Important Definitions
Important DefinitionsApplication The submission of a borrower's financial information in anticipation of a credit decision that includes:The borrower's nameThe borrower's monthly incomeThe borrower's social security number to obtain a credit reportThe property addressAn estimate of the value of the propertyThe mortgage loan amount soughtAny other information deemed necessary by the loan originatorChanged Circumstances A changed circumstance includes the following:Acts of God, war, disaster, or other emergencyInformation particular to the borrower or transaction that was relied on in providing the GFE and that changes or is found to be inaccurate after the GFE has been provided. This may include:Information about the credit quality of the borrowerThe amount of the loanThe estimated value of the propertyAny other information that was used in providing the GFENew information particular to the borrower or transaction that was not relied on in providing the GFE.Other circumstances that are particular to the borrower or transaction, including:Boundary disputesThe need for flood insuranceEnvironmental problemsNot Changed CircumstancesNone of the information collected by a loan originator prior to issuing the GFE may later become the basis for a “changed circumstance,” unless the loan originator can demonstrate that:There was a change in the particular information or that it was inaccurate.He or she did not rely on that particular information in issuing the GFE. Federally Related Mortgage LoanA federally related mortgage loan is any loan (other than temporary financing, such as a construction loan) 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:Located or, following settlement, will be constructed using proceeds of the loan, a one to four family dwellingLocated or, following settlement, will be placed using proceeds of the loan, a manufactured homeANDFor which one of the following applies. The loan: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 GovernmentIs another type of government guaranteed or government insured loanRequired UseRequired use means a situation in which a person must use a particular provider of a settlement service and the person must pay in whole or in part for the settlement service.Settlement ServiceSettlement service means any service provided in connection with a prospective or actual settlement, including, but not limited to, any of the following:Origination servicesMortgage broker servicesTitle servicesAttorney servicesDocument preparation, notarization, delivery, and recordationCredit reports and appraisalsInspectionsConducting of settlementsMortgage insuranceHazard, flood, or other casualty insurance or homeowner's warrantiesMortgage life, disability, or similar insurance if such insurance is required by the lender as a condition of the loanProperty taxes or other assessmentsReal estate agent or real estate broker servicesCoverageRESPA applies to all Federally Related Mortgage Loans (FLMLs) except:A loan on property of 25 acres or moreBusiness purpose loans (use Reg Z definition)Temporary financing, such as a construction loan, except the exemption does not apply to a loan made to finance construction of 1- to 4-family residential property if: The loan may be converted to permanent financing by the same lender Is used to finance transfer of title to the first user The lender issues a commitment for permanent financing, with or without conditionsThe construction term is for two years or moreA loan to purchase vacant land, 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. Any assumption in which the lender does not have the right expressly to approve a subsequent person as the borrower.Any loan conversion to different terms as long as a new note is not required.Bona fide transfer of a loan obligation in the secondary market.Special Information BookletGeneral RulesHUD’s Settlement Cost Booklet must be provided to applicants or placed in the mail no later than three business days after a loan applicant applies for a RESPA covered loan.The booklet is not required if the loan is denied within the three day period.You only need to provide the booklet to one applicant.ExceptionsThe booklet only needs to be provided when the purpose of the loan is to purchase a 1-4 family dwelling. The booklet does not need to be provided for the following types of loans:Home Equity Lines of Credit (even if the loan purpose is to purchase)RefinancingsSubordinate liensReproduction and ChangesThe booklet can be reproduced in any fashion, except:The booklet may not be made a part of a larger documentAll fonts used must be legibleThe text may not be changed except:Names, addresses and telephone numbers of the lender or others and similar information may appear on the cover, but no discussion of the matters covered in the booklet shall appear on the cover.The text may be translated into languages other than English.Good Faith EstimateGeneralThe lender must provide the Good Faith Estimate (GFE) no later than three business days after receipt of an application for a RESPA covered loan.The lender must provide the GFE to the loan applicant by hand delivery, by placing it in the mail, or, if the applicant agrees, by fax, e-mail, or other electronic means (E-sign rules apply).The lender is not required to provide the applicant with a GFE if, before the end of the 3-business-day period:The lender denies the applicationThe applicant withdraws the applicationA GFE is not required for a properly disclosed Home Equity Line of Credit.Permitted ChargesThe lender is not permitted to charge, as a condition for providing a GFE, any fee for an appraisal, inspection, or other similar settlement service. The lender may, at its option, charge a fee limited to the cost of a credit report. The lender may not charge additional fees until after the applicant has received the GFE and indicated an intention to proceed with the loan. If the GFE is mailed to the applicant, the applicant is considered to have received the GFE 3 calendar days after it is mailed, not including Sundays and the legal public holidays.Requesting Additional InformationThe lender is not permitted to require, as a condition for providing a GFE, that an applicant submit supplemental documentation to verify the information provided on the application.A borrower may voluntarily sign consents to verify employment, income, deposits, etc. prior to issuance of the GFE to facilitate the loan process.Availability of GFE TermsGeneralThe estimate of the charges and terms for all settlement services must be available for at least 10 business days from when the GFE is provided. (Lenders can extend this period)If the borrower does not express an intent to continue with the application within ten business days after the GFE is provided, the loan originator is no longer bound by the GFE.ExceptionsThe estimate for the following charges are excepted from the 10 day availability requirement: The interest rateCharges and terms dependent upon the interest rateAdjusted origination chargesPer diem interestContent and Form of GFEThe standard GFE form must be used.Only alterations listed in the GFE instructions and the FAQs are permitted.TolerancesThe following chart outlines the amount various settlement charges may exceed the amount disclosed on the GFE.ToleranceCharges0%The origination chargeWhile the borrower's interest rate is locked, the credit or charge for the interest rate chosenWhile the borrower's interest rate is locked, the adjusted origination chargeTransfer taxes (only required in some locations)10% (in aggregate)Lender-required settlement services, where the lender selects the third party settlement service providerLender-required services, title services and required title insurance, and owner's title insurance, when the borrower uses a settlement service provider identified by the lenderGovernment recording chargesBinding GFEThe loan originator is bound, within the tolerances allowed, to the settlement charges and terms listed on the GFE provided to the borrower, unless:A revised GFE is provided prior to settlement under certain allowable conditionsThe GFE expiresRevised GFEsDocumentationLoan originators must document the reason that a revised GFE was provided. Documentation must be retained for three years after settlementChanged CircumstanceA new GFE may be issued prior to settlement if changed circumstances result in: Increased costs for any settlement service A change in the borrower's eligibility for the specific loan terms identified in the GFE.A revised GFE must be provided within 3 business days of receiving information sufficient to establish changed circumstances. The revised GFE may increase charges for services listed on the GFE only to the extent that the changed circumstances affecting the loan actually resulted in higher charges.Borrower Request ChangesIf a borrower requests changes that change the settlement charges or the terms of the loan, the loan originator may provide a revised GFE to the borrower. A revised GFE must be provided within 3 business days of the borrower's request. The revised GFE may increase charges for services listed on the GFE only to the extent that the borrower-requested changes to the mortgage loan identified on the GFE actually resulted in higher charges.Interest Rate Dependent Charges and TermsIf the interest rate has not been locked, or a locked interest rate has expired, the charge or credit for the interest rate chosen, the adjusted origination charges, per diem interest, and loan terms related to the interest rate may change. When the interest rate is later locked, a revised GFE must be provided showing the revised interest rate-dependent charges and terms. The loan originator must provide the revised GFE within 3 business days of the interest rate being locked or, for an expired interest rate, re-locked. All other charges and terms must remain the same as on the original GFE.New Construction Home PurchasesIn transactions involving new construction home purchases, where settlement is anticipated to occur more than 60 calendar days from the time a GFE is provided, the loan originator may provide the GFE to the borrower with a clear and conspicuous disclosure stating that at any time up until 60 calendar days prior to closing, the loan originator may issue a revised GFE. If this disclosure is not provided, the loan originator cannot issue a revised GFE, unless there are qualifying changed circumstances.Curing ViolationsIf any charges at settlement exceed the charges listed on the GFE by more than the permitted tolerances, the loan originator may cure the tolerance violation by reimbursing to the borrower the amount by which the tolerance was exceeded, at settlement or within 30 calendar days after settlement. A borrower will be deemed to have received timely reimbursement if the loan originator delivers or places the payment in the mail within 30 calendar days after settlement.HUD-1 or HUD-1A Settlement StatementsGeneralSettlement agents must use the HUD–1 settlement statement in every settlement involving a RESPA covered loan in which there is a borrower and a seller. For transactions in which there is a borrower and no seller, the HUD–1 or the HUD-1A may be used. Use of the HUD-1 settlement statements is not required for Home Equity Lines of Credit.ChargesAll charges on the HUD-1 must be disclosed in accordance with the instructions in Appendix A. In general:The settlement agent must state the actual charges paid by the borrower and seller. The settlement agent must separately itemize each third party charge paid by the borrower and seller. All origination services performed by or on behalf of the loan originator must be included in the loan originator's own charge. Administrative and processing services related to title services must be included in the title underwriter's or title agent's own charge. The amount stated on the HUD–1 for any itemized service cannot exceed the amount actually received by the settlement service provider for that itemized service, unless the charge is an average charge.Use of Average ChargeOccasionally, lenders may charge borrowers an average charge for a settlement service. For example, an average charge may be useful when the exact cost of a settlement service is unknown until month-end invoicing.If a lender uses an average charge to calculate the cost of a settlement service, they must follow certain rules.CalculationTo calculate an average charge, you must define a specific class of transactions for a specific time period (not less than 30 calendar days, nor more than 6 months), for a specific geographical area, and for a specific loan type. The average charge is based on a calculation of the average amount paid for the settlement service for the particular class of transaction. HUD does not prescribe a particular method for calculating the average charge, but it must be determined in such a way that the total amounts paid by borrowers and sellers through use of an average charge will not exceed the total amounts paid to the applicable settlement service providers in the particular class of transactions.ApplicabilityIf the settlement service provider uses the average charge for any transaction in a class, the settlement service provider must use the same average charge in every transaction within that class for which a GFE was provided.ProhibitionsThe use of an average charge is not permitted for any settlement service if the charge for the service is based on the loan amount or property value. For example, an average charge may not be used for:Transfer taxesInterest chargesReserves or escrowAny type of insurance, including mortgage insurance, title insurance, or hazard insurance.DocumentationThe settlement service provider must retain all documentation used to calculate the average charge for a particular class of transactions for at least 3 years after any settlement for which that average charge was used.Correcting the HUD-1An inadvertent or technical error in completing the HUD–1 or HUD–1A will not be deemed a violation of section 4 of RESPA if a revised HUD–1 or HUD–1A is provided within 30 calendar days after settlement.One Day Advance InspectionThe settlement statement must be available for inspection by the borrower at least one day prior to settlement. RecordkeepingThe lender must retain each completed settlement statement for five years after settlement, unless the lender disposes of its interest in the mortgage and does not service the mortgage. Prohibition Against Kickbacks and Unearned FeesGeneralSection 8 of RESPA prohibits the acceptance or payment of referral fees and unearned fees in relation to any federally related mortgage loan.Any portion, split, or percentage of any charge paid or received for providing a settlement service in connection with a RESPA covered loan must be for services actually performed. Thing of ValueTo violate Section 8, three elements must be present:There must be a payment or giving of a thing of value.It must be pursuant to an agreement to refer business.A referral must occur.The following are considered a “thing of value”:MoneyThingsDiscountsSalariesCommissionsFeesDuplicate payment of a chargeStockDividendsDistribution of partnership profitFranchise royaltyCredits representing monies that may be paid at a future dateThe opportunity to participate in a money making programRetained or increased earningsIncreased equity in a parent or subsidiary entitySpecial bank deposits or accountsSpecial or unusual banking termsServices of all types at special or free ratesSales or rentals at special prices or ratesLease or rental payments based in whole or in part on the amount of business referredTrips and payments of another person’s expensesReduction in credit against an existing obligationPermitted PaymentsCertain payments are excluded from the Section 8 prohibitions. The following payments in connection with a RESPA covered loan are permitted:Payment of a fee to an attorney for services actually rendered.Payment of a fee to a duly appointed agent of a title company by that company for services actually performed in issuing the title policy.Payment of a fee by a lender to a duly appointed agent of that lender for services actually performed in making the loan.Payment of a bona fide salary to any person for services actually performed.Payment of any compensation for goods or facilities actually furnished or services actually performed.Payments pursuant to a cooperative brokerage arrangement or arrangements between real estate agents and brokers.Normal promotional and educational activities that are not conditioned on the referral of business and that do not involve the defraying of expenses that otherwise would be incurred by persons in a position to refer settlement services or business.An employer's payment to its own employees for any referral activities.Affiliated Business ArrangementsDefinitionAffiliated business arrangements generally refer to a situation where a person or firm is in a position to refer purchasers of settlement services to a settlement service provider that is owned in whole or in part by the referring party. Although the referring party receives no direct payment for the referral, it benefits through the ownership interest in the service provider.Disclosure RequirementIf an affiliated business arrangement exists, the person making the referral must meet the following three conditions to be protected from liability under Section 8:The person making the referral gives an appropriate Affiliated Business Arrangement (ABA) Disclosure Statement to each person to whom a referral is made.With certain exceptions, the person to whom the referral is made is not required to use the referred settlement service.The only thing of value received from the arrangement is a return on an ownership interest or franchise relationship.DisclosureAppendix D of Regulation X contains sample language and content for the affiliated business arrangement disclosure.An ABA Disclosure must generally conform to the sample disclosure.The disclosure must be provided on a separate piece of paper no later than the time of each referral or, if the lender requires use of a particular provider, at the time of loan application or with the GFE.Escrow AccountsRESPA sets very particular limits on the amount that can be required to be paid into an escrow account, and requires specific disclosures with regard to escrow accounts, both at settlement and for the life of the escrow account.Permitted Escrow AmountsThe initial amount a servicer is allowed to collect for an escrow account is calculated by computing the amount that would normally have been paid into escrow from the date the charge or charges were last paid until the first escrow payment is due, plus a cushion equivalent to two months payment.Escrow Account AnalysisAt the outset of the servicing of a mortgage with an escrow account, a servicer must perform an escrow account analysis. The outcome of analysis is the determination of the “target balance,” which is the amount that is enough to pay the necessary disbursements throughout the course of the coming year, plus any allowed cushion. Aggregate AccountingAll initial escrow account balances must be calculated using aggregate accounting. The escrow account analysis must follow a prescribed process:Step 1: Create an initial trial balance:Create a 12-month calendar beginning with the month the first payment is dueList disbursements in the months they are to be madeAdd 1/12 of the total amount of disbursements to each monthCalculate an end balance for each month (some months will have a negative balance)Step 2: Create an adjusted trial balance:Find the lowest monthly balance.Add to the first month an amount that will bring the lowest monthly balance to zero. Re-calculate all of the monthly balances. All of the monthly balances are then calculated taking into account this added first month payment. This newly calculated running balance is called the Adjusted Trial Balance. Note that this results in the escrow account balance falling to zero at the end of one month during the period.Step 3: Create a balance with a cushionAdd to the first month the permissible cushionAdjust the monthly balancesListing Escrow Accounts on the HUD-1Although servicers are required to calculate an initial escrow account balance using aggregate accounting, the different items that make up the escrow payment are required to be listed separately on the HUD-1. To calculate these line item amounts, follow these procedures:Perform an escrow account analysis to determine the total initial escrow payment. Using the same three-step method as the aggregate analysis, conduct a separate line-item analysis for each individual charge. The beginning balances calculated from the individual line-item analyses should be entered on lines 1002 through 1006 on the HUD-1.Total the beginning balances of all the separate line-item analyses. Subtract the sum of the beginning balances from the line item analyses from the beginning balance amount of the aggregate analysis.The difference will be the aggregate adjustment that should be entered on line 1007 of the HUD-1. (Note: the aggregate adjustment must always be a negative number or zero)Initial Escrow Account Disclosure StatementAn Initial Escrow Account Statement must be presented to the borrower at settlement or within 45 days following settlement. The initial statement must list the results of the aggregate analysis and contain the following information:The amount of the borrower's monthly mortgage payment The portion of the monthly payment going into the escrow accountItemization of the estimated taxes, insurance premiums, and other charges that the servicer reasonably anticipates to be paid from the escrow account during the escrow account computation year and the anticipated disbursement dates of those charges. The amount that the servicer selects as a cushion. A trial running balance for the account.Annual Escrow Account AnalysisAn escrow account must be reanalyzed at least once every 12 months. The information resulting from the annual escrow account analysis must be disclosed to the member/borrower within thirty calendar days of the close of the escrow account computation year.The servicer is permitted to reanalyze the escrow account prior to the normal end of the escrow account computation year to allow it to change the effective date of the member/borrower’s annual escrow computation year.Annual Escrow Account StatementThe annual escrow account statement must contain the following:An account history reflecting the activity in the escrow account during the escrow account computation year.A projection of the activity in the account for the next year. The amount of the borrower's current monthly mortgage payment and the portion of the monthly payment going into the escrow account.The amount of the past year's monthly mortgage payment and the portion of the monthly payment that went into the escrow account.The total amount paid into the escrow account during the past computation year.The total amount paid out of the escrow account during the same period for taxes, insurance premiums, and other charges (as separately identified).The balance in the escrow account at the end of the period.An explanation of how any surplus is being handled by the servicer.An explanation of how any shortage or deficiency is to be paid by the borrower.If applicable, the reason(s) why the estimated low monthly balance was not reached, as indicated by noting differences between the most recent account history and last year's projection. Escrow SurplusesIf an escrow account analysis discloses a surplus, the servicer must refund the surplus to the borrower within 30 days from the date of the analysis if the surplus is greater than $50.If the surplus is less than 50 dollars ($50), the servicer may refund the amount to the borrower, or credit it against the next year's escrow payments.If the borrower is not current (payments received within 30 days of the payment due date) at the time of the analysis, the servicer may retain the surplus in the escrow account pursuant to the terms of the mortgage loan documents.ShortagesAn escrow account shortage is the amount by which a current escrow account balance falls short of the target balance at the time of escrow analysis. This means that there will be a deficiency in the escrow account sometime during the escrow accounting year.Less Than One MonthIf an escrow account analysis discloses a shortage of less than one month's escrow account payment, then the servicer has three possible courses of action:The servicer may allow a shortage to exist and do nothing to change it.The servicer may require the borrower to repay the shortage amount within 30 days.The servicer may require the borrower to repay the shortage amount in equal monthly payments over at least a 12-month period.Greater Than One MonthIf an escrow account analysis discloses a shortage that is greater than or equal to one month's escrow account payment, then the servicer has two possible courses of action:The servicer may allow a shortage to exist and do nothing to change it.The servicer may require the borrower to repay the shortage in equal monthly payments over at least a 12-month period.DeficienciesAn escrow account deficiency is the amount of a negative balance in an escrow account. The servicer must perform an escrow account analysis before seeking repayment of the deficiency.If the escrow account analysis confirms a deficiency, then the servicer may require the borrower to pay additional monthly deposits to the account to eliminate the deficiency.Less Than One MonthIf the deficiency is less than one month's escrow account payment, then the servicer may: Allow the deficiency to exist and do nothing to change it.Require the borrower to repay the deficiency within 30 days.May require the borrower to repay the deficiency in two or more equal monthly payments.Greater Than One MonthIf the deficiency is greater than or equal to 1 month's escrow payment, the servicer may:Allow the deficiency to exist and do nothing to change it.May require the borrower to repay the deficiency in two or more equal monthly payments.Delinquent AccountsIf the borrower is delinquent at the time of the escrow account analysis, the servicer may recover the deficiency pursuant to the terms of the mortgage loan documents.Notice of Shortage or DeficiencyThe servicer must notify the borrower at least once during the escrow account computation year if there is a shortage or deficiency in the escrow account. The notice may be part of the annual escrow account statement or it may be a separate document.Servicing TransfersServicing Disclosure StatementLenders are required to deliver a Servicing Disclosure Statement to mortgage loan applicants at the time an application is submitted, or within 3 business days after submission of the application. The disclosure must indicate whether the servicing of the loan may be assigned, sold, or transferred to any other person at any time while the loan is outstanding. The disclosure is only required on closed-end (non-HELOC) first lien loans covered by RESPA.Model language is provided.Co-applicants that live at different addresses must receive their own copies of the disclosure. Servicing Transfer NoticeA Servicing Transfer Notice must be provided to the borrower upon the assignment, sale, or transfer of servicing rights.TimingBoth the transferor servicer and transferee servicer must make the disclosure:The transferor servicer must provide the notice not less than 15 days before the effective date of the transfer.The transferee servicer must provide the notice not more than 15 days after the effective date of the transfer.The transferor and transferee servicers may combine their notices into one notice.ContentsThe notice must contain the following information:The effective date of the transfer of servicingContact information for the transferee servicer, including: Name, Consumer inquiry addresses (including, at the option of the servicer, a separate address where qualified written requests must be sent)Toll-free or collect-call telephone number for an employee or departmentA toll-free or collect-call telephone number for an employee or department of the transferor servicer that can be contacted by the borrower for answers to servicing transfer inquiries.The date on which the transferor servicer will cease to accept payments and the date on which the transferee servicer will begin to accept payments (dates must either be the same or consecutive days).Information concerning any effect the transfer may have on the terms or the continued availability of mortgage life or disability insurance, or any other type of optional insurance, and any action the borrower must take to maintain coverage.A statement that the transfer of servicing does not affect any other term or condition of the mortgage documents, other than terms directly related to the servicing of the loan.A statement of the borrower's rights in connection with complaint resolution.Consumer Protection During Transfer of ServicingDuring the 60- day period beginning on the effective date of transfer of the servicing if the transferor servicer (rather than the transferee servicer that should properly receive payment on the loan) receives payment on or before the applicable due date (including any grace period allowed under the loan documents), a late fee may not be imposed on the borrower and the payment may not be treated as late for any other purposes.Loan Servicing InquiriesLoan Servicers are required to respond to borrower disputes regarding loan servicing. Qualified Written RequestsA qualified written request (QWR) is a written correspondence (other than notice on a payment coupon or other payment medium supplied by the servicer) that includes: The name and account of the borrowerA statement of the reasons that the borrower believes the account is in error, if applicable, or that provides sufficient detail to the servicer regarding information relating to the servicing of the loanA servicer may establish a separate and exclusive office and address for the receipt and handling of qualified written requests.Initial ResponseA loan servicer must provide a written acknowledgement to a borrower’s QWR within 20 business days of receipt of the QWR unless the servicer makes the requested correction during that time.Final Response – Account is CorrectedIf an error is found on the account, the servicer must do the following within 60 days of receipt of the QWR:Make appropriate corrections in the account of the borrower, including the crediting of any late charges or penalties.Transmit to the borrower a written notification of the correction that includes the name and telephone number of a representative of the servicer who can provide assistance to the borrower.Final Response – Account is not CorrectedIf the investigation concludes that there is no error, within 60 days of receipt of the QWR the servicer must send a borrower a statement that contains the following:A statement of the reasons for concluding the account is correct Name and telephone number of an employee, office, or department that can provide assistance to the borrowerFinal Response – Information RequestIf the QWR is just an information request, within 60 days of receipt of the QWR, the servicer must send a notice to the borrower with the following information as applicable:The information requested by the borrowerAn explanation of why the information requested is unavailable or cannot be obtained by the servicer, and the name and telephone number of an employee, office, or department that can provide assistance to the borrower.Protection of Credit RatingDuring the 60-business day period beginning with the receipt of a QWR relating to a dispute on the borrower's payments, a servicer may not provide adverse information regarding any payment that is the subject of the QWR to any consumer reporting agency.New StuffNew regulations effective January 10, 2014Homeownership Counseling NoticeProvide within three business days of applicationMust list counseling services in the applicant’s locationList of homeownership counseling organizations must be current within 30 days Data provided by the CFPBRequired for HELOCs (provide with application disclosure)Not required for reverse mortgagesError Resolution and Information RequestsReplaces current qualified written request sectionApplies to most errors and complaints regarding mortgage servicing issues (credit of payments, escrow account issues, information requests) as well as requests for informationRequires certain written responses within certain timeframes (7-30 days)Forced Placement of Hazard InsuranceDoes not apply to flood insuranceRequires borrower notifications prior to placementCertain rules for paying for insurance out of an escrow accountRequirements for Large Servicers Applies to institutions that service more than 5,000 covered loans:Specific servicing related policies and procedures Early intervention for troubled borrowersContinuity of contactLoss mitigation procedures ................
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