Property Assessed Clean Energy (PACE) Program, 2736-2740 [2020-00655]

Download as PDF 2736 Federal Register / Vol. 85, No. 11 / Thursday, January 16, 2020 / Notices DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. RM16–17–000] Data Collection for Analytics and Surveillance and Market-Based Rate Purposes; Notice Providing Update on Market-Based Rate Database On July 18, 2019, the Commission issued a final rule in Docket No. RM16– 17–000 that, among other things, adopted a proposal to collect marketbased rate information through a relational database (MBR Database).1 The final rule indicated that: khammond on DSKJM1Z7X2PROD with NOTICES After issuance of this final rule, documentation for the relational database will be posted to the Commission’s website, including XML, XSD, the MBR Data Dictionary, and a test environment user guide. Additionally, after issuance of this final rule, a basic relational database test environment will be available to submitters and software developers. The Commission intends to add to the new test environment features on a prioritized, scheduled basis until complete. We note that the Commission will inform the public of when releases will be made publicly available. This will allow internal and external development to occur contemporaneously as new features are made available for outside testing.2 Consistent with the final rule, please be advised that updated versions of the XML, XSD, and MBR Data Dictionary are available on the Commission’s website. Additionally, please be advised that the test environment for the MBR Database is now available and can be accessed on the MBR Database web page. At launch, this test environment will be available to users that are eRegistered with the Commission. eRegistered users will be able to submit test XML submissions into the database, as well as create FERC generated IDs (GID) and Asset IDs. Please note that this is a test environment and that all submissions into the database— specifically XMLs and all created GIDs and Asset IDs—will not be part of the official record and will be cleared from the database before it officially goes live. Further, as indicated in the final rule, the Commission intends to add features to this test environment periodically until complete.3 Interested parties can obtain notice of these new features by monitoring the market-based rate page on the Commission’s website. The 1 Data Collection for Analytics and Surveillance and Market-Based Rate Purposes, Order No. 860, 168 FERC 61,039 (2019). 2 Id. P 309. 3 Id. VerDate Sep<11>2014 17:49 Jan 15, 2020 Jkt 250001 Commission will issue an additional notice prior to clearing the database shortly before the database goes live. Lastly, please be advised that Company Registration has been updated to reflect MBR as a filing type. Unlike GIDs and Asset IDs, any updates to Company Registration will remain permanent. Entities that will need to make submissions to the database (i.e., all entities that have market-based rate authority) must include MBR as a filing type and assign account managers to make the submissions. For more information about the MBR Database, please send an email to MBRDatabase@ferc.gov. Dated: January 10, 2020. Kimberly D. Bose, Secretary. [FR Doc. 2020–00622 Filed 1–15–20; 8:45 am] BILLING CODE 6717–01–P FEDERAL HOUSING FINANCE AGENCY [No. 2020–N–1] Property Assessed Clean Energy (PACE) Program AGENCY: Federal Housing Finance Agency. ACTION: Notice and Request for Input. The Federal Housing Finance Agency (FHFA), as regulator for Fannie Mae and Freddie Mac as well as the Federal Home Loan Banks, seeks public input on residential energy retrofitting programs financed through special state legislation enabling a ‘‘super-priority lien’’ over existing and subsequent first mortgages. In particular, FHFA seeks input on potential changes to its policies for its regulated entities based on safety and soundness concerns. These state programs, termed Property Assessed Clean Energy or PACE, address residential properties and commercial applications. FHFA’s primary focus is on residential PACE programs in this Request for Input (RFI). DATES: Written input must be received by March 16, 2020. ADDRESSES: You may submit your response on the Notice identified by ‘‘PACE Request for Input, Notice No. 2020–N–1,’’ by any one of the following methods: • Agency Website: www.fhfa.gov/ open-for-comment-or-input. • Federal eRulemaking Portal: https:// www.regulations.gov. Follow the instructions for submitting input. If you submit your response to the Federal eRulemaking Portal, please also send it SUMMARY: PO 00000 Frm 00044 Fmt 4703 Sfmt 4703 by email to FHFA at RegComments@ fhfa.gov to ensure timely receipt by the agency. • Mail/Hand Delivery: Federal Housing Finance Agency, Eighth Floor, 400 Seventh Street SW, Washington, DC 20219, ATTENTION: ‘‘PACE Request for Input, Notice No. 2020–N–1.’’ FHFA will post all public responses received without change, including any personal information you provide, such as your name and address, email address, and telephone number, on the FHFA website at https://www.fhfa.gov. In addition, copies of all responses received will be available for examination by the public through the electronic docket for this Notice also located on the FHFA website. FOR FURTHER INFORMATION CONTACT: Alfred M. Pollard, General Counsel, Alfred.Pollard@fhfa.gov, (202) 649–3050 (this is not a toll-free number), Federal Housing Finance Agency, 400 Seventh Street SW, Washington, DC 20219. The Telecommunications Device for the Deaf is (800) 877–8339. SUPPLEMENTARY INFORMATION: Request for Input A. PACE Programs The Federal Housing Finance Agency (FHFA), as regulator for Fannie Mae and Freddie Mac (the Enterprises) as well as the Federal Home Loan Banks, seeks public input on residential energy retrofitting programs financed through special state legislation enabling a ‘‘super-priority lien’’ over existing and subsequent first mortgages. In particular, FHFA seeks input on potential changes to its policies for its regulated entities based on safety and soundness concerns. These state programs, termed Property Assessed Clean Energy or PACE, address residential properties and commercial applications. FHFA’s primary focus is on residential PACE programs in this Request for Input (RFI). These state initiatives authorize counties, municipalities and other government entities to create a financing scheme with, in the majority of cases, private parties administering the home energy retrofit programs. The programs lend to consumers for defined products and services and approved contractors. To attract private capital, the loans impose a tax assessment on the property so that the loan is repaid under a locality’s taxing structure to the benefit of bond holders or lenders. This assures priority status over any first lien mortgage at any tax sale or foreclosure sale. PACE is not traditional second mortgage or home equity lending. E:\FR\FM\16JAN1.SGM 16JAN1 khammond on DSKJM1Z7X2PROD with NOTICES Federal Register / Vol. 85, No. 11 / Thursday, January 16, 2020 / Notices Each PACE lending program was created to attract private investors to provide funds for loans for energy retrofits. Unlike normal secured home improvement financing, the PACE program seeks to secure a super-priority first lien over all other lien holders on a property through a governmental property tax lien. As the financing concept provides that the lien, associated with the PACE loan, ‘‘runs’’ with the property, this proves attractive to investors who provide PACE program funding. With a super-priority lien position, the risk of investor loss becomes very small as that lien has priority over pre-existing first mortgages and has the possibility of continuing to run with the property to a subsequent purchaser. This investor opportunity comes at the expense of existing lien holders, who have not had the ability to consent or not consent to the new lien and unexpectedly bear a new risk of loss that did not exist at the time the mortgage was originated. As a tax-related assessment, the PACE loan is fundamentally asset-based lending that ‘‘runs with the land.’’ This means a purchaser of a home with an existing PACE loan assumes the outstanding obligation and any unpaid or delinquent amounts. Despite the benefit of highest priority lien position, interest rates charged to borrowers for PACE are typically substantially higher than for a first-lien mortgage. Purchasers may not wish to acquire such obligations where the PACE interest rate is higher than their purchase loan rate or the improvements are out of date or in need of repair. State laws provide for localities to collect administrative fees of up to 10 percent of the loan amount usually added to the loan amount, and for lending amounts tied not to borrower’s ‘‘ability to repay,’’ but to the property and its assessment up to 15 percent of the assessed value. The holder of such a lien may move for foreclosure on the property or the tax administrator may do so and recover the unpaid amount of the PACE loan; other parties recover what remains. Such loans are not recorded in local land records but in tax records and may bear a denomination other than PACE such as an abbreviated PACE program name. Such tax records usually list the amount of the loan and the amount paid, but do not provide distinctions on principal and interest. They are not part of ordinary mortgage record searches. Some PACE programs claim that PACE loans do not affect debt-to-income (DTI) ratios, an important benchmark for consumers and lenders. The Enterprises require lenders to include homeowner property tax payments that would VerDate Sep<11>2014 17:49 Jan 15, 2020 Jkt 250001 include PACE assessments as a component of the loan applicant’s present or future housing expense to calculate DTI for loan eligibility. Unavailable data on DTI may permit a homeowner to incur more debt with lenders unaware of the PACE obligation due to a lack of DTI information or potentially inaccurate credit scores. Because PACE loans are not recorded in land records but in tax rolls, often with varying names or descriptions, they are difficult to identify in title searches. Finally, PACE programs lack uniformity and may differ in every community within a state, making it challenging for lenders to evaluate the implications for individual homeowners or home purchasers. B. FHFA, Financial Regulators and Super-Priority Liens In 2010, FHFA, the Office of the Comptroller of the Currency (OCC), the National Credit Union Administration and the Federal Deposit Insurance Corporation highlighted the risks attendant to PACE lending.1 Fundamentally, the priming of a first mortgage was and remains the central issue. FHFA directed Fannie Mae and Freddie Mac not to purchase or refinance mortgages with PACE liens and reserved other potential actions. The Federal Home Loan Banks were alerted to the need for vigilance in accepting collateral for advances that may have PACE liens attached. FHFA determinations regarding residential PACE loan programs have been upheld in three Circuit Court decisions.2 In 2014, FHFA re-stated its concerns regarding PACE and other ‘‘lienpriming’’ programs.3 In its public statement of December 22, 2014, FHFA summarized that— The existence of these super-priority liens increases the risk of losses to taxpayers. Fannie Mae and Freddie Mac, while 1 For example, in OCC’s Supervisory Guidance, OCC 2010–25 (July 6, 2010) at https://www.occ.gov/ news-issuances/bulletins/2010/bulletin-201025.html, the OCC emphasized that beside loans, banks investing in mortgage backed securities should take into account PACE programs in their asset valuations and to consider the impact of PACE programs on their institutions and the markets when making any decision on ‘‘associated bond underwriting.’’ Overall, OCC indicated it considered programs that failed to ‘‘observe existing lien preference’’ to pose ‘‘significant regulatory and safety and soundness concerns.’’ 2 See County of Sonoma v. FHFA, 710 F.3d 987 (9th Cir. 2013); Leon County v. FHFA, 700 F.3d 1273 (11th Cir. 2012); and Town of Babylon v. FHFA, 699 F.3d 221 (2nd Cir. 2012) (appeal of consolidated cases, after granting of motions to dismiss in the Southern and Eastern Districts of New York). 3 https://www.fhfa.gov/Media/PublicAffairs/ Pages/Statement-of-the-Federal-Housing-FinanceAgency-on-Certain-Super-Priority-Liens.aspx. PO 00000 Frm 00045 Fmt 4703 Sfmt 4703 2737 operating in conservatorship, currently support the housing finance market by purchasing, guaranteeing, and securitizing single-family mortgages. One of the bedrock principles in this process is that the mortgages supported by Fannie Mae and Freddie Mac must remain in first-lien position, meaning that they have first priority in receiving the proceeds from selling a house in foreclosure. As a result, any lien from a loan added after origination should not be able to jump in line ahead of a Fannie Mae or Freddie Mac mortgage to collect the proceeds of the sale of a foreclosed property. Enterprise programs support the ability of a borrower to purchase a home and the Enterprise mortgage is recorded in first-lien position. A PACE loan is only available to someone who owns a home. In the vast majority of cases, home ownership is obtained by a mortgage loan in which a lender has placed a substantial amount of capital at risk. For the Enterprises, this means up to $510,400 or, in high cost areas, up to $765,600 to provide homeownership opportunities. Accordingly, the Enterprises require that the mortgage loans they purchase remain in a firstlien position for the life of the loan.4 Also, the congressional charters for the Enterprises require borrowers to have at least 20 percent equity in a home or an approved form of credit enhancement, such as mortgage insurance, to address the risk of nonpayment. A municipality providing ‘‘super-priority’’ lien status for a PACE loan can erode—partially or completely—that 20 percent equity cushion, as required by statute, and place either the homeowner or a regulated entity, or both, at substantial risk. PACE programs present a threat to the quality and stability of large amounts of Enterprise loans. According to Fannie Mae and Freddie Mac, in mid-2019 in California and Florida, the two most active residential PACE jurisdictions, the Enterprises had over 5.4 million loans with unpaid principal balances of approximately $1.18 trillion. These bear a risk of impairment by super-priority PACE loans that the Enterprises clearly stated in their loan instruments must be avoided. Further, these loans, that ‘‘run with the land,’’ impair the foreclosure process when that is an unavoidable outcome to the benefit of PACE investors. Consumer issues have surrounded the PACE programs from their inception. These include the cost of funding, contractor sales techniques (notably, responding to a limited homeowner 4 Enterprise loans are packaged into mortgage backed securities and purchased by investors which supports housing finance; investors rely on the underlying loan pool in making their purchases. E:\FR\FM\16JAN1.SGM 16JAN1 2738 Federal Register / Vol. 85, No. 11 / Thursday, January 16, 2020 / Notices khammond on DSKJM1Z7X2PROD with NOTICES problem and marketing a full house retrofit), rolling the administrative fees for the county into the PACE loan amount, product sales at above market interest rates, workmanship issues, inadequate disclosures and indiscriminate lending regardless of ability to repay.5 Consumer protections at the state level for PACE lending are uneven and in some instances nonexistent. Multiple reports exist of pressure on homeowners with PACE liens to pay off the PACE loans in order to sell their homes, either to permit the purchaser to secure financing or because the purchaser does not want to be saddled with a loan with an interest rate that can be double the rate of a new mortgage.6 Borrower demands for pay offs have occurred independent of positions taken by FHFA. Recognizing consumer issues, Congress in 2018 enacted amendments to the Truth in Lending Act to require federal regulation when PACE loans are made to assure more effective consumer protections, focused on ability to repay requirements. The law did not mandate that such properties impacted by such loans serve as collateral for mortgage loans made, purchased or authorized by any primary or secondary market participant. The Consumer Financial Protection Bureau was entrusted with implementing this law by regulation.7 5 California enacted into law AB 1284 (California Financing Law) in 2017. The California Department of Business Oversight offered two opportunities for public input in November 30, 2017 and April 19, 2018 regarding its rulemaking under the law for licensure, program administration, consumer related provisions and cost benefit analysis of its rules. See https://www.dbo.ca.gov/Licensees/PACE/. Materials presented to the legislature and to the California Department of Business Operations provide significant information of consumer problems relating to PACE, including descriptions of individual consumer issues with PACE administrators and their contractors and with the impact on selling their homes. As well, information on the effectiveness of individual products and how quickly homeowners receive benefits in excess of the loan payments (on higher cost loans) have been questioned and led to federal legislation on disclosure requirements. Additionally, real estate professionals have commented on the problems of selling homes with PACE liens. 6 Id. Consumer advocacy groups have highlighted, along with repeated newspaper reports, that this dilemma exists for homeowners with PACE liens. Consumer complaints involving PACE loans on a range of complaints have been detailed; see, for example, National Consumer Law Center, Residential Property Assessed Clean Energy Loans: The Perils of Easy Money for Clean Energy Improvements (September 2017), pp. 5–17. 7 Public Law 115–174 (2018), section 307; codified at 15 U.S.C. 1639c(b)(3)(C). Also, Bureau of Consumer Financial Protection, Advance Notice of Proposed Rulemaking on Residential Property Assessed Clean Energy Financing, 84 FR 8479 (March 8, 2019). VerDate Sep<11>2014 17:49 Jan 15, 2020 Jkt 250001 C. Financing Energy Retrofitting FHFA and other federal regulators support financing for residential energy retrofitting, where appropriate, and, in many instances, that an actual consumer benefit exists as documented by an energy saving report. Such lending, by regulated financial institutions, is undertaken with strict attention to ability to repay rules, safety and soundness prescriptions and other elements of the robust range of federal and state consumer protection provisions. Properly underwritten loans provide sustainable interest rates, consider the financial position of a homeowner and provide mortgage makers and mortgage investors a reliable product for purchase. At the same time PACE financing encumbers the foreclosure process with an obligation that ‘‘runs with the land’’ where normal foreclosure ends claims against the property. The Department of Housing and Urban Development (HUD) has taken initial steps to address some of the same concerns described above. On December 7, 2017, HUD issued a Mortgagee Letter announcing that the Federal Housing Administration (FHA) will no longer insure new mortgages on properties that include PACE assessments, citing concerns about the potential for increased losses to the Mutual Mortgage Insurance Fund (MMI Fund) due to the priority lien status given to such assessments.8 Despite restricting FHA insurance for properties already encumbered by PACE assessments, nothing prevents a FHAinsured borrower from acquiring a PACE loan in the future. HUD considers PACE assessments as potentially dangerous to the MMI Fund and, further, placing these assessments on FHA-insured properties postendorsement creates a lack of transparency making it difficult for the agency to understand the true nature of the risks involved.9 HUD has indicated that it is unknown how many existing FHA borrowers have taken out PACE loans and has expressed concern that FHA is not in a first lien position.10 Allowing PACE assessments to essentially subordinate the FHA-insured mortgage creates a default under the 8 U.S. Dep’t of Hous. and Urban Dev., Mortgagee Letter 2017–18 (Dec. 7, 2017). 9 Press Release, U.S. Dep’t of Hous. and Urban Dev., FHA to Halt Insuring Mortgages on Homes with PACE Assessments (Dec. 7, 2017) https:// archives.hud.gov/news/2017/pr17-111.cfm. 10 An Examination of the Federal Housing Administration and Its Impact on Homeownership in America: Hearing Before the Subcomm. on Hous., Cmty Dev., and Ins. Of the H. Comm. on Fin. Serv., 116th Cong. (Dec. 5, 2019). PO 00000 Frm 00046 Fmt 4703 Sfmt 4703 mortgage and is particularly problematic for HUD and FHA as the MMI Fund is exposed to unmeasurable risk. D. Actions by the Federal Housing Finance Agency The continuation of PACE programs and their adverse impact merits review for potential modification by FHFA of its safety and soundness and prudential standard directions to its regulated entities. In its 2010 statement on PACE programs and in its directions to Fannie Mae and Freddie Mac, FHFA indicated that the Enterprises could undertake certain actions, including but not limited to, adjusting loan-to-value ratios to reflect the maximum permissible PACE loan amounts available to borrowers in jurisdictions with PACE program, requiring in loan agreements that a PACE loan may only be made in relation to an Enterprise purchased mortgage with the consent of the Enterprise, tightening debt-to-income ratios to account for additional borrower obligations associated with PACE loans and such other actions as would be appropriate. The Federal Home Loan Banks were advised to consider their acceptance of collateral that might be affected by PACE loans as a prudent safety and soundness practice. The most direct action taken was by the Enterprises issuing bulletins and updates to their seller-servicer guides to indicate the Enterprises would not make or refinance a mortgage loan for a property encumbered by a PACE lien.11 This Request for Input asks for public comment on enhancing the actions to be taken regarding PACE liens in light of their continued threat to first lien mortgages and to homeowners and home purchasers from the lien priming effects of PACE loans.12 Such actions 11 Fannie Mae Selling Guide (May 1, 2019), Lender Letter (September 18, 2009), and announcements (February 27, 2018; December 1, 2010; August 31, 2010): https:// www.fanniemae.com/content/guide/selling/b5/3.4/ 01.html, https://www.fanniemae.com/content/ announcement/ll0709.pdf, https:// www.fanniemae.com/content/announcement/ sel1802.pdf, https://www.fanniemae.com/content/ announcement/sel1016.pdf, https:// www.fanniemae.com/content/announcement/ sel1012.pdf. Freddie Mac Single-Family Seller/Servicer Guide (May 1, 2019), Freddie Mac Single-Family Refinancing and Energy Retrofit Programs page, Selling Guide Bulletin (August 24, 2016), Lender Letter (August 20, 2014): https:// guide.freddiemac.com/app/guide/section/4301.4, https://sf.freddiemac.com/general/refinancing-andenergy-retrofit-programs, https:// guide.freddiemac.com/app/guide/bulletin/2016-16. 12 In certain related cases, focused mainly but not exclusively on conservatorship authorities, courts have made clear that both Enterprise guides and actions by FHFA regarding PACE are appropriate E:\FR\FM\16JAN1.SGM 16JAN1 Federal Register / Vol. 85, No. 11 / Thursday, January 16, 2020 / Notices khammond on DSKJM1Z7X2PROD with NOTICES are founded on FHFA’s regulatory authorities relating to safety and soundness and the prudential authorities enunciated in the Housing and Economic Recovery Act of 2008.13 FHFA, therefore, asks for public input on the following questions: 1. Should FHFA direct the Enterprises to decrease loan-to-value ratios for all new loan purchases in states or in communities where PACE loans are available? By how much should available loan-to-value ratios be reduced to address the increased risk of such liens being placed on the property and what related implications would result from such actions? Should loan-to-value (LTV) ratios be reduced for all loan purchases sufficient to take into account the maximum amount of a PACE financing available in that community? Should potential future increases in permitted percentage of available PACE financing-to-assessed value be considered? 2. Should FHFA direct the Enterprises to increase their Loan Level Price Adjustments (LLPAs) or require other credit enhancements for mortgage loans or re-financings in communities with available PACE financing? What increased levels would be appropriate for such LLPAs in light of the risks of PACE financing posed to the Enterprises? 3. Should FHFA consider other actions regarding Enterprise purchase or servicing requirements in jurisdictions with PACE programs? 4. Should FHFA establish safety and soundness standards for the Federal Home Loan Banks to accept as eligible advance collateral mortgage loans in communities where PACE loans are available? How might those standards best address the increased risk of such collateral? Should such standards be in line with actions that FHFA would undertake for the Enterprises, recognizing the difference in business structures between the Enterprises and the Banks? and preemptive of state authorities, including state taxing authorities. See e.g., Berezovsky v. Moniz, 869 F.3d 923 (9th Cir. 201) (HOA priority liens); FHFA v. City of Chicago, 962 F.Supp.2d 1044 (N.D.Ill. 2013) (local regulation of property maintenance preempted by FHFA action under HERA); and Commonwealth of Mass. v. FHFA, 54 F.Supp.3d 94 (D.Mass. 2014) (even if conservatorship not in place, court ruled that federal law preempts state law that are in ‘‘irreconcilable conflict’’ with federal statute and that applied to state housing statute at issue in case). 13 12 U.S.C. 4513b provides FHFA should establish for its regulated entities, by regulation or guidelines, standards related inter alia to management of market risk and credit risk, management of asset growth and such other operational and management standards as the Director determines to be appropriate. VerDate Sep<11>2014 17:49 Jan 15, 2020 Jkt 250001 5. How might the Enterprises best gather or receive information on their existing guaranteed or owned mortgage loan portfolios to understand which loans have PACE liens and in what amount? Should mortgage loan servicers be required to gather and report such information to the Enterprises on a periodic basis? What would the costs and implications be of such a requirement? 6. Would it be most effective for states that authorize PACE programs to require a registry of PACE lending so that information currently only held by PACE vendors or local tax rolls could be available and maintained on an ongoing basis? 14 What data should be included in such a registry? What access would be permitted while protecting consumer privacy? Should a federal agency provide for such a registry? What minimum information would be available to allow credit reporting agencies to include PACE obligations in credit reports obtained in connection with mortgage origination or servicing? 7. Should servicers of mortgage loans for the Enterprises provide an annual or more frequent notice to existing borrowers in PACE-eligible communities informing them that, under the terms of their mortgage, PACE liens are not permitted? Should borrowers be informed of the difficulties that may arise in selling or refinancing their home when a PACE lien has been placed on their property? What other information, if any, should be provided by servicers to borrowers with regard to PACE liens? Should borrowers in PACE jurisdictions be required to execute any additional agreements or certifications in connection with mortgages for the Enterprises, Home Loan Banks or FHA guaranteeing the borrowers will not accept PACE financing for energy efficiency improvements? 8. The Consumer Financial Protection Bureau published and received comment on an Advanced Notice of Proposed Rulemaking on disclosures under the Truth in Lending Act, as required by section 307 of the Economic Growth, Regulatory Relief and Consumer Protection Act, Public Law 115–174 (2018). The ANPR addresses, in line with the statute, TILA sections relating to ability to repay requirements 14 California enacted in AB 2063, Section 13 (2018) discretionary authority for the California Division of Business Organizations to require establishment of a ‘‘real-time registry or data base system for tracking PACE assessments . . . [which may include] features for providing or obtaining information about a property’s status with regard to PACE assessments placed on [a] property, whether recorded or not.’’ PO 00000 Frm 00047 Fmt 4703 Sfmt 4703 2739 and to application of civil money penalty provisions for TILA violations. FHFA seeks input on matters beyond the scope of the statutory and regulatory provisions addressed by the CFPB. For example, do consumers face issues regarding the tax treatment of PACE loan payments and reporting to consumers of deductible versus nondeductible expenses? Are there consumer impacts from PACE liens on title searches? What impacts might arise where local governments use structures such as an unelected Joint Powers Authority that limit government responsibility for PACE program administration? What options exist for a homeowner who can no longer afford to repay a PACE lien, such as a tax deferral by the taxing authority? What issues arise from the use of approved contractor lists and the impact on costs, contractor regulation, and recourse for consumers for defective equipment? What issues may arise from notification practices regarding PACE liens at time of property sales and other issues that align with or expand on consumer related concerns raised by the CFPB? 9. What information regarding experiences under programs of the Department of Housing and Urban Development relating to PACE may be relevant for consideration by FHFA in its evaluation of public input? Where PACE programs create super-priority liens, should loan products issued or guaranteed by the government, such as Federal Housing Administration mortgage insurance, consider adjustments such as risk based mortgage insurance premiums or limits on partial or assignment claims or the availability or terms of modifications allowable? Should government programs, such as those of FHA, contemplate further limiting the availability of mortgage insurance in PACE jurisdictions for forwards, HECMS or both? Are there improvements that government programs could undertake, such as FHA increasing utilization of its ‘‘green’’ insured mortgages or its Section 203(k) rehabilitation mortgage insurance program to avoid the risks associated with PACE programs? E. Responses FHFA invites responses on all aspects of this Request for input. Respondents should identify by number the question each of their comments addresses. Copies of all responses will be posted without change, including any personal information you provide, such as your name and address, email address, and telephone number, on the FHFA website at https://www.fhfa.gov. Copies of all responses received will be available for E:\FR\FM\16JAN1.SGM 16JAN1 2740 Federal Register / Vol. 85, No. 11 / Thursday, January 16, 2020 / Notices examination by the public through the electronic docket for this Notice also located on the FHFA website. In responding to these questions, respondents should provide their viewpoints as to the implications of such actions, the cost to business or to the public of such actions, benefits or risks in such actions, and specific terms or specific provisions that would be appropriate in undertaking such actions. FHFA also welcomes additional input on any issues raised in considering these questions or going beyond the questions asked. Responders need not reply to all questions set forth here. At the same time, respondents may suggest other actions that FHFA should consider and provide an explanation of the rationale and benefits of such action. Dated: January 10, 2020. Mark A. Calabria, Director, Federal Housing Finance Agency. [FR Doc. 2020–00655 Filed 1–15–20; 8:45 am] BILLING CODE 8070–01–P FEDERAL RESERVE SYSTEM Proposed Agency Information Collection Activities; Comment Request Board of Governors of the Federal Reserve System. ACTION: Notice, request for comment. AGENCY: The Board of Governors of the Federal Reserve System (Board) invites comment on a proposal to extend for three years, with revision, the Census of Finance Companies and Survey of Finance Companies (FR 3033p and FR 3033s; OMB No. 7100–0277). DATES: Comments must be submitted on or before March 16, 2020. ADDRESSES: You may submit comments, identified by FR 3033p or FR 3033s, by any of the following methods: • Agency Website: https:// www.federalreserve.gov/. Follow the instructions for submitting comments at https://www.federalreserve.gov/apps/ foia/proposedregs.aspx. • Email: regs.comments@ federalreserve.gov. Include the OMB number in the subject line of the message. • FAX: (202) 452–3819 or (202) 452– 3102. • Mail: Ann E. Misback, Secretary, Board of Governors of the Federal Reserve System, 20th Street and Constitution Avenue NW, Washington, DC 20551. All public comments are available from the Board’s website at https:// www.federalreserve.gov/apps/foia/ khammond on DSKJM1Z7X2PROD with NOTICES SUMMARY: VerDate Sep<11>2014 17:49 Jan 15, 2020 Jkt 250001 proposedregs.aspx as submitted, unless modified for technical reasons or to remove personally identifiable information at the commenter’s request. Accordingly, comments will not be edited to remove any identifying or contact information. Public comments may also be viewed electronically or in paper in Room 146, 1709 New York Avenue NW, Washington, DC 20006, between 9:00 a.m. and 5:00 p.m. on weekdays. For security reasons, the Board requires that visitors make an appointment to inspect comments. You may do so by calling (202) 452–3684. Upon arrival, visitors will be required to present valid government-issued photo identification and to submit to security screening in order to inspect and photocopy comments. Additionally, commenters may send a copy of their comments to the Office of Management and Budget (OMB) Desk Officer—Shagufta Ahmed—Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235, 725 17th Street NW, Washington, DC 20503, or by fax to (202) 395–6974. FOR FURTHER INFORMATION CONTACT: A copy of the Paperwork Reduction Act (PRA) OMB submission, including the reporting form and instructions, supporting statement, and other documentation will be placed into OMB’s public docket files, if approved. These documents will also be made available on the Board’s public website at https://www.federalreserve.gov/apps/ reportforms/review.aspx or may be requested from the agency clearance officer, whose name appears below. Federal Reserve Board Clearance Officer—Nuha Elmaghrabi—Office of the Chief Data Officer, Board of Governors of the Federal Reserve System, Washington, DC 20551, (202) 452–3829. SUPPLEMENTARY INFORMATION: On June 15, 1984, OMB delegated to the Board authority under the PRA to approve and assign OMB control numbers to collections of information conducted or sponsored by the Board. In exercising this delegated authority, the Board is directed to take every reasonable step to solicit comment. In determining whether to approve a collection of information, the Board will consider all comments received from the public and other agencies. Request for Comment on Information Collection Proposal The Board invites public comment on the following information collection, which is being reviewed under authority delegated by the OMB under PO 00000 Frm 00048 Fmt 4703 Sfmt 4703 the PRA. Comments are invited on the following: a. Whether the proposed collection of information is necessary for the proper performance of the Board’s functions, including whether the information has practical utility; b. The accuracy of the Board’s estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used; c. Ways to enhance the quality, utility, and clarity of the information to be collected; d. Ways to minimize the burden of information collection on respondents, including through the use of automated collection techniques or other forms of information technology; and e. Estimates of capital or startup costs and costs of operation, maintenance, and purchase of services to provide information. At the end of the comment period, the comments and recommendations received will be analyzed to determine the extent to which the Board should modify the proposal. Proposal Under OMB Delegated Authority To Extend for Three Years, With Revision, the Following Information Collections Report title: Census of Finance Companies. Agency form number: FR 3033p. OMB control number: 100–0277. Frequency: Quinquennially. Respondents: Finance companies. Estimated number of respondents: 12,800. Estimated average hours per response: 0.33. Estimated annual burden hours: 4,224. General description of report: The FR 3033p is a census survey designed to identify the universe of finance companies eligible for potential inclusion in the FR 3033s and to enable the stratification of the sample for more statistically efficient estimation. The FR 3033p currently comprises 11 questions to assess the company’s asset size, level of loan and lease activity, company structure, and licensing authority. Report title: Survey of Finance Companies. Agency form number: FR 3033s. OMB control number: 7100–0277. Frequency: Quinquennially. Respondents: Finance companies that responded to the FR 3033p. Estimated number of respondents: 1,200. Estimated average hours per response: 1.5. Estimated annual burden hours: 1,800. E:\FR\FM\16JAN1.SGM 16JAN1

Agencies

[Federal Register Volume 85, Number 11 (Thursday, January 16, 2020)]
[Notices]
[Pages 2736-2740]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-00655]


=======================================================================
-----------------------------------------------------------------------

FEDERAL HOUSING FINANCE AGENCY

[No. 2020-N-1]


Property Assessed Clean Energy (PACE) Program

AGENCY: Federal Housing Finance Agency.

ACTION: Notice and Request for Input.

-----------------------------------------------------------------------

SUMMARY: The Federal Housing Finance Agency (FHFA), as regulator for 
Fannie Mae and Freddie Mac as well as the Federal Home Loan Banks, 
seeks public input on residential energy retrofitting programs financed 
through special state legislation enabling a ``super-priority lien'' 
over existing and subsequent first mortgages. In particular, FHFA seeks 
input on potential changes to its policies for its regulated entities 
based on safety and soundness concerns. These state programs, termed 
Property Assessed Clean Energy or PACE, address residential properties 
and commercial applications. FHFA's primary focus is on residential 
PACE programs in this Request for Input (RFI).

DATES: Written input must be received by March 16, 2020.

ADDRESSES: You may submit your response on the Notice identified by 
``PACE Request for Input, Notice No. 2020-N-1,'' by any one of the 
following methods:
     Agency Website: www.fhfa.gov/open-for-comment-or-input.
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting input. If you submit your 
response to the Federal eRulemaking Portal, please also send it by 
email to FHFA at [email protected] to ensure timely receipt by the 
agency.
     Mail/Hand Delivery: Federal Housing Finance Agency, Eighth 
Floor, 400 Seventh Street SW, Washington, DC 20219, ATTENTION: ``PACE 
Request for Input, Notice No. 2020-N-1.''
    FHFA will post all public responses received without change, 
including any personal information you provide, such as your name and 
address, email address, and telephone number, on the FHFA website at 
https://www.fhfa.gov. In addition, copies of all responses received will 
be available for examination by the public through the electronic 
docket for this Notice also located on the FHFA website.

FOR FURTHER INFORMATION CONTACT: Alfred M. Pollard, General Counsel, 
[email protected], (202) 649-3050 (this is not a toll-free 
number), Federal Housing Finance Agency, 400 Seventh Street SW, 
Washington, DC 20219. The Telecommunications Device for the Deaf is 
(800) 877-8339.

SUPPLEMENTARY INFORMATION:

Request for Input

A. PACE Programs

    The Federal Housing Finance Agency (FHFA), as regulator for Fannie 
Mae and Freddie Mac (the Enterprises) as well as the Federal Home Loan 
Banks, seeks public input on residential energy retrofitting programs 
financed through special state legislation enabling a ``super-priority 
lien'' over existing and subsequent first mortgages. In particular, 
FHFA seeks input on potential changes to its policies for its regulated 
entities based on safety and soundness concerns. These state programs, 
termed Property Assessed Clean Energy or PACE, address residential 
properties and commercial applications. FHFA's primary focus is on 
residential PACE programs in this Request for Input (RFI).
    These state initiatives authorize counties, municipalities and 
other government entities to create a financing scheme with, in the 
majority of cases, private parties administering the home energy 
retrofit programs. The programs lend to consumers for defined products 
and services and approved contractors. To attract private capital, the 
loans impose a tax assessment on the property so that the loan is 
repaid under a locality's taxing structure to the benefit of bond 
holders or lenders. This assures priority status over any first lien 
mortgage at any tax sale or foreclosure sale. PACE is not traditional 
second mortgage or home equity lending.

[[Page 2737]]

    Each PACE lending program was created to attract private investors 
to provide funds for loans for energy retrofits. Unlike normal secured 
home improvement financing, the PACE program seeks to secure a super-
priority first lien over all other lien holders on a property through a 
governmental property tax lien. As the financing concept provides that 
the lien, associated with the PACE loan, ``runs'' with the property, 
this proves attractive to investors who provide PACE program funding. 
With a super-priority lien position, the risk of investor loss becomes 
very small as that lien has priority over pre-existing first mortgages 
and has the possibility of continuing to run with the property to a 
subsequent purchaser. This investor opportunity comes at the expense of 
existing lien holders, who have not had the ability to consent or not 
consent to the new lien and unexpectedly bear a new risk of loss that 
did not exist at the time the mortgage was originated.
    As a tax-related assessment, the PACE loan is fundamentally asset-
based lending that ``runs with the land.'' This means a purchaser of a 
home with an existing PACE loan assumes the outstanding obligation and 
any unpaid or delinquent amounts. Despite the benefit of highest 
priority lien position, interest rates charged to borrowers for PACE 
are typically substantially higher than for a first-lien mortgage. 
Purchasers may not wish to acquire such obligations where the PACE 
interest rate is higher than their purchase loan rate or the 
improvements are out of date or in need of repair. State laws provide 
for localities to collect administrative fees of up to 10 percent of 
the loan amount usually added to the loan amount, and for lending 
amounts tied not to borrower's ``ability to repay,'' but to the 
property and its assessment up to 15 percent of the assessed value. The 
holder of such a lien may move for foreclosure on the property or the 
tax administrator may do so and recover the unpaid amount of the PACE 
loan; other parties recover what remains.
    Such loans are not recorded in local land records but in tax 
records and may bear a denomination other than PACE such as an 
abbreviated PACE program name. Such tax records usually list the amount 
of the loan and the amount paid, but do not provide distinctions on 
principal and interest. They are not part of ordinary mortgage record 
searches.
    Some PACE programs claim that PACE loans do not affect debt-to-
income (DTI) ratios, an important benchmark for consumers and lenders. 
The Enterprises require lenders to include homeowner property tax 
payments that would include PACE assessments as a component of the loan 
applicant's present or future housing expense to calculate DTI for loan 
eligibility. Unavailable data on DTI may permit a homeowner to incur 
more debt with lenders unaware of the PACE obligation due to a lack of 
DTI information or potentially inaccurate credit scores. Because PACE 
loans are not recorded in land records but in tax rolls, often with 
varying names or descriptions, they are difficult to identify in title 
searches.
    Finally, PACE programs lack uniformity and may differ in every 
community within a state, making it challenging for lenders to evaluate 
the implications for individual homeowners or home purchasers.

B. FHFA, Financial Regulators and Super-Priority Liens

    In 2010, FHFA, the Office of the Comptroller of the Currency (OCC), 
the National Credit Union Administration and the Federal Deposit 
Insurance Corporation highlighted the risks attendant to PACE 
lending.\1\ Fundamentally, the priming of a first mortgage was and 
remains the central issue. FHFA directed Fannie Mae and Freddie Mac not 
to purchase or re-finance mortgages with PACE liens and reserved other 
potential actions. The Federal Home Loan Banks were alerted to the need 
for vigilance in accepting collateral for advances that may have PACE 
liens attached. FHFA determinations regarding residential PACE loan 
programs have been upheld in three Circuit Court decisions.\2\
---------------------------------------------------------------------------

    \1\ For example, in OCC's Supervisory Guidance, OCC 2010-25 
(July 6, 2010) at https://www.occ.gov/news-issuances/bulletins/2010/bulletin-2010-25.html, the OCC emphasized that beside loans, banks 
investing in mortgage backed securities should take into account 
PACE programs in their asset valuations and to consider the impact 
of PACE programs on their institutions and the markets when making 
any decision on ``associated bond underwriting.'' Overall, OCC 
indicated it considered programs that failed to ``observe existing 
lien preference'' to pose ``significant regulatory and safety and 
soundness concerns.''
    \2\ See County of Sonoma v. FHFA, 710 F.3d 987 (9th Cir. 2013); 
Leon County v. FHFA, 700 F.3d 1273 (11th Cir. 2012); and Town of 
Babylon v. FHFA, 699 F.3d 221 (2nd Cir. 2012) (appeal of 
consolidated cases, after granting of motions to dismiss in the 
Southern and Eastern Districts of New York).
---------------------------------------------------------------------------

    In 2014, FHFA re-stated its concerns regarding PACE and other 
``lien-priming'' programs.\3\ In its public statement of December 22, 
2014, FHFA summarized that--
---------------------------------------------------------------------------

    \3\ https://www.fhfa.gov/Media/PublicAffairs/Pages/Statement-of-the-Federal-Housing-Finance-Agency-on-Certain-Super-Priority-Liens.aspx.

    The existence of these super-priority liens increases the risk 
of losses to taxpayers. Fannie Mae and Freddie Mac, while operating 
in conservatorship, currently support the housing finance market by 
purchasing, guaranteeing, and securitizing single-family mortgages. 
One of the bedrock principles in this process is that the mortgages 
supported by Fannie Mae and Freddie Mac must remain in first-lien 
position, meaning that they have first priority in receiving the 
proceeds from selling a house in foreclosure. As a result, any lien 
from a loan added after origination should not be able to jump in 
line ahead of a Fannie Mae or Freddie Mac mortgage to collect the 
---------------------------------------------------------------------------
proceeds of the sale of a foreclosed property.

    Enterprise programs support the ability of a borrower to purchase a 
home and the Enterprise mortgage is recorded in first-lien position. A 
PACE loan is only available to someone who owns a home. In the vast 
majority of cases, home ownership is obtained by a mortgage loan in 
which a lender has placed a substantial amount of capital at risk. For 
the Enterprises, this means up to $510,400 or, in high cost areas, up 
to $765,600 to provide homeownership opportunities. Accordingly, the 
Enterprises require that the mortgage loans they purchase remain in a 
first-lien position for the life of the loan.\4\ Also, the 
congressional charters for the Enterprises require borrowers to have at 
least 20 percent equity in a home or an approved form of credit 
enhancement, such as mortgage insurance, to address the risk of 
nonpayment. A municipality providing ``super-priority'' lien status for 
a PACE loan can erode--partially or completely--that 20 percent equity 
cushion, as required by statute, and place either the homeowner or a 
regulated entity, or both, at substantial risk.
---------------------------------------------------------------------------

    \4\ Enterprise loans are packaged into mortgage backed 
securities and purchased by investors which supports housing 
finance; investors rely on the underlying loan pool in making their 
purchases.
---------------------------------------------------------------------------

    PACE programs present a threat to the quality and stability of 
large amounts of Enterprise loans. According to Fannie Mae and Freddie 
Mac, in mid-2019 in California and Florida, the two most active 
residential PACE jurisdictions, the Enterprises had over 5.4 million 
loans with unpaid principal balances of approximately $1.18 trillion. 
These bear a risk of impairment by super-priority PACE loans that the 
Enterprises clearly stated in their loan instruments must be avoided. 
Further, these loans, that ``run with the land,'' impair the 
foreclosure process when that is an unavoidable outcome to the benefit 
of PACE investors.
    Consumer issues have surrounded the PACE programs from their 
inception. These include the cost of funding, contractor sales 
techniques (notably, responding to a limited homeowner

[[Page 2738]]

problem and marketing a full house retrofit), rolling the 
administrative fees for the county into the PACE loan amount, product 
sales at above market interest rates, workmanship issues, inadequate 
disclosures and indiscriminate lending regardless of ability to 
repay.\5\ Consumer protections at the state level for PACE lending are 
uneven and in some instances non-existent. Multiple reports exist of 
pressure on homeowners with PACE liens to pay off the PACE loans in 
order to sell their homes, either to permit the purchaser to secure 
financing or because the purchaser does not want to be saddled with a 
loan with an interest rate that can be double the rate of a new 
mortgage.\6\ Borrower demands for pay offs have occurred independent of 
positions taken by FHFA.
---------------------------------------------------------------------------

    \5\ California enacted into law AB 1284 (California Financing 
Law) in 2017. The California Department of Business Oversight 
offered two opportunities for public input in November 30, 2017 and 
April 19, 2018 regarding its rulemaking under the law for licensure, 
program administration, consumer related provisions and cost benefit 
analysis of its rules. See https://www.dbo.ca.gov/Licensees/PACE/.
    Materials presented to the legislature and to the California 
Department of Business Operations provide significant information of 
consumer problems relating to PACE, including descriptions of 
individual consumer issues with PACE administrators and their 
contractors and with the impact on selling their homes. As well, 
information on the effectiveness of individual products and how 
quickly homeowners receive benefits in excess of the loan payments 
(on higher cost loans) have been questioned and led to federal 
legislation on disclosure requirements. Additionally, real estate 
professionals have commented on the problems of selling homes with 
PACE liens.
    \6\ Id. Consumer advocacy groups have highlighted, along with 
repeated newspaper reports, that this dilemma exists for homeowners 
with PACE liens. Consumer complaints involving PACE loans on a range 
of complaints have been detailed; see, for example, National 
Consumer Law Center, Residential Property Assessed Clean Energy 
Loans: The Perils of Easy Money for Clean Energy Improvements 
(September 2017), pp. 5-17.
---------------------------------------------------------------------------

    Recognizing consumer issues, Congress in 2018 enacted amendments to 
the Truth in Lending Act to require federal regulation when PACE loans 
are made to assure more effective consumer protections, focused on 
ability to repay requirements. The law did not mandate that such 
properties impacted by such loans serve as collateral for mortgage 
loans made, purchased or authorized by any primary or secondary market 
participant. The Consumer Financial Protection Bureau was entrusted 
with implementing this law by regulation.\7\
---------------------------------------------------------------------------

    \7\ Public Law 115-174 (2018), section 307; codified at 15 
U.S.C. 1639c(b)(3)(C). Also, Bureau of Consumer Financial 
Protection, Advance Notice of Proposed Rulemaking on Residential 
Property Assessed Clean Energy Financing, 84 FR 8479 (March 8, 
2019).
---------------------------------------------------------------------------

C. Financing Energy Retrofitting

    FHFA and other federal regulators support financing for residential 
energy retrofitting, where appropriate, and, in many instances, that an 
actual consumer benefit exists as documented by an energy saving 
report. Such lending, by regulated financial institutions, is 
undertaken with strict attention to ability to repay rules, safety and 
soundness prescriptions and other elements of the robust range of 
federal and state consumer protection provisions. Properly underwritten 
loans provide sustainable interest rates, consider the financial 
position of a homeowner and provide mortgage makers and mortgage 
investors a reliable product for purchase. At the same time PACE 
financing encumbers the foreclosure process with an obligation that 
``runs with the land'' where normal foreclosure ends claims against the 
property.
    The Department of Housing and Urban Development (HUD) has taken 
initial steps to address some of the same concerns described above. On 
December 7, 2017, HUD issued a Mortgagee Letter announcing that the 
Federal Housing Administration (FHA) will no longer insure new 
mortgages on properties that include PACE assessments, citing concerns 
about the potential for increased losses to the Mutual Mortgage 
Insurance Fund (MMI Fund) due to the priority lien status given to such 
assessments.\8\
---------------------------------------------------------------------------

    \8\ U.S. Dep't of Hous. and Urban Dev., Mortgagee Letter 2017-18 
(Dec. 7, 2017).
---------------------------------------------------------------------------

    Despite restricting FHA insurance for properties already encumbered 
by PACE assessments, nothing prevents a FHA-insured borrower from 
acquiring a PACE loan in the future. HUD considers PACE assessments as 
potentially dangerous to the MMI Fund and, further, placing these 
assessments on FHA-insured properties post-endorsement creates a lack 
of transparency making it difficult for the agency to understand the 
true nature of the risks involved.\9\ HUD has indicated that it is 
unknown how many existing FHA borrowers have taken out PACE loans and 
has expressed concern that FHA is not in a first lien position.\10\ 
Allowing PACE assessments to essentially subordinate the FHA-insured 
mortgage creates a default under the mortgage and is particularly 
problematic for HUD and FHA as the MMI Fund is exposed to unmeasurable 
risk.
---------------------------------------------------------------------------

    \9\ Press Release, U.S. Dep't of Hous. and Urban Dev., FHA to 
Halt Insuring Mortgages on Homes with PACE Assessments (Dec. 7, 
2017) https://archives.hud.gov/news/2017/pr17-111.cfm.
    \10\ An Examination of the Federal Housing Administration and 
Its Impact on Homeownership in America: Hearing Before the Subcomm. 
on Hous., Cmty Dev., and Ins. Of the H. Comm. on Fin. Serv., 116th 
Cong. (Dec. 5, 2019).
---------------------------------------------------------------------------

D. Actions by the Federal Housing Finance Agency

    The continuation of PACE programs and their adverse impact merits 
review for potential modification by FHFA of its safety and soundness 
and prudential standard directions to its regulated entities.
    In its 2010 statement on PACE programs and in its directions to 
Fannie Mae and Freddie Mac, FHFA indicated that the Enterprises could 
undertake certain actions, including but not limited to, adjusting 
loan-to-value ratios to reflect the maximum permissible PACE loan 
amounts available to borrowers in jurisdictions with PACE program, 
requiring in loan agreements that a PACE loan may only be made in 
relation to an Enterprise purchased mortgage with the consent of the 
Enterprise, tightening debt-to-income ratios to account for additional 
borrower obligations associated with PACE loans and such other actions 
as would be appropriate. The Federal Home Loan Banks were advised to 
consider their acceptance of collateral that might be affected by PACE 
loans as a prudent safety and soundness practice.
    The most direct action taken was by the Enterprises issuing 
bulletins and updates to their seller-servicer guides to indicate the 
Enterprises would not make or refinance a mortgage loan for a property 
encumbered by a PACE lien.\11\ This Request for Input asks for public 
comment on enhancing the actions to be taken regarding PACE liens in 
light of their continued threat to first lien mortgages and to 
homeowners and home purchasers from the lien priming effects of PACE 
loans.\12\ Such actions

[[Page 2739]]

are founded on FHFA's regulatory authorities relating to safety and 
soundness and the prudential authorities enunciated in the Housing and 
Economic Recovery Act of 2008.\13\
---------------------------------------------------------------------------

    \11\ Fannie Mae Selling Guide (May 1, 2019), Lender Letter 
(September 18, 2009), and announcements (February 27, 2018; December 
1, 2010; August 31, 2010): https://www.fanniemae.com/content/guide/selling/b5/3.4/01.html, https://www.fanniemae.com/content/announcement/ll0709.pdf, https://www.fanniemae.com/content/announcement/sel1802.pdf, https://www.fanniemae.com/content/announcement/sel1016.pdf, https://www.fanniemae.com/content/announcement/sel1012.pdf.
    Freddie Mac Single-Family Seller/Servicer Guide (May 1, 2019), 
Freddie Mac Single-Family Refinancing and Energy Retrofit Programs 
page, Selling Guide Bulletin (August 24, 2016), Lender Letter 
(August 20, 2014): https://guide.freddiemac.com/app/guide/section/4301.4, https://sf.freddiemac.com/general/refinancing-and-energy-retrofit-programs, https://guide.freddiemac.com/app/guide/bulletin/2016-16.
    \12\ In certain related cases, focused mainly but not 
exclusively on conservatorship authorities, courts have made clear 
that both Enterprise guides and actions by FHFA regarding PACE are 
appropriate and preemptive of state authorities, including state 
taxing authorities. See e.g., Berezovsky v. Moniz, 869 F.3d 923 (9th 
Cir. 201) (HOA priority liens); FHFA v. City of Chicago, 962 
F.Supp.2d 1044 (N.D.Ill. 2013) (local regulation of property 
maintenance preempted by FHFA action under HERA); and Commonwealth 
of Mass. v. FHFA, 54 F.Supp.3d 94 (D.Mass. 2014) (even if 
conservatorship not in place, court ruled that federal law preempts 
state law that are in ``irreconcilable conflict'' with federal 
statute and that applied to state housing statute at issue in case).
    \13\ 12 U.S.C. 4513b provides FHFA should establish for its 
regulated entities, by regulation or guidelines, standards related 
inter alia to management of market risk and credit risk, management 
of asset growth and such other operational and management standards 
as the Director determines to be appropriate.
---------------------------------------------------------------------------

    FHFA, therefore, asks for public input on the following questions:
    1. Should FHFA direct the Enterprises to decrease loan-to-value 
ratios for all new loan purchases in states or in communities where 
PACE loans are available? By how much should available loan-to-value 
ratios be reduced to address the increased risk of such liens being 
placed on the property and what related implications would result from 
such actions? Should loan-to-value (LTV) ratios be reduced for all loan 
purchases sufficient to take into account the maximum amount of a PACE 
financing available in that community? Should potential future 
increases in permitted percentage of available PACE financing-to-
assessed value be considered?
    2. Should FHFA direct the Enterprises to increase their Loan Level 
Price Adjustments (LLPAs) or require other credit enhancements for 
mortgage loans or re-financings in communities with available PACE 
financing? What increased levels would be appropriate for such LLPAs in 
light of the risks of PACE financing posed to the Enterprises?
    3. Should FHFA consider other actions regarding Enterprise purchase 
or servicing requirements in jurisdictions with PACE programs?
    4. Should FHFA establish safety and soundness standards for the 
Federal Home Loan Banks to accept as eligible advance collateral 
mortgage loans in communities where PACE loans are available? How might 
those standards best address the increased risk of such collateral? 
Should such standards be in line with actions that FHFA would undertake 
for the Enterprises, recognizing the difference in business structures 
between the Enterprises and the Banks?
    5. How might the Enterprises best gather or receive information on 
their existing guaranteed or owned mortgage loan portfolios to 
understand which loans have PACE liens and in what amount? Should 
mortgage loan servicers be required to gather and report such 
information to the Enterprises on a periodic basis? What would the 
costs and implications be of such a requirement?
    6. Would it be most effective for states that authorize PACE 
programs to require a registry of PACE lending so that information 
currently only held by PACE vendors or local tax rolls could be 
available and maintained on an ongoing basis? \14\ What data should be 
included in such a registry? What access would be permitted while 
protecting consumer privacy? Should a federal agency provide for such a 
registry? What minimum information would be available to allow credit 
reporting agencies to include PACE obligations in credit reports 
obtained in connection with mortgage origination or servicing?
---------------------------------------------------------------------------

    \14\ California enacted in AB 2063, Section 13 (2018) 
discretionary authority for the California Division of Business 
Organizations to require establishment of a ``real-time registry or 
data base system for tracking PACE assessments . . . [which may 
include] features for providing or obtaining information about a 
property's status with regard to PACE assessments placed on [a] 
property, whether recorded or not.''
---------------------------------------------------------------------------

    7. Should servicers of mortgage loans for the Enterprises provide 
an annual or more frequent notice to existing borrowers in PACE-
eligible communities informing them that, under the terms of their 
mortgage, PACE liens are not permitted? Should borrowers be informed of 
the difficulties that may arise in selling or refinancing their home 
when a PACE lien has been placed on their property? What other 
information, if any, should be provided by servicers to borrowers with 
regard to PACE liens? Should borrowers in PACE jurisdictions be 
required to execute any additional agreements or certifications in 
connection with mortgages for the Enterprises, Home Loan Banks or FHA 
guaranteeing the borrowers will not accept PACE financing for energy 
efficiency improvements?
    8. The Consumer Financial Protection Bureau published and received 
comment on an Advanced Notice of Proposed Rulemaking on disclosures 
under the Truth in Lending Act, as required by section 307 of the 
Economic Growth, Regulatory Relief and Consumer Protection Act, Public 
Law 115-174 (2018). The ANPR addresses, in line with the statute, TILA 
sections relating to ability to repay requirements and to application 
of civil money penalty provisions for TILA violations.
    FHFA seeks input on matters beyond the scope of the statutory and 
regulatory provisions addressed by the CFPB. For example, do consumers 
face issues regarding the tax treatment of PACE loan payments and 
reporting to consumers of deductible versus non-deductible expenses? 
Are there consumer impacts from PACE liens on title searches? What 
impacts might arise where local governments use structures such as an 
unelected Joint Powers Authority that limit government responsibility 
for PACE program administration? What options exist for a homeowner who 
can no longer afford to repay a PACE lien, such as a tax deferral by 
the taxing authority? What issues arise from the use of approved 
contractor lists and the impact on costs, contractor regulation, and 
recourse for consumers for defective equipment? What issues may arise 
from notification practices regarding PACE liens at time of property 
sales and other issues that align with or expand on consumer related 
concerns raised by the CFPB?
    9. What information regarding experiences under programs of the 
Department of Housing and Urban Development relating to PACE may be 
relevant for consideration by FHFA in its evaluation of public input? 
Where PACE programs create super-priority liens, should loan products 
issued or guaranteed by the government, such as Federal Housing 
Administration mortgage insurance, consider adjustments such as risk 
based mortgage insurance premiums or limits on partial or assignment 
claims or the availability or terms of modifications allowable? Should 
government programs, such as those of FHA, contemplate further limiting 
the availability of mortgage insurance in PACE jurisdictions for 
forwards, HECMS or both? Are there improvements that government 
programs could undertake, such as FHA increasing utilization of its 
``green'' insured mortgages or its Section 203(k) rehabilitation 
mortgage insurance program to avoid the risks associated with PACE 
programs?

E. Responses

    FHFA invites responses on all aspects of this Request for input. 
Respondents should identify by number the question each of their 
comments addresses. Copies of all responses will be posted without 
change, including any personal information you provide, such as your 
name and address, email address, and telephone number, on the FHFA 
website at https://www.fhfa.gov. Copies of all responses received will 
be available for

[[Page 2740]]

examination by the public through the electronic docket for this Notice 
also located on the FHFA website.
    In responding to these questions, respondents should provide their 
viewpoints as to the implications of such actions, the cost to business 
or to the public of such actions, benefits or risks in such actions, 
and specific terms or specific provisions that would be appropriate in 
undertaking such actions. FHFA also welcomes additional input on any 
issues raised in considering these questions or going beyond the 
questions asked. Responders need not reply to all questions set forth 
here. At the same time, respondents may suggest other actions that FHFA 
should consider and provide an explanation of the rationale and 
benefits of such action.

    Dated: January 10, 2020.
Mark A. Calabria,
Director, Federal Housing Finance Agency.
[FR Doc. 2020-00655 Filed 1-15-20; 8:45 am]
 BILLING CODE 8070-01-P
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.