this rulemaking to
replace ``may become'' with ``shall become'' to make clear in Sec.
206.55(c)(3) that if the Qualifying Attributes cease to be met, the
previously Eligible Non-Borrowing Spouse will become an Ineligible Non-
Borrowing Spouse.
FHA also takes the opportunity provided by this rulemaking to
clarify that ``ongoing legal right to remain'' means a legal right to
remain for life. This clarified requirement is found in Sec.
206.55(d)(1). Further, FHA proposes to clarify in Sec. 206.55(f) that
nothing in Sec. 206.55 may be construed as interrupting or interfering
with the right of the borrower's estate or heir(s) to dispose of the
property if they are otherwise legally entitled to do so.
FHA also proposes to clarify in Sec. 206.59(d) that mortgagees
must notify the Eligible Non-Borrowing Spouse within 30 days of the
Deferral Period ending, unless the Deferral Period is reinstated. Also,
this rule proposes to require the mortgagee to obtain documentation
validating the reason for the cessation or reinstatement of the
Deferral Period.
RMSA Mortgagee Letter 2014-07 specifically states that the proceeds
of a HECM will not be disbursed to the borrower, borrower's estate, or
the Non-Borrowing Spouse once the HECM is in a deferred due and payable
status. FHA proposes to amend this statement in Sec. 206.61(a) to
broaden it and to clarify that during a Deferral Period, HECM proceeds
may not be disbursed to any party, except as otherwise determined by
the Commissioner through notice.
RMSA Mortgagee Letter 2014-07 also states that funds may be
disbursed from a Repair Set Aside during a Deferral Period for the
purpose of paying for repairs identified prior to origination as
necessary to the insurance of the HECM, but that such repairs may only
be paid for using the Repair Set Aside if the repairs are
satisfactorily completed during the time period established in the
Rider. However, FHA recognizes that there are situations in which, for
a variety of reasons, repairs may not be completed within the
originally established timeframe. Therefore, FHA proposes to provide
flexibility to involved parties by allowing the Commissioner to extend
the time period in which repairs must be completed in Sec. 206.61(b).
Subpart C--Contract Rights and Obligations
Sale, Assignment and Pledge of Insured Mortgages (Sec. 206.101)
FHA's current regulation at Sec. 206.101 refers to Sec. Sec.
203.430 through 203.435. To provide greater clarity, in Sec. 206.101,
FHA proposes to restate these requirements, as applicable to the HECM
program, instead of cross-referencing to other parts of FHA's
regulations.
Insurance Funds (Sec. 206.102)
Currently, Sec. 206.102 provides that mortgages insured under part
206 shall be obligations of the General Insurance Fund. However,
Section 2118(b)(2) of HERA transferred obligations arising under the
HECM program, for loans endorsed on or after October 1, 2008, from the
FHA General Insurance Fund to the MMIF. This proposed rule updates the
regulations accordingly.
Payment of MIP (Sec. 206.103)
FHA proposes to provide in Sec. 206.103 that the payment of MIP
shall be made to the Commissioner by the mortgagee in cash until the
HECM is paid in full, foreclosed or a deed in lieu of foreclosure is
recorded, or the property is otherwise sold, instead of until the
contract of insurance is terminated.
Amount of MIP (Sec. 206.105)
This proposed rule updates Sec. 206.105 which governs the MIP paid
in connection with HECM loans. Currently, Sec. 206.105(a) provides for
an initial MIP of two percent of the maximum claim amount; Sec.
206.105(b) provides for a monthly MIP that accrues daily on the
outstanding loan balance at a rate equivalent to 0.5 percent per annum
and is added to the outstanding loan balance when paid to the
Secretary.
As previously noted, HERA transferred obligations arising under the
HECM program from the FHA General Insurance Fund to the MMIF. Each FHA-
insured mortgage which is an obligation of the MMIF is subject to the
[[Page 31787]]
premium structure at subsection 203(c)(2)(A) of the NHA. As amended by
HERA, subsection 203(c)(2)(A) states, in part, that ``the Secretary
shall establish and collect, at the time of insurance, a single premium
payment in an amount not exceeding 3 percent of the amount of the
original insured principal obligation of the mortgage.''
In addition, NHA subsection 203(c)(2)(B) addresses annual mortgage
insurance premiums. On August 12, 2010, the President signed into law
Public Law 111-229,\23\ which amended NHA subsection 203(c)(2)(B) to
provide the Secretary with additional flexibility regarding the annual
mortgage insurance premiums. Subsection 203(c)(2)(B) provides the
Secretary with the discretion to decide to establish and collect annual
mortgage insurance premiums in an amount not exceeding 1.50 percent of
the remaining insured principal balance, or up to 1.55 percent for any
mortgage involving an original principal obligation that is greater
than 95 percent of appraised value of the property.
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\23\ The title of this public law is ``To increase the
flexibility of the Secretary of Housing and Urban Development with
respect to the amount of premiums charged for FHA single family
housing mortgage insurance and other purposes.''
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Public Law 111-229 also provides the Secretary with the discretion
to adjust the initial MIP and annual MIP through notice published in
the Federal Register or mortgagee letter which establishes the
effective date for any premium adjustment therein.
With respect to the HECM program, for purposes of establishing the
initial MIP, the original insured principal obligation of the mortgage
is the maximum claim amount; therefore, consistent with the amendments
to subsection 203(c)(2)(A) of the NHA, this proposed rule revises Sec.
206.105(a) to specify that the Commissioner \24\ may charge an initial
MIP of up to three percent of the maximum claim amount. This rule also
proposes to revise Sec. 206.105(b), consistent with the amendments to
subsection 203(c)(2)(B) of the NHA, to provide that the Commissioner
\25\ may establish and collect an annual MIP, which will accrue from
the closing date, in an amount not to exceed 1.50 percent of the
remaining insured principal balance, or up to 1.55 percent for any
mortgage involving an original principal obligation that is greater
than 95 percent of the appraised value of the property. FHA proposes to
clarify that the MIP may be added to the loan balance when paid to the
Commissioner. Moreover, the proposed rule adds a new paragraph (d) in
Sec. 206.105 stating the Commissioner's authority to adjust the amount
of the initial and monthly MIP through notice.\26\
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\24\ While subsection 203(c)(2)(A) specifically provides that
the ``Secretary'' shall establish and collect an initial MIP not to
exceed three percent of the maximum claim amount, FHA proposes to
use the term ``Commissioner'' to more accurately reflect HUD's
delegations of authority from the Secretary to the Commissioner.
\25\ While subsection 203(c)(2)(B) specifically provides the
``Secretary'' with discretion to decide whether to establish and
collect annual MIP in an amount not exceeding 1.50 percent of the
remaining insured principal balance, or up to 1.55 percent for any
mortgage involving an original principal obligation that is greater
than 95 percent of appraised value of the property, FHA proposes to
use the term ``Commissioner'' to more accurately reflect HUD's
delegations of authority from the Secretary to the Commissioner.
\26\ While Public Law 111-229 provides the ``Secretary'' with
the discretion to adjust the initial MIP and annual MIP through
notice published in the Federal Register or mortgagee letter, FHA
proposes to use the term ``Commissioner'' to more accurately reflect
HUD's delegations of authority from the Secretary to the
Commissioner and ``notice'' to more concisely convey the method of
notification.
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In addition, FHA proposes to codify provisions from RMSA Mortgagee
Letter 2014-21 regarding the calculation of the initial MIP in a new
paragraph (c) to Sec. 206.105. Under existing authority, and as
discussed above, the initial MIP may be adjusted by FHA through notice.
Therefore, FHA proposes to codify the general framework for calculating
the initial MIP, as described in RMSA Mortgagee Letter 2014-21, but not
the specific initial MIP amounts, and will instead update the specific
initial MIP amounts by notice, as necessary. FHA also proposes to make
clear that any amount of funds set aside in a Servicing Fee Set Aside
will not affect the initial MIP amount, even for those funds scheduled
for payment during the First-12 Month Disbursement Period.
Mortgagee Election of Assignment or Shared Premium Option (Sec.
206.107)
FHA proposes to make conforming amendments to Sec. 206.107(a) to
account for the Deferral Period, which was introduced in RMSA Mortgagee
Letter 2014-07. Specifically, in paragraph (a)(1), FHA proposes to
clarify that the mortgagee may assign the HECM to the Commissioner if
the outstanding loan balance is equal to or greater than 98 percent of
the maximum claim amount, regardless of deferral status, or the
borrower has requested a payment which exceeds the difference between
the maximum claim amount and the outstanding loan balance and certain
conditions, as specified in this section, are met. In subparagraph
(a)(1)(iii), FHA proposes to expand upon one of these conditions, such
that the HECM is either not due and payable under Sec. 206.27(c)(1),
or its due and payable status under Sec. 206.27(c)(1) has been
deferred pursuant to a Deferral Period.
FHA is also slightly revising the wording of Sec.
206.107(a)(1)(iv) to clarify that the mortgagee shall have the option
of assigning the mortgage to the Commissioner only if an event
described in Sec. 206.27(c)(2) has not occurred or the Commissioner
has been notified of such occurrence but has denied approval for the
mortgage to be due and payable.
Finally, to provide greater clarity, in Sec. 206.107, FHA proposes
to replace the cross-references to requirements in FHA's part 203
regulations with the actual requirements, as applicable to the HECM
program, or cross-references to other sections within part 206.
FHA seeks public comment on the utility of FHA's shared premium
option. Specifically, FHA requests comment on the following questions:
Do mortgagees anticipate selecting the shared premium option in the
future, and if not, what is the reasoning for not selecting the shared
premium option?
Amount of Mortgagee Share of Premium (Sec. 206.109)
In current Sec. 206.109, the amount of the mortgagee share of
premium is determined based upon the age of the youngest borrower. To
be consistent with the changes FHA made to the calculation of the
principal limit in RMSA Mortgagee Letters 2014-07 and 2015-02, which
bases the age factor on the age of the youngest borrower or Eligible
Non-Borrowing Spouse, FHA proposes to amend Sec. 206.109 to base the
mortgagee share of premium on the age of the youngest borrower or
Eligible Non-Borrowing Spouse.
Late Charge and Interest (Sec. 206.113)
In Sec. 206.113(a), FHA currently requires the payment of a late
charge when initial and monthly MIP are remitted to the Commissioner 10
days after the payment date in Sec. 206.111(b). In Sec. 206.113(b),
FHA currently requires the mortgagee to pay interest on initial and
monthly MIP remitted to the Commissioner more than 30 days after
closing, and interest on monthly MIP remitted to the Commissioner more
than 30 days after the payment date prescribed in Sec. 206.111(b).
However, FHA now has a web-based loan servicing system which was not in
existence when this section was initially promulgated. This system,
currently called HERMIT, reduces the amount of time needed to remit
MIP. Therefore, it is no longer necessary to have such long time
periods. In paragraph (a) of
[[Page 31788]]
Sec. 206.113, FHA proposes to reduce the time period to 5 days for
late charges. In paragraph (b) of Sec. 206.113, FHA proposes to
require the mortgagee to pay interest on initial MIP remitted to the
Commissioner more than 20 days after closing, and interest on monthly
MIP remitted to the Commissioner more than 5 days after the date in
Sec. 206.111(b).
In paragraph (c) of this section, FHA proposes to clarify that any
interest, in addition to late charge, owed may not be added to the
outstanding loan balance and must be paid by the mortgagee.
Insurance of Mortgage (Sec. 206.115)
FHA proposes to add a new Sec. 206.115 to capture the content of
Sec. 203.255. As mentioned throughout this preamble, to provide
greater clarity, FHA proposes to restate content from part 203 in FHA's
part 206 regulations, as applicable to the HECM program, instead of
cross-referencing to part 203 of FHA's regulations. Because the Lender
Insurance program is currently unavailable for the HECM program, the
Lender Insurance requirements of Sec. 203.255 will not be included in
this section.
In this section, FHA also proposes to add content originally from
Sec. 203.257 regarding creation of the mortgage insurance contract in
paragraph (f).
Refunds (Sec. 206.116)
FHA's current regulation provides that no amount of the initial MIP
shall be refundable. However, FHA recognizes that there are certain
circumstances in which a refund would be warranted. Therefore, FHA
proposes to provide for exemptions as authorized by the Commissioner.
Commissioner Authorized To Make Payments (Sec. 206.121)
Paragraph (c) of Sec. 206.121 addresses second mortgages.
Subsection 255(i)(2)(C) of the NHA permits FHA to require a subordinate
mortgage from the borrower at any time in order to secure repayments of
any funds advanced, or to be advanced to, the borrower. Throughout part
206, including Sec. 206.121(c), FHA proposes to amend its regulations
to permit the Commissioner, through notice, to require or not require a
subordinate mortgage, which will align FHA's policy with the
flexibility provided by the NHA. This flexibility will allow FHA to
make a strategic decision about the necessity of subordinate mortgages,
given various market factors and market changes.
The Commissioner has already stated, through RMSA Mortgagee Letter
2014-11, which limited the fixed interest rate product to the Single
Lump Sum payment option, that the HECM Second Security Instrument and
HECM Second Note were no longer required for fixed interest rate HECMs
because there is no longer a risk of the Commissioner having to pay
future advances to the borrower. At this time, the Commissioner is not
changing the fixed interest rate HECM subordinate mortgage policy
announced in RMSA Mortgagee Letter 2014-11. However, instead of
codifying this change, FHA chooses to maintain the flexibility provided
by subsection 255(i)(2)(C) of the NHA which allows the Commissioner to
require a subordinate mortgage from the borrower of fixed or adjustable
interest rate HECMs.
Claim Procedures in General (Sec. 206.123)
FHA proposes to make changes to this section that correspond with
changes made to the definitions in Sec. 206.3. In Sec. 206.3, FHA
proposes to add a new definition of borrower and amend the definition
of mortgagor, such that a mortgagor means each original mortgagor under
a mortgage and his heirs, executors, administrators and assigns; a
borrower means a mortgagor who is an original borrower under the Loan
Agreement and Note, but not including a borrower's successors and
assigns. With these changes, it is no longer necessary for Sec.
206.123(b) to provide for an expanded definition of mortgagor.
Therefore, FHA proposes to amend newly renumbered paragraph (a)(2)(iii)
such that it applies to borrowers and other permissible parties, which
would include mortgagors as newly defined in Sec. 206.3, and to remove
and reserve paragraph (b).
Acquisition and Sale of the Property (Sec. 206.125)
The regulation at Sec. 206.125(a) sets out the initial
requirements of the mortgagee when the mortgage becomes due and
payable. Paragraph (a)(1) currently requires the mortgagee to notify
the Commissioner whenever the mortgage is due and payable under Sec.
206.27(c)(1) or (c)(2). FHA proposes to provide more specificity to the
timing of the required notification. FHA also proposes to make
amendments to this paragraph in conformity with program changes made in
RMSA Mortgagee Letters 2014-07 and 2015-02 regarding the Deferral
Period. Together, these changes would require the mortgagee to notify
the Commissioner within 60 days of the mortgage becoming due and
payable when the conditions stated in the mortgage, as required by
Sec. 206.27(c)(1), have occurred or when the Deferral Period ends; the
mortgagee is also required to notify the Commissioner within 30 days of
one of the conditions stated in the mortgage, as required by Sec.
206.27(c)(2), occurring.
FHA seeks public comment on the following questions: What is an
appropriate timeframe, and how should such a timeframe be calculated,
when title to the property insuring the HECM has been conveyed, since
the mortgagee will not necessarily know that title has been conveyed or
the date conveyance has occurred?
The current paragraph (a)(2) requires the mortgagee to provide
notification to the borrower of the due and payable status, unless the
mortgage is due and payable as a result of the borrower's death. FHA
proposes to make conforming amendments to this paragraph as a result of
program changes made in RMSA Mortgagee Letters 2014-07 and 2015-02
implementing a Deferral Period for Eligible Non-Borrowing Spouses, such
that the mortgagee would be required to notify the borrower, Eligible
Non-Borrowing Spouse, borrower's estate and borrower's heir(s), as
applicable, within 30 days of the later of notifying the Commissioner
of the due and payable status or receiving approval, if needed; the
applicable party would have 30 days to engage in one of the permissible
actions outlined in paragraph (a)(2) as discussed immediately below.
FHA proposes to make new changes to the permissible actions
outlined in paragraph (a)(2), as well as conforming changes to bring
the regulation in line with policy changes announced in RMSA Mortgagee
Letter 2015-02. First, FHA proposes to amend paragraph (a)(2)(i) to
include mortgagee advances as a required item for payment. Second, in
paragraph (a)(2)(ii), which currently provides that the property may be
sold for at least 95 percent of the appraised value, FHA proposes to
provide more flexibility to the Commissioner to alter this percentage.
The 95 percent requirement has proven at times to be too high, leading
to unwanted foreclosures that possibly could have been avoided through
sale of the property. This has been particularly true in recent years.
The downturn in the housing market has resulted in declining values and
an oversupply of housing stock. The market downturn highlights the need
for flexibility in establishing the minimum percentage of the appraised
value that FHA will accept after sale of the property securing the
mortgage loan. To address this concern, this rule proposes to replace
the 95 percent requirement with flexibility for the Commissioner to
establish such amount, which shall not
[[Page 31789]]
exceed 95 percent of the appraised value. FHA also proposes to make
changes in this paragraph which will limit the amount of money FHA is
paying through the claims process for closing costs. In conducting its
oversight of the claims process, FHA is aware that some mortgagees are
including excessive closing costs in their insurance claims. To stop
this from occurring in the future, FHA proposes to more closely align
HECM's policy regarding net proceeds requirements with those
requirements for pre-foreclosure and Real Estate-Owned (REO) property
policies, by requiring that the closing costs from the sale not exceed
11 percent of the sales price. In paragraph (a)(2)(iv), FHA proposes to
codify the cure provision announced in RMSA Mortgagee Letter 2015-02,
and in paragraph (a)(2)(vi), FHA proposes to allow for other actions as
permitted by the Commissioner through notice.
FHA proposes to add paragraph (a)(4) to codify program changes
announced in RMSA Mortgagee Letters 2014-07 and 2015-02 such that an
Eligible Non-Borrowing Spouse could correct the condition which
resulted in the Deferral Period ending and have the mortgage reinstated
in accordance with Sec. 206.57(d).
FHA proposes to amend paragraph (b) to correct an inadvertent
drafting error resulting from an interim rule published on August 16,
1995. Prior to the effective date of this interim rule, Sec.
206.125(b) provided that when a HECM became due and payable (typically
upon the borrower's death), the property could be appraised at the
borrower's request and at the borrower's expense. Section 206.125(b)
also required the property to be appraised no later than 15 days before
a foreclosure sale. Since FHA required the mortgagee to bid the
appraised value for HECM foreclosures, an appraisal was needed before
the foreclosure. The reason the borrower, or more likely, the
borrower's estate might also want an appraisal is to help the estate
decide whether to exercise its option to sell the property for the
lesser of the outstanding loan balance or appraised value, per Sec.
206.125(c). This short sale option is in FHA's interest, as it avoids
foreclosure, holding, and sales expenses. However, to avoid such
expenses, the estate would need to be provided with the appraised value
much earlier than 15 days before the foreclosure sale. Therefore, FHA
published an interim rule on August 16, 1995, at 60 FR 42754, stating
in the preamble that it was requiring the mortgagee to appraise the
property within 30 days of the borrower's death ``instead'' of 15 days
before the foreclosure sale. However, the actual text of the rule
provided for both the 30-day appraisal and 15-day appraisal, thereby
inadvertently requiring two appraisals. This proposed change would
correct multi-appraisal ordering that is costly to the mortgagee and to
FHA by amending paragraph (b) to instead require the mortgagee to have
the property appraised no later than 30 days after receipt of the
request by an applicable party in connection with a potential property
sale, and when a foreclosure sale is occurring, the appraisal must be
performed within 30 days of the foreclosure sale.
In paragraph (c), FHA provides greater clarity around which parties
are permitted to sell the property. FHA proposes to clarify that when
the HECM is not due and payable, the borrower or an authorized
representative of the borrower may sell the property for at least the
lesser of the outstanding loan balance or appraised value; when the
HECM is due and payable, the borrower or other party with legal right
to dispose of the property may sell the property for a discounted
percentage of appraised value in accordance with Sec.
206.125(a)(2)(ii).
To provide more clarity around the timing requirements for
mortgagees to initiate foreclosure, FHA proposes to amend paragraph
(d)(1) of this section to base the six month timeframe within which a
mortgagee must commence foreclosure off of the due date, as newly
defined in proposed Sec. 206.129(d)(1). Further, in paragraph (d)(2)
of this section, in order to clarify existing policy, FHA proposes to
add ``city or municipality'' after State, such that if the laws of the
State, city or municipality in which the mortgaged property is located
or Federal bankruptcy law does not permit foreclosure within the
aforementioned timeframe, the mortgagee must initiate foreclosure
within six months after the expiration of the time during which such
foreclosure is prohibited by such laws. FHA also proposes to amend
paragraph (d)(4) to allow the mortgagee to bid at a foreclosure sale an
amount at least equal to the sum of the outstanding loan balance and
incurred expenses, when that amount is less than the appraised value.
FHA proposes to amend paragraph (f) to clarify that a party with
legal right to dispose of the property may provide the mortgagee with a
deed in lieu of foreclosure. This rule also proposes to require that a
deed in lieu of foreclosure, whether provided by the borrower or other
party with legal right to dispose of the property, must be provided
within 9 months of the due date. FHA did not previously impose a time
period for this requirement, but limiting this to 9 months is important
because such a timeframe will allow the borrower or other party with
legal right to dispose of the property 6 months to attempt to sell the
property and an additional 3 months to obtain a title search and get
the deed signed, provided that title is clear. In this section, FHA
also proposes to create a Cash for Keys initiative to incentivize
borrowers to deed the property within 6 months of the due date.
Section 206.125(g) requires a mortgagee to make diligent efforts to
sell the property within six months from the date the mortgagee
acquired the property. FHA recognizes that there may be circumstances
in which it is appropriate to provide more time, and therefore has
reserved the ability to allow for additional time within which the
mortgagee must sell the property.
Application for Insurance Benefits (Sec. 206.127)
When the mortgagee acquires title, FHA's current regulation at
Sec. 206.127 requires mortgagees to apply for the payment of insurance
benefits within 15 days after the sale of the property by the
mortgagee. If the property is not sold within six months from the date
the mortgagee acquired title, the mortgagee must apply for another
appraisal within a specified time period and apply for insurance
benefits within 15 days of receipt of the new appraisal. When a party
other than the mortgagee acquires title, FHA's current regulation at
Sec. 206.127 requires that the mortgagee apply for payment of the
insurance benefits within 15 days after the other party acquires title.
It has come to FHA's attention that mortgagees have experienced
challenges in meeting these short time periods. Therefore, in this
rule, FHA proposes to extend these time periods to 30 days, and where
the mortgagee acquires title, FHA also proposes to provide flexibility
to the Commissioner to extend the 30-day time period.
In addition, in Sec. 206.127(a)(2), FHA's current regulation
requires that mortgagees bear the cost of the appraisal where the
mortgagee acquires title but does not sell the property within six
months of acquiring title; however, this cost has historically been
reimbursed through the claim process. FHA proposes to clarify that
mortgagees are permitted to add the cost of the appraisal to the claim
amount.
Section 206.127(c) refers to Sec. Sec. 203.351 and 203.353. To
provide greater clarity, FHA proposes to restate these requirements in
part 206, as applicable
[[Page 31790]]
to the HECM program, instead of cross-referencing to other parts of
FHA's regulations. These requirements will be restated, as applicable
to the HECM program, in Sec. Sec. 206.135(a) and 206.136,
respectively, and cited to in Sec. 206.127(c).
Finally, FHA proposes to add a new paragraph (d) to clarify that
mortgagees may only file an application for insurance benefits provided
the contract of insurance has not terminated.
Payment of Claim (Sec. 206.129)
FHA proposes to revise Sec. 206.129(d), which governs the
computation of the amount of a HECM insurance claim. This determination
is based on the mortgage ``due date'', which is the date the HECM
became due and payable. Paragraph (d), as currently written, provides
that the due date is the date the mortgagee notified the Secretary of
the borrower's death under Sec. 206.27(c)(1) or the date the Secretary
granted approval to accelerate the loan under Sec. 206.27(c)(2). These
regulations do not account for the existence of a Deferral Period, as
implemented by RMSA Mortgagee Letters 2014-07 and 2015-02. Accordingly,
FHA proposes to revise Sec. 206.129(d) in paragraph (d)(1) to provide
that the due date is the date when the mortgagee notifies or should
have notified the Commissioner that the mortgage is due and payable
under the conditions stated in Sec. 206.27(c)(1), or the date that the
Deferral Period, as provided for in the mortgage by Sec. 206.27(c)(3),
ends; or the date the Commissioner approves a due and payable request
as provided in the mortgage by Sec. 206.27(c)(2).
The regulation at Sec. 206.129(d) also provides for reimbursement
to the mortgagee as part of the mortgage insurance claim when the
mortgagee advances its corporate funds for the payment of property
charges. The proposed rule, in general, prospectively limits insurance
claim reimbursement to a mortgagee for advancement of the following
property charges to two years of payments for each such charge, except
that the Commissioner may approve an extension under such
circumstances, terms, and conditions determined and specified as
acceptable to the Commissioner: Taxes, ground rents, water rates, and
utility charges that are liens prior to the mortgage; special
assessments, which are noted on the application for insurance or which
become liens after the insurance of the mortgage; and hazard insurance
premiums on the mortgaged property.
FHA understands that borrowers may run into unexpected financial
difficulty, causing their mortgagees to advance property charges in
order to avoid declaring the loan due and payable. However, it is FHA's
position that the need for property charge advances for a period
greater than two years is a strong indication that a borrower's income
and HECM proceeds are insufficient to meet the borrower's living
expenses and cover property charges. The new limit on claims for
insurance benefits for advances of property charges is intended to
address this concern by encouraging mortgagees and borrowers to
proactively work out mutually advantageous methods that will enable
payment of property charges by the borrower or repayment of the
property charges advanced by the mortgagee to avoid a due and payable
status. However, FHA also recognizes that an absolute two year
limitation may be too strict in certain circumstances and potentially
cut-off attempts by the borrower and mortgagee to work out such
solutions due to the deadline. Accordingly, this proposed rule
authorizes limited exceptions to the two year period under
circumstances prescribed by the Commissioner, but does not convey any
right to the borrower to reach a resolution with the mortgagee.
In addition, Sec. 206.129(d) refers to various sections in part
203 and Sec. 204.322(l). To provide greater clarity, in Sec.
206.129(d), FHA proposes to restate the requirements of part 203, as
applicable to the HECM program, instead of cross-referencing to part
203. FHA also proposes, however, to eliminate the reference to Sec.
204.322(l) altogether because it no longer exists.
Finally, FHA seeks feedback on the utility of instituting a pro
rata interest and expense curtailment policy as was recently proposed
for FHA's forward mortgages in Federal Housing Administration (FHA):
Single Family Mortgage Insurance Maximum Time Period for Filing
Insurance Claims, Curtailment of Interest and Disallowance of Operating
Expenses Incurred Beyond Certain Established Timeframes (FR-5742-P-01).
FHA specifically asks the follow questions:
(1) Should the HECM program provide for the pro rata curtailment of
debenture interest and reduction of expenses incurred as a result of
the mortgagee's delay in filing the mortgage insurance claim, and if
so, how should such a policy be structured to ensure feasible
implementation?
(2) What expenses are caused by or increase as a result of the
mortgagee's delay in filing a mortgage insurance claim, and what
expenses are not impacted by such a delay?
Termination of Insurance Contract (Sec. 206.133)
FHA proposes to revise paragraph (b) to renumber current paragraph
(b) as (b)(1) and to add a new subparagraph (2) specific to termination
of the insurance contract when a claim for insurance benefits will be
presented.
Paragraph (e) of Sec. 206.133 refers to the provisions of Sec.
203.295 concerning voluntary terminations. To provide greater clarity,
FHA proposes to restate the requirements of Sec. 203.295, as
applicable to the HECM program, in this section, instead of cross-
referencing to a section in part 203.
In paragraph (f) FHA takes the opportunity provided by this
rulemaking to clarify that when the insurance contract is terminated,
the rights of the mortgagee shall also terminate. The current
regulation unintentionally also references the rights of the borrower,
but the borrower does not have any rights in regards to the insurance
contract; that contract is between FHA and the mortgagee. In this
paragraph, FHA also proposes to state that all obligations of the
Commissioner shall cease immediately upon termination of the insurance
contract, and such will apply prospectively.
Additional Requirements: Sec. Sec. 206.134-206.146
As mentioned numerous times throughout this preamble, FHA is using
the opportunity provided by this rulemaking to eliminate confusing
cross-references to other parts of FHA's regulations and replace them
with requirements specifically applicable to the HECM program. This is
particularly true of part 203 references, for which regulations were
written for the FHA forward mortgage product; the forward and reverse
mortgage programs differ in many respects. In addition, cross
references were appropriate at the time when the HECM program was a
demonstration program of only 2,500 loans. This is no longer the case
as the HECM program has been a full-fledged program for almost 20
years. Therefore, FHA proposes to add sections 206.134 through 206.146,
which convey the content of a number of part 203 regulations, as
applicable to the HECM program.
FHA proposes to make a few substantive changes from these part 203
provisions. In Sec. 206.134, which contains material from Sec.
203.343, FHA proposes to account for situations in which a dwelling is
rebuilt upon an existing lot. Currently this section only allows the
mortgagee, with the consent of the Commissioner, to accept an addition
to
[[Page 31791]]
or substitution of security for the purpose of removing a dwelling to a
new lot, but FHA has encountered situations in which rebuilding a
dwelling on the same lot is desirable. In Sec. 206.135, which contains
content from Sec. 203.351, FHA proposes to amend the timing for the
recorded assignment instrument, such that it must be forwarded to the
Commissioner as soon as it is received by the mortgagee, but it need
not be provided on the date the application for assignment is
submitted. When the application for assignment is submitted, only a
proposed assignment instrument would be required. Finally, in Sec.
206.136, FHA proposes to address concerns with super lien states by
requiring the HECM mortgage to be in first lien status prior to
homeowners association and condo association liens.
Subpart D--Servicing Responsibilities
Providing Information (Sec. 206.203)
The current regulation at Sec. 206.203(a) requires that the
mortgagee provide the borrower with an annual statement summarizing
mortgage activity during the calendar year. FHA has discovered that
this requirement may have the potential for deferring notification to
borrowers of important actions affecting their mortgage accounts.
Further, current Sec. 206.203(b) provides that the mortgagee shall
provide the borrower with a statement of the account every time the
mortgagee makes a line of credit disbursement. This may have the
potential to impose an undue administrative burden on mortgagees, and
also to deluge borrowers with multiple statements if several line of
credit disbursements are requested within a given month. To alleviate
these concerns, this proposed rule would revise Sec. 206.203 to
require the mortgagee to provide the borrower with a single statement
at the end of each month summarizing account activity. The monthly
statement shall be in a format acceptable to the Commissioner and
contain the information that is currently required annually under Sec.
206.203(a) for the specific month covered by the statement, as well as
for the calendar year as of the date of the statement. This rule would
therefore remove the requirements that the mortgagee provide the
borrower with a statement of account activity every time it makes a
line of credit payment or recalculates the monthly payments.
The current regulation at Sec. 206.203(c) requires the mortgagee
to provide the borrower with the name of the mortgagee's employee who
has been specifically designated to respond to HECM loan inquiries. The
requirement that a specific individual be named has proven to be
impracticable, given the large number of HECM loans serviced by
mortgagees and the fact that such inquiries are typically addressed by
a team of employees rather than a single individual. Therefore, FHA
proposes to require that the borrower be provided with the telephone
number where the borrower may speak to employee(s) designated to
address inquiries concerning their HECM loans. The use of the word
``speak'' in the regulatory language is deliberate. Although mortgagees
would no longer be required to provide the name of a specific employee,
it is important for mortgagees to ensure that their employees are
tasked with receiving and responding to calls from HECM borrowers as
opposed to having such calls routed to voicemail or handled through
email.
In addition, because it is necessary for FHA to have access to
information regarding individual accounts as part of FHA's oversight,
in Sec. 206.203(c)(3), FHA proposes to require mortgagees to respond
to FHA requests for information concerning individual accounts, which
mirrors forward mortgage requirements.
Finally, the regulation at Sec. 206.203(c) currently provides that
the ``forward mortgage'' requirements at Sec. 203.508(a) and (b)
pertaining to loan information to borrowers are also applicable to the
HECM program. As mentioned earlier in this preamble, in order to
provide greater clarity, FHA proposes to restate requirements in FHA's
part 206 regulations, as applicable to the HECM program, instead of
cross-referencing to other parts of FHA's regulations. Accordingly, FHA
proposes to amend Sec. 206.203 to provide the actual requirements of
Sec. 203.508(a) and (b) as applicable to the HECM program.
Property Charges (Sec. 206.205)
RMSA Mortgagee Letter 2014-21 \27\ implemented substantial changes
to FHA's Property Charge Funding Requirements in Sec. 206.205 to
address increasing property charge defaults, which resulted in higher
payouts of insurance claims. RMSA Mortgagee Letter 2014-21 provided
that property charges are obligations of the borrower that are defined
as taxes, hazard insurance premiums, any applicable flood insurance
premiums, ground rents, condominium fees, and any other special
assessments that may be levied by municipalities or state law.
---------------------------------------------------------------------------
\27\ FHA initially implemented changes to HECM's Property Charge
Funding Requirements in RMSA Mortgagee Letter 2013-27, but that RMSA
mortgagee letter was superseded by RMSA Mortgagee Letter 2014-21.
---------------------------------------------------------------------------
The current regulation at Sec. 206.205 provided that borrowers
were responsible for the payment of property charges, but allowed the
borrower to elect to require the mortgagee to pay certain property
charges by withholding funds from monthly payments due to the borrower
or by charging such funds to a line of credit. FHA's new policy,
announced in RMSA Mortgagee Letter 2014-21, however, provided
additional methods for the payment of property charges, and specified
the conditions under which these methods must or may be used.
Based on the results of the Financial Assessment, for fixed or
adjustable interest rate HECMs, the mortgagee may require a LESA for
the payment of certain property charges. For fixed interest rate HECMs,
if a LESA is required, it must be a Fully-Funded LESA. For adjustable
interest rate HECMs only, based on the results of the Financial
Assessment, the mortgagee may require the LESA to be Partially- or
Fully-Funded. If the mortgagee does not require a LESA, a borrower who
selects an adjustable interest rate HECM may elect to have a Fully-
Funded LESA, elect to have the mortgagee pay such property charges, or
elect to be responsible for the independent payment of all property
charges. If the mortgagee does not require a LESA, a borrower with a
fixed interest rate HECM may elect to have a Fully-Funded LESA or elect
to be responsible for the independent payment of all property charges.
This rule proposes to amend Sec. 206.205 to codify FHA's property
charge requirements announced in RMSA Mortgagee Letter 2014-21 with
some exceptions and further amendments as discussed below.
As mentioned earlier in this preamble in regards to the definition
of ``property charges,'' RMSA Mortgagee Letter 2014-21 did not include
utilities in its definition, but FHA is now proposing to add utilities
as a borrower responsibility. Corresponding amendments are proposed for
the definition of ``property charges'' in Sec. 206.3.
RMSA Mortgagee Letter 2014-21 listed specific details about the
information that a mortgagee must provide to the borrower in the
section titled ``Information to the Mortgagor.'' In this rule, FHA does
not propose to codify in FHA's part 206 regulations the requirement
regarding information to be provided to borrowers because that section
of RMSA Mortgagee Letter 2014-21 is more appropriately characterized as
guidance.
[[Page 31792]]
Similarly, RMSA Mortgagee Letter 2014-21 listed specific details
about what is to be included in a notice to the borrower when the
borrower fails to make property charge payments in sections titled
``Mortgagor Non-Payment of Property Charges--Fully-Funded Life
Expectancy Set Aside--Adjustable Rate HECMs'' and ``Mortgagor Non-
Payment of Property Charges--Partially-Funded Life Expectancy Set
Aside.'' In this rule, FHA does not propose to codify in FHA's part 206
regulations the requirements regarding information that is to be
provided to borrowers because that content is more appropriately
characterized as guidance.
RMSA Mortgagee Letter 2014-21 states that if the insured first
mortgage is assigned to the Commissioner, or if payments are made
through the second mortgage under the Demand Assignment process, the
Commissioner is not required to assume the responsibility for property
charge payments, but may continue to administer payments for property
charges for borrowers from any funds available in the LESA. In this
rule, FHA proposes to further provide that for adjustable interest rate
HECMs, if the LESA has a positive remaining balance but funds are
insufficient to pay all property charges due or semi-annual
disbursements to the borrower, the Commissioner may provide the
remaining funds to the borrower as line of credit.
FHA is also proposing amendments to Sec. 206.205 that were not
included in RMSA Mortgagee Letter 2014-21 for situations in which the
borrower is not required to have a LESA and elects to pay the property
charges himself. The failure to pay required property charges not only
places the borrower at risk of foreclosure and loss of the home, and
prompts mortgagees to incur the costs of advancing its corporate funds,
but it also potentially increases losses to the MMIF. Specifically, FHA
is proposing to require the mortgagee to notify the borrower and
Commissioner that an obligation of the mortgage has not been performed
within 30 days of the mortgagee becoming aware of a missed property
charge payment and there are no available HECM funds from which the
mortgagee can make the payment. The borrower would then have 30 days to
respond to the mortgagee to explain the circumstances which resulted in
the non-payment. FHA also proposes to state that the mortgagee may
provide any permissible loss mitigation options to the borrower. If the
borrower is unable or unwilling to repay the mortgagee for any funds
advanced by the mortgagee to pay property charges outside of a LESA,
the mortgagee must submit a due and payable request under the
provisions of Sec. 206.27(c)(2).
Allowable Charges and Fees After Endorsement (Sec. 206.207)
In Sec. 206.207(a), FHA's current regulation includes references
to a number of regulatory provisions in part 203. To provide greater
clarity, FHA proposes to restate these requirements in FHA's part 206
regulations, as applicable to the HECM program, instead of cross-
referencing to other parts of FHA's regulations.
In Sec. 206.207(b), FHA proposes to clarify that a mortgagee may
collect a servicing charge beginning with the month of closing and
continuing through a Deferral Period. FHA also proposes to allow a
servicing charge to be included in the mortgage Note rate, in an amount
set by the Commissioner through notice which shall be between 36 and
150 basis points.
FHA specifically solicits public comment on the following
questions:
(1) What is an appropriate servicing fee range (minimum and maximum
dollar amounts) for the flat monthly servicing fee, and what factors
support the upper and lower bounds of that range?
(2) What is an appropriate servicing fee range, in basis points,
that could be included in the Note rate, and what factors support the
upper and lower bounds of that range?
Prepayment (Sec. 206.209)
FHA proposes to make clarifying changes in paragraph (a) to
distinguish from when a borrower repays a mortgage in full and prepays
a mortgage in part. FHA also proposes to add a new paragraph (c) to
specify that any funds received from a partial prepayment must be
applied in accordance with the Note.
Determination of Principal Residence and Contact Information (Sec.
206.211)
The current regulation at Sec. 206.211 requires that the mortgagee
verify, at least annually, whether the property is the principal
residence of at least one borrower. To further facilitate
communications between the mortgagee and borrower, this proposed rule
builds upon this provision by requiring that the mortgagee also verify
the borrower's contact information, including whether the borrower may
voluntarily wish to designate an alternative point of contact for
notifications from the mortgagee.
In addition, FHA proposes to codify changes made to the
determination of principal residence and contact information that were
implemented by RMSA Mortgagee Letters 2014-07 and 2015-02. Consistent
with the requirements announced in these RMSA mortgagee letters, FHA
proposes to amend Sec. 206.211 to require the mortgagee, where an
Eligible Non-Borrowing Spouse has been identified, to obtain an
additional certification from the borrower confirming the Eligible Non-
Borrowing Spouse remains his or her spouse and the Eligible Non-
Borrowing Spouse continues to reside in the property as his or her
principal residence. Upon the death of a borrower with an Eligible Non-
Borrowing Spouse, the Eligible Non-Borrowing Spouse is required to
submit the annual certification as long as that spouse remains an
Eligible Non-Borrowing Spouse.
Subpart E--HECM Counselor Roster
HECM Counselor Roster (Sec. Sec. 206.302, 206.304, 206.306 and
206.308)
FHA proposes to clarify that counselors, in addition to being
listed on the HECM Counselor Roster, must be employed by a
participating agency. FHA proposes to define ``participating agency''
in Sec. 206.3.
FHA proposes to make minor amendments to Sec. Sec. 206.304,
206.306 and 206.308 to differentiate between when a counselor is a
``housing counselor,'' and when a counselor becomes a ``HECM
counselor.''
In addition, FHA proposes to remove the grandfathering clause in
Sec. 206.304(c) because the time for which it was applicable has
passed.
3. Technical Amendments
The definition of ``principal limit'' in Sec. 206.3 incorrectly
cites to Sec. 209.209(b). The correct citation is Sec. 206.209(b).
In Sec. 206.9(a), FHA cites to requirements in section 255(b)(3)
of the NHA, but Sec. 206.9(a) should actually cite to subsections
255(b)(2) and 255(d)(1) of the NHA.
In Sec. 206.16, the reference to Sec. 206.17 should be changed to
Sec. 206.107.
In Sec. 206.23(d), the third ``mortgagee'' should be changed to
``mortgage''.
In Sec. 206.43(b)(1), the reference to Sec. 206.29 should be
changed to Sec. 206.25, as Sec. 206.29 has been merged with Sec.
206.25.
In Sec. 206.53(b), the references to paragraphs (c) and (d) should
be changed to (d) and (e), respectively.
In Sec. 206.125(a)(3), ``forclosure'' is misspelled and should be
changed to ``foreclosure'' and in Sec. 206.125(c), the two references
to Sec. 206.27(e) should be changed to Sec. 206.27(d), as paragraph
(e) does not exist.
[[Page 31793]]
``Mortagee'' in Sec. 206.127(a)(2) should be changed to
``mortgagee'' to correct an inadvertent spelling error.
In Sec. 206.43(a), a reference is made to 24 CFR 3500.7, and in
Sec. 206.201(c)(2)(i), a reference is made to 24 CFR 3500.21(e)(2).
However, effective July 21, 2011, title X of the Dodd-Frank Wall Street
Reform and Consumer Protection Act (Dodd-Frank Act) transferred
rulemaking authority for a number of consumer financial protection laws
from seven Federal agencies to the Bureau of Consumer Financial
Protection (Bureau) as of July 21, 2011, including, from HUD, the Real
Estate Settlement Procedures Act of 1974 (RESPA) which had previously
been implemented in HUD's Regulation X, 24 CFR part 3500. See sections
1061 and 1098 of the Dodd-Frank Act. In these section, FHA proposes to
cite to 12 CFR 1024.7 and 12 CFR 1024.21(e)(2), respectively, where
these provisions are now codified.
In current Sec. 206.205(d), which FHA proposes to redesignate as
Sec. 206.205(d)(1), the reference to Sec. 206.121(a) is incorrect and
should be changed to Sec. 206.121(b).
IV. Questions for Commenters
HUD welcomes comments on all aspects of the proposal, including the
Regulatory Impact Analysis (RIA) attached to this proposed rule. In
addition, there are several provisions in the rule that FHA would like
to note for special consideration and is seeking public comments.
A. Maximum Closing Costs Allowed on Sale of Property
The flexibility provided in this rule to sell properties for less
than the full appraised value necessitates limits to the amount of
closing costs FHA should allow to be deducted from sales proceeds. This
rule proposes to require that the closing costs from the sale be no
more than 11 percent of the sales price. FHA specifically invites
comments regarding
1. Is 11 percent a reasonable cap? FHA chose this percentage based
on the policy for sale of its REO inventory, which allows for payment
of 6 percent sales commission and 5 percent for other closing costs,
but is interested in comments to indicate whether the amount should be
higher or lower, and why the commenter believes the adjustment is
appropriate.
2. Should FHA implement a tiered approach to the maximum percent of
closing costs in relation to the sales price? For example, should a
property selling for under $100,000 be allowed a higher percentage of
closing costs than a property selling for over $100,000?
3. Should FHA implement a tiered approach to the maximum dollar
amount of closing costs in relation to the sales price? For example,
should a property selling for under $100,000 be allowed a different
dollar amount than a property selling for over $100,000?
B. Utilities
FHA proposes to amend the definition of ``property charges'' to
include utilities as a borrower obligation under the terms of the
Mortgage that must be satisfied by the borrower, as applied in Sec.
206.205 of the proposed rule. Failure to pay utilities that result in a
lien against the property would potentially trigger a due and payable
event. FHA requests comments on this proposal and the following:
1. What utilities, if any, should be defined as property charges?
2. When should a utility bill result in due and payable status?
3. How do mortgagees currently receive notice of delinquent utility
bills and potential liens on the property?
C. Property Inspection & Repairs Subsequent to Closing
With the dwelling serving as security for the loan, it is important
that the dwelling be maintained as the loan ages. To ensure that the
borrower complies with their obligation under the mortgage to maintain
the property in good repair, FHA is considering establishing a
requirement in the final rule for Mortgagees to conduct periodic
inspections of the property for the life of the HECM and allowing the
cost of inspection to be included as a reasonable and customary charge
that may be collected and added to the borrower's loan balance. If such
a requirement is included in the final rule and the property requires
repairs, FHA anticipates that where funds are available from the HECM
proceeds for adjustable interest rate HECMs, it may allow the mortgagee
to establish a Repair Set Aside to ensure that necessary repairs are
made. FHA would further anticipate that where a property inspection
during a Deferral Period identifies necessary repairs, a Repair Set
Aside may not be established. The Eligible Non-Borrowing Spouse would
be responsible for making any required repairs identified during a
Deferral Period within a specified timeframe. FHA specifically invites
comment on the following questions:
1. What is the appropriate frequency of property inspections,
including whether more or less frequent inspections may be necessary
under certain conditions (for example, if a property is newly
constructed, a prior inspection indicated disrepair, or following a
disaster event), and whether interior and exterior inspections should
be required at the same frequency?
2. Should inspections consist of exterior inspections only, or
should they also include interior inspections?
3. Should the borrower be required to complete the repairs within
one year of the date the property was inspected?
4. When no HECM funds are available and the borrower or, if
applicable, Eligible Non-Borrowing Spouse, does not have funds to make
the needed repairs, how else might repairs be funded?
5. What types or categories of items for repair should a property
inspector identify as being necessary? In what ways, if any, should
this differ from the condition status of the property at origination?
6. What are the methods and standards the property inspector should
employ when conducting the property inspection to identify items that
are in need of repair?
7. If a Repair Set Aside was established to complete repairs
identified during a periodic inspection and the HECM borrower passes
away prior to the completion of repairs, should FHA consider allowing
funds to be disbursed from a Repair Set Aside during a Deferral Period
for the purpose of paying for necessary repairs identified during the
property inspection?
8. What would be the potential costs to borrowers and servicers
associated with periodic inspections? What benefits would result from
periodic inspections and do they outweigh these costs?
9. As an alternative to the requirement proposed by this rule, HUD
could require inspections consistent with the risks presented in each
loan, such as the amount of the outstanding balance in relation to the
value of the property and the age of the home. Would such an approach
be more effective for both maintaining the value of the property and
reducing costs for FHA and borrowers?
D. Non-Borrowing Spouse Communication
FHA understands that Non-Borrowing Spouses and successors in
interest may face difficulties after the death of the borrower in
understanding and exercising their rights with regard to the mortgage.
In addition to the counseling required for all borrowers, the proposed
rule would require additional housing counseling for Non-Borrowing
Spouses
[[Page 31794]]
to explain how and when the HECM would become due and payable. FHA
specifically invites comment on the following questions:
1. What difficulties have Non-Borrowing Spouses, heirs, and
successors in interest had in obtaining information about HECMs and
understanding and exercising their rights?
2. What adjustments could FHA make to this rule to address the
identified difficulties and facilitate communication with Non-Borrowing
Spouses, heirs, and successors in interest?
E. Regulatory Impact Analysis--Benefits and Costs
HUD also welcomes comments on all aspects of the RIA to this
proposed rule and would welcome any additional information or insight
commenters may have on the benefits and costs of each provision of the
rule. HUD's full RIA is available for review and comment at
Regulations.gov.
V. Findings and Certifications
Paperwork Reduction Act
The information collection requirements contained in this proposed
rule are pending approval by the Office of Management and Budget (OMB)
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) and
assigned OMB Collection Numbers 2502-0524 and 2502-0611. In accordance
with the Paperwork Reduction Act, an agency may not conduct or sponsor,
and a person is not required to respond to, a collection of information
unless the collection displays a currently valid OMB control number.
The burden of the information collections in this proposed rule is
estimated as follows:
Reporting and Recordkeeping Burden
----------------------------------------------------------------------------------------------------------------
Estimated average
Section reference Number of Number of responses time for requirement Estimated annual
respondents per respondent (in hours) burden (in hours)
----------------------------------------------------------------------------------------------------------------
206.59 Mortgagee notifies NBS of 10 10,000.............. 0.17................ 1,700.
the end of the Deferral Period.
206.125 Mortgagee notifies NBS of 10 10,000.............. 0.10................ 1,000.
D&P status and applicable
options.
206.125 Notification of D&P 10 10,000.............. 0.10................ 1,000.
status to HUD when Deferral
Period ends.
206.203 Information Sharing with 10 12,844,433 0.15 (automated).... 1,926,665
HUD. 10 (automated). 1 (manual).......... (automated)
10,000 (manual)..... 10,000 (manual).
206.211 NBS Annual Occupancy 10 24,000.............. 0.33................ 7,920.
Certification.
------------------------------------------------------------------------------
Totals....................... 10 12,908,433.......... .................... 1,948,285.
----------------------------------------------------------------------------------------------------------------
In accordance with 5 CFR 1320.8(d)(1), HUD is soliciting comments
from members of the public and affected agencies concerning this
collection of information to:
(1) Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of
the proposed collection of information;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of information on those
who are to respond; including through the use of appropriate automated
collection techniques or other forms of information technology, e.g.,
permitting electronic submission of responses.
Interested persons are invited to submit comments regarding the
information collection requirements in this rule. Comments must refer
to the proposal by name and docket number (FR-5353) and must be sent
to: HUD Desk Officer, Office of Management and Budget, New Executive
Office Building, Washington, DC 20503, Fax number: (202) 395-6947 and
Reports Liaison Officer, Department of Housing and Urban Development,
451 Seventh Street SW., Washington, DC 20410.
Regulatory Review--Executive Orders 12866 and 13563
The Office of Management and Budget (OMB) reviewed this proposed
rule under Executive Order 12866 (entitled ``Regulatory Planning and
Review''). OMB determined that this rule was an economically
significant rule under the order. The docket file is available for
public inspection in the Regulations Division, Office of General
Counsel, U.S. Department of Housing and Urban Development, 451 7th
Street SW., Room 10276, Washington, DC, 20410-0500. The Initial
Economic Analysis prepared for this rule is also available for public
inspection in the Regulations Division. Due to security measures at the
HUD Headquarters building, an advance appointment to review the public
comments must be scheduled by calling the Regulations Division at (202)
708-3055 (this is not a toll-free number). Individuals with speech or
hearing impairments may access this number via TTY by calling the
Federal Relay Service at (800) 877-8339.
Executive Order 13563 (Improving Regulations and Regulatory Review)
directs executive agencies to analyze regulations that are ``outmoded,
ineffective, insufficient, or excessively burdensome, and to modify,
streamline, expand, or repeal them in accordance with what has been
learned. Executive Order 13563 also directs that, where relevant,
feasible, and consistent with regulatory objectives, and to the extent
permitted by law, agencies are to identify and consider regulatory
approaches that reduce burdens and maintain flexibility and freedom of
choice for the public. This rule reduces burdens on mortgagees by
codifying all regulatory policy related to the HECM program in one
place. Absent this proposed rule, mortgagees would have to deduce the
current program requirements by comparing a number of mortgagee letters
to the current HECM regulations at 24 CFR part 206 and determining
which regulatory content has, in effect, been superseded by HERA and
RMSA mortgagee letters.
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.),
generally requires an agency to conduct a regulatory flexibility
analysis 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
[[Page 31795]]
number of small entities. Many of the policies discussed in this
proposed rule, such as the requirement that mortgagees perform a
Financial Assessment of prospective HECM borrowers, the requirements of
the HECM for Purchase program, the introduction of the Single Lump Sum
payment option, and the limitation on disbursements during the First
12-Month Disbursement Period, have already been implemented by
mortgagees large and small. The codification of these policies will not
impact large or small mortgagees, other than easing burden by providing
them with one location to find all HECM regulatory requirements.
The new policy changes proposed by this rule would address
important concerns with the HECM program, including the risk the
program has, in the past, posed to the MMIF, as well as the continued
availability of this program for seniors. Some of the new policy
proposals are expected to relieve burdens on all mortgagees, large and
small. For example, the amendment to the definition of ``expected
average mortgage interest rate'' providing the mortgagee with the
ability to lock-in the expected average mortgage interest rate prior to
the date of loan closing will align the provision with current industry
policy. Removing the duplicative appraisal requirement and creating a
Cash for Keys incentive structure will both relieve burden on
mortgagees. Other policies are expected to increase burdens on
mortgagees, although are not expected to raise to the level of having a
significant impact on a substantial number of small entities. For
example, all mortgagees would be required to disclose all available
HECM program options. To minimize the effect of this provision on all
mortgagees, FHA intends to create disclosure documents listing all
available options for mortgagees to provide to prospective borrowers.
Also, while new lifetime interest rate caps for monthly adjustable
interest rate HECMs will affect large and small mortgagees, the impact
will be limited because the industry currently self-imposes a 10
percent life-of-loan cap on monthly adjustable interest rate HECMs. FHA
believes that these policies are reasonable and provide mitigating
features so that the FHA-approved mortgagees, large and small, will not
be adversely affect by these policies.
Notwithstanding FHA's determination that this rule will not have a
significant effect on a substantial number of small entities, FHA
specifically invites comments regarding any less burdensome
alternatives to this rule that will meet HUD's objectives as described
in the preamble to this rule.
Environmental Impact
A Finding of No Significant Impact with respect to the environment
has been made in accordance with HUD regulations in 24 CFR part 50 that
implement section 102(2)(C) of the National Environmental Policy Act of
1969 (42 U.S.C. 4332(2)(C)). The Finding is available for public
inspection during regular business hours in the Regulations Division,
Office of General Counsel, Department of Housing and Urban Development,
451 7th Street SW., Room 10276, Washington, DC 20410-0500. Due to
security measures at the HUD Headquarters building, please schedule an
appointment to review the Finding by calling the Regulations Division
at (202) 708-3055 (this is not a toll-free number). Individuals with
speech or hearing impairments may access this number via TTY by calling
the Federal Relay Service at (800) 877-8339.
Executive Order 13132, Federalism
Executive Order 13132 (entitled ``Federalism'') prohibits an agency
from publishing any rule that has federalism implications if the rule
imposes either substantial direct compliance costs on state and local
governments and is not required by statute, or the rule preempts state
law, unless the agency meets the consultation and funding requirements
of section 6 of the Executive Order. This rule would not have
federalism implications and would not impose substantial direct
compliance costs on state and local governments or preempt state law
within the meaning of the Executive Order.
Catalog of Federal Domestic Assistance
The Catalog of Federal Domestic Assistance number for Home Equity
Conversion Mortgages is 14.183.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
1531-1538) (UMRA) establishes requirements for federal agencies to
assess the effects of their regulatory actions on state, local, and
tribal governments, and on the private sector. This rule would not
impose any federal mandates on any state, local, or tribal governments,
or on the private sector, within the meaning of the UMRA.
List of Subjects
24 CFR Part 30
Administrative practice and procedure, Grant programs-housing and
community development, Loan programs-housing and community development,
Mortgage insurance, Penalties.
24 CFR Part 206
Aged condominiums, loan programs, housing and community
development, mortgage insurance, reporting and recordkeeping
requirements.
Accordingly, for the reasons stated in the preamble, HUD proposes
to amend 24 CFR parts 30 and 206 to read as follows:
PART 30--CIVIL MONEY PENALTIES: CERTAIN PROHIBITED CONDUCT
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1. The authority citation for part 30 continues to read as follows:
Authority: 12 U.S.C. 1701q-1; 1703, 1723i, 1735f-14, and 1735f-
15; 15 U.S.C. 1717a; 28 U.S.C. 2461 note; 42 U.S.C. 1437z-1 and
3535(d).
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2. Revise paragraphs (a)(8) and (a)(10) of Sec. 30.35 to read as
follows:
Sec. 30.35 Mortgagees and lenders.
(a) * * *
(8) Fails to timely submit documents that are complete and accurate
in connection with a conveyance of a property or a claim for insurance
benefits, in accordance with Sec. Sec. 203.365, 203.366 or 203.368; or
a claim for insurance benefits in accordance with Sec. 206.127 of this
title.
* * * * *
(10) Fails to service FHA insured mortgages, in accordance with the
requirements of 24 CFR parts 201, 203, 206 and 235.
* * * * *
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3. Revise part 206 to read as follows:
PART 206--HOME EQUITY CONVERSION MORTGAGE INSURANCE
Subpart A--General
Sec.
206.1 Purpose.
206.3 Definitions.
206.7 Effect of amendments.
206.8 Preemption.
Subpart B--Eligibility; Endorsement
206.9 Eligible mortgagees.
206.13 Disclosure of available HECM program options.
206.15 Insurance.
Mortgages
206.17 Eligible Mortgages: General.
206.19 Payment options.
206.21 Interest rate.
206.23 Shared appreciation.
206.25 Calculation of disbursements.
206.26 Change in payment option.
206.27 Mortgage provisions.
206.31 Allowable charges and fees.
206.32 No outstanding unpaid obligations.
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Eligible Borrowers
206.33 Age of borrower.
206.34 Limitation on number of mortgages.
206.35 Title of property which is security for HECM.
206.36 Seasoning requirements for existing non-HECM liens.
206.37 Credit standing.
206.39 Principal residence.
206.40 Disclosure, verification and certifications.
206.41 Counseling.
206.43 Information to borrower.
206.44 Monetary investment for HECM for Purchase program.
Eligible Properties
206.45 Eligible properties.
206.47 Property standards; repair work.
206.51 Eligibility of mortgages involving a dwelling unit in a
condominium.
206.52 Eligible sale of property--HECM for Purchase.
Refinancing of Existing Home Equity Conversion Mortgages
206.53 Refinancing a HECM loan.
Deferral of Due and Payable Status
206.55 Deferral of due and payable status for Eligible Non-Borrowing
Spouses.
206.57 Cure provision enabling reinstatement of Deferral Period.
206.59 Obligations of mortgagee.
206.61 HECM proceeds during a Deferral Period.
Subpart C--Contract Rights and Obligations
Sale, Assignment and Pledge
206.101 Sale, assignment and pledge of insured mortgages.
206.102 Insurance Funds.
Mortgage Insurance Premiums
206.103 Payment of MIP.
206.105 Amount of MIP.
206.107 Mortgagee election of assignment or shared premium option.
206.109 Amount of mortgagee share of premium.
206.111 Due date of MIP.
206.113 Late charge and interest.
206.115 Insurance of mortgage.
206.116 Refunds.
HUD Responsibility to Borrowers
206.117 General.
206.119 [Reserved]
206.121 Commissioner authorized to make payments.
Claim Procedure
206.123 Claim procedures in general.
206.125 Acquisition and sale of the property.
206.127 Application for insurance benefits.
206.129 Payment of claim.
Condominiums
206.131 Contract rights and obligations for mortgages on individual
dwelling units in a condominium.
Termination of Insurance Contract
206.133 Termination of insurance contract.
Additional Requirements
206.134 Partial release, addition or substitution of security.
206.135 Application for insurance benefits and fiscal data.
206.136 Conditions for assignment.
206.137 Effect of noncompliance with regulations.
206.138 Mortgagee's liability for certain expenditures.
206.140 Inspection and preservation of properties.
206.141 Property condition.
206.142 Adjustment for damage or neglect.
206.143 Certificate of property condition.
206.144 Final payment.
206.145 Items deducted from payment.
206.146 Debenture interest rate.
Subpart D--Servicing Responsibilities
206.201 Mortgage servicing generally; sanctions.
206.203 Providing information.
206.205 Property charges.
206.207 Allowable charges and fees after endorsement.
206.209 Prepayment.
206.211 Determination of principal residence and contact
information.
Subpart E--HECM Counselor Roster
206.300 General.
206.302 Establishment of the HECM Counselor Roster.
206.304 Eligibility for placement on the HECM Counselor Roster.
206.306 Removal from the HECM Counselor Roster.
206.308 Continuing education requirements of counselors listed on
the HECM Counselor Roster.
Authority: 12 U.S.C. 1715b, 1715z-20; 42 U.S.C. 3535(d).
Subpart A--General
Sec. 206.1 Purpose.
The purposes of the Home Equity Conversion Mortgage (HECM)
Insurance program are set out in section 255(a) of the National Housing
Act, Public Law 73-479, 48 STAT. 1246 (12 U.S.C. 1715z-20) (``NHA'').
Sec. 206.3 Definitions.
As used in this part, the following terms shall have the meaning
indicated.
Borrower means a mortgagor who is an original borrower under the
HECM Loan Agreement and Note. The term does not include successors or
assigns of a borrower.
Borrower's Advance means the funds advanced to the borrower at the
closing of a fixed interest rate HECM in accordance with Sec. 206.25.
CMT Index means the U.S. Constant Maturity Treasury Index.
Commissioner means the Federal Housing Commissioner or the
Commissioner's authorized representative.
Contract of insurance means the agreement evidenced by the issuance
of a Mortgage Insurance Certificate or by the endorsement of the
Commissioner upon the credit instrument given in connection with an
insured mortgage, incorporating by reference the regulations in subpart
C of this part and the applicable provisions of the National Housing
Act.
Day means calendar day, except where the term business day is used.
Deferral Period means the period of time following the death of the
last surviving borrower during which the due and payable status of a
HECM is deferred for an Eligible Non-Borrowing Spouse provided that the
Qualifying Attributes and all other FHA requirements continue to be
satisfied.
Eligible Non-Borrowing Spouse means a Non-Borrowing Spouse who
meets all Qualifying Attributes for a Deferral Period.
Estate planning service firm means an individual or entity that is
not a mortgagee approved under part 202 of this chapter or a
participating agency approved under subpart B of 24 CFR part 214 and
that charges a fee that is:
(1) Contingent on the prospective borrower obtaining a mortgage
loan under this part, except the origination fee authorized by Sec.
206.31 or a fee specifically authorized by the Commissioner; or
(2) For information that borrowers and Eligible and Ineligible Non-
Borrowing Spouses, if applicable, must receive under Sec. 206.41,
except a fee by:
(i) A participating agency approved under subpart B of 24 CFR part
214; or
(ii) An individual or company, such as an attorney or accountant,
in the bona fide business of generally providing tax or other legal or
financial advice; or
(3) For other services that the provider of the services represents
are, in whole or in part, for the purpose of improving a prospective
borrower's access to mortgages covered by this part, except where the
fee is for services specifically authorized by the Commissioner.
Expected average mortgage interest rate means the interest rate
used to calculate the principal limit established at closing. For fixed
interest rate HECMs, the expected average mortgage interest rate is the
same as the fixed mortgage (Note) interest rate and is set
simultaneously with the fixed interest rate. For adjustable interest
rate HECMs, it is either the sum of the mortgagee's margin plus the
weekly average yield for U.S. Treasury securities adjusted to a
constant maturity of 10 years, or it is the sum of the mortgagee's
margin plus the 10-year LIBOR swap rate, depending on which interest
rate index is chosen by the borrower. The margin is determined
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by the mortgagee and is defined as the amount that is added to the
index value to compute the expected average mortgage interest rate. The
index type (CMT or LIBOR) used to calculate the expected average
mortgage interest rate must be the same index type used to calculate
mortgage interest rate adjustments--commingling of index types is not
allowed. The mortgagee's margin is the same margin used to determine
the initial interest rate and the periodic adjustments to the interest
rate. Mortgagees, with the agreement of the borrower, may
simultaneously lock-in the expected average mortgage interest rate and
the mortgagee's margin prior to the date of loan closing or
simultaneously establish the expected average mortgage interest rate
and the mortgagee's margin on the date of loan closing.
First 12-Month Disbursement Period means the period beginning on
the day of loan closing and ending on the day before the loan closing
anniversary date. When the day before the anniversary date of loan
closing falls on a Federally-observed holiday, Saturday, or Sunday, the
end period will be on the next business day after the Federally-
observed holiday, Saturday or Sunday.
HECM means a Home Equity Conversion Mortgage.
HECM counselor means an independent third-party that is currently
active on FHA's HECM Counselor Roster and that is not, either directly
or indirectly, associated with or compensated by, a party involved in
originating, servicing, or funding the HECM, or the sale of annuities,
investments, long-term care insurance, or any other type of financial
or insurance product who provides statutorily required counseling to
prospective borrowers who may be eligible for or interested in
obtaining an FHA-insured HECM. This counseling assists elderly
prospective borrowers who seek to convert equity in their homes into
income that can be used to pay for home improvements, medical costs,
living expenses, or other expenses.
Ineligible Non-Borrowing Spouse means a Non-Borrowing Spouse who
does not meet all Qualifying Attributes for a Deferral Period.
Initial Disbursement Limit means the maximum amount of funds that
can be advanced to a borrower of an adjustable interest rate HECM
allowed at loan closing and during the First 12-Month Disbursement
Period in accordance with Sec. 206.25.
Insured mortgage means a mortgage which has been insured as
evidenced by the issuance of a Mortgage Insurance Certificate.
LIBOR means the London Interbank Offered Rate.
Loan documents mean the credit instrument, or Note, secured by the
lien, and the loan agreement.
Mandatory Obligations are fees and charges incurred in connection
with the origination of the HECM that are requirements for loan
approval and which will be paid at closing or during the First 12-Month
Disbursement Period in accordance with Sec. 206.25.
Maximum claim amount means the lesser of the appraised value of the
property, as determined by the appraisal used in underwriting the loan;
the sales price of the property being purchased for the sole purpose of
being the principal residence; or the national mortgage limit for a
one-family residence under subsections 255(g) or (m) of the National
Housing Act (as adjusted where applicable under section 214 of the
National Housing Act) as of the date of loan closing. The initial
mortgage insurance premium must not be taken into account in the
calculation of the maximum claim amount. Closing costs must not be
taken into account in determining appraised value.
MIP means the mortgage insurance premium paid by the mortgagee to
the Commissioner in consideration of the contract of insurance.
Mortgage means a first lien on real estate under the laws of the
jurisdiction where the real estate is located. If the dwelling unit is
in a condominium, the term mortgage means a first lien covering a fee
interest or eligible leasehold interest in a one-family unit in a
condominium project, together with an undivided interest in the common
areas and facilities serving the project, and such restricted common
areas and facilities as may be designated. The term refers to a
security instrument creating a lien, whether called a mortgage, deed of
trust, security deed, or another term used in a particular
jurisdiction.
Mortgagee means original lender under a mortgage and its successors
and assigns, as are approved by the Commissioner.
Mortgagor means each original mortgagor under a HECM mortgage and
his heirs, executors, administrators and assigns.
Non-Borrowing Spouse means the spouse, as defined by the law of the
state in which the spouse and borrower reside or the state of
celebration, of the HECM borrower at the time of closing and who is
also not a borrower.
Participating agency means all housing counseling and intermediary
organizations participating in HUD's Housing Counseling program,
including HUD-approved agencies, and affiliates and branches of HUD-
approved intermediaries, HUD-approved multi-state organizations (MSOs),
and state housing finance agencies.
Principal limit means the maximum amount calculated, taking into
account the age of the youngest borrower or Eligible Non-Borrowing
Spouse, the expected average mortgage interest rate, and the maximum
claim amount. The principal limit is calculated for the first month
that a mortgage could be outstanding using factors provided by the
Commissioner. It increases each month thereafter at a rate equal to
one-twelfth of the mortgage interest rate in effect at that time, plus
one-twelfth of the annual mortgage insurance rate. For an adjustable
interest rate HECM, the principal limit increase may be made available
for the borrower each month thereafter except that the availability
during the First 12-Month Disbursement Period may be restricted.
Although the principal limit of a fixed interest rate HECM will
continue to increase at the rate provided by the Commissioner, no
further funds may be made available for the borrower to draw against
after closing. The principal limit may decrease because of insurance or
condemnation proceeds applied to the outstanding loan balance under
Sec. 206.209(b).
Principal residence means the dwelling where the borrower and, if
applicable, Non-Borrowing Spouse, maintain their permanent place of
abode, and typically spend the majority of the calendar year. A person
may have only one principal residence at any one time. The property
shall be considered to be the principal residence of any borrower who
is temporarily in a health care institution provided the borrower's
residency in a health care institution does not exceed twelve
consecutive months. The property shall be considered to be the
principal residence of any Non-Borrowing Spouse, who is temporarily in
a health care institution, as long as the property is the principal
residence of his or her borrower spouse, who physically resides in the
property. During a Deferral Period, the property shall continue to be
considered to be the principal residence of any Non-Borrowing Spouse,
who is temporarily in a health care institution, provided he or she
qualified as an Eligible Non-Borrowing Spouse and physically occupied
the property immediately prior to entering the health care institution
and his or her residency in a health care institution does not exceed
twelve consecutive months.
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Property charges means, unless otherwise specified, obligations of
the borrower that include property taxes, hazard insurance premiums,
any applicable flood insurance premiums, ground rents, condominium
fees, planned unit development fees, homeowners association fees, any
other special assessments that may be levied by municipalities or state
law, and utilities.
Qualifying Attributes means the requirements which must be met by a
Non-Borrowing Spouse in order to be an Eligible Non-Borrowing Spouse.
Sec. 206.7 Effect of amendments.
The regulations in this part may be amended by the Commissioner at
any time and from time to time, in whole or in part, but amendments to
subparts B and C of this part will not adversely affect the interests
of a mortgagee on any mortgage to be insured for which either the
Direct Endorsement mortgagee or Lender Insurance mortgagee has approved
the borrower and all terms and conditions of the mortgage, or the
Commissioner has made a commitment to insure. Such amendments will not
adversely affect the interests of a borrower in the case of a default
by a mortgagee where the Commissioner makes payments to the borrower.
Sec. 206.8 Preemption.
(a) Lien priority. The full amount secured by the mortgage shall
have the same priority over any other liens on the property as if the
full amount had been disbursed on the date the initial disbursement was
made, regardless of the actual date of any disbursement. The amount
secured by the mortgage shall include all direct payments by the
mortgagee to the borrower and all other loan advances permitted by the
mortgage for any purpose, including loan advances for interest,
property charges, mortgage insurance premiums, required repairs,
servicing charges, counseling charges and costs of collection,
regardless of when the payments or loan advances were made. The
priority provided by this section shall apply notwithstanding any State
constitution, law or regulation.
(b) Second mortgage. If the Commissioner holds a second mortgage,
it shall have a priority subordinate only to the first mortgage (and
any senior liens permitted by paragraph (a) of this section).
Subpart B--Eligibility; Endorsement
Sec. 206.9 Eligible mortgagees.
(a) Statutory requirements. See sections (b)(2) and 255(d)(1) of
the NHA.
(b) HUD approved mortgagees. Any mortgagee authorized under
paragraph (a) of this section and approved under part 202 of this
chapter, except an investing mortgagee approved under Sec. 202.9 of
this chapter, is eligible to apply for insurance. A mortgagee approved
under Sec. Sec. 202.6, 202.7, 202.9 or 202.10 of this chapter may
purchase, hold and sell mortgages insured under this part without
additional approval.
Sec. 206.13 Disclosure of available HECM program options.
At the time of initial contact, the mortgagee shall inform the
prospective HECM borrower, in a manner acceptable to the Commissioner,
of all products, features and options of the HECM program that FHA will
insure under this part, including: Fixed interest rate mortgages with
the Single Lump Sum payment option; adjustable interest rate mortgages
with tenure, term, and line of credit disbursement options, or a
combination of these; any other FHA insurable disbursement options; and
initial mortgage insurance premium options, and how those affect the
availability of other mortgage and disbursement options.
Sec. 206.15 Insurance.
Mortgages originated under this part must be endorsed through the
Direct Endorsement program under Sec. 203.5 of this chapter, except
that any references to Sec. 203.255 in Sec. 203.5 shall mean Sec.
206.115. The mortgagee shall submit the information as described in
Sec. 206.115(b) for the Direct Endorsement program; the certificate of
housing counseling as described in Sec. 206.41; a copy of the title
insurance commitment satisfactory to the Commissioner (or other
acceptable title evidence if the Commissioner has determined not to
require title insurance under Sec. 206.45(a)); the mortgagee's
election of either the assignment or shared premium option under Sec.
206.107; and any other documentation required by the Commissioner. If
the mortgagee has complied with the requirements of Sec. Sec. 203.3
and 203.5, except that any reference to Sec. 203.255 in these sections
shall mean Sec. 206.115 for purposes of this section, and other
requirements of this part, and the mortgage is determined to be
eligible, the Commissioner will endorse the mortgage for insurance by
issuing a Mortgage Insurance Certificate.
Eligible Mortgages
Sec. 206.17 Eligible Mortgages: General.
(a) [Reserved]
(b) Interest rate and payment options. A HECM shall provide for
either fixed or adjustable interest rates in accordance with Sec.
206.21.
(1) Fixed interest rate mortgages shall use the Single Lump Sum
payment option (Sec. 206.19(e)).
(2) Adjustable interest rate mortgages shall initially provide for
the term (Sec. 206.19(a)), the tenure (Sec. 206.19(b)), the line of
credit (Sec. 206.19(c)), or a modified term or modified tenure (Sec.
206.19(d)) payment option, subject to a later change in accordance with
Sec. 206.26.
(c) Shared appreciation. A mortgage may provide for shared
appreciation in accordance with Sec. 206.23.
Sec. 206.19 Payment options.
(a) Term payment option. Under the term payment option, equal
monthly payments are made by the mortgagee to the borrower for a fixed
term of months chosen by the borrower in accordance with this section
and Sec. 206.25(e), unless the mortgage is prepaid in full or becomes
due and payable earlier under Sec. 206.27(c).
(b) Tenure payment option. Under the tenure payment option, equal
monthly payments are made by the mortgagee to the borrower in
accordance with this section and with Sec. 206.25(f) unless the
mortgage is prepaid in full or becomes due and payable under Sec.
206.27(c).
(c) Line of credit payment option. Under the line of credit payment
option, payments are made by the mortgagee to the borrower at times and
in amounts determined by the borrower as long as the amounts do not
exceed the payment amounts permitted by Sec. 206.25.
(d) Modified term or modified tenure payment option. Under the
modified term or modified tenure payment options, equal monthly
payments are made by the mortgagee and the mortgagee shall set aside a
portion of the principal limit to be drawn down as a line of credit as
long as the amounts do not exceed the payment amounts permitted by
Sec. 206.25.
(e) Single Lump Sum payment option. Under the Single Lump Sum
payment option, the Borrower's Advance will be made by the mortgagee to
the borrower in an amount that does not exceed the payment amount
permitted in Sec. 206.25. The Single Lump Sum payment option will be
available only for fixed interest rate HECMs. Set asides requiring
disbursements after close may be offered in accordance with paragraphs
(f)(1) through (3) of this section.
(f) Principal limit set asides. (1) Repair Set Aside. When repairs
required by Sec. 206.47 will be completed after closing, the mortgagee
shall set aside a portion of the principal limit equal to 150 percent
of the Commissioner's
[[Page 31799]]
estimated cost of repairs, plus the repair administration fee.
(2) Property Charge Set Aside. (i) Life Expectancy Set Aside
(LESA). When required by Sec. 206.205(b)(1) or selected by the
borrower under Sec. 206.205(b)(2)(ii), the mortgagee shall set aside a
portion of the principal limit, consistent with the requirements of
Sec. 206.205, for payment of the following property charges: Property
taxes including special assessments levied by municipalities or state
law, and flood and hazard insurance premiums.
(ii) Borrower elects to have mortgagee pay property charges. (A)
First year property charges. When required by Sec. 206.205(d), the
mortgagee shall set aside a portion of the principal limit for payment
of the following property charges that must be paid during the First
12-Month Disbursement Period: Property taxes including special
assessments levied by municipalities or state law, and flood and hazard
insurance premiums. The mortgagee's estimate of withholding amount
shall be based on the best information available as to probable
payments which will be required to be made for property charges in the
coming year. The mortgagee may not require the withholding of amounts
in excess of the current estimated total annual requirement, unless
expressly requested by the borrower. Each month's withholding for
property charges shall equal one-twelfth of the annual amounts as
reasonably estimated by the mortgagee.
(B) Property charges for subsequent years. For subsequent year
property charges, the mortgagee's estimate of withholding amount shall
be based on the best information available as to probable payments
which will be required to be made for property charges in the coming
year. If actual disbursements during the preceding year are used as the
basis, the resulting estimate may deviate from those disbursements by
as much as ten percent. The mortgagee may not require the withholding
of amounts in excess of the current estimated total annual requirement,
unless expressly requested by the borrower. Each month's withholding
for property charges shall equal one-twelfth of the annual amounts as
reasonably estimated by the mortgagee.
(3) Servicing Fee Set Aside. When servicing charges will be made as
permitted by Sec. 206.207(b), the mortgagee shall set aside a portion
of the principal limit sufficient to cover charges through a period
equal to the payment term which would be used to calculate tenure
payments under Sec. 206.25(f).
(g) Interest accrual and repayment. The interest charged on the
outstanding loan balance shall begin to accrue from the funding date
and shall be added to the outstanding loan balance monthly as provided
in the mortgage. Under all payment options, repayment of the
outstanding loan balance is deferred until the mortgage becomes due and
payable under Sec. 206.27(c).
(h) Disbursement limits. (1) For all HECMs, no disbursements shall
be made under any of the payment options, notwithstanding anything to
the contrary in this section or in Sec. 206.25, in an amount which
shall cause the outstanding loan balance after the payment to exceed
any maximum mortgage amount stated in the security instruments or to
otherwise exceed the amount secured by a first lien.
(2) For adjustable interest rate HECMs: (i) No disbursements shall
be made under any of the payment options during the First 12-Month
Disbursement Period in excess of the Initial Disbursement Limit, unless
otherwise permitted by the Commissioner.
(ii) If the borrower makes a partial prepayment of the outstanding
loan balance during the First 12-Month Disbursement Period, the
mortgagee shall apply the funds from the partial prepayment in
accordance with the Note.
(3) For fixed interest rate HECMs, if the borrower makes a partial
prepayment of the outstanding loan balance any time after loan closing
and before the contract of insurance is terminated, the mortgagee shall
apply the funds from the partial prepayment in accordance with the
Note. Any increase in the available principal limit by the amount
applied towards the outstanding loan balance shall not be available for
the borrower to draw against.
Sec. 206.21 Interest rate.
(a) Fixed interest rate. A fixed interest rate is agreed upon by
the borrower and mortgagee.
(b) Adjustable interest rate. An initial expected average mortgage
interest rate, which defines the mortgagee's margin, is agreed upon by
the borrower and mortgagee as of the date of loan closing, or as of the
date of rate lock-in, if the expected average mortgage interest rate
was locked-in prior to closing. The interest rate shall be adjusted in
one of two ways depending on the option selected by the borrower, in
accordance with paragraphs (b)(1) and (b)(2) of this section. Whenever
an interest rate is adjusted, the new interest rate applies to the
entire loan balance. The difference between the initial interest rate
and the index figure applicable when the firm commitment is issued
shall equal the margin used to determine interest rate adjustments. If
the expected average mortgage interest rate is locked-in prior to
closing, the difference between the expected rate and the value of the
appropriate index at the time of rate lock-in shall equal the margin
used to determine interest rate adjustments.
(1) Annual adjustable interest rate HECMs. A mortgagee offering an
annual adjustable interest rate shall offer a mortgage with an interest
rate cap structure that limits the periodic interest rate increases and
decreases as follows:
(i) Types of mortgages insurable. The types of adjustable interest
rate mortgages that are insurable are those for which the interest rate
may be adjusted annually by the mortgagee, beginning after one year
from the date of the closing.
(ii) Interest rate index. Changes in the interest rate charged on
an adjustable interest rate mortgage must correspond either to changes
in the one-year LIBOR or to changes in the weekly average yield on U.S.
Treasury securities, adjusted to a constant maturity of one year.
Except as otherwise provided in this section, each change in the
mortgage interest rate must correspond to the upward and downward
change in the index.
(iii) Frequency of interest rate changes. (A) The interest rate
adjustments must occur annually, calculated from the date of the
closing, except that the first adjustment shall be no sooner than 12
months or later than 18 months.
(B) To set the new interest rate, the mortgagee will determine the
change between the initial (i.e., base) index figure and the current
index figure, or will add a specific margin to the current index
figure. The initial index figure shall be the most recent figure
available before the date of mortgage loan origination. The current
index figure shall be the most recent index figure available 30 days
before the date of each interest rate adjustment.
(iv) Magnitude of changes. The adjustable interest rate mortgage
initial contract interest rate shall be agreed upon by the mortgagee
and the borrower. The first adjustment to the contract interest rate
shall take place in accordance with the schedule set forth under
paragraph (b)(1)(iii) of this section. Thereafter, for all annual
adjustable interest rate mortgages, the adjustment shall be made
annually and shall occur on the anniversary date of the first
adjustment, subject to the following conditions and limitations:
[[Page 31800]]
(A) For all annual adjustable interest rate HECMs, no single
adjustment to the interest rate shall result in a change in either
direction of more than one percentage point from the interest rate in
effect for the period immediately preceding that adjustment. Index
changes in excess of one percentage point may not be carried over for
inclusion in an adjustment for a subsequent year. Adjustments in the
effective rate of interest over the entire term of the mortgage may not
result in a change in either direction of more than five percentage
points from the initial contract interest rate.
(B) At each adjustment date for annual adjustable interest rate
HECMs, changes in the index interest rate, whether increases or
decreases, must be translated into the adjusted mortgage interest rate,
except that the mortgage may provide for minimum interest rate change
limitations and for minimum increments of interest rate changes.
(2) Monthly adjustable interest rate HECMs. (i) If a mortgage
meeting the requirements of paragraph (b)(1) of this section is
offered, the mortgagee may also offer a mortgage which provides for
monthly adjustments to the interest rate such that changes in the
interest rate charged on an adjustable interest rate mortgage
correspond either to changes in the one-year LIBOR or to changes in the
weekly average yield on U.S. Treasury securities, adjusted to a
constant maturity of one year (except as otherwise provided in this
section, each change in the mortgage interest rate must correspond to
the upward and downward change in the index), or to the one-month CMT
index or one-month LIBOR index, and which sets a maximum interest rate
that can be charged.
(ii) Adjustments in the effective rate of interest over the entire
term of the mortgage may not result in a change in either direction of
more than five percentage points from the initial contract interest
rate.
(c) Pre-loan disclosure. (1) At the time the mortgagee provides the
borrower with a loan application, a mortgagee shall provide a borrower
with a written explanation of all adjustable interest rate features of
a mortgage. The explanation must include the following items:
(i) The circumstances under which the rate may increase;
(ii) Any limitations on the increase; and
(iii) The effect of an increase.
(2) Compliance with pre-loan disclosure provisions of 12 CFR part
1026 (Truth in Lending) shall constitute full compliance with paragraph
(c)(1) of this section.
(d) Post-loan disclosure. At least 25 days before any adjustment to
the interest rate may occur, the mortgagee must advise the borrower of
the following:
(1) The current index amount;
(2) The date of publication of the index; and
(3) The new interest rate.
Sec. 206.23 Shared appreciation.
(a) Additional interest based on net appreciated value. Any
mortgage for which the mortgagee has chosen the shared premium option
(Sec. 206.107) may provide for shared appreciation. At the time the
mortgage becomes due and payable or is paid in full, whichever occurs
first, the borrower shall pay an additional amount of interest equal to
a percentage of any net appreciated value of the property during the
life of the mortgage. The percentage of net appreciated value to be
paid to the mortgagee, referred to as the appreciation margin, shall be
no more than twenty-five percent, subject to an effective interest rate
cap of no more than twenty percent.
(b) Computation of mortgagee share. The mortgagee's share of net
appreciated value is computed as follows:
(1) If the outstanding loan balance at the time the mortgagee's
share of net appreciated value becomes payable is less than the
appraised value of the property at the time of loan origination, the
mortgagee's share is calculated by subtracting the appraised value at
the time of loan origination from the adjusted sales proceeds (i.e.,
sales proceeds less transfer costs and capital improvement costs
incurred by the borrower, but excluding any liens) and multiplying by
the appreciation margin.
(2) If the outstanding loan balance is greater than the appraised
value at the time of loan origination but less than the adjusted
proceeds, the mortgagee's share is calculated by subtracting the
outstanding loan balance from the adjusted sales proceeds and
multiplying by the appreciation margin.
(3) If the outstanding loan balance is greater than the adjusted
sales proceeds, the net appreciated value is zero.
(4) If there has been no sale or transfer involving satisfaction of
the mortgage at the time the mortgagee's share of net appreciated value
becomes payable, sales proceeds for purposes of this section shall be
the appraised value as determined in accordance with procedures
approved by the Commissioner.
(c) Effective interest rate. To determine the effective interest
rate, the amount of interest which accrued in the twelve months prior
to the sale of the property or the prepayment is added to the
mortgagee's share of the net appreciated value. The sum of the
mortgagee's share of the net appreciated value and the interest, when
divided by the sum of the outstanding loan balance at the beginning of
the twelve month period prior to sale or prepayment plus the payments
to or on behalf of the borrower (but not including interest) in the
twelve months prior to the sale or prepayment, shall not exceed an
effective interest rate of twenty percent.
(d) Disclosure. At the time the mortgagee provides the borrower
with a loan application for a mortgage with shared appreciation, the
mortgagee shall disclose to the borrower the principal limit, payments
and interest rate which are applicable to a comparable mortgage offered
by the mortgagee without shared appreciation.
Sec. 206.25 Calculation of disbursements.
(a) Initial disbursements-- (1) Initial Disbursement Limit--
Adjustable Interest Rate HECMs: for term, tenure, line of credit,
modified term, and modified tenure payment options:
(i) The mortgagee is responsible for determining the maximum
Initial Disbursement Limit.
(ii) The maximum disbursement allowed at closing and during the
First 12-Month Disbursement Period is the lesser of:
(A) The greater of an amount established by the Commissioner
through notice which shall not be less than 50 percent of the principal
limit; or the sum of Mandatory Obligations and a percentage of the
principal limit established by the Commissioner through notice which
shall not be less than 10 percent; or
(B) The principal limit less the sum of the funds in the LESA for
payment beyond the First 12-Month Disbursement Period and the Servicing
Fee Set Aside.
(iii) The maximum amount in the First 12-Month Disbursement Period
or at any point in time may not exceed the principal limit.
(iv) Mortgagees shall monitor and track all disbursements that
occur at loan closing and during the First 12-Month Disbursement
Period; the total amount of disbursements shall not exceed the maximum
Initial Disbursement Limit, unless otherwise permitted by Sec.
206.19(h).
(v) The borrower shall notify the mortgagee at loan closing of the
exact amount of the additional percentage of
[[Page 31801]]
the principal limit beyond Mandatory Obligations that the borrower will
draw or that will remain available to be drawn during the First 12-
Month Disbursement Period. The borrower may not increase or decrease
this election after closing.
(2) Borrower's Advance--Fixed Interest Rate HECMs: For the Single
Lump Sum payment option:
(i) The mortgagee is responsible for determining the maximum
Borrower's Advance.
(ii) The disbursement shall only be taken at the time of closing
and the maximum disbursement shall not exceed the lesser of:
(A) The greater of an amount established by the Commissioner
through notice which shall not be less than 50 percent of the principal
limit; or the sum of Mandatory Obligations and a percentage of the
principal limit established by the Commissioner through notice which
shall not be less than 10 percent; or
(B) The principal limit less the sum of the funds in the LESA for
payment beyond the First 12-Month Disbursement Period and the Servicing
Fee Set Aside.
(iii) The maximum amount in the First 12-Month Disbursement Period
or at any point in time may not exceed the principal limit.
(iv) The borrower shall notify the mortgagee at loan closing of the
exact amount of the additional percentage of the principal limit beyond
Mandatory Obligations that the borrower will draw. The borrower may not
increase or decrease this election after closing.
(b) Mandatory Obligations for traditional and refinance
transactions include:
(1) Initial MIP under Sec. 206.105(a);
(2) Loan origination fee;
(3) HECM counseling fee;
(4) Reasonable and customary amounts, but not more than the amount
actually paid by the mortgagee for any of the following items:
(i) Recording fees and recording taxes, or other charges incident
to the recordation of the insured mortgage;
(ii) Credit report;
(iii) Survey, if required by the mortgagee or the borrower;
(iv) Title examination;
(v) Mortgagee's title insurance;
(vi) Fees paid to an appraiser for the initial appraisal of the
property; and
(vii) Flood certifications.
(5) Repair Set Asides;
(6) Repair administration fee;
(7) Delinquent Federal debt;
(8) Amounts required to discharge any existing liens on the
property;
(9) Customary fees and charges for warranties, inspections,
surveys, and engineer certifications;
(10) Funds to pay contractors who performed repairs as a condition
of closing, in accordance with standard FHA requirements for repairs
required by the appraiser;
(11) Property tax and flood and hazard insurance payments required
by the mortgagee to be paid at loan closing;
(12) Property charges not included in paragraph (b)(11) of this
section and which are scheduled for payment during the First 12-Month
Disbursement Period, as follows:
(i) Adjustable Interest Rate HECMs. (A) The total amount of
property charge payments scheduled for payment from the borrower
authorized option under Sec. 206.205(d) during the First 12-Month
Disbursement Period;
(B) The total amount of semi-annual disbursements scheduled to be
made during the First 12-Month Disbursement Period to the borrower from
a Partially-Funded LESA; or
(C) The total amount of property charges scheduled for payment
during the First 12-Month Disbursement Period from a Fully-Funded LESA.
(D) Mortgagees shall use the actual insurance premium and actual
tax amount; if a new tax bill has not been issued, the mortgagee must
use the prior year's amount multiplied by 1.04 or an amount set by the
Commissioner through notice.
(ii) Fixed Interest Rate HECMs. (A) The total amount of property
charges scheduled for payment during the First 12-Month Disbursement
Period from a Fully-Funded LESA.
(B) Mortgagees shall use the actual insurance premium and actual
tax amount; if a new tax bill has not been issued, the mortgagee must
use the prior year's amount multiplied by 1.04 or an amount set by the
Commissioner through notice; and
(13) Other charges as authorized by the Commissioner through
notice.
(c) Mandatory Obligations for HECM for Purchase transactions
include:
(1) Initial MIP under Sec. 206.105(a);
(2) Loan origination fee;
(3) HECM counseling fee:
(4) Reasonable and customary amounts, but not more than the amount
actually paid by the mortgagee for any of the following items:
(i) Recording fees and recording taxes, or other charges incident
to the recordation of the insured mortgage;
(ii) Credit report;
(iii) Survey, if required by the mortgagee or the borrower;
(iv) Title examination;
(v) Mortgagee's title insurance;
(vi) Fees paid to an appraiser for the initial appraisal of the
property; and
(vii) Flood certifications.
(5) Delinquent Federal debt;
(6) Fees and charges for real estate purchase contracts,
warranties, inspections, surveys, and engineer certifications;
(7) The amount of the principal that is advanced towards the
purchase price of the subject property;
(8) Property tax and flood and hazard insurance payments required
by the mortgagee to be paid at loan closing;
(9) Property charges not included in paragraph (c)(8) of this
section and which are scheduled for payment during the First 12-Month
Disbursement Period, as follows:
(i) Adjustable Interest Rate HECMs. (A) The total amount of
property charge payments scheduled for payment from the borrower
authorized option under Sec. 206.205(d) during the First 12-Month
Disbursement Period;
(B) The total amount of semi-annual disbursements scheduled to be
made during the First 12-Month Disbursement Period to the borrower from
a Partially-Funded LESA; or
(C) The total amount of property charges scheduled for payment
during the First 12-Month Disbursement Period from a Fully-Funded LESA.
(D) Mortgagees shall use the actual insurance premium and actual
tax amount; if a new tax bill has not been issued, the mortgagee must
use the prior year's amount multiplied by 1.04 or an amount set by the
Commissioner through notice.
(ii) Fixed Interest Rate HECMs. (A) The total amount of property
charges scheduled for payment during the First 12-Month Disbursement
Period from a Fully-Funded LESA.
(B) Mortgagees shall use the actual insurance premium and actual
tax amount; if a new tax bill has not been issued, the mortgagee must
use the prior year's amount multiplied by 1.04 or an amount set by the
Commissioner through notice; and
(10) Other charges as authorized by the Commissioner through
notice.
(d) Timing of disbursements. Mortgage proceeds may not be disbursed
until after the expiration of the 3-day rescission period under 12 CFR
part 1026, if applicable.
(e) Monthly disbursements--term option. (1) Using factors provided
by the Commissioner, the mortgagee shall calculate the monthly
disbursement so that the sum of paragraphs (e)(1)(i) or (e)(1)(ii) of
this section added to paragraphs (e)(1)(iii), (e)(1)(iv), and (e)(1)(v)
of this section shall be equal to
[[Page 31802]]
the principal limit at the end of the payment term.
(i) An initial disbursement under paragraph (a) of this section
plus any initial servicing charge set aside under Sec. 206.19(f)(3);
or
(ii) The outstanding loan balance at the time of a change in
payment option in accordance with Sec. 206.26, plus any remaining
servicing charge set aside under Sec. 206.19(f)(3); and
(iii) The amount of the principal limit set aside in accordance
with Sec. 206.19(f) which is not included in amount set aside in
paragraphs (e)(1)(i) or (e)(1)(ii) of this section;
(iv) All MIP or monthly charges due to the Commissioner in lieu of
mortgage insurance premiums due through the payment term; and
(v) All interest through the remainder of the payment term. The
expected average mortgage interest rate shall be used for this purpose.
(2) The mortgagee shall make all monthly disbursements through the
payment term even if the outstanding loan balance exceeds the principal
limit because the actual average mortgage interest rate exceeds the
expected average mortgage interest rate unless the HECM becomes due and
payable under Sec. 206.27(c). In the event of a deferral of due and
payable status in accordance with Sec. 206.27(c)(3), disbursements
shall cease immediately upon the death of the borrower and no further
disbursements are permissible.
(3) Mortgagees shall ensure that term monthly disbursements made to
the borrower during the First 12-Month Disbursement Period do not
exceed the Initial Disbursement Limit. If the sum of disbursements made
during the First 12-Month Disbursement Period would exceed the Initial
Disbursement Limit for that time period, the mortgagee shall decrease
the monthly disbursements during the First 12-Month Disbursement Period
to conform with the Initial Disbursement Limit; upon conclusion of the
First 12-Month Disbursement Period, the borrower may request a payment
plan recalculation.
(4) If the borrower makes a partial prepayment of the outstanding
loan balance during the First 12-Month Disbursement Period, the
mortgagee shall apply the funds from the partial prepayment in
accordance with the Note.
(5) If the mortgagee receives repayment from insurance or
condemnation proceeds after restoration or repair of the damaged
property, the available principal limit and outstanding loan balance
shall be reduced by the amount of such payments.
(f) Monthly disbursements--tenure option. (1) Monthly disbursements
under the tenure payment option shall be calculated as if the number of
months in the payment term equals 100 minus the lesser of the age of
the youngest borrower or 95, multiplied by 12, but payments shall
continue until the mortgage becomes due and payable under Sec.
206.27(c), except that in the event that payments would exceed any
maximum mortgage amount stated in the security instrument or would
otherwise exceed the amount secured by the first lien, in accordance
with Sec. 206.19(h) payments will cease immediately; payments may be
reinstated only in the event a new Note and mortgage are executed in
accordance with Sec. 206.27(b)(10); and in the event of a deferral of
due and payable status in accordance with Sec. 206.27(c)(3) payments
will cease immediately upon the death of the borrower.
(2) Mortgagees shall ensure that tenure monthly disbursements made
to the borrower during the First 12-Month Disbursement Period do not
exceed the Initial Disbursement Limit. If the sum of disbursements made
during the First 12-Month Disbursement Period would exceed the Initial
Disbursement Limit for that time period, the mortgagee shall decrease
the monthly disbursements during the First 12-Month Disbursement Period
to conform with the maximum Initial Disbursement Limit; upon conclusion
of the First 12-Month Disbursement Period, the borrower may request a
payment plan recalculation.
(3) If the borrower makes a partial prepayment of the outstanding
loan balance during the First 12-Month Disbursement Period, the
mortgagee shall apply the funds from the partial prepayment in
accordance with the Note.
(4) If the mortgagee receives repayment from insurance or
condemnation proceeds after restoration or repair of the damaged
property, the available principal limit and outstanding loan balance
shall be reduced by the amount of such payments.
(g) Line of credit separately or with monthly disbursements. If the
borrower has a line of credit, separately or combined with the term or
tenure payment option, the principal limit is divided into an amount
set aside for servicing charges under Sec. 206.19(f)(3), an amount
equal to the line of credit (including any portion of the principal
limit set aside for repairs or property charges under Sec.
206.19(f)(1) or (2)), and the remaining amount of the principal limit
(if any). The line of credit amount increases at the same rate as the
total principal limit increases under Sec. 206.3. The sum of
disbursements made during the First 12-Month Disbursement Period shall
not exceed the Initial Disbursement Limit. If a requested disbursement
would exceed the Initial Disbursement Limit, the mortgagee may make a
partial disbursement to the borrower for the amount that will not
exceed the limit. Upon the conclusion of the First 12-Month
Disbursement Period, the borrower may request subsequent disbursements
up to the available principal limit.
(h) Single Lump Sum payment option. (1) Under the Single Lump Sum
payment option, the Borrower's Advance shall be made by the mortgagee
to the borrower in an amount that does not exceed the maximum allowable
Borrower's Advance under paragraph (a)(2) of this section.
(2) If the borrower makes a partial prepayment of the outstanding
loan balance any time after loan closing and before the contract of
insurance is terminated, the mortgagee shall apply the funds from the
partial prepayment in accordance with the Note.
(i) Payment of MIP and interest. At the end of each month,
including the first month, interest accrued during that month shall be
added to the outstanding loan balance. Where the first month is a
partial month, a prorated amount of interest shall be added. Monthly
MIP, which will accrue from the closing date, shall be added to the
outstanding loan balance beginning with the first day of the second
month after closing when paid to the Commissioner.
(j) Mortgagee late charge. The mortgagee shall pay a late charge to
the borrower for any late disbursement. If the mortgagee does not mail
or electronically transfer a scheduled monthly disbursement to the
borrower on the first business day of the month or make a line of
credit disbursement within 5 business days of the date the mortgagee
received the request, the late charge shall be 10 percent of the entire
amount that should have been paid to the borrower for that month or as
a result of that request. In no event shall the total late charge
exceed five hundred dollars. For each additional day that the borrower
does not receive payment, the mortgagee shall pay interest at the
mortgage interest rate on the late payment. Any late charge and
interest shall be paid from the mortgagee's funds and shall not be
added to the outstanding loan balance.
(k) No minimum payments. A mortgagee shall not require, as a
condition of providing a loan secured by a mortgage insured under this
part, that
[[Page 31803]]
the monthly payments under the term or tenure payment option or draws
under the line of credit payment option exceed a minimum amount
established by the mortgagee.
Sec. 206.26 Change in payment option.
(a) General. The payment option may be changed as provided in this
section.
(b) Borrower request for payment plan change--(1) Adjustable
Interest Rate HECMs. (i) During the First 12-Month Disbursement Period,
no payment plan change shall cause disbursements to exceed the Initial
Disbursement Limit.
(ii) After the First 12-Month Disbursement Period, as long as the
outstanding loan balance is less than the principal limit, a borrower
may request a recalculation of the current payment option, a change
from any payment option to another available payment option or a
disbursement of any amount (not to exceed the difference between the
principal limit and the sum of the outstanding loan balance and any set
asides for repairs, servicing charges or property charges). A mortgage
will continue to bear interest at an adjustable interest rate as agreed
between the mortgagee and the borrower at loan origination. The
mortgagee shall recalculate any future monthly payments in accordance
with Sec. 206.25.
(iii) Fee for change in payment. The mortgagee may charge a fee,
not to exceed an amount determined by the Commissioner, whenever there
is a payment plan change or whenever payments are recalculated.
(iv) Limitations. The Commissioner may, through notice, establish
limitations on the frequency of payment plan changes, a minimum notice
period that a borrower must provide in order to make a request under
paragraph (b)(1)(ii) of this section, or other limitations on payment
plan change requests by the borrower.
(2) Fixed Interest Rate HECMs. Borrowers may not request a change
in payment option.
(c) Change due to initial repairs. When initial repairs after
closing under Sec. 206.47 are required using a Repair Set Aside,
mortgagees shall comply with the following:
(1) Adjustable Interest Rate HECMs. (i) If repairs after closing
under Sec. 206.47 are completed without using all of the funds set
aside for repairs, the mortgagee shall transfer the remaining amount to
a line of credit, modified term or modified tenure payment option and
inform the borrower of the sum available to be drawn.
(ii) If repairs after closing under Sec. 206.47 cannot be
completed with the funds set aside for repairs, the mortgagee may
advance additional funds to complete repairs from an existing line of
credit. If a line of credit is not sufficient to make the advance or if
no line of credit exists, future monthly disbursements shall be
recalculated for use as a line of credit in accordance with Sec.
206.25.
(iii) If repairs are not completed when required by the mortgage,
the mortgagee shall stop monthly payments and the mortgage shall
convert to the line of credit payment option. Until the repairs are
completed, the mortgagee shall make no line of credit disbursements
except as needed to pay for repairs required by the mortgage.
(2) Fixed Interest Rate HECMs. No unused set aside funds shall be
made available to the borrower, except that a borrower may be
reimbursed for the cost of repair materials (not including labor), in
accordance with Sec. 206.47, under conditions established by the
Commissioner.
Sec. 206.27 Mortgage provisions.
(a) Form. The mortgage shall be in a form meeting the requirements
of the Commissioner.
(b) Provisions. The terms of the mortgage shall contain an
explanation of how payments will be made to the borrower, how interest
will be charged and when the mortgage will be due and payable. The
mortgage shall include a provision deferring the due and payable status
that occurs because of the death of the last surviving borrower for an
Eligible Non-Borrowing Spouse. It shall also contain provisions
designed to ensure compliance with this part and provisions on the
following additional matters:
(1) Disbursements by the mortgagee under the term or tenure payment
options shall be mailed to the borrower or electronically transferred
to an account of the borrower on the first business day of each month
beginning with the first month after closing. Disbursements under the
line of credit payment option shall be mailed to the borrower or
electronically transferred to an account of the borrower within five
business days after the mortgagee has received a written request for
disbursement by the borrower. In accordance with Sec. 206.55, in no
event may disbursements continue during a Deferral Period.
(2) The borrower shall insure all improvements on the property that
serves as collateral for the HECM whether now in existence or
subsequently erected, against any hazards, casualties, and
contingencies, including but not limited to fire and flood, for which
the mortgagee requires insurance. Such insurance shall be maintained in
the amount and for the period of time that is necessary to protect the
mortgagee's investment. Whether or not the mortgagee imposes a flood
insurance requirement, the borrower shall at a minimum insure all
improvements on the property, whether now in existence or subsequently
erected, against loss by floods to the extent required by the
Commissioner. If the mortgagee imposes insurance requirements, all
insurance shall be carried with companies acceptable to the mortgagee,
and the insurance policies and any renewals shall be held by the
mortgagee and shall include loss payable clauses in favor of and in a
form acceptable to the mortgagee.
(3) The borrower shall not participate in a real estate tax
deferral program or permit any liens to be recorded against the
property, unless such liens are subordinate to the insured mortgage
and, if applicable, any second mortgage held by the Commissioner.
(4) A mortgage may be prepaid in full or in part in accordance with
Sec. 206.209.
(5) The borrower must keep the property in good repair.
(6) The borrower must provide for the payment of property charges
in accordance with Sec. 206.205.
(7) The payment of monthly MIP may be added to the outstanding
principal balance.
(8) The borrower shall have no personal liability for payment of
the outstanding loan balance. The mortgagee shall enforce the debt only
through sale of the property. The mortgagee shall not be permitted to
obtain a deficiency judgment against the borrower if the mortgage is
foreclosed.
(9) If the mortgage is assigned to the Commissioner under Sec.
206.121(b), the borrower shall not be liable for any difference between
the insurance benefits paid to the mortgagee and the outstanding loan
balance including accrued interest, owed by the borrower at the time of
the assignment.
(10) If State law limits the first lien status of the mortgage as
originally executed and recorded to a maximum amount of debt or a
maximum number of years, the borrower shall agree to execute any
additional documents required by the mortgagee and approved by the
Commissioner to extend the first lien status to an additional amount of
debt and an additional number of years and to cause any other liens to
be removed or subordinated.
(c) Date the mortgage comes due and payable. (1) The mortgage shall
state that the outstanding loan balance will be due and payable in full
if a borrower dies and the property is not the
[[Page 31804]]
principal residence of at least one surviving borrower, except that the
due and payable status shall be deferred in accordance with paragraph
(c)(3) of this section if the requirements of the Deferral Period are
met; or if a borrower conveys all of his or her title in the property
and no other borrower retains title to the property. For purposes of
the preceding sentence, a borrower retains title in the property if the
borrower continues to hold title to any part of the property in fee
simple, as a leasehold interest as set forth in Sec. 206.45(a), or as
a life estate.
(2) The mortgage shall state that the outstanding loan balance
shall be due and payable in full, upon approval of the Commissioner, if
any of the following occur:
(i) The property ceases to be the principal residence of a borrower
for reasons other than death and the property is not the principal
residence of at least one other borrower;
(ii) For a period of longer than 12 consecutive months, a borrower
fails to occupy the property because of physical or mental illness and
the property is not the principal residence of at least one other
borrower;
(iii) The borrower does not provide for the payment of property
charges in accordance with Sec. 206.205; or
(iv) An obligation of the borrower under the mortgage is not
performed.
(3) Deferral of due and payable status. The mortgage documents
shall contain a provision deferring due and payable status, called the
Deferral Period, for an Eligible Non-Borrowing Spouse until the death
of the last Eligible Non-Borrowing Spouse or the requirements of the
Deferral Period in Sec. 206.55 cease to be met and have not been cured
as provided for in Sec. 206.57.
(d) Second mortgage to Commissioner. Unless otherwise provided by
the Commissioner, a second mortgage to secure any payments by the
Commissioner as provided in Sec. 206.121(c) must be given to the
Commissioner before a Mortgage Insurance Certificate is issued for the
mortgage. If the Commissioner does not require a second mortgage to be
given to the Commissioner prior to the issuance of a Mortgage Insurance
Certificate, the Commissioner may require a second mortgage to be given
to the Commissioner at a later day in order to secure payments by the
Commissioner as provided in Sec. 206.121(c).
Sec. 206.31 Allowable charges and fees.
(a) Fees at closing. The mortgagee may collect, either in cash at
the time of closing or through an initial payment under the mortgage,
the following charges and fees incurred in connection with the
origination, processing and closing of the mortgage loan:
(1) Loan Origination Fee. Mortgagees may charge a loan origination
fee and may use such fee to pay for services performed by a sponsored
third-party originator. The loan origination fee limit shall be the
greater of $2,500 or two percent of the maximum claim amount of
$200,000, plus one percent of any portion of the maximum claim amount
that is greater than $200,000. Mortgagees may accept a lower
origination fee. Mortgagees may pay fees for services performed by a
sponsored third-party originator and these fees may be included as part
of the loan origination fee. The total amount of the loan origination
fee may not exceed $6,000, except that the Commissioner may through
notice adjust the maximum limit in accordance with the annual
percentage increase in the Consumer Price Index of the Bureau of Labor
Statistics of the Department of Labor in increments of $500 only when
the percentage increase in such index, when applied to the maximum
origination fee, produces dollar increases that exceed $500. The loan
origination fee may be fully financed with the mortgage.
(2) Reasonable and customary amounts. Reasonable and customary
amounts, but not more than the amount actually paid by the mortgagee,
for any of the following items:
(i) Recording fees and recording taxes, or other charges incident
to the recordation of the insured mortgage;
(ii) Credit report;
(iii) Survey, if required by the mortgagee or the borrower;
(iv) Title examination;
(v) Mortgagee's title insurance;
(vi) Fees paid to an appraiser for the initial appraisal of the
property;
(vii) Flood certifications; and
(viii) Such other charges as may be authorized by the Commissioner.
(b) Repair administration fee. If the property requires repairs
after closing in order to meet FHA requirements, the mortgagee may
collect a fee for each occurrence as compensation for administrative
duties relating to repair work pursuant to Sec. 206.47(c) and (d), not
to exceed the greater of one and one-half percent of the amount
advanced for the repairs or fifty dollars. The mortgagee shall collect
the repair fee by adding it to the outstanding loan balance.
Sec. 206.32 No outstanding unpaid obligations.
In order for a mortgage to be eligible under this part, a borrower
must establish to the satisfaction of the mortgagee that after the
initial payment of loan proceeds under Sec. 206.25(a), there will be
no outstanding or unpaid obligations incurred by the borrower in
connection with the mortgage transaction, except for mortgage servicing
charges permitted under Sec. 206.207(b) and any future Repair Set
Aside established pursuant to Sec. 206.19(f)(1)(ii); and the initial
disbursement will not be used for any payment to or on behalf of an
estate planning service firm.
Eligible Borrowers
Sec. 206.33 Age of borrower.
The youngest borrower shall be 62 years of age or older at the time
of loan closing.
Sec. 206.34 Limitation on number of mortgages.
(a) Once a borrower has obtained an insured mortgage under this
part, the borrower is eligible to obtain future insured HECM loan
financing if the existing HECM is satisfied prior to or at the closing
of the new HECM, or as part of divorce or annulment of a marriage the
ex-spouse, who had previously jointly obtained a HECM with their ex-
spouse, presents a final divorce decree awarding all financial
obligation of the prior HECM to the other ex-spouse, and has
relinquished title as evidenced by a recorded deed.
(b) Current HECM borrowers that plan to sell their existing
residence and use the HECM for Purchase program to obtain a new
principal residence must pay off the existing FHA-insured mortgage
before the HECM for Purchase mortgage can be insured.
Sec. 206.35 Title of property which is security for HECM.
(a) A mortgagor is not required to be a borrower; however, any
borrower is required to be on title to the property which serves as
collateral for the HECM, and is therefore, by definition, also a
mortgagor.
(b) The mortgagor shall hold title to the entire property which is
the security for the mortgage. If there are multiple mortgagors, all
the mortgagors must collectively hold title to the entire property
which is the security for the mortgage. If one or more mortgagors hold
a life estate in the property, for purposes of this section only, the
term ``mortgagor'' shall include each holder of a future interest in
the property (remainder or reversion) who has executed the mortgage.
(c) If Non-Borrowing Spouses and non-borrowing owners of the
property will continue to hold title to the property which serves as
collateral for
[[Page 31805]]
the HECM, such Non-Borrowing Spouses and non-borrowing owners must sign
the mortgage as mortgagors, evidencing their commitment of the property
as security for the mortgage.
(d) All Non-Borrowing Spouses and non-borrowing owners shall sign a
certification that:
(1) Consents to their spouse or other borrowing owner obtaining the
HECM;
(2) Acknowledges the terms and conditions of the mortgage; and
(3) Acknowledges that the property will serve as collateral for the
HECM as evidenced by mortgage lien(s).
Sec. 206.36 Seasoning requirements for existing non-HECM liens.
(a) The Commissioner may establish, through notice, seasoning
requirements for existing non-HECM liens. Such seasoning requirements
shall not prohibit the payoff of existing non-HECM liens using HECM
proceeds if the liens have been in place for longer than 12 months or
if the liens have resulted in cash to the borrower in an amount of $500
or less, whether at closing or through cumulative draws prior to the
date of the initial HECM loan application.
(b) Mortgagees must provide documentation satisfactory to the
Commissioner as established by notice that the seasoning requirement
was met.
Sec. 206.37 Credit standing.
(a) Each borrower shall have a general credit standing satisfactory
to the Commissioner.
(b) Required Financial Assessment--(1) Requirement for Financial
Assessment prior to loan approval. Prior to loan approval, the
mortgagee shall assess the financial capacity of the borrower to comply
with the terms of the mortgage and evaluate whether the HECM is a
sustainable solution for the borrower, in accordance with instructions
established by the Commissioner through notice. The Financial
Assessment shall consider the borrower's credit history, cash flow and
residual income, extenuating circumstances, and compensating factors.
(i) Credit history. In accordance with FHA guidelines in existence
at the time of FHA Case Number assignment, mortgagees shall conduct an
in-depth credit history analysis to determine if the borrower has
demonstrated the willingness to meet his or her financial obligations.
(ii) Cash flow and residual income analysis. In accordance with FHA
guidelines in existence at the time of FHA Case Number assignment,
mortgagees shall conduct a cash flow and residual income analysis to
determine the capacity of the borrower to meet his or her documented
financial obligations with his or her documented income.
(iii) Extenuating circumstances. Where the borrower's credit
history does not meet the criteria set by the mortgagee based on FHA
guidelines in existence at the time of FHA Case Number assignment,
mortgagees shall consider and document, as part of the Financial
Assessment, extenuating circumstances that led to the credit issues.
(iv) Compensating factors. The mortgagee shall document and
identify in the Financial Assessment any considered compensating
factors.
(2) Completion and approval of Financial Assessment. The Financial
Assessment shall be completed and approved by a DE Underwriter
registered in HUD's system of record by the underwriting mortgagee.
(3) Nondiscrimination. (i) The Financial Assessment shall be
conducted in a uniform manner that shall not discriminate because of
race, color, religion, sex, national origin, familial status,
disability, marital status, actual or perceived sexual orientation,
gender identity, source of income of the borrower, location of the
property, or because the applicant has in good faith exercised any
right under the Consumer Credit Protection Act (15 U.S.C. 1601 et
seq.).
(ii) The Financial Assessment shall be conducted in compliance with
all applicable laws and regulations, including but not limited to, the
following:
(A) Fair Housing Act (42 U.S.C. 3601 et seq.);
(B) Fair Credit Reporting Act (15 U.S.C. 1681 et seq.);
(C) Equal Credit Opportunity Act (15 U.S.C. 1691 et seq.); and
(D) 12 CFR part 1002.
Sec. 206.39 Principal residence.
(a) The property must be the principal residence of each borrower,
and if applicable, Eligible Non-Borrowing Spouse, at closing.
(b) HECM for Purchase. For HECM for Purchase transactions, each
borrower, and if applicable, Eligible Non-Borrowing Spouse, must occupy
the property within 60 days from the date of closing.
Sec. 206.40 Disclosure, verification and certifications.
(a) Disclosure and certification of Social Security and Employer
Identification Numbers.
(1) Borrower. The borrower must meet the requirements for the
disclosure and verification of Social Security and Employer
Identification Numbers, as provided by part 200, subpart U, of this
chapter.
(2) Eligible Non-Borrowing Spouse. The Eligible Non-Borrowing
Spouse shall comply with the requirements for disclosure and
verification of Social Security and Employer Identification Numbers by
borrowers in paragraph (a)(1) of this section.
(b) Certifications. Each borrower and each Non-Borrowing Spouse
shall provide all required certifications to HUD and the mortgagee, as
required by the Commissioner.
(c) Designation of agent. At the time of origination, the
Commissioner may require a borrower to designate an agent or other
party to act on his behalf when FHA is unable to make contact or to
communicate with the borrower. If such designation is not required by
the Commissioner, and at any time, the borrower may voluntarily
designate such agent or other person to act on his behalf.
Sec. 206.41 Counseling.
(a) List provided. At the time of the initial contact with the
prospective borrower, the mortgagee shall give the borrower a list of
the names, addresses, and telephone numbers of HECM counselors and
their employing agencies, which have been approved by the Commissioner,
in accordance with subpart E of this part, as qualified and able to
provide the information described in paragraph (b) of this section. The
borrower, any Eligible or Ineligible Non-Borrowing Spouse and any non-
borrowing owner must receive counseling.
(b) Information to be provided. (1) A HECM counselor must discuss
with the borrower:
(i) The information required by subsection 255(f) of the NHA;
(ii) Whether the borrower has signed a contract or agreement with
an estate planning service firm that requires, or purports to require,
the borrower to pay a fee on or after closing that may exceed amounts
permitted by the Commissioner or this part;
(iii) If such a contract has been signed under paragraph (b)(1)(ii)
of this section, the extent to which services under the contract may
not be needed or may be available at nominal or no cost from other
sources, including the mortgagee; and
(iv) Any other requirements determined by the Commissioner.
(2) If the HECM borrower has an Eligible Non-Borrowing Spouse, in
addition to meeting the requirements of paragraph (b)(1) of this
section, a HECM
[[Page 31806]]
counselor shall discuss with the borrower and Eligible Non-Borrowing
Spouse:
(i) The requirement that the Eligible Non-Borrowing Spouse must
obtain ownership of the property or other legal right to remain in the
property for life, upon the death of the last surviving borrower;
(ii) A failure to obtain ownership or other legal right to remain
in the property for life will result in the HECM becoming due and
payable and the Eligible Non-Borrowing Spouse will not receive the
benefit of the Deferral Period;
(iii) The requirement that the property must be the principal
residence of the Eligible Non-Borrowing Spouse prior to and after the
death of the borrowing spouse;
(iv) The requirement that the Eligible Non-Borrowing Spouse
fulfills all obligations of the mortgage, including the payment of
property charges and upkeep of the property; and
(v) Any other requirements determined by the Commissioner.
(3) If the HECM borrower has an Ineligible Non-Borrowing Spouse, in
addition to meeting the requirements of paragraph (b)(1) of this
section, a HECM counselor shall discuss with the borrower and
Ineligible Non-Borrowing Spouse:
(i) The Deferral Period will not be applicable;
(ii) The HECM will become due and payable upon the death of the
last surviving borrower; and
(iii) Any other requirements determined by the Commissioner.
(c) Certificate. The HECM counselor will provide the borrower with
a certificate stating that the borrower, Non-Borrowing Spouse and non-
borrowing owner, as applicable, has received counseling. The HECM
counselor shall upload the certificate to the appropriate electronic
database.
(d) HECM for Purchase. For HECM for Purchase transactions,
prospective borrowers shall complete the required HECM counseling prior
to signing a sales contract and/or making an earnest money deposit,
unless a later date is provided for by the Commissioner.
Sec. 206.43 Information to borrower.
(a) Disclosure of costs of obtaining mortgage. The mortgagee shall
ensure that the borrower has received full disclosure of all costs of
obtaining the mortgage. The mortgagee shall ask the borrower about any
costs or other obligations that the borrower has incurred to obtain the
mortgage, as defined by the Commissioner, in addition to providing the
Good Faith Estimate required by 12 CFR 1024.7. The mortgagee shall
clearly state to the borrower which charges are required to obtain the
mortgage and which are not required to obtain the mortgage.
(b) Lump sum disbursement. (1) If the borrower requests that at
least 25 percent of the principal limit amount (after deducting amounts
excluded in the following sentence) be disbursed at closing to the
borrower (or as otherwise permitted by Sec. 206.25), the mortgagee
must make sufficient inquiry at closing to confirm that the borrower
will not use any part of the amount disbursed for payments to or on
behalf of an estate planning service firm, with an explanation of Sec.
206.32 as necessary or appropriate.
(2) This paragraph does not apply to any part of the principal
limit used for the following:
(i) Initial MIP under Sec. 206.105(a) or fees and charges allowed
under Sec. 206.31(a) paid by the mortgagee from mortgage proceeds
instead of by the borrower in cash; and
(ii) Amounts set aside in accordance with Sec. 206.19(f) for
repairs under Sec. 206.47, for property charges under Sec. 206.205,
or for servicing charges under Sec. 206.207(b).
Sec. 206.44 Monetary investment for HECM for Purchase program.
(a) Monetary investment. At closing, HECM for Purchase borrowers
shall provide a monetary investment that will be applied to satisfy the
difference between the principal limit and the sale price for the
property, plus any HECM loan-related fees that are not financed into
the loan, minus the amount of the earnest deposit.
(b) Funding sources. To satisfy the required monetary investment,
borrowers may use:
(1) Cash on hand;
(2) Cash from the sale or liquidation of the borrower's assets;
(3) HECM mortgage proceeds; or
(4) Other approved funding sources as determined by the
Commissioner through notice.
(c) Interested party contributions. (1) The following interested
party contributions are permissible:
(i) Fees required to be paid by a seller under state or local law;
and
(ii) The purchase of the Home Warranty policy by the seller.
(2) The Commissioner may define additional permissible interested
party contributions and impose requirements for permissible interested
party contributions through a notice for comment published in the
Federal Register.
Eligible Properties
Sec. 206.45 Eligible properties.
(a) Title. A mortgage must be on real estate held in fee simple; or
on a leasehold that is under a lease with a duration lasting until the
later of: 99 years, if such lease is renewable; or the actuarial life
expectancy of the mortgagor plus a number of years specified by the
Commissioner, which shall not be more than 99 years. The mortgagee
shall obtain a title insurance policy satisfactory to the Commissioner.
If the Commissioner determines that title insurance for reverse
mortgages is not available for reasonable rates in a state, then the
Commissioner may specify other acceptable forms of title evidence in
lieu of title insurance.
(b) Type of property. The property shall include a dwelling
designed principally as a residence for one family or such additional
families as the Commissioner shall determine. A condominium unit
designed for one-family occupancy shall also be an eligible property.
(c) Borrower and mortgagee requirement for maintaining flood
insurance coverage. (1) If the mortgage is to cover property
improvements (dwelling and related structures or equipment essential to
the value of the property and subject to flood damage) that:
(i) Are located in an area designated by the Federal Emergency
Management Agency (FEMA) as a floodplain area having special flood
hazards; or
(ii) Are otherwise determined by the Commissioner to be subject to
a flood hazard, and if flood insurance under the National Flood
Insurance Program (NFIP) is available with respect to these property
improvements, the borrower and mortgagee shall be obligated, by a
special condition to be included in the mortgage commitment, to obtain
and to maintain NFIP flood insurance coverage on the property
improvements during such time as the mortgage is insured.
(2) No mortgage may be insured that covers property improvements
located in an area that has been identified by FEMA as an area having
special flood hazards, unless the community in which the area is
situated is participating in the NFIP and such insurance is obtained by
the borrower. Such requirement for flood insurance shall be effective
one year after the date of notification by FEMA to the chief executive
officer of a flood prone community that such community has been
identified as having special flood hazards.
(3) The flood insurance must be maintained during such time as the
[[Page 31807]]
mortgage is insured in an amount at least equal to the lowest of the
following:
(i) 100 percent replacement cost of the insurable value of the
improvements, which consists of the development or project cost less
estimated land cost; or
(ii) The maximum amount of the NFIP insurance available with
respect to the particular type of the property; or
(iii) The outstanding principal balance of the loan.
(d) Lead-based paint poisoning prevention. If the appraiser of a
dwelling constructed prior to 1978 finds defective paint surfaces, 24
CFR 200.810(d) shall apply unless the borrower certifies that no child
who is less than six years of age resides or is expected to reside in
the dwelling, except that any reference to ``mortgagor'' in 24 CFR
200.810(d) shall mean ``borrower'' for purposes of this paragraph.
(e) Restrictions on conveyance. The property must be freely
marketable. Conveyance of the property may only be restricted as
permitted under this section, except that a right of first refusal to
purchase a unit in a condominium project is permitted if the right is
held by the condominium association for the project.
(1) As used in this section, legal restrictions on conveyance means
any provision in any legal instrument, law or regulation applicable to
the borrower or the mortgaged property, including but not limited to a
lease, deed, sales contract, declaration of covenants, declaration of
condominium, option, right of first refusal, will, or trust agreement,
that attempts to cause a conveyance (including a lease) made by the
borrower to:
(i) Be void or voidable by a third party;
(ii) Be the basis of contractual liability of the borrower for
breach of an agreement not to convey, including rights of first
refusal, pre-emptive rights or options related to borrower efforts to
convey;
(iii) Terminate or subject to termination all or a part of the
interest held by the borrower in the mortgaged property if a conveyance
is attempted;
(iv) Be subject to the consent of a third party;
(v) Be subject to limits on the amount of sales proceeds retainable
by the seller; or
(vi) Be grounds for acceleration of the insured mortgage or
increase in the interest rate.
(2) Policy of free assumability with no restrictions. A HECM shall
not be eligible for insurance if the property securing the HECM is
subject to legal restrictions on conveyance, except as permitted by
this section.
(3) Exception for protective covenants excluding non-elderly.
Mortgaged property may be subject to protective covenants which
prohibit or restrict occupancy by, or transfer to, persons who are not
elderly if:
(i) The restrictions do not have an undue effect on marketability;
and
(ii) The restrictions do not constitute illegal discrimination and
are consistent with the Fair Housing Act and all other applicable
nondiscrimination laws.
(4) Exceptions for specific jurisdictions. Notwithstanding the
provisions of paragraph (e)(2) of this section, mortgages insured on
property in the Northern Mariana Islands or American Samoa shall not be
ineligible for insurance under this section solely because applicable
law does not permit free alienability of title to all persons.
(f) Location of property. The mortgaged property shall be located
within the United States, Puerto Rico, Guam, the Virgin Islands, the
Commonwealth of the Northern Mariana Islands, and American Samoa. The
mortgaged property, if otherwise acceptable to the Commissioner, may be
located in any location where the housing standards meet the
requirements of the Commissioner.
(g) HECM for Purchase. (1) A HECM for Purchase transaction is where
title to the property is transferred to the HECM borrower and, at the
time of closing, the HECM first and second liens, if applicable, will
be the only liens against the property.
(2) Properties are eligible for FHA insurance under the HECM for
Purchase program when construction is completed and the property is
habitable, as evidenced by the issuance of a Certificate of Occupancy
or its equivalent, by the local jurisdiction.
Sec. 206.47 Property standards; repair work.
(a) Need for repairs. Properties must meet the applicable property
requirements of the Commissioner in order to be eligible. Properties
that do not meet the property requirements must be repaired in order to
ensure that the repaired property will serve as adequate security for
the insured mortgage.
(b) Assurance that repairs are made. The mortgage may be closed
before the repair work is completed if the Commissioner estimates that
the cost of the remaining repair work will not exceed 15 percent of the
maximum claim amount and the mortgage contains provisions approved by
the Commissioner concerning payment for the repairs.
(c) Reimbursement to contractor. When repair work is completed
after closing by a contractor, the mortgagee shall cause one or more
inspections of the property to be made by an inspector or other
qualified individual acceptable to the Commissioner in order to ensure
that the repair work is satisfactory, and prior to the release of funds
from the Repair Set Aside. The mortgagee shall hold back a portion of
the contract price attributable to the work done before each interim
release of funds, and the total of the hold backs will be released
after the final inspection and approval of the release by the
mortgagee. The mortgagee shall ensure that all mechanics' and
materialmen's liens are released of record.
(d) Reimbursement to borrower. The mortgagee shall not reimburse
the borrower for any labor the borrower performed. The mortgagee may
reimburse the borrower for the actual cost of repair materials from the
Repair Set Aside, provided that the mortgagee causes one or more
inspections of the property by an inspector or other qualified
individual acceptable to the Commissioner and meets all reimbursement
requirements established by the Commissioner.
(e) HECM for Purchase. For HECM for Purchase transactions, where
major property deficiencies threaten the health and safety of the
homeowner or jeopardize the soundness and security of the property, all
repairs must be completed by the seller prior to closing. Appraisers
shall complete the appraisal report as ``Subject To'' the completion of
the repairs.
Sec. 206.51 Eligibility of mortgages involving a dwelling unit in a
condominium.
If the mortgage involves a dwelling unit in a condominium, the
project in which the unit is located shall have been committed to a
plan of condominium ownership by deed, or other recorded instrument,
that is acceptable to the Commissioner.
Sec. 206.52 Eligible sale of property-HECM for Purchase.
(a) Sale by owner of record-- (1) Owner of record requirement. To
be eligible for a mortgage insured by FHA, the property must be
purchased from the owner of record and the transaction may not involve
any sale or assignment of the sales contract.
(2) Supporting documentation. The mortgagee shall obtain
documentation verifying that the seller is the owner of record and must
submit this documentation to FHA as part of the application for
mortgage insurance, in
[[Page 31808]]
accordance with Sec. Sec. 206.15 and 206.115(b)(9).
(b) Time restrictions on re-sales. (1) General. The eligibility of
a property for a mortgage insured by FHA is dependent on the time that
has elapsed between the date the seller acquired the property (based
upon the date of settlement) and the date of execution of the sales
contract that will result in the FHA mortgage insurance (the re-sale
date). The mortgagee shall obtain documentation verifying compliance
with the time restrictions described in this paragraph and must submit
this documentation to FHA as part of the application for mortgage
insurance, in accordance with Sec. 206.115(b).
(2) Re-sales occurring 90 days or less following acquisition. If
the re-sale date is 90 days or less following the date of acquisition
by the seller, the property is not eligible for a mortgage to be
insured by FHA.
(3) Re-sales occurring between 91 days and 180 days following
acquisition. (i) If the re-sale date is between 91 days and 180 days
following acquisition by the seller, the property is generally eligible
for a mortgage insured by FHA.
(ii) However, FHA will require that the mortgagee obtain additional
documentation if the re-sale price is 100 percent over the purchase
price. Such documentation must include an appraisal from another
appraiser. The mortgagee may also document its loan file to support the
increased value by establishing that the increased value results from
the rehabilitation of the property.
(iii) FHA may revise the level at which additional documentation is
required under paragraph (b)(3) of this section at 50 to 150 percent
over the original purchase price. FHA will revise this level by Federal
Register notice with a 30 day delayed effective date.
(4) Authority to address property flipping for re-sales occurring
between 91 days and 12 months following acquisition. (i) If the re-sale
date is more than 90 days after the date of acquisition by the seller,
but before the end of the twelfth month after the date of acquisition,
the property is eligible for a mortgage to be insured by FHA.
(ii) However, FHA may require that the mortgagee provide additional
documentation to support the re-sale value of the property if the re-
sale price is 5 percent or greater than the lowest sales price of the
property during the preceding 12 months (as evidenced by the contract
of sale). At FHA's discretion, such documentation must include, but is
not limited to, an appraisal from another appraiser. FHA may exclude
re-sales of less than a specific dollar amount from the additional
value documentation requirements.
(iii) If the additional value documentation supports a value of the
property that is more than 5 percent lower than the value supported by
the first appraisal, the lower value will be used to calculate the
maximum claim amount. Otherwise, the value supported by the first
appraisal will be used to calculate the maximum claim amount.
(iv) FHA will announce its determination to require additional
value documentation through issuance of a Federal Register notice. The
requirement for additional value documentation may be established
either on a nationwide or regional basis. Further, the Federal Register
notice will specify the percentage increase in the re-sale price that
will trigger the need for additional documentation, and will specify
the acceptable types of documentation. The Federal Register notice may
also exclude re-sales of less than a specific dollar amount from the
additional value documentation requirements. Any such Federal Register
notice, and any subsequent revisions, will be issued at least thirty
days before taking effect.
(v) The level at which additional documentation is required under
paragraph (b)(4) of this section shall supersede that under paragraph
(b)(3) of this section.
(5) Re-sales occurring more than 12 months following acquisition.
If the re-sale date is more than 12 months following the date of
acquisition by the seller, the property is eligible for a mortgage
insured by FHA.
(c) Exceptions to the time restrictions on sales. The time
restrictions on sales described in paragraph (b) of this section do not
apply to:
(1) Sales by HUD of Real Estate-Owned (REO) properties under 24 CFR
part 291 and of single family assets in revitalization areas pursuant
to section 204 of the NHA (12 U.S.C. 1710);
(2) Sales by another agency of the United States Government of REO
single family properties pursuant to programs operated by these
agencies;
(3) Sales of properties by nonprofit organizations approved to
purchase HUD REO single family properties at a discount with resale
restrictions;
(4) Sales of properties that were acquired by the sellers by
inheritance;
(5) Sales of properties purchased by an employer or relocation
agency in connection with the relocation of an employee;
(6) Sales of properties by state- and federally-chartered financial
institutions and government-sponsored enterprises (GSEs);
(7) Sales of properties by local and state government agencies; and
(8) Only upon announcement by FHA through issuance of a notice,
sales of properties located in areas designated by the President as
federal disaster areas. The notice will specify how long the exception
will be in effect.
(d) Sanctions and indemnification. Failure of a mortgagee to comply
with the requirements of this section may result in HUD requesting
indemnification of the mortgage loan, or seeking other appropriate
remedies under 24 CFR part 25.
Refinancing of Existing Home Equity Conversion Mortgages
Sec. 206.53 Refinancing a HECM loan.
(a) General. Except as otherwise provided in this section, all
requirements applicable to the insurance of HECMs under this part apply
to the insurance of refinanced HECMs. FHA may, upon application by a
mortgagee, insure any mortgage given to refinance an existing HECM
insured under this part, including loans assigned to the Commissioner
as described in Sec. 206.107(a)(1) and Sec. 206.121(b) of this part.
(b) Definition of ``total cost of the refinancing''. For purposes
of paragraphs (d) and (e) of this section, the term ``total cost of the
refinancing'' means the sum of the allowable charges and fees permitted
under Sec. 206.31 and the initial MIP described in Sec. 206.105(a)
and paragraph (c) of this section.
(c) Initial MIP limit. (1) The initial MIP paid by the mortgagee
pursuant to Sec. 206.105(a) shall not exceed the difference between:
Three percent of the increase in the maximum claim amount for the new
HECM, minus the amount of the initial MIP already charged and paid by
the borrower for the existing HECM that is being refinanced. No refunds
will be given if the initial MIP paid on the existing HECM exceeds the
initial MIP due on the new HECM.
(2) The HECM refinance authority is only applicable when the
property that serves as collateral for the FHA-insured mortgage remains
the same.
(3) Existing HECM borrowers refinancing an existing HECM are
eligible for a MIP reduction under the conditions of this section, but
existing HECM borrowers who participate in a HECM for Purchase
transaction are ineligible for a reduction in the initial MIP.
(d) Anti-churning disclosure-- (1) Contents of anti-churning
disclosure. In addition to providing the required
[[Page 31809]]
disclosures under Sec. 206.43, the mortgagee shall provide to the
borrower its best estimate of:
(i) The total cost of the refinancing to the borrower; and
(ii) The increase in the borrower's principal limit as measured by
the estimated initial principal limit on the mortgage to be insured
less the current principal limit on the HECM that is being refinanced
under this section.
(2) Timing of anti-churning disclosure. The mortgagee shall provide
the anti-churning disclosure concurrently with the disclosures required
under Sec. 206.43.
(e) Waiver of counseling requirement. The borrower and any Non-
Borrowing Spouse may elect not to receive counseling under Sec.
206.41, but only if:
(1) The original HECM was assigned a Case Number on or after August
4, 2014, and the borrower and Non-Borrowing Spouse, if applicable,
received counseling required under Sec. 206.41; or where the original
HECM was assigned a Case Number prior to August 4, 2014, and there is
no applicable Non-Borrowing Spouse.
(2) The borrower has received the anti-churning disclosure required
under paragraph (d) of this section.
(3) The increase in the borrower's principal limit (as provided in
the anti-churning disclosure) exceeds the total cost of the refinancing
by an amount established by the Commissioner through Federal Register
notice. FHA may periodically update this amount through publication of
a notice in the Federal Register. Publication of any such revised
amount will occur at least 30 days before the revision becomes
effective.
(4) The time between the date of the closing on the original HECM
and the date of the application for refinancing under this section does
not exceed five years (even if less than five years have passed since a
previous refinancing under this section).
Deferral of Due and Payable Status
Sec. 206.55 Deferral of due and payable status for Eligible Non-
Borrowing Spouses.
(a) Deferral Period. If the last surviving borrower predeceases an
Eligible Non-Borrowing Spouse, and if the requirements of paragraph (d)
of this section are satisfied, the due and payable status will be
deferred for as long as the Eligible Non-Borrowing Spouse continues to
meet the Qualifying Attributes in paragraph (c) of this section and the
requirements of paragraphs (d) and (e).
(b) End of Deferral Period. (1) If a Deferral Period ceases or
becomes unavailable because a Non-Borrowing Spouse no longer satisfies
the Qualifying Attributes and has become an Ineligible Non-Borrowing
Spouse, a mortgagee may not provide an opportunity to cure the default,
and the HECM will become immediately due and payable as a result of the
death of the last surviving borrower.
(2) If a Deferral Period ceases but the Eligible Non-Borrowing
Spouse continues to meet the Qualifying Attributes, the mortgagee must
provide an Eligible Non-Borrowing Spouse with 30 days to cure the
default, in accordance with Sec. 206.57.
(c) Qualifying Attributes. (1) In order to qualify as an Eligible
Non-Borrowing Spouse, the Non-Borrowing Spouse must:
(i) Have been the spouse of a HECM borrower at the time of loan
closing and remained the spouse of such HECM borrower for the duration
of the HECM borrower's lifetime;
(ii) Have been properly disclosed to the mortgagee at origination
and specifically named as an Eligible Non-Borrowing Spouse in the HECM
mortgage and loan documents;
(iii) Have occupied, and continue to occupy, the property securing
the HECM as his or her principal residence; and
(iv) Meet any other requirements as the Commissioner may prescribe
by Federal Register notice for comment.
(2) A Non-Borrowing Spouse who meets the Qualifying Attributes in
paragraph (c)(1) of this section at origination is an Eligible Non-
Borrowing Spouse and may not elect to be ineligible for the Deferral
Period. A Non-Borrowing Spouse that is ineligible for the Deferral
Period at the time of loan origination because he or she failed to
satisfy the Qualifying Attributes requirements in paragraph (c)(1) of
this section is not subsequently eligible for a Deferral Period when
the borrowing spouse dies or moves out of the home.
(3) An Eligible Non-Borrowing Spouse shall become an Ineligible
Non-Borrowing Spouse should any of the Qualifying Attributes
requirements in paragraph (c)(1) of this section cease to be met.
(d) Additional requirements for Deferral Period. An Eligible Non-
Borrowing Spouse must satisfy and continue to satisfy the following
requirements:
(1) Within 90 days from the death of the last surviving HECM
borrower, establish legal ownership or other ongoing legal right to
remain for life in the property securing the HECM;
(2) After the death of the last surviving borrower, ensure all
other obligations of the HECM borrower(s) contained in the loan
documents continue to be satisfied; and
(3) After the death of the last surviving borrower, ensure that the
HECM does not become eligible to be called due and payable for any
other reason.
(e) Unaffected terms of HECM. All applicable terms and conditions
of the mortgage and loan documents, and all FHA requirements, continue
to apply and must be satisfied.
(f) Nothing in this section may be construed as interrupting or
interfering with the ability of the borrower's estate or heir(s) to
dispose of the property if they are otherwise legally entitled to do
so.
Sec. 206.57 Cure provision enabling reinstatement of Deferral Period.
(a) When the mortgagee is required by Sec. 206.55(b)(2) to provide
an Eligible Non-Borrowing Spouse with 30 days to cure the default, this
section shall apply.
(b) If the default is cured within the 30-day timeframe, the
Deferral Period shall be reinstated, unless:
(1) The mortgagee has reinstated the Deferral Period within the
past two years immediately preceding the current notification to the
Eligible Non-Borrowing Spouse that the mortgage is due and payable;
(2) The reinstatement of the Deferral Period will preclude
foreclosure if the mortgage becomes due and payable at a later date; or
(3) The reinstatement of the Deferral Period will adversely affect
the priority of the mortgage lien.
(c) If the default is not cured within the 30-day timeframe, the
mortgagee shall proceed in accordance with the established timeframes
to initiate foreclosure and reasonable diligence in prosecuting
foreclosure.
(d) Even after a foreclosure proceeding has been initiated, the
mortgagee shall permit an Eligible Non-Borrowing Spouse to cure the
condition which resulted in the Deferral Period ceasing, consistent
with Sec. 206.55(b)(2), and to reinstate the mortgage and Deferral
Period, and the mortgage insurance shall continue in effect. The
mortgagee may require the Eligible Non-Borrowing Spouse to pay any
costs that the mortgagee incurred to reinstate the mortgage, including
foreclosure costs and reasonable attorney's fees. Such costs may not be
added to the outstanding loan balance and shall be paid from some other
source of funds. The mortgagee shall reinstate the Deferral Period
unless:
[[Page 31810]]
(1) The mortgagee has reinstated the Deferral Period within the
past two years immediately preceding the latest notification to the
Eligible Non-Borrowing Spouse that the mortgage is due and payable;
(2) The reinstatement of the Deferral Period will preclude
foreclosure if the mortgage becomes due and payable at a later date; or
(3) The reinstatement of the Deferral Period will adversely affect
the priority of the mortgage lien.
Sec. 206.59 Obligations of mortgagee.
(a) Certifications and disclosures at closing. At closing, the
mortgagee shall obtain the appropriate certification from each borrower
identified as married as well as from each identified Non-Borrowing
Spouse. When a HECM borrower has identified an Ineligible Non-Borrowing
Spouse, the mortgagee shall also disclose the amount of mortgage
proceeds that would have been available under the HECM if he or she
were an Eligible Non-Borrowing Spouse.
(b) Divorce. In the event of a divorce between the HECM borrower
and Eligible Non-Borrowing Spouse, a mortgagee shall obtain a copy of
the final divorce decree and shall not require the now Ineligible Non-
Borrowing Spouse to fulfill any further requirements.
(c) Death of borrower. Within 30 days of being notified of the
death of the borrower, the mortgagee shall:
(1) Obtain all certifications, as required by the Commissioner,
from the Eligible Non-Borrowing Spouse, and continue to obtain the
required certifications no less than annually thereafter for the
duration of the Deferral Period; and
(2) Notify any Eligible Non-Borrowing Spouse that the due and
payable status of the loan is in a Deferral Period only for the amount
of time that such Eligible Non-Borrowing Spouse continues to meet all
requirements established by the Commissioner.
(d) Non-compliance with requirements. If the Eligible Non-Borrowing
Spouse ceases to meet any requirements established by the Commissioner,
the mortgagee shall notify the Eligible Non-Borrowing Spouse within 30
days that the Deferral Period has ended and the HECM is immediately due
and payable, unless the Deferral Period is reinstated in accordance
with Sec. 206.57. The mortgagee shall obtain documentation validating
the reason for the cessation of the Deferral Period and, if applicable,
the reason for reinstatement of the Deferral Period.
Sec. 206.61 HECM proceeds during a Deferral Period.
(a) The HECM is not assumable. HECM proceeds may not be disbursed
to any party during a Deferral Period, except as determined by the
Commissioner through notice.
(b) If a Repair Set Aside was established as a condition of the
HECM, funds may be disbursed from the Repair Set Aside during a
Deferral Period for the sole purpose of paying the cost of those
repairs that were specifically identified prior to origination as
necessary to the insurance of the HECM. Repairs under this paragraph
shall only be paid for using funds from the Repair Set Aside if the
repairs are satisfactorily completed during the time period established
in the Repair Rider or such additional time as provided by the
Commissioner. Unused funds remaining beyond the established time period
shall not be disbursed.
Subpart C--Contract Rights and Obligations
Sale, Assignment and Pledge
Sec. 206.101 Sale, assignment and pledge of insured mortgages.
(a) Sale of interests in insured mortgages. No mortgagee may sell
or otherwise dispose of any mortgage insured under this part, or group
of mortgages insured under this part, or any partial interest in such
mortgage or mortgages by means of any agreement, arrangement or device
except pursuant to this subpart.
(b) Sale of insured mortgage to approved mortgagee. A mortgage
insured under this part may be sold to another approved mortgagee. The
seller shall notify the Commissioner of the sale within 15 calendar
days, on a form prescribed by the Commissioner and acknowledged by the
buyer.
(c) Effect of sale of insured mortgage. When a mortgage insured
under this part is sold to another approved mortgagee, the buyer shall
thereupon succeed to all the rights and become bound by all the
obligations of the seller under the contract of insurance and the
seller shall be released from its obligations under the contract,
provided that the seller shall not be relieved of its obligation to pay
mortgage insurance premiums until the notice required by Sec.
206.101(b) is received by the Commissioner.
(d) Assignments, pledges and transfers by approved mortgagee. (1)
An assignment, pledge, or transfer of a mortgage or group of mortgages
insured under this part, not constituting a final sale, may be made by
an approved mortgagee to another approved mortgagee provided the
following requirements are met:
(i) The assignor, pledgor or transferor shall remain the mortgagee
of record.
(ii) The Commissioner shall have no obligation to recognize or deal
with any party other than the mortgagee of record with respect to the
rights, benefits and obligations of the mortgagee under the contract of
insurance.
(2) An assignment or transfer of an insured mortgage or group of
insured mortgages may be made by an approved mortgagee to other than an
approved mortgagee provided the requirements under paragraphs (d)(1)(i)
and (d)(1)(ii) of this section are met and the following additional
requirements are met:
(i) The assignee or transferee shall be a corporation, trust or
organization (including but not limited to any pension trust or profit-
sharing plan) which certifies to the approved mortgagee that:
(A) It has assets of $100,000 or more; and
(B) It has lawful authority to hold an insured mortgage or group of
insured mortgages.
(ii) The assignment or transfer shall be made pursuant to an
agreement under which the transferor or assignor is obligated to take
one of the following alternate courses of action within 1 year from the
date of the assignment or within such additional period of time as may
be approved by the Commissioner:
(A) The transferor or assignor shall repurchase and accept a
reassignment of such mortgage or group of mortgages.
(B) The transferor or assignor shall obtain a sale and transfer of
such mortgage or group of mortgages to an approved mortgagee.
(3) Notice to or approval of the Commissioner is not required in
connection with assignments, pledges or transfers pursuant to this
section.
(e) Declaration of trust. A sale of a beneficial interest in a
group of mortgages insured under this part, where the interest to be
acquired is related to all of the mortgages as an entirety, rather than
an interest in a specific mortgage, shall be made only pursuant to a
declaration of trust, which has been approved by the Commissioner prior
to any such sale.
(f) Transfers of partial interests. A partial interest in a
mortgage insured under this part may be transferred under a
participation agreement without obtaining the approval of the
Commissioner, if the following conditions are met:
(1) Principal mortgagee. The insured mortgage shall be held by an
approved mortgagee which, for the purposes of
[[Page 31811]]
this section, shall be referred to as the principal mortgagee.
(2) Interest of principal mortgagee. The principal mortgagee shall
retain and hold for its own account a financial interest in the insured
mortgage.
(3) Qualification for holding partial interest. A partial interest
in an insured mortgage shall be issued to and held only by:
(i) A mortgagee approved by the Commissioner; or
(ii) A corporation, trust or organization (including, but not
limited to any pension fund, pension trust, or profit-sharing plan)
which certifies to the principal mortgagee that:
(A) It has assets of $100,000 or more; and
(B) It has lawful authority to acquire a partial interest in an
insured mortgage.
(4) Participation agreement provisions. The participation agreement
shall include provisions that:
(i) The principal mortgagee shall retain title to the mortgage and
remain the mortgagee of record under the contract of mortgage
insurance.
(ii) The Commissioner shall have no obligation to recognize or deal
with anyone other than the principal mortgagee with respect to the
rights, benefits and obligations of the mortgagee under the contract of
insurance.
(iii) The mortgage and loan documents shall remain in the custody
of the principal mortgagee.
(iv) The responsibility for servicing the insured mortgages shall
remain with the principal mortgagee.
Sec. 206.102 Insurance Funds.
Loans endorsed for insurance under this part, prior to October 1,
2008, shall be obligations of the General Insurance Fund. Loans
endorsed for insurance under this part, on or after October 1, 2008,
shall be obligations of the Mutual Mortgage Insurance Fund.
Mortgage Insurance Premiums
Sec. 206.103 Payment of MIP.
(a) The payment of any MIP due under this subpart shall be made to
the Commissioner by the mortgagee in cash until an event described in
paragraph (b) or (c) of this section occurs.
(b) Payment of the mortgage. The MIP shall no longer be remitted if
the mortgage is paid in full.
(c) Acquisition of title. (1) If the mortgagee or a party other
than the mortgagee acquires title at a foreclosure sale, or the
mortgagee acquires title by a deed in lieu of foreclosure, and the
mortgagee notifies the Commissioner that a claim for the payment of the
insurance benefits will not be presented, the MIP shall no longer be
remitted.
(2) If the mortgagee or a party other than the mortgagee acquires
title at a foreclosure sale or the mortgagee acquires title by a deed
in lieu of foreclosure, or where the property is sold in accordance
with Sec. 206.125(c), and a claim for the payment of the insurance
benefits will be presented, the MIP shall no longer be remitted as of
the date of the foreclosure sale, the date the deed in lieu of
foreclosure is recorded, or the date in which the sale in accordance
with Sec. 206.125(c) is completed, as applicable.
Sec. 206.105 Amount of MIP.
(a) Initial MIP. The mortgagee shall pay to the Commissioner an
initial MIP that does not exceed three percent of the maximum claim
amount.
(b) Monthly MIP. The Commissioner may establish and collect a
monthly MIP, which will accrue daily from the closing date, at a rate
not to exceed 1.50 percent of the remaining insured principal balance,
or up to 1.55 percent for any mortgage involving an original principal
obligation that is greater than 95 percent of appraised value of the
property. A mortgagee may only add the monthly MIP to the loan balance
when paid to the Commissioner.
(c) Calculation of the initial MIP. The mortgagee shall calculate
the initial MIP based on the amount of funds the borrower has elected
to be made available during the First 12-Month Disbursement Period,
except that the calculation shall not include any funds set aside in
the Servicing Fee Set Aside, if applicable. The initial MIP calculation
shall be determined based on the sum of the following amounts:
(1) For adjustable interest rate HECMs, the amount of Mandatory
Obligations, the amount disbursed to the borrower at loan closing, and
the amount of the available Initial Disbursement Limit not taken by the
borrower at loan closing that the borrower selects to remain available
during the First 12-Month Disbursement Period.
(2) For fixed interest rate HECMs, the amount of Mandatory
Obligations and the amount disbursed to the borrower at loan closing.
(d) Adjustments to initial or monthly MIP. The Commissioner may
adjust the amount of any initial or monthly MIP through notice. Such
notice shall establish the effective date of any premium adjustment
therein.
Sec. 206.107 Mortgagee election of assignment or shared premium
option.
(a) Election of option. Before the mortgage is submitted for
insurance endorsement, the mortgagee shall elect either the assignment
option or the shared premium option.
(1) Under the assignment option, the mortgagee shall have the
option of assigning the mortgage to the Commissioner if the outstanding
loan balance is equal to or greater than 98 percent of the maximum
claim amount, regardless of the deferral status, or the borrower has
requested a payment which exceeds the difference between the maximum
claim amount and the outstanding loan balance and:
(i) The mortgagee is current in making the required payments under
the mortgage to the borrower;
(ii) The mortgagee is current in its payment of the MIP (and late
charges and interest on the MIP, if any) to the Commissioner;
(iii) The mortgage is not due and payable under Sec. 206.27(c)(1),
or, if due and payable under Sec. 206.27(c)(1), its due and payable
status has been deferred pursuant to a Deferral Period;
(iv) An event described in Sec. 206.27(c)(2) has not occurred, or
the Commissioner has been so informed but has denied approval for the
mortgage to be due and payable. At the mortgagee's option, the
mortgagee may forgo assignment of the mortgage and file a claim under
any of the circumstances described in Sec. 206.123(a)(3)-(5); and
(v) The mortgage is a first lien of record and title to the
property securing the mortgage is good and marketable. The provisions
of Sec. 206.136 pertaining to mortgagee certifications also apply.
(2) Under the shared premium option, the mortgagee may not assign a
mortgage to the Commissioner unless the mortgagee fails to make
payments and the Commissioner demands assignment (Sec. 206.123(a)(2)),
but the mortgagee shall only be required to remit a reduced monthly MIP
to the Commissioner. The mortgagee shall collect from the borrower the
full amount of the monthly MIP provided in Sec. 206.105(b) but shall
retain a portion of the monthly MIP paid by the borrower as
compensation for the default risk assumed by the mortgagee. The portion
of the MIP to be retained by a mortgagee shall be determined by the
Commissioner as calculated in Sec. 206.109. For a particular mortgage,
the applicable portion shall be determined as of the date of the
commitment. The mortgagee retains the right to file a claim under any
of the circumstances described in Sec. 206.123(a)(2)-(5).
[[Page 31812]]
(b) No election for shared appreciation. Shared appreciation
mortgages shall be insured by the Commissioner only under the shared
premium option.
Sec. 206.109 Amount of mortgagee share of premium.
Using the factors provided by the Commissioner, the amount of the
mortgagee share of the premium shall be determined for each mortgage
based upon the age of the youngest borrower or Eligible Non-Borrowing
Spouse and the expected average mortgage interest rate.
Sec. 206.111 Due date of MIP.
(a) Initial MIP. The mortgagee shall pay the initial MIP to the
Commissioner within fifteen days of closing and as a condition to the
endorsement of the mortgage for insurance.
(b) Monthly MIP. Each monthly MIP shall be due to the Commissioner
on the first business day of each month except the month in which the
mortgage is closed.
Sec. 206.113 Late charge and interest.
(a) Late charge. Initial MIP remitted to the Commissioner more than
5 days after the payment date in Sec. 206.111(a) and monthly MIP
remitted to the Commissioner more than 5 days after the payment date in
Sec. 206.111(b) shall include a late charge of four percent of the
amount owed.
(b) Interest. In addition to any late charge provided in paragraph
(a) of this section, the mortgagee shall pay interest on any initial
MIP remitted to the Commissioner more than 20 days after closing, and
interest on any monthly MIP remitted to the Commissioner more than 5
days after the payment date prescribed in Sec. 206.111(b). Such
interest rate shall be paid at a rate set in conformity with the
Treasury Financial Manual.
(c) Paid by mortgagee. Any late charge and interest owed may not be
added to the outstanding loan balance and must be paid by the
mortgagee.
Sec. 206.115 Insurance of mortgage.
(a) Mortgages with firm commitments. For applications for insurance
involving mortgages not eligible to be originated under the Direct
Endorsement program under Sec. 203.5 (any reference to Sec. 203.255
in Sec. 203.5 shall mean Sec. 206.115 for purposes of this section),
the Commissioner will endorse the mortgage for insurance by issuing a
Mortgage Insurance Certificate.
(b) Endorsement with Direct Endorsement processing. For
applications for insurance involving mortgages originated under the
Direct Endorsement program under Sec. 203.5 (any reference to Sec.
203.255 in Sec. 203.5 shall mean Sec. 206.115 for purposes of this
section), the mortgagee shall submit to the Commissioner, within 60
days after the date of closing of the loan or such additional time as
permitted by the Commissioner, properly completed documentation and
certifications as listed in this paragraph (b):
(1) Property appraisal upon a form meeting the requirements of the
Commissioner (including, if required, any additional documentation
supporting the appraised value of the property under Sec. 206.52), and
a HUD conditional commitment, or a Lender's Notice of Value issued by
the Lender Appraisal Processing Program (LAPP) approved lender when the
appraisal was originally completed for use in a VA application, but
only if the appraiser was also on the FHA roster as of the effective
date of the appraisal, and all accompanying documents required by the
Commissioner;
(2) An application for insurance of the mortgage in a form
prescribed by the Commissioner;
(3) A certified copy of the mortgage and loan documents executed
upon forms which meet the requirements of the Commissioner;
(4) An underwriter certification, on a form prescribed by the
Commissioner, stating that the underwriter has personally reviewed the
appraisal report and credit application (including the analysis
performed on the worksheets) and that the proposed mortgage complies
with FHA underwriting requirements, and incorporates each of the
underwriter certification items that apply to the mortgage submitted
for endorsement, as set forth in the applicable handbook or similar
publication that is distributed to all Direct Endorsement mortgagees,
except that if FHA makes the TOTAL Mortgage Scorecard available to HECM
mortgagees by setting out requirements applicable for the use of the
TOTAL Mortgage Scorecard in a Federal Register notice for comment,
mortgagees may follow such procedures and meet such requirements in
lieu of providing the underwriter certification;
(5) Where applicable, a certificate under oath and contract
regarding use of the dwelling for transient or hotel purposes;
(6) Where an individual water or sewer system is being used, an
approval letter from the local health authority indicating approval of
the system in accordance with Sec. 200.926d(f);
(7) A mortgage certification on a form prescribed by the
Commissioner, stating that the authorized representative of the
mortgagee who is making the certification has personally reviewed the
mortgage documents and the application for insurance endorsement, and
certifying that the mortgage complies with the requirements of
paragraph (b) of this section. The certification shall incorporate each
of the mortgagee certification items that apply to the mortgage loan
submitted for endorsement, as set forth in the applicable handbook or
similar publication that is distributed to all Direct Endorsement
mortgagees;
(8) Documents required by Sec. 206.15;
(9) Documentation providing that the seller is the owner of record
in accordance with Sec. 206.52(a) and the time restriction
requirements of Sec. 206.52(b) are met;
(10) For HECM for Purchase transactions, a Certificate of
Occupancy, or its equivalent, if required for new construction; and
(11) Such other documents as the Commissioner may require.
(c) Pre-endorsement review for Direct Endorsement. (1) Upon
submission by an approved mortgagee of the documents required by
paragraph (b) of this section, the Commissioner will review the
documents and determine that:
(i) The mortgage is executed on a form which meets the requirements
of the Commissioner;
(ii) The mortgage maturity meets the requirements of the applicable
program;
(iii) The stated mortgage amount does not exceed 150 percent of the
maximum claim amount;
(iv) All documents required by paragraph (b) of this section are
submitted;
(v) All necessary certifications are made in accordance with
paragraph (b) of this section;
(vi) There is no mortgage insurance premium, late charge or
interest due to the Commissioner; and
(vii) The mortgage was not in default when submitted for insurance
or, if submitted for insurance more than 60 days after closing, the
mortgagee certifies that the borrower is current in paying all property
charges or is otherwise in compliance with all the terms and conditions
of the mortgage documents.
(2) The Commissioner is authorized to determine if there is any
information indicating that any certification or required document is
false, misleading, or constitutes fraud or misrepresentation on the
part of any party, or that the mortgage fails to meet a statutory or
regulatory requirement. If, following this review, the mortgage is
determined to be eligible, the
[[Page 31813]]
Commissioner will endorse the mortgage for insurance by issuance of a
Mortgage Insurance Certificate. If the mortgage is determined to be
ineligible, the Commissioner will inform the mortgagee in writing of
this determination, and include the reasons for the determination and
any corrective actions that may be taken.
(d) Submission by mortgagee other than originating mortgagee. If
the originating mortgagee assigns the mortgage to another approved
mortgagee before pre-endorsement review under paragraph (c) of this
section, the assignee may submit the required documents for pre-
endorsement review in the name of the originating mortgagee. All
certifications must be executed by the originating mortgagee (or its
underwriter, if appropriate). The purchasing mortgagee may pay any
required mortgage insurance premium, late charge and interest.
(e) Post-Endorsement review for Direct Endorsement. Following
endorsement for insurance, the Commissioner may review all documents
required by paragraph (b) of this section. If, following this review,
the Commissioner determines that the mortgage does not satisfy the
requirements of the Direct Endorsement program, the Commissioner may
place the mortgagee on Direct Endorsement probation, or terminate the
authority of the mortgagee to participate in the Direct Endorsement
program pursuant to Sec. 206.15, or refer the matter to the Mortgagee
Review Board for action pursuant to part 25 of this title.
(f) Creation of the contract. The mortgage shall be an insured
mortgage from the date of the issuance of a Mortgage Insurance
Certificate, from the date of the endorsement of the credit instrument,
or from the date of FHA's electronic acknowledgement to the mortgagee
that the mortgage is insured, as applicable. The Commissioner and the
mortgagee are thereafter bound by the regulations in this subpart with
the same force and to the same extent as if a separate contract had
been executed relating to the insured mortgage, including the
provisions of the regulations in this subpart and of the National
Housing Act.
Sec. 206.116 Refunds.
No amount of the initial MIP shall be refundable except as
authorized by the Commissioner.
HUD Responsibility to Borrowers
Sec. 206.117 General.
The Commissioner is required by statute to take any action
necessary to provide a borrower with funds to which the borrower is
entitled under the mortgage and which the borrower does not receive
because of the default of the mortgagee. The Commissioner may hold a
second mortgage to secure repayment by the borrower under Sec.
206.27(d). Where the Commissioner does not hold a second mortgage, but
makes a payment to the borrower, and such payment is not reimbursed by
the mortgagee, the Commissioner shall accept assignment of the first
mortgage.
Sec. 206.119 [Reserved]
Sec. 206.121 Commissioner authorized to make payments.
(a) Investigation. The Commissioner will investigate all complaints
by a borrower concerning late payments. If the Commissioner determines
that the mortgagee is unable or unwilling to make all payments required
under the mortgage, including late charges, the Commissioner shall pay
such payments and late charges to the borrower.
(b) Reimbursement or assignment. The Commissioner may demand that
within 30 days from the demand, the mortgagee reimburse the
Commissioner, with interest from the date of payment by the
Commissioner, or assign the insured mortgage to the Commissioner.
Interest shall be paid at a rate set in conformity with the Treasury
Financial Manual. If the mortgagee complies with the reimbursement
demand, then the contract of insurance shall not be affected. If the
mortgagee complies by assigning the mortgage for record within 30 days
of the demand, then the Commissioner shall pay an insurance claim as
provided in Sec. 206.129(e)(3) and assume all responsibilities of the
mortgagee under the first mortgage. If the mortgagee fails to comply
with the demand within 30 days, the contract of insurance will
terminate as provided in Sec. 206.133(c).
(c) Second mortgage. If the contract of insurance is terminated as
provided in Sec. 206.133(c), all payments to the borrower by the
Commissioner will be secured by the second mortgage, unless otherwise
provided by the Commissioner. Payments will be due and payable in the
same manner as under the insured first mortgage. The liability of the
borrower under the first mortgage shall be limited to payments actually
made by the mortgagee to or on behalf of the borrower (including prior
recoupment of the MIP remitted by the mortgagee and billed to the
borrower), and shall exclude accrued interest, whether or not it has
been included in the outstanding loan balance, and shared appreciation,
if any. Interest will stop accruing on the first mortgage when the
Commissioner begins to make payments under the second mortgage. The
first mortgage will not be due and payable until the second mortgage is
due and payable.
Claim Procedure
Sec. 206.123 Claim procedures in general.
(a) Claims. Mortgagees may submit claims for the payment of the
mortgage insurance benefits if:
(1) The conditions of Sec. 206.107(a)(1) pertaining to the
optional assignment of the mortgage by the mortgagee have been met and
the mortgagee assigns the mortgage to the Commissioner;
(2) The mortgagee is unable or unwilling to make the payments under
the mortgage and assigns the mortgage to the Commissioner pursuant to
the Commissioner's demand, as provided in Sec. 206.121(b);
(3) The borrower or other permissible party sells the property for
less than the outstanding loan balance and the mortgagee releases the
mortgage of record to facilitate the sale, as provided in Sec.
206.125(c);
(4) The mortgagee acquires title to the property by foreclosure or
a deed in lieu of foreclosure and sells the property as provided in
Sec. 206.125(g) for an amount which does not satisfy the outstanding
loan balance or fails to sell the property as provided in Sec.
206.127(a)(2); or
(5) The mortgagee forecloses and a bidder other than the mortgagee
purchases the property for an amount that is not sufficient to satisfy
the outstanding loan balance, as provided in Sec. 206.125(e).
(b) [Reserved]
Sec. 206.125 Acquisition and sale of the property.
(a) Initial action by the mortgagee. (1) The mortgagee shall notify
the Commissioner within 60 days of the mortgage becoming due and
payable when the conditions stated in the mortgage, as required by
Sec. 206.27(c)(1) have occurred or when the Deferral Period ends. The
mortgagee shall notify the Commissioner within 30 days of one of the
conditions stated in the mortgage, as required by Sec. 206.27(c)(2),
occurring.
(2) After notifying and receiving approval of the Commissioner when
needed, the mortgagee shall notify the borrower, Eligible Non-Borrowing
Spouse, borrower's estate and borrower's heir(s), as applicable, within
30 days of the later of notifying the Commissioner or receiving
approval, if needed, that the mortgage is due and payable. The
mortgagee shall give the applicable party 30 days from the date of
notice to engage in the following actions:
[[Page 31814]]
(i) Pay the outstanding loan balance, including any accrued
interest, MIP, and mortgagee advances in full;
(ii) Sell the property for an amount not to be less than the amount
determined by the Commissioner through notice, which shall not exceed
95 percent of the appraised value as determined under Sec. 206.125(b),
with the net proceeds of the sale to be applied towards the outstanding
loan balance. In no event shall closing costs exceed 11 percent of the
sales price. For the purposes of this section, sell includes the
transfer of title by operation of law;
(iii) Provide the mortgagee with a deed in lieu of foreclosure;
(iv) Correct the condition which resulted in the mortgage coming
due and payable for reasons other than the death of the last surviving
borrower;
(v) For an Eligible Non-Borrowing Spouse, correct the condition
which resulted in an end to the Deferral Period in accordance with
Sec. 206.57; or
(vi) Such other actions as permitted by the Commissioner through
notice.
(3) For a borrower, even after a foreclosure proceeding is begun,
the mortgagee shall permit the borrower to correct the condition which
resulted in the mortgage coming due and payable and to reinstate the
mortgage, and the mortgage insurance shall continue in effect. The
mortgagee may require the borrower to pay any costs that the mortgagee
incurred to reinstate the borrower, including foreclosure costs and
reasonable attorney's fees. Such costs shall be paid by adding them to
the outstanding loan balance. The mortgagee may refuse reinstatement by
the borrower if:
(i) The mortgagee has accepted reinstatement of the mortgage within
the past two years immediately preceding the current notification to
the borrower that the mortgage is due and payable;
(ii) Reinstatement will preclude foreclosure if the mortgage
becomes due and payable at a later date; or
(iii) Reinstatement will adversely affect the priority of the
mortgage lien.
(4) For an Eligible Non-Borrowing Spouse, even after a foreclosure
proceeding has been initiated, the mortgagee shall permit the Eligible
Non-Borrowing Spouse to cure the condition which resulted in the
Deferral Period ceasing, in accordance with Sec. 206.57(d).
(b) Appraisal. The mortgagee shall have the property appraised by
an appraiser on the FHA roster no later than 30 days after receipt of
the request by an applicable party in connection with a potential
property sale. The property shall be appraised before a foreclosure
sale and have an effective appraisal date that is no more than 30 days
before such sale. The appraisal shall be at the requesting party's
expense unless the mortgage is due and payable. If the mortgage is due
and payable, the appraisal shall be at the mortgagee's expense but the
mortgagee shall have a right to be reimbursed out of the proceeds of
any sale by the borrower or other permissible party.
(c) Sale by borrower or other permissible party. Where the HECM is
not due and payable, the borrower or an authorized representative of
the borrower may sell the property for at least the lesser of the
outstanding loan balance or the appraised value. Where the HECM is due
and payable at the time the contract for sale is executed, the borrower
or other party with legal right to dispose of the property may sell the
property in accordance with the amount established by Sec.
206.125(a)(2)(ii). The mortgagee shall satisfy the mortgage of record
(and the Commissioner will satisfy any second mortgage required by the
Commissioner under Sec. 206.27(d) of record) in order to facilitate
the sale, provided that there are no junior liens (except the mortgage
to secure payments by the Commissioner if required under Sec.
206.27(d)) and all the net proceeds from the sale are paid to the
mortgagee.
(d) Initiation of foreclosure. (1) The mortgagee shall commence
foreclosure of the mortgage within six months of the due date defined
in Sec. 206.129(d)(1), or within such additional time as may be
approved by the Commissioner.
(2) If the laws of the State, city or municipality or other
political subdivision in which the mortgaged property is located or if
Federal bankruptcy law does not permit the commencement of the
foreclosure in accordance with Sec. 206.125(d)(1), the mortgagee shall
commence foreclosure within six months after the expiration of the time
during which such foreclosure is prohibited by such laws.
(3) The mortgagee shall give written notice to the Commissioner
within 30 days after the initiation of foreclosure proceedings, and
shall exercise reasonable diligence in prosecuting the foreclosure
proceedings to completion and in acquiring title to and possession of
the property. A time frame that is determined by the Commissioner to
constitute ``reasonable diligence'' for each State is made available to
mortgagees.
(4) The mortgagee shall bid at the foreclosure sale an amount at
least equal to the lesser of the sum of the outstanding loan balance
and any and all other incurred expenses, or the current appraised value
of the property.
(e) Other bidders at foreclosure sale. If a party other than the
mortgagee is the successful bidder at the foreclosure sale, the net
proceeds of the sale shall be applied to the outstanding loan balance.
(f) Deed in lieu of foreclosure. (1)(i) In order to avoid delays
and additional expense as a result of instituting and completing a
foreclosure action, the mortgagee shall accept a deed in lieu of
foreclosure from the borrower or other party with legal right to
dispose of the property provided it is within 9 months of the due date
and the mortgagee is able to obtain good and marketable title.
(ii) Cash for Keys. The Commissioner may provide a financial
incentive, in an amount to be determined by the Commissioner, to be
paid by the mortgagee and reimbursed through any subsequent claim where
a borrower or other party with a legal right to do so deeds the
property within 6 months of the due date.
(2) In exchange for the executed and delivered deed, the mortgagee
shall cancel the credit instrument and deliver it to the borrower and
satisfy the mortgage of record. If applicable, the mortgagee shall
request that the Commissioner cancel the credit instrument and deliver
it to the borrower and satisfy the mortgage of record.
(g) Sale of the acquired property. (1) Upon acquisition of the
property by foreclosure or deed in lieu of foreclosure, the mortgagee
shall take possession of, preserve and repair the property and shall
make diligent efforts to sell the property within six months from the
date the mortgagee acquired the property, or such additional time as
provided by the Commissioner. The mortgagee shall sell the property for
an amount not less than the appraised value (as provided under
paragraph (b) of this section) unless the mortgagee does not file an
application for insurance benefits or written permission is obtained
from the Commissioner authorizing a sale at a lower price.
(2) Repairs shall not exceed those required by local law, or the
requirements of the Commissioner or the Secretary of Veterans Affairs
if the sale of the property is financed with a mortgage insured by the
Commissioner or guaranteed, insured or taken by the Secretary of
Veterans Affairs. No other repairs shall be made without the specific
advance approval of the Commissioner.
(3) The mortgagee shall not enter into a contract for the
preservation, repair or sale of the property with any officer,
employee, or owner of ten percent or more interest in the mortgagee or
with any other person or organization having
[[Page 31815]]
an identity of interest with the mortgagee or with any relative of such
officer, employee, owner or person.
Sec. 206.127 Application for insurance benefits.
(a) Mortgagee acquires title. (1) The mortgagee shall apply for the
payment of the insurance benefits within 30 days after the sale of the
property by the mortgagee or within such additional time as approved by
the Commissioner. Application shall be made by notifying the
Commissioner of the sale of the property, the sale price, and income
and expenses incurred in connection with the acquisition, repair and
sale of the property.
(2) If the property will not be sold within six months from the
date the mortgagee acquired title, the mortgagee shall, at least 15
days prior to the expiration of the six month period, have the property
appraised. Within 30 days of receipt of the appraisal, the mortgagee
shall apply for the insurance benefits as provided in paragraph (a) of
this section, substituting the appraised value for the sale price. The
mortgagee may add the cost of the appraisal to the claim amount.
(b) Party other than the mortgagee acquires title. The mortgagee
shall apply for the payment of the insurance benefits within 30 days
after a party other than the mortgagee acquires title to the property.
Application shall be made by notifying the Commissioner of the sale of
the property and the sale price. Transferring a portfolio that includes
REO properties to another entity does not constitute a ``sale'' under
this section.
(c) Mortgagee assigns the mortgage. The mortgagee shall file its
claim for the payment of the insurance benefits within 15 days after
the date the mortgage is assigned for record to the Commissioner. The
application for the payment of the insurance benefits shall include the
items listed in Sec. 206.135(a) and the certification required under
Sec. 206.136.
(d) Contract of insurance not terminated. Mortgagees may only file
an application for insurance benefits provided the contract of
insurance has not terminated.
Sec. 206.129 Payment of claim.
(a) General. If the claim for the payment of the insurance benefits
is acceptable to the Commissioner, payment shall be made in cash in the
amount determined under this section.
(b) Limit on claim amount. (1) For HECMs assigned Case Numbers
prior to [insert effective date of final rule], in no case may the
claim paid under this subpart exceed the maximum claim amount. The
interest allowance provided in paragraphs (d)(3)(x), (e)(2) and
(f)(2)(i) of this section shall not be included in determining the
limit on the claim amount.
(2) For HECMs assigned Case Numbers on or after [insert effective
date of final rule], in no case may the claim paid under this subpart
exceed the maximum claim amount, as defined in Sec. 206.3. The
interest allowance provided in paragraphs (d)(3)(x), (e)(2) and
(f)(2)(ii) of this section shall be made in cash in the amount
determined under this section.
(c) Shared appreciation mortgages. The terms loan balance and
accrued interest as used in this section do not include interest
attributable to the mortgagee's share of the appreciated value of the
property.
(d) Amount of payment--mortgagee acquires title or is unsuccessful
bidder. This paragraph describes the amount of payment if the mortgagee
acquires title by purchase, foreclosure, or deed in lieu of
foreclosure, or when a party other than the mortgagee is the successful
bidder at the foreclosure sale.
(1) Due date means the date when the mortgagee notifies or should
have notified the Commissioner that the mortgage is due and payable
under the conditions stated in the mortgage, as required by Sec.
206.27(c)(1) or the date that the Deferral Period, as provided for in
the mortgage by Sec. 206.27(c)(3), ends; or the date the Commissioner
approved a due and payable request as provided for in the mortgage by
Sec. 206.27(c)(2).
(2) The amount of the claim shall be computed by:
(i) Totaling the outstanding loan balance and any accrued interest
and servicing fees which have not been added to the outstanding loan
balance as of the due date, and allowances for items set forth in
paragraph (d)(3) of this section; and
(ii) Subtracting from that total the amount for which the property
was sold (or the appraised value determined under Sec. 206.127(a)(2))
and the items set forth in paragraph (d)(4) of this section.
(3) The claim shall include items listed in paragraphs (d)(2)(i)
through (xiv) of this section. For HECMs with Case Numbers assigned on
or after [insert effective date of final rule], the inclusion of items
listed in paragraphs (d)(2)(i), (ii), and (iii) of this section shall
be limited to two years of advances made by the mortgagee on such
expenses. The Commissioner may approve an extension of the two-year
limitation under such circumstances, terms, and conditions determined
and specified as acceptable to the Commissioner.
(i) Taxes, ground rents, water rates, and utility charges that are
liens prior to the mortgage;
(ii) Special assessments, which are noted on the application for
insurance or which become liens after the insurance of the mortgage;
(iii) Hazard and flood insurance premiums on the mortgaged property
not in excess of a reasonable rate;
(A) For purposes of this section, reasonable rate means a rate that
is not in excess of the rate or advisory rate set by the principal
State-licensed rating organization for essential property insurance in
the voluntary market, or if coverage is available under a FAIR Plan,
the FAIR Plan rate;
(B) If a State has neither a FAIR Plan nor a State-licensed rating
organization for essential property insurance in the voluntary market,
the mortgagee must provide to the Home Ownership Center (HOC) having
jurisdiction, information concerning the lowest rates available from an
insurer for the types of coverage involved, with a request for a
determination of whether the rate is reasonable. FHA will determine the
rate to be reasonable if it approximates the rate assessed for
comparable insurance coverage applicable to similarly situated
properties in a State that offers a FAIR Plan or maintains a State-
licensed rating organization;
(iv) Taxes imposed upon any deeds or other instruments by which
said property was acquired by the mortgagee pursuant to Sec. 206.125;
(v) Reasonable payments made by the mortgagee, with the approval of
the Commissioner, for the purpose of protecting, operating, or
preserving the property, or removing debris from the property;
(vi) Reasonable costs for performing property inspections required
by Sec. 206.140 and to determine if the property is vacant or
abandoned are considered to be costs of protecting, operating or
preserving the property;
(vii) Charges for the administration, operation, maintenance, or
repair of community-owned property or the maintenance or repair of the
mortgaged property, paid by the mortgagee for the purpose of
discharging an obligation arising out of a covenant filed for record
prior to the issuance of the mortgage; and charges for the repair or
maintenance of the mortgaged property required by, and in an amount
approved by, the Commissioner under Sec. 206.142;
(viii) Reasonable costs of the title search ordered by the
mortgagee, in accordance with procedures prescribed by FHA, to
determine if the criteria for
[[Page 31816]]
approval of the mortgagee's acceptance of a deed in lieu of foreclosure
or to determine clear title to complete a pre-foreclosure sale;
(ix) Foreclosure costs or costs of acquiring the property in
accordance with such conditions as the Commissioner shall prescribe;
(x) An amount equal to the interest allowance which would have been
earned, from the due date to the date when payment of the claim is
made, if the claim had been paid in debentures, except that when the
mortgagee fails to meet any one of the applicable requirements of
Sec. Sec. 206.125 and 206.127 of this subpart within the specified
time, and in a manner satisfactory to the Commissioner (or within such
further time as the Commissioner may approve in writing), the interest
allowance in such cash payment shall be computed only to the date on
which the particular required action should have been taken or to which
it was extended.
(A) Debenture interest rate. The debenture interest rate provided
for in Sec. 206.146 shall be used.
(B) Maturity of debentures. Debentures shall mature 20 years from
the date of issue.
(C) Registration of debentures. Debentures shall be registered as
to principal and interest.
(D) Form and amounts of debentures. Debentures issued under this
part shall be in such form and amounts; and shall be subject to such
term and conditions; and shall include such provisions for redemption,
if any, as may be prescribed by the Commissioner, with the approval of
the Secretary of the Treasury; and may be in book entry or certificated
registered form, or such other form as the Commissioner by regulation
may prescribe.
(E) Redemption of debentures. Debentures shall, at the option of
the Commissioner and with the approval of the Secretary of the
Treasury, be redeemable at par plus accrued interest on any semiannual
interest payment date on three months' notice of redemption given in
such manner as the Commissioner shall prescribe. The debenture interest
on the debentures called for redemption shall cease on the semiannual
interest payment date designated in the call notice. The Commissioner
may include with the notice of redemption an offer to purchase the
debentures at par plus accrued interest at any time during the period
between the notice of redemption and the redemption date. If the
debentures are purchased by the Commissioner after such call and prior
to the named redemption date, the debenture interest shall cease on the
date of purchase.
(F) Issue date of debentures. The issue date of debentures is
determined by the due date as defined in paragraph (d)(1) of this
section.
(G) Cash adjustment. Any difference of less than $50 between the
amount of debentures to be issued to the mortgagee and the total amount
of the mortgagee's claim, as approved by the Commissioner, may be
adjusted by the issuance of a check in payment thereof;
(xi) Any amount of incentive paid by the mortgagee in accordance
with Sec. 206.125(f)(1)(ii);
(xii) Costs of any appraisal under Sec. Sec. 206.125 or 206.127,
provided that the property was appraised after the mortgage became due
and payable and that the mortgagee is not otherwise reimbursed for such
costs;
(xiii) Reasonable payments made by the mortgagee for:
(A) Preservation and maintenance of the property;
(B) Repairs necessary to meet the objectives of the property
standards required for mortgages insured by the Commissioner, those
required by local law, and such additional repairs as may be
specifically approved in advance by the Commissioner; and
(C) Expenses in connection with the sale of the property including
a sales commission at the rate customarily paid in the community and,
if the sale to the buyer involves a mortgage insured by the
Commissioner or guaranteed by the Secretary of Veterans Affairs, a
discount at a rate not to exceed the maximum allowable by the
Commissioner, as of the date of execution of the discounted loan; and
(xiv) A certification that the property is undamaged in accordance
with Sec. 206.143.
(4) There shall be deducted from the amount computed in paragraph
(d)(2)(i) of this section:
(i) The items listed in Sec. 206.145; and
(ii) Any adjustment for damage or neglect to the property pursuant
to Sec. Sec. 206.140, 206.141, and 206.142.
(e) Amount of payment--assigned mortgages. This paragraph describes
the amount of payment if the mortgagee assigns a mortgage to the
Commissioner under Sec. 206.107(a)(1) or Sec. 206.121(b).
(1) When a mortgagee assigns a mortgage which is eligible for
assignment under Sec. 206.107(a)(1), the amount of payment shall be
computed by subtracting from the outstanding loan balance on the date
of assignment all cash retained by the mortgagee, including amounts
held or deposited for the account of the borrower or to which it is
entitled under the mortgage transaction that have not been applied in
reduction of the principal mortgage indebtedness, and any adjustments
for damage or neglect to the property pursuant to Sec. Sec. 206.140,
206.141 and 206.142.
(2) The claim shall also include:
(i) Reimbursement for such costs and attorney's fees as the
Commissioner finds were properly incurred in connection with the
assignment of the mortgage to the Commissioner; and
(ii) An amount equivalent to the interest allowance which will have
been earned from the date the mortgage was assigned to the Commissioner
to the date the claim is paid, if the claim had been paid in
debentures, except that if the mortgagee fails to meet any of the
requirements of Sec. 206.127(c), or Sec. 206.131 if applicable,
within the specified time and in a manner satisfactory to the
Commissioner (or within such further time as the Commissioner may
approve in writing), the interest allowance in the payment of the claim
shall be computed only to the date on which the particular required
action should have been taken or to which it was extended. The
provisions of paragraphs (d)(3)(x)(A)-(G) of this section pertaining to
debentures are applicable except that the issue date of the debentures
shall be the date the mortgage was assigned to the Commissioner.
(3) When a mortgagee assigns a mortgage under Sec. 206.121(b)
after demand by the Commissioner, the mortgagee will not receive the
entire claim payment as contained in paragraphs (e)(1) and (2) of this
section. The amount of the claim shall be computed by totaling the
payments made by the mortgagee to the borrower or for the benefit of
the borrower, and subtracting from the total the cash retained by the
mortgagee, including amounts held or deposited for the account of the
borrower or to which it is entitled under the mortgage transaction that
have not been applied in reduction of the principal mortgage
indebtedness, and any adjustments for damage or neglect to the property
pursuant to Sec. Sec. 206.141 and 206.142. The claim shall also be
reduced by an amount determined by the Commissioner to reimburse the
Commissioner for administrative expenses incurred in assuming the
mortgagee's responsibility under the mortgage, which may include
expenses for staff time. If more than one mortgage is assigned to the
Commissioner, the administrative expenses incurred for all the
mortgages assigned shall be allocated among the mortgages as determined
by the Commissioner. The
[[Page 31817]]
claim shall not include accrued interest whether or not it has been
included in the loan balance.
(f) Amount of payment-borrower sells the property. This paragraph
describes the amount of payment if the property is sold in accordance
with Sec. 206.125(c) to one other than the mortgagee for less than the
outstanding loan balance, and the mortgagee releases the mortgage to
facilitate the sale.
(1)(i) For HECMs assigned Case Numbers prior to [insert effective
date of final rule], the amount of the claim shall be computed by
totaling the outstanding loan balance and any accrued interest and
servicing fees which have not been added to the outstanding loan
balance on the date the deed is recorded, and an allowance for items
set forth in paragraph (d)(3)(i)-(vii) and (d)(3)(xi) of this section,
and subtracting from the total the amount for which the property was
sold.
(ii) For HECMs assigned Case Numbers on or after [insert effective
date of final rule], the following provisions apply.
(A) When the loan is not in due and payable status. The amount of
the claim shall be computed by totaling the outstanding loan balance
and any accrued interest and servicing fees which have not been added
to the outstanding loan balance on the date the deed is recorded, and
an allowance for items set forth in paragraph (d)(3)(xiii)(C) of this
section, and subtracting from the total the amount for which the
property was sold.
(B) When the loan is in due and payable status. The amount of the
claim shall be computed by totaling the outstanding loan balance and
any accrued interest and servicing fees which have not been added to
the outstanding loan balance as of the due date, the items set forth in
paragraph (d)(3) of this section, and subtracting from the total the
amount for which the property was sold.
(2)(i) For HECMs assigned Case Numbers prior to [insert effective
date of final rule], the claim shall also include an amount equivalent
to the interest allowance which would have been earned from the date
the deed is recorded to the date when payment of the claim is made, if
the claim had been paid in debentures, and in a manner satisfactory to
the Commissioner; the interest allowance in such cash payment shall be
computed only to the date on which the particular action should have
been taken or to which it was extended. The provisions of paragraphs
(d)(3)(x)(A)-(G) of this section pertaining to debentures apply except
that the issue date of the debentures is the date the deed is recorded
instead of the due date.
(ii) For HECMs assigned Case Numbers on or after [insert effective
date of final rule], the following provisions apply:
(A) When the loan is not in due and payable status. The claim shall
also include an amount equivalent to the interest allowance which would
have been earned from the date the deed is recorded to the date when
payment of the claim is made, if the claim had been paid in debentures,
and in a manner satisfactory to the Commissioner; the interest
allowance in such cash payment shall be computed only to the date on
which the particular action should have been taken or to which it was
extended. The provisions of paragraphs (d)(3)(x)(A)-(G) of this section
pertaining to debentures apply except that the issue date of the
debentures shall be the date the deed is recorded.
(B) When the loan is in due and payable status. The claim shall
also include an amount equivalent to the interest allowance which would
have been earned from the due date to the date when payment of the
claim is made, if the claim had been paid in debentures, except that
when the mortgagee fails to meet any of the applicable requirements of
Sec. Sec. 206.125 and 206.127 within the specified time determined by
the due date, as defined in paragraph (d)(1) of this section (or within
such further time as the Commissioner may approve in writing), and in a
manner satisfactory to the Commissioner; the interest allowance in such
cash payment shall be computed only to the date on which the particular
action should have been taken or to which it was extended. The
provisions of paragraphs (d)(3)(x)(A)-(G) of this section pertaining to
debentures apply.
Condominiums
Sec. 206.131 Contract rights and obligations for mortgages on
individual dwelling units in a condominium.
(a) Additional requirements. The requirements of this subpart shall
be applicable to mortgages on individual dwelling units in a
condominium, except as modified by this section.
(b) References. The term property as used in this subpart shall be
construed to include the individual dwelling unit and the undivided
interest in the common areas and facilities as may be designated.
(c) Assignment of the mortgage. If the mortgagee assigns the
mortgage on the individual dwelling unit to the Commissioner, the
mortgagee shall certify:
(1) To any changes in the plan of apartment ownership including the
administration of the property;
(2) That as of the date the assignment is filed for record, the
family unit is assessed and subject to assessment for taxes pertaining
only to that unit; and
(3) To the condition of the property as of the date the assignment
is filed for record. Section 234.275 of this chapter concerning the
certification of condition is incorporated by reference.
(d) Condition of the multifamily structure. The provisions of Sec.
234.270 (a) and (b) of this chapter concerning the condition of the
multifamily structure in which the property is located shall be
applicable to mortgages insured under this part which are assigned to
the Commissioner.
Termination of Insurance Contract
Sec. 206.133 Termination of insurance contract.
(a) Payment of the mortgage. The contract of insurance shall be
terminated if the mortgage is paid in full.
(b) Acquisition of title. (1) If the mortgagee or a party other
than the mortgagee acquires title at a foreclosure sale, or the
mortgagee acquires title by a deed in lieu of foreclosure, and the
mortgagee notifies the Commissioner that a claim for the payment of the
insurance benefits will not be presented, the contract of insurance
shall be terminated.
(2) For HECMs with Case Numbers assigned on or after [insert
effective date of final rule], if the mortgagee or a party other than
the mortgagee acquires title at a foreclosure sale or the mortgagee
acquires title by a deed in lieu of foreclosure and a claim for the
payment of the insurance benefits will be presented, the contract of
insurance shall be terminated as of claim payment.
(c) Mortgagee fails to make payments. If the mortgagee fails to
make the payments to the borrower as required under the mortgage, and
does not reimburse the Commissioner or assign the mortgage to the
Commissioner within 30 days from the demand by the Commissioner for
reimbursement or assignment, the contract of insurance shall
automatically terminate. The Commissioner may later reinstate the
contract of insurance, which shall continue in force as if no
termination had occurred, upon reimbursement with interest as provided
in Sec. 206.121. Upon reinstatement, the mortgagee shall be liable for
all MIP which would have been due if no termination had occurred,
including late charge and interest as provided in Sec. 206.113.
[[Page 31818]]
(d) Notice of termination. The mortgagee shall give written notice
to the Commissioner, or other notice acceptable to the Commissioner,
within 15 days of the occurrence of an event under paragraphs (a) and
(b) of this section. No contract of insurance shall be terminated under
paragraphs (a) or (b) of this section unless such notice is given.
(e) Voluntary termination. The borrower and the mortgagee may
jointly request the Commissioner to approve the voluntary termination
of the mortgage insurance contract. Prior to approval, the Commissioner
shall make certain that the borrower is aware of the consequences which
could arise out of the voluntary termination of the contract of
insurance. The mortgagee shall cancel the insurance endorsement on the
Mortgage Insurance Certificate or Note upon receipt of notice from the
Commissioner that the contract of insurance is terminated.
Notwithstanding any provision in a mortgage instrument, there shall be
no voluntary termination charge due the Commissioner on account of the
voluntary termination of any mortgage insurance contract where the
request for termination is received by the Commissioner.
(f) Effect of termination. When the insurance contract is
terminated all rights of the mortgagee shall terminate, including the
right to file a claim for insurance benefits. All obligations of the
Commissioner shall also cease immediately.
Additional Requirements
Sec. 206.134 Partial release, addition or substitution of security.
(a) A mortgagee shall not release the security or any part thereof,
while the mortgage is insured, without the prior consent of the
Commissioner.
(b) A mortgagee may, with the prior consent of the Commissioner,
accept an addition to, or substitution of, security for the purpose of
removing the dwelling to a new lot or replacing the dwelling with a
similar or like kind on the existing lot under the following
conditions:
(1) The mortgagee obtains a good and valid first lien on the
property to which the dwelling is removed or the existing lot upon
which the dwelling is rebuilt;
(2) All damages to the structure are repaired or all rebuilding of
the structure is completed without cost to FHA; and
(3) The property to which the dwelling is removed or rebuilt is in
an area known to be reasonably free from natural hazards or, if in a
flood zone, the borrower will insure or reinsure under the National
Flood Insurance Program.
(c) A mortgagee may, without the prior consent of the Commissioner,
accept an addition to, or substitution of, security for the purpose of
removing the dwelling to a new lot under the following conditions:
(1) The dwelling has survived an earthquake or other disaster with
little damage, but continued location on the property might be
hazardous;
(2) The conditions stated in paragraph (b) of this section exist;
and
(3) Immediately following the emergency removal the mortgagee
notifies the Commissioner of the reasons for removal.
Sec. 206.135 Application for insurance benefits and fiscal data.
(a) On the date the application for assignment is filed, the
mortgagee shall submit to the Commissioner:
(1) Credit and security instrument. The original credit and
security instruments assigned without recourse or warranty, except that
no act or omission of the mortgagee shall have impaired the validity
and priority of the mortgage.
(2) Proposed assignment instrument. A copy of the proposed
assignment of mortgage.
(3) Hazard and flood insurance. All hazard and flood insurance (if
applicable) policies held in connection with the mortgaged property,
together with a copy of the mortgagee's notification to the carrier
authorizing the amendment of the loss payable clause substituting the
Commissioner as the mortgagee.
(4) Rights and interests. An assignment of all rights and interests
arising under the mortgage, and all claims of the mortgagee against the
borrower or others arising out of the mortgage transaction.
(5) Property. All property of the borrower held by the mortgagee or
to which it is entitled (other than the cash items which are to be
retained by the mortgagee).
(6) Records and accounts. All records, ledger cards, documents,
books, papers and accounts relating to the mortgage transaction.
(7) Additional information. Any additional information or data
which the Commissioner may require.
(8) Title evidence. All title evidence held by the mortgagee. It
need not be extended to include the recordation of the assignment. The
title insurance policy shall be endorsed from the mortgage insurance
company up to the point of assignment. At the point of assignment, the
Commissioner shall be named insured under such policy.
(b) All documents required in paragraph (a) of this section must be
submitted and approved before a claim for assignment may be submitted.
(c) Recorded assignment instrument. The original of the recorded
assignment of mortgage shall be forwarded to the Commissioner as soon
as received by the mortgagee, but in no case shall it be longer than 12
months after recordation. If the original of the assignment is not
available, a copy shall be furnished and the original forwarded as soon
as possible.
Sec. 206.136 Conditions for assignment.
(a) In order for a HECM to be eligible for assignment, the
following must be met:
(1) Priority of mortgage to liens. The mortgage is prior to all
mechanics' and materialmen's liens, homeowners association liens or
condo association liens filed of record, regardless of when such liens
attach, and prior to all liens and encumbrances, or defects which may
arise based on any act or omission by the mortgagee except such liens
or other matters as may have been approved by the Commissioner.
(2) Amount due. The amount stated in the instrument of assignment
is actually due and owing under the mortgage.
(3) Offsets or counterclaims. There are no offsets or counterclaims
thereto and the mortgagee has a good right to assign.
(b) The mortgagee shall certify that the conditions of paragraph
(a) have been met.
Sec. 206.137 Effect of noncompliance with regulations.
If, for any reason, the mortgagee fails to comply with the
regulations in this subpart, the Commissioner may hold processing of
the application for insurance benefits in abeyance for a reasonable
time in order to permit the mortgagee to comply. In the alternative to
holding processing in abeyance, the Commissioner may reconvey title to
the property or reassign the mortgage to the mortgagee, in which event
the application for insurance benefits shall be considered as cancelled
and the mortgagee shall refund the insurance benefits to the
Commissioner as well as other funds required by Sec. 206.138 of this
part. The mortgagee may reapply for insurance benefits at a subsequent
date; provided, however, that the mortgagee may not be reimbursed for
any expenses incurred in connection with the property after it has been
reconveyed or the mortgage reassigned by the Commissioner, or paid any
debenture interest accrued after the date of initial conveyance,
whichever is earlier, and there will be deducted from the
[[Page 31819]]
insurance benefits any reduction in the Commissioner's estimate of the
value of the property occurring from the time of reconveyance or
mortgage reassignment to the time of reapplication.
Sec. 206.138 Mortgagee's liability for certain expenditures.
Where the Commissioner accepts an assignment, acquires a property
after accepting an assignment of a mortgage, or otherwise pays a claim
for insurance benefits and thereafter it becomes necessary for the
Commissioner to either reconvey the property or reassign the mortgage
to the mortgagee due to the mortgagee's noncompliance with these
regulations, the mortgagee shall reimburse the Commissioner for all
expenses incurred in connection with such acquisition and reconveyance
or reassignment. The reimbursement shall include interest on the amount
of insurance benefits refunded by the mortgagee from the date the
insurance benefits were paid to the date of refund at an interest rate
set in conformity with the Treasury Fiscal Requirements Manual, and the
Commissioner's cost of holding the property or servicing the mortgage,
accruing on a daily basis, from the date of assignment or claim payment
to the date of reconveyance or reassignment. These costs are based on
the Commissioner's estimate of the taxes, maintenance and operating
expenses of the property, and administrative expenses. Appropriate
adjustments shall be made by the Commissioner on account of any income
received from the property.
Sec. 206.140 Inspection and preservation of properties.
The mortgagee, upon learning that a property subject to a mortgage
insured under this part is vacant or abandoned, shall be responsible
for the inspection of such property at least monthly, if the loan is in
a due and payable status. When a mortgage is in due and payable status
and efforts to reach the borrower or applicable party by telephone
within that period have been unsuccessful, the mortgagee shall be
responsible for a visual inspection of the security property to
determine whether the property is vacant. The mortgagee shall take
reasonable action to protect and preserve such security property when
it is determined or should have been determined to be vacant or
abandoned until assigned to the Commissioner or an application for
insurance benefits is filed, if such action does not constitute an
illegal trespass. ``Reasonable action'' includes the commencement of
foreclosure within the time required by Sec. 206.125.
Sec. 206.141 Property condition.
(a) Condition at time of transfer. When the mortgage is assigned to
the Commissioner or the property is sold by the mortgagee, the property
shall be undamaged by fire, earthquake, flood, or tornado, except as
set forth in this subpart.
(b) Damage to property by waste. The mortgagee shall not be liable
for damage to the property by waste committed by the borrower, its
heirs, successors or assigns in connection with mortgage insurance
claims.
(c) Mortgagee responsibility. The mortgagee shall be responsible
for:
(1) Damage by fire, flood, earthquake, hurricane, or tornado; and
(2) Damage to or destruction of security properties on which the
loans are in default and which properties are vacant or abandoned, when
such damage or destruction is due to the mortgagee's failure to take
reasonable action to inspect, protect and preserve such properties as
required by Sec. 206.140.
(d) Limitation. The mortgagee's responsibility for property damage
shall not exceed the amount of its insurance claim as to a particular
property.
Sec. 206.142 Adjustment for damage or neglect.
(a) Except as provided for in paragraphs (a)(1) and (a)(2) of this
section: if the property has been damaged by fire, flood, earthquake,
hurricane, or tornado, the damage must be repaired before assignment of
the mortgage to the Commissioner; if the property has suffered damage
because of the mortgagee's failure to take action as required by Sec.
206.140, the damage must be repaired before the mortgagee sells the
property.
(1) If the prior approval of the Commissioner is obtained, there
will be deducted from the insurance benefits the Commissioner's
estimate of the cost of repairing the damage or any insurance recovery
received by the mortgagee, whichever is greater.
(2) If the property has been damaged by fire and was not covered by
fire insurance at the time of the damage, or the amount of insurance
coverage was inadequate to repair fully the damage, only the amount of
insurance recovery received by the mortgagee, if any, will be deducted
from the insurance benefits, provided the mortgagee certifies, at the
time that a claim is filed for insurance benefits, that:
(i) At the time the mortgage was insured, the property was covered
by fire insurance in an amount at least equal to the lesser of 100
percent of the insurable value of the improvements, or the principal
loan balance of the mortgage;
(ii) The insurer later cancelled this coverage or refused to renew
it for reasons other than nonpayment of premium;
(iii) The mortgagee made diligent though unsuccessful efforts
within 30 days of any cancellation or non-renewal of hazard insurance,
and at least annually thereafter, to secure other coverage or coverage
under a FAIR Plan, in an amount described in paragraph (a)(2)(i) of
this section, or if coverage to such an extent was unavailable at a
reasonable rate, the greatest extent of coverage that was available at
a reasonable rate;
(iv) The extent of coverage obtained by the mortgagee in accordance
with paragraph (a)(2)(iii) of this section was the greatest available
at a reasonable rate, or if the mortgagee was unable to obtain
insurance, none was available at a reasonable rate; and
(v) The mortgagee took the actions required by Sec. 206.140.
(b) If the property has been damaged during the time of the
mortgagee's possession by events other than fire, flood, earthquake,
hurricane, or tornado, or if it was damaged notwithstanding reasonable
action by the mortgagee as required by Sec. 206.140, the mortgagee
must provide notice of such damage to the Commissioner and may not sell
the property until directed to do so by the Commissioner. The
Commissioner will either:
(1) Allow the mortgagee to sell the property damaged; or
(2) Require the mortgagee to repair the damage before sale, and the
Commissioner will reimburse the mortgagee for reasonable payments not
in excess of the Commissioner's estimate of the cost of repair, less
any insurance recovery.
Sec. 206.143 Certificate of property condition.
(a) The mortgagee shall certify that as of the date the mortgagee
sold the property in accordance with Sec. 206.125(g) or assignment of
the mortgage to the Commissioner, the property was:
(1) Undamaged by fire, flood, earthquake, hurricane or tornado; and
(2) Undamaged due to failure of the mortgagee to take action as
required by Sec. 206.140; and
(3) Undamaged while the property was in the possession of the
mortgagee.
(b) In the absence of evidence to the contrary, the mortgagee's
certificate or description of the damage shall be accepted by the
Commissioner as establishing the condition of the property, as of the
date of mortgagee
[[Page 31820]]
sale or assignment of the mortgage to the Commissioner.
Sec. 206.144 Final payment.
The mortgagee may not file any supplemental claims to its mortgage
insurance claim after six months from settlement by the Commissioner of
the claim payment except where the Commissioner determines it
appropriate and expressly authorizes an extension of time for
supplemental claim filings.
Sec. 206.145 Items deducted from payment.
(a) There shall be deducted from the total of the added items in
Sec. 206.129 the following cash items:
(1) All amounts received by the mortgagee on account of the
mortgage after the institution of foreclosure proceedings or the
acquisition of the property or otherwise after due and payable.
(2) All amounts received by the mortgagee from any source relating
to the property on account of rent or other income after deducting
reasonable expenses incurred in handling the property.
(3) All cash retained by the mortgagee including amounts held or
deposited for the account of the borrower or to which it is entitled
under the mortgage transaction that have not been applied in reduction
of the outstanding loan balance.
(4) With regard to claims filed pursuant to successful short sales,
all amounts received by the mortgagee relating to the sale of the
property.
(b) [Reserved]
Sec. 206.146 Debenture interest rate.
(a) Debentures shall bear interest from the date of issue, payable
semiannually on the first day of January and the first day of July of
each year at the rate in effect as of the day the commitment was
issued, or as of the date the mortgage was endorsed for insurance,
whichever rate is higher. For applications involving mortgages
originated under the single family Direct Endorsement program,
debentures shall bear interest from the date of issue, payable
semiannually on the first day of January and on the first day of July
of each year at the rate in effect as of the date the mortgage was
endorsed for insurance;
(b) For mortgages endorsed for insurance after January 23, 2004, if
an insurance claim is paid in cash, the debenture interest rate for
purposes of calculating such a claim shall be the monthly average
yield, for the month in which the default on the mortgage occurred, on
United States Treasury Securities adjusted to a constant maturity of 10
years.
Subpart D--Servicing Responsibilities
Sec. 206.201 Mortgage servicing generally; sanctions.
(a) General. This subpart identifies servicing practices that the
Commissioner considers acceptable mortgage servicing practices of
lending institutions servicing mortgages insured by the Commissioner.
Failure to comply with this subpart shall not be a basis for denial of
the insurance benefits, but a pattern of refusal or failure to comply
will be cause for withdrawal of FHA mortgagee approval.
(b) Importance of timely payments. The paramount servicing
responsibility is to make timely payments in full as required by the
mortgage. Any failure of a mortgagee to make all payments required by
the mortgage in a timely manner will be grounds for administrative
sanctions authorized by regulations, including 2 CFR part 2424
(Debarment, Suspension, and Limited Denial of Participation), and 24
CFR part 25 (Mortgagee Review Board).
(c) Responsibility for servicing. (1) Servicing of insured
mortgages must be performed by a mortgagee that is approved by FHA to
service insured mortgages. The servicer must fully discharge the
servicing responsibilities of the mortgagee as outlined in this part.
The mortgagee shall remain fully responsible to the Commissioner for
proper servicing, and the actions of its servicer shall be considered
to be the actions of the mortgagee. The servicer also shall be fully
responsible to the Commissioner for its actions as a servicer.
(2) Whenever servicing of any mortgage is transferred from one
mortgagee or servicer to another, notice of the transfer of service
shall be delivered:
(i) By the transferor mortgagee or servicer to the borrower. The
notification shall be delivered not less than 15 days before the
effective date of the transfer and shall contain the information
required in 12 CFR 1024.21(e)(2); and
(ii) By the transferee mortgagee or servicer:
(A) To the borrower. The notification shall be delivered not less
than 15 days before the effective date of the transfer and shall
contain the information required in 12 CFR 1024.21(e)(2); and
(B) To the Commissioner. This notification shall be delivered
within 15 days of the transfer, in a format prescribed by the
Commissioner.
Sec. 206.203 Providing information.
(a) Statements of account activity. The mortgagee shall provide to
the borrower a monthly statement regarding the activity of the mortgage
for each month, as well as for the calendar year. The statement shall
summarize the total principal amount which has been paid to the
borrower under the mortgage during that calendar year, the MIP paid to
the Commissioner and charged to the borrower, the total amount of
deferred interest added to the outstanding loan balance, the total
outstanding loan balance and the current principal limit. The mortgagee
shall include an accounting of all payments for property charges. The
statement shall be provided to the borrower monthly until the mortgage
is paid in full by the borrower. The mortgagee shall provide the
borrower with a new payment plan every time it recalculates monthly
payments or the payment option is changed. The statements shall be in a
format acceptable to the Commissioner.
(b) [Reserved]
(c) Servicing--Providing information. (1) Mortgagees shall provide
loan information to borrowers and arrange for individual loan
consultation on request. The mortgagee must establish written
procedures and controls to assure prompt responses to inquiries. One or
more of the following means of making information readily available to
borrowers is required:
(i) A servicing office staffed with competent personnel located
within 200 miles of the property, capable of providing timely responses
to requests for information. Complete records need not be maintained in
such an office if the staff is able to secure needed information and
pass it on to the borrower.
(ii) Toll-free telephone service at an office capable of providing
needed information.
(2)(i) All borrowers must be informed of and reminded annually of
the system available for obtaining answers to loan inquiries and the
office from which needed information may be obtained. Toll-free
telephone service need not be provided to a borrower other than at the
office designated to serve the borrower nor other than from the
immediate vicinity of the security property.
(ii) The mortgagee shall provide the borrower with the telephone
number where the borrower may speak to employee(s) specifically
designated by the mortgagee or its servicer to address inquiries
concerning mortgages insured under this part. Such information shall be
provided annually and whenever the servicer or the designated employee
(or employee group) changes.
(3) Mortgagees must respond to FHA requests for information
concerning individual accounts.
[[Page 31821]]
Sec. 206.205 Property charges.
(a) General. (1) The borrower shall be responsible for the payment
of the following property charges before or on the due date: Ground
rents, condominium fees, planned unit development fees, homeowners
association fees and all utilities.
(2) Payment of the following property charges are obligations of
the borrower and shall be made through the LESA, by the borrower, or by
the mortgagee, in accordance with paragraphs (b) through (e) of this
section on or before the due date: Property taxes, including any
special assessments levied by local or State law, hazard insurance
premiums, and applicable flood insurance premiums.
(b) Method of property charge payment. (1) LESA required. For fixed
or adjustable interest rate HECMs, based on the results of the
Financial Assessment, the mortgagee may require the borrower to have a
Fully-Funded LESA for the payment of property charges identified in
paragraph (a)(2) of this section. For adjustable interest rate HECMs,
based on the results of the Financial Assessment, the mortgagee may
require the borrower to have a Partially-Funded LESA for the payment of
property charges identified in paragraph (a)(2) of this section.
(2) LESA not required. If, based on the results of the Financial
Assessment, the mortgagee does not require the borrower to have a LESA,
the borrower shall elect one of the following at closing, whereby an
election of the option in paragraph (b)(2)(ii) or (iii) of this section
cannot be cancelled by the borrower:
(i) Borrower is responsible for the independent payment of all
property charges;
(ii) Borrower elects to have a Fully-Funded LESA for the payment of
property charges identified in paragraph (a)(2) of this section; or
(iii) For adjustable interest rate HECMs only, borrower elects to
have the mortgagee pay property charges listed in paragraph (a)(2) of
this section and ground rents which would have otherwise been required
to be paid by the borrower, in accordance with paragraph (d) of this
section.
(c) Life Expectancy Set Aside. (1) General. (i) For a Fully-Funded
LESA, the mortgagee shall:
(A) Make payments for property charges identified in paragraph
(a)(2) of this section before bills become delinquent and establish
controls to ensure that the information needed to pay such bills is
obtained on a timely basis;
(B) Make early payments to take advantage of a discount whenever it
is to the borrower's advantage;
(C) Not charge the borrower penalties for late payments for
property charges unless it can be shown that the penalty was the direct
result of the borrower's error or omission;
(D) Ensure that LESA funds are not held in an escrow account;
(E) Add payments for property charges to the outstanding loan
balance when the mortgagee disburses funds to the taxing authority or
insurance carrier; and
(F) Provide written notification to the borrower and FHA within 30
days of the mortgagee receiving notification that a property charge
payment is outstanding when there are no funds or insufficient funds
remaining in the LESA, and recommend that the borrower speak with a
HUD-Approved Housing Counselor.
(ii) For a Partially-Funded LESA, the mortgagee shall:
(A) Ensure that LESA funds are disbursed to the borrower semi-
annually;
(B) Establish controls to ensure the taxing authority, insurance
carrier, or both, received the borrower's payment;
(C) Ensure the LESA funds are not held in an escrow account;
(D) Add payments disbursed to the borrower for the payment of
property charges identified in paragraph (a)(2) to the outstanding loan
balance when the mortgagee disburses the funds; and
(E) Provide written notification to the borrower and FHA within 30
days of the mortgagee receiving notification that a property charge
payment is outstanding when there are no funds or insufficient funds
remaining in the LESA, and recommend that the borrower speak with a
HUD-Approved Housing Counselor.
(2) Calculation of property charges. (i) The projected cost of
property charges that will be required over the life expectancy of the
youngest borrower shall be calculated based on a formula established by
the Commissioner.
(ii) The mortgagee shall not require any LESA to be funded in
excess of the projected cost of property charges.
(iii) For a Fully-Funded LESA, the amount withheld from the
mortgage proceeds shall equal the projected cost of property charges.
(iv) For a Partially-Funded LESA, the amount withheld from the
mortgage proceeds is based on a calculation of the gap in residual
income and may not exceed the projected cost of property charges.
(v) Mortgagees shall use the HECM Financial Assessment and Property
Charge Guide, or subsequent guide issued by the Commissioner, to
determine whether a LESA is required; view the formula for calculating
the projected costs of property charges; and view the formulas for
calculating the Fully- and Partially-Funded LESA amounts.
(3) Annual analysis of LESA. Mortgagees shall perform an annual
analysis of the LESA to determine whether the funds are sufficient to
make required distributions for the next year. If funds are exhausted
or there is an insufficient balance determination, the mortgagee shall
notify the borrower, in writing and within 15 calendar days of the
annual analysis of the determination, that LESA funds are exhausted or
insufficient and the borrower will be responsible for the payment of
property charges.
(4) Non-payment of property charges--(i) Fully-Funded LESA for an
adjustable interest rate HECM with no remaining funds. (A) If the LESA
is exhausted and the borrower fails to make property charge payments,
the mortgagee shall use any available principal limit to pay the
outstanding property charge amount in full and charge the borrower's
account.
(B) The mortgagee shall provide the borrower with a written
notification within 30 days of the mortgagee receiving notification
that a property charge payment is outstanding. The borrower shall have
30 days to respond to the mortgagee to explain the circumstances which
resulted in the non-payment.
(C) If there is no available principal limit from which the
mortgagee can pay the property charge amount in full, and the borrower
fails to pay the property charges, the mortgage will become due and
payable under Sec. 206.27(c)(2).
(ii) Fully-Funded LESA for a fixed interest rate HECM with no
remaining funds. If the LESA is exhausted and the borrower fails to
make property charge payments, the mortgage will become due and payable
under Sec. 206.27(c)(2).
(iii) Partially-Funded LESA with remaining funds. If funds remain
in the LESA and the borrower fails to make property charge payments,
the mortgagee shall:
(A) Immediately suspend future semi-annual payments to the borrower
from the Partially-Funded LESA, although scheduled and unscheduled
payments from the borrower's payment option may continue;
(B) Disburse funds from the Partially-Funded LESA to pay the full
amount owed for the past due property charge; and
[[Page 31822]]
(C) Provide written notification to the borrower, within 30 days of
the mortgagee receiving notification that a property charge payment is
outstanding, that funds were advanced from the Partially-Funded LESA to
pay the outstanding property charge. The borrower shall have 30 days to
respond to the mortgagee to explain the circumstances which resulted in
the non-payment.
(iv) Partially-Funded LESA with no remaining funds. (A) If the LESA
is exhausted and the borrower fails to make property charge payments
when due, the mortgagee shall use any funds available in the principal
limit to pay the outstanding property charge amount in full and charge
the borrower's account.
(B) The mortgagee shall provide written notification to the
borrower within 30 days of the mortgagee receiving notification that a
property charge payment is outstanding. The borrower shall have 30 days
to respond to the mortgagee to explain the circumstances which resulted
in the non-payment.
(C) If there is no available principal limit from which the
mortgagee can pay the property charge amount in full, and the borrower
fails to pay the property charges, the mortgage will become due and
payable under Sec. 206.27(c)(2).
(5) Unused LESA funds. During a Deferral Period or when one of the
events listed in Sec. 206.27(c)(1) or (c)(2) have occurred, no unused
funds from the LESA shall be disbursed.
(6) Assignment of mortgage to the Commissioner. If the insured
first mortgage is assigned to the Commissioner, or if payments are made
through the second mortgage under the Demand Assignment process, the
Commissioner is not required to assume the responsibility for property
charge payments, but may continue to administer payments for property
charges for a borrower with a Fully-Funded LESA or semi-annual
disbursements to a borrower with a Partially-Funded LESA to the extent
that there are any funds available in the LESA. For adjustable interest
rate HECMs, if the LESA has a positive remaining balance but funds are
insufficient to pay all property charges due or semi-annual
disbursements to the borrower, the Commissioner may provide the
remaining funds to the borrower as a line of credit.
(d) Borrower elects to have mortgagee pay property charges. If,
based on the results of the Financial Assessment, the mortgagee does
not require the borrower to have a LESA, for adjustable interest rate
HECMs, the borrower may elect at closing to require the mortgagee to
pay property charges identified in paragraph (a)(2) of this section and
ground rents by withholding funds from monthly payments due to the
borrower or by charging such funds to a line of credit. This voluntary
election to have funds withheld by the mortgagee to pay property
charges cannot be canceled by the borrower at any time. If the sum of
the outstanding loan balance and any unused set aside for repairs and
servicing charges has reached the principal limit or the HECM proceeds
are otherwise insufficient to pay the property charges, the borrower
shall pay such property charges, even though the borrower elected
payment to be made by the mortgagee.
(1) Assignment of mortgage to the Commissioner. If the insured
first mortgage is assigned to the Commissioner under Sec.
206.107(a)(1) or Sec. 206.121(b), or if payments are made through the
second mortgage under Sec. 206.121(c), the Commissioner is not
required to assume the mortgagee's responsibility under paragraph (d)
of this section, despite the election by the borrower.
(2) Mortgagee's responsibilities. (i) Funds withheld from payments
due to the borrower for property charges under paragraph (d) of this
section shall not be paid into an escrow account. When property charges
are actually paid, the mortgagee may add the amount paid to the
outstanding loan balance.
(ii) It is the mortgagee's responsibility to make disbursements for
property charges before bills become delinquent. Mortgagees shall
establish controls to ensure that the information needed to pay such
bills is obtained on a timely basis. Penalties for late payments for
property charges must not be charged to the borrower unless it can be
shown that the penalty was the direct result of the borrower's error or
omission. Early payment of a bill to take advantage of a discount
should be made whenever it is to the borrower's benefit.
(iii) Not later than the end of the second loan year the mortgagee
shall establish a system for the periodic analysis of the amounts
withheld from monthly payments. The analysis shall be performed at
least once a year thereafter. The amount shall be adjusted, after
analysis, to provide sufficient available funds to make anticipated
disbursements during the ensuing year. The borrower shall be given at
least ten days' notice of adjustment in the amount of withholding and
an adequate explanation of the reasons for any change. When the amount
withheld is analyzed in accordance with this paragraph, any surplus
shall be paid to the borrower and added to the outstanding loan
balance. Any shortage shall be corrected through increasing the monthly
withholding as provided in paragraph (d)(2)(iv) of this section. If
amounts withheld are insufficient to pay a property charge before it is
delinquent, and the borrower could request a payment equal to the
shortage under Sec. 206.26(b), then the mortgagee shall pay the full
property charge and treat payment of the shortage as a payment
requested by the borrower under Sec. 206.26(b).
(iv) The mortgagee's estimate of withholding amount shall be based
on the best information available as to probable payments which will be
required to be made for property charges in the coming year. If actual
disbursements during the preceding year are used as the basis, the
resulting estimate may deviate from those disbursements by as much as
ten percent. The mortgagee may not require withholding in excess of the
current estimated total annual requirement, unless expressly requested
by the borrower. Each monthly withholding for property charges shall
equal one-twelfth of the annual amounts as reasonably estimated by the
mortgagee.
(e) Borrower elects to pay property charges. (1) If, based on the
results of the Financial Assessment, the mortgagee does not require the
borrower to have a LESA, the borrower may elect to be responsible for
the independent payment of all property charges and shall pay all
property charges in a timely manner and shall provide evidence of
payment to the mortgagee as required in the mortgage.
(2) Failure to pay property charges. If the borrower fails to pay
the property charges in a timely manner, and has not elected to have
the mortgagee make the payments in accordance with paragraph (d) of
this section:
(i) The mortgagee may make the payment for the borrower and charge
the borrower's account if there are available funds from which the
mortgagee may make payment. If a pattern of missed payments occurs, the
mortgagee may establish procedures to pay the property charges from the
borrower's funds as if the borrower elected to have the mortgagee pay
the property charges under this section.
(ii) The mortgagee shall provide a written notification to the
borrower and notify the Commissioner that an obligation of the mortgage
has not been performed within 30 days of the mortgagee receiving
notification of a missed payment when there are no available HECM funds
from which the
[[Page 31823]]
mortgagee may make payment. The borrower shall have 30 days to respond
to the mortgagee to explain the circumstances which resulted in the
non-payment. The mortgagee may provide any permissible loss mitigation
made available by the Commissioner through notice. If the borrower is
unable or unwilling to repay the mortgagee for any funds advanced by
the mortgagee to pay property charges outside of a LESA, the mortgagee
shall submit a due and payable request under the provisions of Sec.
206.27(c)(2).
Sec. 206.207 Allowable charges and fees after endorsement.
(a) Reasonable and customary charges. The mortgagee may collect
reasonable and customary charges and fees from the borrower after
insurance endorsement, only to the extent that the mortgagee is not
reimbursed for such fees by FHA, by adding them to the outstanding loan
balance, but only for: Items listed in paragraph (a)(1) of this
section; items authorized by the Commissioner under paragraph (a)(2) of
this section, or as provided at Sec. 206.26(b)(1)(iii); or charges and
fees related to additional documents described in Sec. 206.27(b)(10)
and related title search costs.
(1)(i) Charges for substitution of a hazard insurance policy at
other than the expiration of term of the existing hazard insurance
policy;
(ii) Attorney's and trustee's fees and expenses actually incurred
(including the cost of appraisals and cost of advertising) when a case
has been referred for foreclosure in accordance with the provisions of
this part after a firm decision to foreclose if foreclosure is not
completed because of a reinstatement of the account (no attorney's fee
may be charged for the services of the mortgagee's or servicer's staff
attorney or for the services of a collection attorney other than the
attorney handling the foreclosure);
(iii) A trustee's fee if the security instrument in deed-of-trust
states provides for payment of such a fee for execution of a
satisfactory, release, or trustee's deed when the deed of trust is paid
in full;
(iv) Where permitted by the security instrument, attorney's fees
and expenses actually incurred in the defense of any suit or legal
proceeding wherein the mortgagee shall be made a party thereto by
reason of the mortgage (no attorney's fee may be charged for the
services of the mortgagee's or servicer's staff attorney); and
(v) Property preservation expenses incurred pursuant to Sec.
206.140.
(2) Such other reasonable and customary charges as may be
authorized by the Commissioner, but which shall not include:
(i) Charges for servicing activities of the mortgagee or servicer;
(ii) Fees charged by independent tax servicer organizations which
contract to furnish data and information necessary for the payment of
property taxes;
(iii) Satisfaction, termination, or reconveyance fees when a
mortgage is paid in full (other than as provided in paragraph
(a)(1)(iii) of this section); or
(iv) The fee for recordation of a satisfaction of the mortgage in
states where recordation is the responsibility of the mortgagee.
(b) Servicing charges. (1) If the following conditions are met, the
mortgagee may include a servicing charge in the mortgage Note rate,
starting with the month of loan closing and continuing through the life
of the loan, including any applicable Deferral Period:
(i) The charge is authorized by the Commissioner;
(ii) The charge is selected by the mortgagee;
(iii) The charge is within the range established by the
Commissioner, which shall be set, through notice, in an amount which
shall be between 36 and 150 basis points. The Commissioner may, through
a Federal Register notice for comment, extend the range of permissible
charges below 36 basis points and above 150 basis points; and
(iv) The charge is disclosed as required by Sec. 206.43 to the
borrower in a manner acceptable to the Commissioner at the time the
mortgagee provides the borrower with a loan application; or
(2) If the following conditions are met, the mortgagee may collect,
starting with the month of loan closing and continuing through any
applicable Deferral Period, a fixed monthly charge for servicing
activities of the mortgagee or servicer:
(i) The charge is authorized by the Commissioner;
(ii) The charge is disclosed as required by Sec. 206.43 to the
borrower in a manner acceptable to the Commissioner at the time the
mortgagee provides the borrower with a loan application;
(iii) Amounts to pay the charge are set aside as a portion of the
principal limit in accordance with Sec. 206.19(f)(3); and
(iv) The charge is payable only from the Servicing Fee Set Aside.
Sec. 206.209 Prepayment.
(a) No charge or penalty. The borrower may repay a mortgage in full
or prepay a mortgage in part without charge or penalty at any time,
regardless of any limitations on repayment or prepayment stated in a
mortgage.
(b) Insurance and condemnation proceeds. If insurance or
condemnation proceeds are paid to the mortgagee, the principal limit
and the outstanding loan balance shall be reduced by the amount of the
proceeds not applied to restoration or repair of the damaged property.
(c) Funds received from a partial prepayment shall be applied in
accordance with the Note.
Sec. 206.211 Determination of principal residence and contact
information.
(a) Annual certification. At least once during each calendar year,
the mortgagee shall verify the contact information for the borrower(s)
and determine whether or not the property is the principal residence of
at least one borrower. The mortgagee shall require each borrower to
make an annual certification of his or her contact information and
principal residence. As part of the annual certification, the borrower
may designate a point of contact to receive copies of the notifications
from the mortgagee, and who the mortgagee may contact if the borrower
is unwilling or unable to reply to requests from the mortgagee. The
mortgagee may rely on the certification unless it has information
indicating that the certification may be false.
(b) Requirements when an Eligible Non-Borrowing Spouse exists.
Where an Eligible Non-Borrowing Spouse has been identified, the
mortgagee shall obtain an additional annual certification from the
borrower confirming the Eligible Non-Borrowing Spouse remains his or
her spouse and the Eligible Non-Borrowing Spouse continues to reside in
the property as his or her principal residence.
(1) Death of borrower with Eligible Non-Borrowing Spouse. If a
borrower with an Eligible Non-Borrowing Spouse has died, the mortgagee
shall obtain the annual certification in paragraph (a) of this section
from the Eligible Non-Borrowing Spouse. For purposes of this paragraph,
the term ``Eligible Non-Borrowing Spouse'' shall replace the term
``borrower'' in paragraph (a) of this section.
(2) Failure of previously Eligible Non-Borrowing Spouse to reside
in the property as his or her principal residence. If a Non-Borrowing
Spouse fails to reside in the property as his or her principal
residence, the Non-Borrowing Spouse becomes an Ineligible Non-Borrowing
Spouse and the deferral of due and payable status that would
[[Page 31824]]
prevent the displacement of an Eligible Non-Borrowing Spouse will no
longer be in effect. Once this occurs, the Eligible Non-Borrowing
Spouse annual certifications are no longer required to be obtained.
Subpart E--HECM Counselor Roster
Sec. 206.300 General.
This subpart provides for the establishment of the HECM Counselor
Roster (Roster) and sets forth the requirements for the operation of
the HECM Counselor Roster.
Sec. 206.302 Establishment of the HECM Counselor Roster.
(a) HECM Counselor Roster. FHA maintains a Roster of HECM
counselors. Only counselors listed on the Roster and employed by a
participating agency are approved to provide HECM counseling. A
prospective borrower applying for a HECM loan to be insured by FHA must
receive the required HECM counseling from one of the counselors on the
Roster.
(b) Disclaimer. The inclusion of a HECM counselor on the Roster
does not create or imply a warranty or endorsement by FHA of the listed
counselor to a prospective HECM borrower or to any other organization
or individual, nor does it represent a warranty of any counseling
provided by the listed HECM counselor. The inclusion of a counselor on
the Roster means that a listed counselor has met the FHA-prescribed
qualifications and conditions for inclusion on the Roster and that the
counselor is approved to provide HECM counseling by telephone or face-
to-face.
Sec. 206.304 Eligibility for placement on the HECM Counselor Roster.
(a) Application. To be considered for placement on the Roster, a
housing counselor must apply to FHA in a form and in a manner
prescribed by the Commissioner.
(b) Eligibility. FHA will approve an application for placement on
the Roster if the application demonstrates that the housing counselor:
(1) Is employed by a HUD-approved housing counseling agency or an
affiliate of a HUD-approved intermediary or State housing finance
agency;
(2) Successfully passed a standardized HECM counseling exam
administered by FHA, or a party selected by FHA, within the last 3
years. In order to maintain eligibility, a HECM counselor must
successfully pass a standardized HECM counseling exam every 3 years;
(3) Received training and education related to HECMs within the
prior 2 years;
(4) Has access to and is supported by technology that enables FHA
to track the results of the counseling offered to each loan applicant,
e.g., what action(s), if any, did the client take after receiving the
HECM counseling; and
(5) Is not listed on:
(i) The General Services Administration's Suspension and Debarment
List;
(ii) HUD's Limited Denial of Participation List; or
(iii) HUD's Credit Alert Interactive Response System.
Sec. 206.306 Removal from the HECM Counselor Roster.
(a) General. FHA reserves the right to remove a HECM counselor from
the Roster, in accordance with this section.
(b) Cause for removal. Cause for removal of a HECM counselor from
the Roster includes, but is not limited to:
(1) Failure to comply with the education and training requirements
of Sec. 206.308;
(2) Failure to respond within a reasonable time to HUD inquiries or
requests for documentation;
(3) Misrepresentation or fraudulent statements;
(4) Promotion, representation, or recommendation of any specific
mortgagee;
(5) Failure to comply with applicable fair housing and civil rights
requirements;
(6) Failure to comply with applicable statutes and regulations;
(7) Failure to comply with applicable statutory counseling
requirements found at subsection 255(f) of the National Housing Act,
which include, but are not limited to, providing information about:
Options other than a HECM, the financial implications of entering into
a HECM, the tax consequences of a HECM, and any other information that
HUD or the applicant may request;
(8) Failure to maintain any registration, license, or certification
requirements of a State or local authority;
(9) Unsatisfactory performance in providing counseling to HECM loan
applicants. FHA may determine that a HECM counselor's performance is
unsatisfactory based on a review of counseling files or other
monitoring activities, or if the counselor fails to employ the minimum
competencies, as measured by the FHA-administered HECM counseling exam;
or
(10) For any other reason HUD determines to be so serious as to
justify an administrative sanction.
(c) Automatic removal from HECM Counselor Roster for failure to
maintain required State or local licensure. A HECM counselor who is
required to maintain a State or local registration, license, or
certification and whose registration or certification is revoked,
suspended, or surrendered will be automatically suspended from the
Roster until FHA receives evidence demonstrating that the local- or
State-imposed sanction has been lifted.
(d) Removal procedure. Except as provided in paragraph (c) of this
section, the following procedures apply to removal of a HECM counselor
from the Roster.
(1) FHA will give the HECM counselor written notice of the proposed
removal. The notice will state the reasons for and the duration of the
proposed removal.
(2) The HECM counselor will have 30 days from the date of receipt
of the notice (or such time as described in the notice, but in no event
less than a period of 30 days) to submit a written appeal of the
proposed removal, along with a written request for a conference.
(3) An FHA official will review the appeal and render a response
affirming, modifying, or canceling the removal. The FHA official will
not be a person who was involved in FHA's initial removal decision. FHA
will respond with a decision within 30 days after the date of receiving
the appeal or, if the HECM counselor has requested a conference, within
30 days after the conference was held. FHA may extend the 30-day period
by providing written notice to the counselor.
(4) If the HECM counselor does not submit a timely written
response, the removal will be effective 31 days after the date of FHA's
initial removal notice (or after the period provided in the notice, if
longer than 30 days). If a written response is submitted, and the
removal decision is affirmed or modified, the removal will be effective
on the date of FHA's notice affirming or modifying the initial removal
decision.
(e) Maximum time period of removal. The maximum time period for
removal from the Roster is 12 months from the effective date of removal
for all removed counselors. A counselor who has been removed must apply
for reinstatement on the Roster.
(f) Placement on the Roster after removal. A counselor who has been
removed from the Roster must apply for reinstatement on the Roster (in
accordance with Sec. 206.304) after the period of the counselor's
removal from the Roster has expired. FHA may require the counselor to
retake and pass the HECM exam for reinstatement when
[[Page 31825]]
the reason for removal from the Roster was particularly egregious.
Typically, the counselor will not be required to take and pass the HECM
exam; however, FHA must be ensured by the counselor that the HECM
counseling requirements are understood and will be followed. An
application from a counselor for reinstatement on the Roster will be
rejected if the period of the counselor's removal from the Roster has
not expired.
(g) Voluntary removal. A HECM counselor will be removed from the
Roster upon FHA's receipt of a written request from the counselor.
(h) Other action. Nothing in this section prohibits HUD from taking
such other action against a HECM counselor or from seeking any other
remedy against a counselor available to HUD by statute or other
authority.
Sec. 206.308 Continuing education requirements of counselors listed
on the HECM Counselor Roster.
A HECM counselor listed on the Roster must receive, on a continuing
basis, training, education, and technical assistance related to HECMs.
The HECM counselor must maintain evidence of the successful completion
of such continuing education, and such evidence must be made available
to FHA upon request. FHA will consider a HECM counselor's successful
completion of a HECM course no less than once every 2 years as
satisfying the requirements of this section.
Dated: April 19, 2016.
Edward L. Golding,
Principal Deputy, Assistant Secretary for Housing.
[FR Doc. 2016-11631 Filed 5-18-16; 8:45 am]
BILLING CODE 4210-67-P