Qualified Mortgage Definition Under the Truth in Lending Act (Regulation Z): Extension of Sunset Date, 41448-41463 [2020-13741]

Download as PDF 41448 Federal Register / Vol. 85, No. 133 / Friday, July 10, 2020 / Proposed Rules BUREAU OF CONSUMER FINANCIAL PROTECTION 12 CFR Part 1026 [Docket No. CFPB–2020–0021] RIN 3170–AA98 Qualified Mortgage Definition Under the Truth in Lending Act (Regulation Z): Extension of Sunset Date Bureau of Consumer Financial Protection. ACTION: Proposed rule with request for public comment. AGENCY: With certain exceptions, Regulation Z requires creditors to make a reasonable, good faith determination of a consumer’s ability to repay any residential mortgage loan, and loans that meet Regulation Z’s requirements for ‘‘qualified mortgages’’ (QMs) obtain certain protections from liability. One category of QMs consists of loans that are eligible for purchase or guarantee by either the Federal National Mortgage Association (Fannie Mae) or the Federal Home Loan Mortgage Corporation (Freddie Mac) (collectively, government-sponsored enterprises, or GSEs), while operating under the conservatorship or receivership of the Federal Housing Finance Agency (FHFA). The GSEs are currently under Federal conservatorship. The Bureau of Consumer Financial Protection (Bureau) established this category of QMs (Temporary GSE QM loans) as a temporary measure that is set to expire no later than January 10, 2021 (the sunset date) or when the GSEs exit conservatorship. Another category of QMs is the General QM loan category. In a separate proposal released simultaneously with this proposal, the Bureau proposes amendments to the General QM loan definition. In this notice of proposed rulemaking, the Bureau proposes to amend Regulation Z to replace the sunset date of the Temporary GSE QM loan definition with a provision that extends the Temporary GSE QM loan definition to expire upon the effective date of final amendments to the General QM loan definition. The Bureau is not proposing to amend the provision stating that the Temporary GSE QM loan category would expire if the GSEs exit conservatorship. The Bureau is proposing to extend the Temporary GSE QM loan definition to ensure that responsible, affordable mortgage credit remains available to consumers who may be affected if the Temporary GSE QM loan definition expires before the jbell on DSKJLSW7X2PROD with PROPOSALS SUMMARY: VerDate Sep<11>2014 17:00 Jul 09, 2020 Jkt 250001 amendments to the General QM loan definition take effect. DATES: Comments must be received on or before August 10, 2020. ADDRESSES: You may submit comments, identified by Docket No. CFPB–2020– 0021 or RIN 3170–AA98, by any of the following methods: • Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for submitting comments. • Email: 2020-NPRM-ATRQMSunsetDate@cfpb.gov. Include Docket No. CFPB–2020–0021 or RIN 3170– AA98 in the subject line of the message. • Mail/Hand Delivery/Courier: Comment Intake—QM Extension of Sunset Date, Bureau of Consumer Financial Protection, 1700 G Street NW, Washington, DC 20552. Please note that due to circumstances associated with the COVID–19 pandemic, the Bureau discourages the submission of comments by mail, hand delivery, or courier. Instructions: The Bureau encourages the early submission of comments. All submissions should include the agency name and docket number or Regulatory Information Number (RIN) for this rulemaking. Because paper mail in the Washington, DC area and at the Bureau is subject to delay, and in light of difficulties associated with mail and hand deliveries during the COVID–19 pandemic, commenters are encouraged to submit comments electronically. In general, all comments received will be posted without change to https:// www.regulations.gov. In addition, once the Bureau’s headquarters reopens, comments will be available for public inspection and copying at 1700 G Street NW, Washington, DC 20552, on official business days between the hours of 10 a.m. and 5 p.m. Eastern Time. At that time, you can make an appointment to inspect the documents by telephoning 202–435–9169. All comments, including attachments and other supporting materials, will become part of the public record and subject to public disclosure. Proprietary information or sensitive personal information, such as account numbers or Social Security numbers, or names of other individuals, should not be included. Comments will not be edited to remove any identifying or contact information. FOR FURTHER INFORMATION CONTACT: Benjamin Cady, Counsel; or David Friend or Priscilla Walton-Fein, Senior Counsels, Office of Regulations, at 202– 435–7700. If you require this document in an alternative electronic format, please contact CFPB_Accessibility@ cfpb.gov. PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 SUPPLEMENTARY INFORMATION: I. Summary of the Proposed Rule The Ability-to-Repay/Qualified Mortgage Rule (ATR/QM Rule or Rule) requires a creditor to make a reasonable, good faith determination of a consumer’s ability to repay a residential mortgage loan according to its terms. Loans that meet the Rule’s requirements for QMs obtain certain protections from liability. The Rule defines several categories of QMs. One QM category defined in the Rule is the General QM loan category. General QM loans must comply with the Rule’s prohibitions on certain loan features, its points-and-fees limits, and its underwriting requirements. For General QM loans, the ratio of the consumer’s total monthly debt to total monthly income (DTI ratio) must not exceed 43 percent. Creditors must calculate, consider, and verify debt and income for purposes of determining the consumer’s DTI ratio using the standards contained in appendix Q of Regulation Z. A second, temporary category of QM loans defined in the Rule consists of mortgages that (1) comply with the same loan-feature prohibitions and pointsand-fees limits as General QM loans and (2) are eligible to be purchased or guaranteed by Fannie Mae or Freddie Mac while under the conservatorship of the FHFA. This proposal refers to these loans as Temporary GSE QM loans, and the provision that created this loan category is commonly known as the GSE Patch. Unlike for General QM loans, the Rule does not prescribe a DTI limit for Temporary GSE QM loans. Thus, a loan can qualify as a Temporary GSE QM loan even if the consumer’s DTI ratio exceeds 43 percent, so long as the loan is eligible to be purchased or guaranteed by either of the GSEs. In addition, for Temporary GSE QM loans, the Rule does not require creditors to use appendix Q to determine the consumer’s income, debt, or DTI ratio. Under the Rule, the Temporary GSE QM loan definition expires with respect to each GSE when that GSEs exits conservatorship or on January 10, 2021, whichever comes first. The GSEs are currently in conservatorship. Despite the Bureau’s expectations when the Rule was published in 2013, Temporary GSE QM loan originations continue to represent a large and persistent share of the residential mortgage loan market, and a significant number of Temporary GSE QM loans would not qualify as General QM loans under the current regulations after the Temporary GSE QM loan definition expires. These loans would not qualify as General QM loans E:\FR\FM\10JYP1.SGM 10JYP1 Federal Register / Vol. 85, No. 133 / Friday, July 10, 2020 / Proposed Rules either because the consumer’s DTI ratio is above 43 percent or because the creditor’s method of documenting and verifying income or debt is incompatible with appendix Q. Although alternative loan options, including some other types of QM loans, would still be available to many consumers who could not qualify for General QM loans, the Bureau anticipates that many loans that are currently Temporary GSE QM loans would cost materially more for consumers and many would not be made at all. In a separate proposal issued simultaneously with this proposal, the Bureau is proposing, among other things, to remove the General QM loan definition’s DTI limit and replace it with a limit based on the loan’s pricing. The Bureau expects that such amendments would allow some portion of loans that currently could receive QM status under the Temporary GSE QM loan definition to receive QM status under the General QM loan definition if they are made after the Temporary GSE QM loan definition expires, thereby helping to facilitate a smooth and orderly transition away from the Temporary GSE QM loan definition. The Bureau tentatively concludes that having the Temporary GSE QM loan definition expire when a final rule amending the General QM loan definition becomes effective will ensure that responsible, affordable mortgage credit remains available to consumers who may be affected if the Temporary GSE QM loan definition expires before the amendments to the General QM loan definition take effect. In light of these and other considerations, the Bureau proposes to extend the Temporary GSE QM loan definition to the effective date of a final rule issued by the Bureau amending the General QM loan definition. The Bureau does not intend for this effective date to be prior to April 1, 2021. Thus, the Bureau does not intend for the Temporary GSE QM loan definition to expire prior to April 1, 2021. The Bureau is not proposing to amend the provision stating that the Temporary GSE QM loan category would expire if the GSEs exit conservatorship. jbell on DSKJLSW7X2PROD with PROPOSALS II. Background A. Dodd-Frank Act Amendments to the Truth in Lending Act The Dodd-Frank Wall Street Reform and Consumer Protection Act (DoddFrank Act) amended the Truth in Lending Act (TILA) to establish, among other things, ability-to-repay (ATR) requirements in connection with the origination of most residential mortgage VerDate Sep<11>2014 17:00 Jul 09, 2020 Jkt 250001 loans.1 The amendments were intended ‘‘to assure that consumers are offered and receive residential mortgage loans on terms that reasonably reflect their ability to repay the loans and that are understandable and not unfair, deceptive or abusive.’’ 2 As amended, TILA prohibits a creditor from making a residential mortgage loan unless the creditor makes a reasonable and good faith determination based on verified and documented information that the consumer has a reasonable ability to repay the loan.3 TILA identifies the factors a creditor must consider in making a reasonable and good faith assessment of a consumer’s ability to repay. These factors are the consumer’s credit history, current and expected income, current obligations, debt-to-income ratio or residual income after paying nonmortgage debt and mortgage-related obligations, employment status, and other financial resources other than equity in the dwelling or real property that secures repayment of the loan.4 A creditor, however, may not be certain whether its ability-to-repay determination is reasonable in a particular case, and it risks liability if a court or an agency, including the Bureau, later concludes that the abilityto-repay determination was not reasonable. TILA addresses this uncertainty by defining a category of loans—called QMs—for which a creditor ‘‘may presume that the loan has met’’ the ATR requirements.5 The statute generally defines a QM to mean any residential mortgage loan for which: • There is no negative amortization, interest-only payments, or balloon payments; • The loan term does not exceed 30 years; • The total points and fees generally do not exceed 3 percent of the loan amount; • The income and assets relied upon for repayment are verified and documented; 1 Public Law 111–203, 1411–12, 1414, 124 Stat. 1376 (2010); 15 U.S.C. 1639c. 2 15 U.S.C. 1639b(a)(2). 3 15 U.S.C. 1639c(a)(1). TILA section 103 defines ‘‘residential mortgage loan’’ to mean, with some exceptions including open-end credit plans, ‘‘any consumer credit transaction that is secured by a mortgage, deed of trust, or other equivalent consensual security interest on a dwelling or on residential real property that includes a dwelling.’’ 15 U.S.C. 1602(dd)(5). TILA section 129C also exempts certain residential mortgage loans from the ATR requirements. See, e.g., 15 U.S.C. 1639c(a)(8) (exempting reverse mortgages and temporary or bridge loans with a term of 12 months or less). 4 15 U.S.C. 1639c(a)(3). 5 15 U.S.C. 1639c(b)(1). PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 41449 • The underwriting uses a monthly payment based on the maximum rate during the first five years, uses a payment schedule that fully amortizes the loan over the loan term, and takes into account all mortgage-related obligations; and • The loan complies with any guidelines or regulations established by the Bureau relating to the ratio of total monthly debt to monthly income or alternative measures of ability to pay regular expenses after payment of total monthly debt.6 B. The Ability-to-Repay/Qualified Mortgage Rule In January 2013, the Bureau issued a final rule amending Regulation Z to implement TILA’s ATR requirements (January 2013 Final Rule).7 The January 2013 Final Rule became effective on January 10, 2014, and the Bureau amended it several times through 2016.8 This proposal refers to the January 2013 Final Rule and later amendments to it collectively as the Ability-to-Repay/ Qualified Mortgage Rule, the ATR/QM Rule, or the Rule. The ATR/QM Rule implements the statutory ATR provisions discussed above and defines several categories of QM loans.9 Under the Rule, a creditor that makes a QM loan is protected from liability presumptively or conclusively, depending on whether the loan is ‘‘higher priced.’’ 10 1. General QM Loans One category of QM loans defined by the Rule consists of ‘‘General QM loans.’’ A loan is a General QM loan if: • The loan does not have negativeamortization, interest-only, or balloonpayment features, a term that exceeds 30 years, or points and fees that exceed specified limits; 11 6 15 U.S.C. 1639c(b)(2)(A). FR 6408 (Jan. 30, 2013). 8 See 78 FR 35429 (June 12, 2013); 78 FR 44686 (July 24, 2013); 78 FR 60382 (Oct. 1, 2013); 79 FR 65300 (Nov. 3, 2014); 80 FR 59944 (Oct. 2, 2015); 81 FR 16074 (Mar. 25, 2016). 9 12 CFR 1026.43(c), (e). 10 The Rule generally defines a ‘‘higher priced’’ covered transaction to mean a first-lien mortgage with an annual percentage rate (APR) that exceeds the average prime offer rate (APOR) for a comparable transaction as of the date the interest rate is set by 1.5 or more percentage points; or a subordinate-lien transaction with an APR that exceeds APOR for a comparable transaction as of the date the interest rate is set by 3.5 or more percentage points. 12 CFR 1026.43(b)(4). A creditor that makes a QM loan that is not ‘‘higher priced’’ is entitled to a conclusive presumption that it has complied with the Rule—i.e., the creditor receives a safe harbor. 12 CFR 1026.43(e)(1)(i). A creditor that makes a QM loan that is ‘‘higher priced’’ is entitled to a rebuttable presumption that it has complied with the Rule. 12 CFR 1026.43(e)(1)(ii). 11 12 CFR 1026.43(e)(2)(i)–(iii). 7 78 E:\FR\FM\10JYP1.SGM 10JYP1 41450 Federal Register / Vol. 85, No. 133 / Friday, July 10, 2020 / Proposed Rules • The creditor underwrites the loan based on a fully amortizing schedule using the maximum rate permitted during the first five years; 12 • The creditor considers and verifies the consumer’s income and debt obligations in accordance with appendix Q; 13 and • The consumer’s DTI ratio is no more than 43 percent (DTI limit), determined in accordance with appendix Q.14 Appendix Q contains standards for calculating and verifying debt and income for purposes of determining whether a mortgage satisfies the 43 percent DTI limit for General QM loans. The standards in appendix Q were adapted from guidelines maintained by the Federal Housing Administration (FHA), of the U.S. Department of Housing and Urban Development (HUD) when the January 2013 Final Rule was issued.15 Appendix Q addresses how to determine a consumer’s employmentrelated income (e.g., income from wages, commissions, and retirement plans); non-employment related income (e.g., income from alimony and child support payments, investments, and property rentals); and liabilities, including recurring and contingent liabilities and projected obligations.16 2. Temporary GSE QM Loans A second, temporary category of QM loans defined by the Rule, Temporary GSE QM loans, consists of mortgages that (1) comply with the Rule’s prohibitions on certain loan features, its underwriting requirements, and its limitations on points and fees; 17 and (2) are eligible to be purchased or guaranteed by either GSE while under the conservatorship of the FHFA.18 Unlike for General QM loans, Regulation Z does not prescribe a DTI limit for Temporary GSE QM loans. Thus, a loan can qualify as a Temporary GSE QM loan even if the DTI ratio exceeds 43 percent, as long as the DTI ratio meets the applicable GSE’s DTI requirements and other underwriting criteria. In addition, income and debt for such loans, and DTI ratios, generally are verified and calculated using GSE standards, rather than appendix Q. The 12 12 CFR 1026.43(e)(2)(iv). CFR 1026.43(e)(v). 14 12 CFR 1026.43(e)(2)(vi). 15 78 FR 6408, 6527–28 (Jan. 30, 2013) (noting that appendix Q incorporates, with certain modifications, the definitions and standards in HUD Handbook 4155.1, Mortgage Credit Analysis for Mortgage Insurance on One-to-Four-Unit Mortgage Loans). 16 12 CFR 1026, appendix Q. 17 12 CFR 1026.43(e)(2)(i)–(iii). 18 12 CFR 1026.43(e)(4). jbell on DSKJLSW7X2PROD with PROPOSALS 13 12 VerDate Sep<11>2014 17:00 Jul 09, 2020 Jkt 250001 Temporary GSE QM loan category—also known as the GSE Patch—is scheduled to expire with respect to each GSE when that GSE exits conservatorship or on January 10, 2021, whichever comes first.19 C. The Bureau’s Assessment of the Ability-to-Repay/Qualified Mortgage Rule Section 1022(d) of the Dodd-Frank Act requires the Bureau to assess each of its significant rules and orders and to publish a report of each assessment within five years of the effective date of the rule or order.20 The Bureau noted in the January 2013 Final Rule that its section 1022(d) assessment of the ATR/ QM Rule would provide an opportunity to analyze the Temporary GSE QM loan definition and confirm, prior to its expiration, whether it would be appropriate to allow it to expire.21 The Bureau published its report as a result of its assessment on January 11, 2019 (Assessment Report).22 D. Effects of the COVID–19 Pandemic on Mortgage Markets The COVID–19 pandemic has had a significant effect on the U.S. economy. Economic activity has contracted, many businesses have partially or completely closed, and millions of workers have become unemployed. The pandemic has also affected mortgage markets. Among other things, it has resulted in a contraction of mortgage credit availability for many consumers, including those that would be dependent on the non-QM market for financing. The pandemic’s impact on both the secondary market for new originations and on the servicing of existing mortgages has contributed to this contraction. These effects, and other effects of the pandemic, are discussed in 19 12 CFR 1026.43(e)(4)(iii)(B). The ATR/QM Rule created several additional categories of QM loans. The first additional category consisted of mortgages eligible to be insured or guaranteed (as applicable) by HUD (FHA loans), the U.S. Department of Veterans Affairs (VA loans), the U.S. Department of Agriculture (USDA loans), and the Rural Housing Service (RHS loans). 12 CFR 1026.43(e)(4)(ii)(B)– (E). This temporary category of QM loans no longer exists because the relevant Federal agencies have since issued their own QM rules. See, e.g., 24 CFR 203.19 (HUD rule). Other categories of QM loans provide more flexible standards for certain loans originated by certain small creditors. 12 CFR 1026.43(e)(5), (f); cf. 12 CFR 1026.43(e)(6) (applicable only to covered transactions for which the application was received before April 1, 2016). 20 12 U.S.C. 5512(d). 21 78 FR 6408, 6533–34 (Jan. 30, 2013). 22 Bureau of Consumer Fin. Prot., Ability-toRepay and Qualified Mortgage Rule Assessment Report (Jan. 2019), 2019) (Assessment Report), https://files.consumerfinance.gov/f/documents/ cfpb_ability-to-repay-qualified-mortgage_ assessment-report.pdf. PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 greater detail in the separate proposal the Bureau is releasing simultaneously with this proposal.23 III. The Rulemaking Process The Bureau has solicited and received substantial public and stakeholder input on issues related to the substance of this proposed rule. In addition to the Bureau’s discussions with and communications from industry stakeholders, consumer advocates, other Federal agencies,24 and members of Congress, the Bureau issued requests for information (RFIs) in 2017 and 2018 and in July 2019 issued an advance notice of proposed rulemaking regarding the ATR/QM Rule (ANPR). The input from these RFIs and from the ANPR is briefly summarized below. A. The Requests for Information In June 2017, the Bureau published a request for information in connection with the Assessment Report (Assessment RFI).25 In response to the Assessment RFI, the Bureau received approximately 480 comments from creditors, industry groups, consumer advocacy groups, and individuals.26 The comments addressed a variety of topics, including the General QM loan definition and the 43 percent DTI limit; perceived problems with, and potential changes and alternatives to, appendix Q; and how the Bureau should address the expiration of the Temporary GSE QM loan definition. The comments expressed a range of ideas for addressing the expiration of the Temporary GSE QM loan definition, from making the definition permanent, to applying the definition to other mortgage products, to extending it for various periods of time, or some combination of those suggestions. Other comments stated that the Temporary GSE QM loan definition should be eliminated or permitted to expire. Beginning in January 2018, the Bureau issued a general call for evidence seeking comment on its enforcement, supervision, rulemaking, market monitoring, and financial 23 See Bureau of Consumer Fin. Prot., ‘‘Qualified Mortgage Definition under the Truth in Lending Act (Regulation Z): General QM Loan Definition,’’ part II.D. 24 The Bureau has consulted with agencies including the FHFA, the Board of Governors of the Federal Reserve System (Board), FHA, the Federal Deposit Insurance Corporation, the Office of the Comptroller of the Currency, the Federal Trade Commission, the National Credit Union Administration, and the Department of the Treasury. 25 82 FR 25246 (June 1, 2017). 26 See Assessment Report, supra note 22, at appendix B (summarizing comments received in response to the Assessment RFI). E:\FR\FM\10JYP1.SGM 10JYP1 Federal Register / Vol. 85, No. 133 / Friday, July 10, 2020 / Proposed Rules education activities.27 As part of the call for evidence, the Bureau published requests for information relating to, among other things, the Bureau’s rulemaking process,28 the Bureau’s adopted regulations and new rulemaking authorities,29 and the Bureau’s inherited regulations and inherited rulemaking authorities.30 In response to the call for evidence, the Bureau received comments on the ATR/ QM Rule from stakeholders, including consumer advocacy groups and industry groups. The comments addressed a variety of topics, including the General QM loan definition, appendix Q, and the Temporary GSE QM loan definition. The comments also raised concerns about, among other things, the risks of allowing the Temporary GSE QM loan definition to expire without any changes to the General QM loan definition or appendix Q. The concerns raised in these comments were similar to those raised in response to the Assessment RFI, discussed above. B. The Advance Notice of Proposed Rulemaking jbell on DSKJLSW7X2PROD with PROPOSALS On July 25, 2019, the Bureau issued an advance notice of proposed rulemaking regarding the ATR/QM Rule (ANPR). The ANPR stated the Bureau’s tentative plans to allow the Temporary GSE QM loan definition to expire in January 2021 or after a short extension, if necessary, to facilitate a smooth and orderly transition away from the Temporary GSE QM loan definition. The Bureau also stated that it was considering whether to propose revisions to the General QM loan definition in light of the potential expiration of the Temporary GSE QM loan definition and requested comments on several topics related to the General QM loan definition, including whether and how the Bureau should revise the DTI limit in the General QM loan definition; whether the Bureau should supplement or replace the DTI limit with another method for directly measuring a consumer’s personal finances; whether the Bureau should revise appendix Q or replace it with other standards for calculating and verifying a consumer’s debt and income; and whether, instead of a DTI limit, the Bureau should adopt standards that do not directly measure a consumer’s 27 See Bureau of Consumer Fin. Prot., Call for Evidence, https://www.consumerfinance.gov/policycompliance/notice-opportunities-comment/archiveclosed/call-for-evidence (last updated June 12, 2020). 28 83 FR 10437 (Mar. 9, 2018). 29 83 FR 12286 (Mar. 21, 2018). 30 83 FR 12881 (Mar. 26, 2018). VerDate Sep<11>2014 17:00 Jul 09, 2020 Jkt 250001 personal finances.31 The Bureau requested comment on how much time industry would need to change its practices in response to any changes the Bureau makes to the General QM loan definition.32 The Bureau received 85 comments on the ANPR from businesses in the mortgage industry (including creditors), consumer advocacy groups, elected officials, individuals, and research centers. IV. Legal Authority The Bureau is proposing to amend Regulation Z pursuant to its authority under TILA and the Dodd-Frank Act. Section 1061 of the Dodd-Frank Act transferred to the Bureau the ‘‘consumer financial protection functions’’ previously vested in certain other Federal agencies, including the Board. The Dodd-Frank Act defines the term ‘‘consumer financial protection function’’ to include ‘‘all authority to prescribe rules or issue orders or guidelines pursuant to any Federal consumer financial law, including performing appropriate functions to promulgate and review such rules, orders, and guidelines.’’ 33 Title X of the Dodd-Frank Act (including section 1061), along with TILA and certain subtitles and provisions of title XIV of the Dodd-Frank Act, are Federal consumer financial laws.34 Section 105(a) of TILA directs the Bureau to prescribe regulations to carry out the purposes of TILA and states that such regulations may contain such additional requirements, classifications, differentiations, or other provisions and may further provide for such adjustments and exceptions for all or any class of transactions that the Bureau judges are necessary or proper to effectuate the purposes of TILA, to prevent circumvention or evasion thereof, or to facilitate compliance therewith.35 A purpose of TILA is ‘‘to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit.’’ 36 Additionally, a purpose of TILA FR 37155, 37155, 37160–62 (July 31, 2019). at 37162. The Bureau stated that if the answer to this question depends on how the Bureau revises the definition, the Bureau requested answers based on alternative possible definitions. 33 12 U.S.C. 5581(a)(1)(A). 34 Dodd-Frank Act section 1002(14), 12 U.S.C. 5481(14) (defining ‘‘Federal consumer financial law’’ to include the ‘‘enumerated consumer laws’’ and the provisions of title X of the Dodd-Frank Act), Dodd-Frank Act section 1002(12)(O), 12 U.S.C. 5481(12)(O) (defining ‘‘enumerated consumer laws’’ to include TILA). 35 15 U.S.C. 1604(a). 36 15 U.S.C. 1601(a). PO 00000 31 84 32 Id. Frm 00013 Fmt 4702 Sfmt 4702 41451 sections 129B and 129C is to assure that consumers are offered and receive residential mortgage loans on terms that reasonably reflect their ability to repay the loans and that are understandable and not unfair, deceptive, or abusive.37 As discussed in the section-by-section analysis below, the Bureau is proposing to issue certain provisions of this proposed rule pursuant to its rulemaking, adjustment, and exception authority under TILA section 105(a). Section 129C(b)(3)(B)(i) of TILA authorizes the Bureau to prescribe regulations that revise, add to, or subtract from the criteria that define a QM upon a finding that such regulations are necessary or proper to ensure that responsible, affordable mortgage credit remains available to consumers in a manner consistent with the purposes of TILA section 129C; or are necessary and appropriate to effectuate the purposes of TILA sections 129B and 129C, to prevent circumvention or evasion thereof, or to facilitate compliance with such sections.38 In addition, TILA section 129C(b)(3)(A) directs the Bureau to prescribe regulations to carry out the purposes of section 129C.39 As discussed in the section-by-section analysis below, the Bureau is proposing to issue certain provisions of this proposed rule pursuant to its authority under TILA section 129C(b)(3)(B)(i). Section 1022(b)(1) of the Dodd-Frank Act authorizes the Bureau to prescribe rules to enable the Bureau to administer and carry out the purposes and objectives of the Federal consumer financial laws, and to prevent evasions thereof.40 TILA and title X of the DoddFrank Act are Federal consumer financial laws. Accordingly, the Bureau is proposing to exercise its authority under Dodd-Frank Act section 1022(b) to prescribe rules that carry out the purposes and objectives of TILA and title X and prevent evasion of those laws. V. Why the Bureau Is Issuing This Proposal The Bureau proposes to revise the ATR/QM Rule to provide that the Temporary GSE QM loan definition would expire on the effective date of a final rule issued by the Bureau amending the General QM loan definition, or when the GSEs exit conservatorship, whichever comes first.41 The Bureau is proposing those 37 15 U.S.C. 1639b(a)(2). U.S.C. 1639c(b)(3)(B)(i). 39 15 U.S.C. 1639c(b)(3)(A). 40 12 U.S.C. 5512(b)(1). 41 The Bureau is also proposing to make confirming changes to the commentary. The Bureau 38 15 E:\FR\FM\10JYP1.SGM Continued 10JYP1 41452 Federal Register / Vol. 85, No. 133 / Friday, July 10, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS amendments to the General QM loan definition in a separate proposal issued simultaneously with this proposal. In that notice of proposed rulemaking, the Bureau is proposing to remove the General QM loan definition’s 43 percent DTI limit and replace it with a pricebased threshold. Under that proposal, a loan would meet the General QM loan definition in § 1026.43(e)(2) only if the APR exceeds the average prime offer rate (APOR) for a comparable transaction by less than two percentage points as of the date the interest rate is set.42 The proposal would retain the existing productfeature and underwriting requirements and limits on points and fees. Although the proposal would remove the 43 percent DTI limit from the General QM loan definition, the proposal would require that the creditor consider the consumer’s income or assets, debt, and DTI ratio or residual income and verify the consumer’s current or reasonably expected income or assets other than the value of the dwelling (including any real property attached to the dwelling) that secures the loan and the consumer’s current debt obligations, alimony, and child support. The proposal would remove appendix Q, but would include clarifications of the requirements to consider and verify a consumer’s income, assets, debt obligations, alimony, and child support, to help prevent compliance uncertainty that could otherwise result from the removal of appendix Q. The proposal would preserve the current threshold separating safe harbor from rebuttable presumption QMs, under which a loan is a safe harbor QM if its APR exceeds APOR for a comparable transaction by less than 1.5 percentage points as of the date the interest rate is set (or by less than 3.5 percentage points for subordinate-lien transactions). Although the Bureau is proposing to remove the 43 percent DTI limit and adopt a pricebased approach for the General QM loan definition, the Bureau is also requesting comment on two alternative approaches: (1) Retaining the DTI limit and increasing it to a specific threshold between 45 percent and 48 percent or (2) using a hybrid approach involving both pricing and a DTI limit, such as applying a DTI limit to loans that are above specified rate spreads. Under these alternative approaches, creditors is not proposing changes to the language in § 1026.43(e)(4)(ii)(A)(1) providing that the Temporary GSE QM loan definition will expire when the GSEs cease to operate under conservatorship of the FHFA. 42 That proposal would also provide higher thresholds for loans with smaller loan amounts and for subordinate-lien transactions. VerDate Sep<11>2014 17:00 Jul 09, 2020 Jkt 250001 would not be required to count or verify the DTI ratio using appendix Q. The Bureau expects that the proposed amendments would, among other things, allow some portion of loans that currently could receive QM status under the Temporary GSE QM loan definition to receive QM status under the General QM loan definition if they are made after the Temporary GSE QM loan definition expires. The Bureau tentatively determines that the proposed extension would ensure that responsible, affordable credit remains available to consumers who may be affected if the Temporary GSE QM loan definition expires before these amendments to the General QM loan definition take effect. In the Bureau’s preliminary view, it is likely that many consumers who would have obtained loans under the Temporary GSE QM loan definition—and who would be able to obtain loans under the amended General QM loan definition, as separately proposed by the Bureau— would not be able to obtain loans at all if the Temporary GSE QM loan definition expires and final amendments to the General QM loan definition have not gone into effect. Further, for loans absorbed by FHA and the private market in the absence of the Temporary GSE QM loan definition, there is significant risk that some consumers would pay more for these loans, although any pricing effects would depend on the characteristics of the particular loans that would be originated as FHA loans or in the private market. To prevent these likely effects on the availability and cost of credit if the Temporary GSE QM loan definition expires before final amendments to the General QM loan definition take effect, the Bureau proposes to revise the ATR/QM Rule to provide that the Temporary GSE QM loan definition would expire on the effective date of a final rule issued by the Bureau amending the General QM loan definition, or when the GSEs exit conservatorship, whichever comes first. A. Why the Bureau Created the Temporary GSE QM Loan Definition In the January 2013 Final Rule, the Bureau explained why it created the Temporary GSE QM loan category. The Bureau observed that it did not believe that a 43 percent DTI ratio ‘‘represents the outer boundary of responsible lending’’ and acknowledged that historically, and even after the financial crisis, over 20 percent of mortgages exceeded that threshold.43 The Bureau believed, however, that, as DTI ratios PO 00000 43 78 FR 6408, 6527 (Jan. 30, 2013). Frm 00014 Fmt 4702 Sfmt 4702 increase, ‘‘the general ability-to-repay procedures, rather than the qualified mortgage framework, is better suited for consideration of all relevant factors that go to a consumer’s ability to repay a mortgage loan’’ and that ‘‘[o]ver the long term . . . there will be a robust and sizable market for prudent loans beyond the 43 percent threshold even without the benefit of the presumption of compliance that applies to qualified mortgages.’’ 44 At the same time, the Bureau noted that the mortgage market was especially fragile following the financial crisis, and GSE-eligible loans and federally insured or guaranteed loans made up a significant majority of the market.45 The Bureau believed that it was appropriate to consider for a period of time that GSE-eligible loans were originated with an appropriate assessment of the consumer’s ability to repay and therefore warranted being treated as QMs.46 The Bureau believed in 2013 that this temporary category of QM loans would, in the near term, help to ensure access to responsible, affordable credit for consumers with DTI ratios above 43 percent, as well as facilitate compliance by creditors by promoting the use of widely recognized, federally related underwriting standards.47 The January 2013 Final Rule established a sunset date for the Temporary GSE QM loan definition of January 10, 2021 (seven years after that rule’s effective date), or when the GSEs exit conservatorship, whichever comes first.48 The Bureau stated that it believed a seven-year period between the Rule’s effective date and the Temporary GSE QM loan definition’s sunset date would ‘‘provide an adequate period for economic, market, and regulatory conditions to stabilize’’ and ‘‘a reasonable transition period to the general qualified mortgage definition.’’ 49 The Bureau believed that the Temporary GSE QM loan definition would benefit consumers by preserving access to credit while the mortgage industry adjusted to the ATR/QM Rule.50 The Bureau also explained that it structured the Temporary GSE QM loan definition to cover loans eligible to be purchased or guaranteed by either of the GSEs—regardless of whether the loans are actually purchased or guaranteed—to leave room for non-GSE private investors to return to the market 44 Id. at 6527–28. at 6533–34. 46 Id. at 6534. 47 Id. at 6533. 48 See 12 CFR 1026.43(e)(4)(ii)(A)(1) and (e)(4)(iii)(B). 49 78 FR 6408, 6534 (Jan. 30, 2013). 50 Id. at 6536. 45 Id. E:\FR\FM\10JYP1.SGM 10JYP1 Federal Register / Vol. 85, No. 133 / Friday, July 10, 2020 / Proposed Rules and secure the same legal protections as the GSEs.51 The Bureau believed that, as the market recovered, the GSEs and the Federal agencies would be able to reduce their market presence, the percentage of Temporary GSE QM loans would decrease, and the market would shift toward General QM loans and nonQM loans above a 43 percent DTI ratio.52 The Bureau’s view was that a shift towards non-QM loans could be supported by the non-GSE private market—i.e., by institutions holding such loans in portfolio, selling them in whole, or securitizing them in a rejuvenated private-label securities (PLS) market. The Bureau noted that, pursuant to its statutory obligations under the Dodd-Frank Act, it would assess the impact of the ATR/QM Rule five years after the Rule’s effective date, and the assessment would provide an opportunity to analyze the Temporary GSE QM loan definition.53 B. The Current State of the Mortgage Market The mortgage market has evolved differently than the Bureau predicted when it issued the January 2013 Final Rule. As explained below, and contrary to the Bureau’s expectations, the market has not shifted away from Temporary GSE QM originations and the private market 54 remains small. As noted in the Assessment Report, Temporary GSE QM originations continue to represent ‘‘a large and persistent’’ share of originations in the conforming segment of the mortgage market, and a robust and sizable market to support non-QM lending has not emerged.55 The GSEs’ share of the conventional, conforming purchase-mortgage market was large before the ATR/QM Rule, and the Assessment found a small increase in that share since the Rule’s effective date, reaching 71 percent in 2017.56 The Assessment Report noted that, at least for loans intended for sale in the secondary market, creditors generally offer a Temporary GSE QM loan even when a General QM loan could be originated.57 51 Id. at 6534. 52 Id. jbell on DSKJLSW7X2PROD with PROPOSALS 53 Id. 54 Consistent with the Assessment Report, references to the private market herein include loans securitized by PLS and loans financed by portfolio lending by commercial banks, credit unions, savings banks, savings associations, mortgage banks, life insurance companies, finance companies, their affiliate institutions, and other private purchasers. See Assessment Report, supra note 22, at 74. 55 Id. at 198. 56 Id. at 191. 57 Id. at 192. VerDate Sep<11>2014 17:00 Jul 09, 2020 Jkt 250001 The continued prevalence of Temporary GSE QM loan originations is contrary to the Bureau’s expectation at the time it issued the January 2013 Final Rule.58 The Assessment Report discussed several possible reasons for the continued prevalence of Temporary GSE QM loan originations. The Assessment Report first highlighted commenters’ concerns with the perceived lack of clarity in appendix Q and found that such concerns ‘‘may have contributed to investors’—and at least derivatively, creditors’— preference’’ for Temporary GSE QM loans instead of originating loans under the General QM loan definition.59 In addition, the Bureau has not revised appendix Q since 2013, while other standards for calculating and verifying debt and income have been updated more frequently.60 ANPR commenters also expressed concern with appendix Q and stated that the Temporary GSE QM loan definition has benefited creditors and consumers by enabling creditors to originate QMs without having to use appendix Q. The Assessment Report noted that a second possible reason for the continued prevalence of Temporary GSE QM loans is that the GSEs were able to accommodate demand for mortgages above the General QM loan definition’s DTI limit of 43 percent as the DTI ratio distribution in the market shifted upward.61 According to the Assessment Report, in the years since the ATR/QM Rule took effect, house prices have increased and consumers hold more mortgage and other debt (including student loan debt), all of which have caused the DTI ratio distribution to shift upward.62 The Assessment Report noted that the share of GSE home purchase loans with DTI ratios above 43 percent has increased since the ATR/QM Rule took effect in 2014.63 The available data suggest that such high-DTI lending has declined in the non-GSE market relative to the GSE market.64 The non-GSE market has constricted even with respect to highly qualified consumers; those with higher incomes and higher credit scores are representing a greater share of denials.65 The Assessment Report found that a third possible reason for the persistence of Temporary GSE QM loans is the structure of the secondary market.66 If PO 00000 58 Id. at 13, 190, 238. at 193. 60 Id. at 193–94. 61 Id. at 194. 62 Id. 63 Id. at 194–95. 64 Id. at 119–20. 65 Id. at 153. 66 Id. at 196. creditors adhere to the GSEs’ guidelines, they gain access to a robust, highly liquid secondary market.67 In contrast, while private market securitizations have grown somewhat in recent years, their volume is still a fraction of their pre-crisis levels.68 There were less than $20 billion in new origination PLS issuances in 2017, compared with $1 trillion in 2005,69 and only 21 percent of new origination PLS issuances in 2017 were non-QM issuances.70 To the extent that private securitizations have occurred since the ATR/QM Rule took effect in 2014, the majority of new origination PLS issuances have consisted of prime jumbo loans made to consumers with strong credit characteristics, and these securities have a low share of non-QM loans.71 The Assessment Report notes that the Temporary GSE QM loan definition may itself be inhibiting the growth of the non-QM market.72 However, the Assessment Report also notes that it is possible that this market might not exist even with a narrower Temporary GSE QM loan definition, if consumers were unwilling to pay the premium charged to cover the potential litigation risk associated with non-QMs, which do not have presumption of compliance with the ATR/QM Rule, or if creditors were unwilling or lack the funding to make the loans.73 The Bureau expects that each of these features of the mortgage market that concentrate lending within the Temporary GSE QM loan definition will largely persist through the current January 10, 2021 sunset date. C. Potential Market Impact of the Temporary GSE QM Loan Definition’s Expiration The Bureau anticipates that there are two main types of conventional loans that would be affected by the expiration of the Temporary GSE QM loan definition: High-DTI GSE loans (those with DTI ratios above 43 percent) and GSE-eligible loans without appendix Qrequired documentation. These loans are currently originated as QM loans due to the Temporary GSE QM loan definition but would not be originated as General QM loans, and may not be originated at all, if the Temporary GSE QM loan definition were to expire before amendments to the General QM loan definition are in effect. This 59 Id. Frm 00015 Fmt 4702 67 Id. 68 Id. 69 Id. 70 Id. at 197. at 196. 72 Id. at 205. 73 Id. 71 Id. Sfmt 4702 41453 E:\FR\FM\10JYP1.SGM 10JYP1 41454 Federal Register / Vol. 85, No. 133 / Friday, July 10, 2020 / Proposed Rules proposal refers to these loans as potentially displaced loans. High-DTI GSE Loans. The ANPR provided an estimate of the number of loans potentially affected by the expiration of the Temporary GSE QM loan definition.74 In providing the estimate, the ANPR focused on loans that fall within the Temporary GSE QM loan definition but not the General QM loan definition because they have a DTI ratio above 43 percent. This proposal refers to these loans as High-DTI GSE loans. Based on data from the National Mortgage Database (NMDB), the Bureau estimated that there were approximately 6.01 million closed-end first-lien residential mortgage originations in the United States in 2018.75 Based on supplemental data provided by the FHFA, the Bureau estimated that the GSEs purchased or guaranteed 52 percent—roughly 3.12 million—of those loans.76 Of those 3.12 million loans, the Bureau estimated that 31 percent— approximately 957,000 loans—had DTI ratios greater than 43 percent.77 Thus, the Bureau estimated that, as a result of the General QM loan definition’s 43 percent DTI limit, approximately 957,000 loans—16 percent of all closedend first-lien residential mortgage originations in 2018—were High-DTI GSE loans.78 This estimate does not include Temporary GSE QM loans that were eligible for purchase by either of the GSEs but were not sold to the GSEs. Loans Without Appendix Q-Required Documentation That Are Otherwise GSE-Eligible. In addition to High-DTI GSE loans, the Bureau noted that an additional, smaller number of Temporary GSE QM loans with DTI ratios of 43 percent or less when calculated using GSE underwriting guides would not fall within the General QM loan definition because their method of documenting and verifying income or debt is incompatible with appendix Q.79 These loans would also likely be affected when the Temporary GSE QM loan definition expires. The Bureau understands, from extensive public feedback and its own experience, 74 84 FR 37155, 37158–59 (July 31, 2019). 75 Id. 76 Id. at 37159. The Bureau estimates that 616,000 of these loans were for home purchases, and 341,000 were refinance loans. In addition, the Bureau estimates that the share of these loans with DTI ratios over 45 percent has varied over time due to changes in market conditions and GSE underwriting standards, rising from 47 percent in 2016 to 56 percent in 2017, and further to 69 percent in 2018. 78 Id. 79 Id. at 37159 n.58. Where these types of loans have DTI ratios above 43 percent, they would be captured in the estimate above relating to High-DTI GSE loans. jbell on DSKJLSW7X2PROD with PROPOSALS 77 Id. VerDate Sep<11>2014 17:00 Jul 09, 2020 Jkt 250001 that appendix Q does not specifically address whether and how to document and include certain forms of income. The Bureau understands these concerns are particularly acute for self-employed consumers, consumers with part-time employment, and consumers with irregular or unusual income streams.80 As a result, these consumers’ access to credit may be affected if the Temporary GSE QM loan definition were to expire before amendments to the General QM loan definition are in effect. The Bureau’s analysis of the market under the baseline focuses on High-DTI GSE loans because the Bureau estimates that most potentially displaced loans are High-DTI GSE loans. The Bureau also lacks the loan-level documentation and underwriting data necessary to estimate with precision the number of potentially displaced loans that do not fall within the other General QM loan requirements and are not High-DTI GSE loans. However, the Assessment did not find evidence of substantial numbers of loans in the non-GSE-eligible jumbo market being displaced when appendix Q verification requirements became effective in 2014.81 Further, the Assessment Report found evidence of only a limited reduction in the approval rate of self-employed applicants for nonGSE eligible mortgages.82 Based on this evidence, along with qualitative comparisons of GSE and appendix Q documentation requirements and available data on the prevalence of borrowers with non-traditional or difficult-to-document income (e.g., selfemployed borrowers, retired borrowers, those with irregular income streams), the Bureau estimates this second category of potentially displaced loans is considerably less numerous than the category of High-DTI GSE loans. Additional Effects on Loans Not Displaced. While the most significant 80 For example, in qualitative responses to the Bureau’s Lender Survey conducted as part of the Assessment, underwriting for self-employed borrowers was one of the most frequently reported sources of difficulty in originating mortgages using appendix Q. These concerns were also raised in comments submitted in response to the Assessment RFI, noting that appendix Q is ambiguous with respect to how to treat income for consumers who are self-employed, have irregular income, or want to use asset depletion as income. See Assessment Report, supra note 22, at 200. 81 Id. at 107 (‘‘For context, total jumbo purchase originations increased from an estimated 108,700 to 130,200 between 2013 and 2014, based on nationally representative NMDB data.’’). 82 Id. at 118 (‘‘The Application Data indicates that, notwithstanding concerns that have been expressed about the challenge of documenting and verifying income for self-employed borrowers under the General QM standard and the documentation requirements contained in appendix Q to the Rule, approval rates for non-High-DTI, non-GSE eligible self-employed borrowers have decreased only slightly, by two percentage points.’’). PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 market effects under the baseline are displaced loans, loans that continue to be originated as QM loans after the expiration of the Temporary GSE QM loan definition would also be affected. After the sunset date, all loans with DTI ratios at or below 43 percent that are or would have been purchased and guaranteed as GSE loans under the Temporary GSE QM loan definition— approximately 2.16 million loans in 2018—and that continue to be originated as General QM loans after the provision expires would be required to verify income and debts according to appendix Q, rather than only according to GSE guidelines. Given the concerns raised about appendix Q’s ambiguity and lack of flexibility, this would likely entail both increased documentation burden for some consumers as well as increased costs or time-to-origination for creditors on some loans.83 In response to the ANPR, the Bureau received additional estimates regarding the number of potentially displaced loans. Two comments cited data from a private provider of mortgage market data indicating that 16 percent of mortgages originated in 2018 were considered QMs solely due to the Temporary GSE QM loan definition. One of those comments also stated that a mortgage banker with $4.5 billion in mortgage loan volume estimated that 25 percent of their mortgages originated in 2018 were considered QMs solely due to the Temporary GSE QM loan definition. This comment also stated that a credit union with $68 million in mortgage loan volume estimated 17 percent of their mortgages originated in 2018 were considered QMs solely due to the Temporary GSE QM loan definition. A comment from a creditor with a mortgage loan volume of $630 million stated that 20 percent of the commenter’s mortgages originated in 2018 were considered QMs solely due to the Temporary GSE QM loan definition. These estimates are generally in line with the Bureau’s estimates. Focusing on High-DTI GSE loans, the Bureau expects that these loans will continue to comprise a significant proportion of mortgage originations through January 10, 2021, when the Temporary GSE QM loan definition is currently scheduled to expire.84 The ANPR identified several ways that the market for loans that would have been High-DTI GSE loans may respond to the expiration of the Temporary GSE QM loan definition.85 In doing so, the 83 See part V.B. for additional discussion of concerns raised about appendix Q. 84 84 FR 37155, 37159 (July 31, 2019). 85 Id. E:\FR\FM\10JYP1.SGM 10JYP1 Federal Register / Vol. 85, No. 133 / Friday, July 10, 2020 / Proposed Rules Bureau made assumptions about the future behavior of certain mortgage market participants: (1) That there is no change to the GSEs’ current policy that does not allow purchase of non-QM loans; and (2) that creditors’ preference for making Temporary GSE QM loans, and investors’ preference for purchasing such loans, is driven in part by the safe harbor provided to such loans and that these preferences would continue at least for some creditors and investors.86 Given these assumptions, the Bureau expects that many consumers who would have obtained High-DTI GSE loans would instead obtain FHAinsured loans because FHA currently insures loans with DTI ratios up to 57 percent.87 The number of loans that move to FHA would depend on FHA’s willingness and ability to insure such loans, on whether FHA continues to treat all loans that it insures as QMs under its own QM rule, and on how many High-DTI GSE loans exceed FHA’s loan-amount limit.88 For example, the Bureau estimates that, in 2018, 11 percent of High-DTI GSE loans exceeded FHA’s loan-amount limit.89 The Bureau considers this an outer limit on the share of High-DTI GSE loans that could move to FHA.90 The Bureau expects that loans that are originated as FHA loans instead of under the Temporary GSE QM loan definition would generally cost materially more for many consumers.91 The Bureau expects that some consumers offered FHA loans may choose not to take out a mortgage because of these higher costs. It is also possible that some consumers who would have sought jbell on DSKJLSW7X2PROD with PROPOSALS 86 Id. 87 Id. In fiscal year 2019, approximately 57 percent of FHA-insured purchase mortgages had a DTI ratio above 43 percent. U.S. Dep’t of Hous. & Urban Dev., Annual Report to Congress Regarding the Financial Status of the FHA Mutual Mortgage Insurance Fund, Fiscal Year 2019, at 33 (Nov. 14, 2018), https://www.hud.gov/sites/dfiles/Housing/ documents/2019FHAAnnualReportMMIFund.pdf. 88 84 FR 37155, 37159 (July 31, 2019). 89 Id. In 2018, FHA’s county-level maximum loan limits ranged from $271,050 to $721,050. See U.S. Dep’t of Hous. & Urban Dev., FHA Mortgage Limits, https://entp.hud.gov/idapp/html/hicostlook.cfm (last visited June 12, 2020). 90 84 FR 37155, 37159 (July 31, 2019). 91 Interest rates and insurance premiums on FHA loans generally feature less risk-based pricing than conventional loans, charging more similar rates and premiums to all consumers. As a result, they are likely to cost more than conventional loans for consumers with stronger credit scores and larger down payments. Consistent with this pricing differential, consumers with higher credit scores and larger down payments chose FHA loans relatively rarely in 2018 HMDA data on mortgage originations. See Bureau of Consumer Fin. Prot., Introducing New and Revised Data Points in HMDA (Aug. 2019), https://files.consumerfinance.gov/f/ documents/cfpb_new-revised-data-points-in-hmda_ report.pdf. VerDate Sep<11>2014 17:00 Jul 09, 2020 Jkt 250001 High-DTI GSE loans would be able to obtain loans in the private market.92 The ANPR noted that the number of loans absorbed by the private market would likely depend, in part, on whether actors in the private market are willing to assume the legal and credit risk associated with funding High-DTI GSE loans as non-QM loans or small-creditor portfolio QM loans 93 and, if so, whether actors in the private market would offer more competitive pricing or terms.94 For example, the Bureau estimates that 55 percent of High-DTI GSE loans in 2018 had credit scores at or above 680 and loan-to-value (LTV) ratios at or below 80 percent—credit characteristics traditionally considered attractive to actors in the private market.95 The ANPR also noted that there are certain built-in costs to FHA loans—namely, mortgage insurance premiums—which could be a basis for competition, and that depository institutions in recent years have shied away from originating and servicing FHA loans due to the obligations and risks associated with such loans.96 However, the Assessment Report found that a robust market for non-QM loans above the 43 percent DTI limit has not materialized as the Bureau had predicted. Therefore, there is limited capacity in the non-QM market to provide access to credit after the expiration of the Temporary GSE QM loan definition.97 As described above, the non-QM market has been further reduced by the recent economic disruptions associated with the COVID– 19 pandemic, with most mortgage credit now available in the QM lending space. The Bureau acknowledges that the slow development of the non-QM market, and the recent economic disruptions that may significantly hinder its development in the near term, may further reduce access to credit outside the QM space. Finally, the ANPR noted that some consumers who would have sought High-DTI GSE loans may adapt to changing options and make different choices, such as adjusting their borrowing to result in a lower DTI ratio.98 However, some consumers who 41455 would have sought High-DTI GSE loans may not obtain loans at all.99 D. Why the Bureau Is Proposing To Extend the Temporary GSE QM Loan Definition The Bureau anticipates that if the Temporary GSE QM loan definition expires as scheduled and there are no changes to the General QM loan definition prior to expiration, many High-DTI GSE loans and loans without appendix Q-required documentation that are otherwise GSE-eligible would not be made and many would cost consumers materially more.100 In a separate proposal issued simultaneously with this proposal, the Bureau is proposing to remove the General QM loan definition’s DTI limit and replace it with a limit based on the loan’s pricing. Under the proposal, a loan would meet the General QM loan definition only if the APR exceeds APOR for a comparable transaction by less than two percentage points as of the date the interest rate is set.101 The proposal would also provide higher thresholds for loans with smaller loan amounts and for subordinate-lien transactions. The Bureau expects that the proposed amendments would, among other things, allow some portion of loans that currently could receive QM status under the Temporary GSE QM loan definition to receive QM status under the General QM loan definition if they are made after the Temporary GSE QM loan definition expires. The Bureau is concerned about the likely effects on the availability and cost of credit if the Temporary GSE QM loan definition expires before final amendments to the General QM loan definition take effect. While the Bureau can estimate the outer limit of the share of High-DTI GSE loans that could be originated by the FHA, the Bureau cannot estimate with precision the extent to which loans would be absorbed by the FHA, or the characteristics of the particular loans that might be so absorbed.102 Similarly, 99 Id. 100 See supra part V.C. proposal would preserve the current threshold separating safe harbor from rebuttable presumption QMs, under which a loan is a safe harbor QM if its APR exceeds APOR for a comparable transaction by less than 1.5 percentage points as of the date the interest rate is set (or by less than 3.5 percentage points for subordinate-lien transactions). 102 Assuming they are still originated, potentially displaced loans made with high LTVs or to consumers with low credit scores are the least likely to be absorbed by the private market, and thus most likely to be absorbed by the FHA. The exact characteristics of loans likely to be absorbed by the FHA would depend on the relative pricing 101 The FR 37155, 37159 (July 31, 2019). 12 CFR 1026.43(e)(5) (extending QM status to certain portfolio loans originated by certain small creditors). In addition, section 101 of the Economic Growth, Regulatory Relief, and Consumer Protection Act, Public Law 115–174, sec. 101, 132 Stat. 1296, 1297 (2018), amended TILA to add a safe harbor for small-creditor portfolio loans. See 15 U.S.C. 1639c(b)(2)(F). 94 84 FR 37155, 37159 (July 31, 2019). 95 Id. 96 Id. 97 Assessment Report, supra note 22 at 198. 98 84 FR 37155, 37159 (July 31, 2019). PO 00000 92 84 93 See Frm 00017 Fmt 4702 Sfmt 4702 E:\FR\FM\10JYP1.SGM Continued 10JYP1 jbell on DSKJLSW7X2PROD with PROPOSALS 41456 Federal Register / Vol. 85, No. 133 / Friday, July 10, 2020 / Proposed Rules while the Bureau also anticipates that the private market may absorb additional loans that would have been High-DTI GSE loans, the Bureau is uncertain as to the private market’s capacity to absorb these loans in the short term—as a robust market for nonQM loans above the 43 percent DTI limit has not materialized as the Bureau had predicted, and as the non-QM market has been further reduced by the current economic disruptions associated with the COVID–19 pandemic. And, as noted, the Bureau lacks the loan-level documentation and underwriting data necessary to estimate with precision the number of potentially displaced loans that do not fall within the General QM loan definition due to appendix Qrelated issues and are not High-DTI GSE loans. Despite these uncertainties, it is likely that many consumers who would have obtained loans under the Temporary GSE QM loan definition— and who would be able to obtain loans under the amended General QM loan definition, as separately proposed by the Bureau—would not be able to obtain loans at all if the Temporary GSE QM loan definition expires and final amendments to the General QM loan definition have not gone into effect.103 Further, for loans absorbed by the FHA and the private market in the absence of the Temporary GSE QM loan definition, there is significant risk that some consumers would pay more for these loans, although any pricing effects would depend on the characteristics of the particular loans that would be originated as FHA loans or in the private market.104 To prevent these likely effects on the availability and cost of credit if the Temporary GSE QM loan definition expires before final amendments to the General QM loan definition take effect, the Bureau proposes to extend the Temporary GSE QM loan definition until the effective date of a final rule issued by the Bureau amending the General QM loan definition, or when the GSEs exit conservatorship, whichever comes first. The Bureau proposes this extension to ensure that responsible, affordable credit remains available to consumers who may be affected if the Temporary GSE QM loan definition expires before these amendments take effect.105 The Bureau stated in the January 2013 Final Rule that, for a limited period of time and while the GSEs are under conservatorship of the FHFA, it believed that GSE-eligible loans are originated with appropriate consideration of ability to repay.106 As discussed in the ANPR and below, the Bureau is concerned about presuming indefinitely that loans eligible for purchase or guarantee by either of the GSEs have been originated with appropriate consideration of the consumer’s ability to repay. However, the Bureau expects that, under current conditions, it may be appropriate nevertheless to extend that presumption for a short period until the effective date of Bureau amendments to the General QM loan definition, in light of concerns about effects on the availability and cost of credit if the Temporary GSE QM loan definition expires before a rule revising the General QM loan definition takes effect. Under the current rule the Temporary GSE QM loan definition would expire upon the date the GSEs exit conservatorship, even if that occurs prior to January 10, 2021. The Bureau is not proposing any amendments to this provision. If either of the GSEs ceases to operate under FHFA conservatorship prior to the finalization of the Bureau’s proposed amendments to the General QM loan definition, the Temporary GSE QM loan definition at § 1026.43(e)(4)(ii)(A) would no longer be available. The Bureau assumes that the conservatorship will remain in place until the conclusion of the rulemaking concerning the General QM loan definition; in the event final amendments to that definition are not in effect at the time the conservatorship of one or both of the GSEs is terminated, the Bureau will evaluate at that point what, if any, steps to take in response to such a termination of conservatorship. Comments on § 1026.43(e)(4)(ii)(A) are outside the scope of this rulemaking and will not be considered. and underwriting requirements of FHA and private market alternatives. 103 See supra part V.C, noting that some consumers who would have sought High-DTI GSE loans may make different choices, such as by adjusting their borrowing to result in a lower DTI ratio. 104 The Assessment Report noted that, while there did not appear to be a marked change in the relative price of non-QM High-DTI loans immediately following the implementation of the ATR/QM Rule, other research has found a 25 basis point premium for non-QM High-DTI loans in more recent years. Assessment Report, supra note 22, at 121–22. 105 The Bureau expects to finalize a rule amending the General QM loan definition, at which point the Temporary GSE QM loan definition would expire under this proposed rule. However, the Bureau notes that in the unlikely event that such a rule is not finalized and the current General QM loan definition remains in place, the Bureau would revisit the Temporary GSE QM loan definition and take appropriate action. As noted above, the Bureau does not intend to maintain indefinitely a presumption that loans eligible for purchase or guarantee by either of the GSEs have been originated with appropriate consideration of the consumer’s ability to repay. 106 78 FR 6408, 6534 (Jan. 30, 2013). VerDate Sep<11>2014 17:00 Jul 09, 2020 Jkt 250001 PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 The Bureau’s actions in proposing to extend the Temporary GSE QM loan definition and, separately, to amend the General QM loan definition are informed by the publication in January 2019 of the Assessment Report, which it prepared as required by section 1022(d) of the Dodd-Frank Act. The Assessment Report provides information to allow the Bureau to analyze the impact and status of the ATR/QM Rule. The Bureau does not intend to issue a final rule amending the General QM loan definition early enough for it to take effect before April 1, 2021, particularly given that, as its separate proposal states, the Bureau proposes a six-month interval between Federal Register publication of a final rule and the rule’s effective date. VI. Section-by-Section Analysis 1026.43 Minimum Standards for Transactions Secured by a Dwelling 43(e) Qualified Mortgages 43(e)(4) Qualified Mortgage Defined— Special Rules 43(e)(4)(iii) Sunset of Special Rules 43(e)(4)(iii)(B) Section 1026.43(e)(4)(iii)(B) provides that the Temporary GSE QM loan definition is available only for covered transactions consummated on or before January 10, 2021.107 The Bureau proposes to revise § 1026.43(e)(4)(iii)(B) to state that the definition is available only for covered transactions consummated on or before the effective date of a final rule issued by the Bureau amending § 1026.43(e)(2). Revised § 1026.43(e)(4)(iii)(B) would also state that the Bureau will amend § 1026.43(e)(4)(iii)(B) as of that effective date to reflect the new status.108 Comment 43(e)(4)–3 clarifies the relationship between § 1026.43(e)(4)(iii)(B) and (ii)(A). The comment explains that the Temporary GSE QM loan definition applies only to loans consummated on or before January 10, 2021, regardless of whether 107 Section 1026.43(e)(4)(iii)(B) also applies to the other temporary QM loan definitions in § 1026.43(e)(4). However, as noted above in part II, these other temporary QM loan definitions have expired because the relevant Federal agencies have issued their own QM rules. See, e.g., 24 CFR 203.19 (HUD rule). 108 The Bureau is not proposing changes to § 1026.43(e)(4)(ii)(A), which provides that the Temporary GSE QM loan definition is available only for covered transactions consummated on or before the date Fannie Mae or Freddie Mac (or any limited-life regulatory entity succeeding the charter of either), respectively, cease to operate under the conservatorship or receivership of the FHFA pursuant to section 1367 of the Federal Housing Enterprises Financial Safety and Soundness Act of 1992, 12 U.S.C. 4501 et seq. E:\FR\FM\10JYP1.SGM 10JYP1 Federal Register / Vol. 85, No. 133 / Friday, July 10, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS Fannie Mae or Freddie Mac (or any limited-life regulatory entity succeeding the charter of either) continues to operate under the conservatorship or receivership of the FHFA. The comment also explains that, accordingly, the Temporary GSE QM loan definition is available only for covered transactions consummated on or before the earlier of either (i) the date Fannie Mae or Freddie Mac (or any limited-life regulatory entity succeeding the charter of either), respectively, cease to operate under the conservatorship or receivership of the FHFA or (ii) January 10, 2021. The Bureau proposes to change each of the two references to January 10, 2021 in this comment to conform with the proposed change to § 1026.43(e)(4)(iii)(B). The Bureau also proposes to revise this comment to note that the Bureau will also amend this comment as of the effective date of a final rule issued by the Bureau amending § 1026.43(e)(2) to reflect the new status. The Bureau considers that, compared with the alternatives, the proposal better ensures the availability of responsible, affordable mortgage credit to consumers and better addresses the risk of disruption as the market transitions away from the Temporary GSE QM loan definition. The Bureau seeks comment on whether a different sunset date for the Temporary GSE QM loan definition would better ensure the availability of responsible, affordable mortgage credit to consumers and better address the risk of disruption as the market transitions away from the Temporary GSE QM loan definition.109 One alternative to the proposal would be to remove § 1026.43(e)(4)(iii)(B), as well as the language in 109 The Bureau notes that the proposed extension to the Temporary GSE QM loan definition’s sunset date does not apply to the temporary points-andfees cure provision in § 1026.43(e)(3)(iii), which is also set to expire on January 10, 2021. Unlike the Temporary GSE QM loan definition, the Bureau does not expect allowing the temporary points-andfees cure provision to expire on this date would disrupt the availability of responsible, affordable mortgage credit to consumers. See Assessment Report, supra note 22, at 12 (noting that applications for which the points-and-fees limit will be exceeded are sufficiently rare that creditors handle them on a case-by-case basis; that, specifically, lenders typically waive certain fees, with or without a compensating increase in the interest rate, to avoid exceeding the cap; and that creditors rarely deny an application to avoid exceeding the QM points-and-fees cap). Further, unlike the Temporary GSE QM loan definition, the Bureau is not currently planning any amendments to the points-and-fees provisions, so there is no need for the Bureau to extend the temporary provision while the Bureau implements such amendments. Comments on the expiration date for the temporary points-and-fees cure provision at § 1026.43(e)(3)(iii) are outside the scope of this rulemaking. VerDate Sep<11>2014 17:00 Jul 09, 2020 Jkt 250001 § 1026.43(e)(4)(ii)(A)(1) referring to conservatorship, from Regulation Z.110 This would make the Temporary GSE QM loan definition permanent. The Bureau is not proposing this alternative because it is concerned about presuming indefinitely that loans eligible to be purchased or guaranteed by either of the GSEs—whether or not the GSEs are under conservatorship—have been originated with appropriate consideration of consumers’ ability to repay.111 In addition, the Bureau is concerned that making the Temporary GSE QM loan definition permanent could stifle innovation and the development of competitive privatesector approaches to underwriting. The Bureau is also concerned that, as long as the Temporary GSE QM loan definition continues in effect, the non-GSE private market is less likely to rebound and that the existence of the Temporary GSE QM loan definition may be contributing to the continuing limited non-GSE private market. For these reasons, making the Temporary GSE QM loan definition permanent appears to be inconsistent with the purposes of TILA’s ATR provision and with the Bureau’s mandate. A second alternative would be to remove § 1026.43(e)(4)(iii)(B) from Regulation Z without removing the language in § 1026.43(e)(4)(ii)(A)(1) referring to conservatorship. This would keep the Temporary GSE QM loan definition in place until the end of conservatorship. The Bureau is not proposing this alternative because the Bureau expects that it will be able to issue final amendments to the General QM loan definition, and that those amendments would take effect, prior to the termination of conservatorship. Due to its concerns described in the paragraph above about negative effects of the Temporary GSE QM loan definition, the Bureau does not want to maintain the Temporary GSE QM loan definition any longer than necessary to amend the General QM loan definition and to ensure a smooth and orderly transition from the Temporary GSE QM loan definition to the revised General QM loan definition. A third alternative to the proposal would be to extend the sunset date in § 1026.43(e)(4)(iii)(B) to a date certain. this alternative, § 1026.43(e)(4)(ii)(A) would be revised to read: ‘‘To be purchased or guaranteed by the Federal National Mortgage Association or the Federal Home Loan Mortgage Corporation.’’ 111 For example, the Bureau’s Assessment Report noted that one GSE loosened its underwriting standards in ways that proved unsustainable during the time since the January 2013 Final Rule was issued. Assessment Report, supra note 22, at 194– 95. PO 00000 110 Under Frm 00019 Fmt 4702 Sfmt 4702 41457 The Bureau is not proposing to extend the sunset date to a date certain because it is concerned that proposing too short an extension may not provide the Bureau with adequate time to consider, propose, and promulgate amendments to the General QM loan definition and creditors with enough time to bring their operations into compliance with any amendments adopted by the Bureau. At the same time, the Bureau is concerned that proposing too long an extension would have the same type of negative effects as the Bureau describes in the paragraph above regarding making the Temporary GSE QM loan definition permanent, without any offsetting benefits because a longer extension is not needed to provide the Bureau with adequate time to consider, propose, and promulgate amendments to the General QM loan definition. As with the January 2013 Final Rule, the Bureau issues this proposal pursuant to its authority under TILA sections 129C(b)(3)(B)(i) and 105(a) and Dodd-Frank Act section 1022(b)(1). For the reasons described above in part V.D, the Bureau tentatively determines that the proposed extension of the Temporary GSE QM loan definition’s sunset date is necessary and proper to ensure that responsible, affordable mortgage credit remains available to consumers in a manner consistent with the purposes of TILA section 129C, as well as necessary and appropriate to effectuate the purposes of TILA section 129C—including the purpose of assuring that consumers are offered and receive residential mortgage loans on terms that reasonably reflect their ability to repay the loans and that are understandable and not unfair, deceptive, or abusive. For these same reasons, this proposed extension is necessary to effectuate the purposes of TILA, which include, among other things, the above-described purpose of TILA section 129C. The Bureau requests comment on the proposed revisions to § 1026.43(e)(4)(iii)(B) and comment 43(e)(4)–3 as well as its rationale for the proposed revisions. VII. Dodd-Frank Act Section 1022(b) Analysis A. Overview As discussed above, this proposal would delay the scheduled expiration of the Temporary GSE QM loan definition from January 10, 2021 to the effective date of a final rule issued by the Bureau amending the General QM loan definition. In developing this proposal, the Bureau has considered the potential benefits, costs, and impacts as required E:\FR\FM\10JYP1.SGM 10JYP1 41458 Federal Register / Vol. 85, No. 133 / Friday, July 10, 2020 / Proposed Rules by section 1022(b)(2)(A) of the DoddFrank Act. Specifically, section 1022(b)(2)(A) of the Dodd-Frank Act calls for the Bureau to consider the potential benefits and costs of a regulation to consumers and covered persons, including the potential reduction of access by consumers to consumer financial products or services, the impact on depository institutions and credit unions with $10 billion or less in total assets as described in section 1026 of the Dodd-Frank Act, and the impact on consumers in rural areas. The Bureau consulted with appropriate Federal agencies regarding the consistency of the proposed rule with prudential, market, or systemic objectives administered by such agencies as required by section 1022(b)(2)(B) of the Dodd-Frank Act. jbell on DSKJLSW7X2PROD with PROPOSALS 1. Data and evidence The discussion in this impact analyses relies on data from a range of sources. These include data collected or developed by the Bureau, including HMDA 112 and NMDB 113 data, as well as data obtained from industry, other regulatory agencies, and other publicly available sources. The Bureau also conducted the Assessment and issued the Assessment Report as required under section 1022(d) of the DoddFrank Act. The Assessment Report provides quantitative and qualitative information on questions relevant to the proposed rule, including the extent to which DTI ratios are probative of a consumer’s ability to repay, the effect of rebuttable presumption status relative to safe-harbor status on access to credit, and the effect of QM status relative to non-QM status on access to credit. Consultations with other regulatory 112 HMDA requires many financial institutions to maintain, report, and publicly disclose loan-level information about mortgages. These data help show whether creditors are serving the housing needs of their communities; they give public officials information that helps them make decisions and policies; and they shed light on lending patterns that could be discriminatory. HMDA was originally enacted by Congress in 1975 and is implemented by Regulation C. See Bureau of Consumer Fin. Prot., Mortgage Data (HMDA), https:// www.consumerfinance.gov/data-research/hmda/. 113 The NMDB, jointly developed by the FHFA and the Bureau, provides de-identified loan characteristics and performance information for a 5 percent sample of all mortgage originations from 1998 to the present, supplemented by de-identified loan and borrower characteristics from Federal administrative sources and credit reporting data. See Bureau of Consumer Fin. Prot., Sources and Uses of Data at the Bureau of Consumer Financial Protection, at 55–56 (Sept. 2018), https:// www.consumerfinance.gov/documents/6850/bcfp_ sources-uses-of-data.pdf. Differences in total market size estimates between NMDB data and Home Mortgage Disclosure Act (HMDA) data are attributable to differences in coverage and data construction methodology. VerDate Sep<11>2014 17:00 Jul 09, 2020 Jkt 250001 agencies, industry, and research organizations inform the Bureau’s impact analyses. The data the Bureau relied upon provide detailed information on the number, characteristics, and performance of mortgage loans originated in recent years. However, they do not provide information on creditor costs. As a result, analyses of any impacts of the proposal on creditor costs, particularly realized costs of complying with underwriting criteria or potential costs from legal liability are based on more qualitative information. Similarly, estimates of any changes in burden on consumers resulting from increased or decreased documentation requirements are based on qualitative information. The Bureau seeks comment on its analysis, and additional information or data which could inform quantitative estimates of the number of borrowers whose documentation cannot satisfy appendix Q, or the costs to borrowers or covered persons of complying with appendix Q documentation requirements. The Bureau also seeks comment or additional information which could inform quantitative estimates of the availability, underwriting, and pricing of non-QM alternatives to loans made under the Temporary GSE QM loan definition. 2. Description of the Baseline The Bureau considers the benefits, costs, and impacts of the proposal against the baseline in which the Bureau takes no action and the Temporary GSE QM loan definition expires on January 10, 2021 or when the GSEs exit conservatorship, whichever occurs first. Under the proposal, the Temporary GSE QM loan definition would expire when the GSEs exit conservatorship or on the effective date of a final rule issued by the Bureau amending the General QM loan definition, whichever occurs first. As a result, the proposal’s direct market impacts would occur only if the GSEs remain in conservatorship beyond January 10, 2021. The impact analyses assume the GSEs will remain in conservatorship for the relevant period of time. Under the baseline, when the Temporary GSE QM loan definition expires, conventional loans could only receive QM status under the Bureau’s rules by underwriting according to the General QM requirements, Small Creditor QM requirements, Balloon Payment QM requirements, or the expanded portfolio QM amendments created by the 2018 Economic Growth, Regulatory Relief, and Consumer Protection Act. The General QM loan PO 00000 Frm 00020 Fmt 4702 Sfmt 4702 definition, which would be the only type of QM available to larger creditors following the expiration of the Temporary GSE QM loan definition, requires that consumers’ DTI ratio not exceed 43 percent and requires creditors to determine debt and income in accordance with the standards in appendix Q of Regulation Z. As stated above in part V.C, the Bureau anticipates that, under the baseline in which the Temporary GSE QM loan definition expires, there are two main types of conventional loans that would be affected: High-DTI GSE loans (those with DTI ratios above 43 percent) and GSE-eligible loans without appendix Q-required documentation. Leaving the current fixed sunset date in place would affect these loans because they are currently originated as QM loans due to the Temporary GSE QM loan definition but would not be originated as General QM loans, and may not be originated at all, if the Temporary GSE QM loan definition were to expire before amendments to the General QM loan definition are in effect. This section 1022 analysis refers to these loans as potentially displaced loans. High-DTI GSE Loans. The ANPR provided an estimate of the number of loans potentially affected by the expiration of the Temporary GSE QM loan definition.114 In providing the estimate, the ANPR focused on loans that fall within the Temporary GSE QM loan definition but not the General QM loan definition because they have a DTI ratio above 43 percent. This proposal refers to these loans as High-DTI GSE loans. Based on NMDB data, the Bureau estimated that there were approximately 6.01 million closed-end first-lien residential mortgage originations in the United States in 2018.115 Based on supplemental data provided by the FHFA, the Bureau estimated that the GSEs purchased or guaranteed 52 percent—roughly 3.12 million—of those loans.116 Of those 3.12 million loans, the Bureau estimated that 31 percent— approximately 957,000 loans—had DTI ratios greater than 43 percent.117 Thus, the Bureau estimated that, as a result of the General QM loan definition’s 43 percent DTI limit, approximately 114 84 FR 37155, 37158–59 (July 31, 2019). 115 Id. 116 Id. at 37159. The Bureau estimates that 616,000 of these loans were for home purchases, and 341,000 were refinance loans. In addition, the Bureau estimates that the share of these loans with DTI ratios over 45 percent has varied over time due to changes in market conditions and GSE underwriting standards, rising from 47 percent in 2016 to 56 percent in 2017, and further to 69 percent in 2018. 117 Id. E:\FR\FM\10JYP1.SGM 10JYP1 Federal Register / Vol. 85, No. 133 / Friday, July 10, 2020 / Proposed Rules 957,000 loans—16 percent of all closedend first-lien residential mortgage originations in 2018—were High-DTI GSE loans.118 This estimate does not include Temporary GSE QM loans that were eligible for purchase by the GSEs but were not sold to the GSEs. Loans Without Appendix Q-Required Documentation That Are Otherwise GSE-Eligible. In addition to High-DTI GSE loans, the Bureau noted that an additional, smaller number of Temporary GSE QM loans with DTI ratios of 43 percent or less when calculated using GSE underwriting guides would not fall within the General QM loan definition because their method of documenting and verifying income or debt is incompatible with appendix Q.119 These loans would also likely be affected when the provision expires. The Bureau understands, from extensive public feedback and its own experience, that appendix Q does not specifically address whether and how to document and include certain forms of income. The Bureau understands these concerns are particularly acute for selfemployed consumers, consumers with part-time employment, and consumers with irregular or unusual income streams.120 As a result, these consumers’ access to credit may be affected if the Temporary GSE QM loan definition were to expire before amendments to the General QM loan definition are in effect. The Bureau’s analysis of the market under the baseline focuses on High-DTI GSE loans because the Bureau estimates most potentially displaced loans are High-DTI GSE loans. The Bureau also lacks the loan-level documentation and underwriting data necessary to estimate with precision the number of potentially displaced loans that do not fall within the other General QM loan requirements and are not High-DTI GSE loans. However, the Assessment did not find evidence of substantial numbers of loans in the non-GSE-eligible jumbo market being displaced when appendix Q documentation requirements became effective in 2014.121 Further, the Assessment Report found evidence of only a limited reduction in the approval rate of self-employed applicants for nonGSE eligible mortgages.122 Based on this evidence, along with qualitative comparisons of GSE and appendix Q documentation requirements and available data on the prevalence of borrowers with non-traditional or difficult-to-document income (e.g., selfemployed borrowers, retired borrowers, those with irregular income streams), the Bureau estimates this second category of potentially displaced loans is considerably less numerous than the category of High-DTI GSE loans. Additional Effects on Loans Not Displaced. While the most significant market effects under the baseline are displaced loans, loans which continue to be originated as QM loans after the expiration of the Temporary GSE QM loan definition would also be affected. After the sunset date, all loans with DTI ratios at or below 43 percent which are or would have been purchased and guaranteed as GSE loans under the Temporary GSE QM loan definition— approximately 2.16 million loans in 2018—and that continue to be originated as General QM loans after the provision expires would be required to verify income and debts according to appendix Q, rather than only according to GSE guidelines. Given the concerns raised about appendix Q’s ambiguity and lack of flexibility, this would likely entail both increased documentation burden for some consumers as well as increased costs or time-to-origination for creditors on some loans.123 B. Potential Benefits and Costs to Covered Persons and Consumers 1. Benefits to Consumers The primary benefit to consumers of the proposal is the continued availability of High-DTI GSE loans during the period of the extension. Given the large number of consumers who obtain such loans rather than available alternatives, including loans from the private non-GSE market and jbell on DSKJLSW7X2PROD with PROPOSALS 118 Id. 119 Id. at 37159 n.58. Where these types of loans have DTI ratios above 43 percent, they would be captured in the estimate above relating to High-DTI GSE loans. 120 For example, in qualitative responses to the Bureau’s Lender Survey conducted as part of the Assessment, underwriting for self-employed borrowers was one of the most frequently reported sources of difficulty in originating mortgages using appendix Q. These concerns were also raised in comments submitted in response to the Assessment RFI, noting that appendix Q is ambiguous with respect to how to treat income for consumers who are self-employed, have irregular income, or want to use asset depletion as income. See Assessment Report, supra note 22, at 200. VerDate Sep<11>2014 17:00 Jul 09, 2020 Jkt 250001 121 Assessment Report, supra note 22, at 107 (‘‘For context, total jumbo purchase originations increased from an estimated 108,700 to 130,200 between 2013 and 2014, based on nationally representative NMDB data.’’). 122 Id. at 118 (‘‘The Application Data indicates that, notwithstanding concerns that have been expressed about the challenge of documenting and verifying income for self-employed borrowers under the General QM standard and the documentation requirements contained in appendix Q to the Rule, approval rates for non-High DTI, non-GSE eligible self-employed borrowers have decreased only slightly, by two percentage points . . . .’’). 123 See part V.B. for additional discussion of concerns raised about appendix Q. PO 00000 Frm 00021 Fmt 4702 Sfmt 4702 41459 FHA loans, these GSE loans may be preferred due to their pricing, underwriting requirements, or other features. Under the baseline, a sizeable share of potentially displaced High-DTI GSE loans may instead be originated as FHA loans. Thus, under the proposal, any price advantage of GSE loans over FHA loans would be a realized benefit to consumers. Based on the Bureau’s analysis of 2018 HMDA data, FHA loans comparable to the loans received by High-DTI GSE borrowers, based on loan purpose, credit score, and combined LTV ratio, on average have $3,000 to $5,000 higher upfront total loan costs. APRs provide an alternative, annualized measure of costs over the life of a loan. FHA borrowers typically pay different APRs, which can be higher or lower than APRs for GSE loans depending on a borrower’s credit score and LTV. Borrowers with credit scores at or above 720 pay an APR 30 to 60 basis points higher than borrowers of comparable GSE loans, leading to higher monthly payments over the life of the loan. However, FHA borrowers with credit scores below 680 and combined LTVs exceeding 85 pay an APR 20 to 40 basis points lower than borrowers of comparable GSE loans, leading to lower monthly payments over the life of the loan.124 For a loan size of $250,000, these APR differences amount to $2,800 to $5,600 in additional total monthly payments over the first five years of mortgage payments for borrowers with credit scores above 720, and $1,900 to $3,800 in reduced total monthly payments over five years for borrowers with credit scores below 680 and LTVs exceeding 85.125 Thus all FHA borrowers are likely to pay higher costs at origination, while some pay higher monthly mortgage payments and others pay lower monthly mortgage payments. Assuming for comparison that all 957,000 High-DTI GSE loans would be made as FHA loans in the absence of the proposal, the average of the upfront pricing estimates implies total savings for consumers of roughly $4 billion per year on upfront costs while the Temporary GSE QM loan definition 124 The Bureau expects consumers could continue to obtain FHA loans where such loans were cheaper or preferred for other reasons. 125 Based on NMDB data, the Bureau estimates that the average loan amount among High-DTI GSE borrowers in 2018 was $250,000. While the time to repayment for mortgages varies with economic conditions, the Bureau estimates that half of mortgages are typically closed or paid off five to seven years into repayment. Payment comparisons based on typical 2018 HMDA APRs for GSE loans, five percent for borrowers with credit scores over 720, and six percent for borrowers with credit scores below 680 and LTVs exceeding 85. E:\FR\FM\10JYP1.SGM 10JYP1 41460 Federal Register / Vol. 85, No. 133 / Friday, July 10, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS remains in effect.126 The total savings or costs over the life of the loan implied by APR differences would vary substantially across borrowers depending on credit scores, LTVs, and length of time holding the mortgage. While this comparison assumed all potentially displaced loans would be made as FHA loans, higher costs (either upfront or in monthly payments) are likely to prevent many borrowers from obtaining loans at all. In the absence of the proposed amendment to the regulation, some of these potentially displaced consumers, particularly those with higher credit scores and the resources to make larger down payments, likely would be able to obtain credit in the non-GSE private market at a cost comparable or slightly higher than the costs for GSE loans, but below the cost of an FHA loan. As a result, the above cost comparisons between GSE and FHA loans provide an estimated upper bound on pricing benefits to consumers of the proposal. However, under the baseline, some potentially displaced consumers may not obtain loans, and thus would experience benefits of credit access under the proposal.127 As discussed above, the Assessment Report found that the January 2013 Final Rule eliminated between 63 and 70 percent of high-DTI home purchase loans that were not Temporary GSE QM loans.128 The Bureau requests information or data that would inform quantitative estimates of the number of consumers who may not obtain loans, and the costs to such consumers. The proposal would also benefit those consumers with incomes difficult to document using appendix Q to obtain General QM status, as the Temporary GSE QM loan definition continues to allow documentation of income and debt through GSE standards. The greater flexibility of GSE documentation standards likely reduces effort and costs for these consumers under the proposal, and in the most difficult cases in which borrowers’ documentation cannot 126 This approximation assumes $4,000 in savings from total loan costs for all 957,000 consumers. Actual expected savings would vary substantially based on loan and credit characteristics, consumer choices, and market conditions. 127 In particular, the Assessment concluded that some borrowers with strong credit characteristics may no longer be able to obtain conventional QM loans, despite likely possessing the ability to repay such loans. Assessment Report at 150 (‘‘Together, these findings suggest that the observed decrease in access to credit in this segment was likely driven by lenders’ desire to avoid the risk of litigation by consumers asserting a violation of the ATR requirement or other risks associated with that requirement, rather than by rejections of borrowers who were unlikely to repay the loan.’’). 128 See id. at 10–11, 117, 131–47. VerDate Sep<11>2014 17:00 Jul 09, 2020 Jkt 250001 satisfy appendix Q, the proposal would allow consumers to receive Temporary GSE QM loans rather than potential FHA or non-QM alternatives. These consumers would likely benefit from cost savings under the proposal, similar to those for High-DTI consumers discussed above. 2. Benefits to Covered Persons The proposal’s primary benefit to covered persons, specifically mortgage creditors, is the continued profits from originating High-DTI conventional QM loans. Under the baseline, creditors would be unable to originate such loans under the Temporary GSE QM loan definition after January 10, 2021 and would instead have to originate loans with comparable DTI ratios as FHA, Small Creditor QM, or non-QM loans, or originate at lower DTI ratios as conventional General QM loans. Creditors’ current preference for originating large numbers of High-DTI Temporary GSE QM loans likely reflects advantages in a combination of costs or guarantee fees (particularly relative to FHA loans), liquidity (particularly relative to Small Creditor QM), or litigation and credit risk (particularly relative to non-QM). Moreover, QM loans—including Temporary GSE QM loans—are exempt from the Dodd-Frank Act risk retention requirement whereby creditors that securitize mortgage loans are required to retain at least 5 percent of the credit risk of the security, which adds significant cost. As a result, the proposal conveys benefits to mortgage creditors originating Temporary GSE QM loans on each of these dimensions. In addition, for those lower-DTI GSE loans which could satisfy General QM requirements, creditors may realize cost savings from continuing to underwrite loans using only the more flexible GSE documentation standards as compared to the appendix Q underwriting standards required for General QM loans. For GSE consumers unable to provide documentation compatible with appendix Q, the proposal allows such loans to continue receiving QM status, providing comparable benefits to creditors as described for High-DTI GSE loans above. Finally, those creditors whose business models rely most heavily on originating High-DTI GSE loans would likely see a competitive benefit from the continued ability to originate such loans as Temporary GSE QM loans. This is effectively a transfer in market share to these creditors from those who primarily originate FHA or private nonGSE loans, who likely would have gained market share after the expiration PO 00000 Frm 00022 Fmt 4702 Sfmt 4702 of the Temporary GSE QM loan definition. 3. Costs to Consumers The extension of the Temporary GSE QM loan definition could delay the development of the non-QM market, particularly new mortgage products which may have become available if the Temporary GSE QM loan definition had been allowed to expire. To the extent that some consumers would prefer some of these products to GSE loans due to pricing, documentation flexibility, or other advantages, the delay of their development would be a cost to consumers of the proposal. In addition, consumers who would have obtained non-QM loans under the baseline but instead obtain QM loans under the proposal forgo the benefit of retaining the ATR causes of action and defenses against foreclosure. 4. Costs to Covered Persons The proposal’s most sizable costs to covered persons are effectively transfers between lenders for the duration of the extension, reflecting temporarily reduced loan origination volume for lenders who primarily originate FHA or private non-GSE loans and temporarily increased origination volume for lenders who primarily originate GSE loans. Business models vary substantially within market segments, with portfolio lenders and lenders originating non-QM loans most likely to experience a delay in market share gains possible if the Temporary GSE QM loan definition had been allowed to expire, while GSEfocused bank and non-bank lenders are likely to maintain market share that might be lost sooner in the absence of the proposal. 5. Other Benefits and Costs In delaying the Temporary GSE QM loan definition’s expiration, the proposal would delay any effects of the expiration on the development of the secondary market for private (non-GSE) mortgage loan securities. When the Temporary GSE QM loan definition expires, those loans that do not fit within the General QM loan definition represent a potential new market for private securitizations. Thus, the proposal would reduce the scope of the potential non-QM market for the duration of the extension, likely lowering profits and revenues for participants in the private secondary market. This would effectively be a transfer from these private secondary market participants to participants in the agency secondary market. E:\FR\FM\10JYP1.SGM 10JYP1 41461 Federal Register / Vol. 85, No. 133 / Friday, July 10, 2020 / Proposed Rules Potential Impact on Depository Institutions and Credit Unions With $10 Billion or Less in Total Assets, as Described in Section 1026 The proposal’s expected impact on depository institutions and credit unions that are also creditors making covered loans (depository creditors) with $10 billion or less in total assets is similar to the expected impact on larger creditors and on non-depository creditors. As discussed in part VII.B.4 (Costs to Covered Persons), depository creditors originating portfolio loans may experience a delay in potential market share gains that would occur in the absence of the proposal. In addition, those smaller creditors originating portfolio loans can originate High-DTI Small Creditor QM loans under the rule, and thus may rely less on the Temporary GSE QM loan definition for originating High-DTI loans. If the expiration of the Temporary GSE QM loan definition would confer a competitive advantage to these small creditors in their origination of HighDTI loans, the proposal would delay this outcome. Conversely, those small creditors that primarily rely on the GSEs as a secondary market outlet because they do not have the capacity to hold numerous loans on portfolio or the infrastructure or scale to securitize loans may continue to benefit from the ability to make HighDTI GSE loans as Temporary GSE QM loans. In the absence of the proposal, these creditors would be limited to originating GSE loans as QMs only with DTI at or below 43 percent under the General QM loan definition. These creditors may also originate FHA, VA, or USDA loans or non-QM loans for private securitizations, likely at a higher cost relative to Temporary GSE QM loans. jbell on DSKJLSW7X2PROD with PROPOSALS Potential Impact on Rural Areas The proposal’s expected impact on rural areas is similar to the expected impact on non-rural areas. Based on 2018 HMDA data, the Bureau estimates that High-DTI conventional purchase mortgages are comparably likely to be reported as initially sold to the GSEs in rural areas (52.5 percent) as in non-rural areas (52.0 percent).129 129 These statistics are estimated based on originations from the first nine months of the year, to allow time for loans to be sold before HMDA reporting deadlines. In addition, a higher share of High-DTI conventional purchase non-rural loans (33.3 percent) report being sold to other non-GSE purchasers compared to rural loans (22.3 percent). VerDate Sep<11>2014 17:00 Jul 09, 2020 Jkt 250001 VIII. Regulatory Flexibility Act Analysis The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, requires each agency to consider the potential impact of its regulations on small entities, including small businesses, small governmental units, and small not-for-profit organizations. The RFA defines a ‘‘small business’’ as a business that meets the size standard developed by the Small Business Administration pursuant to the Small Business Act.130 The RFA generally requires an agency to conduct an initial regulatory flexibility analysis (IRFA) and a final regulatory flexibility analysis (FRFA) of any rule subject to notice-and-comment rulemaking requirements, unless the agency certifies that the rule would not have a significant economic impact on a substantial number of small entities.131 The Bureau also is subject to certain additional procedures under the RFA involving the convening of a panel to consult with small business representatives prior to proposing a rule for which an IRFA is required.132 An IRFA is not required for this proposal because the proposal, if adopted, would not have a significant economic impact on a substantial number of small entities. The Bureau does not expect the final rule to impose costs on small entities relative to the baseline. Under the baseline, the Temporary GSE QM loan definition expires, and therefore no creditor— including small entities—would be able to originate QM loans under that definition. Under the proposal, certain small entities that would otherwise not be able to originate QM loans under that definition would be able to originate such loans with QM status. Thus, the Bureau anticipates that the proposal would only reduce burden on small entities relative to the baseline. Accordingly, the Director certifies that this proposal, if adopted, would not have a significant economic impact on a substantial number of small entities. The Bureau requests comment on its analysis of the impact of the proposal on small entities and requests any relevant data. IX. Paperwork Reduction Act Under the Paperwork Reduction Act of 1995 (PRA),133 Federal agencies are 130 5 U.S.C. 601(3) (the Bureau may establish an alternative definition after consultation with the Small Business Administration and an opportunity for public comment). 131 5 U.S.C. 603–605. 132 5 U.S.C. 609. 133 44 U.S.C. 3501 et seq. PO 00000 Frm 00023 Fmt 4702 Sfmt 4702 generally required to seek, prior to implementation, approval from the Office of Management and Budget (OMB) for information collection requirements. Under the PRA, the Bureau may not conduct or sponsor, and, notwithstanding any other provision of law, a person is not required to respond to, an information collection unless the information collection displays a valid control number assigned by OMB. The Bureau has determined that this proposal does not contain any new or substantively revised information collection requirements other than those previously approved by OMB under that OMB control number 3170–0015. The proposal would amend 12 CFR part 1026 (Regulation Z), which implements TILA. OMB control number 3170–0015 is the Bureau’s OMB control number for Regulation Z. The Bureau welcomes comments on these determinations or any other aspect of the proposal for purposes of the PRA. X. Signing Authority The Director of the Bureau, having reviewed and approved this document, is delegating the authority to electronically sign this document to Laura Galban, a Bureau Federal Register Liaison, for purposes of publication in the Federal Register. List of Subjects in 12 CFR Part 1026 Advertising, Banks, Banking, Consumer protection, Credit, Credit unions, Mortgages, National banks, Reporting and recordkeeping requirements, Savings associations, Truth-in-lending. Authority and Issuance For the reasons set forth above, the Bureau proposes to amend Regulation Z, 12 CFR part 1026, as set forth below: PART 1026—TRUTH IN LENDING (REGULATION Z) 1. The authority citation for part 1026 continues to read as follows: ■ Authority: 12 U.S.C. 2601, 2603–2605, 2607, 2609, 2617, 3353, 5511, 5512, 5532, 5581; 15 U.S.C. 1601 et seq. Subpart E—Special Rules for Certain Home Mortgage Transactions 2. Amend § 1026.43 by revising paragraph (e)(4)(iii)(B) to read as follows: ■ § 1026.43 Minimum standards for transactions secured by a dwelling. * * * (e) * * * (4) * * * E:\FR\FM\10JYP1.SGM 10JYP1 * * 41462 Federal Register / Vol. 85, No. 133 / Friday, July 10, 2020 / Proposed Rules (iii) * * * (B) Unless otherwise expired under paragraph (e)(4)(iii)(A) of this section, the special rules in this paragraph (e)(4) are available only for covered transactions consummated on or before the effective date of a final rule issued by the Bureau amending paragraph (e)(2) of this section. The Bureau will also amend this paragraph as of that effective date to reflect the new status. * * * * * ■ 3. In Supplement I to Part 1026— Official Interpretations, under Section 1026.43—Minimum Standards for Transactions Secured by a Dwelling, revise 43(e)(4) Qualified mortgage defined—special rules to read as follows: Supplement I to Part 1026—Official Interpretations * * * * * Section 1026.43—Minimum standards for transactions secured by a dwelling. jbell on DSKJLSW7X2PROD with PROPOSALS * * * * * 43(e)(4) Qualified mortgage defined— special rules. 1. Alternative definition. Subject to the sunset provided under § 1026.43(e)(4)(iii), § 1026.43(e)(4) provides an alternative definition of qualified mortgage to the definition provided in § 1026.43(e)(2). To be a qualified mortgage under § 1026.43(e)(4), the transaction must satisfy the requirements under § 1026.43(e)(2)(i) through (iii), in addition to being one of the types of loans specified in § 1026.43(e)(4)(ii)(A) through (E). 2. Termination of conservatorship. Section 1026.43(e)(4)(ii)(A) requires that a covered transaction be eligible for purchase or guarantee by the Federal National Mortgage Association (Fannie Mae) or the Federal Home Loan Mortgage Corporation (Freddie Mac) (or any limited-life regulatory entity succeeding the charter of either) operating under the conservatorship or receivership of the Federal Housing Finance Agency pursuant to section 1367 of the Federal Housing Enterprises Financial Safety and Soundness Act of 1992 (12 U.S.C. 4617). The special rule under § 1026.43(e)(4)(ii)(A) does not apply if Fannie Mae or Freddie Mac (or any limited-life regulatory entity succeeding the charter of either) has ceased operating under the conservatorship or receivership of the Federal Housing Finance Agency. For example, if either Fannie Mae or Freddie Mac (or succeeding limited-life regulatory entity) ceases to operate under the conservatorship or receivership of the Federal Housing Finance Agency, § 1026.43(e)(4)(ii)(A) would no longer apply to loans eligible for purchase or guarantee by that entity; however, the special rule would be available for a loan that is eligible for purchase or guarantee by the other entity still operating under conservatorship or receivership. 3. Timing. Under § 1026.43(e)(4)(iii), the definition of qualified mortgage under § 1026.43(e)(4) applies only to loans consummated on or before the effective date of a final rule issued by the Bureau amending VerDate Sep<11>2014 17:00 Jul 09, 2020 Jkt 250001 § 1026.43(e)(2), regardless of whether Fannie Mae or Freddie Mac (or any limited-life regulatory entity succeeding the charter of either) continues to operate under the conservatorship or receivership of the Federal Housing Finance Agency. Accordingly, § 1026.43(e)(4) is available only for covered transactions consummated on or before the earlier of either: i. The date Fannie Mae or Freddie Mac (or any limited-life regulatory entity succeeding the charter of either), respectively, cease to operate under the conservatorship or receivership of the Federal Housing Finance Agency pursuant to section 1367 of the Federal Housing Enterprises Financial Safety and Soundness Act of 1992 (12 U.S.C. 4617); or ii. The effective date of a final rule issued by the Bureau amending § 1026.43(e)(2), as provided by § 1026.43(e)(4)(iii)(B). The Bureau will also amend this commentary as of that effective date to reflect the new status. 4. Eligible for purchase, guarantee, or insurance except with regard to matters wholly unrelated to ability to repay. To satisfy § 1026.43(e)(4)(ii), a loan need not be actually purchased or guaranteed by Fannie Mae or Freddie Mac or insured or guaranteed by one of the Agencies (the U.S. Department of Housing and Urban Development (HUD), U.S. Department of Veterans Affairs (VA), U.S. Department of Agriculture (USDA), or Rural Housing Service (RHS)). Rather, § 1026.43(e)(4)(ii) requires only that the creditor determine that the loan is eligible (i.e., meets the criteria) for such purchase, guarantee, or insurance at consummation. For example, for purposes of § 1026.43(e)(4), a creditor is not required to sell a loan to Fannie Mae or Freddie Mac (or any limitedlife regulatory entity succeeding the charter of either) for that loan to be a qualified mortgage; however, the loan must be eligible for purchase or guarantee by Fannie Mae or Freddie Mac (or any limited-life regulatory entity succeeding the charter of either), including satisfying any requirements regarding consideration and verification of a consumer’s income or assets, credit history, debt-to-income ratio or residual income, and other credit risk factors, but not any requirements regarding matters wholly unrelated to ability to repay. To determine eligibility for purchase, guarantee or insurance, a creditor may rely on a valid underwriting recommendation provided by a GSE automated underwriting system (AUS) or an AUS that relies on an Agency underwriting tool; compliance with the standards in the GSE or Agency written guide in effect at the time; a written agreement between the creditor or a direct sponsor or aggregator of the creditor and a GSE or Agency that permits variation from the standards of the written guides and/or variation from the AUSs, in effect at the time of consummation; or an individual loan waiver granted by the GSE or Agency to the creditor. For creditors relying on the variances of a sponsor or aggregator, a loan that is transferred directly to or through the sponsor or aggregator at or after consummation complies with § 1026.43(e)(4). In using any of the four methods listed above, the creditor need not satisfy standards that PO 00000 Frm 00024 Fmt 4702 Sfmt 4702 are wholly unrelated to assessing a consumer’s ability to repay that the creditor is required to perform. Matters wholly unrelated to ability to repay are those matters that are wholly unrelated to credit risk or the underwriting of the loan. Such matters include requirements related to the status of the creditor rather than the loan, requirements related to selling, securitizing, or delivering the loan, and any requirement that the creditor must perform after the consummated loan is sold, guaranteed, or endorsed for insurance such as document custody, quality control, or servicing. Accordingly, a covered transaction is eligible for purchase or guarantee by Fannie Mae or Freddie Mac, for example, if: i. The loan conforms to the relevant standards set forth in the Fannie Mae SingleFamily Selling Guide or the Freddie Mac Single-Family Seller/Servicer Guide in effect at the time, or to standards set forth in a written agreement between the creditor or a sponsor or aggregator of the creditor and Fannie Mae or Freddie Mac in effect at that time that permits variation from the standards of those guides; ii. The loan has been granted an individual waiver by a GSE, which will allow purchase or guarantee in spite of variations from the applicable standards; or iii. The creditor inputs accurate information into the Fannie Mae or Freddie Mac AUS or another AUS pursuant to a written agreement between the creditor and Fannie Mae or Freddie Mac that permits variation from the GSE AUS; the loan receives one of the recommendations specified below in paragraphs A or B from the corresponding GSE AUS or an equivalent recommendation pursuant to another AUS as authorized in the written agreement; and the creditor satisfies any requirements and conditions specified by the relevant AUS that are not wholly unrelated to ability to repay, the non-satisfaction of which would invalidate that recommendation: A. An ‘‘Approve/Eligible’’ recommendation from Desktop Underwriter (DU); or B. A risk class of ‘‘Accept’’ and purchase eligibility of ‘‘Freddie Mac Eligible’’ from Loan Prospector (LP). 5. Repurchase and indemnification demands. A repurchase or indemnification demand by Fannie Mae, Freddie Mac, HUD, VA, USDA, or RHS is not dispositive of qualified mortgage status. Qualified mortgage status under § 1026.43(e)(4) depends on whether a loan is eligible to be purchased, guaranteed, or insured at the time of consummation, provided that other requirements under § 1026.43(e)(4) are satisfied. Some repurchase or indemnification demands are not related to eligibility criteria at consummation. See comment 43(e)(4)–4. Further, even where a repurchase or indemnification demand relates to whether the loan satisfied relevant eligibility requirements as of the time of consummation, the mere fact that a demand has been made, or even resolved, between a creditor and GSE or agency is not dispositive for purposes of § 1026.43(e)(4). However, evidence of whether a particular loan satisfied the § 1026.43(e)(4) eligibility criteria E:\FR\FM\10JYP1.SGM 10JYP1 Federal Register / Vol. 85, No. 133 / Friday, July 10, 2020 / Proposed Rules at consummation may be brought to light in the course of dealing over a particular demand, depending on the facts and circumstances. Accordingly, each loan should be evaluated by the creditor based on the facts and circumstances relating to the eligibility of that loan at the time of consummation. For example: i. Assume eligibility to purchase a loan was based in part on the consumer’s employment income of $50,000 per year. The creditor uses the income figure in obtaining an approve/ eligible recommendation from DU. A quality control review, however, later determines that the documentation provided and verified by the creditor to comply with Fannie Mae requirements did not support the reported income of $50,000 per year. As a result, Fannie Mae demands that the creditor repurchase the loan. Assume that the quality control review is accurate, and that DU would not have issued an approve/eligible recommendation if it had been provided the accurate income figure. The DU determination at the time of consummation was invalid because it was based on inaccurate information provided by the creditor; therefore, the loan was never a qualified mortgage under § 1026.43(e)(4). ii. Assume that a creditor delivered a loan, which the creditor determined was a qualified mortgage at the time of consummation under § 1026.43(e)(4), to Fannie Mae for inclusion in a particular ToBe-Announced Mortgage Backed Security (MBS) pool of loans. The data submitted by the creditor at the time of loan delivery indicated that the various loan terms met the product type, weighted-average coupon, weighted-average maturity, and other MBS pooling criteria, and MBS issuance disclosures to investors reflected this loan data. However, after delivery and MBS issuance, a quality control review determines that the loan violates the pooling criteria. The loan still meets eligibility requirements for Fannie Mae products and loan terms. Fannie Mae, however, requires the creditor to repurchase the loan due to the violation of MBS pooling requirements. Assume that the quality control review determination is accurate. Because the loan still meets Fannie Mae’s eligibility requirements, it remains a qualified mortgage based on these facts and circumstances. * * * * * jbell on DSKJLSW7X2PROD with PROPOSALS Dated: June 22, 2020. Laura Galban, Federal Register Liaison, Bureau of Consumer Financial Protection. [FR Doc. 2020–13741 Filed 7–9–20; 8:45 am] BILLING CODE 4810–AM–P VerDate Sep<11>2014 17:00 Jul 09, 2020 Jkt 250001 COMMODITY FUTURES TRADING COMMISSION 17 CFR Part 23 RIN 3038–AF03 Margin Requirements for Uncleared Swaps for Swap Dealers and Major Swap Participants Commodity Futures Trading Commission. ACTION: Notice of proposed rulemaking. AGENCY: The Commodity Futures Trading Commission (‘‘Commission’’ or ‘‘CFTC’’) is seeking comment on a proposed amendment to the margin requirements for uncleared swaps for swap dealers (‘‘SD’’) and major swap participants (‘‘MSP’’) for which there is no prudential regulator (the ‘‘CFTC Margin Rule’’). As adopted in January 2016, the CFTC Margin Rule, which mandates the collection and posting of variation margin and initial margin (‘‘IM’’), was to take effect under a phased compliance schedule extending from September 1, 2016, to September 1, 2020. On April 9, 2020, the Commission published in the Federal Register a final rule extending the September 1, 2020 compliance date by one year to September 1, 2021, for a portion of what was to be the final phase consisting of entities with smaller average daily aggregate notional amounts of swaps and certain other financial products (the ‘‘Smaller Portfolio Group’’) to reduce the potential market disruption that could result from a large number of entities coming into the scope of compliance on September 1, 2020 (‘‘April 2020 Final Rule’’). Subsequently, on May 28, 2020, to mitigate the operational challenges faced by certain entities subject to the CFTC Margin Rule as a result of the coronavirus disease 2019 (‘‘COVID–19’’) pandemic, the Commission adopted an interim final rule (the ‘‘IFR’’) extending the September 1, 2020 compliance date for certain entities by one year (‘‘IFR Extension Group’’) to September 1, 2021. This rulemaking proposal (‘‘Proposal’’) would further delay the compliance date for the Smaller Portfolio Group from September 1, 2021, to September 1, 2022, to avoid market disruption due to a large number of entities being required to comply by September 1, 2021, under the revised compliance schedule. DATES: Comments must be received on or before September 8, 2020. ADDRESSES: You may submit comments, identified by RIN 3038–AF03, by any of the following methods: SUMMARY: PO 00000 Frm 00025 Fmt 4702 Sfmt 4702 41463 • CFTC Comments Portal: https:// comments.cftc.gov. Select the ‘‘Submit Comments’’ link for this rulemaking and follow the instructions on the Public Comment Form. • Mail: Send to Christopher Kirkpatrick, Secretary of the Commission, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW, Washington, DC 20581. • Hand Delivery/Courier: Follow the same instructions as for Mail, above. Please submit your comments using only one of these methods. Submissions through the CFTC Comments Portal are encouraged. All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to https:// comments.cftc.gov. You should submit only information that you wish to make available publicly. If you wish the Commission to consider information that you believe is exempt from disclosure under the Freedom of Information Act (‘‘FOIA’’), a petition for confidential treatment of the exempt information may be submitted according to the procedures established in § 145.9 of the Commission’s regulations.1 The Commission reserves the right, but shall have no obligation, to review, pre-screen, filter, redact, refuse or remove any or all of your submission from https://comments.cftc.gov that it may deem to be inappropriate for publication, such as obscene language. All submissions that have been redacted or removed that contain comments on the merits of the rulemaking will be retained in the public comment file and will be considered as required under the Administrative Procedure Act and other applicable laws, and may be accessible under the FOIA. FOR FURTHER INFORMATION CONTACT: Joshua B. Sterling, Director, 202–418– 6056, jsterling@cftc.gov; Thomas J. Smith, Deputy Director, 202–418–5495, tsmith@cftc.gov; Warren Gorlick, Associate Director, 202–418–5195, wgorlick@cftc.gov; or Carmen MoncadaTerry, Special Counsel, 202–418–5795, cmoncada-terry@cftc.gov, Division of Swap Dealer and Intermediary Oversight, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW, Washington, DC 20581. SUPPLEMENTARY INFORMATION: 1 17 CFR 145.9. Commission regulations referred to herein are found at 17 CFR chapter I. E:\FR\FM\10JYP1.SGM 10JYP1

Agencies

BUREAU OF CONSUMER FINANCIAL PROTECTION

[Federal Register Volume 85, Number 133 (Friday, July 10, 2020)]
[Proposed Rules]
[Pages 41448-41463]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-13741]



[[Page 41448]]

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BUREAU OF CONSUMER FINANCIAL PROTECTION

12 CFR Part 1026

[Docket No. CFPB-2020-0021]
RIN 3170-AA98


Qualified Mortgage Definition Under the Truth in Lending Act 
(Regulation Z): Extension of Sunset Date

AGENCY: Bureau of Consumer Financial Protection.

ACTION: Proposed rule with request for public comment.

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SUMMARY: With certain exceptions, Regulation Z requires creditors to 
make a reasonable, good faith determination of a consumer's ability to 
repay any residential mortgage loan, and loans that meet Regulation Z's 
requirements for ``qualified mortgages'' (QMs) obtain certain 
protections from liability. One category of QMs consists of loans that 
are eligible for purchase or guarantee by either the Federal National 
Mortgage Association (Fannie Mae) or the Federal Home Loan Mortgage 
Corporation (Freddie Mac) (collectively, government-sponsored 
enterprises, or GSEs), while operating under the conservatorship or 
receivership of the Federal Housing Finance Agency (FHFA). The GSEs are 
currently under Federal conservatorship. The Bureau of Consumer 
Financial Protection (Bureau) established this category of QMs 
(Temporary GSE QM loans) as a temporary measure that is set to expire 
no later than January 10, 2021 (the sunset date) or when the GSEs exit 
conservatorship. Another category of QMs is the General QM loan 
category. In a separate proposal released simultaneously with this 
proposal, the Bureau proposes amendments to the General QM loan 
definition. In this notice of proposed rulemaking, the Bureau proposes 
to amend Regulation Z to replace the sunset date of the Temporary GSE 
QM loan definition with a provision that extends the Temporary GSE QM 
loan definition to expire upon the effective date of final amendments 
to the General QM loan definition. The Bureau is not proposing to amend 
the provision stating that the Temporary GSE QM loan category would 
expire if the GSEs exit conservatorship. The Bureau is proposing to 
extend the Temporary GSE QM loan definition to ensure that responsible, 
affordable mortgage credit remains available to consumers who may be 
affected if the Temporary GSE QM loan definition expires before the 
amendments to the General QM loan definition take effect.

DATES: Comments must be received on or before August 10, 2020.

ADDRESSES: You may submit comments, identified by Docket No. CFPB-2020-
0021 or RIN 3170-AA98, by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Email: [email protected]. Include Docket 
No. CFPB-2020-0021 or RIN 3170-AA98 in the subject line of the message.
     Mail/Hand Delivery/Courier: Comment Intake--QM Extension 
of Sunset Date, Bureau of Consumer Financial Protection, 1700 G Street 
NW, Washington, DC 20552. Please note that due to circumstances 
associated with the COVID-19 pandemic, the Bureau discourages the 
submission of comments by mail, hand delivery, or courier.
    Instructions: The Bureau encourages the early submission of 
comments. All submissions should include the agency name and docket 
number or Regulatory Information Number (RIN) for this rulemaking. 
Because paper mail in the Washington, DC area and at the Bureau is 
subject to delay, and in light of difficulties associated with mail and 
hand deliveries during the COVID-19 pandemic, commenters are encouraged 
to submit comments electronically. In general, all comments received 
will be posted without change to https://www.regulations.gov. In 
addition, once the Bureau's headquarters reopens, comments will be 
available for public inspection and copying at 1700 G Street NW, 
Washington, DC 20552, on official business days between the hours of 10 
a.m. and 5 p.m. Eastern Time. At that time, you can make an appointment 
to inspect the documents by telephoning 202-435-9169.
    All comments, including attachments and other supporting materials, 
will become part of the public record and subject to public disclosure. 
Proprietary information or sensitive personal information, such as 
account numbers or Social Security numbers, or names of other 
individuals, should not be included. Comments will not be edited to 
remove any identifying or contact information.

FOR FURTHER INFORMATION CONTACT: Benjamin Cady, Counsel; or David 
Friend or Priscilla Walton-Fein, Senior Counsels, Office of 
Regulations, at 202-435-7700. If you require this document in an 
alternative electronic format, please contact 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Summary of the Proposed Rule

    The Ability-to-Repay/Qualified Mortgage Rule (ATR/QM Rule or Rule) 
requires a creditor to make a reasonable, good faith determination of a 
consumer's ability to repay a residential mortgage loan according to 
its terms. Loans that meet the Rule's requirements for QMs obtain 
certain protections from liability. The Rule defines several categories 
of QMs.
    One QM category defined in the Rule is the General QM loan 
category. General QM loans must comply with the Rule's prohibitions on 
certain loan features, its points-and-fees limits, and its underwriting 
requirements. For General QM loans, the ratio of the consumer's total 
monthly debt to total monthly income (DTI ratio) must not exceed 43 
percent. Creditors must calculate, consider, and verify debt and income 
for purposes of determining the consumer's DTI ratio using the 
standards contained in appendix Q of Regulation Z.
    A second, temporary category of QM loans defined in the Rule 
consists of mortgages that (1) comply with the same loan-feature 
prohibitions and points-and-fees limits as General QM loans and (2) are 
eligible to be purchased or guaranteed by Fannie Mae or Freddie Mac 
while under the conservatorship of the FHFA. This proposal refers to 
these loans as Temporary GSE QM loans, and the provision that created 
this loan category is commonly known as the GSE Patch. Unlike for 
General QM loans, the Rule does not prescribe a DTI limit for Temporary 
GSE QM loans. Thus, a loan can qualify as a Temporary GSE QM loan even 
if the consumer's DTI ratio exceeds 43 percent, so long as the loan is 
eligible to be purchased or guaranteed by either of the GSEs. In 
addition, for Temporary GSE QM loans, the Rule does not require 
creditors to use appendix Q to determine the consumer's income, debt, 
or DTI ratio.
    Under the Rule, the Temporary GSE QM loan definition expires with 
respect to each GSE when that GSEs exits conservatorship or on January 
10, 2021, whichever comes first. The GSEs are currently in 
conservatorship. Despite the Bureau's expectations when the Rule was 
published in 2013, Temporary GSE QM loan originations continue to 
represent a large and persistent share of the residential mortgage loan 
market, and a significant number of Temporary GSE QM loans would not 
qualify as General QM loans under the current regulations after the 
Temporary GSE QM loan definition expires. These loans would not qualify 
as General QM loans

[[Page 41449]]

either because the consumer's DTI ratio is above 43 percent or because 
the creditor's method of documenting and verifying income or debt is 
incompatible with appendix Q. Although alternative loan options, 
including some other types of QM loans, would still be available to 
many consumers who could not qualify for General QM loans, the Bureau 
anticipates that many loans that are currently Temporary GSE QM loans 
would cost materially more for consumers and many would not be made at 
all.
    In a separate proposal issued simultaneously with this proposal, 
the Bureau is proposing, among other things, to remove the General QM 
loan definition's DTI limit and replace it with a limit based on the 
loan's pricing. The Bureau expects that such amendments would allow 
some portion of loans that currently could receive QM status under the 
Temporary GSE QM loan definition to receive QM status under the General 
QM loan definition if they are made after the Temporary GSE QM loan 
definition expires, thereby helping to facilitate a smooth and orderly 
transition away from the Temporary GSE QM loan definition. The Bureau 
tentatively concludes that having the Temporary GSE QM loan definition 
expire when a final rule amending the General QM loan definition 
becomes effective will ensure that responsible, affordable mortgage 
credit remains available to consumers who may be affected if the 
Temporary GSE QM loan definition expires before the amendments to the 
General QM loan definition take effect.
    In light of these and other considerations, the Bureau proposes to 
extend the Temporary GSE QM loan definition to the effective date of a 
final rule issued by the Bureau amending the General QM loan 
definition. The Bureau does not intend for this effective date to be 
prior to April 1, 2021. Thus, the Bureau does not intend for the 
Temporary GSE QM loan definition to expire prior to April 1, 2021. The 
Bureau is not proposing to amend the provision stating that the 
Temporary GSE QM loan category would expire if the GSEs exit 
conservatorship.

II. Background

A. Dodd-Frank Act Amendments to the Truth in Lending Act

    The Dodd-Frank Wall Street Reform and Consumer Protection Act 
(Dodd-Frank Act) amended the Truth in Lending Act (TILA) to establish, 
among other things, ability-to-repay (ATR) requirements in connection 
with the origination of most residential mortgage loans.\1\ The 
amendments were intended ``to assure that consumers are offered and 
receive residential mortgage loans on terms that reasonably reflect 
their ability to repay the loans and that are understandable and not 
unfair, deceptive or abusive.'' \2\ As amended, TILA prohibits a 
creditor from making a residential mortgage loan unless the creditor 
makes a reasonable and good faith determination based on verified and 
documented information that the consumer has a reasonable ability to 
repay the loan.\3\
---------------------------------------------------------------------------

    \1\ Public Law 111-203, 1411-12, 1414, 124 Stat. 1376 (2010); 15 
U.S.C. 1639c.
    \2\ 15 U.S.C. 1639b(a)(2).
    \3\ 15 U.S.C. 1639c(a)(1). TILA section 103 defines 
``residential mortgage loan'' to mean, with some exceptions 
including open-end credit plans, ``any consumer credit transaction 
that is secured by a mortgage, deed of trust, or other equivalent 
consensual security interest on a dwelling or on residential real 
property that includes a dwelling.'' 15 U.S.C. 1602(dd)(5). TILA 
section 129C also exempts certain residential mortgage loans from 
the ATR requirements. See, e.g., 15 U.S.C. 1639c(a)(8) (exempting 
reverse mortgages and temporary or bridge loans with a term of 12 
months or less).
---------------------------------------------------------------------------

    TILA identifies the factors a creditor must consider in making a 
reasonable and good faith assessment of a consumer's ability to repay. 
These factors are the consumer's credit history, current and expected 
income, current obligations, debt-to-income ratio or residual income 
after paying non-mortgage debt and mortgage-related obligations, 
employment status, and other financial resources other than equity in 
the dwelling or real property that secures repayment of the loan.\4\ A 
creditor, however, may not be certain whether its ability-to-repay 
determination is reasonable in a particular case, and it risks 
liability if a court or an agency, including the Bureau, later 
concludes that the ability-to-repay determination was not reasonable.
---------------------------------------------------------------------------

    \4\ 15 U.S.C. 1639c(a)(3).
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    TILA addresses this uncertainty by defining a category of loans--
called QMs--for which a creditor ``may presume that the loan has met'' 
the ATR requirements.\5\ The statute generally defines a QM to mean any 
residential mortgage loan for which:
---------------------------------------------------------------------------

    \5\ 15 U.S.C. 1639c(b)(1).
---------------------------------------------------------------------------

     There is no negative amortization, interest-only payments, 
or balloon payments;
     The loan term does not exceed 30 years;
     The total points and fees generally do not exceed 3 
percent of the loan amount;
     The income and assets relied upon for repayment are 
verified and documented;
     The underwriting uses a monthly payment based on the 
maximum rate during the first five years, uses a payment schedule that 
fully amortizes the loan over the loan term, and takes into account all 
mortgage-related obligations; and
     The loan complies with any guidelines or regulations 
established by the Bureau relating to the ratio of total monthly debt 
to monthly income or alternative measures of ability to pay regular 
expenses after payment of total monthly debt.\6\
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    \6\ 15 U.S.C. 1639c(b)(2)(A).
---------------------------------------------------------------------------

B. The Ability-to-Repay/Qualified Mortgage Rule

    In January 2013, the Bureau issued a final rule amending Regulation 
Z to implement TILA's ATR requirements (January 2013 Final Rule).\7\ 
The January 2013 Final Rule became effective on January 10, 2014, and 
the Bureau amended it several times through 2016.\8\ This proposal 
refers to the January 2013 Final Rule and later amendments to it 
collectively as the Ability-to-Repay/Qualified Mortgage Rule, the ATR/
QM Rule, or the Rule. The ATR/QM Rule implements the statutory ATR 
provisions discussed above and defines several categories of QM 
loans.\9\ Under the Rule, a creditor that makes a QM loan is protected 
from liability presumptively or conclusively, depending on whether the 
loan is ``higher priced.'' \10\
---------------------------------------------------------------------------

    \7\ 78 FR 6408 (Jan. 30, 2013).
    \8\ See 78 FR 35429 (June 12, 2013); 78 FR 44686 (July 24, 
2013); 78 FR 60382 (Oct. 1, 2013); 79 FR 65300 (Nov. 3, 2014); 80 FR 
59944 (Oct. 2, 2015); 81 FR 16074 (Mar. 25, 2016).
    \9\ 12 CFR 1026.43(c), (e).
    \10\ The Rule generally defines a ``higher priced'' covered 
transaction to mean a first-lien mortgage with an annual percentage 
rate (APR) that exceeds the average prime offer rate (APOR) for a 
comparable transaction as of the date the interest rate is set by 
1.5 or more percentage points; or a subordinate-lien transaction 
with an APR that exceeds APOR for a comparable transaction as of the 
date the interest rate is set by 3.5 or more percentage points. 12 
CFR 1026.43(b)(4). A creditor that makes a QM loan that is not 
``higher priced'' is entitled to a conclusive presumption that it 
has complied with the Rule--i.e., the creditor receives a safe 
harbor. 12 CFR 1026.43(e)(1)(i). A creditor that makes a QM loan 
that is ``higher priced'' is entitled to a rebuttable presumption 
that it has complied with the Rule. 12 CFR 1026.43(e)(1)(ii).
---------------------------------------------------------------------------

1. General QM Loans
    One category of QM loans defined by the Rule consists of ``General 
QM loans.'' A loan is a General QM loan if:
     The loan does not have negative-amortization, interest-
only, or balloon-payment features, a term that exceeds 30 years, or 
points and fees that exceed specified limits; \11\
---------------------------------------------------------------------------

    \11\ 12 CFR 1026.43(e)(2)(i)-(iii).

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

[[Page 41450]]

     The creditor underwrites the loan based on a fully 
amortizing schedule using the maximum rate permitted during the first 
five years; \12\
---------------------------------------------------------------------------

    \12\ 12 CFR 1026.43(e)(2)(iv).
---------------------------------------------------------------------------

     The creditor considers and verifies the consumer's income 
and debt obligations in accordance with appendix Q; \13\ and
---------------------------------------------------------------------------

    \13\ 12 CFR 1026.43(e)(v).
---------------------------------------------------------------------------

     The consumer's DTI ratio is no more than 43 percent (DTI 
limit), determined in accordance with appendix Q.\14\
---------------------------------------------------------------------------

    \14\ 12 CFR 1026.43(e)(2)(vi).
---------------------------------------------------------------------------

    Appendix Q contains standards for calculating and verifying debt 
and income for purposes of determining whether a mortgage satisfies the 
43 percent DTI limit for General QM loans. The standards in appendix Q 
were adapted from guidelines maintained by the Federal Housing 
Administration (FHA), of the U.S. Department of Housing and Urban 
Development (HUD) when the January 2013 Final Rule was issued.\15\ 
Appendix Q addresses how to determine a consumer's employment-related 
income (e.g., income from wages, commissions, and retirement plans); 
non-employment related income (e.g., income from alimony and child 
support payments, investments, and property rentals); and liabilities, 
including recurring and contingent liabilities and projected 
obligations.\16\
---------------------------------------------------------------------------

    \15\ 78 FR 6408, 6527-28 (Jan. 30, 2013) (noting that appendix Q 
incorporates, with certain modifications, the definitions and 
standards in HUD Handbook 4155.1, Mortgage Credit Analysis for 
Mortgage Insurance on One-to-Four-Unit Mortgage Loans).
    \16\ 12 CFR 1026, appendix Q.
---------------------------------------------------------------------------

2. Temporary GSE QM Loans
    A second, temporary category of QM loans defined by the Rule, 
Temporary GSE QM loans, consists of mortgages that (1) comply with the 
Rule's prohibitions on certain loan features, its underwriting 
requirements, and its limitations on points and fees; \17\ and (2) are 
eligible to be purchased or guaranteed by either GSE while under the 
conservatorship of the FHFA.\18\ Unlike for General QM loans, 
Regulation Z does not prescribe a DTI limit for Temporary GSE QM loans. 
Thus, a loan can qualify as a Temporary GSE QM loan even if the DTI 
ratio exceeds 43 percent, as long as the DTI ratio meets the applicable 
GSE's DTI requirements and other underwriting criteria. In addition, 
income and debt for such loans, and DTI ratios, generally are verified 
and calculated using GSE standards, rather than appendix Q. The 
Temporary GSE QM loan category--also known as the GSE Patch--is 
scheduled to expire with respect to each GSE when that GSE exits 
conservatorship or on January 10, 2021, whichever comes first.\19\
---------------------------------------------------------------------------

    \17\ 12 CFR 1026.43(e)(2)(i)-(iii).
    \18\ 12 CFR 1026.43(e)(4).
    \19\ 12 CFR 1026.43(e)(4)(iii)(B). The ATR/QM Rule created 
several additional categories of QM loans. The first additional 
category consisted of mortgages eligible to be insured or guaranteed 
(as applicable) by HUD (FHA loans), the U.S. Department of Veterans 
Affairs (VA loans), the U.S. Department of Agriculture (USDA loans), 
and the Rural Housing Service (RHS loans). 12 CFR 
1026.43(e)(4)(ii)(B)-(E). This temporary category of QM loans no 
longer exists because the relevant Federal agencies have since 
issued their own QM rules. See, e.g., 24 CFR 203.19 (HUD rule). 
Other categories of QM loans provide more flexible standards for 
certain loans originated by certain small creditors. 12 CFR 
1026.43(e)(5), (f); cf. 12 CFR 1026.43(e)(6) (applicable only to 
covered transactions for which the application was received before 
April 1, 2016).
---------------------------------------------------------------------------

C. The Bureau's Assessment of the Ability-to-Repay/Qualified Mortgage 
Rule

    Section 1022(d) of the Dodd-Frank Act requires the Bureau to assess 
each of its significant rules and orders and to publish a report of 
each assessment within five years of the effective date of the rule or 
order.\20\ The Bureau noted in the January 2013 Final Rule that its 
section 1022(d) assessment of the ATR/QM Rule would provide an 
opportunity to analyze the Temporary GSE QM loan definition and 
confirm, prior to its expiration, whether it would be appropriate to 
allow it to expire.\21\ The Bureau published its report as a result of 
its assessment on January 11, 2019 (Assessment Report).\22\
---------------------------------------------------------------------------

    \20\ 12 U.S.C. 5512(d).
    \21\ 78 FR 6408, 6533-34 (Jan. 30, 2013).
    \22\ Bureau of Consumer Fin. Prot., Ability-to-Repay and 
Qualified Mortgage Rule Assessment Report (Jan. 2019), 2019) 
(Assessment Report), https://files.consumerfinance.gov/f/documents/cfpb_ability-to-repay-qualified-mortgage_assessment-report.pdf.
---------------------------------------------------------------------------

D. Effects of the COVID-19 Pandemic on Mortgage Markets

    The COVID-19 pandemic has had a significant effect on the U.S. 
economy. Economic activity has contracted, many businesses have 
partially or completely closed, and millions of workers have become 
unemployed. The pandemic has also affected mortgage markets. Among 
other things, it has resulted in a contraction of mortgage credit 
availability for many consumers, including those that would be 
dependent on the non-QM market for financing. The pandemic's impact on 
both the secondary market for new originations and on the servicing of 
existing mortgages has contributed to this contraction. These effects, 
and other effects of the pandemic, are discussed in greater detail in 
the separate proposal the Bureau is releasing simultaneously with this 
proposal.\23\
---------------------------------------------------------------------------

    \23\ See Bureau of Consumer Fin. Prot., ``Qualified Mortgage 
Definition under the Truth in Lending Act (Regulation Z): General QM 
Loan Definition,'' part II.D.
---------------------------------------------------------------------------

III. The Rulemaking Process

    The Bureau has solicited and received substantial public and 
stakeholder input on issues related to the substance of this proposed 
rule. In addition to the Bureau's discussions with and communications 
from industry stakeholders, consumer advocates, other Federal 
agencies,\24\ and members of Congress, the Bureau issued requests for 
information (RFIs) in 2017 and 2018 and in July 2019 issued an advance 
notice of proposed rulemaking regarding the ATR/QM Rule (ANPR). The 
input from these RFIs and from the ANPR is briefly summarized below.
---------------------------------------------------------------------------

    \24\ The Bureau has consulted with agencies including the FHFA, 
the Board of Governors of the Federal Reserve System (Board), FHA, 
the Federal Deposit Insurance Corporation, the Office of the 
Comptroller of the Currency, the Federal Trade Commission, the 
National Credit Union Administration, and the Department of the 
Treasury.
---------------------------------------------------------------------------

A. The Requests for Information

    In June 2017, the Bureau published a request for information in 
connection with the Assessment Report (Assessment RFI).\25\ In response 
to the Assessment RFI, the Bureau received approximately 480 comments 
from creditors, industry groups, consumer advocacy groups, and 
individuals.\26\ The comments addressed a variety of topics, including 
the General QM loan definition and the 43 percent DTI limit; perceived 
problems with, and potential changes and alternatives to, appendix Q; 
and how the Bureau should address the expiration of the Temporary GSE 
QM loan definition. The comments expressed a range of ideas for 
addressing the expiration of the Temporary GSE QM loan definition, from 
making the definition permanent, to applying the definition to other 
mortgage products, to extending it for various periods of time, or some 
combination of those suggestions. Other comments stated that the 
Temporary GSE QM loan definition should be eliminated or permitted to 
expire.
---------------------------------------------------------------------------

    \25\ 82 FR 25246 (June 1, 2017).
    \26\ See Assessment Report, supra note 22, at appendix B 
(summarizing comments received in response to the Assessment RFI).
---------------------------------------------------------------------------

    Beginning in January 2018, the Bureau issued a general call for 
evidence seeking comment on its enforcement, supervision, rulemaking, 
market monitoring, and financial

[[Page 41451]]

education activities.\27\ As part of the call for evidence, the Bureau 
published requests for information relating to, among other things, the 
Bureau's rulemaking process,\28\ the Bureau's adopted regulations and 
new rulemaking authorities,\29\ and the Bureau's inherited regulations 
and inherited rulemaking authorities.\30\ In response to the call for 
evidence, the Bureau received comments on the ATR/QM Rule from 
stakeholders, including consumer advocacy groups and industry groups. 
The comments addressed a variety of topics, including the General QM 
loan definition, appendix Q, and the Temporary GSE QM loan definition. 
The comments also raised concerns about, among other things, the risks 
of allowing the Temporary GSE QM loan definition to expire without any 
changes to the General QM loan definition or appendix Q. The concerns 
raised in these comments were similar to those raised in response to 
the Assessment RFI, discussed above.
---------------------------------------------------------------------------

    \27\ See Bureau of Consumer Fin. Prot., Call for Evidence, 
https://www.consumerfinance.gov/policy-compliance/notice-opportunities-comment/archive-closed/call-for-evidence (last updated 
June 12, 2020).
    \28\ 83 FR 10437 (Mar. 9, 2018).
    \29\ 83 FR 12286 (Mar. 21, 2018).
    \30\ 83 FR 12881 (Mar. 26, 2018).
---------------------------------------------------------------------------

B. The Advance Notice of Proposed Rulemaking

    On July 25, 2019, the Bureau issued an advance notice of proposed 
rulemaking regarding the ATR/QM Rule (ANPR). The ANPR stated the 
Bureau's tentative plans to allow the Temporary GSE QM loan definition 
to expire in January 2021 or after a short extension, if necessary, to 
facilitate a smooth and orderly transition away from the Temporary GSE 
QM loan definition. The Bureau also stated that it was considering 
whether to propose revisions to the General QM loan definition in light 
of the potential expiration of the Temporary GSE QM loan definition and 
requested comments on several topics related to the General QM loan 
definition, including whether and how the Bureau should revise the DTI 
limit in the General QM loan definition; whether the Bureau should 
supplement or replace the DTI limit with another method for directly 
measuring a consumer's personal finances; whether the Bureau should 
revise appendix Q or replace it with other standards for calculating 
and verifying a consumer's debt and income; and whether, instead of a 
DTI limit, the Bureau should adopt standards that do not directly 
measure a consumer's personal finances.\31\ The Bureau requested 
comment on how much time industry would need to change its practices in 
response to any changes the Bureau makes to the General QM loan 
definition.\32\ The Bureau received 85 comments on the ANPR from 
businesses in the mortgage industry (including creditors), consumer 
advocacy groups, elected officials, individuals, and research centers.
---------------------------------------------------------------------------

    \31\ 84 FR 37155, 37155, 37160-62 (July 31, 2019).
    \32\ Id. at 37162. The Bureau stated that if the answer to this 
question depends on how the Bureau revises the definition, the 
Bureau requested answers based on alternative possible definitions.
---------------------------------------------------------------------------

IV. Legal Authority

    The Bureau is proposing to amend Regulation Z pursuant to its 
authority under TILA and the Dodd-Frank Act. Section 1061 of the Dodd-
Frank Act transferred to the Bureau the ``consumer financial protection 
functions'' previously vested in certain other Federal agencies, 
including the Board. The Dodd-Frank Act defines the term ``consumer 
financial protection function'' to include ``all authority to prescribe 
rules or issue orders or guidelines pursuant to any Federal consumer 
financial law, including performing appropriate functions to promulgate 
and review such rules, orders, and guidelines.'' \33\ Title X of the 
Dodd-Frank Act (including section 1061), along with TILA and certain 
subtitles and provisions of title XIV of the Dodd-Frank Act, are 
Federal consumer financial laws.\34\
---------------------------------------------------------------------------

    \33\ 12 U.S.C. 5581(a)(1)(A).
    \34\ Dodd-Frank Act section 1002(14), 12 U.S.C. 5481(14) 
(defining ``Federal consumer financial law'' to include the 
``enumerated consumer laws'' and the provisions of title X of the 
Dodd-Frank Act), Dodd-Frank Act section 1002(12)(O), 12 U.S.C. 
5481(12)(O) (defining ``enumerated consumer laws'' to include TILA).
---------------------------------------------------------------------------

    Section 105(a) of TILA directs the Bureau to prescribe regulations 
to carry out the purposes of TILA and states that such regulations may 
contain such additional requirements, classifications, 
differentiations, or other provisions and may further provide for such 
adjustments and exceptions for all or any class of transactions that 
the Bureau judges are necessary or proper to effectuate the purposes of 
TILA, to prevent circumvention or evasion thereof, or to facilitate 
compliance therewith.\35\ A purpose of TILA is ``to assure a meaningful 
disclosure of credit terms so that the consumer will be able to compare 
more readily the various credit terms available to him and avoid the 
uninformed use of credit.'' \36\ Additionally, a purpose of TILA 
sections 129B and 129C is to assure that consumers are offered and 
receive residential mortgage loans on terms that reasonably reflect 
their ability to repay the loans and that are understandable and not 
unfair, deceptive, or abusive.\37\ As discussed in the section-by-
section analysis below, the Bureau is proposing to issue certain 
provisions of this proposed rule pursuant to its rulemaking, 
adjustment, and exception authority under TILA section 105(a).
---------------------------------------------------------------------------

    \35\ 15 U.S.C. 1604(a).
    \36\ 15 U.S.C. 1601(a).
    \37\ 15 U.S.C. 1639b(a)(2).
---------------------------------------------------------------------------

    Section 129C(b)(3)(B)(i) of TILA authorizes the Bureau to prescribe 
regulations that revise, add to, or subtract from the criteria that 
define a QM upon a finding that such regulations are necessary or 
proper to ensure that responsible, affordable mortgage credit remains 
available to consumers in a manner consistent with the purposes of TILA 
section 129C; or are necessary and appropriate to effectuate the 
purposes of TILA sections 129B and 129C, to prevent circumvention or 
evasion thereof, or to facilitate compliance with such sections.\38\ In 
addition, TILA section 129C(b)(3)(A) directs the Bureau to prescribe 
regulations to carry out the purposes of section 129C.\39\ As discussed 
in the section-by-section analysis below, the Bureau is proposing to 
issue certain provisions of this proposed rule pursuant to its 
authority under TILA section 129C(b)(3)(B)(i).
---------------------------------------------------------------------------

    \38\ 15 U.S.C. 1639c(b)(3)(B)(i).
    \39\ 15 U.S.C. 1639c(b)(3)(A).
---------------------------------------------------------------------------

    Section 1022(b)(1) of the Dodd-Frank Act authorizes the Bureau to 
prescribe rules to enable the Bureau to administer and carry out the 
purposes and objectives of the Federal consumer financial laws, and to 
prevent evasions thereof.\40\ TILA and title X of the Dodd-Frank Act 
are Federal consumer financial laws. Accordingly, the Bureau is 
proposing to exercise its authority under Dodd-Frank Act section 
1022(b) to prescribe rules that carry out the purposes and objectives 
of TILA and title X and prevent evasion of those laws.
---------------------------------------------------------------------------

    \40\ 12 U.S.C. 5512(b)(1).
---------------------------------------------------------------------------

V. Why the Bureau Is Issuing This Proposal

    The Bureau proposes to revise the ATR/QM Rule to provide that the 
Temporary GSE QM loan definition would expire on the effective date of 
a final rule issued by the Bureau amending the General QM loan 
definition, or when the GSEs exit conservatorship, whichever comes 
first.\41\ The Bureau is proposing those

[[Page 41452]]

amendments to the General QM loan definition in a separate proposal 
issued simultaneously with this proposal. In that notice of proposed 
rulemaking, the Bureau is proposing to remove the General QM loan 
definition's 43 percent DTI limit and replace it with a price-based 
threshold.
---------------------------------------------------------------------------

    \41\ The Bureau is also proposing to make confirming changes to 
the commentary. The Bureau is not proposing changes to the language 
in Sec.  1026.43(e)(4)(ii)(A)(1) providing that the Temporary GSE QM 
loan definition will expire when the GSEs cease to operate under 
conservatorship of the FHFA.
---------------------------------------------------------------------------

    Under that proposal, a loan would meet the General QM loan 
definition in Sec.  1026.43(e)(2) only if the APR exceeds the average 
prime offer rate (APOR) for a comparable transaction by less than two 
percentage points as of the date the interest rate is set.\42\ The 
proposal would retain the existing product-feature and underwriting 
requirements and limits on points and fees. Although the proposal would 
remove the 43 percent DTI limit from the General QM loan definition, 
the proposal would require that the creditor consider the consumer's 
income or assets, debt, and DTI ratio or residual income and verify the 
consumer's current or reasonably expected income or assets other than 
the value of the dwelling (including any real property attached to the 
dwelling) that secures the loan and the consumer's current debt 
obligations, alimony, and child support. The proposal would remove 
appendix Q, but would include clarifications of the requirements to 
consider and verify a consumer's income, assets, debt obligations, 
alimony, and child support, to help prevent compliance uncertainty that 
could otherwise result from the removal of appendix Q. The proposal 
would preserve the current threshold separating safe harbor from 
rebuttable presumption QMs, under which a loan is a safe harbor QM if 
its APR exceeds APOR for a comparable transaction by less than 1.5 
percentage points as of the date the interest rate is set (or by less 
than 3.5 percentage points for subordinate-lien transactions). Although 
the Bureau is proposing to remove the 43 percent DTI limit and adopt a 
price-based approach for the General QM loan definition, the Bureau is 
also requesting comment on two alternative approaches: (1) Retaining 
the DTI limit and increasing it to a specific threshold between 45 
percent and 48 percent or (2) using a hybrid approach involving both 
pricing and a DTI limit, such as applying a DTI limit to loans that are 
above specified rate spreads. Under these alternative approaches, 
creditors would not be required to count or verify the DTI ratio using 
appendix Q.
---------------------------------------------------------------------------

    \42\ That proposal would also provide higher thresholds for 
loans with smaller loan amounts and for subordinate-lien 
transactions.
---------------------------------------------------------------------------

    The Bureau expects that the proposed amendments would, among other 
things, allow some portion of loans that currently could receive QM 
status under the Temporary GSE QM loan definition to receive QM status 
under the General QM loan definition if they are made after the 
Temporary GSE QM loan definition expires. The Bureau tentatively 
determines that the proposed extension would ensure that responsible, 
affordable credit remains available to consumers who may be affected if 
the Temporary GSE QM loan definition expires before these amendments to 
the General QM loan definition take effect. In the Bureau's preliminary 
view, it is likely that many consumers who would have obtained loans 
under the Temporary GSE QM loan definition--and who would be able to 
obtain loans under the amended General QM loan definition, as 
separately proposed by the Bureau--would not be able to obtain loans at 
all if the Temporary GSE QM loan definition expires and final 
amendments to the General QM loan definition have not gone into effect. 
Further, for loans absorbed by FHA and the private market in the 
absence of the Temporary GSE QM loan definition, there is significant 
risk that some consumers would pay more for these loans, although any 
pricing effects would depend on the characteristics of the particular 
loans that would be originated as FHA loans or in the private market. 
To prevent these likely effects on the availability and cost of credit 
if the Temporary GSE QM loan definition expires before final amendments 
to the General QM loan definition take effect, the Bureau proposes to 
revise the ATR/QM Rule to provide that the Temporary GSE QM loan 
definition would expire on the effective date of a final rule issued by 
the Bureau amending the General QM loan definition, or when the GSEs 
exit conservatorship, whichever comes first.

A. Why the Bureau Created the Temporary GSE QM Loan Definition

    In the January 2013 Final Rule, the Bureau explained why it created 
the Temporary GSE QM loan category. The Bureau observed that it did not 
believe that a 43 percent DTI ratio ``represents the outer boundary of 
responsible lending'' and acknowledged that historically, and even 
after the financial crisis, over 20 percent of mortgages exceeded that 
threshold.\43\ The Bureau believed, however, that, as DTI ratios 
increase, ``the general ability-to-repay procedures, rather than the 
qualified mortgage framework, is better suited for consideration of all 
relevant factors that go to a consumer's ability to repay a mortgage 
loan'' and that ``[o]ver the long term . . . there will be a robust and 
sizable market for prudent loans beyond the 43 percent threshold even 
without the benefit of the presumption of compliance that applies to 
qualified mortgages.'' \44\
---------------------------------------------------------------------------

    \43\ 78 FR 6408, 6527 (Jan. 30, 2013).
    \44\ Id. at 6527-28.
---------------------------------------------------------------------------

    At the same time, the Bureau noted that the mortgage market was 
especially fragile following the financial crisis, and GSE-eligible 
loans and federally insured or guaranteed loans made up a significant 
majority of the market.\45\ The Bureau believed that it was appropriate 
to consider for a period of time that GSE-eligible loans were 
originated with an appropriate assessment of the consumer's ability to 
repay and therefore warranted being treated as QMs.\46\ The Bureau 
believed in 2013 that this temporary category of QM loans would, in the 
near term, help to ensure access to responsible, affordable credit for 
consumers with DTI ratios above 43 percent, as well as facilitate 
compliance by creditors by promoting the use of widely recognized, 
federally related underwriting standards.\47\
---------------------------------------------------------------------------

    \45\ Id. at 6533-34.
    \46\ Id. at 6534.
    \47\ Id. at 6533.
---------------------------------------------------------------------------

    The January 2013 Final Rule established a sunset date for the 
Temporary GSE QM loan definition of January 10, 2021 (seven years after 
that rule's effective date), or when the GSEs exit conservatorship, 
whichever comes first.\48\ The Bureau stated that it believed a seven-
year period between the Rule's effective date and the Temporary GSE QM 
loan definition's sunset date would ``provide an adequate period for 
economic, market, and regulatory conditions to stabilize'' and ``a 
reasonable transition period to the general qualified mortgage 
definition.'' \49\ The Bureau believed that the Temporary GSE QM loan 
definition would benefit consumers by preserving access to credit while 
the mortgage industry adjusted to the ATR/QM Rule.\50\ The Bureau also 
explained that it structured the Temporary GSE QM loan definition to 
cover loans eligible to be purchased or guaranteed by either of the 
GSEs--regardless of whether the loans are actually purchased or 
guaranteed--to leave room for non-GSE private investors to return to 
the market

[[Page 41453]]

and secure the same legal protections as the GSEs.\51\ The Bureau 
believed that, as the market recovered, the GSEs and the Federal 
agencies would be able to reduce their market presence, the percentage 
of Temporary GSE QM loans would decrease, and the market would shift 
toward General QM loans and non-QM loans above a 43 percent DTI 
ratio.\52\ The Bureau's view was that a shift towards non-QM loans 
could be supported by the non-GSE private market--i.e., by institutions 
holding such loans in portfolio, selling them in whole, or securitizing 
them in a rejuvenated private-label securities (PLS) market. The Bureau 
noted that, pursuant to its statutory obligations under the Dodd-Frank 
Act, it would assess the impact of the ATR/QM Rule five years after the 
Rule's effective date, and the assessment would provide an opportunity 
to analyze the Temporary GSE QM loan definition.\53\
---------------------------------------------------------------------------

    \48\ See 12 CFR 1026.43(e)(4)(ii)(A)(1) and (e)(4)(iii)(B).
    \49\ 78 FR 6408, 6534 (Jan. 30, 2013).
    \50\ Id. at 6536.
    \51\ Id. at 6534.
    \52\ Id.
    \53\ Id.
---------------------------------------------------------------------------

B. The Current State of the Mortgage Market

    The mortgage market has evolved differently than the Bureau 
predicted when it issued the January 2013 Final Rule. As explained 
below, and contrary to the Bureau's expectations, the market has not 
shifted away from Temporary GSE QM originations and the private market 
\54\ remains small. As noted in the Assessment Report, Temporary GSE QM 
originations continue to represent ``a large and persistent'' share of 
originations in the conforming segment of the mortgage market, and a 
robust and sizable market to support non-QM lending has not 
emerged.\55\
---------------------------------------------------------------------------

    \54\ Consistent with the Assessment Report, references to the 
private market herein include loans securitized by PLS and loans 
financed by portfolio lending by commercial banks, credit unions, 
savings banks, savings associations, mortgage banks, life insurance 
companies, finance companies, their affiliate institutions, and 
other private purchasers. See Assessment Report, supra note 22, at 
74.
    \55\ Id. at 198.
---------------------------------------------------------------------------

    The GSEs' share of the conventional, conforming purchase-mortgage 
market was large before the ATR/QM Rule, and the Assessment found a 
small increase in that share since the Rule's effective date, reaching 
71 percent in 2017.\56\ The Assessment Report noted that, at least for 
loans intended for sale in the secondary market, creditors generally 
offer a Temporary GSE QM loan even when a General QM loan could be 
originated.\57\
---------------------------------------------------------------------------

    \56\ Id. at 191.
    \57\ Id. at 192.
---------------------------------------------------------------------------

    The continued prevalence of Temporary GSE QM loan originations is 
contrary to the Bureau's expectation at the time it issued the January 
2013 Final Rule.\58\ The Assessment Report discussed several possible 
reasons for the continued prevalence of Temporary GSE QM loan 
originations. The Assessment Report first highlighted commenters' 
concerns with the perceived lack of clarity in appendix Q and found 
that such concerns ``may have contributed to investors'--and at least 
derivatively, creditors'--preference'' for Temporary GSE QM loans 
instead of originating loans under the General QM loan definition.\59\ 
In addition, the Bureau has not revised appendix Q since 2013, while 
other standards for calculating and verifying debt and income have been 
updated more frequently.\60\ ANPR commenters also expressed concern 
with appendix Q and stated that the Temporary GSE QM loan definition 
has benefited creditors and consumers by enabling creditors to 
originate QMs without having to use appendix Q.
---------------------------------------------------------------------------

    \58\ Id. at 13, 190, 238.
    \59\ Id. at 193.
    \60\ Id. at 193-94.
---------------------------------------------------------------------------

    The Assessment Report noted that a second possible reason for the 
continued prevalence of Temporary GSE QM loans is that the GSEs were 
able to accommodate demand for mortgages above the General QM loan 
definition's DTI limit of 43 percent as the DTI ratio distribution in 
the market shifted upward.\61\ According to the Assessment Report, in 
the years since the ATR/QM Rule took effect, house prices have 
increased and consumers hold more mortgage and other debt (including 
student loan debt), all of which have caused the DTI ratio distribution 
to shift upward.\62\ The Assessment Report noted that the share of GSE 
home purchase loans with DTI ratios above 43 percent has increased 
since the ATR/QM Rule took effect in 2014.\63\ The available data 
suggest that such high-DTI lending has declined in the non-GSE market 
relative to the GSE market.\64\ The non-GSE market has constricted even 
with respect to highly qualified consumers; those with higher incomes 
and higher credit scores are representing a greater share of 
denials.\65\
---------------------------------------------------------------------------

    \61\ Id. at 194.
    \62\ Id.
    \63\ Id. at 194-95.
    \64\ Id. at 119-20.
    \65\ Id. at 153.
---------------------------------------------------------------------------

    The Assessment Report found that a third possible reason for the 
persistence of Temporary GSE QM loans is the structure of the secondary 
market.\66\ If creditors adhere to the GSEs' guidelines, they gain 
access to a robust, highly liquid secondary market.\67\ In contrast, 
while private market securitizations have grown somewhat in recent 
years, their volume is still a fraction of their pre-crisis levels.\68\ 
There were less than $20 billion in new origination PLS issuances in 
2017, compared with $1 trillion in 2005,\69\ and only 21 percent of new 
origination PLS issuances in 2017 were non-QM issuances.\70\ To the 
extent that private securitizations have occurred since the ATR/QM Rule 
took effect in 2014, the majority of new origination PLS issuances have 
consisted of prime jumbo loans made to consumers with strong credit 
characteristics, and these securities have a low share of non-QM 
loans.\71\ The Assessment Report notes that the Temporary GSE QM loan 
definition may itself be inhibiting the growth of the non-QM 
market.\72\ However, the Assessment Report also notes that it is 
possible that this market might not exist even with a narrower 
Temporary GSE QM loan definition, if consumers were unwilling to pay 
the premium charged to cover the potential litigation risk associated 
with non-QMs, which do not have presumption of compliance with the ATR/
QM Rule, or if creditors were unwilling or lack the funding to make the 
loans.\73\
---------------------------------------------------------------------------

    \66\ Id. at 196.
    \67\ Id.
    \68\ Id.
    \69\ Id.
    \70\ Id. at 197.
    \71\ Id. at 196.
    \72\ Id. at 205.
    \73\ Id.
---------------------------------------------------------------------------

    The Bureau expects that each of these features of the mortgage 
market that concentrate lending within the Temporary GSE QM loan 
definition will largely persist through the current January 10, 2021 
sunset date.

C. Potential Market Impact of the Temporary GSE QM Loan Definition's 
Expiration

    The Bureau anticipates that there are two main types of 
conventional loans that would be affected by the expiration of the 
Temporary GSE QM loan definition: High-DTI GSE loans (those with DTI 
ratios above 43 percent) and GSE-eligible loans without appendix Q-
required documentation. These loans are currently originated as QM 
loans due to the Temporary GSE QM loan definition but would not be 
originated as General QM loans, and may not be originated at all, if 
the Temporary GSE QM loan definition were to expire before amendments 
to the General QM loan definition are in effect. This

[[Page 41454]]

proposal refers to these loans as potentially displaced loans.
    High-DTI GSE Loans. The ANPR provided an estimate of the number of 
loans potentially affected by the expiration of the Temporary GSE QM 
loan definition.\74\ In providing the estimate, the ANPR focused on 
loans that fall within the Temporary GSE QM loan definition but not the 
General QM loan definition because they have a DTI ratio above 43 
percent. This proposal refers to these loans as High-DTI GSE loans. 
Based on data from the National Mortgage Database (NMDB), the Bureau 
estimated that there were approximately 6.01 million closed-end first-
lien residential mortgage originations in the United States in 
2018.\75\ Based on supplemental data provided by the FHFA, the Bureau 
estimated that the GSEs purchased or guaranteed 52 percent--roughly 
3.12 million--of those loans.\76\ Of those 3.12 million loans, the 
Bureau estimated that 31 percent--approximately 957,000 loans--had DTI 
ratios greater than 43 percent.\77\ Thus, the Bureau estimated that, as 
a result of the General QM loan definition's 43 percent DTI limit, 
approximately 957,000 loans--16 percent of all closed-end first-lien 
residential mortgage originations in 2018--were High-DTI GSE loans.\78\ 
This estimate does not include Temporary GSE QM loans that were 
eligible for purchase by either of the GSEs but were not sold to the 
GSEs.
---------------------------------------------------------------------------

    \74\ 84 FR 37155, 37158-59 (July 31, 2019).
    \75\ Id.
    \76\ Id. at 37159.
    \77\ Id. The Bureau estimates that 616,000 of these loans were 
for home purchases, and 341,000 were refinance loans. In addition, 
the Bureau estimates that the share of these loans with DTI ratios 
over 45 percent has varied over time due to changes in market 
conditions and GSE underwriting standards, rising from 47 percent in 
2016 to 56 percent in 2017, and further to 69 percent in 2018.
    \78\ Id.
---------------------------------------------------------------------------

    Loans Without Appendix Q-Required Documentation That Are Otherwise 
GSE-Eligible. In addition to High-DTI GSE loans, the Bureau noted that 
an additional, smaller number of Temporary GSE QM loans with DTI ratios 
of 43 percent or less when calculated using GSE underwriting guides 
would not fall within the General QM loan definition because their 
method of documenting and verifying income or debt is incompatible with 
appendix Q.\79\ These loans would also likely be affected when the 
Temporary GSE QM loan definition expires. The Bureau understands, from 
extensive public feedback and its own experience, that appendix Q does 
not specifically address whether and how to document and include 
certain forms of income. The Bureau understands these concerns are 
particularly acute for self-employed consumers, consumers with part-
time employment, and consumers with irregular or unusual income 
streams.\80\ As a result, these consumers' access to credit may be 
affected if the Temporary GSE QM loan definition were to expire before 
amendments to the General QM loan definition are in effect.
---------------------------------------------------------------------------

    \79\ Id. at 37159 n.58. Where these types of loans have DTI 
ratios above 43 percent, they would be captured in the estimate 
above relating to High-DTI GSE loans.
    \80\ For example, in qualitative responses to the Bureau's 
Lender Survey conducted as part of the Assessment, underwriting for 
self-employed borrowers was one of the most frequently reported 
sources of difficulty in originating mortgages using appendix Q. 
These concerns were also raised in comments submitted in response to 
the Assessment RFI, noting that appendix Q is ambiguous with respect 
to how to treat income for consumers who are self-employed, have 
irregular income, or want to use asset depletion as income. See 
Assessment Report, supra note 22, at 200.
---------------------------------------------------------------------------

    The Bureau's analysis of the market under the baseline focuses on 
High-DTI GSE loans because the Bureau estimates that most potentially 
displaced loans are High-DTI GSE loans. The Bureau also lacks the loan-
level documentation and underwriting data necessary to estimate with 
precision the number of potentially displaced loans that do not fall 
within the other General QM loan requirements and are not High-DTI GSE 
loans. However, the Assessment did not find evidence of substantial 
numbers of loans in the non-GSE-eligible jumbo market being displaced 
when appendix Q verification requirements became effective in 2014.\81\ 
Further, the Assessment Report found evidence of only a limited 
reduction in the approval rate of self-employed applicants for non-GSE 
eligible mortgages.\82\ Based on this evidence, along with qualitative 
comparisons of GSE and appendix Q documentation requirements and 
available data on the prevalence of borrowers with non-traditional or 
difficult-to-document income (e.g., self-employed borrowers, retired 
borrowers, those with irregular income streams), the Bureau estimates 
this second category of potentially displaced loans is considerably 
less numerous than the category of High-DTI GSE loans.
---------------------------------------------------------------------------

    \81\ Id. at 107 (``For context, total jumbo purchase 
originations increased from an estimated 108,700 to 130,200 between 
2013 and 2014, based on nationally representative NMDB data.'').
    \82\ Id. at 118 (``The Application Data indicates that, 
notwithstanding concerns that have been expressed about the 
challenge of documenting and verifying income for self-employed 
borrowers under the General QM standard and the documentation 
requirements contained in appendix Q to the Rule, approval rates for 
non-High-DTI, non-GSE eligible self-employed borrowers have 
decreased only slightly, by two percentage points.'').
---------------------------------------------------------------------------

    Additional Effects on Loans Not Displaced. While the most 
significant market effects under the baseline are displaced loans, 
loans that continue to be originated as QM loans after the expiration 
of the Temporary GSE QM loan definition would also be affected. After 
the sunset date, all loans with DTI ratios at or below 43 percent that 
are or would have been purchased and guaranteed as GSE loans under the 
Temporary GSE QM loan definition--approximately 2.16 million loans in 
2018--and that continue to be originated as General QM loans after the 
provision expires would be required to verify income and debts 
according to appendix Q, rather than only according to GSE guidelines. 
Given the concerns raised about appendix Q's ambiguity and lack of 
flexibility, this would likely entail both increased documentation 
burden for some consumers as well as increased costs or time-to-
origination for creditors on some loans.\83\
---------------------------------------------------------------------------

    \83\ See part V.B. for additional discussion of concerns raised 
about appendix Q.
---------------------------------------------------------------------------

    In response to the ANPR, the Bureau received additional estimates 
regarding the number of potentially displaced loans. Two comments cited 
data from a private provider of mortgage market data indicating that 16 
percent of mortgages originated in 2018 were considered QMs solely due 
to the Temporary GSE QM loan definition. One of those comments also 
stated that a mortgage banker with $4.5 billion in mortgage loan volume 
estimated that 25 percent of their mortgages originated in 2018 were 
considered QMs solely due to the Temporary GSE QM loan definition. This 
comment also stated that a credit union with $68 million in mortgage 
loan volume estimated 17 percent of their mortgages originated in 2018 
were considered QMs solely due to the Temporary GSE QM loan definition. 
A comment from a creditor with a mortgage loan volume of $630 million 
stated that 20 percent of the commenter's mortgages originated in 2018 
were considered QMs solely due to the Temporary GSE QM loan definition. 
These estimates are generally in line with the Bureau's estimates.
    Focusing on High-DTI GSE loans, the Bureau expects that these loans 
will continue to comprise a significant proportion of mortgage 
originations through January 10, 2021, when the Temporary GSE QM loan 
definition is currently scheduled to expire.\84\ The ANPR identified 
several ways that the market for loans that would have been High-DTI 
GSE loans may respond to the expiration of the Temporary GSE QM loan 
definition.\85\ In doing so, the

[[Page 41455]]

Bureau made assumptions about the future behavior of certain mortgage 
market participants: (1) That there is no change to the GSEs' current 
policy that does not allow purchase of non-QM loans; and (2) that 
creditors' preference for making Temporary GSE QM loans, and investors' 
preference for purchasing such loans, is driven in part by the safe 
harbor provided to such loans and that these preferences would continue 
at least for some creditors and investors.\86\
---------------------------------------------------------------------------

    \84\ 84 FR 37155, 37159 (July 31, 2019).
    \85\ Id.
    \86\ Id.
---------------------------------------------------------------------------

    Given these assumptions, the Bureau expects that many consumers who 
would have obtained High-DTI GSE loans would instead obtain FHA-insured 
loans because FHA currently insures loans with DTI ratios up to 57 
percent.\87\ The number of loans that move to FHA would depend on FHA's 
willingness and ability to insure such loans, on whether FHA continues 
to treat all loans that it insures as QMs under its own QM rule, and on 
how many High-DTI GSE loans exceed FHA's loan-amount limit.\88\ For 
example, the Bureau estimates that, in 2018, 11 percent of High-DTI GSE 
loans exceeded FHA's loan-amount limit.\89\ The Bureau considers this 
an outer limit on the share of High-DTI GSE loans that could move to 
FHA.\90\ The Bureau expects that loans that are originated as FHA loans 
instead of under the Temporary GSE QM loan definition would generally 
cost materially more for many consumers.\91\ The Bureau expects that 
some consumers offered FHA loans may choose not to take out a mortgage 
because of these higher costs.
---------------------------------------------------------------------------

    \87\ Id. In fiscal year 2019, approximately 57 percent of FHA-
insured purchase mortgages had a DTI ratio above 43 percent. U.S. 
Dep't of Hous. & Urban Dev., Annual Report to Congress Regarding the 
Financial Status of the FHA Mutual Mortgage Insurance Fund, Fiscal 
Year 2019, at 33 (Nov. 14, 2018), https://www.hud.gov/sites/dfiles/Housing/documents/2019FHAAnnualReportMMIFund.pdf.
    \88\ 84 FR 37155, 37159 (July 31, 2019).
    \89\ Id. In 2018, FHA's county-level maximum loan limits ranged 
from $271,050 to $721,050. See U.S. Dep't of Hous. & Urban Dev., FHA 
Mortgage Limits, https://entp.hud.gov/idapp/html/hicostlook.cfm 
(last visited June 12, 2020).
    \90\ 84 FR 37155, 37159 (July 31, 2019).
    \91\ Interest rates and insurance premiums on FHA loans 
generally feature less risk-based pricing than conventional loans, 
charging more similar rates and premiums to all consumers. As a 
result, they are likely to cost more than conventional loans for 
consumers with stronger credit scores and larger down payments. 
Consistent with this pricing differential, consumers with higher 
credit scores and larger down payments chose FHA loans relatively 
rarely in 2018 HMDA data on mortgage originations. See Bureau of 
Consumer Fin. Prot., Introducing New and Revised Data Points in HMDA 
(Aug. 2019), https://files.consumerfinance.gov/f/documents/cfpb_new-revised-data-points-in-hmda_report.pdf.
---------------------------------------------------------------------------

    It is also possible that some consumers who would have sought High-
DTI GSE loans would be able to obtain loans in the private market.\92\ 
The ANPR noted that the number of loans absorbed by the private market 
would likely depend, in part, on whether actors in the private market 
are willing to assume the legal and credit risk associated with funding 
High-DTI GSE loans as non-QM loans or small-creditor portfolio QM loans 
\93\ and, if so, whether actors in the private market would offer more 
competitive pricing or terms.\94\ For example, the Bureau estimates 
that 55 percent of High-DTI GSE loans in 2018 had credit scores at or 
above 680 and loan-to-value (LTV) ratios at or below 80 percent--credit 
characteristics traditionally considered attractive to actors in the 
private market.\95\ The ANPR also noted that there are certain built-in 
costs to FHA loans--namely, mortgage insurance premiums--which could be 
a basis for competition, and that depository institutions in recent 
years have shied away from originating and servicing FHA loans due to 
the obligations and risks associated with such loans.\96\
---------------------------------------------------------------------------

    \92\ 84 FR 37155, 37159 (July 31, 2019).
    \93\ See 12 CFR 1026.43(e)(5) (extending QM status to certain 
portfolio loans originated by certain small creditors). In addition, 
section 101 of the Economic Growth, Regulatory Relief, and Consumer 
Protection Act, Public Law 115-174, sec. 101, 132 Stat. 1296, 1297 
(2018), amended TILA to add a safe harbor for small-creditor 
portfolio loans. See 15 U.S.C. 1639c(b)(2)(F).
    \94\ 84 FR 37155, 37159 (July 31, 2019).
    \95\ Id.
    \96\ Id.
---------------------------------------------------------------------------

    However, the Assessment Report found that a robust market for non-
QM loans above the 43 percent DTI limit has not materialized as the 
Bureau had predicted. Therefore, there is limited capacity in the non-
QM market to provide access to credit after the expiration of the 
Temporary GSE QM loan definition.\97\ As described above, the non-QM 
market has been further reduced by the recent economic disruptions 
associated with the COVID-19 pandemic, with most mortgage credit now 
available in the QM lending space. The Bureau acknowledges that the 
slow development of the non-QM market, and the recent economic 
disruptions that may significantly hinder its development in the near 
term, may further reduce access to credit outside the QM space.
---------------------------------------------------------------------------

    \97\ Assessment Report, supra note 22 at 198.
---------------------------------------------------------------------------

    Finally, the ANPR noted that some consumers who would have sought 
High-DTI GSE loans may adapt to changing options and make different 
choices, such as adjusting their borrowing to result in a lower DTI 
ratio.\98\ However, some consumers who would have sought High-DTI GSE 
loans may not obtain loans at all.\99\
---------------------------------------------------------------------------

    \98\ 84 FR 37155, 37159 (July 31, 2019).
    \99\ Id.
---------------------------------------------------------------------------

D. Why the Bureau Is Proposing To Extend the Temporary GSE QM Loan 
Definition

    The Bureau anticipates that if the Temporary GSE QM loan definition 
expires as scheduled and there are no changes to the General QM loan 
definition prior to expiration, many High-DTI GSE loans and loans 
without appendix Q-required documentation that are otherwise GSE-
eligible would not be made and many would cost consumers materially 
more.\100\ In a separate proposal issued simultaneously with this 
proposal, the Bureau is proposing to remove the General QM loan 
definition's DTI limit and replace it with a limit based on the loan's 
pricing. Under the proposal, a loan would meet the General QM loan 
definition only if the APR exceeds APOR for a comparable transaction by 
less than two percentage points as of the date the interest rate is 
set.\101\ The proposal would also provide higher thresholds for loans 
with smaller loan amounts and for subordinate-lien transactions. The 
Bureau expects that the proposed amendments would, among other things, 
allow some portion of loans that currently could receive QM status 
under the Temporary GSE QM loan definition to receive QM status under 
the General QM loan definition if they are made after the Temporary GSE 
QM loan definition expires.
---------------------------------------------------------------------------

    \100\ See supra part V.C.
    \101\ The proposal would preserve the current threshold 
separating safe harbor from rebuttable presumption QMs, under which 
a loan is a safe harbor QM if its APR exceeds APOR for a comparable 
transaction by less than 1.5 percentage points as of the date the 
interest rate is set (or by less than 3.5 percentage points for 
subordinate-lien transactions).
---------------------------------------------------------------------------

    The Bureau is concerned about the likely effects on the 
availability and cost of credit if the Temporary GSE QM loan definition 
expires before final amendments to the General QM loan definition take 
effect. While the Bureau can estimate the outer limit of the share of 
High-DTI GSE loans that could be originated by the FHA, the Bureau 
cannot estimate with precision the extent to which loans would be 
absorbed by the FHA, or the characteristics of the particular loans 
that might be so absorbed.\102\ Similarly,

[[Page 41456]]

while the Bureau also anticipates that the private market may absorb 
additional loans that would have been High-DTI GSE loans, the Bureau is 
uncertain as to the private market's capacity to absorb these loans in 
the short term--as a robust market for non-QM loans above the 43 
percent DTI limit has not materialized as the Bureau had predicted, and 
as the non-QM market has been further reduced by the current economic 
disruptions associated with the COVID-19 pandemic. And, as noted, the 
Bureau lacks the loan-level documentation and underwriting data 
necessary to estimate with precision the number of potentially 
displaced loans that do not fall within the General QM loan definition 
due to appendix Q-related issues and are not High-DTI GSE loans. 
Despite these uncertainties, it is likely that many consumers who would 
have obtained loans under the Temporary GSE QM loan definition--and who 
would be able to obtain loans under the amended General QM loan 
definition, as separately proposed by the Bureau--would not be able to 
obtain loans at all if the Temporary GSE QM loan definition expires and 
final amendments to the General QM loan definition have not gone into 
effect.\103\ Further, for loans absorbed by the FHA and the private 
market in the absence of the Temporary GSE QM loan definition, there is 
significant risk that some consumers would pay more for these loans, 
although any pricing effects would depend on the characteristics of the 
particular loans that would be originated as FHA loans or in the 
private market.\104\
---------------------------------------------------------------------------

    \102\ Assuming they are still originated, potentially displaced 
loans made with high LTVs or to consumers with low credit scores are 
the least likely to be absorbed by the private market, and thus most 
likely to be absorbed by the FHA. The exact characteristics of loans 
likely to be absorbed by the FHA would depend on the relative 
pricing and underwriting requirements of FHA and private market 
alternatives.
    \103\ See supra part V.C, noting that some consumers who would 
have sought High-DTI GSE loans may make different choices, such as 
by adjusting their borrowing to result in a lower DTI ratio.
    \104\ The Assessment Report noted that, while there did not 
appear to be a marked change in the relative price of non-QM High-
DTI loans immediately following the implementation of the ATR/QM 
Rule, other research has found a 25 basis point premium for non-QM 
High-DTI loans in more recent years. Assessment Report, supra note 
22, at 121-22.
---------------------------------------------------------------------------

    To prevent these likely effects on the availability and cost of 
credit if the Temporary GSE QM loan definition expires before final 
amendments to the General QM loan definition take effect, the Bureau 
proposes to extend the Temporary GSE QM loan definition until the 
effective date of a final rule issued by the Bureau amending the 
General QM loan definition, or when the GSEs exit conservatorship, 
whichever comes first. The Bureau proposes this extension to ensure 
that responsible, affordable credit remains available to consumers who 
may be affected if the Temporary GSE QM loan definition expires before 
these amendments take effect.\105\
---------------------------------------------------------------------------

    \105\ The Bureau expects to finalize a rule amending the General 
QM loan definition, at which point the Temporary GSE QM loan 
definition would expire under this proposed rule. However, the 
Bureau notes that in the unlikely event that such a rule is not 
finalized and the current General QM loan definition remains in 
place, the Bureau would revisit the Temporary GSE QM loan definition 
and take appropriate action. As noted above, the Bureau does not 
intend to maintain indefinitely a presumption that loans eligible 
for purchase or guarantee by either of the GSEs have been originated 
with appropriate consideration of the consumer's ability to repay.
---------------------------------------------------------------------------

    The Bureau stated in the January 2013 Final Rule that, for a 
limited period of time and while the GSEs are under conservatorship of 
the FHFA, it believed that GSE-eligible loans are originated with 
appropriate consideration of ability to repay.\106\ As discussed in the 
ANPR and below, the Bureau is concerned about presuming indefinitely 
that loans eligible for purchase or guarantee by either of the GSEs 
have been originated with appropriate consideration of the consumer's 
ability to repay. However, the Bureau expects that, under current 
conditions, it may be appropriate nevertheless to extend that 
presumption for a short period until the effective date of Bureau 
amendments to the General QM loan definition, in light of concerns 
about effects on the availability and cost of credit if the Temporary 
GSE QM loan definition expires before a rule revising the General QM 
loan definition takes effect.
---------------------------------------------------------------------------

    \106\ 78 FR 6408, 6534 (Jan. 30, 2013).
---------------------------------------------------------------------------

    Under the current rule the Temporary GSE QM loan definition would 
expire upon the date the GSEs exit conservatorship, even if that occurs 
prior to January 10, 2021. The Bureau is not proposing any amendments 
to this provision. If either of the GSEs ceases to operate under FHFA 
conservatorship prior to the finalization of the Bureau's proposed 
amendments to the General QM loan definition, the Temporary GSE QM loan 
definition at Sec.  1026.43(e)(4)(ii)(A) would no longer be available. 
The Bureau assumes that the conservatorship will remain in place until 
the conclusion of the rulemaking concerning the General QM loan 
definition; in the event final amendments to that definition are not in 
effect at the time the conservatorship of one or both of the GSEs is 
terminated, the Bureau will evaluate at that point what, if any, steps 
to take in response to such a termination of conservatorship. Comments 
on Sec.  1026.43(e)(4)(ii)(A) are outside the scope of this rulemaking 
and will not be considered.
    The Bureau's actions in proposing to extend the Temporary GSE QM 
loan definition and, separately, to amend the General QM loan 
definition are informed by the publication in January 2019 of the 
Assessment Report, which it prepared as required by section 1022(d) of 
the Dodd-Frank Act. The Assessment Report provides information to allow 
the Bureau to analyze the impact and status of the ATR/QM Rule.
    The Bureau does not intend to issue a final rule amending the 
General QM loan definition early enough for it to take effect before 
April 1, 2021, particularly given that, as its separate proposal 
states, the Bureau proposes a six-month interval between Federal 
Register publication of a final rule and the rule's effective date.

VI. Section-by-Section Analysis

1026.43 Minimum Standards for Transactions Secured by a Dwelling

43(e) Qualified Mortgages

43(e)(4) Qualified Mortgage Defined--Special Rules

43(e)(4)(iii) Sunset of Special Rules

43(e)(4)(iii)(B)

    Section 1026.43(e)(4)(iii)(B) provides that the Temporary GSE QM 
loan definition is available only for covered transactions consummated 
on or before January 10, 2021.\107\ The Bureau proposes to revise Sec.  
1026.43(e)(4)(iii)(B) to state that the definition is available only 
for covered transactions consummated on or before the effective date of 
a final rule issued by the Bureau amending Sec.  1026.43(e)(2). Revised 
Sec.  1026.43(e)(4)(iii)(B) would also state that the Bureau will amend 
Sec.  1026.43(e)(4)(iii)(B) as of that effective date to reflect the 
new status.\108\
---------------------------------------------------------------------------

    \107\ Section 1026.43(e)(4)(iii)(B) also applies to the other 
temporary QM loan definitions in Sec.  1026.43(e)(4). However, as 
noted above in part II, these other temporary QM loan definitions 
have expired because the relevant Federal agencies have issued their 
own QM rules. See, e.g., 24 CFR 203.19 (HUD rule).
    \108\ The Bureau is not proposing changes to Sec.  
1026.43(e)(4)(ii)(A), which provides that the Temporary GSE QM loan 
definition is available only for covered transactions consummated on 
or before the date Fannie Mae or Freddie Mac (or any limited-life 
regulatory entity succeeding the charter of either), respectively, 
cease to operate under the conservatorship or receivership of the 
FHFA pursuant to section 1367 of the Federal Housing Enterprises 
Financial Safety and Soundness Act of 1992, 12 U.S.C. 4501 et seq.
---------------------------------------------------------------------------

    Comment 43(e)(4)-3 clarifies the relationship between Sec.  
1026.43(e)(4)(iii)(B) and (ii)(A). The comment explains that the 
Temporary GSE QM loan definition applies only to loans consummated on 
or before January 10, 2021, regardless of whether

[[Page 41457]]

Fannie Mae or Freddie Mac (or any limited-life regulatory entity 
succeeding the charter of either) continues to operate under the 
conservatorship or receivership of the FHFA. The comment also explains 
that, accordingly, the Temporary GSE QM loan definition is available 
only for covered transactions consummated on or before the earlier of 
either (i) the date Fannie Mae or Freddie Mac (or any limited-life 
regulatory entity succeeding the charter of either), respectively, 
cease to operate under the conservatorship or receivership of the FHFA 
or (ii) January 10, 2021. The Bureau proposes to change each of the two 
references to January 10, 2021 in this comment to conform with the 
proposed change to Sec.  1026.43(e)(4)(iii)(B). The Bureau also 
proposes to revise this comment to note that the Bureau will also amend 
this comment as of the effective date of a final rule issued by the 
Bureau amending Sec.  1026.43(e)(2) to reflect the new status.
    The Bureau considers that, compared with the alternatives, the 
proposal better ensures the availability of responsible, affordable 
mortgage credit to consumers and better addresses the risk of 
disruption as the market transitions away from the Temporary GSE QM 
loan definition. The Bureau seeks comment on whether a different sunset 
date for the Temporary GSE QM loan definition would better ensure the 
availability of responsible, affordable mortgage credit to consumers 
and better address the risk of disruption as the market transitions 
away from the Temporary GSE QM loan definition.\109\
---------------------------------------------------------------------------

    \109\ The Bureau notes that the proposed extension to the 
Temporary GSE QM loan definition's sunset date does not apply to the 
temporary points-and-fees cure provision in Sec.  
1026.43(e)(3)(iii), which is also set to expire on January 10, 2021. 
Unlike the Temporary GSE QM loan definition, the Bureau does not 
expect allowing the temporary points-and-fees cure provision to 
expire on this date would disrupt the availability of responsible, 
affordable mortgage credit to consumers. See Assessment Report, 
supra note 22, at 12 (noting that applications for which the points-
and-fees limit will be exceeded are sufficiently rare that creditors 
handle them on a case-by-case basis; that, specifically, lenders 
typically waive certain fees, with or without a compensating 
increase in the interest rate, to avoid exceeding the cap; and that 
creditors rarely deny an application to avoid exceeding the QM 
points-and-fees cap). Further, unlike the Temporary GSE QM loan 
definition, the Bureau is not currently planning any amendments to 
the points-and-fees provisions, so there is no need for the Bureau 
to extend the temporary provision while the Bureau implements such 
amendments. Comments on the expiration date for the temporary 
points-and-fees cure provision at Sec.  1026.43(e)(3)(iii) are 
outside the scope of this rulemaking.
---------------------------------------------------------------------------

    One alternative to the proposal would be to remove Sec.  
1026.43(e)(4)(iii)(B), as well as the language in Sec.  
1026.43(e)(4)(ii)(A)(1) referring to conservatorship, from Regulation 
Z.\110\ This would make the Temporary GSE QM loan definition permanent. 
The Bureau is not proposing this alternative because it is concerned 
about presuming indefinitely that loans eligible to be purchased or 
guaranteed by either of the GSEs--whether or not the GSEs are under 
conservatorship--have been originated with appropriate consideration of 
consumers' ability to repay.\111\ In addition, the Bureau is concerned 
that making the Temporary GSE QM loan definition permanent could stifle 
innovation and the development of competitive private-sector approaches 
to underwriting. The Bureau is also concerned that, as long as the 
Temporary GSE QM loan definition continues in effect, the non-GSE 
private market is less likely to rebound and that the existence of the 
Temporary GSE QM loan definition may be contributing to the continuing 
limited non-GSE private market. For these reasons, making the Temporary 
GSE QM loan definition permanent appears to be inconsistent with the 
purposes of TILA's ATR provision and with the Bureau's mandate.
---------------------------------------------------------------------------

    \110\ Under this alternative, Sec.  1026.43(e)(4)(ii)(A) would 
be revised to read: ``To be purchased or guaranteed by the Federal 
National Mortgage Association or the Federal Home Loan Mortgage 
Corporation.''
    \111\ For example, the Bureau's Assessment Report noted that one 
GSE loosened its underwriting standards in ways that proved 
unsustainable during the time since the January 2013 Final Rule was 
issued. Assessment Report, supra note 22, at 194-95.
---------------------------------------------------------------------------

    A second alternative would be to remove Sec.  1026.43(e)(4)(iii)(B) 
from Regulation Z without removing the language in Sec.  
1026.43(e)(4)(ii)(A)(1) referring to conservatorship. This would keep 
the Temporary GSE QM loan definition in place until the end of 
conservatorship. The Bureau is not proposing this alternative because 
the Bureau expects that it will be able to issue final amendments to 
the General QM loan definition, and that those amendments would take 
effect, prior to the termination of conservatorship. Due to its 
concerns described in the paragraph above about negative effects of the 
Temporary GSE QM loan definition, the Bureau does not want to maintain 
the Temporary GSE QM loan definition any longer than necessary to amend 
the General QM loan definition and to ensure a smooth and orderly 
transition from the Temporary GSE QM loan definition to the revised 
General QM loan definition.
    A third alternative to the proposal would be to extend the sunset 
date in Sec.  1026.43(e)(4)(iii)(B) to a date certain. The Bureau is 
not proposing to extend the sunset date to a date certain because it is 
concerned that proposing too short an extension may not provide the 
Bureau with adequate time to consider, propose, and promulgate 
amendments to the General QM loan definition and creditors with enough 
time to bring their operations into compliance with any amendments 
adopted by the Bureau. At the same time, the Bureau is concerned that 
proposing too long an extension would have the same type of negative 
effects as the Bureau describes in the paragraph above regarding making 
the Temporary GSE QM loan definition permanent, without any offsetting 
benefits because a longer extension is not needed to provide the Bureau 
with adequate time to consider, propose, and promulgate amendments to 
the General QM loan definition.
    As with the January 2013 Final Rule, the Bureau issues this 
proposal pursuant to its authority under TILA sections 129C(b)(3)(B)(i) 
and 105(a) and Dodd-Frank Act section 1022(b)(1). For the reasons 
described above in part V.D, the Bureau tentatively determines that the 
proposed extension of the Temporary GSE QM loan definition's sunset 
date is necessary and proper to ensure that responsible, affordable 
mortgage credit remains available to consumers in a manner consistent 
with the purposes of TILA section 129C, as well as necessary and 
appropriate to effectuate the purposes of TILA section 129C--including 
the purpose of assuring that consumers are offered and receive 
residential mortgage loans on terms that reasonably reflect their 
ability to repay the loans and that are understandable and not unfair, 
deceptive, or abusive. For these same reasons, this proposed extension 
is necessary to effectuate the purposes of TILA, which include, among 
other things, the above-described purpose of TILA section 129C.
    The Bureau requests comment on the proposed revisions to Sec.  
1026.43(e)(4)(iii)(B) and comment 43(e)(4)-3 as well as its rationale 
for the proposed revisions.

VII. Dodd-Frank Act Section 1022(b) Analysis

A. Overview

    As discussed above, this proposal would delay the scheduled 
expiration of the Temporary GSE QM loan definition from January 10, 
2021 to the effective date of a final rule issued by the Bureau 
amending the General QM loan definition. In developing this proposal, 
the Bureau has considered the potential benefits, costs, and impacts as 
required

[[Page 41458]]

by section 1022(b)(2)(A) of the Dodd-Frank Act. Specifically, section 
1022(b)(2)(A) of the Dodd-Frank Act calls for the Bureau to consider 
the potential benefits and costs of a regulation to consumers and 
covered persons, including the potential reduction of access by 
consumers to consumer financial products or services, the impact on 
depository institutions and credit unions with $10 billion or less in 
total assets as described in section 1026 of the Dodd-Frank Act, and 
the impact on consumers in rural areas. The Bureau consulted with 
appropriate Federal agencies regarding the consistency of the proposed 
rule with prudential, market, or systemic objectives administered by 
such agencies as required by section 1022(b)(2)(B) of the Dodd-Frank 
Act.
1. Data and evidence
    The discussion in this impact analyses relies on data from a range 
of sources. These include data collected or developed by the Bureau, 
including HMDA \112\ and NMDB \113\ data, as well as data obtained from 
industry, other regulatory agencies, and other publicly available 
sources. The Bureau also conducted the Assessment and issued the 
Assessment Report as required under section 1022(d) of the Dodd-Frank 
Act. The Assessment Report provides quantitative and qualitative 
information on questions relevant to the proposed rule, including the 
extent to which DTI ratios are probative of a consumer's ability to 
repay, the effect of rebuttable presumption status relative to safe-
harbor status on access to credit, and the effect of QM status relative 
to non-QM status on access to credit. Consultations with other 
regulatory agencies, industry, and research organizations inform the 
Bureau's impact analyses.
---------------------------------------------------------------------------

    \112\ HMDA requires many financial institutions to maintain, 
report, and publicly disclose loan-level information about 
mortgages. These data help show whether creditors are serving the 
housing needs of their communities; they give public officials 
information that helps them make decisions and policies; and they 
shed light on lending patterns that could be discriminatory. HMDA 
was originally enacted by Congress in 1975 and is implemented by 
Regulation C. See Bureau of Consumer Fin. Prot., Mortgage Data 
(HMDA), https://www.consumerfinance.gov/data-research/hmda/.
    \113\ The NMDB, jointly developed by the FHFA and the Bureau, 
provides de-identified loan characteristics and performance 
information for a 5 percent sample of all mortgage originations from 
1998 to the present, supplemented by de-identified loan and borrower 
characteristics from Federal administrative sources and credit 
reporting data. See Bureau of Consumer Fin. Prot., Sources and Uses 
of Data at the Bureau of Consumer Financial Protection, at 55-56 
(Sept. 2018), https://www.consumerfinance.gov/documents/6850/bcfp_sources-uses-of-data.pdf. Differences in total market size 
estimates between NMDB data and Home Mortgage Disclosure Act (HMDA) 
data are attributable to differences in coverage and data 
construction methodology.
---------------------------------------------------------------------------

    The data the Bureau relied upon provide detailed information on the 
number, characteristics, and performance of mortgage loans originated 
in recent years. However, they do not provide information on creditor 
costs. As a result, analyses of any impacts of the proposal on creditor 
costs, particularly realized costs of complying with underwriting 
criteria or potential costs from legal liability are based on more 
qualitative information. Similarly, estimates of any changes in burden 
on consumers resulting from increased or decreased documentation 
requirements are based on qualitative information.
    The Bureau seeks comment on its analysis, and additional 
information or data which could inform quantitative estimates of the 
number of borrowers whose documentation cannot satisfy appendix Q, or 
the costs to borrowers or covered persons of complying with appendix Q 
documentation requirements. The Bureau also seeks comment or additional 
information which could inform quantitative estimates of the 
availability, underwriting, and pricing of non-QM alternatives to loans 
made under the Temporary GSE QM loan definition.
2. Description of the Baseline
    The Bureau considers the benefits, costs, and impacts of the 
proposal against the baseline in which the Bureau takes no action and 
the Temporary GSE QM loan definition expires on January 10, 2021 or 
when the GSEs exit conservatorship, whichever occurs first. Under the 
proposal, the Temporary GSE QM loan definition would expire when the 
GSEs exit conservatorship or on the effective date of a final rule 
issued by the Bureau amending the General QM loan definition, whichever 
occurs first. As a result, the proposal's direct market impacts would 
occur only if the GSEs remain in conservatorship beyond January 10, 
2021. The impact analyses assume the GSEs will remain in 
conservatorship for the relevant period of time.
    Under the baseline, when the Temporary GSE QM loan definition 
expires, conventional loans could only receive QM status under the 
Bureau's rules by underwriting according to the General QM 
requirements, Small Creditor QM requirements, Balloon Payment QM 
requirements, or the expanded portfolio QM amendments created by the 
2018 Economic Growth, Regulatory Relief, and Consumer Protection Act. 
The General QM loan definition, which would be the only type of QM 
available to larger creditors following the expiration of the Temporary 
GSE QM loan definition, requires that consumers' DTI ratio not exceed 
43 percent and requires creditors to determine debt and income in 
accordance with the standards in appendix Q of Regulation Z.
    As stated above in part V.C, the Bureau anticipates that, under the 
baseline in which the Temporary GSE QM loan definition expires, there 
are two main types of conventional loans that would be affected: High-
DTI GSE loans (those with DTI ratios above 43 percent) and GSE-eligible 
loans without appendix Q-required documentation. Leaving the current 
fixed sunset date in place would affect these loans because they are 
currently originated as QM loans due to the Temporary GSE QM loan 
definition but would not be originated as General QM loans, and may not 
be originated at all, if the Temporary GSE QM loan definition were to 
expire before amendments to the General QM loan definition are in 
effect. This section 1022 analysis refers to these loans as potentially 
displaced loans.
    High-DTI GSE Loans. The ANPR provided an estimate of the number of 
loans potentially affected by the expiration of the Temporary GSE QM 
loan definition.\114\ In providing the estimate, the ANPR focused on 
loans that fall within the Temporary GSE QM loan definition but not the 
General QM loan definition because they have a DTI ratio above 43 
percent. This proposal refers to these loans as High-DTI GSE loans. 
Based on NMDB data, the Bureau estimated that there were approximately 
6.01 million closed-end first-lien residential mortgage originations in 
the United States in 2018.\115\ Based on supplemental data provided by 
the FHFA, the Bureau estimated that the GSEs purchased or guaranteed 52 
percent--roughly 3.12 million--of those loans.\116\ Of those 3.12 
million loans, the Bureau estimated that 31 percent--approximately 
957,000 loans--had DTI ratios greater than 43 percent.\117\ Thus, the 
Bureau estimated that, as a result of the General QM loan definition's 
43 percent DTI limit, approximately

[[Page 41459]]

957,000 loans--16 percent of all closed-end first-lien residential 
mortgage originations in 2018--were High-DTI GSE loans.\118\ This 
estimate does not include Temporary GSE QM loans that were eligible for 
purchase by the GSEs but were not sold to the GSEs.
---------------------------------------------------------------------------

    \114\ 84 FR 37155, 37158-59 (July 31, 2019).
    \115\ Id.
    \116\ Id. at 37159.
    \117\ Id. The Bureau estimates that 616,000 of these loans were 
for home purchases, and 341,000 were refinance loans. In addition, 
the Bureau estimates that the share of these loans with DTI ratios 
over 45 percent has varied over time due to changes in market 
conditions and GSE underwriting standards, rising from 47 percent in 
2016 to 56 percent in 2017, and further to 69 percent in 2018.
    \118\ Id.
---------------------------------------------------------------------------

    Loans Without Appendix Q-Required Documentation That Are Otherwise 
GSE-Eligible. In addition to High-DTI GSE loans, the Bureau noted that 
an additional, smaller number of Temporary GSE QM loans with DTI ratios 
of 43 percent or less when calculated using GSE underwriting guides 
would not fall within the General QM loan definition because their 
method of documenting and verifying income or debt is incompatible with 
appendix Q.\119\ These loans would also likely be affected when the 
provision expires. The Bureau understands, from extensive public 
feedback and its own experience, that appendix Q does not specifically 
address whether and how to document and include certain forms of 
income. The Bureau understands these concerns are particularly acute 
for self-employed consumers, consumers with part-time employment, and 
consumers with irregular or unusual income streams.\120\ As a result, 
these consumers' access to credit may be affected if the Temporary GSE 
QM loan definition were to expire before amendments to the General QM 
loan definition are in effect.
---------------------------------------------------------------------------

    \119\ Id. at 37159 n.58. Where these types of loans have DTI 
ratios above 43 percent, they would be captured in the estimate 
above relating to High-DTI GSE loans.
    \120\ For example, in qualitative responses to the Bureau's 
Lender Survey conducted as part of the Assessment, underwriting for 
self-employed borrowers was one of the most frequently reported 
sources of difficulty in originating mortgages using appendix Q. 
These concerns were also raised in comments submitted in response to 
the Assessment RFI, noting that appendix Q is ambiguous with respect 
to how to treat income for consumers who are self-employed, have 
irregular income, or want to use asset depletion as income. See 
Assessment Report, supra note 22, at 200.
---------------------------------------------------------------------------

    The Bureau's analysis of the market under the baseline focuses on 
High-DTI GSE loans because the Bureau estimates most potentially 
displaced loans are High-DTI GSE loans. The Bureau also lacks the loan-
level documentation and underwriting data necessary to estimate with 
precision the number of potentially displaced loans that do not fall 
within the other General QM loan requirements and are not High-DTI GSE 
loans. However, the Assessment did not find evidence of substantial 
numbers of loans in the non-GSE-eligible jumbo market being displaced 
when appendix Q documentation requirements became effective in 
2014.\121\ Further, the Assessment Report found evidence of only a 
limited reduction in the approval rate of self-employed applicants for 
non-GSE eligible mortgages.\122\ Based on this evidence, along with 
qualitative comparisons of GSE and appendix Q documentation 
requirements and available data on the prevalence of borrowers with 
non-traditional or difficult-to-document income (e.g., self-employed 
borrowers, retired borrowers, those with irregular income streams), the 
Bureau estimates this second category of potentially displaced loans is 
considerably less numerous than the category of High-DTI GSE loans.
---------------------------------------------------------------------------

    \121\ Assessment Report, supra note 22, at 107 (``For context, 
total jumbo purchase originations increased from an estimated 
108,700 to 130,200 between 2013 and 2014, based on nationally 
representative NMDB data.'').
    \122\ Id. at 118 (``The Application Data indicates that, 
notwithstanding concerns that have been expressed about the 
challenge of documenting and verifying income for self-employed 
borrowers under the General QM standard and the documentation 
requirements contained in appendix Q to the Rule, approval rates for 
non-High DTI, non-GSE eligible self-employed borrowers have 
decreased only slightly, by two percentage points . . . .'').
---------------------------------------------------------------------------

    Additional Effects on Loans Not Displaced. While the most 
significant market effects under the baseline are displaced loans, 
loans which continue to be originated as QM loans after the expiration 
of the Temporary GSE QM loan definition would also be affected. After 
the sunset date, all loans with DTI ratios at or below 43 percent which 
are or would have been purchased and guaranteed as GSE loans under the 
Temporary GSE QM loan definition--approximately 2.16 million loans in 
2018--and that continue to be originated as General QM loans after the 
provision expires would be required to verify income and debts 
according to appendix Q, rather than only according to GSE guidelines. 
Given the concerns raised about appendix Q's ambiguity and lack of 
flexibility, this would likely entail both increased documentation 
burden for some consumers as well as increased costs or time-to-
origination for creditors on some loans.\123\
---------------------------------------------------------------------------

    \123\ See part V.B. for additional discussion of concerns raised 
about appendix Q.
---------------------------------------------------------------------------

B. Potential Benefits and Costs to Covered Persons and Consumers

1. Benefits to Consumers
    The primary benefit to consumers of the proposal is the continued 
availability of High-DTI GSE loans during the period of the extension. 
Given the large number of consumers who obtain such loans rather than 
available alternatives, including loans from the private non-GSE market 
and FHA loans, these GSE loans may be preferred due to their pricing, 
underwriting requirements, or other features.
    Under the baseline, a sizeable share of potentially displaced High-
DTI GSE loans may instead be originated as FHA loans. Thus, under the 
proposal, any price advantage of GSE loans over FHA loans would be a 
realized benefit to consumers. Based on the Bureau's analysis of 2018 
HMDA data, FHA loans comparable to the loans received by High-DTI GSE 
borrowers, based on loan purpose, credit score, and combined LTV ratio, 
on average have $3,000 to $5,000 higher upfront total loan costs. APRs 
provide an alternative, annualized measure of costs over the life of a 
loan. FHA borrowers typically pay different APRs, which can be higher 
or lower than APRs for GSE loans depending on a borrower's credit score 
and LTV. Borrowers with credit scores at or above 720 pay an APR 30 to 
60 basis points higher than borrowers of comparable GSE loans, leading 
to higher monthly payments over the life of the loan. However, FHA 
borrowers with credit scores below 680 and combined LTVs exceeding 85 
pay an APR 20 to 40 basis points lower than borrowers of comparable GSE 
loans, leading to lower monthly payments over the life of the 
loan.\124\ For a loan size of $250,000, these APR differences amount to 
$2,800 to $5,600 in additional total monthly payments over the first 
five years of mortgage payments for borrowers with credit scores above 
720, and $1,900 to $3,800 in reduced total monthly payments over five 
years for borrowers with credit scores below 680 and LTVs exceeding 
85.\125\ Thus all FHA borrowers are likely to pay higher costs at 
origination, while some pay higher monthly mortgage payments and others 
pay lower monthly mortgage payments. Assuming for comparison that all 
957,000 High-DTI GSE loans would be made as FHA loans in the absence of 
the proposal, the average of the upfront pricing estimates implies 
total savings for consumers of roughly $4 billion per year on upfront 
costs while the Temporary GSE QM loan definition

[[Page 41460]]

remains in effect.\126\ The total savings or costs over the life of the 
loan implied by APR differences would vary substantially across 
borrowers depending on credit scores, LTVs, and length of time holding 
the mortgage. While this comparison assumed all potentially displaced 
loans would be made as FHA loans, higher costs (either upfront or in 
monthly payments) are likely to prevent many borrowers from obtaining 
loans at all.
---------------------------------------------------------------------------

    \124\ The Bureau expects consumers could continue to obtain FHA 
loans where such loans were cheaper or preferred for other reasons.
    \125\ Based on NMDB data, the Bureau estimates that the average 
loan amount among High-DTI GSE borrowers in 2018 was $250,000. While 
the time to repayment for mortgages varies with economic conditions, 
the Bureau estimates that half of mortgages are typically closed or 
paid off five to seven years into repayment. Payment comparisons 
based on typical 2018 HMDA APRs for GSE loans, five percent for 
borrowers with credit scores over 720, and six percent for borrowers 
with credit scores below 680 and LTVs exceeding 85.
    \126\ This approximation assumes $4,000 in savings from total 
loan costs for all 957,000 consumers. Actual expected savings would 
vary substantially based on loan and credit characteristics, 
consumer choices, and market conditions.
---------------------------------------------------------------------------

    In the absence of the proposed amendment to the regulation, some of 
these potentially displaced consumers, particularly those with higher 
credit scores and the resources to make larger down payments, likely 
would be able to obtain credit in the non-GSE private market at a cost 
comparable or slightly higher than the costs for GSE loans, but below 
the cost of an FHA loan. As a result, the above cost comparisons 
between GSE and FHA loans provide an estimated upper bound on pricing 
benefits to consumers of the proposal. However, under the baseline, 
some potentially displaced consumers may not obtain loans, and thus 
would experience benefits of credit access under the proposal.\127\ As 
discussed above, the Assessment Report found that the January 2013 
Final Rule eliminated between 63 and 70 percent of high-DTI home 
purchase loans that were not Temporary GSE QM loans.\128\ The Bureau 
requests information or data that would inform quantitative estimates 
of the number of consumers who may not obtain loans, and the costs to 
such consumers.
---------------------------------------------------------------------------

    \127\ In particular, the Assessment concluded that some 
borrowers with strong credit characteristics may no longer be able 
to obtain conventional QM loans, despite likely possessing the 
ability to repay such loans. Assessment Report at 150 (``Together, 
these findings suggest that the observed decrease in access to 
credit in this segment was likely driven by lenders' desire to avoid 
the risk of litigation by consumers asserting a violation of the ATR 
requirement or other risks associated with that requirement, rather 
than by rejections of borrowers who were unlikely to repay the 
loan.'').
    \128\ See id. at 10-11, 117, 131-47.
---------------------------------------------------------------------------

    The proposal would also benefit those consumers with incomes 
difficult to document using appendix Q to obtain General QM status, as 
the Temporary GSE QM loan definition continues to allow documentation 
of income and debt through GSE standards. The greater flexibility of 
GSE documentation standards likely reduces effort and costs for these 
consumers under the proposal, and in the most difficult cases in which 
borrowers' documentation cannot satisfy appendix Q, the proposal would 
allow consumers to receive Temporary GSE QM loans rather than potential 
FHA or non-QM alternatives. These consumers would likely benefit from 
cost savings under the proposal, similar to those for High-DTI 
consumers discussed above.
2. Benefits to Covered Persons
    The proposal's primary benefit to covered persons, specifically 
mortgage creditors, is the continued profits from originating High-DTI 
conventional QM loans. Under the baseline, creditors would be unable to 
originate such loans under the Temporary GSE QM loan definition after 
January 10, 2021 and would instead have to originate loans with 
comparable DTI ratios as FHA, Small Creditor QM, or non-QM loans, or 
originate at lower DTI ratios as conventional General QM loans. 
Creditors' current preference for originating large numbers of High-DTI 
Temporary GSE QM loans likely reflects advantages in a combination of 
costs or guarantee fees (particularly relative to FHA loans), liquidity 
(particularly relative to Small Creditor QM), or litigation and credit 
risk (particularly relative to non-QM). Moreover, QM loans--including 
Temporary GSE QM loans--are exempt from the Dodd-Frank Act risk 
retention requirement whereby creditors that securitize mortgage loans 
are required to retain at least 5 percent of the credit risk of the 
security, which adds significant cost. As a result, the proposal 
conveys benefits to mortgage creditors originating Temporary GSE QM 
loans on each of these dimensions.
    In addition, for those lower-DTI GSE loans which could satisfy 
General QM requirements, creditors may realize cost savings from 
continuing to underwrite loans using only the more flexible GSE 
documentation standards as compared to the appendix Q underwriting 
standards required for General QM loans. For GSE consumers unable to 
provide documentation compatible with appendix Q, the proposal allows 
such loans to continue receiving QM status, providing comparable 
benefits to creditors as described for High-DTI GSE loans above.
    Finally, those creditors whose business models rely most heavily on 
originating High-DTI GSE loans would likely see a competitive benefit 
from the continued ability to originate such loans as Temporary GSE QM 
loans. This is effectively a transfer in market share to these 
creditors from those who primarily originate FHA or private non-GSE 
loans, who likely would have gained market share after the expiration 
of the Temporary GSE QM loan definition.
3. Costs to Consumers
    The extension of the Temporary GSE QM loan definition could delay 
the development of the non-QM market, particularly new mortgage 
products which may have become available if the Temporary GSE QM loan 
definition had been allowed to expire. To the extent that some 
consumers would prefer some of these products to GSE loans due to 
pricing, documentation flexibility, or other advantages, the delay of 
their development would be a cost to consumers of the proposal.
    In addition, consumers who would have obtained non-QM loans under 
the baseline but instead obtain QM loans under the proposal forgo the 
benefit of retaining the ATR causes of action and defenses against 
foreclosure.
4. Costs to Covered Persons
    The proposal's most sizable costs to covered persons are 
effectively transfers between lenders for the duration of the 
extension, reflecting temporarily reduced loan origination volume for 
lenders who primarily originate FHA or private non-GSE loans and 
temporarily increased origination volume for lenders who primarily 
originate GSE loans. Business models vary substantially within market 
segments, with portfolio lenders and lenders originating non-QM loans 
most likely to experience a delay in market share gains possible if the 
Temporary GSE QM loan definition had been allowed to expire, while GSE-
focused bank and non-bank lenders are likely to maintain market share 
that might be lost sooner in the absence of the proposal.
5. Other Benefits and Costs
    In delaying the Temporary GSE QM loan definition's expiration, the 
proposal would delay any effects of the expiration on the development 
of the secondary market for private (non-GSE) mortgage loan securities. 
When the Temporary GSE QM loan definition expires, those loans that do 
not fit within the General QM loan definition represent a potential new 
market for private securitizations. Thus, the proposal would reduce the 
scope of the potential non-QM market for the duration of the extension, 
likely lowering profits and revenues for participants in the private 
secondary market. This would effectively be a transfer from these 
private secondary market participants to participants in the agency 
secondary market.

[[Page 41461]]

Potential Impact on Depository Institutions and Credit Unions With $10 
Billion or Less in Total Assets, as Described in Section 1026
    The proposal's expected impact on depository institutions and 
credit unions that are also creditors making covered loans (depository 
creditors) with $10 billion or less in total assets is similar to the 
expected impact on larger creditors and on non-depository creditors. As 
discussed in part VII.B.4 (Costs to Covered Persons), depository 
creditors originating portfolio loans may experience a delay in 
potential market share gains that would occur in the absence of the 
proposal. In addition, those smaller creditors originating portfolio 
loans can originate High-DTI Small Creditor QM loans under the rule, 
and thus may rely less on the Temporary GSE QM loan definition for 
originating High-DTI loans. If the expiration of the Temporary GSE QM 
loan definition would confer a competitive advantage to these small 
creditors in their origination of High-DTI loans, the proposal would 
delay this outcome.
    Conversely, those small creditors that primarily rely on the GSEs 
as a secondary market outlet because they do not have the capacity to 
hold numerous loans on portfolio or the infrastructure or scale to 
securitize loans may continue to benefit from the ability to make High-
DTI GSE loans as Temporary GSE QM loans. In the absence of the 
proposal, these creditors would be limited to originating GSE loans as 
QMs only with DTI at or below 43 percent under the General QM loan 
definition. These creditors may also originate FHA, VA, or USDA loans 
or non-QM loans for private securitizations, likely at a higher cost 
relative to Temporary GSE QM loans.
Potential Impact on Rural Areas
    The proposal's expected impact on rural areas is similar to the 
expected impact on non-rural areas. Based on 2018 HMDA data, the Bureau 
estimates that High-DTI conventional purchase mortgages are comparably 
likely to be reported as initially sold to the GSEs in rural areas 
(52.5 percent) as in non-rural areas (52.0 percent).\129\
---------------------------------------------------------------------------

    \129\ These statistics are estimated based on originations from 
the first nine months of the year, to allow time for loans to be 
sold before HMDA reporting deadlines. In addition, a higher share of 
High-DTI conventional purchase non-rural loans (33.3 percent) report 
being sold to other non-GSE purchasers compared to rural loans (22.3 
percent).
---------------------------------------------------------------------------

VIII. Regulatory Flexibility Act Analysis

    The Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996, requires each 
agency to consider the potential impact of its regulations on small 
entities, including small businesses, small governmental units, and 
small not-for-profit organizations. The RFA defines a ``small 
business'' as a business that meets the size standard developed by the 
Small Business Administration pursuant to the Small Business Act.\130\
---------------------------------------------------------------------------

    \130\ 5 U.S.C. 601(3) (the Bureau may establish an alternative 
definition after consultation with the Small Business Administration 
and an opportunity for public comment).
---------------------------------------------------------------------------

    The RFA generally requires an agency to conduct an initial 
regulatory flexibility analysis (IRFA) and a final regulatory 
flexibility analysis (FRFA) of any rule subject to notice-and-comment 
rulemaking requirements, unless the agency certifies that the rule 
would not have a significant economic impact on a substantial number of 
small entities.\131\ The Bureau also is subject to certain additional 
procedures under the RFA involving the convening of a panel to consult 
with small business representatives prior to proposing a rule for which 
an IRFA is required.\132\
---------------------------------------------------------------------------

    \131\ 5 U.S.C. 603-605.
    \132\ 5 U.S.C. 609.
---------------------------------------------------------------------------

    An IRFA is not required for this proposal because the proposal, if 
adopted, would not have a significant economic impact on a substantial 
number of small entities. The Bureau does not expect the final rule to 
impose costs on small entities relative to the baseline. Under the 
baseline, the Temporary GSE QM loan definition expires, and therefore 
no creditor--including small entities--would be able to originate QM 
loans under that definition. Under the proposal, certain small entities 
that would otherwise not be able to originate QM loans under that 
definition would be able to originate such loans with QM status. Thus, 
the Bureau anticipates that the proposal would only reduce burden on 
small entities relative to the baseline.
    Accordingly, the Director certifies that this proposal, if adopted, 
would not have a significant economic impact on a substantial number of 
small entities. The Bureau requests comment on its analysis of the 
impact of the proposal on small entities and requests any relevant 
data.

IX. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA),\133\ Federal 
agencies are generally required to seek, prior to implementation, 
approval from the Office of Management and Budget (OMB) for information 
collection requirements. Under the PRA, the Bureau may not conduct or 
sponsor, and, notwithstanding any other provision of law, a person is 
not required to respond to, an information collection unless the 
information collection displays a valid control number assigned by OMB.
---------------------------------------------------------------------------

    \133\ 44 U.S.C. 3501 et seq.
---------------------------------------------------------------------------

    The Bureau has determined that this proposal does not contain any 
new or substantively revised information collection requirements other 
than those previously approved by OMB under that OMB control number 
3170-0015. The proposal would amend 12 CFR part 1026 (Regulation Z), 
which implements TILA. OMB control number 3170-0015 is the Bureau's OMB 
control number for Regulation Z.
    The Bureau welcomes comments on these determinations or any other 
aspect of the proposal for purposes of the PRA.

X. Signing Authority

    The Director of the Bureau, having reviewed and approved this 
document, is delegating the authority to electronically sign this 
document to Laura Galban, a Bureau Federal Register Liaison, for 
purposes of publication in the Federal Register.

List of Subjects in 12 CFR Part 1026

    Advertising, Banks, Banking, Consumer protection, Credit, Credit 
unions, Mortgages, National banks, Reporting and recordkeeping 
requirements, Savings associations, Truth-in-lending.

Authority and Issuance

    For the reasons set forth above, the Bureau proposes to amend 
Regulation Z, 12 CFR part 1026, as set forth below:

PART 1026--TRUTH IN LENDING (REGULATION Z)

0
1. The authority citation for part 1026 continues to read as follows:

    Authority: 12 U.S.C. 2601, 2603-2605, 2607, 2609, 2617, 3353, 
5511, 5512, 5532, 5581; 15 U.S.C. 1601 et seq.

Subpart E--Special Rules for Certain Home Mortgage Transactions

0
2. Amend Sec.  1026.43 by revising paragraph (e)(4)(iii)(B) to read as 
follows:


Sec.  1026.43  Minimum standards for transactions secured by a 
dwelling.

* * * * *
    (e) * * *
    (4) * * *

[[Page 41462]]

    (iii) * * *
    (B) Unless otherwise expired under paragraph (e)(4)(iii)(A) of this 
section, the special rules in this paragraph (e)(4) are available only 
for covered transactions consummated on or before the effective date of 
a final rule issued by the Bureau amending paragraph (e)(2) of this 
section. The Bureau will also amend this paragraph as of that effective 
date to reflect the new status.
* * * * *
0
3. In Supplement I to Part 1026--Official Interpretations, under 
Section 1026.43--Minimum Standards for Transactions Secured by a 
Dwelling, revise 43(e)(4) Qualified mortgage defined--special rules to 
read as follows:

Supplement I to Part 1026--Official Interpretations

* * * * *
    Section 1026.43--Minimum standards for transactions secured by a 
dwelling.
* * * * *
    43(e)(4) Qualified mortgage defined--special rules.
    1. Alternative definition. Subject to the sunset provided under 
Sec.  1026.43(e)(4)(iii), Sec.  1026.43(e)(4) provides an 
alternative definition of qualified mortgage to the definition 
provided in Sec.  1026.43(e)(2). To be a qualified mortgage under 
Sec.  1026.43(e)(4), the transaction must satisfy the requirements 
under Sec.  1026.43(e)(2)(i) through (iii), in addition to being one 
of the types of loans specified in Sec.  1026.43(e)(4)(ii)(A) 
through (E).
    2. Termination of conservatorship. Section 1026.43(e)(4)(ii)(A) 
requires that a covered transaction be eligible for purchase or 
guarantee by the Federal National Mortgage Association (Fannie Mae) 
or the Federal Home Loan Mortgage Corporation (Freddie Mac) (or any 
limited-life regulatory entity succeeding the charter of either) 
operating under the conservatorship or receivership of the Federal 
Housing Finance Agency pursuant to section 1367 of the Federal 
Housing Enterprises Financial Safety and Soundness Act of 1992 (12 
U.S.C. 4617). The special rule under Sec.  1026.43(e)(4)(ii)(A) does 
not apply if Fannie Mae or Freddie Mac (or any limited-life 
regulatory entity succeeding the charter of either) has ceased 
operating under the conservatorship or receivership of the Federal 
Housing Finance Agency. For example, if either Fannie Mae or Freddie 
Mac (or succeeding limited-life regulatory entity) ceases to operate 
under the conservatorship or receivership of the Federal Housing 
Finance Agency, Sec.  1026.43(e)(4)(ii)(A) would no longer apply to 
loans eligible for purchase or guarantee by that entity; however, 
the special rule would be available for a loan that is eligible for 
purchase or guarantee by the other entity still operating under 
conservatorship or receivership.
    3. Timing. Under Sec.  1026.43(e)(4)(iii), the definition of 
qualified mortgage under Sec.  1026.43(e)(4) applies only to loans 
consummated on or before the effective date of a final rule issued 
by the Bureau amending Sec.  1026.43(e)(2), regardless of whether 
Fannie Mae or Freddie Mac (or any limited-life regulatory entity 
succeeding the charter of either) continues to operate under the 
conservatorship or receivership of the Federal Housing Finance 
Agency. Accordingly, Sec.  1026.43(e)(4) is available only for 
covered transactions consummated on or before the earlier of either:
    i. The date Fannie Mae or Freddie Mac (or any limited-life 
regulatory entity succeeding the charter of either), respectively, 
cease to operate under the conservatorship or receivership of the 
Federal Housing Finance Agency pursuant to section 1367 of the 
Federal Housing Enterprises Financial Safety and Soundness Act of 
1992 (12 U.S.C. 4617); or
    ii. The effective date of a final rule issued by the Bureau 
amending Sec.  1026.43(e)(2), as provided by Sec.  
1026.43(e)(4)(iii)(B). The Bureau will also amend this commentary as 
of that effective date to reflect the new status.
    4. Eligible for purchase, guarantee, or insurance except with 
regard to matters wholly unrelated to ability to repay. To satisfy 
Sec.  1026.43(e)(4)(ii), a loan need not be actually purchased or 
guaranteed by Fannie Mae or Freddie Mac or insured or guaranteed by 
one of the Agencies (the U.S. Department of Housing and Urban 
Development (HUD), U.S. Department of Veterans Affairs (VA), U.S. 
Department of Agriculture (USDA), or Rural Housing Service (RHS)). 
Rather, Sec.  1026.43(e)(4)(ii) requires only that the creditor 
determine that the loan is eligible (i.e., meets the criteria) for 
such purchase, guarantee, or insurance at consummation. For example, 
for purposes of Sec.  1026.43(e)(4), a creditor is not required to 
sell a loan to Fannie Mae or Freddie Mac (or any limited-life 
regulatory entity succeeding the charter of either) for that loan to 
be a qualified mortgage; however, the loan must be eligible for 
purchase or guarantee by Fannie Mae or Freddie Mac (or any limited-
life regulatory entity succeeding the charter of either), including 
satisfying any requirements regarding consideration and verification 
of a consumer's income or assets, credit history, debt-to-income 
ratio or residual income, and other credit risk factors, but not any 
requirements regarding matters wholly unrelated to ability to repay. 
To determine eligibility for purchase, guarantee or insurance, a 
creditor may rely on a valid underwriting recommendation provided by 
a GSE automated underwriting system (AUS) or an AUS that relies on 
an Agency underwriting tool; compliance with the standards in the 
GSE or Agency written guide in effect at the time; a written 
agreement between the creditor or a direct sponsor or aggregator of 
the creditor and a GSE or Agency that permits variation from the 
standards of the written guides and/or variation from the AUSs, in 
effect at the time of consummation; or an individual loan waiver 
granted by the GSE or Agency to the creditor. For creditors relying 
on the variances of a sponsor or aggregator, a loan that is 
transferred directly to or through the sponsor or aggregator at or 
after consummation complies with Sec.  1026.43(e)(4). In using any 
of the four methods listed above, the creditor need not satisfy 
standards that are wholly unrelated to assessing a consumer's 
ability to repay that the creditor is required to perform. Matters 
wholly unrelated to ability to repay are those matters that are 
wholly unrelated to credit risk or the underwriting of the loan. 
Such matters include requirements related to the status of the 
creditor rather than the loan, requirements related to selling, 
securitizing, or delivering the loan, and any requirement that the 
creditor must perform after the consummated loan is sold, 
guaranteed, or endorsed for insurance such as document custody, 
quality control, or servicing.
    Accordingly, a covered transaction is eligible for purchase or 
guarantee by Fannie Mae or Freddie Mac, for example, if:
    i. The loan conforms to the relevant standards set forth in the 
Fannie Mae Single-Family Selling Guide or the Freddie Mac Single-
Family Seller/Servicer Guide in effect at the time, or to standards 
set forth in a written agreement between the creditor or a sponsor 
or aggregator of the creditor and Fannie Mae or Freddie Mac in 
effect at that time that permits variation from the standards of 
those guides;
    ii. The loan has been granted an individual waiver by a GSE, 
which will allow purchase or guarantee in spite of variations from 
the applicable standards; or
    iii. The creditor inputs accurate information into the Fannie 
Mae or Freddie Mac AUS or another AUS pursuant to a written 
agreement between the creditor and Fannie Mae or Freddie Mac that 
permits variation from the GSE AUS; the loan receives one of the 
recommendations specified below in paragraphs A or B from the 
corresponding GSE AUS or an equivalent recommendation pursuant to 
another AUS as authorized in the written agreement; and the creditor 
satisfies any requirements and conditions specified by the relevant 
AUS that are not wholly unrelated to ability to repay, the non-
satisfaction of which would invalidate that recommendation:
    A. An ``Approve/Eligible'' recommendation from Desktop 
Underwriter (DU); or
    B. A risk class of ``Accept'' and purchase eligibility of 
``Freddie Mac Eligible'' from Loan Prospector (LP).
    5. Repurchase and indemnification demands. A repurchase or 
indemnification demand by Fannie Mae, Freddie Mac, HUD, VA, USDA, or 
RHS is not dispositive of qualified mortgage status. Qualified 
mortgage status under Sec.  1026.43(e)(4) depends on whether a loan 
is eligible to be purchased, guaranteed, or insured at the time of 
consummation, provided that other requirements under Sec.  
1026.43(e)(4) are satisfied. Some repurchase or indemnification 
demands are not related to eligibility criteria at consummation. See 
comment 43(e)(4)-4. Further, even where a repurchase or 
indemnification demand relates to whether the loan satisfied 
relevant eligibility requirements as of the time of consummation, 
the mere fact that a demand has been made, or even resolved, between 
a creditor and GSE or agency is not dispositive for purposes of 
Sec.  1026.43(e)(4). However, evidence of whether a particular loan 
satisfied the Sec.  1026.43(e)(4) eligibility criteria

[[Page 41463]]

at consummation may be brought to light in the course of dealing 
over a particular demand, depending on the facts and circumstances. 
Accordingly, each loan should be evaluated by the creditor based on 
the facts and circumstances relating to the eligibility of that loan 
at the time of consummation. For example:
    i. Assume eligibility to purchase a loan was based in part on 
the consumer's employment income of $50,000 per year. The creditor 
uses the income figure in obtaining an approve/eligible 
recommendation from DU. A quality control review, however, later 
determines that the documentation provided and verified by the 
creditor to comply with Fannie Mae requirements did not support the 
reported income of $50,000 per year. As a result, Fannie Mae demands 
that the creditor repurchase the loan. Assume that the quality 
control review is accurate, and that DU would not have issued an 
approve/eligible recommendation if it had been provided the accurate 
income figure. The DU determination at the time of consummation was 
invalid because it was based on inaccurate information provided by 
the creditor; therefore, the loan was never a qualified mortgage 
under Sec.  1026.43(e)(4).
    ii. Assume that a creditor delivered a loan, which the creditor 
determined was a qualified mortgage at the time of consummation 
under Sec.  1026.43(e)(4), to Fannie Mae for inclusion in a 
particular To-Be-Announced Mortgage Backed Security (MBS) pool of 
loans. The data submitted by the creditor at the time of loan 
delivery indicated that the various loan terms met the product type, 
weighted-average coupon, weighted-average maturity, and other MBS 
pooling criteria, and MBS issuance disclosures to investors 
reflected this loan data. However, after delivery and MBS issuance, 
a quality control review determines that the loan violates the 
pooling criteria. The loan still meets eligibility requirements for 
Fannie Mae products and loan terms. Fannie Mae, however, requires 
the creditor to repurchase the loan due to the violation of MBS 
pooling requirements. Assume that the quality control review 
determination is accurate. Because the loan still meets Fannie Mae's 
eligibility requirements, it remains a qualified mortgage based on 
these facts and circumstances.
* * * * *

    Dated: June 22, 2020.
Laura Galban,
Federal Register Liaison, Bureau of Consumer Financial Protection.
[FR Doc. 2020-13741 Filed 7-9-20; 8:45 am]
BILLING CODE 4810-AM-P

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