RESPA – QUESTIONS and ANSWERS · RESPA – QUESTIONS and ANSWERS TLTA ... We do adjustable rate loans with a floor of 5.0% and a ceiling of 12% with no caps per year. How do

RESPA – QUESTIONS and ANSWERS

TLTA – IBAT RESPA Line-by-Line Panel Last revised: 02/24/10 Page 1 of 32

What follows are “unofficial” answers to the questions received by the TLTA-IBAT Panel in connection with the two February “Line by Line” webinars. Thanks to everyone for sending in such great questions. Hopefully you will find these responses helpful.

GFE – General Questions

What cure options are available, prior to closing, if we have issued an initial GFE with correct fee amounts, but entered in the wrong block (i.e. the fees should have been included in Block 1, but were instead itemized in Block 3)?

Response: The cure would be to disclose the fees in the correct areas of the HUD-1 at closing, and then cure any tolerance violations that result.

Once the GFE is provided and the consumer elects to proceed with the transaction within the shopping period (minimum of 10 business days after receiving the GFE), a revised GFE showing an increase in the Block 1 amount cannot be provided unless there is a valid “changed circumstance” that justifies an increase in that amount.

An error, a misreading, or a misinterpretation of the applicable RESPA disclosure requirements would not be “changed circumstances” as defined in RESPA and the HUD FAQ document. For example, absent a valid “changed circumstance” the RESPA regulations would not allow a loan originator to issue a new GFE that reduces the fees in Block 3 and increased the fees in Block 1, even if the net dollar result to the applicant does not change.

Effective 07-30-09 there was a statement we started providing on our GFE which stated “You are not required to complete this agreement merely because you have received these disclosures or signed a loan application” how should this be disclosed now & at what point?

Response: That statement is not required by RESPA, and should not be included on the GFE. That type of wording is generally required on the preliminary Truth in Lending (TIL) disclosure and on any corrected TIL disclosures that are provided, as specified in the TIL regulations. See reference below.

Reference: TILA, Regulation Z, 12 CFR 226.19(a)(4):

Notice. Disclosures made pursuant to paragraph (a)(1) or paragraph (a)(2) of this section shall contain the following statement: “You are not required to complete this agreement merely because you have received these disclosures or signed a loan application.” The disclosure required by this paragraph shall be grouped together with the disclosures required by paragraphs (a)(1) or (a)(2) of this section.

I prepared a preliminary 2010-HUD yesterday for a lender (MHU purchase transaction) and upon asking for a GFE she said that they would provide it once the HUD was approved/finalized. They plan to have the customers sign the GFE @ my office or MHU retail location 3 days prior to closing. What do you think about that?

The practice they propose is not in keeping with RESPA regulations that require the GFE to be delivered to the borrower no more than three business days after the lender receives the information that – by the new definition – constitutes an “application” for the loan.

Additionally, there is no RESPA requirement that the GFE be “signed” and HUD has specifically indicated that signature lines are not to be added.



During the application process, does “any other information deemed necessary by the Loan Originator” include additional income information such as cash flow statements or tax returns?

Response: For application of a loan, in addition to the six items listed in the RESPA rule the lender can require additional information to meet their application guidelines. This will vary by lender.

Once the 6 items listed in the RESPA regulations are received, plus any additional information deemed necessary by the loan originator to constitute a loan application, the GFE must be issued within three business days and the lender can’t delay issuance by requiring more documentation.

Note in particular that RESPA does not permit a lender to require, as a condition for providing a GFE that an applicant submits documentation to verify information contained in the application. [Regulation X Section 3500.7(a)(5)].

GFE – Important Dates

First, wanted to clarify that the period of time in the ‘Important Dates’ section for number 2 is supposed to reflect 10 business days, is this correct? The example in the program slides seems to indicate 10 calendar days.

Response: Yes, the relevant estimated charges must be available for 10 business days. RESPA defines “business day” as a day on which the offices of the business entity are open to the public for carrying on substantially all of the entity's business functions. [RESPA, Regulation Z, 24 CFR 3500.2(b)].

The fictional business used in the example was apparently open to the public for conducting its business 7 days a week. Seriously, thanks for pointing this out. We will consider using a more realistic example in the future.

The newest HUD FAQs states this, I believe, but just would like to confirm – no matter how many times we reissue a GFE (for changed circumstances), the date in line 2 of the ‘Important Dates’ stays the same as the original 10 business days date quoted on the first GFE? So, eventually, the date of your GFE could post date the date on line 2?

Response: Yes, that is how we interpret the relevant FAQ item.

Reference: HUD FAQ Document, GFE-Important dates, Question #12 (Page 22 of the 01/28/10 version)

GFE Loan Terms

My understanding from the FAQ’s is that if a loan has interest only payments for a period of time and then P & I, that the interest only payment is what is reflected here, is that correct?

Response: We believe the interest only payment would be reflected.

In addition, since the payment amount will increase later to include both principal and interest, that needs to be disclosed by answering “yes” and filling in the relevant details in the box titled “Even if you make payments on time, can your monthly amount owed for principal, interest and any mortgage insurance rise?”



On an adjustable rate mortgage, when calculating the maximum amount to which the payment can rise, what calculation method should we use to obtain this highest payment amount? We currently take the original loan amount, calculated by the amount of the highest interest rate that could occur on the loan and we use the original loan term. Is this method acceptable or are we supposed to use an amortization schedule to determine the estimated principal balance at the time that the interest rate could reach its highest point and calculate the payment on the remaining term of the loan?”

Response:

1. For an ARM loan, determining an accurate maximum payment amount requires amortizing the loan balance over time in conjunction with stepping up the interest rate and payment as permitted under the loan documents (considering the timing of rate and payment changes, any adjustment caps and related loan provisions) until the maximum payment is reached.

2. If a lender calculates the maximum payment amount on an ARM loan using the original loan amount, highest possible interest rate, and original loan term, the result will generally be somewhat higher than the more accurate result calculated as noted in 1 above. However, if the loan permits negative amortization the result could be either lower or higher than the result in 1 above, depending on the nature and extent of the negative amortization.

In general, calculation 2 above is not completely accurate, and could be subject to questions from investors or regulators should they investigate at that level of detail. However, it is not clear how strict investors and/or regulators will be on this calculation issue.

We do not collect interest at closing, so our first installment is not a regular payment, should we disclose the first installment or the regular payment?

Response: The GFE and the related rules and FAQs do not address how to disclose transactions in which the odd days of per diem interest is added to the first payment instead of being collected at closing.

We believe that the intent of the GFE is to show the regular initial monthly payment amount that will be due, not including any odd-days of interest that may be added into the first payment. However, there is no firm guidance from HUD on that point.

We recommend that you consult with your compliance officer, legal counsel and/or investor to determine the approach that is best for your company, based on your business practices.

We do adjustable rate loans with a floor of 5.0% and a ceiling of 12% with no caps per year. How do we fill in the blanks on Page 3, can the interest rate rise? Every change date your interest rate can increase or decrease.

Response: This question is answered in HUD’s FAQ document as follows:

If the loan offered does not contain a cap of periodic interest change other than by setting the overall floor and ceiling, the loan originator should complete the answer to the question, “Every change date your interest can increase or decrease by ____%” with the difference between the floor and the ceiling.



Prepayment Penalty-We charge one based upon the market interest at the time of prepayment, so that cannot be calculated, what should we put?

Response: We don’t believe this is addressed specifically in the regulations or FAQ document, but it sounds like it should be treated in the same way an ARM calculation is treated. As a result, until this is addressed by HUD, base the calculation on the rate on the initial rate at the time of closing.

Interim and Construction Loans – GFE

Isn’t it true that if the construction loan is truly a temporary financing (not a one-time close) it is not governed by RESPA?

Response: Very true, but if the temporary and permanent loans are being made by the same lender, both are regulated by RESPA. This is an important distinction as smaller banks are more likely to do real temp financing but not make the permanent loan, in which case the construction loan would generally not fall under RESPA regulation. The RESPA exemption for temporary financing does not apply to a loan made to finance construction of 1- to 4-family residential property if the loan is used as, or may be converted to, permanent financing by the same lender or is used to finance transfer of title to the first user. If a lender issues a commitment for permanent financing, with or without conditions, the loan is covered by RESPA. Any construction loan for new or rehabilitated 1- to 4-family residential property, other than a loan to a bona fide builder (a person who regularly constructs 1- to 4-family residential structures for sale or lease), is subject to RESPA if its term is for two years or more.

What is the correct way to state the initial monthly amount owed for principal, interest, & any mortgage insurance on construction loans?

Response: First note that temporary financing loans, including certain construction loans, are exempt from RESPA. See Applicability of RESPA at the end of this document.

If the loan originator determines that the construction loan is subject to RESPA then they must complete the new GFE, filling in the initial monthly payment amount as required by the RESPA rule.

Unfortunately the RESPA regulations do not provide any further guidance on this subject. We recommend that loan originators consult with their compliance staff and/or legal counsel to determine the best way to make this disclosure based on the specific terms and conditions of the construction loan product in question.

On page one of the GFE it requires a monthly payment for principal and interest. What should go in that box for a construction loan that is set up with no monthly payments?

Response: Regardless of the type of loan, the loan originator must fill in the initial monthly amount owed for principal, interest, and any mortgage insurance. The amount shown must be the greater of: (1) The required monthly payment for principal and interest for the first regularly scheduled payment, plus any monthly mortgage insurance payment; or (2) the accrued interest for the first regularly scheduled payment, plus any monthly mortgage insurance payment.



Here is a sample transaction fairly typical within our bank, and related question: • Customer applies for an interim to permanent home loan to construct his/her residence. The

bank provides the interim financing for the construction loan, and then the bank originates and funds the permanent phase of the loan, finally selling it to an investor after closing.

• At the time of application, as we interpret it, the customer is due a GFE, since he is applying for interim/perm financing through the bank.

• We include the 60 day new construction disclosure with the GFE. The question: Is the bank obligated to provide settlement cost information on the interim transaction? Obviously, these costs are separate and different from the costs of the permanent transaction. If the bank is obligated to provide this information, should it be provided as two separate GFEs at the time of the application or a combined GFE (which wouldn’t compare with either HUD)? There are two closings for these transactions, and as a practical matter, the disclosures would be provided by two separate departments in the bank, which could complicate/confuse the disclosure completion (ie. pg 1, Summary of Your Loan).

Response: If the bank interprets that the customer is due a GFE, then the bank considers the transactions to be subject to RESPA. As such, all settlement costs must be included on the relevant GFE.

Since there are two separate loan transactions and two separate closings there should be a separate GFE and HUD-1 for each transaction.

GFE – Block 10 Block 10 – Can NA be used here if we do not collect interest at closing?

Response: If the loan originator estimates that no interest will be collected at settlement we suggest that a zero (0) be placed in this block on the GFE.

Seller Charges Do Seller charges such as escrow fee, doc prep for Deed and Release, tax certs, and so forth need to be disclosed on the GFE?

Response: Charges such as you mention (seller’s portion of the escrow fee, document preparation of the Deed and curative matters and tax certificates) that in Texas typically would not be charged to the buyer, but would be charged to the seller, do not have to be included on the GFE . As a result, these charges may be charged to the Seller – in the column – on Page 2 of the HUD-1.

In all instances, however, regardless of whether the contract requires the seller to pay for the service, the charges for title services and lender’s and owner’s title insurance must appear on the GFE. As a result, these charges must always appear in the borrower’s column on Lines 1101 and 1103 of Page 2 of the HUD-1 and, if to be paid by another party, as a credit to the borrower on Page 1.

Reference: 01/28/20 HUD FAQ document, Pages 11-12, GFE – Seller paid items - #2.



Borrower Allowed to Shop – the “List”

If the bank is preparing a GFE, and has the earnest money contract in hand, which includes a title company required for closing that is not the title company that the bank includes on their written provider list ( this provider may be selected by the borrower), does the bank still need to provide the written list to the borrower with the GFE in order for the ‘no tolerance limit – borrower may shop’ provision to apply to those fees?

Response: If the lender permits the borrower to shop for title services they must provide a list showing at least one provider for those services. If the borrower selects, or has selected, a provider that is not on the lender’s list the unlimited tolerance applies to the charges for that provider. In general, the lender is not a party to the purchase contract and the lender’s RESPA obligations are not changed based on those contract provisions.

If the transaction closes with the title company provider on the bank’s list, but the title company was already selected prior to the GFE by the agreement in an earnest money contract, is the bank still bound by the 10% tolerance for the provider?

Response: If a provider shown on the lender’s written list of providers is used for the indicated service, those charges are subject to the 10% tolerance. It does not matter when or how the provider is selected.

If the borrower does not choose the title company on the lender’s provider list is that a changed circumstance?

Response: If the borrower selects someone not on the list - the costs are in the "these charges can change" or unlimited tolerance bucket - so there is no need to deal with a "changed circumstance" or a revised GFE.

Selection of a title company or any service provider not from the list does not constitute a changed circumstance. Selection of a title company or any service provider that the borrower may shop for only changes the tolerance "bucket".

If the consumer chooses a service provider on the list, for services in Block 4, 5 or 6, it is in the 10% tolerance bucket. If the consumer chooses a service provider not on the list for these services, it is in the unlimited bucket.

How can a borrower shop if there is only one provider listed?

Response: If the borrower is allowed to shop, he may choose any provider of the service, not just those identified by the lender. The Service Provider List is merely a referral by the lender. It does not limit or prohibit the borrower from going elsewhere for the service.

How does the name of a service provider get known to the borrower if it is not on the provider list?

Response: Service providers come to the attention of the borrower in the same way they have done in the past. Appearing on the lender’s Service Provider List is just one more way for a service provider to reach the attention of the borrower.

It is important to note, however, the borrower is told that the lender will not be held to the 10% aggregate tolerance if the borrower chooses to use a provider whose name does not appear on the list.



Is the lender to provide a service provider list with closing instructions for each loan?

Response: First, the lender must provide the borrower with the service provider list at the time the original GFE is issued.

At closing, the lender must provide the title company with sufficient information to determine if the borrower selected providers from the list. This will probably vary from lender to lender, but the information can be given by providing a copy of the final GFE and a copy of the Provider List to the title company.

Lender Fees

On Line 801, the origination fee, I understand that the attorney fee for preparation of borrower’s docs is part of this figure. Would we also add the borrower closing fee in with the attorney fees or should it go down in Line 1102?

Response: If you are referring to the escrow or settlement fee charged by the settlement agent, that is not part of the “origination services” provided by the lender. The fee charged to the borrower by the settlement agent for handling the transaction is part of the Line 1101 Title Services and lender’s title insurance charge.

If a lender did not disclose the $150 doc prep fee in the origination charge and is over an additional $350 in the 10% tolerance bucket, is the cure amount based on the amount over the 10% PLUS the $150 doc prep fee or is it just the amount over the 10% amount? Also, can the origination charge be reduced to cover the shortage?

Response: Lines 801, 802, and 803 of the HUD-1 form each have a separate zero percent (0%) tolerance threshold. The 10% tolerance threshold is calculated separately from any of the 0% tolerance items.

Cures are required for each tolerance violation. For example, any tolerance violation at line 801 must be cured in addition to any tolerance violations in the 10% tolerance.

The loan originator can reduce the origination charge they will collect at closing to match the amount disclosed on the GFE to avoid having a tolerance violation for line 801. Any other tolerance violations must be cured separately.

For some time now, we have charged only 3 fees (underwriting, processing and closing), and have not made a specific charge for credit report, tax service or flood cert). The FAQ’s have some vague language regarding fees paid to 3rd parties, so we want to know if there is any need for us to show those items on our GFE as 3rd party charges, even though no fee will be collected at closing.

Response: If the services are not required for the loan transaction then they need not be shown on the GFE.

However, if the services are required but are being paid for by the bank on behalf of the borrower then we believe those fees should be shown on the GFE in the proper location(s), and either 1) a credit from the bank to the borrower would be shown on page one of the HUD-1 to cover the fees the lender is paying, or 2) a pricing premium based on the interest rate the borrower selected could be shown in Block A of the GFE and line 803 of the HUD-1 (as a negative number) to cover those costs.

Reference: HUD FAQ Document, 01/28/10, Page 11, GFE - General, Question #32.



And, I am still trying to clarify a couple of fees, and whether they go in Block 1 or Block 3 of the GFE. • Fee for 4506Ts – Tax Transcripts (paid to a third party, but used in the underwriting process) • Fee for Fraud Protection Service (paid to our investor for the underwriting process) • Fee for independent third party review of appraisal • Fee for Employment Verification (this may be paid to a third party, but used in the

underwriting process)

Response: We believe that the above charges are origination, processing, and administrative charges for services performed by or on behalf of the lender, and should be included in Block 1 of the GFE.

References: HUD FAQ Document, January 28, 2010 version, page 26, GFE-Block 1, Question #9 HUD FAQ Document, January 28, 2010 version, page 25, GFE-Block 1, Question #2

A lender (one of the big 3) is showing typical loan fees such as flood and tax service on their GFE in Block 6, and tells us to show those fees in the 1300 series. The fees are payable to an affiliate of the lender. Is it possible for these fees to be shopped for, and do we just prepare the HUD the way they instruct us?

A lender – one of the “biggies” – is providing a Service Provider List to their Borrowers including listings for tax certification and flood certification companies. Because these are now "Charges that the Borrower can shop for," the lender is requiring that they be shown in the 1300 section. This is so contrary to everything we have done in the past. Is that is AOK?

One of the major lenders is providing a Service Provider List with two listings each for tax service and flood certification companies. The “fine print” on the list indicates that if the borrower doesn’t want the lender’s affiliate to be used, the other listing will be used. The lender seems to consider this to be “shopping” and is putting those estimates in Block 6 of the GFE and telling the settlement agent (and all correspondent lenders) they must be shown in the 1300 Miscellaneous Series on the HUD-1. If the borrower can’t use a provider other than the two on the list, does this meet HUD’s definition of “shopping”?

Response: Unless the lender actually is allowing the borrower to select the flood and tax services – not just including them on a “shopping list” – and not just allowing a borrower to choose between two named entities – but actually allowing them to choose someone who is not “on the list” – they are improperly preparing the GFE by showing them in Block 6, rather than Block 3.

A settlement agent should be unwilling to show services required by the lender and for which the borrower had no ability to shop in the 1300 series of the HUD-1. That sounds way too much like a loan originator who is trying to hide loan fees from someone in the secondary market - who would not look for "loan fees" in the 1300 series.

Appendix A is specific that these fees go on certain lines in the 800 series - and Appendix C is specific that they are to be included in Block 3 on the GFE. As a result, it seems particularly non-compliant to put flood and tax services in Block 6 of the GFE or in the 1300 series on the HUD-1.

However, we understand that this particular lender will not allow closing or funding unless the settlement agent follows their instructions to (improperly) include those lender fees in Line 1301 on the HUD-1. As a result, in the interest of the consumer, if you have clear documentation as to the lender making this demand, go ahead and follow their instructions to get the loan closed/funded. Hopefully this practice will be reviewed/revised by HUD in the near future.



We also are still a little confused on the flood determination on the new GFE. If we show it under 3 – required services that we select – does that amount effect the APR? All other fees effecting the APR are shown in 1 – Our origination charge.

Response: Regulation Z governing truth-in-lending and Regulation X governing RESPA are two entirely separate federal regulations.

APR and Finance Charges are Regulation Z requirements and have no bearing on the placement of fees on the GFE. Certain fees other than the origination services, including flood determination and certain title company fees are considered to be finance charges under Regulation Z.

Flood Determination, whether in Block 1 or 3, is a finance charge under Regulation Z.

Can the payee for providers in Block 3 still be shown as Lender Name FBO (For the Benefit Of) Service Provider Name?

Response: Unfortunately, HUD has not yet addressed this issue – either in the Regulations or in their FAQ document – so it is currently up to interpretation by the industry. Here are the responses of two of the panel members:

One panel member says “Yes BUT I have an investor who keeps kicking loans back if the HUD shows FBO. I think it is necessary to include the FBO language to indicate this is a pass through fee and not a fee paid directly to the Lender.”

We agree with the other panelist, a third party fee can be shown payable to the third party provider and/or the lender FBO third party provider. As long as the third party provider is referenced, it is our interpretation that this meets the requirements of Appendix A to RESPA to indicate who the fee is ultimately paid to.

One of the male panelists made a comment about May 1 in reference to itemization of items on line 801. Would he please repeat that?

Response: VA requires the itemization of all fees included in line 801, either in the 800 series or on a separate “origination statement.” Please refer to the VA Circular Memo on that topic, which can be found at the following link: http://www.homeloans.va.gov/circulars/26_10_1.pdf

The handout says that Lines 804, etc. will show "Fees payable to third party other than Originator."

Many lender closing instructions are requiring title companies to list out each of the Originator's charges included in the 801 charge as separate line items in the 800 section, such as: - Origination Fee - Processing Fee - Underwriting Fee, etc.

Can we add additional series 800 line items to show fees payable to the Originator?

Response: The RESPA regulations and HUD’s FAQs make it plain that the lender’s own fees (fees paid to the lender and included in Line 801) should not be itemized unless required by state law.

http://www.homeloans.va.gov/circulars/26_10_1.pdf�



Does Texas State Law or the Texas Department of Insurance (TDI) require itemization of charges included in 801?

Response: The Texas Insurance Code says that the settlement statement must show the name of any person receiving any amount from a party to the transaction, must show all items so disbursed, and must itemize the charges imposed. [Texas Insurance Code Section 2702.53]

For example, fees for preparation of the lender’s legal documents to be paid to an attorney (rather than the lender) must be included in the total at line 801 but must also be itemized in the 800 series outside the column.

On a refinance loan, can we include in the 800 series the interest and late charges due on the loan being paid off?

Response: No, all items payable in connection with the loan being refinanced (paid off) should be included in the Loan Payoff figure on Page 1 of the HUD-1 – and will not be included in any of the estimates on the GFE issued by the lender.

Our bank uses the same title company and attorney to prepare legal docs and issue title policies over and over. Still confused as to

• What the attorney charges to prepare note/deed/etc………. block 1 or block 4? • Title company escrow fee/courier/delivery/wire fee - block 1 or block 4?

Response: Regardless of whether your bank always uses the same attorney and title company - or different ones - the charges you asked about always go into the same Blocks on the GFE.

What the attorney charges to prepare note/deed/etc………. block 1 or block 4? • The charge by the attorney for preparing "loan documents" which would include the Note and

Deed of Trust, but not a Deed - is part of your "origination charge" in Block 1 of the GFE • The charge by the attorney for preparing a Deed from a Seller to a Buyer - would not generally

be included on the GFE because in Texas, that fee is "customarily paid by the seller" • The charge by the attorney for preparing curative legal documents, which could include a Deed

or Release, etc. does not go on the GFE for a purchase money loan because those would also customarily be charges to the Seller.

• The charge by the attorney for preparing curative legal documents on any loan that is not for purchase money would go in Block 4 of the GFE because they will be required services for the purpose of issuing the lender's title insurance. This type of attorney fee is often not known at the time of application - other than for the preparation of an assignment or release for a loan being paid off in connection with a refinance - and so may require a revised GFE as a result of "changed circumstances" when the lender finds out that curative documents are required.

Title company escrow fee/courier/delivery/wire fee - block 1 or block 4? • All charges by the settlement agent for the services required in connection with settling the

transaction and issuing title insurance to the lender are in Block 4 of the GFE - including the services you mentioned.

Are UCC fees on interim construction loans included in block 3? The bank chooses the UCC company.

Response: The charge for preparing UCC forms is Doc Prep and should be included in Block 1 of the GFE. The charge for recording the UCC forms is Government Recording and should be included in Block 7. If a search of the UCC records is required, the charge for this search should be included in Block 3.



Does the Appraisal Fee from an outside appraiser, credit report fee and flood determination fee need to be totaled in the 801 section or listed in the 800 section, not totaled in 801.

Response: If these are services provided by someone other than the lender, then these would be shown in the 800 series as charges paid to each individual provider. If any of these services are done in-house by the lender, it should be included in Block 1/Line 801 and would not be itemized.

Would flood fees go in block 1 as a 3rd party fee?

Response: Define “flood fees.” If we are talking about Flood Cert Fees or Life of Loan Flood Certs AND those fees are paid to a third party, then it is Block 3. Required Service, Lender Selected.

Under unusual circumstances, if the lender did this as an in-house process and the cost is paid to the lender, then Block 1. I think this would be very rare.

Home Equity Loans

How do we disclosure fees on a Home Equity loan when we charge a 3% origination fee? This is the only amount that's collected.

Response: All loan originator fees must be included in Block 1 of the GFE (HUD Line 801), so if the lender is collecting a 3% origination fee that amount must be included in GFE Block 1 and on HUD Line 801.

Reference: RESPA, Regulation X, 24 CFR Appendix C to Part 3500 - Instructions for Completing the GFE, Specific Instructions – Block 1.

If the full 3% origination charge is shown in Block 1 (HUD Line 801), do we also list the individual charges in each other block?

Response: We are not sure which individual charges you reference. If the only amount that is collected by the loan originator is the 3% origination fee then there are no other individual charges to list.

However, keep in mind that the attorney’s loan document preparation/review fee must also be included in the total in Block 1 of the GFE and on HUD Line 801, but must also be itemized outside the columns on the HUD-1 on an additional line in the 800 series. In addition to the 3% fee, title fees and title insurance are listed in Blocks 4 and 5; etc.

On our question regarding whether fees should be broken down on a home equity loan where only a 3% fee is collected. I know we would put the 3% fee in Block 1 of the GFE. All charges for appraisal, flood fee & tax service fee are paid out of the 3% fee and no other amount is collected from the customer. Do these charges still need to be listed in Block 3 of the GFE? In Block 4, do we list the charge for the property report which is also paid out of the 3% fee?

Response: If third party services are required but are being paid for by the bank on behalf of the borrower then we believe the RESPA rule requires all of those charges to be shown on both the GFE and HUD-1 forms in the proper location(s), and then show a credit from the bank to the borrower on page one of the HUD-1 to cover the fees the lender is paying.

Reference: HUD FAQ Document, January 28, 2010 version, Page 13, GFE - General, question #32.

Also, how should these same amounts be listed on the new HUD1?

Response: All charges should be shown in the proper location(s) on Page 2 and a credit from the bank to the borrower would be shown on Page 1 to cover the fees the lender is paying.



Ag Credit Loans

We require our borrowers to purchase stock as a loan requirement. Should the purchase price of the stock be included in Origination Charge in Block 1 on Page 2 of the GFE and on Line 801 of the HUD-1?

Response: This issue is not addressed either by the RESPA regulations or HUD’s FAQ document. The argument may be made that this is not a “fee” since the borrower only exchanges money for stock. If required to guess, our guess would be “yes” since it is paid to lender and required for the loan. But this is only a guess!

Keep in mind, also, that loans on 25 acres or more are not governed by RESPA, nor are loans secured by unimproved land.

Document Preparation – Loan Documents

One of the problems we are having is the attorney fee. We are including the attorney’s fee in the Lenders Origination Charge on the GFE. Our problem is when the loan goes to the title company for closing they are disclosing the total of our fee and the attorney fee in 803; however they are also showing further down in the under the 800’s - Document Preparation to (our attorney’s name) and the amount. I understand that you cannot put this on the HUD. The title company states they cannot issue a check payable to attorney unless they show it on the HUD.

If the lender doc prep fee is included in the origination fee, but we also receive an invoice from the attorney, how do we comply with Texas Department of Insurance requirements if we have to create a check for paying that invoice?

Response: RESPA rules require that the fee for preparing loan documents be included in the amount shown at line number 801 on the HUD-1 settlement statement.

HUD’s FAQ Document specifically says that “if state law requires further itemization of loan originator fees than required under RESPA, those fees may be treated as other required disclosures and itemized on Line 808 and additional lines in the 800 series on the HUD-1 with the charge listed outside the borrower‘s column.” [HUD FAQ Document, 01/28/10 version, Page 45, HUD-1 - 800 Series, #7.]

Under the Texas Government Code §83, no one but a licensed attorney may prepare legal documents (unlicensed practice of law). So if the doc prep fee is included in the Origination Charge Block 1/Line 801, it gives the appearance that the lender has prepared the legal documents which in turn would constitute the unlicensed practice of law. By disclosing the attorney fee in the 800 series (and in the 1100 series for title legal docs), this essentially gives notice that the documents were prepared by a lawyer and the Unlicensed Practice of Law statutes were not violated.

Additionally, the Texas Insurance Code requires that the settlement statement include the name of any person receiving any amount from a party to the transaction, show all items so disbursed, and itemize the charges imposed. [Texas Insurance Code Section 2702.53]

Therefore, to meet all Texas laws, a third-party document preparation fee should be itemized on an additional line in the 800 series, outside the columns (because the fee has already been included as a charge to the borrower in line 801).



Is it true that if the lender contracts for preparation/review of loan docs that this fee has to be part of their origination charge? Instead, what we are seeing is a requirement to show the fee for document preparation as a separate charge inside column in 804-8xx payable to one of the lender doc prep law firms.

Response: We have seen this frequently from lenders who have not yet learned how to properly prepare their GFE - so failed to include the fee for preparation of loan documents in their Block 1 estimate, don't want to breach the 0% tolerance for that line - and don't want to "eat" the fee.

Collecting the fee for preparation of legal documents on an additional line in the 800 series does not agree with the RESPA guidelines.

However, if the settlement agent has written instructions from the lender to collect the fee for preparation of loan documents inside the column on a line higher than 808 – question the lender and if they are adamant, document the file and follow the lender instructions to get the loan closed/funded - even though it is against the FAQs issued by HUD.

We had a lender today require the loan doc prep fee (from a specific large doc prep law firm) be shown IN THE COLUMN. This lender’s position is that in Texas the lender is required to have an attorney prepare and review the docs and this is how they show compliance. Yes, we have sent them the FAQs. But this lender is a behemoth and little-ole-us is not going to change their minds!

And again today, more instructions from the same large doc prep law firm - representing a different lender and still requiring their doc prep fee in the column and requiring certain loan fees be in Section 1300. Clearly the doc prep law firm, not the lender, is the misinformed and is passing on the misinformation to the various lenders they represent. Can someone please call this firm and tell them they are wrong!!!!

Response: If the written instructions from the lender instruct you to collect this fee from the borrower in addition to the 801/802/803 charge - follow the instructions. BUT KNOW that what they are requiring is not compliant with RESPA regulations, which specify that it is to be included in the lender's "own charge" and then disclosed outside the column if required by state law. At some point they will be told . . . . .

Document Preparation – Documents Other Than Loan Documents

In regard to the attorney/doc preparation fee: Where would we put the fees charged to the seller for curative docs (deed and release)? Would we show that in the 800 section of the HUD or the 1100, 1300 section of the HUD?

Response: In a purchase transaction, the fees for preparing the Deed and curative documents are customarily seller expenses in Texas and would not be disclosed on the GFE. On the HUD-1 the fees would be collected – in the Seller’s column – on an additional line in the 1100 series and handled in the same manner as in the past. In a loan only transaction, the fees for preparing curative documents should be included in the Block 4 estimate on the GFE and in the Line 1101 charge in the borrower’s column on the HUD-1.



If we are supposed to put attorney fees in the origination charges, Block 1, then what type of attorney fees would be included in Block 4?

Response: Attorney fees for services performed on behalf of the loan originator for document preparation/review must be included in Block 1 of the GFE. Attorney fees for services performed on behalf of the title company for title-related services would be included in Block 4.

Reference: HUD FAQ Document, GFE-Block 1, # 6 and Block 4, #6 (Page 26 in the 01/28/10 version)

Attorney Fees – for Something Other than Document Preparation

If the transaction is being handled by an attorney that charges a fee to the parties for reviewing and explaining the documents, does the lender need to disclose this fee in the GFE. It's not a doc prep fee.

Response: If the borrower chooses to have optional legal counsel for his personal benefit, it would not be part of the lender's GFE estimate - and would be collected from the borrower - in the column - on an additional line in the 1100 series.

To expand on and address all types of fees that might be charged by attorneys:

• Loan Doc Prep and legal documents required by the investor and having nothing to do with title requirements (such as trust and leasehold opinions, shared well agreements) should be included in GFE Block 1/HUD Line 801 – and must then be also itemized outside the column in the 800 series on the HUD-1.

• Doc prep for title work and title curative will vary on the type of transaction.

o For a purchase in Texas, the customary charge for preparing deeds and releases goes to the Seller. It is not part of the GFE and is charged to the Seller in the column on an additional line in the 1100 Series, as in the past.

o If it is a refi, home equity (or other “loan only” transaction), attorney doc prep charges for releases, curative, etc. should be shown in GFE Block 4/HUD Line 1101 and must then be also itemized outside the column on an additional line in the 1100 series.

• If the attorney is independently hired to assist the borrower or the seller, that charge will not appear on the GFE and will be a direct charge in the column of the appropriate party on an additional line in the 1100 Series.

• Premium splits to an attorney for “closing the transaction” are included in the premiums in GFE Block 4/HUD Line 1101 and GFE Block 5/HUD Line 1103 and must be deducted from the amount on HUD Line 1107 and disclosed outside the column on an additional line in the 1100 Series.

There are a number of references related to these subjects in the RESPA rule and/or the HUD FAQ Document.



“Title Services” – Escrow Fee – Pass-Through Fees – Etc.

It is my understanding that if the borrower chooses the title company for closing (especially refi's ) that the title insurance goes into GFE Block 6. Is that correct?

Response: According to the Appendix C instructions for preparing a GFE, Title Services and lender’s policy are always in Block 4 and owner’s title policy is always in Block 5. It doesn’t matter whether the lender selects the title company or allows the borrower to shop. The instructions for Block 6 specifically exclude title services.

Lenders are requesting the charge for Owner’s Policy be placed in the “charges that can change” bucket and the Lender’s Policy in the 10% bucket. Their justification is that we are not on their provider list so the OP should not be listed in the 10% Bucket with Title Services and Lender’s Policy. Can we split the OP in one bucket and the Lender’s Policy in another

Response: It is "all or none" in regard to title services - both lender's policy and owner's policy – if provided by the same agent. If the title agent/settlement agent is on the lender's provider list - the charges for both go in the 10% bucket - if not on the list - the charges for both go into the unlimited tolerance (these charges can change) bucket.

The owner’s policy and loan policy are generally issued simultaneously by the same provider; therefore, they are either in the 10% tolerance bucket if the title agent/company was on the service provider list or in the unlimited tolerance bucket if the title agent/company was NOT on the service provider list. The policies remain together in the same bucket.

In Texas, even if the settlement agent and title agent are different entities, typically only one of them is actually selected by the lender or borrower and that provider and coordinates the other service – so again, the charges will be in the same tolerance bucket depending on whether the provider arranging for the services is or is not on the list provided by the lender to the borrower.

We will note that in some states, not Texas, there may be a title company and an escrow company – two separate companies that perform separate functions that could ultimately have fees for conducting the settlement and title insurance in separate tolerance buckets. Refer to the reference below for further guidance on a situation such as this.

Reference: HUD FAQs - GFE Written List of Providers – FAQ #8 (Pages 13-15 of the 01/28/10 version).

One lender requested that we show the owners title policy in the 1300 section because they did not require it and it was optional – at the borrower’s choice. First of all, my understanding is that the owner’s policy (and loan policy also) ALWAYS goes in the 1100 section regardless of whether the borrower selects from the lender’s list or not. Please confirm. AND, I don't think the owner’s policy can be split from the loan policy as to bucket. Please confirm.

Response: You are correct on both counts. RESPA regulations only allow entries in the 1300 series if there is not a specified series or line for the fees. In the case of the owner's policy, it must always be on Line 1103 on Page 2.

Whether it is in the 10% bucket on Page 3 or in the "these charges can change" bucket is determined by whether the title agent was on the list of identified providers given to the borrower by the lender with the GFE. If the same title agent is issuing the owner's and loan policies, they will both always be in the same bucket on Page 3.

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I'm confused that in Texas we have been directed to put our escrow fee on line 1102. My thought was we were not allowed to charge a closing/settlement fee in Texas...unless a 3rd party actually does the closing and charges a fee.

Response: Previous TDI audit guidelines required that Texas title agents use a line other than Line 1102 on the HUD-1 to collect any escrow fee. In keeping with the new RESPA regulations, new TDI audit guidelines instruct the settlement agent to use Lines 1101 to collect the escrow fee from a borrower and Line 1102 to collect the escrow fee from a Seller.

These guidelines also require the amount of Line 1101 that represents the borrower’s portion of the escrow fee be itemized outside the column on Line 1102. TDI audit guidelines require this disclosure – outside the column – on Line 1102 regardless of whether the escrow fee is being paid to the settlement agent or to a third party.

We've always called our fee for handling the escrow/settlement an "Escrow Fee," but should we just conform and use Line 1102 with a roll-up into 1101?

Response: We will still be collecting an escrow fee; it will just be on a HUD Line that doesn't use that name. The borrower’s portion of the escrow fee is lumped with other fees – in the column – on Line 1101 and disclosed – outside the column on Line 1102 (in keeping with TDI audit guidelines). The seller’s portion of the escrow fee is collected from the Seller – in the column – on Line 1102.

Can the presenters please go over the treatment of the guaranty fee for Owner's and Loan policies?

Response: The $5 Texas Policy Guaranty Fee for the loan policy must be lumped into the borrower’s charge on Line 1101. The $5 Texas Policy Guaranty Fee for the owner’s policy must be lumped into the charge for the owner’s policy on Line 1103. Because these fees are paid to a third party from escrow, there must be a disclosure – outside the column on Line 1109 or higher. The Texas Department of Insurance audit guidelines indicate that there may a single disclosure of $10 for both fees; or two separate disclosures of $5 each; the payee is either the Texas Guaranty Association or TTIGA (Texas Title Insurance Guaranty Association).

If the settlement agent is not the title agent, and 100% of the premium is paid to the title agent at closing, does the settlement agent still have to break down the premium split between Agent and underwriter on lines 1107-1108 of the HUD1?

Response: It is our understanding that the settlement agent must disclose the agent/underwriter split on Lines 1107 and 1108, regardless of whether or not the settlement agent is also the title agent.

Agents paying other agents – where to show; inside or outside the column?

Response: If the title agent is paying another agent a portion of the title insurance premium (whether a percentage or flat fee) for “closing the transaction” or “title evidence” or if the title agent is paying an attorney for “closing the transaction,” the payment must be disclosed – outside of the column – on Line 1109 or higher and should include the name of the Payee, the amount (expressed in dollars) and the service for which the fee is being paid. The amount of this payment must also be deducted from the amount retained by the Agent on Line 1107.

Reference: • HUD FAQs, 01/28/10 version, Page 51, HUD-1 – 1100 Series - #22 • TDI Audit Guidelines



Some of our lenders are saying that their underwriters are requiring itemization (outside the column) of admin fees (i.e., copies, courier fees, etc.) included in the lump sum on Line 1101, but doesn't that defeat the purpose of the lumping into 1101? Should we disclose or not?

Response: HUD has been extremely plain in their instructions to the settlement agent with regard to this issue. Fees paid to the settlement agent should not be separately itemized outside the column, only fees paid to third parties should be itemized.

The Texas Department of Insurance in its audit guidelines does not require a breakdown of the Line 1101 fee on the HUD-1 (nor do they require a breakdown of the individual charges for title endorsements) , although they do require the settlement agent to maintain a record of the breakdown in the closing file for audit purposes.

If the lender needs a breakdown of the component fees making up the Line 1101 charge to the borrower, this could be accomplished by a separate Fee Sheet from the settlement agent to the lender.

References: • RESPA, Reg X, Appendix A to Part 3500, Instructions for Completing HUD-1 – General Instructions • RESPA, Reg X, Appendix A to Part 3500, Instructions for Completing HUD-1 – Lines 1100 – 1108 • HUD FAQs, 01/28/10 version, Page 47, HUD-1 – 1100 Series - #2 and #3 • HUD FAQs, 01/28/10 version, Page 49-50, HUD-1 – 1100 Series - #17

If the cost of an Owner’s Title Policy is paid by the Buyer does it have to be disclosed on the GFE and if so, where?

Response: Regardless of who will ultimately pay for the owner’s policy, the estimated cost must be disclosed in Block 5 of the GFE and the charge collected from the borrower in the column on Line 1105 of the HUD-1.

What should the lender do if they failed to disclose the cost of an Owner’s Policy on the GFE for a purchase money loan?

Response: On the comparison chart on Page 3 of the HUD-1, the GFE column for Block 5/Line 1103 will be zero and the HUD-1 column will contain the actual cost.

If the title agent is on the Lender’s Provider List, and the total of the items in the 10% tolerance bucket exceeds 10%, the lender must cure the breach.

If the title agent is not on the Lender’s Provider List, there is no consequence to the lender for failure to disclose the cost of optional owner’s coverage.

Doesn’t RESPA state that the customer is allowed to choose the title company?

Response: No, RESPA and the regulations do not mandate that a borrower be allowed to select the title company. The regulations do prohibit a seller from requiring a buyer to purchase title insurance from a specific title agent. The regulations also prohibit a lender from requiring a borrower to purchase title insurance from a title company affiliated with the lender.

References: • 12 USC Section 2608 - Title Companies; Liability of Seller • RESPA, Reg X, 3500.15(b)(2) – Affiliated Business Arrangements



On a construction loan which is also a purchase money transaction (M&M Lien on Improvements) and will be covered under RESPA does the estimated cost of an owner's title policy need to be included on the GFE?

Response: If the loan is partially for purchase money, we believe that the cost of optional owner’s title coverage should be included in Block 5 of the GFE.

If the owner elects to increase the coverage to include the cost of the immediately contemplated improvements, this would likely meet the criteria of a “changed circumstance” allowing the lender to issue a revised GFE with the increased estimate.

Our bank is located in Oklahoma and we often use Attorney Title Opinions instead of title insurance. Would the fee for the Title Opinion be listed under #4 Title services and lender’s title insurance? If so, would both the preliminary and final title opinions be listed there or would the preliminary be listed under #5 Owner’s title insurance and the final under #4 Title services and lender’s title insurance?

If they are not listed under #4 or #5 then would they be listed as #3 or #6?

Response: We believe that fees for title searches, title examinations, and title opinions would be “title services” and should be shown in Block 4 of the GFE. Both the preliminary and final title opinions would be “title services” and should be included in Block 4.

The cost of a title opinion would not be included in Block 5 of the GFE. RESPA regulations say that Block 5 only contains the cost of an owner’s title insurance policy and related endorsements.

Also, title services (such as but not limited to a title opinion) should not be included in Block 3 or 6 of the GFE because RESPA rules specifically say that title services must be excluded from those blocks.

Reference: RESPA, Reg X, Appendix C to Part 3500, Instructions for Completing the GFE – Blocks 3 – 6.

Manufactured Housing Transactions

On loans that have a mobile home title to be surrendered or transferred, what line does that fee go on?

Response: It is most likely that HUD would consider this type of fee to fall into the “title services” category because it would be required in order to transfer title and insure the results. It is a type of “curative matter.” That means it would be lumped into GFE Block 4 and HUD Line 1101. The lender is unlikely to be aware of these fees at the time the initial GFE is issued, so should be contacted when the fee is known so that that the lender can make a determination of “changed circumstances” and whether to issue a revised GFE with the increased estimate.



Surveys

Will surveys, in all circumstances (e.g. acquiring just because the borrower wants one vs. required because it's needed for title insurance purposes like need exact legal or to amend the survey clause), be shown in the 1300 section of the new HUD-1 and included in the 10% tolerance bucket?

Response: Survey charges are a somewhat tricky issue with these new RESPA guidelines. According to the actual Regulations, including Appendix A - the cost of surveys still belongs in the 1300 series of the HUD-1, regardless of the purpose for the survey.

HUD in their FAQ document clouded the issue, however, by describing instances in which the charge for the survey would appear variously in the 800, 1100 or 1300 series.

It is the general opinion among attorneys advising lender clients in Texas (not the universal opinion, but the opinion of the majority) that

• if the survey is necessary because the lender requires "enhanced" lender title insurance (by amending the area and boundary exception) then it is a lender requirement and should be shown in Block 6 on the GFE and roll into Line 1301 on the HUD-1;

• if the survey is necessary to resolve a title matter - shown as a Requirement on Schedule C of a Commitment - then it can be construed as a title requirement and included in GFE 4 / Line 1101 on the HUD-1 (according to the FAQs); and

• finally, if the lender does not require enhanced lender coverage and the title agent does not require a survey to resolve a title matter, but the buyer wants a survey for his own purposes, it will not appear on the GFE and will be placed on an additional line in the 1300 series of the HUD-1.

Whether the cost of the survey appears in the 10% tolerance bucket or the bucket of charges that can change on Page 3 of the HUD-1 depends on whether it is either required by the lender (or title agent) - and, if so, whether the surveyor who performed the survey is on the list of service providers given to the borrower by the lender. If the surveyor used is on the list - 10% tolerance bucket; if not - "charges can change" bucket.

If the borrower simply wanted the survey for his own purposes - it does not appear on the GFE, nor in the comparison charge on Page 3.

Please clarify your statement that surveys are not ordinarily required by title companies. In rural settings, fences move, mobile homes are moved on and off property, boundary line issues and encroachments of improvements are all reasons to require surveys.

Response: In Texas, a survey is required by law to give the lender enhanced loan policy coverage by amendment of the area and boundary exception – but not required simply to issue the loan policy.

So - if the survey is for the purpose of giving "enhanced" title insurance coverage to the lender - we consider that survey to be "required" by the lender. This would cover the situation of the fences moving or encroachments, etc.

If, however, the survey is for the purpose of curing a title defect - then it would be "required" by the title agent. A boundary line dispute might be such an issue - or a legal description that is incomplete - or where multiple descriptions conflict, etc.



Homeowner’s Insurance

If we do not collect for homeowner’s insurance at closing, do we enter a charge amount?

Response: On a home equity loan (or other “loan only” transaction) the borrower probably already has insurance. If it is unknown at the time the GFE is issued whether the existing coverage is adequate, the GFE should include an estimate of the cost for new or revised coverage.

If the insurance is already determined to be adequate and the borrower does not need to pay any additional premiums for changes in coverage, then there would not be any insurance premium estimate shown on the GFE and no premium would be collected (or shown as POC).

If the borrower does need to obtain and pay for increased or changed coverage to comply with loan or investor requirements then the additional premium would be collected in the column on line 1002 of the HUD-1. If the borrower paid the premium for this increase or change outside of closing the amount would be shown outside the column as POC on line 1002 of the HUD-1.

Reference: HUD FAQ Document, GFE Block 11, Question #1 (Page 31 of the 01/28/10 version)

Government Recording Charges

With regard to the estimate for Government Recording Charges on the GFE, if there are riders to be recorded with the mortgage document and the bank was unaware of these when the GFE was issued, is this a “changed circumstance” that would allow the bank to issue a revised GFE showing an increase in the estimated cost of recording?

Response: That is a good question. The general presumption will probably be that the lender should be familiar with what Riders will be attached to the loan document for each type of loan - so that when the application is for a type of loan that requires riders, the cost of recording the document including the Riders should be accurately estimated.

Lenders now need to become familiar with required loan documentation in order to make accurate GFE estimates.

Earnest Money Deposit

Where is an earnest money deposit disclosed?

Response: Earnest money is not disclosed on the GFE.

On the HUD-1, the buyer is credited with any earnest money deposit on Page 1, Line 201. Any portion of the earnest money deposited directly with the seller is charged to the seller on Page 1, Line 501.

Handling Items Paid Outside Closing (POC) by Borrower

A lender writes - In most instances we collect a fee upfront for the appraisal. If we collect less than the actual fee, there is an additional amount to be collected at closing; if we collect more than the actual fee, there is an amount to be refunded to the borrower. Please let us know the best and proper way to show the POC fee, and the amount to be collected or refunded.

Response: On the GFE, the estimated cost of the appraisal should be shown on Block 3.

On Page 2 of the HUD-1, all payments to “third parties” that were estimated on the GFE must be



disclosed. If any of these fees were paid in advance by the borrower they must be itemized outside the column – with the notation POC-B.

Items collected at closing and items shown as POC-B amounts are carried forward to the applicable line and section of the comparison chart on Page 3 of the HUD-1. If an additional amount is collected at closing, the POC-B amount and the additional amount are added together and entered as a single number on the comparison chart.

The HUD FAQs do not address the situation where the amount POC was in excess of the amount of the actual charge. Our suggestion is that only the actual charge be shown – outside the column as POC – on Page 2 of the HUD-1. The overpayment should be shown as a credit to the buyer on Page 1, i.e. “Refund of prepaid fees.”

Reference: HUD FAQ Document, 01/28/10 version, HUD-1 Page 3 – Page 54, #3.

VA Loans – and Seller-Paid Borrower Costs

Please verify how we are supposed to show “Seller Paid Concessions “on a VA loan.

Response: The lender has to determine what charges belong on the GFE, since the closing agent is not involved in that process. See the reference below for how the lender must make that determination.

Then, the items shown on the GFE should appear as borrower charges on page 2 of the HUD-1, and any seller credits for payment of those charges should be reflected on page 1 of the HUD-1 as a credit to the borrower, either from the Seller or some other party. See the reference below for details.

References: • HUD FAQ Document, GFE – Seller paid items(Page 11 of the 01/28/10 version) • HUD FAQ Document, HUD-1 – Seller-paid items (Page 42 of the 01/28/10 version)

I just got off the phone with my compliance office. They said that on a VA loan all unallowable fees need to be shown in the sellers column and the rest of the seller paid fees need to be itemized on the Addendum to the HUD, but there should be not lump sum credit on page 1.

Currently, it appears to be the position of lenders that because the Veterans' Administration is a governmental entity, their regulations can be treated as if they are a federal law that supersedes the RESPA regulations adopted by HUD.

Consequently, their position is that if the VA does not allow a buyer/borrower to pay certain fees, those fees fall into the category of "fees customarily paid by the Seller" and are not, therefore, disclosed on the GFE and may be charged to the Seller in the column on the GFE.

The settlement agent is not in a position to know what fees the lender placed in this category and, therefore, excluded from the GFE. It is appropriate for the lender to give you a list of these fees - to enable you to charge them to the Seller in the column on Page 2 of the HUD-1. Hold out for this!

(By the way - It is our understanding that VA agrees with HUD that there can be a lump sum credit on Page 1. It is also our understanding that VA is not the one who is requiring fees to be left off the GFE and moved over the seller side. If they see unallowables on the buyer side - they will be looking for corresponding credit on Page 1.)

With regard to the fact that the contract may call for a lump sum contribution from the seller to the buyer, with a description of how this contribution is to be applied - going first to unallowables, etc. - you must (once you have the list from the lender) subtract the amount of the "unallowable" fees from the



lump sum - since you are directly charging those items to the seller - and then on Page 1 give the buyer the remainder of the credit, providing the fees charged to the buyer equal or are greater than the remainder. In other words - the buyer is eligible to receive the remainder of the credit from the seller (unless the lender requires the parties to revise the contract) and this should be done with a credit on Page 1.

According to RESPA regulations - and in the absence of actual VA regulations to the contrary - you should be able to represent this remaining amount as a lump sum credit on Page 1. If the lender insists - you can - in the description of the lump sum credit - list the line items of the fees included in the lump sum. This seems silly - but we can do that to accommodate the lender. You just start with fees in the 800 series - then 900 - then 1100 - then 1200 - then 1300 - and, if there is any money left - the 1000 series.

If this lender absolutely requires you to list these fees out one at a time - which of course would have to be on an Addendum since there won't be enough lines in the 200/500 series on Page 1 - carrying the total from the list back to Page 1 as - you got it - a lump sum credit - you will have to accede to their demands. It is not fair to the borrower to hold up closing and funding.

It is hopeful that at some time in the future we will be able to get all the lenders onto one page with regard to the new RESPA regulations.

Borrower Credits for Seller Closing Costs

If the buyer has agreed to pay all closing costs, including seller responsible costs, at closing, how should these borrower-paid seller costs be disclosed on the GFE and HUD-1?

Response: This one is a bit tricky as there is not yet any guidance from HUD on this issue, leaving it open to interpretation.

Our consensus is that a business decision will need to be made by the lender as to how to address this issue on the GFE – both for the situation in which the lender is aware of the Contract provisions at the time the initial GFE is issued – and when the lender becomes aware of the Contract provisions later in the loan process (a possible “changed circumstance”).

The possibility that seems to best follow the theory of the new regulations is that these costs – voluntarily assumed by the borrower – are not included on the GFE. At closing, they are collected from the seller – in the column – since they are “seller responsible” costs – and a credit is given to the Seller on Page 1 with a corresponding Page 1 charge to the Buyer.

Another possibility is that if the lender has the contract at the time the GFE is originally issued the known items such as deeds and releases should be included in the original estimate and may not later be added as a changed circumstance. Title curative work would be handled differently. If it is unknown at the time of GFE issuance but becomes known later, then it may be a changed circumstance. When this method is followed – inclusion of the “seller responsible” costs on the GFE, they must be collected from the borrower as part of the 1101 charge at closing. Even though disclosure of typical seller costs is not required under the rule, full disclosure of all fees being paid by borrower would most likely be considered for the benefit of the consumer. However, if disclosed on the GFE then these fees would be subject to the tolerance rules

For reference:

First look at the RESPA Definition of a GFE which is “an estimate of charges that borrower is likely to incur based on common practice and experience in the locality of the mortgage property.” From this definition, it is understood that only normal borrower costs, with the exception of the owner’s title policy,



must be reflected on the GFE.

RESPA FAQs - GFE-Seller paid items provides some further guidance.

FAQ #1 states “All charges typically paid by borrower must be disclosed on the GFE regardless of whether the charges will be paid for by the borrower, the seller or other party.”

FAQ #2 states “Charges that typically would not be charged to the borrower, but would be charged to another party such as a seller do not have to be included in the GFE…If there is a question about whether the borrower or seller is to pay for a particular settlement service, the charge for that service would be disclosed on the GFE.”

RESPA FAQs – HUD-1-Seller paid items

FAQ #2 states “The charge for any service which is disclosed on the borrower’s GFE is listed in the borrower’s column on the HUD-1. The amount charged to the borrower is offset by a credit in that amount in Lines 204-29 and by a charge to the seller in that amount in Lines 506-509 on page 1 of the HUD-1.”

Therefore it is reasonable to conclude based upon the above RESPA guidance that charges typically paid by seller (such as release of lien, deed preparation/recording and tax service fees, except the owner’s title policy) do not have to be disclosed on the GFE, regardless of whether the charges will be paid for by the seller, the borrower or other party; and such charges should be reflected in the seller’s column on the HUD-1 and offset by a credit in that amount to seller and charge to borrower on page 1 of the HUD-1 and not subject to any tolerance violations. However, this conclusion, even though logical, literal and reasonable, may not be a popular interpretation.

Loan Payoff Items and Real Property Taxes Due at Closing

On a “loan only” transaction, should we collect real property taxes due at closing – either current or delinquent - in the 1300 series?

Response: No. Real property taxes are a lien on the property and should be collected on Page 1 in the same manner as the payoff amounts for loans to be paid at closing.

On a refinance loan, can we include in the 800 series the interest and late charges due on the loan being paid off?

Response: No, all items payable in connection with the loan being refinanced (paid off) should be included in the Loan Payoff figure on Page 1 of the HUD-1 – and will not be included in any of the estimates on the GFE issued by the lender.

Real Estate Commission

In the 700 section, when you receive authorization to pay portions of the commission to third parties, do you just put the payee names or names and amount being paid?

Response: There has been no change in the TDI audit requirement (Bulletin 160) in regard to paying portions of the real estate commission to third parties. You must disclose the names, but not necessarily the amounts, on additional lines in the 700 series before the HUD-1 is signed by seller and buyer.





Page 3 of the HUD-1 – Comparison Chart

Lenders are asking us to reflect a negative % on the 10% tolerance line - can we refuse?

There is no regulation requiring entries on the 10% tolerance line if the total of the entries from the GFE is greater than the total of the entries from the HUD-1, so on this basis, you may choose to refuse. On the other hand, there is also nothing in the regulations to prohibit such an entry.

Why are lenders asking us to break down the Line 1301 charges on page 3?

Response: Line 1301 on Page 2 of the HUD-1 is a “roll-up” line composed of all required services for which the lender allowed the borrower to shop (except for title services and title policies, which must appear on Lines 1101 and 1103). Since it may contain multiple fees, each of was separately itemized by the lender in Block 6 of the GFE, it is important that these fees also be separately itemized in the HUD-1 column of the comparison chart so that the borrower will be able to compare the estimated fees with the actual fees.

After listening to the Webinar today on the GFE we have a question which I hope I can ask in a clear and concise manner. Page 3 of the HUD-1 shows 3 categories:

• Charges that CANNOT increase • Charges that cannot increase MORE THAN 10% • Charges that CAN change

It is my understanding from a statement in the Webinar that we need a list of providers from the lender to determine into which category on page 3 services for which the borrower was allowed to shop should be shown.

• If a service provider used IS on the list, the cost of that service is shown in the 2nd category on page 3 of the HUD – 10% tolerance bucket.

• If a service provider used IS NOTon the list, the cost of that service is shown in the 3rd category on page 3 of the HUD – “charges can change” or unlimited tolerance bucket.

If this is in fact correct, do we use the blank spaces in the 2nd and 3rd category of the HUD-1 to place the fees in the appropriate category?

Response: Yes. Use blank lines to disclose the estimated and actual charges for the items that might be in the 10% bucket or in the “unlimited” bucket depending on the provider used. Additional lines may be added, as needed.

What the Settlement Agent Needs to Prepare a HUD-1

Slide 9 gives "Suggestions on what to provide." This would be great but believe me the lenders are all over the place on this one. We have found that the majority of lenders are sending us a "Sample” or “Pro forma HUD." From the Sample HUD we can see into which buckets the lender says the fees belong and the exact loan terms. Do you see any reason why we need to require the GFE or the Service Provider List?

Response: We caution against just copying from a sample HUD provided by the Lender. HUD is still holding the settlement agent responsible for proper preparation of the HUD-1 and you will still be signing it to certify that it accurately represents the transaction.

You should require either a copy of page 2 of the GFE and the list of providers given to the borrower - or an affirmative statement in the instructions from the lender that "the following is an accurate



representation of the GFE given to the borrower" - followed by a line by line description of the items on the GFE and the list of providers.

You may, however, simply copy the loan terms from the lender’s “sample” HUD-1 onto the bottom portion of Page 3 because HUD has stipulated that the settlement agent does not have responsibility for obtaining or verifying this information.

Should the lenders provide the entire GFE to the Settlement Agent or just the 3rd page (as part of their instructions or at any point).

Response: The settlement agent does not need Pages 1 or 3 of the GFE to properly complete the HUD-1, only Page 2 and the list of providers.

HUD-1A

The TLTA-IBAT presentation specifically addressed HUD-1 forms, but the HUD-1A is used for 99% our in-house and title company closings, because our products are primarily for non-purchase transactions. Can you share how the title industry is documenting tolerance corrections/refunds for closings on the HUD-1A? It is not addressed, to my knowledge, by the reg or the Q&A.

Response: You are correct that we haven't spent much time focusing on the new HUD-1A. For the most part the regulations and the FAQs treat most of the sections of the HUD-1A in the same manner as the HUD-1.

But as you probably have noticed, there are no sections or lines in the HUD-1A that allow disclosing credits to the borrower for items estimated on the GFE but to be paid at closing by a third party.

The FAQs do provide some guidance on this matter. Essentially, the FAQs prohibit the use of the HUD-1A if the lender covers some or all of the settlement costs that were disclosed as payable by the borrower on the GFE. Prohibit may be too strong a word but if you read that particular FAQ carefully, it does state that if the HUD-1A is not appropriate you MUST use the HUD-1 form. I think this would definitely come into play if you are curing a breach of tolerance or giving a credit for some other purpose.

Reference: HUD FAQs, 01/28/10 version, HUD-1 General, Page 41, #11.

Breach of Tolerance – Cures

Are we as the closing office/title company responsible for making sure the tolerance is cured by the lender?

Response: No, the title agent has no responsibility to assure that a lender cures a breach of tolerance - and the lender has up to 30 days post-closing to make the cure.

Slide 115 under Cure Timeframe - "within 30 calendar days of closing and revised HUD1 issued." If the lender cures the breach themselves, outside of closing, we don't need to require that they tell us and that we issue a revised HUD - do we? If the lender wants to cure it after closing, and wants to handle it themselves, Godspeed!

Response: If the lender cures after closing and does not contact the settlement agent, you have no responsibility. If, however, the lender cures after closing and requests a revised HUD-1, you must work with them to prepare and deliver the revised HUD-1. The problem in this scenario is that HUDs FAQs about how to do a revised HUD after closing are not very good - and can't be followed. Hopefully, they will all want to cure at closing . . . .



How do we show a tolerance cure on pages 2 and 3 of the HUD-1?

Response: A breach of tolerance may be cured by the lender paying a charge directly, in which case the item(s) would be disclosed – outside the column – as POC-L and would not be carried forward to Page 3, thereby reducing the amount in the HUD-1 column on the tolerance chart.

Alternately, a breach of tolerance may be cured by the lender giving the borrower a credit on Page 1, with the description clearly indicating that the credit is for the purpose of “tolerance cure”, in which case the amount of the credit is carried forward to Page 3 as a negative number, reducing the amount in the HUD-1 column on the tolerance chart.

When a bank closes and funds a loan and later an error is found by the bank compliance department, can the bank issue a revised GFE (re-disclose) and compile a new HUD-1 within the 30 day period in lieu of refunding the amount of the error to the borrower?

Response: No. The Lender has to cure the breach. The questioner does not go into detail as what the error is but we think once the closing happens, very few changes can take place. According to the FAQs, a revised GFE cannot be issued “at the closing table.” We think this pretty much excludes issuance of a revised GFE after closing.

Yield Spread Premium – Payment to Broker

I was hoping that the 2010 changes would require the Lender to pay the Broker directly; however, that is not happening. We are being instructed by the lender to pay the broker the YSP out of the amount in Line 803. How do we do this and comply with both HUD and TDI? HUD specifically does not want the YSP shown on the HUD-1, but TDI requires that we disclose all parties that we are paying.

Response: We were pretty sure that they (lender and broker) would want us to continue to cut the broker's check at funding.

Our recommendation is go ahead and follow the lender instructions. This isn't money coming from either seller or buyer - so failure to disclose on the HUD-1 should not be an issue, as long as you have appropriate written instructions from the lender.

To meet TDI Audit guidelines, you need to continue to complete the Form T-63, although it refers to a POC item on the HUD, since it hasn't been updated since the regulations changed.

Now that we have lumped and dumped the loan broker’s fee into line 801, should we prepare a T-63 for payees out of that amount?

Response: Yes - if you are paying any amount from the lender’s 801/802/803 directly to a third party, although it is no longer disclosed as POC on the HUD-1, you must still prepare a Form T-63 for your file for TDI audit purposes.

Our guess is that the T-63 form will be updated at the next hearing to match the new HUD guidelines about not showing POC in regard to 801/802/803 items on the HUD-1.



Special Information Booklet

Does the consumer have to sign stating they received a copy of the Special Information Booklet on this new form?

Response: The RESPA regulations do not contain a requirement for the borrower to sign anything to indicate receipt of the Special Information Booklet. In fact, the regulations allow the booklet to be delivered to the borrower by mail.

Applicability of RESPA

Previously Loans on property of 25 acres or more were not subject to RESPA requirements. Are these loans now covered under the new Good Faith Requirements?

Response: A loan on property of 25 acres or more is exempt from RESPA and does not, therefore, require a Good Faith Estimate to be delivered to the borrower. The details on exemptions from RESPA are included at the end of this document.

Does it make a difference if the loan is considered a “higher priced loan”.

Response: Higher Priced Mortgage Loans (HPML) is a Regulation Z (truth-in-lending) issue and has no effect on whether or not a loan is exempt from RESPA.

Regulation Z and RESPA (Regulation X) are two entirely separate rules.

If the Lender delivers a GFE to the borrower on a construction loan that is NOT covered under RESPA will the Lender be held accountable for any compliance violations. (The reason to provide the GFE when not required would be for consumer information purposes only.)

Response: If the transaction is exempt from RESPA the lender would not be held accountable under RESPA, but providing the new GFE if it is not required could cause other legal or regulatory problems, not to mention customer complaints.

We strongly advise that lenders do not provide the new GFE if the loan is not subject to RESPA and simply provide a separate breakdown of costs for the borrower’s information. If the transaction is exempt from RESPA the detailed information printed on the new GFE could mislead the borrower regarding the laws and regulations that govern the transaction. Further, if the lender provides a new GFE on a transaction they know to be exempt from RESPA, and the lender does not intend to comply with the various provisions and requirements noted on the GFE, providing the GFE could potentially be considered an unfair or misleading trade practice under various consumer protection laws or regulations.

Reference Materials

TDI Guidelines - http://www.tdi.state.tx.us/title/titleaud.html

Go here to download the Audit Guidelines posted by the Texas Department of Insurance.

HUD-RESPA Website - http://www.hud.gov/offices/hsg/ramh/res/respa_hm.cfm

Go here to download the most current version of HUD’s FAQs – as well as access the test of the Federal Regulation itself, including Appendix A – Instructions for preparing the HUD-1 and Appendix C – Instructions for preparing the GFE.

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Applicability of RESPA Regulation X, 24 CFR 3500.2 Definitions

(a) Statutory terms. All terms defined in RESPA (12 U.S.C. 2602) are used in accordance with their statutory meaning unless otherwise defined in paragraph (b) of this section or elsewhere in this part.

(b) Other terms. As used in this part:

Dealer means, in the case of property improvement loans, a seller, contractor, or supplier of goods or services. In the case of manufactured home loans, ``dealer'' means one who engages in the business of manufactured home retail sales.

Federally related mortgage loan or mortgage loan means as follows:

(1) Any loan (other than temporary financing, such as a construction loan): (i) That is secured by a first or subordinate lien on residential real property, including a

refinancing of any secured loan on residential real property upon which there is either: (A) Located or, following settlement, will be constructed using proceeds of the loan,

a structure or structures designed principally for occupancy of from one to four families (including individual units of condominiums and cooperatives and including any related interests, such as a share in the cooperative or right to occupancy of the unit); or

(B) Located or, following settlement, will be placed using proceeds of the loan, a manufactured home; and

(ii) For which one of the following paragraphs applies. The loan: (A) Is made in whole or in part by any lender that is either regulated by or whose

deposits or accounts are insured by any agency of the Federal Government; (B) Is made in whole or in part, or is insured, guaranteed, supplemented, or assisted

in any way: (1) By the Secretary or any other officer or agency of the Federal

Government; or (2) Under or in connection with a housing or urban development program

administered by the Secretary or a housing or related program administered by any other officer or agency of the Federal Government;

(C) Is intended to be sold by the originating lender to the Federal National Mortgage Association, the Government National Mortgage Association, the Federal Home Loan Mortgage Corporation (or its successors), or a financial institution from which the loan is to be purchased by the Federal Home Loan Mortgage Corporation (or its successors);

(D) Is made in whole or in part by a ``creditor'', as defined in section 103(f) of the Consumer Credit Protection Act (15 U.S.C. 1602(f)), that makes or invests in residential real estate loans aggregating more than $1,000,000 per year. For purposes of this definition, the term ``creditor'' does not include any agency or instrumentality of any State, and the term ``residential real estate loan'' means any loan secured by residential real property, including single-family and multifamily residential property;



(E) Is originated either by a dealer or, if the obligation is to be assigned to any maker of mortgage loans specified in paragraphs (1)(ii) (A) through (D) of this definition, by a mortgage broker; or

(F) Is the subject of a home equity conversion mortgage, also frequently called a ``reverse mortgage,'' issued by any maker of mortgage loans specified in paragraphs (1)(ii) (A) through (D) of this definition.

(2) Any installment sales contract, land contract, or contract for deed on otherwise qualifying residential property is a federally related mortgage loan if the contract is funded in whole or in part by proceeds of a loan made by any maker of mortgage loans specified in paragraphs (1)(ii) (A) through (D) of this definition.

(3) If the residential real property securing a mortgage loan is not located in a State, the loan is not a federally related mortgage loan.

Lender means, generally, the secured creditor or creditors named in the debt obligation and document creating the lien. For loans originated by a mortgage broker that closes a federally related mortgage loan in its own name in a table funding transaction, the lender is the person to whom the obligation is initially assigned at or after settlement. A lender, in connection with dealer loans, is the lender to whom the loan is assigned, unless the dealer meets the definition of creditor as defined under ``federally related mortgage loan'' in this section. See also Sec. 3500.5(b)(7), secondary market transactions.

RESPA Regulation X, 24 CFR 3500.5 Coverage of RESPA

(a) Applicability. RESPA and this part apply to all federally related mortgage loans, except for the exemptions provided in paragraph (b) of this section.

(b) Exemptions.

(1) A loan on property of 25 acres or more.

(2) Business purpose loans. An extension of credit primarily for a business, commercial, or agricultural purpose, as defined by Regulation Z, 12 CFR 226.3(a)(1). Persons may rely on Regulation Z in determining whether the exemption applies. [See below for applicable section of Regulation Z relative to business purpose loans*.]

(3) Temporary financing. Temporary financing, such as a construction loan. The exemption for temporary financing does not apply to a loan made to finance construction of 1- to 4-family residential property if the loan is used as, or may be converted to, permanent financing by the same lender or is used to finance transfer of title to the first user. If a lender issues a commitment for permanent financing, with or without conditions, the loan is covered by this part. Any construction loan for new or rehabilitated 1- to 4-family residential property, other than a loan to a bona fide builder (a person who regularly constructs 1- to 4-family residential structures for sale or lease), is subject to this part if its term is for two years or more. A "bridge loan" or "swing loan" in which a lender takes a security interest in otherwise covered 1- to 4-family residential property is not covered by RESPA and this part.

(4) Vacant land. Any loan secured by vacant or unimproved property, unless within two years from the date of the settlement of the loan, a structure or a manufactured home will be constructed or placed on the real property using the loan proceeds. If a loan for a structure or manufactured home to be placed on vacant or unimproved property will be secured by a lien on that property, the transaction is covered by this part.



(5) Assumption without lender approval. Any assumption in which the lender does not have the right expressly to approve a subsequent person as the borrower on an existing federally related mortgage loan. Any assumption in which the lender's permission is both required and obtained is covered by RESPA and this part, whether or not the lender charges a fee for the assumption.

(6) Loan conversions. Any conversion of a federally related mortgage loan to different terms that are consistent with provisions of the original mortgage instrument, as long as a new note is not required, even if the lender charges an additional fee for the conversion.

(7) Secondary market transactions. A bona fide transfer of a loan obligation in the secondary market is not covered by RESPA and this part, except as set forth in section 6 of RESPA ( 12 USC 2605) and §3500.21. In determining what constitutes a bona fide transfer, HUD will consider the real source of funding and the real interest of the funding lender. Mortgage broker transactions that are table-funded are not secondary market transactions. Neither the creation of a dealer loan or dealer consumer credit contract, nor the first assignment of such loan or contract to a lender, is a secondary market transaction (see §3500.2.)

TILA Regulation Z at 12 CFR 226.3

*Regulation Z is used to determine the business purpose exemption for RESPA

This regulation does not apply to the following

(a) Business, commercial, agricultural, or organizational credit.

(1) An extension of credit primarily for a business, commercial or agricultural purpose.

Official Staff Interpretation

12 CFR 226.3(a)

Business, commercial, agricultural, or organizational credit.

1. Primary purposes. A creditor must determine in each case if the transaction is primarily for an exempt purpose. If some question exists as to the primary purpose for a credit extension, the creditor is, of course, free to make the disclosures, and the fact that disclosures are made under such circumstances is not controlling on the question of whether the transaction was exempt.

2. Factors. In determining whether credit to finance an acquisition -- such as securities, antiques, or art -- is primarily for business or commercial purposes (as opposed to a consumer purpose), the following factors should be considered:

• The relationship of the borrower's primary occupation to the acquisition. The more closely related, the more likely it is to be business purpose.

• The degree to which the borrower will personally manage the acquisition. The more personal involvement there is, the more likely it is to be business purpose.

• The ratio of income from the acquisition to the total income of the borrower. The higher the ratio, the more likely it is to be business purpose.

• The size of the transaction. The larger the transaction, the more likely it is to be business purpose.

• The borrower's statement of purpose for the loan.

Examples of business-purpose credit include:



• A loan to expand a business, even if it is secured by the borrower's residence or personal property.

• A loan to improve a principal residence by putting in a business office. • A business account used occasionally for consumer purposes.

Examples of consumer-purpose credit include: • Credit extensions by a company to its employees or agents if the loans are used

for personal purposes. • A loan secured by a mechanic's tools to pay a child's tuition. • A personal account used occasionally for business purposes.

3. Non-owner-occupied rental property. Credit extended to acquire, improve, or maintain rental property (regardless of the number of housing units) that is not owner-occupied is deemed to be for business purposes. This includes, for example, the acquisition of a warehouse that will be leased or a single-family house that will be rented to another person to live in. If the owner expects to occupy the property for more than 14 days during the coming year, the property cannot be considered non-owner-occupied and this special rule will not apply. For example, a beach house that the owner will occupy for a month in the coming summer and rent out the rest of the year is owner-occupied and is not governed by this special rule. See Comment 3(a)-4, however, for rules relating to owner-occupied rental property.

4. Owner-occupied rental property. If credit is extended to acquire, improve, or maintain rental property that is or will be owner-occupied within the coming year, different rules apply:

• Credit extended to acquire the rental property is deemed to be for business purposes if it contains more than 2 housing units.

• Credit extended to improve or maintain the rental property is deemed to be for business purposes if it contains more than 4 housing units. Since the amended statute defines dwelling to include 1 to 4 housing units, this rule preserves the right of rescission for credit extended for purposes other than acquisition.

Neither of these rules means that an extension of credit for property containing fewer than the requisite number of units is necessarily consumer credit. In such cases, the determination of whether it is business or consumer credit should be made by considering the factors listed in Comment 3(a)-2.

15 U.S.C. 1602(f) – Definitions and rules of construction

(f) The term “creditor” refers only to a person who both (1) regularly extends, whether in connection with loans, sales of property or services, or otherwise,

consumer credit which is payable by agreement in more than four installments or for which the payment of a finance charge is or may be required, and

(2) is the person to whom the debt arising from the consumer credit transaction is initially payable on the face of the evidence of indebtedness or, if there is no such evidence of indebtedness, by agreement. Notwithstanding the preceding sentence, in the case of an open-end credit plan involving a credit card, the card issuer and any person who honors the credit card and offers a discount which is a finance charge are creditors. For the purpose of the requirements imposed under part D of this subchapter and sections 1637 (a)(5), 1637 (a)(6), 1637 (a)(7), 1637 (b)(1), 1637 (b)(2), 1637 (b)(3), 1637 (b)(8), and 1637 (b)(10) of this title, the term “creditor” shall also include card issuers whether or not the amount due is payable by agreement in more than four installments or the payment of a finance charge is or may be required, and the Board shall, by regulation, apply these requirements to such card issuers, to the extent appropriate, even though the requirements are by their terms applicable only to creditors offering open-end credit

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plans. Any person who originates 2 or more mortgages referred to in subsection (aa) of this section in any 12-month period or any person who originates 1 or more such mortgages through a mortgage broker shall be considered to be a creditor for purposes of this subchapter. The term “creditor” includes a private educational lender (as that term is defined in section 1650 of this title) for purposes of this subchapter.

Presenter and Panelists Ms. Christine Sisseck Dennis Schwartz & Assoc., Attorneys At Law [email protected]

Mr. Alan Jackson Dennis Schwartz & Assoc., Attorneys At Law [email protected]

Ms. Charlotte M. Meyer Robertson & Anschutz [email protected]

Ms. Janet S. Minke, CTIA Alliant National Title Insurance Company [email protected]

Mr. Charles H. Newman, III Beadles, Newman & Lawler [email protected]

Mr. Dennis Schwartz Dennis Schwartz & Assoc., Attorneys At Law [email protected]


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