TRID implementation remakes the home buying process

real estateEarlier this year I informed you about the upcoming Consumer Finance Protection Bureau (CPFB) TILA-RESPA Integrated Disclosure (TRID) rule that was to begin in August. The implementation date was moved to October 3rd for a number of reasons, including feedback from the lender community indicating that they needed more time for compliance.

Fast forward to the present, and we are several weeks away from implementation. Overall, lenders are ready to comply with new disclosures and procedures. Realtor® Associations have also been busy getting members up to speed on expected changes and how to cope with potential issues that may arise. However, many are bracing themselves for the initial implementation to see how transactions will be affected.

Some have offered a different perspective on how the initial implementation may happen. For instance, the CFPB requires lenders to provide new disclosures three days prior to closing; however, some lenders may superimpose a longer waiting period (such as five or seven days) so as to ensure their compliance with the new rule. So any delay would tack on those extra days. Additionally, I have been told by loan officers that the 30 to 45 day mortgage closing process will go by the wayside, and that home sale contracts should allow for at least 60 days to go to closing; as well as allowing for flexibility if glitches arise to ensure compliance with the new rule.

The settlement process will be different. Closing documents will no longer emanate from the title company, but instead will be prepared by the lender and sent to the buyer and seller. Closing will occur at least three days later. Lenders are vetting title companies to ensure compliance with the new rule. As a result, an unintended consequence may be that home buyers will not be able to choose their title attorney like they are used to (as provided by RESPA and state law); and will have to choose from a list of lender “approved” title companies. Hopefully the lenders are not steering buyers to title companies where affiliated business arrangements exist, as that is an entirely another issue that the CFPB is pursuing.

If you’ve bought or sold a home in the past, the current contracts may seem somewhat familiar. However, as of October 3rd, new contracts and addenda will be in use to address the new rule; making it a new experience for everyone. If you’re planning a sale or purchase after October 3rd, make sure your agent is familiar with the new contracts and addenda so as to ensure they are managing timelines properly and understand how contingencies are affected.

The lingo will change too. If you’re borrowing money from a lender, you will no longer be a borrower; but instead you’ll be called a “consumer;” and your lender will be referred to as the “creditor.” Your good faith estimate will be a “loan estimate.” The time tested HUD1 with which we are familiar seeing at closing, will no longer be in use; and in its place will be the “closing disclosure” sent to the buyer and seller.   You will no longer look forward to your settlement day, but instead you will look forward to the “consummation.”

If you are planning to be in the market, you can familiarize yourself with expected changes to the buying/selling process by visiting CFPB’s “Know Before You Owe” (consumerfinance.gov/knowbeforeyouowe).

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Disclaimer. This article is not intended to provide nor should it be relied upon for legal and financial advice. Readers should not rely solely on the information contained herein, as it does not purport to be comprehensive or render specific advice. Readers should consult with an attorney regarding local real estate laws and customs as they vary by state and jurisdiction. Using this article without permission is a violation of copyright laws.

New settlement rules may facilitate much needed communication

homesSigned into law July 21st, 2010, the Dodd–Frank Wall Street Reform and Consumer Protection Act (aka Dodd – Frank) was intended to improve accountability and transparency in the financial system, to protect consumers from abusive financial services practices, and to end “too big to fail.” The Act created the Consumer Financial Protection Bureau, which enforces regulations to protect consumers and implements rules such as the Qualified Residential Mortgage (also mandated by Dodd – Frank).

Five years after enactment, Dodd – Frank seems to be the Act the keeps on giving with the upcoming implantation of Sec 1098; which states that the Consumer Financial Protection Bureau (CFPB)shall publish a single, integrated disclosure for mortgage loan transactions” in a “readily understandable language” so as to help borrowers understand the financial aspects of their loan clearly and to be nontechnical.

The new disclosure and settlement statement is intended to present important information conspicuously to help consumers decide if the mortgage is affordable and give warning about undesirable loan features. The new forms seek to standardize fee and cost disclosures so as to make shopping for a mortgage easier. One of the more important aspects of the new regulation is that the new Closing Disclosure is to be given to the borrower at least three days prior to settlement. During the three days prior to closing, changes to the Closing Disclosure that increase charges are prohibited (unless allowed by exception).

Firm timelines for closing and mortgage associated matters, have always been a crucial aspect of the home purchase contract. Not adhering to the dates specified in the contract usually has consequences. However, changes to Realtor® contracts are being considered to reflect the three day waiting period. What was once a firm timeline may no longer have the “time is of the essence” feel, as future contract revisions may not hold the buyer in breach of contract if the home does not close by contract settlement date. Carryover issues may also include implications to meeting loan commitment and appraisal contingency timelines.

If you’re buying a home, note that there are a number of situations that could cause your closing date to be rescheduled because of a “reset” to the three day waiting period, including a loan product changes, 1/8% increase in APR, and/or there is an added pre-payment penalty.   Additionally, other lender actions may also require you to reschedule closing; such as a lender required repair with reinspection.

Many in the industry are also concerned about routine buyer and agent pre-settlement walkthroughs. Rather than prior to closing, they will have to be scheduled to allow for negotiation on potential issues without resetting the three day waiting period (and cross your fingers that nothing happens to the home the three days prior to closing).

However, CFPB Director Richard Cordray was quoted emphasizing “The timing of the closing date is not going to change based on the final walk-through…” in a National Association of Realtors® (realtor.org) May 12th press release reporting on speakers at a regulatory issues forum.

The complexity and implications of the new regulations will undoubtedly cause some confusion in the first days of implementation. However, the new rules inadvertently address one of the weak links to the real estate transaction – communication. Many are beginning to recognize the necessity for everyone involved in the transaction to be proactive and communicate with each other to ensure compliance.

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Disclaimer. This article is not intended to provide nor should it be relied upon for legal and financial advice. Readers should not rely solely on the information contained herein, as it does not purport to be comprehensive or render specific advice. Readers should consult with an attorney regarding local real estate laws and customs as they vary by state and jurisdiction. Using this article without permission is a violation of copyright laws.

Coming this summer – A new real estate settlement experience

real estateFor many, August 1st will be like any other summer day. However for those in the lending and real estate industries, August 1st is when the Consumer Financial Protection Bureau’s (CFPB) new lending, closing disclosures and rules go into effect.

Know Before You Owe” is a project that began before the official opening of the CFPB (which officially opened July 21st 2011), and undertook the remaking of mortgage disclosures to make them more consumer friendly. You might say the project started with the passing of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, which mandated the creation of the CFPB as well as amends the Real Estate Settlement Procedures Act (RESPA). Sec 1098 of Dodd-Frank states that the Bureau “shall publish a single, integrated disclosure for mortgage loan transactions” in a “readily understandable language” so as to help borrowers understand the financial aspects of their loan clearly and to be nontechnical.

A change in industry disclosure and compliance to enhance consumer protection is not new. RESPA and the Truth in Lending Act (TILA) were both devised as consumer protections, and amended over the years. RESPA was enacted in 1974 as a protection for consumers from abusive and predatory lending practices to help home buyers better shop for services related to the home buying process. Enacted in 1968, TILA provided guidelines for which lenders are required to inform consumers about the cost of their loan; which includes the disclosing the Annual Percentage Rate (APR), finance charges, amount financed, and the total amount paid as scheduled. The new integrated disclosure forms replace the Good Faith Estimate (GFE) and Settlement Statement (HUD1) required by RESPA and the Truth and Lending Disclosure Statement required by TILA with a Loan Estimate and a Closing Disclosure.

RESPA and TILA require disclosures to be provided to you within three days upon making your mortgage application, as well as not having changed prior to your closing of the transaction. Changes to these regulations and disclosures have often been made to keep up with the industry as well as to enhance consumer disclosure and education; the most recent revisions being made immediately after the financial crisis. Although redesigned to be more efficient and accurate, the most recent revision of the GFE and the Truth in Lending Disclosure Statement remained technical in nature. Many claimed the forms remained confusing making it difficult to compare mortgage costs between lenders; costs were not always labeled consistently and sometimes changed prior to closing.

By combining these disclosures into two forms in a clear and understandable language, the forms present important information conspicuously to help consumers decide if the mortgage is affordable and warn about loan features that they may want to avoid. The new forms seek to standardize fee and cost disclosures so as to make shopping easier; with standard cost and fee disclosures, comparisons will be more like comparing two apples rather than an apple to an orange.

One of the more important aspects of the new rules is that the new Closing Disclosure be given to the borrower three days prior to settlement. During the three days prior to closing, changes to the Closing Disclosure that increase charges are prohibited (unless allowed by exception). You can find more information about the CFPB and view the new disclosures at the CFPB website Know Before You Owe (consumerfinance.gov/knowbeforeyouowe).

© Dan Krell
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Disclaimer. This article is not intended to provide nor should it be relied upon for legal and financial advice. Readers should not rely solely on the information contained herein, as it does not purport to be comprehensive or render specific advice. Readers should consult with an attorney regarding local real estate laws and customs as they vary by state and jurisdiction. Using this article without permission is a violation of copyright laws.

Local level home owner and buyer protection

Chevy Chase Real Estate

Home owner and buyer consumer protection exists at all levels of government. For example, the creation of the Consumer Financial Protection Bureau (consumerfinance.gov) in 2010 brought together in one department oversight and enforcement for federal consumer financial laws. Likewise, Maryland has a Consumer Protection Division housed within the Office of the Attorney General (www.marylandattorneygeneral.gov); which provides information to assist consumers in making educated decisions, as well as offering mediation services to resolve consumer complaints. Some of the housing related consumer advocacy offered by the CPD includes: the administration of the Home Builder Registration Unit; and education about the Maryland Foreclosure Counseling Services Law, as well as “flipping scams.”

Many local governments also have a number of specific protections for home owners and buyers. An advantage of living in Montgomery County MD is the availability of housing related services and assistance with specific housing issues to home owners, buyers, renters and landlords.

To assist home buyers in understanding the associated costs of home ownership, Montgomery County requires sellers to disclose utility and estimated property tax information. Enacted in 2007, Bill 24-07 requires home sellers to provide an accurate estimate of what the property tax would be for the first full year of ownership. Home sellers and real estate agents access the estimated property tax information from the Montgomery County Office of Consumer Protection website (montgomerycountymd.gov/ocp).

The OCP also enforces the County’s utility bill disclosure law that requires home sellers to provide a history of the prior 12 months of electric, gas, and heating oil bills for a property, or a usage history for the same time period. Additionally, the seller must provide Montgomery County Department of Environmental Protection approved information to help the buyer with energy conservation choices and options. If you’re selling your home, your listing agent can provide you with the approved Greater Capital Area Association of Realtors® forms to fulfill these obligations.

County residents finding themselves at odds with their Home Owners or Condo Association can ask for help from the Office of Common Ownership Communities. Housed within the OCP, the OCOC offers information and a dispute resolution program for home owners, boards, management companies, and managers. The OCOC pledges transparency, integrity, and a commitment to the highest ethical standards.

If you’re buying a new home in Montgomery County, you are provided with an extra layer of protection through Montgomery County Code Chapter 31C, which requires new home builders to be licensed by the Montgomery County OCP as well as provide a new home warranty that meets specific criteria.

If you own rental property or are a tenant within the County, you’ll find the Office of Landlord – Tenant Affairs (housed within the Department of Housing and Community Affairs) a resource of valuable information. Besides publishing a Landlord – Tenant Handbook, the commission provides information on licensing, security deposits, evictions, leases, and rent increases. Besides informing of general rights and responsibilities of landlords and tenants, it offers a free and quick avenue for tenants to seek amicable dispute resolution (http://montgomerycountymd.gov/DHCA/housing/landlordtenant).

Home owners and tenants who have issues with their cable TV provider can seek assistance from the Office of Cable and Broadband Services (montgomerycountymd.gov/cable). Housed within the Office of Technology Services, the “Cable Office” administers the County’s cable TV franchise agreements; the office investigates and resolves subscriber complaints.

Check with your real estate agent about local home owner and buyer protections. Many consumer protection agencies (such as those listed above) have websites where information is posted to educate consumers.

Dan Krell
© 2014

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Disclaimer. This article is not intended to provide nor should it be relied upon for legal and financial advice. Readers should not rely solely on the information contained herein, as it does not purport to be comprehensive or render specific advice. Readers should consult with an attorney regarding local real estate laws and customs as they vary by state and jurisdiction. Using this article without permission is a violation of copyright laws.

RESPA empowers home buyers and consumers

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Although the Real Estate Settlement Procedures Act (RESPA) is one of those laws that you don’t hear much about, it’s a consumer protection statue that has been around for while.  Enacted in 1974, RESPA was intended to help home buyers be better shoppers by requiring the disclosures regarding the nature and costs related to the real estate settlement process.  Keeping RESPA relevant, there have been modifications and clarifications through the years, most notably the change of administration and enforcement in 2011 from HUD to the Consumer Finance Protection Bureau (CFPB).

RESPA is generally known for empowering consumers in the real estate process by allowing consumers (in most cases) to choose service providers, and prohibiting kickbacks (e.g., unearned fees) for referrals.  Section 8 of RESPA prohibits real estate service providers from giving or accepting a fee, kickback or anything of value in exchange for referrals of settlement service business involving a federally related mortgage. While Section 9 prohibits a home seller from requiring the home buyer to use a particular title insurance company, either directly or indirectly, as a condition of sale.

RESPA also requires the disclosure of affiliated business arrangements associated with a real estate closing.  An affiliated business relationship is considered to exist when there is a direct or indirect referral from a service provider to another provider of settlement services when there is an affiliate relationship or when there is a direct or beneficial ownership interest of more than one percent.  The disclosure of such a relationship must specify the following: the nature of the relationship (explaining the ownership and financial interest) between the provider and the loan originator; and the estimated charge or range of charges generally made by such provider. This disclosure must be provided on a separate form at the time of the referral (or at the time of loan application or with the Good Faith Estimate if referred from a mortgage lender).  In most cases, you’re not required to use the referred affiliated businesses.

RESPA violations are serious, and penalties can be severe.  For example, HUD (hud.gov) lists the penalties for violations of Section 8 “… anti-kickback, referral fees and unearned fees provisions of RESPA are subject to criminal and civil penalties. In a criminal case a person who violates Section 8 may be fined up to $10,000 and imprisoned up to one year. In a private law suit a person who violates Section 8 may be liable to the person charged for the settlement service an amount equal to three times the amount of the charge paid for the service.

The real estate industry takes RESPA very seriously; the industry educates service providers about empowering consumers, as well as regulation compliance.  And although modifications of RESPA are to keep up with the real estate industry; some still claim that there are sections of RESPA that remain vague, as demonstrated by the Supreme Court opinion of Freeman v. Quicken Loans, and further clarifications (such as the RESPA Home Warranty Clarification Act of 2011).

In the past, RESPA violations were pursued vigorously by HUD; resulting in settlements as well as criminal investigations.  Today, the CFPB (consumerfinance.gov) has taken over the reins, and continues the pursuit of RESPA violations with the same if not increased vigor.  More information and guidance about RESPA can be obtained from the CFBP (consumerfinance.gov).

by Dan Krell
© 2014

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Disclaimer. This article is not intended to provide nor should it be relied upon for legal and financial advice. Readers should not rely solely on the information contained herein, as it does not purport to be comprehensive or render specific advice. Readers should consult with an attorney regarding local real estate laws and customs as they vary by state and jurisdiction. Using this article without permission is a violation of copyright laws.