News Column

Mortgage Lending Rules to Limit Loan Options

Jan. 10, 2013

Mary Ellen Podmolik

The Consumer Financial Protection Bureau is planning a Thursday morning announcement of new lending rules that it hopes will move the mortgage market toward a sustainable middle ground, somewhere in between the free-wheeling days of no-documentation loans and the current, restrictive environment.

For most borrowers, the rules will mean no more interest-only mortgages, no more loans where the principal due increases over time, no more loans that carry a balloon payment and no more loan terms of more than 30 years. In addition, would-be borrowers will be less likely to qualify for a mortgage unless their total debts account for no more than 43 percent of their monthly gross income.

These so-called qualified mortgages are expected to be embraced by lenders, because by following the criteria, they will have a better chance of shielding themselves from lawsuits from consumers whose loans go bad.

The provisions of the Ability-to-Repay rule, which follow closely the lines of protections called for in 2010's Dodd-Frank legislation, will take effect in January 2014. Richard Cordray, the bureau's director, is expected to detail the regulations at a public hearing Thursday in Baltimore.

A senior official of the consumer protection bureau, the agency charged with implementing the new mortgage requirements, said the lending standards are not much different than the guidelines currently in place. Still, while the rules might ease uncertainty among lenders who have worried about the scope of the regulations, it could cause additional anxiety for consumers trying to qualify for a home loan.

"It will add some certainty to the mortgage industry about what the rules of the road are going forward," said Guy Cecala, president and CEO of Inside Mortgage Finance, a trade publication. "But it basically says we want everybody to make plain-as-vanilla mortgages.

"The legitimate concern is that this will cement the tight mortgage underwriting standard that we currently have in place, and most people agree, from (Federal Reserve Chairman) Ben Bernanke to the person on the street, that they're too tight."

To not upend the housing market's recovery and assist consumers who can't meet the 43 percent debt-to-income threshold, the agency said it was establishing a second, temporary category of qualified mortgages that meet most of the new guidelines but also would qualify to be purchased, guaranteed or insured by Fannie Mae, Freddie Mac or various other federal agencies. The temporary provision would end as those agencies issue their own qualified mortgage guidelines or if Fannie and Freddie end their government conservatorship or in seven years.

The bureau wanted to give the mortgage market time to adjust to the new standards and ensure that well-qualified people could still buy homes, the agency official said.

For all types of mortgages, to help determine a borrower's ability to repay, lenders must look at eight factors. They include current income and assets, employment status, credit history, the mortgage's monthly payment, other loan payments associated with the property, monthly payments for such things as property taxes, other debt obligations and a borrower's monthly debt-to-income ratio.

Teaser interest rates no longer will be allowed to be used to judge a borrower's creditworthiness. For homebuyers who apply for adjustable-rate mortgages, the monthly payments no longer can be computed using just an introductory rate that might be artificially low. Instead, the monthly payment must be computed using whichever is higher, the fully indexed rate or the introductory rate.

In addition to the other rules defining a qualified mortgage, the bureau also mandated that a qualified loan cannot charge to the consumer points and fees that exceed 3 percent of the total loan amount.

The mortgage lending industry has worried for months about the rules and heavily lobbied for protection from lawsuits brought by borrowers.

Under the new rules, lenders who make qualified mortgages to well-qualified borrowers that carry a lesser chance of defaulting could be shielded from lawsuits from these prime borrowers who say the lender did not satisfy the ability-to-repay requirements. Riskier, subprime borrowers could challenge the lender's assessment of their ability to repay the loan but borrowers would have to prove that a lender didn't adequately factor in living expenses and other debts.

"They appear to favor lenders' interests above consumers," said Diane Thompson, of counsel at the National Consumer Law Center. "You have to prove what's in the creditor's records. It may be that no homeowners are able to challenge it. Otherwise, you're relying on regulatory oversight, and we saw how well that worked."

The rules, in various forms, have been in the works for years. Other agencies continue to formulate their own rules, and one still in development about what constitutes a qualified residential mortgage might increase a consumer's mortgage down payment in order to ensure that borrowers have more "skin in the game."

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