(a) In General—Section 129C of the Truth in Lending Act is amended by inserting after subsection (b) (as added by this title) the following new subsections:
`(c) Prohibition on Certain Prepayment Penalties—
`(1) PROHIBITED ON CERTAIN LOANS—
`(A) IN GENERAL—A residential mortgage loan that is not a `qualified mortgage', as defined under subsection (b)(2), may not contain terms under which a consumer must pay a prepayment penalty for paying all or part of the principal after the loan is consummated.
`(B) EXCLUSIONS—For purposes of this subsection, a `qualified mortgage' may not include a residential mortgage loan that—
`(i) has an adjustable rate; or
`(ii) has an annual percentage rate that exceeds the average prime offer rate for a comparable transaction, as of the date the interest rate is set—
`(I) by 1.5 or more percentage points, in the case of a first lien residential mortgage loan having an original principal obligation amount that is equal to or less than the amount of the maximum limitation on the original principal
obligation of mortgage in effect for a residence of the applicable size, as of the date of such interest rate set, pursuant to the 6th sentence of section 305(a)(2) of the Federal Home Loan Mortgage Corporation Act (12 U.S.C. 1454(a)(2));
`(II) by 2.5 or more percentage points, in the case of a first lien residential mortgage loan having a original principal obligation amount that is more than the amount of the maximum limitation on the original principal obligation of mortgage in effect for a residence of the applicable size, as of the date of such interest rate set, pursuant to the 6th sentence of section 305(a)(2) the Federal Home Loan Mortgage Corporation Act (12 U.S.C. 1454(a)(2)); and
`(III) by 3.5 or more percentage points, in the case of a subordinate lien residential mortgage loan.
`(2) PUBLICATION OF AVERAGE PRIME OFFER RATE AND APR THRESHOLDS—The Board—
`(A) shall publish, and update at least weekly, average prime offer rates;
`(B) may publish multiple rates based on varying types of mortgage transactions; and
`(C) shall adjust the thresholds established under subclause (I), (II), and (III) of paragraph (1)(B)(ii) as necessary to reflect significant changes in market conditions and to effectuate the purposes of the Mortgage Reform and Anti-Predatory Lending Act.
`(3) PHASED-OUT PENALTIES ON QUALIFIED MORTGAGES—A qualified mortgage (as defined in subsection (b)(2)) may not contain terms under which a consumer must pay a prepayment penalty for paying all or part of the principal after the loan is consummated in excess of the following limitations:
`(A) During the 1-year period beginning on the date the loan is consummated, the prepayment penalty shall not exceed an amount equal to 3 percent of the outstanding balance on the loan.
`(B) During the 1-year period beginning after the period described in subparagraph (A), the prepayment penalty shall not exceed an amount equal to 2 percent of the outstanding balance on the loan.
`(C) During the 1-year period beginning after the 1-year period described in subparagraph (B), the prepayment penalty shall not exceed an amount equal to 1 percent of the outstanding balance on the loan.
`(D) After the end of the 3-year period beginning on the date the loan is consummated, no prepayment penalty may be imposed on a qualified mortgage.
`(4) OPTION FOR NO PREPAYMENT PENALTY REQUIRED—A creditor may not offer a consumer a residential mortgage loan product that has a prepayment penalty for paying all or part of the principal after the loan is consummated as a term of the loan without offering the consumer a residential mortgage loan product that does not have a prepayment penalty as a term of the loan.
`(d) Single Premium Credit Insurance Prohibited—No creditor may finance, directly or indirectly, in connection with any residential mortgage loan or with any extension of credit under an open end consumer credit plan secured by the principal dwelling of the consumer, any credit life, credit disability, credit unemployment, or credit property insurance, or any other accident, loss-of-income, life, or health insurance, or any payments directly or indirectly for any debt cancellation or suspension agreement or contract, except that—
`(1) insurance premiums or debt cancellation or suspension fees calculated and paid in full on a monthly basis shall not be considered financed by the creditor; and
`(2) this subsection shall not apply to credit unemployment insurance for which the unemployment insurance premiums are reasonable, the creditor receives no direct or indirect compensation in connection with the unemployment insurance premiums, and the
unemployment insurance premiums are paid pursuant to another insurance contract and not paid to an affiliate of the creditor.
`(e) Arbitration—
`(1) IN GENERAL—No residential mortgage loan and no extension of credit under an open end consumer credit plan secured by the principal dwelling of the consumer may include terms which require arbitration or any other nonjudicial procedure as the method for resolving any controversy or settling any claims arising out of the transaction.
`(2) POST-CONTROVERSY AGREEMENTS—Subject to paragraph (3), paragraph (1) shall not be construed as limiting the right of the consumer and the creditor or any assignee to agree to arbitration or any other nonjudicial procedure as the method for resolving any controversy at any time after a dispute or claim under the transaction arises.
`(3) NO WAIVER OF STATUTORY CAUSE OF ACTION—No provision of any residential mortgage loan or of any extension of credit under an open end consumer credit plan secured by the principal dwelling of the consumer, and no other agreement between the consumer and the creditor relating to the residential mortgage loan or extension of credit referred to in paragraph (1), shall be applied or interpreted so as to bar a consumer from bringing an action in an appropriate district court of the United States, or any other court of competent jurisdiction, pursuant to section 130 or any other provision of law, for damages or other relief in connection with any alleged violation of this section, any other provision of this title, or any other Federal law.
`(f) Mortgages With Negative Amortization—No creditor may extend credit to a borrower in connection with a consumer credit transaction under an open or closed end consumer credit plan secured by a dwelling or residential real property that includes a dwelling, other than a reverse mortgage, that provides or permits a payment plan that may, at any time over the term of the extension of credit, result in negative amortization unless, before such transaction is consummated—
`(1) the creditor provides the consumer with a statement that—
`(A) the pending transaction will or may, as the case may be, result in negative amortization;
`(B) describes negative amortization in such manner as the Board shall prescribe;
`(C) negative amortization increases the outstanding principal balance of the account; and
`(D) negative amortization reduces the consumer's equity in the dwelling or real property; and
`(2) in the case of a first-time borrower with respect to a residential mortgage loan that is not a qualified mortgage, the first-time borrower provides the creditor with sufficient documentation to demonstrate that the consumer received homeownership counseling from organizations or counselors certified by the Secretary of Housing and Urban Development as competent to provide such counseling.'.
(b) Conforming Amendment Relating to Enforcement—Section 108(a) of the Truth in Lending Act (15 U.S.C. 1607(a)) is amended by inserting after paragraph (6) the following new paragraph:
`(7) sections 21B and 21C of the Securities Exchange Act of 1934, in the case of a broker or dealer, other than a depository institution, by the Securities and Exchange Commission.'.
(c) Protection Against Loss of Anti-deficiency Protection—Section 129C of the Truth in Lending Act is amended by inserting after subsection (f) (as added by subsection (a)) the following new subsection:
`(g) Protection Against Loss of Anti-deficiency Protection—
`(1) DEFINITION—For purposes of this subsection, the term `anti-deficiency law' means the law of any State which provides that, in the event of foreclosure on the residential property of a consumer securing a mortgage, the consumer is not liable, in accordance with the terms and limitations of such State law, for any deficiency between the sale price obtained on such property through foreclosure and the outstanding balance of the mortgage.
`(2) NOTICE AT TIME OF CONSUMMATION—In the case of any residential mortgage loan that is, or upon consummation will be, subject to protection under an anti-deficiency law, the creditor or mortgage originator shall provide a written notice to the consumer describing the protection provided by the anti-deficiency law and the significance for the consumer of the loss of such protection before such loan is consummated.
`(3) NOTICE BEFORE REFINANCING THAT WOULD CAUSE LOSS OF PROTECTION—In the case of any residential mortgage loan that is subject to protection under an anti-deficiency law, if a creditor or mortgage originator provides an application to a consumer, or receives an application from a consumer, for any type of refinancing for such loan that would cause the loan to lose the protection of such anti-deficiency law, the creditor or mortgage originator shall provide a written notice to the consumer describing the protection provided by the anti-deficiency law and the significance for the consumer of the loss of such protection before any agreement for any such refinancing is consummated.'.
(d) Policy Regarding Acceptance of Partial Payment—Section 129C of the Truth in Lending Act is amended by inserting after subsection (g) (as added by subsection (c)) the following new subsection:
`(h) Policy Regarding Acceptance of Partial Payment—In the case of any residential mortgage loan, a creditor shall disclose prior to settlement or, in the case of a person becoming a creditor with respect to an existing residential mortgage loan, at the time such person becomes a creditor—
`(1) the creditor's policy regarding the acceptance of partial payments; and
`(2) if partial payments are accepted, how such payments will be applied to such mortgage and if such payments will be placed in escrow.
`(i) Timeshare Plans—This section and any regulations promulgated under this section do not apply to an extension of credit relating to a plan described in section 101(53D) of title 11, United States Code.'.
Analysis. Section 1414 of the Dodd-Frank Act adds new §§ 129C(c)-(i) to TILA to further regulate the mortgage loan industry. These provisions are directed at the perceived abuses that led to the recent mortgage loan crisis.
Once again, certain timeshare plan loans are exempt.
• Prohibition on Certain Prepayment Penalties.
o Non-Qualified Mortgages. New § 129C(c) flat out prohibits prepayment penalties for residential mortgage loans that are not “qualified mortgages” as described above. This will further incentivize the market to move the industry toward the origination of qualified mortgages.
o Qualified Mortgages. New § 129C(c) allows limited prepayment penalties for a subset of qualified mortgages as follows:
The loan must not have an adjustable rate. This means that the loan must have a fixed rate, and presumably means that the loan may have a predetermined schedule of stepped fixed rates.
The APR may not exceed the Average Prime Offer Rate for a comparable transaction as of the date the interest rate is set by 1.5% or more, for a first lien loan that is equal to or less than the applicable Freddie Mac conforming loan limit.
See discussion of Section 1411, above, regarding the date that the interest rate is set.
The APR may not exceed the Average Prime Offer Rate for a comparable transaction as of the date the interest rate is set by 2.5% or more, for a first lien loan that exceeds the applicable Freddie Mac conforming loan limit.
The APR may not exceed the Average Prime Offer Rate for a comparable transaction as of the date the interest rate is set by 3.5% or more, for a junior lien loan.
The prepayment penalty is limited to 3% of the outstanding balance during the first year following the consummation of the loan, 2% of the outstanding balance during the second year following the consummation of the loan, and 1% of the outstanding balance during the third year following the consummation of the loan. After the third year, no prepayment penalty may be imposed.
The Board is authorized to adjust the foregoing prepayment penalty thresholds for qualified mortgages to reflect market conditions.
The statute is silent regarding the imposition of prepayment penalties for a series of partial prepayments, but presumably the aggregate prepayment penalties may not exceed these thresholds in each of the first, second, and third years.
The prepayment penalty provisions for qualified mortgages would appear to be out of synch with the revisions to the definition of a “high-cost mortgage” under § 103(aa)(1) of TILA. A high-cost mortgage includes one in which the prepayment fees and penalties exceed 2% of the amount prepaid. Thus, a loan with a permissible 3% prepayment penalty in the first year could be both a qualified mortgage and a high-cost mortgage, which makes little sense.
The creditor must also offer the consumer a residential mortgage loan product that contains no prepayment penalty. The statute does not require the creditor to offer the same loan product without a prepayment penalty, but rather only “a” residential mortgage loan product that contains no prepayment penalty. This would indicate, for example, that the creditor could offer the consumer a fixed rate loan with a prepayment penalty together with an ARM that contains no prepayment penalty. In addition, the statute does not require the creditor to offer the same pricing (e.g., interest rates or origination fees) for the two loans. This would indicate, for example, that the creditor could offer the consumer a fixed rate loan with a prepayment penalty together with a fixed rate loan that contains no prepayment penalty but is at a higher interest rate.
o Publication of Average Prime Offer Rate. The Board is directed to publish, and update weekly, the Average Prime Offer Rates, and is authorized to publish different rates for different types of transactions.
The Board already makes this data available in accordance with its regulations for higher-priced mortgage loans. See 12 C.F.R. § 226.35(a)(2).
• Single Premium Credit Insurance Prohibited. Creditors may not finance, directly or indirectly, credit insurance product premiums or any payments for debt cancellation or suspension contracts.
o The prohibition applies to both residential mortgage transactions and open-end consumer credit that is secured by the principal dwelling of the consumer. Therefore, this prohibition applies to principal and nonprincipal dwellings for closed-end loans, but only principal dwellings for open-end loans.
A “principal dwelling” is defined in Paragraphs 226.2(a)(24)-3, 226.15(a)(1)-5, 6 and 226.23(a)(1)-3, 4 of the Regulation Z Commentary. The basic rule is that a person can have only one principal dwelling at a time, thereby excluding vacation or second homes. If a consumer buys or builds a new dwelling that will become his/her principal dwelling within one year or upon the completion of construction, the new dwelling is considered the “principal dwelling” for purposes of applying the definition to a particular transaction. However, notwithstanding the general rule that a consumer can have only one principal dwelling at time, if the consumer acquires or constructs a new principal dwelling, any loan secured by the current principal dwelling is subject to the TILA/Regulation Z right of rescission.
o The prohibition does not apply to premiums or payments that are calculated and paid in full on a monthly basis.
o There is a limited exception for credit unemployment insurance where the premiums are reasonable, the creditor does not receive any direct or indirect compensation in connection with the premiums, the premiums are paid under “another insurance contract” (i.e., presumably, an insurance contract sold outside the loan transaction), and the premiums are not paid to an affiliate of the creditor.
• Arbitration. It is impermissible to include an arbitration or other nonjudicial procedure clause in a residential mortgage loan or an open-end consumer credit that is secured by the principal dwelling of the consumer.
o The prohibition applies to both residential mortgage transactions and open-end consumer credit that is secured by the principal dwelling of the consumer. Therefore, this prohibition applies to principal and nonprincipal dwellings for closed-end loans, but only principal dwellings for open-end loans. See discussion above regarding “principal dwellings.”
o The prohibition does not preclude the consumer and creditor from agreeing to use arbitration or other nonjudicial procedure, after a dispute arises, to resolve the dispute.
o Another provision states that no provision of a residential mortgage loan or an open-end consumer credit transaction that is secured by the principal dwelling shall be applied or interpreted to bar a consumer from bringing a legal action under § 130 of TILA or other provision of law for damages or other relief in connection with a violation of the arbitration provisions, any other provision of TILA, or any other federal law. While the intent of this provision is understandable, the statute also applies this prohibition to any
“other agreement between the consumer and the creditor” relating to the loan. This would literally apply this prohibition to a settlement agreement under which the consumer agrees not to pursue a TILA or other federal claim in return for the payment of money. It is inconceivable that the provision was intended to be read in this manner, but it will be up to the courts to resolve the issue. Until that time, settlement agreements should be carefully drafted around this issue.
• Mortgages with Negative Amortization. While the statute does not outlaw negative amortization entirely, it will now be extremely burdensome to offer loans with a negative amortization feature.
o The new restrictions apply to both closed-end and open-end loans that are secured by a dwelling or residential real property that includes a dwelling. This means that both principal dwellings and nonprincipal dwellings are covered. Reverse mortgages are exempt.
o Before the transaction is consummated, the creditor must provide the consumer with a statement that:
(i) the transaction may or will result in negative amortization; (ii) describes negative amortization in the manner required by the Board; (iii) negative amortization increases the outstanding principal balance of the loan; and (iv) negative amortization reduces the consumer’s equity in the security property.
This statement will be in addition to existing disclosures that must address negative amortization, including the ARM program disclosure and the Consumer Handbook on Adjustable-Rate Mortgages (“CHARM”) booklet required by 12 C.F.R. § 226.19(b) for closed-end loans and the program disclosure and Board’s home equity brochure required by 12 C.F.R. §§ 226.5b(d), (e) for open-end loans. It is possible, but by no means certain, that the Board regulations will allow the new statement to be combined with these other disclosures.
o In the case of a first-time borrower with respect to a residential mortgage loan that is not a qualified mortgage (see discussion of Section 1411, above), the borrower must provide the creditor with
documentation to demonstrate that he/she received homeownership counseling from an organization or counselor certified by HUD.
The reference to a loan that is not a qualified mortgage is unnecessary, since a qualified mortgage cannot, by definition, contain a negative amortization feature.
The term “first-time borrower” is not defined. While the term undoubtedly will include a consumer who has never had a mortgage loan before, it may also include a consumer who has not been a borrower on such a loan within a prescribed period of time (e.g., two years). It will be necessary for the Board to define this term in its implementing regulations.
Some state laws further limit or prohibit the making of loans with negative amortization features.
• Protection Against Loss of Anti-Deficiency Protections. This new subsection is designed to protect consumers who have residential mortgage loans that are subject to anti-deficiency protections. It contains two separate provisions:
o Notice at the Time of Consummation. Before a residential mortgage loan that contains anti-deficiency protections is consummated, the creditor or mortgage originator must provide a written notice to the consumer that describes the protection provided by the anti-deficiency law and the significance of the loss of that protection.
This may be more difficult than it appears. In some instances, the availability of anti-deficiency
protections will be fact-dependent (e.g., whether the property will be occupied by the consumer), and the creditor may not know with certainty whether the relevant facts will provide the consumer with anti-deficiency protections. In those instances, the prudent approach may be to err in favor of providing the
protections will be fact-dependent (e.g., whether the property will be occupied by the consumer), and the creditor may not know with certainty whether the relevant facts will provide the consumer with anti-deficiency protections. In those instances, the prudent approach may be to err in favor of providing the